21-2919-cv 

Eisenhauer v. Culinary Institute of America

1 In the

2 United States Court of Appeals

3 for the Second Circuit

4 

5 

6 

7 AUGUST TERM 2022

8 

9 No. 21-2919-cv

10

11 ANITA EISENHAUER, 

12 Plaintiff-Appellant, 

13

14 v.

15

16 CULINARY INSTITUTE OF AMERICA, 

17 Defendant-Appellee. 

18 

19

20 On Appeal from the United States District Court

21 for the Southern District of New York

22 

23

24 ARGUED: JANUARY 26, 2023

25 DECIDED: OCTOBER 17, 2023

26 

27

28 Before: LIVINGSTON, Chief Judge, LEVAL, and CABRANES, Circuit Judges. 

29 

30
2

1 This case presents the questions of what a defendant must prove 

2 to establish affirmative defenses to pay-discrimination claims under

3 federal and state laws: the Equal Pay Act, 29 U.S.C. § 206(d), (“EPA”)

4 and New York Labor Law § 194(1). Plaintiff Anita Eisenhauer alleges

5 that defendant Culinary Institute of America violated these equal-pay 

6 laws by compensating her less than a male colleague. The Culinary 

7 Institute responds that a “factor other than sex”—its sex-neutral 

8 compensation plan, which incorporates a collective bargaining 

9 agreement—justifies the pay disparity. Eisenhauer argues that the 

10 compensation plan cannot qualify as a “factor other than sex” because 

11 it creates a pay disparity unconnected to differences between her job

12 and her colleague’s job. 

13 Eisenhauer’s position that a “factor other than sex” must be job 

14 related is incorrect as to the EPA. The plain meaning of the EPA 

15 indicates the opposite. We hold that to establish the EPA’s “factor 

16 other than sex” defense, a defendant must prove only that the pay 

17 disparity in question results from a differential based on any factor 

18 except for sex. But Eisenhauer’s position is correct as to New York 

19 Labor Law § 194(1). A recent amendment to § 194(1) explicitly added 

20 a job-relatedness requirement. We thus hold that to establish § 194(1)’s

21 “factor other than sex” or “status” defense, a defendant must prove

22 that the pay disparity in question results from a differential based on 

23 a job-related factor. The District Court did not consider the divergent 

24 requirements imposed by the EPA and § 194(1) when assessing 

25 Eisenhauer’s claims and the Culinary Institute’s defense.
3 

1 Accordingly, we AFFIRM IN PART insofar as the United States 

2 District Court for the Southern District of New York (Paul E. Davison, 

3 Magistrate Judge) granted summary judgment for the defendant on the 

4 EPA claim. We VACATE IN PART and REMAND insofar as the 

5 District Court granted summary judgment for the defendant on the

6 claim under New York Labor Law, § 194(1). 

7 CHIEF JUDGE LIVINGSTON concurs in the judgment in part and files a 

8 separate opinion. 

9 

10 STEVEN M. WARSHAWSKY, The Warshawsky 

11 Law Firm, Mount Kisco, N.Y., for Plaintiff12 Appellant.

13 REBECCA M. MCCLOSKEY (Greg Riolo, on the 

14 brief), Jackson Lewis P.C., White Plains, 

15 N.Y., for Defendant-Appellee. 

16 JAMES DRISCOLL-MACEACHRON (Christopher 

17 Lage, Deputy General Counsel; Jennifer S. 

18 Goldstein, Associate General Counsel; 

19 Elizabeth E. Theran, Assistant General 

20 Counsel; Julie L. Gantz, Attorney, on the 

21 brief), Equal Employment Opportunity 

22 Commission, Washington, D.C., for Amicus 

23 Curiae U.S. Equal Employment Opportunity 

24 Commission.
4 

1 

2 JOSÉ A. CABRANES, Circuit Judge: 

3 This case presents the questions of what a defendant must prove 

4 to establish affirmative defenses to pay-discrimination claims under 

federal and state laws: the Equal Pay Act, 29 U.S.C. § 206(d), (“EPA”)1 5 

and New York Labor Law § 194(1). 6 2 Plaintiff Anita Eisenhauer alleges 

7 that defendant Culinary Institute of America violated these equal-pay 

8 laws by compensating her less than a male colleague. The Culinary 

9 Institute responds that a “factor other than sex”—its sex-neutral 

10 compensation plan, which incorporates a collective bargaining 

11 agreement (“CBA”)—justifies the pay disparity. Eisenhauer argues 

12 that the compensation plan cannot qualify as a “factor other than sex” 

13 because it creates a pay disparity unconnected to differences between 

14 her job and her colleague’s job. 

15 Eisenhauer’s position that a “factor other than sex” must be job 

16 related is incorrect as to the EPA. The plain meaning of the EPA 

17 indicates the opposite. We hold that to establish the EPA’s “factor 

18 other than sex” defense, a defendant must prove only that the pay 

19 disparity in question results from a differential based on any factor 

1 See text accompanying notes 16–17, post, for the text of 29 U.S.C. § 206(d)(1).

2 See text accompanying notes 89–94, post, for the text of New York Labor 

Law § 194(1). 
5

except for sex. 1 3 But Eisenhauer’s position is correct as to New York 

2 Labor Law § 194(1). A recent amendment to § 194(1) explicitly added 

3 a job-relatedness requirement. We thus hold that to establish § 194(1)’s 

4 “factor other than sex” or “status” defense, a defendant must prove

5 that the pay disparity in question results from a differential based on 

6 a job-related factor. The District Court did not consider the divergent 

7 requirements imposed by the EPA and § 194(1) when assessing 

8 Eisenhauer’s claims and the Culinary Institute’s defense.

9 Accordingly, we AFFIRM IN PART insofar as the United States 

10 District Court for the Southern District of New York (Paul E. Davison, 

11 Magistrate Judge) granted summary judgment for the defendant on the 

12 EPA claim. We VACATE IN PART and REMAND insofar as the 

13 District Court granted summary judgment for the defendant on the 

§ 194(1) claim.4 14

15 I. BACKGROUND

16 A. Factual Background

17 Anita Eisenhauer, a female professor at the Culinary Institute, 

18 alleges that she is a victim of pay discrimination in violation of the EPA

19 and New York Labor Law § 194(1). Since 2017, the Culinary Institute—

20 a private, non-profit college and culinary school—has paid Eisenhauer 

3 If the pay disparity results from the employer’s job-classification system, 

the job-classification system must also serve a “legitimate business-related” purpose.

Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 525 (2d Cir. 1992).

4 Magistrate Judge Davison conducted all proceedings and ordered the 

entry of a final judgment with the parties’ consent. See 28 U.S.C. § 636(c).
6

1 a lower salary than it has paid Robert Perillo, a male professor carrying

a similar course load.5 2 In 2019, for example, Eisenhauer’s salary was 

3 $111,263, while Perillo’s was $118,080.

4 The Culinary Institute pays Eisenhauer and Perillo according to 

5 the sex-neutral terms of a CBA and employee handbook (together, 

“compensation plan”). 6 6 The compensation plan requires fixed pay 

7 increases triggered by time, promotion, and degree completion. It does 

not provide for “equity” adjustments. 8 7 Each year, in accordance with 

9 the compensation plan, all faculty members receive the same 

10 percentage increase in their salaries. As a result, the pay disparity 

11 between Eisenhauer and Perillo continues to grow.

12 The pay disparity between Eisenhauer and Perillo exists because 

13 their salaries differed when they were hired and have formulaically 

14 increased over time. When the Culinary Institute hired Eisenhauer and 

5 The Culinary Institute also paid Eisenhauer a lower salary in 2011 and 

2012. We use the terms “salary” and “pay” interchangeably, excluding

consideration of any overtime, stipend, or tuition-reimbursement payments that 

Eisenhauer and Perillo may have received.

6 The CBA is a contract between the Culinary Institute and the Culinary 

Teachers Association, the union to which Eisenhauer and Perillo belong. The 

Culinary Institute has recognized the Culinary Teachers Association as the 

exclusive representative and bargaining agent of its Hyde Park, New York faculty. 

The CBA governs faculty members’ wages, hours, and other terms and conditions 

of employment.

7 Under the CBA, the Culinary Institute may not diverge from the terms of 

the CBA absent a written agreement between it and the Culinary Teachers 

Association.
7

1 Perillo as learning instructors—at starting salaries of $50,000 in 2002 

2 and $70,000 in 2008, respectively—they had different experience and 

3 education levels. Eisenhauer had fifteen years of culinary experience 

4 and had served as the executive chef in two New York City 

5 restaurants. Perillo had twenty-three years of culinary experience, 

6 previous teaching experience, and an associate’s degree. He had also 

7 received higher scores on the cooking- and lecture-demonstration 

8 components of his job application. Eisenhauer does not contend that 

9 her starting salary was the product of sex-based pay discrimination.

10 Over the years, both Eisenhauer and Perillo received 

11 promotions and attained further education. Each earned the titles of 

12 assistant professor; associate professor; and, ultimately, full 

13 professor—she in 2013 and he in 2017. Along the way, Eisenhauer and 

14 Perillo also received their bachelor’s and master’s degrees—she in 

15 2009 and 2016, and he in 2012 and 2015. Each of these achievements 

prompted a fixed-dollar increase in compensation. 16 8 The amounts of 

17 the increases differed somewhat because the precise raises required by 

18 the compensation plan changed over time. For example, Eisenhauer’s 

19 salary increased by $4,000 upon her promotion to assistant professor 

20 in 2008, while Perillo’s rose by $4,410 upon his promotion in 2016.

