After more than two years of litigation, we forced the government to collect two years of pay data from 90% of large businesses before concluding the collection in February 2020.
The government’s appeal is pending. On April 13, 2020, along with the government, we informed the court of appeals that following the completion of the data collection, we believe that the government’s appeal is moot. We disagree with the government, however, about whether the district court decision should be vacated, a determination that the court of appeals will likely resolve in coming months.
In August 2016, after six years of analysis, the Equal Employment Opportunity Commission concluded that collecting aggregate pay data based on sex, race, ethnicity, and job type from large employers was necessary to enforce the nation’s civil rights laws. But in August 2017, the Trump administration abruptly reversed the prior approval of this data collection. Just one year after OMB approved the pay data collection, the OIRA 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 pay data collection.
Pay data reporting helps show hidden race and gender pay gaps. The EEOC’s data collection requirement applied to roughly 60,886 employers, collectively employing 63 million workers. 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’s decision to halt the pay data collection broke the law because it violated OMB’s own regulations and was arbitrary and capricious, in violation of the Administrative Procedure 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 ordered the EEOC to stop the pay data collection. The court also reinstated the collection.
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.
The Trump administration delayed compliance with the court’s order to reinstate the pay data collection, forcing us to go back to court to compel compliance. We successfully convinced the court to set a firm September 2019 deadline for the pay data collection, and, noting the government “does not have clean hands” in this case, the court imposed significant safeguards to ensure timely compliance. By the time the data collection was concluded in February 2020, 90% of companies had submitted two years of pay data to the EEOC.
In the midst of collecting the data under court order, the government appealed the court’s decision. Notably, the government’s appeal did not attempt to justify OMB’s decision to halt the pay data collection on the merits, and instead only addressed technical issues. The U.S. Court of Appeals for the District of Columbia Circuit heard arguments in January 2020. A large and diverse group of amici submitted briefs in support of the pay data collection. Following the district court’s approval of the completed data collection in February 2020, the parties agreed that the appeal is moot.
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.Learn More
Government Sought To Have The Case Dismissed - We Opposed.
The government tried to dismiss the case. It did not defend its decision on the merits and instead argued that the plaintiffs did not have standing. It also claimed that it was actively reconsidering the pay protection through a “multi-step reconsideration process.” We opposed these efforts, and in subsequent filings, we 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 pay data protection, Director Mulvaney had “not looked at” the pay data collection rule in five months.Learn More
DOCUMENTS REVEALED INDUSTRY LOBBYISTS WHO OBJECTED TO EQUAL PAY TRANSPARENCY HAD ACCESS TO OMB LEADERSHIP; IVANKA TRUMP COMPLICIT.
Records obtained by NWLC through a FOIA lawsuit revealed that industry lobbyists opposed to the pay data collection were able to communicate directly with OIRA leadership or senior staff repeatedly between February and August 2017. In that same period, OIRA failed to respond to requests from NWLC, on behalf of 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 obtained in a separate FOIA suit revealed that Ivanka was complicit in the rollback.Learn More
We moved for summary judgment.
As we showed in our motion for summary judgment, OMB did not have “good cause” to halt the pay data collection, as required by its own regulation, and the stay was arbitrary and capricious because the administration had failed to provide any reasoned explanation for its decision. We also demonstrated that OMB failed to conduct its own analysis, and instead relied on material submitted by corporate lobbyists without independently evaluating their merits.Learn More
Court ordered release of full Administrative Record.
The court ordered the administration to release the full administrative record, which was further evidence 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. 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
COURT DECLARED STAY UNLAWFUL, REINSTATED EQUAL PAY PROTECTION.
In a significant defeat for the Trump Administration, the court ruled on March 4, 2019, 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 pay data collection. Despite the court’s ruling, the government opened the 2019 EEO-1 data collection without requiring pay data, and the government refused to provide any meaningful assurances that it would collect the data without further court involvement.Learn More
ADMINISTRATION FAILED TO COMPLY WITH THE COURT ORDER AND WAS ORDERED TO COLLECT 2 YEARS OF DATA BY SEPTEMBER 30, 2019.
During extensive briefings and court appearances, we established that the EEOC was required to collect pay data for calendar years 2017 and 2018. On April 25, 2019, the court ordered the Trump administration 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 fully compensate for its unlawful actions by collecting two years of pay data, and provide regular reports to the court to ensure that it is on track to complete the data collection.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.
August - October 2019
THE GOVERNMENT SOUGHT TO PREMATURELY HALT THE COLLECTION AND, WITH SUPPORT FROM BIG BUSINESS, APPEALED THE CASE.
The administration’s lack of commitment to collecting pay data continued in October 2019, when it requested to stop collecting pay data earlier than required by the district court order. We opposed, and the court rejected the administration's request. Meanwhile, the government appealed the court’s orders to the U.S. Court of Appeals for the District of Columbia Circuit. The appeal did not address the merits of the district court’s decision, and as such, the government abandoned its argument that its actions were lawful. One week later, the Chamber of Commerce and the Eagle Forum, a long-time opponent of equal rights for women, filed separate amicus briefs in support of the administration’s appeal.Learn More
AMICI BRIEFS SUPPORTING EQUAL PAY LAWSUIT AGAINST ADMINISTRATION FILED.
In the appeals proceedings, five groups of amici supported our case. Briefs were filed by sixty-two Members of Congress, led by the Democratic Women’s Caucus, a coalition of 19 states, cities, and enforcement agencies, former EEOC Chair Jenny Yang, former DOL senior official Patricia Shiu, 23 civil rights organizations, and over 40 economists and researchers.Learn More
January - February 2020
We got EEOC to collect pay data from 90% of reporting companies.
On January 24, 2020, the court of appeals heard oral arguments on the government’s appeal. We agreed with the government that the EEOC may wind down collection of the data. On February 10, 2020, the federal district court issued its final order in this case.
March 31, 2020
Equal Pay Day: Where do we stand?
On April 13, 2020, along with the government, we informed the court of appeals that following the completion of the data collection, we believe that the government’s appeal is moot. We disagree with the government, however, about whether the district court decision should be vacated, a determination that the court of appeals will likely resolve in the coming months.
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 (2/13/2018) (pdf / 160 KB)
- Plaintiff Opposition to Motion to Dismiss (2/27/2018) (pdf / 284 KB)
- Motion for Summary Judgment (10/31/2018) (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)
- Order (3/4/19) (pdf / 372 KB)
- Hearing Transcript (4/25/19) (pdf / 288 KB)
- EEO-1 District Court Final Order (2/10/20) (pdf / 138 KB)
- Motion to Govern Further Proceedings (4/13/20) (pdf / 143 KB)
Jeffrey DubnerManaging Senior Counsel
Litigating challenges to unlawful actions, abuses of power, and threats to democracy on behalf of those who are harmed.Read the Bio