Celebrating the Massachusetts Equal Pay Act

July 30, 2021

By Nina Joan Kimball

Five years ago, on August 1, 2016, Massachusetts enacted the most comprehensive equal pay law in the U.S. It has since become a model for pay equity laws across the country. As we celebrate this achievement, we should remember that the concept of “equal pay for equal work” has actually been around for over 100 years, and yet today that concept is still a goal, not a reality, for many women.

More than 100 years ago, our federal government recognized that women should get equal pay for performing the same work performed by men. The two world wars of the 20th century, which mobilized women into the workforce, also sparked steps towards equal pay for women. During World War I, when women stepped in to fill the jobs of men fighting in Europe, the National War Labor Board (NWLB) issued a statement mandating equal pay: “If it shall become necessary to employ women on work ordinarily performed by men, they must be allowed equal pay for equal work.” (New York Times Oct. 6, 1918). In 1942, as Americans (primarily men) were again sent off to war and women were hired to do the jobs formerly performed by men, the NWLB under President Franklin Roosevelt and Secretary of Labor Frances Perkins (the first female cabinet secretary) mandated that women holding jobs that men had otherwise filled must be paid the same as the men. The concept of equal pay for “comparable” work was developed to pay women fairly in gender-segregated jobs, and also when the job was comparable though not identical to a job performed by men, based upon job evaluations to set “proportionate rates for proportionate work.” NWLB Press Release, No. B 693, June 4, 1943. The first federal legislation calling for equal pay for equal work was introduced during the war by one of the few women in Congress, Representative Winifred Stanley. She introduced HR 5056, a bill entitled “Prohibiting Discrimination on the Basis of Pay.” Congresswoman Stanley was looking to the future, to post-war America, to ensure that women would receive equal pay for equal work even after the war ended. Her bill did not pass, and Congress would not enact the Equal Pay Act until almost 20 years later in 1963. Instead, it was Massachusetts that led the way on equal pay. 

On July 10, 1945, Massachusetts became the very first state to pass an equal pay law.  Drafted against the backdrop of the NWLB mandate, the Massachusetts Equal Pay Act (“MEPA”) required equal pay for comparable work. This meant that even if women did not hold the exact position of their male counterparts, if the duties and responsibilities were similar, the law required women to be paid the same as the men. By adopting an equal pay for comparable work standard, MEPA was broader than the federal equal pay law passed in 1963.  But, 50 years later, in 1995 and again in 1998, the Massachusetts Supreme Judicial Court narrowed the reach of MEPA in its two decisions in Jancey v. School Committee of Everett, that created confusion in how the statute should be interpreted, essentially reading “comparable” to mean “equal” and making the statute ineffective. Over the next 16 years, many attempts to amend MEPA failed in the Legislature. Then in January 2015 a new and more comprehensive bill was introduced that clarified the definition of comparable work and added many other pay equity provisions, some of which were the first in the nation. 

While the gender wage gap narrowed in the 1970s and 1980s as women’s education levels rose and they entered the workforce in larger numbers, the wage gap plateaued over the next two decades. By 2014, the national gender wage gap was $0.77 – on average, women working full time earned $0.77 to a dollar earned by men, with Black women earning only $0.64 and Latina women earning only $0.54. In the fall of 2014, thinking we needed a new approach to amend MEPA, attorney Deborah Benson and I formed the Pay Equity Task Force of the Women’s Bar Association (WBA) to draft a new and more comprehensive equal pay law. We were inspired by former Lt. Governor Evelyn Murphy, the founder and president of the Wage Project, who advised us to dream big. We did so, clarifying that the term “comparable work” meant similar, not equal, getting rid of pay secrecy policies so that workers could discuss their wages freely, extending the statute of limitations, adding non-discriminatory exemptions, and introducing a defense for companies that conducted self-audits of pay practices. We partnered with Katie Donovan of the American Association of University Women, who introduced the groundbreaking concept of restricting the use of salary history in hiring, making Massachusetts the first in the nation to end a practice that often perpetuated unequal pay from a prior job into a new job, a provision which helps not just women but also people of color who have historically been paid less than their white male peers. By December 2014, the Equal Pay Coalition was formed by the WBA, the Massachusetts Commission on the Status of Women (MCSW) and MassNOW, to pull together non-profits, unions and other organizations to advocate for passage of these amendments to MEPA.

Along the way, many, many people – advocates, elected officials, businesses and business organizations – worked to push the legislation through the House and Senate and finally to the Governor’s desk all in one session! In the House, Rep. Jay Livingstone, then a freshman, was the lead sponsor along with Rep. Ellen Story. The lead sponsors, with the support of the Equal Pay Coalition, secured an impressive 96 co-sponsors to sign on to the House bill when it was filed in January 2015 – 60% of the House members. In the Senate, Senator Pat Jehlen who had been leading the effort to amend the equal pay law in the Senate, was the lead sponsor along with Senator Karen Spilka (then the Chair of the Ways & Means Committee) as the lead co-sponsor. Also instrumental in passing the bill were Rep. Pat Haddad, the Speaker Pro Tempore of the House, who worked hard to bring the business community on board, and Senator Dan Wolf, the Senate Chair of the Labor and Workforce Development Committee. I still remember his impassioned speech on the Senate floor in support of the bill. The bill had the support of Attorney General Maura Healey and the Chief of her Civil Rights Division, Genevieve Nadeau, who were critical in shaping the language of the bill and encouraging support from the business community. Treasurer Deborah Goldberg, who campaigned on pay equity and established the Office of Economic Empowerment to advance pay equity, also provided important support and advocacy for the bill.

The bill passed unanimously in the Senate on January 28, 2016, one day after the Greater Boston Chamber of Commerce came out in support of the bill, and then passed unanimously in the House on July 14, 2016. The bill was signed into law by Governor Charlie Baker on August 1, 2016, with an effective date of July 1, 2018, giving businesses the opportunity to conduct internal wage audits and take steps to address any wage discrepancies they found in advance of the effective date. Our first-in-the-nation salary history ban has since been followed by 18 other states and many municipalities, showing that Massachusetts is once again a leader in the fight for pay equity, both for gender equity and racial equity. A key provision in the law, salary history bans, have been shown to close both gender and racial wage gaps. The legislation would not have passed in one session without so many elected officials working in a bi-partisan manner, and with the support of advocacy groups, individuals, and businesses. Today we celebrate that achievement.

Nina Joan Kimball is a partner at Kimball Brousseau LLP, a boutique employment law firm in Boston.  She is the Immediate Past Chair and a Commissioner Emerita on the Massachusetts Commission on the Status of Women.  As Co-Chair of the Women’s Bar Association Pay Equity Task Force in 2014-16, Nina helped draft and advocate for the new Massachusetts Equal Pay law.