Pay data released this week from the Equal Opportunity Employment Commission dates to 2017-2018, but according to the EEOC, it reveals enduring, systemic wage disparities in the US workforce. The agency’s move to publish this data also puts forth a framework it suggests can track ongoing disparities—as a way to gain awareness of pay discrimination and address it.
The data dashboard, posted March 12, graphically displays aggregated pay data collected from US private employers and government contractors for 2017 and 2018, tracking by sex and race/ethnicity.
The EEOC collected pay data from approximately 70,000 employers in each collection year, covering over 100 million workers, according to dashboard’s FAQs. Chair Charlotte Burrows said, “[m]aking this aggregated data available to the public shows how pay data collection can shine a light on the problem and potential solutions.”
There are only two years of data because this information comes from the EEOC’s Component-2 data collection efforts, which had a short-lived history as a new requirement imposed by the EEOC in 2016.
That regulation required employers to collect and provide on their federal EEO-1 reports certain pay data, such as W-2 earnings and hours worked, in addition to demographic information (gender, race, and ethnicity) that was always part of those reports. The Office of Management and Budget under the Trump administration immediately stayed the regulation, before the EEOC abandoned it altogether when a Republican-majority eventually took control over the commission.
Meanwhile, the stay was challenged in federal court, where a judge found the stay was arbitrarily and capriciously imposed, and ordered the EEOC to proceed with its collection for the two years that elapsed until the regulation was abandoned. This left the EEOC with a trove of significant, but relatively outdated payroll information for a broad swath of the US public from years 2017 to 2018.
The EEOC’s new data dashboard presents this Component-2 information to the public for the first time, but in aggregated form to protect confidentiality of employees and employers. The dashboard allows users to quickly sort data by industry, job category, and state, among other things, and displays that data in an easy-to-read visual format.
According to the EEOC, one of the purposes of the dashboard is to allow industries, employers, and individuals to assess how their pay compares to others in their industry, job category, or state by sex and race. The commission also claims the dashboard shows “pay disparities based on sex and race persist in almost every industry both at the national level and in nearly every state.”
Certain trends immediately stand out. For example, the data compares employees across 12 pay bands. When viewed across all states, job categories, industries, and so forth, altogether, the data shows a clear majority (75%) of men in the highest pay band ($208,000 and over), and a relatively smaller majority of women (58%) in the lowest pay band ($19,239 and under).
The relative majority of men decreases as one moves down the pay-band scale, moving from 75% to 52% across the top 8 pay bands, before switching to a majority of women, moving from 54% to 58%, in the bottom four pay bands.
But using such general, aggregated statistics to reach particular conclusions about discrimination has long been controversial. Although the actual standards differ, under both the federal Equal Pay Act and Title VII, plaintiffs claiming wage discrimination must show they were underpaid compared to comparators who were paid more than them for the same work. An unlawful wage disparity doesn’t exist unless it’s between workers who perform the same work under the same working conditions.
Courts will often dismiss lawsuits that allege widespread pay disparities based on statistics that can’t account for the granular differences among employees. Aggregated statistics gloss over such differences, often making it impossible to tell from such data whether any problematic disparities exist. That is often true at the employer level, and even at the department level within any individual employer. It is much more true when comparing wage data across whole industries and states.
The snapshot data hints at some of these issues. For example, the data shows that the “manufacturing” industry is heavily skewed towards men, with the vast majority of those workers, including men, fitting within the lowest pay band, but with a relatively high number of decent paying jobs as well. “Educational services” is similar, except heavily skewed towards women. Combining different data sets is where it gets even more interesting.
For example, the job category “administrative support workers” skews heavily towards women, while “laborers and helpers,” skews heavily towards men. What they share in common, however, is that they are both relatively low-paying jobs for both women and men, with very few jobs in the top pay bands.
When those two categories are combined, the picture of any potential gender imbalance gets more complicated. The top bands are still skewed towards men, but they are almost empty. The lower bands show a fairly mixed picture. Combining job categories and industries together clouds the picture even further. This doesn’t imply gender or race-based pay discrimination don’t exist; it just means that aggregated statistics can be of limited value.
The EEOC has identified lack of access to pay data as a longstanding barrier to its efforts to enforce federal anti-pay discrimination statutes. It’s important to note here that the EEOC has access to this data at the level of each employer, not just the aggregated statistics that were made publicly available.
One stated purpose of the EEOC’s decision to collect such data is to help it prioritize investigations and identify systemic discrimination. So it’s a pretty good bet that the EEOC intends to use this information to target specific industries and, perhaps, specific employers, to find new targets for its enforcement program.
Employers should review the dashboard to see if they might be at increased risk of EEOC litigation due to the industry or state they are in, or the types of workers they employ. And of course, private plaintiffs’ lawyers have access to this as well.
Although such data is far too general to be of use in drafting a complaint against any particular employer, plaintiffs’ lawyers have been known to rely on such statistics to buttress their arguments about widespread inequality within a particular industry or job category.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
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Matthew Gagnon is labor and employment partner at Seyfarth Shaw.
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