Marilyn Jancey & others vs. School Committee of Everett
Case Details
- Citation
- 421 Mass. 482
- Procedural Posture — the stage the case had reached
- appeal
- State
- Massachusetts
- Circuit
- 1st Circuit
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
The Massachusetts Supreme Judicial Court vacated the trial court's judgment awarding $1,041,062.11 to female cafeteria workers for equal pay violations and remanded for new proceedings, holding that the trial judge applied an incorrect legal standard for determining whether jobs are 'comparable' under the Massachusetts Equal Pay Act and failed to consider fringe benefits in calculating wages.
Excerpt
Marilyn Jancey & others vs. School Committee of Everett. Middlesex. September 13, 1995. December 12, 1995. Present: Liacos, C.J., Wilkins, Lynch, & O’Connor, JJ. Massachusetts Equal Pay Act. Federal Equal Pay Act. Statute, Construction. School and School Committee, Compensation of personnel, Cafeteria worker, Custodian. Anti-Discrimination Law, Sex. Massachusetts Tort Claims Act. Words, “Comparable,” “Like,” “Equal work,” “Wages." Discussion of the purpose and legislative history of the Massachusetts equal pay act, G. L. c. 149, § 105A, and the meaning of the term “comparable” found therein. [486-487, 488-489] Discussion of the differences in analysis of the term “comparable” under the Massachusetts equal pay act, G. L. c. 149, § 105A, and the Federal equal pay act, 29 U.S.C. § 206 (d) (1). [487-488, 489] This court concluded that a two-part analysis is required under the Massachusetts equal pay act, G. L. c. 149, § 105A, for purposes of making a determination whether the work of two jobs is “comparable” such that equal pay is required: first, whether the substantive content, that is, the duties of the jobs have “important common characteristics” and, then, whether the two positions entail comparable skill, effort, responsibility and working conditions; an action asserting claims under the act was remanded for the application of this analysis to the facts of the case. [489-490] Discussion of cases and statutes construing the term “wages.” [490-492] This court concluded that the terms “wages” and “wage rates” used in the Massachusetts equal pay act, G. L. c. 149, § 105A, should be construed broadly to include fringe benefits or other remunerations paid to the workers in question, and on remand of an action asserting claims under that statute, the judge was to consider evidence of such benefits and remunerations. [493] This court concluded that, to establish a violation of the Massachusetts equal pay act, G. L. c. 149, § 105A, a plaintiff need not prove that the employer in question intended to discriminate against the plaintiff on the basis of sex. [493-495] General Laws c. 15IB was not the exclusive remedy for plaintiffs’ claims based on unequal pay where the antirepeal language of § 9 of that statute was applicable to allow claims under G. L. c. 149, § 105A, the Massachusetts equal pay act, in a case where no procedure under G. L. c. 15IB, § 5, was “pending” as to any acts declared unlawful under G. L. c. 151B, § 4. [495-499] The definitions of employer and employee appearing in G. L. c. 149, § 1, encompass employers and employees in the public sector as well as the private sector. [499-500] The Massachusetts tort claims act, G. L. c. 258, was not applicable to nontort claims of wage discrimination in violation of G. L. c. 149, § 150A, brought against a public employer. [500-501] Civil action commenced in the Superior Court Department on June 9, 1989. The case was heard by Gordon L. Doerfer, J. The Supreme Judicial Court granted an application for direct appellate review. Juliane Balliro {Frank Mondano with her) for the defendant. Ann M. Gilmore {Lee D. Goldstein with her) for the plaintiffs. Harold L. Lichten & Robert S. Mantell, for National Employment Lawyers Association, Massachusetts Chapter, amicus curiae, submitted a brief. Ida Corriere and others similarly situated. A motion for class certification was allowed in the Superior Court. Lynch, J. The plaintiffs, female cafeteria workers in the Everett public schools, filed a complaint against their employer, the school committee of Everett (school committee), alleging violations of the Massachusetts antidiscrimination law, G. L. c. 15IB (1994 ed.), the Massachusetts equal pay act, G. L. c. 149, § 105A (1994 ed.) (MEPA), the Federal equal pay act, 29 U.S.C. § 206 (d) (1) (1988) (FEPA), and State and Federal constitutional provisions. The plaintiffs amended their complaint in December, 1989, to add a claim under the Massachusetts equal rights act, G. L. c. 93, §§ 102-103 (1994 ed.). The case proceeded to trial solely on the MEPA claim. The trial was bifurcated and on the liability phase the judge ruled that the school committee had violated MEPA by paying the female cafeteria workers a lower wage than the male custodians. In reaching this conclusion he found that “the work of cafeteria workers and custodians required substantially comparable skills, efforts, responsibilities, and working conditions.” It followed, then, the judge decided, that “[t]he work of the women employed ... as cafeteria workers is therefore of comparable character to the work of the men employed as Everett School custodians.” On the remedy phase of the case the judge awarded the plaintiffs a total of $1,041,062.11. We granted the school committee’s application for direct appellate review and now vacate and remand for additional proceedings. We summarize the most pertinent findings as follows: 1. On average, Everett public school custodians were paid roughly twice what cafeteria workers were paid. 2. All the cafeteria workers have always been women and all the custodians have always been men. 3. No prior experience, training, or education was required for the positions of Everett school custodians or cafeteria workers. 