14 | Developments in Equal Pay Litigation 2026 ©2026 Seyfarth Shaw LLP comparator who was paid more than her.43 In ruling against her, the lower court noted that “district courts in this circuit have repeatedly found that plaintiffs fail to establish a prima facie case when the evidence supports that the number of males paid the same or less than the plaintiff significantly outnumbers the number of males paid more.”44 The district court thus concluded that the plaintiff could not base her prima facie case on only one comparator: “[Plaintiff] admitted that 10 male employees were either paid less than she or did not perform equal work. Given that alleged comparators that either were paid less did or did not perform equal work outnumber by a ten-to-one margin the lone alleged comparator who was paid more for equal work, the Court concludes that [plaintiff] fails to establish a prima facie EPA claim.”45 The Eighth Circuit did not adopt this holding upon review. The appellate court noted plaintiff’s urging that she should only need to “compare her job situation to that of [her one chosen comparator].”46 But the court assumed without deciding that she had presented a prima facie case, and affirmed on a different issue. The Eighth Circuit affirmed judgment for the employer because plaintiff’s comparator brought skills and experience to the job that she did not possess: “In sum, [defendant’s] explanation for the pay differential—the differences in skillsets and experience and the desire to incentivize [plaintiff] to grow in the position—is sufficient to satisfy its burden of proving the pay differential was based on a factor other than sex.”47 The Second Circuit also declined to decide this issue in Eisenhauer v. Culinary Institute of America,48 a case that is discussed in greater detail, infra.49 The plaintiff in that case had identified only a single relevant comparator to establish her claim under the EPA and the New York Equal Pay Law. The employer argued the plaintiff could not rely on a single comparator to establish her prima facie case, especially since there were (a) other comparable males who made less than her and (b) other females who made more than other males.50 Both sides relied on the same Second Circuit case in support of their positions, Lavin-McEleney v. Marist College.51 The lower district court examined the reasoning in that case and concluded: “Lavin-McEleney, as well as the discussions from the Fourth Circuit cited by the Second Circuit, show that a plaintiff may identify a single male comparator at the initial stage of the case, as Plaintiff has done here, but can later introduce additional data when addressing the ultimate merits of the case at trial. In each case, the plaintiff was required to identify a single male employee at the initial stage of litigation in order to establish a prima facie burden.”52 43 O’Reilly, 2021 WL 4504426, at *4. The lower court first took note of apparently inconsistent decisions by the Eighth Circuit on this point. In Hutchins v. Int'l Bhd. of Teamsters, 177 F.3d 1076 (8th Cir. 1999), the Eighth Circuit upheld a decision that found a prima facie case where the evidence showed that plaintiff was paid less than twelve male employees, but which also showed that plaintiff was paid more than eight comparable males, and that five other comparable females were paid higher salaries than their male peers. O’Reilly, 2021 WL 4504426, at *5; see also Euerle-Wehle v. United Parcel Serv., Inc., 181 F.3d 898, 901 (8th Cir. 1999). On the other hand, in Sowell v. Alumina Ceramics, Inc., 251 F.3d 678, 684 (8th Cir. 2001), the Eighth Circuit found that a plaintiff failed to establish a prima facie case under Title VII where the evidence showed that she was paid the same as, or more than, at least some males in the same position. O’Reilly, 2021 WL 4504426, at *5. 44 O’Reilly, 2021 WL 4504426, at *5 (citing Evans v. Autozone Stores, Inc., No. 05-cv-1086, 2008 WL 697752, at *10 (W.D. Ark. Mar. 13, 2008); Garrard v. First Step, Inc., No. 1:14-cv-1033, 2015 WL 2248217, at *2 (W.D. Ark. May 13, 2015); Peniska v. CJ Foods Inc., No. 8:19-cv-277, 2021 WL 24729 (D. Neb. Jan. 4, 2021)). 45 Id. at *6. 46 O’Reilly, 63 F.4th at 1197. 47 Id. 48 Eisenhauer v. Culinary Inst. of Am., 84 F.4th 507 (2d Cir. 2023). 49 See infra Part II.C.2. 50 Eisenhauer v. Culinary Inst. of Am., No. 19-cv-10933 (PED), 2021 WL 5112625, at *4 (S.D.N.Y. Nov. 3, 2021). 51 Lavin-McEleney v. Marist Coll., 239 F.3d 476 (2d Cir. 2001). 52 Eisenhauer, 2021 WL 5112625, at *5. The district court went even further, holding that while a single comparator may be insufficient to prove discrimination as a matter of fact before a jury, it is sufficient to establish a prima facie case prior to trial because it would contravene Second Circuit precedent to allow an employer to attack a plaintiff’s prima facie case based on the existence of other comparators. To do so, the employer would have to establish as a matter of fact that those comparators were similarly situated to the plaintiff or their comparator. But that question is the province of the jury, and therefore cannot be decided before trial. “Put another way, if Defendant cannot establish the absence of a pay disparity as a matter of law, then Plaintiff's prima facie showing must stand, despite the existence of employees who may serve as counterexamples to wage discrimination at trial.” Id. at *6. This rather extreme position has generally not been followed, even within the Southern District of New York. For example, in Kaye v. N.Y.C. Health and Hosps. Corp., No. 18-cv-12317 (JPC) (JLC), 2023 WL 2745556 (S.D.N.Y. Mar. 31, 2023), a forensic psychiatrist argued, among other things, that she was paid less than male comparators for the same work. Plaintiff emphasized that the
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