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.

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).

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)