After winning an Oscar for her role in Boyhood, Patricia Arquette concluded her acceptance speech with an impassioned demand for equal pay: "To every woman who gave birth to every taxpayer and citizen of this nation, we have fought for everybody else's equal rights. It's our time to have wage equality once and for all, and equal rights for women in the United States of America." The audience responded with wild cheers. Meryl Streep and Jennifer Lopez even got up out of their seats and waved their arms.
Not surprisingly, Hillary Clinton, Labor Secretary Tom Perez, and other Democrats praised Arquette's comments and used them to draw attention to the issue of equal pay. "I think we all cheered at Patricia Arquette's speech at the Oscars -- because she's right," Clinton told an audience of working women the next week.
Arquette's message also received support from an unexpected source: A.J. Lee, a three-time World Wrestling Entertainment (WWE) women's champion and one of the most-popular female wrestlers on the circuit. It started when Stephanie McMahon, one of WWE's owners, tweeted, "Thank You @PattyArquette for having the courage to fight for #WomensRights on such a grand platform." Lee then retweeted it, but added a haymaker directed toward McMahon: "Your female wrestlers have record selling merchandise and have starred in the highest-rated segment of the show several times, and yet they receive a faction of the wages and screen time of the majority of the male roster." Wrestling fans showered Lee with support.
Does Lee have a valid point? The Equal Pay Act (EPA) requires that men and women in the same workplace be given equal pay for equal work. Equal work means that the jobs being compared are performed under similar working conditions and require equal skill, effort, and responsibility. But there are exceptions. Unequal pay for equal work is not unlawful if it is based on: (1) a seniority system; (2) a merit system; (3) a system that measures earnings by quantity or quality of production; or (4) a differential based on any other factor other than sex. Some courts have read the fourth, catch-all factor to require a legitimate business need. Thus, courts have ruled that the force of supply and demand in the market is not a valid business-related factor other than sex that justifies paying men higher wages than women.
Title VII of the Civil Rights Act of 1964 also prohibits compensation discrimination on the basis of sex (as well as other protected classifications). Compensation discrimination under Title VII can occur when an employer pays an employee less than similarly situated employees of the opposite gender, and the employer's explanation does not satisfactorily account for the differential. Unlike the EPA, there is no requirement under Title VII that the employee's job be substantially equal to that of a higher-paid person.
Now back to A.J. Lee. WWE undoubtedly would say that female wrestlers do not perform equal work, because male wrestlers have more bouts, spend more time on screen, and generally perform more dangerous stunts. And, in fact, a number of female wrestlers are paid more than some of the men. So that may dispose of any EPA claim.
But what about Title VII? WWE makes the decisions about who wrestles, when, and for how long. So if it is giving the women short shrift, is there an underlying discrimination problem with respect to work assignments? WWE presumably would invoke Title VII's bonafide occupational qualification (BFOQ) defense, which provides that sex discrimination is not unlawful in those certain instances where gender is a BFOQ reasonably necessary to the normal operation of the particular business or enterprise. While mere customer preference is generally not enough to justify a BFOQ defense, there are certain cases where it is. Think Playboy Bunnies and Chippendales dancers. Do professional wrestlers fit the bill as well?
The discussion above presupposes that WWE wrestlers are employees. But they are not, according to WWE. It treats its talent as independent contractors, and it has gone to the mat to defend this position. But that's a discussion for a different day.
The takeaway for you is that the issue of equal pay is in the public eye and at the top of the EEOC's enforcement priority list. So it is important to review your company's pay practices to ensure that male and female employees are paid equally for performing equal work, and, if they are not, to work with an employment lawyer to assess whether the pay disparity is legally justified.