66 | Developments in Equal Pay Litigation 2026 ©2026 Seyfarth Shaw LLP anchor with [the male co-anchor’s] skills and experience and needed to incentivize [him] to leave a job with a bigger market, tax beneficial location, and potential for a raise.”494 Equal pay plaintiffs have tried to expand upon the logic of the “prior salary” line of cases to attack other “factors other than sex,” arguing they are inherently discriminatory and thus invalid as a defense. One increasingly challenged factor is the justification that some employees are better negotiators than others. For example, in Duncan v. Texas Health & Human Services Commission,495 an employer attempted to justify a salary disparity by arguing that a male comparator had been able to negotiate a higher salary due to his particularly valuable work experience and higher private sector salary.496 The court rejected that argument, holding that “a reasonable factfinder could reject [employer’s] position that the salary disparity was the result of a factor other than sex and find [employer] discriminatorily applied its negotiation policy by allowing [plaintiff] greater latitude to negotiate.”497 And in Briggs v. University of Cincinnati,498 the Sixth Circuit reversed a decision that allowed negotiation as an affirmative defense, finding the evidence did not support it as a reason for the pay differential at issue: “The inconsistencies between [Director of Compensation’s] deposition testimony and his other statements create issues of fact as to whether [comparator’s] starting salary was the result of her prior salary, her demand for a higher salary, or other factors.”499 Despite these recent challenges, many courts continue to recognize that negotiations with an employee can constitute a legitimate factor other than sex. For example, in Baker v. Upson Regional Medical Center,500 a black female physician alleged she was paid less than her white male colleague even though she provided more services, worked more hours, and consistently had equal or better outcomes.501 At issue was the different bonus plaintiff received as compared to another physician in the same subspecialty. The employer argued that the different bonus structures were justified because they were the result of contract negotiations that were unique to each physician, during which plaintiff was represented by a lawyer.502 After examining the course of the negotiations in detail, the court held that the employer had met its burden to establish the “factor other than sex” defense. “Ultimately, the record provides that Defendants relied on multiple factors other than sex to set Plaintiff's bonus structure differently. It looked at the two physicians’ differing levels of experience, their certifications (or in Plaintiff's case, lack thereof), their prior production, and it determined that this structure would allow Plaintiff to ramp up her new practice. Indeed, the fact that Defendant agreed to change Plaintiff's bonus structure after she initiated negotiations further weakens Plaintiff's claim.”503 In particular, the court held that the plaintiff had failed to show that her bonus compensation plan had been set lower because she is a woman, thus defeating her EPA claim.504 494 Id. at *6. 495 Duncan v. Tex. Health & Human Servs. Comm’n, No. 17-cv-23-SS, 2018 WL 1833001 (W.D. Tex. Apr. 17, 2018). In that case, two female nurses and one male nurse applied and were hired into the same nursing position but at different salary levels. Id. at *1. The employer’s usual practice was to offer each applicant the minimum starting salary for the position and begin salary negotiations from there. Id. However, the male applicant was offered a higher salary initially, ostensibly because of his higher private sector salary. Id. at *2. The female employees argued that the male employee was paid more solely because of his gender and his prior salary. Id. at *3. 496 Id. 497 Id. at *4. The court noted that “it is an open question in the Fifth Circuit whether negotiation even qualifies as a ‘factor other than sex,’” noting that “several circuits have found that employers may not seek refuge under the ‘factor other than sex’ exception where the defendant’s sole justification for a pay disparity is an applicant’s prior pay.” Id. at *4 n.3 (citing Rizo v. Yovino, 887 F.3d 453 (9th Cir. 2018), rev’d, 139 S. Ct. 707 (2019)). 498 Briggs v. Univ. of Cincinnati, 11 F.4th 498, 512-13 (6th Cir. 2021). 499 Id. at 512. 500 Baker v. Upson Reg’l Med. Ctr., No. 5:20-cv-00283-TES, 2022 WL 816470 (M.D. Ga. Mar. 17, 2022). 501 Id. at *4. The parties agreed that the plaintiff had established a prima facie case due to the different bonus structures and the fact that they performed a similar job under similar working conditions. Id. at *7 502 Id. 503 Id. at *10. 504 Id. See also Briggs v. Univ. of Cincinnati, No. 1:18-cv-552, 2020 WL 5760437, at *7 (S.D. Ohio Sept. 28, 2020) (holding that the employer had established that the wage disparity was the result of a factor other than sex because, among other things, plaintiff’s comparator refused to take the position for less than a salary that was already higher than plaintiff’s at the time of hire. The court
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