On April 25, 2019, Judge Tanya Chutkan of the United States District Court for the District of Columbia ordered that mid-size and large employers (i.e., private employers, including federal contractors, with 100 employees or more) provide pay data to the U.S. Equal Employment Opportunity Commission (“EEOC”) by September 30, 2019, as dictated by the EEOC’s 2016 rule adding this requirement to employers’ EEO-1 submissions. In her decision, Judge Chutkan gave the EEOC the option of requiring employers to submit pay data from 2017 and 2018 by September 30, or to submit 2018 data by the September 30 deadline, and 2019 data during the 2020 collection cycle. In their submission of pay data, employers must report the amount of hours worked and the pay received by workers of different sexes, races and ethnicities. The EEOC had until April 29, 2019 to provide notice on its website regarding this decision and until May 3, 2019 to decide which additional data collection is required.

This decision arises from a November 2017 lawsuit brought by the National Women’s Law Center and the Labor Counsel for Latin American Advancement against the Office of Management and Budget (“OMB”) following a decision by OMB to stay the new pay-data rule, which was supposed to have gone into effect in March 2018. Nat’l Women’s Law Ctr. v. Office of Management and Budget, No. 17-cv-2458 (U.S.D.C.-D.D.C.). While business advocates have opposed implementation of the rule for fear of the administrative burdens it would impose, and because of the potential for liability based on misinterpretation of the data, employee advocates have championed the rule as a means of combating workplace inequality. Given the strong business-driven concerns with respect to such reporting requirements, there is the possibility of an appeal in the current litigation that could impact the reporting deadline. However, based on Judge Chutkan’s ruling, and her evident frustration with the EEOC’s failure to prepare for the possibility of collecting this data, employers must assume that the new deadline will hold and start working on complying with their new reporting obligations.