Pay Equity in the Construction Industry

AuthorBy Anne G. Bibeau, Michael J. Frantz Jr., and Kristen E. Protas
Published in The Construction Lawyer, Volume 41, Number 1, Winter 2021. © 2021 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Pay Equity in the
Construction Industry
By Anne G. Bibeau, Michael J. Frantz Jr., and Kristen E. Protas
The Equal Pay Act (EPA) is one
of the rst federal statutes that
addressed gender-based pay dis-
parity and was signed into law
by President John F. Kennedy
in 1963. In 1960, the disparity
between male and female wages
was 60.7 percent.
Despite the
EPAs passage, a wage gap still
exists today, although, as dis-
cussed below, it is somewhat
smaller than it was 60 years
ago. Perhaps the reason for
this continuing gap is the lack
of “teeth” in the EPA. How-
ever, the EPA has remained
legislatively unchanged since its
enactment. As a result, in recent
years, there has been an increase
in state legislation to address
gender-based wage disparity
and a corresponding uptick in
enforcement actions, employee
claims, and lawsuits. This arti-
cle will describe current federal
and state sex-based pay dispar-
ity law. It will also describe steps
that employers and their coun-
sel should consider, and the current state of sex-based
pay disparity in the construction industry.
Equal Pay Act and Title VII
Sex-based pay discrimination is prohibited by both the
EPA, which amended the Fair Labor Standards Act
and Title VII of the Civil Rights Act of 1964
(Title VII).3 Although both laws prohibit sex-based pay
disparity, there are signicant differences between them.
For example, the EPA is directed only at wage discrim-
ination between the sexes, as it forbids unequal wages
for equal work to employees of the opposite sex.
larly, the EPA prohibits sex-based wage discrimination
between men and women in the same establishment who
perform jobs requiring substantially equal skill, effort,
and responsibility under similar working conditions.
For purposes of comparison, “the jobs need not be iden-
tical, but they must be ‘substantially equal’” in terms of
skill, effort, and responsibility.
Crucially, “[u]nlike the
showing required under Title VII’s disparate treatment
theory, proof of discriminatory intent is not required to
establish a prima facie case under the Equal Pay Act.”
Once the plaintiff makes a prima facie case under the
EPA, the burden shifts to the employer to establish one
of the four afrmative defenses provided in the statute. To
do so, the employer must prove that the pay difference 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.”8
Title VII, on the other hand, is much broader than
the EPA and prohibits discrimination in any aspect of
employment (e.g., pay, hiring, ring, promotion, etc.)
based on sex, race, national origin, and other protected
characteristics.9 In pay discrimination claims, under the
disparate treatment approach of Title VII, there is a
relaxed standard of similarity between male- and female-
occupied jobs, but the plaintiff has the burden of proving
an intent to discriminate on the basis of sex or some
other protected characteristic. Additionally, Title VII
allows for disparate impact claims, where the plaintiff
proves employment “practices that are fair in form, but
discriminatory in operation.”
If the plaintiff can prove
a disparate impact, the employer then must prove a legiti-
mate, nondiscriminatory reason for the difference in pay.11
Different damages are available under the EPA and
Title VII. Under the EPA, an additional amount equal
to backpay may be awarded as liquidated damages unless
the employer shows that the violation was in good faith.
Title VII, on the other hand, provides for compensatory
damages, punitive damages, and equitable relief. Compen-
satory damages include pecuniary losses, emotional pain,
suffering, inconvenience, mental anguish, loss of enjoy-
ment of life, and other nonpecuniary losses. Together
with punitive damages, compensatory damages are sub-
ject to a statutory cap, based on the defendant’s number
of employees.
Back pay, interest on back pay, and front
pay are not “compensatory damages,” and therefore are
excluded from the cap.
Another key difference between
the EPA and Title VII is the limitations period for bring-
ing claims. Under the EPA, as with other FLSA claims,
the plaintiff has two years to bring a claim; three years
if the violation was willful.
Under Title VII, the plain-
tiff must le a charge with the U.S. Equal Employment
Opportunity Commission (EEOC) within 180 calendar
days of the incident giving rise to the claim or, if a state or
Anne G. Bibeau
Michael J . Frantz Jr.
Kristen E . Protas

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