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Gender pay reporting in the US- what employers need to know.

Written by
FordHarrison LLP, nationwide U.S. law firm with a singular focus on HR law.
There is a direct obligation on employers to report gender pay differences in the United States. This article explains.

Employers in the US with 100 or more employees and government contractors with 50 or more employees are required to file an ‘EEO-1’ report with the Equal Employment Opportunity Commission (‘EEOC’), which discloses data regarding race and gender of employees by job classification. The report is due on 31 March of each year and the data required covers any single payroll period during the fourth quarter of the prior year.  

In 2019, a court ruling required employers to also report race and gender data broken down by 12 different pay bands and hours worked for the years 2017 and 2018.  This data is known as the ‘Component 2 EEO-1 Report’.  However, after a period of Component 2 data collection, the EEOC requested and was granted the court’s permission to close the Component 2 filing portal in February 2020. The EEOC has announced that it does not intend to collect Component 2 compensation data in the future; however, these regulations could change with a change in the political administration. 

Penalties for non-compliance with EEO-1 data reporting include debarment for government contractors, and the EEOC may seek a federal court order compelling compliance. Also, false statements in EEO-1 reports may result in fines or imprisonment. While potentially expensive to litigate, there are no civil penalties or fees for a failure to file an EEO-1 report for private employers. 

The results of the EEO-1 report itself do not give employees or employee representatives grounds for a claim because the results of the report are, at least initially, confidential. The EEOC will release charge files (including EEO-1s submitted with position statements) to charging parties (claimants). Further, charging parties and their lawyers can disclose EEO-1 reports during litigation. In civil litigation, a plaintiff’s lawyer can request EEO-1 reports during discovery and can use them.