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Top Female Players Accuse U.S. Soccer of Wage Discrimination (New York Times)

A compelling piece from Andrew Das of the New York Times.

 Female athlete wage discrimination

U.S. Soccer, the governing body for the sport in America, pays the members of the men’s and women’s national team who represent the United States in international competitions. The men’s team has historically been mediocre. The women’s team has been a quadrennial phenomenon, winning world and Olympic championships and bringing much of the country to a standstill in the process.

Citing this disparity, as well as rising revenue numbers, five players on the women’s team filed a federal complaint Wednesday, accusing U.S. Soccer of wage discrimination because, they said, they earned as little as 40 percent of what players on the United States men’s national team earned even as they marched to the team’s third world championship last year. The five players, some of the most prominent women’s athletes in sports, said they were shortchanged on everything from bonuses to appearance fees to per diems.

The case, submitted to the Equal Employment Opportunity Commission, the federal agency that enforces civil rights laws against workplace discrimination, is the latest front in the spreading debate over equal treatment of female athletes. A tennis tournament director was forced to resign recently after saying that female players “ride on the coattails of the men,” and the N.C.A.A. has drawn scrutiny for the financial disparities between the men’s and women’s basketball tournaments.

“The numbers speak for themselves,” said goalkeeper Hope Solo, one of the players to sign the complaint. “We are the best in the world, have three World Cup championships, four Olympic championships.” Solo said the men’s players “get paid more to just show up than we get paid to win major championships.”

Solo was joined in the complaint by the co-captains Carli Lloyd and Becky Sauerbrunn, forward Alex Morgan and midfielder Megan Rapinoe.

U.S. Soccer officials pushed back forcefully on the players’ claims in a conference call Thursday night, citing figures that the federation said showed the men’s national team produced revenue and attendance about double that of the women’s team, and television ratings that were “a multiple” of what the women attract, according to Sunil Gulati, the U.S. Soccer president. A federation spokesman, Neil Buethe, called some of the revenue figures in the players’ complaint “inaccurate, misleading or both.”

In a statement released earlier Thursday, U.S. Soccer recounted the role the federation has played in the growth of women’s soccer, including its introduction to the Olympic Games and in providing full-time salaries for top players. It said it was willing to discuss compensation as part of continuing talks over a new collective bargaining agreement.

But in linking their compensation to the men’s pay, the women’s players put U.S. Soccer in a difficult position. The federation has collective bargaining agreements with both teams, but the financial terms differ widely.

A men’s player, for example, receives $5,000 for a loss in a friendly match but as much as $17,625 for a win against a top opponent. A women’s player receives $1,350 for a similar match, but only if the United States wins; women’s players receive no bonuses for losses or ties.

Opportunities for women to participate in sports have increased greatly in the more than 40 years since the passage of the gender-equity legislation known as Title IX. But sports officials continue to struggle with matters of compensation.

It has been argued that men’s sports, and their players, deserve a financial edge because they draw bigger crowds and generate far more money in ticket sales and corporate sponsorships. That is the case for U.S. Soccer’s national teams, the federation said Thursday. But that is not true for every sport. Women’s figure skating, for instance, has often drawn higher TV ratings and bigger crowds than men’s figure skating.

In their complaint, the five players cited recent U.S. Soccer financial reports as proof that they have become the federation’s main economic engine even as, they said, they often earned only half as much — or less — than their male counterparts.

At the same time, the players said, they exceeded revenue projections by as much as $16 million in 2015, when their World Cup triumph set television viewership records and a nine-game victory tour in packed stadiums produced record gate receipts and attendance figures.

U.S. Soccer officials disputed those figures, arguing that the women and their lawyer, Jeffrey Kessler, cherry-picked an extraordinarily successful year to draw broad conclusions.

Michael LeRoy, who teaches collective bargaining and sports at the University of Illinois, said that market conditions between the men’s and women’s sports are vastly different. LeRoy pointed to a high-profile case brought by Marianne Stanley, the women’s basketball coach at the University of Southern California in the early 1990s, who argued she should be paid at a level equal to the men’s coach. Her legal effort was unsuccessful.

“They have to prove equality of work and market conditions, and it’s such a rigid legal requirement,” LeRoy said of the women’s soccer players.

