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How Massachusetts Law Views Gender Based Discrimination

The Law Offices of Richard Alan Gaudet, LLC | Employment Law | Massachusetts

Introduction: A Changing Landscape for Massachusetts Employers and Employees

Few topics in Massachusetts employment law have received as much attention in recent years as the issue of equal pay and gender-based wage discrimination. New laws passed by the Massachusetts legislature have significantly strengthened the rights of employees and expanded the obligations of employers when it comes to the payment of wages. Whether you are an employee who suspects you are being paid less because of your gender, race, disability, or other protected characteristic, or an employer trying to understand your new legal obligations, this article provides a practical overview of what the law now requires and what happens when those requirements are not followed.

Massachusetts has long been considered a leader in employee protections, and its approach to wage discrimination is no exception. In fact, Massachusetts was the first state in the nation to adopt an equal pay law — doing so in 1945 — specifically to address a longstanding pattern of unfair pay for women in the workplace. The state’s equal pay law is one of the strongest in the nation and goes beyond what federal law requires in several important ways. Understanding those differences is essential for both employees and employers operating in this state.

The History of Equal Pay in Massachusetts

Massachusetts’s commitment to pay equity has deep roots. The original state equal pay law — enacted decades before the federal government acted — reflected an early recognition that women were being systematically underpaid relative to their male counterparts for the same work. Despite that early leadership, significant disparities remain. According to data from the Attorney General’s Office, women in Massachusetts earn, on average, only 84.3 percent of what men earn based on the same hours and comparable occupations. The pay gap is even wider for women of color.

In recognition of these persistent disparities, Massachusetts recently updated its equal pay law to establish stronger measures against unlawful wage discrimination. The updated law, which took effect in 2018, was designed to accomplish several key objectives: providing greater clarity about what constitutes wage discrimination on account of gender; adding new protections for workers who experience inequitable treatment in wage payment; ensuring pay transparency; restricting the use of salary history as a basis for hiring decisions; and describing the limited circumstances under which employers are permitted to pay employees differently for comparable work.

Both state and federal law now work in tandem to protect Massachusetts employees from pay discrimination. Federal law, which has been in place for decades, was among the first national efforts to eliminate wage disparity based on sex, establishing that employers cannot pay a lower wage to employees of one gender compared to workers of another gender when those individuals are performing equal work. Massachusetts law builds upon that federal framework and, in many respects, provides broader and more robust protections.

What Does Massachusetts Law Prohibit?

Under Massachusetts law, no employer may discriminate in any way on the basis of gender in the payment of wages. Specifically, the law prohibits paying any employee a salary or wage rate less than what is paid to employees of a different gender who are performing comparable work. Importantly, this protection is not limited to gender. Employers are prohibited at both the state and federal level from using any protected class — including race, sex, disability, age, or national origin — to discriminate against employees in what they are paid. All employees performing the same job should be paid the same regardless of these protected characteristics.

The law applies to all forms of remuneration for employment — not just base salary, but bonuses, benefits, overtime pay, and other forms of compensation.

“Comparable work” under the law means work that is substantially similar in that it requires substantially similar skill, effort, and responsibility, and is performed under similar working conditions. Importantly, the law makes clear that a job title or job description alone does not determine whether two positions are comparable. An employer cannot simply give two employees different titles to justify paying them differently if the actual duties they perform day-to-day are substantially the same.

“Working conditions” under the law includes the environmental and other similar circumstances that are customarily taken into account when setting wages — such as reasonable shift differentials, physical surroundings, and hazards encountered by employees in a particular job.

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Common Signs That an Employer May Be Violating the Law

Many employees who are experiencing pay discrimination do not immediately recognize it as such. The following are common indicators that an employer may be violating Massachusetts or federal equal pay laws:

Your employer pays you less than similarly situated employees of the opposite gender, offering explanations that do not constitute a valid or legally recognized reason for the difference in pay. Your employer has established a salary policy that applies universally to positions predominantly held by workers of a certain gender, and the wages paid for those positions are considerably lower than what is paid for positions predominantly held by employees of another gender. Your employer implements a gender-neutral compensation policy or practice that has a disproportionate effect on employees of one gender and which cannot be justified by business necessity.