4. Both cafeteria workers and custodians: (a) are occasionally exposed to extremes of heat and cold; (b) are occasionally exposed to various cleaning agents necessary to perform their cleaning and sanitizing functions; (c) are exposed to and occasionally suffer from lifting injuries, cuts, slips, and falls. 5. The skill required to perform the duties of Everett school cafeteria workers is comparable to the skill required to perform the duties of Everett school custodians. 6. The over-all effort of the cafeteria workers, including physical and mental exertion, is comparable to the over-all effort of the custodians. 7. The responsibility or importance of the duties of the cafeteria workers is comparable to the responsibility or importance of the duties of the custodians. 8. The working conditions of the cafeteria workers are comparable to the working conditions of the custodians. We begin our analysis with the language of G. L. c. 149, § 105A, which provides, in relevant part: “No employer shall discriminate in any way in the payment of wages as between the sexes, or pay any person in his employ salary or wage rates less than the rates paid to employees of the opposite sex for work of like or comparable character or work on like or comparable operations; provided, however, that variations in rates of pay shall not be prohibited when based upon a difference in seniority.” The judge found that the school committee paid the female cafeteria workers salary or wage rates less than the rates paid to the male custodians for work of like or comparable character. The school committee raises a number of challenges to the judge’s rulings on both liability and remedy. We address them below: 1. Comparable work standard. Because we conclude that the judge applied the wrong standard in deciding that the work of the two groups was of comparable character, we turn to that issue first. The word “comparable” is not defined in the statute; we look, therefore, at both its literal meaning and at the purpose and legislative history of the statute. See Massachusetts Hosp. Ass’n v. Department of Medical Sec., 412 Mass. 340, 346 (1992). Massachusetts was the first State to adopt legislation requiring equal pay for comparable work. St. 1945, c. 584, § 3, approved July 10, 1945. In its original form the statute required equal pay for “work of comparable character or work on comparable operations.” No exceptions were enumerated. The statute was enacted against the backdrop of regulations of the National War Labor Board in force during World War II. See County of Washington v. Gunther, 452 U.S. 161, 185 n.l (1981) (Rehnquist, J., dissenting). In 1947, the Legislature rewrote the statute and used the phrase “work of substantially the same character or work on substantially the same operations” (emphasis supplied). St. 1947, c. 565. The revision also provided numerous exceptions permitting disparities in wages between the sexes based on “difference in seniority, experience, training, skill or ability, or difference in duties or services performed whether regularly or occasionally or difference in availability for other operations, or any other reasonable differentiation except difference in sex.” Id. In 1951, the Legislature again rewrote the statute by reinstating the term “comparable” and adding the term “like” to provide equal pay for “work of like or comparable character or work on like or comparable operations.” St. 1951, c. 180. In addition, the Legislature eliminated all but one of the exceptions, retaining only the exception for a wage differential based on seniority. Id. The judge concluded that “work of like or comparable character” is a broader concept and a more inclusive term than “equal work.” He based this conclusion on the legislative history of MEPA, the legislative history of FEPA and on interpretations of the Oregon comparable work law, Or. Rev. Stat. § 652.220 (1987). The judge ruled that the test for determining whether the work of the cafeteria workers and the custodians was “of like or comparable character” was whether the work required comparable skill, effort, responsibility, and working conditions. These are the factors used in FEPA and other similar statutes. See 29 U.S.C. § 206 (d) (1) (“equal work on jobs, the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions”), and Me. Rev. Stat. Ann. tit. 26, § 628 (1988) (“comparable work on jobs which have comparable requirements