Massachusetts demonstrates progress is possible on equal pay

On Aug. 1, Massachusetts Gov. Charlie Baker (R) signed into law a landmark pay equity bill, reminding equal pay advocates of what is possible when policymakers and stakeholders work together in bipartisan fashion to make concrete progress on equal pay. The legislation is a significant step forward, closing gaps in the protections previously available under state law, and helping to target discriminatory pay practices that depress women’s wages. 

Among its most notable provisions, the Massachusetts law breaks new ground by limiting how employers can use salary history when making hiring or salary decisions. Specifically, the law prohibits employers from requiring or seeking information about an applicant’s prior wages as a condition of being hired or considered for a job, thus making clear that salaries should be determined by the value of the job in question rather than a prior job with no connection to what the new position requires. This is critical because women typically earn less than their male counterparts—even when controlling for factors such as education or seniority—thus if a prospective employer uses a job applicant’s prior salary when setting the salary for an open position, women will be at a perpetual disadvantage. 

{mosads}The new law also broadens anti-discrimination protections to prohibit gender-based pay differences for comparable work, meaning work that requires substantially similar skill, effort, and responsibility and is performed under similar working conditions. This provision will help advance a more nuanced, realistic understanding of the concept of equal work by encompassing jobs that may not be exactly the same but require comparable skills. This change will help ensure that women are not denied equal pay they deserve simply because their job has a different title or description than that of a male co-worker.

Importantly, the law also promotes greater pay transparency by prohibiting rules requiring pay secrecy, and providing protection against retaliation by employers if employees choose to discuss their pay. And, the law requires employers to meet stricter standards when trying to justify pay disparities so that there are bona fide or job-related, business reasons for such differences.

The Massachusetts law comes at a particularly important moment in the national conversation about equal pay. Policymakers in Congress routinely mouth what has become largely pro forma support for equal pay. Perhaps this is not surprising, given that equal pay is consistently shown to be a top priority of women and enjoys widespread support among men and women across party, racial, and gender lines. 

But rhetoric is a far cry from real dollars in the pockets of women and men trying to make ends meet. Although laws requiring equal pay for equal work have been on the books for years at the federal level, these protections have proven inadequate to address the full range of discriminatory pay practices that continue to affect women’s wages. Concrete action in Congress is sorely needed to address these shortcomings.

Provisions to provide greater pay transparency and reduce pay secrecy, anti-retaliation protections, pay data disclosure, limits on the use of salary history, and narrowing the overly broad defenses used by employers to justify pay disparities are all steps that could be taken. Yet, concrete reforms have gone nowhere at the federal level.  This continued inaction speaks volumes.

The Paycheck Fairness Act, perhaps the most visible, comprehensive proposal currently in Congress, has been mired in partisan gridlock and blocked by opponents for almost two decades. This proposal would strengthen existing equal pay protections – for example, by tightening employer defenses, requiring pay data disclosure, and increasing damages for equal pay violations. Opponents of the Paycheck Fairness Act often argue that it would do little to close the wage gap, attributing the gap to women’s choices rather than discrimination. 

This narrative entirely misses the mark. Even the most progressive bill will not close the pay gap completely – because the pay gap is driven by many different factors beyond discrimination. But that does not alter or diminish employers’ obligation to ensure equal pay for equal work and to maintain workplaces free of discrimination.

The two most visible opposing alternatives, introduced by Sens. Deb Fischer (R-Neb.) and Kelly Ayotte (R-N.H.), are inadequate and more limited. Fischer’s bill, the Workplace Advancement Act, focuses on retaliation but nothing else – it purports to protect employees from retaliation by their employer if they discuss their pay, but only if they can show that they were trying to figure out whether they were earning equal pay for equal work. It is unclear how this standard would work or protect other workers engaged in more general conversations about pay.

Meanwhile, Ayotte’s bill—the Gender Advancement in Pay Act – is more robust, but also falls short. For example, it would increase penalties for equal pay violations, but probably not enough to deter bad conduct. It does not prevent employers from paying women and men unequally when they work at different job sites. And it does not address pay data collection, which is a critical tool for enforcement agencies to ensure compliance with the law.

The success in Massachusetts stands in stark contrast to the continued – and frustrating – lack of leadership on equal pay at the Congressional level. Congress’s failure to take concrete action on equal pay is troubling and indefensible. As the Massachusetts bill demonstrates, progress is possible when the needs of workers and a commitment to fairness are put before political grandstanding and posturing. 

Jocelyn Frye is a Senior Fellow at the Center for American Progress, where her work focuses on a wide range of women’s issues, including work-family balance, pay equity, and women’s leadership.