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Labor Department Won’t Use EEOC Pay Data for Bias Probes (1)

Nov. 22, 2019, 2:34 PMUpdated: Nov. 22, 2019, 8:34 PM

The Labor Department won’t accept worker pay data broken down by race, sex, and ethnicity from the Equal Employment Opportunity Commission, saying that information isn’t necessary for it to flag potential discrimination at federal contractor worksites.

By court order, the EEOC is collecting pay data from employers for the first time in the agency’s history as part of an annual workforce diversity survey, known as the EEO-1. Worker advocates swiftly criticized the move by the DOL’s Office of Federal Contract Compliance Programs, which audits government contractors and has sued companies like Oracle and TIAA for allegedly underpaying women and minorities.

“By deciding to ignore the EEO-1 pay data before the historic collection of this data has even been completed, the Trump Administration makes it clear that its priority is protecting employers from scrutiny rather than enforcing pay discrimination laws,” said Emily Martin, Vice President for Education & Workplace Justice at the National Women’s Law Center, one of the groups that sued the Trump administration in 2017 to revive the collection. “This is a willful head-in-the-sand approach that overwhelmingly impacts women—particularly women of color—who deserve much more.”

The OFCCP’s decision potentially could allay concerns previously expressed by employers that the pay data they turn over to the EEOC could be publicly exposed through Freedom of Information Act requests.

The office has been used as a backdoor method of accessing EEO-1 data through FOIA requests in the past, because the EEOC won’t disclose the information. Journalists and other parties have used the data to see a company’s diversity and inclusion metrics, but the OFCCP has disagreed over what information can be shielded from FOIA requests.

The commission has shared EEO-1 diversity data with the OFCCP in the past, “to avoid duplicative information collections and minimize the burden on employers,” according to a Nov. 22 Federal Register notice. But the OFCCP now says the pay data isn’t specific enough, though it still will accept the diversity information.

The agency acknowledged that the pay data could be useful when neutrally scheduling federal contractors for review, but said it isn’t detailed enough to analyze for pay inequities among similar employees, as required by Title VII of the 1964 Civil Rights Act.

“OFCCP receives up-to-date, employee-level pay data from contractors that are selected for compliance evaluations,” the agency said. “Therefore, OFCCP does not need the EEO-1 Component 2 pay data for that purpose.”

John Fox, a management-side attorney with Fox, Wang & Morgan and a former Reagan-era OFCCP official, agreed that “the data are worthless to discrimination investigators.” Fox has worked with the OFCCP on a number of bias cases.

One of the few government agencies that has legal authority to audit for pay disparities, the OFCCP recently has settled pay discrimination allegations with Intel, Goldman Sachs, and Dell.

The EEOC declined to comment, and the OFCCP didn’t respond to a request for a comment.

(Updated with additional reporting.)

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

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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