90 | Developments in Equal Pay Litigation 2026 ©2026 Seyfarth Shaw LLP The EEOC has also been pushing the law in a more plaintiff-friendly direction with respect to an employer’s affirmative defenses. For example, in EEOC v. Hunter-Tannersville Central School District,721 the employer had pled as an affirmative defense that the charging party and her comparator had each negotiated their salaries, and that those negotiations resulted in the alleged salary disparity.722 The EEOC argued that “there is simply no basis for the proposition that a male comparator’s ability to negotiate a higher salary is a legitimate business-related justification to pay a woman less.”723 The court rejected this argument, but noted that other courts had come to different conclusions as to whether salary negotiations, by themselves, could constitute a valid defense to an EPA claim. Given the unsettled nature of the law, the court was unwilling to adopt the EEOC’s interpretation at the pleading stage: “The Court finds that the EEOC did not meet its burden to show that the affirmative defense is insufficient because there is a question of law, specifically whether Aldrich’s job-relatedness requirement would apply to negotiations, which might allow the defense to succeed.”724 In another recent case, EEOC v. University of Miami,725 the EEOC alleged that a university paid a female professor less than her counterpart who performed the same job. The university had hired the charging party as an associate professor during the same year that it hired a male professor with comparable qualifications for a lower-ranked position in the same department at a higher salary.726 Thereafter, the university’s policy of making fixed pay increases only exacerbated the situation over time, so that by the time they became full professors, the male professor made approximately $28,000 more than the female professor.727 The university argued that the professors did not perform substantially equal work and that the salary discrepancy could be explained by a factor other than sex. The court first held that a reasonable jury reviewing the duties of the two professors could conclude that their positions were substantially equal. Although the two professors taught different political science specialties, the court noted that they both had doctorate degrees, generally taught the same number of courses at the introductory and advanced levels, and were subject to the same university requirements regarding teaching and research.728 The university argued that the salary disparity between the two professors was due to a factor other than sex; namely, they were “market-based,” that annual raises were determined by individual performance, and that multiple salary analyses confirmed that there was no relationship between gender and salary at the University.729 The court could not credit the “market-based” theory due to the absence of credible evidence as to what the market was at the time the two professors were hired. The court was also not convinced that the pay disparity could be explained by disproportionate performance. Although the university claimed the charging party published in less prestigious journals than the male professor, the Dean had admitted he had not reviewed her salary increases or the reasons for the amounts that had been awarded in each year, thus undercutting the university’s explanation.730 Moreover, the court did find evidence of gender disparities at the university, including evidence that it placed a higher service requirement on female professors and had proactively increased male professors’ 721 EEOC v. Hunter-Tannersville Cent. Sch. Dist., No. 1:21-cv-0352, 2021 WL 5711995 (N.D.N.Y. Dec. 2, 2021). 722 Id. at *3. 723 Id. at *2. 724 Id. at *3. 725 EEOC v. Univ. of Miami, No. 19-cv-23131, 2021 WL 4459683 (S.D. Fla. Sept. 29, 2021). 726 Id. at *6. 727 Id. 728 Id. at *8. The university argued that the two professors were not comparable because of their different areas of specialization, because they published in different journals, and because the male professor had published in more prestigious journals. The court found this evidence unpersuasive because “the professors’ specializations within the field of political science do not appear to be dispositive as to the question of substantial job similarity,” but “[r]ather, subspecialties are considered when evaluating whether a professor conducted research and was subsequently published in high-ranking journals relevant to their respective specializations.” Id. The court was ultimately convinced that “the quality of [comparator’s] publications and number of cite counts are determinative of this inquiry because the Plaintiff's prima facie case requires a comparison of jobs, not the skills and qualifications of the individuals who hold the jobs.” Id. 729 Id. at *9. 730 Id. at *10.
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