By Tyler O’Hara
In April 2016, five members of the United States Women’s National Soccer Team (WNT) filed a complaint with the Equal Employment Opportunity Commission (EEOC) accusing the United States Soccer Federation of wage discrimination. Alleging the Federation was violating the Equal Pay Act, the WNT claims that they make less than their male counterparts despite being more successful.[1] While the WNT cites comparative total revenue between themselves and the U.S. Men’s National Team from 2016 and 2017, the U.S. Soccer Federation (USSF) maintains this short time frame does not allow for the whole revenue picture since it includes a women’s World Cup year and not a men’s. However, in addition to determining the financial reality of the USSF, the EEOC must decide several important issues regarding its operations.
EEOC Process
Once a formal complaint has been filed, the EEOC has 180 days to finish its investigation, barring any delays or a dismissal for procedural reasons.[2] Should the agency dismiss the complaint, the WNT would then have 30 days to appeal the ruling. However, if the investigation takes more than 180 days, the WNT can either wait for the investigation to finish, request a hearing, or file a lawsuit in federal district court.[3] Once the Agency Investigator finishes gathering the necessary evidence, the agency will give the WNT two choices: (1) request a hearing before an EEOC Administrative Judge; or (2) ask the agency to decide whether or not the discrimination occurred.
The Equal Pay Act
As previously stated, the WNT complaint stems from the Equal Pay Act of 1963 (EPA). The EPA prohibits wage discrimination by employers against employees on the basis of gender for equal work on jobs in which performance requires equal skill, effort, and responsibility, and which are performed under similar working conditions. U.S.C. § 206(d)(1). The U.S. Supreme Court articulated that to establish a prima facie violation of the EPA, a complainant must show that she or he received less pay than an individual of the opposite sex for equal work, requiring equal skill, effort and responsibility, under similar working conditions within the same establishment. Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974); Sheppard v. Equal Employment Opportunity Commission, EEOC Appeal No. 01A02919 (September 12, 2000); see also 29 C.F.R. § 1620.14(a). When determining whether the work is “equal,” the principle of nondiscrimination requires that individuals be considered on the basis of individual capacities and not on the basis of any characteristics generally attributed to the group. (emphasis added) 19 CFR § 1604(a)(1)(ii). “The equal work standard does not require that compared jobs be identical, only that they be substantially equal.” CFR § 1620.13(a). The EPA does not apply if the amount or degree of skill required to perform one job is substantially greater than that of another job, with skill “measured in terms of the performance requirements of the job.” CFR 1620.15(a).[4]
To articulate a possible claim by the WNT under the EPA: “Alex Morgan, who is a woman, receives less pay from her employer, USSF, than Clint Dempsey, who is a man, despite the fact that their substantially equal jobs of playing professional soccer requires equal skill, effort and responsibility under similar working conditions.” At first glance, this seems to imply that if Alex Morgan and Clint Dempsey were to switch jobs (switch teams), the difference should be almost negligible. With that being unlikely, the first of several difficult questions facing the EEOC then becomes: “What are the performance requirements of playing U.S. professional soccer?”
Discussion
Ultimately, this question regarding performance requirements may take a back seat to an even bigger issue, as USSF faces a potential challenge to the entire organizational structure of its system. While the EPA prevents wage discrimination, Title VII of the Civil Rights Act prevents discrimination based on gender as a whole.[5] A wage classification system which designates certain jobs as “male” or “female” frequently provides lower rates for the “female” jobs and indicates a pay practice of discrimination based on sex. CFR § 1620.13(b). Subsequently, it is an unlawful employment practice to label a job as either “male” or “female” under Title VII, unless “sex is a bona fide occupational qualification for the job.” Id (emphasis added). Therefore, unless one’s gender is a bona fide occupational qualification for playing professional soccer, the USSF seems to be in violation of Title VII simply by separating their teams into “men’s” and “women’s.” Even ignoring this literal translation, Title VII expressly prohibits employment practices that “segregate, or classify his employees or applicants . . . in any way which would deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(2) [Section 703]. Transitively, by either depriving the female soccer players economic opportunities or simply labeling their job as “women’s,” USSF is clearly violating Title VII when it segregates its employees by sex into “men’s” and “women’s” teams, then deprives the women’s team of the same opportunities the men receive (less pay, worse conditions, smaller tournaments, etc.). Regardless, any situation “where the jurisdictional prerequisites of both the EPA and Title VII of the Civil Rights Act . . . are satisfied, any violation of the Equal Pay Act is also a violation of Title VII.” CFR § 1620.27(a).
If a court found in favor of the WNT by determining the USSF to be in violation of the EPA, they would almost certainly find USSF to be in violation of Title VII as well. Since remedies are very likely allowed under both, this line of inquiry leads to a second significant question: Why would the WNT only file an EEOC wage discrimination complaint, and not an EEOC Title VII discrimination complaint?
Here, it is in the context of professional athletics that the phrase “working conditions” must be understood, for where Congress has used technical words or terms of art, “it [is] proper to explain them by reference to the art or science to which they [are] appropriate.” Greenleaf v. Goodrich, 101 U.S. 278, 284 (1880). This principle is particularly useful where the legislative history reveals that Congress incorporated words having a special meaning within the field as to overcome objections by different industry representatives. Id. Accordingly, Congress included the “sex as a bona fide occupational qualification” exception in Title VII, which has been construed by the EEOC to allow unequal pay to job situations that require “specific physical characteristics necessarily possessed by only one sex.” Thus, the exception would apply when necessary “for the purpose of authenticity or genuineness” in the employment of actors or actresses, fashion models, and the like. Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971).
Additionally, the EEOC has prescribed that unequal pay is allowed when such payment is made pursuant to a merit system, a system that measures earnings by quantity or quality of production, or a differential based on any other factor other than sex. U.S.C. § 206(d)(1)(ii-iv). [6] However, the exception should be interpreted narrowly, proscribing the (1) refusal to hire a women because of her sex based on assumptions of comparative female employment characteristics (i.e. assuming that women have a higher turnover rate than men; (2) the refusal to hire based on stereotypical characterizations (i.e. assuming men are less capable of assembling intricate equipment); or (3) the refusal to hire an individual because of preferences by coworkers, the employer, clients or customers. 19 CFR § 1604(a)(1)(i-iii)[7]. Therefore based on the structure of the current USSF, which classifies men and women into two separate teams, one of two things is likely to hold true:
(1) USSF pays the WNT lower wages than the MNT for equal work based on no legally significant difference other than sex. However, a finding of an EPA violation in this instance is a per se violation of Title VII. A Title VII violation necessitates the conclusion that the USSF has no bona fide occupational qualification exception for segregating men and women into separate teams in the first place. If everything is the same except for the sex of the players, and there is no exception, then the whole United States soccer system is seemingly discriminatory.
Or;
(2) USSF has always operated under the generally accepted notion that professional athletics is an industry where “specific characteristics necessarily possessed only by one sex” are significant and therefore falls under Title VIIs bona fide occupational qualification exemption. A finding of the exception under Title VII would be extremely detrimental to the WNT EPA complaint, since it would acknowledge the substantial genetic differences between the genders is the primary factor in disproportionate pay.
Conclusion
These are extremely difficult questions for the EEOC, with answers likely to cause significant change to the future of U.S. soccer. As soccer continues to grow in the United States, the management of the country’s national teams will only continue to come under further scrutiny and the EEOC should do its best to find solutions that will succeed for the long term. The Federation Interationale de Football Association (FIFA), the governing body of association soccer, has come under heavy scrutiny in recent years for potentially discriminatory practices toward women. Perhaps the solution relies in the USSF and WNT working together to confront these practices, rather than fighting amongst one another.
Tyler O’Hara is recent graduate of Carolina Law and received his J.D. in May 2016.
[1] The complaining players are Alex Morgan, Hope Solo, Carli Llyod, Megan Rapinoe and Becky Sauerbrunn.
[2] An investigation can be extended by an additional 180 days if (1) new events are added to the complaint; or (2) a new complaint is filed that must be added to the original complaint for investigation. U.S. EEOC available at: https://www.eeoc.gov/federal/fed_employees/filing_complaint.cfm
[3] Administrative and Procedures Act claim.
[4] CFR § 1620.15 defines jobs requiring equal skill in performance: (a) In general. The jobs to which the equal pay standard is applicable are jobs requiring equal skill in their performance. Where the amount or degree of skill required to perform one job is substantially greater than that required to perform another job, the equal pay standard cannot apply even though the jobs may be equal in all other respects. Skill includes consideration of such factors as experience, training, education, and ability. It must be measured in terms of the performance requirements of the job. If an employee must have essentially the same skill in order to perform either of two jobs, the jobs will qualify under the EPA as jobs the performance of which requires equal skill, even though the employee in one of the jobs may not exercise the required skill as frequently or during as much of his or her working time as the employee in the other job. Possession of a skill not needed to meet the requirements of the job cannot be considered in making a determination regarding equality of skill. The efficiency of the employee’s performance in the job is not in itself an appropriate factor to consider in evaluating skill. (emphasis added).
[5] 42 U.S.C. § 2000e-2(1) [Section 703] makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” Additionally, 42 U.S.C. § 2000e-2(2) [Section 703] makes it unlawful “to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s. . . sex . . . .”
[6] The Act establishes four exceptions – three specific and one catch-all provision — where different payment to employees of opposite sexes “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.” Again, while the Act is silent on this question, its structure and history also suggest that once the Secretary has carried his burden of showing that the employer pays workers of one sex more than workers of the opposite sex for equal work, the burden shifts to the employer to show that the differential is justified under one of the Act’s four exceptions. All of the many lower courts that have considered this question have so held, and this view is consistent with the general rule that the application of an exemption under the Fair Labor Standards Act is a matter of affirmative defense on which the employer has the burden of proof. Corning Glass Works v. Brennan, 417 U.S. 188, 197 (1974).
[7] Further interpreting its guidelines, especially § 1604.1(a)(3)(c) relating to weight-lifting limits, the EEOC has, on three separate occasions, indicated that this guideline is not an approval of general weight-limits by sex in any state or even in a particular industry, but that “consideration must be given on a highly individualized basis.” The guideline views such broad limitation as a violation of its prohibition against the use of broad class stereotypes, including those where sex is the stereotyping factor. In Case Nos. CH 7-3-183, et al., August 31, 1967, the EEOC voided a 35-pound weight limit imposed by one employer on all women employees holding that “individuals [must] be considered on the basis of individual capacities and not on the basis of any characteristics generally attributed to the group (emphasis added).” In Case Nos. AU 68-10-209E, et al., July 24, 1968, the EEOC determined that an agreement between an employer and union which limited females to jobs involving lifting weights of less than 55 pounds “was based on a generic classification which was arbitrary and discriminatory and based on a ‘stereotyped characterization of the sexes,’ rather than consideration of individual capacities as to physical strength and particular job requirements.” Bowe v. Colgate-Palmolive Co., 416 F.2d 711.
