EEOC Tells Judge Pay Data Can’t Be Collected by May 31

 

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The Equal Employment Opportunity Commission (EEOC) told a federal judge April 16 that the agency can't collect employee pay data—sorted by race, ethnicity and sex—by the rapidly approaching May 31 deadline for employers to submit other EEO-1 information.

But Judge Tanya Chutkan of the U.S. District Court for the District of Columbia said she was concerned that the government may be "slow rolling" the process. She asked what the EEOC had planned, knowing from the start of the litigation that she could order it to collect the pay data. An EEOC representative indicated that the agency had limited resources and had focused on other priorities before it was directed to collect the information. 

In response to a court order, the EEOC proposed Sept. 30 as the deadline for employers to submit pay-data reporting. However, the National Women's Law Center (NWLC) and other worker-advocacy groups said they want the EEOC to collect pay data by May 31 with the other EEO-1 information—or clearly show why that's not possible. Chutkan held the April 16 hearing to help her decide whether to approve the government's plan.

Quality Concerns

"We could not do it by May 31," EEOC Chief Data Officer Samuel Haffer said at the hearing. If the reporting deadline was any sooner than Sept. 30, the agency's data-collection contractor would "walk away" from the project because it would not be able to meet professional standards, according to Haffer. He noted that the EEOC is in the process of modernizing outdated data-collection processes and systems.

The worker-advocacy groups' primary goal is to ensure that the data are collected, said Robin Thurston, an attorney with Democracy Forward and counsel for the plaintiffs. The plaintiffs don't want the agency to compromise quality, she said. But they also want "sufficient assurances" that the EEOC will collect the data by Sept. 30—"which I don't think we have right now," she added.

Chutkan gave the parties until April 22 to submit written summaries of the hearing along with proposed orders and supporting case law. As the court case unfolds, covered employers should keep in mind that they still must submit their 2018 data for Component 1 of the EEO-1 form by May 31. Component 1 asks for the number of employees who work for the business by job category, race, sex and ethnicity. Component 2 data, which includes hours worked and pay information from employees' W-2 forms by race, ethnicity and sex, is the subject of the legal dispute.

The Society for Human Resource Management joined the U.S. Chamber of Commerce and other business groups in asking the court to consider the employer perspective before making a decision. The groups said they are committed to ending discrimination in the workplace, but they argued that requiring employers to submit Component 2 data "in the near future" would "impose an extraordinary and wholly unrealistic burden on employers."

Background

Businesses with at least 100 employees and federal contractors with at least 50 employees and a contract with the federal government of $50,000 or more must file the EEO-1 form. The EEOC uses information about the number of women and minorities companies employ to support civil rights enforcement and analyze employment patterns, according to the agency.

The EEO-1 form was revised during President Barack Obama's administration to add the Component 2 data, but the pay-data provisions were suspended in 2017 by President Donald Trump's administration. The NWLC challenged the Trump administration's hold on the pay-data collection provisions, and on March 4, Chutkan lifted the stay—meaning the federal government needs to start collecting the information. 

On March 18, however, the EEOC opened the portal for employers to submit EEO-1 reports without including the pay-data questions. Chutkan subsequently told the EEOC and the Office of Management and Budget (OMB) to come up with a plan.

The EEOC proposed the Sept. 30 deadline for employers to submit Component 2 data, claiming that the agency needs more time to address the challenges of collecting the pay data, according to a document filed with the court on April 3. Furthermore, Haffer warned that rushing the data collection may yield poor quality data.

EEOC acting Chair Victoria Lipnic "has determined that it is necessary to exercise her … administrative authority to adjust the collection deadline to Sept. 30, 2019, in order to accommodate the significant practical challenges for the EEOC to collect … data in response to the court's order," the agency told the court. Even with the additional time, the EEOC said it would need to spend more than $3 million to hire a contractor to provide the appropriate procedures and systems.

On April 8, the worker-advocacy groups asked the court to reject the EEOC's proposal and direct the agency to collect all EEO-1 data by May 31. The EEOC's and OMB's "belated assertions regarding the impossibility of complying with the court's order … would leave plaintiffs at risk for not obtaining the very remedy that was ordered by this court," the advocacy groups said. They called the government's assertions unsubstantiated and claimed that the "prolonged delay in compliance" is not warranted.

Monitor for Updates

For now, employers should focus on pulling the Component 1 data. "Until the EEOC officially announces anything to the contrary, employers should continue to move ahead on the 2018 EEO-1 filings without pay data and work toward the May 31 deadline," noted Kiosha Dickey, an attorney with Ogletree Deakins in Columbia, S.C.

[SHRM members-only HR Q&A: What are the filing requirements for the EEO-1 form?] 

Employers should also think about how they will pull the relevant Component 2 pay data. The revised EEO-1 form will require employers to report wage information from Box 1 of the W-2 form and total hours worked for all employees by race, ethnicity and sex within 12 proposed pay bands.

"The EEOC will provide further information as soon as possible," an agency spokeswoman said. "Please continue to monitor the EEOC's website."

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