IN THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
CULINARY INSTITUTE OF AMERICA,
On Appeal from the United States District Court
for the Southern District of New York
Hon. Paul E. Davison, U.S. Magistrate Judge
Case No. 19-cv-10933
BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION AS AMICUS CURIAE IN SUPPORT OF
PLAINTIFF/APPELLANT AND IN FAVOR OF REVERSAL
Deputy General Counsel
JENNIFER S. GOLDSTEIN
Associate General Counsel
ELIZABETH E. THERAN
Assistant General Counsel
JULIE L. GANTZ
Office of General Counsel
131 M St., N.E., 5th Floor
Washington, D.C. 20507
Table of Authorities.............................................................................. ii
Statement of Interest............................................................................. 1
Statement of the Issues......................................................................... 2
Statement of the Case........................................................................... 3
A. Statement of Facts....................................................................... 3
B. District Court’s Decision............................................................ 8
I. Eisenhauer established a prima face case of wage discrimination under the EPA by offering evidence of a single male comparator who earned a higher salary for performing the same job........................................................... 13
II. A defendant must prove, not merely articulate, its affirmative defense that something other than sex explains a wage disparity, and the burden of proof never reverts to the plaintiff to establish pretext..................................................... 25
Certificate of Compliance................................................................... 39
Table of Authorities
Randolph Cent. Sch. Dist., 963 F.2d 520 (2d Cir. 1992)
Andrus v. Dooney
& Bourke, Inc.,
139 F. Supp. 3d 550 (D. Conn. 2015)
441 F.3d 353 (6th Cir. 2006)
191 F.3d 129 (2d Cir. 1999)
Granville Cent. Sch. Dist., No. 1:18CV1456, 2021 WL 22606 (N.D.N.Y. Jan. 4,
Byrd v. Ronayne, 61 F.3d 1026
(1st Cir. 1995)
Chance v. Rice
984 F.2d 151 (5th Cir. 1993)
Chepak v. N.Y.C.
Health & Hosps. Corp., 643 F. App’x 62 (2d Cir. 2016), aff’d 643 F. App’x 62 (2d Cir. 2016)
Works v. Brennan,
417 U.S. 188 (1974)
EEOC v. Maricopa
Cnty. Cmty. Coll. Dist., 736 F.2d 510 (9th Cir. 1984)
EEOC v. Md. Ins.
879 F.3d 114 (4th Cir. 2018)
EEOC v. Port
Auth. of N.Y. & N.J., 768 F.3d 247 (2d Cir. 2014)
EEOC v. White
& Son Enters.,
881 F.2d 1009 (11th Cir. 1989)
Massapequa Pub. Sch.,
752 F. Supp. 2d 286 (E.D.N.Y. 2010), aff’d, 462 F. App’x 38 (2d Cir.
Howe & Rusling,
529 F. Supp. 2d 396 (W.D.N.Y. 2008)
Rockefeller & Co.,
258 F.3d 62 (2d Cir. 2001)
Husser v. N.Y.C.
Dep’t of Educ.,
137 F. Supp. 3d 253 (E.D.N.Y. 2015)
Jamilik v. Yale
362 F. App’x 148 (2d Cir. 2009)
King v. Acosta
Sales & Mktg., Inc., 678 F.3d 470 (7th Cir. 2012)
Allstate Ins. Co.,
691 F.2d 873 (9th Cir. 1982)
v. Genesee Hosp., 10 F.3d 46 (2d Cir. 1993), overruled on other grounds
by Greathouse v. JHS Sec. Inc., 784 F.3d 105 (2d Cir. 2015), and abrogated
by Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S.
v. Marist College,
239 F.3d 476 (2d Cir. 2001)
Leong v. SAP
67 F. Supp. 3d 972 (N.D. Ill. 2014)
Maxwell v. City
803 F.2d 444 (9th Cir. 1986)
Douglas Corp. v. Green, 411 U.S. 792 (1973)
Rizo v. Yovino, 950 F.3d 1217
(9th Cir. 2020), cert. denied, 141 S. Ct. 189
Port Auth. of N.Y. & N.J., 203 F.3d 135 (2d Cir. 2000)
St. Mary’s Honor
Center v. Hicks,
509 U.S. 502 (1993)
Stopka v. All.
of Am. Insurers,
141 F.3d 681 (7th Cir. 1998)
Talwar v. Staten
Island Univ. Hosp.,
610 F. App’x 28 (2d Cir. 2015)
Texas Dep’t of
Cmty. Affs. v. Burdine, 450 U.S. 248 (1981)
Tomka v. Seiler
66 F.3d 1295 (2d Cir. 1995)
United States v.
361 F.3d 717 (2d Cir. 2004)
Warf v. U.S.
Dep’t of Veterans Affairs, 713 F.3d 874 (6th Cir. 2013)
Equal Pay Act
29 U.S.C. § 206(d)
29 U.S.C. § 216(b)
Title VII of the Civil Rights Act of 1964
§§ 2000e et seq.
C.F.R. § 1620.13(b)(2)
R. App. P. 29(a)
Compliance Manual Vol. II, § 10-IV
Congress charged the Equal Employment Opportunity Commission (“EEOC” or “Commission”) with administering and enforcing the Equal Pay Act, 29 U.S.C. § 206(d) (“EPA”). This case raises two important questions about the proper analysis of a wage discrimination claim under the EPA. The first is whether the EPA allows a plaintiff to satisfy her prima facie case of wage discrimination by identifying only one comparator of the opposite sex earning more money for substantially equal work, which the district court correctly answered in the affirmative.