8 Under the CBA, the Culinary Institute partially reimburses full-time 

faculty members for tuition. Both Eisenhauer and Perillo took advantage of the 

tuition reimbursement program. Under the terms of the employee handbook, 

faculty members benefiting from the tuition reimbursement program are eligible 

for a pay increase upon earning their degrees. 
8

1 B. Procedural Background

2 Eisenhauer filed suit against the Culinary Institute on 

3 November 26, 2019, alleging sex-based pay discrimination in violation 

4 of both federal and state law: the EPA, 29 U.S.C. § 206(d), and New 

5 York’s equal-pay law, New York Labor Law § 194(1). The District 

6 Court evaluated her federal- and state-law claims “under the same 

standard”9 7 and granted summary judgment for the Culinary Institute 

on November 3, 2021.10 8 It concluded, as a matter of law, that

9 (1) although Eisenhauer had established a prima facie case of sex-based 

10 pay discrimination, (2) the Culinary Institute had justified the pay 

11 disparity with its compensation plan, a “factor other than sex” that 

12 (3) Eisenhauer failed to show was a pretext for discrimination. This

appeal followed.11 13

14 II. STANDARD OF REVIEW

15 Under Federal Rule of Civil Procedure 56(a), “[t]he court shall 

16 grant summary judgment if the movant shows that there is no genuine 

17 dispute as to any material fact and the movant is entitled to judgment 

as a matter of law.” 18 12 A dispute as to any “material fact is genuine ‘if 

9 J.A. 270 (quoting Moccio v. Cornell Univ., 889 F. Supp. 2d 539, 570 (S.D.N.Y. 

2012), aff’d, 526 F. App’x 124 (2d Cir. 2013)).

10 In doing so, the District Court also denied Eisenhauer’s motion for 

summary judgment.

11 We have jurisdiction to adjudicate this appeal of a final decision by the 

District Court under 28 U.S.C. § 1291.

12 Fed. R. Civ. P. 56(a).
9

1 the evidence is such that a reasonable jury could return a verdict for 

the nonmoving party.’” 2 13 We review de novo a district court’s order 

granting summary judgment.14 3 In conducting our review, we must 

4 resolve all ambiguities and draw all inferences in favor the nonmoving 

party.15 5

6 III. DISCUSSION

7 We consider in turn the requirements for establishing 

8 affirmative defenses to claims under the EPA, 29 U.S.C. § 206(d), and 

9 New York Labor Law § 194(1). As to the EPA, we hold that to establish 

10 a “factor other than sex” defense, a defendant must prove that the pay 

11 disparity in question results from a differential based on any factor 

12 except for sex. As to New York Labor Law § 194(1), we hold that to 

13 establish a “factor other than sex” or “status” defense, a defendant 

14 must prove that the pay disparity in question results from a 

15 differential based on a job-related factor. 

13 Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir. 1992) (quoting 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

14 See, e.g., Republic Nat’l Bank of N.Y. v. Delta Air Lines, 263 F.3d 42, 46 (2d 

Cir. 2001).

15 See, e.g., Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1223 

(2d Cir. 1994).
10

1 A. The Equal Pay Act’s “Factor Other Than Sex” Defense

2 1. 29 U.S.C. § 206(d)(1)

3 The EPA prohibits pay discrimination on the basis of sex. It 

4 provides that

5 [n]o employer . . . shall discriminate . . . between 

6 employees on the basis of sex by paying wages to 

7 employees . . . at a rate less than the rate at which [it] pays 

8 wages to employees of the opposite sex . . . for equal work 

9 on jobs the performance of which requires equal skill, 

10 effort, and responsibility, and which are performed under 

similar working conditions.16 11

12 It also sets forth four exceptions to this prohibition, for pay disparities

13 resulting from “(i) a seniority system; (ii) a merit system; (iii) a system 

14 which measures earnings by quantity or quality of production; or 

(iv) a differential based on any other factor other than sex.” 15 17 Each 

exception operates as an affirmative defense. 16 18 The meaning of the 

17 fourth exception—“a differential based on any other factor other than 

18 sex,” which is often truncated to “factor other than sex”—is the focus 

19 of our inquiry.

16 29 U.S.C. § 206(d)(1).

17 Id. § 206(d)(1)(i)–(iv) (emphasis added).

18 See Ryduchowski v. Port Auth. of N.Y. & N.J., 203 F.3d 135, 142 (2d Cir. 2000). 

“The burden of establishing one of the four affirmative defenses is ‘a heavy one.’” 

Id. at 143 (quoting Timmer v. Mich. Dep’t of Com., 104 F.3d 833, 843 (6th Cir. 1997)).
11

1 2. Job-Classification Systems Under Aldrich v. Randolph Central 

2 School District

3 Arguing that a “factor other than sex” must be job related, 

4 Eisenhauer relies on Aldrich v. Randolph Central School District, decided 

more than thirty years ago. 5 19 There, we faced the novel question of the 

6 circumstances under which a job-classification system qualifies as a 

“factor other than sex.” 7 20 We held that a facially sex-neutral job8 classification system alone is insufficient to constitute a “factor other 

than sex,” citing concern over potential pretexts for discrimination.21 9

10 The defendant in Aldrich had sought to justify the pay disparity 

11 between the plaintiff, a female “cleaner,” and two male “custodians”

by invoking its sex-neutral job-classification system. 12 22 The system 

13 classified as “custodians” those required to take a civil-service 

14 examination; “cleaners” faced no such requirement, and the defendant 

paid them less. 15 23 We rejected the invocation of a sex-neutral job16 classification system “without more,” observing that

19 963 F.2d 520 (2d Cir. 1992).

20 See id. at 524 (“We have not yet faced the question under what 

circumstances a civil service classification system qualifies as a factor-other-thansex.”).

21 See id. at 525–26.

22 Id. at 522.

23 Id. After taking the civil-service examination, candidates for a custodian 

position appeared on a ranked eligibility list. See id. The employer could hire as a 

custodian only those candidates ranked among the top three on that list. See id. 
12

1 Congress intended for a job classification system to serve 

2 as a factor-other-than-sex defense to sex-based wage 

3 discrimination claims only when the employer proves 

4 that the job classification system resulting in differential 

5 pay is rooted in legitimate business-related differences in 

6 work responsibilities and qualifications for the particular 

positions at issue.24 7

8 Eisenhauer draws on this observation to argue that the Culinary 

9 Institute’s compensation plan cannot justify the pay disparity at issue 

10 here. She does not contend that the compensation plan is a jobclassification system.25 11 She nevertheless maintains that the observation 

12 applies. In her view, the compensation plan cannot qualify as a “factor 

13 other than sex” because it results in a pay disparity unconnected to 

“differences in work responsibilities and qualifications.”26 14 In 

15 opposition, the Culinary Institute argues that Aldrich requires only job16 classification systems, not all “factor[s] other than sex,” to be connected 

to such differences. 17 27 We agree with the Culinary Institute.

Plaintiff Cora Aldrich had never earned a top-three score and had never been 

offered a custodian position. See id.

24 Id. at 525 (emphasis added).

25 We therefore do not consider any such argument. See Britt v. Garcia, 457 

F.3d 264, 268 n.2 (2d Cir. 2006) (declining to decide an issue because a party did not 

raise it below or before us).

26 Aldrich, 963 F.2d at 525.

27 The Culinary Institute does not contend that its compensation plan falls 

within one of the EPA’s exceptions for seniority, merit, or productivity systems. See 
13

Eisenhauer, like others, misconstrues Aldrich. 1 28 Considering the 

2 EPA’s legislative history, we reasoned that a job-relatedness 

3 requirement is necessary to ensure that a job-classification system is 

not a pretext for sex discrimination.29 4 Jobs are, after all, the principal 

5 feature of job-classification systems. We did not hold that all “factor[s]

other than sex” must be job related. 6 30 Nor do we do so today. Aldrich’s

7 underlying suggestion is that we should interpret “factor other than 

8 sex” so as to guard against pay disparities intentionally or 

unintentionally based on sex.31 9

10 3. Statutory Interpretation

11 Basic principles of statutory interpretation demonstrate that the 

12 term “any other factor other than sex” refers to any factor except for 

13 those based on sex. The term has sowed needless uncertainty and 

29 U.S.C. § 206(d)(1)(i)–(iii). We therefore do not consider any such argument. See 

Britt, 457 F.3d at 268 n.2.

28 See, e.g., Rizo v. Yovino, 950 F.3d 1217, 1226 (9th Cir. 2020) (en banc) 

(incorrectly interpreting Aldrich as holding that “only job-related factors provide 

affirmative defenses to EPA claims”).

29 Aldrich, 963 F.2d at 524–26.

30 As noted, in Aldrich, we faced the novel question of the circumstances 

under which a job-classification system qualifies as a “factor other than sex.” See id. 

at 524; note 20 and accompanying text, ante. Thus, we read Aldrich to bear only on 

job-classification systems. See United Haulers Ass'n, Inc. v. Oneida-Herkimer Solid 

Waste Mgmt. Auth., 261 F.3d 245, 261 (2d Cir. 2001) (observing that we must 

interpret a case “in context, not in a vacuum”).

31 Id. at 525; note 30, ante.
14

confusion among our sister circuits.32 1 Its meaning, we think, is about 

2 as simple as it sounds.

