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No word from the EEOC on the reinstated EEO-1 pay data requirement

March 6th, 2019  |  Pamela Wolf

At the time of press on March 6, there was still silence at the EEOC in the aftermath of a federal court in the District of Columbia’s March 4 declaration that the Office of Management and Budget’s stay of the EEOC’s pay data collection was “illegal.”

The court found that the OMB’s deficiencies were substantial and that it was unlikely that the government could justify its decision on remand. Vacating the stay, the court granted summary judgment to the plaintiffs in the lawsuit—the National Women’s Law Center and the Labor Council for Latin American Advancement—and ordered that the previous approval of the EEOC’s revised EEO-1 form “shall be in effect.”

EEO-1 Survey to open any day. On February 1, the EEOC announced that because of the partial federal government shutdown that ended earlier this year, the opening of the EEO-1 survey website had been postponed until early March 2019—any day now. The deadline to submit EEO-1 data will be extended until May 31, 2019, the agency said.

No quorum. The silence at the EEOC may be due, at least in part, to the fact that the EEOC at present lacks a quorum and, presumably, the ability to take certain actions, including approving new policies, guidance, and regulatory actions.

The EEOC’s five-member Commission includes only the Acting Chair, Victoria Lipnic, and one Commissioner, Charlotte Burrows. President Trump has nominated Janet Dhillon for a spot as Commissioner; she was approved by the Health, Education, Labor, and Pensions Committee on February 27. Her nomination has moved to the Senate floor for potential confirmation.

New pay data requirement. Under the Obama administration, the EEOC in 2016 agreed to revise the EEO-1 to include pay data segmented by sex, race, and ethnicity. The updated form, finalized after months of public comment, was designed to understand and address persistent and pervasive problems of pay discrimination.

The revisions expanded employers’ obligations to provide pay data as it related to sex, race, and ethnicity for the first time. This is data that employers already maintain in the normal course of business, and the majority of companies already submit EEO-1 surveys via electronic data submission. Because employers were being asked to report the data through a familiar form, the revision was claimed to be the least burdensome way of collecting data, according to Congressional Democrats who defended the revisions.

OMB stays implementation. The OMB approved the EEOC’s final product on September 29, 2016. However, in August 2017, the OMB delayed the update to the EEO-1 form, asserting that the revisions are “unnecessarily burdensome” and issuing an immediate stay in a brief memo issued by the Office of Information and Regulatory Affairs.

Employers await direction. Now that a federal court has vacated the OMB stay, employers undoubtedly are wondering whether they will be required to submit the pay data information required by the now-reinstated revised EEO-1 collection—not quite what most had previously planned to submit.

There remains a question as to whether the EEOC, operating without a quorum, has authority to take any action to change the now-valid, revised EEO-1 pay data requirements, or to delay employer submission of pay data.

It also is possible that a stay pending appeal of the revised form’s implementation may be obtained by the OMB.

Given these circumstances, employers may be wise to gather the pay data information so that it will be available should the current EEO-1 survey open with the revised data requirement in place.