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11 PJI 0 | Third Circuit (US)
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In this case the Plaintiff _______ has made a claim under the Equal Pay Act, a statute that prohibits an employer from paying women less than men for jobs that require substantially equal work.

Specifically, [plaintiff] claims that she was paid less than (a) male employee(s) even though she performed substantially equal work.

[Defendant] claims that [plaintiff’s] job was not substantially equal to the jobs performed by the male employee(s). Further, [defendant] asserts that [describe any affirmative defenses].

I will now instruct you more fully on the issues you must address in this case.

COMMENT Referring to the parties by their names, rather than solely as “Plaintiff” and “Defendant,” can improve jurors’ comprehension. In these instructions, bracketed references to “[plaintiff]” or “[defendant]” indicate places where the name of the party should be inserted.

The central provision of the Equal Pay Act is 29 U.S.C. §206(d)(1), which provides as follows:

(d) Prohibition of sex discrimination.

(1) No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee.

The Supreme Court in Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974), described the intent of the Equal Pay Act:
Congress' purpose in enacting the Equal Pay Act was to remedy what was perceived to be a serious and endemic problem of employment discrimination in private industry -- the fact that the wage structure of many segments of American industry has been based on an ancient but outmoded belief that a man, because of his role in society, should be paid more than a woman even though his duties are the same. The solution adopted was quite simple in principle: to require that “equal work will be rewarded by equal wages.” The Equal Pay Act was created to prohibit wage discrimination against women. But the language of the statute is broad enough to permit recovery by a male alleging sex-based wage discrimination. See, e.g., Board of Regents v. Dawes, 522 F.2d 380 (8th Cir. 1975) (paying women more than men for substantially equal work violates the Equal Pay Act). These instructions are written using the feminine for the plaintiff, as the case law indicates that virtually all of the plaintiffs are women, but it can of course be modified if the plaintiff is male.

Relationship to Title VII

A claim for sex-based wage discrimination can potentially be brought under either the Equal Pay Act, or Title VII, or both. There are some similarities, and some important differences, between a claim under the Equal Pay Act and a Title VII action for sex-based wage discrimination.

The most important similarity between the two actions is that the affirmative defenses set forth in the Equal Pay Act — (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; and (iv) a differential based on any other factor other than sex — are applicable to Title VII actions for sex-based wage discrimination. This was made clear by the Bennett Amendment to Title VII. See the discussion in County of Washington v. Gunther, 452 U.S. 161 (1981).

The most important differences between the two actions are:

1. The Equal Pay Act does not require proof of intent to discriminate. EEOC v. Delaware Dept. of Health and Social Services, 865 F.2d 1408 (3d Cir. 1989). The plaintiff recovers under the Equal Pay Act by proving that she received lower pay for substantially equal work. In contrast, Title VII disparate treatment claims require proof of an intent to discriminate. See Lewis and Norman, Employment Discrimination Law § 7.15 (2d ed. 2001). On the other hand, Title VII does not require the plaintiff to prove the Equal Pay Act statutory requirements of “equal work” and “similar working conditions.” In Gunther, supra, the Supreme Court explained the importance of retaining Title VII recovery as an alternative to recovery under the Equal Pay Act. The Gunther Court recognized that under the Bennett Amendment to Title VII, a claim for sex-based wage discrimination is subject to the affirmative defenses of the Equal Pay Act. But the Court held that a Title VII action is not similarly subject to the statutory requirements of showing “equal work,” “similar working conditions,” etc. The Court found it important to retain the possibility of recovery for intentional sex-based wage discrimination under Title VII:
Under petitioners' reading of the Bennett Amendment, only those sex-based wage discrimination claims that satisfy the "equal work" standard of the Equal Pay Act could be brought under Title VII. In practical terms, this means that a woman who is discriminatorily underpaid could obtain no relief -- no matter how egregious the discrimination might be -- unless her employer also employed a man in an equal job in the same establishment, at a higher rate of pay. Thus, if an employer hired a woman for a unique position in the company and then admitted that her salary would have been higher had she been male, the woman would be unable to obtain legal redress under petitioners' interpretation. Similarly, if an employer used a transparently sex-biased system for wage determination, women holding jobs not equal to those held by men would be denied the right to prove that the system is a pretext for discrimination. Moreover... if the employer required its female workers to pay more into its pension program than male workers were required to pay, the only women who could bring a Title VII action under petitioners' interpretation would be those who could establish that a man performed equal work: a female auditor thus might have a cause of action while a female secretary might not. Congress surely did not intend the Bennett Amendment to insulate such blatantly discriminatory practices from judicial redress under Title VII. 452 U.S. at 178-79.

