CACI 2740 Violation of Equal Pay Act—Essential Factual Elements (Lab. Code, § 1197.5)

California Civil Jury Instructions CACI

2740 Violation of Equal Pay Act—Essential Factual Elements (Lab. Code, § 1197.5)

[Name of plaintiff] claims that [he/she/nonbinary pronoun] was paid at a wage rate that is less than the rate paid to employees of [the opposite sex/another race/another ethnicity]. To establish this claim, [name of plaintiff] must prove all of the following:

1.That [name of plaintiff] was paid less than the rate paid to [a] person[s] of [the opposite sex/another race/another ethnicity] working for [name of defendant];

2.That [name of plaintiff] was performing substantially similar work as the other person[s], considering the overall combination of skill, effort, and responsibility required; and

3.That [name of plaintiff] was working under similar working conditions as the other person[s].

Directions for Use

The California Equal Pay Act prohibits paying employees at lower wage rates than rates paid to employees of the opposite sex or a different race or ethnicity for substantially similar work. (Lab. Code, § 1197.5(a), (b).) An employee receiving less than the wage to which the employee is entitled may bring a civil action to recover the balance of the wages, including interest, and an equal amount as liquidated damages. Costs and attorney fees may also be awarded. (Lab. Code, § 1197.5(h).) There is no requirement that an employee show discriminatory intent as an element of the claim. (Green v. Par Pools, Inc. (2003) 111 Cal.App.4th 620, 622–625, 629 [3 Cal.Rptr.3d 844].)

This instruction presents singular and plural options for the comparator, the employee or employees whose pay and work are being compared to the plaintiff’s to establish a violation of the Equal Pay Act. The statute refers to employees of the opposite sex or different race or ethnicity. There is language in cases, however, that suggests that a single comparator (e.g., one woman to one man) is sufficient. (See Hall v. County of Los Angeles (2007) 148 Cal.App.4th 318, 324 [55 Cal.Rptr.3d 732] [plaintiff had to show that she is paid lower wages than a male comparator, italics added]; Green, supra, 111 Cal.App.4th at p. 628 [plaintiff in a section 1197.5 action must first show that the employer paid a male employee more than a female employee for equal work, italics added].) No California case has expressly so held, however.

There are a number of defenses that the employer may assert to defend what appears to be an improper pay differential. (Lab. Code, § 1197.5(a), (b).) See CACI No. 2741, Affirmative Defense—Different Pay Justified, and CACI No. 2742, Bona Fide Factor Other Than Sex, Race, or Ethnicity, for instructions on the employer’s affirmative defenses. (See Lab. Code, § 1197.5(a)(1), (b)(1).)

Sources and Authority

Right to Equal Pay Based on Gender, Race, or Ethnicity. Labor Code section 1197.5(a), (b).

Private Right of Action to Enforce Equal Pay Claim. Labor Code section 1197.5(h).

“This section was intended to codify the principle that an employee is entitled to equal pay for equal work without regard to gender.” (Jones v. Tracy School Dist. (1980) 27 Cal.3d 99, 104 [165 Cal.Rptr. 100, 611 P.2d 441].)

“To establish her prima facie case, [plaintiff] had to show not only that she is paid lower wages than a male comparator for equal work, but that she has selected the proper comparator. ‘The EPA does not require perfect diversity between the comparison classes, but at a certain point, when the challenged policy effects [sic] both male and female employees equally, there can be no EPA violation. [Citation.] [A plaintiff] cannot make a comparison of one classification composed of males and females with another classification of employees also composed of males and females.’ ” (Hall, supra, 148 Cal.App.4th at pp. 324–325.)

“[T]he plaintiff in a section 1197.5 action must first show that the employer paid a male employee more than a female employee ‘ “for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” ’ ” (Green, supra, 111 Cal.App.4th at p. 628.)

Secondary Sources

3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment, §§ 355 et seq., 430, 431
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-G, Compensation—Wage Discrimination, ¶ 11:1075 et seq. (The Rutter Group)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal Employment Opportunity Laws, § 43.02 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and Hour Disputes, § 250.14 (Matthew Bender)