8 | Developments in Equal Pay Litigation 2026 ©2026 Seyfarth Shaw LLP Unlike the federal EPA, which requires plaintiffs to establish that they performed “equal work” as a comparator of the opposite sex, the California law requires a showing that employees are engaged in “substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.”7 The new laws enacted in New York and Illinois have similar standards.8 The Massachusetts Equal Pay Act prohibits differences in pay for “comparable work.”9 Other states apply different standards for comparing the work between a plaintiff and his or her alleged comparators. This presents a patchwork of varying standards for multi-jurisdictional employers. State laws also differ with respect to how employers defend pay equity claims. California’s law has the same four affirmative defenses as the EPA, but the “factor other than sex” may be used “only if the employer demonstrates that the factor is not based on or derived from a sex-based differential in compensation, is job related with respect to the position in question, and is consistent with a business necessity.” California also specifies that employers must explain the entire amount of the pay differential.10 Massachusetts provides a different type of defense, akin to a “safe harbor,” for an employer that has: (1) completed a self-evaluation of its pay practices, which is “reasonable in detail and scope in light of the size of the employer,” within the three years prior to commencement of the action; and (2) made “reasonable progress” toward eliminating pay differentials uncovered by the evaluation. States vary further in the procedural rights and remedies available to plaintiffs and defendants. For example, the California Equal Pay Act allows employees to bring an action directly in court without first exhausting administrative remedies—provided the employee does so within three years—and the employee may recover the balance of wages, interest, liquidated damages, costs, and reasonable attorneys’ fees.11 The California law also extends—from two years under the EPA and Title VII, to three— an employer’s obligation to maintain records of wages and pay rates, job classifications, and other terms of employment.12 Under the California Equal Pay Act, employers may not prohibit employees from disclosing or discussing their own wages or the wages of others, or from aiding or encouraging other employees to exercise their rights under the law.13 New York’s law includes a similar provision. These anti-pay secrecy requirements echo similar prohibitions under the National Labor Relations Act and the California Labor Code. C. Pay Transparency and Other State and Local Initiatives In addition to more robust enforcement provisions, as described above, a number of states and local jurisdictions have also implemented other efforts to target equal pay principles. Those have generally come in the form of salary history bans, pay transparency and pay reporting laws. Salary history bans generally prohibit or limit employers’ ability to gather information about a candidate’s past salary and/or use that information when making compensation decisions. Pay transparency laws generally require employers to provide position-specific pay range information to applicants in job postings or at certain times in the hiring process. And other states require that employers submit reports of demographic and pay data to state agencies. Salary History Bans. State and local salary history bans generally prohibit employers from requesting the salary history of job applicants and limit their ability to consider prior salary when making offers to new hires. Those laws have sometimes been vigorously opposed by various business groups. On February 6, 7 Cal. Lab. Code § 1197.5(b). 8 NY Lab. Law § 194(1) (“equal work on a job the performance of which requires equal skill, effort and responsibility, and which is performed under similar working conditions,” or “substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions”); 820 Ill. Comp. Stat. 112/10(a) (“the same or substantially similar work on jobs the performance of which requires substantially similar skill, effort, and responsibility, and which are performed under similar working conditions”). 9 Mass. Gen. Laws. c. 149 § 105A. 10 Id. 11 Cal. Lab. Code § 1197.5(h), (i). 12 Id. § 1197.5(e). 13 Id. § 1197.5(k)(1).
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