50 | Developments in Equal Pay Litigation ©2024 Seyfarth Shaw LLP issue.”393 The Eisenhauer court clarified that this requirement was only applicable to job-classification systems because “a job-relatedness requirement is necessary to ensure that a job-classification system is not a pretext for sex discrimination,” because, “Jobs are, after all, the principal feature of jobclassification systems.”394 Based on clear textual exegesis, the Second Circuit concluded that there is no job-relatedness requirement for the factor other than sex defense under the federal EPA: “The requirement that a ‘factor other than sex’ be job related appears nowhere in the EPA's text and, in our view, conflicts with the statute's plain meaning.”395 But the same is not true under the New York EPA. When the New York legislature amended the New York equal pay statute, it added a provision that required a “factor other than sex” to be “job-related with respect to the position in question,” among other things.396 The Second Circuit explained: “the EPA’s ‘factor other than sex’ defense imposes no such requirement. By contrast, under New York Labor Law § 194(1), to establish the ‘factor other than sex’ or ‘status’ defense, a defendant must prove that the pay disparity in question results from a differential based on a job-related factor.”397 The Second Circuit remanded the case back to the district court to reconsider its decision in light of the different standards under the federal and New York EPA statutes. This was despite the fact that the district court had found in favor of the employer even after applying the more stringent standard the Second Circuit held was in error, i.e., the district court held that the ”factor other than sex” relied upon by the employer was in fact job related: “The parties appear to agree, and the evidence shows, that the disparity between the initial salaries was due to non-discriminatory, business-related reasons.”398 Nevertheless, the Second Circuit faulted the district court for evaluating the federal and New York EPA claims under the same standard: “The District Court evaluated [plaintiff’s] EPA and §194(1) claims ‘under the same standard.’ Until January 2016, this approach may have been the proper one. Since at least January 2016, however, the relevant standards have differed at least because §194(1) has included a job-relatedness requirement.”399 In another recent case, Edelman v. NYU Langone Health System,400 the district court for the Southern District of New York held that the recent changes to New York’s equal pay law meant that some defenses were off the table in New York. In that case, a physician alleged she was paid less than male physicians working in the same subspecialty. For physicians hired out of private practice, the employer’s usual practice was to negotiate salary while taking into account the assumption of the debts from their private practice. The employer argued, among other things, that it had to match plaintiff’s comparators’ private practice salaries.401 The court held that prior salary can reflect legitimate, non-discriminatory differences in the value that one employee contributes compared to another. But the court noted the recent changes to New York’s equal pay law, which prohibits the use of prior salary as a means of setting starting salary: “If prior salary always justified unequal pay, the EPA would entrench rather than remedy pay inequalities. New York bars employers from engaging in salary-matching for that very reason, in an effort to enforce 393 Id. (quoting Aldrich, 963 F.2d at 525) (emphasis in original). 394 Id. at 516-17 (emphasis in original). 395 Id. at 518-19. The Second Circuit lamented the ambiguity its own decision had introduced into the law, explaining that decisions from the Second Circuit and other circuits have given some litigants the mistaken impression that the federal EPA’s language says more than it does. As the Eisenhauer court acknowledged, “[t]he term [factor other than sex] has sowed needless uncertainty and confusion among our sister circuits.” Id. at 517. Among those is the Ninth Circuit, which—according to the Second Circuit— erroneously found in its famous decision, Rizo v. Yovino, an ambiguity in these unambiguous words, which led it to misapply canons of statutory construction and, ultimately, to read a “job-relatedness” requirement into the federal EPA where none belonged. Id. at 521. 396 See N.Y. Lab. Law 194(1)(iv). 397 Eisenhauer, 84 F.4th at 525. 398 Eisenhauer v. Culinary Inst. of Am., No. 19-cv-10933(PED), 2021 WL 5112625, at *7 (S.D.N.Y. Nov. 3, 2021). 399 Eisenhauer, 84 F.4th at 525. 400 Edelman v. NYU Langone Health Sys., No. 21-cv-502(LGS), 2022 WL 4537972 (S.D.N.Y. Sept. 28, 2022). 401 Id. at *6. The employer also argued that the difference in pay was justified by the fact that the physicians’ salaries were based on negotiations that took account of their productivity while in private practice: “[Employers] argue that these negotiations are sexneutral and backed by a ‘legitimate business reason’ because they could not otherwise recruit doctors from private practice.” But the court held that the employer’s explanation could not account for why plaintiff was paid less per unit of productivity than her comparators. Id. at *5.
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