Work in Progress

By Meaghan Murphy, Esq.

A Massachusetts Superior Court recently dismissed claims brought by an employee under the Massachusetts Equal Pay Act (MEPA) and the Massachusetts anti-discrimination law after an employer successfully used the MEPA’s absolute defense to liability. Unhappy with the outcome, the employee who filed the lawsuit appealed the Superior Court’s decision, and that appeal is pending.

The Appeals Court heard argument in this case on Sept. 3, and a decision is expected in the coming months. That decision will be the first appellate guidance on the affirmative defense available to employers under MEPA and will set the standard for pay equity disputes across the state.

Before diving into the case on appeal, it is important to understand what MEPA prohibits and requires, and what the employer defense that acts as a total shield to liability is all about.

What MEPA Does

MEPA applies only to claims of discriminatory pay based on gender. The law prohibits employers from paying employees less due to their gender, and further requires employers to pay employees equal pay for comparable work.

Meaghan Murphy

“The Appeals Court affirms the Superior Court’s dismissal of Woodward’s claims, it might mean that employers can rely on self-evaluations and proposed changes as a shield to liability, without actually making the changes — a lower standard for this affirmative defense than expected.”

Comparable work is work that requires substantially similar skill, effort, and responsibility, and is performed under similar working conditions. A job title or job description alone does not determine if two employees are performing comparable jobs. A more fact-specific analysis of the day-to-day duties and responsibilities is typically required.

The ‘Evaluate and Progress’ Defense

MEPA contains a rare ‘safe harbor’ provision that courts can rely on to dismiss MEPA claims when an employer successfully shows they have met the legal requirements. Under §105A(d) of MEPA, employers are protected from liability for gender-based pay disparity claims if they complete “a self-evaluation” of their own pay practices “in good faith” and demonstrate “reasonable progress” toward eliminating any identified wage differentials based on gender for comparable work. An important caveat: that self-evaluation must be completed within three years of an employee (or group of employees) filing a claim under MEPA.

If an employer can satisfy these requirements, then MEPA claims are barred. In other words, there is no liability for employers who can show they took these steps within three years of getting sued under MEPA. Of course, not all employers conduct these self-evaluations. But for those that do, this ‘evaluate and progress’ defense is a total game changer.

The Case on Appeal

In Woodward v. Board of Registration in Nursing et al., the plaintiff, Lauren Woodward, was hired by the Board of Registration in Nursing as a compliance officer. Woodward is a woman, and the two other compliance officers at the time were men.

Part of a compliance officer’s pay was based on the number of years of relevant or similar work experience they had prior to being hired. The board gave credit — and increased the pay — for that prior experience. All three compliance officers were credited with different numbers of years of experience, but the two men were credited with more years based on their respective experience. That resulted in the men being paid more than Woodward for the same job.

In June 2020, Woodward filed a lawsuit alleging that she was paid less than the two male compliance officers. She asserted a claim under MEPA and a sex discrimination claim under the Massachusetts anti-discrimination law based on these same allegations of sex-based pay disparity.

In a motion filed with the court, the board asked that the claims be dismissed and asserted the ‘evaluate and progress’ defense under MEPA. The board argued that it had conducted a good-faith self-evaluation of its pay practices within three years of Woodward’s claim being filed, that it had identified wage differentials based on gender for comparable work, and that it had made reasonable progress towards eliminating those wage differentials.

During its self-evaluation, which the board said was conducted in November 2019, the board identified seven individuals — both women and men — who were subject to potentially impermissible pay disparities. The board proposed that the pay for all seven employees be adjusted upward to match the pay of their peers doing comparable work. Notably, Woodward was not one of the seven employees identified during the evaluation, so her pay was not proposed to be adjusted upward to match that of her two male co-workers.

Based on these facts, the board argued, it had satisfied the requirements of the ‘evaluate and progress’ defense and, therefore, is shielded from Woodward’s MEPA claim.

Woodward did not dispute that the board had conducted a self-evaluation of its pay practices. However, she disputed other important facts, including whether the self-evaluation was conducted in good faith and whether the board made reasonable progress toward eliminating wage differentials based on the findings of that self-evaluation.

Interestingly, Woodward pointed out that, while the board had proposed adjustments to the pay for the seven employees identified, it had not actually made those adjustments. Therefore, according to Woodward, the board failed to show reasonable progress toward correcting the gender-based pay disparities.

The court was not persuaded by this argument from Woodward, finding that the proposal for pay adjustments for the employees identified was enough. According to the court, though evidence of actual pay increases would have demonstrated greater progress towards eliminating gender-based wage differentials, evidence of the board’s first step toward such pay increases — identifying potentially impermissible wage differentials and proposing corresponding pay increases, subject to funding approval — appears to satisfy the requirements of MEPA.

The board also argued that, even if it could not use the ‘evaluate and progress’ defense, the pay disparity between Woodward and her male peers was lawful because it was based on their varying experience and not their differing genders. But the court did not get to that argument because the board successfully demonstrated it was entitled to the affirmative defense MEPA provides. So the court stopped there.

The court also did not address the merits of Woodward’s sex discrimination claim under the state’s anti-discrimination law. Under MEPA, an employer who can establish the ‘evaluate and progress’ defense avoids liability under MEPA and the state’s anti-discrimination law.

Woodward’s claims were dismissed at the summary judgment stage (i.e., before ever getting to a jury). As mentioned above, Woodward has appealed. In her appeal, Woodward contends that the court improperly analyzed her claims and how MEPA’s ‘evaluate and progress’ defense should be applied.

What’s Next?

Employers and employees alike should be interested in the Appeals Court’s decision in this case. If the Appeals Court affirms the Superior Court’s dismissal of Woodward’s claims, it might mean that employers can rely on self-evaluations and proposed changes as a shield to liability, without actually making the changes — a lower standard for this affirmative defense than expected.

Alternatively, the Appeals Court could disagree with the Superior Court’s dismissal of Woodward’s claims and send the case back down for further analysis, which might result in a jury deciding the case. A decision is expected in the coming months.

Meaghan Murphy is an attorney with Skoler, Abbott & Presser, P.C. Licensed in both Connecticut and Massachusetts, she regularly advises clients on various workplace issues, including discipline and performance matters, policy development and implementation, and compliance with local, state, and federal laws and regulations.