58 | Developments in Equal Pay Litigation 2025 ©2025 Seyfarth Shaw LLP analyzed under the same standards applicable to the federal Equal Pay Act,”415 after Eisenhauer, “the employer ‘must prove that the pay disparity in question results from a differential based on a job-related factor. . . . By contrast, the EPA’s ‘factor other than sex’ defense imposes no such requirement.’”416 The court also noted the Second Circuit’s admonishment that district courts should “analyze a plaintiff’s ‘[NY EPA] claim as altogether distinct form her EPA one.’”417 Yet the court made no effort to distinguish between the New York EPA and the federal EPA when determining the “equal work” prong of plaintiff’s prima facie case. After citing a long line of precedent, which mostly predated New York’s ostensible change to a “substantially similar” standard, the court concluded that “the evidence at trial establishes that Plaintiff did not perform equal work to [comparator] because their positions did not require substantially equal effort.” Among other things, it was simply a fact that plaintiff’s comparator’s contract required a higher degree of productivity, as measured by RVUs—i.e., the numbers the employer used to represent, in relative terms, the time and effort required to perform a medical procedure—which “required him to expend significantly greater effort than Plaintiff's position did.”418 Notably, the court came to the same conclusion when considering plaintiff’s claims under the NY EPA, because, it held, the “equal work inquiry” is “’critical’ for unequal pay claims under the [NY EPA].”419 Accordingly, the court came to the same conclusions and relied on the same reasoning for both statutes: “As explained above, Plaintiff failed to show that her position required equal effort to [comparator’s], given his significantly higher RVU target. Plaintiff therefore has not shown that her job and [comparator’s] job demanded equal work for purposes of her [NY EPA] claim.”420 That was not the case with the employer’s factor other than sex defense, however. Although the court came to the same conclusion—that the employer had established its defense—it was careful to analyze the issue under the new standard applicable to NY EPA claims, noting that “New York law specifies that such a factor must ‘be job-related with respect to the position in question and . . . be consistent with business necessity.’”421 Among other things, the court had held, with respect to plaintiff’s federal EPA claim, that the employer hospital’s geographical demand for a very strong and capable physician in plaintiff’s comparator’s specialty justified the pay disparity because he was needed to “fill a hole” in its network. Turning to plaintiff’s NY EPA claim, the court had no trouble finding that this reason was both job-related and consistent with business necessity because the employer hospital had shown that there was a particular need for a physician of plaintiff’s comparator’s specialty and experience level, to launch a new rheumatology practice at one of its facilities, where they had patients they “needed to take care of.”422 The different requirements under the NY EPA were a distinction without a difference. Most other courts that have had to address potential differences between state and federal laws have chosen simply to ignore them, interpreting the requirements of the new state laws consistently with federal law. For example, in Basting v. San Francisco Bay Area Rapid Transit District,423 the District Court for the Northern District of California held that the employer established the factor other than sex defense under both federal and California law. That case involved an employer that classified its non-represented employees into various pay bands. It commissioned a study of its compensation practices, the result of which was that the employer bumped salaries to the midpoint of a pay band for all employees who had two or more years of service within a classification.424 The court found that the study’s recommendations had been applied equally to all non-represented employees regardless of gender, and therefore qualified 415 Id. at *7 (quoting Wu v. Good Samaritan Hosp. Med. Ctr., 815 F. App’x 575, 581 n.5 (2d Cir. 2020)). 416 Id. (quoting Eisenhauer, 84 F.4th at 525). 417 Id. (quoting Eisenhauer, 84 F.4th at 525). 418 Id. at *8. 419 Id. at *10 (quoting Woods-Early v. Corning Inc., 2023 WL 4598358, at *4 (W.D.N.Y. July 18, 2023)). 420 Id. 421 Id. (quoting NYLL § 194(1)(iv)(B)). 422 Id. (internal citations omitted). 423 Basting v. S.F. Bay Area Rapid Transit Dist., No. 20-cv-5981-SI, 2021 WL 5771137 (N.D. Cal. Dec. 6, 2021). 424 Id. at *1. The plaintiff had only been in her classification for 18 months and so did not receive a salary increase. Her comparators had all received salary increases because they had been in their classification for at least two years at the time the study was conducted. Id.
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