58 | Developments in Equal Pay Litigation 2026 ©2026 Seyfarth Shaw LLP 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 that gave the same percentage increase to professors’ salaries each year.419 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.420 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,421 which held that a facially sexneutral job-classification system alone is insufficient to constitute a “factor other than sex.”422 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.”423 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” “Jobs are, after all, the principal feature of jobclassification systems.”424 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.”425 The Court of Federal Claims also joined the list of courts unwilling to read in a “legitimate business reason” requirement to the federal EPA.426 In Moore v. United States, the Plaintiff sued the SEC after learning that two female colleagues were paid more than him and alleged sex-based wage discrimination.427 In response, the SEC claimed the pay disparity arose because the women applied for and received raises through a one‑time, sex‑neutral SEC pay‑transition program while Moore did not apply for it.428 Like the Second Circuit in Eisenhauer, the Court of Federal Claims was disinclined to extend a legitimate business reason element to the “factor other than sex” affirmative defense, and it could not find a textual basis in the EPA or its legislative history to support the additional requirement.429 In addition, the Court of Federal Claims declined to opine on what constitute a “legitimate” business 419 Id. at 512. 420 Id. 421 Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520 (2d Cir. 1992). 422 Eisenhauer, 84 F.4th at 515. 423 Id. (quoting Aldrich, 963 F.2d at 525) (emphasis in original). 424 Id. at 516-17 (emphasis in original). However, while defendants may not need to prove the “job-related reason” for its genderneutral policy, they cannot vaguely allege that factors other than sex explain the pay disparity. Defendants still must explain “how each of the ‘variety of factors’ upon which [they] relied explained the salary discrepancy.” Zimpfer v. Hilbert College, 788 F.Supp.3d 520, 542 (W.D.N.Y. 2025) (quoting Tomka v. Seiler Corp., 66 F.3d 1295, 1312 (2d Cir. 1995)). 425 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. 426 The Court of Federal Claims joins the Second, Seventh, and Eighth circuits in finding the EPA does not require a showing that the defendant had a legitimate business reason for the neutral policy it is relying on it for its “factor other than sex” defense. See Eisenhauer v. Culinary Inst. of Am., 84 F.4th 507 (2d Cir. 2023); Taylor v. White, 321 F.3d 710 (8th Cir. 2003); Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446 (7th Cir. 1994). On the other hand, the Sixth, Ninth, and Eleventh Circuits continue to require proof of a legitimate business reason for a defendant in an EPA claim in order to support a “factor other than sex” defense. See Rizo v. Yovino, 950 F.3d 1217 (9th Cir. 2020); EEOC v. J.C. Penney Co., 843 F.2d 249 (6th Cir. 1988); Glenn v. Gen. Motors Corp., 841 F.2d 1567 (11th Cir. 1988). 427 Moore v. United States, 177 Fed.Cl. 89 (2025). 428 Id. at 93-95. 429 Id. at 101-02.
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