After Court Defeat, Trump Administration Again Tries to Block Pay Transparency Tool

Five “Friend of the Court” Briefs Filed in Support of NWLC, LCLAA and Democracy Forward’s Legal Fight Against Wage Discrimination

Washington, D.C.— Last Friday, 62 Members of Congress, led by the Democratic Women’s Caucus, were joined by a coalition of 19 states, cities, and government agencies led by California’s Attorney General and Department of Fair Employment and Housing, former EEOC Chair Jenny Yang and former DOL senior official Patricia Shiu, 23 civil rights organizations, and over 40 economists and researchers, in filing five separate amicus briefs supporting a lawsuit that successfully reinstated the collection of equal pay data following the Trump administration’s unlawful decision to halt that collection.

In a lawsuit filed in November 2017, the National Women’s Law Center and the Labor Council for Latin American Advancement, represented by Democracy Forward, successfully reversed the administration’s unlawful decision to stop the collection of pay data. The administration attempted to justify this decision with arguments that collecting pay data by gender, race, and ethnicity was too burdensome for employers, which the trial court rejected as lacking support. Although the Trump administration currently is appealing the trial court decision, over the past four months over 75% of large employers submitted pay data in response to the reinstated collection. Friday’s amici filers describe efforts to address pay discrimination, including the necessity and significant utility of the reinstated data collection, how those efforts are impacted by the Trump administration’s continued hostility to adressing pay equity, and how such administration action is contrary to Congressional action on the issue.

  • The Democratic Women’s Caucus led brief, signed by 62 Members of Congress, describes Congress’ “longstanding commitment to close the gender and racial wage gaps and eliminate the discrimination which has persisted in the workplace for over fifty years.” The administration’s decision to halt equal pay data collection, the Members of Congress state, is “inconsistent with steps Congress has taken to enhance efforts to eliminate wage discrimination,” including requiring the collection as part of the bipartisan Paycheck Fairness Act. “The important information that will be gained with the enhanced EEO-1 is necessary for the EEOC to do its job as Congress intended – preventing discrimination in the workplace.

  • In the brief led by California Attorney General Xavier Becerra, 19 states, cities, and civil rights enforcement agencies that cover 69 million civilian workers explain that “America’s pay gap persists in large part because it is hidden— particularly in the private sector” and “without the information necessary to identify potential violations, pay discrimination victims and the enforcement agencies created to protect them, are restricted from realizing the promise of state and local equal pay laws.” These enforcement agencies, which are entitled to obtain pay data from the EEOC, say the information is beneficial “to identify, investigate, and remedy claims of discrimination, to educate the public, and to deter future violations.

  • Jenny Yang, former Chair, Vice Chair, and Commissioner of the EEOC and Patricia Shiu, former Director, Department of Labor Office of Federal Contract Compliance Programs write that “OMB’s unlawful stay frustrates EEOC and OFCCP’s goal of ending pay discrimination in employment, reduces the agencies’ ability to ensure voluntary compliance, and impedes efficient enforcement activities.

  • Twenty-three organizations working to eliminate pay disparities based on forms of employment discrimination state that “at this moment of unprecedented attention to workplace gender inequality, the lack of progress toward pay parity in the last half century is starker than ever” and that “requiring the EEOC to proceed with pay data collection was amply justified by both the law and the circumstances.

  • Economists, statisticians and researchers explain that “for the 77 million women, 37 million non-whites, and 29 million Hispanics in the U.S. civilian labor force today, these pay gaps represent many billions of dollars in lost earnings every year.” Further, “these continuing disparities suggest the importance of analytical and legal tools to address the problem, including [the EEOC pay data collection].

The Trump administration is continuing its assault on equal pay. On October 23, 2019, NWLC and LCLAA opposed the Trump administration’s request to the district court to stop collecting pay data earlier than required by the district court order. In September 2019, the administration announced it likely will not collect additional years of pay data in the future.

