Lessons for Employers: The Equal Pay Lawsuit by U.S. Women’s Soccer Team

SoccerWhen employment law news hits the front page of USA Today, it means your employees will be wondering if the same type of illegalities are going on in their workplace, too.

That happened last week when five members of the U.S. Women’s National Soccer Team filed an EEOC complaint demanding to be paid the same as members of the U.S. Men’s National Team. Their allegation: The U.S. Soccer Federation discriminates against them on the basis of sex in violation of the Equal Pay Act (EPA).

The women seem to have a strong case. Last year, the women say, they generated nearly $20 million more in revenue for U.S. Soccer than the men did. Yet the women were paid far less.

“They are talking about performing substantially equal work. There is no significant difference between the soccer games that I can see,” Ida Castro, a former EEOC chair, told USA Today.

Is your organization vulnerable to a similar claim? The EEOC has listed pay discrimination based on sex as one of its main enforcement priorities for 2016. Here’s what the law says:

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The Equal Pay Act makes it illegal to pay different wages on the basis of gender for “equal work on jobs the performance of which requires equal skill, effort, and responsibility and which are performed under similar working conditions.” The jobs don’t have to be identical, but they must be “substantially equal.” Focus on the job content, not titles, to decide whether jobs are substantially equal.

When doing a self-audit of your workplace (or determining if a worker has a valid equal-pay case), always look at the factors a court would examine:

SKILL. Look at the experience, ability, education and training required to perform a job, not what skills the individual employees have. Example: Two accounting jobs could be considered equal under the EPA even if one of the employees has a master’s degree in physics, since that degree isn’t required for the job.

EFFORT. Look at the physical or mental exertion needed to do the job. Suppose men and women work on an Equal payassembly line, but the employee at the end must perform his task and also lift the product into a box. That job requires more effort than the other jobs if the extra lifting is a substantial and regular part of the job. Net effect: You could pay that person more.

RESPONSIBILITY. Look at the level of accountability needed to do the work. If you’re assigning a minor difference in responsibility, it wouldn’t be a factor.

WORKING CONDITIONS. This encompasses two things: physical environment, like temperature or ventilation, and workplace hazards. A more dangerous or demanding environment allows for a higher pay grade.

Key point: You can also set “pay differentials” when they’re based on seniority, merit, quantity or quality of work or another business reason other than gender. Just be prepared to show a sound business reason why those differentials exist, and have good documentation of your reasons for employee pay levels.

Finally, it’s wise to keep good records as to why you’re paying each employee that amount. Records that describe the basis for payment of any wage differentials to employees of the opposite sex must be kept for at least two years. These records may include documentation relating to job evaluations; job descriptions; merit, incentive, or seniority systems; and collective bargaining agreements.

Three more tips:

  • Have accurate job descriptions to help justify pay-for-performance disputes.
  • Offer equal amounts of overtime. It’s illegal to favor a man because of a woman’s “family constraints” or pregnancy.
  • If you discover equal-pay problems, it’s illegal to lower the wages of either sex to equalize the pay.

 

Self-Audit: Equal Pay Act

Do your organization’s policies violate the Equal Pay Act? Answer the following questions:

  1. Does your wage classification system differentiate between “male” and “female” workers?
  2. Do you use “head of household” or “head of family” or “principal wage earner” classifications to justify higher pay or different benefits?
  3. Do you use a collective bargaining agreement to justify unequal rates?
  4. Do you provide different benefits based on gender?
  5. Does your pension or retirement plan differentiate on the basis of gender in optional retirement ages?

If you answered “Yes” to any of these questions, you may have a hard time defending an action brought against you under the Equal Pay Act.