Labor & Employment Law Daily California, Maryland, Minnesota challenge EEOC’s unilateral curb of EEO-1 data-sharing
Wednesday, November 4, 2020

California, Maryland, Minnesota challenge EEOC’s unilateral curb of EEO-1 data-sharing

By Pamela Wolf, J.D.

The policy change, which amounts to a rulemaking, was done outside APA notice-and-comment requirements, and is contrary to Title VII’s data-sharing mandate, the plaintiffs allege.

The States of California, Maryland, and Minnesota, joined by the California Department of Fair Employment and Housing (DFEH) and the Minnesota Department of Human Rights (MDHR), have filed a lawsuit against the EEOC challenging what they contend is the Commission’s arbitrary and unlawful decision to revoke full access to federal employment data used by state and local fair employment practice agencies (FEPAs) to monitor and combat discrimination in the workplace, “contrary to the clear statutory command of Title VII.” The move also violates contractual provisions of the federal agency’s work-share agreements with FEPAs, according to the complaint.

State FEPAs rely on employment data to identify priorities for investigation and enforcement of civil rights laws protecting workers, including those addressing persistent gender and racial wage gaps in the workplace, the plaintiffs note.

Bypassed rulemaking procedures. EEOC Chair Janet Dhillon and the Commission did not engage in the formal rulemaking required by the Administrative Procedure Act (APA), but, as evidenced by a series of actions and statements, have clearly adopted a policy change that amounts to a rule against sharing employment information with state and local FEPAs unless it relates to an employer that is the subject of a particular charge of discrimination, the plaintiffs contend.

According to the plaintiffs, this new rule:

  • Departs from past policy and practice;
  • Was made without requisite procedures under the APA and Title VII;
  • Denies state and local FEPAs their rights to information under Title VII; and
  • Prevents the plaintiffs from carrying out their mission of enforcing state and federal antidiscrimination laws against employers in their jurisdictions.

EEO-1 reports. Title VII requires employers to maintain employment information relevant to the enforcement of its antidiscrimination provisions, and to furnish this information to the EEOC, which since the 1960s, has been done through the annual “Employer Information Report EEO-1″ (EEO-1). The EEO-1 includes employment data about the employer’s industry, headquarters and location, and the composition of the employer’s workforce by job category and sex, race, ethnicity, and other information. This information, according to the complaint, is an important resource for analyzing EEO practices in particular industries and regions, and is “necessary for the proper performance of [EEOC’s] functions and has a practical utility to the fulfillment of the EEOC’s mission.”

EEO-1 data is likewise necessary to state and local FEPAs, “which Congress has recognized as partners in the enforcement of federal antidiscrimination in employment laws,” the complaint states. State and local FEPAs rely on employment information to identify investigation and enforcement priorities and to evaluate and identify employers with potentially discriminatory practices, the plaintiffs said. This data permits civil rights agencies to prioritize their work and allocate resources to most effectively fight employment discrimination in their jurisdictions.

Required data sharing. The sharing of this data is directed by statute. “Title VII requires that EEOC ‘shall furnish upon request and without cost to any State or local agency charged with the administration of a fair employment practice law information obtained… from any employer, employment agency, labor organization, or joint labor-management committee subject to the jurisdiction of such agency,’” the complaint states.

Database access disabled. Pursuant to what the plaintiffs’ called “this unambiguous command in Title VII” and ongoing work-sharing agreements between the EEOC and the FEPAs of California, Maryland, and Minnesota, the EEOC shared EEO-1 data for all employers within these states’ jurisdictions until the federal agency’s policy change in 2020, according to the complaint. During recent decades, the EEOC automatically shared EEO-1 data with many state and local FEPAs by giving them access to the federal agency’s Integrated Mission Systems (IMS) database, where FEPAs could access information about all employers within their jurisdictions and input information about particular charges, the plaintiffs said.

But in about April 2019, the EEOC allegedly disabled FEPAs’ access to jurisdiction-wide EEO-1 data in the IMS system, without consultation with or notice to the plaintiffs.

Data sharing quietly curbed. Further, in 2020, the EEOC abandoned its long-established practice of sharing all EEO-1 data within a particular FEPA’s jurisdiction with that FEPA, the plaintiffs contend. In January 2020, Chair Dhillon allegedly issued an agency-wide order permitting the EEOC to share employer information and data with FEPAs only if the information requested related to a particular charge under investigation by the FEPA.

The EEOC’s first public statement about this policy change was to merely mention what it described as its “current” practice near the end of a multi-page 30-day Paperwork Reduction Act notice related to its proposed continued collection of certain EEO-1 data, the plaintiffs allege. The notice stated “The EEOC’s current practice is to share EEO-1 data with a contracted FEPA only upon request and to share EEO-1 data for an employer within the FEPA’s jurisdiction and only when that employer is a respondent to a particular charge of discrimination cited by the FEPA in its data request,” according to the complaint.

Since January 2020, the DFEH and the MDHR have allegedly requested and been refused EEO-1 data for employers within their respective jurisdictions.

Change without notice and comment. Purportedly without observing the notice-and-comment process required for agency action under the APA, or consulting with the FEPAs, the EEOC changed the scope of information it shares with the plaintiffs. The EEOC’s unilaterally and newly imposed restrictions on the plaintiffs’ access to EEO-1 data for employers within their jurisdictions violates the Commissions’ obligations under Title VII and long-standing work-sharing agreements that the EEOC has had with FEPAs in California, Maryland, and Minnesota, according to the complaint.

The EEOC’s action is an ultra vires agency action that is arbitrary, capricious, an abuse of discretion, and otherwise contrary to law and in excess of statutory jurisdiction, authority, or limitations, or short of statutory right under the APA, the plaintiffs contend.

The plaintiffs are thus seeking declaratory and injunctive and/or mandamus relief to compel the EEOC and Chair Dhillon to perform their statutory and contractual duties.

The lawsuit, State of California v. Dhillon, was filed in the Northern District of California; the case is No. 3:20-cv-07664.

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