|Dena & Darin are paid the same wages|
in cat food for keeping the bed warm.
Last week, the House of Representatives passed the Paycheck Fairness Act, which would amend the Equal Pay Act. The bill stands almost no chance of passing the Senate and becoming law in the foreseeable future. The EPA applies to workers of the opposite sex performing the same job in the same establishment. An employer cannot pay such workers different wages unless it can show that the wage disparity is based on a factor other than sex. The Paycheck Fairness Act would, among other things, limit the circumstances under which an employer could justify a wage disparity between opposite-sex workers. An employer could no longer defend itself merely by showing that it did not discriminate against a worker because of sex and would have to show it was necessary to pay one worker more than another.
The pay gap between men and women has been highlighted recently by the lawsuit of women soccer players against the U.S. Soccer Federation. In my view, the EPA likely does not apply to such a claim of sex-based pay discrimination since the law is limited to employees who work in the same "establishment." Generally, an establishment refers to a distinct physical place of business. It can sometimes be applied more broadly. But in this case, that doesn't seem appropriate. Male and female soccer players don't compete alongside or against one another, and instead compete on separate single-sex teams. Comparing male and female soccer players is like comparing minor league and major league baseball players.
Women soccer players have also alleged sex discrimination under Title VII of the Civil Rights Act of 1964, which is not limited to employees within the same establishment. Unlike the EPA, however, a Title VII claim generally requires evidence of discriminatory intent, and that can be hard to muster. Still, the women soccer players' pay discrimination claim may largely be tried in the court of public opinion, so appearances of fairness are what may matter most, not whether women soccer players are actually victims of sex discrimination.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.