Pay data collection is a critical tool to help stop pay discrimination and close the gender wage gap. Whether by custom or a workplace prohibition, pay information is cloaked in secrecy. Without information about pay, pay discrimination is often almost impossible to detect and challenge. Employees typically have to rely on accidental disclosures to discover they are being paid less on the basis of their sex.
  • Fact sheet, Combating Punitive Pay Secrecy Policies
Requiring employers to collect and report pay data helps ensure employer self-evaluation and correction of any unjustified disparities, and enhanced enforcement of pay discrimination laws. Other countries require various forms of pay data and pay gap data collection and reporting by employers, including some public reporting.
  • Fact sheet, Promoting Pay Transparency to Fight the Gender Wage Gap: Creative International Models

 

EEOC’s EEO-1 Pay Data Collection

But the current Administration and business groups have fought the implementation of any reporting requirements in the US.  For nearly 50 years, companies have confidentially, routinely, and with minimal burden provided to the U.S. Equal Employment Opportunity Commission important information about the sex, race, and ethnicity of employees, by job category, via a form called the EEO-1. The Obama Administration proposed revising the EEO-1 form to require covered employers to submit data on employees’ W-2 earnings and hours worked by pay band, as well as sex, race, ethnicity and job category (known as Component 2 of the EEO-1). The Component 2 pay data collection was adopted in September 2016 after an extensive and transparent process, including a public hearing, a vote by the EEOC Commissioners, and two rounds of notice and public comment.

 

Trump Administration Stay of the Pay Data Collection in 2017

But in August 2017, without notice or explanation, President Trump’s OMB blocked EEOC’s efforts to collect pay data on the basis of gender, race and ethnicity from employers. OMB called its action a “review and stay.” It was clear the Administration sought to block the equal pay data collection indefinitely, consistent with requests from the business community. In September 2017, NWLC and the Lawyers Committee on Civil Rights Under Law filed FOIA requests to uncover information about OMB’s secretive decision-making process that halted the pay data collection. When the government failed to respond, we filed a lawsuit seeking the documents.

NWLC Lawsuit Against the Administration Challenging the Stay

NWLC and other organizations then sued the Administration in federal court to challenge the stay pursuant to the Administrative Procedures Act and the Paperwork Reduction Act, and won. The court found the stay was illegal, reinstated the pay data collection, and ordered EEOC to collect two years of data, which EEOC completed in January 2020. The Administration appealed the decision, and the appeal is pending.

EEOC and OFCCP Announcements Regarding EEO-1 Pay Data

EEOC announced on September 12, 2019, that it would no longer collect pay data from employers after it completed the current court-ordered pay data collection, claiming the burden to employers outweighed the benefit of the data. In May 2020, EEOC further announced it was delaying the collection of EEO-1 Component 1 data until 2021 due to COVID-19 pandemic. And in November 2019, OFCCP announced it would no longer seek or use EEO-1 pay data in its enforcement of nondiscrimination provisions for federal contractors, effective immediately.
  • Press release, NWLC Reacts to EEOC’s New Proposal to Stop EEO-1 Pay Data Collection (September 2019)
  • NWLC comment on EEOC’s Decision to Stop EEO-1 Pay Data Collection (November 2019)
  • Press release, NWLC Reacts to Labor Department Notice That It Will Ignore EEO-1 Pay Data (November 2019)
  • NWLC comment on EEOC’s Decision to Stop EEO-1 Pay Data Collection (April 2020)