On March 8, 2019, all 28 players on the women’s national team initiated a proposed class and collective action in federal court against the U.S. Soccer Federation. Their action alleged discrimination based on sex in violation of the Equal Pay Act (EPA) and Title VII of the Civil Rights Act of 1964, as amended (Title VII). Notably, the players chose to file suit on International Women’s Day, which is intended to celebrate the social, economic, cultural, and political achievements of women, as well as to raise awareness of gender equality issues.
Litigation Background
As we previously reported, several players filed charges of discrimination with the Equal Employment Opportunity Commission (EEOC) in March 2016 alleging discrimination based on sex. After completing its investigation, on February 5, 2019, the EEOC (the federal agency charged with investigating allegations of employment discrimination) issued the players’ Notices of Right to Sue, allowing them to file the instant lawsuit within 90 days of receipt.
The lawsuit alleges that “the female players have been consistently paid less money than their male counterparts. This is true even though their performance has been superior to that of the male players—with the female players, in contrast to the male players, becoming world champions.” The complaint alleges that the women outperformed the men’s team in terms of revenue, profit, and performance.
The complaint goes on to state that the female players spend more time practicing for and playing in matches, training in camps, traveling, and participating in media sessions than similarly situated male players—all while earning less pay. The complaint further alleges that the female players have endured other less favorable terms and conditions of employment than their male counterparts, such as having to play on inferior surfaces (i.e., artificial turf) with a greater chance of serious injury.
Meanwhile, at the administrative phase, the Federation denied the pay discrimination allegations and pointed out that the female players receive benefits that the male players do not, such as severance pay, medical insurance, maternity leave, child care, and a relocation allowance. The Federation also pointed out that the men’s and women’s teams have separately negotiated collective bargaining agreements governing pay and other issues.
Legal Framework
Federal law generally prohibits discriminatory employment practices based on sex. Under the EPA, men and women in the same workplace must be given equal pay for equal work. Title VII also makes it unlawful to discriminate based on sex regarding pay and benefits. Once a plaintiff establishes a prima facie case of salary discrimination, the burden shifts to the employer to prove, by a preponderance of evidence, that the pay differential is justified by the existence of one of the four statutory exceptions: (1) a seniority system; (2) a merit system; (3) a system that measures earnings by quantity or quality of production; or (4) a differential based on any factor other than sex.
Bottom Line
The bottom line for employers is to regularly audit pay practices and policies to prevent and correct potential pay disparity issues. Consistency and training are key to avoiding not only legal missteps but also serious employee morale issues.
This lawsuit comes less than 3 months before our reigning world champions will defend their title at the Women’s World Cup in France beginning on June 7. It remains to be seen whether these athletes will still be locked in litigation at that time, but they are reportedly not considering any boycott or protest during (or leading up to) the tournament. However, the litigation proceeds, this writer (and long-time soccer fan) is hoping they bring home a 4th world championship.