If any of these situations sound familiar, or if you believe you are experiencing other forms of gender-based or race-based wage discrimination, you should consult with an employment attorney. Strict deadlines apply to wage discrimination claims in Massachusetts, and waiting too long to act can result in losing the right to pursue compensation entirely.

When Are Wage Differences Permitted?

Massachusetts law recognizes that not all wage differences between employees are unlawful. A variation in wages between employees doing comparable work is permitted if it is based on one of the following legitimate, non-discriminatory factors:

A seniority system that rewards time with the employer — provided that time spent on leave due to a pregnancy-related condition, or on protected parental, family, or medical leave, does not reduce seniority. A merit system. A system that measures earnings by quantity or quality of production, sales, or revenue. The geographic location in which a job is performed. Education, training, or experience — but only to the extent such factors are reasonably related to the particular job in question. Travel, if the travel is a regular and necessary condition of the particular job.

It is important to note that an employer who discovers it has been paying wages in violation of the law may not simply reduce the wages of any employee to bring itself into compliance. The law expressly prohibits wage reduction as a method of compliance.

What Can Employees Recover?

If you are receiving unequal pay in violation of Massachusetts or federal law, you may be able to recover significant compensation. An employee who has been paid less than a similarly situated employee of a different gender — or on the basis of any other protected characteristic — for comparable work may bring a legal action to recover unpaid wages. In addition to the unpaid wages themselves, the employee may also be entitled to an equal amount in liquidated damages, meaning the employer could be required to pay double what was owed. The court is also required to award reasonable attorneys’ fees and costs to a successful employee, which means a person with a valid claim should generally be able to find experienced representation without a prohibitive upfront cost.

Other available remedies may include back pay for the period during which discrimination occurred, future pay or front pay in cases involving ongoing harm, and additional damages tied to the specific circumstances of the case.

An employee has three years from the date of the alleged violation to bring an action under Massachusetts law. The law provides that a violation occurs not only when a discriminatory compensation decision is first made, but also each time wages are paid that reflect that decision. This means that each paycheck reflecting unequal wages may renew the applicable timeframe — but because the rules governing deadlines in discrimination cases can be complex, it is essential to consult with an attorney as early as possible.

The Massachusetts Attorney General may also bring an action on behalf of one or more employees to recover unpaid wages and liquidated damages, providing an additional avenue for relief beyond private litigation.

No Salary History Allowed — A Major New Law for Massachusetts Employers

One of the most significant aspects of Massachusetts’s new equal pay laws is the prohibition on seeking salary history from prospective employees. Under the law, an employer may not ask a job applicant about their prior wages or salary — either directly from the applicant or from a current or former employer. Nor may an employer require that a prospective employee’s prior wage or salary history meet certain criteria before they are considered for a position.

This provision reflects the recognition that historical wage gaps tend to follow employees from job to job when employers use prior salary to set new compensation. By breaking that cycle, the law aims to prevent the perpetuation of existing wage inequalities across generations of workers.

There are limited exceptions. If a prospective employee voluntarily discloses their salary history, the employer may confirm it. Additionally, an employer may seek or confirm a prospective employee’s wage or salary history after a formal offer of employment — with compensation already negotiated and included — has been made to the applicant. Violations of this provision can support a legal action by or on behalf of applicants for employment, and any damages incurred may be recovered.

Employees May Discuss Wages Freely

Another critical protection under Massachusetts law is the right of employees to discuss their wages openly. An employer may not, as a condition of employment, require any employee to refrain from inquiring about, discussing, or disclosing information about their own wages or the wages of other employees. A policy — whether written or unwritten — that prohibits employees from discussing pay is unlawful under Massachusetts’s new laws.

There is a narrow exception for employees in human resources, supervisory, or other roles whose job responsibilities require or allow access to other employees’ compensation information. Those employees may be prohibited from disclosing compensation information without prior written consent from the affected employee, unless the information is a public record.

Retaliation Is Prohibited

Massachusetts law expressly prohibits an employer from retaliating against any employee because that employee exercised rights under the equal pay law. This includes opposing a practice the employee believes to be unlawful, filing a complaint or indicating an intent to do so, participating in an investigation or proceeding, or simply discussing wages with coworkers. An employer that fires, demotes, reduces pay, or otherwise disadvantages an employee for engaging in any of these protected activities faces additional legal exposure beyond the underlying wage claim.

