[Federal Register Volume 86, Number 168 (Thursday, September 2, 2021)]
[Notices]
[Pages 49354-49355]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-18924]


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DEPARTMENT OF LABOR

Office of Federal Contract Compliance Programs


Rescission of Notice of Intention Not To Request, Accept or Use 
Employer Information Report (EEO-1) Component 2 Data, November 25, 2019

AGENCY: Office of Federal Contract Compliance Programs, Labor.

ACTION: Notice.

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SUMMARY: The U.S. Department of Labor's Office of Federal Contract 
Compliance Programs (OFCCP) and the Equal Employment Opportunity 
Commission (EEOC) collect workforce data through the Employer 
Information Report (EEO-1) under their Joint Reporting Committee. OFCCP 
is rescinding its previously issued notice, which stated that OFCCP did 
not intend to request, accept, or use EEO-1 Component 2 data. The 
agency has determined that it was premature to issue a notice stating 
OFCCP did not expect to find significant utility in the data.

DATES: This action is effective immediately.

FOR FURTHER INFORMATION CONTACT: Tina T. Williams, Director, Division 
of Policy and Program Development, Office of Federal Contract 
Compliance Programs, 200 Constitution Avenue NW, Room C-3325, 
Washington, DC 20210. Telephone: (202) 693-0103 (voice) or (202) 693-
1337 (TTY).

SUPPLEMENTARY INFORMATION: 

Background

    OFCCP administers and enforces Executive Order 11246, as amended 
(E.O. 11246), which applies to Federal contractors and subcontractors. 
E.O. 11246 prohibits employment discrimination and requires affirmative 
action to ensure equal employment opportunity regardless of race, 
color, religion, sex, sexual orientation, gender identity, or national 
origin. It also prohibits Federal contractors and subcontractors from 
discriminating against applicants and employees for inquiring about, 
discussing, or disclosing information about their pay or the pay of 
their co-workers, subject to certain limitations.
    OFCCP and the EEOC have separate legal authority to collect EEO-1 
data, and they coordinate collection to promote efficiency through 
their Joint Reporting Committee. The EEOC's legal authority to collect 
EEO-1 data from private employers derives from Title VII of the Civil 
Rights Act, and OFCCP's authority to collect data from certain Federal 
contractors derives from E.O. 11246 and its implementing 
regulations.\1\ The EEO-1 data collection is a mandatory annual data 
collection that requires all private sector employers that are covered 
by Title VII and have 100 or more employees, and Federal contractors 
with 50 or more employees meeting certain criteria, to submit 
demographic workforce data, including data by sex, race, ethnicity, and 
job categories (Component 1) (Office of Management and Budget (OMB) 
Control No. 3046-0049). The EEO-1 Component 1 data has been shared 
between the two agencies for decades to avoid duplicative information 
collections and to minimize the burden on employers.
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    \1\ See 42 U.S.C. 2000e-8(c); 29 CFR 1602.7; 41 CFR 60-1.7.
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    OFCCP had previously expressed interest in collecting summary 
compensation data for the purpose of informing its compliance and 
enforcement efforts. On August 8, 2014, OFCCP published a notice of 
proposed rulemaking in the Federal Register to amend the regulations 
that implement E.O. 11246 by adding a requirement that certain Federal 
contractors and subcontractors supplement their EEO-1 Report with 
summary information on compensation paid to employees, as contained in 
the Form W-2, Wage and Tax Statement, by sex, race, ethnicity, and 
specified job categories, as well as other relevant data points such as 
hours worked and the number of employees.\2\ The purpose of the 
proposed collection was to enable OFCCP to more effectively focus its 
enforcement resources to better identify potential pay inequities for 
further evaluations. Public comments submitted to OFCCP on the proposal 
argued for, among other things, improving interagency coordination and 
decreasing employer burden for reporting compensation data by using the 
EEO-1 data collection, rather than conducting a new OFCCP data 
collection. Ultimately, OFCCP determined that it would collaborate with 
the EEOC to collect compensation data as part of the EEO-1 filing 
rather than proceed with publishing a final rule.
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    \2\ See 79 FR 46561 (Aug. 8, 2014).
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    On July 14, 2016, the EEOC published a 30-day notice in the Federal 
Register to obtain a three-year approval from OMB for the continued 
collection of Component 1 demographic data, as well as a new collection 
of summary compensation data, referred to as ``Component 2'' EEO-1 
data.\3\ The notice stated that, although the EEOC is responsible for 
compliance with the Paperwork Reduction Act of 1995, the EEO-1 report 
is a joint data collection to meet the enforcement needs of both the 
EEOC and OFCCP while avoiding duplication. The Component 2 collection 
included aggregated data on employee pay and hours worked. On September 
29, 2016, OMB approved the EEO-1 Components 1 and 2 information 
collection for calendar years 2017 and 2018.
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    \3\ See 81 FR 45479 (July 14, 2016).
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    On August 29, 2017, OMB stayed the EEOC's collection of Component 2 
data, and the EEOC proceeded to collect only Component 1 data. 
Subsequently, the EEOC issued a Federal Register notice on September 
15, 2017, suspending the Component 2 data collection.\4\ In response to 
a lawsuit challenging OMB and the EEOC's actions, on March 4, 2019, the 
United States District Court for the District of Columbia vacated OMB's 
stay of the Component 2 data collection and ordered that the previous 
approval of the EEO-1 Component 2 collection was in effect.\5\ The 
court further ordered the EEOC to collect the Component 2 data for 
calendar years 2017 and 2018 by September 30, 2019. On May 3, 2019, the 
EEOC published a Federal Register notice announcing the