3 “Our starting point in statutory interpretation is the statute’s 

plain meaning, if it has one.” 4 33 To identify a statute’s plain meaning, 

we afford words “their ordinary, common-sense meaning”34 5 and 

“draw[ ] on ‘the specific context in which that language is used.’” 6 35 The 

7 words “differential based on any other factor other than sex” appear in 

8 the context of three preceding exceptions to the EPA’s prohibition: pay 

9 disparities resulting from “(i) a seniority system; (ii) a merit system; 

32 The circuits are split in numerous directions on the meaning of “factor 

other than sex.” Compare Fallon v. Illinois, 882 F.2d 1206, 1211 (7th Cir. 1989) (“The 

fourth affirmative defense . . . is a broad ‘catch-all’ exception and embraces an 

almost limitless number of factors, so long as they do not involve sex.”), with Rizo, 

950 F.3d at 1224 (“[W]e conclude that the fourth affirmative defense comprises only 

job-related factors, not sex.”), with Equal Emp. Opportunity Comm’n v. J.C. Penney Co., 

843 F.2d 249, 253 (6th Cir. 1988) (“[T]he ‘factor other than sex’ defense does not 

include literally any other factor, but a factor that, at a minimum, was adopted for 

a legitimate business reason.”), with Riser v. QEP Energy, 776 F.3d 1191, 1198 (10th 

Cir. 2015) (noting that pay-classification systems are only an affirmative defense 

when pay differences are “rooted in legitimate business-related differences in work 

responsibilities and qualifications for the particular positions at issue.” (quoting 

Aldrich, 963 F.2d at 525)), with Glenn v. Gen. Motors Corp., 841 F.2d 1567, 1571 (11th 

Cir. 1988) (“[T]he ‘factor other than sex’ exception applies when the disparity 

results from unique characteristics of the same job; from an individual’s experience, 

training, or ability; or from special exigent circumstances connected with the 

business.”).

33 United States v. Dauray, 215 F.3d 257, 260 (2d Cir. 2000).

34 Id.

35 Williams v. MTA Bus Co., 44 F.4th 115, 127 (2d Cir. 2022) (quoting United 

States v. Rowland, 826 F.3d 100, 108 (2d Cir. 2016)).
15

1 [or] (iii) a system which measures earnings by quantity or quality of 

production.”36 2

3 Upon reflection, we conclude that the meaning of “any other 

4 factor other than sex” is unambiguous:

5 We begin with the first half of the term “any other factor other 

than sex.” “Any” means “every”;37 6 its meaning is “expansive” rather 

than restrictive.38 “Other” means “additional.” 7 39 And read in context, 

“any other factor” refers to “every”40 “additional”41 8 factor, beyond a 

seniority, merit, and productivity system,42 9 “other than sex.”

36 29 U.S.C. § 206(d)(1).

37 Webster’s Third New International Dictionary 97 (1963).

38 United States v. Gonzales, 520 U.S. 1, 5 (1997) (quoting Webster’s Third New 

International Dictionary 97 (1976)); see also Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 

219 (2008) (interpreting the word “any” expansively); Harrison v. PPG Indus., Inc., 

446 U.S. 578, 588–89 (1980) (same).

“Of course, other circumstances may counteract the effect of expansive 

modifiers[,]” including the modifier “any.” Ali, 522 U.S. at 220 n.4. The Supreme 

Court has construed such modifiers narrowly when they “included a term of art 

that compelled that result[,] . . . when another term in the provision made sense 

only under a narrow reading[,] . . . and when a broad reading would have 

implicated sovereignty concerns.” Id. (citations omitted). None of the circumstances 

that required these narrow constructions is present here.

39 Webster’s Third New International Dictionary 1598 (1963).

40 Id. at 97.

41 Id. at 1598.

42 See 29 U.S.C. § 206(d)(1)(i)–(iii).
16

1 The meaning of the second half of the term “any other factor 

other than sex” is also plain. “Other than” means “except for.”43 2

Together, then, “any other factor other than sex” means “every”44 3

“additional”45 factor “except for”46 4 those based (intentionally or 

unintentionally47 5 ) on sex. Accordingly, to establish the EPA’s “factor 

6 other than sex” defense, a defendant must prove that the pay disparity 

7 in question results from a differential based on any factor except for 

sex.48 8

43 Other Than, Merriam-Webster.com Dictionary, https://www.merriamwebster.com/dictionary/other%20than (last visited June 28, 2023); see also Theodore 

M. Bernstein, The Careful Writer: A Modern Guide to English Usage 320–21 (1965) 

(equating “other than” with the preposition “except”).

44 Webster’s Third New International Dictionary, note 37, ante.

45 Webster’s Third New International Dictionary, note 39, ante.

46 Other Than, note 43, ante; see also Bernstein, note 43, ante.

47 See Ryduchowski, 203 F.3d at 142 (“[T]he EPA does not require a plaintiff 

to establish an employer’s discriminatory intent.”).

48 A variety of factors are based on sex and thus cannot constitute an 

affirmative defense. Among those factors are (1) pretexts for sex-based pay 

discrimination or factors that otherwise intentionally or unintentionally mask such 

discrimination, cf. Ryduchowski, 203 F.3d at 142 (observing that a plaintiff may 

counter a defendant’s affirmative defense to an EPA claim with evidence of pretext 

and that the plaintiff need not establish an intent to discriminate); (2) factors that 

are not sex neutral; (3) differentials that “perpetuate the effects” of historic sexbased pay discrimination by an employer, Corning Glass Works v. Brennan, 417 U.S. 

188, 209 (1974); (4) “claimed differences between the average cost of employing 

workers” of different sexes as groups, 29 C.F.R. § 1620.22; and (5) collective 

bargaining agreements to “unequal rates of pay,” 29 C.F.R. § 1620.23, meaning 

agreements to rates established on the basis of sex, see The Equal Pay Act; 
17

1 The requirement that a “factor other than sex” be job related 

2 appears nowhere in the EPA’s text and, in our view, conflicts with the 

3 statute’s plain meaning. If Congress had intended all “factor[s] other 

4 than sex” to be job related, it would have said so. As discussed below, 

New York State’s legislature did say so. 5 49 And Congress explicitly 

6 referenced job relatedness in the provision of Title VII of the Civil 

Rights Act of 1964 7 50 prohibiting employment practices that disparately

8 impact protected classes. Under that provision, which New York’s 

equal-pay law emulates,51 9 a plaintiff establishes a disparate-impact 

10 claim “only if . . . the respondent fails to demonstrate that the 

11 challenged practice is job related for the position in question and 

consistent with business necessity.” 12 52 Yet Congress “could not have 

Interpretations, 51 Fed. Reg. 29818 (Aug. 20, 1986) (explaining that 29 C.F.R. 

§ 1620.23 “make[s] clear that an employer or labor organization cannot escape the 

requirements of the EPA merely by including allegedly negotiated unequal rates of 

pay in a collective bargaining agreement”). This list is not necessarily exhaustive. 

The key, as Aldrich suggests, is that we must interpret “factor other than sex” to 

avoid “loopholes” that would sanction sex-based pay discrimination. Aldrich, 963 

F.2d at 525. A job-relatedness requirement for all “factor[s] other than sex” is not 

necessary to avoid such “loopholes.”

49 See Section III.B, post.

50 42 U.S.C. § 2000e–2(k)(1)(A)(i).

51 See New York Sponsors Memorandum, 2015 S.B. 1, 238th Leg., Reg. Sess. 

(Mar. 26, 2015) (“[A] factor [other than sex] could not be based on a sex-based 

differential, and must be job-related and consistent with business necessity. This 

standard would mirror the current defense afforded to employers in disparate 

impact cases under Title VII of the Civil Rights Act.”).

52 42 U.S.C. § 2000e–2(k)(1)(A)(i) (emphasis added).
18

chosen a more all-encompassing phrase”53 1 than “any other factor other 

2 than sex” when it passed the EPA. As the Supreme Court has 

3 described it, the exception for “any other factor other than sex” is a 

“catch-all exception”54 4 : it catches all remaining factors that are not 

5 based on sex.

Although the plain meaning of the “catch-all exception”55 6

7 “trumps any resort to legislative history,” the legislative history 

“strongly supports our interpretation.” 8 56 According to the Senate 

Report on the EPA bill,57 9 the statute was “designed to eliminate any 

53 Ali, 552 U.S. at 221.

54 Corning Glass Works, 417 U.S. at 204 (emphasis added).

55 Id.

56 Lawrence + Mem'l Hosp. v. Burwell, 812 F.3d 257, 266 (2d Cir. 2016); see also, 

e.g., Gonzales, 520 U.S. at 6 (“Given the straightforward statutory command, there 

is no reason to resort to legislative history.”); United States v. Oregon, 366 U.S. 643, 

648 (1961) (observing that if a provision is “clear and unequivocal on [its] face,” 

there is “no need to resort to . . . legislative history”).

That the legislative history supports our interpretation is unsurprising. “[I]f 

the language of a rule plainly appears to address a specific problem, one naturally

would expect legislative history (if it exists) to confirm this plain meaning.”

Bourjaily v. United States, 483 U.S. 171, 187 (1987) (Blackmun, J., dissenting).

