As a testament to the overall scope and effectiveness of Title IX’s dramatic impact on women’s sports, a meaningful number of collegiate women’s team’s coaches have benefitted from significant increases in their compensation, particularly within the Autonomy 5. And while Title IX has been the catalyst for such progress, it is oftentimes incorrectly identified as the seminal law governing equal pay among coaches of women’s and men’s college sports. Following is a primer on the applicable law in this area. Notably, a working knowledge of this body of law permits universities and coaches alike to negotiate legally compliant employment contracts and, perhaps most importantly, avoid the abject waste of time, money and goodwill attendant to formal disputes between coaches and universities regarding compensation.
College coaches attempting to prove that their compensation is inequitable or discriminatory on the basis of the coach’s gender typically assert theories of liability under three federal statutes. In ascending order of usefulness, these laws are as follows: (1) Title IX of the Education Amendments of 1972 which focuses on gender equity in education; (2) Title VII of the Civil Rights Act of 1964 which focuses on employment discrimination; and (3) the Equal Pay Act of 1963 (“EPA”) which focuses specifically on gender-based wage discrimination.
Title IX of the Education Amendments of 1972 is a federal civil rights statute that prohibits gender discrimination in education programs, including athletics, which receive or benefit from federal funding. Since nearly all educational institutions benefit in some way from federal funding, nearly all educational institutions must comply with Title IX. Title IX prevents discrimination on the basis of gender in educational institutions. At first blush, Title IX appears useful in ensuring equal pay among male and female coaches. Title IX’s usefulness in this context, however, is somewhat limited.
The job of ensuring compliance with Title IX is entrusted to the Office of Civil Rights (“OCR”), a division of the U.S. Department of Education. According to the OCR, a college or university (hereinafter, collectively “School”) will violate Title IX if, and only if, it denies female athletes access to coaching of equivalent quality, nature or availability by paying the women’s coaches less than the men’s coaches. Therefore, if the quality, nature and availability of coaching available to female athletes is equivalent to the coaching available to male athletes, women’s coaches will find it difficult to demonstrate that the lower compensation paid to them violates Title IX. Unlike the EPA, which focuses on equality from the perspective of the employee (coach), Title IX’s focus derives from the perspective of the student-athlete. Consequently, Title IX is not the most useful tool in ensuring equality of pay between men’s and women’s coaches.
Title VII of the Civil Rights Act of 1964, as amended, prohibits an employer from discriminating against an employee in the terms and conditions of employment on the basis of the employee’s sex, “with respect to compensation, terms, conditions, and privileges of employment…”1 The scope of Title VII is much broader than the EPA in that it reaches all aspects of the employment relationship, including pay 2. Therefore, an employment practice that violates Title VII would not necessarily violate the EPA. Conversely, any violation of the EPA also violates Title VII.
Understanding the interrelationship of Title IX, Title VII and the EPA not only permits litigants to make tactical decisions regarding the type and number of claims permissible in any given set of circumstances it also provides some worthy benchmarks for contracting parties. The analysis that follows focuses on the EPA as it is the statute most directly applicable to addressing gender-based pay inequity.
The EPA states that
[N]o employer… shall discriminate…between employees on the basis of sex by paying wages to employees…at a rate less than the rate at which [the employer] pays wages to employees of the opposite sex…for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to…a differential based on any other factor other than sex.3
Since the EPA applies only to individuals being paid less than employees “of the opposite sex,” the EPA does not benefit male coaches of women’s teams being paid less than the male coaches of men’s teams. For present purposes then, the employee in question will be a female coach of a women’s intercollegiate athletic team.4
Claims brought under the EPA involve a two-step process. First, a women’s coach bringing a claim must show that the School employing her pays her less than a male counterpart performing substantially the same job. If a women’s coach successfully makes this initial showing, the second step provides the School an opportunity to justify its actions based on non-discriminatory factors. If the School is unable to justify the unequal pay, the women’s coach is entitled to receive compensation equivalent to that of her male counterpart. Schools found liable under the EPA must compensate the plaintiff for the full difference between the plaintiff’s actual wages and that of the comparator. If the court determines that the School acted in bad faith, this amount may be doubled. Reasonable attorneys fees and court costs may also be awarded under the EPA.