relating to skill, effort and responsibility”). The judge then determined that, since the skill, effort, responsibility, and working conditions of the two positions were comparable, the over-all character of the work was comparable within the meaning of the statute. We conclude that the judge’s analysis was improper. While skill, effort, responsibility, and working conditions are relevant factors in determining whether two positions are comparable, the inquiry does not end there. The Federal law differs significantly from our statute by requiring that the rate of pay be for equal work. It is within the framework established by Federal law that FEPA requires that jobs be evaluated in terms of skill, effort, responsibility, and working conditions. In contrast MEPA does not specify a particular set of factors to be used in determining whether work is comparable rather than equal. Furthermore, the Federal statute contains several affirmative defenses or exceptions that take pay differentials outside of its ambit. In view of these differences, we do not follow slavishly the Federal approach, but rather we examine the meaning of the word “comparable” in light of our own history and experience. The legislative history of MEPA indicates that, in 1951, the Legislature struck the 1947 version of the statute and substituted the language “like or comparable” for the words “substantially the same.” In view of this legislative history and interpretations of the analogous Oregon statute we accept the judge’s reasoning that “comparable” is a more inclusive term than “equal.” As the Oregon Court of Appeals noted, “[wjork of ‘comparable character’ is broader than ‘equal work.’ ‘Comparable’ does not require equality but that two items have important common characteristics.” Bureau of Labor & Indus. v. Roseburg, 75 Or. App. 306, 309 n.2 (1985). The historical context into which MEPA was enacted is also relevant. The original statute, which contained the word “comparable,” was added in 1945 at a time when the National War Labor Board required equal pay for comparable work. As two recent commentators noted: “For the most part ... the sex-related wage claims considered by the War Labor Board involved an ‘equal pay for equal work’ doctrine, that is, equal payment for the same tasks on jobs presently or formerly performed by males. When comparisons of dissimilar jobs were requested, the Board generally presumed that the existing wage rates were correct and referred the cases to the disputing parties for negotiation, with the suggestion or order that a job evaluation system be instituted to consider the worth of the job on the basis of content, irrespective of the sex of any incumbent. Generally, however, the Board did not attempt to establish the relative worth of dissimilar jobs and, as the General Electric and Westinghouse decision [28 War Lab. Rep. 666 (1945)] indicates, it found the comparison task beyond its capabilities.” R.E. Williams & D.S. McDowell, The Legal Framework, Comparable Worth: Issues and Alternatives 197, 211 (E.R. Livernash, ed. 1980). Thus, the historical context provides little support for applying the term “comparable” to positions with dissimilar substantive content. See generally General Elec. Co. & Westinghouse Elec. Co., supra. Ignoring the content of the specific jobs and focusing only on skill, effort, responsibility, and working conditions of the positions only makes sense where the standard is “equal pay for equal work” as in FEPA. Under that standard, the term “equal work” supplies the requirement of similar job content. Under the more inclusive “comparable work” standard, on the other hand, jobs meeting the factors of the Federal statute could still differ significantly in job content. It is difficult to see how jobs could have “comparable character” within the meaning of the statute, if their substantive job content was not also comparable. Furthermore a standard which required equal pay for jobs which differ significantly in their substantive content would likely impose on employers an unfair burden and produce inconsistent and confusing results. We conclude, therefore, that in applying the broader “comparable” standard, the statute requires a two-part analysis. First, the judge must determine whether the substantive content of the jobs is comparable, that is, whether the duties of the jobs have “important common characteristics.” Bureau of Labor & Indus. v. Roseburg, supra. To ignore job content when applying the “comparable” standard is to attempt the impossible task of comparing disparate concepts. In other words two positions that are so dissimilar in their substantive content that a reasonable person would regard them as categorically separate are not “comparable.” It is only when a determination is made that the jobs are comparable in substantive content, that the second inquiry is appropriate — whether the two positions entail comparable skill, effort, responsibility, and working conditions. If the answer to both inquiries is “Yes,” then employees in the two positions must receive equal pay. 2. Wages. In determining that the cafeteria workers were paid a lower wage, the