Supreme Court, Dutchess County, June 27, 2025

OPINION OF THE COURT

Christi J. Acker, J.

At the Culinary Institute of America in Hyde Park, New York, plaintiff Anita Eisenhauer smashed ceilings as a professor in the culinary arts department. She was the first woman to lead a Culinary public restaurant, the first to serve on the faculty council and the first to chair it. Yet since 2017, her annual salary has been $7,000.00 lower than a male colleague doing identical work under identical conditions, with identical faculty rank, identical academic degrees from the same schools, {**88 Misc3d 820}and shorter tenure at the Culinary and in rank. In this first-impression case, Eisenhauer challenges her lower pay under Labor Law § 194 (1), New York's pay-equality law.

Unequal pay for equivalent work has long vexed policymakers in their efforts to balance worker rights with employers' legitimate business judgment. The 2011 median New York wage for women was 83 cents on the dollar compared to men for the same work (see Konkur v Utica Academy of Science Charter Sch., 38 NY3d 38, 51 n 4 [2022, Rivera, J., dissenting], citing Ariane Hegewisch et al., Institute for Women's Policy Research, The Gender Wage Gap in New York State and Its Solutions [2011], available at https://iwpr.org/wp-content/uploads/2020/12/C390.pdf [accessed June 16, 2025]). By 2015, on average New York men earned $8,275.00 more than women for the same work (see Senate Introducer's Mem in Support, Bill Jacket, L [*2]2015, ch 362). By 2023, New York's gender pay gap for professionals with graduate degrees was 22% (see New York State Comptroller Thomas P. DiNapoli, Economic and Policy Insights: Women and Persistent Pay Gaps in New York [2025], available at https://www.osc.ny.gov/files/reports/pdf/2025-gender-wage-gap.pdf [accessed June 16, 2025]).

Pay-equality statutes federally and in states nationwide seek to close this pay gap. They generally require that when an employee claims a pay gap relative to a differently gendered colleague for equal or substantially similar work in the same establishment, the employer must show a legitimate nondiscriminatory reason. An employer's facially neutral pay system based on seniority, merit or productivity can suffice if the employer shows that its actual consideration of a legitimate differential in that system caused the pay gap. Alternatively, the employer can show that the pay gap arose from some other neutral factor, subject to other requirements.

For decades, the Federal Equal Pay Act (FEPA) (29 USC § 206 [d]) and New York's Labor Law § 194 (1) similarly described those requirements: a pay-inequality defendant had to show that the differential stems from "any other factor other than sex" (29 USC § 206 [d] [1] [iv]; Labor Law former § 194 [1] [d]). In 2015, however, the Achieving Pay Equity Act (APEA) required New York employers to justify a pay gap based on a "bona fide factor" such as "education, training, or experience," and show that the "factor" is "job-related with respect to the position in question" and "consistent with business necessity" having a "manifest relationship to the employment in question" {**88 Misc3d 821}(L 2015, ch 362, § 1, adding Labor Law former § 194 [1] [d] [ii]; [2]).

Perhaps fittingly for a ceiling smasher, Eisenhauer's case is unprecedented in three ways. First, to date no reported New York case squarely tested if Labor Law § 194 (1) invites a sole higher-salaried comparator instead of a comparator group to establish a pay gap. Second, this case is the first to implicate the APEA's job-relatedness standard to defend a pay gap. Third, this case's unusual collective bargaining agreement (CBA) is novel for pay-gap cases nationally. At issue is whether a CBA, under which an employer rates new hires based on experience and a demonstration assessment, then pays correspondingly different starting salaries within the CBA's hiring range, satisfies the job-relatedness requirement for pay gaps arising years or even decades later in promotional positions whose salaries depend on those initially disparate hiring salaries.

The Culinary asserts that the APEA asks for proof that an employer pays a woman less than a man because of sex, and that the statute merely codified past decisional guidance (see defendant's mem [NY St Cts Elec Filing (NYSCEF) Doc No. 36] at 14). From these premises, the Culinary argues that a sole comparator never can prove a gendered pay gap and that a facially neutral CBA setting incumbent salaries by computation satisfies the APEA job-relatedness test to explain resulting pay gaps. Because the CBA sets post-hire salaries by formula, the Culinary insists that it exercised no discretion much less with gender animus, and thus cannot bear pay-gap liability. "Pay differentials exist at the [Culinary] today because of starting salaries based on experience, background and education at the time of hire—not based on sex" (id. at 16).

Be that as it may, however, neither FEPA nor Labor Law § 194 (1) stakes a pay-gap claim on employer animus, and good will does not defend one. Labor Law § 194 (1), like FEPA, is a strict liability statute under which intent is irrelevant. Neither did the APEA merely codify then-existing common law. As the Second Circuit noted in Eisenhauer's federal case, the APEA's "divergent requirements" require a correspondingly different analysis under New York law (Eisenhauer v Culinary Inst. of Am., 84 F4th 507, 526 [2d Cir 2023]).

Based on the text and history of Labor Law § 194 (1), and consistent with the weight of FEPA authority, this court holds that an employee can state a Labor Law § 194 (1) claim with {**88 Misc3d 822}one higher-paid comparator, subject to the statute's other requirements. In defense, a neutral [*3]factor can establish a sufficient job-related reason for a pay gap if the employer shows that (1) the employer assessed and applied the factor to the "position" in which the pay-gap claim arises; (2) the employer actually considered the factor in paying the challenged salary; and (3) the factor is "consistent with business necessity" having "a manifest relationship to the employment in question" (Labor Law § 194 [1] [iv] [B]; [2] [a]). Consistent with federal law that shaped the APEA, this court also holds that the business necessity test further obliges the employer to show that its explanatory factor is (1) essential to the safety or efficiency of its business; (2) sufficiently important to justify the pay gap; and (3) so effective in achieving the proffered business interest that no other practice averting the pay gap can achieve it as well or better.

Eisenhauer's lower salary than her male comparator since 2017 for the same position and work states a Labor Law § 194 (1) claim for unlawful pay inequality, and obliges the Culinary to rebut that showing and/or establish its neutral-factor defense. The Culinary raises no triable issue of fact to rebut the sufficiency of Eisenhauer's comparator. The Culinary's retort about mere pay diversity across Eisenhauer's department—without satisfying the Labor Law § 194 (1) factors for work comparability—fails as a matter of law to establish an alternative relevant basis for pay comparison. It is unlikely that the Culinary could make that showing given the Culinary's concession that Eisenhauer and her comparator are remarkably equivalent in every relevant way.

Instead, the Culinary argues that the CBA's promotional pay levels for Eisenhauer and her comparator, based on their disparate hiring salaries, itself satisfied the job-relatedness test. Not so. As will be discussed further herein, because the Culinary did not apply neutral job-related metrics to the promotional position in which the pay-gap claim arose, the CBA itself cannot be a "job-related" reason "with respect to the position in question" for the pay gap. The Culinary also fails to show that a CBA can contract around Labor Law § 194, or that the CBA's continuation of initial pay disparities satisfies the business necessity test. As such, the Culinary's neutral-factor defense fails, and its summary judgment motion must be denied. As the Culinary raised no triable issue of fact to rebut Eisenhauer's showing, her summary judgment motion must be granted.

The court recognizes this first-impression action's potential implications for civil rights and employment law, shaping how New York law defines and responds to pay inequality, and how employers and unions negotiate and apply CBAs. Such impacts could reach beyond gender because the 2019 Legislature further amended Labor Law § 194 to govern—on the same terms as gender—pay disparities affecting one or more employees who belong to any of an array of protected classes including "age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, or domestic violence victim status" (Labor Law § 194 [2] [b]).^FN1

Expansively impactful or not, the weighty but limited judicial task is as it always is where statutes are concerned: first and foremost, to interpret and apply statutes faithfully, as the policymaking branches enacted and intended them, without substituting judicial preference for the clear and considered purpose to which statutes give voice and effect. In this case before this [*4]court, the APEA is clear as is its intent—especially given its long history relative to FEPA. As shown below, 1960s lawmakers first redirected New York's law toward FEPA equivalency, then in the 2010s set New York's own course with higher standards to defend pay gaps. Federalism favors New York independently construing New York's own statutes—particularly as to these first-impression matters for which New York law sets higher standards than federal law.

As can occur with much social policy legislation, the sole-comparator standard to state a Labor Law § 194 (1) claim, and the APEA's heightened burden to defend one, may imprecisely shift the balance between employee equity and employer prerogative. As some courts noted under FEPA, a sole-comparator standard may risk strategic cherry-picking of comparators with high salaries, a spike in pay-gap suits and a feedback loop of upward pressure on salaries. In turn, the APEA's heightened burden on employers might wield critique of pay practices lacking any facial suggestion of animus or moral fault. By enacting Labor Law § 194 (1) and particularly its 2015 and 2019 amendments, the Legislature chose those policy risks over prior New {**88 Misc3d 824}York statutes that, in its view, did not best serve New York's "equal pay for equal work" policy. Absent a constitutional challenge to a statute, the Judiciary's proper place in the separation of powers requires deference to the Legislature's policy-design prerogatives. As such, this court's first fidelity must be to apply Labor Law § 194 (1) as written, with its higher standard than FEPA to defend pay gaps affecting protected classes, trusting our tripartite system of government to confirm or modify the implications in their respective powers and considered judgment.

Background and Relevant Facts

Eisenhauer's pay-inequality claim began in the U.S. District Court in 2019. Her federal complaint charged that her substantially lower annual salary since 2017 relative to Robert Perillo, a male faculty colleague at the Culinary, violated both FEPA and Labor Law § 194 (1).

As the District Court (Davison, M.J.)^FN2 narrated, the Culinary and Eisenhauer's faculty union negotiated a series of CBAs that applied continuously from 2002 when the Culinary first hired Eisenhauer at the hiring rank of lecturing instructor, to the then-current agreement effective until May 31, 2021 (see Eisenhauer v Culinary Inst. of Am., 2021 WL 5112625, *1, 2021 US Dist LEXIS 212822, *2-3 [SD NY, Nov. 3, 2021, 19 Civ 10933 (PED)]).^FN3 These agreements set hiring-salary ranges for faculty based on experience and pre-hiring demonstrations of cooking and teaching. Under the CBAs and Faculty Handbook, the Culinary paid all post-hire salaries by formula based on hiring salaries. Culinary provost Mark Erickson testified that Culinary pay policy is "formulaic. It's a combination of what [faculty] starting compensation is and then the adjustments outlined in . . . the [CBA]" (Erickson tr [NYSCEF Doc No. 65] at 36). Annual percent-based cost-of-living adjustments do not depend on faculty seniority, teaching loads or assignments, cooking or teaching quality, committee service or leadership, student mentoring or advising, publishing, professional conference participation, awards, service commendations or subjective performance ratings (see id. at 28-30, 186-187). The only other [*5]adjustments are for faculty promotion, teaching overloads,^FN4 and fixed-dollar increases for earning academic degrees or credentials (see id. at 37; Faculty Handbook [NYSCEF Doc No. 42] at 10).^FN5 He confirmed that no CBA rule ensures pay proportionality among faculty with equal rank (see Erickson tr at 42-43); and that Eisenhauer and Perillo perform their roles under similar working conditions, from the same kitchen, in the same department, with the same specializations, and in roles requiring substantially equivalent skill, effort and responsibility (see id. at 176-177, 184-185).

The Culinary has unfettered discretion whether to promote faculty to a higher rank (see CBA [NYSCEF Doc No. 41] at 15 [art XI, § 5]). The promotional process begins by faculty application based on "a portfolio establishing [her or his] qualifications and accomplishments in accordance with the criteria established and updated as necessary by the [Culinary]" (id.). A Rank and Promotion Committee (RPC) evaluates the applications and proposes dispositions (see id.). The Culinary adduces a multipage rubric of promotion metrics for each rank, with successively higher benchmarks for teaching experience, curriculum development, professional development and institutional leadership (see NYSCEF Doc No. 44). The record does not include promotion portfolios for Eisenhauer or Perillo, or records of the RPC's or the Culinary's consideration of them.

Eisenhauer achieved promotional ranks of assistant, associate and full professor before Perillo, befitting her earlier start at the Culinary. Eisenhauer also has more Culinary seniority both generally and as full professor, which she reached in 2013 compared to 2017 for Perillo. The two also had the same academic trajectory: they earned from the same schools the same undergraduate degrees and the same master's degrees with the same specializations. As full professors, they teach the same courses, fill in for each other and have much the same duties.

The District Court tracked Eisenhauer's salary history at the Culinary from 2002, when as lecturing instructor she received an annual hiring-rate salary of $50,000.00, to 2013 when she became full professor at an annual salary of $92,030.37, to 2016 when as full professor with an earned master's degree she received $101,329.44, to 2020 when the Culinary's across-the-board percentage increases her annual salary to $114,879.64 (see Eisenhauer, 2021 WL 5112625, *1-2, 2021 US Dist LEXIS 212822, *3-4). The District Court similarly tracked Perillo's salary history from when he began at the Culinary in 2008 as lecturing instructor at a hiring-rate of $70,000.00 (Eisenhauer, 2021 WL 5112625, *2, 2021 US Dist LEXIS 212822, *4)—some $6,000.00 more than Eisenhauer's starting salary in the lecturing instructor rank, adjusted for intervening across-the-board adjustments (see Eisenhauer, 84 F4th at 530 [Livingston, Ch. J., concurring in part]; see also defendant's mem at 19 n 6). The District Court found that, solely due to their respective hiring salaries, Perillo's annual salary rose above Eisenhauer's as soon as he became full professor in [*6]2017. He then earned $111,032.99—nearly $7,000.00 more than Eisenhauer for the same rank, duties and working conditions (see Eisenhauer, 2021 WL 5112625, *2, 2021 US Dist LEXIS 212822, *5-6). For the 2020-2021 academic year, Perillo's annual salary was $121,917.66 compared to Eisenhauer's $114,879.64—a greater than $7,000.00 pay disparity—without material change in job duties or working conditions (see Eisenhauer, 2021 WL 5112625, *2, 2021 US Dist LEXIS 212822, *6).

Eisenhauer argued before the District Court, and argues here, that her pay gap is not based on seniority because she has longer tenure at the Culinary and in rank, or based on merit because all post-hire pay adjustments have been formulaic under the CBA. As such, her federal pleadings concluded, her pay gap relative to Perillo violated FEPA and Labor Law § 194 (1).

