September 2013 Bar Bulletin
 
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September 2013 Bar Bulletin

"Other than Sex" — Equal Pay in College Sports

By Karen Sutherland

 

Fourteen years ago in Stanley v. University of Southern California,1 the Ninth Circuit upheld the dismissal of a lawsuit brought by former women's basketball coach Marianne Stanley after she refused to accept a three-year contract offer made by the University. She had instead proposed a three-year contract providing $96,000 per year for the first 18 months and a salary equivalent to that of the men's basketball coach, George Raveling, for the remainder of the term, which the University rejected.

The Stanley lawsuit alleged, among other things, violation of the Equal Pay Act of 1963 (EPA)2 and Title IX of the Educational Amendments of 1972.3

The Ninth Circuit's reasoning was as follows:

In an Equal Pay Act case, the plaintiff has the burden of establishing a prima facie case of discrimination by showing that employees of the opposite sex were paid different wages for equal work. The prima facie case is limited to a comparison of the jobs in question, and does not involve a comparison of the individuals who hold the jobs.4

The Ninth Circuit held that the two jobs had a "common core of tasks" and that the next step was to determine if there were additional tasks incumbent to one job but not the other that made the two jobs "substantially different."5 Stanley contended that the differences were attributable to previous gender-based decisions on the part of the University.

After discussing "Stanley and Raveling's markedly different levels of experience and qualifications," the Ninth Circuit held that it did not need to decide whether Stanley had presented a prima facie case because the University could rebut it by showing that the disparity in pay was a "differential based on any ... factor other than sex."6

Specifically, the Court stated:

Coaches with substantially more experience and significantly superior qualifications may, of course, be paid more than their less experienced and qualified counterparts, even when it is the male coach who has the greater level of experience and qualifications. By alleging that the pay differential at issue here was due to Stanley and Raveling's markedly different levels of experience and qualifications, the defendants have proffered a factor "other than sex," 29 U.S.C. 206(d)(1), to explain the difference in pay.7

A New York Times article from April 2, 2012, highlighted the ongoing disparity in pay between male and female coaches. The article stated, in part, that the average salary for the coach of an NCAA Division I men's basketball team increased by 67 percent to $267,007 from 2003 to 2010 and that the average salary for the coach of a women's team increased by 16 percent to $98,106. The article also noted that for Division I basketball, the median salary for coaches of a men's team in 2010 was $329,300, nearly twice the salary for coaches of women's teams ($171,600).8

The Stanley case and the more recent New York Times article raise issues about what equality means in the context of equal pay in sports. In addition to Title IX and the EPA, equal pay is also covered at the federal level by Title VII of the Civil Rights Act of 1964, as amended.9 While there is some overlap, each of these statutes has a slightly different focus.

Title VII prohibits employment discrimination based on race, color, religion, sex or national origin. It applies to all private employers, federal, state and local governments, and education institutions that employ 15 or more individuals.10 It also covers private and public employment agencies, labor organizations, and joint labor management committees controlling apprenticeship and training.11

Under Title VII, "Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive." An employer is vicariously liable for sexual harassment under Title VII when a supervisor subjects a subordinate to a significant, tangible employment action, i.e., a significant change in employment status, such as discharge, demotion or undesirable reassignment.

When no tangible employment action is taken, the employer may raise an affirmative defense consisting of two elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.12

Title IX incorporates the disparate impact standard as part of its prohibitions against sex-based, employment-related discrimination.13 As the U.S. Department of Justice (DOJ) Title IX Legal Manual14 states: "In resolving employment actions, the courts have generally held that the substantive standards and policies developed under Title VII to define discriminatory employment conduct apply with equal force to employment actions brought under Title IX." In other words, "[W]hen a plaintiff complains of discrimination with regard to conditions of employment in an institution of higher learning, the method of evaluating Title IX gender discrimination claims is the same as those in a Title VII case."

In the absence of an explicit Supreme Court decision regarding the applicability of Title VII's procedural requirements to Title IX cases, the DOJ takes the position that Title IX and Title VII are separate enforcement mechanisms and that individuals can use both statutes to attack the same violations.

As set forth in the EEOC Compliance Manual, Section 10, Compensation Discrimination:15

The EPA is more targeted [than Title VII]. The EPA requires employers to pay male and female employees at the same establishment equal wages "for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions." The jobs that are compared need be only substantially equal, not identical. Unequal compensation can be justified only if the employer shows that the pay differential is attributable to a bona fide seniority, merit, or incentive system, or any other factor other than sex.

The EEOC Compliance Manual further notes:

A claim of unequal compensation based on sex can be brought under either the EPA or Title VII, as long as the jurisdictional prerequisites are met. To fully protect the charging party's rights and to maximize recovery, a charge alleging compensation discrimination based on sex should usually allege a violation of both Title VII and the EPA. While there is considerable overlap in the coverage of the two statutes, they are not identical. Title VII broadly prohibits discriminatory compensation practices, while the EPA only prohibits sex-based differentials in compensation for substantially equal jobs in the same establishment.16

In "Enforcement Guidance on Sex Discrimination in the Compensation of Sports Coaches in Educational Institutions,"17 the EEOC focused on the following factors:

1. Selecting comparators, i.e., identifying male and female comparators so that their jobs may be analyzed.

2. Determining whether the jobs are substantially equal, which includes equal skills, equal effort, equal responsibility and similar working conditions.

3. If the plaintiff identifies a comparator or comparators and demonstrates that the jobs are substantially equal and that the plaintiff is paid less wages, the burden shifts to the employer to demonstrate that one of the four exceptions to the EPA applies:

  • A seniority system;
  • A merit system;
  • A system that measures earnings by quantity or quality of production; or
  • A differential based on any other factor other than sex.

This Guidance also goes into detail explaining what is meant by each of the factors described above.

As is illustrated by the Stanley case, the fact that a female coach (or a coach who coaches a women's team) gets paid substantially less than a male coach (or the coach of a men's team) does not establish an equal pay violation, as there are a number of other factors that come into play in finding an appropriate comparator and determining whether the two positions are "substantially equal" and the pay disparity exists for some bona fide reason "other than sex."

1 178 F.3d 1069 (9th Cir.), cert. denied, 528 U.S. 1022, 120 S.Ct. 533 (1999).

2 29 U.S.C. 206(d). The EPA is part of the Fair Labor Standards Act of 1938, as amended.

3 20 U.S.C. 1681 et seq.

4 178 F.3d at 1073-74.

5 Id. at 1074.

6 Id. at 1075, citing 29 U.S.C. 206(d)(1).

7 Id. at 1075-76.

8 James K. Gentry and Raquel Meyer Alexander, "Pay for Women's Basketball Coaches Lags Far Behind That of Men's Coaches."

9 42 U.S.C. 2000e et seq.

10 From "Federal Laws Prohibiting Job Discrimination Questions and Answers Federal Equal Employment Opportunity (EEO) Laws," online at: http://www.eeoc.gov/facts/qanda.html.

11 Id.

12 Burlington Industries v. Ellerth, 524 U.S. 742 (1998).

13 The U.S. Department of Justice, "Title IX Legal Manual," online at: http://www.justice.gov/crt/about/cor/coord/ixlegal.php#2.

14 Id. (footnotes omitted).

15 Online at: http://www.eeoc.gov/policy/docs/compensation.html (footnotes omitted).

16 Id.

17 EEOC Notice Number 915.002, Oct. 19, 1997. This Notice has not been superseded or replaced. See http://www.eeoc.gov/laws/guidance/subject.cfm.

 

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