EEO-1 Data Update: EEOC Satisfies its Obligations to Collect 2017 and 2018 Pay Data

February 19, 2020
On February 10, 2020, the Honorable Tanya S. Chutkan of the U.S. District Court for the District of Columbia held that the EEOC has satisfied its obligation to collect from employers EEO-1 forms containing pay data information (so-called “Component 2 Data”) for calendar years 2017 and 2018.

As we have previously discussed in our memorandum here, the EEO-1 form is a form gathering information on employee populations in certain broad bands of positions by race, gender and ethnicity, and is required of employers with 100 or more employees. In September 2016, during the Obama administration, the EEOC finalized a rule expanding the data to be reported by employers to include: (i) summary pay data based on W-2 wages, reporting the total number of full and part-time employees by race and gender in each of 12 pay bands listed for each EEO-1 job category (executive level, professionals, sales workers, etc.), for each of the employer’s physical locations; and (ii) the number of hours worked by employees in each pay band.

On August 29, 2017, under the Trump administration, the Office of Management and Budget (the “OMB”) announced an immediate stay of the rule, citing the Paperwork Reduction Act. The stay prompted a lawsuit brought by the National Women’s Law Center and the Labor Council for Latin American Advancement against the EEOC and the OMB, which resulted in a March 4, 2019 district court decision vacating the stay. Our memorandum discussing the decision can be found here

On April 25, 2019, Judge Chutkan accepted an EEOC proposal to collect 2018 Component 2 Data by September 30, 2019, and also directed the EEOC to collect 2017 Component 2 Data by that date. Judge Chutkan ruled that the EEOC’s collection of 2017 and 2018 Component 2 Data “would not be deemed complete ‘until the percentage of EEO-1 reporters that have submitted their EEO-1 Component 2 reports equals or exceeds the mean percentage of EEO-1 reporters that actually submitted EEO-1 reports in each of the past four reporting years.’” The court gave the EEOC the option of committing to collect 2019 Component 2 Data in 2020 in lieu of collecting 2017 Component 2 Data. Judge Chutkan required the EEOC to file status reports with the court every 21 days regarding its compliance with the order to collect 2017 and 2018 Component 2 Data by September 30. Our memorandum on Judge Chutkan’s April 25, 2019 decision can be found here.

The EEOC chose to collect 2017 Component 2 Data by September 30, 2019 in addition to collecting the 2018 data.  (The EEOC has appealed Judge Chutkan’s March 4, 2019 decision vacating the OMB’s stay of the rule, though its appeal did not alter the requirement to submit 2017 and 2018 Component 2 Data by September 30, 2019.)

On February 6, 2020, the EEOC informed Judge Chutkan that it had collected EEO-1 Component 2 Data from 88.8% of eligible filers for 2017 and 89.6% of eligible filers for 2018. The parties agreed that these percentages “equal[] or exceed[] the mean percentage of EEO-1 reporters that actually submitted EEO-1 reports in each of the past four reporting years” and, thus, that this collection satisfied the EEOC’s obligations to collect Component 2 Data for the 2017 and 2018 calendar years under the April 25, 2019 order. The plaintiffs requested an order requiring the EEOC to provide 60 days’ notice before disposal of the collected Component 2 Data. The EEOC opposed this request and represented that it planned to retain the collected data and that any decisions concerning data retention would be made in compliance with federal law.

On February 10, 2020, Judge Chutkan held that the EEOC had satisfied its obligations to collect 2017 and 2018 Component 2 Data. Judge Chutkan denied the plaintiffs’ request that the EEOC provide 60 days’ notice before disposing of the collected Component 2 Data. On its website, the EEOC stated that, consistent with the February 10 order, the EEOC “is no longer accepting filings of EEO-1 Component 2 pay data for either 2017 or 2018.”
 
With respect to any additional collections of Component 2 Data, as we discussed in our memorandum here, on September 12, 2019, the EEOC announced its intention to request that the OMB permit it to collect Component 1, and not Component 2, Data on 2019, 2020 and 2021 EEO-1 forms, while it considered the 2017 and 2018 Component 2 Data that was collected by September 30. Comments on the EEOC’s proposal were due on November 12, 2019. The EEOC has not yet formally requested permission from the OMB to collect only Component 1 Data for 2019, 2020 or 2021.

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