Enforcement Guidance on Sex Discrimination in the Compensation of Sports Coaches in Educational Institutions

This guidance document was issued upon approval by vote of the U.S. Equal Employment Opportunity Commission.

OLC Control Number

EEOC-CVG-1998-1

Concise Display Name

Issue Date

10-29-1997

General Topics

Pay Discrimination

Summary

This document addresses the application of the Equal Pay Act and Title VII to sex discrimination in the compensation of sports coaches in educational institutions.

Citation

Title VII, 29 CFR Part 1604

Document Applicant

Employers, Employees, Applicants, Attorneys and Practitioners, EEOC Staff

Previous Revision

The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.

EEOC NOTICE
Number 915.002
Date 10/29/97

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will remain in effect until rescinded or
superseded.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 defense.

EXAMPLE:

A mid-sized college hires a man as head
basketball coach for its men's team. It pays
him a starting $100,000 base salary because
"that is the going rate" and what the salary
for that position has "traditionally" been.
This is twice the salary earned by the women's
basketball coach (a woman) even though the
men's and women's coaching jobs are
substantially equal. However, the man's
higher salary is not justified by any
particular type of experience, expertise or
skills required to coach the men's team but
not the women's team. Nor does the
particular man hired have job-related skills
whose marketplace value would justify the
higher salary. The college merely assumed it
would need to pay $100,000 to a coach for the
men's team. "Marketplace" is not a factor
other than sex.

EXAMPLE:

A college is recruiting a coach for its
men's gymnastics team which it is seeking to
improve and bring up to the higher competitive
level of its women's team. One of the
applicants, a man, has had experience at
another college in making a success of its
previously unsuccessful men's gymnastics team.
The college initially offers to pay him the
same salary it pays the coach of the women's
gymnastics team, because the jobs are
substantially equal. The applicant reports
that he has received higher salary offers from
two other schools and is inclined to accept
one of those offers. The college may offer
him the higher salary because his unique
experience and ability make him the best
person for the job and because a higher salary
is necessary to hire him. "Marketplace" is a
factor other than sex.33

c. Reliance on the Employee's Prior Salary
as a Factor Other Than Sex

Employers have also argued that basing an employee's
salary on his or her prior salary is a factor other than
sex justifying a wage differential for equal jobs.
However, using prior salary alone may perpetuate lower
salaries traditionally paid to women that are based on
sex discrimination.34 Where, for example, women have
been prevented from competing for the higher paying jobs
coaching men's teams, an employer cannot rely on prior
salary to defend its pay disparities.35 These concerns
are particularly applicable in analyzing whether there is
pay discrimination in coaching salaries. Wages in
athletic programs may not be subject to normal market
pressures, but rather may be affected by non-economic
factors. Cultural and social factors may have
artificially inflated men's coaches' salaries, and may
cause them to be sustained at a discriminatorily high
rate.36

Thus, if the employer asserts prior salary as a
factor other than sex, evidence should be obtained as to
whether the employer: 1) consulted with the employee's
previous employer to determine the basis for the
employee's starting and final salaries; 2) determined
that the prior salary was an accurate indication of the
employee's ability based on education, experience, or
other relevant factors; and 3) considered the prior
salary, but did not rely solely on it in setting the
employee's current salary.37 Also relevant is whether
the employer bargained with the men and women employees
over salaries. If the employer offers to bargain with
men, for example, by offering a salary range as opposed
to a specific dollar amount, it must treat women
similarly. Lack of bargaining will cast doubt on the
employer's argument that it had to offer the male
employee a higher salary to compete for him.38

EXAMPLE:

A college advertises for coaches for its
men's and women's basketball teams. The jobs
are substantially equal. A man applies to
coach the men's team. The college hires him
and pays him $100,000 per year solely because
that was the salary he earned in his prior
coaching position. It hires a woman for the
women's team coach job, and sets her annual
salary at $50,000 solely because that was her
salary at her last coaching job. The employer
did not consult with either the man's or
woman's previous employer to determine the
basis for either's initial or final salary or
whether either's prior salary accurately
reflected their ability based on education,
experience, or other relevant factors. Based
on these facts, prior salary is not a factor
other than sex. Moreover, there is evidence
that the woman's prior employer prevented
women from competing for the higher paying
jobs coaching men's teams. Thus, even if the
employer had consulted with the prior employer
as to the basis for the man's salary, since
the woman's prior salary was influenced by sex
discrimination, it is not a factor other than
sex.

