12 | Developments in Equal Pay Litigation 2026 ©2026 Seyfarth Shaw LLP county in which the employee works, and the date the employee started working for the business, and report the total wages for those employees. Employers must also submit an Equal Pay Compliance Statement signed by a corporate officer, legal counsel, or other authorized agent, attesting to the company’s compliance with the Illinois Equal Pay Act and other federal and state anti-discrimination laws, among other things.35 Similarly, in 2024, Massachusetts enacted legislation requiring private employers with 100 or more Massachusetts employees to submit a “wage data report” annually.36 However, the law defines “wage data report” as the federal EEO-1 Report, which currently does not include any wage information.37 State-level equal pay legislation has developed rapidly over the past few years in ways that touch on many aspects of a company’s operations. This trend shows no signs of decelerating. RECENT CASE LAW DEVELOPMENTS Employers’ compensation practices continue to be challenged in court by aggressive plaintiffs’ counsel, the EEOC, and state agencies. Thus far the primary targets for this type of litigation have been companies in the health, education, finance, legal, and technology industries. Those cases continue to reshape the landscape of equal pay litigation across the country. A.Proving The Prima Facie Case The federal EPA uses a burden-shifting mechanism to establish liability. First, an employee must establish a prima facie case of discrimination by showing that: (1) different wages were paid to employees of the opposite sex; (2) the employees performed equal work requiring equal skill, effort, and responsibility; and (3) the employees shared similar working conditions.38 State laws can differ with respect to these factors, but most states employ a similar burden-shifting framework. Employees must first prove the basic elements of a cause of action before the burden shifts to the employer, which then must show that the alleged wage disparity is justified by some legitimate, non-discriminatory reason. Importantly, motive is not an element of an EPA claim; a plaintiff does not need to prove any discriminatory intent or animus on the part of the employer. If the employee establishes a prima facie case, the burden of persuasion then shifts to the employer to establish its defense(s). As noted, the federal EPA permits only four affirmative defenses to justify a wage disparity: (1) a seniority system; (2) a merit system; (3) a system that measures earnings by quantity or quality of production; or (4) any factor other than sex. The fourth defense, the “factor other than sex” 35 Id. 112/11(c)(1)(B). 36 Mass. Gen.Laws Ann. Ch. 145 §105E(b)(1). 37 Id., § 105E(a). 38 Even this minimal standard for a plaintiff’s prima facie case has not escaped judicial scrutiny in recent years. For example, the district court for the District of Columbia recently had to clarify that a prima facie EPA claim consists of only two elements, not three. In Savignac v. Jones Day, 539 F. Supp. 3d 107 (D.D.C. Apr. 28, 2021), the court reconsidered an earlier decision that had implicitly adopted a standard that required EPA plaintiffs to plead that they (1) were paid less than employees of the opposite sex, (2) for work on jobs requiring “equal skill, effort, and responsibility” that are “performed under similar working conditions,” and (3) that they actually performed “equal work” on the equivalent job. Id. at 109. Quoting Justice Frankfurter, the court noted that “[w]isdom too often never comes, and so one ought not to reject it merely because it comes late,” id. (quoting Henslee v. Union Planters Nat'l Bank & Trust Co., 335 U.S. 595, 600 (1949) (Frankfurter, J., dissenting)), and overturned its earlier decision that had incorrectly applied a three-element test to determine if the plaintiff in that case had met her burden. The court analyzed the language of the EPA closely, noting that it prohibits employers from paying different amounts “for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” Id. (quoting 29 U.S.C. § 206(d)(1)). Under plaintiff’s interpretation, which was adopted by the court, the part of that clause that appears after “equal work,” is meant to define that phrase and is therefore in that sense equivalent to “equal work.” In other words, the clause was not intended to state two separate requirements, such that plaintiffs would have to show that they performed equal work and that their jobs were also “equal” or similar as defined by the second part of that clause. Id. at 112-13. The court readily acknowledged that this interpretation was “not obvious from the text alone”; nevertheless, it held that this interpretation best accorded with the Supreme Court’s seminal decision, Corning Glass Works v. Brennan. Id. at 112 (citing Corning Glass Works v. Brennan, 417 U.S. 188 (1974)).
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