US government halts gender, race, and ethnicity pay data reporting requirements

The White House

The US government has issued an immediate stay and review of an administration rule that would have required US organisations to report their employee pay data by gender, race, and ethnicity.

The Obama administration originally proposed a revision to the Employment Opportunity Commission’s (EEOC) EEO-1 form in January 2016 to expand its data collection requirements to include gathering information on pay by gender, race, and ethnic groups. This was to help focus enforcement of equal pay laws and provide insights into discriminatory pay practices.

The EEO-1 form was revised in September 2016 following approval from the EEOC and the Office of Management and Budget (OMB). The revisions included requests for employers with 100 or more employees and federal contractors with 50 or more staff to provide data on wages and hours worked. The revised form also required employers to report data on the range of compensation paid to employees in each demographic group, but organisations were not required to disclose individual employees’ salaries.

Employers would have been required to submit their data for 2017 by 31 March 2018. As a result of the stay, employers will now use the pre-September 2016 EEO-1 form to provide their 2017 data by March 2018. The previous EEO-1 form already included the collection of data on race, ethnicity, and gender by occupational category, and this will remain in effect.

On 29 August 2017, the OMB informed the EEOC that the revision would come under review, and the implementation of the changes would be halted under the Paperwork Reduction Act (PRA). The OMB stated that it is concerned that the revisions lack practical utility, are unnecessarily burdensome, and do not adequately address privacy and confidentiality issues.

Furthermore, the OMB determined that the circumstances relating to the data collection have changed since the initial proposals were made because data file specifications for employers were released after the public comment process and were also not included in the supporting statement for the collection of information. It therefore found that the original burden estimates were incorrect because they did not take these additional data file specifications into account. These factors provide the grounds for the OMB to conduct a review into the revisions.

Victoria Lipnic, acting chair at the EEOC, said: “The EEOC remains committed to strong enforcement of our federal equal pay laws, a position I have long advocated. [This] decision will not alter EEOC’s enforcement efforts.

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“I had consistently urged OMB to make a decision on this matter so that stakeholders would be aware of reporting obligations.

“Going forward, we at the EEOC will review the order and our options. I do hope that this decision will prompt a discussion of other more effective solutions to encourage employers to review their compensation practices to ensure equal pay and close the wage gap. I stand ready to work with Congress, federal agencies, and all stakeholders to achieve that goal.”