Bona Fide Factor Other Than Sex, Race, or Ethnicity

A 'bona fide factor other than sex, race, or ethnicity' is an affirmative defense an employer can use to justify a wage differential for substantially similar work. To succeed with this defense, the employer must demonstrate that the factor is not based on or derived from a sex-, race-, or ethnicity-based differential in compensation, is job-related with respect to the position in question, and is consistent with a business necessity. Examples include education, training, or experience. 'Business necessity' means an overriding legitimate business purpose such that the factor relied upon effectively fulfills the business purpose it is supposed to serve. This defense does not apply if the employee can demonstrate that an alternative business practice exists that would serve the same business purpose without producing the wage differential. The factor must also be applied reasonably and account for the entire wage differential.