Former Women's Team Goalkeeper Sues US Soccer for Equal Pay Act Violation

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Hope Solo, who was a goalkeeper for the US Women's National Team from 2000 to 2016, has sued the United States Soccer Federation, the official governing body for the sport of soccer in the United States. Her complaint, filed on August 24, 2018, in the United States District Court for the Northern District of California, charges that U.S. Soccer violated the Equal Pay Act, and Title VII by paying the members of the women's team less than it pays the members of the men's team. According to the complaint, the members of the women's team perform substantially equal or similar work, when viewed as a composite of skill, effort, and responsibility, and perform under similar working conditions, as the members of the men's team.

Courts applying the Equal Pay Act in the past have recognized that differences in exposure and prestige between men's and women's teams justify pay disparities in coaching jobs. In the most well-known case, the Ninth Circuit affirmed summary judgment for the University of Southern California in a case brought by its women's basketball coach, who was paid substantially less than the men's basketball coach. The court explained that the substantial difference in pay was justified in part by the difference in media attention and revenue generated by the two teams. Stanley v. University of Southern California, 178 F.3d 1069 (9th Cir. 1999). Although some female coaches have succeeded on Equal Pay Act claims (see Perdue v. City University of New York, 13 F.Supp.2d 326 (E.D.N.Y. 1998)), most have not. The EEOC published an enforcement guidance on the subject in 1997, which advised that pay disparities between male and female coaches were of concern.

Solo has a stronger case for equal pay than the women's coaches who lost their cases, because the Women's National Team has performed much better than the Men's National Team, and, at least according to her complaint, has generated substantially more revenue for U.S. Soccer.

Last year, U.S. Soccer entered into a new collective bargaining agreement with the players on the Women's National Team. A complaint alleging discriminatory pay practices that several of the players, including Solo, filed with the EEOC in 2016, remains outstanding. Both the agreement and the EEOC complaint may affect the individual lawsuit that Solo has filed.

The case has been assigned to United States Magistrate Judge Donna M. Ryu. Under the rules of the Northern District, the case will be assigned to an Article III United States District Judge, if the parties do not consent to Judge Ryu's continuing to handle the case.

The Northern District of California seems like an odd venue for the lawsuit. The complaint asserts that Solo is a resident of North Carolina, and that U.S. Soccer is chartered under New York law, with a principal place of business in Chicago. Although the complaint alleges that U.S. Soccer does "substantial business" in the Northern District, it does not explain what that business consists of. However, the federal venue statute (28 U.S.C. section 1391), provides that venue is proper where the defendant resides, or where substantial part of the events or omissions giving rise to the claim occurred. An entity like U.S. Soccer "resides," for purposes of the statute, in any district where it is subject to personal jurisdiction.

California's New Equal Pay Act

Although there has been a California equal pay act since 1949, and a federal one since 1963, and although both California and federal law have barred discrimination in employment based on gender for over 50 years, recent attention to the continuing wage gap between men and women and the publicity brought to the subject by Patricia Arquette's acceptance speech at the 2015 Academy Awards has led to enactment of a new equal pay act in California. The text of Labor Code section 1197.5, as amended by the new act, is set out below.

The U.S. Census Bureau has reported that the female-to-male earnings ratio, based on median earnings of full-time, year-round workers 15 years and older is 79 percent. (See Income and Poverty in the United States: 2014.) Whether this disparity results from discrimination that can be remedied by equal pay legislation is a difficult question. For a discussion of what the data shows, Read or listen to "The True Story of the Gender Pay Gap: A New Freakonomics Radio Podcast" at Freakonomics.com.

Further insight comes from Jennifer Lawrence, whose salary for "American Hustle" was revealed to be lower than that of her male co-stars when Sony's emails were hacked at the end of 2014. She wrote an essay for Lenny, in which she said: "When the Sony hack happened and I found out how much less I was being paid than the lucky people with dicks, I didn't get mad at Sony. I got mad at myself. I failed as a negotiator because I gave up early. I didn't want to keep fighting over millions of dollars that, frankly, due to two franchises, I don't need."

The California act used to bar payment of lower wages to any employee than what was paid to employees of the opposite sex in the same establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. California's new law bars payment of lower wages for "substantially similar work." It is much too early to tell whether the new California law will lead to changes in pay practices or to additional lawsuits. Professor Martha West explains how the advantages and the shortcomings of the new law in this article in the Los Angeles Times.

Here are some examples of decisions applying the less rigorous standards. Would they turn out differently under California's new law?

