The recent lawsuit by five members of the US Women’s National Team against U.S. Soccer has received considerable media attention. Today’s post looks at what the lawsuit teaches us about California’s Fair Pay Act.

Before the Fair Pay Act took effect on January 1, 2016, the law required equal pay for equal work. From a defense perspective, you can argue that the women couldn’t meet that standard. You could argue that the stars of the women’s team, as brilliant as they are, don’t have the speed and power needed to earn a spot on the men’s team.

With the Fair Pay Act, however, you don’t need equal work. You need substantially similar work. For that inquiry, you look at “a composite of skill, effort, and responsibility” and whether the work is “performed under similar working conditions.” I suspect the women would meet that standard.

Copyright: ostill / 123RF Stock Photo
Copyright: ostill / 123RF Stock Photo

Disclaimer No. 1: By saying they couldn’t make the men’s team, I’m not denigrating the accomplishments of the US Women’s National Team. They’ve been the best in the world. Those of us who still talk about how close we came to an intramural high school basketball championship are in no position to cast aspersions.

Disclaimer No. 2: I’m not saying the women don’t deserve better treatment and higher pay. I’m just using this to illustrate how the law has changed. While I suspect the dispute will be resolved through negotiation, perhaps in the collective bargaining process, I’m rooting for the USWNT to score this goal.

If the employer is hiring the women to report the weather or represent it in other on-air broadcasts, then the answer may be “yes.” (Blog writers sometimes try to sensationalize their posts to get more readers. Shameful, I know.)

Kyle Hunter sued CBS Broadcasting for discrimination when he was passed up for two jobs reporting the weather on Los Angeles television stations. According to Hunter, CBS instead hired two young women “cut from the same blond, attractive, buxom mold,” which showed “CBS’[s] intent to use gender and youth as criteria.”

CBS brought a motion to strike the complaint pursuant to California Code of Procedure section 425.16, commonly referred to as the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute. Under that statute, a defendant may ask the court to strike claims arising from the defendant’s exercise of constitutional rights. CBS argued that the lawsuit sought to chill its free speech rights.

The trial court denied the motion, concluding that CBS had not shown that the lawsuit arose from protected activity. An appellate court saw things differently, holding that CBS’s choice of a weather anchor was an act in furtherance of its First Amendment rights. Here’s the opinion (pdf).

So this case doesn’t represent a sea change in discrimination law. It’s more of a tempest in a teapot — holding that broadcasters may get more leeway in selecting on-air talent than other employers. That dental assistant in Iowa fired for being irresistibly attractive should consider a move and a career change. If nothing else, I bet she’ll find the weather in LA more to her liking.

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Sex discrimination has been illegal in this country since the 1960s.  But apparently we’re still struggling to understand what "sex" means in that context.

This week, Governor Brown signed into law AB 887.  The bill adds language to several anti-discrimination statutes, including sections of the Fair Employment and Housing Act, to define the term "sex."

"Sex" includes, but is not limited to, pregnancy, childbirth, or medical conditions related to pregnancy or childbirth. "Sex" also includes, but is not limited to, a person’s gender. "Gender" means sex, and includes a person’s gender identity and gender expression.  "Gender expression" means a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.

Thank goodness we got that cleared up!