©2024 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 13 Federation, Inc.,78 a group of professional women’s team players alleged they were paid less than male professional soccer players employed by the same organization. The compensation for women’s team and men’s team players was determined by different collective bargaining agreements (“CBAs”). The women’s team players alleged that their CBA provided for lower bonuses than the men’s team.79 The employer pointed to players’ total compensation, arguing that when compared on a cumulative and average per-game basis, the facts showed that the women’s team players were paid more in total compensation than the men’s team players.80 The court found that the women’s team players’ focus on bonuses ignored the other benefits provided by their compensation arrangement, including guaranteed annual salaries and severance pay that the male players did not receive.81 The court concluded that “[t]o consider these bonus provisions in isolation would run afoul of the EPA, which expressly defines ‘wages’ to include all forms of compensation, including fringe benefits.”82 A pay disparity does not have to be based on the wage or salary components of compensation. Differences in benefits, such as the use of a company car, can also form the basis of an equal pay claim. For example, in Pate v. Medical Diagnostic Laboratories LLC,83 a senior sales executive for a pharmaceutical laboratory alleged she was paid less than male employees in the same position, even though they earned the same base salary, because they were given a company car while she was not. The employer argued that its refusal to provide a car to plaintiff was justified by several gender-neutral reasons. The court agreed, noting that the use of a company car was not automatic, that both male and female employees regularly received cars, and that “none of the eight listed male employees who received company cars had the same combination of short tenure, deficient performance, and location as plaintiff.”84 The court concluded that “individual comparisons between employees both male and female who received cars, do not create a genuine issue of material fact as to defendant's gender neutral justifications for providing company cars, particularly given the variety of gender-neutral factors and the overall pattern of male and female recipients.”85 When a disparity in benefits forms the basis of a gender discrimination claim, it is obviously critical that a plaintiff establish their right to those benefits.86 This issue is poised to become especially important for discrimination, but with respect to her EPA claim, holding that the plaintiff had failed to produce evidence that male employees were entitled to a larger percentage of commissions than she received: “Plaintiff has not argued, much less shown, that the male employees were in fact paid more than her”). 78 Morgan v. U.S. Soccer Fed’n, Inc., 445 F. Supp. 3d 635 (C.D. Cal. 2020). 79 Id. at 652. 80 Id. at 653. 81 Id. at 654. 82 Id. (citing 29 C.F.R. § 1620.12(a); 29 C.F.R. § 1620.11(a)). The Court also rejected plaintiffs’ reliance on an analysis of what they might have been paid if they had been compensated under the same terms as the men players’ CBA. “This approach—merely comparing what each team would have made under the other team's CBA—is untenable in this case because it ignores the reality that the [men players] and [women players] bargained for different agreements which reflect different preferences, and that the [women players] explicitly rejected the terms they now seek to retroactively impose on themselves.” Id. at 655. The court found that the history of negotiations between the women players and their employer showed that they had rejected an offer to be paid under similar terms as the men’s team and instead opted for different terms that provided benefits to the women players that were difficult to value: “One of the defining features of the [women players’] CBA is its guarantee that players will be compensated regardless of whether they play a match or not. This stands in stark contrast to the [male players’] CBA, under which players are only compensated if they are called into camp to play and then participate in a match. It is difficult to attach a dollar value to this ‘insurance’ benefit, and neither party attempts to do so here.” Id. 83 Pate v. Med. Diagnostic Labs. LLC, No. 7:19-cv-126-FL, 2021 WL 965906 (E.D.N.C. Mar. 15, 2021). 84 Id. at *17. 85 Id. See also Perdue v. Rockydale Quarries Corp., No. 7:18-cv-00416, 2019 WL 2216527, at *6 (W.D. Va. May 22, 2019) (holding that a female supervisor had adequately alleged a pay disparity based on her claim that she was allowed to use a company vehicle only for business travel while her male predecessor in the same position had been allowed to use a company vehicle for business travel and his commute to work: “While [employer] may ultimately disprove these allegations or establish that the alleged disparity was justified by a reason other than gender, the court concludes that the allegations are sufficient to withstand the defendant’s motion to dismiss”). 86 See, e.g., Barney v. Zimmer Biomet Holdings, Inc., No. 3:17-cv-616 JD, 2021 WL 3212383, at *10 (N.D. Ind. July 29, 2021) (holding that the denial of severance benefits to a female Senior Vice President was enough to establish a prima facie case, but that ultimately plaintiff had failed to establish that the denial was due to her gender because, under the company’s policies, she was not entitled to severance: “[employer] has put forth evidence that the difference in severance benefits was based on a factor other than
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