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Alex
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Category: Business Law
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Martha is the coach of the female basketball team, and Bob

Customer Question

Martha is the coach of the female basketball team, and Bob is the coach of the male basketball team at Discrimination State University. Both Martha and Bob have comparable knowledge of basketball, both have comparable skills, both work comparable hours, both have the same education, and both have comparable win-loss records. “The male team is a revenue generating sport, producing about $5M annually. The female team does not produce revenues and in fact overall has a negative cash flow. Martha is paid $30K per year for her job and Bob is paid $100K per year for his job. Martha sued Discrimination State University for a violation of the Equal Pay Act. Discuss the arguments on both sides of this case.
Submitted: 5 years ago.
Category: Business Law
Expert:  Alex replied 5 years ago.
Hello. Another excellent question raising some important and relevant issues for our society today. So I will take some time to conduct some reasearch and prepare a proper answer for you shortly. Barring any unforseeable events, I anticipate no later than today and hopefully by this afternoon. Until then, take care. Attorney Alex
Expert:  Alex replied 5 years ago.
Hello again. In conducting my research on this I found a very on point analysis which applies to your question and which is available on the net for considerations in this area of law and the applicable analysis typically conducted by the EEOC when a person presents a title 7 and/or EPA claim, as you have here.

For this analysis as it related to coach positions by and for the location of quotes being provided here, please see the EEOC's analysis at:

http://www.eeoc.gov/policy/docs/coaches.html

In essence, you have presened a claim of both EPA and Title 7 violations. However, given your question, we will focus on the EPA violations here and how the school might defend its pay disparity. This has been taken directly from a very important study conducted by the EEOC about coachings pay scales.

"Once the plaintiff establishes a prima facie case of unequal pay for equal work, the burden shifts to the defendant to prove one of the EPA's four affirmative defenses - - seniority system, merit system, system based on quality or quantity of production, or any other factor other than sex. U.S.C. § 2000e-2(h). See also 29 C.F.R. § 1604.8(b).

Another important concern to take into consideration for purposes of this case will be whether one of the Affirmative Defenses Apply.

As correctly pointed out in the Commission's worthwhile analysis -   "after the plaintiff makes out a prima facie case by identifying a comparator or comparators and demonstrating that the jobs are substantially equal, s/he must demonstrate that s/he is paid less wages." The "the burden shifts to the employer to demonstrate that one of the four exceptions to the Act applies to the positions in question."

As already noted, "the EPA provides a defense for differential pay if it is based on: (I) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of
production; or (iv) a differential based on any other
factor other than sex. 29 U.S.C. § 206(d)(1).
Defenses of pay differentials based on seniority or merit systems will apply as they do in other EPA cases. The defense based on production standards, as typically interpreted, will have little, if any, applicability to coaching. The "factor other than sex" defense, however, raises particular questions with regard to coaching cases. As a general matter, an employer who uses this defense must show that the factor of sex is not an element underlyingthe wage differential either expressly or by implication. The employer must also show that the wage differential is based on factors related to the performance of the business, in this case, the educational institution."

Next. continuing from the very applicable EEOC analysis, "the Commission is aware of the following justifications that have been advanced as
factors other than sex in order to justify pay
differentials in coaching: (a) the male coach produces
more revenue for the school than the female coach; (b)
the male coach must be paid higher wages in order to
compete for him; (c) salary is based on prior salary; (d) salary is linked to the sex of the student-athletes
rather than the sex of the coach; (e) the male coach has superior experience, education, and ability; and (f) the male coach has more duties."