The District Court found that Eisenhauer established a gender-based pay gap for the same faculty rank and functionally same role and work conditions and rejected the Culinary's defense that Eisenhauer had no case merely because compliance with the CBA showed a lack of animus. The District Court narrated that FEPA "is a strict liability statute" that does not require proof of discriminatory intent (Eisenhauer, 2021 WL 5112625, *3, 2021 US Dist LEXIS 212822, *8, following Belfi v Prendergast, 191 F3d 129, 135 [2d Cir 1999]; see Ledbetter v Goodyear Tire & Rubber Co., 550 US 618, 640 [2007], superseded by Lilly Ledbetter Fair Pay Act of 2009, Pub L 111-2, 123 US Stat 5).

The District Court also credited that Perillo began at the Culinary with higher pre-hire experience and demonstration ratings than Eisenhauer. Absent proof that the ratings or their criteria were discriminatory, the District Court found that the Culinary legitimately set Perillo's starting salary higher within the 2008 hiring range than Eisenhauer's starting salary in the 2002 hiring range. In turn, the District Court continued, formulaic annual and promotional increases "locked" in Perillo's higher starting pay for all future purposes so that his 2017 promotion to full professor lifted his salary higher than Eisenhauer's salary for the same rank and work. The District Court held that, while this "lock" barred Eisenhauer from ever achieving pay parity with Perillo, the facially gender-neutral CBA sufficed as a nondiscriminatory basis "other than sex" to defend the pay gap under FEPA (see Eisenhauer, 2021 WL 5112625, *8, 2021 US Dist LEXIS 212822, *26, following Belfi, 191 F3d at 136; 29 USC § 206 [d] [1] [iv]). The District Court rejected Eisenhauer's reply that the CBA's formulaic pay system based on hiring rate is not job-related to promotional ranks and thus dismissed her claim under both FEPA and Labor Law § 194 (1), which the District Court "evaluated under the same standard" (Eisenhauer, 2021 WL 5112625, *3, 2021 US Dist LEXIS 212822, *7, quoting Moccio v Cornell Univ., 889 F Supp 2d 539, 570 [SD NY 2012], affd 526 Fed Appx 124 [2d Cir 2013]).

The Second Circuit affirmed the dismissal under FEPA, finding that no reasonable jury could conclude that her pay gap was "based on sex, intentionally or otherwise" (Eisenhauer, 84 F4th at 524 & n 88, following Ryduchowski v Port Auth. of N.Y. & N.J., 203 F3d 135, 142 [2d Cir 2000], cert denied 530 US 1276 [2000]; see 29 USC § 206 [d] [1] [iv]), but vacated as to the New York law claim. The Second Circuit observed that New York's APEA added defense mandates absent from FEPA (see id. at 524), and thus the District Court erred in analyzing the Culinary's defense of the New York law claim under FEPA's standard. Absent a viable federal claim, the Second Circuit invited the District Court on remand to terminate supplemental jurisdiction.

On remand, the District Court (Reznik, M.J.) accepted the Second Circuit's invitation. By dismissal order without prejudice on April 26, 2024, the District Court reasoned that "there is a dearth of caselaw . . . applying or interpreting" the APEA's job-relatedness requirement (Eisenhauer v Culinary Inst. of Am., 2024 WL 1833601, *4, 2024 US Dist LEXIS 78016, *10 [SD NY, Apr. 26, 2024, 19-cv-10933 (VR)]), and that federal-state comity favors New York interpreting its own law on matters of first impression (see Eisenhauer, 2024 WL 1833601, *3-4, 2024 US Dist LEXIS 78016, *9-11, following Chicago v International College of Surgeons, 522 US 156, 172-173 [1997]; Carnegie-Mellon Univ. v Cohill, [*7]484 US 343, 350 [1988]; Mine Workers v Gibbs, 383 US 715, 726 [1966]; see 28 USC § 1367 [c]).

This action followed. Eisenhauer's complaint dated July 18, 2024, restated the factual allegations and Labor Law § 194 (1) claim. The Culinary's answer and motion papers admit all relevant factual contentions about the CBAs, faculty positions, job duties, working conditions, salary trajectories and administrative practices. The Culinary's answer also asserted defenses principally including a legitimate job-related basis for the pay disparity.^FN6 The parties now bring reciprocal summary judgment motions. On this record, the relevant facts are as presented above.

Party Contentions

The Culinary concedes that Eisenhauer and Perillo "perform equal work on jobs requiring equal skill, effort and responsibility, which are performed under similar working conditions" (defendant's mem at 16 n 5). Nevertheless, the Culinary argues, the pay-gap claim must fail because the Culinary does not generally pay women less than men. Eisenhauer's lower salary, the Culinary insists, is due only to her lower pre-hire experience and pre-hire ratings for cooking and teaching which the Culinary argues are non-gender factors reflecting legitimate business-related interests.

The Culinary contends, contrary to the District Court's finding under FEPA, that Labor Law § 194 (1) requires comparison of a lower paid protected-class group to a higher paid group outside that protected class. Eisenhauer cannot meet this standard, the Culinary argues, with just Perillo as comparator. Neither, the Culinary continues, can she satisfy it given the Culinary's unchallenged proof that her salary is in the middle of the pay range for full professors—less than what some earn but more than others (see NYSCEF Doc No. 40 [salary chart]). Primarily based on FEPA cases and Wheeler v Citizens Telecom. Co. of N.Y., Inc. (18 AD3d 1002, 1005 [3d Dept 2005]), the Culinary argues that employee experience and background are legitimate factors other than gender to justify the pay gap between Eisenhauer and Perillo: "past experience in a position makes [an employee] better able to do it in the future" (Virgona v Tufenkian Import-Export Ventures, Inc., 2008 WL 4356219, *10, 2008 US Dist LEXIS 72139, *31-32 [SD NY, Sept. 23, 2008, No. 05 Civ 10856 (GEL)], quoting Engelmann v National Broadcasting Co., Inc., 1996 WL 76107, *10, 1996 US Dist LEXIS 1865, *27 [SD NY, Feb. 22, 1996, No. 94 CIV 5616 (MBM)]), and "more valuable" meriting higher pay (Eisenhauer, 84 F4th at 528-529 [Livingston, Ch. J., concurring in part]). Such, it concludes, is the case for Perillo, whom the Culinary deemed more experienced at his 2008 hire than Eisenhauer in 2002.

Opposing the Culinary's summary judgment motion and advancing her own, Eisenhauer posits that the text and history of Labor Law § 194 (1)-(2) show the Legislature's purpose to veer from FEPA rather than, as the Culinary argues, merely track it. By its terms, she argues, Labor Law § 194 (1) sets a pay gap's metric as one protected-class "employee" compared to another "employee"—in the singular, not group-to-group. As such, she concludes, Perillo's higher salary for the same job states a pay-gap case here no less than before the District Court.

Eisenhauer also offers that pre-APEA New York cases are inapplicable given the APEA job-relatedness requirement to defend a pay-gap claim. She argues that this job-relatedness test hails from the Title VII defense to a disparate-impact claim, and thus carries the common law of Title VII, which requires that the factor(s) an employer proffers to defend a pay disparity must [*8]relate directly to the performance of the position in question. The CBA cannot pass this test, she posits, because the Culinary's formulaic post-hire salaries do not depend on job performance or any other cognizable post-hire job-related criterion. It would be illogical and defy the APEA, she argues, for pre-hire qualifications to constitute legitimate job-related criteria in promotional positions for the duration of employment. The Culinary's asserted good faith, she insists, is no defense because Labor Law § 194 (1) is a strict liability statute for which intent is irrelevant.

The Culinary responds by conceding that Labor Law § 194 (1) does not require proof of purposeful discrimination, but argues that the statute requires at least some proof of causation that a pay gap is "because" of protected-class status. A sole-comparator standard, the Culinary continues, would confound this standard by allowing a female plaintiff "simply to select the best-compensated male to establish her case" and thereby "create the impression of . . . a violation where no widespread gender discrimination exists" (defendant's opp mem [NYSCEF Doc No. 72] at 5, quoting Lavin-McEleney v Marist Coll., 239 F3d 476, 482 [2d Cir 2001]). Rather, because starting pay reflected bona fide APEA factors of "education, training and experience" at the time of hire, the Culinary argues that it may rely on them for initial pay disparities rooted in them and continuing thereafter (see id. at 7). The Culinary insists that Eisenhauer's pay gap has nothing to do with gender—it would be exactly the same if she were male and Perillo female—and thus there can be no Labor Law § 194 (1) violation (see id. at 8-9). So too, the Culinary concludes, is the faculty union entitled to rely on dependable pay adjustments by formula rather than employer discretion.

Eisenhauer retorts that the Culinary functionally admits liability by conceding that her unequal pay arises only from pre-hire criteria applied to her 23 years ago and Perillo 17 years ago. "The fact that this [post-hire compensation system] penalizes men and women alike," she concludes, "is no excuse under the [APEA]" given the statute's plain language placing on the employer the burden to justify pay disparity based on the APEA's heightened requirement of a legitimate gender-neutral reason bearing directly on the current position—not on the position and compensation upon hire long ago (plaintiff's reply mem [NYSCEF Doc No. 81] at 5).

The Evolving Landscape of Statutory Pay Equality

Eisenhauer brought this action just days after the 80th anniversary of New York's first ban on gendered pay disparity. The 80-year evolution of New York's pay-gap law illuminates today's Labor Law § 194 (1) and the very different interpretations the parties would impress on it.

During World War II, the iconic "Rosie the Riveter" campaign urged women to fill war-support and manufacturing jobs that men in military service otherwise would have left unfilled (see Juliene James, The Equal Pay Act in the Courts: A De Facto White-Collar Exemption, 79 NYU L Rev 1873, 1873 [2004]). During that era, regulations of the National War Labor Board first required equal pay for "comparable work" (County of Washington v Gunther, 452 US 161, 185 n 1 [1981, Rehnquist, J., dissenting], citing 28 War Labor Reports 666 [1945]). The rapid societal change of women entering the workforce in large numbers inspired states to begin legislating pay equity between women and men.

Among the first states to answer that call was New York (see David Freeman Engstrom, "Not Merely There to Help the Men": Equal Pay Laws, Collective Rights, and the Making of the Modern Class Action, 70 Stan L Rev 1, 47-48 [2018]). On April 14, 1944, the New York Legislature banned sex discrimination in employee pay and authorized private enforcement actions: "No employee shall, because of sex, be subjected to any discrimination in the rate of her or his pay. A differential in pay between employees based on a factor or factors other than sex shall not constitute discrimination within the meaning of this section" (L 1944, ch 793, § 2, adding Labor Law former § 199-a). By its terms, this statute defined pay discrimination based on "because of sex" causation, contemplated a pay-disparity showing based on comparison between "employees" in the plural, and allowed salary differentials "based on" any factor "other than sex" without limitation (Labor Law former § 199-a). Decades of reforms would shift these statutory features in ways that pivotally shape current New York law.

Reform efforts began soon after enactment. The first case under New York's 1944 law, Corsi v Bentley Stores Corp. (NY City Ct, 1947, index No. 23060/1947), construed it to allow trivial differences between male and female employee job descriptions or performance to justify better pay for men (see Engstrom, 70 Stan L Rev at 53). "Every year thereafter, women's groups in New York advanced bills that sought to eliminate the law's catch-all exception" for factors other than sex that they blamed for Corsi (id.)—sometimes to pejorative critique (see Vernon Seigler, Equal Pay for Women Laws: Are They Desirable?, 5 Lab L J 663, 679 [1954]). Labor unions, in turn, pressed to relax Corsi's exacting identical-work mandate into a more forgiving "substantially similar work" metric (Engstrom, 70 Stan L Rev at 82; see 1956 NY Assembly Bill A958 § 4).

Meanwhile, on June 19, 1944, two months after New York's pay-equity law, Winifred Stanley of Buffalo introduced the first federal bill banning pay discrimination on the basis of sex (see HR Bill 5056 [Prohibiting Discrimination in Pay on Account of Sex], 78th Cong, 2d Sess, available at https://catalog.archives.gov/id/4397822 [accessed June 16, 2025]; History, Art & Archives, United States House of Representatives, Winifred Claire Stanley, available at https://history.house.gov/Records-and-Research/Featured-Content/Winifred-Stanley/ [accessed June 16, 2025]). When hearings began in 1945, Jane Todd of the New York State Department of Commerce testified to the early success of New York's 1944 statute in nudging employers to eliminate gendered pay disparities (see Hearings on S Bill 1178 [Equal Pay for Equal Work for Women] before a Subcommittee of the Comm on Educ & Labor, 79th Cong, 1st Sess [1945 US Senate hearing tr] at 155-160, available at https://babel.hathitrust.org/cgi/pt?id=uiug.30112002091897 [accessed June 16, 2025]). Todd narrated that New York "base[d] our statute on discrimination because of sex, because we thought that was a little easier as a starter. It was difficult to decide, until experience showed us, what was equality for comparable work, so we based it on discrimination because of sex" (id. at 156). Todd also urged further remedies:

"Even today women have to do a job just a little bit better than men in order either to hold their jobs or their fields of employment.

"Our New York State bill finally passed because women had for years been shouldering a heavy part of the industrial load. They had developed great skill in certain much needed fields and had become an indispensable part of the economic picture" (id. at 155-156).

It took nearly 20 years of hearings, 22 states enacting equal pay statutes, and President John F. Kennedy's "New Frontier" for FEPA to become law in 1963 (see Hearings on HR Bill 3861 [Equal Pay Act] before the Special Subcommittee on Labor of the Comm on Educ & Labor, 88th Cong, 1st Sess [1963 US House hearing tr] at 1, 33, available at https://www.govinfo.gov/content/pkg/CHRG-88hhrg97269/pdf/CHRG-88hhrg97269.pdf [accessed June 16, 2025]; Engstrom, 70 Stan L Rev at 48 & appendix; Aldrich v Randolph Cent. Sch. Dist., 963 F2d 520, 524 [2d Cir 1992], cert denied 506 US 965 [1992]).

FEPA declared that gender-based pay inequality "depresses wages and living standards," misallocates labor market resources, provokes labor disputes, burdens commerce and constitutes "an unfair method of competition" (Pub L 88-38, 77 US Stat 56, § 2 [a]). As a remedy, FEPA amended the Fair Labor Standards Act of 1938 (29 USC § 203 et seq.) to [*9]require that no employer engaged in interstate or foreign commerce 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, except where such payment is made pursuant 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" (Pub L 88-38, 77 US Stat 56, § 3, adding 29 USC § 206 [d] [1]).

