Employers may soon stop being required to report their workforce breakdown by race and sex. The EEOC voted July 21 to propose rescinding the six filings that require it, known as the EEO-1 through EEO-6 reports.
Consistent with precedent
The change would affect private employers with 100 or more employees, along with federal contractors, local unions, state and local governments, and school systems. The proposed rule would also eliminate the recordkeeping requirements tied to those reports.
The Commission’s Notice of Proposed Rulemaking (NRPM) argues the reports collect data unconnected to any specific discrimination charge, and that this kind of blanket demographic classification may violate equal protection guarantees. The NPRM cites recent Supreme Court rulings, including Students for Fair Admissions v. Harvard and Ames v. Ohio Department of Youth Services, as grounds for treating government-mandated race classification as subject to strict scrutiny. The agency estimates the current collection costs employers close to $275 million a year, plus almost $4 million for the EEOC to administer.
“The Commission’s proposal to rescind the EEO Data Reports is consistent with the text of Title VII and Supreme Court precedent,” said EEOC Chair Andrea Lucas in a release. She said the EEO Data Reports stand in tension with Title VII’s requirement that employment practices be colorblind, since they require employers to categorize workers by race and sex without any allegation of a violation.
The proposal does not touch the Commission’s authority to request race and sex data during an actual charge investigation. The proposed rule is narrowly targeted at the routine annual collection, not at EEOC’s investigative power.
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What changes for employers?
Employers should not stop preparing EEO-1 data yet. The reporting requirement remains in effect until a final rule is published, and the rescission is still a proposal. The NPRM has to be published in the Federal Register before the public comment period opens. Comments will run 30 days from that publication date. A public hearing on the proposal is scheduled for Aug. 11, and requests to testify are due Aug. 7.
The Department of Labor has proposed rescinding OFCCP’s EEO-1-based affirmative action regulations under Executive Order 14173. The EEOC has separately been directed to deprioritize disparate-impact enforcement under Executive Order 14281.
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