Thursday, August 31, 2017

Why I Feel Sorry for Ivanka Trump

On August 29, 2017, the Office of Management and Budget ordered the EEOC to suspend its plans to require employers to report pay data, and Ivanka Trump seems to be getting all the blame. She issued a public statement endorsing the OMB's move and ever since has essentially been painted as a traitor to her sex (see, for example, here and here). I don't usually feel sorry for any member of the Trump family, but here, I think Ivanka Trump is being treated unfairly.

Forcing employers to fork over pay data may conceivably make some contribution toward rooting out pay discrimination, but as with any government regulation, the burdens imposed on employers have to be weighed against their potential benefits.

Under the EEOC's pay data proposal, employers with at least 100 employees would be required to report aggregate pay data by sex, race, and ethnicity for each of 10 broad job categories, including "professionals," "craft workers," and "service workers." By contrast, the Equal Pay Act, which is the leading federal statute prohibiting sex-based wage discrimination, requires precise comparisons between workers performing the same job. It's not clear what relevance, if any, statistical evidence about aggregate pay differences between workers who merely perform jobs within the same broad job category will have for determining whether particular workers doing the same job are paid differently because of sex.

The EEOC's pay data proposal also would require employers to report pay based on W-2 income rather than base pay. As noted by the EEOC, pay discrimination may not be limited to the base pay rate at which employers pay workers in different protected groups but also may arise with respect to supplemental pay, such as overtime, shift differentials, and bonuses. As examples, the EEOC points out that higher commission income may reflect higher performance, but it also may reflect discriminatory assignments based on race, ethnicity, or sex; similarly, differences in overtime pay may reflect discriminatory overtime assignments based on sex-based stereotypes about family responsibilities. To be sure, differences in supplemental pay may be the product of discrimination, but if that is the exception, then the mere existence of such differences may provide little evidence of underlying discrimination in a particular case. The EEOC has severely limited resources and can't afford to expend them following up on every scintilla of evidence of discrimination. The limited value of the pay data that would be provided under the EEOC's proposal may be little better than taking a shot in the dark.

So is it possible to be against the EEOC's pay data proposal but still against sex-based wage discrimination? Of course it is.

Like Ivanka Trump, the current Acting Chair of the EEOC, Victoria Lipnic, is on record as opposing the EEOC's pay data proposal, based on the burden it would impose on employers and the limited utility of the data. Lipnic is widely respected by both employers and employee rights advocates, being seen as a consensus builder. Lipnic has worked closely with Democratic Commissioners, including with Commissioner Chai Feldblum on the Select Task Force on Harassment. Notably, however, the EEOC adopted its pay data proposal by a 3-2 vote, without support from Lipnic or any other Republican. Despite OMB's halt of the pay data proposal, Lipnic has reaffirmed the EEOC's commitment to combating pay discrimination. And I think few question her sincerity.

Unlike Lipnic, Ivanka Trump may still have to earn the trust and respect of equal pay advocates. Nevertheless, she shouldn't be faulted for taking a perfectly reasonable position. Until then, I will continue to feel sorry for Ivanka Trump.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.