BFV Perspectives, Sports Fans Guide 2 HR, | Mar 15, 2019

FAQ on Equal Pay: U.S. Women’s Soccer Team Sues Soccer Federation

Claiming discrimination in pay, twenty-eight members of the women’s current U.S. national soccer team filed a federal lawsuit against the U.S. Soccer Federation for equal pay. Specifically, the lawsuit alleges violations under the Equal Pay Act (“EPA”) and Title VII of the Civil Rights Act and seeks damages and class action certification.

This case is obviously a significant development in the world of professional sports as pay equity in sports has garnered national attention in recent years.

Employers in all industries should pay attention to this case’s progression, because equal pay is an issue that transcends sport.  While most employers grasp the general concept of equal pay for equal work, there is much confusion about what constitutes a violation of the Equal Pay Act and the Equal Pay Act differs from Title VII.

FAQs about Equal Pay

Q: What is the Equal Pay Act?

The Equal Pay Act is a federal law that requires that men and women in the same workplace be given equal pay for equal work.  The jobs do not need to be identical, but they must be substantially equal.  Job content determines whether jobs are substantially equal.

Q: What factors determine whether jobs are substantially similar under the EPA?

The following factors are considered in determining whether jobs are substantially similar:

  • a significant portion of the job tasks are the same for the positions being compared;
  • the two jobs involve similar levels of skill, which means similar levels of experience, ability, education, and training;
  • the two jobs involve similar levels of mental and physical exertion;
  • the two jobs involve similar levels of responsibility or accountability; and
  • the two jobs are performed under similar working conditions.

Q: If an employee is paid less than someone else of the opposite sex who is doing the same job, does that mean the employer is violating the EPA?

Not necessarily. The EPA is not violated if an employer can show that the higher salary is based on one of the following:

  • a seniority system that rewards employees based on length of employment;
  • a merit system that rewards employees for exceptional job performance;
  • an incentive system that pays employees based on the quality of their work or the amount of work they perform; or
  • another factor related to job performance or business operations, such as paying a shift differential to workers on less popular shifts.

The employer’s burden to establish one of these reasons is a “heavy one,” and the employer must show “the factor of sex provided no basis for the wage differential.” Bowen v. Manheim Remarketing, Inc., 882 F.3d 1358, 1362 (11th Cir. 2018).

Q: What forms of pay are covered by the EPA?

All forms of pay are covered by this law. This includes salary, overtime pay, bonuses, stock options, profit sharing and bonus plans, life insurance, vacation/PTO, holiday pay, cleaning or gasoline allowances, hotel accommodations, reimbursement for travel expenses, and benefits.

Q: Can an employer reduce an employee’s wages to make the pay of two workers’ equal?

No.  If there is an inequality in wages between men and women, the employer may not reduce the wages of either sex to equalize their pay.

Q: How does an employee file a claim under the EPA?

Both the EPA and Title VII are enforced by the Equal Employment Opportunity Commission (“EEOC”).  An individual pursuing a violation of the EPA has two options: (1) the individual may file a lawsuit in court directly (without first filing a charge with the EEOC); or (2) the individual may file a charge with the EEOC and then file a lawsuit following the EEOC’s investigation.  In addition, many states and cities have similar fair employment practices agencies, which enforce state and local laws that prohibit employment discrimination.

Q: What is the time limit for filing a claim under the EPA?

The time limit for filing an EPA charge with the EEOC and the time limit for going to court are the same: within two years of the alleged unlawful compensation practice.  If the violation is willful, a three-year limit applies.  29 U.S.C. § 255(a).  The filing of an EEOC charge does not toll the statute of limitations under the EPA, even if the plaintiff’s claims are covered under both Title VII and the EPA.  

Q: How does an EPA claim differ from a Title VII claim of discrimination?

While Title VII also makes it illegal to discriminate based on sex in pay and benefits, there is no requirement under Title VII that the jobs must be substantially equal. Also, Title VII prohibits discrimination broadly and beyond compensation and throughout the employment life cycle (such as decisions regarding hiring, promotions, demotions, and termination).

Q: What should employers do?

Employers should review their compensation practices and be proactive in ensuring compliance with the equal pay laws including the federal Equal Pay Act. This should include evaluating all forms of compensation at least annually and spot-checking potential compensation problems periodically.  Pay attention to how pay raises and discretionary bonuses are determined and correct problems as soon as they are discovered.

As always, please let me know if I can help.

BFV Perspectives, Sports Fans Guide 2 HR, | Mar 15, 2019
Kenneth N. Winkler
Kenneth N. Winkler

Kenneth Winklera shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.