Enforcement Guidance on Sex Discrimination in the Compensation of Sports Coaches in Educational Institutions.
EEOC NOTICE Number 915.002 Date 10/29/97
Source: http://www.eeoc.gov/docs/coaches/txt
1. SUBJECT: Enforcement Guidance on Sex Discrimination in the Compensation of Sports Coaches in Educational Institutions.
2. PURPOSE: This enforcement guidance sets forth the Commission's position on the application of the Equal Pay Act and Title VII to sex discrimination in the compensation of sports coaches in educational institutions.
3. EFFECTIVE DATE: Upon issuance.
4. EXPIRATION DATE: As an exception to EEOC Order 205.001, Appendix B, Attachment 4, § a(5), this Notice will remain in effect until rescinded or superseded.
5. ORIGINATOR: Coordination and Guidance Programs, Office of Legal Counsel.
6. INSTRUCTIONS: File after Section 633 of Volume II of the EEOC Compliance Manual.
7. SUBJECT MATTER:
I. Background Recent studies show substantial differences in salaries paid to head and assistant coaches of women's and men's teams in educational institutions. For example, according to a recent National Collegiate Athletic Association study, men's sports receive 60% of the head coaches' salaries and 76% of the assistant coaches' salaries in Division I institutions.
1 A confidential survey of 87 universities recently conducted by the University of Texas athletic department supports these findings, showing dramatic differences in salaries paid to men's and women's coaches.
2 The coaches of men's teams also often receive better benefits than coaches of women's teams. A U.S. General Accounting Office (GAO) survey, for example, found that head coaches for women's basketball earned 25% of the average additional benefits earned by head coaches for men's basketball, including such benefits as housing assistance, free transportation, free tickets to sporting events, and club memberships.
3 These demonstrated pay disparities between the coaches of men's and women's teams are of concern to the Equal Employment Opportunity Commission (EEOC) because the overall pattern of employment of coaches by educational institutions is not gender-neutral. Women by and large have been limited to coaching women, while men coach both men and women. For example, in 1996, 47.7% of the head coaches of women's intercollegiate teams at NCAA schools were females, but only about 2% of the head coaches of men's teams were females.
4 At the high school level, as of 1990, more than 40% of girls' teams were coached by men, but only 2% of boys' teams were coached by women.
5 While claims of compensation discrimination in coaching can arise in a number of factual contexts, they often arise where women coaches of women's teams allege that men coaches of men's teams earn greater compensation in violation of the law. Important questions are raised regarding the proper analysis of these pay disparities under both Title VII of the Civil Rights Act of 1964, as amended (Title VII), 42 U.S.C. § 2000e et seq., and the Equal Pay Act (EPA), 29 U.S.C. § 206 (d)(1).
6 There are only a limited number of cases that apply Title VII and/or the EPA to questions of pay discrimination in coaching and a number of them either present unique facts or, in the Commission's view, include incomplete analyses of the law. Moreover, there are many misconceptions which are often raised in considering these pay disparities.
7 The EEOC is issuing this guidance in order to set out the proper framework for applying the EPA and Title VII to claims of gender inequity in the compensation of coaches.
8 II. Legal Analysis The Equal Pay Act prohibits employers from paying employees at a rate less than employees of the opposite sex at the same establishment "for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. . . . " 29 U.S.C. § 206(d)(1). The jobs need not be identical, but only substantially equal. 29 C.F.R. § 1620.13(a). Title VII forbids discrimination because of sex "against any individual in hiring or "with respect to his compensation, terms, conditions, and privileges of employment . . . ." 42 U.S.C. § 2000e-2(a)(1). Title VII also makes it an unlawful practice for an employer "to limit, segregate, or classify his employees . . . in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee . . . ." 42 U.S.C. § 2000e-2(a)(2). Both sections are applicable to charges of wage discrimination. A claim of unequal pay can be brought under either statute, as long as the jurisdictional prerequisites are met. There is considerable overlap in the coverage of the EPA and Title VII, although the two statutes are not identical. Principally, Title VII prohibits wage discrimination, not just unequal pay for equal work. Thus, an employment practice that would violate Title VII would not necessarily violate the EPA. Any violation of the EPA, however, is also a violation of Title VII. 29 C.F.R. § 1620.27(a). In analyzing whether pay discrimination exists in educational coaching positions, two additional general points should be kept in mind. First, the jobs should be analyzed functionally, i.e., in terms of what the actual job requirements are, and not simply with regard to the particular physical skills which are being taught or coached. Accordingly, it is possible for jobs coaching different sports to be "substantially equal" for purposes of the Equal Pay Act and for coaches of different sports to be appropriate comparators under Title VII.
9 Second, pay discrimination cannot be justified if the differences relied on for the proposition that the two jobs are not substantially equal are themselves based on discrimination in the terms and conditions of employment.
