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Second Circuit Addresses “Factor Other Than Sex” Defense to Equal Pay Act

Anita Eisenhauer is a female professor at the Culinary Institute of America. She sued the Institute, alleging that it violated the Equal Pay Act (EPA) and a parallel New York state law by paying her less than a male professor who taught a similar number of classes.

The Institute defended the differential pay by pointing to a "factor other than sex" as an affirmative defense to the EPA action. A collective bargaining agreement and the Institute's employee handbook set forth its gender-neutral compensation plan. Employees earn fixed pay increases through time on the job, promotions, and degree completion. The Institute does not adjust salaries to make things equitable or based on an individualized merit assessment. Each faculty member receives the same salary increase each year. Eisenhauer and the male comparator started at different salaries, but she did not assert her lower starting salary was gender-based. Eisenhauer argued the Institute's compensation plan did not qualify as a "factor other than sex" because it is unconnected to the job's qualifications and requirements.

The Second Circuit Court of Appeals assessed whether the Institute's pay plan constituted a "differential based on any other factor other than sex." A prior decision required the pay differential to be "rooted in legitimate business-related difference in work responsibilities and qualifications" for the job, such as seniority, experience, or education. This court moved away from that decision and found the meaning of the "factor other than sex" affirmative defense is plain. It includes every additional factor, irrespective of whether the factor relates to the job. Thus, Eisenhauer's federal claim will not move forward. However, New York's equal pay law expressly requires that bona fide factors other than sex defense be job-related. Thus, she may proceed on that claim.