How Discrimination Cases Are Proved: Direct and Circumstantial Evidence

A Massachusetts employee who has been discriminated against in the payment of wages rarely has direct evidence of that discrimination — because an employer is unlikely to admit that it is paying an employee less because of their gender, race, or other protected characteristic. Instead, the vast majority of wage discrimination cases involve indirect or circumstantial evidence of disparate treatment.

Circumstantial evidence is not less powerful than direct evidence. Courts have long recognized that circumstantial evidence may actually be more persuasive and compelling than direct evidence in establishing that discrimination occurred. For example, a highly qualified employee may claim she was passed over for a raise because of her gender when a less qualified male colleague received one instead. The employee would present circumstantial evidence, and a judge or jury may draw reasonable inferences from that evidence to conclude that the employer’s decision violated the law.

Under Massachusetts law, when an employee relies on circumstantial evidence of discrimination, a structured framework applies. The employee first presents a prima facie case of discrimination — showing that they belong to a protected class, that they performed their job acceptably, that they were treated differently from a similarly situated person not in their protected class, and that they suffered an adverse action such as lower pay. The burden of establishing a prima facie case is intentionally modest and is not meant to be a difficult hurdle to clear.

Once the employee establishes that initial showing, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the wage disparity or other adverse action. The employer must provide a reason backed by some credible evidence, and that reason must not be wholly unbelievable. Importantly, the employer’s explanation must reflect a factor that was actually known and in play at the time the compensation decision was made.

If the employer provides such a reason, the burden shifts back to the employee to show that the employer’s stated justification is a pretext — that is, that the real reason for the disparate treatment was discriminatory. Massachusetts is what courts refer to as a “pretext only” jurisdiction, which means that an employee can succeed by demonstrating that the employer’s stated reasons were not the true reasons for the wage difference, even without direct proof of discriminatory intent. If even one of the reasons given by the employer is shown to be false, a fact-finder may infer that the true reason was unlawful discrimination.

This framework applies equally whether the discrimination claim arises under state or federal law, and experienced employment attorneys understand how to present both state and federal claims together to maximize the protection available to employees.

What Can Massachusetts Employers Do to Protect Themselves?

Massachusetts law provides an important incentive for employers to proactively evaluate their own pay practices. An employer that, within the three years prior to a lawsuit being filed, has completed a good-faith self-evaluation of its pay practices and can demonstrate reasonable progress toward eliminating any gender-based wage differentials may be entitled to an affirmative defense against liability. An employer that takes proactive steps to identify and correct pay disparities may be shielded from having to pay damages even if a violation is later found.

If the employer’s self-evaluation was conducted in good faith but was not sufficiently detailed or comprehensive, the employer does not receive the full affirmative defense — but may still avoid liability for liquidated damages. This graduated protection gives employers a strong incentive to conduct thorough, documented evaluations of their compensation practices on a regular basis. An employer who has not conducted a self-evaluation is not penalized simply for that omission, but the protection available to those who do is a compelling reason to act.

Conclusion: Protecting Your Rights Under Massachusetts and Federal Law

Massachusetts’s equal pay laws represent one of the most employee-protective wage frameworks in the country — and the protections extend well beyond gender alone. For employees, these laws provide meaningful rights, real remedies, and an accessible path to justice, including the right to discuss wages, the right to be free from salary history inquiries, and the right to be free from retaliation. For employers, they create important new obligations and significant legal exposure if those obligations are not met.

If you believe your wages have been affected by discrimination based on your gender, race, disability, or any other protected characteristic, it is important to act promptly and retain solid representation to enforce your rights. Deadlines apply, and the sooner you speak with an experienced employment attorney, the better positioned you will be to protect your claim. The Law Offices of Richard Alan Gaudet, LLC is available to assist employees and employers across Massachusetts in navigating these complex and evolving areas of law.

DISCLAIMER: The information provided in the pages and posts of this website are for general informational purposes only. The information presented on this site is not legal advice, and no attorney-client relationship is formed by the use of this site. Do not rely on this article when making legal decisions. Contact a qualified Massachusetts employment attorney for advice specific to your situation.