d. Sex of Athletes as a Factor Other Than
Sex

Frequently, the sex of the coach is linked to the
sex of the student-athletes, with female coaches limited
to coaching female athletes and earning less than male
coaches of male athletes.39 If there is evidence of such
a denial of equal opportunity at the institution where a
salary discrepancy is being challenged, the Commission
will not accept the defense that the sex of the student-
athlete is a factor other than sex justifying a salary
disparity since it is not a gender-neutral factor.40
This will be so even if both men and women coach the
women's teams for it is the virtual exclusion of women
from jobs coaching men's teams that demonstrates that the
sex of the athletes is not a factor other than sex.41

e. Experience, Education, and Ability as
Factor Other Than Sex

Superior experience, education, and ability may
justify pay disparities if distinctions based on these
criteria are not gender-based. Determinations whether
the reasons are bona fide and not gender-based must be
made on a case by case basis.42

EXAMPLE:

At a university, a man coaches the men's
baseball team and a woman coaches the women's
softball team. Their jobs are substantially
equal. Both have had approximately the same
number of years of experience as coaches. The
man sold insurance for five years after
college and before becoming a coach. The fact
that the man may have developed certain
general skills through selling insurance does
not put him in a different position from the
woman for purposes of setting coaches' pay.
The employer is not entitled to pay the man
more for this experience.

EXAMPLE:

At a college, a man coaches cross-country
track and a woman coaches volleyball. Their
jobs are substantially equal. The man has a
bachelor of arts degree and has coached at the
college level for two years. The woman has a
bachelor of arts degree and has coached at the
college level for ten years. If the employer
bases salary on experience, the employer may
pay the woman more than the man based on her
greater experience.

f. More Duties

Additional duties are a defense to the payment of
higher wages to one sex only if the higher pay is related
to the extra duties.43 The school cannot offer men and
women coaches the opportunity to take on additional
duties in a discriminatory way and then use the
discriminatory distribution of duties to justify
disparate pay.44

EXAMPLE:

At a college, a man coaches the men's
soccer team and a woman coaches women's field
hockey. Both coaches train the student-
athletes, counsel team members, manage the
team's budget, organize fundraising, engage in
public relations, and are responsible for the
day to day operations for the program, such as
supervising equipment and arranging travel.
The college funds pre-season practice for the
men's team; it does not, however, fund pre-
season practice for the women's team, although
the coach has requested this opportunity for
her team. The coaches receive the same basic
salary. The man, however, also gets an
additional stipend for the pre-season
practice. The fact that the man performs the
additional duty of coaching his team during
pre-season practice is not a defense under the
EPA for paying him higher wages when only his
team and not the women's team is given the
opportunity.

In summary, to succeed under the EPA, an individual
must first demonstrate that the coaching jobs were
substantially equal. Once the individual has made this
showing, the school will be found liable unless it can
prove that the reason for the unequal pay falls within
one of the EPA's four affirmative defenses.

B. Title VII

1. Equal Pay Claims

A claim of unequal pay for equal work can be brought
under Title VII as well as the EPA.45 Although burdens
of proof are generally not the same under Title VII and
the EPA,46 in a claim of unequal pay for equal work, the
same burdens apply. Once the plaintiff establishes a
prima facie case of unequal pay for equal work, the
burden shifts to the defendant to prove one of the EPA's
four affirmative defenses - - seniority system, merit
system, system based on quality or quantity of
production, or any other factor other than sex. 42
U.S.C. § 2000e-2(h). See also 29 C.F.R. §
1604.8(b).47

2. Other Compensation Discrimination Claims

Title VII covers types of wage discrimination not
covered by the EPA. Even where jobs do not satisfy the
"equal work" requirement of the EPA, a claim may be made
under Title VII. In County of Washington v. Gunther, 452
U.S. 161 (1981), the Supreme Court held that in a sex-
based wage discrimination claim brought under Title VII,
the EPA's four affirmative defenses apply, but the EPA's
standards of equal pay for equal work do not apply. In
other words, plaintiffs do not have to satisfy the equal
work standard of the EPA in order to state a claim of
wage discrimination under Title VII. According to the
Court, to hold otherwise "means that a woman who is
discriminatorily underpaid could obtain no relief - no
matter how egregious the discrimination might be - unless
her employer also employed a man in an equal job in the
same establishment, at a higher rate of pay." 452 U.S.
at 178. Under such a scenario, an employer would not be
liable for hiring a woman for a unique position in the
company and admitting her salary would have been higher
if she were male, or for using a transparently sex-biased
system for wages where a woman did not hold job equal to
those held by men.48 The Court made clear that the
discrimination laws do not permit this result.

EXAMPLE:

At a mid-sized university, the male coaches of
the men's baseball and ice-hockey teams
receive bonuses for winning seasons while none
of the female coaches of the women's teams
receive bonuses for winning seasons. Even if
the jobs are not substantially equal, it is
unlawful for an employer to give men and women
different benefits unless it can show that the
difference is not based on sex.

Thus, a coach may claim that compensation is
discriminatory under the EPA and/or Title VII, depending
on the facts of the case.

