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11 PJI 3.3 | EPA | BACK PAY — WILLFUL VIOLATIONS

If you find that [plaintiff] has proved by a preponderance of the evidence that she was paid less than [name(s) of male employee(s)] for performing substantially equal work, [and if you find that [defendant] has failed to show that the wage differential was based on a permissible factor on which I previously instructed you] then you must award damages to [plaintiff]. [Plaintiff] has the burden of proving the amount of those damages by a preponderance of the evidence.

In this case, [plaintiff] alleges that [defendant] willfully violated the Equal Pay Act. If [plaintiff] proves to you by a preponderance of the evidence that [defendant’s] violation of the Equal Pay Act was willful, then this will have an effect on the damages that you must award. I will explain this effect in a minute, but first I will provide you more information on what it means to be a “willful” violation.

You must find [defendant's] violation of the Equal Pay Act to be willful if [plaintiff] proves by a preponderance of the evidence that [defendant] knew or showed reckless disregard for whether [plaintiff’s] underpayment was prohibited by the law. To establish willfulness it is not enough to show that [defendant] acted negligently. If you find that [defendant] did not know, or knew only that the law was potentially applicable, and did not act in reckless disregard for whether its conduct was prohibited by the law, then [defendant’s] conduct was not willful.

[Instruct as follows if the plaintiff’s pay is compared to a single male employee:

If you find that [defendant’s] violation was willful, then you must award [plaintiff] the amount of damages that compensates her for the difference between what she was paid (in both wages and benefits) and what [name of male employee] was paid (in both wages and benefits) during the period starting [three years before the date the lawsuit was filed] through the date of your verdict. However, if you find that [defendant’s] violation of the Equal Pay Act was not willful, then you must award [plaintiff] the difference between what she was paid (in both wages and benefits) and what [name of male employee] was paid (in both wages and benefits) during the period starting [two years before the date the lawsuit was filed] through the date of your verdict. In other words, [plaintiff] is entitled to damages for an extra year if she proves that [defendant’s] violation was willful.]

[Instruct as follows if the plaintiff’s pay is compared to more than one male employee:

If you find that [defendant’s] violation was willful, then you must award [plaintiff] the amount of damages that compensates her for the difference between what she was paid (in both wages and benefits) and the average amount of what [names or job titles of male employees] were paid (in both wages and benefits) during the period starting [three years before the date the lawsuit was filed] through the date of your verdict. However, if you find that [defendant’s] violation of the Equal Pay Act was not willful, then you must award [plaintiff] the difference between what she was paid (in both wages and benefits) and the average amount of what [names or job titles of male employees] were paid (in both wages and benefits) during the period starting [two years before the date the lawsuit was filed] through the date of your verdict. In other words, [plaintiff] is entitled to damages for an extra year if she proves that [defendant’s] violation was willful.]

[In assessing damages, you must not consider attorney fees or the costs of litigating this case. Attorney fees and costs, if relevant at all, are for the court and not the jury to determine. Therefore, attorney fees and costs should play no part in your calculation of any damages.]
COMMENT The Equal Pay Act provides recovery for two years of wage differential if the defendant’s violation was non-willful; it extends the recovery of damages to a third year if the defendant’s violation was willful. 29 U.S.C. § 255(a). This instruction is to be used when the plaintiff presents evidence sufficient to create a jury question on whether the defendant acted willfully. See Instruction 11.3.2 for the instruction to be used when there is insufficient evidence to create a jury question on willfulness.

In McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988), the Court held that the standard for “willfulness” under the Equal Pay Act is the same as the standard for “willfulness” required for an award of liquidated damages under the ADEA. That standard is met if the employer “either knew or showed reckless disregard” for the matter of whether its conduct violated the law. This instruction accordingly uses that definition of “willfulness.” See EEOC v. State of Delaware Dept. of Health and Social Services, 865 F.2d 1408, 1419 (3d Cir. 1989) (affirming a jury verdict on willfulness, and an award for a third year of damages, where the jury could have found that a personnel director “must have entertained a strong suspicion of an Equal Pay Act violation which, with the most cursory investigation, would have led to actual knowledge.”). See also Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985) (adopting the standard of “either knew or showed reckless disregard” for determination of “willfulness” under the liquidated damages provision of the ADEA).

Where the plaintiff compares her salary to more than one male employee, most courts have held that the proper amount of damages is the difference between the plaintiff’s salary and the average amount of salary earned by the male comparables as a group. See Melanson v. Rantoul, 536 F. Supp. 271 (D.R.I. 1982); Bullock v. Pizza Hut, Inc., 429 F. Supp. 424, 431 (M.D. La. 1977) (stating that applying averages “best serves the interest of justice”). At least one court, however, has held that damages should be assessed by comparing the plaintiff’s wages “to the highest male salary being paid for the job at the time of performance.” Grimes v. Athens Newspaper, Inc., 604 F. Supp. 1166, 1168 (M.D. Ga. 1985). There appears to be no Third Circuit case law on this point.

Attorney Fees and Costs

There appears to be no uniform practice regarding the use of an instruction that warns the jury against speculation on attorney fees and costs. In Collins v. Alco Parking Corp., 448 F.3d 652 (3d Cir. 2006), the district court gave the following instruction: “You are instructed that if plaintiff wins on his claim, he may be entitled to an award of attorney fees and costs over and above what you award as damages. It is my duty to decide whether to award attorney fees and costs, and if so, how much. Therefore, attorney fees and costs should play no part in your calculation of any damages.” Id. at 656-57. The Court of Appeals held that the plaintiff had not properly objected to the instruction, and, reviewing for plain error, found none: “We need not and do not decide now whether a district court commits error by informing a jury about the availability of attorney fees in an ADEA case. Assuming arguendo that an error occurred, such error is not plain, for two reasons.” Id. at 657. First, “it is not ‘obvious’ or ‘plain’ that an instruction directing the jury not to consider attorney fees” is irrelevant or prejudicial; “it is at least arguable that a jury tasked with computing damages might, absent information that the Court has discretion to award attorney fees at a later stage, seek to compensate a sympathetic plaintiff for the expense of litigation.” Id. Second, it is implausible “that the jury, in order to eliminate the chance that Collins might be awarded attorney fees, took the disproportionate step of returning a verdict against him even though it believed he was the victim of age discrimination, notwithstanding the District Court's clear instructions to the contrary.” Id.; see also id. at 658 (distinguishing Fisher v. City of Memphis, 234 F.3d 312, 319 (6th Cir. 2000), and Brooks v. Cook, 938 F.2d 1048, 1051 (9th Cir. 1991)).
(Last Updated October 2018)