2. Title VII’s burden-shifting schemes (see Instructions 5.1.1, 5.1.2) differ from the burdens of proof applicable to an action under the Equal Pay Act. The difference was explained by the Third Circuit in Stanziale v. Jargowsky, 200 F.3d 101, 107-108 (3d Cir. 2000), a case in which the plaintiff brought claims under Title VII, the ADEA, and the Equal Pay Act:
Unlike the ADEA and Title VII claims, claims based upon the Equal Pay Act, 29 U.S.C. § 206 et seq., do not follow the three-step burden-shifting framework of McDonnell Douglas; rather, they follow a two-step burden-shifting paradigm. The plaintiff must first establish a prima facie case by demonstrating that employees of the opposite sex were paid differently for performing "equal work" -- work of substantially equal skill, effort and responsibility, under similar working conditions. E.E.O.C. v. Delaware Dept. of Health and Social Services, 865 F.2d 1408, 1413-14 (3rd Cir. 1989). The burden of persuasion then shifts to the employer to demonstrate the applicability of one of the four affirmative defenses specified in the Act. Thus, the employer's burden in an Equal Pay Act claim -- being one of ultimate persuasion -- differs significantly from its burden in an ADEA [or Title VII] claim. Because the employer bears the burden of proof at trial, in order to prevail at the summary judgment stage, the employer must prove at least one affirmative defense "so clearly that no rational jury could find to the contrary." Delaware Dept. of Health, 865 F.2d at 1414.

The employer's burden is significantly different in defending an Equal Pay Act claim for an additional reason. The Equal Pay Act prohibits differential pay for men and women when performing equal work "except where such payment is made pursuant to" one of the four affirmative defenses. 29 U.S.C. § 206(d)(1) (emphasis added). We read the highlighted language of the statute as requiring that the employer submit evidence from which a reasonable factfinder could conclude not merely that the employer's proffered reasons could explain the wage disparity, but that the proffered reasons do in fact explain the wage disparity. See also Delaware Dept. of Health, 865 F.2d at 1415 (stating that "the correct inquiry was... whether, viewing the evidence most favorably to the [plaintiff], a jury could only conclude that the pay discrepancy resulted from" one of the affirmative defenses (emphasis added)). Thus, unlike an ADEA or Title VII claim, where an employer need not prove that the proffered legitimate nondiscriminatory reasons actually motivated the salary decision, in an Equal Pay Act claim, an employer must submit evidence from which a reasonable factfinder could conclude that the proffered reasons actually motivated the wage disparity.
3. The Equal Pay Act exempts certain specific industries from its coverage, including some fishing and agricultural businesses. See 29 U.S.C. § 213. These industries are not, however, exempt from Title VII.

4. In contrast to Title VII, the Equal Pay Act has no coverage threshold defined in terms of the employer’s number of employees.

5. The Equal Pay Act carries a longer limitations period for back pay than does Title VII. As stated in Lewis and Norman, Employment Discrimination Law § 7.20 (2d ed. 2001):
An EPA action is governed by the FLSA [Fair Labor Standards Act] statute of limitations. The FLSA provides a two year statute of limitations for filing, three years in the case of a “willful” violation. These statutes of limitation compare favorably from the plaintiff’s perspective with the 180-day or 300-day administrative filing deadlines of Title VII. Under Title VII, the statute of limitations for a pay claim begins to run upon the occurrence of an “unlawful employment practice,” which, pursuant to the 2009 amendments to 42 U.S.C. § 2000e-5(e), can include “when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.” Id. § 2000e-5(e)(3)(A).1 This amendment brings the accrual date for a Title VII claim more in line with the EPA mechanism, in which an EPA claim arises each time the employee receives lower pay than male employees doing substantially similar work.

6. “The Equal Pay Act, unlike Title VII, has no requirement of filing administrative complaints and awaiting administrative conciliation efforts.” County of Washington v. Gunther, 452 U.S. 161, 175, n.14 (1981).

Where the plaintiff claims that wage discrimination is a violation of both Title VII and the Equal Pay Act, it will be necessary to give two sets of instructions, with the proviso that the affirmative defenses provided by the Equal Pay Act (see Instructions 11.2.1-11.2.4) will be applicable to both claims.

7. The Supreme Court decided in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), that discrimination on the basis of sexual orientation or transgender status is a subset of discrimination on account of sex under Title VII. It is not clear if this principle applies to the EPA.

(Last Updated October 2018)


1 See Noel v. The Boeing Co., 622 F.3d 266, 273 (3d Cir. 2010) (holding that Section 2000e-5(e)(3)(A) “does not apply to failure-to-promote claims”).

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