FEPA thereby adopted the 1944 New York statute's key features of causation ("on the basis of sex"), collective comparison ("employees" in the plural) and expansive exceptions in defense ("factor or factors other than sex"). This FEPA language has remained unchanged ever since.

In 1965, the New York Legislature revised its 1944 statute generally to follow FEPA and its affirmative defenses, but made key changes apparently in response to advocacy that began soon after its 1944 statute became law. New York's 1965 statute read, in relevant part:

"No employee shall be paid a wage or salary at a rate less than the rate at which an employee of the opposite sex in the same establishment is paid for equal work on a job the performance of which requires equal skill, effort and responsibility, and which is performed under similar working conditions, except where payment is made pursuant to a differential based on:

"(a) a seniority system;

"(b) a merit system;

"(c) a system which measures earnings by quality or quantity of production; or

"(d) on any other factor other than sex" (L 1965, ch 354, § 2, amdg Labor Law former § 199-a).

This 1965 statute swept from New York's pay-equality law the original 1944 reference to "discrimination" as the actionable wrong of gendered pay disparity. Gone was "because of sex" causation to prove this wrong. Gone was any group of "employees" in the plural as a minimum comparison basis for this showing. Replacing them was a standard comparing the pay of one "employee" to "an employee of the opposite sex" doing the same work for the same employer under similar circumstances—without need to prove gender-based discriminatory intent.

For the next 50 years, nearly all New York pay-gap plaintiffs brought their cases in federal courts under FEPA with a supplemental state law claim. New York's pay-equality law lingered in desuetude, mainly disused and unremembered, other than a 1966 recodification (see L 1966, ch 548 [renumbering pay-equality statute to Labor Law § 194]).^FN7 Meanwhile, federal [*10]courts began construing FEPA as a strict liability statute (see Ryduchowski, 203 F3d at 142; Belfi, 191 F3d at 135; Pollis v New Sch. for Social Research, 132 F3d 115, 118 [2d Cir 1997]). Even if discriminatory intent was irrelevant under FEPA, it proved easier to legislate equal pay in theory than adjudicate it in practice. In Corning Glass Works v Brennan (417 US 188 [1974]), the U.S. Supreme Court imputed to Congress an intent to grant employers a degree of flexibility and thereby avoid aggrandizing judicial visions of employment relations above the businesses actually engaged in often multivariate considerations of employee pay. "Congress recognized early in the legislative process that the concept of equal pay for equal work was more readily stated in principle than reduced to statutory language which would be meaningful to employers and workable across the broad range of industries covered" (id. at 198; see Gunther, 452 US at 170-171; Fallon v State of Illinois, 882 F2d 1206, 1211 [7th Cir 1989]).

One nettlesome FEPA issue has been how plaintiffs prove pay gaps. In Heymann v Tetra Plastics Corp. (640 F2d 115 [8th Cir 1981]), the Eighth Circuit deemed a sole comparator potentially less reliable than average wage. While skeptical of a sole-comparator standard, Heymann did not rule it out: "[a] comparison to a specifically chosen employee should be scrutinized closely to determine its usefulness" (id. at 122). The following year, the Fourth Circuit affirmed that FEPA allows a pay-gap claim based on a sole comparator, especially if, as here, the plaintiff and comparator were promoted to equivalent positions without equivalent pay (see Equal Empl. Opportunity Commn. v Liggett & Myers, Inc., 690 F2d 1072, 1074 [4th Cir 1982]).^FN8 The Third Circuit also allows sole-comparator claims (see Stanziale v Jargowsky, 200 F3d 101 [3d Cir 2000]), as does the Fifth Circuit (see Weaver v Basic Energy Servs., L.P., 578 Fed Appx 449, 451 [5th Cir 2014] [FEPA plaintiff "must identify someone with circumstances 'nearly identical' to her own"]; King v University Healthcare Sys., L.C., 645 F3d 713 [5th Cir 2011]).

Conversely, the Ninth Circuit went its own way in Hein v Oregon Coll. of Educ. (718 F2d 910 [9th Cir 1983]), reasoning that FEPA "does not prohibit variations in wages; it prohibits discriminatory variations in wages. If it should turn out that [a female plaintiff] earns more than [some] males performing substantially equal work, it is axiomatic that [FEPA] does not afford her relief" (id. at 916). To avoid "manipulation" by strategic choice of comparator, Hein adopted the Heymann average-wage metric as a formal test for pay inequality, especially for academic employers.

"We believe that the proper test for establishing a prima facie case in a professional setting such as that of a college is whether the plaintiff is receiving lower wages than the average of wages paid to all employees of the opposite sex performing substantially equal work and similarly situated with respect to any other factors, such as seniority, that affect the wage scale" (id.).

Commentators criticized Hein as incompatible with FEPA's strict liability construct (see e.g. Mack A. Player et al., Employment Discrimination Law § 4.14 at 165 & n 236; 2 Charles A. Sullivan, Michael J. Zimmer & Richard F. Richards, Employment Discrimination at 115 [2d ed] [under Hein, "any given female may be the victim of discrimination as long as the employer is careful to keep her salary equal to the male average. Imagine a formal policy in the [*11]employer's personnel manual limiting women workers to the average of male workers"]).

In Brock v Georgia Southwestern Coll. (765 F2d 1026 [11th Cir 1985]), the Eleventh Circuit credited Hein's concern for cherry-picked comparators but still upheld a sole comparator under FEPA. Instead of a rigid test, Brock opted for procedural flexibility by inviting FEPA defendants to show that "an appropriate comparator is wrongly excluded from comparison with the plaintiff" (id. at 1033 n 10). "If [a] defendant feels that there are other equally appropriate comparators, it must bring them to the attention of the court in order for an accurate determination of [any] back pay" (id.). Three years later, the Eleventh Circuit again allowed a sole comparator (see Price v Lockheed Space Operations Co., 856 F2d 1503, 1505 [11th Cir 1988]).

In Eisenhauer's federal case, the Second Circuit narrated that the required comparison to establish a pay gap under FEPA remains an open issue (see Eisenhauer, 84 F4th at 523 n 83).^FN9 This uncertainty operated in the background when the 2015 Legislature enacted the APEA, which transformed the then-FEPA equivalent "any other factor other than sex" defense into

"a bona fide factor other than sex, such as education, training or experience. Such factor: (i) shall not be based upon or derived from a sex-based differential in compensation and (ii) shall be job-related with respect to the position in question and shall be consistent with business necessity. Such exception under this paragraph shall not apply when the employee demonstrates (A) that an employer uses a particular employment practice that causes a disparate impact on the basis of sex, (B) that an alternative employment practice exists that would serve the same business purpose and not produce such differential, and (C) that the employer has refused to adopt such alternative practice. . . .

" '[B]usiness necessity' shall be defined as a factor that bears a manifest relationship to the employment in question" (L 2015, ch 362, § 1, amdg Labor Law § 194 [1] [d]; [2]).

The 2015 Legislature narrated the APEA's intent to establish adjudicative criteria for "two employees whose rate of pay is being compared" (Senate Introducer's Mem in Support, Bill Jacket, L 2015, ch 362 at 5 [emphasis added]), and import the "business necessity" standard from Griggs v Duke Power Co. (401 US 424, 432 [1971]), a racial discrimination case under Title VII of the federal Civil [*12]Rights Act of 1964. While Title VII originally did not expressly apply to employment policies having disparate impact on a protected class, but rather only employment policies discriminating intentionally, Griggs read disparate impact into Title VII to "proscribe[ ] not only overt discrimination but also practices that are fair in form but discriminatory in operation" (id. at 431). To this end—and as a bulwark against "employment procedures or testing mechanisms that operate as 'built-in headwinds' for minority groups [that are] unrelated to measuring job capability" (id. at 432)—Griggs announced that an employer must prove "business necessity" based on "job performance" to defend a Title VII employment claim. Under Griggs, "[i]f an employment practice which operates to exclude [minorities] cannot be shown to be related to job performance, the practice is prohibited" (id. at 431). That showing, in turn, required the employer to show that the challenged practice has "a manifest relationship to the employment in question" (id. at 432; see Ricci v DeStefano, 557 US 557, 578 [2009]; Albemarle Paper Co. v Moody, 422 US 405, 425 [1975]). After Wards Cove Packing Co. v Atonio (490 US 642 [1989]) retreated from the Griggs disparate-impact analysis and "business necessity" test, Congress abrogated Wards Cove by codifying the Griggs standard into Title VII itself (see Pub L 102-166, 105 US Stat 1071). Under the federal Civil Rights Act of 1991, a Title VII defendant employer must prove that the practice allegedly causing disparate impact is "job related for the position in question and consistent with business necessity" (id., adding 42 USC § 2000e-2 [k] [1] [A] [i]).

The APEA imported this Title VII language, plus the Griggs "manifest relationship" test for "business necessity," into the Labor Law § 194 (1) neutral-factor defense, and narrated that "[e]xisting exemptions in the law [thereby are] tightened so that pay differentials are excused where the employer can show that the differential is truly caused by something other than sex and is related to job performance and consistent with business necessity" (Senate Introducer's Mem in Support, Bill Jacket, L 2015, ch 362 at 6). Critically, nothing in the APEA or its legislative narrative suggests that Labor Law § 194 (1) plaintiffs must establish disparate impact on the basis of gender. The APEA's heightened showing applied only to defendants, requiring them to establish a pay gap's causation by a "bona fide factor" other than sex, and then under the strict "manifest relationship" standard of a Title VII defense based on "business necessity."

Labor Law § 194 took its current form in 2019, when the Legislature expanded its reach beyond gender to other protected classes. The statute now reads, in relevant part, as follows:

"1. No employee with status within one or more protected class or classes shall be paid a wage at a rate less than the rate at which an employee without status within the same protected class or classes in the same establishment is paid for: (a) equal work on a job the performance of which requires equal skill, effort and responsibility, and which is performed under similar working conditions, or (b) substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions; except where payment is made pursuant to a differential based on:

"(i) a seniority system;

"(ii) a merit system;

"(iii) a system which measures earnings by quantity or quality of production; or

"(iv) a bona fide factor other than status within one or more protected class or classes, such as education, training, or experience. Such factor: (A) shall not be based upon or derived from a differential in compensation based on status within one or more protected class or classes and (B) shall be job-related with respect to the position in question and shall be consistent with business necessity. Such exception under this paragraph shall [*13]not apply when the employee demonstrates (1) that an employer uses a particular employment practice that causes a disparate impact on the basis of status within one or more protected class or classes, (2) that an alternative employment practice exists that would serve the same business purpose and not produce such differential, and (3) that the employer has refused to adopt such alternative practice.

"2. For the purpose of subdivision one of this section: (a) 'business necessity' shall be defined as a factor that bears a manifest relationship to the employment in question, and (b) 'protected class' shall include age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, or domestic violence victim status" (L 2019, ch 93, § 1, amdg Labor Law § 194).

Much as the APEA set a sole "employee" as the comparative basis to establish a gendered pay inequality, the 2019 Legislature memorialized its continuing intent to "prohibit pay differentials based on an individual's status within one or more protected class or classes" (Senate Introducer's Mem in Support, Bill Jacket, L 2019, ch 93 at 5 [emphasis added]).

By this step-by-step evolution, New York's 1944 ban on "discrimination" causing "differential in pay between employees . . . because of sex" became the current pay-gap ban, measured under a standard of one protected-class "employee" versus another "employee" outside the protected class. In turn, the forgiving defense of a "factor or factors other than sex," which New York's 1965 statute took from FEPA, became the 2015 APEA's heightened burden to show that a "bona fide factor" that is "job-related with respect to the position in question and . . . consistent with business necessity" bearing "a manifest relationship to the employment in question" explains the pay gap. These changes reflect generations of New York lawmakers first purposefully turning toward FEPA equivalency in 1965 and then, with equal resolve, away from FEPA when the 2015 Legislature deemed FEPA's catch-all defense to be too permissive. This evolution drives what today's Labor Law § 194 (1) must mean, and how it must apply here.

Analysis

A CPLR 3212 movant must tender evidentiary proof in admissible form sufficient to show that there remains no reasonably disputable triable issue of material fact such that judgment should be directed in its favor as a matter of law (see Giuffrida v Citibank Corp., 100 NY2d 72 [2003], citing Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Only upon the movant's sufficient prima facie showing does the burden shift to the respondent to rebut the showing (see id.; compare Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). If the respondent adduces record evidence creating any triable issue of material fact—giving the party adverse to the motion the benefit of every reasonable favorable inference—then summary judgment must be denied (see id.).

This court's primary consideration in construing Labor Law § 194 (1) must be "to discern and give effect to the Legislature's intention" (Anderson v Anderson, 37 NY3d 444, 452 [2021], quoting Rodriguez v City of New York, 31 NY3d 312, 317 [2018]; Matter of Avella v City of New York, 29 NY3d 425, 434 [2017], quoting Matter of Albany Law School v New York State Off. of Mental Retardation & Dev. Disabilities, 19 NY3d 106, 120 [2012]). A statute's plain language is the "best indicator of legislative intent" (Matter of Regina Metro. Co., LLC v New York State Div. of Hous. & Community Renewal, 35 NY3d 332, 352 [2020]; Lubonty v U.S. Bank N.A., 34 NY3d 250, 255 [2019]; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998]). Where statutory language is unambiguous, courts must "give effect to its plain meaning" (James B. [*14]Nutter & Co. v County of Saratoga, 39 NY3d 350, 355 [2023], quoting Kuzmich v 50 Murray St. Acquisition LLC, 34 NY3d 84, 91 [2019], cert denied 589 US 1136 [2020]; Avella, 29 NY3d at 434, quoting Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653, 660 [2006]; see Matter of Jun Wang v James, 40 NY3d 497, 503 [2023]; People ex rel. E.S. v Superintendent, Livingston Corr. Facility, 40 NY3d 230, 235 [2023]), "without resort to forced or unnatural interpretations" (Castro v United Container Mach. Group, 96 NY2d 398, 401 [2001]; Majewski, 91 NY2d at 583).