57 “[T]he authoritative source [within legislative history] for finding the 

Legislature’s intent lies in the Committee Reports on the bill, which ‘represen[t] the 

considered and collective understanding of those Congressmen involved in 

drafting and studying proposed legislation.’” Garcia v. United States, 469 U.S. 70, 76 

(1984) (third alteration in original) (quoting Zuber v. Allen, 396 U.S. 168, 186 (1969)); 

see also Charles Tiefer, Congressional Practice and Procedure 181 (1989) (“Externally, 

the committee report serves . . . as the central guide for courts and agencies looking 

into the ‘legislative history’ of a bill for clues on interpreting it.”).
19

1 wage rate differentials which are based on sex. Neither the committee 

2 nor anyone proposing equal-pay legislation intend[ed] that other 

factors [could not] be used to justify a wage differential.” 3 58 And, as 

4 noted in the House Report, “the broad general exclusion [was] . . .

5 included” because “it [was] impossible to list each and every 

exception.”59 6

7 Statements made during congressional debate further reinforce 

8 our interpretation. A colloquy between two members of the House 

committee that reported the EPA bill 9 60—Representative Charles 

10 Goodell of New York, a primary sponsor of the bill, and

11 Representative Robert Griffin of Michigan—is representative:

12 Mr. Goodell. . . . [W]e want the private enterprise system, 

13 employer and employees and a union, if there is a union, and 

14 the employers and employees if there is not a union, to have a 

15 maximum degree of discretion in working out . . . how much 

16 [employees] should be paid for [their work].

Mr. Griffin. So long as pay differentials are not based on sex.61 17

58 S. Rep. No. 88-176, at 4 (1963).

59 H.R. Rep. No. 88-309, at 3 (1963), as reprinted in 1963 U.S.C.C.A.N. 687, 689.

60 See generally United States v. United Mine Workers of Am., 330 U.S. 258, 276–

77 (1947) (suggesting that the statements of members of a committee that reports a 

bill carry more weight than those of members who were not part of the committee). 

61 See also, e.g., 109 Cong. Rec. 9203 (1963) (statement of Rep. Griffin) 

(“[R]oman numeral iv . . . makes clear and explicitly states that a differential based 

on any factor or factors other than sex would not violate this legislation.”); id. 

(statement of Rep. Griffin) (“Roman numeral iv is a broad principle, and those 
20

1 Mr. Goodell. Yes, as long as it is not based on sex. That is the sole

factor that we are inserting here as a restriction.62 2

3 The EPA’s legislative history is more than merely compatible 

4 with our interpretation. It confirms that to establish the “factor other 

5 than sex” defense, a defendant must prove only that a pay disparity in 

6 question results from a differential based on any factor except for sex.

7 Nothing in the legislative history suggests that a “factor other than 

8 sex” must be job related. Nor is there anything to suggest that the term 

must be limited in in any other way.63 9

preceding it are really examples: such factors as a seniority system, a merit system, 

or a system which measures earnings on the basis of quality or quantity of 

production.”).

62 109 Cong. Rec. 9198 (1963) (emphasis added).

63 The Supreme Court’s observations about the EPA in County of Washington 

v. Gunther support our view that the term “any other factor other than sex” really 

means any such factor. 452 U.S. 161 (1981). Repeated references to the exception do 

not suggest any limiting principle. See id. at 168 (“[T]he Act’s four affirmative 

defenses exempt any wage differentials attributable to seniority, merit, quantity or 

quality of production, or ‘any other factor other than sex.’”); id. at 170 (“The fourth 

affirmative defense of the Equal Pay Act . . . was designed differently, to confine 

the application of the Act to wage differentials attributable to sex discrimination.”);

id. at 170–71 (“Under the Equal Pay Act, the courts and administrative agencies are 

not permitted to ‘substitute their judgment for the judgment of the employer . . . 

who [has] established and applied a bona fide job rating system,’ so long as it does 

not discriminate on the basis of sex.” (alteration and omission in original) (emphasis 

added) (quoting 109 Cong. Rec. 9209 (1963) (statement of Rep. Goodell))); id. at 171 

n.11 (noting Representative Griffin’s statement that the “factor other than sex” 

defense “is a ‘broad principle,’ which ‘makes clear and explicitly states that a 

differential based on any factor or factors other than sex would not violate this 

legislation’” (quoting 109 Cong. Rec. 9203 (1963))).
21

1 a. Ambiguity

2 Our interpretation would remain unchanged even if the term 

3 “factor other than sex” were ambiguous,requiring our resort to canons 

of statutory interpretation to discern its meaning.64 4

5 Beyond Aldrich, Eisenhauer’s argument that every “factor other 

6 than sex” must be job related relies on Rizo v. Yovino, in which the 

7 Ninth Circuit resorted to interpretive canons to discern the term’s

meaning. 8 65 The Ninth Circuit did not assert that the term “factor other 

9 than sex” is ambiguous, much less explain why. Yet it resolved some 

10 assumed ambiguity by applying the canons of ejusdem generis and

noscitur a sociis. 11 66 The canon of ejusdem generis dictates that we should 

64 See Spadaro v. U.S. Customs & Border Prot., 978 F.3d 34, 47 (2d Cir. 2020)

(“[W]e rely upon canons of construction only if the language of the statute is 

ambiguous . . . .”); cf. Rubin v. United States, 449 U.S. 424, 430 (1981) (“When we find 

the terms of a statute unambiguous, judicial inquiry is complete, except ‘in rare and 

exceptional circumstances.’” (quoting Tenn. Valley Auth. v. Hill, 437 U.S. 153, 187 

n.33 (1978))); In re Price, 353 F.3d 1135, 1141 (9th Cir. 2004) (“If the statutory 

language is unambiguous, then our ‘judicial inquiry is complete.’” (quoting Rubin, 

449 U.S. at 430)).

65 See Rizo, 950 F.3d at 1224–25 (discussing canons of statutory 

interpretation).

66 See id.

Resort to these canons is anomalous because the Supreme Court has 

instructed that they are useful only for resolving ambiguity. See Harrison, 446 U.S. 

578, 588 (1980) (“The rule of ejusdem generis, while firmly established, is only an 

instrumentality for ascertaining the correct meaning of words when there is 

uncertainty.” (quoting United States v. Powell, 423 U.S. 87, 91 (1975))); Russell Motor 

Car Co. v. United States, 261 U.S. 514, 520 (1923) (“‘Noscitur a sociis’ is a well-
22

1 interpret a general term that follows specific ones to refer only to items

of the same “class” as the specific ones. 2 67 And the canon of noscitur a 

sociis instructs that “a word is known by the company it keeps.”68 3 In 

established and useful rule of construction, where words are of obscure or doubtful 

meaning, and then, but only then, its aid may be sought to remove the obscurity or 

doubt by reference to the associated words.” (emphasis added)).

Beyond resorting to the canons of ejusdem generis and noscitur a sociis, the 

Ninth Circuit relied on the principle that we must give effect to every part of a 

statute. It reasoned that “any other factor other than sex” must be job related 

because “[i]f any factor other than sex could defeat an EPA claim, the first ‘other’” 

and the three enumerated exceptions “would be rendered meaningless.” Rizo, 950 

F.3d 1224. We disagree. “Other” has a meaning even though any “factor other than 

sex” defeats an EPA claim: It refers to the fact that “bona fide,” Gunther, 452 U.S. at

170 (emphasis added), seniority, merit, and productivity systems are “additional,”

Webster’s Third New International Dictionary, note 39, ante, “factor[s] other than sex.”

The three enumerated exceptions also have meanings even though any “factor other 

than sex” defeats an EPA claim: They refer to “specifically contemplated” factors 

that defeat an EPA claim. Republic of Iraq v. Beaty, 556 U.S. 848, 860 (2009); see also id. 

(“[T]he whole value of a generally phrased residual clause . . . is that it serves as a 

catchall for matters not specifically contemplated—known unknowns . . . .”); H.R. 

Rep. No. 88-309, at 3 (“[T]he broad general exclusion [was] . . . included” because 

“it [was] impossible to list each and every exception . . . .”). “In any event, we do 

not woodenly apply limiting principles every time Congress includes a specific 

example along with a general phrase.” Ali, 552 U.S at 227. Nor do we use 

interpretive principles to introduce ambiguity where there is none. See Conn. Nat’l

Bank v. Germain, 503 U.S. 249, 253–54 (1992) (“We have stated time and again that 

courts must presume that a legislature says in a statute what it means and means 

in a statute what it says there. . . . When the words of a statute are unambiguous, 

then, this first canon is also the last: ‘judicial inquiry is complete.’” (quoting Rubin, 

449 U.S. at 430)).

67 Cleveland v. United States, 329 U.S. 14, 18 (1946).

68 Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 694

(1995).
23

1 the Ninth Circuit’s view, “any other factor other than sex,” a general 

2 term, kept company with three specific terms—seniority, merit, and 

3 productivity systems—and should be interpreted to refer only to jobrelated factors.69 Job relatedness, it declared, is “obvious[ly]”70 4 the 

relevant “class.”71 5

6 It is not at all “obvious” to us that the three specific exceptions 

are job related.72 7 Seniority systems are not necessarily job related, 

8 regardless of whether merit and productivity systems deserve such a 

9 descriptor. Seniority systems afford employees rights and benefits 

10 according to the length of their employment, not necessarily their 

employment in a particular job. 11 73 Any pay disparity resulting from a 

12 seniority system could therefore be unrelated to differences in two 

employees’ “work responsibilities and qualifications.” 13 74 For example, 

14 Employee A could earn more than Employee B, who has served twice 

15 as long in the position that Employee A also holds, merely because 

69 See Rizo, 950 F.3d at 1224–25 (applying the canons of ejusdem generis and 

noscitur a sociis).

