After our court victory, the Trump administration begins collecting pay equity data
We will remain vigilant to ensure the administration adheres to its legal obligations rather than seeking to undermine the data collection.
After six years of analysis, the Equal Employment Opportunity Commission concluded that collecting pay equity data was necessary to enforce the nation’s civil rights laws. The Trump administration abruptly reversed the prior approval of this data collection. In August 2017, in one of her first actions as President Trump’s “regulatory czar” and nearly one year after OMB approved the pay data collection, theOIRA Administrator ordered the EEOC to stay the data collection in a memorandum that was barely over one page long. The memo contradicted the EEOC’s conclusion that the data was critical to enforcing anti-discrimination and related civil rights laws and instead claimed there was no “practical utility” to the equal pay data collection.
Without these pay data requirements, race and gender pay gaps at roughly 60,886 employers—collectively employing 63 million workers—could continue to be shielded from scrutiny. Despite President Trump’s claim that women will “make the same if you do as good a job” as men, U.S. women currently are paid $0.80 for every dollar their white male counterparts make. For women of color this gap is even bigger, with Latina and African-American women making $0.54 and $0.63 on the dollar, respectively, compared to white, non-Hispanic men.
With the National Women’s Law Center as co-counsel, we sued OMB on behalf of NWLC and the Labor Council for Latin American Advancement. OMB halting this equal pay protection violated the APA because it was arbitrary and capricious, contrary to OMB’s regulations and contrary to the Paperwork Reduction Act.
We also sued for documents to uncover Ivanka Trump’s role in this rollback. In documents the Trump administration had illegally withheld, we discovered she was complicit in the decision: records showed Ivanka’s Chief of Staff and other key personnel participated in White House meetings to halt the protection.
In a significant defeat for the Trump administration, the court ruled on March 4, 2019, that OMB broke the law when it halted this critical tool, and it ordered the equal pay policy be fully reinstated. Specifically, the court concluded that by reversing its prior policy without any reasoned explanation, the administration violated the APA’s prohibition of “arbitrary and capricious” policymaking.
In issuing its opinion, the court found that:
- OMB’s justification for halting the pay data collection was “misdirected, inaccurate, and ultimately unpersuasive.”
OMB’s action violated its own regulation.
- OMB’s decision to stay the collection of information lacked the reasoned explanation that the APA requires, and was therefore arbitrary and capricious.
- The deficiencies in OMB’s decision were substantial, OMB provided inadequate reasoning to support its decision, and OMB’s reasoning lacked support in the record.
- OMB had improperly relied on speculation by industry lobbyists.
Since the court’s decision, the Trump administration has delayed compliance with the court’s order to reinstate pay data collection. Due to this failure to comply, the court set a firm September deadline for the pay data collection.
August 29, 2017
OMB orders the EEOC to stay pay data collection.
After six years of analysis, which included significant interagency consultations and multiple lengthy public notice and comment periods, the EEOC concluded that employee pay data was critical to enforcing the nation’s anti-discrimination and related civil rights laws. One year later, in a memorandum that was barely over one page long, OMB echoed three brief letters sent by the Chamber of Commerce and other industry lobbyists in 2017 and claimed there was no “practical utility” to the equal pay data collection.
November 15, 2017
We filed our lawsuit against OMB.
February 13, 2018
The government tried to dismiss the case.
It did not defend its decision on the merits and instead claimed that it was actively reconsidering the equal pay protection through a “multi-step reconsideration process.
February 27, 2018
We opposed the government’s motion to dismiss.
In subsequent filings we also pointed out statements from then-OMB Director Mick Mulvaney showing that, despite representing to the court in February 2018 that OMB was actively reconsidering the equal pay protection, Director Mulvaney testified he “has not looked at” the equal pay data collection rule since September 2017.
Documents reveal industry lobbyists who objected to equal pay transparency had access to OMB leadership.
In records obtained by NWLC through FOIA lawsuits, industry lobbyists requested the rescission of the equal pay tool directly to OIRA leadership or senior staff repeatedly between February and August 2017. In that same period of time OIRA failed to respond to requests from NWLC, with support from approximately 90 other civil rights and women’s organizations, to meet with equal pay stakeholders to hear their views on the importance of the tool.
Documents reveal Ivanka Trump played a role in this rollback.