In honoring these mandates, courts cannot cherry-pick parts of statutes. Rather, courts must construe statutory text "in context and in a manner that harmonizes [its] related provisions and renders them compatible" (James B. Nutter & Co., 39 NY3d at 355, quoting Matter of Kosmider v Whitney, 34 NY3d 48, 55 [2019]; Regina Metro. Co., 35 NY3d at 352; Matter of M.B., 6 NY3d 437, 444 [2006] [collecting cases]). Because the Legislature intends "[a]ll parts of a statute . . . to be given effect," courts must construe statutes so that no "one part [is rendered] meaningless" (Wang, 40 NY3d at 503; Matter of Anonymous v Molik, 32 NY3d 30, 37 [2018]; Avella, 29 NY3d at 434, quoting Rocovich v Consolidated Edison Co., 78 NY2d 509, 515 [1991]; see DaimlerChrysler Corp., 7 NY3d at 662; Golden v Koch, 49 NY2d 690, 694 [1980]).

This mandate to construe statutes in context especially governs Labor Law § 194 (1) as part of an integrated statutory scheme. Courts must construe integrated statutes "as a whole, with its various sections considered together and with reference to each other" to vindicate their collective purpose and harmonize their legislative commands (Tax Equity Now NY LLC v City of New York, 42 NY3d 1, 15 [2024], quoting Matter of DCH Auto v Town of Mamaroneck, 38 NY3d 278, 296 [2022]; see Matter of Johnson v City of New York, 38 NY3d 431, 441 [2022]; Matter of Mancini v Office of Children & Family Servs., 32 NY3d 521 [2018]; Molik, 32 NY3d at 37). The Labor Law § 194 (1) pay-gap ban arises within the comprehensive scheme of Labor Law article 6 governing wages and enforcement. In turn, its amendatory APEA transformed the pre-APEA Labor Law § 194 into its own integrated statute stating New York's pay-equality policy along with related employee rights and employer limitations that, in the Legislature's view, nudge workplaces and the labor market toward pay equality (see L 2015, ch 362, adding Labor Law § 194 [3]-[4]). This court therefore must give full effect to the statutory scheme enfolding Labor Law § 194 (1), construing it harmoniously and with internal consistency to vindicate its objectives.

A further interpretive canon bears on Labor Law § 194 (1) given its remedial purpose. A statute is remedial if "designed to correct imperfections in the prior law, by giving relief to an aggrieved party" (Matter of Asman v Ambach, 64 NY2d 989, 991 [1985] [ellipsis and brackets omitted]; Mackoff v Bluemke-Mackoff, 222 AD3d 67, 71 [2d Dept 2023]; Matter of Mia S. [Michelle C.], 212 AD3d 17, 22 [2d Dept 2022], lv dismissed 39 NY3d 1118 [2023]; see Matter of Seelbach, 85 Misc 3d 497, 510-511 [Sup Ct, Dutchess County 2024]). Courts construe remedial statutes broadly, and their exceptions narrowly, to effectuate their remedial intent (see Makinen v City of New York, 30 NY3d 81, 88 [2017], quoting Matter of Scanlan v Buffalo Pub. School Sys., 90 NY2d 662, 676 [1997]; People v Brown, 25 NY3d 247, 251 [2015], quoting McKinney's Cons Laws of NY, Book 1, Statutes § 321; Asman, 64 NY2d at 990; Post v 120 E. End Ave. Corp., 62 NY2d 19, 24 [1984] [broad construction of remedial statute "to spread its beneficial effects as widely as possible"]).

Labor Law § 194 (1) is the quintessence of remedial legislation. By its terms, it bans covered pay gaps subject to a private right of action to recover the underpayment plus interest and reasonable attorney's fees—and, for willful violations, liquidated damages up to 300% of the underpayment (see Konkur, 38 NY3d at 44; Labor Law § 198 [1-a]). Also remedial has been each step of the statute's evolution. As noted, New York's original 1944 statute pioneered pay-[*15]equality rights to effectuate broad social change, encourage women into the workforce, and treat them equally to men for doing the same job. In view of ongoing advocacy and FEPA, the 1965 Legislature responded to the former and adopted the latter but with key changes that made a pay-gap claim easier to prove. The 2015 Legislature then made the statute's neutral-factor defense harder to prove, finding the prior statute too permissive for the remedial purpose to root out inequality. The 2015 Legislature added other protections against what it viewed as undue workplace and labor-market influences inhibiting wage transparency and equality. The 2019 Legislature then expanded the statute's reach to other protected classes.

This purposeful statutory evolution implicates further canons of construction concerning statutory amendments. "[T]he Legislature, by enacting an amendment of a statute changing the language thereof, is deemed to have intended a material change in the law" (Commonwealth of the N. Mariana Is. v Canadian Imperial Bank of Commerce, 21 NY3d 55, 61-62 [2013], quoting McKinney's Cons Laws of NY, Book 1, Statutes § 193; see 200 Claremont Ave. Hous. Dev. Fund Corp. v Estate of Lewis, 83 Misc 3d 9, 10 [App Term, 1st Dept 2024]). Conversely, the Legislature's failure "to include a matter within the scope of an act may be construed as an indication that its exclusion was intended" (Commonwealth of the N. Mariana Is., 21 NY3d at 62, quoting McKinney's Cons Laws of NY, Book 1, Statutes § 74). Put differently, the fact that the Legislature did not carry previous statutory language into a successor enactment strongly indicates the Legislature's deliberate declination to do so, thereby terminating the previous language (see Estate of Lewis, 83 Misc 3d at 10). As such, construction of Labor Law § 194 (1) must effectuate the Legislature's numerous and purposeful amendments terminating the New York statute's former FEPA equivalency.

Similarly, absent contrary legislative intent, "provisions of a statute that are unchanged by an amendment are generally 'continued in effect, with the same meaning' as prior to the amendment" (Matter of Estate of Youngjohn v Berry Plastics Corp., 36 NY3d 595, 604 [2021], quoting McKinney's Cons Laws of NY, Book 1, Statutes § 193, Comment at 359 [1971 ed]). Courts must assume that "the [L]egislature was aware of the state of the law and acted with that understanding" in amending a statute (People v Galindo, 38 NY3d 199, 205 [2022]; see Matter of Amorosi v South Colonie Ind. Cent. School Dist., 9 NY3d 367, 373 [2007]; Arbegast v Board of Educ. of S. New Berlin Cent. School, 65 NY2d 161, 169 [1985]). Courts also must assume that the Legislature intended to abrogate the common law "only to the extent that the clear import of the language used in the statute requires" (Simmons v Trans Express Inc., 37 NY3d 107, 114 [2021], quoting Arbegast, 65 NY2d at 169). This court therefore must impute to the Legislature, at the time it enacted the APEA, awareness of FEPA's unsettled issue of the minimal sufficient basis for pay comparison. Similarly, because the APEA's rewrite of the neutral-factor defense drew from Title VII, this court must assume the Legislature's knowledge of that defense's common law in that context.

Plain language, remedial purpose, amendatory evolution and decisional context each impels this court to find that a protected-class plaintiff can state a Labor Law § 194 (1) pay-gap claim based on her or his own salary relative to a sole comparator outside the protected class. Once the plaintiff establishes that the pay gap operates on sufficiently similar positions of the plaintiff and the comparator or comparators consistent with Labor Law § 194 (1) (a)-(b),^FN10 the [*16]burden shifts to the defendant to show that no pay disparity exists or to establish a defense to it.

These same principles impel this court to find that the neutral-factor defense of Labor Law § 194 (1) (iv) must show that the pay gap's reason is a class-neutral "bona fide factor" that is "job-related with respect to the position in question"—meaning "the position" in and for which the plaintiff alleges the pay disparity to operate—and that "bears a manifest relationship to the employment in question" (Labor Law § 194 [1] [iv] [B]; [2] [a]). To this inquiry, the absence of animus is irrelevant unless the claim further establishes disparate impact based on protected-class status (see Labor Law § 194 [1] [iv]). Otherwise, an employer's showing that it did not intend to discriminate only defends against liquidated damages under Labor Law § 198 (1-a). As each element of these showings raises novel issues under New York law, the court takes each in turn.

1. Pay-Disparity Comparison under Labor Law § 194 (1)

Given the language and history of Labor Law § 194 (1), a sole comparator suffices to state a pay-inequality claim under New York law. New York's 1965 law was crystal clear that "no [singular] employee shall be paid a wage or salary at a rate less than the rate at which an employee of the opposite sex in the same establishment is paid for equal work" (Labor Law former § 199-a [emphasis added]). Even as the 1965 Legislature took from FEPA its four defenses, to establish a pay gap in the first instance the Legislature changed FEPA's plural language of salaries paid "to employees of the opposite sex" (29 USC § 206 [d] [1] [emphasis added]) to a sole comparator "employee." Similarly, the 1965 Legislature changed FEPA's "equal work on jobs the performance of which requires equal skill, effort, and responsibility" (id. [emphasis added]) to "equal work on a job the performance of which requires equal skill, effort and responsibility" (Labor Law former § 199-a [emphasis added]). This court must credit these deviations as intentional and material (see Commonwealth of the N. Mariana Is., 21 NY3d at 61-62).

Thereafter, the 1966 Legislature's recodification of Labor Law article 6 preserved these differences, continuing to invite a pay-gap plaintiff to compare one's "employee" salary to the salary of a differently gendered "employee" on functionally the same "job." The 2015 APEA maintained these differences in rewriting the neutral-factor defense. This court must credit as intentional and material these repeated legislative choices to preserve the singular "job" and "employee" standards of Labor Law § 194 (1) (see Estate of Youngjohn, 36 NY3d at 604).

The APEA did more than merely preserve. The APEA's tightened neutral-factor defense requires that the "bona fide factor" giving rise to the challenged pay gap be "job-related with respect to the position in question" (Labor Law § 194 [1] [iv] [B] [emphasis added])—again in the singular. Had the Legislature intended pay-gap comparison based only on multiple employees, the Legislature easily could have said so. Like the 1965 Legislature before it, the 2015 Legislature did no such thing.^FN11 Contrastingly, where the APEA governed employees in groups, [*17]it did so plainly. For salary comparison purposes, the APEA required that "employees shall be deemed to work in the same establishment if the employees work for the same employer at workplaces" of specified geographic distribution (Labor Law § 194 [3] [emphasis added]). Similarly, the APEA generally exempted from its pay-publicity provisions human resource, managerial and other professionals having "access to the wage information of other employees" (Labor Law § 194 [4] [d] [emphasis added]). The APEA also treated employees collectively by implication. The APEA added a group-based restraint on the "bona fide factor" defense, which "shall not be based upon or derived from a differential in compensation based on status within one or more protected class or classes" (Labor Law § 194 [1] [iv] [A]). The APEA also withdrew disparate impact cases—which, by their nature, imply comparator groups—from the "bona fide factor" defense (Labor Law § 194 [1] [iv]). These APEA provisions trigger this court's duty to construe them with consistency where words are consistent, but credit each different word to vindicate their different meanings (see Sullivan v Stroop, 496 US 478, 484 [1990] ["identical words used in different parts of the same act are intended to have the same meaning"]).

Put simply, from New York's original 1944 pay-disparity law forward, the Legislature said what it meant and meant what it said. A Labor Law § 194 (1) plaintiff "employee" doing a "job" need offer but one comparator "employee" doing the same or substantially similar work in that "job" to state a pay-inequality claim. There is no other rational way to construe the statute's plain language, particularly in context and given the statute's purposeful step-by-step evolution.

This result accords with the statute's remedial character, which obliges this court to construe its prima facie claim provisions broadly and liberally, and exceptions and defenses narrowly and strictly. A sole-comparator standard does that. The contrary result would frustrate this purpose by burdening plaintiffs with a showing that nothing in the statute's text, history or intent seeks to place on them. This sole-comparator standard also aligns with sister states whose equal-pay statutes phrase them in the singular to allow sole comparators.^FN12 This court finds no [*18]support in any state's law for singular comparator language to require a comparator group.^FN13

The Culinary's contrary reliance on Manta v Hofstra Univ. (2024 NY Slip Op 33915[U] [Sup Ct, NY County 2024]), an unreported pay-gap case, is unavailing for three reasons. First, Manta's premise that Labor Law § 194 (1) claims proceed under FEPA's standards, even "[d]espite [the] difference" that the New York statute bears relative to FEPA (id. at *13-14), does not bear scrutiny for the above reasons. Second, Manta's conclusion that a pay-gap plaintiff "cannot make out a prima facie case simply by pointing out that she was paid less than certain male comparators in a vacuum without addressing 'any factors . . . that affect the wage scale' " (id. at *15, quoting Lavin-McEleney, 239 F3d at 481) failed to observe that federal circuits divide on that issue, and thus there was no clear federal authority for Manta to follow. Third, even on its own terms, Manta does not help the Culinary. Far from failing to address other factors "that affect the wage scale" as Manta required, Eisenhauer's comparability proof addressed them so well that the District Court confirmed her prima facie case and the Second Circuit proceeded on that basis. Even the Culinary concedes that Eisenhauer and Perillo are equivalent in role, tenure, job duties, working conditions and academic credentials. In any event, the Culinary's disclaimer of reliance on job performance and other post-hire factors moots any Manta concern about proper comparison here.

To be sure, this court notes concerns on both sides of the comparator issue. Much as commentators critiqued the Ninth Circuit's Hein test, the multiple-comparator metric that the Culinary advocates might invite some employers to manipulate salary practices to limit protected-class pay to the average salary of another group of comparators—or, under Hein's mathematics, the employer's average compensation across all similarly situated employees outside the protected class. Such a multi-comparator standard might frustrate rather than promote pay equality by countenancing two-tiered pay practices—one keyed to the labor market, [*19]and another for protected-class members who would have no pay-inequity claim despite lower pay than a similarly situated comparator so long as not too low.

The countervailing policy concern is much as Heymann and Hein both expressed it, and as the Culinary argues it. Under a sole-comparator standard, a Labor Law § 194 (1) plaintiff might choose only the highest paid potential comparator against which to benchmark her or his pay-inequity claim.^FN14 That stratagem, in turn, could invite plaintiffs to use the foothold of a Labor Law § 194 (1) claim to seek not pay equity but rather pay advantage beyond the statute's goal of rooting out pay gaps operating on one or more protected classes as such. The result could be a proliferation of pay-gap cases and inflationary pressure on wages.

