Second Circuit: EPA “Factor Other Than Sex” Affirmative Defense Need Not Be Job-Related

/in /by

APPLIES TO

All Employers with Employees in CT, NY, and VT

EFFECTIVE

October 17, 2023

  

QUESTIONS?

Contact HR On-Call

(888) 378-2456
Quick Look

  • To establish an affirmative defense under the EPA, employers need only prove that a pay disparity results from a differential based on any factor except for sex.
  • The “any factor other than sex” does not need to be job-related.

Discussion

In Eisenhauer v. Culinary Institute of America, the Second Circuit Court of Appeals clarified that the federal Equal Pay Act (EPA) does not require employers to show that a “factor other than sex” defense must be job-related. Instead, a defendant must only prove that the pay disparity in question results from a differential based on any factor except for sex.

Here, a female professor from the Culinary Institute of America alleged that her employer violated the EPA and New York Labor Law by compensating her less than a male professor carrying a similar course load. In its defense, the employer pointed to its sex-neutral compensation plan, which incorporates a collective bargaining agreement and employee handbook, as justification for the pay disparity.

The EPA provides four affirmative defenses to its prohibition of pay disparities based on sex: “(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.” In reviewing “any factor other than sex,” the Circuit Court said it means every additional factor except for those based intentionally or unintentionally on sex. Therefore, to establish the EPA’s “factor other than sex” defense, a defendant must prove that the pay disparity in question results from a differential based on any factor except for sex. Notably, the Court found that there was nothing in the legislative history to suggest that the term must be job-related or limited in any way.

Action Items

  1. Conduct a wage audit for compliance with the EPA.
  2. Establish a compensation structure with parity.
  3. Have appropriate personnel trained on managing compensation.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase