U.S. Women's National Soccer Team Achieves Equal Pay & More News Here

Last week, the United States Soccer Federation introduced that the United States Women’s National Team Players Association and the United States National Soccer Team Players Association have agreed to phrases of historic collective bargaining agreements (CBAs) that obtain equal pay between the United States Women’s National Team (USWNT) and United States Men’s National Team (USMNT). 

The announcement instantly prompted dozens of media shops to cheer the long-fought-for settlement, which was a results of the settlement of practically eight years of vigorous litigation.  And we, too, cheer the success of the USWNT and their counsel in lastly reaching equal footing with their male counterparts.  The settlement itself and the years-long litigation course of function an vital reminder of the ability and performance of the Equal Pay Act of 1963, in addition to its shortcomings.  The very public nature of the USWNT equal pay litigation course of makes it a wonderful car to clarify the historical past of and potential claims below the Equal Pay Act to potential litigants.

Equal Pay Act of 1963: History and Recent Attempts to Amend

The Equal Pay Act of 1963 (“EPA”) amended the Fair Labor Standards Act of 1938 to abolish wage disparity primarily based on intercourse.  It gives that an employer could not pay decrease wages to workers of 1 intercourse than it pays to workers of one other intercourse when these workers are inside the similar institution performing equal work at jobs that require equal talent, effort, and duty, and which might be carried out below comparable working circumstances.  There isn’t any employer intent requirement, which implies that the worker doesn’t should exhibit that the employer had an intention to pay disparate wages primarily based on intercourse.  It is sufficient to exhibit {that a} pay disparity exists between sexes.

Once an worker demonstrates that the EPA protections could apply to her, employers could make use of any of 4 affirmative defenses: the employer could try to exhibit that wages are literally set pursuant to (i) a seniority system; (ii) a benefit system; (iii) a system which measures earnings by amount or high quality of manufacturing; or (iv) every other issue apart from intercourse.  Parallel claims will be introduced below Title VII of the Civil Rights Act of 1964, and the identical defenses apply.

Since 1963, the EPA and Title VII have been amended a number of occasions with vital implications for workers.  The Equal Pay Act was amended in 1972 to develop protections to incorporate white-collar government, skilled, and administrative jobs, which have been exempted below the unique legislation.  In 2009, the Lilly Ledbetter Fair Pay Act was enacted, amending the Civil Rights Act and different discrimination statutes to supply that the statute of limitations for wage discrimination claims restarts each time an unequal paycheck is issued.  (That was already the rule below the EPA.)

There have been a number of unsuccessful makes an attempt to amend the Equal Pay Act additional.  The Paycheck Fairness Act was first launched in 1997 and has been reintroduced many occasions, most not too long ago in 2021.  If handed, the Paycheck Fairness Act would revise the treatments, enforcement scheme, and exceptions to the EPA.  Most crucially, maybe, the Paycheck Fairness Act would restrict an employer’s protection {that a} pay differential relies on “any other factor other than sex” to require as an alternative that an employer exhibit that the pay differential relies on bona fide job-related elements.  See H.R.7, 117th Congress (2021-2022).  The Act handed the House of Representatives on April 15, 2021, however has not progressed additional.

Nearly Sixty Years Later: Sex-Based Wage Gap Remains

Despite practically sixty years of EPA protections, the sex-based wage hole stays.  The United States Census Bureau reported not too long ago that nationwide median earnings for full-time, year-round civilians was $54,544 for males in comparison with $43,394 for ladies.  This wage hole is current each inside and throughout occupations. 

In 2020, girls earned roughly 84 cents to each greenback earned by males; it will take an additional 42 days of labor for ladies to earn what males did in 2020.  The wage hole is much more pronounced for ladies of colour: in 2020, Latinas have been sometimes paid simply 57 cents for each greenback paid to white, non-Hispanic males; Black girls have been sometimes paid simply 64 cents for each greenback paid to white, non-Hispanic males; and Asian girls (which, on this research, didn’t embrace Native Hawaiian and Pacific Islander girls, who are usually among the many girls with decrease earnings within the Asian American and Pacific Islander group) have been sometimes paid 98 cents for each greenback paid to white, non-Hispanic males.  Data from 2019 point out that Native American girls have been sometimes paid simply 60 cents for each greenback paid to white, non-Hispanic males.

Despite many years of litigation introduced by the federal government and workers searching for equal pay below the Equal Pay Act the sex-based wage hole stays.

Equal Pay in Sports

The U.S. Women’s National Team’s latest success in lastly reaching pay parity with their male counterparts is a monumental achievement.  It can also be a fruits of the concerted efforts of a whole lot of athletes taking part in activism, public stress, and litigation over a interval of many years. 

