On July 7, 2019, when the United States Women’s National Soccer team (USWNT) captured its fourth World Cup title, the crowd’s chant turned from “U.S.A.” to “Equal Pay!”
Indeed, on March 8, 2019, the USWNT filed a class action lawsuit in the California federal district court alleging that the significant pay disparity between them and the men’s national soccer team (MNT) constituted sex discrimination by the United States Soccer Federation (USSF) in violation of both the Equal Pay Act (EPA) and Title VII of the Civil Rights of 1964 (Title VII). That case is currently pending.
It has been estimated that the maximum earnings for female players after their most recent World Cup victory is $260,869, while the men’s is estimated at $1,114,429. In terms of competitive outcomes, the results of the USWNT and MNT have been different. Over the past seven World Cup competitions, the MNT has competed in six of the seven, has never won a World Cup, and has reached the quarterfinals only once in 2002. In contrast, over the past eight World Cup competitions, the USWNT has qualified for every tournament, has never placed below third place, and has won four of the eight tournaments. For its part, however, the USSF is focused on revenues not necessarily outcomes. The USSF notes that the pay disparity is warranted based upon “differences in aggregate revenue generated by [the] different teams and/or any other factor other than sex.”
How to protect against unlawful pay disparity
This highly publicized case is a reminder for employers that the Equal Employment Opportunity Commission (EEOC) and related state civil rights agencies are vigilantly scrutinizing the equal pay issue as women, as well as other minorities protected by the civil rights laws, continue to increase their numbers across the entire footprint of the U.S. workforce. To protect against unlawful pay disparity, employers are encouraged to:
- Conduct thorough audits to determine whether or not there are gender-based pay disparities (or disparities based upon any other protected characteristic, i.e., race, national origin), and if so, whether or not legitimate nondiscriminatory business justifications exist for such a disparity.
- Maintain accurate records justifying the legitimate business reasons for pay disparities.
- If necessary, correct any inequitable pay disparities and document the remedial actions taken.
- Ensure job descriptions are up to date and accurately reflect the position and duties held.
- Ensure that equal opportunity policies include equality in all aspects of compensation, including salary, bonuses, and benefits.
Equal pay for equal work, on its face, is hardly controversial. However, what the recently filed USWNT lawsuit illustrates is that there is a heightened sensitivity to differences in compensation. Employers must be prepared to address challenges to differences in compensation by providing legitimate business reasons.