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Equal pay for equal work: Can you sue for pay discrimination?

Alex Morgan was among the players from the U.S. women's soccer team who sued the U.S. Soccer Federation in 2019, claimin
Alex Morgan was among the players from the U.S. women’s soccer team who sued the U.S. Soccer Federation in 2019, claiming that USSF compensated the men’s national team at a higher, discriminatory rate. (Associated Press)

An employer is required, under the Equal Pay Act, to provide men and women who work in the same workplace equal pay for equal work. Nonetheless, you have all heard the statistics before: Men earn more on average than women.

A 2020 study found that women earn, on average, 79 cents for every $1 men earn.

The U.S. Women’s National Soccer Team’s December partial settlement of certain working conditions such as charter flight and hotel accommodations of its discrimination lawsuit against the U.S. Soccer Federation generated nationwide interest in pay equity.

Several players from the women’s team sued the U.S. Soccer Federation in 2019, claiming that USSF compensated the men’s national team at a higher, discriminatory rate.

The recent settlement of working conditions does not resolve the women’s unequal pay claim, which was dismissed in May when a judge granted summary judgment to the employer, largely due to the differences in the collective bargaining agreements between the women’s team and the men’s team.

Now that the working conditions claim has been resolved, the players apparently will move forward with their plans to appeal the court’s May ruling on their unequal pay claim.

Both the men’s and women’s teams have collective bargaining agreements that govern compensation of their players based on the success of the teams.

When the Washington Post calculated the pay under both agreements for a 20-game winning streak, it found that a player on the women’s team would earn $28,333 less, or roughly 89 percent, of a player on the men’s team.

Is this sufficient proof to show wage discrimination?

Here’s a brief look at the law.

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The federal Equal Pay Act prohibits gender-based pay gaps among employees who work substantially the same jobs with similar working conditions.

Iowa has a similar statute that prohibits pay discrimination for all protected classes.

To make a case for pay discrimination, a plaintiff must show his or her work is equal or substantially similar to that of a higher paid employee of the opposite gender. This is often the most difficult element for a plaintiff to prove.

In a recent New York lawsuit, for example, a group of female crossing guards filed a lawsuit against the New York Police Department for pay discrimination, claiming they were paid less than predominately-male traffic enforcement officers.

The court dismissed the case. Even though both jobs involved directing the flow of pedestrians and traffic, the court observed that the traffic enforcement officers were full-time employees with more demanding schedules, greater responsibilities and significantly more training.

As this example shows, the same-job analysis is very fact specific and highlights the importance of having written job descriptions for all positions.

In addition, both the federal and Iowa wage discrimination statutes allow for pay disparities based on any of these:

A seniority system

A merit system

A system which measures earnings by the quantity or quality of production

Any other factor other than gender.

The fourth exception in this list is a catchall defense that attempts to account for all of the legitimate non-discriminatory reasons that an employer may have for paying employees differently.

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Previous salary is one such consideration. Many employers believe that if a starting salary does not account for the applicant’s prior salary, they will risk losing the applicant.

Whether this fear justifies a pay disparity is a hotly litigated issue, and some have argued that paying employees based on past earnings only perpetuates systematic gender pay gaps.

Nonetheless, courts generally recognize the previous salary as a legitimate factor other than gender to justify a wage disparity.

Collective bargaining agreements also can factor into the equal pay analysis. Such contracts may create fundamentally different pay structures and working conditions for otherwise similarly situated employees.

In dismissing the players’ claims, the judge concluded that differences in payment structure were the result of choices made by the women’s player and their union and not discrimination by the soccer Federation.

While soccer players on both the men’s and women’s national teams are required to maintain competitive soccer skills and physical conditioning and to attend training camps, practices and scrimmages, their unions have negotiated different compensation arrangements.

For example, the players on the women’s team earn guaranteed salaries and benefits under their collective bargaining agreement, while the men are paid strictly on a pay-for-play match appearance basis.

The men have negotiated higher bonuses, while the women receive guaranteed salaries — but their bonuses are much smaller.

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The bottom line: Differences in pay are permitted between men and women but must be based on reasons other than gender.

A bona fide seniority system or merit pay system, for example, can justify any differences, along with any other factors or reasons not based on sex.

Wilford H. Stone is a lawyer with Lynch Dallas in Cedar Rapids.

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