Dallas Cowboys cheerleaders and equal pay: What Netflix’s success tells UK employers | smaller

The last watch for many of us at GQ|Littler was the Netflix hit, “America’s Sweethearts: Dallas Cowboys Cheerleaders,” which follows a year in the life of the NFL’s Dallas Cowboys cheerleading team.

Naturally, it got us thinking about equal pay laws and the concept of “work of equal value”, which allows the wages of workers to be compared in roles that, apparently, have material differences but are valued as “equal “. value.” This concept has been central to equal pay law in the UK for decades and is now coming to the fore in the EU as it is central to employers’ obligations in the Pay Transparency Directive (PTD).

One of the most surprising things we learned from the series is that Dallas Cowboys Cheerleaders (DCC) dancers didn’t get paid much (potentially as little as $50,000 a year) compared to football players, who can earn million, while many of the dancers also work day jobs. The pet is even said to pay 65,000 USD per year. It goes without saying that the football team is all men and the DCC all women.

Could it be said that the DCC is doing a job of “equal value” for footballers? We don’t have an answer to this, but there are certainly some illuminating comparisons to get UK and EU employers thinking about ‘equal value’.

DCCs are all highly trained dancers and athletes who put in hours and hours of hard physical work, just as football players are highly trained athletes who put in hours and hours of hard physical work. DCCs are also very profitable and key to the Dallas Cowboys brand and marketing strategy: Considering the Dallas Cowboys are the highest-grossing franchise in the NFL, the huge salary differential is perhaps surprising.

What is “work of equal value”?

The concept of “work of equal value” is, in its simplest form, a comparison between jobs that may seem very different but, when distilled, are actually of equal value to the employer. “Value” is a concept that has been developed over decades of UK cases and will depend on an assessment of all the facts of a particular case, meaning there are no easy answers.

A finding of “equal value” is not sufficient to win a claim on its own if employers are able to show that the pay difference is caused or explained by a “material factor” and that that factor is not tainted by discrimination because of sex

Historically, the most prominent equal pay cases in the UK have drawn comparisons between women in customer service roles and men in more manual labour-intensive roles. For example, in cases involving large supermarkets, it is commonly argued that predominantly female store staff do work of equal value to predominantly male (and better paid) warehouse staff.

The requirement for EU member states to guarantee equal pay for work of equal value is included in one of the founding treaties of the EU, but until now it has not had the same prominence as a concept in the legislation of the EU than in the UK. .

This, however, is changing with the PTD.

The PTD means that EU employers will have to proactively carry out equal value assessments due to the obligation to report on gender pay gaps in relation to ‘categories of workers’ doing the same work or works of equal value. For more information on PTD requirements, see our article here.

The PTD states that the assessment of equal value must use objective and gender-neutral criteria covering the following four factors; ability, effort, responsibility and working conditions. However, as the PTD will have to be implemented in all member states by 7 June 2026, there is scope for differences in how employers should assess ‘equal value’ across the EU

The PTD requires Member States to introduce analytical tools or methodologies for employers to assess the same value. Member States must ensure that training is available to employers and provide guidance on how to carry out the equal value assessment. This risks creating a fractured EU-wide approach to ‘equal value’, where different countries take different approaches, so that there could be different outcomes on the question of equal value if the same were applied made in different countries. This will be complex for employers with EU-wide operations, as it may make it difficult to adopt a single, centralized view of assessing the same value across the EU.

Why “equal value” arguments can lead to huge liabilities

Recent examples from the UK show how significant the potential liabilities are for employers when ‘equal value’ comparisons are successful.

• In September this year (2024), 3,540 female store staff at a retailer were successful in their claim for equal pay comparing basic pay and other contractual conditions with higher paid, predominantly male warehouse staff . The employment tribunal concluded that shop staff and warehouse staff were doing work of “equal value”. The amount of compensation to be paid has not yet been determined and the retailer has indicated it will appeal the decision, but estimates put the claim at around £30m.

• Some other high-profile UK retailers are facing similar claims from female store workers seeking to match their pay with warehouse workers. Estimates in the press put the value of a case at over £1 billion.

• In the public sector, there is a long history of significant compensation being awarded in ‘equal value’ claims. Birmingham City Council, the UK’s second largest city, effectively declared bankruptcy in 2023, largely due to a liability of more than £700m in an ‘equal value’ claim ( the Council had already paid around £1.1 billion). in equal pay awards over the years).

By focusing on ‘work of equal value’, the PTD can highlight similar equal pay issues across the EU.

How to prepare

While we are still awaiting the details of the implementation of the PTD in each Member State, there are steps employers can take now to prepare and mitigate their risk.

• The “equal value” assessment required to comply with the PTD is likely to require a significant amount of work, particularly for employers with large workforces. Employers can begin to assess this now, drawing on lessons from the UK, to identify potential categories of equal value within their workforce.

• EU employers should seriously consider a range of salary assessment and reporting tests to understand their risk. We strongly recommend that this be done with the benefit of specific legal advice to ensure that any investigation or audit is effective and conducted under legal privilege.