Friday October 30, 2020: Led by California, three States Sue The EEOC In an Attempt to Force Access to EEO-1 Component 2 “Hours Worked” and “Pay Data”
The case is State of California; California Department of Fair Employment and Housing, State of Maryland; State of Minnesota, and Minnesota Department of Human Rights vs. Janet Dhillon (in her official capacity as the Chair of the EEOC), and the EEOC.
It is a five count Complaint spread across 28 pages seeking access to EEO-1 data for each of the companies within their respective states, including the recently collected controversial Component 2 “Hours Worked” and “Pay Data.” The California Attorney General’s Office and California DFEH lawyers (lead by former OFCCP San Francisco Regional Director Janette Wipper; now the General Counsel of the CA DFEH) took the lead to file the Complaint in the Northern District of California and asked for assignment to a federal Judge in either the San Francisco or Oakland Division.
The Complaint alleges that before March 2020, the EEOC had a practice of sharing with all state deferral agencies, like the plaintiffs, ALL EEO-1 information for all of the companies operating within their respective states. After March 1, 2020, the plaintiffs allege that the EEOC adopted a new practice of delivering EE0-1 information to the states ONLY as to companies as to which a Complaint of unlawful discrimination was pending. The case boils down to the question whether the EEOC was historically delivering complete EEO-1 information to the states out of its “discretion,” or because Title VII so required?
The three state plaintiffs complain the EEOC’s new policy to limit state access to the complete EEO-1 report violates the language of Title VII which they claim affords them the access to complete EEO-1 data which they have historically enjoyed. The states claim that this sudden denial of access is a violation of the federal Administrative Procedure Act for five different reasons:
- “Agency Action Unlawfully Withheld under Title VII, 42 U.S.C. § 2000e-8(d)”
- “Agency Action Contrary to Statutory Authority under Title VII, 42 U.S.C. § 2000e-8(d)”
- “Ultra Vires Agency Action”
- “Arbitrary and Capricious Action”
- “Issuance of an Agency Rule Without Observance of Procedure Required by Law…”
The APA requires formal Rulemaking to change major public policies. The three states are also attempting to use the APA to require the Court to enforce Title VII’s language to the advantage of the states.
The states cite to the following portion of Title VII as the source of their alleged authority to access the complete EEO-1 data the EEOC obtains, organizes, and stores: 42 U.S.C. § 2000e-8(c) & (d). Section 2000e-8(c) simply provides the EEOC with the legal authority to collect information from employers to assist the EEOC with its mission and is the source of authority for the Commission to require EEO-1 information.Title VII’s Section 2000e-(8)(d) is the core of the dispute and states, in its totality:
“(d) Consultation and coordination between Commission and interested State and Federal agencies in prescribing recordkeeping and reporting requirements; availability of information furnished pursuant to recordkeeping and reporting requirements; conditions on availability
In prescribing requirements pursuant to subsection (c) of this section, the Commission shall consult with other interested State and Federal agencies and shall endeavor to coordinate its requirements with those adopted by such agencies. The Commission shall furnish upon request and without cost to any State or local agency charged with the administration of a fair employment practice law information obtained pursuant to subsection (c) of this section from any employer, employment agency, labor organization, or joint labor-management committee subject to the jurisdiction of such agency. [yellow highlighting added] Such information shall be furnished on condition that it not be made public by the recipient agency prior to the institution of a proceeding under State or local law involving such information. If this condition is violated by a recipient agency, the Commission may decline to honor subsequent requests pursuant to this subsection.”
Editorial Note: This is an interesting statutory interpretation case. The above language authorizing the states to obtain “information obtained pursuant to subsection (c)” [meaning EEO-1 data, among other things] … “from any employer” … “subject to the jurisdiction [emphasis added] of the agency” is ambiguous. Technically, California’s DFEH does not have jurisdiction over an employer in California until the DFEH has either received a “Complaint” of alleged unlawful discrimination or has launched an investigation of an employer. However, the phrase “subject to the jurisdiction” [emphasis added] could be interpreted broadly to mean that the employer is subject to the DFEH’s jurisdiction even in the absence of DFEH’s formal assertion of jurisdiction in an investigation merely because the employer could at some point in time become “subject to” the jurisdiction of the DFEH.
This litigation will likely take two to three years, including appeals, to resolve itself…unless of course:
- former Vice President Biden wins tomorrow’s election, and
- the Democrats also win control of the Senate (so as to allow a Democrat President’s federal government appointees subject to the “Advice and Consent” of the Senate to get quickly confirmed and seated in their agencies, and
- it is after July 1, 2022 when Chair Dhillon’s EEOC term will end and a then Democrat President could appoint a Democrat EEOC Commissioner, thus obtaining a 3-2 majority of Democrat Commission Members who could then vote to change the state access to EEO-1 data rule.
If the states do win the legal or political right to access the EEOC’s Component 2 “Hours Worked” and “Pay Data,” data distribution restrictions applicable to the EEOC will also apply to the states, as you see also recited in paragraph 2000e-8(d), above. HOWEVER, the EEOC’s confidentiality requirement extending to all data it receives, would NOT limit the states (or the Commission for that matter) from releasing to the public research reports of pay data not identifying particular employees or particular companies. Survey reports lambasting an industry or a particular geographic group of companies (i.e. “all manufacturers,” or “all Michigan manufacturers,” or “Tech companies,” or all “Silicon Valley Tech companies”) are permissible and fair game for publication.
The availability of Component 2 pay data will therefore most likely be a Week in Review story for at least the next five years…and just when you thought it was safe to get back in the water…all that was behind you!