CACI 2741 Affirmative Defense—Different Pay Justified
California Civil Jury Instructions CACI
2741 Affirmative Defense—Different Pay Justified
[Name of defendant] claims that [he/she/nonbinary pronoun/it] was justified in paying [name of plaintiff] a wage rate that was less than the rate paid to employees of [the opposite sex/another race/another ethnicity]. To establish this defense, [name of defendant] must prove all of the following:
1.That the wage differential was based on one or more of the following factors:
[a.A seniority system;]
[b.A merit system;]
[c.A system that measures earnings by quantity or quality of production;]
[d.(Specify alleged bona fide factor(s) other than sex, race, or ethnicity, such as education, training, or experience.).]
2.That each factor was applied reasonably; and
3.That the factor[s] that [name of defendant] relied on account[s] for the entire wage differential.
Prior salary does not justify any disparity in current compensation.
New May 2018; Revised January 2019
Directions for Use
The California Equal Pay Act presents four factors that an employer may offer to justify a pay differential that results in an apparent pay disparity based on gender, race, or ethnicity. Factors a, b, and c in element 1 are specific.
If factor d is selected, the jury must also be instructed with CACI No. 2742, Bona Fide Factor Other Than Sex, Race, or Ethnicity, which establishes what bona fide factors other than sex, race, or ethnicity may justify a pay differential. (See Lab. Code, § 1197.5(a)(1), (b)(1).) Choose the factor or factors that the employer asserts as justification.
Sources and Authority
•Factors Justifying Pay Differential. Labor Code section 1197.5(a)(1), (b)(1).