III. Conclusion

Both Title VII and the EPA prohibit employers from
discriminating on the basis of gender in compensation.
The Commission is aware of widespread disparities in the
compensation of sports coaches in educational
institutions and will analyze cases carefully in
accordance with the principles set forth in this
guidance.

.
CHARGE PROCESSING INSTRUCTIONS

1. Charges involving sex discrimination in the
compensation of sports coaches in educational
institutions should be analyzed under both the Equal Pay
Act and Title VII.

2. Under either analysis, it is not necessary that
the comparator coach the same or a similar sport. In
order to determine whether a particular coach or coaches
are appropriate comparators for the charging party, the
functional duties of the coaches -- not the sports
coached -- are determinative.

3. Claims that the coaching jobs of the charging
party and her/his comparator or comparators are not
substantially equal for purposes of the Equal Pay Act or
comparable for purposes of Title VII, should be
scrutinized to determine whether the asserted differences
in the jobs are sufficient to support such a finding. If
the differences in the jobs do support such a finding,
investigators should then consider whether the
differences between coaching jobs are, themselves, the
result of discrimination. If they are, such differences
will not defeat a claim under either the Equal Pay Act or
Title VII.

4. Investigators should also consider whether
asserted affirmative defenses, including factors other
than sex, are tied to sex discrimination. If they are,
the profferred defenses, including "factors other than
sex," will not defeat a claim of discrimination.

5. If an employer defends a coaches' pay disparity
based on the sex of the athletes coached, or if the
investigation otherwise suggests that there may be
discrimination against student-athletes, investigators
may refer those issues to the Department of Education's
Office of Civil Rights to determine whether the employer
has discriminated against students on the basis of sex in
violation of Title IX.

____10/29/97____ ___________/s/___________
Date Paul M. Igasaki
Vice Chairman

1. NCAA Gender Equity Study 14 tbl. 9 (1997). Even in
the smaller and less competitive Division III
institutions, 58% of dollars spent on head coaches'
salaries go to men's teams and 72% of assistant coaches'
salaries are spent on men's teams. Id. at 99 tbl. 9.

2. Jim Naughton, A Confidential Report Details Salaries
of Athletics Officials, Chron. Higher Educ., March 28,
1997, at A49. According to the figures in the survey, in
1996-97, the median personnel expenditure for men's
athletics was more than $1.9 million, while the median
personnel expenditure for women's sports was $431,282.
Id. Based on a review of the results from eight national
gender equity studies, in 1996 GAO reported similar
findings. Intercollegiate Athletics: Status of Efforts
to Promote Gender Equity 3, 13, 14 (GAO/HEHS-97- 10,
October 1996) (hereinafter 1996 GAO Report). See also
Joseph P. Williams, Lower Pay for Women's Coaches:
Refuting Some Common Justifications, 21 J.C. & U.L. 643,
647 n.26 (1995) (hereinafter Williams) (coaches of
women's sports face pay disparities not only in
intercollegiate sports, but also at the high school
level).

3. Intercollegiate Athletics: Compensation Varies for
Selected Personnel in Athletic Departments 12, 22
(GAO/HRD-92-121, August 1992) (hereinafter 1992 GAO
Report).

4. R. Vivian Acosta & Linda Jean Carpenter, Women in
Intercollegiate Sport: A Longitudinal Study - Nineteen
Year Update 1977-1996 (Brooklyn, N.Y.: Brooklyn College,
1996) (hereinafter Acosta & Carpenter). As noted by the
GAO in a 1992 report, all the positions of athletic
director, head football coach, and head coach for men's
basketball in NCAA Division I schools were held by men,
except at one school, where a woman was the athletic
director. 1992 GAO Report at 2.

5. Empowering Women in Sports 6 (The Feminist Majority
Foundation s Task Force on Women and Girls in Sports,
1995).

6. 0 Title IX of the Education Amendments of 1972,
20 U.S.C. § 1681 et seq. (1982), which prohibits sex
discrimination in educational programs and activities
receiving federal financial assistance, also applies to
coaches' claims of sex discrimination. See North Haven
Bd. of Educ. v. Bell, 456 U.S. 512 (1982) (Title IX was
meant to reach the discriminatory employment practices of
educational institutions as well as discriminatory
policies directly affecting students). There is a split
in authority regarding whether Title VII preempts Title
IX employment claims by individuals for damages. Compare
Lakoski v. James, 66 F.3d 751, 753 (5th Cir. 1995), cert.
denied, 117 S. Ct. 357 (1996)(Title VII preempts Title IX
claims of individuals seeking money damages for
employment discrimination on the basis of sex in
federally funded educational institutions) with Preston
v. Virginia ex rel. New River Community College, 31 F.3d
203, 204-06 & n.1 (4th Cir. 1994) (Title IX reaches
employment discrimination claim for damages).

