By: Amy Epstein Gluck

As I arrived at a jam-packed, standing room only sports bar on a Sunday morning, I wondered what a U.S. Women’s National Team (USWNT) victory would mean to the lawsuit filed by the team, which is scheduled to go to mediation after the USWNT’s 4th World Cup.

What will it mean for the women’s team’s equal pay claims? Their sex discrimination claims? What will such a victory mean for U.S. Soccer’s defenses? Does a mediated resolution seem more or less likely with this sweet victory?

We will see, of course, but I’ll tell you: when Rose Lavelle made that almost electric shot soon after Captain Megan Rapinhoe’s searing penalty kick, my heart nearly jumped outta my chest and into the avocado bagel I was chewing on (c’mon, it was brunch). Rarely have I seen such athletic excellence, agility, and sheer elegance coupled with pure love of the game and incredible passing and speed.

soccer-3311707_1920.jpg

 

So now what?

These Lawsuits Has Been Going On A While, No? And What Are They Even About?

First, a little history.

Back in 2016, I wrote here and here that the U.S. Women’s Soccer team, led by Hope Solo at the time, filed an equal pay discrimination claim with the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces the federal anti-discrimination laws, alleging violations of the Equal Pay Act of 1963 (EPA).

The basis for their claim—despite repeated, consistent victory on the field and substantial increased revenue for  the U.S. Soccer Federation, U.S. Soccer pays the USWNT less than it pays the U.S. Men’s team.

Then, in March 2019, the entire U.S. women’s soccer team filed a class action lawsuit in the U.S. District Court in Los Angeles against the U.S. Soccer Federation alleging unequal pay, practice time, medical treatment, and other benefits and accusing it of “institutionalized gender discrimination.”

The players alleged violations of the EPA and Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employers from discriminating against any individual with respect to her or his compensation, terms, conditions, or privileges of employment on the basis of, among other things, sex.

What happened to the 2016 claim? According to the Washington Post, in filing the 2019 lawsuit, the USWNT effectively relinquished the formal wage-discrimination complaint.

So now where are we? Mediation of the USWNT’s claims for unequal pay and sex discrimination.

What Are The Elements And Defenses Of An Equal Pay Claim Anyway?

To make out a prima facie case of equal pay discrimination, which is a type of sex discrimination, the USWNT will have the burden to show that the skill, effort, and responsibility required in their job performance are equal to those of higher-paid males. The work does not need to be identical, just substantially similar, which is, as so many things are in the law, determined on a case by case basis.

To effectively rebut an EPA claim, U.S. Soccer, the employer here, must prove affirmatively that a pay differential between similarly situated male and female employees is defensible due to (1) a seniority system; (2) a merit system; (3) a pay system based on quantity or quality of output; or (4) a disparity based on any other factor other than sex.

In 2016, U.S. Soccer defended based on #4, i.e., that the pay difference was based on factors other than sex. Likewise, U.S. Soccer responded to the class-action suit by stating  that the men’s and women’s national team negotiated separate collective bargaining agreements, which feature different pay structures.

soccer-1497883_1920.jpg

A Few Relevant Facts To Note From U.S. Soccer’s Records

According to the Wall Street Journal, USWNT games on average earned more revenue than the men’s games over the last three years, which cited audited financial reports from U.S. Soccer.

The reports also disclosed that between 2016 and 2018, USWNT games generated $50.8 million in revenue while USMNT games generated 2% less, $49.9 million. We’ll see how that plays into the mediation.

And Speaking Of Mediation…

Mediation does not mean that the parties are interested in or will settle. It means that they will try to work things out with the help of a trained mediator, whose opinion they are free to ignore. Mediation tends to be faster, far less expensive, and less public than litigation, but for it to work, both the USWNT and U.S. Soccer (and their lawyers) must have a good faith interest in trying to resolve these claims on reasonable terms acceptable to each party.  It tends to be a money game.

The disadvantages are slight—if mediation fails, the parties have wasted time and money, though this is usually minor in the context of a litigated dispute.

It seems the two sides will have much to work through: equal pay, equal treatment, and an actual contract between them, lest we forget the collective bargaining agreement!

While settlement talks in late March failed, perhaps this Women’s World Cup victory – the women’s team’s fourth (fourth!) such win – will tip the scales in their favor and in favor of a balanced, fair resolution.

Employer Takeaways

Of course, being without a crystal ball, I have no idea how this mediation will fare or, if it fails, how the litigation will result, but one thing is clear: sex-based pay differences for substantially similar work increases the likelihood of legal action against an employer.

As we have repeated, resolving gender pay inequality requires employers to reject sex-based wage differentials for work requiring equal skill, effort, and responsibility performed under the same or similar working conditions. An equal pay analysis can root out such inequity in order to comply with the EPA—it requires employer to take a good, hard look at their payroll scales.