by Janet P. Judge and Andrew E. Silvia
The newly enacted Massachusetts Equal Pay Act (“MEPA”)[i] may change the way colleges and universities in Massachusetts think about how they compensate the coaches of their intercollegiate sports teams.
Under preexisting federal law, courts and academic employers across the country have struggled to apply equal-pay concepts to male and female coaches of similar but gender-segregated sport teams (e.g., men’s versus women’s basketball) and coaches of very different sports teams (e.g., field hockey versus football). While few would argue against the principle that persons of different genders should receive equal pay for comparable work, the application of that concept has proven especially thorny in college and university athletic coaching, where pay differentials often are tied to the market value of the sport coached rather than the gender of the coach.[ii] Determining what constitutes comparable work between coaches of different genders when they are coaching different teams has proven to be a complicated legal task.
In practice, many schools have opted to forgo the time-consuming and complicated in-house analyses of comparable work across sports and have focused instead on market-based pay systems that determine compensation for coaches of particular teams based primarily on market data reflecting salaries paid to coaches of those teams at other colleges and universities. While not without controversy, courts have found this market-based pay system to be a “nondiscriminatory factor other than sex,” justifying certain pay differentials under federal pay-equity law. In the sports world, this has resulted in higher compensation, for example, for the almost exclusively male head and assistant coaches of men’s basketball and ice hockey, as compared to their women’s basketball and ice hockey counterparts, who may be male or female.[iii]
This has created an interesting legal issue in Massachusetts, where the newly enacted MEPA no longer permits schools to rely directly on market forces to justify a difference in pay between coaches of different genders performing comparable work, even though it would not prohibit the differential if those same coaches were of the same gender. As a result, schools should consider revisiting their compensation system to ensure compliance with the new law, either by identifying nondiscriminatory factors that justify disparate pay rates or by adjusting the compensation of individual coaches where such factors do not exist.
Equal pay for college coaches of different genders has historically been regulated by and subject to litigation under federal laws, including the federal Equal Pay Act (“EPA”), which prohibits employers from paying an employee less than 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,” but allows employers to justify certain pay differentials based on “any other factor other than sex.”[iv]
The prevailing market-forces system arose from litigation under the federal statutes to justify disparities in pay between male and female coaches. It traces its roots back to two federal cases decided in 1994. In one, the Ninth Circuit Court of Appeals held in Stanley v. Univ. of So. Cal. that “an employer may consider the marketplace value of the skills of a particular individual when determining his or her salary.”[v] In the other, a federal district court in Minnesota in Deli v. Univ. of Minn.[vi] rejected the pay-equity claim of a female college coach who asserted that pay differentials based on market forces and tied to the gender of the team coached violated the EPA. In Deli, the court noted that the lower market rate for a female women’s gymnastics head coach as compared to the rates for male head coaches of certain men’s teams, including football, basketball, and hockey, was lawful as it was based on market rate analysis and thus fell within the EPA’s statutory exception. Essentially, the Deli court determined that the market rate, even if tied to the gender of the student-athlete coached (and not the gender of the coach), was a “factor other than sex” upon which the school reasonably relied in making its compensation determinations.[vii] The Deli court noted that the EPA “refers to discrimination based on the sex/gender of the claimant; not the gender of those supervised or served by the claimant.”[viii]
With these rulings, the Stanley and Deli courts provided precedential support for schools not to rely on a coaching position’s subjective skill, effort, responsibility, and working conditions, and instead base a coach’s compensation on objective market data, which generally placed a greater economic value on the coaching positions of certain high-profile men’s sports as compared to coaches of women’s and lower-profile men’s teams. As a result of Stanley, Deli, and subsequent cases like them, many colleges and universities have simply relied on market forces to justify the compensation of their coaches rather than developing and documenting an equitable compensation system grounded in nondiscriminatory job-related tasks and responsibilities. That might have to change in Massachusetts under the MEPA.
