Second Circuit Clarifies That Federal Equal Pay Act Does Not Require "Factor Other Than Sex" Defense To Be Job Related

• Jurisdiction: United States,Federal
• Law Firm: Seyfarth Shaw LLP
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment, Employee Benefits & Compensation, Employment Litigation/ Tribunals
• Author: Mr Matthew Gagnon
• Published date: 23 October 2023

Seyfarth Synopsis: On October 17, 2023, the Second Circuit issued the eagerly-awaited decision in Eisenhauer v. Culinary Institute of America. The court clarified that the federal EPA never required employers to show that a "factor other than sex" must be related to the job in question, contrary to arguments by many plaintiffs and commentators. This was a notable appeal because it raised several critical issues, any one of which could have changed the contours of equal pay litigation dramatically. The Second Circuit chose to leave most of those issues undecided, and instead took the opportunity to clarify a thirty-year-old decision, and its thirty years of precedent.

On October 17, 2023, the Second Circuit issued its eagerly-awaited decision in Eisenhauer v. Culinary Institute of America, No. 21-2919-cv (2d Cir. 2023). This decision clarified an important issue regarding an employer's "factor other than sex" affirmative defense under the federal Equal Pay Act ("EPA"). This appeal was notable due to the several weighty issues it raised regarding the course and conduct of equal pay litigation. Even the EEOC had jumped into the mix, filing an amicus brief on the plaintiff's behalf relating to two of those issues. Ultimately, however, most of those issues were left undecided, as the Second Circuit focused its energies on clearing up a confusing history of case law regarding the affirmative defenses available under the federal EPA.

Background

The plaintiff in Eisenhauer, a female professor at a culinary school, alleged she was paid less than a male professor who managed a similar course load. That salary disparity existed because plaintiff and her comparator were hired at different salaries, which then increased over time according to the sex-neutral terms of a compensation plan. Under that plan, all faculty members received the same percentage increase in their salaries each year. The result was that the pay disparity between the professors only grew over time. The Second Circuit addressed itself to an issue that was not much discussed by the district court: does the federal EPA require an employer to show that the factor it is relying upon to establish its "factor other than sex" affirmative defense is related to the job in question?

The Second Circuit held that no such requirement exists under the federal EPA. To be clear, the district court found in favor of the employer even applying the more stringent standard the Second Circuit held was in error, i.e...