Whatever their merit, these concerns implicate mainly policy design considerations for the Legislature, not statutory interpretation criteria for the Judiciary. In legislating social policy, statutes might well be over-inclusive or under-inclusive—either way, imprecise remedies for the conditions they seek to redress. Absent a constitutional challenge to a statute that in defense requires both a constitutionally cognizable governmental interest and a statute's close tailoring to that interest, the Legislature generally is free to decide the precision of its policy prescriptions and choose among imprecise alternatives to promote its intended policies (see People ex rel. Rivera v Superintendent, Woodbourne Corr. Facility, 40 NY3d 307, 320 [2023]). Because labor market complexities frustrate the task of perfectly legislating salary comparison metrics (see Gunther, 452 US at 170-171; Corning Glass, 417 US at 198), any pay-equity statute inherently risks setting that bar either "too high" (to some employer defendants) or "too low" (to some employee plaintiffs) relative to the goal of pay equality.^FN15

This court therefore must impute to the Legislature intent to make purposeful choices along pay equity's 80-year policy trajectory and deliberately choose a potentially over-inclusive APEA. This court particularly credits the Legislature with knowing, when it enacted the APEA, the common law then arising under FEPA including the circuit split as to sufficient comparator. Given this vagary of federal law and the APEA's higher standard relative to FEPA, it is reasonable to impute APEA intent to make New York law clear where federal law was not.^FN16

This court is left to the conclude that the Legislature intended for a sole comparator to state a Labor Law § 194 (1) claim. Especially because this construction advances the statute's pay-equality purpose, this court must respect this policy design and apply the law as written.

That said, New York law need not and does not turn a blind eye to concern that a plaintiff might choose an imperfect comparator. In response to a prima facie pay-disparity showing, a defendant employer may offer what it deems to be an equally or better fitting comparator or comparators consistent with the job-relatedness requirement. Such was the Eleventh Circuit's answer to its sole-comparator concern under FEPA (see Brock, 765 F2d at 1033 n 10), and now is a common approach in federal pay-disparity cases (see Susan M. Omilian & Jean P. Kamp, 1 Sex-Based Employment Discrimination § 7:6 [Oct. 2024] [defendants' "more favored view" post-Brock "has been to select a male comparator whose work history is most like the plaintiff's"]).

New York's familiar CPLR 3212 summary judgment standards invite exactly this kind of response and structure its necessary framework. A Labor Law § 194 (1) defendant—whether on its own summary judgment motion to establish prima facie entitlement to dismissal as a matter of law, or in opposition to a plaintiff's summary judgment motion—may dispute the pay-gap claim by offering one or more alternative comparators for whom there is no actionable pay gap, such that a reasonable trier of fact can conclude from the record that such alternative comparator(s) equally or better fit the plaintiff than the plaintiff's own proffered comparator(s).

As on other summary judgment motions, this showing varies with the procedural posture. A defendant movant cannot merely point to "gaps in the plaintiff's case" but "must affirmatively demonstrate the merit of its claim or defense" (Cooper v First In Queens, Inc., 229 AD3d 761, 763 [2d Dept 2024], quoting UB Distribs., LLC v S.K.I. Wholesale Beer Corp., 161 AD3d 1027, 1028 [2d Dept 2018]). This necessary showing "is governed by the allegations made by the plaintiff in the pleadings" (id., quoting Citibank, N.A. v Herman, 125 AD3d 587, 589 [2d Dept 2015]; see Alvarez, 68 NY2d at 325). A Labor Law § 194 (1) defendant movant therefore must prove the equal or superior fit of its alternate comparator(s) relative to the plaintiff's comparator(s), and the court must construe the record in the light most favorable to denying the motion.

Conversely, in opposition to a Labor Law § 194 (1) plaintiff's summary judgment motion, a defendant merely must raise a sufficient triable issue of fact on which a reasonable finding of non-liability can stand, and the court must construe the record in the light most favorable to that cause. In that posture, a defendant need not prove the equal or superior fit of an alternative comparator or group of comparators, but merely raise a triable issue of fact that one or more specifically named alternative comparators offer an equal or superior fit based on the Labor Law § 194 (1) (a)-(b) factors and that there is no pay gap relative to those alternative comparator(s).

In these demonstrations, as with all summary judgment showings, "[g]eneral allegations which are merely conclusory and unsupported" are insufficient (Federal Deposit Ins. Corp. v Johansen, 198 AD2d 260, 261 [2d Dept 1993]; New York Natl. Bank v Harris, 182 AD2d 680, 681 [2d Dept 1992]; see Alvarez, 68 NY2d at 325). It is not enough for a defendant to hypothecate a dueling basis for comparison, or name a putatively equal or better fitting comparator without alleging satisfaction of the Labor Law § 194 (1) (a)-(b) factors and raising sufficient triable issues of fact to that effect. [*20]These factors require comparison based on working conditions and either equal "skill, effort and responsibility" if the defendant asserts an alternate comparator's "equal work" relative to the plaintiff (Labor Law § 194 [1] [a]), or "a composite of skill, effort, and responsibility" for an alternate comparator's "substantially similar work" (Labor Law § 194 [1] [b]). Thus, to establish an alternate comparator, a pay-gap defendant must offer at least some record-based analysis of those factors for its alternate comparator so as to dispute the pay gap. Any other result would read those factors out of the statute, and collapse the inquiry into whether any employee earns less than the plaintiff—an approach that would all but license pay gaps rather than root them out.

2. The Culinary's Failure to Establish an Alternate Comparator

The Culinary might have argued that a different faculty member without a pay gap is an equally or better fitting comparator to Eisenhauer than Perillo—but the Culinary did not make that argument. The Culinary names several male faculty members (see defendant's mem [NYSCEF Doc No. 36] at 8; defendant's reply mem [NYSCEF Doc No. 71] at 6), but only to dispute any sole-comparator standard. The Culinary does not argue much less show that any of them is a suitable comparator.

Rather, the Culinary posits that only Eisenhauer's entire "department is the correct group of comparators" and that there is no pay gap because some department members earn more than Eisenhauer and some less (defendant's mem [NYSCEF Doc No. 36] at 8). For this proposition, the Culinary refers to a raft of faculty—some female, some male; some earning less than Eisenhauer, some earning more; some with less seniority at the Culinary (and thus fewer adjustments over the years), some with more seniority at the Culinary (and thus more adjustments); some full professors, some with lower rank. From this broad diversity in gender, earnings, seniority and rank, the Culinary argues that the whole department is Eisenhauer's proper comparator.

The mere fact of a salary range across workers does not raise a triable issue of fact as to proper comparator under Labor Law § 194 (1). The issue is not whether one or more employees earns less than the plaintiff, but whether a pay gap exists relative to an alternative comparator or comparators whose fit is equal to or better than the fit of the plaintiff's comparator based on the Labor Law § 194 (1) (a)-(b) factors. The Culinary needed to show, not tell, that its whole-department comparison was equal or superior to Perillo's comparison with Eisenhauer.

The Culinary did not carry this burden—not affirmatively on its own motion, and not responsively on Eisenhauer's motion even construing the record in the light most favorable to the Culinary as respondent. The Culinary offers no record basis to suggest that Eisenhauer's whole department performed the same or substantially the same work. The Culinary offers no data or analysis for the whole department's "skill, effort, and responsibility." Besides Eisenhauer and Perillo, the Culinary points only to one other resume, that of Gerald Vivertito (NYSCEF Doc No. 40), among the 100 faculty that the Culinary lists in its faculty pay chart. Vivertito's resume lists only a first college degree, not a master's degree like Eisenhauer and Perillo. For only one faculty member, Gregory Zifchak, does the Culinary offer a promotion application, dated 1990 (NYSCEF Doc No. 53). It shows that Zifchak accrued 14 years' greater tenure at the Culinary than Eisenhauer, and thus 14 more years of across-the-board pay adjustments.^FN17

Lacking record-based analysis of the department's skill, effort and responsibility, the only record basis to aggregate or distinguish faculty is the Culinary's faculty promotion rubric (see NYSCEF Doc No. 44). Because this rubric gauges faculty rank to teaching experience, curricular contributions, professional development and leadership, the Culinary does not, in fact, expect its faculty to be equal in their work or qualifications—and there is no contrary evidence. Whether faculty are fairly comparable to Eisenhauer under a "composite of skill, effort and responsibility" standard for substantially similar work is a different question, but again one that the Culinary does not answer or offer a sufficient record basis on which to raise a triable issue of fact.

Accordingly, the court concludes that Eisenhauer's over $7,000.00 and growing annual pay gap compared to Perillo states a prima facie pay-gap case under Labor Law § 194 (1). The Culinary fails to rebut that showing consistent with Labor Law § 194 (1) (a)-(b) affirmatively for its own summary judgment motion, or to the extent of adducing a contrary triable issue of fact to defeat Eisenhauer's motion. As such, the Culinary's substantive challenge to the pay gap fails. The Culinary therefore can prevail only if, as it argues, the CBA satisfies the Culinary's Labor Law § 194 (1) (iv) "bona fide factor" defense consistent with the APEA's heightened job-relatedness requirement.^FN18 The court next turns to the showing necessary to that defense.

3. The Job-Relatedness Requirement of Labor Law § 194 (1) (iv)

The defense of a "bona fide factor" explaining a pay gap requires a showing that the factor is "other than status within one or more protected class or classes, such as education, training, or experience" (Labor Law § 194 [1] [iv]), and that the factor satisfies two further requirements. First, this factor "shall not be based upon or derived from a differential in compensation based on status within one or more protected class or classes" (Labor Law § 194 [1] [iv] [A]). Second, this factor must be "job-related with respect to the position in question and shall be consistent with business necessity" (Labor Law § 194 [1] [iv] [B]). In turn, "business necessity" must "bear[ ] a manifest relationship to the employment in question" (Labor Law § 194 [2] [a]). By the statute's plain language, these showings are conjunctive: the defense requires all of them.

The Culinary asserts that the CBA is gender-neutral in that neither the CBA nor any of its pay-adjustment factors turns on gender or perpetuates gender-based disparity. Eisenhauer does not suggest otherwise.^FN19 Thus, the CBA satisfies the legitimate differential requirement. For the reasons that follow, however, the CBA does not satisfy the job-relatedness requirement.

To date no court meaningfully has construed this requirement. This court therefore [*21]again must begin with first principles, starting with the statute's language and construing it to vindicate its remedial purpose, and in a narrow manner befitting a defense to a remedial statute. The court further considers the job-relatedness requirement's source in Griggs and the federal Civil Rights Act of 1991, and with them such federal case law as then arose in that context.

Starting with the APEA's text, the proffered explanatory factor's job-relatedness turns on "the position in question" and must be "consistent with business necessity" bearing "a manifest relationship to the employment in question" (Labor Law § 194 [1] [iv] [B]; [2] [a] [emphasis added]). As with other departures from FEPA and prior New York statute, the court must credit these as intentional and material (see Commonwealth of the N. Mariana Is., 21 NY3d at 61-62). By this plain language, a plaintiff's "position in question," not "employment in question," is the definitional linchpin of job-relatedness. A "position" is a specific job, not the fact of one's "employment" (see Labor Law § 190 [2]). By its nature, a "position in question," like "education, training or experience" as explanatory factors, describes a plaintiff. By contrast, "employment in question" goes to whether an explanatory factor is consistent with the defendant's "business necessity."

This distinction between "position" and "employment" is critical and aligns with the statute's history, related language and purpose. Much like its predecessors, Labor Law § 194 (1) contemplates pay comparisons between employees based on equal or substantially similar work, not mere service of a common employer. As discussed above, it was concern for overly permissive job comparison that inspired efforts to enact a clearer job-to-job metric. Once Congress enacted FEPA providing for pay comparison "for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions" (29 USC § 206 [d] [1] [emphasis added]), the 1965 Legislature followed by adopting that job-based language—except, as addressed above, by rendering FEPA's plurals as singulars (see Labor Law former § 199-a ["equal work on a job"] [emphasis added]). The Legislature retained that modified language in its 1966 recodification, and today's statute continues it.

Meanwhile, the Second Circuit long advocated a job-relatedness rule under FEPA lest "the factor-other-than-sex defense . . . provide a gaping loophole in [FEPA] through which many pretexts for discrimination would be sanctioned" (Aldrich, 963 F2d at 525; see Tomka v Seiler Corp., 66 F3d 1295, 1312 [2d Cir 1995], abrogated on other grounds by Burlington Industries, Inc. v Ellerth, 524 US 742 [1998]). By 2010, commentators began deriding FEPA's factor-other-than-sex defense as the "Any Reason Under the Sun Defense," asserting that FEPA invites most any pay-gap explanation so long as the employer does not overtly admit sex discrimination (see Deborah Thompson Eisenberg, Shattering the Equal Pay Act's Glass Ceiling, 63 SMU L Rev 17, 57 [2010]).

With that backdrop, the 2015 Legislature deemed the neutral-defense defense too permissive, added the APEA's job-relatedness mandate with its "position in question" anchor, and narrated its purpose to tighten the defense to target the plaintiff's actual job. Henceforth a pay-gap defendant raising this defense would need to show "something . . . related to job performance" (Senate Introducer's Mem in Support, Bill Jacket, L 2015, ch 362 at 6 [emphasis added]).

While the APEA's recent vintage, and its weaving of federal statute and common law into New York law, makes this case the first to apply this distinction between "position" and "employment," the distinction itself is not new. Congress drew its job-relatedness requirement for Title VII cases from Griggs, which announced job-to-job comparison and "job performance" [*22]as the key inquiries (Griggs, 401 US at 431). Two years later, McDonnell Douglas Corp. v Green (411 US 792 [1973])—the seminal case setting forth the Title VII burden-shifting standard for employment discrimination actions—held that a minority applicant for a specified "job" could state a Title VII claim after the employer rejected him and interviewed additional applicants having the plaintiff's qualifications (id. at 802). The next year, the U.S. Supreme Court confirmed "job evaluation" relative to duties and working conditions as FEPA's work-comparability standard (Corning Glass, 417 US at 202). From Griggs and McDonnell Douglas under the pre-1991 Title VII, to Corning Glass under FEPA, to the Civil Rights Act of 1991, job comparison has concerned the qualifications for, conduct of and conditions of the actual job in which the pay claim arises.^FN20 No case the Culinary offers is to the contrary.

Similarly giving effect to the APEA's text, history, structure and purpose, and with due regard for its Title VII underpinnings, this court holds that Labor Law § 194 (1) (iv) (B) requires a defendant raising a "bona fide factor" defense to demonstrate the factor's job-relatedness based on plaintiff's "position" in which the pay-gap claim arises. Such showing cannot be speculative or tangential: it must be direct and reasonably apparent from the record based on qualifications, job performance and working conditions in that "position" (see NY Div of Budget Bill Mem, Bill Jacket, L 2015, ch 362 at 7 ["obvious relationship to the position"]).

