Orchestra Pay Scales Out of Tune: Boston Symphony Orchestra Sued for Gender Based Wage Discrimination

In July 2018 Elizabeth Rowe, the principal flutist and Walter Piston chair in the Boston Symphony Orchestra (“BSO”), filed a gender discrimination lawsuit alleging that the BSO violated the newly enacted Massachusetts Equal Pay Act.  Rowe argues that the BSO was paying her less to perform substantially similar work – when viewed in terms of skill, effort, and responsibility – than it was paying her male counterparts, simply because she was a woman and they were men.  Gender is a protected class, under the Massachusetts Equal Pay Act and most other civil rights statutes, and discriminating on the basis of one’s membership in a protected class is against the law.

Rowe framed her argument by pointing to one of her BSO colleagues, the orchestra’s principal oboist John Ferrillo.  As another principal in the orchestra, Ferrillo holds a similar position to Rowe, and yet his salary is nearly $65,000 greater than hers. Comparing these two positions is naturally an imperfect exercise, as an oboe and a flute are obviously different instruments.  A rough approximation can be made by looking at one piece of objective data: since joining the BSO in 2004, Rowe has performed as a soloist 27 times, while Ferrillo has performed as a soloist just 14 times.  Notably, Ferrillo supports Rowe’s efforts to obtain equal pay.  At the request of Rowe’s employment attorney, Ferrillo provided a statement of his opinion that Rowe was “every bit [his] match in skill, if not more so.”

Rowe’s case provides a look at the problem of gender discrimination on the individual level, but it is a systemic issue in orchestras, and can be difficult to isolate due to the many factors that impact salary decisions.  The BSO has raised some of these factors in defending the discrepancy in Rowe’s pay: the talent pool for certain instruments is deeper and thus they are in lower demand; individual players can be uniquely talented leading to a bidding war over their services; random factors akin to ‘right time, right place’ can come into play.  When looking at some nation-wide statistics, however, these explanations become dubious.  As the Washington Post reported, an analysis of 78 top-earners from 21 orchestras in the United States shows that: (1) 82% of those top-earners are men; (2) the men in the pool make on average just over $52,000 more than the women; and (3) the top male earner makes $535,789 while the top female earner makes only $410,912.

This statistical analysis reveals yet another hurdle to achieving true pay equality in orchestras: salary data is only available for certain top-earners. Orchestra members are typically required to enter into strict confidentiality agreements with their employers, promising not to disclose or discuss their salaries with their colleagues.  The BSO is no exception.  The only reason that Rowe was able to access Ferrillo’s salary, and why the Washington Post was able to access the data used in its analysis, is an IRS reporting requirement: all non-profits must report information about their top-five compensated employees (in excess of $100,000).  This means that for rank and file orchestra members, launching a lawsuit as Rowe did is more difficult.  The orchestra can easily argue that their skill and performance is not comparable to that of the principals.

This underlines the enormity of the problem of gender discrimination in the workplace facing our society.  While there is hope that this lawsuit will resolve Rowe’s salary dispute, her case is currently in private mediation and her resolution may end up being of little help to other musicians facing similar discrimination.  Nevertheless, the attention her case has drawn can only help spread awareness of the problem and empower other women to come forward with their own experiences of discrimination.  In recent years there have been other high-profile cases of gender-based pay discrimination: the U.S. Women’s National Soccer Team filed a complaint with the EEOC alleging that they earned as little as 40% of what their male counterparts made; Jennifer Lawrence and Amy Adams each received 7% of the profits from the film “American Hustle” while their male counterparts Christian Bale, Bradley Cooper, and Jeremy Renner received 9%; and Grammy-nominated all-female pop band Haim reportedly fired their agent this past summer after learning that they were paid just 10% what a male counterpart was paid to perform at the same music festival.

Our society as a whole is beginning to reckon with the widespread discrimination women face in the workplace.  Not every woman’s story of discrimination can make headlines and put public pressure on employers to change their discriminatory practices.  Thankfully, effective pressure can be exerted in another way: through the application of laws like the Massachusetts Equal Pay Act, and New Jersey’s counterpart, the Diane B. Allen Equal Pay Act.

If you are facing wage discrimination on the basis of your gender, or on your membership in any other protected class, feel free to call one of our New Jersey employment lawyers to discuss the specific facts and circumstances concerning your unequal claim.