The second important question is the correct allocation of the burden of proof under the EPA after the plaintiff has established a prima face case of wage discrimination. Here, the district court granted summary judgment to the defendant based on the EPA’s affirmative defense that the pay disparity was attributed to a factor other than sex, but it did so on the grounds that the plaintiff failed to show the defense was a “pretext” for discrimination—an additional phase at odds with the statute. The burden to establish any of the EPA’s affirmative defenses never shifts to the plaintiff to establish pretext—an analytical stage appropriate in proving intent in Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., but not in a strict-liability statute like the EPA.
Because the EEOC has a strong enforcement interest in these issues, it offers its views to the Court pursuant to Federal Rule of Appellate Procedure 29(a).
1. Whether the district court correctly held that the plaintiff established a prima facie case of pay discrimination by offering evidence that a single male comparator was earning more for performing substantially equal work.
2. Whether the district court erred by holding that the defendant had established an affirmative defense to liability under the EPA as a matter of law merely because it articulated nondiscriminatory reasons for the pay disparity between the plaintiff and her male colleague, and because the plaintiff failed to prove those reasons were pretextual.
The Culinary Institute of America (“CIA”) is a private cooking college in Hyde Park, New York. J.A.009. Eisenhauer was hired as a Lecturing Instructor in CIA’s Culinary Art Department in 2002 with a starting salary of $50,000. J.A.033, 255. Eisenhauer testified that, although she hoped to be making at least $60,000, she was told “to take it or leave it.” J.A.206. According to CIA, starting salaries are determined by the candidate’s resume, application, and interview performance. J.A.214, 227; R.25 at 19. Eisenhauer’s application details fifteen years of hands-on restaurant experience beginning as a line cook in 1987 and lists several cooking awards. J.A.125-26. It also notes that she pursued two years of international studies at the University of Nebraska, where she paid “particular attention to the sociological contribution of food and cooking to our cultures,” and wanted “to be able to contribute to the conservation of techniques and methods in cooking ….” J.A.124.
Throughout her tenure at CIA, Eisenhauer has taught in CIA’s Culinary Arts Global Specialization department, teaching courses in Mediterranean, Asian, and American cuisine. J.A.217, 260-61. As soon as she was hired, Eisenhauer was required to and did join the Culinary Teachers Association (“CTA”), the union covering CIA’s faculty members. J.A.206. Pursuant to the collective bargaining agreement (“CBA”) between the faculty and CIA, fixed pay increases are triggered by time, title change, and/or degree completion, and not based on merit or subjective factors. J.A.072-74, 229. CIA Provost Mark Erickson described Eisenhauer as a respected faculty member (J.A.169), and another professor described her as “solid and well respected” and “a disciplined teacher.” J.A.238.
Eisenhauer’s salary over the years increased steadily, pursuant to the CBA. J.A.033. She received annual percentage raises as well as increases for milestones like promotions and degree completion. Id. To obtain a promotion in rank, faculty applied to a committee detailing qualifications and accomplishments. J.A.107. Those granted promotions received raises depending on academic rank. J.A.072. In 2016, for example, the bump in salary ranged from $2,756 for promotion to Assistant Professor to $8,820 for Professor, the highest rank. Id. Eisenhauer advanced in rank every few years, from Lecturing Instructor to Assistant Professor in 2005 to Associate Professor in 2008 and finally to Professor in 2013. J.A.033. She was also given increases for completing a bachelor’s degree from SUNY Empire State College in 2009 and an MBA from Green Mountain College in 2016. J.A.033, 010.
Another professor in Culinary Arts Global Specialization, Robert Perillo, was hired as a Lecturing Instructor in 2008 with a starting salary of $70,000. J.A.195. Like Eisenhauer, Perillo specializes in international cuisine and teaches Mediterranean and American cuisine (not Asian). J.A.249, 261. Perillo testified that he and Eisenhauer sometimes fill in for each other in teaching classes and have essentially the same job duties. J.A.249, 250. CIA maintained that Perillo’s completed associate degree from CIA, greater years of experience as a chef and professor, and superior performance in the cooking and teaching demonstrations during the application process justified his higher starting salary. J.A.227-28; R.25 at 11-12, 20-21. Also, starting salaries generally were higher by that time. J.A.053-55.
At the time Perillo started at CIA in 2008, Eisenhauer was an Associate Professor making $70,821.31, about $800 more than Perillo. J.A.033, 037. Perillo’s salary first surpassed Eisenhauer’s in 2011, when he became an Assistant Professor earning $80,836.33, while Eisenhauer made $80,137.63 as a higher-ranked Associate Professor with more seniority and a bachelor’s degree. Id. By 2012, Perillo had earned a bachelor’s degree from the same university as Eisenhauer and was making $83,745.84, approximately $1,650 more than Eisenhauer’s $82,060.93. Id. When Eisenhauer was promoted to full Professor in 2013, her salary jumped ahead of Perillo’s to $92,030.37; Perillo, who was still an Assistant Professor two levels below Eisenhauer, was earning $85,725.02. Id. In 2016, after Perillo had earned an MBA from Green Mountain College and reached the level of Associate Professor, Eisenhauer was still earning slightly more: $99,829.44 compared to his $98,994.96. Id.
