©2026 Seyfarth Shaw LLP Developments in Equal Pay Litigation 2026 | 7 EQUAL PAY LEGISLATION A.Foundational Laws: The Federal Equal Pay Act and Title VII The Equal Pay Act (“EPA”) was enacted by Congress in 1963 during the height of the civil rights movement, one year before Title VII of the Civil Rights Act of 1964 (“Title VII”). Though both laws prohibit pay discrimination, they have notable differences. The EPA is more circumscribed than Title VII. The EPA only (i) prohibits discrimination based on sex (while Title VII also covers race, color, national origin and religion), (ii) permits comparisons between employees at the same “establishment” (Title VII has no such restriction) and (iii) applies to instances where “equal work” is performed (compared to the less stringent “similarly situated” standard under Title VII). “Equal work” under the EPA is defined as “jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions . . . .”1 The EPA and Title VII also diverge in other ways, both procedurally and substantively, as discussed more fully herein. As common ground, however, the EPA recognizes four affirmative defenses that are generally applied to Title VII claims as well. That is, pay differentials may be explained by: (1) a seniority system; (2) a merit system; (3) a system that measures earnings by quantity or quality of production; or (4) any other factor other than sex.2 It is the “factor other than sex” defense that is most often at issue in litigation. In addition to private litigation, both the EPA and Title VII can give rise to enforcement proceedings under the U.S. Equal Employment Opportunity Commission (“EEOC”). For the past decade, the EEOC has identified equal pay as one of six enforcement priorities in its Strategic Enforcement Plan.3 Although the number of filings brought under the EPA make up a relatively small percentage of the EEOC’s docket, agency personnel have repeatedly reaffirmed its importance as an enforcement priority for the EEOC. This publication addresses significant developments in equal pay litigation under the federal EPA and Title VII, as well as similar state laws. We emphasize the most recent decisions to provide an up-to-date overview of the current state. However, it is important to note that some trends and concepts may take years and multiple cases to develop. B. State Equal Pay Legislation Equal pay has been a prominent issue at the state level for several years. Numerous states have amended their equal pay laws to supplement the federal EPA. California, New York, and Massachusetts were the front runners, the first states to adopt more onerous equal pay laws.4 Others soon followed. State equal pay laws differ from the federal EPA in significant ways. For example, the California Fair Pay Act allows employees to be compared even if they do not work at the same establishment.5 This allows an employee’s pay to be compared to that of other employees who work hundreds of miles away. By comparison, New York’s equal pay law also allows employees to be compared even if they do not work at the same establishment, but those comparators must work in the same “geographic region,” no larger than the same county.6 1 29 U.S.C. § 206(d)(1). 2 Id. 3 See U.S. Equal Employment Opportunity Commission, Strategic Enforcement Plan Fiscal Years 2024 - 2028, Strategic Enforcement Plan Fiscal Years 2024 - 2028 | U.S. Equal Employment Opportunity Commission (eeoc.gov). 4 2017 Cal. Legis. Serv. Ch. 688 (A.B. 168) (West); N.Y. Lab. Law § 194 (McKinney); Mass. Gen. Laws Ann. ch. 149, § 105A (West). 5 Cal. Lab. Code § 1197.5. The California Fair Pay Act expressly removed, from the preexisting California pay law, statutory exemptions that applied where work was performed “at different geographic locations” and “on different shifts or at different times of day.” 6 NY Lab. Law §§ 194, et seq.
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