©2026 Seyfarth Shaw LLP Developments in Equal Pay Litigation 2026 | 61 under both federal and California law. That case involved an employer that classified its non-represented employees into various pay bands. It commissioned a study of its compensation practices, the result of which was that the employer bumped salaries to the midpoint of a pay band for all employees who had two or more years of service within a classification.449 The court found that the study’s recommendations had been applied equally to all non-represented employees regardless of gender, and therefore qualified as a legitimate factor other than sex that explained the pay disparity under both the federal law and California’s revised statute.450 “As arbitrary as the two-year bright line cut off might appear to [plaintiff], [employer’s] uniform criteria for increasing the salaries of the other directors in [plaintiff’s] office (i.e., two men and one woman) constitutes an acceptable ‘differential based on any other factor other than sex.’”451 On March 10, 2023, the Ninth Circuit affirmed the lower court’s decision in Basting, concluding plaintiff was paid less than her male colleagues because she had not been in her job for two years, while they had.452 “After [employer] hired a consultant to advise [employer] on how to make its non-union salaries more competitive, the consultant recommended across-the-board pay bumps for non-union employees who had been in their role at [employer] for at least two years—the period of time the consultant viewed as a good proxy for proficiency in a job.”453 Accordingly, the Ninth Circuit held that this was sufficient reason to show that the pay discrepancy was not based on sex: “Because any reasonable jury would conclude that [employer] adopted its one-time pay bump for certain employees exclusively for a reason other than sex, [employer] is entitled to summary judgment on [plaintiff’s] federal and state equal-pay claims.”454 3. Challenging The Factor Other Than Sex: Salary History and Beyond At its core, equal pay litigation is about how employers set and adjust salary levels. In a free and competitive marketplace, starting salary must take some account of applicants’ prior salary. If employers cannot meet or exceed that salary, they risk losing applicants to other employers who will. For this reason, an issue that comes up frequently in equal pay litigation is whether, and to what extent, an employer can justify a pay disparity by pointing to employees’ prior salaries at the time they were hired. Many employers take the commonsense view that they must start higher-paid applicants at a higher salary, or those applicants will not take the job. On the other hand, some courts and commentators have argued that paying employees based on past earnings only perpetuates a systemic gender pay gap. It may therefore be invalid as a factor other than sex if female employees’ prior salaries were kept artificially and unfairly low compared to their male peers. One of the key trends driving equal pay litigation today is 449 Id. at *1. The plaintiff had only been in her classification for 18 months and so did not receive a salary increase. Her comparators had all received salary increases because they had been in their classification for at least two years at the time the study was conducted. Id. 450 Id. at *2. 451 Id. at *3 (quoting 29 U.S.C. § 206(d)(1)). The court held that this defense hit all of the additional elements of the defense mandated by California’s new law. The factor was not based on sex because the study recommendations were applied uniformly, it was job related because the two-year rule was used as a proxy for proficiency within a classification, and it was related to business necessity because “[employer] decided on a one-time pay bump based on the two-year cutoff in order to implement the [study’s] recommendation in a financially viable manner.” Id. at *4. 452 Basting v. S.F. Bay Area Rapid Transit Dist., No. 22-15556, 2023 WL 2445695 (9th Cir. Mar. 10, 2023). 453 Id. at *1. 454 Id. at *2. See also Rowe v. Google LLC, No. 19-cv-8655 (LGS), 2022 WL 4467194, at *5 (S.D.N.Y. Sept. 26, 2022) (denying female Technical Director’s motion for summary judgment on “factor other than sex defense” under the New York EPA, where employer could justify hiring her at a level 8, while hiring some of her male peers as level 9’s using the same interview criteria and job description, based on evidence from a recruiter explaining the employer’s reasons, including pertinent experience, which had been approved by two Senior Vice Presidents); Gardner v. Wells Fargo Bank, N.A., No. 2:19-cv-0207-TOR, 2021 WL 2931341, at *7-8 (E.D. Wash. July 12, 2021) (holding employer had established an affirmative defense under Washington’s new equal pay law, which requires employers to show that a wage differential is due to a bona fide job-related factor that is consistent with business necessity, is not based on or derived from a gender-based differential, and accounts for the entire differential, where salary disparity was justified by comparator’s sales experience and connections with local realtors for referrals: “[comparator’s] pay difference was ‘based in good faith on a bona fide job-related factor or factors.’ Plaintiff did not demonstrate any connections to local realtors, which was a concern raised by [supervisor] during his initial review of Plaintiff's application. Moreover, it is undisputed that another male colleague, [other comparator], was paid the same wages as Plaintiff for the same position”).
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