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    The Lawletter Blog

    EMPLOYMENT LAW: Recent Equal Pay Developments

    Posted by Anne B. Hemenway on Wed, Jun 1, 2016 @ 09:06 AM

    The Lawletter Vol 41 No 5

    Anne Hemenway, Senior Attorney, National Legal Research Group

         Under the Equal Pay Act, 29 U.S.C. § 206(d), no covered employer shall discriminate on the basis of sex by paying wages to employees at a rate less than the rate paid to employees of the opposite sex for equal work. In Hesterberg v. Tyson Foods, Inc., Case No. 5:14-CV-05382, 2016 WL 483017 (W.D. Ark. signed Feb. 5, 2016), the court held that to establish a prima facie claim for damages under the Equal Pay Act, the complaining party must show by a preponderance of the evidence that "(1) she was paid less than a male employed in the same establishment, (2) for work on jobs requiring skill, effort and responsibility, (3) which were performed under similar working conditions." Id. at *5. The employer will be entitled to summary judgment and dismissal of the equal pay suit if it can show that any pay differential between the plaintiff and her male counterpart is explained by a statutory defense such as a merit system or some excuse other than sex.

         The plaintiff in the case alleged that her immediate supervisor, who was male, had total discretionary authority over the amount of bonuses paid and percentage raises given to her and her male counterparts and that his decisions regarding these forms of compensation were largely subjective. She argued that her comparatively lower bonuses and percentage raises in the years in question were the result of the males' being treated more favorably. Recognizing that employers can "easily circumvent the Equal Pay Act by relying substantially on bonuses to compensate employees," id. at *6, the court denied the employer's motion for summary judgment. Genuine issues of material fact existed as to whether the employer's merit system, on which the employer relied to justify the pay differential in this case, had been implemented at the company in a truly nondiscriminatory way.

          In another case, five members of the U.S. Women's Soccer Team filed with the Equal Employment Opportunity Commission a charge of discrimination against the U.S. Soccer Federation ("Federation"), alleging violations of the Equal Pay Act. The charge stated that women soccer players are paid substantially less than their male counterparts are paid—in some instances as much as 62% less—even though the women's team generated significantly more revenue in 2015 for the Federation than did the men's team. Regarding the 2015 World Cup competition, the complaint alleged that the men's team was paid $9 million even though it lost in the Round of 16, while the women's team was paid only $2 million despite winning the entire tournament. The pay disparity exists even though the teams play the same game, under similar conditions, and requiring the same skill. Further, according to the complaint, for 2017 (April 1, 2016 to March 31, 2017), the Federation projects a net profit from the women's team of approximately $5 million, while projecting a net loss of nearly $1 million from the men's team. EEOC Charge app. A, filed by Hope Solo, Carli Lloyd, Megan Rapinoe, Rebecca Sauerbrunn, and Alex Morgan, http://big.assets.huffingtonpost.com/EEOCCharge.pdf.

         The Federation's president, Sunil Gulati, reportedly stated that over the course of a four-year World Cup cycle, the men's team generates more revenue than does the women's team (as much as double, according to a Federation spokesperson) and that the Federation should take these revenue-generation numbers into account when it bargains with the women's and men's teams.

          Although equal pay lawsuits have arisen primarily in the office workplace, the claims raised by the women athletes share some of the same issues and would presumably be analyzed no differently under the federal law. As some analysts have noted, however, a wrinkle in the claims brought by these women athletes is that the U.S. women's soccer team is unionized, and there is thus a need to reconcile how, if at all, the National Labor Relations Act coincides with the Equal Pay Act. The allegations in the charge of discrimination come in the midst of an already complex labor dispute between the two parties, with the Federation filing a complaint in Illinois federal court seeking declaratory relief against the women's team for anticipated breach of the parties' collective bargaining agreement. Stacie B. Collier, Evening the Score: A New Wave of Equal Pay Act Claims, Law360, New York (May 2, 2016, 11:40 AM ET), http://www.law360.com/articles/788722?sidebar=true.

    Topics: employment law, Anne Hemenway, bonuses, Lawletter Vol 41 No 5, 29 U.S.C. § 206, equal pay, Equal Pay Act

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