Every Sunday night at 9:00 for most of my high school and all of my college years, you could find me somewhere in front of a television watching the X-Files. I don’t believe I have ever planned my life around a television show before or since the way the X-Files held sway over my college plans. Perhaps in my adolescence and youth I was drawn to the premise that everything you thought you knew should be questioned; or through the many roles I held in college that required me to do my own investigating, I was fascinated by the meticulous manner of Agent Scully; or maybe I just thought Agent Mulder was cute. Regardless of the reason, I was a real X-Files fan. As word got out that season 10 of the series would be airing these many years later, I was skeptical that the magic the show held for me 20 years ago could be recaptured. I was even more dismayed when the news reports broke that Agent Scully was offered half of the pay to do the same job as Agent Mulder in the new series. (See http://www.cnn.com/2016/01/23/entertainment/gillian-anderson-pay-gap-x-files-feat/)
As a professional woman and employment lawyer, the gender pay gap is admittedly a very difficult issue. I have no doubt that the phenomenon is real. However, how to remedy the problem is much more complicated than just crunching aggregated numbers, particularly at the professional and executive level. Such number crunching is exactly what the EEOC has in mind with its latest proposal.
Employers with more than 100 employees should be paying particular attention to the proposed changes to the EEO-1 issued in the federal register on February 1. You can view the entire proposed changes here: https://www.federalregister.gov/articles/2016/02/01/2016-01544/agency-information-collection-activities-revision-of-the-employer-information-report-eeo-1-and#h-9
The proposed changes would require all employers with over 100 employees to report the W-2 wages of their employees in specified pay bands by EEO-1 code, gender, and race. The form would also request hours worked data for at least the hourly positions. The proposal states that the EEOC and OFCCP (Office of Federal Contractor Compliance Programs) will be able to run statistical tests as an initial check for the potential of discrimination based on the data submitted. The EEOC also has full access to the EEO-1 of any company that is the subject of an EEOC Charge. I have little doubt that this data will be used by the EEOC in investigating Charges as well.
So what can employers do now? The comment period on the proposal is open until April 1. Comments can be submitted electronically through the link I provide above. Employers who will have to provide the requested EEO-1 reports should also take a look at how their data will appear statistically once the final regulations are released.
However, employers of all sizes should also take a look at the pay of their employees across gender and race. The EEO-1 codes and proposed pay bands provide a good place to start for those employers with less than 100 employees. Employers should be mindful about producing these reports without consulting with counsel to insure that they protect themselves from producing discoverable pay studies during a litigation. In the end, this proposal is another reminder to all employers that they need to feel comfortable that they can explain the reasons for the pay their employees receive when compared to one another. I tend to believe that consistent review of pay to determine if the company is rewarding the behaviors and performance it values is the best way to bridge the gender gap and any other potential pay discrimination issues. In other words…
The Truth Is Out There.