Eisenhauer v. Culinary Inst. of Am.

84 F.4th 507

Anita EISENHAUER, Plaintiff-Appellant, v. CULINARY INSTITUTE OF AMERICA, Defendant-Appellee.

No. 21-2919-cv

August Term 2022

United States Court of Appeals, Second Circuit

Argued: January 26, 2023

Decided: October 17, 2023

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

Steven M. Warshawsky, The Warshawsky Law Firm, Mount Kisco, N.Y., for Plaintiff-Appellant.

Rebecca M. McCloskey (Greg Riolo, on the brief), Jackson Lewis P.C., White Plains, N.Y., for Defendant-Appellee.

James Driscoll-MacEachron (Christopher Lage, Deputy General Counsel; Jennifer S. Goldstein, Associate General Counsel; Elizabeth E. Theran, Assistant General Counsel; Julie L. Gantz, Attorney, on the brief), Equal Employment Opportunity Commission, Washington, D.C., for Amicus Curiae U.S. Equal Employment Opportunity Commission.

Before: Livingston, Chief Judge, Leval, and Cabranes, Circuit Judges.

Chief Judge Livingston concurs in the judgment in part and files a separate opinion.

José A. Cabranes, Circuit Judge:

This case presents the questions of what a defendant must prove 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 and New York Labor Law § 194(1).² Plaintiff Anita Eisenhauer alleges that defendant Culinary Institute of America violated these equal-pay laws by compensating her less than a male colleague. The Culinary Institute responds that a "factor other than sex"—its sex-neutral compensation plan, which incorporates a collective bargaining agreement ("CBA")—justifies the pay disparity. Eisenhauer argues that the compensation plan cannot qualify as a "factor other than sex" because it creates a pay disparity unconnected to differences between her job and her colleague's job.

Eisenhauer's position that a "factor other than sex" must be job related is incorrect as to the EPA. The plain meaning of the EPA indicates the opposite. We hold that to establish the EPA's "factor other than sex" defense, a defendant must prove only that the pay disparity in question results from a differential based on any factor except for sex.³ But Eisenhauer's position is correct as to New York Labor Law § 194(1). A recent amendment to § 194(1) explicitly added a job-relatedness requirement. We thus hold that to establish § 194(1)'s "factor other than sex" or "status" defense, a defendant must prove that the pay disparity in question results from a differential based on a job-related factor. The District Court did not consider the divergent requirements imposed by the EPA and § 194(1) when assessing Eisenhauer's claims and the Culinary Institute's defense.

Accordingly, we AFFIRM IN PART insofar as the United States District Court for the Southern District of New York (Paul E. Davison, Magistrate Judge) granted summary judgment for the defendant on the EPA claim. We VACATE IN PART and REMAND insofar as the District Court granted summary judgment for the defendant on the § 194(1) claim.⁴

I. BACKGROUND

A. Factual Background

Anita Eisenhauer, a female professor at the Culinary Institute, alleges that she is a victim of pay discrimination in violation of the EPA and New York Labor Law § 194(1). Since 2017, the Culinary Institute—a private, non-profit college and culinary school—has paid Eisenhauer a lower salary than it has paid Robert Perillo, a male professor carrying a similar course load.⁵ In 2019, for example, Eisenhauer's salary was $111,263, while Perillo's was $118,080.

The Culinary Institute pays Eisenhauer and Perillo according to the sex-neutral terms of a CBA and employee handbook (together, "compensation plan").⁶ The compensation plan requires fixed pay increases triggered by time, promotion, and degree completion. It does not provide for "equity" adjustments.⁷ Each year, in accordance with the compensation plan, all faculty members receive the same percentage increase in their salaries. As a result, the pay disparity between Eisenhauer and Perillo continues to grow.

The pay disparity between Eisenhauer and Perillo exists because their salaries differed when they were hired and have formulaically increased over time. When the Culinary Institute hired Eisenhauer and Perillo as learning instructors—at starting salaries of $50,000 in 2002 and $70,000 in 2008, respectively—they had different experience and education levels. Eisenhauer had fifteen years of culinary experience and had served as the executive chef in two New York City restaurants. Perillo had twenty-three years of culinary experience, previous teaching experience, and an associate's degree. He had also received higher scores on the cooking- and lecture-demonstration components of his job application. Eisenhauer does not contend that her starting salary was the product of sex-based pay discrimination.