In analyzing employment discrimination claims under
Title IX, courts have looked to Title VII standards.
See, e.g., Brine v. Univ. of Iowa, 90 F.3d 271, 276 (8th
Cir. 1996), cert. denied, 117 S. Ct. 1082 (1997); Murray
v. N.Y. Univ. College of Dentistry, 57 F.3d 243, 248 (2d
Cir. 1995); Preston, 31 F.3d at 207; Lipsett v. Univ. of
Puerto Rico, 864 F.2d 881, 896-97 (1st Cir. 1988); Mabry
v. State Bd. of Community Colleges and Occupational
Educ., 813 F.2d 311, 316-17 n.6 (10th Cir.), cert.
denied, 484 U.S. 849 (1987). The Department of
Education, not the Equal Employment Opportunity
Commission, enforces Title IX. Unlike Title VII, Title
IX imposes no administrative exhaustion requirement, so
individuals may file Title IX claims directly in court.

7. For example, one commonly held view is that certain
teams, typically including football and men's basketball,
are highly profitable and provide financial support for
an institution's other teams, including the women's
teams. As a result, it is argued that the coaches of
these teams are entitled to higher salaries. However, the
facts show that most educational athletic programs,
including football and basketball, are not profitable.
See infra note 25.

8. On February 8, 1989, the Commission issued Policy
Guidance: Equal Pay Act Cases Involving Sports Coaches.
This guidance supersedes the 1989 guidance.

9. Courts have found substantial equality in cases
involving: female coaches of girls' basketball and male
coaches of boys' basketball, Burkey v. Marshall County
Bd. of Educ., 513 F. Supp. 1084, 1091-92 (N.D. W. Va.
1981); male "boys' hardball coach" and female "girls'
softball coach," Brennan v. Woodbridge Sch. Dist., 8 EPD
Par. 9640 (D. Del. 1974); and a female intramural sports
coach and a male coach of the men's basketball team,
Brock v. Georgia Southwestern College, 765 F.2d 1026,
1035 (11th Cir. 1985). In EEOC v. Madison Community Unit
Sch. Dist. No. 12, 818 F.2d 577, 583 - 584 (7th Cir.
1987), the court found equality between the coaches of
several like sports (boys' and girls' tennis, boys' and
girls' track, and boys' baseball and girls' fast-pitch
softball), but set aside the district court's findings of
equality between different girls' and boys' sports. The
court explained that "there is no objection in principle
to comparing different coaching jobs," but concluded that
the record before it did not support a finding of cross-
sport equality. In particular, the court noted that the
male coaches of different boys' sports received different
salaries and one of the female plaintiffs was paid the
same wage as one of the male coaches of a boy's team. So
long as the evidence does not demonstrate that the
differences in salaries are based on discriminatory
factors, this fact-based approach is consistent with the
EEOC's analysis set forth in this document. See, infra,
note 10 and accompanying text. However, the mere fact
that the potential male comparators are paid different
salaries does not defeat an Equal Pay Act claim.

10. See Burkey v. Marshall County Bd. of Educ., 513 F.
Supp. at 1092 (disparity in male and female coaches'
salaries violated Title VII and the EPA; to the extent
there were any differences in responsibility between male
and female coaches, "they were based solely upon
Defendants' policy of discriminating against women and
to have their teams participate in an identical number of
interscholastic games coaches on the basis of their sex
in the opportunities provided to them to coach and to
have their teams participate in an identical number of
interscholastic games over the same season as did the
teams coached by male teachers."); Shultz v. Saxonburg
Ceramics, 314 F. Supp. 1139, 1146 (W.D. Pa. 1970)
(employer may not exclude women from task and then use
fact that they are not performing that task to justify
paying men more). See also Coble v. Hot Springs Sch.
Dist. No. 6, 682 F.2d 721, 734 (8th Cir. 1982) (in Title
VII case, the school district claimed that male coaches
were entitled to higher salaries because of longer term
contracts and higher extra duty stipends than female
coaches. But as pointed out by the court, "the
assignment of extended term contracts and extra duty
stipends to particular coaching assignments is itself
subject to employer discrimination on the basis of
sex.").

