There has been recent confusion surrounding the EEOC reporting instructions and requirements for employers since the end of 2017. The U.S. Equal Employment Opportunity Commission (EEOC) requires employers to file the Employer Information Report EEO-1, otherwise known as the EEO-1 Report. The EEO-1 Report is a compliance survey that requires employers to record and submit employment data by employees’ race, ethnicity, gender, and job category. The purpose of this filing requirement is to allow the Agency to determine whether employers subject to Section 709(c), Title VII of the Civil Rights Acts of 1964, are committing unlawful employment practices. More specifically, the Agency’s goal is to support civil rights enforcement and to analyze employment practices (and potential disparities) with respect to representation of women and minorities in the workforce. If there are significant disparities in the employer’s workforce and demographics statistics, the Agency may see this as an indicator of discrimination such that further investigation will be ordered. Ultimately, requiring submission of the EEO-1 Report is a way of regulating and encouraging more representative, well-rounded, and lawful employment practices.
Which Employers Must File An EEO-1?
Employers are subject to this filing requirement if:
They are private employers who are subject to Title VII and:
- Have 100 or more employees (excluding state and local governments, public school systems, higher education institutions, American Indian or Alaska Native tribes, and tax-exempt private membership clubs other than labor organizations); or
- Have fewer than 100 employees but are owned by or corporately affiliated with another employer and the entire enterprise employs a total of 100 or more employees; and
They are a federal government contractor with 50 or more employees and have a government contract worth $50,000 or more.
Submissions of these EEO-1 reports are kept confidential, and all reports must be submitted and certified no later than March 31 of each year.
What is All the Confusion About?
Where the confusion lies is in what information is now required. In February 2016, the EEOC proposed changes to the EEO-1 Report. The proposed revised Report, separated into two components, would still require the information on the existing Report (i.e. race, ethnicity, gender, and job category); but the second component would add employees’ W-2 earnings and aggregate hours worked. The purpose behind such an addition would be to provide information that may better reveal discrimination in the form of wage and hour gaps among women and minority employees. The EEOC announced in September 2016 that this new Form will be implemented for use starting in March 2018, which would allow employers 18 months to gather the information needed.
Less is More… For Now.
However, in August 2017, the Office of Management and Budget (OMB) issued an immediate stay of the revised EEO-1 Form on the bases that there was no notice or opportunity for public comment on the revisions, fear of inaccurate estimates, burdensomeness, and impracticality, as well as potential confidentiality issues given the sensitive nature of the information requested. As a result of the stay, the OMB has advised employers subject to this reporting requirement that they need not file using the revised EEO-1 Form, but rather, they may use the previously approved Form for the upcoming filing deadline. Employers also have the option of using the revised Form, but they are advised to leave the portions related to income and hours worked blank. The new data collection process required under the revised Form is still under review. While there is no set date as to when the review will conclude, it is important for employers to take note of potential reporting changes they may be subject to in the future, and to implement employment practices accordingly.