Judge Issues Stark Courtroom Reprimand, Says Trump Administration “Does Not Have Clean Hands” in Unlawful Rollback of Equal Pay Protection
Administration Tried To Stall Implementation of Wage Transparency Protection, Even After Court Ordered Its Reinstatement in March
Court Imposes Safeguards to Ensure Compliance
Washington, D.C.— Yesterday, 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. In an oral decision, the court criticized the administration for failing to immediately reinstate this critical equal pay protection, which the court had previously ruled had been unlawfully rolled back. Today’s order comes in response to a lawsuit filed by the National Women’s Law Center, the Labor Council for Latin American Advancement, and Democracy Forward.
“Today was a major victory for equal pay. As the court stated today, ‘the government does not have clean hands.’ At every turn, the Trump administration has acted unlawfully to protect big business over women and workers across America,” the groups said in a joint statement. “We are grateful that the court is taking steps to ensure that the data needed to enforce laws against pay discrimination will be collected in a timely manner.”
The court identified several flaws in the evidence and arguments that the government had put forward throughout the litigation, particularly at an April 16, 2019 evidentiary hearing. Among the notable findings:
The EEOC and OMB undertook “no meaningful review” of the stayed collection between OMB’s August 2017 stay and the court’s March 2019 order, even though the government repeatedly told the court that the existence of an ongoing “review” of the data collection should bar Plaintiffs’ lawsuit.
The concerns about the collection process that the Defendants claimed as the basis for their delay in implementing the court’s March 4 order were “speculative, generalized, and at times unsubstantiated.”
The government improperly withheld a key piece of information about the timetable for collecting the data if plaintiffs prevailed in the suit, affirmatively leaving plaintiffs and the court under the misimpression that the government would undertake an “efficacious and prompt collection” if the government lost.
Noting that the government “does not have clean hands” in this case, the court imposed significant safeguards to ensure timely compliance with the September 2019 deadline. These include:
Requiring the EEOC to issue a statement on its website and submit the same for publication in the Federal Register by April 29, 2019 advising EEO-1 filers that the pay data will be collected by September 30, 2019.
Requiring the EEOC, beginning May 3, 2019 and every 21 days thereafter, to provide compliance reports detailing the steps that have been taken since the prior report, steps expected to be taken before the next report, and indicating whether the agency is on track for a September 30 completion date.
Declaring that the Paperwork Reduction Act approval period is tolled until April 5, 2021 to compensate for the time lost to the government’s unlawful stay.
Declaring that the data collection will not be deemed complete until the EEOC ensured that the percentage of employers filing reports equals or exceeds the historical rate from prior year collections.
Over the government’s objection, the court also required the EEOC to collect two years of data— the EEOC must collect data for 2018 by the September 30, 2019 deadline and also collect either the 2017 data by the same deadline, or decide by May 3, 2019 to exercise the option of collecting 2019 data during the 2020 EEO-1 reporting period.
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.