As under FEPA, it follows that an employer's titles or other descriptors for a position can "have little sway" for this purpose: the inquiry is functional and fact-dependent based on the position's work and working conditions (Moll v Telesector Resources Group, Inc., 94 F4th 218, 259 [2d Cir 2024]; see Chepak v Metropolitan Hosp., 555 Fed Appx 74 [2d Cir 2014]; Laffey v Northwest Airlines, Inc., 567 F2d 429 [DC Cir 1976], cert denied 434 US 1086 [1978], abrogated on other grounds by McLaughlin v Richland Shoe Co., 486 US 128, 134 [1988]). As the Second Circuit put it, "a plaintiff must establish that the jobs compared entail common duties or content, and do not simply overlap in titles or classifications . . . . A successful [FEPA] claim depends on the comparison of actual job content; broad generalizations drawn from job titles, classifications, or divisions . . . cannot suffice" (Chiaramonte, 677 Fed Appx at 691 [emphasis, brackets and internal quotation marks omitted], quoting Equal Empl. Opportunity Commn. v Port Auth. of N.Y. & N.J., 768 F3d 247, 255-256 [2d Cir 2014]).

While these cases concern plaintiffs' pay-gap showings, this court finds no basis to [*23]define differently the position to which a defense must key the job-relatedness of an explanatory factor. The parties propose no other standard and this court fathoms none, much less any that would be faithful to the APEA's purpose to tighten this defense under New York law. Whether for a plaintiff to establish a pay gap, or a defendant to satisfy the APEA defense of a bona fide explanatory factor that is "job-related with respect to the position in question," the common issue is the factual basis for analyzing the same job to show, dispute or defend the same pay gap. This question common to both parties requires the same definitional parameters for its answers.

On this record and the parties' arguments, only Eisenhauer and Perillo's "position" as full professor is the "position" in which Eisenhauer's pay-gap claim arises and thus the "position" to which the Culinary must key the job-relatedness of its neutral-factor defense—not their mere Culinary employment, or common service in the culinary arts department, or past faculty roles. The Culinary's promotion rubric shows that full professor is qualitatively different from the lower faculty ranks through which Eisenhauer and Perillo ascended based on benchmarks for teaching experience, curricular contributions, professional development and institutional leadership. Any other result would deflate "position" into something far less, even a mere employment standard. For its part, the Culinary offers no contrary issue of fact: its suggestion that all or a substantial part of its faculty are fungible is boilerplate, conclusory and unsupported.

This result has key implications for this case. The CBA and Faculty Handbook on which the Culinary relies do not arise from or even mainly concern Eisenhauer or Perillo's jobs, tasks, work conditions, performance or any other consideration relating to their work since 2017 when Eisenhauer's pay gap began. To the contrary, their work and working conditions have been functionally equal since then. As such, the pay gap cannot arise from any of them and especially not "job performance," as Griggs required under Title VII and the APEA contemplates here.

The Culinary next argues that only Eisenhauer's starting pay in 2002 and Perillo's in 2008, based on their pre-hire experience and demonstration ratings, generated their pay gap many years later. As such, the Culinary continues, it may rely on those initial pay levels, this lookback feature of the CBA and its underlying criteria. The Culinary is correct that experience and performance can be job-related reasons for a pay gap (see defendant's mem [NYSCEF Doc No. 36] at 3; Wheeler, 18 AD3d at 1005),^FN21 but not on this record. The Culinary does not allege much less raise a triable issue of fact showing that it considered Eisenhauer or Perillo's experience or demonstration ratings at any time since hiring them. Other defects aside, this failure of proof is fatal to the Culinary's defense. An employer invoking FEPA's "any other factor" defense must show that the employer's consideration of its proffered factor "was in fact the basis for" the pay gap, not a mere "after the fact justification" for it (Boyer v United States, 97 F4th 834, 844 [Fed Cir 2024], reh en banc denied 98 F4th 1073 [Fed Cir 2024]; see Briggs v University of Cincinnati, 11 F4th 498, 511-512 [6th Cir 2021]; Maryland Ins. Admin., 879 F3d at 121; Riser v [*24]QEP Energy, 776 F3d 1191, 1197-1198 [10th Cir 2015] [employer evidence must show "not merely that the employer's proffered reasons could explain the wage disparity, but that the proffered reasons do in fact explain the wage disparity"], quoting Mickelson v New York Life Ins. Co., 460 F3d 1304, 1312 [10th Cir 2006]; Rizo v Yovino, 950 F3d 1217, 1222 [9th Cir 2020], cert denied — US —, 141 S Ct 189 [2020]; King v Acosta Sales & Mktg., Inc., 678 F3d 470, 474 [7th Cir 2012]; Simpson v Merchants & Planters Bank, 441 F3d 572, 579 [8th Cir 2006]).

The APEA requires no less: any other result impermissibly would render New York's neutral-factor defense more lax than federal law rather than more exacting as the Legislature intended. Thus, as under FEPA, Labor Law § 194 (1) (iv) (B) requires an employer asserting a neutral-factor defense to show that, in paying the challenged salary, the employer actually considered the factor it proffers to explain the pay gap and that such factor actually explains it. The Culinary offers no evidence that it actually considered any explanatory factor in setting Eisenhauer's challenged pay:^FN22 to the contrary, the Culinary disclaims any such actual consideration.^FN23 Meanwhile, the Culinary promoted Eisenhauer and Perillo three times, thus [*25]creating a pay gap for their same position and job, without showing or even suggesting that its pre-hire ratings for them long ago would be legitimately relevant now had the Culinary considered them. Skepticism of a pay-gap defense is greatest where, as here, an employer promotes the plaintiff and comparator to equivalent positions without equivalent pay (see Liggett & Myers, 690 F2d at 1074). For the foregoing reasons, the Culinary fails to offer a record basis to support its defense that a neutral factor explains Eisenhauer's pay gap consistent with the Labor Law § 194 (1) (iv) (B) job-relatedness requirement.

4. Past Pay is Irrelevant to Current Job-Relatedness

The Culinary also implies that Eisenhauer's lower starting salary itself is a "job-related" reason for her pay gap. This argument fails because prior pay cannot establish a neutral-factor defense. Under the statute's plain language, by definition a salary in a prior position is not "job-related with respect to the position in question" (Labor Law § 194 [1] [iv] [B] [emphasis added]). Eisenhauer's claim concerns her full-professor salary from 2017 forward, not her starting pay of 2002 on which the Culinary relies. For its part, the Culinary does not show why a starting salary nearly a quarter century ago legitimately should forever justify Eisenhauer's pay gap however well she performs—in essence, despite her current job rather than any consideration of it.

This result accords with federal circuits that disallow a past-pay defense under FEPA. To be sure, as with other aspects of FEPA law, the relevance of past pay has evolved. The Ninth Circuit initially held that salary history can justify future pay gaps because FEPA's "any factor other than sex" defense is sufficiently elastic to allow most "any factor" so long as not explicitly gendered (see Kouba v Allstate Ins. Co., 691 F2d 873 [9th Cir 1982]). However, in 2020, the Ninth Circuit reversed course and held that an employer cannot use past salary as a neutral factor to explain a continuing pay gap (see Rizo, 950 F3d at 1217 [en banc]).^FN24 To Rizo, FEPA required the neutral-reason defense to be job-related because a prior salary could not be job-related to a current position (see id. at 1224, 1227). The Ninth Circuit continued that FEPA's burden-[*26]shifting structure and purpose compelled this result even if the prior pay was not discriminatory:

"[F]EPA does not require employers to prove that the wages paid to their employees at prior jobs were unaffected by wage discrimination. But if called upon to defend against a prima facie showing, [F]EPA requires employers to demonstrate that only job-related factors, not sex, caused any wage disparities that exist between employees of the opposite sex who perform equal work. . . .

"We do not presume that any particular employee's prior wages were depressed as a result of sex discrimination. But the history of pervasive wage discrimination in the American workforce prevents prior pay from satisfying the employer's burden to show that sex played no role in wage disparities between employees of the opposite sex. And allowing prior pay to serve as an affirmative defense would frustrate [F]EPA's purpose as well as its language and structure by perpetuating sex-based wage disparities.

"We acknowledge that prior pay could be viewed as a proxy for job-related factors such as education, skills, or experience related to an employee's prior job, and that prior pay can be a function of factors related to an employee's prior job. But prior pay itself is not a factor related to the work an employee is currently performing" (id. at 1228, cert denied — US —, 141 S Ct 189).

Rizo rejected the Seventh Circuit's polar opposite view in Wernsing v Department of Human Servs., State of Ill. (427 F3d 466 [7th Cir 2005]), which held that past salary can legitimately explain a current pay gap under FEPA. As Kouba reasoned before Rizo overruled it, Wernsing reasoned that FEPA permissively invites most any defense based on "any" factor other than sex, thus including past pay. Wernsing deemed "markets [to be] impersonal and have no intent" to discriminate, and thus an employer cannot violate FEPA in setting wages based on what the market bears (id. at 469). The Fourth Circuit concurred in this approach (see Spencer, 919 F3d at 206), as did the Eighth Circuit albeit on condition that a court must confirm that the employer does not rely on market forces to justify lower pay for women (see Drum v Leeson Elec. Corp., 565 F3d 1071, 1073 [8th Cir 2009]).

Other circuits take a middle path between the Ninth Circuit's Rizo bar to considering past pay and the Seventh Circuit's Wernsing invitation to do just that. To the Eleventh Circuit, past pay is irrelevant unless the employer argues mixed motive based also on overall experience (see Irby v Bittick, 44 F3d 949, 955 [11th Cir 1995]). "[I]f prior salary alone were a justification [for a pay gap], the exception would swallow up the rule and inequality in pay among genders would be perpetuated" (id.). The Sixth Circuit (see Balmer v HCA, Inc., 423 F3d 606, 612 [6th Cir 2005], abrogated on other grounds by Fox v Vice, 563 US 826 [2011]), Tenth Circuit (see Riser, 776 F3d at 1199) and Federal Circuit (see Boyer, 97 F4th at 844) all generally agree.

The Second Circuit has not decided this issue conclusively (compare Eisenhauer, 84 F4th at 515-516, with Aldrich, 963 F2d at 525-526). Meanwhile, consensus on this issue also eludes District Courts in the Second Circuit (compare Husser v New York City Dept. of Educ., 137 F Supp 3d 253, 269 [ED NY 2015], and Setelius v National Grid Elec. Servs. LLC, 2014 WL 4773975, *31, 2014 US Dist LEXIS 134789, *99-102 [ED NY, Sept. 24, 2014, No. 11-CV-5528 (MKB)], with Talwar v Staten Is. Univ. Hosp., 2014 WL 5784626, *12, 2014 US Dist LEXIS 158953, *29-30 [ED NY, Mar. 31, 2014, No. 12-CV-0033 (CBA) (JMA)], vacated in part on other grounds 610 Fed Appx 28 [2d Cir 2015]; Edelman v NYU Langone Health Sys., 2022 WL 4537972, 2022 US Dist LEXIS 176681 [SD NY, Sept. 28, 2022, 21 Civ 502 (LGS)]).

Importantly, federal circuits otherwise open to reliance on past salary react skeptically when pay gaps persist over the arc of employment with the same employer (see Briggs, 11 F4th at 510-511; Bowen v Manheim Remarketing, Inc., 882 F3d 1358, 1363 [11th Cir 2018]; King, 678 F3d at 474-475; Irby, 44 F3d at 955-956). Perhaps most relevant to this case is the Seventh [*27]Circuit's analysis in King. In King, a female marketing manager received a lower starting salary than male comparators hired to do and who actually did the same job, and their pay gap grew over the arc of employment despite the plaintiff's equivalent work and performance. On FEPA challenge, the employer offered the plaintiff's pre-hire pay and experience to justify the pay gap years later, as the Culinary does here. Rejecting that explanation, the Seventh Circuit narrated:

"Let us suppose that education and experience (which imply greater pay at other firms, with which [defendant] is competing for talent) explain some or even all of the difference in the starting salaries [for its employees]. There is no reason why they should explain [disparate] increases in pay while a person is employed by [the defendant]. Changes in salary at most firms depend on how well a person performs at work. Education and experience may predict on-the-job performance, but the prediction affects the starting wage, just as scores on the [Law School Admission Test] predict grades in law school and thus affect the probability of admission. Once a person has been admitted to a given law school, however, it is performance on exams, or in writing papers, not the LSAT, that determines grades; and grades plus extracurricular activities, not the LSAT score, affect who is hired by which law firms; after that, performance on the job, not the LSAT or grades in law school, determines who makes partner and how much each lawyer is paid" (King, 678 F3d at 474).

As with the federal circuit split over a sole comparator, disparate federal circuit views about prior pay as an explanatory factor operated in the background when the 2015 Legislature tightened this defense under New York law. This court similarly must impute to the 2015 Legislature awareness of this circuit split about past pay under FEPA and a corresponding intent under APEA to clarify the issue under New York law where it was unclear federally.

The Fourth and Seventh Circuits' consideration of past pay in a neutral-factor defense is untenable under the APEA. This court has no basis to accept those circuits' key premise that markets do not encode past discrimination, especially given the APEA's findings of persisting pay gaps. This court separately disagrees with the Fourth and Seventh Circuits because their reasoning injected intent into neutral-factor defense even though FEPA is a strict liability statute (see Corning Glass, 417 US at 196; Rizo, 950 F3d at 1223; Belfi, 191 F3d at 135).

Also untenable for New York is other circuits' middle path of considering past pay with another legitimate explanatory factor. Given the APEA's purpose to more tightly align an employer's defense with job-relatedness based on "the position in question," rather than a past job or employment generally, this intermediate approach would undermine the higher standard of the APEA to mount this defense. This court agrees with Rizo that past pay, even if a potential proxy for another explanatory factor, does not actually establish that factor much less that it is a neutral one; neither does past pay raise a triable issue of fact of one. A Labor Law § 194 (1) defendant bears this burden of production and persuasion directly—not by proxy.

This court instead finds that Labor Law § 194 (1) (iv) (B) does not allow prior salary as a legitimate factor to explain a current pay gap. Though this court parts ways with the Seventh Circuit on other pay-equality issues, its King concern about pay gaps persisting over the arc of employment is prescient. The APEA's purpose to enhance pay equality does not allow a defendant employer to hew to past pay as putatively predictive of future job performance and ignore actual job performance come what may and however many years or decades later.