NEWSWEEK: Ivanka Trump was more than complicit in Obama equal pay rollback—she had a hand in it, watchdog allegesLearn More
We moved for summary judgement.
The administration had failed to provide any reasoned explanation or defense of is decision. We also demonstrated that OMB failed to conduct its own analysis and acted solely on requests from corporate lobbyists without any evaluation of their merits.
Court ordered release of full Administrative Record.
The record revealed that OMB conducted no analysis of its own in halting the pay data collection, and instead merely parroted complaints from the Chamber of Commerce and other big business-backed lobbyists. In contrast, the administration failed to consider, let alone rebut, any comments it received in support of the pay data collection. Additionally, the administration failed to consider the impact that the elimination of the pay data collection would have on the EEOC’s antidiscrimination mission and the urgent need to close the wage gap.Learn More
February 7, 2019
Court rejected attempt to keep a key memo out of the lawsuit.
The government withheld from the Administrative Record a key EEOC memorandum that disavowed the stated reason for the stay. This memo, which was initially obtained by the ACLU, states that the lobbyists’ concern about the data file specifications—the only concrete justification the administration provided—did not warrant reconsideration. The EEOC’s analysis reached the exact same conclusions that we voiced in our lawsuit and that the administration’s arguments had denied. OMB’s actions were directly contrary to the only analysis undertaken by the government anywhere in the record.Learn More
March 4, 2019
Court declared stay unlawful, reinstated equal pay protection.
In a significant defeat for the Trump Administration, the court ruled that Trump’s OMB broke the law when it halted this critical tool. Specifically, the court concluded that by reversing its prior policy without any reasoned explanation, the administration violated the APA’s prohibition of “arbitrary and capricious” policymaking. As a result, the court fully reinstated the equal pay policy.Learn More
March 18, 2019
The administration inexplicably failed to include the pay data collection in the current year’s equal employment data collection from large employers—despite the court requirement to do so.
After a hearing one day later, the court then ordered the government to submit a plan for reinstating the equal pay protection.
April 3, 2019
The administration reversed its prior assertion that it would only need “one day” to comply with the court’s order and instead told the court that it needed months.
These statements echoed arguments made by corporate lobbyists for further delay.
April 8, 2019
In a new filing, we challenged the administration's failure to comply with the court order.
The government’s attempt to justify its failure to comply was baseless, and its proposal lacked assurances that it would complete the equal pay data collection promptly. The administration also appears to be attempting to use non-compliance to run out the clock on OMB’s three-year approval process for the data collection, set to expire September 30, 2019.
April 11, 2019
A federal judge ordered the Trump administration to appear in court.
The court ordered representatives from EEOC, OMB, and any other agency that has “particularized and thorough knowledge” of the issues raised by the administration to attempt to justify its delay to appear and be prepared to testify.
April 25, 2019
Court Orders Administration to Collect Equal Pay Data by September
A federal court ordered the Trump administration to take immediate steps to comply with its March 4, 2019 order by collecting data on worker pay by gender, race and ethnicity no later than September 30, 2019. It also ordered that the administration must fully compensate for its unlawful stay of this data collection by collecting two years of pay data, and it must provide regular reports to the court to ensure that it is on track to complete the data collection timely.Learn More
July 15, 2019
EEOC begins pay equity data collection
The Trump administration opened its data portal for employers to submit this critical information. We will remain vigilant to ensure the administration adheres to its legal obligations and properly implements the collection as ordered by the court.
In the news
U.S. News & World Report / November 15, 2018
Teen Vogue / November 28, 2017
National Law Journal / November 15, 2017
Bloomberg BNA / November 15, 2017
Bustle / November 16, 2017
- Complaint As Filed (11/15/2017) (pdf / 282 KB)
- Motion to Dismiss (2/13/18) (pdf / 21 KB)
- Motion to Dismiss Memo (pdf / 160 KB)
- Plaintiff Opposition to Motion to Dismiss (2/27/2018) (pdf / 284 KB)
- Motion for Summary Judgment (10/31/18) (pdf / 7 MB)
- Select Records (pdf / 7 MB)
- Reply in Support of Motion for Summary Judgment, Opposition to Defendants' Cross-Motion for Summary Judgment (1/15/19) (pdf / 297 KB)