TBD | 11 PJI 2.1 | Pattern Jury Instructions | Third Circuit
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11 PJI 2.1 | Third Circuit (US)
HB-PJI-CA03-11S0201 Download


If you find that [plaintiff] has proved each of the elements that she must establish in support of her claim under the Equal Pay Act, you must then consider [defendant's] defense. [Defendant] contends that the difference in pay between the two jobs was the result of a bona fide seniority system. In order to establish that a seniority system exists, [defendant] must show that it uses a system that gives employees rights and benefits that improve the longer they work for [defendant].

In determining whether [defendant] has demonstrated a bona fide seniority system, you should consider that a valid seniority system ordinarily includes rules that

1. define when the seniority time clock begins ticking;

2. specify how and when a particular person's seniority may be lost;

3. define which time will count toward the accrual of seniority and which will not;

4. specify the types of employment conditions that will be governed by seniority and those that will not.

For [defendant] to successfully demonstrate a bona fide seniority system, [defendant] must regularly consider seniority rather than doing so randomly or on a case-by-case basis, and [defendant] must apply its system uniformly in its decisions.

[[Plaintiff] contends that [defendant’s] seniority system was not bona fide, but rather was a pretext, or excuse, for paying higher wages to men for equal work. Remember that [plaintiff] does not have to prove that [defendant] intended to discriminate. However, evidence of intent to discriminate may be considered in determining whether [defendant’s] seniority system was implemented in good faith or instead was a cover-up for paying higher wages to men for equal work.].

If you find [defendant] has proved by a preponderance of the evidence that the difference in pay was the result of a bona fide seniority system, your verdict must be for [defendant]. If [defendant] has not proved this defense, then you must find for [plaintiff].

COMMENT Wage differentials based on a bona fide seniority system do not violate the Equal Pay Act. 29 U.S.C. § 206(d)(1). See, e.g., Strag v. Board of Trustees, 55 F.3d 943, 948 (4th Cir. 1995); Irby v. Bittick, 44 F.3d 949, 954 (11th Cir. 1995). In order to be relied on as an affirmative dense, the seniority system must be applied fairly among all employees unless there are defined exceptions that are known and understood by the employees. Irby v. Bittick, 44 F.3d 949, 954 (11th Cir. 1995) (if seniority system is to be relied upon as affirmative defense, employer must be able to identify standards for measuring seniority that are systematically applied and observed).

The instruction provides for the possibility that the plaintiff will introduce evidence that the defendant’s affirmative defense is a pretext for sex discrimination. In EEOC v. State of Delaware Dept. of Health and Social Services, 865 F.2d 1408, 1414, n.8 (3d Cir. 1989), the court stated that to prevail on an Equal Pay Act claim, “a plaintiff need not prove that the employer intended to discriminate. Such a showing, however, may be used to establish that an employer’s reliance on an affirmative defense is merely a pretext for discrimination.” The court favorably cited the opinion in Maxwell v. City of Tucson, 803 F.2d 444, 446 (9th Cir. 1986), which stated that “the appropriate inquiry to determine if the factor put forward is a pretext, is whether the employer has used the factor reasonably in light of the employer's stated purpose as well as its other practices.”

Under the Equal Pay Act, the defendant at all times retains the burden of proving a legitimate reason for the discrepancy in pay. See Stanziale v. Jargowsky, 200 F.3d 101, 107-08 (3d Cir. 2000) (“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.”); Henderson v. Chartiers Valley School, 136 Fed. Appx. 456, 459 (3d Cir. 2005) (approving an instruction that the defendant “must prove that a factor other than sex caused them to set the salaries that they did” and giving no indication that the plaintiff has the burden of proving pretext by a preponderance of the evidence).9 Accordingly, the instruction does not impose a burden on the plaintiff of proving pretext by a preponderance of the evidence.

(Last Updated October 2018)


9 At least one district court opinion has stated that where the employer demonstrates that there is a legitimate reason for the discrepancy in pay, “the burden shifts back to the plaintiff to establish by a preponderance of the evidence that the reason for the disparity presented by defendant is only a pretext.” Welde v. Tetley, 864 F. Supp. 440 (M.D. Pa. 1994). But there is nothing in the Equal Pay Act to justify shifting the burden of disproving the affirmative defense to the plaintiff.

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