The U.S. agency charged with enforcing workplace anti-discrimination laws voted on Tuesday to advance a proposed rule that would stop employers from filing annual reports on the race and sex of their workforces, a reporting practice that has been in place since the 1960s.
The Equal Employment Opportunity Commission voted 2-1 to publish the proposal that would rescind the so-called EEO-1 reporting requirement. Under current rules, companies with 100 or more employees have been required to complete EEO-1 forms since 1966. The proposed change would also remove parallel reporting obligations for unions, state and local governments and public schools.
The proposal would not, however, eliminate a separate federal statutory requirement that employers "make and keep such records." For decades the EEOC and state-level enforcement agencies have relied on the data collected through the annual filings to investigate discrimination claims brought by individual employees and to identify potential employer-wide patterns of discriminatory conduct. The agency additionally posts aggregate data on its website without naming specific employers.
EEOC Chair Andrea Lucas, a Republican appointee of President Donald Trump, defended the move and said that categorizing workers by race and sex can itself contribute to discrimination, including against majority groups such as white people and men. Lucas said in a statement: "The EEO data reports stand in direct tension with (federal law’s) requirement that employment practices be colorblind." She has directed the agency to prioritize actions targeting diversity, equity and inclusion policies she contends are unlawful.
Tuesday's vote authorizes the agency to publish the proposed rule, initiating a public comment period. Agency officials said the rule could be finalized later this year. Under the current timetable for annual reporting, the EEO-1 submissions are typically due by September 30.
Kalpana Kotagal, the lone Democratic commissioner on the three-member commission, voted against moving the proposal forward. In a statement she argued that discontinuing the data collection would impede the commission's ability to perform its investigative work and would send an adverse message to workers and employers regarding the significance of workplace civil rights safeguards. Kotagal said: "These efforts should be seen for what they are: an attempt to weaken equal employment opportunity, and to undermine progress for women and historically marginalized communities."
Kotagal also said she expected a future Democratic administration would likely restore the reporting obligation and urged employers to continue using the demographic data they are already required to collect to monitor compliance with anti-discrimination rules.
Civil rights organizations criticized the move, warning it would make it harder to detect and remedy discrimination and could enable enforcement choices driven by politics rather than evidence. Katie Sandson, senior counsel at the National Women's Law Center, said: "Eliminating data about the demographics of the workforce not only makes discrimination harder to identify and address; it also makes it easier for the EEOC to justify enforcement priorities driven by politics rather than facts."
The reporting requirement has been the subject of policy shifts in recent administrations. During the administration of President Barack Obama, the EEOC expanded annual reporting to include information on worker pay broken down by race and sex. That pay-reporting expansion drew strong criticism from business groups and was later undone by appointees of President Trump during his first term.
Business organizations have long argued that the obligations to complete annual EEO-1 reports are burdensome and deliver limited value to either employees or employers. The EEOC estimated on Tuesday that rescinding the reporting requirement would save U.S. employers roughly $275 million each year and would reduce the agency's costs by about $4 million.
With the proposal now slated for publication, the next step is a period for public comment, after which the commission could move to finalize the rule. The agency has indicated that could happen later this year, though the outcome will depend on the comment process and any further agency action.
Summary
The EEOC voted 2-1 to publish a proposed rule to end annual EEO-1 reporting by employers with 100 or more workers, as well as similar filings by unions and public entities, while maintaining a statutory obligation for employers to "make and keep such records." The proposal begins a public comment period and could be finalized later this year. Supporters at the agency say the reporting conflicts with a "colorblind" approach to employment; critics say eliminating the data will weaken enforcement and make discrimination harder to detect.
Key points
- The commission's 2-1 vote advances a proposed rule to rescind annual EEO-1 reporting that has been required since 1966 for employers with 100+ employees.
- The change would also remove similar reporting duties for unions, state and local governments and public schools, but would not eliminate the federal duty for employers to "make and keep such records."
- EEOC estimates rescinding the requirement would save employers nearly $275 million per year and reduce the agency's costs by $4 million; impacts include private employers, public sector employers and compliance-related service providers.
Risks and uncertainties
- Regulatory uncertainty - The rule is only proposed and will be subject to public comment and possible revision before any final action; this affects employer compliance planning and HR operations, particularly for large employers and public entities.
- Enforcement and detection - Civil rights advocates warn eliminating the publicly reported demographic data could make it harder for the EEOC and other agencies to identify patterns of discrimination, potentially affecting enforcement intensity across sectors such as private industry, education and government employers.
- Political reversals - The proposal could be reinstated or reversed by a future administration, a possibility highlighted by a Democratic commissioner, creating additional uncertainty for employers and compliance advisers.