21

- 2919

- cv Eisenhauer v. Culinary Institute of America



## In the 1 

# United States Court of Appeals 2 

## for the Second Circuit 3

4

5

6 A UGUST T ERM 20 22 7

8 No. 21

- 2919

- cv 9

10 A NITA E ISENHAUER , 11 Plaintiff

- Appellant
, 12

13

v. 14

15 C ULINARY I NSTITUTE OF A MERICA , 16 Defendant

- Appellee

. 17

18

19 On Appeal from the United States District Court 20 for the Southern District of New York 21

22

23 A RGUED : J ANUARY 26
, 20 23 24 D ECIDED : O CTO BE R 17, 20 23 25

26

27 Before: L IVINGSTON , Chief Judge , L EVAL , and C ABRANES , Circuit Judges

. 28

29

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

to establish affirmative defense s to pay

- discrimination claims under 2
federal and state laws : the Equal Pay Act , 29 U.S.C. § 206(d)
, (“EPA ”) 3
and N ew York Lab or Law § 194(1). Plaintiff Anita Eisenhauer alleges 4
that d efendant Culinary Institute of America violat ed these equal

- pay 5
laws by compensating her less than a male colleague. T he Culinary 6
Institute responds that a “factor other than sex”

— its sex

- neutral 7 compensation plan
, which incorporates a collective bargaining 8 agreement

— justifies the pay disparity. Eisenhauer argues that the 9 compensation plan cannot qualify as a “factor other than sex” becaus e 10
it creates a pay disparity unconnected to differences between her job 11 and her colleague’s job. 12

Eisenhauer ’s position that a “factor other than sex” must be jo b 13
related is incorrect as to the EPA. The plain meaning of the EPA 14 indicates the opposite. We hold that to establish th e EPA’s “factor 15 other than sex” defense, a defendant must prove only that the pay 16 disparity in question results from a differential based on any factor 17 except for sex. But Eisenhauer’s position is correct as to New York 18
Labor Law § 194(1)

. A recent amend ment to § 194(1) explicitly added 19 a job

- relatedness requirement. We thus hold that to establish § 194(1) ’s 20
“factor other than sex” or “status” defense, a defendant must prove 21
that the pay disparity in question results from a differential based on 22 a job

- related factor. T he District Court did not consider the divergent 23 requirements imposed by the EPA and § 194(1) when assessing 24
Eisenha uer’s claims and the Culinary Institute’s defense. 253 Accordingly, we AFFIRM IN PART insofar as the United States 1 District Court for the Southern District of New York (Paul E. Davison, 2 Magistrate Judge ) granted summary judgment for the defendant on the 3
EPA cl aim. We VACATE IN PART and REMAND insofar as the 4 District Court granted summary judgment for the defendant on the 5 claim under New York Labor Law, § 194(1)

. 6

C HIEF J UDGE L IVINGSTON concurs in the judgment in part and files a 7 separate opinion

. 8

9

S TEVEN M. W ARSHAWSKY , The Warshawsky 10
Law Firm
, Mount Kisco
, N.Y.
, for Plaintiff

11 Appella nt

. 12

R EBECCA M. M C C LOSKEY ( Greg Riolo, on the 13 brief ), Jackson Lewis P.C.
, White Plains
, 14
N.Y.
, for Defendant

- Appellee

. 15

J AMES D RISCOLL -M AC E ACHRON ( Christopher 16 Lage, Deputy General Counsel; Jennifer S. 17 Goldstein, Associate General Counsel; 18 Elizabeth E. Theran, Assistant General 19 Counsel; Julie L. Gantz, Attorney
, on the 20 brief ) , Equal Employment Opportunity 21 Commission, Washington, D.C., for Amicus 22
Curiae U.S. Equal Emplo yment Opportunity 23
Commission. 244 1

J OS É A. C ABRANES , Circuit Judge : 2

This case presents the questions of what a defendant must prove 3
to establish affirmative defense s to pay

- discrimination claims under 4
federal and state laws : the Equal Pay Act, 29 U.S.C. § 206(d), (“EPA”) 1 5
and N ew York Lab or Law § 194(1)

. 2 Plaintiff Anita Eisenhauer alleges 6
that d efendant Culinary Institute of America violated these equal

- pay 7 laws by compens ating her less than a male colleague. The Culinary 8 Institute responds that a “factor other than sex”

— its sex

- neutral 9 compensation plan, which incorporates a collective bargaining 10 agreement (“CBA”)