judge did not consider evidence regarding fringe benefits, including health insurance and other types of remuneration. Instead, his findings regarding the wage issue focus exclusively on the base hourly pay received by the employees. The school committee argues that the judge’s failure to consider other forms of remuneration, including insurance and other benefits and not just the base hourly pay, was error. We agree. The terms “wages” and “wage rate” are not defined in the statute. Neither are they defined in any interpretive regulation or other administrative materials. Therefore we look to other sources for determining how to construe the term in the context of a remedial statute such as MEPA. See Commissioner of Revenue v. AMIWoodbroke, Inc., 418 Mass. 92, 96-97 (1994); Concord Rod & Gun Club, Inc. v. Massachusetts Comm’n Against Discrimination, 402 Mass. 716, 721 (1988). “As the statute does not effectively define [the terms ‘wages’ and ‘wage rate’], we have said that the Legislature should be supposed to have adopted the common meaning of the word, as assisted by a consideration of the historical origins of the enactment.” Westinghouse Broadcasting Co. v. Commissioner of Revenue, 382 Mass. 354, 357 (1981), quoting First Data Corp. v. State Tax Comm’n, 371 Mass. 444, 447 (1976). Black’s Law Dictionary 1579 (6th ed. 1990) defines “wages:” “Every form of remuneration payable for a given period to an individual for personal services, including salaries, commissions, vacation pay, dismissal wages, bonuses and reasonable value of board, rent, housing, lodging, payments in kind, tips, and any other similar advantage received from the individual’s employer or directly with respect to work for him. . . . Term should be broadly defined and includes not only periodic monetary earnings but all compensation for services rendered without regard to manner in which such compensation is computed. . . .” (Citations omitted.) General Laws c. 151 A, § 1 (s) (A) (1994 ed.), adopts similar language for its definition of wages in the employment security context: “[E]very form of remuneration of an employee subject to this chapter for employment by an employer, whether paid directly or indirectly, including salaries, commissions and bonuses, and reasonable cash value of board, rent, housing, lodging, payment in kind and all remuneration paid in any medium other than cash [with exceptions].” We also look to the analogous Federal statute for guidance. See Tate v. Department of Mental Health, 419 Mass. 356, 361 (1995). FEPA states in relevant part: “No employer . . . shall discriminate . . . between employees on the basis of sex by paying wages to employees ... at a rate less than the rate at which he pays wages to employees of the opposite sex ... for equal work . . . .” Compare MEPA (“[n]o employer shall . . . pay any person . . . salary or wage rates less than the rates paid to employees of the opposite sex . . .”). Regulations promulgated pursuant to FEPA also reflect the Black’s Law Dictionary definition of “wages:” “Under [FEPA], the term ‘wages’ generally includes all payments made to [or on behalf of] an employee as remuneration for employment. The term includes all forms of compensation irrespective of the time of payment, whether paid periodically or deferred until a later date, and whether called wages, salary, profit sharing, expense account, monthly minimum, bonus, uniform cleaning allowance, hotel accommodations, use of company car, gasoline allowance, or some other name. Fringe benefits are deemed to be remuneration for employment” (emphasis added). 29 C.F.R § 1620.10 (1995). The United States District Court for the Southern District of Georgia recently construed these definitions in Bertotti v. Philbeck, Inc., 827 F. Supp. 1005 (S.D. Ga. 1993). The plaintiff in Bertotti was a female hotel restaurant worker whose monthly salary was less than those of two male coworkers. The defendant employer argued that the plaintiff did not receive a lower wage than the male workers because she received health insurance benefits and they did not. When added together, the value of her salary and health insurance benefits exceeded the total remuneration her uninsured male coworkers received. The court, looking at the definition of “wages” contained in 29 C.F.R. § 1620.10, determined that the plaintiff was paid a higher wage than her male coworkers. Id. at 1010. The court held that the plaintiff did not have a valid claim under FEPA and granted summary judgment for the employer. Id. Bertotti highlights one of the sound policy reasons for construing the terms “wages” and “wage rate” broadly. Such a construction protects both employers and employees. If we construe the term narrowly to exclude insurance and other benefits, some employees, such as the plaintiff in Bertotti, would have valid claims even though they were receiving total compensation equal to or greater than that of their coworkers of the opposite sex. Such a result would punish employers for deciding to allocate reso
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Other orders and opinions in Jancey v. School Committee from the same court.