70 Id. at 1225. 

71 Cleveland, 329 U.S. at 18.

72 Rizo, 950 F.3d at 1225.

73 See Cal. Brewers Ass’n v. Bryant, 444 U.S. 598, 605–06 (1980) (“A ‘seniority 

system’ is a scheme that . . . allots to employees ever improving employment rights 

and benefits as their relative lengths of pertinent employment increase.”).

74 Aldrich, 963 F.2d at 525.
24

1 Employee A has worked for her employer in different capacities for 

2 twice as long as Employee B.

We cannot think of a fitting “class” 3 75 or unifying descriptor

4 beyond the one the plain meaning of the EPA provides: “factor[s] other 

5 than sex.” The most commonsensical assessment of the EPA’s 

exceptions, in our view, is that no such “class” or descriptor exists.76 6

7 To shoehorn seniority, merit, and productivity systems into a 

8 manufactured label or category would be to overinterpret the EPA and

9 distort Congress’s intent. The canons of statutory interpretation are 

merely tools to aid our understanding. 10 77 When the tools prove 

“unhelpful,” we may abandon them.78 11

The canons prove “unhelpful” here. 12 79 Even if we were to 

13 determine that the term “factor other than sex” is ambiguous, we 

14 would then turn to the EPA’s legislative history as our remaining 

75 Cleveland, 329 U.S. at 18.

76 Id.

77 See Chickasaw Nation v. United States, 534 U.S. 84, 94 (2001) (“[C]anons are 

not mandatory rules. They are guides that ‘need not be conclusive.’” (quoting 

Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 115 (2001))).

78 Snell Island SNF LLC v. Nat’l Lab. Rels. Bd., 568 F.3d 410, 420 (2d Cir. 2009), 

vacated on other grounds, 561 U.S. 1021 (2010), and abrogated on other grounds by New 

Process Steel, L.P. v. Nat’l Lab. Rels. Bd., 560 U.S. 674 (2010); see also Ali, 552 U.S. at

225 (declining to apply the canons of ejusdem generis and noscitur a sociis where “it 

[was] not apparent what common attribute connect[ed] the specific items”).

79 Snell Island, 568 F.3d at 420.
25

interpretive guide. 1 80 As discussed above, that legislative history 

“strongly supports” our interpretation. 2 81 All routes lead us to the same 

3 conclusion: To establish the EPA’s “factor other than sex” defense, a

4 defendant must prove only that the pay disparity in question results 

5 from a differential based on any factor except for sex.

6 4. The Culinary Institute’s Compensation Plan

7 We return, at last, to the compensation plan to determine 

8 whether the Culinary Institute was entitled to summary judgment on

9 Eisenhauer’s EPA claim. We conclude that it was. 

10 The EPA’s “basic structure and operation are . . . 

straightforward.” 11 82 A plaintiff must establish a prima facie EPA case by 

12 demonstrating that “i) the employer pays different wages to 

13 employees of the opposite sex; ii) the employees perform equal work 

14 on jobs requiring equal skill, effort, and responsibility; and iii) the jobs 

80 See Blum v. Stenson, 465 U.S. 886, 896 (1984) (“Where . . . resolution of a 

question of federal law turns on a statute and the intention of Congress, we look 

first to the statutory language and then to the legislative history if the statutory 

language is unclear.”); Dauray, 215 F.3d at 264. (“When the plain language and 

canons of statutory interpretation fail to resolve statutory ambiguity, we will resort 

to legislative history.”).

81 Lawrence + Mem'l Hosp., 812 F.3d at 266; see text accompanying notes 55–

62, ante.

82 Corning Glass Works, 417 U.S. at 195.
26

are performed under similar working conditions.”83 1 If the plaintiff has 

2 established a prima facie case, the burden of persuasion shifts to the 

83 Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999) (quoting 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); accord Corning Glass Works, 417 U.S. at 195.

The Culinary Institute argues that the District Court erred in concluding 

that Eisenhauer established a prima facie case of sex-based pay discrimination. It 

contends that she could not have established a prima facie case by identifying a 

single male-comparator employee who earns more than her while ignoring all other 

employees who perform substantially equal work. In support of its argument, the 

Culinary Institute identifies five other comparators that it claims illustrate that no 

sex-based pay disparity exists.

The question of how many comparators are necessary to establish a prima 

facie EPA case is a source of disagreement among our sister circuits. Compare Equal 

Emp. Opportunity Comm’n v. Md. Ins. Admin., 879 F.3d 114, 122 (4th Cir. 2018)

(holding that one comparator is sufficient), and Price v. Lockheed Space Operations Co., 

856 F.2d 1503, 1505 (11th Cir. 1988) (same), with Hein v. Or. Coll. of Educ., 718 F.2d 

910, 916 (9th Cir. 1983) (holding that, in a professional setting such as a college, the 

proper comparison is to the average of wages paid to all similarly situated 

employees of the opposite sex). And it is a question that we need not answer today

because we affirm the order granting summary judgment for the Culinary Institute 

on Eisenhauer’s EPA claim on other “grounds supported in the record.” Thyroff v. 

Nationwide Mut. Ins. Co., 460 F.3d 400, 405 (2d Cir. 2006); see text accompanying 

notes 85–88, post.

The separate question of how many comparators are necessary to establish a 

prima facie case under New York Labor Law § 194(1) is one that the District Court 

did not consider. As we explain in Section III.B, the District Court improperly 

assessed Eisenhauer’s § 194(1) claim “under the same standard” as her EPA claim. 

J.A. 270; see text accompanying notes 95–101, post. “Ordinarily, we ‘will not review 

an issue the district court did not decide.’” Colavito v. N.Y. Organ Donor Network, 

Inc., 486 F.3d 78, 80 (2d Cir. 2007) (quoting Chertkova v. Conn. Gen. Life Ins. Co., 92 

F.3d 81, 88 (2d Cir. 1996)). Thus, should the District Court decide to invoke its

supplemental jurisdiction over Eisenhauer’s § 194(1) claim on remand, it must 
27

1 employer to show that one of the EPA’s affirmative defenses justifies 

the pay disparity. 2 84 To establish the EPA’s “factor other than sex” 

3 defense, a defendant must prove only that the pay disparity in 

4 question results from a differential based on any factor except for sex.

5 We assume without deciding that Eisenhauer has established a 

6 prima facie EPA case and that the Culinary Institute consequently had

7 the burden to establish its affirmative defense. We may affirm the

determine whether a single male comparator is sufficient to establish a prima facie

case under § 194(1). See text accompanying notes 98–101, post.

84 See Corning Glass, 417 U.S. at. 196; Belfi, 191 F.3d at 136.

The Equal Employment Opportunity Commission, as amicus curiae, argues 

that the District Court improperly conflated the burdens imposed by the EPA with 

those imposed by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which 

applies to disparate-treatment claims under Title VII. The burden-shifting 

framework applicable to such claims does differ from the one applicable to EPA 

claims. See Littlejohn v. City of New York, 795 F.3d 297, 309 n.7 (2d Cir. 2015) 

(recognizing the distinction); Md. Ins. Admin., 879 F.3d at 120 n.6 (same); Taylor v. 

White, 321 F.3d 710, 716 (8th Cir. 2003) (same). Under the McDonnell Douglas

burden-shifting framework, a plaintiff must first establish a prima facie case of 

disparate treatment. See Texas Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981). 

If the plaintiff establishes the prima facie case, “the burden shifts to the employer ‘to 

articulate some legitimate, nondiscriminatory reason for the employee’s’” 

disparate treatment. Id. (quoting McDonnell Douglas Corp., 411 U.S. at 802). If the 

employer carries its burden, “the plaintiff must then come forward with evidence 

that the defendants proffered, non-discriminatory reason is a mere pretext for 

actual discrimination.” Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000).

Even if the District Court arguably conflated the burdens imposed by the 

EPA with those imposed by McDonnell Douglas, the “record” demonstrates that the 

Culinary Institute carried its burden under the EPA. Thyroff, 460 F.3d at 405; see text 

accompanying notes 85–88, post.
28

1 order granting summary judgment for the Culinary Institute if it 

2 showed that there is no “genuine factual dispute” that the pay 

disparity was based on any factor except for sex. 3 85 We conclude that 

4 the Culinary Institute made such a showing.

5 The Culinary Institute’s records regarding compensation leave 

no room for “genuine factual dispute.” 6 86 As both parties agree, the pay 

7 disparity resulted entirely from (1) disparate starting salaries and (2) 

8 the formulaic application of the compensation plan, which it also 

9 applied uniformly to other faculty members, male and female. The 

10 terms of the compensation plan are sex neutral. In addition, the 

11 Culinary Institute provided undisputed explanations for its fixed12 dollar pay increases: The raises recognized the skill, experience, or

13 added value associated with additional degrees or academic 

14 promotions. The Culinary Institute’s justification produces neither a 

15 whiff of pretext nor anything else to raise a jury’s doubt or suspicion. 

16 As it happens, Eisenhauer never even argues that the compensation 

17 has any basis in sex. Her appeal rests entirely on a misinterpretation 

18 of the term “factor other than sex.”

85 Anderson, 477 U.S. at 248.

86 Id.
29

In short, no “reasonable jury”87 1 could find that the pay disparity 

was based on sex, intentionally or otherwise. 2 88 Accordingly, we affirm 

3 the decision of the District Court as to Eisenhauer’s EPA claim.

