EEOC’s Proposed Pay Data Collection Proposal Getting a Lot of Attention Within SHRM and Congress

Mar 29, 2016

March has proved to be a particularly active month for the Equal Employment Opportunity Commission’s (EEOC’s) effort to revise its EEO-1 form: A SHRM member testified at a Commission hearing on the revision, and Senator Lamar Alexander (R-TN), chairman of the Senate Health, Education, Labor and Pensions Committee, introduced legislation that would compel the agency to collect this information from federal agencies and the executive branch of government beforehand to ensure that it could succeed in protecting the identity and confidentiality of the data before rolling it out to the private sector.

SHRM Representative Testifies at EEOC Hearing

On March 16, a SHRM representative testified at an EEOC hearing on proposed revisions to the EEO-1 report to collect pay data by race, sex and ethnicity from employers with more than 100 employees.

SHRM member Janese Murray, vice president of diversity and inclusion at Exelon Corp. in Baltimore, represented SHRM and provided a voice for the HR profession before the EEOC commissioners. As the only HR representative among the 15 witnesses scheduled to testify, Murray was able to explain the role compensation plays as part of a talent management strategy as well as explain the factors that go into compensation and how pay changes over time. While acknowledging the pay gap between men and women, Murray’s testimony challenged whether the type of data the EEOC proposes to collect would help the agency successfully root out pay discrimination. For example, the W-2 gross pay data required under the revised form does not separate out base salary, bonuses, shift differentials, overtime or other types of pay. This information is particularly unhelpful when reported by EEO-1 category as required by the proposal.

Using her company as an example, Murray pointed out that Exelon’s 10,000 employees in the professional job category include “engineers, lawyers, financial analysts, and HR and compliance professionals, along with our only pilot, a handful of meteorologists and many other unique positions. It goes without saying that the pay for each of these positions, even though they are within the same broad EEO-1 job category, varies significantly.” She also expressed on behalf of SHRM concern with the proposal’s impact on data privacy and the cost of collecting and verifying data, especially for employers using different vendors for their HR information and payroll systems.

EEOC Reform Act Legislation Introduced

Congress didn’t wait long to respond to the proposed EEO-1 report changes. Senator Alexander introduced the EEOC Reform Act (S. 2693), which would require the EEOC to first collect this same type of compensation data from the executive branch departments and agencies and to verify, compile and ensure the confidentiality of the data before proceeding with its proposed changes. The EEOC would also be required to develop a comprehensive plan for how the agency will use and ensure the privacy of the data. Finally, after reporting this data and developing a plan, the EEOC would have to reduce its pending backlog of complaints of discrimination to fewer than 3,660 complaints—the same number of data points that an employer could now be required to report under the revised EEO-1 reporting requirements—before moving forward its proposal to expand data collection requirements to private employers.

Senator Alexander’s legislation contains identical provisions to House legislation introduced last year that would require the EEOC to vote before proceeding to litigation and would require enhanced transparency by requiring the EEOC to post to its website each case brought to court by the Commission, including any case in which the EEOC is required to pay court fees or costs or is sanctioned, among other provisions.

While the legislation is not expected to advance in this Congress, SHRM is tracking it closely and will provide additional updates soon.

In This Issue

Overtime Update

Union Organizing

2016 SHRM Employment Law & Legislative Conferences

EEOC Update


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