Monday, May 11, 2020

USWNT discrimination case (mostly) dismissed

Things have been a little hectic lately, so I'm sorry it took me so long to get to this. 10 days ago, the district court mostly dismissed U.S. women's soccer team's equal pay act and Title VII lawsuit. You can read the opinion in Alex Morgan, et. v. United States Soccer Federation, Inc. here.  

I use this case as my go-to discussion topic for Equal Pay Act claims in my employment law classes. Ya know what argument no one has ever made in any of my classes? That the men's and women's teams actually get paid the same rate. And yet, per the opinion:
It is undisputed that, during the class period, the WNT played 111 total games ad made $24.5 million overall averaging $220,747 per game. By contrast, the MNT played 87 total games and made $18.5 overall, averaging $212,639 per game. 
Thus, the shocking conclusion was that the women actually made more on a per game basis. This allowed the Court to effectively duck the most contentious issues - do the USWNT and USMNT perform substantially equal work? If so, does a legitimate factor other than sex account for the difference? 

You can read criticism of this conclusion at Volokh here. The gist of which is that the women only earned equal (actually, slightly higher) compensation by winning a lot more games than the men, triggering myriad bonuses. In the context of an Equal Pay Act claim, I'm not sure this criticism is compelling - the EPA framework requires a showing of substantially equal work for lower pay. If the argument is that the women do much better work (i.e. win more games) and only make a little bit more . . . I mean, that just doesn't really align with the framework. 
Now, it could make a decent Title VII claim, and the women did have a Title VII claim too. The Court basically ignored the Title VII discriminatory compensation issue though, with a (paraphrase) "see EPA analysis above." Ultimately, the USWNT has a few surviving claims under Title VII based on:
(1) travel conditions (specifically, charter flights and hotel accommodations), and (2) personnel and support services (specifically, medical and training support). 
Frankly, the USWNT may have preferred to have the suit dismissed in its entirety to make it easier to appeal now. Anyway, I'm sure this issue is not going away any time soon, but we finally have a ruling from the trial court on the main claims.  

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