88 | Developments in Equal Pay Litigation 2025 ©2025 Seyfarth Shaw LLP The matter was appealed to the Eleventh Circuit, and the EEOC filed an amicus brief attempting to clarify the burden shifting framework under the EPA.673 According to the EEOC, the EPA’s framework is as follows: (1) the plaintiff must establish a prima facie case; (2) the defendant must then prove an affirmative defense that, in fact, caused the difference in pay in order to avoid liability. According to the EEOC, under the EPA, the burden never shifts back to the plaintiff to prove pretext.674 Therefore, for the university to prevail, it would need to submit evidence from which a reasonable factfinder could conclude that the proffered reasons do in fact explain the wage disparity (not simply that they could explain the disparity, which would be sufficient under Title VII’s McDonnell Douglas framework). The EEOC points out that this burden is even higher at the summary judgment stage because an employer must prove at least one affirmative defense so clearly that no rational jury could find to the contrary.675 Additionally, under the EPA’s framework, the burden does not shift to the plaintiff to prove pretext.676 According to the EEOC, the District Court’s decision to the contrary goes against Eleventh Circuit precedent, and the majority of other circuits also reject the pretext step for EPA claims.677 In reality, this issue has been hotly disputed among the federal courts, and it is no surprise that the EEOC would want to weigh in to steer the law in an as plaintiff-friendly direction as possible.678 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,679 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.680 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.”681 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.”682 In another recent case, EEOC v. University of Miami,683 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.684 Thereafter, the 673 See Br. of the EEOC as Amicus Curiae in Support of Appellant and in Favor of Reversal, Williams v. Ala. State Univ., No. 2312692 (filed Sept. 29, 2023). 674 Id. at 10-13. 675 Id. at 14. 676 Id. at 16-19. 677 Id. 678 See, e.g., Wilder v. Stephen F. Austin State Univ., 552 F. Supp. 3d 639, 654 (E.D. Tex. 2021) (Noting the differences in proving pretext under the McDonnell Douglas framework versus the framework applied under the EPA, the court held that, under the EPA, the defendant always keeps the burden of production and persuasion after a plaintiff has established a prima facie case: “the court will always consider pretext if the analysis gets that far, but the burden never shifts back to the plaintiff in an EPA claim”); Mullenix v. Univ. of Tex. at Austin, No. 1:19-cv-1203-LY, 2021 WL 5881690 (W.D. Tex. Dec. 13, 2021) (“The burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), governs claims under the EPA.”) (citing Lindsley v. TRT Holdings, Inc., 984 F.3d 460, 466 (5th Cir. 2021)); Patel v. Tungsten Network, Inc., No. 2:20-cv-7603-SB-JEM, 2021 WL 4776348, at *7 (C.D. Cal. Sept. 15, 2021) (holding that the plaintiff did not need to establish pretext to avoid summary judgment because “summary adjudication on the EPA claim is proper only if Defendant produces ‘sufficient evidence such that no rational jury could conclude but that these proffered reasons actually motivated the wage disparity’ at issue”) (quoting Stanziale v. Jargowsky, 200 F.3d 101, 107-08 (3d Cir. 2000)). 679 EEOC v. Hunter-Tannersville Cent. Sch. Dist., No. 1:21-cv-0352, 2021 WL 5711995 (N.D.N.Y. Dec. 2, 2021). 680 Id. at *3. 681 Id. at *2. 682 Id. at *3. 683 EEOC v. Univ. of Miami, No. 19-cv-23131, 2021 WL 4459683 (S.D. Fla. Sept. 29, 2021). 684 Id. at *6.
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