Flutist Is First to Sue Under Massachusetts Equal Pay Law

The top flutist of the Boston Symphony Orchestra has filed a gender pay discrimination suit against the ensemble, claiming her compensation is only about 75 percent that of her closest comparable colleague, the orchestra’s principal oboist, who is a man.

The suit, which was filed Monday by Elizabeth Rowe, the orchestra’s principal flutist and one of its most prominent musicians, appears to be the first under a new law in Massachusetts that requires equal pay for “comparable work.” The law was passed in 2016, but it did not go into effect until Sunday, after employers had two years to rectify disparities.

Rowe’s complaint also appears to be the first pay equity lawsuit brought by a leading orchestral musician, suggesting that the debate over gender equality in the historically male-dominated classical music world may be moving into new territory.

Half a century after the introduction of blind auditions, in which candidates are heard from behind a screen, women make up just over 47 percent of players in American ensembles, according to a 2016 report by the League of American Orchestras.

But according to Rowe’s lawsuit, which seeks $200,000 in unpaid wages, pay disparities can be significant. Rowe, 44, is paid about $70,000 less each year than John Ferrillo, 62, the principal oboist, based on data in the lawsuit and tax records. That is despite the fact that they play next to each other and are both “leaders of the orchestra in similarly demanding artistic roles,” according to the lawsuit, which was first reported by The Boston Herald.

Rowe, who previously held positions in Baltimore, Washington and Indiana, joined the Boston Symphony in 2004. She has been a featured soloist with the orchestra 27 times, more than any other principal musician, according to the lawsuit. Critics for The New York Times have called her playing “ravishing” and “splendid.”

She has also been a “face of the orchestra,” the lawsuit says, frequently featured in marketing campaigns, donor-relations events and tours, like last year’s visit to Japan, when she and the principal harpist Jessica Zhou — the only other female principal player — were the only musicians from the orchestra featured as soloists.

Setting pay for orchestral musicians is complex. Collective bargaining agreements guarantee a minimum base salary, but principal players and others generally negotiate significant “overscales” based on solo fees, costs of instrument ownership, promotional duties and other variables.

Drew McManus, an arts consultant who has advised musicians on contract negotiations, said many orchestras fail to be rigorous in quantifying a musician’s value, allowing room for bias.

“It’s hard to make apples-to-apples comparisons between individual musicians,” he said, but “a mix of tradition and apathy conspires with a lack of formal compensation policies to produce a system that practically begs for problematic outcomes.”

Rowe’s suit claims that in addition to being paid less than Ferrillo (who made $286,621 in 2015, according to tax filings), she was also paid less than the orchestra’s principal trumpet, viola, timpani and French horn players, all of whom are men.

Even after adjusting for seniority within the orchestra, the lawsuit claims, Rowe was still paid only about three-quarters of Ferrillo’s compensation. The suit also claims Ferrillo and some other male players got automatic pay increases each time the base pay was increased, while Rowe did not.

A spokeswoman for the Boston Symphony, Bernadette Horgan, said the orchestra could not comment on pending litigation but said it “is committed to a strong policy of equal employment opportunity and to the practice of comparable pay for comparable work, as well as abiding by the Massachusetts Equal Pay Act.”

Ferrillo expressed support for Rowe’s claims about their comparable value to the orchestra. “I consider Elizabeth to be my peer and equal, at least as worthy of the compensation that I receive as I am,” he said in a statement to The Boston Globe.

According to the suit, Rowe made several previous attempts to have her pay adjusted, beginning in 2015. The orchestra not only declined to equalize her pay with Ferrillo’s, the suit claims, but also retaliated against her for trying to discuss the issue publicly.

Last December, according to the lawsuit, the orchestra’s management asked her to appear in a National Geographic documentary about gender equity hosted by Katie Couric. But when Rowe told the orchestra’s administration that she planned to talk about current gender issues, including “known salary discrimination,” the lawsuit says, the invitation was “immediately rescinded.”

Central to the suit is the issue of salary history, which it calls a “tainted variable.” Laws forbidding employers from asking job candidates about previous salary have been passed recently in Massachusetts, Delaware, California, New York City, Philadelphia and elsewhere.

“There’s a growing recognition that an obvious source of perpetuating the pay gap comes from relying on past salary,” said Gillian Thomas, a senior staff attorney at the American Civil Liberties Union’s Women’s Rights Project.

The new Massachusetts law, like others, also says that salary history cannot be used as a justification for gender disparities. According to the lawsuit, Ferrillo, who was hired in 2001, had his compensation set at 200 percent of the orchestra’s base rate, to match his previous pay at the Metropolitan Opera, where he was principal oboist from 1986-2001.

The suit says Rowe was hired in 2004 at 154 percent of the base rate. Her current salary, the suit argues, fails to take into account her “accumulated experience” since joining the orchestra, which it calls “substantially equal to what Mr. Ferrillo had when he was hired.”

Elizabeth Rodgers, Rowe’s lawyer, said in an email that her client hoped to reach “an amicable resolution” with the orchestra, which will hold its annual trustees and overseers week later this month at Tanglewood, its summer home in the Berkshires. She added that Rowe “sees this as a wonderful opportunity for the BSO to make a positive stand on the right side of one of the most critical social issues of the day.”