— justifies the pay disparity. Eisenhauer argues 11
that the com pensation plan cannot qualify as a “factor other than sex” 12
because it creates a pay disparity unconnected to differences between 13
her job and her colleague’s job. 14

Eisenhauer’s position that a “factor other than sex” must be job 15 related is incorrect as to the EPA. The plain meaning of the EPA 16 indicates the opposite. We hold that to establish the EPA’s “factor 17 other than sex” defense, a defendant must prove only that the pay 18 disparity in question results from a differential based on any factor 19

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. 3 But Eisenhauer’s position is correct as to New York 1
Labor Law § 194(1)

. A recent amendment to § 194(1) explicitly added 2 a job

- relatedness requirement. We thus hold that to establish § 194(1) ’s 3
“factor other than sex” or “status” defense, a defendant must prove 4 that the pay disparity in question results from a differential based on 5 a job

- related factor. T he District Court did not consider the divergent 6 requirements imposed by the EPA and § 194 (1) when assessing 7 Eisenhauer’s claims and the Culinary Institute’s defense. 8

Accordingly, we AFFIRM IN PART insofar as the United States 9 District Court for the Southern District of New York (Paul E. Davison, 10 Magistrate Judge ) granted summary judgment for the defendant on the 11
EPA claim. We VACATE IN PART and REMAND insofar as the 12 District Court granted summary judgment for the defendant on the 13 § 194(1) claim

. 4 14

I. BACKGROUND 15

A. Factual Background 16

Anita Eisenhauer
, a female p rofessor at the Culinary Institute, 17 alleges that she is a victim of pay discrimination in violation of the EPA 18 and New York Labor Law § 194(1)

. Since 2017, the Culinary Institute

— 19 a private, non

- profit college and culinary school

— has paid Eisenhauer 20

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 c onducted all proceedings and ordered the entry of a final judgment with the parties’ consent. See 28 U.S.C. § 636(c).6 a lower salary than it has paid Robert Perillo, a male professor carrying 1
a similar course load. 5 In 2019
, for example, Eisenhauer ’s salary was 2 $ 111
, 263 , while Perillo ’s was $ 118,080

. 3

The Culinary Institute pays Eisenhauer and Perillo according to 4
the sex

- neutral terms of a CBA and employee handbook ( together, 5 “compensation plan”)

. 6 The compensation plan requires fixed pay 6 increases triggered by time, promotion
, and degree completion. It does 7 not provide for “ equity ” adjustments. 7 Each year, in accordance with 8 the compensation plan, all faculty members receive the same 9 percentage increase in their salaries

. As a result, t he pay disparity 10
between Eisenhauer and Perillo continue s to grow. 11

The pay disparity between Eisenhauer and Perillo exists because 12
their salaries differed when they were hired and have formulaically 13
increased over time. When the Culinary Institute hired Eisenhauer and 14

5 The Culinary Institute also paid Eisenhauer a lower salary in 2011 and
2012. We use the terms “salary” and “pay” interchangeably
, exclud ing 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 w hich 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 te rms and conditions of employment

.

7 Under the CBA, t he Culinary Institute may not diverge from the terms of the CBA absent a written agreement between it and the Culinary Teachers Association.7 Perillo as learning instructors

— at starting salaries of $50,0 00 in 2002 1 and $70,000 in 2008, respectively

— they had different experience and 2
education levels. Eisenhauer had fifteen years of culinary experience 3
and had served as the executive chef in two New York City 4

restaurants. Perillo had twenty

- three years of cu linary experience, 5 previous teaching experience, and an associate’s degree. He had also 6 received higher scores on the cooking

- and lecture

- demonstration 7 components of his job application. Eisenhauer does not contend that 8 her starting salary was the product of sex

- based pay discrimination. 9

Over the years, both Eisenhauer and Perillo received 10 promotions and attained further education. Each earned the titles of 11 assistant professor ; associate professor ; and, ultimately, full 12 professor

— she in 2013 and he in 2017

. Along the way, Eisenhauer and 13
Perillo also received their bachelor’s and master’s degrees

— she in 14 2009 and 2016, and he in 2012 and 2015. Each of these achievements 15 prompted a fixed

- dollar increase in compensation

. 8 The amounts of 16
the increases differed somewhat because the precise raises required by 17 the compensation plan changed over time. For example, Eisenhauer ’s 18 salary increased by $4,000 upon her promotion to assistant professor 19 in 2008, while Perillo ’s rose by $ 4,410 upon his promotion in 2016. 20

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 th e tuition reimbursement program are eligible for a pay increase upon earning their degree s

