I am woman, hear me score.

Q:    I read in the paper this morning that the U.S. Women’s National Soccer Team has filed a claim with the EEOC against the U.S. Soccer Federation, demanding equal pay. If male sports teams are the ones bringing in all the revenue, can female athletes really support the argument that they deserve the same pay?

A:     It seems very possible. First, it has been reported that the women’s soccer team has actually generated more money than the men’s team, exceeding the men’s revenue by $20 million in 2015.[1] Second, the Equal Employment Opportunity Commission (“EEOC”) is a federal agency that has been progressive in addressing workplace discrimination. The EEOC’s latest interpretations of the Fair Labor Standards Act (“FLSA”) and the Equal Pay Act (“EPA”), indicate a likely victory for the women’s team.

Under the EPA and FLSA, male and female employees must be paid equal wages for substantially equal jobs. Specifically, when a job performed under similar working conditions requires equal skill, effort and responsibility, an employer cannot discriminate between employees on the basis of sex by paying unequal wages.[2]  Similar, but even stricter, rules apply under California’s new Fair Pay Act (“FPA”), where the requirement applies even when the employees work at different sites or have different titles.[3]

The EPA permits wage differentiation where the pay is measured by quality or quantity of production, or under a seniority and merit system, provided sex plays no part in the wage differential.[4] However, as the women’s team brings in more revenue, and has had far more victories than the men’s team, the U.S. Soccer Federation would be hard-pressed to argue that a wage differential based on the difference in “quality” or “skill” between the two teams had nothing to do with sex. As such, it seems unlikely that the EEOC would accept a merit system defense. It appears that the U.S. Soccer Federation anticipates as much, based on a statement it released on March 31, stating that its “efforts to be advocates for women’s soccer are unwavering,” and it is committed to negotiating a new collective bargaining agreement for the women’s team at the end of 2016.

Accordingly, the U.S. Women’s National Team’s recent success may have won them not only a shiny World Cup, but higher paycheck, too.

[1] http://www.cnn.com/2016/04/01/football/uswnt-lawsuit-pay-parity/index.html?eref=rss_latest

[2] (29 U.S.C. § 206(d)(1).)

[3] (Cal. Lab. Code § 1197.5.)

[4] See footnote 2.

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

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