Over the years, both Eisenhauer and Perillo received promotions and attained further education. Each earned the titles of assistant professor; associate professor; and, ultimately, full professor—she in 2013 and he in 2017. Along the way, Eisenhauer and Perillo also received their bachelor's and master's degrees—she in 2009 and 2016, and he in 2012 and 2015. Each of these achievements prompted a fixed-dollar increase in compensation.⁸ The amounts of the increases differed somewhat because the precise raises required by the compensation plan changed over time. For example, Eisenhauer's salary increased by $4,000 upon her promotion to assistant professor in 2008, while Perillo's rose by $4,410 upon his promotion in 2016.

B. Procedural Background

Eisenhauer filed suit against the Culinary Institute on November 26, 2019, alleging sex-based pay discrimination in violation of both federal and state law: the EPA, 29 U.S.C. § 206(d), and New York's equal-pay law, New York Labor Law § 194(1). The District Court evaluated her federal- and state-law claims "under the same standard"⁹ and granted summary judgment for the Culinary Institute on November 3, 2021.¹⁰ It concluded, as a matter of law, that (1) although Eisenhauer had established a prima facie case of sex-based pay discrimination, (2) the Culinary Institute had justified the pay disparity with its compensation plan, a "factor other than sex" that (3) Eisenhauer failed to show was a pretext for discrimination. This appeal followed.¹¹

II. STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 56(a), "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."¹² A dispute as to any "material fact is genuine 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.' "¹³ We review de novo a district court's order granting summary judgment.¹⁴ In conducting our review, we must resolve all ambiguities and draw all inferences in favor the nonmoving party.¹⁵

III. DISCUSSION

We consider in turn the requirements for establishing affirmative defenses to claims under the EPA, 29 U.S.C. § 206(d), and New York Labor Law § 194(1). As to the EPA, we hold that to establish a "factor other than sex" defense, a defendant must prove that the pay disparity in question results from a differential based on any factor except for sex. As to New York Labor Law § 194(1), we hold that to establish a "factor other than sex" or "status" defense, a defendant must prove that the pay disparity in question results from a differential based on a job-related factor.

A. The Equal Pay Act's "Factor Other Than Sex" Defense

1. 29 U.S.C. § 206(d)(1)

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

[n]o employer . . . shall discriminate . . . between employees on the basis of sex by paying wages to employees . . . at a rate less than the rate at which [it] pays wages to employees of the opposite sex . . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.¹⁶

It also sets forth four exceptions to this prohibition, for pay disparities resulting from "(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."¹⁷ Each exception operates as an affirmative defense.¹⁸ The meaning of the fourth exception—"a differential based on any other factor other than sex," which is often truncated to "factor other than sex"—is the focus of our inquiry.

2. Job-Classification Systems Under Aldrich v. Randolph Central School District

Arguing that a "factor other than sex" must be job related, Eisenhauer relies on Aldrich v. Randolph Central School District, decided more than thirty years ago.¹⁹ There, we faced the novel question of the circumstances under which a job-classification system qualifies as a "factor other than sex."²⁰ We held that a facially sex-neutral job-classification system alone is insufficient to constitute a "factor other than sex," citing concern over potential pretexts for discrimination.²¹

The defendant in Aldrich had sought to justify the pay disparity between the plaintiff, a female "cleaner," and two male "custodians" by invoking its sex-neutral job-classification system.²² The system classified as "custodians" those required to take a civil-service examination; "cleaners" faced no such requirement, and the defendant paid them less.²³ We rejected the invocation of a sex-neutral job-classification system "without more," observing that

Congress intended for a job classification system to serve as a factor-other-than-sex defense to sex-based wage discrimination claims only when the employer proves that the job classification system resulting in differential pay is rooted in legitimate business-related differences in work responsibilities and qualifications for the particular positions at issue.²⁴

Eisenhauer draws on this observation to argue that the Culinary...