.8 B. Procedural Background 1

Eisenhauer filed suit against the Culinary Institute on 2 November 26, 2019, alleging sex

- based pay discrimination in violation 3
of both federal and state law: the EPA , 29 U.S.C. § 206(d), and New 4
York ’s e qual

- p ay l aw, New York Labor Law § 194 (1)

. T he District 5
Court evaluated her federal

- and state

- law claims “ under the same 6
standard ” 9 and granted summary judgment for the Culinary Institute 7 on November 3, 2021. 10 I t concluded
, as a matter of law, that 8 (1) although Eisenhauer had established a prima facie case of sex

- based 9 pay discrimination , (2) the Culinary Institute had justified the pay 10 disparity with its compensation plan, a “factor other than sex” that 11 (3) Eisenhauer failed to show was a pretext for discrimination. This 12 appeal followed. 11 13

II. STANDARD OF REVIEW 14

Under Federal Rule of Civil Procedure 56(a), “[t]he court shall 15 grant summary judgment if the movant shows that there is no genuine 16 dispute as to any material fact and the movant is entitled to judgment 17
as a matter of law.” 12 A dispute as to any “ material fact is genuine ‘ if 18

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 a lso 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 the evidence is such that a reasonable jury could return a verdict for 1 the nonmoving party. ’” 13 We review de novo a d istrict c ourt’s order 2 granting summary judgment. 14 In conducting our review, we must 3 resolve all ambiguities and draw all inferences in favor the nonmoving 4 party

. 15 5

III. DISCUSSION 6

We consider in turn the requirements for establishing 7
affirmative defense s to claims under the EPA , 2 9 U.S.C. § 206(d)
, and 8
N ew York Lab or Law § 194(1)

. As to the EPA, we hold that t o establish 9

a “factor other than sex” defense, a defendant must prove that the pay 10 disparity in question results from a differential based on any factor 11 except for sex. As to N ew York Lab or Law § 194(1) , we hold that to 12 establish a “factor other than sex” or “status” defense, a defendant 13 must prove that the pay disparity in question results from a 14
differenti al based on a job

- related factor. 15

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

1. 29 U.S.C. § 206(d)(1) 2

The EPA prohibits pay discrimination on the basis of sex. It 3 provides that 4

[n]o employer . . . shall discriminate . . . between 5 employees on the ba sis of sex by paying wages to 6 employees . . . at a rate less than the rate at which [it] pays 7 wages to employees of the opposite sex . . . for equal work 8 on jobs the performance of which requires equal skill, 9 effort, and responsibility, and which are perfo rmed under 10 similar working conditions. 16 11

It also sets forth four exceptions to this prohibition
, for pay disparities 12 resulting from “(i) a seniority system; (ii) a merit system; (iii) a system 13 which measures earnings by quantity or quality of production; or 14 (iv) a differential based on any other factor other than sex .” 17 Each 15 exception operates as an affirmative defense. 18 The meaning of the 16 fourth exception

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

sex , ” which is often truncated to “factor other than sex”

— is the focus 18 of our inquiry. 19

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 2. Job

- Classification Systems U nder Aldrich v. Randolph Central 1
School District 2

Arguing that a “factor other than sex” must be job related
, 3
Eisenhauer relies on Aldrich v. Randolph Central School District
, decided 4 more than thirty years ago

. 19 There, we faced the novel question of the 5 circumstances under which a job

- classification system qualifies as a 6
“factor other than sex.” 20 We held that a facially sex

- neutral job

7 classification system alone is insuffic ient to constitute a “factor other 8
than sex
, ” citing concern over potential pretexts for discrimination. 21 9

T he defendant in Aldrich had sought to justif y the pay disparity 10
between the plaintiff, a female “cleaner,” and two male “custodians” 11 by invoking its sex

- neutr al job

- classification system. 22 The system 12 classified as “custodians” those required to take a civil

- service 13
examination ; “ c leaners” faced no such requirement
, and the defendant 14 paid them less

. 23 We rejected the invocation of a se x

- neutral job

15
classification system “without more,” observing that 16

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

20 See id . at 524 (“We have no t yet faced the question u nder what circumstances a civil service classification system qualifies as a factor

- other

- than

sex.”).

21 See id. at 52 5

– 2 6.

