Confidential settlement reached in BSO flutist's gender pay-discrimination suit

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BOSTON — A landmark pay-discrimination lawsuit filed by the Boston Symphony Orchestra's star flutist, Elizabeth Rowe, has been settled out of court after successful mediation between the two sides.

"While the details of the resolution are confidential, all those involved in the process are satisfied with the result," according to a joint statement from the BSO and Rowe issued by the orchestra Thursday afternoon in Boston.

The documents confirming the settlement, filed in Suffolk County Superior Court, stated that the case was dismissed "with prejudice," meaning it cannot be reopened or pursued further. Attorneys' fees for both sides were waived, the court papers noted. The settlement first was reported by The Boston Globe.

Rowe filed the lawsuit July 2, one day after the state's new Equal Pay Law took effect. That law requires equal pay across genders for comparable work, although there are some exceptions, such as seniority with the employer as well as education and training.

The new law states that pay gaps between men and women cannot be justified by salary history. In addition to Massachusetts, laws forbidding employers from asking job candidates about previous salary have been passed recently in California, New York City, Philadelphia, Delaware and elsewhere.

Rowe contended that the orchestra discriminated against her on the basis of gender by paying her substantially less than principal oboist John Ferrillo. She argued that her pay was three-quarters of what Ferrillo earned for "comparable work."

"Both the principal oboe and principal flute are leaders of their woodwind sections, they are seated adjacent to each other, they each play with the Boston Symphony Chamber Players, and are both leaders of the orchestra in similarly demanding artistic roles," her lawsuit contended.

The joint statement depicted the orchestra as "an industry leader in furthering the role of women at every level of the organization, including staff, management, and orchestra."

The statement cited the 1952 hiring of principal flutist Doriot Anthony Dwyer shortly after the orchestra became the first in the nation to audition players behind screens "to promote fairness and to address the issue of gender imbalance, among other issues, in orchestras at that time."

The orchestra management, crediting "the same spirit of improvement and innovation it demonstrated more than six decades ago," vowed to "continue to collaborate with musicians, staff, and other leaders in the field to accelerate the process of achieving gender parity. The BSO and Elizabeth Rowe look forward to continuing their shared commitment to artistic excellence at the highest level."

Rowe, who joined the BSO in 2004, was heavily promoted in brochures and other marketing materials. She frequently earned cheers from Tanglewood audiences for her solos with the orchestra, but was paid about $70,000 a year less than Ferrillo, according to her attorney, Elizabeth A. Rodgers. Rowe had earned $280,000 during the 2015-16 season, IRS filings showed.

She also argued that she was paid less than the orchestra's male principal trumpet, horn, timpani and trumpet soloists.

Mediators began working on a potential settlement in December.

The case has been closely watched by other nonprofits, businesses and labor attorneys, since it could set a precedent for pay discrimination lawsuits.

In addition to a salary increase, Rowe was seeking $200,000 in unpaid back wages, as well as other damages and costs.

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But the settlement agreement offered no details on her future compensation or possible retroactive pay.

At Tanglewood last summer, Rowe and principal harpist Jessica Zhou received an ovation for their performances in the world premiere of John Williams' new work, "Highwood's Ghost."

According to the Suffolk County Superior Court docket, Rowe amended her lawsuit Aug. 10, stating that although the orchestra's board had met in mid-July, there had been no adjustment in her compensation.

A few weeks before mediation began, the BSO filed a motion to dismiss the lawsuit, arguing:

- "Rowe's compensation package is the fifth highest for principal musicians in the orchestra, and higher than nine other BSO male principals. Also, she earns the highest solo-performance fee of any BSO principal musician."

- "The flute and the oboe are not comparable instruments, nor are they treated as such by most major orchestras in the United States. Each instrument has its own pay scale at leading orchestras around the country, including the BSO."

- "As with all orchestras in the United States, different instruments invariably command different salaries. Each instrument in an orchestra also requires different skills and effort to play at the highest level. Setting compensation for each musician, particularly principals, is a nuanced process involving many factors. Gender, however, is not and has never been one of those factors at the BSO."

Last July, Rowe's attorney told the Globe that her client "loves her job. She wants to resolve this amicably. She regrets that litigation was necessary and hoped she could have resolved it internally."

Ferrillo filed a statement with Rowe's original lawsuit, praising her musicianship and leadership within the orchestra and emphasizing the importance of their close teamwork.

"We jokingly refer to playing Floboe," he wrote, adding that Rowe is his "peer and equal, at least as worthy of the compensation that I receive as I am."

He added that he was referring "solely on Ms. Rowe's merits . . . not making a statement about either overall hierarchy among principal players or their compensation."

According to the July 2 lawsuit, the BSO's personnel director had told Rowe last year that she was a "major star." The court filing refers to Rowe as "the face" of the BSO in terms of public relations, donor relations and solo appearances.

Rowe's lawsuit pointed out that she 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 contended, but also retaliated against her for trying to discuss the issue publicly.

In December 2017, according to the court papers, 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 invitation was withdrawn.

Information from the Boston Business Journal, the Boston Herald, The Boston Globe, The Washington Post and The New York Times was included in this report.

Clarence Fanto can be reached at cfanto@yahoo.com, on Twitter@BE_cfanto and at 413-637-2551.


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