While women have often been dismissed in international soccer — the men’s World Cup began in 1930 and the women’s not until 1991 — they have become the sport’s standard-bearers in the United States. The women’s team has provided the type of repeated success that has remained elusive for the American men. Not so long ago, a woman, Mia Hamm, may have been the best-known soccer player in the country.

When Hamm and her teammates won the 1999 World Cup in the United States, they also set records for attendance and television viewing. Last summer, when the United States defeated Japan to win another Women’s World Cup, the final was seen by 25.4 million viewers on Fox — a record for a men’s or women’s soccer game on English-language television in this country.

“We have been quite patient over the years with the belief that the federation would do the right thing and compensate us fairly,” said Lloyd, the most valuable player of the Women’s World Cup.

Although only five players signed the complaint, they said they were acting on behalf of the entire women’s team, saying they are all employees of U.S. Soccer through their national team contracts. That is significant, according to Peter Romer-Friedman, the deputy director of litigation for the Washington Lawyers’ Committee for Civil Rights.

“By speaking up publicly, the players are saying, ‘It’s important for the public to know that we’ve filed this suit,’ ” Romer-Friedman said. “Frankly, as a civil rights lawyer, it is important for them to speak out because it has an educational effect.”

The filing of the complaint was the latest move in an increasingly contentious legal fight between U.S. Soccer and the women’s national team, which is favored to repeat as Olympic champion at the Rio Games in August but has long grumbled about its pay, working conditions and travel and hotel arrangements.

The long-simmering feud boiled over after last summer’s Women’s World Cup triumph. A match in Hawaii that was part of the team’s victory tour was canceled when the players refused to play on an artificial-turf field they deemed unsafe. Gulati later apologized for the situation.

Two months later, the disagreement veered into federal court when U.S. Soccer took the unusual step of filing a lawsuit against the national team’s players’ union as part of a dispute about the validity of the players’ collective bargaining agreement. The federation contends the agreement, which expired in 2012, lives on in a memorandum of understanding the sides signed in early 2013. The union contends it does not.

In response to the complaint filed Wednesday, U.S. Soccer argued that not only was the players’ pay collectively bargained, but that the players had insisted more than once on a salary-based system as a means of economic security over the bonus-centric plan the men work under. Russell Sauer, the outside counsel for the federation during labor talks, also said the women’s labor contract included provisions — severance and injury pay, health benefits and maternity leave, for example — not available to the men’s team.

“The truth is,” Sauer said, “the players are claiming discrimination based on a more conservative structure, based on guaranteed compensation rather than pay to play, which they themselves requested, negotiated and approved of not once, but twice.”

Furthermore, U.S. Soccer noted, a major source of revenue and contention — World Cup prize money — is determined by FIFA, world soccer’s governing body, not the federation. But the women’s complaint seems to take aim at a bigger share of domestic revenue, like sponsorships and television contracts, and U.S. Soccer financial reports hint at a richer future involving the team: The federation’s budget projections for 2016 include $2.3 million for a 10-game victory tour after this summer’s Olympics.

Pittsburgh employment lawyer Charles A. Lamberton. Representing employees in discrimination, retaliation, sexual harassment and wrongful termination cases for more than 15 years. High end representation for high end cases and clients. Contact us today.

 

 

Toomey filibusters Womens’ Paycheck Fairness Act

U.S. Senator Toomey speaks to the 38th annual Conservative Political Action Conference meeting at the Marriott Wardman Park Hotel in WashingtonTo the Women of the great Commonwealth of Pennsylvania:

My name is Patrick Toomey and I am your United States Senator from the Tea Party wing of the Republican Party. Here I am in my best charcoal gray and red tie. I am pointing because I am a serious man, and behind me is the Flag of our Nation. I believe in the Flag and the Constitution it represents.

Perhaps I should qualify that. You see, while I am generally a serious man, I am not serious about pay equality for women. And while I believe in the Constitution, I am not a big fan of the Equal Protection clause. That’s why on Wednesday, I joined my fellow Senate Republicans and unanimously voted against advancing the Paycheck Fairness Act.

All Senate Democrats voted in favor of the bill, but they are Democrats and my job is to block whatever they try to do, at all costs.

