CACI 2742 Bona Fide Factor Other Than Sex, Race, or Ethnicity
California Civil Jury Instructions CACI
2742 Bona Fide Factor Other Than Sex, Race, or Ethnicity
[Name of defendant] claims that [specify bona fide factor other than sex, race, or ethnicity] is a legitimate factor other than [sex/race/ethnicity] that justifies paying [name of plaintiff] at a wage rate that is less than the rate paid to employees of [the opposite sex/another race/another ethnicity].
[Specify factor] is a factor that justifies the pay differential only if [name of defendant] proves all of the following:
1.That the factor is not based on or derived from a [sex/race/ethnicity]-based differential in compensation;
2.That the factor is job related with respect to [name of plaintiff]’s position; and
3.That the factor is consistent with a business necessity.
A “business necessity” means an overriding legitimate business purpose such that the factor effectively fulfills the business purpose it is supposed to serve.
This defense does not apply, however, if [name of plaintiff] proves that an alternative business practice exists that would serve the same business purpose without producing the pay differential.
Directions for Use
This instruction must be given along with CACI No. 2741, Affirmative Defense—Different Pay Justified, if factor d of element 1 of CACI No. 2741 is chosen: a bona fide factor other than sex, race, or ethnicity, such as education, training, or experience. This factor applies only if the employer demonstrates that the factor is not based on or derived from a sex, race, or ethnicity-based differential in compensation, is job-related with respect to the position in question, and is consistent with a business necessity. “Business necessity” means an overriding legitimate business purpose such that the factor effectively fulfills the business purpose it is supposed to serve. This defense does not apply if the employee demonstrates that an alternative business practice exists that would serve the same business purpose without producing the wage differential. (See Lab. Code, § 1197.5(a)(1)(D), (b)(1)(D).)
Sources and Authority
•Bona Fide Factor Other Than Sex, Race, or Ethnicity. Labor Code section 1197.5(a)(1)(D), (b)(1)(D).