An Attack on Equal Pay Under Cover of Darkness

Last month, the Trump Administration announced it was blocking the equal pay data collection—a critical Obama-era initiative that would have allowed the Equal Employment Opportunity Commission (EEOC) to confidentially collect pay data by race, gender, and occupational category from large employers.  Today, the National Women’s Law Center, in partnership with the Lawyers’ Committee for Civil Rights, submitted a Freedom of Information Act (FOIA) request to find out why—because we need to shine a light on the shadowy process that is being used to place obstacles in the path of equal pay and to hold the Administration to the legal standards that constrain its ability to overturn this important effort.
The equal pay data collection would allow the EEOC to see which employers have racial or gender pay gaps that differ significantly from the pay patterns from other employers in their industry and region. By comparing wage data for firms employing workers in the same job categories, in the same industry, in the same location, in the same year, the EEOC would be able to tell which employers’ pay practices may present problems and investigate pay discrimination more efficiently.  The equal pay data collection would also encourage voluntary compliance with equal pay laws via self-audits of pay practices and proactive steps to close pay gaps not justified by legitimate factors, like differences in qualifications.
But the Trump Administration “stayed” the effort before a single employer filed a single pay data report. The Administration took this action at the behest of the corporate interests that earlier this year formally asked for the equal pay data collection to be killed or blocked.  But when the National Women’s Law Center had previously asked, on behalf of a coalition of equal pay advocates, to meet with Trump Administration staff and explain why the equal pay data collection holds such promise for closing race and gender wage gaps, we got no answer.  We asked again, and got a promise that they would get back to us soon.  We asked again, and silence.
When the stay was announced, Ivanka Trump, who likes to talk about how much she cares about equal pay, but seems to be less fond of doing anything that would actually help end pay discrimination, announced that she agreed with the stay because “the proposed policy would not yield the intended results.”  What she didn’t say is who she talked to or what she reviewed when she decided that this wasn’t worth doing.  It certainly wasn’t equal pay advocates.  The Office of Management and Budget (OMB)—the agency that issued the stay—also gave remarkably little information about the basis for its action or what analysis it relied on in determining (as it stated in a few terse sentences) that the equal pay data collection wouldn’t be useful and would be too burdensome.
By comparison, the EEOC went through a lengthy and transparent process of seeking and responding to public input when it designed the equal pay data collection, which included a public hearing where a variety of stakeholders on all sides of the issue testified, then a written proposal with lengthy explanations of why the proposal looked the way it did on which the public could comment (hundred of comments were submitted), then a revised written proposal with explanations of the revisions and responses to concerns raised in comments it received on which the public could comment (and again, hundreds of comments were submitted).  This process followed and responded to a multi-year Department of Labor process including multiple rounds of public comment on how pay data could best be collected.  You could call it all painstakingly slow, but one thing you can’t reasonably say is that the EEOC didn’t consider the input of all stakeholders and didn’t set out in detail—repeatedly!—its rationale for why the equal pay data collection was designed the way it was and the analysis that it was based on.
In contrast, the OMB memo staying the effort was a little more than a page long.  Maybe the Trump Administration doesn’t think it owes us an explanation for why it is trying to squelch this equal pay initiative.  Maybe it thinks that the fact that the U.S. Chamber of Commerce asked for it is all we should need to know.  But we disagree.  And we have the law on our side.  The law requires that OMB has to meet certain standards before it blocks efforts like the equal pay data collection, that have been previously approved after careful analysis and review.  So OMB needs to explain itself.  That is what our FOIA request today is about.  If the Trump Administration is going to block equal pay efforts, we need more than its assertion that it had good reasons for it.  The law requires more.