CACI No. 2741. Affirmative Defense - Different Pay Justified
Judicial Council of California Civil Jury Instructions (2023 edition)
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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).
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
69
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)
CACI No. 2741 LABOR CODE ACTIONS
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© Judicial Council of California.
