Hunton Employment & Labor Perspectives

Businesses with at least 100 employees and federal contractors with at least 50 employees must annually file an EEO-1 Private Sector Report disclosing to the Equal Employment Opportunity Commission the number of women and minorities they employ by job category, race, sex and ethnicity.  Covered employers have been providing this traditional race-ethnicity and sex data (referred to as “Component 1 data”) to the Commission for over half a century.  The EEOC uses it to analyze employment patterns and support civil rights enforcement.

During the Obama-era, the Commission revised the EEO-1 form to also require employers to report wages and hours worked by job category, race, ethnicity and sex (referred to as “Component 2 data”) hoping it would “encourage and facilitate greater voluntary compliance by employers with existing federal pay laws,” as well as help the government investigate “employers that are unlawfully shortchanging workers based on their gender, race or ethnicity.”  The pay-data provisions were suspended in 2017, however, by the Trump administration.  According to the Office of Management and Budget, the concern was that “some aspects of the revised collection of information lack practical utility, are unnecessarily burdensome and do not adequately address privacy and confidentiality issues.”  Employers that opposed the expanded data collection said the income data would not provide adequate information about pay disparities.

After reviewing the EEOC’s requested guidance, last week, D.C. District Court Judge Tanya S. Chuktan ordered that employers must begin providing pay data for the current reporting period (October - December 2018) by September 30, 2019.  The Court also ordered that the EEOC could collect one additional year of pay data, either 2017 or 2019, at its designation.

On May 3, the EEOC announced that it had decided to require submission of calendar year 2017 data, meaning employers must now submit 2017 and 2018 data to the Commission by the September 30 deadline.

Although the Department of Justice filed an appeal of Judge Chutkan’s ruling, the appeal does not stay the Court’s orders or alter employers’ obligations to submit Component 2 data by September 30.