Once Perillo became a full Professor in 2017, his salary reached $111,032.29 compared to Eisenhauer’s $104,622.65. J.A.033, 037. At this point, both chefs had the same rank and the same degrees from the same schools, but because Eisenhauer had started at CIA in 2002 and Perillo in 2008, she had six additional years of seniority. She also taught one more class than Perillo. J.A.260-61. As of the district court litigation in this case, Perillo continued to out-earn Eisenhauer: his salary at the time of the summary judgment briefing was $121,917.66, while Eisenhauer’s was $114,879.64. J.A.033, 037. The following table summarizes Eisenhauer’s and Perillo’s respective earnings during their time at CIA (in whole dollar amounts).
Eisenhauer’s and Perillo’s Respective Salaries at CIA
$50,000 Lecturing Instructor (hired)
$66,185 Ass’t Professor
$70,821 Assoc. Professor
$70,000 Lecturing Instructor (hired)
$78,259 Assoc. Professor
$76,442 Lecturing Instructor
$80,138 Assoc. Professor
$80,836 Ass’t Professor
$82,061 Assoc. Professor
$83,716 Ass’t Professor
$85,725 Ass’t Professor
$91,830 Ass’t Professor
$98,995 Assoc. Professor
Eisenhauer sued CIA under the EPA and state law, and both parties moved for summary judgment.
In granting CIA’s motion for summary judgment, the district court initially noted that the EPA “is a strict liability statute, and so a plaintiff need not show an employer’s discriminatory intent.” J.A.270 (citing Belfi v. Prendergast, 191 F.3d 129, 135-36 (2d Cir. 1999)). In setting out the analysis in an EPA case, however, the court asserted, “[o]nce an employer establishes one of the four affirmative defenses, the burden shifts back to the plaintiff to show that the stated reason was, in fact, a pretext for sex discrimination.” J.A.271 (citing Chepak v. N.Y.C. Health & Hosps. Corp., No. 11 Civ. 9698, 2015 WL 509279, at *9 (S.D.N.Y. Feb. 5, 2015), aff’d 643 F. App’x 62 (2d Cir. 2016)).
The district court first rejected CIA’s argument that Eisenhauer could not establish a prima facie case using only Perillo as a comparator. The court relied on Lavin-McEleney v. Marist College, 239 F.3d 476 (2d Cir. 2001), where the plaintiff professor offered a single comparator as well as statistical data about the male faculty members to a jury. J.A.273-75. The court acknowledged that this Court’s language in Talwar v. Staten Island University Hospital, 610 F. App’x 28, 30-31 (2d Cir. 2015) (summary order), that “‘male attending pathologists were not, as a group, paid more than female attending pathologists,’” theoretically might support CIA’s argument that Eisenhauer’s prima facie showing was lacking. J.A.277. But, according to the court, factual issues regarding whether other male faculty members at CIA were sufficiently similar to Eisenhauer precluded summary judgment on that ground. The court read Lavin-McEleney, which did not expressly hold that a single comparator was sufficient to establish a prima facie case, to trump Talwar’s suggestion that a plaintiff had to offer more than one comparator at the prima facie stage. J.A.277-78.
On the EPA’s affirmative defenses, the district court concluded that CIA’s articulation and assertion of a non-discriminatory justification (J.A.279, 285)—Perillo’s greater prior experience, education, and professional credentials when he was hired and the CBA’s gender-neutral formula for awarding pay increases—was a factor other than sex, “which Plaintiff has not shown was pretextual.” J.A.286; see also J.A.285 (finding CIA asserted a proper affirmative defense). The court relied on language from St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 515 (1993), for the proposition that a reason cannot be established as a pretext for discrimination unless it is shown both to be false and that discrimination is the real reason. J.A.272. The court accepted that the disparity in wages “was caused by the difference between the starting salaries, and the collective bargaining agreement now prevents Plaintiff from ever reaching the comparator’s salary, despite working in the same position and under similar conditions.” J.A.280. The key question, the court said, was whether CIA’s reasons for the difference in starting salaries “in conjunction with the rigidity of the collective bargaining agreement, may serve as a factor other than sex rooted in legitimate, business-related reasons.” Id.
The court rejected Eisenhauer’s argument that the CBA unfairly locks in the starting salary differentials and serves no legitimate business purpose, asserting that a gender-neutral salary structure may serve as a factor other than sex to justify future wage gaps. J.A.282-83 (discussing the “Salary Plan” in Belfi, 191 F.3d at 136). In the court’s view, CIA “asserted a proper affirmative defense” because the starting salaries here differed based on Perillo’s superior qualifications, and both the initial gap and continued disparity caused by adhering to the CBA serve the legitimate business-related interests of inducing a more experienced employee to accept the position. J.A.284-85. According to the court, insofar as there was discretion in setting pay for the faculty positions, which could be circumstantial evidence the pay disparity “is caused by discrimination,” “it is Plaintiff’s burden to offer such evidence to raise a triable issue of fact.” J.A.285. The court noted that, because Eisenhauer did not argue that the compensation plan in the CBA was a pretext for sex discrimination and instead argued that CIA’s reliance on it “‘does not constitute a valid justification,’” she “failed to show pretext as a matter of law.” Id.
Countering the “‘ancient but outmoded belief that a man, because of his role in society, should be paid more than a woman even though his duties are the same,’” Congress enacted the EPA to enshrine “the principle of equal pay for equal work.” Corning Glass Works v. Brennan, 417 U.S. 188, 190, 195 (1974) (quoting S. Rep. No. 176, 88th Cong., 1st Sess., 1 (1963)). The EPA provides that an employer may not “discriminate … between employees on the basis of sex by paying wages to employees … at a rate less than the rate at which he pays wages to employees of the opposite sex … for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” 29 U.S.C. § 206(d). The statute contains four defenses: a pay differential is permissible if the employer can show it is due to “(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.” Id.