4 B. New York Labor Law’s “Factor Other Than Sex” Or “Status” 

5 Defense

6 Turning next to New York’s equal-pay law, New York Labor

7 Law § 194(1), we consider whether its catch-all exception includes a 

8 job-relatedness requirement. We conclude that it does.

9 In some respects, the EPA and § 194(1) are similar. Like the 

10 EPA, § 194(1) prohibits pay discrimination on the basis of sex. Until

11 October 2019, it provided that

12 [n]o employee [would] be paid a wage at a rate less than 

13 the rate at which an employee of the opposite sex in the 

14 same establishment [was] paid for equal work on a job 

15 the performance of which require[d] equal skill, effort 

16 and responsibility, and which [was] performed under 

similar working conditions.89 17

87 Id.

88 See Ryduchowski, 203 F.3d at 142 (“[T]he EPA does not require a plaintiff 

to establish an employer’s discriminatory intent.”).

89 N.Y. Lab. Law § 194(1) (2016) (effective until Oct. 8, 2019).
30

1 Since October 2019, it has prohibited pay discrimination on the basis 

2 of “status within one or more protected class or classes” instead of 

“sex.”90 3

4 Section 194(1) also similarly sets forth four exceptions to its 

5 prohibition. Before January 2016, the statute excluded pay disparities 

6 “made pursuant to a differential based on: (a) a seniority system; (b) 

7 a merit system; (c) a system which measures earnings by quantity or 

quality of production; or (d) any other factor other than sex.” 8 91 New 

9 York State’s legislature then amended the fourth exception from “any 

other factor other than sex” to “a bona fide factor other than sex,”92 10

11 and later, to “a bona fide factor other than status within one or more 

protected class or classes.”93 12

13 Despite their similarities, the EPA and § 194(1) differ in at least 

14 one key respect. Since January 2016, § 194(1) has required the “bona 

90 Id. § 194(1) (2019) (effective Oct. 8, 2019). In addition, the provision now 

covers both “equal work on a job the performance of which requires equal skill, 

effort and responsibility, and which is performed under similar working 

conditions” and “substantially similar work, when viewed as a composite of skill, 

effort, and responsibility, and performed under similar working conditions.” Id.

91 N.Y. Lab. Law § 194(1) (1966) (emphasis added) (effective until Aug. 18, 

1980); id. § 194(1) (1980) (emphasis added) (effective until Jan. 19, 2016).

92 2015 N.Y. Laws 362 (emphasis added).

93 2019 N.Y. Laws 93 (emphasis added).

The recent amendments to § 194(1) are not retroactive. See Thomas v. 

Bethlehem Steel Corp., 470 N.E.2d 831, 833 (N.Y. 1984) (“An amendment will in 

general have prospective effect only, unless its language indicates that it should 

receive a contrary interpretation.”).
31

1 fide factor other than sex” or “status” to “be job-related with respect to 

the position in question.” 2 94 As we have explained, the EPA’s “factor 

3 other than sex” defense imposes no such requirement. By contrast, 

4 under New York Labor Law § 194(1), to establish the “factor other 

5 than sex” or “status” defense, a defendant must prove that the pay 

6 disparity in question results from a differential based on a job-related 

7 factor.

8 The District Court evaluated Eisenhauer’s EPA and § 194(1) 

claims “under the same standard.” 9 95 Until January 2016, this approach 

may have been the proper one.96 10 Since at least January 2016, however, 

11 the relevant standards have differed at least because § 194(1) has 

12 included a job-relatedness requirement. Neither Eisenhauer nor the 

13 Culinary Institute identified or acknowledged this difference before 

the District Court. 14 97 The District Court thus understandably

94 N.Y. Lab. Law § 194(1) (2016) (emphasis added) (effective until Oct. 8, 

2019); id. § 194(1) (2019) (emphasis added) (effective Oct. 8, 2019).

95 J.A. 270 (quoting Moccio, 889 F. Supp. 2d at 570).

96 See Talwar v. Staten Island Univ. Hosp., 610 F. App’x 28, 30 n.2 (2d Cir. 2015) 

(summary order) (“An equal pay claim under New York Labor Law § 194 is 

analyzed under the same standards applicable to the federal Equal Pay Act.”

(quoting Pfeiffer v. Lewis Cnty., 308 F. Supp. 2d 88, 98 n.8 (N.D.N.Y. 2004))).

97 On appeal, Eisenhauer also fails to identify any difference between the 

EPA and New York’s equal-pay law. We may nevertheless exercise our discretion

to consider the standard under which to evaluate § 194(1) claims. See generally 

United States v. Gomez, 877 F.3d 76, 92 (2d Cir. 2017) (“We are ‘more likely to exercise 

our discretion (1) where consideration of the issue is necessary to avoid manifest 

injustice or (2) where the issue is purely legal and there is no need for additional 

fact-finding.’” (quoting Baker v. Dorfman, 239 F.3d 415, 420 (2d Cir. 2000))).
32

1 overlooked it. Nonetheless, we hold that the District Court did not

2 consider the divergent requirements imposed by the EPA and New 

3 York Labor Law § 194(1) when assessing Eisenhauer’s claims and the 

4 Culinary Institute’s affirmative defense. The District Court should 

5 have assessed Eisenhauer’s § 194(1) claim as altogether distinct from 

6 her EPA one. 

7 We therefore vacate the order granting summary judgment as 

8 to Eisenhauer’s § 194(1) claim and remand the cause for the District 

9 Court to decide whether to invoke its discretion to exercise 

supplemental jurisdiction over that state-law claim.98 10 If it decides to 

11 exercise its supplemental jurisdiction, it must assess Eisenhauer’s 

12 § 194(1) claim anew. In doing so, it must consider whether 

(1) Eisenhauer established a prima facie case under § 194(1)99 13 and 

14 (2) the Culinary Institute showed that there is no “genuine factual 

dispute”100 that its compensation plan is job related.101 15

98 See generally 28 U.S.C. § 1367(c) (“The district courts may decline to 

exercise supplemental jurisdiction over a [state-law] claim . . . if . . . the district 

court has dismissed all claims over which it has original jurisdiction . . . .”).

99 See note 83, ante.

100 Anderson, 477 U.S. at 248.

101 A pay disparity between Eisenhauer and Perillo existed in 2011 and 2012 

and has persisted since 2017. See note 5 and accompanying text, ante. Since the New 

York State legislature only imposed a job-relatedness requirement in 2016, the 

District Court need not consider whether the compensation plan was job related in 

2011 and 2012. The Culinary Institute has established its affirmative defense as to 

the pay disparities in 2011 and 2012.
33

1 IV. CONCLUSION

2 To summarize, we hold as follows:

3 (1) Under the Equal Pay Act, 29 U.S.C. § 206(d), to establish a 

4 “factor other than sex” defense, a defendant must prove 

5 only that the pay disparity in question results from a 

6 differential based on any factor except for sex.

7

8 (2) The defendant showed that there is no genuine factual 

9 dispute that its sex-neutral compensation plan—which 

10 incorporates a collective bargaining agreement—is a “factor 

11 other than sex” that justifies the pay disparity between the 

12 plaintiff and her male colleague. 

13 (3) Under New York Labor Law § 194(1), to establish the “factor 

14 other than sex” or “status” defense, a defendant must prove 

15 that the pay disparity in question results from a differential 

16 based on a job-related factor. 

17 (4) The District Court did not consider the divergent 

18 requirements imposed by the EPA and § 194(1) when 

19 assessing the claims and affirmative defense presented.

20 For the foregoing reasons, we AFFIRM IN PART insofar as the 

21 District Court granted summary judgment for the defendant on the 

22 EPA claim. We VACATE IN PART and REMAND insofar as the 

23 District Court granted summary judgment for the defendant on the 

24 § 194(1) claim.
1

DEBRA ANN LIVINGSTON, Chief Judge, concurring in part and concurring in the 

judgment:

I concur in the majority’s decision to vacate and remand the grant of 

summary judgment to the Defendant-Appellee Culinary Institute of America 

(“CIA”) on Plaintiff-Appellant Anita Eisenhauer’s state law claim pursuant to 

New York’s equal pay law, which requires that a defendant seeking to prove that 

a pay disparity results from a “bona fide factor other than [sex]” show that the 

factor is “job-related” and “consistent with business necessity.” N.Y. Lab. Law 

§ 194(1)(b)(iv)(B). Given this statutory language, which is facially distinct from the 

analogous provision of the federal Equal Pay Act, see 29 U.S.C. § 206(d)(1)(iv), the 

district court erred in assuming that Eisenhauer’s state and federal claims may be 

evaluated under the same standard. 

I write separately because, though I concur in the majority’s disposition of 

Eisenhauer’s federal Equal Pay Act claim, I respectfully cannot join in the 

majority’s statement that to establish an affirmative defense under § 206(d)(1)(iv) 

of the Act, an employer may rely on a differential based on literally any factor 

except for sex. That reading of the statute contradicts our prior precedents as well 

as the statute’s plain meaning. As this Court held more than three decades ago, a 

basis for a differential “may qualify under the factor-other-than-sex defense only 

when [it is] based on legitimate business-related considerations.” Aldrich v. 

Randolph Cent. Sch. Dist., 963 F.2d 520, 525 (2d Cir. 1992). I decline to join the 

majority in abandoning this long-standing interpretation of the Act here.