11. The Department of Education's guidance regarding
Title IX's applicability to athletics makes it clear that
the relevant inquiry under that statute is whether there
is equity between the men's and women's athletics
programs overall, rather than between particular sports.
As the guidance explains, ". . . there is no provision
for the requirement of identical programs for men and
women and no such requirement will be made by the
Department. Moreover, a sport-specific comparison could
actually create unequal opportunity. For example, the
sports available for men at an institution might include
most or all of those available for women; but the men's
program might concentrate resources on sports not
available to women. . . . [In addition], the regulation
frames the general compliance obligations of recipients
in terms of program-wide benefits and opportunities
[citation omitted]. . . . Title IX protects the
individual as a student- athlete, not as a basketball
player, or swimmer." Title IX and Intercollegiate
Athletics Policy Interpretation, 44 Fed. Reg. 71,413, 71,
422 (1979). Based on this principle, the Commission will
not find discrimination in the terms and conditions of
employment where male and female coaches of like sports
are treated differently if the institution does not
discriminate in the terms and conditions of the
employment of men's and women's coaches, overall. See
also Section 3.a., infra.

12. See, e.g., Pollis v. New Sch. for Social Research,
913 F. Supp. 771, 784 (S.D.N.Y. 1996) (doubtful whether
statistics alone tending to show a difference between
average salaries paid to male and female professors can
prove prima facie case).

13. Brock v. Georgia Southwestern College, 765 F.2d at
1033 n.10. See also Hein v. Oregon College of Educ., 718
F.2d 910, 916 & 918 (9th Cir. 1983) (the use of a single
comparator is not prohibited; if there is more than one
comparator, "the proper test for establishing a prima
facie case in a professional setting such as that of a
college is whether the plaintiff is receiving lower wages
than the average of wages paid to all employees of the
opposite sex performing substantially equal work and
similarly situated with respect to any other factors,
such as seniority, that affect the wage scale.").

14. Brennan v. Prince William Hospital Corp., 503 F.2d
282, 286 (4th Cir. 1974), cert. denied, 420 U.S. 972
(1975).

15. See, e.g., Hein v. Oregon College of Educ., 718 F.2d
at 914 (female Ph.D. in the physical education department
who possessed skills equal to or greater than the male
basketball coach, but whose position consisted of 100%
lecturing, could not be compared to the basketball coach
for EPA purposes because a coaching job plainly requires
skills that a noncoaching job does not); Peltier v. City
of Fargo, 533 F.2d 374, 378-79 (8th Cir. 1976) (higher
pay to males than females assigned to writing parking
tickets not justified by males' status as police officers
where the police officer skills were rarely used on the
job).

16. Creating Gender Neutral Coaches' Employment and
Compensation Systems, A Resource Manual 6-8 (Women's
Sports Foundation, updated October 1995).

17. Other courts have found that male and female coaches
did not meet the equal responsibilities standard, in
addition to the other EPA criteria. For example, in
Stanley v. Univ. of Southern Cal., 13 F.3d 1313, 1321-22
(9th Cir. 1994), the court found that the men's head
basketball coach had greater responsibility than the
women's coach where the men's team generated greater
attendance, more media interest, larger donations, and
produced substantially more revenue. In Bartges v.
UNC-Charlotte, 908 F. Supp. 1312, 1322-24 (W.D.N.C. 1995),
aff'd, 94 F.3d 641 (4th Cir. 1996) (unpublished
disposition on affirmance), the court found that the
woman who was part-time head softball coach and part-time
assistant women's basketball coach failed to prove that
her combined responsibilities were substantially equal to
several male comparators who had, inter alia, full-time
positions, responsibility for substantially more
athletes, and greater supervisory and other coaching
responsibilities. See also Deli v. Univ. of Minnesota,
863 F. Supp. 958, 961-62 (D. Minn. 1994) (woman coach had
less responsibility where male comparators coached larger
teams, supervised more employees, had greater
responsibility for public and media relations, and their
teams generated substantially more spectator interest and
revenue).

18. The Commission notes that two of the cases discussed
in the preceding footnote -- Bartges v. UNC-Charlotte,
908 F. Supp. 1312 and Deli v. Univ. of Minnesota, 863 F.
Supp 958 -- did not address the question of whether
discrimination in terms and conditions of employment
improperly contributed to the differences in the jobs
which were used to justify the pay disparities at issue.
The plaintiff in Stanley attempted to make such an
argument, but the court was not convinced by the proof
presented. Stanley v. Univ. of Southern Cal., 13 F.3d at
1323 (the minimal evidence offered in support of
proposition that the university's failure to allocate
funds for the promotion of womens' basketball was
discriminatory was unpersuasive). As result, these cases
provide no support for an educational institution when
the differences in the jobs are due to discrimination in
terms and conditions of employment.

19. Dissimilar working conditions will be found where
there are substantial differences in "surroundings,"
which measures the elements, such as toxic chemicals or
fumes, regularly encountered by a worker, their intensity
and their frequency; or in "hazards," which refers to
physical hazards regularly encountered, their frequency,
and the severity of injury they can cause. Corning Glass
Works v. Brennan, 417 U.S. 188, 202 (1974). Accord 29
C.F.R. § 1620.18 (a).

