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Oversights in Equal Pay (Part Two)

Published:  April 10, 2019

As Massachusetts employers are no doubt aware, changes to Massachusetts equal pay law became effective July 1, 2018. Very few people dispute that the law has a valid purpose. It isn’t particularly controversial to suggest that employees should not be paid less based on their gender. But as mentioned above, the real problem is that the new law has overlooked one concern that may come up again and again. Over the first few months under the new law, we’ve already seen a few high profile cases that have highlighted areas that the new law overlooks.

A new lawsuit shows a very similar situation, albeit not in Massachusetts and therefore not under the purview of the Massachusetts Equal Pay Act (MEPA). Recently, many members of the United States Women’s National Soccer Team sued the United States Soccer Federation for gender discrimination. Although there are other allegations of discrimination, the crux of the suit appears to be the related to pay. Specifically, that the US Women’s National Soccer Team (USWNT) is paid less than the US Men’s National Soccer Team (USMNT).

The USWNT argues that female and male players perform the same job and job responsibilities from a common employer. Additionally, the USWNT points to the fact that they have been markedly more successful than the USMNT; the USWNT having won three of the last seven World Cups. By comparison, the USMNT has never won a World Cup, and did not even qualify for the last World Cup.

In response, the US Soccer Federation has argued that the USWNT is less profitable than the USMNT. US Soccer Federation has pointed to the fact that the USMNT generates more revenue most years. However, the USWNT generates more revenue every few years. This is largely due to the four year cycle of World Cup qualifying. Each World Cup, the men’s and women’s, is played every four years. The men's and women's World Cups are staggered, so they occur in different years. In the years between each World Cup, the participating countries play a series of games to qualify for the upcoming World Cup tournament. Although the USWNT generated more revenue in 2016, the US Soccer Federation argues that 2016 was the year immediately following the USWNT’s World Cup championship, wherein they went on a prolonged tour that generated a spike in revenue.

Although this new lawsuit illustrates the potential problem under MEPA, it does not clarify the answer. Employers will continue to question whether pay disparity based on market demand will justify paying certain positions more than others, which may be considered comparable under the law. Until the law clarifies the question, employers will be left to make the difficult decision of predicting whether MEPA’s “similar skill” requirements mean “similar type of skill” or “similar degree of skill.”

If you have any questions about MEPA, or any other aspect of employment law, please contact the attorneys at Royal, P.C.

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