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Marilyn Jancey & others vs. School Committee of Everett. Middlesex. April 6, 1998. - June 5, 1998. Present: Wilkins, C.J., Abrams, Lynch, Greaney, Fried, Marshall, & Ireland, JJ. Massachusetts Equal Pay Act. Statute, Construction. School and School Committee, Compensation of personnel, Cafeteria worker, Custodian. Words, “Comparable,” “Like.” In an action brought under the Massachusetts equal pay act, G. L. c. 149, § 105A, by (female) school cafeteria workers seeking the same wage as (male) school custodians, the judge’s findings of fact regarding the actual duties of each position supported the conclusion, from the viewpoint of an objectively reasonable person, that the positions did not share “important common characteristics,” that is, they were so dissimilar that they were not comparable for purposes of equal remuneration. [605-608] Marshall, J., dissenting, with whom Abrams & Ireland, JJ., joined. Civil action commenced in the Superior Court Department on June 9, 1989. Following review by this court, 421 Mass. 482 (1995), the case was heard by Gordon L. Doerfer, J. The Supreme Judicial Court granted an application for direct appellate review. Ann M. Gilmore (Lee D. Goldstein with her) for the plaintiffs. Juliane Balliro (Frank Mondano with her) for the defendant. Ida Corriere and others similarly situated. Greaney, J. In Jancey v. School Comm. of Everett, 421 Mass. 482 (1995) (Jancey I), we considered an appeal by the defendant from a judgment entered in the Superior Court in favor of the plaintiffs, cafeteria workers in the Everett public schools. The judgment was based on a decision by the judge that the school committee had violated the Massachusetts equal pay act, G. L. c. 149, § 105A (MEPA), by paying the female cafeteria workers a lower wage than the male custodians who worked in the Everett public schools. In reaching this determination, the judge ruled that the test for determining whether the work of the cafeteria workers and the custodians was “of like or comparable character,” the legal standard set forth in MEPA, was whether the work required comparable skill, effort, responsibility, and working conditions. Id. at 487. Because he determined that these aspects of the two positions were comparable, the judge concluded that the over-all character of the work was comparable within the meaning of the statute. Id. We vacated the judgment and remanded the case to the Superior Court for additional proceedings. Id. at 501. We did so after we concluded that the judge’s analysis was improper. Id. at 487. In so doing, we explained that the historical context in which MEPA was enacted provided “little support for applying the term ‘comparable’ to positions with dissimilar substantive content.” Id. at 489. We concluded that the statute requires a two-part analysis, the first requiring the judge to “determine whether the substantive content of the jobs is comparable, that is, whether the duties of the jobs have ‘important common characteristics.’ ” Id. “[T]wo positions that are so dissimilar in their substantive content that a reasonable person would regard them as categorically separate are not ‘comparable.’ ” Id. at 489-490. It is only after “a determination is made that the jobs are comparable in substantive content, that the second inquiry is appropriate — whether the two positions entail comparable skill, effort, responsibility, and working conditions. If the answer to both inquiries is ‘Yes,’ then employees in the two positions must receive equal pay.” Id. at 490. On remand, the judge relied on the findings he made in his earlier decision to conclude that, under the first part of the two-part MEPA analysis, “[t]he substantive content of the two jobs are so dissimilar that a reasonable person would regard them as categorically different or separate.” Thus, he ordered the entry of a judgment for the defendant. We granted the plaintiffs’ application for direct appellate review and now affirm the judgment. 1. We summarize the judge’s findings regarding the substantive job content of the cafeteria worker and custodian positions. The cafeteria workers are responsible for providing school children with food that is nutritious, safe, and palatable, and for ensuring the cleanliness and sanitation of the food, workers, kitchen, serving areas, and cafeteria tables. The cafeteria worker position entails preparing, cooking, serving, selling, and accounting for individual food items procurable by school children and school employees for breakfast and lunch. Specific daily duties include transporting heavy cases of foodstuffs from the walk-in refrigerator to work stations; preparing and cooking food items; cleaning and sanitizing the cafeteria tables, serving areas, work tables, ovens, refrigerators, freezer, storage areas, sink, cooking equipment, and utensils; operating and checking temperature gauges and timers on the ovens; operating and checking steam gauges on the steamer and steam