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Does Equal Pay Require Rapinoe-Level Awesomeness?

Vivia Chen LAW.COM

If the U.S. Women’s National Soccer Team now doesn’t get fair pay and treatment from the U.S. Soccer Federation, I’m going to drive myself to the nearest radical feminist commune, tune out the world, and get in touch with my inner bitch.

Did you see that final women’s World Cup game in Lyon, France, between the U.S. and Dutch team Sunday? The American women were awesome. I’m not one to revel in sports, but I was ecstatic about the win.

And what else did I feel? Relief—if the truth be told.

Like many women, I felt a lot was riding on the game. Not only had all 28 members of the team sued the U.S. Soccer Federation for gender discrimination, but its star player Megan Rapinoe was bold and brash (for a woman). Not only was she the epitome of unbridled confidence (some called it arrogance), but she dissed a possible invitation from President Donald Trump.

Remember, Rapinoe didn’t exactly mince words. She told Eight by Eight magazine, “I’m not going to the fucking White House.” In response, Trump tweeted: “I am a big fan of the American Team, and Women’s Soccer, but Megan should WIN first before she TALKS! Finish the job!”

When you take on the president, and he tells you to shut up and prove yourself, I’d say the pressure is on.

The upshot: Rapinoe and her teammates delivered—big time. But the euphoria entailed more than winning a game, as the crowd at Lyon made abundantly clear. Instead of the expected chant of “USA! USA!,” the crowd was screaming, “Equal Pay! Equal Pay!”

By winning the World Cup, the U.S. women’s team essentially eviscerated any argument the Federation might have as to why women get inferior pay and benefits compared with the under-performing men’s team. (The Washington Post offers a detailed analysis of the pay gap. Though the reasons are complicated, the bottom line is this: The pay gap is significant.)

But let me go on a limb here and predict that the Federation will cave and give the women what they want. (The case is currently in mediation.) The Federation would be committing public relations suicide otherwise.

There’s no doubt that the women soccer team now has leverage and momentum. Which raises this nagging question: How would we have rated their chances of winning the lawsuit if the team had lost? I’m asking because I wonder if women have to overperform to get their grievances taken seriously.

“It is important to keep in mind that the team’s equal pay claim should not turn on their win at the World Cup,” says Suzanne Goldberg, director of the gender and sexuality center at Columbia Law School. “The law does not require women to surpass the performance of men to be entitled to equity in compensation or in the terms and conditions of their employment.”

That might be the legal standard, but how does that work in the real world? Indeed, it’s almost a cliché that women have to work harder to get the same rights and privilege that men take for granted.

Certainly, we hear it all the time in the legal profession. (And let’s not forget that male Big Law partners earn $959,000 on average, compared to $627,000 on average for female partners—a whopping 53% differential—according to research by Major, Lindsey & Africa.)

“That’s how women feel, particularly women of color,” says Neena Chaudhry, general counsel and senior adviser of education at the National Women’s Law Center, regarding the pressure women feel in the workplace about getting recognition. “Men don’t feel that. I hope someday women won’t feel that they have to be so much better just to get the benefit of the law.”

Chaudhry adds, “The takeaway from the women’s soccer team’s win shouldn’t be that only women who are fabulous get equal treatment.”

Gosh, I hope she’s right. Because being fabulous is exhausting.

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