The bill I filibustered would have banned the practice of salary secrecy for all workers, about half of whom are either forbidden or strongly discouraged from discussing their pay with coworkers. For the general workforce, women who work full-time, year-round make 77 percent of what the same men make. The bill would also have narrowed what would count as a legitimate business-related reason for pay disparities between men and women with the same skill, responsibility, and working conditions. It would also have increased penalties for those that don’t have reasonable reasons for gaps in pay.

The best solution to the pay gap is to hope that employers change their minds some day, and begin paying women pay equal to what they pay men for the same work. If they do not, that’s just life.

Gender pay gap persits

When the Equal Pay Act became law in 1963, women were earning 59 cents on the dollar compared to men. Today, while women hold nearly half of all jobs, and generate a significant portion of the income that sustains their families, they still face a gap in pay compared to men’s wages for similar work. Even now, women earn about 81 cents on the dollar compared to men — a gap that results in hundreds of thousands of dollars in lost wages. For African-American women and Latinas, the pay gap is even greater.

For more on Equal Pay, including tools, resources and recently announced Apps, see below:

 

 

How to negotiate for a raise

EarningsDifferences_lores

While working women have made great strides in recent decades, as evidenced by higher earnings, greater occupational diversity and a larger presence in leadership positions and entrepreneurial fields, they still face unique barriers in the U.S. workforce. Women are more likely to live in poverty than men. On average, women earn less than men and are nearly twice as likely to earn the minimum wage or less. Women are less likely to be employed in science, technology, engineering or math careers, and they are far more likely to experience sex discrimination on the job. And while income inequality has decreased, the pay gap persists: 50 years ago, women earned 59 cents on the dollar compared to men. Today, depending on how you measure it, women earn about 81 cents on the dollar according to the Bureau of Labor Statistics and about 77 cents according to the Census Bureau. Either way, there’s a pay gap.

Planning

To be effective in negotiating your salary, it is essential to plan in advance. If you receive a new job offer, never respond immediately, but take some time to compose yourself, research, and plan your strategy. If you are negotiating your salary in a current job, choose the right time when you could be most effective and benefit from your preparation.

Aspiration Value – AV

Your AV is an ambitious, yet realistic objective in the negotiation. For example, you have been offered a starting salary of $65,000 but research has shown you the mean salary for this job is $70,000. You could set your AV to $75,000 because you have more than average work experience and are a fantastic negotiator!

Reservation Value – RV

Your RV is the absolute lowest package (combo of salary, benefits, etc.) that you would be willing to accept before you decline the offer. This all depends on your preferences, alternatives to accepting a job with this organization, and how much you want this job compared to your preferences. Your RV is your walk away point—for any value less than your RV you go for your alternative. Employer RV is the absolute highest package (combo of salary, benefits, etc) that employer would be willing to offer before walking away from you. This all depends on their alternatives to you. For instance other candidates, how much they like other candidates, budget, and so on. It is your job to assess the employer RV by researching. Find out the types of packages offered by this organization, talk to friends or colleagues in the organization, and consult professional associations and websites that provide salary information. Your goal is to reach an agreement close to the employer’s RV and far away from yours.

ZOPA

The ZOPA is the Zone of Possible Agreement. This is the range in which an agreement is satisfactory for both negotiating parties, or the area between your and your employers RV’s. This is the area that you negotiate over. For instance, your RV is $70,000 and your employer’s RV is $80,000 then any salary between those figures is a possible deal.

Logrolling

Negotiating does not have to be about what you want versus what someone else wants. Instead, try to trade issues with the person you are negotiating with. In essence, you will offer the other side something that they value more than you, in exchange for something from them that you value more than they do.

BATNA

Remember to give yourself options when negotiating. Your BATNA or Best Alternative to a Negotiated Agreement is your greatest source of power while negotiating and provides you with leverage. Options allow you to walk away to something else, but also will push employers who are afraid to lose you to negotiate with you. The more job offers you have on the table the better. If you have a strong BATNA, it is ok to allude to it (but avoid using it as a threat).

Bargaining Power

Power comes from several sources – your power away from the table (your BATNA), your preparation before the negotiation, and your negotiation strategy. Make sure you take advantage of all three sources by taking steps to improve your BATNA, collecting some data about your negotiating situation, and thinking about the strategy that will work best in this particular situation.