[[Page 49355]]

immediate reinstatement of the collection of 2017 and 2018 Component 2 
data from EEO-1 filers.\6\ A February 6, 2020 Joint Status Report to 
the court stated that more than 89% of all eligible employers had 
submitted Component 2 data, and on February 10, 2020, the United States 
District Court for the District of Columbia deemed the collection 
complete.
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    \4\ See 82 FR 43362 (Sept. 15, 2017).
    \5\ National Women's Law Center, et al. v. Office of Management 
and Budget, et al., 358 F. Supp. 3d 66 (D.D.C. 2019).
    \6\ See 84 FR 18974 (May 3, 2019).
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    On September 12, 2019, the EEOC published a 60-day notice in the 
Federal Register announcing its intention not to seek renewal of the 
OMB approval for the collection of Component 2 data.\7\ The EEOC 
concluded that, it should consider information from the Component 2 
data collection before deciding whether to pursue another pay data 
collection consistent with the Paperwork Reduction Act.
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    \7\ See 84 FR 48138 (Sept. 12, 2019).
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    Subsequently, on November 25, 2019, OFCCP published a notice in the 
Federal Register indicating that the agency would not ``request, 
accept, or use Component 2 data, as it does not expect to find 
significant utility in the data given limited resources and [the 
data's] aggregated nature.'' \8\ While the notice conceded that ``the 
data could potentially inform OFCCP's scheduling process for compliance 
evaluations,'' OFCCP concluded that the Component 2 data was too broad 
and not collected at a level of detail that would enable the agency to 
make comparisons among similarly situated employees as required by the 
``Title VII standards that OFCCP applies in administering and enforcing 
[E.O.] 11246'' without conducting additional analysis that would put an 
unnecessary financial burden on the agency.\9\
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    \8\ See 84 FR 64932 (Nov. 25, 2019).
    \9\ 84 FR 64993.
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    On March 23, 2020, the EEOC published the 30-day notice indicating 
that it would not seek an extension to continue Component 2 data 
collection.\10\
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    \10\ See 85 FR 16340 (March 23, 2020).
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Accepting Aggregated Component 2 Data from the EEOC

    OFCCP issued its November 2019 notice stating the agency would not 
request, accept, or use Component 2 data even before the United States 
District Court for the District of Columbia deemed the collection of 
2017 and 2018 Component 2 data complete in February 2020. At that time, 
OFCCP had little information about the response rate of the collection, 
how the data was submitted and assembled, or the completeness of the 
data. Nor did the agency have the opportunity to review and analyze the 
data.
    Upon further consideration, OFCCP believes the position taken by 
the agency in the November 2019 notice was premature and counter to the 
agency's interests in ensuring pay equity. As detailed below, there are 
substantial reasons to believe that the Component 2 data could be 
useful to OFCCP's enforcement. Given the effort expended by employers 
to submit the data and resources devoted by the EEOC and OFCCP in the 
development of the collection, OFCCP believes it would be valuable to 
analyze this data to assess its utility for OFCCP's enforcement 
efforts.
    OFCCP intends to devote further agency resources to evaluate the 
data's utility because the joint collection and analysis of 
compensation data could improve OFCCP's ability to efficiently and 
effectively investigate potential pay discrimination.\11\ Also, 
analyzing compensation data in conjunction with other available 
information, such as labor market survey data, could help OFCCP 
identify neutral criteria to select contractors for compliance 
evaluations. Thus, OFCCP is rescinding its November 25, 2019 notice. 
OFCCP plans to analyze the Component 2 data collection to assess its 
utility for providing insight into pay disparities across industries 
and occupations and strengthen Federal efforts to combat pay 
discrimination.
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    \11\ As stated in the EEOC's July 14, 2016, 30-day notice, EEOC 
concluded that ``implementing the proposed EEO-1 pay data collection 
will improve the EEOC's ability to efficiently and effectively 
structure its investigation of pay discrimination charges.'' See 81 
FR 45479, 45483 (July 14, 2016). OFCCP, too, believes the 
compensation data collection may be useful for its enforcement 
efforts.

Tina T. Williams,
Director, Division of Policy and Program Development, Office of Federal 
Contract Compliance Programs.
[FR Doc. 2021-18924 Filed 9-1-21; 8:45 am]
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