The district court correctly held that Eisenhauer established a prima facie case of wage discrimination under the EPA because she identified a male comparator who was paid more for performing substantially equal work. The burden then should have shifted to CIA to establish – not simply to articulate – the affirmative defense that the pay disparity was based on a factor other than sex. In holding otherwise, and in requiring Eisenhauer to prove the proffered factor was a pretext for discrimination, the court erred.
As the Supreme Court has explained, “The [Equal Pay] Act’s basic structure and operation are … straightforward.” Corning Glass Works, 417 U.S. at 195. “In order to make out a case under the Act,” a plaintiff “must show that an employer pays different wages to employees of opposite sexes” for equal work. Id.; see also Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 524 (2d Cir. 1992) (“[A] plaintiff must first establish a prima facie case of wage discrimination by demonstrating that: (1) the employer pays different wages to employees of the opposite sex; (2) the employees perform equal work on jobs requiring equal skill, effort, and responsibility; (3) the jobs are performed under similar working conditions.”). Because the central question for EPA purposes is whether men and women are paid unequal wages for equal work based on their sex, only comparators performing substantially equal work are relevant to the analysis. Corning Glass Works, 417 U.S. at 195; EEOC v. Port Auth. of N.Y. & N.J., 768 F.3d 247, 255 (2d Cir. 2014) (satisfying “substantially equal work” standard requires a showing that the jobs compared entail common duties or content); EEOC Compliance Manual Vol. II, § 10-IV(E)(2), available at https://eeoc.gov/laws/guidance/section-10-compensation-discrimination
(whether two jobs are substantially equal turns on whether the jobs have the same common core of tasks).
CIA argued to the district court that Eisenhauer was required to show CIA pays “comparable male employees, as a group, more than comparable female employees as a group” and failed to make this showing by using only Perillo as a comparator. R.25 at 13-14. The parties and the court agreed that Eisenhauer and Perillo perform equal work within the meaning of the EPA. J.A.272-73.
The district court concluded, correctly, that the proper standard requires a plaintiff to show only that a single opposite-sex comparator was paid more for substantially equal work. As explained further below, this Court has never explicitly addressed whether evidence that a single male comparator was paid more to perform a substantially equal job is sufficient to establish a prima facie case under the EPA. See Lavin-McEleney, 239 F.3d at 482 (declining to decide whether identifying one male comparator standing alone would have been sufficient to prove discrimination under the EPA because the plaintiff offered both a comparator and statistical evidence).
Several other circuits have unequivocally recognized that an EPA claimant need only show she was “paid less than one or more males” for equal work to establish a prima facie case of wage discrimination. EEOC v. Md. Ins. Admin., 879 F.3d 114, 121 (4th Cir. 2018); see also id. at 122 (“An EPA plaintiff is not required to demonstrate that males, as a class, are paid higher wages than females, as a class, but only that there is discrimination in pay against an employee with respect to one employee of the opposite sex.”); EEOC v. White & Son Enters., 881 F.2d 1006, 1009 (11th Cir. 1989) (“Plaintiff need only show discrimination in pay against an employee vis-à-vis one employee of the opposite sex.”). This is also the approach the Commission has long advocated. See EEOC Compliance Manual Vol. II, § 10-IV(B) (explaining that a prima facie case under the EPA requires showing, inter alia, that “the complainant receives a lower wage than paid to an employee of the opposite sex in the same establishment”) (emphasis added); id. § 10-IV(E) (“A prima facie EPA violation is established by showing that a male and a female receive unequal compensation for substantially equal jobs within the same establishment. A complainant cannot compare herself or himself to a hypothetical male or female; rather, the complainant must show that a specific employee of the opposite sex earned higher compensation for a substantially equal job.” (emphasis added)). And, the EEOC has said, “There is no requirement that the complainant show a pattern of sex-based compensation disparities in a job category.” Id.; see EEOC v. Maricopa Cnty. Cmty. Coll. Dist., 736 F.2d 510, 515 (9th Cir. 1984) (existence of higher-paid women in the same job category as the male comparators “does not … defeat the plaintiff’s prima facie showing of wage discrimination.”).
Additional circuit courts have described the EPA’s prima facie standard as requiring plaintiffs to identify a single comparator of the opposite sex who was paid more for similar work. See, e.g., Byrd v. Ronayne, 61 F.3d 1026, 1033 (1st Cir. 1995) (“An Equal Pay Act plaintiff must make a prima facie showing that the employer paid different wages to an employee of the opposite sex for substantially equal work.”); Chance v. Rice Univ., 984 F.2d 151, 153 (5th Cir. 1993) (characterizing required showing as “1. [plaintiff’s] employer is subject to the Act; 2. she performed work in a position requiring equal skill, effort, and responsibility under similar working conditions; and 3. she was paid less than the employee of the opposite sex providing the basis of comparison.”); Warf v. U.S. Dep’t of Veterans Affairs, 713 F.3d 874, 881 (6th Cir. 2013) (“To prove an employer has violated the Equal Pay Act, a plaintiff must show that the employer paid an employee of the opposite sex different wages ‘for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.’” (citation omitted)); Stopka v. All. of Am. Insurers, 141 F.3d 681, 685 (7th Cir. 1998) (prima facie case requires showing that “(1) higher wages were paid to a male employee, (2) for equal work requiring substantially similar skill, effort and responsibilities, and (3) the work was performed under similar working conditions.”). Similarly, the guidelines addressing application of the EPA contemplate the use of a single comparator to establish a prima facie case under the statute. See 29 C.F.R. § 1620.13(b)(2) (“[W]here an employee of one sex is hired or assigned to a particular job to replace an employee of the opposite sex but receives a lower rate of pay than the person replaced, a prima facie violation of the EPA exists.”).
