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11 PJI 1.1 | Third Circuit (US)
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11 PJI 1.1 | EPA | BASIC ELEMENTS

For [plaintiff] to prevail on her claim against [defendant] for violation of the Equal Pay Act, [plaintiff] must prove all of the following elements by a preponderance of the evidence:

First: [Defendant] has employed [plaintiff] and (a) male employee(s) in jobs requiring substantially equal skill, effort and responsibility;

Second: the two jobs are performed under similar working conditions; and

Third: [Plaintiff] was paid a lower wage than the male employee(s) doing substantially equal work.


I will now give you further instructions on these three elements. When evaluating whether [plaintiff] has established these three elements, you must keep in mind that [plaintiff] does not have to prove that [defendant] meant to discriminate against [plaintiff] because she was female. In other words, [plaintiff] does not have to prove intent to discriminate.

In determining whether [plaintiff’s] job required substantially equal skill, effort, and responsibility as that of the male employee(s), you must compare the jobs and not the individual employees holding those jobs. It is not necessary that the two jobs be identical; the Equal Pay Act requires proof that the performance of the two jobs demands “substantially equal” skill, effort and responsibility. Insignificant, insubstantial, or trivial differences do not matter and may be disregarded. Job classifications, descriptions, or titles are not controlling. It is the actual work or performance requirements of the two jobs that is important.

In evaluating whether the performance requirements of the two jobs are substantially equal, you must consider the “skill,” “effort” and “responsibility” required for these jobs. I will now tell you what is meant by these terms, “skill,” “effort” and “responsibility.”

Skill:

In deciding whether the jobs require substantially equal “skill” you should consider such factors as the level of education, experience, training and ability necessary to meet the performance requirements of the respective jobs. Jobs may require “equal skill” even if one job does not require workers to use these skills as often as another job. Remember also that you are to compare the jobs, not the employees. So the fact that a male employee has a qualification that [plaintiff] does not is relevant only if the particular qualification is necessary or useful for performing the job.

Effort:

In deciding whether the jobs require substantially equal “effort” you should consider the mental, physical and emotional requirements for performing the job. Duties that result in mental or physical fatigue or emotional stress, as well as factors that alleviate fatigue and stress, should be weighed together in assessing the relative effort involved. “Equal effort” does not require people to use effort in exactly the same way. If there is no substantial difference in the amount or degree of effort to do the jobs, they require “equal effort.” However, if the job of the male employee(s) require(s) additional tasks that consume a significant amount of extra time and effort that would not be expected of [plaintiff], then the jobs do not require substantially equal effort.

Responsibility:

In deciding whether the jobs involve substantially equal “responsibility,” you should consider the degree of accountability expected by the employer for a person filling the jobs, as well as the amount of preparation required to perform the job duties. You should also take into account such things as the level of authority delegated to [plaintiff] as compared to the male employee(s), including whether [plaintiff] and the male employee(s) were equally expected to direct the work of others, or to represent [defendant] in dealing with customers or suppliers. Finally, you should consider the consequences to the employer of effective performance in the respective jobs.

You should note that “skill,” “effort” and “responsibility” constitute separate tests, each of which must be met in order for the equal pay requirement to apply.

Similar Working Conditions:

With respect to the second element of [plaintiff’s] claim, you must find that the jobs are performed under similar working conditions. The conditions need only be similar; they need not be identical. In deciding whether the working conditions of the two jobs are similar, you should consider the surroundings or the environment in which the work is performed — including any hazards or risks, travel, and weather — to which the respective employees may be exposed. [I instruct you, however, that time of day is not relevant to determining whether working conditions are similar. For example, it is not relevant that some employees work the day shift and some the night shift.]

Wage Comparison:

With respect to the third element of [plaintiff’s] claim, [plaintiff] must prove that she was paid a lower wage than (a) male employee(s) doing substantially equal work. In determining the respective levels of pay, you are to consider all forms of compensation, whether called wages, salary, profit sharing, expense account, use of company car, gasoline allowance, or some other name. Fringe benefits are also included in the comparison of wages under the Equal Pay Act, as are vacation and holiday pay and overtime pay.

