Welcome

D.C. Circuit Mulls Dismissal of Gender Pay Reporting Appeal (1)

Jan. 24, 2020, 4:54 PMUpdated: Jan. 24, 2020, 10:09 PM

The D.C. Circuit appeared open to dismissing the government’s appeal in a case that challenges the revival of a landmark collection of U.S. worker pay data by gender and race, if a lower court resolves how many employers must still turn over pay data to the Equal Employment Opportunity Commission.

Allowing the unresolved issues to play out in the district court could be a solution, an attorney arguing on behalf of the EEOC and the White House said, though the issue of the appeal becoming moot hasn’t been formally explored in briefs to the appeals court.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit entertained hypothetical scenarios during oral arguments, which also delved into whether worker advocates had legal standing to challenge the Trump administration’s 2017 decision to block the Obama-era pay collection from going into effect. The appeals court was also asked to decide whether a federal judge, who reinstated the pay data reporting requirement last March, overstepped her authority by dictating how and when the EEOC should collect that data.

Winning the appeal on the merits could cement the government’s authority to continue or halt efforts to collect information from employers, management lawyers said prior to arguments. The case proceeds at a time when the Trump administration has succeeded in rolling back several Obama-era initiatives at labor-focused agencies.

But a loss would mean the current pay data collection—which began last July and has been hailed by worker advocates as a tool to shrink pay gaps for women and minorities—will continue until the federal judge closes it. Roughly 60,000 employers were required to submit the pay reports, according to government estimates.

Regardless of the outcome, open questions will remain over what the government will do with the pay data it’s already gathered. So far, about 85 percent of employers required to submit the data have done so.

‘I Have an Interest’

The court could rule on whether the equal pay advocates—the National Women’s Law Center and the Labor Council for Latin American Advancement—had legal standing to bring the lawsuit against the EEOC and the White House’s Office of Management and Budget in the first place.

The Department of Justice attorney arguing on behalf of the government, Lindsey Powell, argued that the groups had “no cognizable interest” in the pay data, but Judge Judith Rogers interjected.

“They have an interest, that’s what their whole organization is about,” she said. “I have an interest in the information, too.”

The appeals court panel was comprised of Rogers, as well as Judges Cornelia Pillard and Sri Srinivasan.

Expectations

A government win on appeal would shore up its authority to decide whether to proceed with efforts to collect employee information, according to management lawyers.

“I think the business community has very clearly and very convincingly conveyed why the OMB was well within its rights to disapprove” the data collection, said Carlton Fields shareholder Rae Vann, who advises employers on equal employment policy and compliance. The White House’s Office of Management and Budget concluded in 2017 that the pay collection would unnecessarily burden employers and not be useful in addressing pay gaps.

“It’s really hard to see in my mind how the district court can really come in and take that power away,” Vann said.

Advocates for equal pay, however, disagree that Chutkan’s orders were out of line, and hope that her ruling is upheld. Chutkan also extended overall approval of the pay collection to April 2021, to account for the amount of time it was stayed by the OMB.

“My best guess is that they feel like they have an interest in pursuing the legal issues around the standing for cases that are not in this case,” said Emily Martin, vice president for education and workplace justice at the National Women’s Law Center, one of the advocacy groups that sued to bring back the pay reporting.

“What we want to see happen is to ensure that there is as complete a response as possible from the employers in the still-open pay data collection,” Martin said.

The EEOC didn’t respond to a request for a comment.

A sweeping win for the government would be a total reversal of Chutkan’s decision, said Seyfarth Shaw senior counsel Lawrence Lorber.

But a “limited win” could be an official closure of this current collection, and the shutting down of its oversight, which is currently under a court order to extend into 2021, Lorber said.

“They can win by saying well, they’ve met the requirements, and therefore, there’s no further action,” Lorber said.

Next Steps


Despite the outcome of the appeal, which Martin hopes will affirm Chutkan’s decision on all counts, she indicated that the NWLC will continue to push for the EEOC to use the data “meaningfully, and in good faith.”

The data is shared with other federal enforcement agencies, including the Labor Department’s Office of Federal Contract Compliance Programs. That agency has already indicated that it won’t use the current data collection.

Chutkan’s orders don’t dictate what the agency must do with the data after it’s been collected, but EEOC Chair Janet Dhillon speculated in November that a D.C. Circuit win could imply that the agency isn’t authorized to use the information. The agency hasn’t yet said what will be done with the data, win or not.

A longer term goal for the NWLC is holding Dhillon to her commitment to collect some form of pay data, Martin said. The EEOC announced in September that it won’t gather pay data once the current collection closes, but didn’t rule out revisiting the issue after further analysis.

“The party line at the EEOC remains that there is the recognition of some value in a pay data collection, even if there’s disagreement of if this is the right one,” Martin said, mentioning 2021 as the earliest possible date employers could expect to once again turn over a breakdown of worker pay data.

The case is Nat’l Women’s Law Ctr. v. OMB, D.C. Cir., No. 19-05130, oral arguments 1/24/20.

(Updated with additional reporting throughout.)

To contact the reporter on this story: Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editors responsible for this story: Karl Hardy at khardy@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

To read more articles log in. To learn more about a subscription click here.