What is the EEO-1 and Who Must File It?

The Employer Information Report, otherwise known as the EEO-1 Report, has historically required certain employers to compile employment data categorized by race/ethnicity, gender and job category, and then file such survey with the Equal Employment Opportunity Commission (EEOC) Office of Enterprise Data and Analytics' Employer Data Team each year. Specifically, the Report must be filed by the following entities:

1. All private employers with 100 or more employees, with the exception of state and local governments, primary and secondary school systems, institutions of higher education, Indian tribes, and tax-exempt private membership clubs other than labor organizations.
2. All private employers with fewer than 100 employees if the company is owned or affiliated with another company, or there is centralized ownership, control or management (such as central control of personnel policies and labor relations) so that the group legally constitutes a single enterprise, and the entire enterprise employs a total of 100 or more employees.
3. Private employers that are federal contractors (that are not exempt as provided for by 41 CFR 60-1.5, see these regulations, with 50 or more employees and that are also one of the following:
   1. Prime contractors or first-tier subcontractors, and have a contract, subcontract, or purchase order amounting to $50,000 or more; or
   2. Federal contractors that serve as a depository of Government funds in any amount; or
   3. Financial institutions that are issuing and paying agents for U.S. Savings Bonds and Notes.

Please check here for more information on general EEO-1 Reporting obligations.

What Has Been Happening with EEO-1 Reporting Requirements?

In September 2016, the EEOC announced that in addition to collecting employment data categorized by race/ethnicity, gender and job category (often referred to as “Component 1” data), "starting March 2018, it will collect summary employee pay data from certain employers" (often referred to as “Component 2” data). The EEOC explained at the time that "[t]he new data will improve investigations of possible pay discrimination, which remains a contributing factor to persistent wage gaps. The summary pay data will be added to the annual Employer Information Report or EEO-1 report that is coordinated by the EEOC and the Department of Labor's Office of Federal Contract Compliance Programs (OFCCP)." Check here for details of this announcement.

In 2017, however, the EEOC issued a statement indicating that the Office of Management and Budgement (OMB) was "initiating a review and immediate stay of the effectiveness of the pay data collection aspects of the EEO-1 form that was revised on September 29, 2016." The EEOC advised employers to instead use the "previously approved EEO-1 form which collects data on race, ethnicity and gender by occupational category," and further instructed employers to "plan to comply with the earlier approved EEO-1 (Component 1) by the previously set filing date of March 2018." Check here for the EEOC's 2017 statement.

Then last month, the US District Court for the District of Columbia lifted the OMB's 2017 stay of the pay data collection aspect of the EEO-1, effectively reinstating what had been established in September, 2016. Specifically in the case of National Women's Law Center v. Office of Management and Budget, the Judge held that the OMB's reasoning for the stay "lacked support in the record," and as such, vacated it entirely. This means, effectively, that the revised EEO-1 form first established in 2016 is now in effect. Check here for the Court’s Opinion.

Last week, on April 3, 2019, the EEOC filed a Response to the Court's request that it describe how the agency "proposes to undertake and close the collection of Component 2 pay data under the revised EEO-1 information collection that is now back in effect."  Therein, the EEOC asserted that the present "data processes used to collect EEO-1 demographic data are not capable of collecting employers’ 2018 Component 2 data ... because the EEOC collects EEO-1 data from approximately 80,000 employers, and its current data processes are programmed to collect 140 data fields for the Component 1 demographic collection." The EEOC went on to explain that "for each Component 2 report collected from an employer, there will be 3,360 data fields of pay data to be addressed," and that "it would take nine months to modify the EEOC’s current processes to support the collection of large amounts of sensitive Component 2 pay data from 2018." According to the EEOC, "modifying its current processes is not currently a viable option for collecting Component 2 data from employers." Check here for the EEOC’s full response.

What Do We Do Now?

As the EEOC's Response was filed just last week, we are without additional information as to the Court's reply. It is unclear whether the Court will impose any additional delays. At present, the pay data collection requirements are technically in effect.   Until further notice, employers that are required to comply with EEO-1 obligations should prepare to include this data with their EEO-1 filings. The EEO-1 website for 2018 submissions opened last month, and the surveys are due by May 31, 2019. Employers can find additional information here.

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