Amici fully agree with the government’s arguments and will not belabor them. In our view, the administrative record amply supports OMB’s stay decision under the Paperwork Reduction Act (“PRA”) by showing that the proposed Component 2 data collection imposes high burdens, with little if any utility, and raises serious unresolved confidentiality concerns. However, even if plaintiffs had standing and the district court properly vacated the stay (points with which we do not agree), the court still had no authority to order EEOC to collect Component 2 data, much less to do so on the timetable and in the manner prescribed by that court.
This brief focuses on the practical significance of that remedial error. In short, the court required EEOC to collect this information without any meaningful consideration of the extensive administrative record and other evidence showing that the information collection was not compliant with the PRA and unwarranted.
If the district court had simply vacated OMB’s stay and remanded to that agency, OMB and EEOC each could have considered whether EEOC should proceed with a Component 2 information collection and, if so, how. OMB could have reviewed and reconsidered the administrative record in conducting a final review under the PRA of EEOC’s proposed information collection. Then OMB could have made a final decision with a reasoned explanation, ultimately concluding the review it began in August 2017.
Even apart from OMB’s decision, EEOC could have considered, in light of changed circumstances and newly available information, whether it still wanted to collect the Component 2 data, and, if so, in what way. For example, EEOC could have considered when it would be reasonable to require employers to submit information, and for what time period.
But the district court’s remedial orders took those decisions away from the agencies Congress charged to make them. The court’s failure to follow basic rules of administrative procedure -- by requiring and managing an information collection by EEOC instead of just remanding to OMB -- thus had far more than procedural consequences. It forced an outcome with no regard whatsoever for the consequences imposed on the regulated parties – here, employers – that the PRA is designed to protect. This brief details those consequences, which thus far have received scant consideration in this litigation, even though they were set forth in detail in the record before OMB as well as in the Amici briefs submitted to the district court. That record fully supports OMB’s conclusion that the revised EEO-1 imposes unwarranted burdens, lacks utility, and raises significant confidentiality concerns.
First, when EEOC initially proposed the Component 2 data collection, it vastly underestimated the burden on employers. OMB’s record includes a detailed economic survey demonstrating that employers would annually spend over $400 million in pure labor costs alone, carrying a total annual burden of $1.3 billion in overhead costs, and an estimated $178 million in one-time costs for the design, testing, and implementation of information systems.
Second, OMB’s record shows that the Component 2 data collection will have little to no practical utility and certainly not sufficient utility to justify the burden on employers. Before OMB, EEOC conceded that it “does not intend or expect that this data will identify specific, similarly situated comparators or that it will establish pay discrimination as a legal matter.” JA 348.
Third, OMB’s record supports its conclusion that the Component 2 collection jeopardizes the confidentiality of employer data. For example, the National Academy of Sciences (“NAS”) prepared a report finding that “[e]mployee compensation data are generally considered to be highly sensitive,” but “EEOC provides [this] data to agencies that do not have the same level of confidentiality protections” and ineffective protection of this information “could lead to serious consequences and result in substantial harm.” SJA 183, 262-263.
Finally, the district court made all of those matters worse by fashioning a remedy itself that required the government to proceed with a hasty collection of data without regard to employer burdens, industry standards for reliable collection of data, or confidentiality issues. EEOC Chief Data Officer Dr. Samuel Haffer testified that the July 15-September 30 deadline for compliance “did not” account for the “employer burden concerns” or the time it would reasonably take employers to comply. JA 96.
Dr. Haffer further testified that this sensitive and confidential data will not be collected pursuant to applicable industry standards because a collection under those standards could not occur until 2021. The upshot is a “high cost” to employers with “ramifications for the quality of information that EEOC collects.” Brief of Appellant at 30.
To be clear, this Court need not itself decide questions like burden, utility, and confidentiality in the first instance. But it should understand their weighty nature and the importance of allowing the administrative agencies to consider them and exercise their own judgment.
Download the amicus brief to read the full text.
