A bad referee is what they got in their pay discrimination case. On Friday, they asked the U.S. Court of Appeals for the 9th Circuit to review Judge R. Gary Klausner’s nonsensical decision to toss their pay inequity claims against U.S. Soccer, and the panel should agree. Klausner allowed the women’s allegations of inferior treatment in matters such as travel and support to go forward. But he illogically refused to allow their paycheck claims to be so much as heard. In other words, Klausner said they can go to trial over evidence that U.S. Soccer didn’t treat them equally. But they can’t go to trial over their claims that U.S. Soccer didn’t pay them equally.
Got it. Right. U.S. Soccer gave the women less consideration in travel accommodation, gave them less support, and talked plainly in public and in salary negotiations about how they were worth less. And then made sure to pay them equally. Uh-huh.
In the brilliant description of my colleague Liz Clarke, Klausner’s was an “abacus” ruling. It was a simplistic and crude (and needlessly harsh) piece of unreasoning in which he pushed around a bunch of colored beads until they fit a certain result.
As a result, members of the USWNT face a potentially bitter choice: They can do what’s best for women, or they can do what’s best for themselves. Do they accept the reality that the pandemic has for the moment destroyed the turnstile revenue in their sport and seek a settlement? That’s best for them. Or do they press on with the small threads of their discrimination case and fight for principle, though it may mean another loss, given that appeals courts generally are loath to reverse lower judges?
For the moment they are moving forward, and it’s the right thing to do, because this may be the rare instance in which the referee’s call was so glaringly wrong that it won’t stand on replay.
The most specious aspect of Klausner’s decision is his contention that the women didn’t suffer any discriminatory pay disparity because they actually made a little more by winning two World Cups than the men who couldn‘t qualify to play in one.
Now, math is about as intelligible to me as Old Dutch. But even I can see that the women had to win more games, with higher stakes — in fact, they had to win everything in sight — just to get within $8,000 of a men’s team that couldn’t win a preliminary. To repeat: U.S. Soccer essentially paid a woman the same for winning two championships as it paid a man for a preliminary-round loss.
“In that time that we made just a little bit more, we’ve won two World Cups and we’ve won just about every single game that we’ve played in,” Megan Rapinoe pointed out on ABC. Since 2013, the women’s record is 129 wins to just 12 losses, with an Olympic gold medal to go with their World Cups.
This is something that anyone can relate to. Let’s say you’re a four-time car salesperson of the year, yet you’re paid the same as a poorly performing salesman who didn’t sell a single car off the lot and couldn’t qualify for the sales-contest minimum. Would you call that equal pay?
Or let’s say you’re an actress who wins an Academy Award and whose movie breaks box office records, but you’re paid the same as a bit actor whose film went straight to video. Would you call that equal pay?
Or let’s say you are a federal appeals court judge who has been elevated to the bench by a series of appointments and recommendations for good work, yet you’re paid the same as a superior court judge. Would you call that equal pay?
Level of performance matters. Money matters. It’s a measure of respect and quality. And it’s most certainly a measure of inequality under the law.
According to an excellent analysis by Caitlin Murray of Yahoo Sports, if the U.S. men had merely reached the semifinals of a World Cup, it would have earned $15.1 million collectively. But a woman who actually won the trophy? She maxed out at $300,000.
“The argument that women are paid enough if they make close to the same amount as men while winning more than twice as often is not equal pay,” USWNT representative Molly Levinson said.
Yet this is precisely what Klausner’s ruling said. Worse, and most offensively, he said the women chose it. Klausner reasoned it must have been the “preference” of Alex Morgan and her teammates to be paid less in performance bonuses than the men because they settled for it in collective bargaining.
“The WNT was willing to forgo higher bonuses for benefits,” he wrote. The women could have signed a deal similar to the men but rejected it, he said. Now this is a flat-out gross distortion. The women were never offered the same deal, not even close. They were merely offered a similar structure — containing far lower amounts.
They demanded equal bonus performance money to the men. U.S. Soccer refused to consider it. So they cobbled together what they could.
Every working woman recognizes this impasse. Lawyers. Doctors. Techs. Retailers. Teachers. Line supervisors. As Rapinoe said, “I think so many women can understand what this feeling is of going into a negotiation knowing equal pay is not on the table, knowing anywhere close to your male counterparts is not even on the table.”
There is a long history in American jurisprudence of judges maintaining the preferred status quo with parsing rulings. When judges don’t want to upset the social order, they pull at tiny threads of technicalities until they find the excuse. They decide the 14th Amendment doesn’t actually apply to individuals and play abacus games with the word “citizenship” until segregation persists for more than 100 years.
The USWNT’s case is not segregation, no, but it has an important principle and a persistent wrong against an entire category of people at stake: It’s simply not right to pay women less for better work. What does it say if these powerful women with means can’t even get to trial to be heard on that? The appeals court should overturn the ruling. If it doesn’t, it won’t be the end of the world. But it will be the end, for now, of a lot of hope.