Sometimes it takes a big public win to prove the injustice in equal pay. Such is the case for the U.S. women’s soccer team who just won back-to-back World Cup championships.

In 2016, the New Yorker Magazine wrote an article, “Equal Pay for Equal Play: The Case for the Women’s Soccer Team,” after five team members filed a charge of discrimination with the Equal Employment Opportunity Commission.

Earlier this year, before the team’s fourth World Cup win, all 28 members of the U.S. women’s team filed a gender discrimination lawsuit against the U.S. Soccer Federation accusing the federation of “institutional gender discrimination” and seeking back pay and damages.

“Despite the fact that these female and male players are called upon to perform the same job responsibilities on their teams and participate in international competitions for their single common employer, the USSF, the female players have been consistently paid less money than their male counterparts,” according to the lawsuit. “This is true even though their performance has been superior to that of the male players — with the female players, in contrast to male players, becoming world champions.”

The U.S. women’s team has won four out of eight World Cup finals since the women’s competition originated in 1991 and four of the six Olympic gold medals awarded since 1996.

On the other hand, the men’s national team has never won a World Cup, and the last Olympic medal won by the men’s national team was in 1904.

“The USSF discriminates against plaintiffs, and the class that they seek to represent, by paying them less than members of the [men’s national team] for substantially equal work and by denying them at least equal playing, training, and travel conditions; equal promotion of their games; equal support and development for their games; and other terms and conditions of employment equal to the” men, according to the lawsuit.

The women claim, for example, that when playing games called “friendlies,” a 20-game-winning, top tier women’s national team player would earn only 38% of the compensation of a similarly situated male player.

While the men didn’t qualify for the World Cup in 2018, the payment structure for playing and winning the championship also shows disparities.

The suit alleges from March 19, 2013, through Dec. 31, 2016, women’s national team players earned only $15,000 total for being asked to try out for the World Cup team and for making the team roster. The men’s players, on the other hand, earned $55,000 each for making their team’s roster in 2014 and could have earned $68,750 each for making their team’s roster in 2018, according to the lawsuit.

They point out that the pay is so skewed that it resulted in men earning performance bonuses of $5.375 million for losing Round 16 in 2014, while the women earned only $1.725 million in performance bonuses for winning the entire World Cup in 2015.

To dispel the myth that men earn more revenue, justifying the pay gap, the women allege that women’s team earned more in profit and/or revenue than the men’s team did.

The issue, however, is not black and white. The women negotiated a collective bargaining agreement in 2017 asking for different benefits than the men negotiated, but the women allege in their suit that their requests for equality in the negotiations were rejected.

Title VII and the Equal Pay Act provide for different causes of action and analysis, and sometimes the analysis comes down to the definition of “equal work.”

While we frequently hear the narrative that women historically earn less than men in society generally, this argument is also skewed by the reality that women traditionally choose careers that pay less than men, such as nursing or education.

The important analysis is to truly look at individuals performing the same job at the same level of performance.

Employers should regularly review their pay practices to make sure women and men are paid fairly and consistently for similar work with similar levels of performance.

Karen Michael is an attorney with Richmond-based KarenMichael PLC. She can be reached at kmichael@karenmichaelconsulting.com.

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