8th Cir: Giving legitimate business reason instruction in Equal Pay case non-reversible error

The Eighth Circuit Court of Appeals ruled today that a District Court erred in giving a Title VII legitimate business reason defense in an Equal Pay Act case, but that the error did not merit a reversal of the verdict for the defense by the court.

The plaintiff in Bauer v. The Curators of the University of Missouri was a female advanced practical nurse who alleged a male co-worker in the same job was being paid more.  Equal Pay Act cases are strict liability cases. Once the plaintiff can make their prima facie case that they were paid less because of sex, the defendant then has the burden to show that the difference in pay was due to a 1) seniority system; 2) a merit system; 3) a pay system based on quantity or quality of output or 4) a disparity based on any other factor rather than sex. If the defendant can’t show those one of those four factors, then the plaintiff wins.

Title VII cases require the plaintiff show a discriminatory/retaliatory intent by the employer. In a Title VII case — or Nebraska Fair Employment Practice Act case — an employee must make the prima facie case for discrimination/retaliation. Assuming the plaintiff makes the prima facie, case the employer must articulate any objective or subjective non-discriminatory/retaliatory reason for the firing. At the very least, the employee then has the burden to show that reason is false.

The 8th Circuit agreed that the legitimate business reason standard was error, but that when viewed in the context of the jury instructions as a whole the instruction was not prejudicial enough to warrant a reversal.

This is a favorable decision for employers. The best leverage employee-side attorneys have if the management-side attorney wants to give a legitimate business reason instruction in an Equal Pay Act, would be to make a judicial efficiency argument to the trial judge. In theory, the standard of review that mistaken instructions should be viewed in the context of a whole gives the employee some leverage on appeal. In practice the 8th Circuit would likely follow the Bauer case, but at the very least  an appeal of a legitimate legal issue that would create some uncertainty and expense for the defendant.

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