• The female head coach of the women's basketball team at a major university was offered a new contract at a salary of $96,000, substantially less than what the university was paying the male coach of the men's basketball team. When the university refused to do so, she sued for violation of the federal Equal Pay Act. The Ninth Circuit affirmed summary judgment in her favor, because differences in experience and qualifications justified the disparity on a basis other then gender. Stanley v. University of Southern California, 178 F.3d 1069 (9th Cir. 1999).
• A female construction superintendent was earning $500 per week when her employer hire a new male superintendent at $900 per week. Although they had the same job duties, the pay differential did not violate the California equal pay act, because the two had vastly different levels of experience. Green v. Par Pools, Inc., 111 Cal. App. 4th 620 (2003).
• Eight of 20 physician assistants at a particular healthcare facility were female, while 55 of 69 nurse practitioners were female. The employer paid the nurse practitioners on a regionally based scale that resulted in substantially lower pay than what the physician assistants received under a nationally based scale. In other areas of the country the regionally based scale for the nurse practitioners turned out to be higher than the nationally based scale for the physician assistants. The wage disparity did not violate the Equal Pay Act because the plaintiffs had no evidence that the pay scales were adopted based on gender. Yant v. United States 588 F.3d 1369 (Fed.Cir. 2009).

For further explanation of the federal standards see the EEOC's Enforcement Guidance on compensation of sports coaches.

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(a) An employer shall not pay any of its employees at wage rates less than the rates paid to employees of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions, except where the employer demonstrates:
(1) The wage differential is based upon one or more of the following factors:
(A) A seniority system.
(B) A merit system.
(C) A system that measures earnings by quantity or quality of production.
(D) A bona fide factor other than sex, such as education, training, or experience. This factor shall apply only if the employer demonstrates that the factor is not based on or derived from a sex-based differential in compensation, is job related with respect to the position in question, and is consistent with a business necessity. For purposes of this subparagraph, “business necessity” means an overriding legitimate business purpose such that the factor relied upon effectively fulfills the business purpose it is supposed to serve. This defense shall not apply if the employee demonstrates that an alternative business practice exists that would serve the same business purpose without producing the wage differential.
(2) Each factor relied upon is applied reasonably.
(3) The one or more factors relied upon account for the entire wage differential.
(b) Any employer who violates subdivision (a) is liable to the employee affected in the amount of the wages, and interest thereon, of which the employee is deprived by reason of the violation, and an additional equal amount as liquidated damages.
(c) The Division of Labor Standards Enforcement shall administer and enforce this section. If the division finds that an employer has violated this section, it may supervise the payment of wages and interest found to be due and unpaid to employees under subdivision (a). Acceptance of payment in full made by an employer and approved by the division shall constitute a waiver on the part of the employee of the employee’s cause of action under subdivision (g).
(d) Every employer shall maintain records of the wages and wage rates, job classifications, and other terms and conditions of employment of the persons employed by the employer. All of the records shall be kept on file for a period of three years.
(e) Any employee may file a complaint with the division that the wages paid are less than the wages to which the employee is entitled under subdivision (a) or that the employer is in violation of subdivision (j). The complaint shall be investigated as provided in subdivision (b) of Section 98.7. The division shall keep confidential the name of any employee who submits to the division a complaint regarding an alleged violation of subdivision (a) or (j) until the division establishes the validity of the complaint, unless the division must abridge confidentiality to investigate the complaint. The name of the complaining employee shall remain confidential if the complaint is withdrawn before the confidentiality is abridged by the division. The division shall take all proceedings necessary to enforce the payment of any sums found to be due and unpaid to these employees.
(f) The department or division may commence and prosecute, unless otherwise requested by the employee or affected group of employees, a civil action on behalf of the employee and on behalf of a similarly affected group of employees to recover unpaid wages and liquidated damages under subdivision (a), and in addition shall be entitled to recover costs of suit. The consent of any employee to the bringing of any action shall constitute a waiver on the part of the employee of the employee’s cause of action under subdivision (g) unless the action is dismissed without prejudice by the department or the division, except that the employee may intervene in the suit or may initiate independent action if the suit has not been determined within 180 days from the date of the filing of the complaint.
(g) Any employee receiving less than the wage to which the employee is entitled under this section may recover in a civil action the balance of the wages, including interest thereon, and an equal amount as liquidated damages, together with the costs of the suit and reasonable attorney’s fees, notwithstanding any agreement to work for a lesser wage.
(h) A civil action to recover wages under subdivision (a) may be commenced no later than two years after the cause of action occurs, except that a cause of action arising out of a willful violation may be commenced no later than three years after the cause of action occurs.
(i) If an employee recovers amounts due the employee under subdivision (b), and also files a complaint or brings an action under subdivision (d) of Section 206 of Title 29 of the United States Code which results in an additional recovery under federal law for the same violation, the employee shall return to the employer the amounts recovered under subdivision (b), or the amounts recovered under federal law, whichever is less.
(j) (1) An employer shall not discharge, or in any manner discriminate or retaliate against, any employee by reason of any action taken by the employee to invoke or assist in any manner the enforcement of this section. An employer shall not prohibit an employee from disclosing the employee’s own wages, discussing the wages of others, inquiring about another employee’s wages, or aiding or encouraging any other employee to exercise his or her rights under this section. Nothing in this section creates an obligation to disclose wages.
(2) Any employee who has been discharged, discriminated or retaliated against, in the terms and conditions of his or her employment because the employee engaged in any conduct delineated in this section may recover in a civil action reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer, including interest thereon, as well as appropriate equitable relief.
(3) A civil action brought under this subdivision may be commenced no later than one year after the cause of action occurs.

