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Equal Pay for the U.S. Women’s Soccer Team!by Andrew Whiteman

Equal Pay for the U.S. Women’s Soccer Team!

If you want to know what the U.S. women’s national soccer team is complaining about, click here to see the team’s federal court complaint against United States Soccer Fedaration, Inc. This story in The Atlantic summarizes the case. Hint – the women have really strong claims under both the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964.

The Equal Pay Act (“EPA”) amends the Fair Labor Standards Act of 1938. The EPA prohibits pay discrimination based on sex. Like other federal anti-discrimination laws, the EPA grants enforcement authority to the Equal Employment Opportunity Commission (“EEOC”). However, unlike other federal discrimination laws, such as Title VII of the Civil Rights Act or the Americans with Disabilities Act, a claimant has a right to bring a lawsuit under the EPA without first submitting a charge of discrimination to the EEOC.

Section 206(d) of the EPA, 29 U.S.C. § 206(d), requires that employers may not discriminate between employees on the basis of sex by paying wages to employees of the opposite sex “for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” The law provides exceptions if unequal wage payments are made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by the quantity or quality of production; or (iv) a differential based on any other factor other than sex. Id.

The law covers all types of compensation including regular pay, overtime, bonuses, vacation and holiday pay, and employee benefits.

Equal pay for equal work does not mean that the jobs must be identical. If two employees are performing the same work, it does not matter that their job titles or job descriptions are different. Jobs are considered “equal” under the EPA even if there are small differences in skill, effort, responsibility, or working conditions. Two jobs may be considered “equal” even if one job includes a few additional duties, particularly if the higher-paying jobs with the extra duties are reserved for workers of one gender.

Whether two jobs are considered “equal” requires an analysis of the skills required to perform the job, not the skills that the individual employees possess. Differences in the education, training, and experience of employees may not be relevant if the jobs at issue require the same skills and if both employees possess those skills. The physical and mental effort required by a job and any hazards associated with the work are relevant factors, and it is not illegal to pay employees more for performing harder or more dangerous work. Another factor that may justify a pay differential is whether a job carries managerial or reporting responsibilities.

Title VII of the Civil Rights Act of 1964 is broader than the EPA. The EPA only prohibits discrimination in wages based on sex, whereas Title VII bars all forms of discrimination based on sex, race, religion, etc., including discrimination in pay, hiring, firing, and promotion. There are other differences in coverage between the EPA and Title VII. Title VII does not require the jobs in question by equal, unlike the EPA. Title VII does not apply to employers who have less than 15 employees, while virtually all employers and jobs are covered under the EPA regardless of the number of employees. The EPA does not require proof that the employer acted intentionally, unlike Title VII. Title VII requires that before a claimant may sue the employee must first file a charge of discrimination with the EEOC. An employee may not sue the employer under Title VII unless the EEOC has declined to institute an enforcement action and has issued a “right to sue letter” to the claimant.

The time limit for filing an EPA lawsuit is two years from the last alleged unlawful compensation practice (usually, the last discriminatory paycheck) or three years if the violation was willful. Under Title VII, a claimant must file a charge of discrimination with the EEOC within 180 days from the day the discrimination occurred. The 180-day filing deadline is extended to 300 days if a state or local agency enforces a law that prohibits employment discrimination on the same basis as the EEOC.

The EPA and Title VII provide different categories of damages that may be recovered. The EPA provides for unpaid wages, “liquidated damages,” and attorney’s fees. Liquidated damages is an amount equal to the claimant’s unpaid wages. Thus, the liquidated damages provision of the EPA effectively doubles the claimant’s recovery. Title VII does not provide for liquidated damages, but it provides for compensatory damages, which includes financial damages and emotional distress damages, and punitive damages. In Title VII cases, damages are “mitigated,” i.e. reduced, by any income earned by the employee after an unlawful termination, and any damages that are awarded other than for back pay are capped at varying levels, from $50,000 to $300,000, depending on the number of persons employed by the employer.

Despite the passage of the EPA in 1963, women in the United States still make only 80.5% of the compensation paid to their male peers in the workplace. The Institute For Women’s Policy Research website contains a great article about the gender pay gap titled Pay Equity & Discrimination.

Congratulations to the U.S. women’s soccer team’s great World Cup victory. Let’s hope they are equally successful in pursuing their claim for pay parity.

© Andrew Whiteman 2019

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