Is the new EEO-1 form here to stay? Maybe yes, and maybe no . . .

As we have previously reported, the new EEO-1 Form is set to be used as of March 31, 2018, for the October-December "snapshot" period in 2017. The new form will require federal contractors and employers with 100 or more employees to provide summary compensation data to the Equal Employment Opportunity Commission in eachAngelique Lyons EEO-1 category, divided into 12 "pay bands," and classified by race, sex, and ethnicity. This new requirement has not been well-received by the employer community for many reasons, including that the manner of reporting does not achieve the goal of identifying pay disparities due to discrimination.

Last week, the Acting Chair of the EEOC, Victoria Lipnic -- who voted against the compensation reporting when she was a Commissioner -- hinted that there may be some relief in sight. Ms. Lipnic noted that the new requirement is the type of federal agency action that President Trump has indicated he might put on hold and re-evaluate. Ms. Lipnic has said that she believes the new requirement should be re-evaluated, and that the EEOC cannot attempt to use “30-year-old solutions” to “modern-day” workplace problems.

Although this is good news and signals a positive change, it is important to note that the new requirement cannot simply be stopped by Ms. Lipnic. In order to change the new pay data collection plan, the entire Commission would need to vote, and a majority would have to favor revision or revocation. Currently, the Commission has four members, including Ms. Lipnic, and the other three are Democrats who voted in favor of the requirement just last year. President Trump will have the opportunity to appoint two new Commissioners, but these positions will require Senate confirmation and therefore will take time. So although things may change before March 31, 2018, for now, the new EEO-1 Form is still a “go.”

It is important to note that even though Ms. Lipnic has questioned the costs and benefits of the new compensation data collection plan, she has specifically indicated that equal pay remains a priority at the EEOC. For employers, including federal contractors, any new direction that may be taken by the Trump Administration does not lessen the obligation to continue to assess compensation to ensure pay equity for all employees.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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