As noted above, this Court has not ruled expressly on whether evidence of one comparator could establish a prima facie case under the EPA. But, in decades’ worth of cases interpreting the statute, it has discussed the prima facie case in terms of a comparison between two individual employees and/or sanctioned cases offering a single comparator. See Jamilik v. Yale Univ., 362 F. App’x 148, 150 (2d Cir. 2009) (reversing district court’s grant of summary judgment where there were outstanding factual issues regarding the plaintiff’s prima facie case offering one male comparator); Ryduchowski v. Port Auth. of N.Y. & N.J., 203 F.3d 135, 143 (2d Cir. 2000) (plaintiff established a prima facie case that “the Port Authority paid different wages to Lopez and plaintiff, Lopez and plaintiff performed equal work on jobs requiring equal skill, effort, and responsibility ... ; and (3) Lopez and plaintiff performed their jobs under equal working conditions.”); Lambert v. Genesee Hosp., 10 F.3d 46, 56 (2d Cir. 1993), overruled on other grounds by Greathouse v. JHS Sec. Inc., 784 F.3d 105 (2d Cir. 2015), and abrogated by Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1 (2011) (reinstating jury verdict in favor of one plaintiff’s EPA claim where she alleged her position in the microfilm area was equal to male comparator’s charge-person position).
District courts within the Second Circuit have similarly long followed this principle. See, e.g., Andrus v. Dooney & Bourke, Inc., 139 F. Supp. 3d 550, 557-58 (D. Conn. 2015) (“Although a sole comparator can suffice under the Equal Pay Act, the sole comparator must be similarly situated.”); Flaherty v. Massapequa Pub. Sch., 752 F. Supp. 2d 286, 299 (E.D.N.Y. 2010) (plaintiff established a prima facie case where she and one male comparator performed the same essential duties under similar conditions while each was the school superintendent), aff’d, 462 F. App’x 38 (2d Cir. 2012); Heinemann v. Howe & Rusling, 529 F. Supp. 2d 396, 415 (W.D.N.Y. 2008) (prima facie case requires a showing that the employer paid at least one male employee higher wages than it paid plaintiff).
In seeking summary judgment, CIA relied on this Court’s unpublished decision in Talwar, 610 F. App’x at 30-31, to argue that a plaintiff must show “comparable male employees, as a group, are paid more than comparable female employees as a group” and pointed to male faculty earning less than Eisenhauer and two women earning more. R.25 at 14-16. Talwar recites the three prima facie requirements under the EPA, then concludes, without discussion or citation to any authority, that “Talwar’s claim fails at the first step—male attending pathologists were not as a group, paid more than female attending pathologists” because two earned less than the plaintiff and one was paid less than a different female pathologist. 610 F. App’x at 30-31.
The statute’s focus on “employees of the opposite sex” does not require a showing of class-wide differences in payment. See Md. Ins. Admin., 879 F.3d at 121-22 (EPA plaintiff not required to show women, as a class, are more highly paid than men, as a class). Assuming the Talwar panel was relying on the EPA’s use of “employees” in the plural to support its holding, we would argue its rule and rationale should be rejected. Such an interpretation of the EPA ignores the fact that the statutory language uses “employees” in the plural to describe both the victims and the comparators. See 29 U.S.C. § 206(d) (forbidding an employer to “discriminate … between employees on the basis of sex by paying wages to employees … at a rate less than the rate at which he pays wages to employees of the opposite sex …” (emphases added)). If it were read to require a comparison of a group of employees, § 206(d) would thus appear to be a collective-action provision, requiring multiple victims of wage discrimination as well as multiple comparators to establish a claim. But this implication is flatly at odds with other language in the statute. Section 216(b) provides that “[a]n action to recover the liability prescribed in [section 206 or section 207] may be maintained against any employer … by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b) (emphasis added).
Moreover, in many EPA cases, including this one, a “group comparison” analysis is simply unworkable when there is no critical mass of male comparators that meets the EPA’s demanding “substantially equal work” standard. In this Court, for example, while a plaintiff need not demonstrate her job is identical to a higher paid position, “jobs which are ‘merely comparable’ are insufficient to satisfy a plaintiff's prima facie burden.” Tomka v. Seiler Corp., 66 F.3d 1295, 1310 (2d Cir. 1995), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). Indeed, Eisenhauer had to abandon several possible comparators after learning in discovery that they had significantly more seniority than she did (R.29 at 9), and although CIA identified several male faculty members in Global Specialization who earned less than Eisenhauer, they all held lower academic ranks, which would likewise render them inapposite as comparators. R.29 at 9 n.3; see Jamilik, 362 F. App’x at 150 (observing that, although application of the equal pay standard is not dependent on job classifications or titles, “identity of rank can serve as evidence of equivalence”). Perillo appears to be the sole male comparator who meets the “demanding” “substantially equal work” standard because his “actual job content” is the same as Eisenhauer’s. EEOC v. Port Auth. of N.Y. & N.J., 768 F.3d at 255.
