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11 PJI 2.2 | EPA | MERIT SYSTEM

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 merit system.

In order to establish the existence of a bona fide merit system, [defendant] must show an organized and structured procedure under which employees are systematically evaluated according to established standards that are designed to determine the relative merits of the employees. To be a bona fide merit system, the system must reward persons because they performed better; the reward must not be based upon their positions, but upon their personal performance. In order to be valid, [defendant] must inform its employees of the existence of the merit system, either by writing or in some other way, and it must not be based upon gender.

[[Plaintiff] contends that [defendant’s] merit 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] merit 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 merit system, your verdict must be for [defendant]. If [defendant] has not proved this defense, then you must find for [plaintiff].
COMMENT A merit system is an affirmative defense under the Equal Pay Act. 29 U.S.C. § 206(d)(2). A merit system is an organized, structured procedure under which employees are evaluated systematically according to predetermined criteria. Ryduchowski v. Port Authority, 203 F.3d 135, 142-43 (2d Cir. 2000). An employer must show that its merit system is administered, if not formally, at least systematically and objectively. Maxwell v. City of Tucson, 803 F.2d 444, 447 (9th Cir. 1986). The mere existence of a written set of job descriptions, regularly evaluated, does not constitute a “merit system” where there is no organized means of advancement or reward for merit. EEOC v. Sears, Roebuck & Co., 839 F.2d 302, 345-46 (7th Cir. 1988).

The existence of the merit system must be communicated to the affected employees. Ryduchowski v. Port Authority, 203 F.3d 135, 143 (2d Cir. 2000) (employees must be aware of merit system and merit system must not be gender-based); EEOC v. Whitin Machine Works, 635 F.2d 1095, 1098 n.6 (4th Cir. 1980) (defendant’s burden of establishing a merit system was not met where defendant maintained no written guidelines and had “failed to communicate the essential components of the putative sex neutral pay system to its employees”).

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).¹⁰ Accordingly, the instruction does not impose a burden on the plaintiff of proving pretext by a preponderance of the evidence.
(Last Updated October 2018)

Footnotes

¹⁰ 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 defendant.