20. Under the EPA, "wages" includes the following:

all forms of compensation . . . whether called
wages, salary, profit sharing, expense account,
monthly minimum, bonus, uniform cleaning
allowance, hotel accommodations, use of company
car, gasoline allowance, or some other name.

29 C.F.R. § 1620.10. It is also unlawful to
discriminate with regard to a fringe benefit, which
"includes, e.g., such terms as medical, hospital,
accident, life insurance and retirement benefits; profit
sharing and bonus plans; leave; and other such concepts."
29 C.F.R. § 1620.11(a) and (b). Thus, the types of
nonmonetary benefits that coaches may receive, such as
cars, country club memberships, memberships in
professional organizations, paid trips to meetings, and
low interest loans and mortgages, are treated as wages
under the EPA.

21. These are affirmative defenses, for which the
employer has the burden of persuasion. Corning Glass
Works v. Brennan, 417 U.S. at 196-97.

22. See, e.g., Irby v. Bittick, 44 F.3d 949, 954 (11th
Cir. 1995) (county sheriff's department did not have
"seniority system" justifying pay disparities where no
identifiable standards for measuring seniority were
systematically applied and observed); Brock v. Georgia
Southwestern College, 765 F.2d at 1036 (college "merit
system" that operated in informal and unsystematic manner
did not qualify as defense).

23. EEOC Compliance Manual, Section 708.3 (BNA) 708:0003.
See Morgado v. Birmingham-Jefferson County Civil Defense
Corps, 706 F.2d 1184, 1189 (11th Cir. 1983), cert. denied,
464 U.S. 1045 (1984) (requirements for exceptions "not met
unless the factor of sex provides no part of the basis for
the wage differential").

24. EEOC Compliance Manual, Section 708.2 (BNA) 708:0003.
See Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520,
525-27 (2d Cir.), cert. denied, 506 U.S. 965 (1992)
(school district must prove job classification system
based on legitimate business considerations).

25. As a threshold matter, it is important to clarify the
meaning of "revenue- producing" in the educational sports
context: it is typically an entirely different concept
from "profit-making." In particular, the determination of
whether a team is "revenue-producing" looks only to income
which may be generated by ticket sales, concessions,
guarantees, or any other source, while an analysis of
whether a team is "profit-making" would consider both
income and expenses. The great majority of educational
athletic programs, at all levels, do not generate profits
for their institutions. Williams at 656. Football is not
offered or is not profitable in 91% of all NCAA member
institutions, and basketball is not profitable in a
majority of NCAA institutions, with the exception of
Division I-A. With respect to Division I-A basketball,
34% of the programs have an average debt of $238,000 a
year. Id. at 656-57. Accord John C. Weistart, Can Gender
Equity find a Place in Commercialized College Sports?, 3
Duke J. Gender L. & Pol'y 191, 207 (1996) (hereinafter
Weistart); Deborah Brake & Elizabeth Catlin, The Path of
Most Resistance: The Long Road Toward Gender Equity in
Intercollegiate Athletics, 3 Duke J. Gender L. & Pol'y 51,
90 (1996); Jim Naughton, A Book on the Economics of
College Sports Says Few Programs are Financially
Successful, Chron. Higher Educ., Oct. 11, 1996, at A57
(only 41 of 106 Division I-A institutions make money from
their football programs, with only 31 earning more than $1
million a year; remainder lose money). Few, if any, high
school teams are profit-making.

26. In cases in which the courts found that revenue was
a factor other than sex, there was insufficient evidence
to support findings, or the court did not consider the
argument, that the differences in revenue were related to
underlying discrimination by the universities. See supra
note 18, discussing Stanley v. Univ. Of Southern Cal., 13
F.3d at 1323; Bartges v. UNC-Charlotte, 908 F. Supp. at
1327; Deli v. Univ. Of Minnesota, 863 F. Supp. at 961.

27. See supra note 16 and accompanying text.

28. See, e.g., Amy Shipley, Most College Funding Going
to Men's Sports, Wash. Post, April 29, 1997, at E1
(reporting on 1997 NCAA Study). The NCAA Study found that
23% of the total average operating expenses for
intercollegiate athletics went to women's programs at
Division I schools. NCAA Study 14 tbl. 9.

29. The Commission will not credit simple assertions that
lower resources and support are appropriate for women's
teams because, based on societal preferences, they have
less "revenue potential." To the contrary, it has been
demonstrated that interest in women's sports increases
when resources are invested in promoting and marketing
these sports. Williams at 687. See also Weistart at 228
(wrong to assume which sports interest women and how
popular they will be; for example, recent women's Final
Four basketball tournament sold out).

