To succeed on [his/her] claim, [Plaintiff] must prove the following four facts by a preponderance of the evidence:
Second: [Defendant] has employed [Plaintiff] and a [male/female] employee in jobs requiring substantially equal skill, effort, and responsibility;
Third: The two jobs are performed under similar working conditions.
Fourth: [Defendant] paid [Plaintiff] a lower wage than the similarly situated [male/female] employee.
[The parties have agreed that [Defendant] is an employer subject to the Equal Pay Act’s provisions. You should consider that a proven fact.] For the second element, you must consider whether [Plaintiff]’s job required substantially equal skill, effort, and responsibility as the [male/female] employee’s job. You should compare the jobs – not the individual employees holding those jobs. The two jobs do not have to be identical. Rather, the law requires proof that the two jobs be “substantially equal” in skill, effort, and responsibility. Insignificant or trivial differences can be disregarded. The important comparison is the two jobs’ actual work or performance requirements – not the job titles, classifications, or descriptions.
To decide whether the jobs require substantially equal “skill,” you should consider factors such as the level of education, experience, training, and ability required to perform the two jobs.
Remember – you are comparing jobs, not employees, so the fact that the [male/female] employee has a qualification that [Plaintiff] does not have is only relevant if that qualification is necessary for the [male/female] employee’s job.
To decide whether the jobs require substantially equal “effort,” you should compare the amount of physical and mental exertion needed to perform each job. You should weigh duties that result in mental or physical fatigue and emotional stress, or factors that alleviate fatigue and stress, to assess the relative effort involved. Equal effort does not mean that employees must use effort in the same way. If there is no real difference in the amount or degree of effort it takes to perform each job, the jobs require equal effort. But if one job requires additional tasks that take more time and effort, the two jobs do not require substantially equal effort.
To decide whether the jobs involve substantially equal “responsibility,” you should consider the degree of accountability that each job requires. You may consider factors such as:
(b) whether the employees are authorized to represent [Defendant] in dealing with customers, suppliers, or other third parties; and
(c) the potential consequences to [Defendant] of inadequate or improper performance of the jobs [, which may include possible damage to valuable equipment, possible loss of business or productivity, and the possibility of incurring legal liability to third parties].
For the fourth element, [Plaintiff] must prove that [Defendant] paid [him/her] a lower wage than [his/her] [male/female] counterpart. To determine this, you should consider all forms of compensation including wages, salary, profit sharing, expense accounts, monthly minimums, bonuses, uniformcleaning allowances, hotel accommodations, use of a company car, gasoline allowances, and fringe benefits.
[Including Affirmative Defense: If you find that [Plaintiff] has proved each element [he/she] must prove, you must decide whether [Defendant] has established [his/her/its] affirmative defense.
To establish [his/her/its] affirmative defense, [Defendant] must prove by a preponderance of the evidence that the difference in the amount of pay between the jobs was not because of [Plaintiff]’s sex but was the result of a [seniority system/merit system/system measuring earnings by quantity or quality of production/describe factor other than sex upon which [Defendant] relies].
[Plaintiff] claims that the difference in pay was not the result of a [seniority system/merit system/system measuring earnings by quantity or quality of production/describe factor other than sex upon which [Defendant] relies] and that [Defendant]’s reason for the difference is only an excuse for paying higher wages to [men/women] for equal work.
If you find that [Defendant] has established its affirmative defense, your verdict must be in favor of [Defendant], and you will not decide the issue of [Plaintiff]’s damages. But if you find that [Defendant] has not established its affirmative defense, you must decide the damages issue.]
[Without Affirmative Defense: If you find that [Plaintiff] has proved each element [he/she] must prove, you must decide the issue of [his/her] compensatory damages.]
When considering the issue of [Plaintiff]’s compensatory damages, you should determine what amount, if any, has been proven by [Plaintiff] by a preponderance of the evidence as full, just and reasonable compensation for all of [Plaintiff]’s damages, no more and no less. Compensatory damages are not allowed as a punishment and must not be imposed or increased to penalize [Defendant]. Also, compensatory damages must not be based on speculation or guesswork.
You should consider the following element of damage, to the extent you find that [Plaintiff] has proved it by a preponderance of the evidence, and no others: the amount of [Plaintiff]’s lost compensation. [Plaintiff]’s lost compensation is the difference between the amount [Defendant] should have paid [Plaintiff] and the amount [Defendant] actually paid [Plaintiff]. Put another way, [Plaintiff]’s lost compensation is the difference between [Plaintiff]’s compensation and the [average] compensation of the [male/female] employee[s] in [a] substantially equal job[s].
[Plaintiff] is entitled to recover lost compensation from the date of your verdict back to no more than two years before [he/she] filed this lawsuit on [date of complaint] [, unless you find that [Defendant] “willfully violated” the Equal Pay Act].
[If [Defendant] knew that [his/her/its] conduct violated the law, or acted in reckless disregard of that fact, then [his/her/its] conduct was willful. If [Defendant] did not know, or knew only that the law was potentially applicable, and did not act in reckless disregard about whether the law prohibited [his/her/its] conduct, [his/her/its] conduct was not willful. If you find that [Defendant] willfully violated the Equal Pay Act, then [Plaintiff] is entitled to recover lost compensation from the date of your verdict back to no more than three years before [he/she] filed this lawsuit.]
