By, National Women’s Law Center
This week, the National Women’s Law Center, Democracy Forward, and the Labor Council for Latin American Advancement (LCLAA) filed a lawsuit against the Trump Administration over its decision to block a critical tool to help stop pay discrimination and close the wage gap.
In 2016, the Equal Employment Opportunity Commission (EEOC) finalized changes to the EEO-1, a form it has used for decades to collect workforce information from large employers. The change would have allowed the EEOC to confidentially collect pay data by race, gender, and occupational category from large employers starting in March 2018, to help shine a light on gender and racial wage disparities. Despite Ivanka Trump’s purported championing of women’s equal pay, this past August the Trump Administration’s Office of Management and Budget (OMB) ordered a “review and immediate stay,” indefinitely halting the pay data collection, with little explanation – and with Ivanka’s approval.
The Wage Gap Isn’t Going Away – But the Trump Administration Doesn’t Want to Address It
Despite decades-old laws outlawing pay discrimination, women and people of color still face a substantial wage gap compared to white, non-Hispanic men. Women working full time, year-round are typically paid 80 cents for every dollar paid to their male counterparts. Immigrants and women of color face an even wider wage gap – for every dollar made by their white, non-Hispanic male counterparts Black women typically made only 63 cents, Native women 57 cents, and Latina women 54 cents.
A lot of factors contribute to the wage gap, but even after controlling for race, region, unionization status, education, experience, occupation, and industry, 38 percent of the wage gap remains unexplained. That’s where the EEO-1 pay data collection came in. The EEOC would have been able to confidentially gather and analyze pay data, enabling the agency to evaluate trends and patterns across industries, investigate potential violations of antidiscrimination law more efficiently, and encourage employers’ voluntary compliance with equal pay laws through examination of their own pay practices and unjustified wage disparities.
The Trump Administration’s Rollback of the Equal Pay Data Collection is Illegal
The Trump Administration’s stay of the pay data collection doesn’t hold up to legal scrutiny. This equal pay initiative was the result of a six-year administrative review process at the EEOC, which included commissioning studies, holding a public hearing, and multiple public notice and comment periods. The EEOC determined that collecting pay data was “necessary” to enforce equal pay laws – in other words, necessary to doing its job. And yet, OMB’s August 2017 decision to abruptly pull the plug on this initiative came with no explanation and no opportunity for public comment – a process required by federal administrative law. Instead, in a one-and-a-half page memorandum, the Administration simply claimed that pay data collection had no “practical utility”.
We filed a Freedom of Information Act request in September to find out more about how OMB made the decision to halt the equal pay data collection, and who they spoke to – because they wouldn’t speak to us. OMB hasn’t produced any information yet, and we don’t know if it ever will. So we’re suing to reinstate the EEO-1 pay data collection. That way, the roughly 60,886 employers covered by the rule—who collectively employ 63 million workers—will no longer be able to continue to shield race and gender pay gaps from scrutiny.
The Trump Administration may think they can make bureaucratic decisions to block civil rights initiatives in secret, but the law requires more. So we’ll see them in court.