COMMENT To establish a violation of the Equal Pay Act, a plaintiff must prove that the defendant paid her lower wages than were paid to a man or men for “equal work on jobs the performance of which requires equal skill, effort and responsibility, and which are performed under similar working conditions.” Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974). The Court in Corning Glass stated that the element of similar working conditions “encompasses two subfactors: ‘surroundings’ and ‘hazards.’” It proceeded to describe these two subfactors:

"Surroundings" measures the elements, such as toxic chemicals or fumes, regularly encountered by a worker, their intensity, and their frequency. "Hazards" takes into account the physical hazards regularly encountered, their frequency, and the severity of injury they can cause.

The Corning Court held that under this definition the time of day at which employees worked could not be relevant to working conditions. Thus, the fact that male employees worked the night shift and females the day shift did not make the jobs unequal. See also EEOC v. State of Delaware Dept. of Health and Social Services, 865 F.2d 1408, 1417 (3d Cir. 1989) (rejecting the argument that working conditions are dissimilar if one employee sells products inside a store and another sells the products outside the establishment).

In the leading case of Brobst v. Columbus Services Intern., 761 F.2d 148, 151 (3d Cir. 1985), the court provided a number of guidelines for determining whether the plaintiff has met the burden of proving that she was doing “equal work” within the meaning of the Equal Pay Act. It noted that plaintiffs must establish their case “by proving actual job content; by the same token the employer may not rely merely on the job description.” Reviewing Third Circuit case law, the Brobst court analyzed the “equal work” requirement as follows:
As our opinions show, the relevant issue is not the name under which the position was classified but what was actually done. See Usery v. Allegheny County Institution District, 544 F.2d 148 (3d Cir. 1976); Shultz v. Wheaton Glass Co., 421 F.2d 259 (3d Cir. 1970).

In Wheaton Glass, we explained that Congress did not intend to limit the applicability of the Equal Pay Act to cases involving identical work. In Allegheny County, we quoted the applicable regulation stating, "Congress did not intend that inconsequential differences in job content would be a valid excuse for payments of a lower wage to an employee of one sex than to an employee of the opposite sex if the two are performing equal work on essentially the same jobs in the same establishment." Allegheny County, 544 F.2d at 152 (quoting 29 C.F.R. § 800.120 (1974)). Applying that regulation, we held that although beauticians, unlike barbers, used several tools in addition to the basic scissors, clippers and combs "which use requires more effort of performance", this did not support a finding of unequal work. Id. at 152.

All the courts have agreed that the test is whether the work is "substantially equal". When the Supreme Court reversed this court's determination that work on a night shift was not equal to the same work performed on a day shift, it took a pragmatic approach to the issue of equality, holding that inspection work whether performed during the day or night is "equal work" within the meaning of the Act. Corning Glass Works v. Brennan, 417 U.S. at 202-03.

The crucial finding on the equal work issue is whether the jobs to be compared have a "common core" of tasks, i.e., whether a significant portion of the two jobs is identical. The inquiry then turns to whether the differing or additional tasks make the work substantially different.... Given the fact-intensive nature of the inquiry, summary judgment will often be inappropriate.
For other cases in the Third Circuit discussing the concept of “equal work”, see, e.g., Angelo v. Bacharach Instrument Co., 555 F.2d 1164, 1172 (3d Cir. 1977) (noting that “mechanical and surface similarities are inadequate to establish the equality of two positions”); Welde v. Tetley, Inc., 864 F. Supp. 440, 442 (M.D. Pa. 1994) (noting that the term “skill” “includes an assessment of such factors as experience, training and ability”; “effort” “refers to the physical or mental exertion needed to perform a job”; “responsibility” “concerns the degree of accountability required in performing a job, with emphasis on the importance of the job obligation”; and that the three terms — skill, effort and responsibility — “constitute separate tests, each of which must be met in order for the equal pay standard to apply”).

For a definition of “wages,” see 29 C.F.R. § 1620.10:
Under the EPA, the term “wages” generally includes all payments made to [or on behalf of] an employee as remuneration for employment. The term includes all forms of compensation irrespective of the time of payment, whether paid periodically or deferred until a later date, and whether called wages, salary, profit sharing, expense account, monthly minimum, bonus, uniform cleaning allowance, hotel accommodations, use of company car, gasoline allowance, or some other name. Fringe benefits are deemed to be remuneration for employment.... [V]acation and holiday pay, and premium payments for work on Saturdays, Sundays, holidays, regular days of rest or other days or hours in excess or outside of the employee's regular days or hours of work are deemed remuneration for employment and therefore wage payments that must be considered in applying the EPA, even though not a part of the employee's “regular rate.”

(Last Updated October 2018)

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