CACI 2743 Equal Pay Act—Retaliation—Essential Factual Elements (Lab. Code, § 1197.5(k))

California Civil Jury Instructions CACI

2743 Equal Pay Act—Retaliation—Essential Factual Elements (Lab. Code, § 1197.5(k))

[Name of plaintiff] claims that [name of defendant] retaliated against [him/her/nonbinary pronoun] for [pursuing/assisting another in the enforcement of] [his/her/nonbinary pronoun] right to equal pay regardless of [sex/race/ethnicity]. To establish this claim, [name of plaintiff] must prove all of the following:

1.That [name of plaintiff] [specify acts taken by plaintiff to enforce or assist in the enforcement of the right to equal pay];

2.That [name of defendant] [discharged/[other adverse employment action]] [name of plaintiff];

3.That [name of plaintiff]’s [pursuit of/assisting in the enforcement of another’s right to] equal pay was a substantial motivating reason for [name of defendant]’s [discharging/[other adverse employment action]] [name of plaintiff];

4.That [name of plaintiff] was harmed; and

5.That [name of defendant]’s retaliatory conduct was a substantial factor in causing [name of plaintiff]’s harm.

Directions for Use

Use this instruction in cases of alleged retaliation against an employee under the Equal Pay Act. The act prohibits adverse employment actions against an employee who has taken steps to enforce the equal pay requirements of the act. Also, the employer cannot prohibit an employee from disclosing that employee’s own wages, discussing the wages of others, inquiring about another employee’s wages, or aiding or encouraging any other employee to exercise that employee’s rights. (Lab. Code, § 1197.5(k)(1).) An employee who has been retaliated against may bring a civil action for reinstatement, reimbursement for lost wages and work benefits, interest, and equitable relief. (Lab. Code, § 1197.5(k)(2).)

Note that there are two causation elements. First, there must be a causal connection between the employee’s pursuit of equal pay and the adverse employment action (element 3). Second, the employee must have suffered harm because of the employer’s retaliatory acts (element 5).

Element 3 uses the term “substantial motivating reason” to express both intent and causation between the employee’s pursuit of equal pay and the adverse employment action. “Substantial motivating reason” has been held to be the appropriate standard under the discrimination prohibitions of the Fair Employment and Housing Act to address the possibility of both discriminatory and nondiscriminatory motives. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; CACI No. 2507, “Substantial Motivating Reason” Explained.) Whether this standard applies to the Equal Pay Act retaliation cases has not been addressed by the courts.

Sources and Authority

Retaliation Prohibited Under Equal Pay Act. Labor Code section 1197.5(k).

Secondary Sources

3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment, §§ 430, 431
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-G, Compensation—Wage Discrimination, ¶ 11:1077.20 (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)