kettles; replenishing food supplies and rotating stock following deliveries; sweeping and cleaning the kitchen floor; and disposing of garbage. The custodians are generally responsible for the security of the school buildings, for ensuring that the buildings are properly heated and ventilated, and for the over-all cleanliness and sanitation of the bathrooms, classrooms, corridors, stairways, and outside play areas. Their duties include opening and closing the schools; cleaning and maintaining the school grounds and walkways, including removing leaves and snow, and spreading sand or salt as needed; cleaning the classrooms, offices, and corridors, including removing trash, vacuuming and wet mopping floors, and cleaning and sanitizing bathrooms; repairing window screens and removing glass from broken windows; performing minor repairs on locks, doors, and furniture; receiving and storing supplies; maintaining and cleaning the heating and ventilation systems; and setting up tables and chairs in the gymnasiums or auditoriums as necessary. 2. In reviewing a nonjury case like this one, we accept the judge’s findings of fact unless they are clearly erroneous (which they are not), but we independently review the legal standard which the judge applied to those facts. See Kendall v. Selvaggio, 413 Mass. 619, 620-621 (1992), and cases cited. The plaintiffs contend that the judge erred in limiting the scope of MEPA to claims involving jobs which, as he said in one part of his decision, are “fungible,”* * or where “[t]he subjective nature of the two jobs or the basic understanding of the objective or goal of each position [is] the same . . . .’’In making these observations, the judge appears to have obscured the legal standard to be applied in assessing the comparability of the jobs. This mischaracterization, however, does not significantly advance the plaintiffs’ case. 5It is the duty of an appellate court to apply the correct legal standard to the facts settled by the trial court. When we perform that function here, we also conclude that the plaintiffs cannot prevail on their claim under MEPA. As stated above, in applying the test announced in Jancey I, the first question we must address is “whether the substantive content of the jobs is comparable,” which requires us to look to the facts regarding the particular duties of each job to determine whether the jobs share “important common characteristics.” Jancey I, supra at 489. Contrary to the analysis applied by the judge, the test does not require that the jobs be fungible, a requirement that we view as more restrictive than that set forth in Jancey I. Furthermore, that someone might subjectively consider the two jobs to be of the same nature, or that the jobs share the same general objective, are considerations irrelevant to a claim of comparability under MEPA. Instead, the first prong of the comparability test requires the court to evaluate the substantive content of the positions, specifically the actual duties of each position, from the viewpoint of an objectively reasonable person, to ascertain whether the jobs are so dissimilar that they are not comparable. Although the respective duties of the positions may differ in some respects, comparable positions must share “important common characteristics.” The plaintiffs argue that the positions of cafeteria worker and custodian share “important common characteristics” within the meaning of the test because they share responsibility for the “domestic” work necessary to operate the schools and since they “involve the common characteristic of housekeeping.” However, in assessing whether the positions are comparable, MEPA requires more than a commonality of responsibility and purpose. As we stated in Jancey I, the content of the specific jobs must be acknowledged when applying MEPA’s “comparable” standard. Id. We decline to adopt the broad reading of the phrase “important common characteristics” urged by the plaintiffs, because to do so would effectively abrogate the first prong of the Jancey I test. The record reveals that only a limited number of the actual duties attendant to the cafeteria worker and custodian positions could be characterized as sharing “important common characteristics” in the sense suggested by the first prong of the Jancey I test, and those duties include the cleaning and sanitization of the various parts of the school facility for which each is responsible. Overall, however, the duties required of the cafeteria worker and custodian positions are so dissimilar that an objectively reasonable person simply would not conclude that the substantive content of the jobs is comparable. This case is not one, as suggested by the dissent, that simply involves “job labels” and “perceptions.” There can be reasonable disagreement over which of the two jobs is the more onerous and whether cafeteria workers in Everett should be paid more than they are. It may very well be that the functions of the two classes of workers reflect traditional