Top Democrats to OMB: Don’t Suppress Data on Pay Discrimination
WASHINGTON - Ranking Member Bobby Scott (VA-03), the top Democrat on the Committee on Education and the Workforce, Congressman Mark Takano (CA-41), the top Democrat on the Workforce Protections Subcommittee, and Congressman Don Beyer (VA-08), sent a letter to Office of Management and Budget (OMB) Director Mick Mulvaney requesting that he reverse a decision to stop the Equal Employment Opportunity Commission (EEOC) from collecting data on pay discrimination.
Under the Obama administration, the EEOC agreed to revise its pay data collection form – called the EEO-1 – to include pay data segmented by sex, race, and ethnicity. The updated form, which was finalized after months of public comment, was designed to understand and address persistent and pervasive problem of pay discrimination.
However, on August 29, 2017, under Director Mulvaney’s leadership, OMB delayed the update to the EEO-1 form. In a short memo, it erroneously asserted that the revisions were “unnecessarily burdensome.”
“The need to address systemic race and gender discrimination in the workplace is clear. Persistent pay gaps exist by race, gender, and ethnicity, and the evidence demonstrates that workplace discrimination is an important contributing factor,” the Members wrote. “We ask that OMB rescind the stay and update and reinstate the 2016 revisions to the EEO-1 pay data collection form as soon as possible.”
According to 2017 Bureau of Labor Statistics (BLS) data, the median weekly earnings of African American women was 67 percent of what white, non-Hispanic, men earned. Latina women were paid approximately 62 percent of what white, non-Hispanic men earned. On average, all women made just 81.8 percent of what white, non-Hispanic men earned.
The full text of the letter is available below and here.
Dear Director Mulvaney:
We are writing to express our concern over the Office of Management and Budget’s (OMB) stay on the 2016 revisions to the EEO-1 pay data collection form. Since this pay data collection was approved in 2016, there has been no change in the compliance burden. Additionally, in the year since OMB stayed the revisions, it has failed to work with the Equal Employment Opportunity Commission (EEOC) to update the revisions to the EEO-1 pay data collection form as required by the Paperwork Reduction Act (PRA). For these reasons, we ask that OMB rescind the stay and update and reinstate the 2016 revisions to the EEO-1 pay data collection form as soon as possible.
The EEOC has collected employer data through the EEO-1 form since 1966 and has collected and maintained sensitive employer information gathered through its investigations since it opened its doors in 1965. For over 50 years, companies have provided the EEOC with important employee demographic information, like sex, race, and ethnicity, by job category through the EEO-1 forms. In 2016, the EEOC issued the EEO-1 pay data collection form revisions because it recognized the need for updated tools to better address the persistent and pervasive pay discrimination based on gender and race. The EEOC went well beyond the regulatory requirements for public input for PRA updates and undertook a rigorous process over a seven-year period. This process included a pilot study and a forum with employer representatives, information technology professionals, human resources professionals, and statisticians. Forum participants unanimously agreed that the one-time burden to create custom reporting programs would be minimal and that the benefits of collecting this data far outweighed the minimal costs. OMB approved the EEOC’s final product on September 29, 2016.
The 2016 EEO-1 form revisions expanded employers’ obligations to provide pay data as it related to sex, race, and ethnicity for the first-time. This is data that employers already maintain in the normal course of business, and the majority of companies already submit EEO-1 surveys via electronic data submission. Because employers were being asked to report the data through a familiar form—the EEO-1—the revision was the least burdensome way of collecting data.
However, on August 29, 2017, OMB issued a stay of the 2016 revisions to the EEO-1 pay data collection form. The Office of Information and Regulatory Affairs’ (OIRA) one-and-a-half-page memorandum failed to describe the changed relevant circumstance or a full analysis of any erroneous burden estimates as required by the PRA’s regulations in order to issue a stay. The OIRA memo simply cited the authority it has under 5 C.F.R. 1320.10(f) and (g). Given the OMB’s approval of the revisions just a year before, a robust reasoning for its stay was warranted. The memo also asserted “[s]ome aspects of the revised collection of information . . . are unnecessarily burdensome, and do not adequately address privacy and confidentiality issues.” This assertion disregarded both the fact that many employers already maintain this information and the EEOC’s long history of maintaining sensitive data through the EEO-1 form. Additionally, in the over one year since the stay, there has been no indication that either OIRA or the EEOC have initiated a review of the 2016 EEO-1 revisions, and, as noted above, there has been no change in the compliance burden since the pay data collection was approved in 2016.
The need to address systemic race and gender discrimination in the workplace is clear. Persistent pay gaps exist by race, gender, and ethnicity, and the evidence demonstrates that workplace discrimination is an important contributing factor to these pay gaps. According to 2017 Bureau of Labor Statistics (BLS) data, the median weekly earnings of African American women was 67 percent of what white, non-Hispanic, men earned; Latina women were paid approximately 62 percent of what white, non-Hispanic men earned; and on average, all women made just 81.8 percent of what white, non-Hispanic men earned. These wage disparities also exist for men of color. The weekly earnings of African American men were only 73 percent of white men’s weekly earnings, and the weekly earnings of Hispanic men were only 71 percent of white men’s weekly earnings. Furthermore, researchers have concluded that 38 percent of the difference in women’s and men’s pay cannot be explained by factors such as education or career choice. As Dr. Heidi Shierholz noted in her recent testimony before the House Committee on Education and the Workforce:
“Even if you control for education, age, geography, etc…women make less than men; black workers make less than white workers … for the racial wage gap, [pay disparities] have not improved; they have actually deteriorated a little bit over the last 40 years … This kind of pay data collection would have allowed people to figure out where that’s going on and what we can do about it. So putting it on hold will just keep that kind of discrimination in the dark.”
The 2016 revisions to the EEO-1 would provide both the EEOC and the Office of Federal Contract Compliance Programs (OFCCP) with the ability to better analyze demographic employment data, enabling them to be better equipped to address race and gender pay discrimination in the workplace. As OMB delays in making a final determination, it leaves the EEOC and the OFCCP without the full suite of tools they need and further exacerbates their ability to conduct robust enforcement.
We ask that OMB rescind the stay and update and reinstate the 2016 revisions to the EEO-1 pay data collection form as soon as possible.
Sincerely,
Ranking Member Robert C. “Bobby” Scott (VA-03), Committee on Education and the Workforce
Ranking Member Mark Takano (CA-41), Subcommittee on Workforce Protections
Congressman Donald S. Beyer (VA-08)
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