30. A closely analogous situation arises when employers
establish requirements for promotion, but discriminate
against women or minorities by preventing them from
satisfying the requirements. See, e.g., Palmer v. Baker,
905 F.2d 1544, 1547-48 (D.C. Cir. 1990) (court found
probative evidence of promotion discrimination where
evidence that employer's discrimination in the granting of
awards and assignments and in evaluations disadvantaged
women seeking promotions); Wilmore v. City of Wilmington,
699 F.2d 667, 675 (3d Cir. 1983) (racially discriminatory
assignment of administrative jobs affected results of
promotional tests in favor of whites and to detriment of
minorities); Jensen v. Eveleth Taconite Co., 824 F. Supp.
847, 870 (D. Minn. 1993) (experience as a step-up foreman
was prerequisite for promotion to foreman, but no woman
had ever been promoted to step-up foreman; "by tying
promotions to foreman to step- up foreman experience,
[employer] tainted its promotions to foreman with the sex-
bias evident in its promotions to step-up foreman").

31. EEOC Compliance Manual, Section 708.6(c) (BNA)
708:0036. Accord Corning Glass Works, 417 U.S. at 204-205
(Court rejected employer's defense of lower female wage on
the basis that men would not work at women's rate and that
it reflected market in which employer could pay women less
than men); Brock v. Georgia Southwestern College, 765 F.2d
at 1037 ("the argument that supply and demand dictates
that women qua women may be paid less is exactly the kind
of evil that the [EPA] was designed to eliminate . . . .")
(emphasis in original).

32. EEOC Compliance Manual, Section 708.6(c) (BNA)
708:0038. Accord Brock v. Georgia Southwestern College,
765 F.2d at 1037 ("Merely claiming that teachers of
certain subjects or with certain qualifications are worth
more does not explain away discrepancies absent an
explanation of how those factors actually resulted in an
individual employee earning more than another - especially
when the evidence shows that women with equal or greater
qualifications who taught the same subjects were paid
less"; "'any credibility that the market force defense
might have is diminished by the fact that those charged
with hiring did not inform themselves of the market rates
of particular expertise, experience, or skills.'" (quoting
489 F. Supp. at 1331)).

33. See, e.g., Horner v. Mary Inst., 613 F.2d 706, 714
(8th Cir. 1980) (defense successful where employer took
into consideration marketplace value of male employee's
greater experience and ability).

34. EEOC Compliance Manual, Section 708.6(d) (BNA)
708:0040.

35. Miranda v. B & B Cash Grocery Store, 975 F.2d 1518,
1530-31 (11th Cir. 1992) (plaintiff established Title VII
claim where employer's justification for paying woman
buyer less than men buyers was that buyers' salaries were
set according to salary individual was making at time of
transfer and men were making more in prior positions;
court found women had been excluded from promotion line
and had been relegated to lower paying jobs and thus,
employer could not rely on an illegitimate market force
theory to justify its failure to pay woman same salary as
men in her classification).

36. See Andrew Zimbalist, Gender Equity and the Economics
of College Sports, in Advances in the Economics of Sport,
vol 2 (JAI Press, forthcoming 1997) (analyzing market
pressures on college athletic programs and concluding that
non- economic factors, including gender discrimination,
may distort salary levels).

37. EEOC Compliance Manual, Section 708.6(d) (BNA)
708:0041-708:0042.

38. Id. at 708:0042.

39. See supra notes 1-5 and accompanying text.

40. See EEOC v. Madison Community Unit Sch. Dist. No. 12,
818 F.2d at 585 ("An employer cannot divide equal work
into two job classifications that carry unequal pay,
forbid women to compete for one of the classifications,
and defend the resulting inequality in pay between men and
women by reference to a 'factor other than [the] sex' of
the employees."); Bence v. Detroit Health Corp., 712 F.2d
1024, 1031 (6th Cir. 1983), cert. denied, 465 U.S. 1025
(1984) (employer may not avail itself of "factor other
than sex" defense where "segregation [of male and female
employees into men's and women's departments] plus
application of a lower commission rate only to those who
sold memberships to women effectively locked female
employees, and only female employees, into an inferior
position regardless of their effort or productivity.")
(footnote omitted, emphasis in original). While the court
in Deli v. Univ. of Minnesota, 863 F. Supp. at 961,
accepted the defense that a pay differential based on the
sex of the student athletes is a "factor other than sex,"
it did so without any analysis of whether women coaches
were hired predominantly to coach female athletes. In the
absence of such analysis, the Commission finds the
district court's reasoning unpersuasive.

If an employer defends coaches' pay disparities based
on the sex of the athletes coached, the Commission may
refer the case to the Department of Education Office of
Civil Rights to investigate whether the employer
discriminated against students on the basis of sex in
violation of Title IX.