10 In analyzing terms and conditions of employment, the Commission will apply the Title IX principle that the support provided to particular teams at an educational institution (and thus to their coaches) may differ so long as the treatment of the men's and women's programs overall, is nondiscriminatory.
11 The Guidance will first address the EPA and then turn to Title VII. A. Equal Pay Act 1. Selecting Comparators Under EPA analysis, the first step is to identify male and female comparators so that their jobs may be analyzed to determine whether they are substantially equal. In selecting comparators, a plaintiff cannot compare herself or himself to a hypothetical male or female; rather, a plaintiff must show that a specific employee of the opposite sex earned higher wages for a substantially equal job.
12 There may be a single comparator, or there may be more than one comparator. A plaintiff satisfies his or her initial burden by identifying a single comparator although an institution may proffer other comparators for consideration.
13 As in all EPA cases, the skills, efforts, and responsibility required by the positions, as well as the conditions under which the jobs are performed, must be evaluated and compared on a case by case basis.
14 Along with identifying a comparator(s), it is the plaintiff's burden to demonstrate that jobs s/he has proferred are, indeed, substantially equal to that of the plaintiff. Because employment practices vary from school to school, each factual situation must be examined in detail. EXAMPLE: A woman coaches field hockey. She earns $30,000 per year. She contends that her job is substantially equal to the jobs of the men who coach lacrosse ($40,000 salary), boys' volleyball ($50,000 salary), and baseball ($60,000 salary). The criteria of skill, effort, responsibility, and working conditions should be examined for each of the positions to determine whether her job is substantially equal to the job of any or all of the three male coaches. 2. Are the Jobs Substantially Equal? Once the comparators have been identified, the next step is to determine whether the jobs are substantially equal. "What constitutes equal skill, equal effort, or equal responsibility cannot be precisely defined" but "the broad remedial purpose of the law must be taken into consideration." 29 C.F.R. § 1620.
14(a). Accordingly, insignificant or inconsequential differences do not prevent jobs from being equal. Although the analysis of whether the jobs are substantially equal is broken down into the four elements enumerated in the statute, the focus should remain on overall job content. a. Equal Skills The skills required of each coach and his or her comparator must be examined, considering "such factors as experience, training, education, and ability." 29 C.F.R. § 1620.
15(a). Moreover, skill "must be measured in terms of the performance requirements of the job." Id. (emphasis in original). Thus, additional training or education or abilities that are not required to perform the job will not be considered in determining whether the jobs are substantially equal.
15 EXAMPLE: A man coaches boys' tennis, and a woman coaches girls' tennis. Both coaches also teach physical education classes approximately 50% of the time. Both started at the school the same year, and neither had prior teaching experience. Both have a bachelor's degree in education. The school requires a bachelor's degree, but no prior coaching experience for the job. The man hosts a weekly radio show not related to the tennis program. The fact that the man has the ability to perform on a radio show does not demonstrate that the skills required of the two coaches are not substantially equal, because the man is not required to use his radio announcer's skills to perform as a tennis coach. b. Equal Effort To determine whether the coaching jobs require equal effort, the Commission will look at the actual requirements of the jobs being compared, 29 C.F.R. § 1620.
16(a), and will not limit its analysis to coaches of like sports. Coaches, regardless of the sport, typically are required to perform the following duties at both the high school and college level: 1) teaching/training; 2) counseling/advising of student-athletes; 3) general program management; 4) budget management; 5) fundraising; 6) public relations; and 7) at the college level, recruiting.
16 Some coaching jobs will require other duties such as, for example, the management of staff and event management. EXAMPLE: A man coaches the boys' ice hockey team and a woman coaches girls' crew. The coaches spend approximately the same number of hours per year coaching. Both coaches train and counsel approximately the same number of student-athletes, manage comparable team budgets, organize fundraising, engage in public relations, and are responsible for the day to day operations for their programs such as supervising equipment and arranging travel. Despite the fact that the coaches teach different skills to their respective teams, there is not a substantial difference in the amount or degree of effort required to perform the job. Accordingly, the jobs require equal effort under the EPA. c. Equal Responsibility "Responsibility is concerned with the degree of accountability required in the performance of the job, with emphasis on the importance of the job obligation." 29 C.F.R. § 1620.17(a). The Commission will look closely at the actual duties performed by the coaches to assess whether differences in responsibility justify unequal pay. It is important to keep in mind that the jobs need not be identical. In Brock v. Georgia Southwestern College, 765 F.2d 1026, 1035 (11th Cir. 1985), the employer tried to justify paying the female intramural sports coach less than the male coach of the men's basketball team by arguing that she had less responsibility because she had a smaller budget and did not have to arrange off-campus games. The court, however, recognized that the female coach also had scheduling and budgetary responsibilities, and found that the two positions were substantially equal.
