Jancey v. School Committee of Everett

• Decision Date: 12 December 1995
• Citation: 658 N.E.2d 162,421 Mass. 482
• Parties: , 69 Fair Empl.Prac.Cas. (BNA) 1112, 105 Ed. Law Rep. 265 Marilyn JANCEY & others 1 v. SCHOOL COMMITTEE OF EVERETT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 162

658 N.E.2d 162

421 Mass. 482, 69 Fair Empl.Prac.Cas. (BNA) 1112,

105 Ed. Law Rep. 265

Marilyn JANCEY & others ¹ v. SCHOOL COMMITTEE OF EVERETT.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Sept. 13, 1995.

Decided Dec. 12, 1995.

Juliane Balliro (Frank Mondano, with her) for defendant.

Ann M. Gilmore (Lee D. Goldstein, with her) for plaintiffs.

Harold L. Lichten & Robert S. Mantell, for National Employment Lawyers Association, Massachusetts Chapter, amicus curiae, submitted a brief.

Before LIACOS, C.J., and WILKINS, LYNCH and O'CONNOR, JJ.

LYNCH, Justice.

The plaintiffs, female cafeteria workers in the Everett public schools, filed a complaint against their employer, the school committee of Everett (school committee), alleging violations of the Massachusetts antidiscrimination law, G.L. c. 151B (1994 ed.), the Massachusetts equal pay act, G.L. c. 149, § 105A (1994 ed.) (MEPA), the Federal equal pay act, 29 U.S.C. § 206(d)(1) (1988) (FEPA), and State and Federal constitutional provisions. ² The plaintiffs amended their complaint in December, 1989, to add a claim under the Massachusetts equal rights act, G.L. c. 93, §§ 102-103 (1994 ed.).

The case proceeded to trial solely on the MEPA claim. ³ The trial was bifurcated and on the liability phase the judge ruled that the school committee had violated MEPA by paying the female cafeteria workers a lower wage than the male custodians. In reaching this conclusion he found that "the work of cafeteria workers and custodians required substantially comparable skills, efforts, responsibilities, and working conditions." It followed, then, the judge decided, that "[t]he work of the women employed ... as cafeteria workers is therefore of comparable character to the work of the men employed as Everett School custodians."

On the remedy phase of the case the judge awarded the plaintiffs a total of $1,041,062.11. ⁴ We granted the school committee's application for direct appellate review and now vacate and remand for additional proceedings. ⁵

We summarize the most pertinent findings as follows: ⁶

1. On average, Everett public school custodians were paid roughly twice what cafeteria workers were paid.

2. All the cafeteria workers have always been women and all the custodians have always been men.

3. No prior experience, training, or education was required for the positions of Everett school custodians or cafeteria workers.

4. Both cafeteria workers and custodians:

(a) are occasionally exposed to extremes of heat and cold;

(b) are occasionally exposed to various cleaning agents necessary to perform their cleaning and sanitizing functions;

(c) are exposed to and occasionally suffer from lifting injuries, cuts, slips, and falls.

5. The skill required to perform the duties of Everett school cafeteria workers is comparable to the skill required to perform the duties of Everett school custodians.

6. The over-all effort of the cafeteria workers, including physical and mental exertion, is comparable to the over-all effort of the custodians.

7. The responsibility or importance of the duties of the cafeteria workers is comparable to the responsibility or importance of the duties of the custodians.

8. The working conditions of the cafeteria workers are comparable to the working conditions of the custodians.

We begin our analysis with the language of G.L. c. 149, § 105A, which provides, in relevant part:

"No employer shall discriminate in any way in the payment of wages as between the sexes, or pay any person in his employ salary or wage rates less than the rates paid to employees of the opposite sex for work of like or comparable character or work on like or comparable operations provided, however, that variations in rates of pay shall not be prohibited when based upon a difference in seniority."

The judge found that the school committee paid the female cafeteria workers salary or wage rates less than the rates paid to the male custodians for work of like or comparable character.

The school committee raises a number of challenges to the judge's rulings on both liability and remedy. We address them below:

1. Comparable work standard. Because we conclude that the judge applied the wrong standard in deciding that the work of the two groups was of comparable character, we turn to that issue first. The word "comparable" is not defined in the statute; we look, therefore, at both its literal meaning and at the purpose and legislative history of the statute. See Massachusetts Hosp. Ass'n v. Department of Medical Sec., 412 Mass. 340, 346, 588 N.E.2d 679 (1992).

