©2026 Seyfarth Shaw LLP Developments in Equal Pay Litigation 2026 | 57 including a desperate need to hire a psychologist in 2019 versus no such need in 2021—constituted a non‑sex‑based explanation for the higher salary previously paid to a male comparator.411 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.412 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.413 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.”414 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 compensation, is job related with respect to the position in question, and is consistent with a business necessity.”415 The California statute also requires that any affirmative defense must be “applied reasonably” and “account for the entire wage differential.”416 Finally, the statute explicitly excludes the use of prior salary as a justification for a wage disparity.417 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,418 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 411 Id. at 405-06. 412 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). 413 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). 414 Cal. Lab. Code § 1197.5(a)(1)(D). 415 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. 416 Id. § 1197.5(a)(2-3). 417 Id. § 1197.5(a)(4). 418 Eisenhauer v. Culinary Inst. of Am., 84 F.4th 507 (2d Cir. 2023).
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