©2026 Seyfarth Shaw LLP Developments in Equal Pay Litigation 2026 | 59 reason for employers at all – finding that federal courts were not authorized to set their own standards of “acceptable” business practices.430 The same is not true under the New York EPA. When the New York legislature amended the New York equal pay statute, it added a provision that required a “factor other than sex” to be “job-related with respect to the position in question,” among other things.431 In Eisenhauser, the Second Circuit explained: “the EPA’s ‘factor other than sex’ defense imposes no such requirement. By contrast, under New York Labor Law § 194(1), to establish the ‘factor other than sex’ or ‘status’ defense, a defendant must prove that the pay disparity in question results from a differential based on a job-related factor.”432 The Second Circuit remanded the Eisenhauer case back to the district court to reconsider its decision in light of the different standards under the federal and New York EPA statutes. This was despite the fact that the district court had found in favor of the employer even after applying the more stringent standard, meaning the ”factor other than sex” relied upon by the employer was in fact job related: “The parties appear to agree, and the evidence shows, that the disparity between the initial salaries was due to nondiscriminatory, business-related reasons.”433 Nevertheless, the Second Circuit faulted the district court for evaluating the federal and New York EPA claims under the same standard. “The District Court evaluated [plaintiff’s] EPA and §194(1) claims ‘under the same standard.’ Until January 2016, this approach may have been the proper one. Since at least January 2016, however, the relevant standards have differed at least because §194(1) has included a job-relatedness requirement.”434 In another recent case, Edelman v. NYU Langone Health System,435 the district court for the Southern District of New York held that the recent changes to New York’s equal pay law meant that some defenses were off the table in New York. In that case, a physician alleged she was paid less than male physicians working in the same subspecialty. For physicians hired out of private practice, the employer’s usual practice was to negotiate salary while taking into account the assumption of the debts from their private practice. The employer argued, among other things, that it had to match plaintiff’s comparators’ private practice salaries.436 The court held that prior salary could reflect legitimate, non-discriminatory differences in the value that one employee contributes compared to another. But the court noted the recent changes to New York’s equal pay law, which prohibit the use of prior salary as a means of setting starting salary: “If prior salary always justified unequal pay, the EPA would entrench rather than remedy pay inequalities. New York bars employers from engaging in salary-matching for that very reason, in an effort to enforce the EPA.”437 Because the employer had not explained how the differences in physicians’ prior salaries reflected any difference in value, the court rejected its attempt to use prior salary as a justification for the wage disparity.438 430 Id. at 103 (quoting Wernsing v. Dep't of Hum. Servs., 427 F.3d 466, 468 (7th Cir. 2005)). 431 See N.Y. Lab. Law 194(1)(iv). 432 Eisenhauer, 84 F.4th at 525. 433 Eisenhauer v. Culinary Inst. of Am., No. 19-cv-10933(PED), 2021 WL 5112625, at *7 (S.D.N.Y. Nov. 3, 2021). 434 Eisenhauer, 84 F.4th at 525. 435 Edelman v. NYU Langone Health Sys., No. 21-cv-502(LGS), 2022 WL 4537972 (S.D.N.Y. Sept. 28, 2022). 436 Id. at *6. The employer also argued that the difference in pay was justified by the fact that the physicians’ salaries were based on negotiations that took account of their productivity while in private practice. “[Employers] argue that these negotiations are sexneutral and backed by a ‘legitimate business reason’ because they could not otherwise recruit doctors from private practice.” But the court held that the employer’s explanation could not account for why plaintiff was paid less per unit of productivity than her comparators. Id. at *5. 437 Id. 438 Id. The court came to a different conclusion regarding plaintiff’s Title VII claim, however, due to the different burden-shifting regime employed by that statute. The court explained: “In the EPA context discussed above, Plaintiff's prima facie case caused the burden of persuasion to shift to Defendants, and they failed to meet that burden for purposes of summary judgment. Under Title VII, on the other hand, Defendants bear only a burden of production, to proffer a non-discriminatory reason for the disparate pay, and they have met it.” Id. at *9. The court further explained that “under the EPA a pay disparity is sufficient for liability unless the defendant can prove that the reason for the disparity is non-discriminatory,” but under Title VII, “disparate pay gives rise to liability only if the plaintiff can prove that the reason was discriminatory.” Id. In other words, Title VII requires a plaintiff to show the additional element of discriminatory intent. Plaintiff failed to establish that because she had not shown that the employer implemented its salary-matching practice with the intent to discriminate against women. In fact, the evidence showed that plaintiff’s
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