I

In the years following World War II, the United States faced a “serious and 

endemic” problem—a “wage structure” in which men were “paid more” than 

women although their “duties [were] the same.” Corning Glass Works v. Brennan, 
2

417 U.S. 188, 195 (1974) (quoting S. Rep. No. 176, 88th Cong., 1st Sess. 1 (1963)).1 

The problem was a complicated one, emerging from “ancient but outmoded 

belief[s]” about men and women’s respective “role[s] in society.” Id. Despite this 

complexity, Congress’s “solution . . . was quite simple in principle: to require that 

‘equal work will be rewarded by equal wages.’” Id. (quoting S. Rep. No. 176). 

Hence, the Equal Pay Act (“EPA”), 29 U.S.C. § 206(d), was enacted. Id. 

To effectuate its end, the EPA empowers a plaintiff to recover damages 

when paid less than colleagues of the opposite sex who performed “equal work.” 

29 U.S.C. § 206(d)(1), (3). To constitute “equal work,” a job must “require[] equal 

skill, effort, and responsibility.” Id. § 206(d)(1). “[T]he EPA does not require” a 

plaintiff to provide “proof of intentional discrimination.” Ledbetter v. Goodyear Tire 

& Rubber Co., 550 U.S. 618, 640 (2007). Rather, an employer is found to be 

presumptively liable once the plaintiff makes an initial showing of unequal pay. 

Corning Glass, 417 U.S. at 195. The majority assumes that Eisenhauer has made out 

this prima facie showing based on the pay disparity between herself and one of her 

colleagues, Robert Perillo, and I do the same.

The Act also creates an affirmative defense for an employer who can prove 

that an otherwise unlawful pay gap 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.” 29 

U.S.C. § 206(d)(1). Only the fourth affirmative defense—sometimes referred to as 

the “catchall” exception—is at issue in this case. Corning Glass, 417 U.S. at 196. 

Specifically, the CIA argues that it is relieved of any liability by the catchall 

exception on account of the fact that the persistent pay differential between 

Eisenhauer and Perillo is the result of a formulaic compensation plan, established 

pursuant to a collective bargaining agreement, which provides for fixed-dollar 

1 Unless otherwise indicated, this opinion omits all internal citations, quotation marks, 

alterations, and footnotes from citations.
3

increases in compensation upon the attainment of certain promotions or academic 

degrees as well as across-the-board annual percentage increases.

Addressing whether the CIA can take refuge within the bounds of the fourth 

exception requires considering the defense’s scope. As is always the case, we 

begin with the text, considering “not only . . . the language itself,” but also “the 

specific context in which [the] language is used[] and the broader context of the 

statute as a whole.” Yates v. United States, 574 U.S. 528, 537 (2015) (plurality 

opinion). Here, the affirmative defense permits reliance on “any other factor other 

than sex,” 29 U.S.C. § 206(d)(1)(iv),” a somewhat cumbersome linguistic construct. 

At its heart is the phrase “any other,” which conveys its reference to a thing 

“specified or understood contextually.” See Other, OXFORD ENGLISH DICTIONARY

(3d ed. 2004). Thus, to understand the reach of the fourth defense, we must look 

to the defenses with which it appears—the exceptions for seniority, merit, and 

production, respectively. 

That the fourth defense’s “catchall” must be construed in light of these three 

specific defenses derives further support from the familiar linguistic canons. Most 

pertinent is the canon of ejusdem generis, which provides that “where, as here, a 

more general term follows more specific terms in a list, the general term is usually 

understood to embrace only objects similar in nature to those objects enumerated 

by the preceding specific words.” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1625

(2018). “The principle of ejusdem generis essentially . . . implies the addition of 

similar after the word other.” ANTONIN SCALIA & BRYAN A. GARNER,READING LAW:

THE INTERPRETATION OF LEGAL TEXTS 199 (2012) (emphasis in original); see also In 

re Bush Terminal Co., 93 F.2d 659, 660 (2d Cir. 1938) (“The words ‘other’ or ‘any 

other’ following an enumeration of particular classes ought to be read as ‘other 

such like’ and to include only those of like kind or character.”). Thus, for example, 

in Circuit City Stores, Inc. v. Adams, the Supreme Court interpreted § 1 of the Federal 

Arbitration Act, which lists “seamen, railroad employees, or any other class of 

workers engaged in foreign or interstate commerce,” 9 U.S.C. § 1 (emphasis 

added), to include only transportation workers, not workers in literally any 
4

industry. See 532 U.S. 105, 114–15 (2001).2 Likewise, it follows that “any other 

factor other than sex” in the catchall exception should be read to extend to factors 

similar to the three enumerated—and not literally any other factor.3

So what then is the common feature that unites the three specific exceptions? 

Seniority rewards an employee for her “heightened value” to her employer 

accrued through “personal work experiences” over time. Jones & Laughlin Steel 

Corp. v. Pfeifer, 462 U.S. 523, 535 (1983). Merit rewards greater ability. And quality

and quantity of production reward the employee’s output. Each of these defenses 

allows an employee to be paid more when proximate measures indicate she is 

“more valuable to [her] employer”—that is, when her value as an employee 

exceeds merely fulfilling the minimum qualifications to perform her job. Id. Three 

decades ago, this Court, relying in part on the Act’s legislative history, offered a 

somewhat broader gloss, stating that a basis for a differential “may qualify under 

2 As this example makes clear, the presence of the word “any”—which the majority relies 

on to give the fourth defense a more expansive reach—does not weigh against the application of 

the principle of ejusdem generis. The majority also suggests the canon is inappropriate in light of 

the Supreme Court’s characterization of this defense as a “catch-all.” Majority at 18 (quoting 

Corning Glass Works, 417 U.S. at 204). But the canon applies precisely “when a drafter has tacked 

on a catchall phrase at the end of an enumeration of specifics.” SCALIA & GARNER, supra, at 199. 

Accordingly, the Supreme Court regularly applies the canon to narrow what it characterizes as a 

“catchall” exception. See, e.g., Epic Sys. Corp., 138 S. Ct. at 1625 (“[T]here is no textually sound 

reason to suppose the final catchall term should bear such a radically different object than all its 

predecessors.” (emphasis added)). 

3 While similarly arriving at its conclusion regarding the not unlimited scope of the fourth 

defense, the Ninth Circuit relied both on the canon of ejusdem generis and its cousin canon, noscitur 

a sociis, which teaches that “a word is to be understood by the company it keeps.” Yates, 574 U.S. 

at 543; see Rizo v. Yovino, 950 F.3d 1217, 1224 (9th Cir. 2020) (en banc) (“Other well-settled rules of 

statutory construction reinforce the conclusion that the fourth affirmative defense includes factors 

of the same type as the ones Congress specifically identified. The first is the noscitur a sociis canon 

. . . .”). However, “[a]lthough judges often use these two Latin canons interchangeably, it is 

ejusdem generis (rather than noscitur a sociis) that more squarely applies to figure out how to read 

[a] general term at the end of [a] series.” WILLIAM N. ESKRIDGE JR., INTERPRETING LAW: A PRIMER 

ON HOW TO READ STATUTES AND THE CONSTITUTION 77 (2016).
5

the factor-other-than-sex defense only when [it is] based on legitimate businessrelated considerations.” Aldrich, 963 F.2d at 525; see also Belfi v. Prendergast, 191 

F.3d 129, 136 (2d Cir. 1999) (“[T]o successfully establish the ‘factor other than sex’ 

defense, an employer must also demonstrate that it had a legitimate business 

reason for implementing the gender-neutral factor that brought about the wage 

differential.”). While I can postulate adopting a narrower construction of the 

statute’s language, it is not clear to me that this more general interpretation is 

mistaken. 4

“[T]his level of generality question” is typical when applying the ejusdem 

generis canon, with one identified “commonality” perhaps offering a “tighter fit 

with the . . . specific items . . . on the list” while another “dovetails [more neatly] 

with statutory purpose.” ESKRIDGE, supra, at 78. Not surprisingly, although most 

of our sister circuits to address the scope of the catchall have adopted a limiting 

interpretation—like Aldrich’s—focused on the employer’s legitimate business 

interests, the exact contours have differed. Compare Equal Emp. Opportunity 

Comm’n v. J.C. Penney Co., 843 F.2d 249, 253 (6th Cir. 1988) (“[T]he ‘factor other 

than sex’ defense does not include literally any other factor, but a factor that, at a 

minimum, was adopted for a legitimate business reason.”), and Riser v. QEP 

Energy, 776 F.3d 1191, 1198 (10th Cir. 2015) (“[A] classification system serves as a 

4 Indeed, I tend to agree that the legislative history, to the extent it is relevant, marshals in 

favor of the Aldrich Court’s broader reading of the catchall to include all business-related reasons. 

In particular, the House Report on the EPA bill—which the majority selectively quotes for the 

proposition that the fourth defense is a “broad general exclusion”—identifies a number of 

examples of “exceptions” that would fall within the catchall, which primarily consist of jobrelated differences, such as “shift differentials, restrictions on or differences based on time of day 

worked, hours of work, lifting or moving heavy objects, differences based on experience, training, 

or ability,” but also include “certain special circumstances, such as ‘red circle rates.’” H.R. Rep. 

No. 88-309, at 3 (1963), as reprinted in 1963 U.S.C.C.A.N. 687, 689. “[R]ed circle rates” refers to 

when an employer moves employees to “less demanding jobs but . . . continues[] to pay them a 

premium rate in order to have them available when they are again needed for their former jobs.” 

