Getting to Deuce: Professional Tennis and the Need for Expanding Coverage of Federal Antidiscrimination Laws

Abstract

In 2007, Wimbledon became the last Grand Slam tournament to equalize prize money payouts for male and female players. But research shows the persistence of a gender pay gap in tennis where women earn less than men. If this is the case, why haven’t women filed suit against their employers for unlawful sex discrimination? The answer is simple: because federal statutes prohibiting discrimination on the basis of sex — such as Title VII and the Equal Pay Act — only apply to employees. Tennis players are independent contractors. The distinction between employees and independent contractors is perhaps the most litigated issue in employment law. Federal statutes define the term “employee” circularly and courts have applied the common law agency test, which is useful for adjudicating tort liability but not employment discrimination. The underinclusiveness of current antidiscrimination laws is especially problematic for high-paid independent contractors, like professional tennis players, because unequal treatment can mean the difference between hundreds of thousands of dollars in earnings. To effectuate the broad remedial purposes of the antidiscrimination laws, Congress and the courts should expand the laws' coverage. This Note takes a novel approach by using a socio-legal framework, with tennis as a case study, to argue that some independent contractors should be protected under federal law. The most practical and effective approach for expanding coverage is returning to the economic realities test. Courts have had no trouble applying the test in employment discrimination cases in the past, and it would enable the federal statutes to protect independent contractors who do not have employees, have unequal bargaining power, and exercise relatively little control over the manner in which they perform their work.