3d Cir. Model Jury Instr. (Civil) 11.1.1

10

Last updated March 2026

requires equal skill, effort and responsibility, and which are performed under similar working 1

conditions.” Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974). The Court in Corning 2

Glass stated that the element of similar working conditions “encompasses two subfactors: 3

‘surroundings’ and ‘hazards.’ “ It proceeded to describe these two subfactors: 4

“Surroundings” measures the elements, such as toxic chemicals or fumes, regularly 5

encountered by a worker, their intensity, and their frequency. “Hazards” takes into 6

account the physical hazards regularly encountered, their frequency, and the 7

severity of injury they can cause. 8

The Corning Court held that under this definition the time of day at which employees worked 9

could not be relevant to working conditions. Thus, the fact that male employees worked the night 10

shift and females the day shift did not make the jobs unequal. See also EEOC v. State of Delaware 11

Dept. of Health and Social Services, 865 F.2d 1408, 1417 (3d Cir. 1989) (rejecting the argument 12

that working conditions are dissimilar if one employee sells products inside a store and another 13

sells the products outside the establishment). 14

In the leading case of Brobst v. Columbus Services Intern ., 761 F.2d 148, 151 (3d Cir. 15

1985), the court provided a number of guidelines for determining whether the plaintiff has met the 16

burden of proving that she was doing “equal work” within the meaning of the Equal Pay Act. It 17

noted that plaintiffs must establish their case “by proving actual job content; by the same token the 18

employer may not rely merely on the job description.” Reviewing Court of Appeals case law, the 19

Brobst court analyzed the “equal work” requirement as follows: 20

As our opinions show, the relevant issue is not the name under which the 21

position was classified but what was actually done. See Usery v. Allegheny County 22

Institution District, 544 F.2d 148 (3d Cir. 1976); Shultz v. Wheaton Glass Co., 421 23

F.2d 259 (3d Cir. 1970). 24

In Wheaton Glass, we explained that Congress did not intend to limit the 25

applicability of the Equal Pay Act to cases involving identical work. In Allegheny 26

County, we quoted the applicable regulation stating, “Congress did not intend that 27

inconsequential differences in job content would be a valid excuse for payments of 28

a lower wage to an employee of one sex than to an employee of the opposite sex if 29

the two are performing equal work on essentially the same jobs in the same 30

establishment.” Allegheny County, 544 F.2d at 152 (quoting 29 C.F.R. § 800.120 31

(1974)). Applying that regulation, we held that although beauticians, unlike 32

barbers, used several tools in addition to the basic scissors, clippers and combs 33

“which use requires more effort of performance ”, this did not support a finding of 34

unequal work. Id. at 152. 35

All the courts have agreed that the test is whether the work is “substantially 36

equal”. When the Supreme Court reversed this court ’s determination that work on 37

a night shift was not equal to the same work performed on a day shift, it took a 38