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UpButton 11 PJI 2.3 | Third Circuit (US)
HB-PJI-CA03-11S0203 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 system that measures employee earnings by quantity or quality of the work.

In order to prove the existence of a bona fide system measuring quantity or quality, [defendant] must show that such a system is in place and has been applied regularly and consistently. A valid system under this exception measures the employee's earnings by the quantity or quality of each employee's production.

The quantity test refers to equal dollar per unit compensation rates. [Defendant] is not liable for wage discrimination if it has implemented a system under which two employees receive the same pay rate but one receives more total compensation because that employee produces more.

The quality test refers to increased compensation for higher quality products. [Defendant] is not liable for wage discrimination if it regularly rewards employees of both sexes equally for producing higher quality products through compensation incentives.

[[Plaintiff] contends that [defendant’s] system of measuring quantity or quality 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] 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 system tying wages to quantity or quality, your verdict must be for [defendant]. If [defendant] has not proved this defense, then you must find for [plaintiff].

COMMENT The Equal Pay Act provides an affirmative defense if the employer has a system under which a comparable employee receives more total compensation because he produces more value for the employer. 29 U.S.C. § 206(d)(3). Thus, in Hodgson v. Robert Hall Clothes, Inc., 473 F.2d 589 (3d Cir. 1973), the court held that an affirmative defense for unequal pay had been established where one clothing department in a store was more profitable than another.

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).11 Accordingly, the instruction does not impose a burden on the plaintiff of proving pretext by a preponderance of the evidence.

(Last Updated October 2018)


11 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.

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