In any event, evidence of a single comparator earning more does not conclusively establish liability under the EPA—instead, it merely satisfies the plaintiff’s burden to set out her prima facie case. The burden then shifts to the defendant to prove that any gender-based pay disparity resulted from a seniority system, a merit system, a production-based compensation system, or “any other factor other than sex.” 29 U.S.C. § 206(d)(1); see Corning Glass Works, 417 U.S. at 196-97. As the Commission has emphasized in its Compliance Manual, evidence of other men earning the same or less than a female plaintiff would be relevant to any such showing and could establish the affirmative defense in appropriate cases. EEOC Compliance Manual Vol. II, § 10-IV.E.1 (“[I]f other women are paid the same as or more than males, this may indicate that a factor other than sex explains the complainant’s compensation.”); cf. White & Son, 881 F.2d at 1009 (“Plaintiff need only show discrimination in pay against an employee vis-a-vis one employee of the opposite sex. If, however, other appropriate ‘comparators,’ i.e., employees doing substantially equal work, were wrongly excluded from the comparison by plaintiff, defendant must call them to the attention of the court.”).
II. A defendant must prove, not merely articulate, its affirmative defense that something other than sex explains a wage disparity, and the burden of proof never reverts to the plaintiff to establish pretext.
The district court’s grant of summary judgment to CIA based on Eisenhauer’s failure to demonstrate pretext misunderstands the appropriate burdens of proof on summary judgment in an EPA claim. Under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its progeny, showing an employer’s stated reason is a pretext can allow a trier of fact to find intentional discrimination in a Title VII case. But there is no pretext phase akin to McDonnell Douglas in EPA cases. This Court should correct the confusion that has stemmed from a blurring of the two proof schemes.
Under the EPA, once the plaintiff has made her prima facie showing, the burden shifts to the employer to prove one of the four statutory affirmative defenses. Corning Glass Works, 417 U.S. at 196-97; Aldrich, 963 F.2d at 524. Where a defendant relies on the catch-all fourth exception for “a differential based on any other factor other than sex,” the employer must prove that a “bona fide business-related reason” was responsible for the pay disparity as the purported factor other than sex. Aldrich, 963 F.3d at 526. A gender-neutral job classification system or policy can be “a factor-other-than-sex defense to sex-based wage discrimination claims only when the employer proves that the job classification system resulting in differential pay is rooted in legitimate business-related differences in work responsibilities and qualifications.” Id. at 525; see also Compliance Manual § 10-IV.F.2 (Employer asserting factor-other-than-sex defense “must show that the factor is related to job requirements or otherwise is beneficial to the employer’s business.”).
Regardless of which affirmative defense the employer pursues, its burden is one of persuasion, not production, and it is “a heavy one.” Ryduchowski, 203 F.3d at 143. Thus, on summary judgment, CIA was required to identify evidence that would not simply create a genuine issue of fact for trial, but instead was so one-sided in its favor that a rational jury would be compelled to conclude that in every instance, the salary disparity between Eisenhauer and Perillo was based on a factor other than sex. See, e.g., Beck-Wilson v. Principi, 441 F.3d 353, 365 (6th Cir. 2006) (“[U]nless the factor of sex provides no part of the basis for the wage differential, the requirements [for the defense] are not met.”) (internal citations omitted). At the same time, Eisenhauer would have had an opportunity to adduce any evidence she had suggesting that CIA could not meet its burden of persuasion. See, e.g., King v. Acosta Sales & Mktg., Inc., 678 F.3d 470, 474 (7th Cir. 2012) (remanding EPA claim for trial because plaintiff “has marshalled evidence that would permit a trier of fact to conclude that Acosta’s explanations are smokescreens”). If the employer succeeds in carrying its burden of persuasion as to one of the EPA’s four affirmative defenses, that is the end of the analysis and the plaintiff’s EPA claim fails. See, e.g., Md. Ins. Admin., 879 F.3d at 121 (observing that employer may prevail at summary judgment stage only if it “proves its affirmative defense so convincingly that a rational jury could not have reached a contrary conclusion”); Beck-Wilson, 441 F.3d at 365 (same).
Unlike Title VII, the EPA’s proof scheme does not include a pretext phase shifting the burden of proof to the plaintiff. The reason why is rooted in one of the most fundamental differences between the two statutes: while Title VII prohibits intentional discrimination, and therefore requires proof of intent to prevail, the EPA is a strict-liability statute that forbids paying unequal pay for equal work regardless of intent. Compare, e.g., Hicks, 509 U.S. at 506 (central purpose of the McDonnell Douglas framework is “sharpen[ing] the inquiry into the elusive factual question of intentional discrimination”), and Texas Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 255 n.8 (1981) (“In a Title VII case, the allocation of burdens and the creation of a presumption by the establishment of a prima facie case is intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination.”), with Corning Glass, 417 U.S. at 204 (“the question … [is] whether [the defendant] carried its burden of proving that the higher rate paid … was in fact intended to compensate for [a non-sex based pay differential], or rather constituted an added payment based upon sex”), and Belfi, 191 F.3d at 136 (“Under the EPA, proof of the employer’s discriminatory intent is not necessary for the plaintiff to prevail on her claim.”).