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 th at list. See id.12 Congress intended for a job classification system to serve 1 as a factor

- other

- than

- sex defense to sex

- based wage 2 discrimination claims only when the employer proves 3 that the job classificati on system resulting in differential 4 pay is rooted in legitimate business

- related differences in 5 work responsibilities and qualifications for the particular 6 positions at issue

. 24 7

Eisenhauer draws on this observation to argue that the Culinary 8 Institute’s compensation plan cannot justify the pay disparity at issue 9
here . She does not contend that the compensation plan is a job

10 classification system. 25 She nevertheless maintains that the observation 11 applies. In her view, the compensation plan cannot qualify as a “factor 12 other than sex” because it results in a pay disparity unconnected to 13 “differences in work responsibilities and qualifications.” 26 In 14 opposition, t he Culinary Institute argues that Ald rich requires only job

15 classification systems, not all “factor[s] other than sex,” to be connected 16
to such differences. 27 We agree with the Culinary Institute

. 17

Plaintiff Cora Aldrich had never earned a top

- three score and had never been offered a custodian po sition

. 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. See13 Eisenhauer , like others, misconstrues Aldrich

. 28 Considering the 1 EPA’s legislative history, we reasoned that a job

- relatedness 2 requirement is necessary to ensure that a job

- classification system is 3 not a pretext for sex discrimination. 29 Jobs are, after all, the principal 4
feature of job

- classification sy stems. We did not hold that all “factor [s] 5
other than sex” must be job related. 30 Nor do we do so today. Aldrich ’s 6 underlying suggestion is that we should interpret “factor other than 7
sex” so as to guard against pay disparities intentionally or 8
unintention ally based on sex

. 31 9

3. Statutory I nterpretation 10

B asic principles of statutory interpretation demonstrate that the 11

term “ any other factor other than sex” refers to any factor except for 12
those based on sex. The term has sowed needless uncertainty and 13

29 U.S.C. § 206(d)(1) (i)

– (iii) . We therefore do not consider any such argument

. See Brit t , 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

– 2 6

.

30 As noted, i n 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 Its meaning , we think, is about 1 as simple as it sounds

. 2

“ Our starting point in statutory interpretation is the statute ’ s 3 plain meaning, if it has one. ” 33 To identify a statute’s plain meaning, 4

we afford words “their o rdinary, common

- sense meaning ” 34 and 5
“draw [ ] on ‘the specific context in which that language is used

. ’” 35 The 6
words “ differential based on a ny other factor other than sex ” appear in 7
the context of three preceding exceptions to the EPA’s prohibition : pay 8 disparities resulting from “(i) a seniority system; (ii) a merit system; 9

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 limitles s 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 positi ons 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 indi vidual’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 [or] (iii) a system which measures earnings by quantity or quality of 1 production.” 36 2

Upon reflection, we conclude that t he meaning of “any other 3
factor other than sex” is unambiguous : 4

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

. ” “Any” means “every” ; 37 its meaning is “expansive” rather 6
than restrictive. 38 “Other” means “ additional .” 39 And r ead in context, 7

“ any other factor ” refers to “every” 40 “ additional ” 41 factor
, beyond a 8 seniority, merit, and productivity system, 42 “other than sex.” 9

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

mo difiers[,]” 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 nar row 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 (196 3).

40 Id . at 97.

41 Id. at 1598.

42 See 29 U.S.C. § 206(d)(1)(i)

– (iii).16 The meaning of the second half of the term “any other factor 1
other than sex ” is also plain

. “ O ther than” means “except for.” 43 2 Together , then, “any other factor other than sex” means “every” 44 3
“additional” 45 factor “ except for ” 46 those based (intentionally or 4 unintentionally 47 ) on sex. Accordingly, to establish the EPA’s “factor 5 other than sex” defense, a defendant must prove that the pay disparity 6 in question results from a differential based on any factor except for 7

sex. 48 8

43 Other Than
, Merriam

- Webster.com Dictionary
, https://www.merriam

webster.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, c f. 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 sex

b ased 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 agree ment s to “unequal rates of pay,” 29 C.F.R. § 1620.23 , meaning agreements to rates established on the basis of sex, s ee The Equal Pay Act;17 T he requirement that a “factor other than sex” be job related 1 appears nowhere in the EPA’s text an d , in our view, conflicts with the 2
statute’s plain meaning. If Congress had intended all “ factor [ s ] other 3
than sex” to be job related, it would have said so. As discussed below, 4
New York State ’s legislature did say so

. 49 And Congress explicitly 5 referenced job relatedness in the provision of Title VII of the Civil 6 Rights Act of 1964 50 prohibit ing employment practices that disparate ly 7 impact protected classes. Under that provision , which New York’s 8 equal

- pay law emulates
, 51 a plaintiff establishes a disparate

- impact 9
claim “only if . . . the respondent fails to demonstrate that the 10 challenged practice is job related for the position in question and 11 consistent with business necessity .” 52 Yet Congress “could not have 12

Interpretations, 51 Fed. Reg. 2981 8 (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 sugge sts, 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 “loophol es.”

