©2026 Seyfarth Shaw LLP Developments in Equal Pay Litigation 2026 | 15 Upon review, the Second Circuit avoided this issue entirely. In a footnote, the court acknowledged the employer’s argument that plaintiff “could not have established a prima facie case by identifying a single male-comparator employee who earns more than her while ignoring all other employees who perform substantially equal work,” and that “[t]he question of how many comparators are necessary to establish a prima facie EPA case is a source of disagreement among our sister circuits.”53 However, the court declined to weigh in on that open question. Like the Eighth Circuit in O’Reilly, it affirmed the district court on other grounds supported by the record. Interestingly, the Second Circuit noted that the “one comparator” issue was undecided not just under the federal EPA but also under the New York Equal Pay Law. However, it determined that was a question that should first be answered by the district court. “The separate question of how many comparators are necessary to establish a prima facie case under New York Labor Law § 194(1) is one that the District Court did not consider. . . . should the District Court decide to invoke its supplemental jurisdiction over [plaintiff’s] § 194(1) claim on remand, it must determine whether a single male comparator is sufficient to establish a prima facie case under § 194(1).”54 By contrast, some courts have addressed the “one comparator” question head-on. In Cartee‑Haring v. Central Bucks School District, the Eastern District of Pennsylvania held that an Equal Pay Act plaintiff need only identify a single higher‑paid male comparator performing substantially equal work to establish a prima facie case.55 Note that this decision is currently on appeal before the Third Circuit, where the scope of the comparator requirement under the EPA remains under review. This issue continues to divide the district courts. Despite some courts’ adherence to the “one-comparator rule,” many courts are unwilling to allow an equal pay lawsuit to proceed where the evidence tends to refute an inference of wage discrimination.56 For example, in Hatzimihalis v. SMBC Nikko Securities America, Inc.,57 another case in the Southern District of New York—decided after the district court’s decision in Eisenhauer (but before the Second Circuit’s decision)—a Vice President of an investment firm alleged that she was underpaid compared to male Vice Presidents in the same investment group. The employer argued that plaintiff could not establish a prima facie case of wage discrimination because her male comparators were both paid less than another female comparator in the same group. The defendant argued the evidence showed that “[employer] paid Plaintiff less than comparable male employees, but it arguably does not show that [employer] paid comparable female employees as a group less than it paid comparable male employees as a group.”58 question of whether two positions are substantially equivalent under the EPA is a question for the jury. Id. at *14. However, the court held that “[a]s with all questions of fact ordinarily resolved by a jury at trial, . . . the question of whether a plaintiff and an oppositesex comparator performed substantially equal work may be resolved by the Court on summary judgment unless ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In particular, the court noted that “the Second Circuit has held that summary judgment should be granted to EPA defendants when a plaintiff fails to set forth specific facts showing that substantially equal work was performed by the plaintiff and the identified comparators.” Id. (citing Tomka v. Seiler Corp., 66 F.3d 1295, 1310 (2d Cir. 1995)). Analyzed in that light, the court concluded that plaintiff had failed to establish a prima facie case because, among other things, she had failed to introduce evidence concerning the actual job content of her comparators’ positions vis-à-vis her own, and because the employer had presented evidence showing substantial differences in actual job content. Id. at *14-15. 53 Eisenhauer, 84 F.4th at n.83 (citing Equal Emp. Opportunity Comm'n v. Md. Ins. Admin., 879 F.3d 114, 122 (4th Cir. 2018), Price v. Lockheed Space Operations Co., 856 F.2d 1503, 1505 (11th Cir. 1988), and Hein v. Or. Coll. of Educ., 718 F.2d 910, 916 (9th Cir. 1983)). 54 Id. 55 Cartee-Haring v. Cent. Bucks Sch. Dist., No. CV 20-1995, 2025 WL 1940177 (E.D. Pa. July 15, 2025). 56 See, e.g., Shen v. Auto. Club of Mo., Inc., No. 4:20-cv-626-SNLJ, 2023 WL 3948859 (E.D. Mo. June 12, 2023) (holding plaintiff failed to establish prima facie case where “her salary was higher than seven other male employees, and she made more than the average salary of all coworkers”: “The Eighth Circuit has found that plaintiffs fail to prove their prima facie case when evidence establishes that the female plaintiff was paid just as much or more than male counterparts”) (citing O'Reilly v. Daugherty Sys., Inc., No. 4:18-cv-01283-SRC, 2021 WL 4504426, at *5 (E.D. Mo. Sept. 30, 2021)). 57 Hatzimihalis v. SMBC Nikko Sec. Am., Inc., No. 20-cv-8037(JPC), 2023 WL 3764823 (S.D.N.Y. June 1, 2023). 58 Id. at *5.
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