The concept of “pretext” in this Court’s EPA jurisprudence appears to have originated in Aldrich, a wage discrimination and retaliation action brought under both the EPA and Title VII. In holding that not just any factor other than sex, but only a bona fide business reason for the disparity, could serve as a defense under the EPA, the Aldrich Court explained, “[w]ithout a job-relatedness requirement, the factor-other-than-sex defense would provide a gaping loophole in the statute through which many pretexts for discrimination would be sanctioned.” 963 F.2d at 525. Accordingly, the court held, “an employer bears the burden of proving that a bona fide business-related reason exists for using the gender-neutral factor that results in a wage differential in order to establish the factor-other-than-sex defense.” Id. at 526. This articulates the correct burden of proof wholly on the employer to prove its affirmative defense.
The Aldrich Court then added that “the plaintiff may counter the defendant’s affirmative defense by offering evidence showing that the reasons sought to be proved are a pretext for sex discrimination.” Id. (emphasis added). The court cited two Ninth Circuit cases in support of its “pretext” observation: Kouba v. Allstate Insurance Co., 691 F.2d 873, 876 (9th Cir. 1982), and Maxwell v. City of Tucson, 803 F.2d 444, 446 (9th Cir. 1986). But Kouba did not actually apply a Title VII-style pretext analysis to the EPA—it merely noted that “an employer might assert some business reason as a pretext for a discriminatory objective,” while concluding that “[a] pragmatic standard, which protects against abuse yet accommodates employer discretion, is that the employer must use the factor reasonably in light of the employer’s stated purpose as well as its other practices.” Kouba, 691 F.2d at 876-77. Maxwell, on the other hand, did apply a pretext analysis, but it did so in purported reliance on Kouba while in fact citing to Kouba’s description of the legal standard for the job-relatedness requirement. 803 F.2d at 446. Ultimately, Aldrich borrows Kouba’s job-relatedness standard, including the term “pretext”—a concept that does not exist under the EPA. Aldrich, 963 F.3d at 526-27 (describing pretext inquiry as “whether the employer has used the factor reasonably in light of the employer’s stated purpose as well as its other practices”). Critically, though, Aldrich never shifts the burden of proof to the plaintiff and correctly states that a plaintiff may “counter” the employer’s attempt to establish its affirmative defense with evidence casting doubt on that justification.
Then, a later panel of this Court took Aldrich’s mention of “pretext” in the EPA context a step further to mean pretext in the Title VII sense. In Belfi, another wage claim brought under both the EPA and Title VII, the court of appeals again directed that “the plaintiff may counter the employer’s [EPA] affirmative defense by producing evidence that the reasons the defendant seeks to advance are actually a pretext for sex discrimination.” 191 F.3d at 136 (citing Aldrich, 963 F.2d at 526 and Maxwell, 803 F.2d at 447-48). But, whereas in Aldrich the Court stated that the plaintiff may “counter” the employer’s affirmative defense—i.e., by offering contrary evidence—in Belfi the Court shifted the burden of proof on pretext to the plaintiff:
The district court ruled, and we agree, that the LIRR proffered the above gender-neutral explanations in response to Belfi’s claim of unequal pay. As a result, the burden of persuasion shifted back to Belfi to show that the LIRR's explanations were a pretext for gender-based discrimination.
191 F.3d at 137. In cataloging Belfi’s evidence that the defendant’s policies had been used reasonably, which required reversal of the district court’s grant of summary judgment, the Belfi Court relied on Title VII cases holding that differing and inconsistent explanations may provide a jury with the basis to find pretext. Id. at 139 (citing EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir. 1994), and Stern v. Trustees of Columbia Univ., 131 F.3d 305, 314 (2d Cir. 1997)). Because Aldrich predated Belfi, and one panel cannot overrule the holding of a prior panel on its own, Aldrich must control to the extent the holdings are at odds. See, e.g., United States v. Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004) (panel of the court of appeals is bound by the decisions of prior panels until such time as they are overruled either by an en banc panel of the court of appeals or by the Supreme Court).
Some district courts within the Second Circuit that have simultaneously decided Equal Pay Act and Title VII claims have likewise used imprecise language and blurred EPA and Title VII standards. See Birchmore v. Granville Cent. Sch. Dist., No. 1:18CV1456, 2021 WL 22606, at *4 (N.D.N.Y. Jan. 4, 2021) (stating “EPA claims are evaluated under a burden shifting test similar to the Title VII McDonnell Douglas test” and holding that the plaintiff’s EPA claim fails “because she has failed to demonstrate that the District’s legitimate, non-discriminatory reasons for the pay disparity was mere pretext for gender discrimination”); Husser v. N.Y.C. Dep’t of Educ., 137 F. Supp. 3d 253, 270 (E.D.N.Y. 2015) (“The defendants having adduced evidence of a gender-neutral pay system, Husser has the burden of proving that that system is in fact a pretext for sex discrimination.”).
This language from Belfi and the cases relying on it, like the district court’s analysis here, reflect a misunderstanding of the elements of an EPA claim—as the Ninth Circuit itself has recently explained. See Rizo v. Yovino, 950 F.3d 1217, 1223 (9th Cir. 2020) (en banc) (“To clear up any confusion, we reiterate that EPA claims do not require proof of discriminatory intent. EPA claims have just two steps: (1) the plaintiff bears the burden to establish prima facie showing of a sex-based wage differential; (2) if the plaintiff is successful, the burden shifts to the employer to show an affirmative defense. No showing of pretext is required.”) (internal citations omitted), cert. denied, 141 S. Ct. 189 (2020). Because Eisenhauer established a prima facie case, CIA was required to prove that the disparity between Eisenhauer’s and Perillo’s pay was, in fact, based on one of the four permissible factors enumerated in the statute.
