Should Hope Solo Be Paid Less Than Clint Dempsey? (Is This Employment Discrimination?)

Is she a less skilled soccer player? No.

Is she “irrational?” No. Heck no!

When the U.S. women’s (winning) soccer team attempted to negotiate their pay and asked for raises so that their salaries approached that of the players on the U.S. men’s team, the U.S. Soccer Federation (“USSF”) called them “irrational.”

“Irrational.” Now that’s a loaded word when applied to women. Might as well have called them hormonal, or maybe asked if they were PMS’ing.

Acting quite rationally, they just filed a wage discrimination claim with the EEOC alleging violations of the Equal Pay Act of 1963 (“EPA”) at 29 U.S.C. § 206(d).

The EEOC may have a field day with this one. While pay disparity has been a much-discussed issue for decades, equal pay is a key goal of the EEOC’s 2013-16 “Strategic Enforcement Plan” targeting pay practices that discriminate based on gender. What does that mean? It could mean no easy settlement for the USSF as the EEOC does what it does best — tries to make a very public example of discriminating employers.

What does a claim under the EPA require?

To make out a prima facie case under the EPA, the women’s team will have the the burden to show that the skill, effort, and responsibility required in their job performance are equal to those of a higher-paid male employee. The work does not need to be identical, just substantially similar, which is, as so many things are in the law, determined on a case by case basis.

Think this will be a problem for the women’s team? I think not. The women’s team beat Japan in last year’s World Cup final in what the WaPo considers the “most-watched soccer game in U.S. history.”  They won a Gold in the Olympics. Both teams are playing soccer, yet the women’s team is performing better than the men’s team.

Significantly, the success of the women’s team translates to dollars, too. We all love sports stats, right?  Let’s see:

Most watched women’s game: 2014, 25.4 million television viewers

Most watched men’s games: 2014, 18.2 and 16.5 million viewers (in both games)

And the women have been winning time after time!

In fact, the USSF had a $20 million increase in revenue in 2015 because of this victory and resulting national tour. Yet the men’s team captures $31.1 million of USSF expenses while the USSF spends $10.3 million on the women’s team.  Why is this important?  Because “wages” under the EPA includes all forms of payment and benefits, for example, the business class flights that the men take while the women fly coach.

While the USSF will have to show a legitimate non-discriminatory reason for the wage disparity, I think they will be hard-pressed to explain the enormity of this wage disparity when paying Olympic gold-winning female athletes a fraction of what they are paying the men’s soccer team.

We shall see.