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Pay Data Crucial for Enforcement, Former Agency Heads Say (1)

Oct. 28, 2019, 4:24 PMUpdated: Oct. 28, 2019, 8:16 PM

Collecting pay data from every employer in the U.S. with 100 or more workers is critical for effective enforcement of federal anti-discrimination laws, Obama-era leaders of the EEOC and the Labor Department’s contractor watchdog told the D.C. Circuit.

Reporting pay data to the government also encourages businesses to proactively comply with the law, former Equal Employment Opportunity Commission Chair Jenny Yang and former Office of Federal Contract Compliance Programs Director Patricia Shiu wrote in an Oct. 25 amicus brief. The U.S. Court of Appeals for the District of Columbia Circuit is considering a Trump administration appeal challenging the revival of the controversial requirement.

The pay collection, known as “Component 2" of an annual workforce diversity report, required thousands of companies to submit to the EEOC for the first time their wage-and-hour data by race, sex, and ethnicity.

“By formalizing and institutionalizing pay data reporting, collecting Component 2 data makes it more likely that employers will identify and address pay equity on their own—increasing the Component 2’s positive impact,” they said in the brief.

The National Women’s Law Center and the Labor Council for Latin American Advancement sued the EEOC and the White House’s Office of Management and Budget in 2017, after OMB stayed the collection. Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia revived the pay data collection in March. The EEOC and OMB appealed, arguing that the worker advocates didn’t have standing to sue in the first place, and that Chutkan overstepped in advising how the pay data should be collected.

Yang and Shiu weren’t the only ones to file a “friend of the court” brief Oct. 25. They were joined by a group of more than 40 “statisticians, economists, management researchers, and other employment analysts"; 90 fair employment practices agencies, including the California Department of Fair Employment and Housing; the District of Columbia’s Attorney General; the Maryland Commission on Civil Rights; New York’s Attorney General and the New York City Commission on Human Rights; and the Democratic Women’s Caucus and Individual Legislators, among others. All groups filed on behalf of the worker advocacy groups.

“For the 77 million women, 37 million non-whites, and 29 million Hispanics in the U.S. civilian labor force today, these pay gaps represent many billions of dollars in lost earnings every year,” the group of statisticians, economists, and others wrote in their brief.

Employer-side groups also have weighed in on the case, filing an Aug. 26 amicus brief signed by the U.S. Chamber of Commerce, HR Policy Association, and the National Association of Manufacturers, among others, on behalf of the government.

The Labor Department said former OFCCP directors don’t speak on behalf of the current agency. “This individual filed the brief in her personal capacity,” an agency spokesperson said in an Oct. 28 email.

The EEOC declined to comment.

The deadline to submit pay data was Sept. 30, but the EEOC has said it will keep the submission portal open for an additional six weeks, until Nov. 11. The commission announced in September that it won’t pursue future pay data collections for now, saying the “unproven utility” of the information is “far outweighed” by the burden exerted by employers to collect it.

The agency has asked Chutkan to determine by Nov. 1 whether the pay data collection is complete, based on the number of employers that had submitted as of Oct. 8. Worker advocates disagree, saying more employers still must turn over the wage-and-hour data.

(Adds comment from the Labor Department.)

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

To contact the editor responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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