The district court instead mixed two distinct proof schemes. It applied something akin to the McDonnell Douglas proof scheme, which is designed for Title VII cases where the plaintiff has the burden of proving discriminatory intent. The court described the second stage of analysis as “Defendants Articulate a Non-Discriminatory Justification.” J.A.279. The district court borrowed language about the pretext showing from Hicks, 509 U.S. at 515, a Title VII case. J.A.272. The district court also cited Holtz v. Rockefeller & Co., 258 F.3d 62, 81 (2d Cir. 2001), a Title VII and ADEA case, for the proposition that “evidence that a stated reason for a pay differential is actually a pretext creates a triable issue of fact.” J.A.272.
The court applied this scheme here when it permitted CIA to merely proffer a non-sex-based reason for the pay disparity and then shifted the burden of persuasion to Eisenhauer to prove it was pretextual. J.A.285. (CIA “asserted a proper affirmative defense to Plaintiff’s Equal Pay Act claim as a matter of law”) (emphasis added); id. (“Because Defendant has articulated a legitimate, non-discriminatory reason for the pay disparity, the burden would now shift to Plaintiff to establish that that reason was a pretext for discrimination.”) (emphasis added). But this framework relieved CIA of its duty to establish any affirmative defense to avoid liability for the pay disparity between Eisenhauer and Perillo. The court suggested that if there were circumstantial evidence of some discretion regarding the salaries for the faculty positions, that “may leave open the possibility that a pay disparity is caused by discrimination,” “it is Plaintiff’s burden to offer such evidence to raise a triable issue of fact,” which Eisenhauer failed to do. J.A.285. The court ultimately granted summary judgment because CIA “has asserted a legitimate, non-discriminatory factor to explain the pay disparity, which Plaintiff has not shown was pretextual.” J.A.286 (emphasis added).
This approach is not applicable to the EPA. It was up to CIA to prove that it used its policy reasonably in light of its stated purpose and other practices and, on summary judgment, that its evidence was so compelling that no rational jury could find for Eisenhauer. Eisenhauer had no additional burden once she established her prima facie case.
Accordingly, this Court should clarify two important points of confusion that emanate from Belfi and that persist in some EPA cases. First, there are only two phases of an EPA claim: the plaintiff’s prima facie case and the defendant’s affirmative defense. In litigating the affirmative defense, both parties may adduce whatever evidence they have bearing on the defendant’s ability to establish the defense, but there is no further burden-shifting or “pretext” stage as there is in Title VII claims.
Second, each party bears the burden of persuasion as to its respective stage of the analysis. Unlike in Title VII cases, an employer cannot survive summary judgment on an EPA affirmative defense merely by “proffering” evidence and then shifting the burden of persuasion to the plaintiff. See Rizo, 950 F.3d at 1223 (“No showing of pretext is required” under the EPA.); King, 678 F.3d at 474 (“An employee’s only burden under the Equal Pay Act is to show a difference in pay for ‘equal work’ …. An employer asserting that the difference is the result of a ‘factor other than sex’ must present this contention as an affirmative defense—and the proponent of an affirmative defense has the burdens of both production and persuasion.”); see also Leong v. SAP Am., Inc., 67 F. Supp. 3d 972, 984 (N.D. Ill. 2014) (“Under the Equal Pay Act, it is not up to the plaintiff to establish that the employer’s neutral reasoning is pretextual; the employer must prove its reasons outright once the plaintiff has shown a prima facie case of pay disparity.”).
For the foregoing reasons, the EEOC urges this Court to remand this case to the district court to consider, under the proper standards, whether CIA established an affirmative defense.
Deputy General Counsel
JENNIFER S. GOLDSTEIN
Associate General Counsel
ELIZABETH E. THERAN
Assistant General Counsel
s/Julie L. Gantz
JULIE L. GANTZ
Office of General Counsel
131 M St. N.E., 5th Floor
Washington, D.C. 20507
This brief complies with the type-volume limitation of 2d Cir. R. 29.1(c) and 32.1(a)(4) and Fed. R. App. P. 29(a)(5) because it contains 6,965 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(f).
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s/Julie L. Gantz
Julie L. Gantz
Office of General Counsel
131 M St. N.E., 5th Floor
Washington, D.C. 20507
Dated: March 10, 2022
The EEOC takes no position on any other issue in this case.
 Citations are to the Joint Appendix (“J.A.__”) and the original record (“R.__”).
 The terms of the operative CBA changed over the years. J.A.266.
 CIA also adduced evidence that two women faculty members were given slightly higher starting salaries than Eisenhauer. J.A.053, 217. But this evidence would not negate her prima face case. See Lavin-McEleney, 239 F.3d at 480 (holding that between two potential comparators earning more than the plaintiff for performing equal work, the lower-paid male, rather than the higher-paid female, was the appropriate comparator for purposes of an EPA analysis).
 The court also cited another district court case that similarly relied on Title VII concepts for the EPA analysis. Chepak v. N.Y.C. Health & Hosps. Corp., No. 11-CV-9698, 2015 WL 509279 (S.D.N.Y. Feb. 5, 2015). J.A.271-72. This Court affirmed in an unpublished decision without discussing the legal issues we address here. Chepak v. N.Y.C. Health & Hosps. Corp., 643 F. App’x 62 (2d Cir. 2016).