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EEOC Chair Makes Case on Hill for Access to Employer Pay Data

April 27, 2022, 6:43 PM

A review of the Equal Employment Opportunity Commission’s previous collection of pay data found that the information could help the agency, EEOC Chair Charlotte Burrows said, teasing a return of the controversial employer reporting requirement.

Burrows told a House Education and Labor subcommittee Wednesday that the EEOC is waiting for the National Academy of Sciences to provide a recommendation on how to use pay data, but said staff working on the review “have looked at the pay data and are able to say that it would be very useful to us.” Pay discrimination often goes unnoticed without access to such data, the agency chief said.

During the Obama administration, the agency required companies to disclose pay data through the annual EEO-1 survey, which requires employers with more than 100 employees to provide demographic data on their workers. That was the first time the agency collected detailed pay information from businesses, broken down by race, ethnicity, and gender.

The Trump administration discontinued the requirement, spurring litigation from pro-worker groups. Under a court order, the EEOC initiated another, one-time pay data collection from private employers that concluded in 2020.

At the commissions request, an Academy panel has been conducting a review of the EEOC’s pay data collection since 2020 and plans on making recommendations for improvement. Burrows has previously said the agency would like to access employers’ pay data, through the EEO-1 or otherwise.

Full committee ranking member Virginia Foxx (R-N.C.), who brought up the topic at Wednesday’s hearing, called the pay data requirement “burdensome” to businesses. She added that the commission has no way of keeping the information confidential.

Burrows responded by saying that part of the reason it has taken so long to narrow the gender pay gap is because the agency “needs more information on the law enforcement side to be able to attack that very pernicious problem.”

“One of the difficulties has been the lack of specific pay data for the agency as we start to look at where to focus our resources,” she said.

‘Long-Standing Gap’

Burrows used the example of Lilly Ledbetter, who is the namesake of the of the 2009 Lilly Ledbetter Fair Pay Act, which extended the time period workers could sue for discriminatory pay compensation. Ledbetter only learned that she was making less than male colleagues through an anonymous note.

In her prepared opening statement, Burrows said “the lack of access to pay data has been a long-standing gap in the EEOC’s enforcement toolbox for addressing pay discrimination.”

“Collecting and analyzing pay data will enhance enforcement of federal civil rights laws and help close gender, ethnic, and racial pay gaps by allowing the agency to better identify patterns of potential discrimination in pay and promotions or job segregation,” Burrows said in her statement.

Despite having a Democratic chair, the agency currently has a 3-2 Republican majority. A majority vote would be necessary to add a pay data requirement to the EEO-1 form.

President Joe Biden announced last month that he would nominate plaintiffs'-side civil rights attorney Kalpana Kotagal to the commission to replace Republican Commissioner Janet Dhillon, whose term expires in July. If confirmed, Kotagal would give the EEOC a Democratic majority.

To contact the reporter on this story: J. Edward Moreno at jmorenodelangel@bloombergindustry.com

To contact the editors responsible for this story: Laura D. Francis at lfrancis@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com