A potential EPA claimant must ask two questions: (1) is she paid less than a male counterpart for performing substantially the same tasks; and (2) if so, can the university justify this unequal pay in a manner recognized by law? If the answer to the first question is “yes” and the answer to the second is “no,” then a women’s coach will likely maintain a successful EPA claim. While the answer to the first question is mainly factual, the answer to the second question is much more subjective. Fortunately, the Equal Employment Opportunities Commission (“EEOC”) offers guidance in answering these questions through the guidelines it issued in 1997 governing equal pay in college coaching 5. These guidelines are an excellent source of information and insight regarding the legal requirements for a claim brought under the EPA. Thus, these guidelines should be consulted first. In circumstances where the guidelines are not dispositive, the courts have provided some interpretations.
Foundational Court Decisions
Stanley v. University of Southern California: Perhaps the most renowned case applying the EPA to women’s coaching was brought by Marianne Stanley, the former head coach of the women’s basketball team at the University of Southern California (“USC”). This case generated two federal appellate court decisions (Stanley I and Stanley II).
Upon the expiration of her initial four-year contract, Coach Stanley expressed her desire to be paid the same salary as that paid to the head coach of the men’s basketball program at USC, George Raveling. At that time, Coach Stanley’s salary was $60,000 per year plus a $6,000 housing allowance – a salary significantly lower than Coach Raveling. Negotiations for her new contract were contentious and unfruitful. Subsequently, Coach Stanley brought suit against USC alleging a number of gender discrimination claims, including a violation of the EPA. Although Coach Stanley was paid considerably less than Coach Raveling, the United States Court of Appeals for the Ninth Circuit ruled against her.
In discussing the merits of Coach Stanley’s claim for equal pay, the court noted that in order to sustain an EPA claim, the jobs performed by the male and female coaches being compared must entail substantially equal skill, effort, and responsibility and be performed under similar working conditions. The court provided several reasons why Coach Stanley failed to carry her burden of proof in demonstrating that her job was substantially equal to Coach Raveling’s job. First, Coach Raveling was contractually required to perform significantly more duties than Coach Stanley, such as promotional and fund-raising activities. Beyond these extra duties, Coach Raveling also had substantially greater responsibility because the USC men’s basketball team generated greater attendance, more media attention, larger donations, and produced nearly ninety (90) times the revenue of the women’s basketball team. As a result of this additional responsibility, USC placed greater pressure on Coach Raveling to promote his team and win.
The court recognized that even if the two jobs were substantially equal, USC would have been able to justify the unequal compensation based on factors other than gender. Specifically, the court noted that Coach Raveling had an additional 14 years of head coaching experience and his marketplace value was greater because he had made television and motion picture appearances and had written two best-selling books on the subject of basketball. Ultimately, Coach Stanley was unsuccessful in her claim because she was unable to demonstrate that her job was substantially equal to that of her comparator, Coach Raveling.
In Stanley II, the Ninth Circuit reviewed the grant of summary judgment in the first case6. The appellate court considered the same facts, but this time viewed the evidence “in the light most favorable to Stanley, resolving all differences in her favor.”7 The only relief Stanley received in Stanley II was a reversal of the district court’s decision that required Stanley to pay USC’s costs8. In reversing the district court’s award of costs, the court relied on Stanley’s indigence and the fact that the award of costs would have a chilling effect on future civil rights litigants – not as a result of finding any merit in her EPA claim9. Although Coach Stanley’s EPA claim was unsuccessful, her case is instructive regarding the judicial application of the EPA. Shortly after the Stanley decision, the Perdue case presented the appropriate circumstances for proving the EPA’s effectiveness.
