So, the question that’s burning everyone’s mind this week (or is it just that the heatwave has toasted everyone’s mind?) is whether the BSO’s first-chair flute player is worth as much (speaking strictly in dollars and cents) as its first-chair oboist. Or, put more correctly (as opposed to concisely), is the amended Massachusetts Equal Pay Act that took effect on July 1^st going to force the BSO to pay its first-chair flutist, Elizabeth Rowe, as much as its first-chair oboist, John Ferrillo?

If the first question in your mind is, who am I to be dilating on this on these pages, my answer is, that’s a pretty good question. Wearing one hat, I write music reviews here. Wearing the more expensive hat, I’m a lawyer. I am not, strictly speaking, a labor or employment lawyer, though as a business-transactional lawyer I’ve done a fair amount of work on (executive) employment agreements. So, consider me an informed quasi-layperson in this discussion. I’ve been around the block a few times. But as to specialist knowledge, don’t expect that from me; and for sure, don’t consider what I write here as legal advice (my lawyer makes me say that).

In aid of this discussion, we have reprinted the entirety of the old and new statutes HERE. The law is codified at chapter 149 of the Massachusetts General Laws, section 105A (don’t get me started on the ridiculous numbering system—it probably dates from John Adams’s day). You’ll probably notice, when you get past the definitions to the business end of the new statute, that it’s not substantially different from what it replaces. It adds what purports to be greater detail (but I have my doubts, as will become apparent), and provides more administrivia around who can sue, anti-retaliation provisions, the power of the state to sue, the damages to be collected, and so forth. It also provides some more precise exemptions, some of which may bear on Rowe’s first-out-of-the-gate lawsuit.

One of the things that is striking about the new law (and indeed its predecessor) is that it is not, strictly speaking, entirely an “antidiscrimination” law. Instead of merely banning sex discrimination in terms of employment (which Federal law has done for decades) it penalizes specific conduct that the legislature considered to be the same thing as sex discrimination. In other words, it doesn’t just say “you can’t discriminate based on sex by, say, paying someone less for equivalent work than someone of the other (or just, pretending to be more woke here, “another”) sex gets,” it says “you can’t discriminate or pay to one person less than someone of the-or-an-other sex gets for ‘comparable work.’” The difference is that if you prove the disparity in payment (for “comparable work”) you don’t have to show that this resulted from “discrimination,” which at the statutory level entails a certain frame of mind to disadvantage one person as against another for the prohibited reasons.

This matters greatly. It matters so much that books have been written on whether a single instance of pay discrepancies can amount to “discrimination” in the absence of any finding that someone was deliberately sandbagged on account of a protected category. It has also become something of a football in the intellectual war over whether the government even has the right to interfere in one-to-one negotiations between uncoerced parties over the terms of their contracts. Some people think the US Supreme Court is just about one vote shy of a majority in favor of holding that states can’t constitutionally thus interfere. Is a case between a high earner and a nonprofit arts organization the case (which would take several years to get up to the Supreme Court, assuming someone raised a constitutional objection) one would most want to present if you didn’t want such an outcome?

Putting that big question aside, at the more mundane level of what the existing law says and what Rowe would have to do to win her case, one should first look at the definition of “comparable work.” This is now defined, where it hadn’t been before, but the definition hinges on work that is “substantially similar” to the work performed by the higher-paid person. I don’t see how using the vague term “substantially similar” advances the analysis from the equally vague “comparable work.” Is an oboist substantially similar to a flutist? Are the instruments equivalent in, say, difficulty? One remembers the old musicians’ riff on an English proverb (the variant has been traced to the Danny Kaye film The Secret Life of Walter Mitty) that the oboe is “an ill wind that nobody blows good.” Well, it certainly entails a good deal more fussing with reeds than a flute does. But will that mean that bassoonists and clarinetists have to be paid the same as oboists (but only if they’re a different sex)? And if a principal flute is equivalent to a principal oboe, what about a principal violin, viola, trumpet or timpanist, each of whom, according to the BSO’s public Form 990 filing [see the top five player salaries HERE], makes more than Rowe? There’s no gainsaying that Rowe is a first-rate flutist, but where’s the equivalence? One thinks of Ravel’s rebuff to Gershwin’s attempt to study with him, “Why should you want to become a second-rate Ravel when you’re already a first-rate Gershwin?”

The old version of the law contained one exception, which was for seniority. The current law carries that forward, but actually adds a few more, including one for pay differentials associated with a “merit system” of determining pay, and another for pay distinctions reflecting differing levels of education, training and experience. It is undeniable that Ferrillo has been with the BSO three years longer than Rowe. Is that sufficient to justify the roughly $70,000 differential in their pay? Should a bunch of judges decide that? And what about “merit”? What constitutes a merit system? Does every private organization have to have pay scales like the government? “Sorry, you’re only a GS-13 flutist, but he’s a GS-16 oboist.” Or is there any room to consider what actually goes on in most organizations, such as “fair market value”? The facts, those stubborn little particles, will have to be developed, but will it matter that Ferrillo was poached at great expense from the Metropolitan Opera orchestra after the usual auditions didn’t yield an acceptable candidate, while Rowe won the prize on audition coming from a second seat in a second-tier orchestra? And that there are so many more flutists looking for work than oboists? What constitutes merit under all these circumstances?

And, indeed, if market conditions, “paying what it takes,” are inadmissible in thinking about pay for flutists and oboists, what about star coders and vice-presidents in all these tech and new-economy companies Massachusetts wants to attract and keep? If you hire a super-star VP of Marketing, does the different-sex VP of Investor Relations get an automatic bump up? And while I don’t know what anybody else in the BSO earns, it’s not beyond the range of possibility that some other section leader, let’s say a male, earns less than Rowe does now (to say nothing of what she might earn if she wins). Do they get a bump up as well? Trustees, pull out your checkbooks! And it’s worse than that: the law, which for all we know will be applied retroactively since the predecessor law has been on the books since 1945, now assesses damages at double the amount of the pay differential (so, just as between Rowe and Ferrillo, $70,000 times 2 times 14 years, nearly $2 million, plus costs and attorneys’ fees).

I should at least mention in passing the provisions of subsection (d) of the statute, which gives employers an out if they have undertaken a “good-faith” review of wage disparities by sex within the past three years and have moved to correct any noted disparities. It’s not clear whether this even applies when the statute is brand new, and what sorts of reviews companies now undertake that might qualify. Since Rowe alleges that she’s been raising the issue of her pay for some years, it doesn’t seem likely that the BSO has undertaken anything that would qualify under this subsection, but don’t rule out the sudden appearance of a rabbit from the proverbial hat.

My reaction in reading the revised statute was along the lines of “fools rush in where angels fear to tread.” You don’t want people to be the victims of actual discrimination (which state and federal law already provided for), but you don’t—or shouldn’t—want to muck about with competitive labor markets for high-priced talent. If Rowe and her lawyers—and she can certainly afford good ones—aren’t satisfied with what the BSO offers, what’s to stop her from decamping for greener pastures? A court evaluating her claim will have to wrestle with how what it does will affect not only the BSO, but also to the highly competitive industries who know how to vote with their feet. While I’m not willing to predict the outcome, assuming the case doesn’t quietly settle with gag clauses all around, it may require some ingenuity for the court to rescue a legislature seemingly out of its depth and thoughtlessly eager to interfere in economic relations between consenting adults. Massachusetts courts have from time to time shown that, when motivated, they’re capable of considerable ingenuity. Think about BSO vs. Redgrave HERE and HERE.

For John Ferrillo’s warm take on Rowe v. BSO, listen to Brian Bell’s 2011 Interview HERE.