November 12, 2019 / 7:54 PM / a month ago

Thank you, Megan Rapinoe

(Reuters) - I’d bet you’ve never heard of Denise Bence, a onetime health club manager in Detroit. In the early 1980s, Bence sued her ex-employer, the Detroit Health Corporation, for pay discrimination. All managers at Detroit Health’s chain of clubs were paid based on commissions. Women managers, who sold memberships only to female customers, received a 5% commission. Male managers, who catered to men thinking of joining the club, were paid 7.5% of the signup fee when they brought in a new member. The company said the different commission rates were justified because it was easier to sell memberships to women, so its male and female managers ended up making about the same money.

Chances are that you’re also unfamiliar with Helen Ebbert. Ebbert worked for the Nassau County Police Department as a communications officer. Almost all of Ebbert’s colleagues were women. All of the people who performed roughly the same emergency call response services for Nassau County fire departments were men. When Ebbert and her colleagues sued a decade ago, alleging that the county paid them less for doing the same work as their male counterparts, the county said that when overtime and holiday pay were factored in, many of the women working for the police department received more total compensation than some of the men answering fire emergency calls.

Bence and Ebbert were Equal Pay Act pioneers. In 1983, the 6th U.S. Circuit Court of Appeals ruled in Bence v. Detroit Health Corporation (712 F.2d 1024) that the Equal Pay Act bars companies from paying men and women a different rate for the same service – exactly what Detroit Health was doing. In the Ebbert case, U.S. District Judge Frederic Block of Brooklyn ruled in 2009 that Nassau County was not entitled to summary judgment(2009 WL 9358120). It was no defense of the county’s pay policies, Judge Block said, that when women worked overtime and on holidays, they ended up making the same money as men. Congress, he said, surely did not intend the “absurd” scenario in which companies paid women half the hourly rate as men yet claimed they received equal pay because women worked twice as many hours. (Ebbert’s class action settled in 2011 for $7 million. I could not determine the ultimate outcome of Bence’s class action.)

I mention the Bence and Ebbert cases because they’re cited in a Nov. 8 decision involving a bunch of women whose names you are much likely to know. U.S. District Judge R. Gary Klausner of Los Angeles certified a class of women who play soccer for the U.S. National Women’s Team. Led by stars Alex Morgan, Carli Lloyd, Megan Rapinoe and Becky Sauerbrunn, the women are suing under the Equal Pay Act and Title VII of the Civil Rights Act, alleging that U.S. Soccer systematically discriminates against female players through unequal pay policies and employment conditions.

Judge Klausner’s ruling means that about 25 women on the national team can pursue a classwide injunction requiring the Soccer Federation to provide equal pay and equal playing conditions and that at least 50 women who have played on the team since 2015 can seek damages as a class.

The Soccer Federation’s lawyers at Seyfarth Shaw did not respond to my email request for comment on the class certification ruling. The federation, which did not respond to a Reuters request last week, has said that the men’s and women’s teams are paid differently due to differences in their collective bargaining agreements.

So where, you are probably wondering, do Denise Bence and Helen Ebbert come in? I told you last month that the Soccer Federation had come up with a novel argument against class certification, positing that the lead plaintiffs from the women’s team had actually earned more money than the highest-paid men on the U.S. National Team. As a result, the soccer league said, Rapinoe, Morgan, Lloyd and Sauerbrunn could not show they’d experienced a concrete injury from alleged gender discrimination – and under the U.S. Supreme Court’s 2016 ruling in Spokeo v. Robins, couldn’t establish their constitutional standing to sue the Soccer Federation. According to the league, the class couldn’t be certified because its lead plaintiffs had no right to sue.

The women’s lead lawyer, Jeffrey Kessler of Winston & Strawn, told me at the time — and subsequently wrote in a brief replying to the Soccer Federation’s opposition to class certification — that the Spokeo argument was “utterly frivolous.” His side’s reasoning: Courts have already rejected arguments, in cases such as Bence v. Detroit Health and Ebbert v. Nassau County – that pay discrimination claims are based on unequal pay rates, not unequal total compensation.

According to the women soccer players’ lawyers, Megan Rapinoe and her teammates made a lot of money in the last few years because they worked harder than the men on the national team, playing (and winning) far more games than their male counterparts. They were also more successful, prevailing in two World Cup championships. The stars of the women’s team, the brief said, out-earned members of the men’s team not because of the U.S. Soccer Federation’s pay policies but in spite of them. “This is not equal pay under either Title VII or the Equal Pay Act, both of which require equal pay for equal work,” the brief said.

Judge Klausner agreed. The Soccer Federation’s argument, he said, “presupposes that there can be no discrimination under either Title VII or the EPA where a female employee’s total annual compensation exceeds that of similarly-situated males, regardless of whether the female employee receives a lower rate of pay.” But there is no case law supporting that supposition. In fact, Judge Klausner said, precedent from Bence, Ebbert and a couple of other cases holds exactly the opposite: The Equal Pay Act and (to a lesser extent) Title VII require equal rates of pay, not equal compensation in total.

Remember, the Detroit health club in the Bence case and Nassau County in the Ebbert case asserted arguments echoed by the Soccer Federation. The health club said its male and female managers ended up with the same money even though women were paid a smaller commission. And Nassau County said the women who fielded police emergency calls made as much as the men working on fire emergency response when their overtime and holiday compensation was counted in.

By citing those cases and confirming their conclusion in a much more celebrated class action, Judge Klausner has told working women all over this country that they don’t have to work harder and be more successful than men to earn the same compensation. Equal pay means that women and men who do the same job are judged by the same criteria and paid by the same rate.

Any other interpretation of the law, said Judge Klausner, quoting Judge Block, would be absurd. Here’s hoping that because of Megan Rapinoe, Alex Morgan and their teammates, more women workers like Denise Bence and Helen Ebbert realize what the law says they are due.

About the Author

Reporting by Alison Frankel

The views expressed in this article are not those of Reuters News.

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