The amicus briefs filed in support of the plaintiffs were filed on Friday, October 25, 2019 by:

Democratic Women’s Caucus and Individual Members of Congress: The Democratic Women’s Caucus is comprised of all ninety-one Democratic Women in the U.S. House of Representatives. Representatives Lois Frankel, Brenda L. Lawrence, and Jackie Speier serve as the Co-Chairs of the Caucus. Representative Veronica Escobar and Representative Deb Haaland serve as the Vice Chairs of the Caucus. Signers include: Reps. Gwen Moore, Grace F. Napolitano, Cheri Bustos, José E. Serrano, Eleanor Holmes Norton, Donald S. Beyer, Jr., Alcee L. Hastings, Nydia Velázquez, Gilbert R. Cisneros, Jr., Barbara Lee, Raúl M. Grijalva, Danny K. Davis, Debbie Wasserman Schultz, Grace Meng, Illhan Omar, Donna Shalala, Anna G. Eshoo, Darren Soto, Ann Kirkpatrick, Ruben Gallego, Emanuel Cleaver, II, Debbie Dingell, Frank Pallone, Jr., Lisa Blunt Rochester, Jan Schakowsky, Bill Foster, Kathy Castor, Susan A. Davis, Ann M. Kuster, Andy Levin, Norma J. Torres, Nita M. Lowey, Chellie Pingree, Ayanna Pressley, Alma S. Adams, Bonnie Watson Coleman, Adriano Espaillat, Mark DeSaulnier, Rashida Tlaib, André Carson, Adam Smith, Judy Chu, Rosa L. DeLauro, Julia Brownley, Joseph P. Kennedy, James P. McGovern, Jerrold Nadler, Frederica S. Wilson, Pramila Jayapal, Linda T. Sánchez, Abigail Spanberger, Yvette Clark, Earl Blumenauer, Carolyn B. Maloney, Joyce Beatty, Bobby L. Rush, and Steve Cohen.

Amici States and Enforcement Agencies: California Attorney General Xavier Becerra and California’s Department of Fair Employment and Housing were joined by the attorneys general of Delaware, Illinois, Nevada, New Jersey, New York, Oregon, Virginia, Washington, and the District of Columbia, state civil rights agencies including the Connecticut Commission on Human Rights and Opportunities, Illinois Department of Human Rights, Maine Human Rights Commission, Maryland Commission on Civil Rights, Minnesota Department of Human Rights, Nevada Equal Rights Commission, Oregon Bureau of Labor and Industries, Pennsylvania Human Relations Commission, Rhode Island Commission for Human Rights, and Washington State Human Rights Commission, and the Baltimore Office of Civil Rights and Wage Enforcement, New York City Commission on Human Rights, and Philadelphia Commission on Human Relations.

Former EEOC and OFCCP Officials: Jenny R. Yang (Former Chair, Vice Chair, and Commissioner of the Equal Employment Opportunity Commission) and Patricia A. Shiu (Former Director, Office of Federal Contract Compliance Programs, Department of Labor).

Women’s Equality Non-Profit Organizations: 9TO5, National Association of Working Women, American Association of University Women, A Better Balance, Coalition of Labor Union Women, Equal Rights Advocates, Employee Rights Advocacy Institute for Law & Policy, California Women’s Law Center, Family Values @ Work, Gender Justice, Institute for Women’s Policy Research, KWH Law Center for Social Justice and Change, Legal Aid at Work, Legal Momentum, Legal Voice, National Asian Pacific American Women’s Forum, The National Center for Law and Economic Justice, National Employment Lawyers Association, National Employment Law Project, National Organization for Women Foundation, National Partnership for Women & Families, Women Employed, The Women’s Law Center of Maryland, Women’s Law Project.

