56 | Developments in Equal Pay Litigation 2025 ©2025 Seyfarth Shaw LLP compensation, is job related with respect to the position in question, and is consistent with a business necessity.”395 The California statute also requires that any affirmative defense must be “applied reasonably” and “account for the entire wage differential.”396 Finally, the statute explicitly excludes the use of prior salary as a justification for a wage disparity.397 Most of these additional requirements were enacted in 2015 and became effective on January 1, 2016. The courts are still working out how they should be interpreted and applied, and how exactly they depart from the federal requirements. Relevant, helpful decisions have been few and far between. In Eisenhauer v. Culinary Institute of America,398 the Second Circuit addressed a relatively narrow distinction between federal and state EPA laws. In that case, a female professor at a college and culinary school brought claims under the federal and New York EPA statutes, alleging she was paid less than a male professor who managed a similar course load. Plaintiff and her comparator had been hired at different salaries, and that pay disparity increased over time due to the to the sex-neutral terms of a compensation plan, which, among other things, gave the same percentage increase to professors’ salaries each year.399 The plaintiff argued that the plan could not be a “factor other than sex” because it created a pay disparity that was unconnected to any differences between her and her comparator’s job. The Second Circuit framed this question as asking whether the federal EPA requires an employer to show that the factor is related to the job in question.400 The Second Circuit held that no such requirement exists under the federal EPA. In so holding, the court clarified its earlier precedent, Aldrich v. Randolph Central School District,401 which held that a facially sexneutral job-classification system alone is insufficient to constitute a “factor other than sex.”402 In Aldrich, the Second Circuit held that a job-classification system may only serve as a factor other than sex “when the employer proves that the job classification system resulting in differential pay is rooted in legitimate business-related differences in work responsibilities and qualifications for the particular positions at issue.”403 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.”404 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.”405 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.406 The Second Circuit explained: “the EPA’s 395 Id. The statute further clarifies that “business necessity” means “an overriding legitimate business purpose such that the factor relied upon effectively fulfills the business purpose it is supposed to serve. This defense shall not apply if the employee demonstrates that an alternative business practice exists that would serve the same business purpose without producing the wage differential.” Id. 396 Id. § 1197.5(a)(2-3). 397 Id. § 1197.5(a)(4). 398 Eisenhauer v. Culinary Inst. of Am., 84 F.4th 507 (2d Cir. 2023). 399 Id. at 512. 400 Id. 401 Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520 (2d Cir. 1992). 402 Eisenhauer, 84 F.4th at 515. 403 Id. (quoting Aldrich, 963 F.2d at 525) (emphasis in original). 404 Id. at 516-17 (emphasis in original). 405 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. 406 See N.Y. Lab. Law 194(1)(iv).
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