49 See Section I II.B, post

.

50 42 U.S.C. § 2000e

– 2(k)(1)(A)(i)

.

51 See New York Sponsors Memorandum, 2015 S.B. 1
, 2 3 8th 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 phra se ” 53 than “any other factor other 1
than sex” when it passed the EPA

. A s the Supreme Court has 2 described it, the exception for “any other factor other than sex” is a 3
“catch

- all exception” 54 : it catches all remaining factors that are not 4
based on sex. 5

Although the plain meaning of the “catch

- all exception” 55 6

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

“ strongly supports our interpretation .” 56 According to the Senate 8 Report on the EPA bill, 57 the statute was “ designed to eliminate any 9

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 n eed 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, wh ich ‘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 wage rate differentials which are based on sex . Neither the committee 1 nor anyone proposing equal

- pay legislation intend [ed] that other 2
factors [could not] be used to justify a wage differential. ” 58 And, as 3 noted in the House Report, “ the broad general exclusion [was]

. . . 4
included ” because “it [was] impossible to list each and every 5 exception .” 59 6

Statements made during congressional debate further reinforce 7 our interpretation. A colloquy between two members of the House 8 committee that reported the EPA bill 60

— Representative Charles 9
Goodell of New York, a primary sponsor of the bill, and 10 Representati ve Robert Griffin of Michigan

— is representative: 11

Mr. Goodell. . . . [W]e want the private enterprise system, 12 employer and employees and a union, if there is a union, and 13 the employers and employees if there is not a union, to have a 14 maximum degree of discr etion in working out . . . how much 15 [employees] should be paid for [their work]. 16
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 princi p le, and those20 Mr. Goodell. Yes, as long as it is not based on sex. That is the sole 1 factor that we are inserting here as a restriction

. 62 2
The EPA’s legislative history is more than merely compatible 3 with our interpretation. It confirms that to establish the “factor other 4 than sex” defense, a defendant must prove only that a pay disparity in 5 question results from a differential based on any factor except for sex. 6
N othing in the legislative history suggests that a “factor other than 7 sex” must be job related. Nor is there anything to suggest that the term 8
must be limited in in any other way

. 63 9

preceding it are really examples: such factors as a se n iority 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 Count y 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 diff erently, 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. Goo dell) )) ; 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 viola te this legislation’” (quoting 109 Cong. Rec. 9203 (1963))).21 a. Ambiguity 1
Our interpretat ion would remain unchanged e ven if the term 2
“factor other than sex” were ambiguous, requiring our resort to canons 3 of statutory interpretation to discern its meaning

. 64 4

Beyond Aldrich , Eisenhauer’s argu ment that every “factor other 5 than sex” must be job re lated relies on Rizo v. Yovino
, in which the 6
Ninth Circuit resort ed to interpretive canons to discern the term’s 7 meaning

. 65 T he Ninth Circuit did not assert that the term “factor other 8
than sex” is ambiguous, much less explain why. Yet i t resolve d some 9 assumed ambiguity by applying the canons of ejusdem generis and 10
noscitur a sociis

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

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 exceptio nal circumstances.’” (quoting T enn. V alley A uth. 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 43 0)).

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 interpret a general term that follows specific ones to refer only to items 1
of the same “ class ” as the specific o nes. 67 And t he canon of noscitur a 2
sociis instructs that “a word is known by the company it keeps.” 68 In 3

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 referenc e to the associated words. ” (emphasis added)).

Beyond resorting to the canons of ejusdem generis and n oscitur a sociis , the Ninth Circuit relie d on the principle that we must give effect to every part of a statute. It reason ed 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: T hey 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 an d 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 t here 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 stat ute 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 the Ninth Circuit’s view, “any other factor other than sex,” a general 1
term, kept company with three specific terms

— seniority, merit, and 2 productivity system s

— and should be interpreted to refer only to job

3
related factors. 69 J ob relatedness , it declare d
, is “obvious [ly] ” 70 the 4
relevant “ class. ” 71 5

It is not at all “obvious” to us that the three specific exceptions 6 are job related. 72 Seniority systems are not necessarily job related, 7 regardless of whether merit and productivity systems deserve such a 8 descriptor . Seniority systems afford employees rights and benefits 9 according to the length of their employment , not necessarily their 10 employment i n a particular job. 73 Any pay disparity resulting from a 11 seniority system could therefore be unrelated to differences in two 12 employees’ “work responsibilities and qualifications.” 74 For example, 13 Employee A could earn more than Employee B, who has served twice 14 as long in the position that Employee A also holds, merely because 15

