Labor & Employment Law Daily Wrap Up, DISCRIMINATION—PAY—Fed. Cl.: Male employee’s EPA suit against SEC does not proceed to trial, (Jun 25, 2025)

By Nadine E. Roddy, J.D.

Even though the employee demonstrated prima facie that he and the female comparators performed “substantially equal work,” the agency established the statutory “factor other than sex” affirmative defense.

A male employee of a federal agency who was paid less than his female comparators established a prima facie case of sex discrimination under the EPA for summary judgment purposes, but the agency established the any “factor other than sex” affirmative defense, the Court of Federal Claims has ruled. The factor other than sex was the agency’s implementation of a “pay transition program” to remedy disparities in compensation, to which the female employees had applied but the male employee had not, despite being aware of the need to apply by a fixed deadline (Moore v. United States, No. 21-1931 (Fed. Cl. Jun. 23, 2025)).

Agency “pay transition program.” A male employee of the Securities and Exchange Commission (SEC) brought suit against his employer in the Court of Federal Claims for pay discrimination in violation of the EPA. His claim involved a “pay transition program” (Program) launched by the SEC in 2014 to remedy a disparity in how it compensated its employees. All employees were invited to apply to the program by submitting an up-to-date resume to a special committee, which would then decide whether the employee’s experience merited a pay raise. The application period was short—only three weeks—but for good cause an employee could receive an extension. Employees who applied generally received a pay raise; nonapplying employees did not.

Never applied. Although the employee was aware of the Program and the short application window, he neither applied nor sought an extension; he was focused on caring for an ill family member at the time. After discovering in 2016 that two allegedly similarly-situated female employees—who had applied to the Program—were being paid more than he was, he brought and lost an EEO action in the EEOC. The Commission granted the SEC’s summary judgment motion, finding that the pay disparity did not result from sex discrimination but rather from the employee’s failure to apply to the Program. The employee reasserted the same claim in his lawsuit.

Before the court was the SEC’s motion for summary judgment.

Prima facie case. The SEC argued that the employee failed to establish a prima facie case of pay discrimination under the EPA because neither of the two female employees were legitimate comparators. The court disagreed, noting that at least one of the females held the same position as the employee (SK-15), had the same job description, performed the same physical and mental work, was equally skilled in securities law, and worked under identical conditions. Even though there were some tasks they did not share, their core duties were the same. Thus, the court concluded that the employee and the female colleague performed “substantially equal work,” as the EPA requires. The parties did not dispute that the employee and the two female colleagues were different sexes and that the females were paid more than the employee.

Affirmative defense. The SEC raised the statutory affirmative defense of “any other factor other than sex,” which the court re-characterized as “any sex-neutral factor.” The court noted that some circuit courts of appeals require that the sex-neutral factor result from a “legitimate business reason,” while others hold that any sex-neutral factor is sufficient in itself to establish the defense. The Federal Circuit had not yet ruled on the question.

Although the court believed that the second approach was the better one, as the statute made no mention of a “legitimate business reason” requirement, the court determined that in this case the SEC would prevail under either approach. The SEC established that the employee was paid less because he did not apply to the Program, whereas the female employees were paid more because they did. A specialist who had worked on the Program testified that if the employee had applied, he would likely be paid on par with the female employees. Thus, the Program was a sex-neutral factor which explained the employee’s lower pay.

The court observed that what constitutes a legitimate business reason is unclear, especially in the context of government employment, but at the least it entails “a pragmatic standard” that protects against sex discrimination while “accommodating employer discretion,” requiring the employer to use the allegedly sex-neutral factor “reasonably in light of the employer’s stated purpose.” In this case, the SEC had legitimate business reasons for how it had structured the Program; specifically, the Commission needed up-to-date resumes and a relatively short application period to conserve both time and money. As it was, the Program took months to complete, required almost 100 personnel to review applications, and cost roughly seven times its estimated price ($21 million instead of $3 million).

For these reasons, the court granted the SEC’s motion for summary judgment.

The case is No. 21-1931.

Judge: Bruggink, E.

Attorneys: Peter B. Broida (Law Offices of Peter B. Broida) for Timothy Moore. Tate Nathan Walker, U.S. Department of Justice, for the U.S.

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