For instance: Billie Jean King, some of the celebrated tennis gamers in historical past, dominated the world of tennis for greater than 20 years.  Her efforts turned girls’s tennis into a significant skilled sport.  King was outraged by the disparity between males’s and girls’s prizes at main tournaments, and he or she spent many years campaigning tirelessly for parity for ladies in sports activities, together with advocating for the passage of Title IX (prohibiting intercourse discrimination in any schooling program receiving federal monetary help).  In 1973, she beat Bobby Riggs (self-proclaimed male chauvinist who had boasted that ladies have been inferior) at tennis within the “Battle of the Sexes,” a match witnessed by over 50 million viewers worldwide.  Soon after King’s victory, the U.S. Open started awarding equal prizes to women and men.

There are far too many examples like this the place girls tirelessly advocate for equal pay in sports activities and solely look like granted parity as soon as they exhibit that they far outperform their male counterparts.  The USWNT success is simply the newest in a protracted line of those examples.

USWNT Equal Pay Litigation

In the FIFA (Federation Internationale de Football Association) World Cup’s greater than 90 years of contests, the U.S. males’s crew has by no means received.  Meanwhile, the USWNT has taken the title 4 occasions since 1991 (the yr of their cup’s inception), together with the final two in 2019 and 2015.  The USWNT have additionally received 4 Olympic championships.  Further, the ladies’s crew has often performed extra video games and spent extra time in camp annually than the boys’s crew, which means the ladies work extra and nonetheless receives a commission much less.  In spite of many years of world exceptionalism within the face of the mediocrity of the boys’s crew’s outcomes, the USWNT has been constantly paid lower than USMNT. 

This argument – that the ladies outperform the boys and subsequently are much more deserving of equal pay – is a robust one, notably within the court docket of public opinion.  But, legally, it doesn’t matter whether or not the ladies outperform the boys: they want solely exhibit that they carry out equal work for much less pay.  They have completed so.

The USWNT equal pay dispute stretches again to 2016 when 5 girls gamers (Alex Morgan, Hope Solo, Carli Lloyd, Megan Rapinoe, and Becky Sauerbrunn) filed a criticism with the Equal Employment Opportunity Commission (“EEOC”) accusing the U.S. Soccer Federation of systematically paying girls gamers lower than their male counterparts in violation of Title VII and the Equal Pay Act.  This swimsuit was adopted by a second in 2019 filed by all 28 gamers on the U.S. Women’s National Soccer Team searching for practically $67 million for Title VII and Equal Pay Act claims.

Years of bitter litigation ensued.  At one level, counsel for the U.S. Soccer Federation, Seyfarth Shaw, argued that the ladies’s claims should fail as a result of their work shouldn’t be equal to the work of the boys’s nationwide crew, claiming “It is indisputable science.”  Following the general public outcry over this comment, Seyfarth Shaw withdrew from illustration and the Federation’s former president Carlos Cordeiro stepped down.  The function of public opinion on this years-long litigation shouldn’t be underemphasized: the USWNT gamers and their followers rallied across the girls’s case and media usually reported on developments.  

Unfortunately for the USWNT, District Judge R. Gary Klausner dismissed a lot of the swimsuit in May 2020 when he discovered on abstract judgment that the ladies gamers made extra in complete compensation than their male counterparts over the related interval.  However, this ruling ignored the truth that the ladies gamers weren’t paid at an equal charge, which is what the legislation requires, and that they constantly obtained decrease bonuses for profitable video games than their male counterparts, and needed to constantly outperform their male counterparts so as to earn roughly as a lot as they did. 

The USWNT gamers appealed to the Ninth Circuit.  The U.S. males’s crew union, the U.S. National Soccer Team Players Association, backed the USWNT as amici within the litigation, and you will need to acknowledge the worth of the boys’s crew’s assist. 

USWNT Settlement and Collective Bargaining Agreement

Just weeks earlier than argument within the attraction was scheduled, the events reached a settlement pending approval of a brand new collective bargaining settlement.  $22 million of the $24 million settlement will go to the gamers behind the swimsuit, and $2 million will go right into a fund for USWNT gamers’ post-career targets and charitable efforts. 

Last week, the events agreed on the brand new CBA: the landmark deal runs by way of 2028 and equalizes World Cup prize cash throughout the USWNT and USMNT from FIFA, which had been a giant sticking level in negotiations.  Beginning within the 2022 and 2023 World Cups, the prize cash received by the 2 U.S. groups will probably be pooled and (after U.S. Soccer Federation claims its 10 %) break up between them equally.

Beyond the World Cup, which is simply performed each 4 years, the USWNT and USMNT will probably be paid on the similar charge for recreation appearances and match victories.  The settlement additionally addresses equalizing recreation bonuses and new business revenue-sharing agreements. 

This settlement is monumental given the years of athletes’ and litigants’ advocacy pushing for equal pay for ladies in sports activities, however it’s also monumental as an indication of the ability of collective bargaining when backed by robust authorized arguments for parity, the load of public opinion and outcry, the assist of affected events (the USMNT), the backing of the EEOC, and chronic and zealous advocacy in litigation. 

Equal Pay Act in 2022

In 2022, the intercourse pay hole persists.  But the Equal Pay Act and Title VII present vital and highly effective avenues for workers to hunt equal pay, as demonstrated by the USWNT’s latest and really public success. 

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