Anchoring

Anchor or start with an offer that favors your own side. During negotiations parties tend to move from far extremes toward the center. If you aim high, the other party can then reply or counter offer somewhere in a reasonable range that is more ideal for you. This back and forth will continue, until you hopefully end up meeting offers close to the range that you anchored in.

Win-Lose Negotiation

A win-lose negotiation is a situation in which one party’s gain is another party’s loss. Both parties are competing to get the most value out of the negotiation because there is a limited amount to be gained. If you find yourself in this situation, bargain to achieve your best outcome.

Win-Win Negotiation

A win-win negotiation is a situation in which both parties fully take into account each others’s interests and the agreement is the best possible outcome for both. All options have been put on the table and been thoroughly considered. Most negotiation situations have the potential to be win/win and can benefit from taking a cooperative, problem-solving approach rather than a competitive, “this is war” approach.

Things to Remember

You are valuable; don’t underestimate your worth

Remind them of why you are worth more

Determine your negotiation style and adapt that for each negotiation context.

Ask questions; if they say “no” ask “why” and this will help you to figure out what you need to do to make it into a “yes”

Negotiation means a “back and forth”. If they say “no” to your initial request, make a counter-offer or ask how close they can come to your ask.

Practice! Practicing the negotiation with a friend can help you to feel more calm and confident and will help you to make your arguments more persuasively.

Source: Close The Wage Gap App, Carnegie Mellon University’s Heinz College, Rachel Koch, Elizabeth Schulke, Marisa Pereira Tully, Seth Monteith, Emily Blakemore, Channing Martin, Kathleen Keating, Tim Shaw, Narendra Chennamsetty, Mike McCarthy (professor), Narayanan Venkitar, and Consultant Dave Guarino.

Wall Street litigation leads to important workplace reforms

Bank of America agreed on Friday to pay $39 million to women who worked in its Merrill Lynch brokerage operation, another costly settlement of a discrimination case filed by its employees.

The agreement, filed Friday evening in a federal court in Brooklyn, was the second by the nation’s largest bank over 10 days. Last week, Merrill Lynch told a federal judge in Chicago that it would pay $160 million to settle an eight-year-old racial discrimination suit filed on behalf of 700 black brokers.

With the new agreement, Merrill will have paid out nearly half a billion dollars to settle employee discrimination claims over the last 15 years.

The case settled on Friday was originally brought by women who had worked in the brokerage division of Bank of America, but it was amended to include women who were brokers at Merrill Lynch after the bank bought Merrill. The money is expected to be divided among as many as 4,800 current and former employees of the two brokerage operations.

Merrill, which has about 15,000 brokers worldwide, also agreed to change its policies to give women a better chance of succeeding. The firm will bring in an applied organizational psychologist to study some of its policies, particularly how teams of brokers are formed and how they share customers’ accounts.  A Merrill spokesman said in a statement that the settlement “includes a number of additional and enhanced initiatives that will enrich our existing diversity, inclusion and development programs, providing even more opportunities for women to succeed as financial advisers.”

Merrill has a long history of litigation over its treatment of women and minority employees. In the 1970s, the firm settled a discrimination suit by consenting to make its work force more diverse but never met that goal.

Two decades later, Merrill settled another class-action suit brought by women who worked at the firm and led by a plaintiff named Marybeth Cremin. Merrill settled that suit, known as the Cremin case, in 1998 by agreeing to a process for settling disputes with more than 900 women who filed claims. Otherwise, each of the women would have had to take her claim to industry-sponsored arbitration — a standard agreement in employment contracts on Wall Street.

Merrill ended up paying about $250 million to settle the claims in the Cremin case. It also agreed to make changes to give female brokers a better chance of succeeding in the male-dominated brokerage business.

Less than 10 years later, three women who worked in Bank of America’s brokerage business contended that they faced the same sorts of obstacles that Ms. Cremin had cited at Merrill. They first took their complaints to the federal Equal Employment Opportunity Commission in 2007.

In 2010, they sued Bank of America for practices at both the bank and Merrill Lynch. Judy Calibuso, one of the lead plaintiffs, was a longtime broker for the bank and now works for Merrill Lynch. Another lead plaintiff, Julie Moss, said that “this settlement will advance our efforts to foster diversity and professional success within the work force.”