Massachusetts was the first State to adopt legislation requiring equal pay for comparable work. St.1945, c. 584, § 3, approved July 10, 1945. In its original form the statute required equal pay for "work of comparable character or work on comparable operations." No exceptions were enumerated. The statute was enacted against the backdrop of regulations of the National War Labor Board in force during World War II. See County of Washington v. Gunther, 452 U.S. 161, 185 n. 1, 101 S.Ct. 2242, 2256 n. 1, 68 L.Ed.2d 751 (1981) (Rehnquist, J., dissenting).

In 1947, the Legislature rewrote the statute and used the phrase "work of substantially the same character or work on substantially the same operations " (emphasis supplied). St.1947, c. 565. The revision also provided numerous exceptions permitting disparities in wages between the sexes based on "difference in seniority, experience, training, skill or ability, or difference in duties or services performed whether regularly or occasionally or difference in availability for other operations, or any other reasonable differentiation except difference in sex." Id.

In 1951, the Legislature again rewrote the statute by reinstating the term "comparable" and adding the term "like" to provide equal pay for "work of like or comparable character or work on like or comparable operations." St.1951, c. 180. In addition, the Legislature eliminated all but one of the exceptions, retaining only the exception for a wage differential based on seniority. Id.

The judge concluded that "work of like or comparable character" is a broader concept and a more inclusive term than "equal work." He based this conclusion on the legislative history of MEPA, the legislative history of FEPA ⁷ and on interpretations of the Oregon comparable work law, Or.Rev.Stat. § 652.220 (1987). ⁸

The judge ruled that the test for determining whether the work of the cafeteria workers and the custodians was "of like or comparable character" was whether the work required comparable skill, effort, responsibility, and working conditions. These are the factors used in FEPA and other similar statutes. See 29 U.S.C. § 206(d)(1) ("equal work on jobs, the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions"), and Me.Rev.Stat.Ann. tit. 26, § 628 (1988) ("comparable work on jobs which have comparable requirements relating to skill, effort and responsibility"). The judge then determined that, since the skill, effort, responsibility, and working conditions of the two positions were comparable, the over-all character of the work was comparable within the meaning of the statute.

We conclude that the judge's analysis was improper. While skill, effort, responsibility, and working conditions are relevant factors in determining whether two positions are comparable, the inquiry does not end there. The Federal law differs significantly from our statute by requiring that the rate of pay be for equal work. It is within the framework established by Federal law that FEPA requires that jobs be evaluated in terms of skill, effort, responsibility, and working conditions. In contrast MEPA does not specify a particular set of factors to be used in determining whether work is comparable rather than equal. Furthermore, the Federal statute contains several affirmative defenses or exceptions that take pay differentials outside of its ambit. In view of these differences, we do not follow slavishly the Federal approach, but rather we examine the meaning of the word "comparable" in light of our own history and experience.

The legislative history of MEPA indicates that, in 1951, the Legislature struck the 1947 version of the statute and substituted the language "like or comparable" for the words "substantially the same." In view of this legislative history and interpretations of the analogous Oregon statute we accept the judge's reasoning that "comparable" is a more inclusive term than "equal." As the Oregon Court of Appeals noted, "[w]ork of 'comparable character' is broader than 'equal work.' 'Comparable' does not require equality but that two items have important common characteristics." Bureau of Labor & Indus. v. Roseburg, 75 Or.App. 306, 309 n. 2, 706 P.2d 956 (1985).

The historical context into which MEPA was enacted is also relevant. The original statute, which contained the word "comparable," was added in 1945 at a time when the National War Labor Board required equal pay for comparable work. As two recent commentators noted:

"For the most part ... the sex-related wage claims considered by the War Labor Board involved an 'equal pay for equal work' doctrine, that is, equal payment for the same tasks on jobs presently or formerly performed by males. When comparisons of dissimilar jobs were requested, the Board generally presumed that the existing wage rates were correct and referred the cases to the disputing parties for negotiation, with the suggestion or order that a job evaluation system be instituted to consider the worth of the job on the basis of content, irrespective of the sex of any incumbent. Generally, however, the Board did not attempt to establish the relative worth of dissimilar jobs and, as the General Electric and Westinghouse decision [28 War Lab.Rep. 666 (1945) ] indicates, it found the comparison task beyond its...