41. See Wynn v. Columbus Mun. Separate Sch. Dist., 692 F.
Supp. 672, 681-82 (N.D. Miss. 1988) (limiting athletic
directorship to football coach discriminated against women
where football coach position was limited to men, even
though other male coaches were also excluded from the
position along with women coaches).

42. For example, in Harker v. Utica College of Syracuse
Univ., 885 F. Supp. 378 (N.D.N.Y. 1995), a former women's
basketball and softball coach claimed that the men's
basketball coach was making more money in violation of the
EPA; in 1992- 93, he earned $34,814 compared to her
$29,916. The court found that under the EPA, the jobs
were substantially equal. The court did not accept the
defendant's defense that the male coach had more education
(masters over a B.A.), but did find the male coach's
length of service to be a legitimate reason for the wage
differential - the male had nine years of experience at
the college level at the time the plaintiff was hired. As
stated by the court, "defendants are entitled to use
individualized qualifications as legitimate grounds for
wage differences provided that such qualifications are not
gender based." Id. at 391.

43. 29 C.F.R. § 1620.20. As noted in the
regulations, the employer cannot successfully claim an
extra duties defense if the male coach receives the higher
pay without doing the extra work; if the woman coach also
performs extra duties requiring equal skill, effort, and
responsibility; if the extra duties do not in fact exist;
if the extra duties require a minimal amount of time and
are of peripheral importance; or if third persons who
perform the extra duties as their primary job are paid
less than the male coach. Id. The issue of extra duties
can arise in proving that the jobs are substantially equal
and as a defense to a pay differential. See Brennan v.
Prince William Hospital Corp., 503 F.2d 282, 291 (4th Cir.
1974), cert. denied, 420 U.S. 972 (1975) (finding jobs of
male orderlies and female aides substantially equal where
extra duties performed by orderlies required no
significant effort or skill or responsibility, or were
also performed by aides).

44. See Hodgson v. Behrens Drug Co., 475 F.2d 1041, 1047
(5th Cir.), cert. denied, 414 U.S. 822 (1973) (fact that
men and not women participated in a training program was
not "factor other than sex" where company excluded women
from the training program). See also supra note 10.

45. See supra discussion at II. Legal Analysis.

46. Under traditional Title VII disparate treatment
analysis, once a plaintiff makes out a prima facie case,
only the burden of articulating a non-discriminatory
reason shifts to the defendant; the ultimate burden of
proving that the employer intentionally discriminated
against the plaintiff remains at all times with the
plaintiff. St. Mary's Honor Center v. Hicks, 509 U.S.
502, 507 (1993). In contrast, under the EPA, once a
plaintiff has established that the work is equal, the
burden is on the defendant to prove one of the EPA's four
affirmative defenses.

47. For the same reasons set out in the section
addressing the Equal Pay Act, a school's defense that a
pay disparity is based on the sex of the athletes coached,
and not the sex of the coach, will be rejected under Title
VII if the institution has effectively limited women to
coaching women's teams. See supra notes 39-41 and
accompanying text. In cases which have accepted the
defense, there has been no evidence or consideration that
the institution limited coaching positions for women.
See, e.g., Deli v. Univ. of Minnesota, 863 F. Supp. at
959-60 ("[Plaintiff] does not claim that the Univ.'s
motivation for paying her less money than the coaches of
men's sports was the fact that Plaintiff was a woman and
the coaches of men's sports were men.").

In a Commission Decision, No. 85-15, CCH Employment
Practices Guide Par. 6856, a male coaching girls' junior
varsity softball alleged that he was being discriminated
against in compensation under Title VII because he coached
girls. The Commission, based solely on the charging
party's allegation, concluded that he did not state a
claim under Title VII. There was no allegation or
evidence that coaches of girls' sports were predominantly
women and because of that fact, were being
discriminatorily compensated. The Commission did not
consider whether the school limited coaching positions for
women. To the extent that the decision conflicts with
this guidance, the decision is overruled.

48. See also Int'l. Union of Electrical Workers,
AFL-CIO-CLC v. Westinghouse Elec. Corp., 631 F.2d 1094,
1096-97 (3d Cir. 1980), cert denied, 452 U.S.967 (1981)
(allegations that employer had policy of deliberately
setting wage rates lower for job classifications
predominately filled by females than for classifications
predominately filled by men stated claim under Title VII
even though men's and women's jobs not the same); Van
Heest v. McNeilab, Inc., 624 F. Supp. 891, 898-99 (D. Del.
1985) (female plaintiff failed to state claim under EPA
because no man held equal job; stated claim under Title
VII because unlike male employees, she did not receive
full compensation for her duties, was paid less than the
minimum salary for her level, and never received a merit
bonus, and fact that males who replaced her were paid much
more than she raised inference of discrimination).

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Enforcement Guidance on Sex Discrimination in the Compensation of Sports Coaches in Educational Institutions