Federal Agencies Pledge to Keep Fighting Pay Disparity and Workplace Bias

EEOC chair defends agency’s decision to stop collecting EEO-1 pay data

Lisa Nagele-Piazza, J.D., SHRM-SCP By Lisa Nagele-Piazza, J.D., SHRM-SCP September 23, 2019
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Federal leaders who enforce anti-discrimination laws assured House members last week that they're still committed to protecting workers' civil rights despite lawmakers' criticism about the Equal Employment Opportunity Commission's (EEOC's) decision not to collect pay data—broken down by job category, race, sex and ethnicity—in the future.

During a House Education and Labor subcommittee hearing on Sept. 19, Rep. Suzanne Bonamici, D-Ore., also raised concerns about decreased enforcement efforts and investigations by the EEOC and the Office of Federal Contractor Compliance Programs (OFCCP), which she said has negatively affected workers' civil rights protections.

The OFCCP's mission is to ensure employers that contract with the federal government comply with anti-discrimination laws and regulations. And the EEOC enforces federal laws that make it illegal to discriminate against employees and job applicants based on age, color, disability, genetic information, national origin, race, religion and sex.

"As our workplaces become increasingly diverse, we need the EEOC and the OFCCP to get back on track," Bonamici said.

Rep. James Comer, R-Ky., however, said that overly burdensome regulations are counterproductive. "While we agree our nation's nondiscrimination laws must be properly enforced, workers and entrepreneurs should not be held back by burdensome regulations, excessive red tape, and overzealous enforcement actions," he said.

Pay-Equity Audits and Data Collection

Pay disparities are problematic for the workplace, and they are illegal when they are based on discrimination, said OFCCP Director Craig Leen. The OFCCP requires contractors to assess their pay structures annually and ensure they are not discriminatory, he noted.

Although contractors are required to perform such audits, other private employers are not. The EEOC is in the process of collecting pay data through Component 2 of the annual EEO-1 survey, which is the data that must be broken down by job category, race, sex and ethnicity. Employers with at least 100 employees need to submit this data. But the agency doesn't intend to collect such information after this year.

Bonamici said she was "dismayed" by the EEOC's decision to stop collecting the pay data. She noted that former President Barack Obama's administration said the data collection was necessary to enforce Title VII of the Civil Rights Act of 1964.

EEOC Chair Janet Dhillon explained that the EEOC is collecting pay data for 2017 and 2018 by Sept. 30 under a court order. But the Paperwork Reduction Act requires the agency to get permission from the White House budget office to collect data in the future.

The EEOC has to show that the burden on employers to collect the data is outweighed by the benefits to the agency. Dhillon said EEOC data specialists found that the burden of collecting the information was 10 times higher than had been originally estimated.

So the agency didn't ask the budget office to approve additional collection. However, the EEOC still plans to follow its longtime practice of collecting EEO-1 Component 1 data, which simply requires covered businesses to lists employees by job category, race, ethnicity and sex.

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

The agency wants to craft an improved pay-data collection process that is useful to the EEOC and its enforcement mission, Dhillon said.

Enforcement and Investigations

"OFCCP is as efficient and effective as it has ever been," Leen said. He added that the OFCCP is "vigorously pursuing" its mission to enforce civil rights protections for federal contractors and is particularly committed to remedying disability discrimination.

Leen noted that in the last two calendar years the OFCCP recovered a record $45 million in monetary remedies for victims of discrimination—which is more than any other administration collected in the same time frame.

The OFCCP will also be ordering about 500 focused reviews under the Vietnam Era Veterans' Readjustment Assistance Act involving veterans with disabilities and military spouses.

"OFCCP will continue to focus on providing transparency, certainty, efficiency and recognition," Leen said.

Dhillon, who has been with the EEOC for just over four months, said the agency must continue to provide excellent customer service and be responsive to employees who raise discrimination claims.

"As chair, I want to build on the agency's legacy and continue to tackle workplace discrimination while striking a careful balance between enforcement and compliance assistance," she said. "It is critical that our private-sector charges and our federal complaints, hearings and appeals are handled promptly and fairly."

The agency will continue to use alternative dispute resolution options—such as mediation—and voluntary conciliation to resolve claims. Dhillon noted that in fiscal year 2018, the EEOC conducted more than 9,000 mediations which resulted in nearly $166 million in benefits being paid to victims of employment discrimination.

"Litigation is an important tool in our toolbox, but I believe it is a tool of last resort," she said.

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