Exclusion of prior pay from a pay-gap defense is particularly warranted given the 2019 Legislature's further amendments to Labor Law article 6. In the same legislative package that [*28]expanded Labor Law § 194 (1) beyond gender to other protected classes, the Legislature barred New York employers from so much as asking prospective employees about their prior salaries during the hiring or wage-setting process (see L 2019, ch 94, § 1, adding Labor Law § 194-a). That same package also barred New York employers from requesting past salary data as a condition to promote a current employee and from declining to promote a current employee for refusing to disclose past salary (see id., adding Labor Law § 194-a [1] [b], [d]). If a New York employer cannot ask about past salary to hire, retain or promote an employee, then neither can a New York employer proffer an employee's past pay to justify her or his lower pay for the same or substantially similar work. Rizo implied similarly, narrating that while FEPA itself does not ban employers from asking about prior pay, by then California had enacted a pay privacy law (see Cal Labor Code § 432.3), and on that basis FEPA had become "less stringent" than its California equivalent as to the neutral-factor defense (Rizo, 950 F3d at 1231 n 16). What the Ninth Circuit merely implied because the Rizo claim arose only under federal law, this court makes explicit under Labor Law § 194 (1) given New York's pay-privacy provisions.^FN25

A contrary result would turn the Seventh Circuit's concern in King upside down by inviting an employer to discredit or even ignore actual job performance and other metrics of the employee's current and prospective value to the employer in favor of rigid reliance on past pay—by definition, set before the employee could establish their worth to their current employer. A contrary result also would trace the Ninth Circuit's concern in Rizo that FEPA implicates

"tension between allowing employers to consider prior salary in setting wages on the one hand, and requiring that they defend [a FEPA] claim without relying on prior pay on the other. But this [tension] is inherent in the terms of [F]EPA itself. [FEPA] places no limit on the factors an employer may consider in setting employees' wages, but it places on employers the burden of demonstrating that sex played no role in causing wage differentials. To meet this burden, employers may rely on any bona fide job-related factor other than sex. But relying on the heuristic of prior pay, rather than the actual factors associated with employees' current work, risks perpetuating historical sex discrimination" (Rizo, 950 F3d at 1232).

This resonates all the more under New York law, which does limit an employer from asking about prior pay as a condition of employment or promotion (see Labor Law § 194-a [1] [b]-[d]). And it obtains all the more for New York precisely because Labor Law § 194 (1) (iv) sets a higher standard for job-relatedness than FEPA to establish a legitimate bona fide factor to explain a current pay inequality.

For these reasons, Eisenhauer's starting pay in 2002 is not a legitimate job-related reason under the APEA job-relatedness requirement to explain her current pay gap, and accordingly the Culinary cannot rely on it in defense of Eisenhauer's pay-gap claim. It follows that the [*29]Culinary's defense grounded in different starting salaries for Eisenhauer and Perillo must fail.

5. The Labor Law § 194 (1) (iv) (B) "Business Necessity" Requirement

Even had the Culinary established a sufficient job-related reason for Eisenhauer's pay gap, this defense requires a further showing that the proffered reason must be "consistent with business necessity" (Labor Law § 194 [1] [iv] [B]), "defined as a factor that bears a manifest relationship to the employment in question" (Labor Law § 194 [2] [a]). The Culinary argues that Eisenhauer's lesser experience at her 2002 hire satisfies this "business necessity" test because experience "indicate[s] employees' greater value to the employer" (defendant's mem [NYSCEF Doc No. 36] at 3, 19). The Culinary also suggests that APEA's reference to "education, training and experience," as examples of explanatory factors, implies that these factors themselves establish "business necessity" (see defendant's opp mem [NYSCEF Doc No. 71] at 10). Eisenhauer retorts that there is no "business necessity" to her pay gap or its basis in the CBA.

Other than to repeat the statute's requirement that an explanatory factor's "business necessity" must bear "a manifest relationship to the employment in question," neither party offers decisional law or rules of reason by which to determine the sufficiency of a "business necessity" showing. Accordingly, this court yet again must begin with first principles.

In first articulating the business necessity requirement under Title VII, the U.S. Supreme Court in Griggs did not distinguish business necessity from job-relatedness as separate standards, but rather defined the latter in terms of the former. As noted above, Griggs set forth that "[t]he touchstone [of job-relatedness] is business necessity. If an employment practice which operates to exclude [or disparately impact a protected group] cannot be shown to be related to job performance, the practice is prohibited" (Griggs, 401 US at 431). For instance, an employer that used an employment test having disparate impact on the basis of race needed to show that the test "bear[s] a demonstrable relationship to successful performance of the jobs for which it was used" (id.). Griggs itself, however, offered no definition of business necessity. A decade later, the U.S. Supreme Court, again in the Title VII context, described disparate impact claims as those alleging "employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity" (Teamsters v United States, 431 US 324, 335-336 n 15 [1977])—but again did not define business necessity. The federal Civil Rights Act of 1991 placed the business necessity mandate directly into Title VII (see 42 USC § 2000e-2 [k] [1] [A] [i]), leaving no doubt that it had become a standalone requirement in defense of a disparate impact challenge to an employment practice, but also leaving its definition to courts that had resisted supplying one.

Federal circuits continued to resist announcing a consensus approach to business necessity (see e.g. Bew v City of Chicago, 252 F3d 891, 894 [7th Cir 2001], cert denied 534 US 1020 [2001]; Wallace v Debron Corp., 494 F2d 674, 677 [8th Cir 1974]), but they did set down pointers. "[B]usiness necessity, which has arisen as an exception to the amenability of discriminatory practices, 'connotes an irresistible demand.' The [practice] in question must not only foster [business] safety and efficiency, but must be essential to that goal" (United States v St. Louis-San Francisco Ry. Co., 464 F2d 301, 308 [8th Cir 1972], cert denied 409 US [*30]1116 [1973], quoting United States v Bethlehem Steel Corp., 446 F2d 652, 662 [2d Cir 1971];^FN26 United States v Jacksonville Term. Co., 451 F2d 418 [5th Cir 1971], cert denied 406 US 906 [1972]). "In other words, there must be no acceptable alternative that will accomplish the goal 'equally well with a lesser differential racial [or, here, gender] impact' " (St. Louis-San Francisco Ry. Co., 464 F2d at 308 [emphasis added], quoting Robinson v Lorillard Corp., 444 F2d 791, 798 [4th Cir 1971], cert dismissed 404 US 1006 [1971]). To Robinson, the challenged practice must be "necessary to the safe and efficient operation of the business" and

"the business purpose must be sufficiently compelling to override any [protected-class disparate] impact; the challenged practice must effectively carry out the business purpose it is alleged to serve; and there must be available no acceptable alternative policies or practices which would better accomplish the business purpose advanced, or accomplish it equally well with a lesser differential [protected-class disparate] impact" (Robinson, 444 F2d at 798 [footnotes omitted]).

Multiple circuits have relied on this approach to business necessity (see Hamer v City of Atlanta, 872 F2d 1521, 1533 [11th Cir 1989]; Williams v Colorado Springs, Colo., Sch. Dist. No. 11, 641 F2d 835, 841 [10th Cir 1981]; Blake v City of Los Angeles, 595 F2d 1367, 1375-1376 [9th Cir 1979]; Pettway v American Cast Iron Pipe Co., 494 F2d 211, 244-246 [5th Cir 1974], reh denied 494 F2d 1296 [5th Cir 1974]; Head v Timken Roller Bearing Co., 486 F2d 870, 879 [6th Cir 1973]).

As with other APEA elements, because the 2015 Legislature took the "business necessity" requirement of Labor Law § 194 (1) (iv) (B) from Griggs and the Civil Rights Act of 1991, this court imputes to the Legislature knowledge of its common law in its federal context. While there remains no conclusive definition of "business necessity" even under federal law, this court extracts from these cases certain guiding principles for the analogous defense under the APEA.

Under both the APEA's plain language and the federal cases, one guiding principle for business necessity is "necessity"—not mere convenience, wisdom or best practice. An employer must show that the challenged practice is essential to its business's safety or effective operation. A second related principle is importance: the practice must be so vital to the business as to outweigh and thus justify its unequal effects. A third principle is comparative effectiveness: the challenged practice must actually serve the employer's proffered business interest, and do so as well or better than any alternative practice doing so without the challenged disparity.

Before the APEA, this court finds only one New York decision that attempted to define the business necessity of a challenged employment practice—and then only in dissent in a case under the New York State Human Rights Law. In State Div. of Human Rights v Xerox Corp. (49 AD2d 21 [4th Dept 1975], affd 39 NY2d 873 [1976]), the Fourth Department rejected a discriminatory practice charge against an employer whose policy was to temporarily [*31]suspend employees arrested but not yet convicted—a policy alleged to have a disparate impact on the basis of race. The dissent analyzed Griggs and its progeny and concluded as follows:

"Only substantial evidence of business necessity, job relatedness, or bona fide occupation qualification will excuse the discriminatory impact of [such] an employment policy and there must be 'no acceptable alternative that will accomplish that goal "equally well with a lesser differential racial impact".' (United States v St. Louis-San Francisco Ry. Co., 464 F2d 301, 308, cert den 409 U.S. 1116.) In this regard mere conclusory statements of business necessity are not enough (Wallace v Debron Corp., 494 F2d 674; Gregory v Litton Systems, supra). Business necessity or job relatedness must be affirmatively proved by the party claiming it (Weeks v Southern Bell Tel. & Tel. Co., 408 F2d 228; Bowe v Colgate-Palmolive Co., 416 F2d 711 . . . )" (49 AD2d at 26-27 [Cardamone, J., dissenting]).

The majority rejected this analysis because, in its view, the employer's suspension policy was applicable to all employees regardless of race and because employee suspension was not automatic upon a qualifying arrest, which instead merely began the suspension process (see id. at 23-24). As such, the Fourth Department concluded, there was no basis to reach the business necessity issue (see id. at 24-25), and the Court of Appeals agreed (39 NY2d at 873). Under the APEA, however, a pay-gap defendant invoking the neutral-factor defense must prove the "business necessity" of its explanatory factor or, on an adverse summary judgment motion, raise a sufficient triable issue of fact to support that defense.

Even construing the Culinary's papers in the light most favorable to this defense, the Culinary fails to carry that burden on any theory of business necessity. While the Culinary is correct that job-related factors of education, training or experience can help establish "business necessity" in a proper case, the Culinary's mere say so does not make it so or raise that triable issue of fact. As to the Culinary's asserted interest to pay Eisenhauer less based on her pre-hire experience, the Culinary fails to raise a triable issue of fact as to the essentialness of this interest, its importance relative to the resulting pay gap, or its effectiveness in serving the business interest as well or better than any other practice without causing the pay gap. For instance, the Culinary does not allege much less offer evidence that differential faculty experience at hire is a bona fide factor on which the safety or effectiveness of the Culinary's business depends in paying unequal salaries three faculty ranks and many years later. The Culinary also does not suggest much less show that there exists no other alternative practice that would equally or better serve the Culinary's business interest without causing the pay gap.

At most, the Culinary infers two merely generic interests potentially relevant to this business necessity inquiry: faculty experience overall and the reliability of CBAs and formulaic faculty pay. Neither is sufficient on this record. As to faculty experience, as noted above, the Culinary's assertion is entirely conclusory with regard to its specific relevance to and operation on the Eisenhauer-Perillo pay gap. In any event, the Culinary's experience assertion does not bear scrutiny on this record. The Culinary concedes that Eisenhauer and Perillo have performed functionally the same job since 2017, while offering nothing to distinguish the quality of their performance or any other indicia of value to the employer. The Culinary also offers nothing to relate any performance differential to what the Culinary asserts is their differential experience either in the 2000s at hire or cumulatively since 2017.

The Culinary's experience argument also suffers much the same conceptual defect as the Seventh Circuit narrated in King about forever privileging pre-hire experience, which merely predicts future employment success, over actual experience and performance with the employer. [*32]In this concern, King was far from alone. The Fourth Circuit in Robinson took up a Title VII challenge to a cigarette factory's seniority pay system that, replacing an overt policy of racial discrimination, gauged seniority to employment time within a department. African American employees alleged disparate impact because the prior race-based system restricted their entrance into preferential departments and thus disadvantaged them in position and pay. Rejecting the employer's generic proffer that worker experience satisfies the business necessity test, the Fourth Circuit reasoned that, even were it true that workers perform jobs more efficiently with prior experience at other jobs within the same department, the employer failed to offer "real evidence that the jobs in the formerly all-white departments are so complex and interrelated that progression through a series of jobs is necessary to efficient performance of the more difficult tasks" in the preferential departments (Robinson, 444 F2d at 799). Robinson continued:

"[S]eniority is necessarily an inefficient means of assuring sufficient prior job experience. It may take only six months to learn a job well and become qualified for advancement. Yet the vagaries of chance may present an opportunity for advancement in only six weeks or not for six years. When some employees have been discriminatorily denied entry to the department, an alternative promotion system could advance the employee who has been discriminated against if he has the greatest employment seniority and has served a necessary minimum time in his present job or has satisfactorily established his capacity to handle the job. Such an alternative plan would accomplish the business purpose 'equally well with a lesser differential racial impact' " (id. at 799-800).

The Fifth Circuit echoed Robinson in a Title VII challenge to a manufacturing employer that based eligibility for apprenticeship and on-the-job training on discontinued education and testing requirements that had racially disparate impacts. Quoting Robinson, the Fifth Circuit deemed a generic proffer of employee experience too imprecise to meet the Griggs business necessity standard: an employer must show, not merely claim, that prior experience specifically readies employees for positions meriting different pay (see Pettway, 494 F2d at 246 & n 92).

As in King, Robinson and Pettway, so too for a Labor Law § 194 (1) pay-gap claim into which the Legislature injected this Title VII defense. The mere invocation of an employee's prior experience to justify continuing pay disparity is unavailing without a targeted showing that rationally connects the prior experience, current pay disparity and employer business interest in that calculation method, consistent with the heightened standards of essentialness, importance and effectiveness under Labor Law § 194 (1) (iv) (B). Having failed to carry those burdens of production and persuasion as to Eisenhauer's pre-hire experience 23 years ago or cumulative experience since 2017, the Culinary fails to satisfy the business necessity test via her past experience. Without that showing, the Culinary's argument collapses business necessity into the statutory job-relatedness factors of "education, training, or experience," functionally reading "business necessity" out of the statute—a result this court cannot countenance based on its duty to give every statutory word nontrivial meaning (see Wang, 40 NY3d at 503, quoting Molik, 32 NY3d at 37; Avella, 29 NY3d at 434; Rocovich, 78 NY2d at 515).

