CACI No. 2743. Equal Pay Act - Retaliation - Essential Factual Elements (Lab. Code, § 1197.5(k))

Judicial Council of California Civil Jury Instructions (2023 edition)

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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
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.
New May 2018; Revised May 2020
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
employers 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)
2744-2749. Reserved for Future Use

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