©2025 Seyfarth Shaw LLP Developments in Equal Pay Litigation 2025 | 55 that, in order to stay competitive to attract talent from the private sector, the salary hiring guidelines put in place by the USPS could justify a pay disparity where those guidelines allowed for an offer to be made that was up to five percent higher than a new hire’s private sector salary.391 Employers should beware, however, that fine-grained differences between employees—while perhaps legitimate as “factors other than sex”—will often not be weighed and decided by a court prior to trial. Those decisions are often left for the jury, meaning that employers face the unpalatable prospect of a jury trial, even if they have a meritorious defense.392 Courts can be reluctant to interpret the “factor other than sex” defense in a way that provides an easy path out of litigation for employers. Although broad in terms of what it will recognize as legitimate bases to justify a pay disparity, the defense ultimately hinges on a fact and case-specific analysis that allows for few bright line rules. That provides an advantage to plaintiffs and plaintiffs’ lawyers because, when facing the cost and uncertainty of trial, many employers may choose to settle at an inflated value rather than continue to defend a lawsuit on the merits. 2. Additional State Law Requirements to Establish the Factor Other Than Sex Defense As with the standards for establishing a prima facie case, the affirmative defenses allowed to a defendant under state laws may, arguably, vary from what is allowed under the federal EPA.393 For example, under the California Fair Pay Act, the “factor other than sex” defense is subject to some additional requirements. Under California’s statute, a defendant must demonstrate “[a] bona fide factor other than sex, such as education, training, or experience.”394 The statute further clarifies that “this factor shall apply only if the employer demonstrates that the factor is not based on or derived from a sex-based differential in summary judgment because the evidence did not establish as a matter of law that plaintiff’s performance as an interim Executive Director could be considered a temporary reassignment because, among other things, she had been told that she was the search committee’s second-choice candidate and that she would be automatically selected if the first choice-candidate declined (which he did)). 391 Ruiz-Justiniano v. U.S. Postal Serv., No. 16-cv-1526 (MEL), 2018 WL 3218363 (D.P.R. June 29, 2018) (holding that salary guidelines in place at the time of the female comparator’s hire, which allowed her to be given an offer up to five percent higher than her private sector salary and was intended to allow USPS to stay competitive in outside hiring, justified pay disparity and was not pretext). See also Terry v. Gary Cmty. Sch. Corp., 910 F.3d 1000, 1010 (7th Cir. 2018) (holding that a salary freeze provided an adequate justification for a pay disparity because: “there is nothing from which we may reasonably infer that there were ways to circumvent the salary freeze, and that because the District did not take such measures, the District was simply choosing not to increase [plaintiff’s] salary.”); Reddy v. Ala. Dep’t of Educ., No. 2:16-cv-01844-SGC, 2018 WL 4680152, at *6-7 (N.D. Ala. Sept. 28, 2018) (holding that employer adequately justified pay disparity between two physicians on the basis of those physicians’: (1) different levels of relevant experience; (2) different levels of clinical practice experience; (3) different medical specialty; and (4) prior salary history); Hayes v. Deluxe Mfg. Ops. LLC, No. 1:16-cv-02056-RWS-RGV, 2018 WL 1461690 (N.D. Ga. Jan. 9, 2018) (“[Employer] has shown that the pay disparity between [plaintiff] and her male comparators was based on increases in the starting hourly wage over the years, market considerations, merit-based increases, and consideration of an applicant's experience and qualifications, and it has therefore offered factors that were not based on sex and ‘are sufficient to sustain its burden to show that the salary disparity does not result from sex discrimination.’”) (quoting Schwartz v. Fla. Bd. of Regents, 954 F.2d 620, 623 (11th Cir. 1991)). 392 See, e.g., Bowen v. Manheim Remarketing, Inc., 882 F.3d 1358, 1363 (11th Cir. 2018) (reversing summary judgment and emphasizing employer’s “heavy burden” to establish that a factor other than sex can account for the pay differential where plaintiff’s salary had consistently been set at the low point of the compensation range, even after she had established herself in the position and demonstrated that she was an effective arbitration manager, and where plaintiff had presented evidence that the employer’s managers’ decisions were influenced by sex bias and that they took sex into account when making personnel decisions: “affidavit testimony establishes that sex-based pay disparities were common at [employer], that the managers refused to remedy the disparities, and that the managers repeatedly exhibited an unwillingness to treat women equally in the workplace”); Gonzales v. Cnty. of Taos, No. 17-cv-582-F, 2018 WL 3647206, at *15 (D.N.M. Aug. 1, 2018) (refusing to weigh an employer’s “other factors” at the summary judgment stage, and holding that relative levels of experience and qualifications “are questions of fact for a jury to decide and are not appropriate for summary judgment”); Ackerson v. Rector & Visitors of the Univ. of Va., No. 3:17-cv-11, 2018 WL 3209787, at *7 (W.D. Va. June 27, 2018) (holding that two university administrators were paid at different rates because of their different credentials, experience, and achievements, but holding that while such “potential differences in qualifications, certifications, and employment history could explain the wage disparity between the claimants and [comparator], the EPA requires that a factor other than sex in fact explains the salary disparity”) (emphasis in original). 393 Mundell v. Acadia Hosp. Corp., No. 22-1394, 2024 WL 378614 (1st Cir. Feb. 1, 2024) (holding there is no “factor other than sex” affirmative defense under the Maine Equal Pay Law). 394 Cal. Lab. Code § 1197.5(a)(1)(D).
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