Massachusetts has enacted equal pay legislation, codified at M.G.L. c. 149, § 105A. The legislation is referred to as the Massachusetts Equal Pay Act (“MEPA”). The law requires equal pay between men and women for work of “comparable character.” Id. In the case of Jancey v. School Committee of Everett, 421 Mass. 482, 489-90 (1995), the Supreme Judicial Court announced a two-part inquiry to determine whether two jobs are “comparable:”
First, the court must determine whether the substantive content of the jobs is comparable, that is, whether the duties of the jobs have “important common characteristics.” To ignore job content when applying the “comparable” standard is to attempt the impossible task of comparing disparate concepts. In other words, two positions that are so dissimilar in their substantive content that a reasonable person would regard them as categorically separate are not “comparable.”
It is only when a determination is made that the jobs are comparable in the substantive content, that the second inquiry is appropriate—whether the two positions entail comparable skill, effort, responsibility, and working conditions. If the answer to both inquiries is “Yes,” then employees in the two positions must receive equal pay.”
In Jancey, the Court compared female cafeteria employees and male custodians, and, after remand, and a subsequent trip to the SJC (Jancey II) determined that the two positions were NOT comparable in substantive content.
In Jancey II, the SJC affirmed the trial court’s decision for the defendants, holding that, as between the female cafeteria employees and male custodians, “[t]he substantive content of the two jobs are so dissimilar that a reasonable person would regard them as categorically different or separate.” In so holding, the SJC took the opportunity to refine the first prong of the “comparable” standard it announced in Jancey I. The Court instructed that the first prong requires courts to focus scrutiny on “the substantive content of the positions, specifically the actual duties of each position, from the viewpoint of an objectively reasonable person, to ascertain whether the jobs are so dissimilar that they are not comparable.” Id. Applying that objective standard, the SJC found that, while cafeteria workers and custodians share the responsibility of undertaking certain domestic work necessary to operate a school, “MEPA requires more than a commonality of responsibility and purpose.” That is, it is not enough that two jobs may be of the same nature or share the same general objective.
Notwithstanding the Court’s ultimate decision, even had the plaintiffs in Jancey demonstrated comparable substantive content, they would have also been required to demonstrate the two positions entail “comparable skill, effort, responsibility, and working conditions.” Jancey I, 421 Mass. at 489-90. Under both MEPA and its Federal equivalent, the Federal Equal Pay Act (“FEPA”), plaintiff-employees must demonstrate equal skill, effort, and responsibility. Although Massachusetts courts have not interpreted the exact meaning of skill, effort, and responsibility in the context of MEPA, the Equal Employment Opportunity Commission (“EEOC”) has promulgated the respective definitions of each term. Albeit generally, the definitions provided by the EEOC can be used as guidance for Massachusetts employers in determining whether two jobs are comparable.
As aforestated, to prevail, a plaintiff has to establish the substantial equality of skill, effort, and responsibility between the plaintiff’s job and the jobs of at least another comparators. The EEOC states that “skill” includes consideration of such factors as experience, training, education, and ability. 29 C.F.R. § 1620.15(a). “Effort” is concerned with the measurement of the physical or mental exertion needed for the performance of the job. 29 C.F.R. § 1620.16(a). “Responsibility” is concerned with the degree of accountability required in the performance of the job, with emphasis on the importance of the job obligation. 29 C.F.R. § 1620.17(a). And finally, “working conditions” has been held to encompass two subfactors: “surroundings” and “hazards.” “Surroundings” measure the elements, such as toxic chemicals or fumes, regularly encountered by a worker, and the respective elements intensity and frequency. 29 C.F.R. § 1620.18(a). “Hazards” takes into account the physical hazards regularly encountered, their frequency, and the severity of their injury they can cause. Id. A plaintiff’s failure to show even one of these elements would be fatal to her or his claim. A steep hill to climb certainly, but a litigious one nonetheless.
Once two jobs are determined to be comparable under M.G.L. c. 149, § 105A, a court will direct its analysis to whether the two parties are in fact paid equally. Because that question can be so fact intensive, the SJC, in Jancey I, clarified the meaning of “wages” as used in the statute. In its decision, the Court chose to construe the term broadly. Jancey I, 421 Mass. at 490. The SJC reiterated its precedent that, where a statute does not effectively define a term, “the Legislature should be supposed to have adopted the common meaning of the word.” Id. Examining the Black’s Law Dictionary definition of “wages,” as well as analogous Massachusetts state and Federal statute definitions for guidance, the SJC found the term includes all elements of remuneration. Id. at 493. As a result, the SJC held it was error to exclude evidence of fringe benefits by considering only the employee’s base salaries. Id.
It is important for employers to review the pay of their workforce with MEPA in mind, as not doing so could expose the employer to a lawsuit. As the first prong requires a court to determine if the work is comparable, careful analysis must be made to the types and categories of work being performed. The Jancey Court acknowledged that “comparable” is a more inclusive term than “equal” and to prevail on a MEPA claim the jobs compared must have “important common characteristics,” but they need not be the same. As to the second prong, a review of the skill, effort, and responsibility, is important as this is where distinctions may be drawn.
Indeed, a lawsuit is never the circumstance an employer seeks to determine the actual sameness between two employees. Having sufficiently detailed job descriptions and an outline of duties and responsibilities is one helpful way for employers to categorize, evaluate and analyze its workforce to ensure sufficient compliance or differentiation that would be sufficient to withstand scrutiny.
