On November 15, 2017, the National Women’s Law Center and the Labor Counsel for Latin American Advancement filed this lawsuit in the U.S. District Court for the District of Columbia. The case was assigned to Judge Tanya S. Chutkan. The plaintiffs sued the federal Office of Management and Budget (OMB), the Administrator for the Office of Information and Regulatory Affairs (OIRA) (a division of the Office of Management and Budget), and the Equal Employment Opportunity Commission (EEOC), under the Administrative Procedure Act. The plaintiffs sought a declaratory judgment and an order from the court vacating an order issued by OIRA that stayed planned revisions to employer demographic reporting obligations.

Because a pay gap persisted—between both men and women and between white, non-Hispanic men, and people of color—the EEOC and other federal agencies sought to improve enforcement of federal laws prohibiting pay discrimination. After a multi-year study, the EEOC concluded that it would revise a longstanding employer survey, the Employer Information Report EEO-1, to require that employers include W-2 earnings data for employees by sex, race, ethnicity, and job category.

Beginning in February 2016, the revisions to EEO-1 went through a seven-month process of notice and comment, public hearings, and changes to reduce employer burdens. The final revisions to the EEO-1 were sent to OMB in September 2016, and OMB approved the changes.

However, in August 2017, after President Trump took office, the new Administrator of OIRA issued a short memorandum that immediately stayed the revisions to the EEO-1. The memorandum provided virtually no explanation, citing the Paperwork Reduction Act to justify its actions. The decision to issue this memorandum was made in secret and without notice and comment. Following the decision, the EEOC published a Federal Register notice stating that EEO-1 filers should not submit pay data in their filings.

The plaintiffs claimed that the agencies lacked the authority to stay a collection of data required by the agency rule governing the EEO-1 and, thus, that the stay was unlawful. Specifically, the plaintiffs made the following claims that the agencies had violated the Administrative Procedures Act:

1. Because OMB did not have authority to stay an ongoing collection of information that had already been approved and that was required by regulation, the agencies acted in a manner that was in excess of their legal authority and had thus violated the Administrative Procedures Act.
2. Alternatively, because the agencies had reviewed a previously approved collection of information without meeting the requirements under the Code of Federal Regulations, the agencies acted in a manner contrary to law in violation of the Administrative Procedures Act.
3. The memorandum staying the effectiveness of EEO-1 cited to the Paperwork Reduction Act, a law that established a process by which federal agencies obtain approval from OMB to collect certain types of information from the public, as a justification, but this law specifically states that it does not increase OMB’s authority over substantive agency policies. Thus, because the agencies wrongfully used the Paperwork Reduction Act to justify their actions, they violated the Paperwork Reduction Act and, in turn, the Administrative Procedures Act.
4. Because the agencies did not provide a reasoned basis for their decision to review and stay the effectiveness of EEO-1, they acted in a manner that was arbitrary and capricious in violation of the Administrative Procedures Act.
5. With regard to the EEOC, it acceded to OMB’s unlawful actions and thus violated the Administrative Procedures Act.

In February 2018, the agencies moved to dismiss the case. In October 2018, the plaintiffs moved for summary judgment. In December 2018, the agencies moved for summary judgment. The court ruled on all motions on March 4, 2019. The court granted the plaintiffs’ motion for summary judgement and denied the agencies’ motions. The court found that the agencies’ stay of pay data collection violated the Paperwork Reduction Act and the Administrative Procedure Act, and that the agencies’ actions were arbitrary and capricious. The court vacated OMB’s stay and the EEOC’s announcement of the stay and reinstated the revised EEO-1. 358 F.Supp.3d 66.

On March 18, 2019, the plaintiffs filed a request for a status conference; the conference was held on March 19, 2019. The plaintiffs claimed that the agencies had delayed complying with the court’s order and were unwilling to provide information about their plans to comply. The parties continued to litigate over the enforcement of the court’s order, with multiple third parties submitting amici briefs.

A hearing was held on April 16, 2019. On April 25, 2019, the court issued an order granting declaratory and injunctive relief, requiring, among other things, that the EEOC “collect EEO-1 Component 2 pay data for calendar years 2017 and 2018” by September 30, 2019. On May 3, 2019, the agencies appealed this order, as well as the order on summary judgment and order on motion to dismiss (D.C. Circuit docket #19-5130).

While the appeal was pending, the agencies filed a series of status reports outlining the steps that they were taking to comply with the district court’s order.

On June 9, 2020, the U.S. Court of Appeals for the D.C. Circuit (Judges Srinivasan, Pillard, and Rogers) issued a short, unpublished per curiam order. It granted the agencies’ motion in part and dismissed the appeal as moot, in light of the parties’ stipulation that the government had substantially complied with the district court’s post-judgment orders. It remanded the case to the district court.

This case is ongoing.

Sara Stearns - 04/02/2019
Bogyung Lim - 07/30/2020


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