EEOC Report’s End Would Make Employers Rethink Race, Sex Data

The EEOC’s pending proposal to revoke longstanding requirements for employers to report race and sex data for their workforce puts companies in uncharted territory, forcing them to consider if and how they can continue such practices.

The Equal Employment Opportunity Commission submitted a plan in May to the White House to rescind EEO-1 and other employer data collection forms, but further details aren’t yet published.

Without the agency’s data collection, companies may still be required to gather information based on separate agency guidelines and Title VII of the 1964 Civil Rights Act responsibilities, labor and employment attorneys said. Despite scrutiny from the Trump administration over use of EEO-1data, employers may still see good reasons to collect it.

“I don’t think sticking your head in the sand and being blind to the data is going to go over well,” said Christine Webber, a partner at plaintiff-side firm Cohen Milstein Sellers & Toll PLLC.

The EEO-1 forms require private employers with 100 or more employees and federal contractors with 50 or more employees to submit data by sex, race or ethnicity, and job category.

The EEOC also created joint Uniform Guidelines on Employee Selection Procedures in 1978 with four other federal agencies to provide guidance for employers on whether their hiring tests and selection procedures were lawful under Title VII.

The guidelines state employers should maintain records disclosing the impact its selection procedures have upon employment opportunities for people identifiable by race, sex, or ethnic group. The records are to be maintained in a way that is consistent with EEO-1 forms, the guidelines said.

The guidelinesrequire companies continue to maintain the data even without submitting EEO-1 forms, several employment attorneys said.

The EEOC’s May notice also said it would rescind “Reporting Requirement Under Title VII” and under other federal discrimination laws it enforces.

It’s not clear if those reporting requirements include the uniform guidelines, though they “certainly fit that description,” said David Goldstein, a shareholder at Littler Mendelson. The EEOC’s broad language could also refer to complaint forms the commission uses.

If the uniform guidelines are taken away along with EEO-1 reporting, “there’s no clear obligation” under Title VII to create these records, Goldstein said.

The Department of Justice issued a Tuesday memo calling the guidelines’ approach to unintentional discrimination enforcement illegal, but didn’t advocate for elimination.

Defense Tool

Title VII states that employers should preserve records relevant to the determinations of whether unlawful employment practices have been committed.

Title VII’s language itself would require companies to continue collecting this information even without EEO-1 forms, said Scott Kelly, a shareholder at Ogletree Deakins.

The EEOC has gone so far in the past as to sue over lack of record keeping, including in 2024 alleging 15 companies violated Title VII and commission regulations by failing to file EEO-1s.

A federal judge in 2016 held that the uniform guidelines’ record keeping regulation is mandatory in a case where a janitorial services company settled an EEOC lawsuit alleging the company violated the guidelines and Title VII. The company allegedly used criminal history assessments to make hiring decisions without making and keeping records that would disclose the impact assessments have on protected groups.

Regardless of requirements, maintaining data found in EEO-1 reports can be helpful for employers to ensure they’re not engaging in discriminatory practices and to defend themselves against charges, Webber said.

If companies don’t maintain that data, it will make litigation more expensive for both sides, but attorneys representing workers will still be able to access other data to prove their cases through other forms or comparisons with public reports, she said.

As part of the EEOC’s shifting enforcement focus to scrutinize diversity initiatives, Chair Andrea Lucas has encouraged White men to file bias charges.

Continuing to collect this information will be advantageous for employers in light of those cases, according to Sheila Abron, a partner at Fisher Phillips.

“If you aren’t collecting the information, how are you going to be able to say, ‘actually we hired another White person and there’s no discrimination here,’ or ‘You are a person we did not know would identify as White,’” Abron said.

Multiple states, including California, also still have employee demographic disclosure requirements on the books.

But keeping up data collection without the EEOC’s requirement could also create risks, Goldstein said. Continuing to ask employees or job applicants to self-identify, as EEO-1 reports require, may create an impression that an employer is favoring a group based on race or sex, in violation of Title VII, he said.

In its National Enforcement Plan released June 4, the EEOC said company policies that allow sharing data about employees’ race or sex with the public or non-HR personnel could constitute discriminatory DEI practices.

Practical Concerns

The rollback of EEO-1 collection adds obstacles for companies that opt to keep up their own practices.

“If Title VII requires the collection of this information, but the federal agency tasked with collecting the information no longer seeks to collect it, how does an employer comply?” Abron said.

Typically, EEOC opens a portal for companies to annually report the data.

Without the EEOC’s formal collection in place, employers who continue such practices should be wary of following best practices by ensuring its done for a legal purpose and not sharing it with people who could influence decision making in employment, Kelly said.

The EEOC still needs to publish its final rule rescinding the EEO-1, which normally includes a period for public comment.

Employers should be wary of making changes ahead of receiving a detailed plan from the EEOC, Goldstein said, especially since the rollback could be challenged in court or reversed under a future administration.

“It will be fairly reckless to just throw away all your records as soon as the rule comes out. You may still end up having to do this reporting later on even if the EEOC says you don’t,” Goldstein said.