The Saga Continues: EEO-1 Pay Data Collection Extended Again

Last week, U.S. District Court Judge Tanya S. Chutkan ruled that the EEOC may not discontinue its pay data collection efforts on November 11, 2019, but rather, must continue its collection efforts until it has collected from at least 98.3% of eligible reporters and must make all efforts to do so by January 31, 2020.  The ruling is the latest in a lengthy saga regarding whether EEO-1 Component 2 pay data (data on employees’ W-2 earnings and hours worked across broad job categories, and broken down by ethnicity, race, and sex) would be collected—a saga that began with the Office of Management and Budget staying collection efforts, and culminated last Spring when Judge Chutkan ruled the decision to stay the collection lacked the reasoned explanation required by the Administrative Procedure Act (see overview here).  After vacating the stay, Judge Chutkan initially set the deadline for data collection for May 31, 2019, but later extended it to September 30, 2019.

Following the September 30, 2019 deadline, the EEOC announced that its data collection efforts would remain open for six weeks through November 11, 2019, and, in the filing that instigated this ruling, moved the court for an order determining that data collection was complete.  The court denied the motion on the basis that the EEOC had not met the requirement of collecting from a sufficient number of employers—that is, from a number of reporters that “equals or exceeds the mean percentage of EEO-1 reporters that actually submitted EEO-1 reports in each of the past four reporting years.”  When the EEOC filed its motion, it had obtained results from only 81.1% of eligible filers for 2017 and 81.5% of eligible filers for 2018, which exceeded the mean percentage of reports submitted on time in previous years, but not the mean percentage of reports actually submitted overall—including those submitted past the deadline.

As a result, although the EEOC does not guarantee how long it will keep its pay data collection portal open, it appears that the portal will stay open at least through January 31, 2020.  Luckily, it appears employers will not have to repeat this process next year given the fact that (as reported here) the EEOC has decided not to request renewed authorization for collection of pay data in future years.  Meanwhile, the EEOC has scheduled a hearing on November 20, 2019 to discuss the future of the revised EEO-1 form.  Stay tuned for further updates.