EEOC Wants to End Reporting of Workforce Demographics

As part of the Trump Administration’s deregulation efforts, the Equal Employment Opportunity Commission (EEOC) on July 23 issued a Notice of Proposed Rulemaking to eliminate requirements that companies and institutions report workforce demographic data, including one filing dating from 1966 that requires private sector employers with more than 100 employees to report on job category, sex, race, and ethnicity.

The EEOC plan would remove the longstanding requirement for the filing of the EEO-1, EEO-2, EEO-3, EEO-4, EEO-5, and EEO-6 reports, as well as recordkeeping and record preservation requirements related to the reports.

EEOC said the reports, which typically have been used to investigate allegations of employment discrimination and to identify occupations and industries where there may be barriers to equal opportunity, are inconsistent with equal employment opportunity (EEO) law and potentially unconstitutional.

“While the Commission often will need to request information related to employees' protected characteristics in the context of a particular charge or lawsuit, the Commission has preliminarily concluded that wholesale collection of such information through the EEO Reports—unconnected to any specific allegation of discrimination—may hinder effective enforcement of the EEO laws, and even more significantly, may violate the U.S. Constitution,” the draft rule said.

EEOC said the workforce demographic reports are inconsistent with “EEO law because they may encourage employers to discriminate against employees who are not considered ‘minorities,’ may promote racial stereotyping, and may encourage employers to engage in discrimination to avoid potential EEOC enforcement actions or to address perceived inequitable outcomes.”

 “Additionally, requiring all employers with 100 or more employees to indiscriminately submit racial and sex demographic data to the federal agency responsible for enforcing anti-discrimination laws, absent any underlying charge or allegation of unlawful discrimination, is not narrowly tailored [as EEOC said the Constitution demands],” the draft rule said.

Comments on the proposed rule are due on or before Aug. 24. A public hearing concerning this proposal will be held on Aug. 11 at 10 a.m. (ET). Parties interested in testifying at the hearing should submit a written request no later than Aug. 7.

Comments or questions? Contact Patrick Connole at pconnole@parkplacelive.com.