Articles Tagged with equal pay lawyers

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.

Defenders of labor rights face an uphill battle addressing the widespread abuses facing workers around the world.  Most industrialized nations have legal protections in place establishing standards for labor conditions, but in many parts of the world this is not the case. In our globalized economy, corporations in industrialized nations take advantage of this reality and set their manufacturing and production operations to those nations, to access relatively inexpensive labor.  In the worst of these cases, workers have no protections whatsoever, and live in slavery. Recently, a United States federal court took a step to hold some of these companies responsible, for being at least complicit in a system supported by slavery, as the court put it in “receiving cocoa at a price that would not be obtainable without employing child slave labor.”

Last month the Ninth Circuit Court of Appeals reversed the decision of a California District Court Judge’s in the case John Doe I, et. al. v. Nestle, S.A., et. al.  In this case, the unnamed plaintiffs allege that a group of corporate defendants in the business of processing cocoa beans were complicit in a system of widespread child slavery that occurred on cocoa plantations in the Republic of Côte d’Ivoire, a nation on the West African coast.   The plaintiffs in the case, identified only as John Doe’s I–VI, allege that they were victimized by these companies and the decisions those companies made in pursuing profits, up to and including condoning the use of child slave labor on the plantations of their cocoa suppliers.

The defendants in this case, Nestle, Cargill, and Archer Daniels Midland, are each large multinational corporations and are among the world’s largest manufacturers, purchasers, processors, and retail sellers of cocoa beans.  The plaintiffs are not U.S. citizens, but were able to file their suit in U.S. Federal Court on the basis of the Alien Tort Statute, or the “ATS.”  That statute, originally passed in the Judiciary Act of 1789, provides original jurisdiction to the federal courts for foreign citizens to seek redress for harms suffered as the result of a tort committed in violation of the law of nations. Among other torts, courts have found torture, genocide, war crimes, and slavery to be actionable under the ATS.