NFL Cheerleaders, School Cafeteria Workers, and the New Pay Equity Law

by John S. Gannon

Football fans across New England are basking in the glow of another championship run. The “drive for five” culminated in the hometown team’s improbable come-from-behind victory in Super Bowl LI. Meanwhile, many fans, players and owners—at least outside New England—lament the fact that Tom Brady now has a ring for his thumb.

That’s not the only thing upsetting NFL owners these days. Last week, a former female cheerleader for the San Francisco 49ers under the name “Jane Doe” filed a class action lawsuit against the NFL and 27 of its teams (including our beloved Patriots) claiming female cheerleader wages were unlawfully suppressed by the league and the teams. In the lawsuit, the cheerleaders complain about being paid per game flat fees as low as $90/game, while male NFL mascots, “who dress in oversized costumes and walk around the stadium during games just ten times per year, and with no discernible skill,” were paid between $25,000 and $65,000 per year. The lawsuit claims damages up to $300,000,000.

An oldie but a goodie

The comparison between cheerleader and mascot compensation reminds me of an equal pay case that came out of Massachusetts several years ago. In 1989, Marilyn Jancey, on behalf of a group of female cafeteria workers in the Everett public schools, filed a class action lawsuit claiming they should be paid the same as male custodians in the school. They sued under the Massachusetts Equal Pay Act, which prohibits disparity in pay between employees of the opposite sex for comparable work. The cafeteria workers claimed their work was comparable to the skill, responsibility and importance involved in custodial work. The lower court agreed and issued a judgment in favor the female cafeteria workers. However, the Massachusetts Supreme Judicial Court—the highest court in the state—reversed the decision saying that in order for work to be “comparable,” the work performed cannot differ in “substantive content.” According to the SJC, the lower court should have looked not just at whether the type of work performed was comparable, but whether the content of the work was comparable. Because the jobs were not comparable in content (i.e., custodial work vs. cafeteria work), the SJC held that equal pay for the positions was not required. Since the Jancey decision, employers in Massachusetts have successfully defended equal pay lawsuits by showing the jobs at issue did not have similar job duties – i.e., that the two jobs were categorically separate. That is, until next year.

New pay equity obligations

Back in August 2016, the legislature here in the Commonwealth passed sweeping pay equity legislation. The law broadened the scope of the Massachusetts Equal Pay Act, making it clear that jobs need not have common characteristics or similar duties to invoke equal pay obligations. Instead, absent certain exceptions (discussed in a prior post), the real question is whether the jobs require substantially similar skill, effort and responsibility and are performed under similar working conditions. Translation: Employers will soon have difficulty winning pay equity lawsuits if their only argument is that the jobs in question have dissimilar duties. We anticipate this will clear the way for more successful equal pay lawsuits in Massachusetts. One state representative even declared: “Marilyn Jancey and lunch ladies from Everett have been waiting [for this law] since 1989.”

What do we do?

Changes to the state pay equity law do not take effect until July 1, 2018. Still, employers should start looking at their current pay structures now, with an eye toward analyzing differences in compensation for positions that could soon be labeled “comparable.” My colleagues Amelia Holstrom and Stefanie Renaud will be presenting a firm breakfast briefing on March 2, 2017 from 8:00 – 10:30 in Springfield, Massachusetts titled “What Will 2017 Bring?: Employment Law in the New Year.” They will be touching on pay equity, along with several other important topics. If you would like more information or would like to register, please call our office for more information or email me. In addition, Kimberly Klimczuk of our firm will be presenting a Pay Equity Workshop at this year’s Fair Housing and Civil Rights Conference, which will be held in Springfield on April 6-7, 2017.

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The use of this seal confirms that this activity, the March 2, 2017 breakfast briefing titled “What Will 2017 Bring?: Employment Law in the New Year,” has met HR Certification Institute Institute’s® (HRCI®) criteria for recertification credit pre-approval.

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