EEOC Not Requiring Pay Data with EEO-1 Submissions for Now, But Uncertainty Remains

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By: Connie N. Bertram and Jack Blum

On March 4, 2019 Judge Chutkan of the U.S. District Court for the District of Columbia issued a ruling that immediately reinstated the EEO-1 pay data reporting requirement.  The government has not yet appealed or sought to stay the ruling, leaving employers unclear about their EEO-1 reports, which are due by May 31, 2019.

On March 18, 2019 the EEOC issued a statement that it would only require the submission of Component 1 data regarding the demographics of employer workforces.  With respect to the Component 2 pay and hours data addressed in the Court’s ruling, the EEOC has stated only that it “is working diligently on next steps in the wake of the court’s order” and “will provide further information as soon as possible.”

After the EEOC issued its statement, the National Women’s Law Center and Labor Council for Latin American Advancement, the plaintiffs in the case challenging the withdrawal of approval for the collection of Component 2 data, filed a motion with the court asserting that the EEOC’s statement was not compliant with the March 4, 2019 decision and requesting an emergency hearing.  At the hearing this morning (March 19, 2019), Judge Chutkan required further briefing from the government and the plaintiffs, which must be filed by April 8, 2019. 

Accordingly, while the EEOC is not requiring the submission of Component 2 data for now, it is unclear whether the Court will find this approach to be compliant with its prior order.  Nor is it clear what action the Court would take if it finds the EEOC’s statement non-compliant.  With EEO-1 submissions due by May 31, 2019 and seemingly little chance of clarity before April 8, 2019, at the earliest, we will continue to follow these developments closely.

UPDATE: While no written order has yet issued, some sources have reported that Judge Chutkan required that the EEOC provide guidance by April 3, 2019 as to whether, when, and how employers will have to submit pay data as part of the 2018 EEO-1 submission.  The plaintiffs will then have until April 8, 2019 to respond to the EEOC’s guidance.