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, 60 5

– 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 Employee A has worked for her employer in different capacities for 1 twice as long as Employee B. 2

W e cannot think of a fitting “class” 75 or unifying descriptor 3 beyond the one the plain meaning of the EPA provides: “factor[s] other 4
than sex

. ” The most commonsensical assessment of the EPA’s 5 exceptions , in our view, is that no such “class” or descriptor exists

. 76 6
T o shoehorn seniority, merit, and productivity systems into a 7
manufactured label or category would be to overinterpret the EPA and 8
distor t Congress’ s intent

. T he canons of statutory interpretation are 9 merely tools to aid our understanding. 77 When the tools prove 10

“ unhelpful, ” we may abandon them. 78 11

The canons prove “unhelpful” here. 79 E ven if we were to 12
determine that the term “factor other than sex” is ambiguous, we 13
would then turn to the EPA’s legislative history as our remaining 14

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. N at’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. N at’l Lab. Rels. Bd ., 560 U.S. 674 (2010) ; see also Ali , 552 U.S. at 225 (declining to apply the canon s 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

. 80 As discussed above, that legis lative history 1 “strongly supports ” our interpretation

. 81 All route s lead us to the same 2
conclusion : T o establish the EPA’s “factor other than sex” defense, a 3
defendant must prove only that the pay disparity in question results 4
from a differential based on any factor except for sex. 5

4. The Culinary Institute’s C ompensation P lan 6

We return , at last, to the compensation plan to determine 7 whether the Culinary Institute was entitled to summary judgment on 8
Eisenhauer’s EPA claim . We conclude tha t it was. 9

The EPA’s “basic structure and operation are . . . 10 straightforward.” 82 A plaintiff must establish a prima facie EPA case by 11 demonstrating that “i) the employer pays different wages to 12 employees of the opposite sex; ii) the employees perform equa l work 13 on jobs requiring equal skill, effort, and responsibility; and iii) the jobs 14

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 in terpretation 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 I f the plaintiff has 1
establish ed a prima facie case , the burden of persuasion shifts to the 2

83 Belfi v. Prendergast , 191 F.3d 129, 135 (2d Ci r. 1999) (quoting Tomka v. Seiler Corp ., 66 F.3d 1295, 131 0 (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

- compar ator 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 ex ists.
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 on e 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 cla im 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 c ase 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 ; s ee text accompanying notes 95

– 101
, post

. “ Ordinarily, we ‘ will not revi ew 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, s hould the District Court decide to invoke its supplemental jurisdiction over Eisenhauer’s § 194(1) claim on remand , it must27 employer to show that one of the EPA’s affirmative defenses justifies 1 the pay disparity. 84 T o establish the EPA’s “factor other than sex” 2 defense, a defendant must prove only that the pay disparity in 3 question resul ts from a differential based on any factor except for sex. 4

We assume without deciding that Eisenhauer has establish ed a 5 prima facie EPA case and that the Culinary Institute consequently had 6
the burden to establish its affirmative defense

. W e may affirm the 7

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 dis parate treatment. See Texas Dep’t of Cmty. Affs. v. Burdine , 450 U.S. 248, 253 (1981). If the plaintiff establishes the prima fac i e 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 defen dants 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
, t he “ record ” demonstrates that the Culinary Institute carried its burden under the EPA

. Thyroff , 460 F.3d at 405 ; s ee text accompanying notes 85

– 88
, post

.28 order grant ing summary judgment for the Culinary Institute if it 1
showed that there is no “ genuine factual dispute ” that the pay 2 disparity was based on any factor except for sex

. 85 We conclude that 3 the Culinary Institute made such a showing. 4

The Culinary Institute’s records regarding compensation leave 5 no room for “genuine factual dispute

. ” 86 As both parties agree, t he pay 6 disparity resulted entirely from (1) disparate starting salarie s and (2) 7 the formulaic application of the compensation plan , which it also 8 applied uniformly to other faculty members, male and female

. T he 9 terms of the compensation plan are sex neutral

. In addition, the 10 Culinary Institute provided undisputed explanations for its fixed

11 dollar pay increases : The raises recognized the skill, experience, or 12
added value associated with additional degrees or academic 13 promotion s

. The Culinary Institute’s justification produces neither a 14 whiff of pretext n or anything else to raise a jury’s doubt or suspicion. 15 As it happens, Eisenhauer never even argues that the compensation 16 has any basis in sex. Her appeal rests entirely on a misinterpretation 17
of the term “factor other than sex.” 18

85 Anderson , 477 U.S. at 248

.

