On January 5, 2018, our Circuit Court of Appeals held that an employer who relied on the affirmative defense that the pay disparity between the sexes was based on a “factor other than gender” was required to prove not that the stated reason could explain the wage disparity, but that the reason did in fact explain the wage disparity. The employer is required to provide evidence created at the time of the decision which shows that the decision for the salary was actually due to the reason stated and not due to gender. The court stated that it was not enough to show that a factor other than gender was the reason for a recommendation for a certain salary because that did not prove that the decision was actually made on that basis. The case was U.S. Equal Employment Opportunity Commission v. Maryland Insurance Administration.
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