EEO-1 Pay Reports: Rulemaking In The Absence Of Evidence

On February 1, 2016, the US Equal Employment Opportunity Commission published its proposed revision of the EEO-1 form that must be completed by all employers with 100 or more employees. Based on the required protocols for the new form, each covered employer would be required to provide annually the number of employees (as well as their hours worked), in broadly defined occupational categories, whose pay falls within designated pay brackets. Because the EEOC proposes to have these pay distributions and hours submitted separately by gender, race, and ethnicity, employers may find they are required to enter over 3,000 items of data for each entity that files an EEO-1 report.

The pay ranges specified in the EEOC's proposed EEO-1 forms are broader than the pay differences it aims to detect. This Law360 article, authored by Dr. Stephen Bronars of Edgeworth Economics and Dr. Allan King of Littler Mendelson, shows that while the goal of determining instances of pay discrimination is sensible, the proposed data collection system is unlikely to accomplish the objective.