D.C. District Court Judge Tanya S. Chutkan set aside a decision to delay and review an Obama-era requirement that employers submit pay data along with other employee information. Her March 4 decision held that the Trump administration’s delay was illegal because it violated the requirements of the Administrative Procedure Act (APA).
Since 1966, the Equal Employment Opportunity Commission (EEOC) has required employers with over 100 employees to submit an annual report with information about employees’ sex, race and ethnicity, sorted by job category. In September 2016, the Office of Management and Budget (OMB) approved an EEOC request to add earnings and hours worked to the reporting requirements.
In September 2017, the OMB directed the EEOC to announce a stay for the effective date of the pay data collection requirements for the duration of an OMB analysis. The Office of Management and Budget said that it was reviewing the new data collection forms under the Paperwork Reduction Act (PRA), which aims to minimize the burdens of information requests from federal agencies. The National Women’s Law Center (NWLC) sued, saying that the OMB had violated both the PRA and the APA when it issued a stay for the pay data collection requirements.
Judge Chutkan ruled that the OMB’s action staying the EEOC’s collection of pay data failed the APA’s arbitrary-or-capricious test. The test comes from Section 706 of the APA and requires judges to invalidate agency actions if the agency fails to consider all relevant factors or gives an explanation for its actions that is implausible or that runs counter to the evidence. She said that OMB’s decision to issue the stay “totally lacked the reasoned explanation that the APA requires.” Judge Chutkan rejected the government’s request for Auer deference, which requires courts to yield to agency interpretations of their own ambiguous regulations. She said that courts do not defer to an agency’s unsupported suppositions.