Internal Memo Contradicts the Administration’s Justification for Unlawful Action

Trump Official Behind Unlawful Rollback Faced Questions on Equal Pay Decision At Confirmation Hearing This Week

Washington, D.C.– Yesterday, a federal court considering a challenge to the Trump Administration’s rollback of equal pay protections rejected the government’s attempt to exclude an internal Trump Administration memo which contradicts the Administration’s rationale for its unlawful rollback. The memo, withheld from the Administrative Record by the government, directly refutes the rationale that ‘regulatory czar’ Neomi Rao claimed justified the Administration’s action and shows the Trump Administration knew its pretext for halting equal pay protections was without merit. As nominee to the D.C. Circuit Court of Appeals, Rao faced questions at her recent confirmation hearing from Sen. Feinstein about her involvement in the rollback of these critical protections.

Although the EEOC had previously determined that collecting employee pay data by race, gender and ethnicity is a necessary tool for combating pay discrimination, and OMB had approved the collection of such data, in one of her first actions as OIRA Administrator, Rao claimed there was no “practical utility” to collecting this pay data, and OMB halted the equal pay protection. But the hidden document, which the government had not disclosed in this case, refutes the basis for OMB changing its position, stating that there was no “significant change that warrant[ed] … reconsideration” of the protections requiring the administration to collect this critical data.

“We are pleased that the Court rejected the Trump Administration’s attempt to hide this important memo,” said Democracy Forward Senior Counsel Robin Thurston.“The public deserves to know that the government’s own analysis shows there was no basis to roll back equal pay protections.”

The Court had previously compelled the Administration to release the full Administrative Record, which includes the documents it relied upon in its decision to unlawfully roll back the equal pay protections. The records released as part of the Administrative Record at that time revealed that:

  • OMB conducted no analysis of its own in halting the pay data collection.

  • 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.

  • While the Administration attempted to justify the stay by parroting disproven complaints from the Chamber of Commerce and other business-backed lobbyists that the pay data collection is burdensome, the Administration failed to consider any comments it received in support of the pay data collection.

This Court decision requires that the internal memo also be included in the Administrative Record, and will be before the Court when it rules on the legality of the Administration’s action.

The memo at issue was initially obtained by the ACLU as part of a Freedom of Information Act request for records from the EEOC related to the equal pay rollback.

Plaintiffs National Women’s Law Center (NWLC) and the Labor Council for Latin American Advancement (LCLAA) continue to pursue the inclusion of additional documents in the Administrative Record as well as final judgment in their favor in this lawsuit. Democracy Forward and NWLC represent the Plaintiffs.

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Democracy Forward is a nonprofit legal organization that scrutinizes Executive Branch activity across policy areas, represents clients in litigation to challenge unlawful actions, and educates the public when the White House or federal agencies break the law.

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