“Speaking generally of the industry, there have been changes that have attempted to address the gender disparity that exists, but it hasn’t solved the problem,” Plaintiff’s counsel said. “It’s still a well-known secret that women make less than men on Wall Street, and that’s true in the financial advisory world. We think the settlement is a great settlement that increases opportunities for women at Merrill Lynch going forward as financial advisers.”

Equal pay claims

The right of employees to be free from discrimination in their compensation is protected under several federal laws, including the Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and Title I of the Americans with Disabilities Act of 1990.

The law against compensation discrimination includes all payments made to or on behalf employees as remuneration for employment. All forms of compensation are covered, including salary, overtime pay, bonuses, stock options, profit sharing and bonus plans, life insurance, vacation and holiday pay, cleaning or gasoline allowances, hotel accommodations, reimbursement for travel expenses, and benefits.

Equal Pay Act

The Equal Pay Act requires that men and women be given equal pay for equal work in the same establishment. The jobs need not be identical, but they must be substantially equal. It is job content, not job titles, that determines whether jobs are substantially equal. Specifically, the EPA provides that employers may not pay unequal wages to men and women who perform jobs that require substantially equal skill, effort and responsibility, and that are performed under similar working conditions within the same establishment. Each of these factors is summarized below:

Skill

Measured by factors such as the experience, ability, education, and training required to perform the job. The issue is what skills are required for the job, not what skills the individual employees may have. For example, two bookkeeping jobs could be considered equal under the EPA even if one of the job holders has a master’s degree in physics, since that degree would not be required for the job.

Effort

The amount of physical or mental exertion needed to perform the job. For example, suppose that men and women work side by side on a line assembling machine parts. The person at the end of the line must also lift the assembled product as he or she completes the work and place it on a board. That job requires more effort than the other assembly line jobs if the extra effort of lifting the assembled product off the line is substantial and is a regular part of the job. As a result, it would not be a violation to pay that person more, regardless of whether the job is held by a man or a woman.

Responsibility

The degree of accountability required in performing the job. For example, a salesperson who is delegated the duty of determining whether to accept customers’ personal checks has more responsibility than other salespeople. On the other hand, a minor difference in responsibility, such as turning out the lights at the end of the day, would not justify a pay differential.

Working Conditions

This encompasses two factors: (1) physical surroundings like temperature, fumes, and ventilation; and (2) hazards.

Establishment

The prohibition against compensation discrimination under the EPA applies only to jobs within an establishment. An establishment is a distinct physical place of business rather than an entire business or enterprise consisting of several places of business. In some circumstances, physically separate places of business may be treated as one establishment. For example, if a central administrative unit hires employees, sets their compensation, and assigns them to separate work locations, the separate work sites can be considered part of one establishment.

Pay differentials are permitted when they are based on seniority, merit, quantity or quality of production, or a factor other than sex. These are known as “affirmative defenses” and it is the employer’s burden to prove that they apply.

In correcting a pay differential, no employee’s pay may be reduced. Instead, the pay of the lower paid employee(s) must be increased.

Title VII, ADEA, and ADA

Title VII, the ADEA, and the ADA prohibit compensation discrimination on the basis of race, color, religion, sex, national origin, age, or disability. Unlike the EPA, there is no requirement that the claimant’s job be substantially equal to that of a higher paid person outside the claimant’s protected class, nor do these statutes require the claimant to work in the same establishment as a comparator.

Compensation discrimination under Title VII, the ADEA, or the ADA can occur in a variety of forms. For example:

An employer pays an employee with a disability less than similarly situated employees without disabilities and the employer’s explanation (if any) does not satisfactorily account for the differential.

An employer sets the compensation for jobs predominately held by, for example, women or African-Americans below that suggested by the employer’s job evaluation study, while the pay for jobs predominately held by men or whites is consistent with the level suggested by the job evaluation study.

An employer maintains a neutral compensation policy or practice that has an adverse impact on employees in a protected class and cannot be justified as job-related and consistent with business necessity. For example, if an employer provides extra compensation to employees who are the “head of household,” i.e., married with dependents and the primary financial contributor to the household, the practice may have an unlawful disparate impact on women.

It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on compensation or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII, ADEA, ADA or the Equal Pay Act.

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