Pay Equity in the Construction Industry

• Author: By Anne G. Bibeau, Michael J. Frantz Jr., and Kristen E. Protas
• Pages: 34-41

THE CONSTRUCTION LAWYER34 Winter 2021

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

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CLOSING THE GAP

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.

1

Despite the

EPA’s 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

(FLSA),

2

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.

4

Simi-

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.

5

For purposes of comparison, “the jobs need not be iden-

tical, but they must be ‘substantially equal’” in terms of

skill, effort, and responsibility.

6

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.”

7

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.”

10

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.

12

Back pay, interest on back pay, and front

pay are not “compensatory damages,” and therefore are

excluded from the cap.

13

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.

14

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