©2025 Seyfarth Shaw LLP Developments in Equal Pay Litigation 2025 | 57 ‘factor other than sex’ defense imposes no such requirement. By contrast, under New York Labor Law § 194(1), to establish the ‘factor other than sex’ or ‘status’ defense, a defendant must prove that the pay disparity in question results from a differential based on a job-related factor.”407 The Second Circuit remanded the case back to the district court to reconsider its decision in light of the different standards under the federal and New York EPA statutes. This was despite the fact that the district court had found in favor of the employer even after applying the more stringent standard the Second Circuit held was in error, i.e., the district court held that the ”factor other than sex” relied upon by the employer was in fact job related: “The parties appear to agree, and the evidence shows, that the disparity between the initial salaries was due to non-discriminatory, business-related reasons.”408 Nevertheless, the Second Circuit faulted the district court for evaluating the federal and New York EPA claims under the same standard: “The District Court evaluated [plaintiff’s] EPA and §194(1) claims ‘under the same standard.’ Until January 2016, this approach may have been the proper one. Since at least January 2016, however, the relevant standards have differed at least because §194(1) has included a job-relatedness requirement.”409 In another recent case, Edelman v. NYU Langone Health System,410 the district court for the Southern District of New York held that the recent changes to New York’s equal pay law meant that some defenses were off the table in New York. In that case, a physician alleged she was paid less than male physicians working in the same subspecialty. For physicians hired out of private practice, the employer’s usual practice was to negotiate salary while taking into account the assumption of the debts from their private practice. The employer argued, among other things, that it had to match plaintiff’s comparators’ private practice salaries.411 The court held that prior salary can reflect legitimate, non-discriminatory differences in the value that one employee contributes compared to another. But the court noted the recent changes to New York’s equal pay law, which prohibits the use of prior salary as a means of setting starting salary: “If prior salary always justified unequal pay, the EPA would entrench rather than remedy pay inequalities. New York bars employers from engaging in salary-matching for that very reason, in an effort to enforce the EPA.”412 Because the employer had not explained how the differences in physicians’ prior salaries reflected any difference in value, the court rejected its attempt to use prior salary as a justification for the wage disparity.413 In late 2023, the Southern District of New York had a chance to review this holding in light of the Second Circuit’s guidance in Eisenhauer, when the parties moved for judgment as a matter of law after a trial that found for the employer on plaintiff’s equal pay claims.414 The court first noted the change wrought by the Second Circuit, noting that although, “[g]enerally, ‘an equal pay claim under New York Labor Law § 194 is 407 Eisenhauer, 84 F.4th at 525. 408 Eisenhauer v. Culinary Inst. of Am., No. 19-cv-10933(PED), 2021 WL 5112625, at *7 (S.D.N.Y. Nov. 3, 2021). 409 Eisenhauer, 84 F.4th at 525. 410 Edelman v. NYU Langone Health Sys., No. 21-cv-502(LGS), 2022 WL 4537972 (S.D.N.Y. Sept. 28, 2022). 411 Id. at *6. The employer also argued that the difference in pay was justified by the fact that the physicians’ salaries were based on negotiations that took account of their productivity while in private practice: “[Employers] argue that these negotiations are sexneutral and backed by a ‘legitimate business reason’ because they could not otherwise recruit doctors from private practice.” But the court held that the employer’s explanation could not account for why plaintiff was paid less per unit of productivity than her comparators. Id. at *5. 412 Id. 413 Id. The court came to a different conclusion regarding plaintiff’s Title VII claim, however, due to the different burden-shifting regime employed by that statute. The court explained: “In the EPA context discussed above, Plaintiff's prima facie case caused the burden of persuasion to shift to Defendants, and they failed to meet that burden for purposes of summary judgment. Under Title VII, on the other hand, Defendants bear only a burden of production, to proffer a non-discriminatory reason for the disparate pay, and they have met it.” Id. at *9. The court further explained that, “under the EPA a pay disparity is sufficient for liability unless the defendant can prove that the reason for the disparity is non-discriminatory,” but under Title VII, “disparate pay gives rise to liability only if the plaintiff can prove that the reason was discriminatory.” Id. In other words, Title VII requires a plaintiff to show the additional element of discriminatory intent. Plaintiff failed to establish that because she had not shown that the employer implemented its salary-matching practice with the intent to discriminate against women. In fact, the evidence showed that plaintiff’s salary was initially set at a time when the employer had assumed she was male, before learning her gender. Id. That evidence was sufficient to defeat a showing of discriminatory intent. 414 Edelman v. NYU Langone Health Sys., No. 21-cv-502(LJL), 2023 WL 8892482 (S.D.N.Y. Dec. 26, 2023).
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