gender roles, and, as we recognized above, the positions may share common characteristics. These considerations, however, do not provide a basis to misapply the law in order to reach a praiseworthy but legally untenable goal. The analysis suggested by the dissent, if followed to its logical conclusion, would find comparability in many fundamentally disparate classes of jobs. The judge made detailed findings of fact on what each job entails and their dissimilar substantive job content belies any conclusion that the jobs are comparable under the first part of the MEPA analysis. Judgment affirmed. The plaintiffs contend that the judge erred in failing to make additional factual findings regarding the substantive job content of the two positions. On remand, both parties agreed that the trial record was complete with respect to the evidence on this issue, and no new evidence was presented. Although the parties submitted proposed findings of fact in response to the judge’s request, he acted properly in relying on the comprehensive findings he had previously made that were pertinent to this issue. The judge’s decision conforms with our directions on remand, see Jancey v. School Comm. of Everett, 421 Mass. 482, 501 (1995) (Jancey I), and his findings meet the requirements imposed by Mass. R. Civ. R 52 (a), as amended, 423 Mass. 1402 (1996). See Leader v. Hycor, Inc., 395 Mass. 215, 224 (1985); Schrottman v. Barnicle, 386 Mass. 627, 638-639 (1982). Black’s Law Dictionary (6th ed. 1990), defines “fungibles,” in part, as “[g]oods which are identical with others of the same nature, such as grain and oil. . . . With respect to goods or securities, those of which any unit is, by nature or usage of trade, the equivalent of any other like unit . . . e.g., a bushel of wheat or other grain; common shares of the same company.” The judge’s reference to “fungible” is an isolated part of his otherwise thorough and correct analysis under the first prong of the Jancey I test. The defendant contends that the judge uses the term “fungible” to “illustrate that the positions must share important common characteristics in order to be comparable.” This may be so, although the judge’s meaning is unclear from his decision. The plaintiffs rely on McMillan v. Massachusetts Soc’y for the Prevention of Cruelty to Animals, 140 F.3d 288 (1st Cir. 1998), where the United States Court of Appeals for the First Circuit upheld a judgment for the plaintiff entered in the United States District Court for the District of Massachusetts in which she alleged that her job as department head of radiology at a veterinary hospital was equal to male department heads of cardiology, medicine, surgery, and pathology, within the meaning of the Federal equal pay act, 29 U.S.C. § 206(d) (1988) (FEPA), despite differences in supervisory, budgetary, or administrative responsibilities. See McMillan v. Massachusetts Soc’y for the Prevention of Cruelty to Animals, 880 F. Supp. 900, 903-904 (D. Mass. 1995) (decided prior to Jancey I). Although the plaintiff did not allege a violation of the Massachusetts equal pay act, G. L. c. 149, § 105A (MEPA), the First Circuit, relying on Petsch-Schmid v. Boston Edison Co., 914 F. Supp. 697, 706-707 (D. Mass. 1996), and without citing Jancey I, noted, erroneously, that the standard under MEPA is the same as under FEPA. See McMillan, 140 F.3d at 298. Compare Jancey I, supra at 487-490. Accordingly, the First Circuit’s decision in McMillan is of no assistance to the plaintiffs here. We are aware of one Federal decision in which a Federal court has cited the correct legal standard under MEPA. See Mullenix v. Forsyth Dental Infirmary for Children, 965 F. Supp. 120, 147-148 (D. Mass. 1996). The dissent contends that the analysis the court applies pursuant to Jancey I results in “comparable work” under MEPA being a more restrictive requirement than “equal work” under FEPA. It supports this contention by reference to our discussion of McMillan v. Massachusetts Soc’y for the Prevention of Cruelty to Animals, see note 6, supra. Our rejection of McMillan’s applicability to this case hinges on the fact that the Court of Appeals for the First Circuit equated the MEPA and FEPA standards without considering Jancey I. The dissent’s leap to the conclusion that the result endorsed here would make “ ‘comparable work’ a more exclusive category than ‘equal work,’ ” post at 609, is not warranted by our determination of McMillan’s applicability to this case. We do not have the benefit of the Federal court’s analysis of the positions at issue in McMillan under the Jancey I test, and thus it is speculative for the dissent to suggest, based on our discussion of McMillan, that Jancey I results in MEPA being more restrictive than FEPA. Furthermore, by focusing on “a higher level of generality” to find comparability in jobs “shar[ing] important common characteristics, responsibilities, goals, and daily routines,” the dissent ignores the first part of the Jancey I test and suggests an