EEOC Plan to Cut Race, Sex Reports Carries Downsides for Agency

The EEOC’s plan to stop collecting employers’ race and gender data will cut off a decades-old tool that’s allowed the commission to focus antidiscrimination enforcement strategies and individual investigations.

The Equal Employment Opportunity Commission told the White House May 14 it aims to rescind a number of workforce reporting requirements, including its EEO-1 form used to collect demographic information from employers with at least 100 workers.

The move is aligned with broader Trump administration goals of attacking workforce diversity, equity, and inclusion efforts as biased against White men. But employment attorneys and advocates said it could actually hinder the commission’s ability to enforce anti-discrimination laws, especially for systemic cases, even those that address Chair Andrea Lucas’s priorities.

“EEOC would be removing a really powerful tool to look at broad based employment patterns for traditional discrimination purposes, or even for racially discriminatory DEI,” said David Cohen, president and founder of DCI Consulting.

The EEOC sent notice of its plans to rescind EEO-1 data collection, as well as other EEO forms that collect similar information from unions and local governments. Without a formal proposal published yet in the Federal Register, the purpose of the rescission isn’t entirely clear.

The Heritage Foundation’s Project 2025 called for axing the EEO-1 over concerns it “could lead to racial quotas to remedy alleged race discrimination.”

But claims the EEO-1 creates illegal quotas is inaccurate with how the data was collected and used, said former Democratic EEOC Commissioner Chai Feldblum.

Finding Patterns

The EEOC used the reports to guide investigations. It’s been rarer that they’re cited in litigation, Feldblum said.

In July, EEO-1 reports were mentioned as part of the EEOC’s subpoena enforcement action tied to an investigation of a California supermarket chain for failing to hire non-Hispanic individuals.

The “impetus” for the self-directed commissioner charge alleging a nearly homogeneous Hispanic workforce wasn’t a report of discrimination, but the company’s EEO-1 disclosure, according to a magistrate judge’s filing.

An EEOC lawsuit recently settled for $5.5 million used a Michigan-based trucking company’s EEO-1s, compared to job applications it had received, to claim a “statistically significant disparity” disfavoring women applicants.

The reports give the agency facts that let it use its investigative tools in the most effective way and identify patterns early on to decide what might warrant further investigation, according to Jenny Yang, a former Democratic EEOC chair, now a partner at Outten & Golden.

Yang recalled a case that resolved during her tenure, which Bass Pro settled with EEOC for $10.5 million in 2017, in which the commission’s complaint cited EEO-1 reports that showed “clear underutilization, and strikingly low representation” of minorities. It’s hard to imagine a case like that being filed without the data, she said.

By reviewing EEO-1s, investigators can see if charges seem to be part of a broader pattern. Alternatively, they allow the agency to keep information requests during investigations more focused when those signals aren’t there, preventing demands for more information from employers than needed, Yang said.

But Seyfarth Shaw LLP partner Annette Tyman said that since the information reports provided is “so high level and done in an aggregate form” its elimination won’t have direct impact on EEOC enforcement.

While EEO-1 information could be used early in discovery to make high-level factual allegations, it likely wasn’t the ultimate “winning evidentiary piece,” she said.

Outreach Efforts

The bigger impact will be on EEOC outreach, by eliminating a form of data some employers used as a benchmark to see how they stack up relative to their industry, according to Tyman.

The EEOC issued a report during the Biden administration, for instance, showing Black, Hispanic, and female workers are underrepresented in technology. It appears to have been removed from the EEOC website.

The data collection forms are also evaluated by researchers and shared with other government agencies.

EEO-1 reports were used by the Labor Department’s Office of Federal Contract Compliance Programs to assist with antibias enforcement though the agency has lost most of its mandate under the Trump administration.

The Department of Justice uses EEO-4 data collection from state and local governments to review hiring practices, Yang said.

Enforcement Effects

Lucas’s efforts to use Title VII of the 1964 Civil Rights Act to challenge diversity programs the EEOC deems discriminatory could be affected by lack of available data, some employment law experts said.

The required forms breaking down workforce by race and gender give the commission a quick source of information on patterns in employment and promotion of White and male workers, from whom Lucas has explicitly sought discrimination charges.

“If they scare employers away from collecting the data, then employers won’t have the data when EEOC requests it during their investigations,” Yang said.

Recreating that data would be costly for the EEOC and may consume significant agency resources, whereas the EEO-1 reports provided a sort of snapshot for investigators as they received tens of thousands of charges, she said.

The EEOC still has ways to pursue White male bias cases without EEO-1s, however.

An investigation stemming from a traditional charge, or a commissioner’s charge, still allows the agency to request information about statistical data from companies, said Feldblum.

It’s already taking this route in subpoena enforcement actions in investigations into diversity initiatives at Nike Inc. and Northwestern Mutual.

The commission has also recently requested some employment data from companies in less traditional forms, such as letters to law firms inquiring about their DEI practices.

That shows the push to rescind EEO-1 forms isn’t about a dispute over the usefulness of data, but rather about using data to guide priorities, said Jocelyn Frye, president of the National Partnership for Women and Families.

“As long as data reveals something opposite to their narrative, it’s harder to make their case,” she said. “If you don’t collect it, you can tell whatever story you want.”