The gender discrimination, class action lawsuit brought by members of the United States Women’s National Soccer Team (“USWNT”) against U.S. Soccer (who is both the women’s employer and the regulating body of soccer in America) settled in February 2022, bringing to a close one of the most public rallying cries for equal pay in recent years. The highly publicized lawsuit was filed in March 2019, only a few months before USWNT won its second straight World Cup, and fans in the stadium celebrated the teams’ victory by chanted “Equal Pay! Equal Pay!”—something that still gives me chills, and made pay equity front page news world-wide. Soon, U.S. Soccer was fighting on two fronts: in the court of law, a poorly received filing claimed the women’s team had less “skill” than the men’s team, resulting in the resignation of then-U.S. Soccer President Carlos Cordeiro; while in the court of public opinion, U.S. Soccer faced consistent criticism from other athletes, politicians, celebrities, and the public.
USWNT’s highs on the field and social media were followed by lows in court. Most severe was the May 2020 decision of a U.S. District Court judge in California to grant summary judgment against USWNT’s equal-pay claims, citing the different payment structures contained in the collective bargaining agreements for the men’s and women’s teams. Undeterred, USWNT appealed the decision and were set to give opening arguments to the Ninth Circuit on March 7, 2022. Those arguments will not be needed since, on February 22, USWNT players reached a $24 million settlement with U.S. Soccer. The settlement terms can be debated—after all, though U.S. Soccer agrees to pay the men and women at an equal rate moving forward, no settlement funds will be released until USWNT negotiates a new collective bargaining agreement. Even key figures in the soccer world are divided as to the settlement’s terms, with Megan Rapinoe calling it a “monumental win” and Hope Solo calling it “infuriating and heartbreaking.” What can’t be debated, however, is how USWNT’s lawsuit irrevocably put equal pay into the public consciousness. So, even as the settlement and negotiation of a CBA put this particular legal case to rest, the rest of the nation continues its work to close the wage gap.
The Wage Gap in 2022: What’s the Status?
One of USWNT’s allegations in the lawsuit was an equal pay claim. Equal pay calls for parity in compensation regardless of gender, and is often measured by the “wage gap” or the percent a woman makes compared to a man. The wage gap arises from many intersecting factors, ranging from systematic under-compensation and concentration in lower paying jobs, to sexual harassment and the “motherhood penalty” of maintaining both family and career. In 1979, the U.S. Bureau of Labor Statistics first identified the wage gap where women earned 62% of the wages that men earned. See U.S. Bureau of Labor Statistics, Highlights of Women’s Earnings In 2020 (Sept. 2021). As of 2021, when the Bureau released its most recent statistics, that figure sat at 82%. Though the wage gap is often thought of as that single statistic, pay equity and the wage gap have more nuance than can distilled into a single number. Taking a deeper dive can help educate the community and reveal effective strategies to help close it.
First: The wage gap does not affect all women equally.
Intersectionality confirms that gender is not the only factor in the wage gap. Race, sexual orientation, gender identity, geographic location, education, and age all play roles. For example, according to a study by the Center for American Progress, women of color experience a much larger wage gap than their white counterparts. According to its study of the Bureau’s 2020 census data, Black women made $0.64, multiracial Black women made $0.63, Asian women made $1.01, Hispanic women of any race make $0.57, and white, non-Hispanic women made $0.79 compared to the $1.00 earned by white men. See Center for American Progress, “Women of Color and the Wage Gap,” (Nov. 21, 2021). A 2022 report by the National Partnership for Women & Families also found that Native American women earned only $0.60 on the dollar and certain Asian American and Pacific Islander women made only $0.52. See National Partnership for Women & Families, “Quantifying America’s Gender Wage Gap by Race/Ethnicity,” (Jan. 2022). And race and ethnicity are only one branch of intersectionality—the Bureau does not maintain comparable stats for non-binary individuals, transgender women, or the greater LGBTQA+ community, but a 2021 study by the Human Rights Campaign Foundation found that women in the LGBTQ+ community generally earn about $0.90, with trans women earning even less at $0.60. See Human Rights Campaign, “The Wage Gap Among LGBTQ+ Workers in the United States,” (Jan. 19, 2022). In short, the wage gap is not going to truly be fixed unless and until other bases of illegal discrimination are also eradicated.
Second: The wage gap has stagnated.
As of 2020 (the latest year in which the Bureau has published statistics), the wage gap sits at 82%. Though that progress from the 62% wage gap in 1979 should be acknowledged—alongside the people who fought for it—that change has not been consistent over time. The gap closed steadily in the 1980’s and 1990’s, but has remained stubbornly at or around 82% since 2004. Id. That means there has been little meaningful progress in nearly two decades. In light of this continued stagnation, the lawsuit filed by USWNT has provided a much needed catalyst and call for change.
Third: The COVID-19 pandemic has widened the wage gap for some women.
Covid-19 wreaked havoc on the American economy, and has disproportionately affected women workers. According to the Pew Research Center, more women have lost their jobs than men since the pandemic hit, and particularly women with less education. This is partially because more women work in the health care, food preparation, and personal service industries, which were hit hardest by the shut-downs and quarantines, and partially because women were disproportionately affected by limited child care and schooling options. See Pew Research Center, “Some Gender Disparities Widened In The U.S. Workforce During The Pandemic,” (Jan. 14, 2022). Overall, numbers of women in the work force are at a 33-year low following the pandemic. See Forbes, “The Pandemic And The Gender Pay Gap In 2022,” (Jan. 21, 2022). As businesses struggle to get back to normal, it will be critical for that “normal” to correct this trend.
Learning from the U.S. Women’s National Soccer Team: Take-Aways for Employers
Against this backdrop, the USWNT brought its class action lawsuit demanding the same pay, benefits, and work conditions as their male counterparts. With the high-profile settlement of that lawsuit (and eagerly anticipated CBA negotiations to come), USWNT has once again made pay equity headline news. While the issue has the spotlight—and as Equal Pay Day is observed on March 7 this year—it is important for employers to assess and correct any lingering pay equity issues on their payroll. Even the most well-meaning employers may have rollover inequities based on a female employee’s prior salary, implicit bias, or problematic management. Thus, employers are encouraged to solicit honest, attorney-client privileged audits of their compensation practices, which will empower the company to make informed decisions. The audit should also evaluate the application process (no questions about prior salary, head of household, or childcare), employee handbooks (remove wage confidentiality policies and add remote work options), job descriptions (to enable detailed comparisons), and performance evaluations (unbiased format and execution) in order to guard against gender-based pay inequity. Armed with an audit and updated policies, the employer is in its best position to make wage adjustments and (re)train its workforce. With proactive and thoughtful action, employers can avoid the many pitfalls, in both litigation and public opinion, that U.S. Soccer has faced.
Chelsea Thompson is a Senior Attorney at Spilman Thomas & Battle based in Charleston, West Virginia. Chelsea’s primary area of practice is labor and employment law, assisting on litigation of all types of labor and employment matters in state and federal courts. She also has experience assisting in representation of employers before administrative agencies such as the Department of Labor and the EEOC.