Learn About the Equal Pay Act

The Equal Pay Act is a federal statute that tries to assure pay equality between male and female employees, even though job titles may differ.

Although the Equal Pay Act has been in effect since 1963, a pay gap continues. A GAO study released in October 2011 estimated that "in 2010, less-educated women earned 86 cents—compared with 81 cents in 2000—for every dollar men earned, after adjusting for available factors that may affect pay." Commentators continue to decry the gap. Witness this recent post by Congresswoman Jackie Speier.

The substantive provisions of the Act appear in 29 U.S.C. section 206(d), which states:

"No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee."

The Equal Pay Act regulations promulgated by the EEOC elaborate on those provisions.

Unlike similar sex discrimination claims under Title VII, there is no exhaustion requirement. Claimants may file their claims in court without first going to the EEOC. California has its own Equal Pay Act, found in Labor Code section 1197.5, which is substantially the same as the federal one. California courts rely on federal precedent to interpret the statute. Green v. Par Pools Inc., 111 Cal.App.4th 620, 3 Cal.Rptr.3d 844 (2003). As is the case with the federal statute, there is no exhaustion requirement.

The Ninth Circuit applied the Equal Pay Act in an action by the USC women's basketball coach, who was paid less than the men's basketball coach. Stanley v. University of Southern California, 178 F.3d 1069 (9th Cir. 1999). Summary judgment for the university was affirmed: "Stanley [the women's coach] had far less relevant experience and qualifications than Raveling [the men's coach]. She had fourteen years less experience as a basketball coach. She, unlike Raveling, never coached the Olympic team. She had no marketing experience outside coaching. She had never written any books on basketball.

Whether an employee's rate of pay is less than the rate paid to another employee is not always a mathematical calculation. If the work is equal the pay must be in the same form.

Example 16 from the EEOC's Compliance Manual section on compensation discrimination explains this as follows: A male tennis instructor and a female tennis instructor at a particular health club provide tennis lessons that are substantially equal. The male instructor is paid a weekly salary, but the female instructor is paid by the lesson. Even if the two instructors receive essentially the same pay per week, there is a violation because the male and female are not paid in the same form for substantially equal work.

Other examples from the Compliance Manual explain other concepts under the Equal Pay Act:

Two of them illustrate how to determine whether a pay differential between work sites is a factor other than sex:

Example 17: CP [complaining party], a school teacher, alleges that she is paid less than a male teacher who performs equal work in the same school district. The school district asserts that their compensation cannot be compared under the EPA because they work in different schools. The investigation determines that the school district is a single establishment because hiring, assignments of teachers, and compensation rates are determined centrally, and personnel are sometimes reassigned to different schools. Therefore, the compensation rates of the two teachers can be compared.

Example 18: CP, a female, works for a computer services firm that has offices in numerous cities. She alleges that she is paid less than a male who performs the same job in a different branch office. The employer claims that the separate offices are separate establishments and that, therefore, the compensation rates in each office cannot be compared. The evidence shows that while the headquarters of the company exercises some control over the branches, the specific salaries offered to job applicants are determined by supervisors in each local office. The local offices therefore constitute separate establishments, and CP's salary cannot be compared to the salary of an employee in a different office.

Several of the examples explain what constitutes equal work:

Example 21: CP, a hotel clerk, alleges that she is paid less than a male who performs substantially equal work. CP only has a high school degree, while the male comparator has a college degree. However, performance of the two jobs requires the same education, ability, experience, and training. A college degree is not needed to perform either job. Therefore, the skill required to perform the two jobs is substantially equal.

Example 22: CP, a male, works for a telephone company diagnosing problems with customer lines. He alleges that he is paid less than his female predecessor in violation of the EPA. The evidence shows that the job of CP's predecessor required expert training in diagnostic techniques and a high degree of specialized computer skill. The respondent switched to a newer, more advanced computer testing system after CP's predecessor resigned. The job now requires much less overall skill, including computer skill, than was required when CP's predecessor held it. Therefore, the skill is not equal, and no violation is found.

Example 24: CP alleges that she and other female grocery store workers are paid less than males who perform substantially equal work. Most of the tasks performed by the males and females are the same. In addition to those same tasks, the male employees place heavy items on the store shelves, while the female employees arrange displays of small items. The extra task performed by the men requires greater physical effort, but the extra task performed by the women is more repetitive, making the amount of effort required to perform the jobs substantially the same.

Example 30: CP, a bank teller, alleges that she is paid less than a male bank teller who performs the same job. The respondent claims that the compensation disparity is justified because wages are paid under a merit system. That alleged merit system is unstructured, based on a manager's "gut feeling." Furthermore, the respondent offers no objective evidence to support CP's lower compensation under its merit system. In this case, the merit system is not bona fide and does not justify the compensation disparity.

Example 32: CP, a high school teacher, alleges that she is paid $5,000 less than a male teacher who performs substantially equal work. The respondent states that the compensation difference is due to its seniority system and that the male teacher has greater seniority. The investigation reveals that the male has worked at the school three years longer than CP, which would only justify a $3,000 difference in pay under the seniority system. An EPA violation is found.