It took barely 24 hours before what is believed to be the first lawsuit under the Massachusetts Equal Pay Act ("MEPA") to be filed. On Monday morning, July 2, suit was filed on behalf of Elizabeth Rowe, principal flautist for the Boston Symphony Orchestra, in Suffolk County Superior Court. Rowe was hired for the role by the BSO in 2004, and the lawsuit claims that she has asked for years to be paid the same as the principal oboe player, a male. She alleges that the role of principal oboe is the one most comparable to her position and that paying her some $70,000 less per year amounts to a violation of MEPA.
Rowe claims that she tried to resolve the claim internally to no avail and that her efforts included documenting the alleged pay disparity over a period of months and reminding the BSO of the upcoming effective date of the law. There is no indication as to whether or not the BSO took advantage of the opportunity of an affirmative defense by conducting a self-audit into its own pay practices.
The lawsuit also includes a claim of retaliation. Rowe alleges that she had been asked by the BSO in December 2017 to be interviewed by Katie Couric regarding the orchestra's practice of conducting blind auditions, a process by which Rowe herself was selected for the job of principal flute. However, once she complained of pay disparity, the invitation to be interviewed was rescinded.
Many will be watching the progress of this case as it moves through the court system. Given the time the process will take, employers should continue to focus on conducting their self-audits and monitoring their own pay practices keeping in mind that the new law focuses not simply on equal pay for equal work but on equal pay for comparable work. It is likely that the outcome of this case will be on the comparability of the two positions.
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