District Court Orders Employers to Submit Component 2 Data by September 30, 2019

The EEOC has been ordered to collect employers’ EEO-1 Component 2 pay data by September 30, 2019.  The D.C. District Court issued the order after finding back in March 2019 that Office of Management and Budget (OMB’s) decision to stay the collection of Component 2 pay data lacked the reasoned explanation required by the Administrative Procedure Act.  See our prior blog posts here, here, and here about National Women’s Law Center v. Office of Management and Budget, No. 17-cv-2458 (TSC) (D.D.C.).  Since then the court has been critical of the EEOC’s compliance with its order, and held a status conference and a hearing in March and April.  Its April 25, 2019 ruling contains several, strict instructions:

  • The EEOC is required to collect EEO-1 Component 2 pay data for 2017 and 2018.
  • 2018 data is due by September 30, 2019, and the EEOC must issue a statement on its website and to the Federal Register to that effect.
  • In lieu of 2017 pay data, the EEOC may collect 2019 data in the 2020 reporting year; if the EEOC opts to collect 2019 data instead, it must notify the court by May 3; otherwise the EEOC must collect 2017 data by September 30, 2019.
  • The EEOC must update its website by April 29, 2019, as to whether it has decided to collect 2017 or 2019 data.  If it has not decided, then it must issue a statement on its website and submit the statement for publication in the Federal Register.
  • The EEOC must report its progress to the court and plaintiffs’ counsel every 21 days of all steps taken to implement the collection of Component 2 data since the prior report to track progress to September 30, 2019.
  • The EEOC’s collection will not be deemed complete until the percentage of data reporters equals or exceeds the mean percentage of EEO-1 reporters in each of the past four years.
  • The revised EEO-1 form is valid until April 5, 2021, because the OMB’s stay of the implementation of the revised EEO-1 form tolled its effective date.

It’s unclear whether the EEOC will appeal and whether any appeal would include a stay of the district court’s order.  Employers should visit the EEOC website regularly for updates about the collection of 2017 pay data.  Orrick will continue to provide updates on this rapidly evolving area of the law.