Statisticians, Economists, Management Researchers, Employment Analysts: Randy Albelda, Ph.D. (Professor Of Economics, University of Massachusetts Boston); Derek R. Avery, Ph.D. (David C. Darnell Presidential Chair of Principled Leadership, Wake Forest University); M. V. Lee Badgett, Ph.D. (Professor of Economics and Faculty Co-Director of Center For Employment Equity, University of Massachusetts Amherst; Member, American Economic Association Committee on Equity, Diversity and Professional Conduct); Marc Bendick, Jr., Ph.D. (Co-Principal, Bendick and Egan Economic Consultants, Inc.; Member, National Academy of Sciences Committee on Collecting Compensation Data from Employers); William T. Bielby, Ph.D. (Emeritus Professor of Sociology, University of Illinois, Chicago; Emeritus Professor of Sociology, University of California, Santa Barbara); Francine D. Blau, Ph.D. (Frances Perkins Professor of Economics and Industrial and Labor Relations, Cornell University; Research Associate, National Bureau of Economic Research; Research Fellow, Institute for Compensation Studies, Cornell University); Christopher Boulton, Ph.D. (Associate Professor of Communication, University of Tampa); Arthur Paul Brief, Ph.D. (University of Utah Presidential Professor Emeritus); Lauren Brown, Ph.D. (Principal, Brown and Associates); Martha Burk, Ph.D. (President, Center for Advancement of Public Policy, Washington, D.C); Philip N. Cohen, Ph.D. (Professor of Sociology, University of Maryland, College Park); Dalton Conley, Ph.D. (Henry Putnam University Professor of Sociology, Princeton University); Hector R. Cordero-Guzman, Ph.D. (Professor, Marxe School of Public and International Affairs, Baruch College of the City University of New York); Judy Foster Davis, Ph.D. (Professor of Marketing and Integrated Marketing Communications, Eastern Michigan University); Nancy Ditomaso, Ph.D. (Distinguished Professor, Rutgers Business School—Newark and New Brunswick, Department of Management and Global Business, Rutgers, The State University of New Jersey); Mary Lou Egan, Ph.D. (Co-Principal, Bendick and Egan Economic Consultants, Inc.); Paula England, Ph.D. (Silver Professor Of Sociology and Chair, Department of Sociology, New York University); John-Paul Ferguson, Ph.D. (Assistant Professor of Organizational Behaviour, Desautels Faculty of Management, McGill University; Research Fellow, American Federation of Labor-Congress of Industrial Organizations); S. Michael Gaddis, Ph.D. (Assistant Professor of Sociology at the University of California, Los Angeles); Jennifer Lynn Glass, Ph.D. (Centennial Commission Professor of Liberal Arts, Department Of Sociology and Population Research Center, University of Texas-Austin); Barbara A. Gutek, Ph.D. (Professor Emerita, Department of Management and Organizations, Eller College of Management, University of Arizona); Clifford B. Hawley, Ph.D. (Emeritus Professor of Economics, West Virginia University); Rosemary Hays-Thomas, Ph.D. (Professor Emerita, Department of Psychology, University of West Florida); Ariane Hegewisch, M. Phil. (Program Director, Employment and Earnings, Institute For Women’s Policy Research; Scholar in Residence, Department of Economics, American University); Elizabeth Hirsh, Ph.D. (Associate Professor of Sociology, University of British Columbia; Member, National Academies of Sciences Committee on Collecting Compensation Data from Employers); Harry J. Holzer, Ph.D. (Professor of Economics, McCourt School of Public Policy, Georgetown University; Nonresident Senior Fellow, Economic Studies, Brookings Institution); Mark R. Killingsworth, Ph.D. (Professor of Economics, Rutgers University; Member, National Academy of Sciences Committee on Collecting Compensation Data from Employers); Julie Kmec, Ph.D. (Professor of Sociology and Edward R. Meyer Distinguished Professor in the Liberal Arts, Department of Sociology, Washington State University); Alison Konrad, Ph.D. (Professor of Organizational Behaviour and Corus Entertainment Chair in Women in Management, Ivey School of Business at Western University); David A. Kravitz, Ph.D. (Professor Emeritus of Management, School of Business, George Mason University); Sabino Kornrich, Ph.D. (Associate Professor of Sociology, Emory University); Jonathan Leonard, Ph.D. (George Quist Chair in Business Ethics, Haas School of Business, University of California, Berkeley; Member, National Academy of Sciences Committee on Collecting Compensation Data from Employers); Janice Fanning Madden, Ph.D. (Professor of Regional Science, Sociology, Urban Studies, and Real Estate, University of Pennsylvania; Member, National Academy of Sciences Committee on Collecting Compensation Data from Employers); Douglas S. Massey, Ph.D. (Henry G. Bryant Professor of Sociology and Public Affairs, Princeton University); John J. Miller, Ph.D. (Associate Professor Emeritus of Statistics, George Mason University); Joya Misra, Ph.D. (Professor of Sociology and Public Policy, University of Massachusetts, Amherst); Corinne Post, Ph.D. (Professor of Management and Management Department Chair, College of Business, Lehigh University); William E. Spriggs, Ph.D. (Professor of Economics, Howard University; Chief Economist to the AFL-CIO); Gregory D. Squires, Ph.D. (Professor of Sociology and Public Policy & Public Administration, George Washington University); Kevin Stainback, Ph.D. (Professor of Sociology, Purdue University); Donald Tomaskovic-Devey, Ph.D. (Professor of Sociology and Director, Center for Employment Equity, University of Massachusetts, Amherst); Maria Triana, Ph.D. (Associate Professor, School of Business, University of Wisconsin – Madison).

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