Coaching Compensation under the MEPA
The MEPA, which took effect on July 1, 2018, provides that “[n]o employer shall discriminate in any way on the basis of gender in the payment of wages, or pay any person in its employ a salary or wage rate less than the rates paid to its employees of a different gender for comparable work.”[ix] “Wages” are defined as including “all forms of remuneration,” including bonuses, commissions, paid time off, retirement plans, and any other benefits.[x]
Like the EPA, the MEPA defines “comparable work” as work that “requires substantially similar skill, effort, and responsibility and is performed under similar working conditions,” and provides that the job title or job description alone does not determine comparability.[xi] “Skill” includes the “experience, training, education, and ability required to perform the jobs.”[xii] “‘Effort’ refers to the amount of physical or mental exertion needed to perform a job.”[xiii] And “‘[r]esponsibility’ encompasses the degree of discretion or accountability involved in performing the essential functions of a job, as well as the duties regularly required to be performed for the job.”[xiv] According to the Massachusetts Attorney General’s interpretation, however, the MEPA’s “comparable work” standard is “broader and more inclusive than the ‘equal work’ standard of the federal Equal Pay Act.”[xv]
Any MEPA claim involving college coaches of different genders would face the threshold question of whether the coaches are performing comparable work. A female coach of the women’s basketball team who earns less than her male counterpart coaching the men’s basketball team, for example, might argue that both basketball coaches perform comparable work—they both coach the same sport, oversee a similar number of assistants, coach a comparable number of student-athletes, play the same number of games, and bear responsibility for rules compliance, recruiting, budget, and general program oversight. To justify a pay difference in accordance with MEPA on the grounds that the work is not comparable, the school would have to show that the men’s head coaching position requires differing skill, effort, or responsibility, or is performed under differing conditions. Otherwise, a school would have to show that one of the law’s carefully enumerated exceptions (which are discussed below) applies. Depending on the facts, a school may or may not be able to make either showing before a Massachusetts court. In an interesting twist, a male coach of the same women’s team would not be able to make a claim under the law, because if both coaches are male, there would not be a higher-paid employee of a different gender performing comparable work.
With respect to the threshold question of whether the two jobs referenced above—coach of the women’s basketball team and coach of the men’s basketball team—are “comparable work,” it is worth noting a February 2018 pay-equity decision, again by the Minnesota federal district court, in Miller v. Bd. of Regents of Univ. of Minn.[xvi] In Miller, the court found that under the federal EPA, the level of responsibility required of a Division I women’s ice hockey head coach was not comparable to that required of a Division I men’s ice hockey head coach because the men’s team “attracts vastly more attention, draws vastly higher attendance, and earns vastly more revenue than the women’s hockey team” and “the men’s hockey coach is under more pressure to win—and has more demands on his time—than the women’s hockey coach.”[xvii] The court determined that the additional pressure to win and the time demands imposed on the male coach of the men’s team constituted “a substantial difference in responsibility” that justified the pay differential.[xviii] In the Miller case, the court made this finding even where the two coaches had identical written job responsibilities and where the women’s program, which was coached by a woman, had significant success at the national level.[xix] Massachusetts courts have yet to consider such arguments regarding similar skill, effort, and responsibility under the MEPA.[xx]
In cases where two coaches are found to be performing comparable work under the MEPA, schools must then show that any pay disparity is the result of one of the following factors in order to justify the gender pay differential: (1) a system that rewards seniority with the employer; (2) a merit system; (3) a system that measures earnings by quantity or quality of production, sales, or revenue; (4) the geographic location in which the job is performed; (5) the education, training, or experience of the employee to the extent such factors are reasonably related to the job; or (6) travel, if it is a regular and necessary condition of the job.[xxi] Importantly, in order to rely on any of the first three permissible reasons, a school must be able to show that it has developed a compensation “system.”
The MEPA does not incorporate the EPA’s “any factor other than sex” provision and, while it authorizes pay differentials based on a system that measures earnings by quantity or quality of revenue, it does not permit simple reliance on “market forces” or “market rates” to justify differences in pay for comparable work among workers of different genders.[xxii] In assessing a pay-equity claim involving college coaches of different genders, the primary issues at stake will be whether they are performing comparable work, and if so, whether any of the six permissible factors described above apply. Based on arguments like those discussed in the case law described above, schools considering coaches’ compensation under the MEPA likely will focus on the ability of the men’s programs to generate sales or revenue at rates greater than the women’s programs. In order to do so, however, schools must be able to point to a compensation “system,” consisting of a plan, policy, or practice that is predetermined and predefined, which is used to make compensation decisions, and which is uniformly applied without regard to gender.[xxiii] This will require considerably more from schools than has been necessary to justify pay disparities under federal law.
The MEPA is a new statute, and the meaning of its provisions have yet to be interpreted by the Massachusetts courts. Whether the MEPA will have any real effect on pay equity in collegiate coaching remains to be seen. It may prompt schools to raise the compensation of female coaches of women’s teams. One certain implication of the statute is that Massachusetts colleges and universities that have traditionally relied on market-based factors to justify pay disparities between coaches of different genders will need to review their compensation models for compliance with the MEPA and may need to modify them. Some schools may find the need to completely revamp their compensation structure, while others may be able to adapt their current scheme to fit the parameters of the MEPA and its permitted factors. Schools may also consider conducting a pay-equity audit, as the MEPA provides a complete affirmative defense to employers who have conducted a good-faith, reasonable self-evaluation within the previous three years and before an action is filed against it, and have made reasonable progress towards eliminating any unlawful gender-based wage disparities revealed by the audit.[xxiv]
Janet P. Judge is a partner at Holland & Knight LLP where she co-chairs the Collegiate Sports group. Recognized by Best Lawyers as the 2019 Lawyer of the Year for Sports Law in Boston, Ms. Judge represents colleges and university clients on a wide variety of higher education matters.
