©2024 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 51 the EPA.”402 Because the employer had not explained how the differences in physicians’ prior salaries reflected any difference in value, the court rejected its attempt to use prior salary as a justification for the wage disparity.403 In late 2023, the Southern District of New York had a chance to review this holding in light of the Second Circuit’s guidance in Eisenhauer, when the parties moved for judgment as a matter of law after a trial that found for the employer on plaintiff’s equal pay claims.404 The court first noted the change wrought by the Second Circuit, noting that although, “[g]enerally, ‘an equal pay claim under New York Labor Law § 194 is analyzed under the same standards applicable to the federal Equal Pay Act,”405 after Eisenhauer, “the employer ‘must prove that the pay disparity in question results from a differential based on a job-related factor. . . . By contrast, the EPA’s ‘factor other than sex’ defense imposes no such requirement.’”406 The court also noted the Second Circuit’s admonishment that district courts should “analyze a plaintiff’s ‘[NY EPA] claim as altogether distinct form her EPA one.’”407 Yet the court made no effort to distinguish between the New York EPA and the federal EPA when determining the “equal work” prong of plaintiff’s prima facie case. After citing a long line of precedent, which mostly predated New York’s ostensible change to a “substantially similar” standard, the court concluded that “the evidence at trial establishes that Plaintiff did not perform equal work to [comparator] because their positions did not require substantially equal effort.” Among other things, it was simply a fact that plaintiff’s comparator’s contract required a higher degree of productivity, as measured by RVUs—i.e., the numbers the employer used to represent, in relative terms, the time and effort required to perform a medical procedure—which “required him to expend significantly greater effort than Plaintiff's position did.”408 Notably, the court came to the same conclusion when considering plaintiff’s claims under the NY EPA, because, it held, the “equal work inquiry” is “’critical’ for unequal pay claims under the [NY EPA].”409 Accordingly, the court came to the same conclusions and relied on the same reasoning for both statutes: “As explained above, Plaintiff failed to show that her position required equal effort to [comparator’s], given his significantly higher RVU target. Plaintiff therefore has not shown that her job and [comparator’s] job demanded equal work for purposes of her [NY EPA] claim.”410 That was not the case with the employer’s factor other than sex defense, however. Although the court came to the same conclusion—that the employer had established its defense—it was careful to analyze the issue under the new standard applicable to NY EPA claims, noting that “New York law specifies that such a factor must ‘be job-related with respect to the position in question and . . . be consistent with business necessity.’”411 Among other things, the court had held, with respect to plaintiff’s federal EPA claim, that the employer hospital’s geographical demand for a very strong and capable physician in plaintiff’s comparator’s specialty justified the pay disparity because he was needed to “fill a hole” in its network. Turning to plaintiff’s NY EPA claim, the court had no trouble finding that this reason was both 402 Id. 403 Id. The court came to a different conclusion regarding plaintiff’s Title VII claim, however, due to the different burden-shifting regime employed by that statute. The court explained: “In the EPA context discussed above, Plaintiff's prima facie case caused the burden of persuasion to shift to Defendants, and they failed to meet that burden for purposes of summary judgment. Under Title VII, on the other hand, Defendants bear only a burden of production, to proffer a non-discriminatory reason for the disparate pay, and they have met it.” Id. at *9. The court further explained that, “under the EPA a pay disparity is sufficient for liability unless the defendant can prove that the reason for the disparity is non-discriminatory,” but under Title VII, “disparate pay gives rise to liability only if the plaintiff can prove that the reason was discriminatory.” Id. In other words, Title VII requires a plaintiff to show the additional element of discriminatory intent. Plaintiff failed to establish that because she had not shown that the employer implemented its salary-matching practice with the intent to discriminate against women. In fact, the evidence showed that plaintiff’s salary was initially set at a time when the employer had assumed she was male, before learning her gender. Id. That evidence was sufficient to defeat a showing of discriminatory intent. 404 Edelman v. NYU Langone Health Sys., No. 21-cv-502(LJL), 2023 WL 8892482 (S.D.N.Y. Dec. 26, 2023). 405 Id. at *7 (quoting Wu v. Good Samaritan Hosp. Med. Ctr., 815 F. App’x 575, 581 n.5 (2d Cir. 2020)). 406 Id. (quoting Eisenhauer, 84 F.4th at 525). 407 Id. (quoting Eisenhauer, 84 F.4th at 525). 408 Id. at *8. 409 Id. at *10 (quoting Woods-Early v. Corning Inc., 2023 WL 4598358, at *4 (W.D.N.Y. July 18, 2023)). 410 Id. 411 Id. (quoting NYLL § 194(1)(iv)(B)).
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