Equal Pay–Are All Woodwinds the Same?
In 2018, Elizabeth Rowe, principal flutist of the Boston Symphony Orchestra (BSO), filed a lawsuit against the orchestra under Massachusetts’ equal pay law. Although Rowe was the only principal flutist, she claimed the BSO violated the equal pay law by paying John Ferrillo, the principal oboist, about $70,000 more per year than she received.
The BSO case was later settled. But it raises interesting questions about the gender wage gap in orchestras. Although principal players can make significantly more money than section members, only 21% of the slots go to women.
Is a Flutist Worth More than an Oboist?
In Rowe’s case, the BSO claimed that a principal oboe position was deserving of more pay than a principal flute position. The case demonstrates how difficult it can be both for an employee to prove an equal pay violation and an employer to justify a legitimate pay differential.
The BSO said that not all woodwinds are the same. The BSO noted there are fewer professional oboists than flutists, making competition for the best players greater. And, the BSO claimed that the oboe is more difficult to play than the flute. And the entire orchestra tunes to an A played by the principal oboe.
Yet, flute is an instrument which is stereotypically associated with women. So, the pay differential between flutists and oboists generally could have been the product of long-term sex discrimination.
As women climb the corporate ladder, there are fewer identical positions they can use to compare their salaries with those received by male colleagues. When positions aren’t the same, there sometimes may be legitimate business reasons unrelated to employee sex for a pay differential. Unfortunately, the limited number of comparable jobs also can make it easier for an employer to engage in wage discrimination.
Equal Pay Act
The Equal Pay Act (EPA) prohibits wage discrimination based upon sex. Although EPA doesn’t specifically mention gender identity, the Equal Employment Opportunity Commission (EEOC) interprets EPA to prohibit gender identity discrimination.
If a woman can show she is paid less than a man for the same job, then she has a prima facie wage discrimination case. The woman must show 1) that she had the same job as a man, and 2) that she was paid less. After she does this, the burden of producing evidence shifts to the employer to show a legitimate non-discriminatory reason for the pay difference.
It isn’t always easy to show that two jobs are the same. The EPA says that two jobs are the same when they share:
Equal skill (experience, ability, education, and training required for the job)
Equal effort (amount of physical or mental exertion required for the job)
Similar working conditions (physical surroundings, hazards, shirt work)
Same location (but sometimes, multiple locations will be considered as one)
For instance, it might be okay for a man in New York City to be paid more than a woman in Kansas City even though they are doing the same job for the same employer. Or a man who works third shift might be paid more than a woman who works first shift, because those working conditions differ. But it’s likely to be wage discrimination if a man and woman hired at the same time and who work side-by-side in a factory receive different pay.
EEOC’s Gender Pay Inequality Initiative–Sample Cases
EEOC is cracking down on gender pay inequality. Gender-based pay discrimination is one of EEOC’s priorities in its Strategic Enforcement Plan for 2017-21. Recently, in June 2019 the EEOC filed two federal court cases claiming Maryland employers had violated the EPA.
In the first case, EEOC v. David & Davis Enterprise, Inc., the EEOC claims a Baltimore security company systematically paid female security guards less than their male counterparts. According to the EEOC, both the male and female guards had comparable duties and responsibilities but the women were paid less.
In the second case, EEOC v. Asset Strategies International, Inc., the EEOC claims that Asset Strategies promoted a female employee to a management position but still paid her less than the male employees she had trained and managed. Her job, the EEOC says, requires more skill and responsibility than her higher paid male counterparts.
In 2018, University of Denver agreed to pay $2.66 million to settle an EPA lawsuit. According to the EEOC, the University paid its female full professors at the law school an average of nearly $20,000 less than their male counterparts. And the University failed to correct the inequity after formally recognizing the gender pay gap in a 2013 memo.
Plus, in 2017, Prince George’s County, Maryland agreed to pay more than $145,000 for paying a female civil engineer less than a male engineer with the same job class. The County even paid a male engineer in a lower job class more than the woman, even though he had less experience and less complex job duties.
Maryland Equal Pay for Equal Work Act
In addition to EPA, some states, including Maryland, have state equal pay laws. Maryland’s Equal Pay for Equal Work Act protects employees from pay discrimination based both upon sex and gender identity.
Maryland’s law doesn’t prohibit pay differences based upon the following, rather than sex or gender identity:
Merit increase system
Different abilities or skills required for jobs
Different duties or services
Compensation based upon quality or quantity of output
There are exceptions to these legitimate reasons for pay differences. Legitimate pay differences derived from a gender-based pay difference aren’t allowed. So, an orchestra couldn’t pay flutists less based on a pay scale arising out of the idea that the flute is a “female instrument.”
Employer Best Practices for Wage Equity
The Maryland law’s exceptions provide a good starting point for employers to create an equitable pay structure. Equitable policies are just the starting point. Best practices also require the employer to:
Create job descriptions which include the duties and responsibilities, education and qualifications, physical requirements, and working conditions
Establish compensation schedules based upon job descriptions and seniority. Include increases, bonuses, and incentive pay
Set new employee compensation based upon objective company standards, rather than salary history
Communicate job descriptions and compensation information to employees.
Follow the established policies
Document individual pay decisions and how they were made
Develop an objective and transparent performance review process, particularly if reviews impact compensation
Establish and follow a document retention policy so documents are maintained consistently
Train employees about policies and monitor compliance
Regularly audit employee compensation to see if there are gender pay differences between employees in the same job. If there are differences, confirm there is a legitimate business reason for the difference
Wage hours are complex and can be unique to the industry and the individual employer, so it’s best that an employer work with an attorney who knows the employer’s business. With clear standards, transparency, and self-monitoring, employers can bring wage equity to their workplaces. Not only will wage equity help prevent the employer from ending up on the wrong side of an EEOC wage discrimination case, but it’s good for employee morale and for business.
© 2019 by Elizabeth A. Whitman
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