Andrew E. Silvia is a litigation associate in Holland & Knight’s Boston office. He represents employers and educational institutions in all aspects of labor and employment law.
[i] M.G.L. c. 149, § 105A (2018).
[ii] For example, a recent study found that individuals surveyed generally agreed with the concept of wage equality, but the lowest level of agreement was with respect to individuals in sporting professions, including college coaches and professional athletes. Emily Dane-Staples, “Update in Attitudes Towards Wage Equality in Gendered Professions,” The Sport Journal, June 19, 2018, available at https://thesportjournal.org/article/update-in-attitudes-towards-wage-equality-in-gendered-professions/ (last accessed Jan. 4, 2019). The study participants provided qualitative responses that explained that revenue generation, profits, success, and other monetary reasons justified their more forgiving attitude towards wage inequality in the area of athletic coaches. Id.
[iii] While the coaches of men’s intercollegiate teams are almost exclusively male, the coaches of female intercollegiate teams are not almost exclusively female. Indeed, according to a recent NCAA article, more men than women are coaching women’s teams. Rachel Stark, “Where are the Women?” NCAA Champion Magazine, Winter 2017, available at http://www.ncaa.org/static/champion/where-are-the-women/ (last accessed Feb. 4, 2019).
[iv] 29 U.S.C. § 206(d). Litigators have also raised claims involving equal pay for college coaches under Title IX, which prohibits discrimination in any education program on the basis of sex, including in employment, recruitment, and distinctions in rates of pay, and Title VII, which prohibits gender discrimination in the terms, conditions, or privileges of employment. See 20 U.S.C. § 1681 (Title IX); 42 U.S.C. § 2000e-2(a)(1) (Title VII).
[v] Stanley v. Univ. of So. Cal., 13 F.3d 1313, 1322 (9th Cir. 1994) (“Unequal wages that reflect market conditions of supply and demand are not prohibited by the [federal Equal Pay Act]” (citing EEOC v. Madison Community Unit Sch. Dist. No. 12, 818 F.2d 577, 580 (7th Cir. 1987))).
[vi] Deli v. Univ. of Minn., 863 F. Supp. 958, 961 (D. Minn. 1994).
[vii] Id. at 960-61.
[viii] Id. at 961 (quoting earlier Seventh Circuit non-athletic case). The court further found that absent market justifications, the comparable work analysis also justified certain pay inequities where the comparators coached more student-athletes, supervised more staff, attracted greater crowds, brought in more revenue, and had additional responsibilities due to their team’s higher media profiles. Id. at 961-62.
[ix] M.G.L. c. 149, § 105A(b). Massachusetts’ previous equal-pay law, which was the first of its kind in the country when enacted in 1945, prohibited discrimination in the payment of wages “as between the sexes . . . for work of like or comparable character.” M.G.L. c. 149, § 105A (1945). “Comparable” work under that earlier version of the law came to be defined relatively narrowly by courts, effectively leaving Massachusetts’ law no stronger than the federal EPA enacted in 1963.
[x] M.G.L. c. 149, § 105A(b); Office of the Attorney General, An Act to Establish Pay Equity: Overview and Frequently Asked Questions, Mar. 1, 2018 (the “AG’s Guidance”) sec. 4, available at https://www.mass.gov/files/documents/2018/05/02/AGO%20Equal%20Pay%20Act%20Guidance%20%285-2-18%29.pdf (last accessed Feb. 4, 2019).
[xi] M.G.L. c. 149, § 105A(a).
[xii] AG’s Guidance sec. 3.
[xvi] Miller v. Bd. of Regents of Univ. of Minn., No. 15-CV-3740, 2018 WL 659851 (D. Minn. Feb. 1, 2018).
[xvii] Id. at *7.
[xix] See id. at *1, 7.
[xx] The most well-publicized case filed under the new MEPA involved a claim by the principal flutist in the Boston Symphony Orchestra that she was compensated significantly less than the principal oboist, who was male. The case settled in February 2019 without any judicial opinion, but it highlights the type of issues courts may be required to address—namely, were the female flutist and male oboist performing comparable work? Rowe v. Boston Symphony Orchestra, Inc., No. 18-02040D (Mass. Super.).
[xxi] M.G.L. c. 149, § 105A(b) (2018).
[xxii] AG’s Guidance sec. 5.
[xxiii] AG’s Guidance sec. 5.
[xxiv] M.G.L. c. 149, § 105A(d); AG’s Guidance sec. 10.