The U.S. Equal Employment Opportunity Commission (EEOC) has voted to issue a Notice of Proposed Rulemaking (NPRM) to rescind the requirement for employers and other covered entities to file an annual report with the EEOC summarizing aggregate data on their employees’ race and sex (reports known respectively as the EEO-1, EEO-2, EEO-3, EEO-4, EEO-5, and EEO-6 reports or EEO Data Reports), and the recordkeeping requirements related to these reports.
The EEOC’s regulations currently require all organizations covered by Title VII of the Civil Rights Act — including over two million employers — to file these annual reports, regardless of whether or not an employer or other covered organization has ever been accused of a Title VII violation via a charge of discrimination filed with the EEOC. According to agency estimates, the EEOC’s current data collection requirement imposes costs of almost $275 million on employers every year, as well as almost $4 million of costs on the EEOC to administer this data collection.
In the NPRM, the Commission determined that the EEO Data Reports are inconsistent with equal employment opportunity law, may raise constitutional concerns, and collect data that is not narrowly tailored or necessary to enforce anti-discrimination statutes. Under Title VII, the EEOC is not required to impose these reporting obligations and may eliminate them when they are inconsistent with the law, not useful, or counter to enforcement priorities. The NPRM concludes that any limited value of the reports is outweighed by the significant burdens they impose on employers and on the Commission — particularly because employers must submit them annually without any specific indication of a potential violation.
“The Commission’s proposal to rescind the EEO Data Reports is consistent with the text of Title VII and Supreme Court precedent,” said EEOC Chair Andrea Lucas. “The proposed rescission of the EEO Data Reports reaffirms the founding principle that every individual is created equal and therefore is entitled to equal treatment under the law. Because the EEO Data Reports require all covered employers to categorize employees by race and sex annually, disconnected from any allegation of a Title VII violation or related Commission enforcement proceeding, the EEO Data Reports stand in direct tension with Title VII’s requirement that employment practices be colorblind. Collecting such data about employees’ race and sex — absent any specific allegation of discrimination — not only risks hindering effective enforcement of equal employment laws but also raises constitutional concerns. The Commission’s authority to request specific, tailored records relevant to a charge investigation, however, remains unchanged.”