17 Other factors relevant to an analysis of responsibility may include, for example, the size of the team, the number of assistants, and the demands of event and media management. As with the other elements of EPA analysis, the Commission will examine whether the institution has afforded male and female coaches the opportunity to take on responsibilities in a nondiscriminatory fashion.
18 EXAMPLE: A woman coaches women's field hockey and a man coaches men's lacrosse. Each team has approximately the same number of athletes. Both coaches train and counsel student-athletes, manage the teams' budgets, organize fundraising, engage in public relations, and are responsible for the day to day operations for their programs such as supervising equipment and arranging travel. Both spend approximately the same number of hours coaching during the school year. The man also has the title of Coordinator of Physical Education, but has only insignificant additional responsibilities. The coaches have substantially equal responsibility in their jobs under the EPA. EXAMPLE: At a large university, a man is head coach of football and a woman is head coach of women's volleyball. Both teams compete at the most competitive level and there are substantial pressures on both coaches to produce winning teams. The football coach has nine assistants and the team has a roster of 120 athletes. The volleyball head coach has a part time assistant and coaches 20 athletes. Sixty thousand spectators attend each football game, while 200 attend each volleyball game. The football games, but not the volleyball games, are televised. In comparing the man and woman, the man supervises a much larger staff and a much larger team. In addition, the football team's far greater spectator attendance and media demands create greater responsibility for the man. The football coach has more responsibility than the volleyball coach, and, as a result, the jobs are not substantially equal under the EPA. The mere fact that a male head coach has one, or even two, more assistant coaches than a female head coach does not necessarily demonstrate that the male coach has a more responsible position for purposes of the EPA. Moreover, if an educational institution has discriminated against a female head coach by failing to provide her with comparable assistant coaching support to what it provides to a male head coach, it cannot justify paying her a lower salary based on the claim that she has a less responsible position. d. Similar Working Conditions Most coaches work under similar working conditions for purposes of the EPA. "Generally, employees performing jobs requiring equal skill, effort, and responsibility are likely to be performing them under similar working conditions." 29 C.F.R. § 1620. 18(b).
19 3. Does One of the Affirmative Defenses Apply? 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.
20 Once this is accomplished, the burden shifts to the employer to demonstrate that one of the four exceptions to the Act applies to the positions in question.
21 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.
22 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 underlying the wage differential either expressly or by implication.
23 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.
24 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. This guidance will address each in turn. 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.
25 In certain cases, this may constitute a defense under the EPA.
26 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.
27 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.
29 If this is the case, it would constitute discrimination in the terms and conditions of employment which cannot then be used to justify a pay disparity under the EPA.
30 EXAMPLE: A man coaches men's basketball, and a woman coaches women's basketball at a large university. The man and woman have similar backgrounds in terms of education and experience. The teams have approximately the same number of athletes and play the same number of games. The university pays the man fifty percent more than the woman. It defends the differential as a factor other than sex on the grounds that the man raises substantially more revenue than the woman. However, an investigation shows that the university provides substantially more support to the man to assist him in raising revenue than it provides to the woman. In addition to three assistant coaches, it provides him with staff dedicated to his team to handle marketing and promotional activities, to schedule media interviews and speaking engagements and to handle the sports information function. The woman is allocated one less assistant coach and no dedicated marketing or sports information staff although she has requested it. Instead, she must rely on the staff that is generally available in the Athletic Department. In addition, the man receives a bigger budget for paid advertising than the woman. She has sought to enhance her team's revenue potential by working with her assistant coaches to schedule interviews and speaking engagements, develop promotions for specific games and start a booster club. However, she has not been successful in raising significant additional revenue. Revenue is not a factor other than sex that would justify the wage disparity since the woman is not given the equivalent support to enable her to raise revenue. 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 basketball coach.
EXAMPLE: At a university, men coach the men's basketball and gymnastics teams, and women coach the women's basketball and gymnastic teams. Coaching the men's and women's basketball and gymnastics teams requires equal skill, effort, and responsibility and occurs under substantially equal working conditions. The men's basketball team and the women's gymnastics team, however, earn substantially greater revenue for the school than the women's basketball team and the men's gymnastics team. The university allocates the resources necessary to enable the coaches of men's basketball and women's gymnastics to create and sustain their teams as revenue- generating programs in a manner that does not discriminate on the basis of sex. The university supports comparable marketing programs for men's basketball and women's gymnastics, sets up weekly media interviews for both coaches, and provides the teams equal access to a sports information staff. Based on the increased revenue they produce, the coaches of the men's basketball team and the women's gymnastics team receive the same salary, which is more than the salary of either the women's basketball or men's gymnastics coaches. The university can successfully defend the difference in salary based on the difference in revenue, which is a factor other than sex. b. 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.'"
31 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.
32 Sex discrimination in the marketplace which results in lower pay for jobs done by women will not support the marketplace value def