6. Implications for Collective Bargaining

Turning to the Culinary's alternative suggestion of a business interest in the CBA itself, again the Culinary offers no sufficient essentialness, importance or effectiveness showing for business necessity under Labor Law § 194 (1) (iv) (B). The Culinary does not assert much less raise a triable issue of fact to suggest that the CBA's method of computing pay for the duration [*33]of employment based on the hiring rate is necessary—whether to the safety or efficiency of the Culinary's business or otherwise. Neither does the Culinary show that its business interest in a CBA forever locking in pay differentials based on initial salary—whatever that interest might be—is so important as to outweigh resulting pay inequities and thus justify Eisenhauer's pay gap decades later. The Culinary also does not show that there exists no other method of computation that would vindicate its business interest as well or better without the challenged pay gap.

The Culinary is correct, of course, about the general importance of collective bargaining and reliability of CBAs. The New York Constitution guarantees the right to collective bargaining (see NY Const, art I, § 17), the Legislature declared it State policy to vindicate this right (see Labor Law § 700), and the Legislature repeatedly bolstered it (see Labor Law art 20 [New York State Labor Relations Act]). The public interest in collective bargaining, however, is not the same as an employer's particularized interest under the business necessity standard of Labor Law § 194 (1) (iv) (B), much less one sufficient to validate an otherwise unlawful pay gap.

The Culinary's reliance on the CBA itself tacitly posits that the CBA supersedes Labor Law § 194 (1), and thus that the Culinary and faculty union lawfully could contract around New York's equal-pay policy. Important as CBAs are, however, they "do not derive from a 'higher law' giving them a status denied to other public and contractual arrangements" (Matter of Board of Educ. of Yonkers City School Dist. v Yonkers Fedn. of Teachers, 40 NY2d 268, 276 [1976]). Rather, the scope and effect of CBAs are "limited by plain and clear prohibitions found in statute or decisional law and may be further restricted by considerations of objectively demonstrable public policy" (Matter of Professional, Clerical, Tech. Empls. Assn. [Buffalo Bd. of Educ.], 90 NY2d 364, 372 [1997], quoting Matter of Union Free School Dist. No. 2 of Town of Cheektowaga v Nyquist, 38 NY2d 137, 143 [1975]). As such, a CBA or portion thereof that conflicts with a New York statute must yield to the latter's clear requirements (see Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774, 777 [1976]; see also Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563 [2006]). For instance, a CBA can require arbitration of an employee's discrimination claim subject to judicial review, but cannot entirely deny the judicial review that statute and common law guarantee (see 14 Penn Plaza LLC v Pyett, 556 US 247 [2009]; Wilson v PBM, LLC, 193 AD3d 22, 30 [2d Dept 2021]).

The Legislature created no collective bargaining exception to Labor Law § 194 (1). Nothing in Labor Law § 194 (1) or Labor Law article 6 governing wages generally, or in any other law or legal principle the Culinary cites, remotely supports the suggestion that an employer paying a salary in violation of Labor Law § 194 (1) should be immunized against redress merely because the employer calculates and pays that salary pursuant to a CBA. To the contrary, the Legislature directed that nothing in Labor Law § 194 "shall be construed to limit the rights of an employee provided under any other provision of law or collective bargaining agreement" (Labor Law § 194 [4] [e]). This provision shows that the Legislature contemplated collective bargaining contexts but opted not to provide any special rule or protection for labor agreements. It also shows that non-impairment of the employee's interests under a CBA—not the interests of the employer—is the relevant focus, befitting the statute's overall remedial purpose.

A judicial collective bargaining exception to Labor Law § 194—in essence, inviting employers and labor unions to contract around pay-equality rights—would vastly exceed judicial authority and undercut the two related pillars on which pay-equality law has stood for 60 years. The first pillar is that "the wage structure of 'many segments of American industry has been based on an ancient but outmoded belief that a man, because of his role in society, should be [*34]paid more than a woman even though his duties are the same' " (Corning Glass, 417 US at 195, quoting S Rep 176, 88th Cong, 1st Sess at 1 [1963]). The second pillar is that the labor market has resisted redressing inequality on its own because women historically lacked equal bargaining power relative to men and collective bargaining contexts have not always fully vindicated pay-equality interests (see Corning Glass, 417 US at 206; Drum, 565 F3d at 1073; Glenn v General Motors Corp., 841 F2d 1567, 1570 [11th Cir 1988]; Brennan v Victoria Bank & Trust Co., 493 F2d 896, 902 [5th Cir 1974]).^FN27

Similarly there is no merit to the Culinary's position that "it is not free to change any faculty member's salary without exposing itself to a potential unfair labor practice charge" (defendant's opp mem [NYSCEF Doc No. 71] at 11). This assertion is speculative. Further, this argument would inhibit judicial remedies if an employer violates the statutory pay rights of its unionized employees. The Culinary offers no support for this view, and this court cannot fathom any.

This court underscores that other CBAs might fare quite differently under Labor Law § 194 (1) if they constitute bona fide pay systems based on merit, seniority or productivity (see Labor Law § 194 [1] [i]-[iii]). The Culinary instead asserts only a neutral-factor defense, ostensibly because this CBA rigidly gauges promotional pay to initial pay however long ago and regardless of merit, seniority or productivity.

For its part, the Culinary fails to meet the business necessity standard either affirmatively on its own motion, or responsively on Eisenhauer's motion to the extent of a sufficient issue of fact. Accordingly, the Culinary's neutral-factor defense fails for this additional reason.

7. The Relevance of Employer Intent under Labor Law § 194 (1)

The Culinary's final argument, which takes several forms, is that its lack of animus or discriminatory intent shields it from Labor Law § 194 (1) liability. As the argument goes, the APEA drew its heightened neutral-factor defense from under Title VII, Griggs and its progeny, so those authorities' intent-based defenses against disparate-impact liability must similarly defend a Labor Law § 194 (1) claim. The Culinary asserts that because the CBA set incumbent faculty salaries by formula, no animus or discriminatory intent affected Eisenhauer's lower pay.

The Culinary is correct that nothing in this record suggests invidious discrimination on the basis of sex or any other protected class. Not even Eisenhauer charges the Culinary with bias against women. Nevertheless, the Culinary's argument is untenable for three reasons of statutory construction. First, an intent or animus requirement for Labor Law § 194 (1) liability would defy the 1965 Legislature's determination to eliminate "discrimination" as the 1944 statute's required showing—a determination that infused New York's pay-gap statute ever since. Second, the [*35]argument would open an APEA loophole large enough to swallow the statute. While the 2015 Legislature reported its intent to graft the job-relatedness requirement from Title VII, nowhere did the Legislature state or imply that it thereby reintroduced to Labor Law § 194 (1) the discrimination requirement it repealed in 1965. To the contrary, the APEA's remedial intent was to make the neutral-factor defense harder to prove, not to create a shortcut defense for mere nondiscrimination. Third, a discrimination requirement would moot the provision of Labor Law § 194 (1) that exempts intentional and disparate-impact cases from the neutral-factor defense. The Culinary's theory instead would rip nondiscrimination cases from the entire statute—a proposition that the statute's text and history stand squarely against.

By contrast, elsewhere Labor Law article 6 does address employer intent and good faith, underscoring the Legislature's intent for an APEA violation to lie regardless of intent. Even before the APEA, the Legislature provided that any employer failing to pay wages consistent with Labor Law article 6 (including section 194), including any business employer's officer or agent who "knowingly permit[s]" the business to do so, thereby committed a misdemeanor on first offense and a felony on further offenses within six years (see Labor Law § 198-a [1]). Also preexisting the APEA it was the civil penalty for a Labor Law § 194 (1) violation—not proof or defense of a violation—that turned on employer intent. Labor Law § 198 (1-a) now reads:

"In any action instituted in the courts upon a wage claim by an employee . . . in which the employee prevails, the court shall allow such employee to recover the full amount of any underpayment, all reasonable attorney's fees, prejudgment interest as required under the civil practice law and rules, and, unless the employer proves a good faith basis to believe that its underpayment of wages was in compliance with the law, an additional amount as liquidated damages equal to one hundred percent of the total amount of the wages found to be due, except such liquidated damages may be up to three hundred percent of the total amount of the wages found to be due for a willful violation" (Labor Law § 198 [1-a] [emphasis added]).

A lesser 25% cap on liquidated damages was long-standing until 2010, when the Legislature raised the cap to 100% (see L 2010, ch 564, § 7, amdg Labor Law § 198 [1-a]). In the same APEA that tightened the neutral-factor defense, the 2015 Legislature added the 300% cap but only for a "willful violation" (see L 2015, ch 362, § 2), obliging this court to draw an "irrefutable inference" that the Legislature purposefully excluded willfulness and other intent metrics from proof or defense of an underlying violation (ACE Sec. Corp. v DB Structured Prods., Inc., 38 NY3d 643, 651 [2022]; Town of Aurora v Village of E. Aurora, 32 NY3d 366, 372-373 [2018]; Matter of Town of Riverhead v New York State Bd. of Real Prop. Servs., 5 NY3d 36, 42-43 [2005]). Put simply, the Legislature directed courts to consider employer good faith and willfulness in defense of liquidated damages, not in defense of a pay-gap claim.^FN28

The Culinary next argues that the CBA would yield the same pay gap were Eisenhauer male and Perillo female, and thus Eisenhauer's pay pursuant to the CBA cannot violate Labor [*36]Law § 194 (1). This court disagrees. Nothing in Labor Law § 194 (1) specially protects one gender's pay over another. As such, the statute would accord a hypothetically male Eisenhauer with this pay gap relative to a female Perillo the same Labor Law § 194 (1) standing and remedy. While one federal court credited this gender-switching argument under FEPA's forgiving "any other factor other than sex" standard (see Terry v Gary Community Sch. Corp., 910 F3d 1000, 1009 [7th Cir 2018]), the APEA's heightened defense accords this argument no currency.

While not saying so outright, the Culinary's argument presumes that Labor Law § 194 (1) is not a strict liability statute. However, FEPA is a strict liability statute, the Legislature crafted New York's 1965 statute based on FEPA, and nothing in the text or history of New York's subsequent amendments—especially the APEA—remotely suggests any intent to depart from this strict liability construct.

For the foregoing reasons, the Culinary's lack of discriminatory intent or animus cannot defend it from back-pay liability for a Labor Law § 194 (1) violation.

Conclusion

For much that this case is about, for clarity the court underscores what it is not about. This is case is not about intentional sex discrimination: none is alleged and none is found. This case also is not about seeking or granting special treatment. Labor Law § 194 accords protected-class employees no right to earn a particular salary merely due to class membership: Eisenhauer seeks not special treatment but only the equal treatment to which the law entitles her.

Neither should this case be construed to portend more than it requires. It does not restrain an employer from hiring an employee at a pay level legitimately commensurate with the applicant's experience and/or other legitimate metrics of projected value to the employer, compatibly with Labor Law § 194. Nothing in the statute guarantees employee compensation not commensurate with employee performance or other legitimate metrics of merit in the employee's work. Nothing in Labor Law § 194 constrains the prerogative of an employer, in its legitimate business judgment, to respond to employee underperformance in a manner consistent with law, including a CBA. While pay equality statutes initially arose to protect women from unequal pay for equal or comparable work—a continuing condition, as the Legislature's findings of ongoing gender-based pay gaps show—nothing in Labor Law § 194 specially accords female employees greater pay-equality rights than employees of another gender, or creates a hierarchy of protected classes relative to others such as race, age, sexual orientation, gender identity or gender expression (see Labor Law § 194 [2] [b]). As under FEPA, nothing in Labor Law § 194 turns a blind eye to employer fiscal condition or bars a defendant from demonstrating genuine budgetary concern as a legitimate reason for a challenged pay gap (see Lauderdale v Illinois Dept. of Human Servs., 876 F3d 904 [7th Cir 2017]; Yonkers Fedn. of Teachers, 40 NY2d at 276 ["a collective bargaining agreement may not become a 'suicide pact' "]). Also as under FEPA, nothing in Labor Law § 194 authorizes a reviewing court to sit as a "super-personnel department weighing the prudence of employment decisions" (Anderson v Westinghouse Savannah Riv. Co., 406 F3d 248, 272 [4th Cir 2005], quoting DeJarnette v Corning Inc., 133 F3d 293, 299 [4th Cir 1998]; see Powell v Syracuse Univ., 580 F2d 1150, 1156-1157 [2d Cir 1978]). Similarly, nothing in Labor Law § 194 invites a reviewing court to strip an academic institution of its legitimate academic freedom in setting comparative faculty compensation (see Winkes v Brown Univ., 747 F2d 792 [1st Cir 1984]).

What Labor Law § 194 does do is accord New York employees an avenue for judicial redress of unequal pay for the same or substantially similar work and put employers to New [*37]York's standard for contrary proof. Where a New York pay-gap plaintiff proves entitlement to relief, and an employer does not make a contrary showing, Labor Law § 198 (1-a) requires an award of back pay, attorney's fees and any liquidated damages assessable under the statute. Eisenhauer made her showing, the Culinary did not, and this court must proceed accordingly.

Because Eisenhauer substantially prevails in this action, she is entitled to judgment awarding her "the full amount of any underpayment, all reasonable attorney's fees, [and] prejudgment interest as required under the [CPLR]" (Labor Law § 198 [1-a]).

In this action's unusual posture in which the parties stipulated that no discovery was necessary in view of discovery in the federal action, this court has no record basis on which to determine the amount of underpayment after the 2016-2021 CBA expired. The remedial order therefore will make provision for that determination, as well as for proof of the legal services for which Labor Law § 198 (1-a) allows an award of attorney's fees. Eisenhauer does not seek liquidated damages, and in any event the Culinary demonstrates via the CBA a good-faith basis to "believe that its underpayment of wages was in compliance with the law" (Labor Law § 198 [1-a]). As such, this court orders no liquidated damages.

The court has considered the parties' remaining contentions and deems them to lack merit or to be moot in light of the foregoing. Accordingly, it is hereby ordered that defendant's motion (seq No. 1) is denied; and it is further ordered that plaintiff's motion (seq No. 2) is granted, defendant's affirmative defenses are dismissed, and plaintiff is awarded judgment on her complaint.