analysis devoted exclusively to the second part of the test. Post at 609. Marshall, J. (dissenting, with whom Abrams and Ireland, JJ., join). Today, the court withdraws from the difficult challenge of analyzing comparable work and forsakes the quest for gender equity in workplace compensation. Jancey v. School Comm. of Everett, 421 Mass. 482 (1995) (Jancey I), acknowledged that “ ‘comparable’ is a more inclusive term than ‘equal’ .... [and] ‘[w]ork of “comparable character” is broader than “equal work.” ’ ” Id. at 488, quoting Bureau of Labor & Indus. v. Roseburg, 75 Or. App. 306, 309 n.2 (1985). The narrow application of Jancey /’s two-prong test to determine comparable work, here endorsed by the court, has the ironic and contradictory effect of making “comparable work” a more exclusive category than “equal work” under the Federal equal pay act, 29 U.S.C. § 206(d) (1994) (FEPA). I have no argument in theory with a test that measures “comparability” by focusing on job content and whether duties of jobs share “important common characteristics,” while the second prong measures the “equality” of jobs. Ante at 604. The level of specificity or generality by which one defines job content and duties, however, makes all the difference. At one level of specificity, nontechnical school support staff perform categorically distinct jobs of dishwasher (cafeteria worker) and snow shoveler (custodian), cook (cafeteria worker) and trash remover (custodian). At a higher level of generality, work performed by all nontechnical school support staff is comparable work, because each position may share important common characteristics, responsibilities, goals, and daily routines. Within the categories of comparable work, individuals may vary in the equality of their jobs. In this case, the plaintiffs asked the judge and now ask us to look beyond job labels and the different perceptions of cafeteria workers and custodians that are, in part at least, artifacts of sexual stereotyping and traditional job segregation by gender. The court does not undertake this more painstaking analysis. It rejects, on the one hand, the common characteristic of cafeteria workers and custodians suggested by the plaintiffs — “domestic” work, involving the “housekeeping” of schools — as too broad a level of generality. On the other hand, it eschews more detailed analysis of the judge’s findings concerning the respective duties of each set of workers. Although the court recognizes that the job categories share a number of common duties — “cleaning and sanitization of the various parts of the school facility for which each is responsible” — the court does not question what percentage of each job category is spent on these common duties. The court also ignores findings that persons in each job category operate comparable equipment and appliances; monitor gauges and ensure safety; receive, carry, store, distribute, account for and manage necessary supplies; and interact with school children in nonpedagogical ways. Each kind of equipment or set of supplies, of course, at a specific level, may be distinct, but whether such differences make a difference, for purposes of equal pay for comparable work, is the critical inquiry. At the very least, such detailed analysis would identify and disaggregate both the common and the distinct duties of each job and establish grounds to measure equality of pay for that percentage of time and responsibility in which each job was comparable. Thus, if in fact fifty per cent of the time of both jobs involved comparable cleaning and sanitizing of facilities, wages should reflect equal pay for each job in that proportion to total pay for each job. The court rightly criticizes the judge for limiting the scope of MEPA to jobs that are “fungible,” and for using a standard whether “[t]he subjective nature of the two jobs or the basic understanding of the objective or goal of each position [is] the same . . . .” Ante at 606. The court’s conclusory application of an “objective” standard, however — that “the duties required of the cafeteria worker and custodian positions are so dissimilar that an objectively reasonable person simply would not conclude that the substantive content of the jobs is comparable” — obfuscates the analysis, as much, if not more, than the standard used by the judge. Ante at 607-608. In the long run, an objective perspective on comparable work, shared by reasonable women and reasonable men, may develop. Before that consensus is reached, however, courts, assisted by the testimony of experts, must undertake detailed, functional analyses of jobs on a case-by-case basis, especially those jobs traditionally segregated by gender. Until such hard analytic work is done, invocation of a reasonable person’s view of the comparability of jobs may do little more than mask biases. Because the court fails to provide sufficient reasons for affirming the judge’s conclusion that the jobs of cafeteria workers
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