For a better understanding of this, the EEOC went on to provide an analysis of each of these factors as follows:

        "a. Revenue as a Factor Other Than Sex

"Some educational institutions have sought to justify
pay disparities in favor of male coaches with the
argument that the male coach produces more revenue
(and/or is expected to produce more revenue) for the
school than the female coach. In certain cases, this
may constitute a defense under the EPA. The Commission recognizes that many variables affect the amount of revenue that is actually produced by any given team or coach and that many of these variables are not within an institution's direct control. Moreover, certain men's and women's teams are in different developmental stages and identical treatment might not be appropriate or required. However, the Commission is also aware of the studies showing that women's athletic
programs historically and currently receive considerably less resources than men's programs.28 Accordingly, the Commission will carefully analyze an asserted defense that the production of revenue is a factor other than sex to determine whether the institution has provided discriminatorily reduced support to a female coach to produce revenue for her team. If this is the case, it would constitute discrimination in the terms and conditions of employment which cannot tthen be used to
justify a pay disparity under the EPA."

The EEOC correctly went on to analyze and state the following relating to resources and pay differences:

"Consistent with the Title IX principle that equity
in educational athletics is analyzed on a program-wide
rather than sport-specific basis, the Commission will not find discrimination in the terms and conditions of
employment if resources necessary for attracting
spectators and producing revenue are non-discriminatorily made available to the men's and women's coaches, overall, even if the male and female coaches of two similar sports are treated differently. Thus, in the preceding example,
if the university had provided another woman coach with
resources comparable to those it provided to the male
basketball coach to enable her to raise revenue for her
team, revenue could be a factor other than sex
and constitute a defense to the claim brought by the woman coach."

Next defense to consider which also is taken directly from the EEOC analysis. Marketplace as a Factor Other Than Sex
    
    "Employers have also asserted that the marketplace is a factor other than sex, arguing that they must pay a male coach higher wages than they pay a female coach in order to compete for him. The Commission has
distinguished the "marketplace value" defense from the
"market rate" defense. The "market rate" defense, which has been rejected by the courts and the Commission, is based on the employer's assumption that "women are available for employment at lower rates of pay due to 'market' factors such as the principle of 'supply and demand.'"   The "marketplace value" defense is not gender-based but rather is based on the employer's consideration of an individual's value in setting wages. Such consideration will qualify as a factor other than sex only if the employer can demonstrate that it has assessed the marketplace value of the particular
individual's job-related characteristics, and any salary discrepancy is not based on sex. Sex discrimination in the marketplace which results in lower pay for jobs done by women will not support the marketplace value defense. Also relevant is whether
the employer bargained with the men and women employees
over salaries. If the employer offers to bargain with
men, for example, by offering a salary range as opposed
to a specific dollar amount, it must treat women
similarly. Lack of bargaining will cast doubt on the
employer's argument that it had to offer the male
employee a higher salary to compete for him."

Next analysis to consider re another defense and arguments to consider here: Experience, Education, and Ability as Factor Other Than Sex
                    
    "Superior experience, education, and ability may
justify pay disparities if distinctions based on these
criteria are not gender-based. Determinations whether
the reasons are bona fide and not gender-based must be
made on a case by case basis."

In your case, this does not seem to apply because you pretty much provided them as equally skilled in their coaching career.

              So the next, factor - Experience, Education, and Ability as Factor Other Than Sex probably will not apply either to defend the school's disparity in pay for a female coach.
                    
    Again review is conduced by a case by case analysis. but as already noted, no defense seems to apply here.

In this case, the EEOC would analyze production and revenue excuses and very likely find that this school "has provided discriminatorily reduced support to a female coach to produce revenue for her team." Thus this coach has a viable EPA claim here.

Again, see directly on point governmental analysis which has been quoted for your convenience here too, but found at:

http://www.eeoc.gov/policy/docs/coaches.html

Well, I hope you found this response helpful as well as the very on point analysis referenced in the Commission's on point study and analysis provided to you here. If you found my answer helpful, kindly hit accept button too. Thank you in advance for this and for any bonus you may offer too. Good luck in your endeavors. Regards, XXXXX XXXXX

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Alex
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Experienced attorney representing businesses and governmental agencies. Start-ups and existing Cos.