Dive Brief:
- The U.S. Equal Employment Opportunity Commission (EEOC) may eventually issue a rulemaking on pay data collection, Janet Dhillon, the agency's chair, said during a U.S. House of Representatives' Committee on Education and Labor hearing Sept. 19. Lawmakers questioned Dhillon about the commission's recent decision to not request EEO-1 Component 2 pay data beyond the current cycle; Dhillon cited the agency's determination that this data collection placed an undue burden on employers.
- "I cannot imagine that in this age of computers and data entry that it would be really that hard to collect this data," Rep. Kim Schrier, D-Wash., said. After noting that Starbucks and Nike have been able to volunteer Component 2 data without issue, she said: "But I also don't think that we can depend on the kindness and goodness of businesses to collect this data."
- "I think there is a better way to do a pay data collection," Dhillon said. "What the commission said [in its most recent notice] is that we are committed to going through a rulemaking — a Title VII rulemaking, which in my view is what should have been done in 2016, to allow for robust public comment and input into how we craft a pay data collection" that is "useful to the EEOC in its enforcement mission" without an undue burden. She did not offer a timeline for such a proposal.
Dive Insight:
Lawmakers held the hearing to assess the EEOC's and the U.S. Department of Labor's Office of Federal Contract Compliance Programs' (OFCCP) current priorities, as both of these agencies have proposed changes that some say will curtail their abilities to identify and remedy alleged discrimination.
The Component 2 mandate was adopted by the Obama administration but halted by President Donald Trump's White House. A federal judge ultimately put it back into effect for this year, but the agency, under Dhillon's leadership, said it won't seek to renew its request. This back-and-forth comes at a moment when a public demand for leaders to reckon with discriminatory workplace practices against women, workers with disabilities, people of color, older workers and the LGBTQ community is high. Systemic pay inequity is top of mind, with recent research indicating that pay gaps are getting worse and could take more than 100 years to close across the world.
When addressing Component 2 data at the hearing, Dhillon said EEOC had to weigh the unanticipated burden data collection placed on employers against the data's "utility" when it made its decision to not renew its request. She said keeping EEOC "efficient" was a main focus for the future. As EEOC endeavors to "[strike] a careful balance between enforcement and compliance assistance," Dhillon said, it believes "justice delayed is justice denied" for workers whose discrimination claims remain for long periods in the commission's backlog.
However, democratic representatives question the agency's ability to investigate employers' potentially biased pay practices without Component 2 data. "Why would we stop getting this data when data helps us make decisions?" Schrier asked Dhillon. "It may be a burden for companies, but it is really a burden for people who are systematically being paid less than they should be paid."
Distinct from the subject of pay data, representatives questioned OFCCP Director Craig E. Leen about a proposed rule that would give a broader definition to federal contractors with a religious mission. The rule would allow these contractors and subcontractors to cite their religious affiliation as a defense in employment discrimination claims — even if the U.S Supreme Court were to decide that gender identity and sexual orientation are protected classes under Title VII of the Civil Rights Act of 1964, experts previously told HR Dive.