Id. Notably, the Supreme Court seems to have recognized that “red circle rates” may, in some 

circumstances, fall within the “factor other than sex” defense, see Corning Glass, 417 U.S. at 209, 

and the EPA’s implementing regulations provide for the same, see 29 C.F.R. § 1620.26.
6

defense only where any resulting difference in pay is ‘rooted in legitimate 

business-related differences in work responsibilities and qualifications for the 

particular positions at issue.’” (quoting Aldrich, 963 F.2d at 525)), with Glenn v. Gen. 

Motors Corp., 841 F.2d 1567, 1571 (11th Cir. 1988) (holding that the “‘factor other 

than sex’ exception applies when the disparity results from unique characteristics 

of the same job; from an individual’s experience, training, or ability; or from 

special exigent circumstances connected with the business”), and Rizo, 950 F.3d at

1224 (“[W]e conclude that the fourth affirmative defense comprises only jobrelated factors, not sex.”).

In the decades since the EPA’s enactment, cases have arisen that have 

required parsing these differing standards, see Rizo, 950 F.3d at 1231 (discussing 

the “circuit split” on the use of “prior pay as an affirmative defense to a prima facie

EPA claim”). But fortunately, this is not such a case. That is because, even when 

adopting a narrow reading of the factor-other-than-sex defense, it is clear that the 

district court here did not err in awarding the defendant summary judgment. 

As neither party disputes, the pay disparity between Eisenhauer and Perillo 

is a function of two factors: their starting salaries and the CIA’s formulaic system 

of raises. When Eisenhauer was hired in 2002, she was offered a starting salary of 

$50,000 based on her resume, job application, and interview performance. Six 

years later, Perillo was hired at a starting salary of $70,000, which—when adjusted 

to account for annual pay increases—exceeded Eisenhauer’s starting salary by 

approximately $6,000. As Eisenhauer acknowledges, this difference reflected 

Perillo’s formal culinary training and his exemplary performance during the mock 

lecture and cooking demonstration portions of his interview. 

Once hired, both Eisenhauer and Perillo took advantage of the opportunities 

provided by the CIA’s compensation plan to increase their annual pay. Both 

progressed through the ranks and obtained the title of “Professor,” and both 

attained bachelor’s and master's degrees. When combined with the annual acrossthe-board raises, these salary enhancements were substantial: Eisenhauer earned 
7

approximately $115,000 in 2020, while Perillo earned approximately $122,000 that 

year. Nevertheless, a pay gap has persisted—roughly $7,000 in 2020—largely as a 

remnant of their differences in starting salary. 

Eisenhauer asserts no illegality with regard to her and Perillo’s respective 

starting salaries, acknowledging that the differential was lawfully premised on 

Perillo’s greater educational experience and interview performance. In that 

regard, this case is unlike those in which a defendant has been found in violation 

of the EPA for relying on a facially neutral compensation system that 

“perpetuate[d] the effects of the company’s prior illegal practice[s].” Corning 

Glass, 417 U.S. at 209. Nevertheless, Eisenhauer argues that the CIA’s system of 

formulaic increases from a starting salary fails to account for the possibility that 

any differences in qualifications that justified a pay disparity at the moment of 

hiring may well have dissipated over time. In essence, she argues that the CIA’s 

compensation system is unlawful because it fails to include any mechanism for 

adjusting an employee’s pay based on an individualized assessment of her merit.

But the EPA demands no such individualized assessment. To the contrary, 

the affirmative defenses found in the statute contemplate reliance in setting pay

on proxies for an employee’s value to the employer, such as seniority, which may 

well fail to align with what a more particularized evaluation of an employee’s 

worth might dictate. See 29 U.S.C. § 206(d)(1). Here, the CIA utilized a system 

that formulaically increased each instructor’s pay in a way that depended on the 

attainment of certain objective criteria—namely, promotions or academic 

degrees—that the CIA used to identify those instructors positioned to add greater 

value to the institution. 

Such a system falls squarely within the scope of § 206(d)(1)(iv)’s exception 

for “any other factor other than sex.” And because Eisenhauer makes no argument 

that this facially neutral system of pay raises perpetuates an initially unlawful 

disparity, it follows that she has failed to make out a viable claim. See Hein v. 

Oregon Coll. of Educ., 718 F.2d 910, 920 (9th Cir. 1983) (“[S]alary differentials based 
8

on unequal starting salaries do not violate the Equal Pay Act if the employer can 

show that the original disparity was based on a legitimate factor other than sex.”). 

Accordingly, I agree with the majority that we should affirm the district court’s 

award of summary judgment to the CIA—though I do so on narrower grounds.

II

Rather than follow the straight path through the statute’s text and our 

precedent, the majority wipes the slate clean and devises a new interpretation of 

the EPA’s factor-other-than-sex defense that would permit an employer to rely on

a differential based on literally any factor except for sex—or at least any factor that 

would not function as a “‘loophole[]’ that would sanction sex-based pay 

discrimination.” Majority at 16 n. 48 (quoting Aldrich, 963 F.2d at 525). This 

conclusion, the majority argues, is demanded by the “unambiguous” text of the 

statute. Id. at 15. I am unconvinced. As set forth in the previous section, a careful 

reading of the statute suggests § 206(d)(1)(iv)’s “catchall” exception ought to be 

read more narrowly in light of the specific exceptions that precede it. But even if 

this were not the case, I would still have concerns that would prevent me from 

joining the majority’s opinion in full. 

First, the majority’s opinion is in substantial tension with —if not outright 

violation of—our rule that “[a] panel is bound to adhere to the earlier precedent of 

this Court in the absence of a decision by the Supreme Court or an en banc panel 

of this Court calling that precedent into question.” Oneida Indian Nation of New 

York v. Cnty. of Oneida, 617 F.3d 114, 122 (2d Cir. 2010). In Aldrich, we explicitly 

rejected the unbounded interpretation adopted by the majority here, holding that

an employer could not rely on its use of a “facially neutral civil service examination 

and classification system [merely] because it was literally a factor other than sex,” 

instead requiring that the system “ha[d] some grounding in legitimate business 

considerations.” 963 F.2d at 526–27. The majority responds by suggesting that 

Aldrich was a narrow case about job classification systems and should not be read 

more broadly. Maybe so—though I have my doubts. Hormel Foods Corp. v. Jim 
9

Henson Prods., Inc., 73 F.3d 497, 508 (2d Cir. 1996) (“Dictum” refers only to “a

statement in a judicial opinion that could have been deleted without seriously 

impairing the analytical foundations of the holding”).

Regardless, our subsequent precedents have declined to adopt such a 

narrow reading, instead explaining time and again that a “legitimate business 

reason” is necessary to establish any “factor other than sex.” Belfi, 191 F.3d at 136; 

see also Tomka v. Seiler Corp., 66 F.3d 1295, 1310 (2d Cir. 1995) (“An employer who 

attempts to justify a pay differential based on a ‘factor other than sex’ must also 

prove that the gender-neutral factor was adopted for a legitimate business 

reason.”); see also Forden v. Bristol Myers Squibb, 63 F. App’x 14, 15 (2d Cir. 2003)

(summary order) (same). As I suggested above, there may well be genuine

questions regarding the exact contours of the factor-other-than-sex exception 

found in § 206(d)(1)(iv), questions that are not fully answered by our prior 

precedent demanding a “legitimate business reason.” But I see no ambiguity in 

our precedent that would permit the interpretation the majority adopts here. 

Second, I fear the majority’s novel “loophole” test for policing the bounds 

of the EPA’s exceptions may fail to provide sufficiently meaningful guidance to 

future litigants, creating uncertainty for both employees and employers. The 

majority states that while a defendant may cite any factor except for sex to establish 

a § 206(d)(1)(iv) defense, a court assessing such a defense must do so with an eye

towards “avoid[ing] ‘loopholes’ that would sanction sex-based pay 

discrimination.” Majority at 16 n. 48 (quoting Aldrich, 963 F.2d at 525). But how 

does a court recognize such a “loophole”? The majority’s opinion gives little 

guidance. Rather than offer some principle for identifying a “loophole” in the 

statute, the majority confines to a footnote a list of five examples, taken from cases 

and regulations, of impermissible factors—noting however that the “list is not 

necessarily exhaustive.” Id. Thus, having identified a non-exhaustive set of dots, 

the majority leaves to the reader the work of connecting them.
10

In essence, the majority tasks the employer with proving some ill-defined 

negative—that deeming its compensation system lawful would not “sanction sexbased pay discrimination.” Majority at 16 n. 48. In contrast, the Aldrich test 

identifies a positive characteristic of the system that the employer must prove—

namely that it is justified by a “legitimate business reason”—in order to avoid 

liability. Belfi, 191 F.3d at 136. The Aldrich test thus renders the factor-other-thansex defense akin to the specifically enumerated exceptions—seniority, merit, and 

production—which similarly identify the attributes of the challenged

compensation system that the employer may point to in order to make out an 

affirmative defense. See 29 U.S.C. § 206(d)(1). Such has been the law of this Circuit 

(and many others) for decades and I am wary of abruptly changing course without 

a clear direction forward. 

In sum, the majority breaks with our precedent and adopts a seemingly 

broader reading of the EPA’s fourth affirmative defense that is out of step with 

many of our sister circuits. It does so without clear support from the statute’s text, 

and it does so unnecessarily—as I have explained, the present case fits neatly into 

the scope of the factor-other-than-sex defense even narrowly construed. 

Accordingly, as to the disposition of Eisenhauer’s EPA claim, I respectfully concur 

only in the judgment.