86 Id.29 In short, no “ reasonable jury ” 87 could find that the pay disparity 1

was based on sex , intentionally or otherwise. 88 Accordingly , w e affirm 2
the decision of the District Court as to Eisenhauer’s EPA claim

. 3

B. N ew York Lab or Law ’s “Fac tor Other Than Sex” Or “Status” 4
Defense 5

Turning next to New York’s equal

- pay law
, New York Labor 6 Law § 194(1), we consider whether its catch

- all exception includes a 7 job

- relatedness requirement. We conclude that it does. 8

In some respects , the EPA and § 194(1) are similar. Like the 9 EPA, § 194(1) prohibits pay discrimination on the basis of sex. Until 10
October 2019, it provided that 11

[n] o employee [would] be paid a wage at a rate less than 12 the rate at which an employee of the opposite sex in the 13 same establishment [ was ] paid for equal work on a job 14 the performance of which require [d] equal skill, effort 15 and responsibility, and which [ was ] performed under 16 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 Since October 2019, it has prohibited pay discrimination on the basis 1
of “status within on e or more protected class or classes” instead of 2
“sex.” 90 3

Section 194(1) also similarly sets forth four exceptions to its 4 prohibition . Before January 2016, the statu t e excluded pay disparities 5

“ made pursuant to a differential based on: ( a ) a seniority system; (b) 6 a merit system; (c) a system which measures earnings by quantity or 7 quality of production; or (d) any other factor other than sex

. ” 91 New 8
York State’s legislature then amended the fourth exception from “any 9
other factor other than sex” to “a bona fide factor other than sex
, ” 92 10
and later
, to “a bona fide factor other than status within one or more 11 protected class or classes.” 93 12

Despite their similarities, the EPA and § 194(1) differ in at least 13 one key respect. Since January 2016, § 194(1) has required the “ bona 14

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, ef fort, 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)

.

92 201 5 N.Y. Laws 362 (emphasis added).

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

The recent amendment s to § 194(1) are not retroactive. See Thomas v. Bethlehem Steel Corp ., 470 N.E.2d 831, 833 (N.Y. 1984) (“An amendment will i n general have prospective effect only, unless its language indicates that it should receive a contrary interpretation.”).31 fide factor other than sex” or “status” to “be job

- related with respect to 1 the position in question

. ” 94 As we have expl ained, the EPA’s “factor 2 other than sex” defense imposes no such requirement. By contrast, 3

u nder New York Labor Law § 194(1), to establish the “factor other 4 than sex” or “status” defense, a defendant must prove that the pay 5 disparity in question results fr om a differential based on a job

- related 6
factor. 7

The District Court evaluated Eisenhauer’s EPA and § 194(1) 8
claims “under the same standard.” 95 Until January 2016
, this approach 9 may have been the proper one. 96 Since at least January 2016, however, 10
the relevant standards have differed at least because § 194(1) has 11
include d a job

- relatedness requirement. Neither Eisenhauer nor the 12 Culinary Institute identified or acknowledged this difference before 13
the District Court

. 97 The Dis trict Court thus understandably 14

94 N.Y. Lab. Law § 194(1) (2016) (emphasis added) (effective until Oct. 8, 2019); i d

. § 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, 3 0 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 neverthel ess 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 nece ssary 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 overlooked it. Nonetheless, we hold that the District Court did not 1
consider the divergent requirements imposed by the EPA and New 2 York Labor Law § 194(1) when assessing Eisenhauer’s claims and the 3 Culinary Institute’s affirmative defense

. T he District Court should 4
have assess ed Eisenhauer’s § 194(1) claim as altogether distinct from 5
her EPA one. 6

We therefore vacate the order granting summary judgment as 7

to Eisenhauer’s § 194(1) claim and remand the cause for the Distri ct 8
Court to decide whether to invoke its discretion to exercise 9 supplemental jurisdiction over that state

- law claim

. 98 If it decides to 10
exercise its supplemental jurisdiction, it must assess Eisenhauer’s 11 § 194(1) claim anew. In doing so , it must consider whether 12 (1) Eisenhauer established a prima facie case under § 194(1) 99 and 13 (2) the Culinary Institute showed that there is no “genuine factual 14 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 I V . CONCLUSION 1

