60 | Developments in Equal Pay Litigation 2026 ©2026 Seyfarth Shaw LLP In late 2023, the Southern District of New York had a chance to review this holding, in light of the Second Circuit’s guidance in Eisenhauer, when the parties moved for judgment as a matter of law after a trial that found for the employer on plaintiff’s equal pay claims.439 The court first noted the change wrought by the Second Circuit, noting that although “[g]enerally, ‘an equal pay claim under New York Labor Law § 194 is analyzed under the same standards applicable to the federal Equal Pay Act,”440 after Eisenhauer, “the employer ‘must prove that the pay disparity in question results from a differential based on a job-related factor. . . . By contrast, the EPA’s ‘factor other than sex’ defense imposes no such requirement.’”441 The court also noted the Second Circuit’s admonishment that district courts should “analyze a plaintiff’s ‘[NY EPA] claim as altogether distinct from her EPA one.’”442 And yet, the court made no effort to distinguish between the New York EPA and the federal EPA when determining the “equal work” prong of plaintiff’s prima facie case. After citing a long line of precedent, which mostly predated New York’s ostensible change to a “substantially similar” standard, the court concluded t “the evidence at trial establishes that Plaintiff did not perform equal work to [comparator] because their positions did not require substantially equal effort.” Among other things, it was simply a fact that plaintiff’s comparator’s contract required a higher degree of productivity, as measured by RVUs [Relative Value Units] —i.e., the numbers the employer used to represent, in relative terms, the time and effort required to perform a medical procedure—which “required him to expend significantly greater effort than Plaintiff's position did.”443 Notably, the court came to the same conclusion when considering plaintiff’s claims under the NY EPA, because, it held, the “equal work inquiry” is “’critical’ for unequal pay claims under the [NY EPA].”444 Accordingly, the court came to the same conclusions and relied on the same reasoning for both statutes: “As explained above, Plaintiff failed to show that her position required equal effort to [comparator’s], given his significantly higher RVU target. Plaintiff therefore has not shown that her job and [comparator’s] job demanded equal work for purposes of her [NY EPA] claim.”445 That was not the case with the employer’s “factor other than sex” defense, however. Although the court came to the same conclusion—that the employer had established its defense—it was careful to analyze the issue under the new standard applicable to NY EPA claims, noting that “New York law specifies that such a factor must ‘be job-related with respect to the position in question and . . . be consistent with business necessity.’”446 The court had held, with respect to plaintiff’s federal EPA claim, that the employer hospital’s geographical demand for a very strong and capable physician in plaintiff’s comparator’s specialty justified the pay disparity because he was needed to “fill a hole” in its network. Turning to plaintiff’s NY EPA claim, the court had no trouble finding that this reason was both job-related and consistent with business necessity because the employer hospital had shown that there was a particular need for a physician of plaintiff’s comparator’s specialty and experience level to launch a new rheumatology practice at one of its facilities, where they had patients they “needed to take care of.”447 The different requirements under the NY EPA versus the federal EPA were, on that set of facts, a distinction without a difference. Most other courts that have had to address potential differences between state and federal laws have chosen simply to ignore them, interpreting the requirements of the new state laws consistently with federal law. For example, in Basting v. San Francisco Bay Area Rapid Transit District,448 the District Court for the Northern District of California held that the employer established the factor other than sex defense salary was initially set at a time when the employer had assumed she was male, before learning her gender. Id. That evidence was sufficient to defeat a showing of discriminatory intent. 439 Edelman v. NYU Langone Health Sys., No. 21-cv-502(LJL), 2023 WL 8892482 (S.D.N.Y. Dec. 26, 2023). 440 Id. at *7 (quoting Wu v. Good Samaritan Hosp. Med. Ctr., 815 F. App’x 575, 581 n.5 (2d Cir. 2020)). 441 Id. (quoting Eisenhauer, 84 F.4th at 525). 442 Id. (quoting Eisenhauer, 84 F.4th at 525). 443 Id. at *8. 444 Id. at *10 (quoting Woods-Early v. Corning Inc., 2023 WL 4598358, at *4 (W.D.N.Y. July 18, 2023)). 445 Id. 446 Id. (quoting NYLL § 194(1)(iv)(B)). 447 Id. (internal citations omitted). 448 Basting v. S.F. Bay Area Rapid Transit Dist., No. 20-cv-5981-SI, 2021 WL 5771137 (N.D. Cal. Dec. 6, 2021).
RkJQdWJsaXNoZXIy OTkwMTQ4