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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 factor other than sex. Specifically, [defendant] claims that the difference in pay is attributable to [employee's education] [employee's experience] [training programs in which employees participate] [any other factor other than sex on which defendant has presented sufficient evidence to raise a jury question]. To establish that this defense, [defendant] must prove that [plaintiff’s] sex played no part in the difference in wages.
[[Plaintiff] contends that [defendant’s] explanation for the difference in pay is only 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] explanation is valid or instead is 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 [describe defendant’s explanation], your verdict must be for [defendant]. However, if you determine that [defendant] has failed to prove that the difference in pay was caused by this factor other than sex, you must decide in favor of [plaintiff].
COMMENT 29 U.S.C. § 206(d) provides for a catch-all affirmative defense: plaintiff is not entitled to recovery of equal pay if the defendant can prove that the disparity in pay was due to a factor other than sex. The Third Circuit has held that in order for the defendant to meet its burden, it must show “that the proffered reasons actually motivated the wage disparity.” Stanziale v. Jargowsky, 200 F.3d 101, 107-08 (3d Cir. 2000).
A “factor other than sex” can be found when the pay disparity “results from unique characteristics of the same job; from an individual’s experience, training, or ability; or from special exigent circumstances connected with the business.” Glenn v. General Motors Corp., 841 F.2d 1567, 1571 (11th Cir. 1988). An employer does not establish an affirmative defense by claiming that “market forces” justify a disparity in pay for equal work, i.e., that men had to be paid higher because otherwise they would not have taken the job. Corning Glass Works v. Brennan, 417 U.S. 188, 205 (1974); Martin v. Cooper Elec. Supply Co., 940 F.2d 896, 910 (3d Cir. 1991).
Differences in education may justify differences in wages, but only where the education is relevant to successful performance of the job. See 29 C.F.R. § 1620.15 (“Possession of a skill not needed to meet requirements of the job cannot be considered in making a determination regarding equality of skill.”). See, e.g., Glunt v. GES Exposition Services, Inc., 123 F. Supp. 2d 847, 860-61 (D. Md. 2000) (additional formal education is a bona fide reason under the Equal Pay Act for paying different wages; however, the defense is applicable only when superior formal education is actually relevant and necessary to the job in question); Bullock v. Pizza Hut, Inc., 429 F. Supp. 424, 430 (M.D. La.1977) (fact that one male manager had three years of college did not justify disparity between his salary and female plaintiffs with better performance records absent showing that a college education was a prerequisite to employment as manager or that employer derived any great benefit from manager having such qualifications).
Less experience can be a legitimate factor other than sex for lower pay. See, e.g., EEOC v. New York Times Broadcasting Service, Inc., 542 F.2d 356, 359-60 (6th Cir. 1976) (evidence that starting salaries paid to new employees bore direct relationship to prior broadcast experience was sufficient to show that discrepancy in pay was not based on considerations of sex); Stanley v. University of Southern California, 178 F.3d 1069, 1075 (9th Cir. 1999) (male coach had coached Olympic team, written book on basketball, and had 14 years more experience than the plaintiff, the coach of the women’s basketball team).
Wage differentials arising because one worker is participating in a bona fide training program have been found to be based on a factor other than sex. See, e.g., Shultz v. First Victoria Nat'l Bank, 420 F.2d 648, 654 (5th Cir. 1969). A training program must have substance and significance independent of the trainee's regular job. Hodgson v. Behrens Drug Co., 475 F.2d 1041, 1047 (5th Cir. 1973) (training program coterminous with “man's work” cannot qualify as a factor other than sex).
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).12 Accordingly, the instruction does not impose a burden on the plaintiff of proving pretext by a preponderance of the evidence.
(Last Updated October 2018)
12 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.