During the Obama administration, the Equal Employment Opportunity Commission (EEOC), in an effort to address pay discrimination, sought to require organizations that file EEO-1 forms (i.e., those with at least 100 employees or federal government contractors with 50 or more employees) to report additional pieces of information — W-2 wage data and hours worked within 12 pay bands by sex, race and ethnicity for each of the 10 EEO-1 job categories. The purpose of this requirement was to provide the EEOC with information to assess pay disparities along sex and race lines. The pay data collection requirement was set to be implemented on March 30, 2018, but the Trump administration’s Office of Management and Budget (OMB) stayed the requirement on August 29, 2017, concluding that it violated the Paperwork Reduction Act.

Subsequently, the National Women’s Law Center and the Labor Council for Latin American Advancement sued the OMB in the U.S. District Court for the District of Columbia, arguing that the OMB’s stay should be vacated and the EEO-1 pay data collection requirement reinstated. In a March 4, 2019 decision, the court agreed and lifted the stay and reinstated the pay data collection requirement.

That decision left employers confused about whether they would have to submit the pay data (“Component 2” data) by this year’s EEO-1 deadline of May 31, 2019 (postponed because of the government shutdown) along with “Component 1” data, which is what employers historically have been required to present. The plaintiffs advocated for a deadline of May 31. Employer groups protested that collecting the required data by May 31 would be too burdensome, and the EEOC argued that it could not comply with a May 31 deadline to submit pay data because it would need time to develop the infrastructure to collect and secure the pay data and to retain a contractor to assist.

In an April 25 ruling, the court set a deadline of September 30, 2019 for employers to submit pay data for 2018. The court’s ruling required that employers submit two years of pay data, for 2018 and either 2017 or 2019. The court left it to the EEOC to decide whether to request data for 2017 or 2019. The EEOC announced on its website on May 3 that it will require pay data for 2017, in addition to data for 2018, to be submitted by September 30, 2019. The EEOC posted the following:

Notice of Immediate Reinstatement of Revised EEO-1: Pay Data Collection for Calendar Years 2017 and 2018

EEO-1 filers should begin preparing to submit Component 2 data for calendar year 2017, in addition to data for calendar year 2018, by September 30, 2019, in light of the court's recent decision in National Women's Law Center, et al., v. Office of Management and Budget, et al., Civil Action No. 17-cv-2458 (D.D.C.). The EEOC expects to begin collecting EEO-1 Component 2 data for calendar years 2017 and 2018 in mid-July, 2019, and will notify filers of the precise date the survey will open as soon as it is available.

Filers should continue to use the currently open EEO-1 portal to submit Component 1 data from 2018 by May 31, 2019.

The court’s ruling resolves the uncertainty that employers have faced since March 4 regarding the deadline by which they have to submit pay data. Employers need to take immediate steps, if they have not already done so, to establish the necessary systems for collecting and reporting that data. Employers should also take the opportunity to self-audit their pay data to identify any pay disparities along gender or race lines and to evaluate whether any such disparities should be remedied.