Gender pay disparities have become a major part of the national dialogue on sex discrimination, highlighted most recently by the U.S. Women’s National Soccer Team’s dual quest for a World Cup title and wages equal to their male counterparts. While the women’s team accomplished that first goal, recent developments in its pay lawsuit reveal that the second may prove far trickier.
Nearly all states have laws on the books that address equal pay, and in 2019 alone, 11 states’ statutes will take effect.
Federal law, meanwhile, prohibits employers from paying workers differently for equal work. But it, as well as some of the state measures, also gives businesses some leeway in explaining why there may be pay disparities among workers.
The complexity in determining wage fairness can be seen in the arguments made by both parties in the women’s team’s lawsuit. The players argue U.S. Soccer, the employer for the U.S. Men’s and Women’s National teams, pays the women’s team members just 38% on average of what men’s team members get. Federation President Carlos Cordeiro, however, says that from 2010 through 2018, U.S. Soccer paid the Women’s National Team more than the Men’s National Team—$34.1 million in salaries and game bonuses versus $26.4 million—because the women have a guaranteed salary plus bonuses while the men are only paid for training camps and games in addition to bonuses.
A trial date in the team’s case has been set for May 5, 2020. Mediation talks with the U.S. Soccer Federation fell apart earlier this month, with both sides coming out of the closed door session swinging.
“We entered this week’s mediation with representatives of USSF full of hope. Today we must conclude these meetings sorely disappointed in the Federation’s determination to perpetuate fundamentally discriminatory workplace conditions and behavior,” women’s team spokeswoman Molly Levinson said. “We want all of our fans, sponsors, peers around the world, and women everywhere to know we are undaunted and will eagerly look forward to a jury trial.”
U.S. Soccer, however, remains confident that a deal could be struck before May of next year. “While we didn’t resolve the situation through mediation, our approach is to continue to have conversations in good faith and find a resolution,” a spokesman told Bloomberg Law."We always strive to ensure that all our national team players, women and men, are paid fairly and equitably. The situation is complex because the men’s and women’s teams have different pay structures, not because of gender, but because each team chose to negotiate a different compensation package with U.S. Soccer.”
Pivoting Away From Gender
What this case really illuminates is how parties can play with numbers to “say what you want them to say,” said Jon Hyman, a labor and employment partner at management-side Meyers Roman in Cleveland, Ohio.
In many wage discrimination cases, employers will try to shift the argument to factors that don’t relate to gender pay differences, plaintiffs’ attorney Shannon Liss-Riordan with Lichten & Liss-Riordan P.C. said. “It’s trying to shift the attention away from the legal issue at hand.”
Case in point, U.S. Soccer has pointed to other countries’ national teams’ salaries in its defense of the U.S. team’s pay. “We have always shown that we value our players by being the global leader in terms of compensation and support, which by far exceeds any other women’s team in the world,” the federation spokesman said.
But comparing team pay outside the U.S. to the women’s situation is “not a defense,” Liss-Riordan said. “The fact that the women’s soccer team may be paid more than other teams” outside the U.S. isn’t part of the issue of how it’s being paid in comparison to the U.S. men, she said.
A Winning Argument?
U.S. Soccer’s argument that pay structures agreed to in collective bargaining justify gender wage discrepancies could hold water at trial, however. The Equal Pay Act and state equal pay laws often grant exceptions for pay systems based on wage differentials other than gender, such as seniority, merit, quantity or quality of production, or other factors.
Laws to enforce equal pay should have fewer loopholes for employers, according to Liss-Riordan. “The sad truth is that the federal equal pay act doesn’t have as much teeth as it should have,” she said. “Any factor other than sex can be used as a defense, and that’s a problem.”
“The test is equal pay for equal work, as long as the work is substantially equal,” Hyman said. Those factors are still undetermined in this particular case, he said.
But things are so often judged in the court of public opinion, “and when you have a team that’s been wildly successful, the optics are terrible with this lawsuit,” and U.S. Soccer’s arguments aren’t yet winning in the court of public opinion, Hyman said.