Perdue v. City University of New York:10 Molly Perdue, the former women’s 10 basketball coach and sports administrator at Brooklyn College brought a successful claim under the EPA in 1997. Coach Perdue performed two functions, and thus selected as comparators two men, Ron Kestenbaum, the men’s head basketball coach, and Mark Reiner, the men’s sports administrator. The School paid Coach Perdue $66,596 less than the combined salaries of Coach Kestenbaum and Mr. Reiner in one year and $68,233 less in the next year. Unlike Coach Stanley, at trial Coach Perdue was able to prove that she and her comparators performed substantially equal jobs, requiring equal skill, effort and responsibility. Coach Perdue was able to show that during the same season, both she and Coach Kestenbaum coached the same number of games, the same number of players, and the same number of practices. Both also recruited players, managed comparable budgets, received comparable scholarships and assistant coaches, scouted opponents, prepared for games, counseled athletes and supervised team conduct. In an administrative capacity, Coach Perdue was able to show that both she and Mr. Reiner organized sports programs, monitored the daily operations of various sports, performed game scheduling, organized comparable team budgets, conducted student orientation and administered their respective athletic programs. Since there was no significant difference between the jobs performed by Coach Perdue and her comparators and since the School was unable to provide a meritorious defense, the jury found for Coach Perdue and awarded her $274,980 in back wages, unpaid employer matching retirement benefits, liquidated damages, attorney’s fees and costs associated with this lawsuit.
The following outline offers an evaluation tool for parties contracting for or litigating issues of equal pay.
The Fundamental Procedure and Substance of an Equal Pay Act Claim
1) Is she paid less than her male counterpart for substantially the same job? (Coach’s Burden)
a) Select a proper comparator:
1) must be a real person
2) may be more than 1 person (aggregate compensation)
b) Demonstrate that the job(s) she and the comparator(s) perform are substantially equal.
1) Equal Skill – relevant experience, training, education, and ability
2) Equal Effort – teaching/training, counseling, program management, budget management, fundraising, PR, and recruiting
3) Equal Responsibility – scheduling and budget, size of team, number of assistants, event/media management.
4) performed under similar working conditions.
c) Demonstrate that women’s coach receives lower wages:
▪ Wages = all forms of School-based compensation including nonmonetary benefits (cars, club memberships, paid trips, housing, etc.)
2) Can the unequal pay be justified? (School’s Burden)
4 recognized defenses
a) Revenue Defense – men’s teams produce more revenue (may be a factor outside of school’s control)
▪ program may be in different developmental stage
▪ impermissible defense – if a member of the men’s staff is dedicated solely to marketing and promotional activities
b) Extra Duties Defense – school receives value from these extra duties and the value bears a relationship to the compensation paid to the men’s coach
▪ impermissible – if the staff, rather than the coach in question, performs the duties
c) Marketplace defense – value = job related characteristics
▪ distinguish market rate = lower pay because women are available at lower rates of pay due to “market” factors such as supply/demand (impermissible)
d) Prior Salary –
▪ School must prove:
▪ consultation with previous employer
▪ prior salary proven accurate
▪ current University did not rely solely on the prior salary
▪ compensation was set in a manner that was not otherwise discriminatory
Conclusion
Understanding the elements and application of the EPA can be a useful tool to assist universities and women’s coaches in achieving equitable compensation through more meaningful salary negotiations or as a means to redress inequitable compensation arrangements previously established.
1 42 U.S.C. § 2000e-2a(1) (1994).
2 See, e.g., Gunther v. County of Washington, 452 U.S. 161 (1981). Title VII reaches claims of sex discrimination not covered by the EPA.
3 29 U.S.C. § 206(d)(1) (1996).
4 The coach of a women’s team may either be male or female. Of course, the coach of a men’s team may also be either male or female but, as a practical matter, nearly all coaches of men’s teams are males. Male coaches of women’s teams being paid less than the male coaches of men’s teams may be able to assert claims for disparate pay under Title VII or Title IX.
5 EEOC Notice No. 915.002, Enforcement Guidance on Sex Discrimination in the Compensation of Sports 5 Coaches in Educational Institutions.
6 178 F. 3d 1069, 1074 (9th Cir. 1999).
7 Id.
8 The district court wanted to force Stanley to pay $46,710.97 in costs. Id. at 1080.
9 Id at 1079.
10 13 F. Supp. 2d 331 (E.D.N.Y. 1998).
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