On April 25, 2019, a United States District Judge in the District of Columbia ruled that large and mid-sized employers will have until September 30, 2019 to inform the EEOC how much they paid workers of different sexes, races and ethnicities in 2018. The Equal Employment Opportunity Commission (EEOC) was ordered to place a statement on its website informing employers of Judge Tanya Chutkan’s ruling and post the new requirement in the Federal Register by April 29, 2019.

Pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., employers are required to “make and keep such records relevant to the determination[] of whether unlawful employment practices have been or are being committed, . . . preserve such records” and produce reports as mandated by EEOC. Since 1966, the EEOC has required employers with 100 or more employees to file with the EEOC the “Employer Information Report EEO-1” (“EEO-1”). The EEO-1 requires employers to report the number of individuals employed by job category, sex, race, and ethnicity. The EEO-1 and related requirements have been revised over the years. However, on August 29, 2017, the Office of Management and Budget (“OMB”) decided to initiate a review and stay of the EEOC’s collection of pay data through a new version of the EEO-1. This stay remained in effect over a year and a half later.

The plaintiffs in this case filed a lawsuit against the EEOC and OMB, seeking, among other forms of declaratory relief, an order vacating the stay and reinstating the 2017 revised EEO-1 reporting requirements. On March 4, 2019, Judge Chutkan granted the plaintiffs’ motion for summary judgment, vacated the stay of the revised EEO-1 form and ordered that the revised EEO-1 form shall be in effect.

After subsequent amicus briefing by the U.S. Chamber of Commerce and other entities, the court conducted a status conference on April 25, 2019, during which Judge Chutkan accepted the EEOC’s proposal to make employers submit their 2018 pay data by September 30, 2019. Judge Chutkan also ordered the EEOC to collect a second year of pay data, giving it a choice between collecting employers’ 2017 data or 2019 data. She gave the EEOC an April 29 deadline to post a statement on its website informing employers of her decision and a May 3 deadline to decide which second-year dataset it will collect.

A written order will be forthcoming. The case is National Women’s Law Center, et al. v. Office of Management and Budget, et al., D.C. case no. 1:17-cv-02458-TSC.

Keesal, Young & Logan Employment Group

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