The U.S. Equal Employment Opportunity Commission (EEOC) plans to release a proposed rule next year on collecting pay data from employers, according to the spring regulatory agenda published July 5.
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Enforcement Tool
The proposed rule would enforce Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963. The EEOC would seek public comment on the proposal.
Background on Proposal
If the proposal goes forward, it could set the groundwork for reviving an Obama-era requirement for large businesses to annually submit their pay data by race, sex, and job category to the EEOC. That reporting mandate was subject to litigation during the Trump administration that ultimately resulted in court-mandated pay reporting for a limited period of time. The commission later decided to discontinue the collection pending further study, but the EEOC’s current Democratic majority has signaled interest in reinstating a pay data collection.
DOL Effort to Modernize Affirmative Action
The U.S. Department of Labor (DOL) also announced in the regulatory agenda that it plans to issue a proposed rule next year to modernize Executive Order 11246, the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, and Section 503 of the Rehabilitation Act of 1973’s compliance programs for federal supply and service contractors and subcontractors. This proposal is to include recordkeeping and affirmative action program obligations. The proposal will consider modifications in light of Executive Order 13988, Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.
More Successful Challenges of Rules Likely
Agency rules now may be more susceptible to court challenges following the U.S. Supreme Court’s ruling in Loper Bright Enterprises v. Raimondo. In that ruling, the Supreme Court overruled a 1984 decision that held courts should defer to federal agencies’ reasonable interpretations of ambiguous laws passed by Congress. As a result of Loper Bright Enterprises, employers may find themselves responding to court interpretations of agency rules more than ever. This may pose a particular challenge for multistate employers.
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