EEOC Chair Charlotte Burrows claimed a newly released report analyzing the Commission’s 2020 pay data collection from employers—Component 2 of the EEO-1 report—showed that the collection is a “useful tool” in combating pay discrimination. The report’s release is likely an initial step towards the EEOC resuming collection of pay data from employers in the future.
The EEOC originally approved the collection of pay data from employers through Component 2 of the annual EEO-1 report in 2016, but the collection was subsequently halted in 2017 by the Trump administration. A federal judge later ordered the data collection resumed for 2019 and 2020, and the EEOC announced in 2020 that the National Academies would study the data and offer recommendations as to whether the data collected was useful, and if and how the Commission should collect such pay data in the future.
Mixed results: The report found that the way the EEOC collected the data was ineffective, with unspecific job categories and pay bands that were too broad, resulting in unreliable data marked by “extreme errors.” Nevertheless, the report concluded that collecting pay data generally is useful for EEOC enforcement against employers engaging in pay discrimination. It also offers recommendations for future data collection.
EEOC Chair Burrows touted the results of the report, saying that “the study confirmed what we at the EEOC have long known – collecting and analyzing pay data can be a useful tool in preventing and combating pay discrimination in American workplaces.” Chair Burrows further stated that the report “validates our efforts to collect and use compensation data to achieve pay equity in our nation.”
Republican Commissioners disagreed with Chair Burrows’ assessment. Commissioner Sonderling stated that the report “is not a carte blanche approval for the Commission to hastily conduct another pay data collection,” and instead “should be interpreted as a warning to the Commission to thoughtfully research the issue, engage and be transparent to the public, and address privacy concerns, and the financial burdens of conducting a pay data collection.” Commissioner Lucas found the report to show that the collection was a “failed data project” with “significant issues not only with the data collection process but also the reliability and accuracy of the data collected by the EEOC, issues rendering the data practically useless.”
New pay data collection on the horizon? It is likely that the EEOC will resume collection of pay data from employers on an annual basis once it installs a Democratic majority at the Commission, which could be as soon as this fall. Republican Commissioners were united in their belief that should the EEOC decide to resume collecting pay data, it must first undertake a formal rulemaking process that solicits public input on the issue and incorporate the recommendations found in the NAS report. It remains to be seen whether that will be the case since the EEOC did not do so in 2016.
Outlook: President Biden’s nominee for the vacant Commission seat, Kalpana Kotagal—whose confirmation would give Democrats a majority—has remained stalled in committee in the Senate since May. It remains unclear if and when Majority Leader Schumer will be able to advance Kotagal to a full floor vote, meaning it could be several months before Democrats have a majority at the Commission. Until then, there will be no decision on whether to resume collection of employer pay data.