Baker signs law to close so-called pay gap, prevent ‘salary secrecy’

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STATE HOUSE — The Bay State’s Republican governor on Monday signed legislation aimed at shrinking the so-called “gender wage gap,” a statistical disparity that activists claim is the product of sexism in the workplace but that free market proponents claim is the result of differences in individual backgrounds and free choice.

Although pay discrimination has been illegal in Massachusetts since the mid-20th century, on average Bay State women today earn only 82 cents for every $1 paid to men. June O’Neill of the American Enterprise Institute says such numbers don’t tell the whole story because they compare women and men across professions and do not account for career choices, productivity, or hours worked. When the wages of female employees are compared to those of similarly situated men performing the same job, O’Neill says, the wage gap essentially disappears.

The Massachusetts law allows women claiming wage discrimination to compare their compensation packages with men in jobs that are “comparable,” albeit not the same. Moreover, the bill signed this week by Gov. Charlie Baker prohibits employers from forbidding workers from discussing compensation, making it arguable easier to build a case of wage discrimination. The bill also prohibits employers from asking prospective hires about their salary histories until after they have made them an offer that includes compensation, although applicants may voluntarily disclose that information as part of salary negotiations. Supporters of the measure claim that the bill, the first in the nation of its kind, will help address systemic bias.

After faltering on Beacon Hill in previous sessions, the comparable worth legislation got a vigorous push this session from lawmakers, business organizations and women’s advocates. Baker identified it as one of six major bills he hoped the legislature would pass so he could sign it.

Baker signed the bill with Lt. Gov. Karyn Polito, cabinet secretaries Marylou Sudders and Kristen Lepore, Treasurer Deborah Goldberg, Auditor Suzanne Bump, former Lt. Gov. Evelyn Murphy, about two dozen lawmakers, Senate President Stan Rosenberg, and House Speaker Robert DeLeo by his side.

“Our daughters and granddaughters, and our sons and grandsons, will face a fairer work environment than we have,” said Sen. Patricia Jehlen, who sponsored the bill with Reps. Ellen Story and Jay Livingstone.

“Today in Massachusetts we say, equal pay for equal work is not just a slogan, it’s the law,” Jehlen added. Jehlen failed to note, however, that equal pay has been the law in Massachusetts since 1945, when it became the first state in the nation to outlaw wage discrimination. Federal law has required equal pay for equal work for more than 50 years.

Story, an Amherst Democrat who is retiring after more than 24 years in the House, said she first filed a gender pay equity bill in 1995.

“This is a good day,” she said. “Better late than never.”

Under the bill signed Monday, an employer charged with wage discrimination may defeat the charge in court if it can demonstrate that it has implemented a self-evaluation of pay practices and made “reasonable progress” toward eliminating statistical pay disparities across jobs. It is not a defense for an employer to argue that the jobs are not exactly the same. Moreover, the bill does not make clear what a valid self-evaluation system looks like.

The bill does permit some variation in wages between men and women, where employer can show such differences are based on education, training or experience (but only if those factors are consistent with “business necessity” and directly related to the job in question). It also permits variations based on travel, geographic location, and written merit or seniority systems. Significantly, however, the bill prohibits employers from considering time spent away from work for pregnancy or parental or family leave in calculating seniority.

In contrast to other employment discrimination laws, the billed signed Monday does not allow an employer to defend a wage discrepancy simply by proffering a “legitimate non-discriminatory reason” for the pay difference in question other than the ones outlined in the statute.

The bill cleared the legislature with unanimous support; the House enacted the bill 151-0 and the Senate did so 40-0.

— Colin A. Young and State House News Service contributed to this report