CACI No. 2742. Bona Fide Factor Other Than Sex, Race, or Ethnicity

Judicial Council of California Civil Jury Instructions (2020 edition)

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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.
New May 2018
Directions for Use
This instruction must be given along with CACI No. 2741, Affırmative
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).
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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, ¶ 11:1077.10 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)
CACI No. 2742 LABOR CODE ACTIONS
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Copyright Judicial Council of California

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