To summarize , we hold as follows : 2

(1) Un der the Equal Pay Act, 29 U.S.C. § 206(d), to establish a 3 “factor other than sex” defense, a defendant must prove 4 only that the pay disparity in question results from a 5 differential based on any factor except for sex. 6

7 (2) The defendant showed that there is no genuine factual 8 dispute that its sex

- neutral compensation plan

— which 9 incorporates a collective bargaining agreement

— is a “factor 10
other than sex” that justifies the pay disparity between the 11 plaintiff and her male colleague. 12

(3) Under N ew York Lab or Law § 194(1) , to establish the “factor 13 other than sex” or “status” defense, a defendant must prove 14
that the pay disparity in question results from a differentia l 15 based on a job

- related factor. 16

(4) The District Court did not consider the divergent 17 requirements imposed by the EPA and § 194(1) when 18 assessing the claims and affirmative defense presented

. 19

For the foregoing reasons
, we AFFIRM IN PART insofar as the 20 District Court granted summary judgment for the defendant on the 21
EPA claim. We VACATE IN PART and REMAND insofar as the 22 District Court granted summary judgment for the defendant on the 23 § 194(1) claim. 241 D EBRA A NN L IVINGSTON , 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)
, t he 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 prec edents 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) (qu oting 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 . . . wa s qu i te 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 colleague s of the oppos it e 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 crea tes 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 19 6. 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 omit s 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 b roader 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
, O XFORD E NGLISH D ICTIONARY (3d ed. 2004). Thus, to understand the reach of th e 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 the se three specific defenses derives further suppor t 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 .” A NTONIN S C ALIA & B RYAN A. G ARNER , R EADING L AW :
T HE I NTERPRETATION OF L EGAL T EXTS 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 any4 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 exception s ? Seniority rewards an employee for her “height en ed 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
allow s 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 app lication 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 1 8 (quoting Corning Glass Works , 417 U.S. at 204). But t he canon applies precisely “when a drafter has tacked on a catchall phrase at the end of an enumeration of specifics.” S CALIA & G ARNER , 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 g eneris 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 cons truction 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 Lati n 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.” W ILLIAM N. E SKRIDGE J R

. , I NTERPRETING L AW : A P RIMER

ON H OW TO R EAD S TATUTES AN D THE C ONSTITUTION 77 (2016).5 the factor

- other

- than

- sex def ense only when [it is] based on legitimate business

related 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 c an postulate adopting a narrower constru ction of the statute’s language, i t 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.” E SKRIDGE , 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 ot her 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 jo b

related 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 circu mstances, 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 o ther than sex” defense, see Corning G lass , 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 5 25)), 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 a bility; 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 job

related 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 neithe r 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 he r 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, thi s 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 opportunit ies 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 across

the

- board raises, t hese salary enhancements were substantial: Eisenhauer earned7 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

rega rd, 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 qua lifications 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 depend ed on the attainment of certain objective criteria

— namely, promotions or academic degrees

— that the CIA used to identify those instructor s 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 clai m. See Hein v. Oregon Coll. of Educ. , 718 F.2d 910, 920 (9th Cir. 1983) (“[S]alary differentials based8 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 othe r 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 1 6 n. 48 (quoting Aldrich , 963 F.2d at 525) . This conclusion, the majority argues, i s demanded by the “unambiguous” text of the

statute. Id. at 1 5

. I am un convinced. 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 tha t an employer could not rely on its use of a “facially neutral civil service examination and classification system [merely] because it wa s 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. Jim9 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 adop ted 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 def ense must do so with an eye towards “avoid[ing] ‘loopholes’ that would sanction sex

- based pay discrimination.” Majority at 16 n. 4 8 (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 impermissibl e factors

— noting however that the “list is not necessarily exhaustive.” Id. Thus, h aving 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 sex

based pay discrimination.” Majority at 16 n. 4 8 . In contrast, the Aldrich test
identifies a positive characteristic of the system that the employer must prove

— namel y 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

- than

sex defense akin to the specifically enumerated exceptions

— seniority, merit, and production

— which similarly identify the attributes of the challenge d 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, t he majority breaks with our precedent and adopts a seemingly broader reading of the EPA’s fourth a ffirmative defense that is out of step with many of our sister circuits . It does so without clear support from the statute’s text
,

a nd it does so unnecessarily

— as I have explained
, the present case fits neatly into the scope of the factor

- other

- than

- sex d efense even narrowly construed. Accordingly, as to the disposition of Eisenhauer’s EPA claim, I respectfully concur only in the judgment.