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 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.

2 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 Plaintiff- 12 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