“Social change never happens overnight,” President Barack Obama said in 2016. “It is a slog. And there are times where you just have to chip away and chip away. It’s reliant on all of us to keep pushing that boulder up the hill.”
Obama was announcing his executive order requiring large employers (with 100 or more employees) to report worker income, including pay, bonuses, commissions and overtime, by gender and race to the U.S. Equal Employment Opportunity Commission. Feminists were thrilled: Companies already collected this data, but did not have to correlate it to the gender, racial and ethnic data they report to the EEOC. Finally, the gender income gap could be calculated accurately and the dramatic disparity between white men’s and women’s earnings would be exposed.
The often-cited 82-cent pay gap underestimates the true deficit. It doesn’t take into account bonuses, benefits and commissions—which accrue disproportionately to male jobs. The hope was that having to report this additional data would create an incentive for employers to do an internal analysis and fix problems.
Research has shown that disclosing disparities in pay helps to narrow the income gap. The data could also provide red flags on pay disparity to the EEOC, which is ordinarily driven only by employee complaints—a faulty method of addressing inequality since secrecy around pay frequently prevents workers from discovering pay discrimination in the first place.
Now, the Trump administration is attempting to end this initiative.
In August 2017, without any public notice or opportunity to weigh in, the administration reversed Obama’s executive order and blocked the income data collection, claiming that it was “unnecessarily burdensome” for businesses. In fact, it’s not at all burdensome to report, says Sunu Chandy, legal director of the National Women’s Law Center (NWLC). “These are large companies with great computer systems and all kinds of information that they are required to keep about how much they pay people, and they are already providing information about who’s in what jobs based on race, gender and sex, so this is just an overlay of two systems that they are already keeping,” she explains.
The NWLC sued the administration to require collection of the data. Joined by Democracy Forward and the Labor Council for Latin American Advancement, NWLC won a huge victory in Washington, D.C., in March 2019 when U.S. District Judge Tanya S. Chutkan ruled that the administration broke the law when it stopped the income data collection; she ordered the EEOC to require employers to submit the data. When the agency didn’t comply, Chutkan issued a ruling in October requiring monitoring of the EEOC through regular status reports.
At press time, a Trump administration appeal was pending before the U.S. Court of Appeals for the D.C. Circuit, and the EEOC had announced a proposal to permanently stop collecting pay data from employers, allowing them to continue to hide the fact that they are paying women and people of color less than white men.
“The gender wage gap has not changed in a statistically significant way for over a decade,” Jessica Stender of Equal Rights Advocates testified at a recent hearing on the EEOC proposal in Washington, D.C. “It is therefore critical that the agencies charged with enforcing equal pay and antidiscrimination laws are able to take proactive steps to identify and better address pay discrimination.”
This piece is excerpted from the Winter 2020 issue of Ms.
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The Trump administration’s concern about the supposed burden on employers of having to collect income information pales in comparison to the burden on workers of a lifetime income loss totaling $1 million or more. A recent study by the nonprofit Institute for Women’s Policy Research showed that equal pay would cut poverty rates among working women and their families by more than half.
As Mónica Ramírez, president of Justice for Migrant Women, notes: “The Trump administration’s attempts to undermine pay data collection efforts is another example of the administration putting the interests of businesses before the interests of everyday working people.”
