04 October 2022

What Does “Equal Pay” for Equal Work Mean Exactly?

The Equal Pay Act requires men and women in the same workplace to be given equal pay for equal work. But what exactly does “equal pay” mean under the Equal Pay Act?

Let’s consider a recent case that was prominently featured in the news.  As you may have heard, 28 members of the United States Women’s National Soccer Team (WNT) sued the United States Soccer Federation (USSF) for gender discrimination.  The players alleged that, when compared to members of the United States Men’s National Team (MNT), members of the WNT were paid less and received lesser medical treatment and worse travel arrangements because of “institutionalized gender discrimination.”

In the decades prior to the lawsuit, both the WNT and the MNT had entered into several collective bargaining agreements (CBAs) with USSF. The similarities, however, ended there.  Under the WNT’s CBAs, players signed a “fixed pay” contract, meaning that team members were paid set salaries and severance benefits.  In other words, members of the WNT were paid the same whether they failed to qualify for the World Cup (which, of course, didn’t happen – ahem – we’re still upset with you, 2017 MNT) or won it all (and yes, we’re still proud of that 2019 WNT).  On the other hand, members of the MNT enjoyed a performance-based pay structure.  Go deeper in a tournament?  The men get paid more.  Win important matches?  Here’s some extra pay.

Seems pretty clear that the pay wasn’t “equal,” right?

Wrong.  At least the U.S. District Court for the Central District of California says you’re wrong.

The women’s lawsuit proceeded and the parties filed motions for summary judgment (essentially a motion to dismiss in the middle of the case).  The judge considered the motion and ruled that the women players were not paid less than the men players.  Huh?

Well, the judge dug deep into the details.  In April 2020, he determined that although the pay structures did not appear to be equal on their face, the members of the WNT made more total money over the relevant period (when was the last time you saw an advertisement with a member of the MNT?  Would you even recognize him if you did?) and made more money on average per game than members of the MNT.

Notwithstanding the court’s ruling, the members of the WNT ultimately “prevailed” and settled their case for $24 million. How did that come about?

Several factors were at play. First, the WNT indicated that they would continue to fight the good fight in court. Second, there was a pivotal change in USSF leadership. The former President, Carlos Cordeiro, resigned after he and the USSF came under intense scrutiny related to a document filed with the court in March 2020. In the document, the USSF claimed that women “do not perform equal work requiring equal skill [and] effort” while the ability of players on the senior men’s national team, it said, was “materially influenced by the level of certain physical attributes such as speed and strength.” Put simply, the document insinuated that the women’s team was less skilled and athletic as the men’s team. Ironic, no? Cordeiro’s replacement, Cindy Parlow Cone, took a different approach.  Taking advantage of the fact that the WNT’s CBA was ending, and that the MNT’s new CBA was still being negotiated, she got everyone into the room and helped facilitate difficult conversations between the two teams. In response, players from the MNT recognized that equal pay between the two teams was vital, even if it theoretically meant less money for them.

So, what’s the practical takeaway from all of this?  For one, equal pay is a complicated legal issue. Employers need to pay attention to more than just pay rates. Paying men and women the same rate but allowing a male employee to work overtime while withholding overtime opportunities from female employees isn’t equal pay, and it probably violates the law.  Moreover, the business community has recognized, and will continue to recognize that society is paying close attention to equal pay issues.  Public perception can be just as powerful as legal structures.

If you have questions about the Equal Pay Act or your pay practices, please contact your Miller Johnson attorney for assistance.

Contact the author Barbara Moore.