TORRUELLA, Circuit Judge.
This case is before us on appeal by defendants, the President of Framingham State College, the Board of Trustees of State Colleges and the board members, from a judgment of the United States District Court for the District of Massachusetts, 578 F.Supp. 45 (D.C.Mass.1983), finding willful violations of the Equal Pay Act, 29 U.S.C. § 206(d) (the Act), in that since August 4, 1973, female faculty members at the College have been paid less than their male collegues for equal work.
In the first instance, defendants claimed that the Act was unconstitutional. Failing to prevail on that point, they denied the violation. Prior to trial, however, the parties narrowed the issues significantly by stipulating that:
With respect to skill, the stipulation provided that:
At trial, the Equal Employment Opportunity Commission (EEOC), plaintiff in the case,
Appellants initially argue, as they did below, that the 29 U.S.C. § 206(d)
Our review of both the statute and the regulation reveals that neither is industry specific; unequal pay for equal work is generally prohibited regardless of the workplace or industry. Additionally, appellants have failed to present, nor have we been able to find, any evidence or authority to support their contention to the effect that educational institutions should be dealt with under the law in a special manner not accorded any other employer classification. Although appellants are correct in stating that due process requires that a statute clearly define what conduct is prohibited so that those covered by its provisions may be adequately apprised of its meaning, (see di leo v. Greenfield, 541 F.2d 949 (2nd Cir.1976); Smith v. Goguen, 415 U.S. 566, 573, 94 S.Ct. 1242, 1247, 39 L.Ed.2d 605 (1974); Grayned v. City of Rockford, 408 U.S. 104, 108-9, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972)), we find nothing in the law which mandates the promulgation of guidelines regarding the educational employment setting. Nor does the failure of the Secretary of Labor to promulgate these industry specific regulations vis-a-vis educational employment make a heretofore constitutionally clear statute
Appellants next contest the court's findings of fact, alleging that it erroneously admitted irrelevant evidence, thus making the EEOC's statistical conclusions inaccurate.
Appellants take issue with the inclusion of data for years prior to 1974 and the inclusion of professors hired prior to that date.
Appellants make much ado about alleged flaws in Dr. Michaelson's statistical analysis. To counter his testimony, they presented their own statistician, Dr. Richard Freeman. Dr. Freeman made a similar analysis, but only for the year 1978. His analysis did not show the statistical significance which Dr. Michaelson encountered, although he did find that women were paid less than men. As pointed out by the district court in its opinion:
Our review of the record leaves us with the same impression. The credibility given to the EEOC's expert was within the trial court's scope of discretion. See U.S. v. Hensel, 699 F.2d 18 (1st Cir.1983).
In the action below, defendants claimed that a prima facie case had not been established because Dr. Michaelson did not consider ability as a factor when making his analysis. Appellants argue that by excluding ability from consideration, the district court reduced the plaintiff's burden of proof. See Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2223, 2228, 41 L.Ed.2d 1 (1974) ("The plaintiff has the burden of proof to show that an employer pays different wages to employees of the opposite sexes for equal work on jobs the performance of which requires equal skill, effort and responsibility, and which are performed under similar working conditions."). In both their post-trial submissions and on this appeal the parties disagree as to whether equal ability was incorporated into their stipulation. As mentioned before, the crucial element of the stipulation stating that equal skill was not stipulated as a requirement for the work performed, included only the considerations of experience, training and education.
The district court, finding that the administrative regulation defines "skill" within the meaning of the Equal Pay Act as "includ[ing] consideration of such factors as experience, training, education, and ability," 29 C.F.R. § 800.125 (emphasis added by district court), concluded that equal ability had been stipulated by inference. That is, because it was not stipulated that ability was a contested issue, the court below concluded that it was stipulated as being equal.
Both, the district court and the parties, premise their reasoning on the proposition that the definition of skill in 29 C.F.R. § 800.125 contains four immutable elements: experience, training, education, and ability. Our perusal of the passage of this regulation leads us to a different conclusion. The wording to the effect that "skill includes consideration of factors such as experience, training, education, and ability" is exemplary in nature, being neither mandatory nor exclusionary.
Appellants contest the extension of the statute of limitations pursuant to 29 U.S.C. § 255(a),
Appellants argue that this position is rejected in the Supreme Court's recent decision in TransWorld Airlines, Inc. v. Thurston, ___ U.S. ___, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985). As appellants themselves acknowledge, however, the Supreme Court's analysis purposely avoided deciding what the proper "willfulness" standard is in cases involving the statute of limitations. That court stated only that "[e]ven if the [standard enunciated in Erin Food Service] were appropriate for the statute of limitations, the same standard should not govern a provision dealing with liquidated damages." Thurston, supra at 625. The Supreme Court then made the following observation in a footnote: "The Courts of Appeals are divided over whether Congress intended the willfulness standard to be identical for determining liquidated damages and for purposes of the limitations period." (Citations omitted). Id. at n. 21. Likewise, appellant's arguments regarding the legislative history of congressional intent for liquidated damages under the Age Discrimination in Employment Act do not persuade us to reject this court's test for a statute of limitations, especially where the Supreme Court appears as yet to be undecided on this issue.