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Shareholders Up Demands for Workplace Diversity Data Seen by Few

June 7, 2021, 10:31 AM

Shareholders are increasingly asking corporations to reveal gender and diversity data about their workforces, with their proposals to publicly disclose confidential, government-only figures gaining strong support during this year’s proxy season.

Companies, including Union Pacific Corp., Nike Inc., Moody’s Investors Service Inc., and Walmart Inc., have been pressed by investors to publicly release data they report to the Equal Employment Opportunity Commission, which is responsible for enforcing workplace anti-discrimination laws. The investor pressure comes as the SEC considers requiring its own corporate disclosures on diversity and other environmental, social, and governance matters.

Ten shareholder proposals to disclose “EEO-1” data revealing a company’s workforce race, ethnicity, and binary gender makeup—or to produce diversity, equity and inclusion (DE&I) reports similar to that data—have gone to a shareholder vote as of June 1, according to data from Insightia, a proxy analytics company.

That figure is likely to increase as public companies face increased pressure from investors, customers, and even their own employees in the wake of the George Floyd murder and social justice movement in the U.S. Investors want EEO-1 and similarly structured data because companies already produce the information, making it easy to track yearly changes in diversity and also see how companies stack up against their peers.

“It’s clear that shareholders care about it, which is a big reason why companies are moving in that direction,” said Rich Fields, a partner at King & Spalding LLP who specializes in corporate governance.

Companies with at least 100 employees, as well as some federal contractors, are already required to submit annual EEO-1 reports on the race, ethnicity, and binary gender of multiple categories of employees. The federal government keeps the data confidential, but companies are free to voluntarily release it.

Two companies saw blockbuster shareholder votes in favor of disclosures at their recent meetings. IBM Corp.’s shareholders approved an annual DE&I report resolution by 94% at its April 27 meeting. Proposals at Union Pacific’s May 13 meeting to report on EEO-1 data and to publish an annual DE&I report received 86% and 81% support, respectively.

Incomplete Picture?

Other shareholders have had less success pushing for diversity disclosures. Moody’s secured the SEC’s blessing in February to keep an EEO-1 reporting proposal—submitted by ESG-focused investment management firm Calvert Research and Management—off the credit rating agency’s ballot at its April 20 shareholder meeting.

Many companies consider the EEO-1 data confidential, while others worry how the numbers could be taken out of context, said Rae Vann, a shareholder at Carlton Fields, P.A. specializing in labor and employment law.

“The EEO-1 report just in and of itself can’t tell the full story regarding any one particular company’s DE&I program, efforts, or successes,” she said.

Moody’s argued in a letter to the SEC the EEO-1 data doesn’t adequately reflect the diversity of its workforce, saying the information only covers the one-third of its global employees who are in the U.S.

But the credit rating agency is supportive of diversity disclosures and plans to release information that more fully reflects its global workforce for next year, Moody’s spokesman Michael Adler said.

Calvert will consider filing another shareholder proposal seeking EEO-1 data in 2022, said John Wilson, the firm’s head of corporate engagement.

“Moody’s in particular is a company that is reliant on its human capital, since its only output is its expertise,” Wilson said in a statement. “It needs a diverse workforce to produce the highest quality research on a diverse set of companies.”

Walmart, Nike

Others companies have asked the SEC for permission to exclude diversity disclosure proposals from their ballots this year, while also making commitments to release EEO-1 data.

Walmart was able to get New York City’s comptroller to withdraw his proposal after the company said it would publish EEO-1 information. The comptroller is the custodian and a trustee of the New York City Teachers’ Retirement System, New York City Employees’ Retirement System, and the Board of Education Retirement System, which are all Walmart shareholders.

The retail giant’s decision to release EEO-1 information was a welcome development, New York City Comptroller Scott Stringer said.

“The EEO-1 Report is the only employee diversity data that all companies already collect, making it a cost-effective means for companies to provide decision-useful data that allows investors to assess and benchmark companies’ diversity performance,” he said in a statement.

Nike also said it plans to publish its EEO-1 data. But shareholder advocate As You Sow hasn’t withdrawn its proposal requesting expanded diversity reporting by the footwear and sports apparel company.

As You Sow didn’t specifically ask for EEO-1 data in its proposal. But the nonprofit organization pointed out Nike doesn’t release the data. A representative for As You Sow didn’t respond to requests for comment.

‘Start Thinking’

Companies soon might not have a choice about whether to make public diversity disclosures.

Securities and Exchange Commission Chairman Gary Gensler told lawmakers last month that agency staff are preparing a plan for more corporate workforce reporting, including potential public disclosures on the diversity of company senior management.

The agency hasn’t said how detailed the possible disclosures could be or how companies could make them. But Democrats at the SEC previously have urged the agency to require companies to disclose metrics on diversity under Regulation S-K, which focuses on companies’ non-financial reporting requirements.

Whether driven by regulatory mandate or stakeholder pressure, the push for companies to back up their statements supporting social and workforce diversity and inclusion with data isn’t likely to slacken, said Vann. The social justice events of the past year have “changed the way we as a culture and as a society look at issues of race and diversity,” she said.

“Employers and companies ought to start thinking about that and preparing now,” Vann said.

To contact the reporter on this story: Lydia Beyoud in Washington at lbeyoud@bloomberglaw.com

To contact the editors responsible for this story: Michael Ferullo at mferullo@bloomberglaw.com; Roger Yu at ryu@bloomberglaw.com

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