The U.S. Equal Employment Opportunity Commission (EEOC) has postponed the deadline for employers to file their 2022 EEO-1 reports, which list workforce demographic data, including race and sex.
An announcement on the EEOC's website explained: "The EEOC is currently completing a mandatory, three-year renewal of the EEO-1 Component 1 data collection by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). Accordingly, the EEOC has updated the tentative opening of the 2022 EEO-1 Component 1 data collection to the Fall of 2023."
A more precise date was not available. Previously, the tentative deadline for filing was in mid-July.
"Employers value certainty in deadlines, and when government agencies keep changing them, it's harder to plan, and it inevitably creates anxiety for some affected portion of the reporting population," said Alissa Horvitz, an attorney with Roffman Horvitz in McLean, Va.
"While employers may find it helpful to have additional time to gather the reporting data, the rolling deadline of the EEO-1 reporting makes it challenging for employers to manage resources and expectations. While there may be more time to gather underlying data, lack of clarity from EEOC regarding potential changes to the reports may limit employers' ability to be proactive," said Lauren Hicks, an attorney with Ogletree Deakins in Atlanta.
Private employers with 100 or more employees and federal contractors with 50 or more employees must submit annual EEO-1 reports through the EEOC's online filing system. State and local governments and public school systems are exempt.
For most businesses, the "delayed opening of EEOC's portal is simply an inconvenience. Presumably, employers have been storing the race and gender data values for a chosen payroll period in between Oct. 1, 2022, and Dec. 31, 2022, or they don't anticipate having any difficulty querying their payroll or HR information system to capture the necessary race and gender information, once EEOC opens its portal for filing," Horvitz said. However, employers "just don't like that the deadline keeps hanging over their heads. They want to check this off their to-do list, and the delayed portal opening means this isn't getting done until later this year."
In addition, the postponement may create stress for government contractors because the EEOC's filing deadline may coincide with the Sept. 30 filing deadline for VETS-4212 forms, which government contractors must file each year, listing the number of veterans they employ, Horvitz said. The delay also could complicate matters for companies undergoing mergers, spinoffs or acquisitions this fall, since they may need to take additional steps for compliance, she added.
"My strongest advice to HR and employers is to keep a close eye on this changing environment and periodically check the relevant website," said Cheryl Behymer, an attorney with Fisher Phillips in Columbia, S.C.
Employers should "take
advantage of the additional time to ensure they are filing their reports
accurately. With routine reports like the EEO-1, it is easy for filers to
simply repeat information previously provided without considering the accuracy," Hicks said.
It would be challenging for employers if the postponement reflects efforts by the EEOC to revamp the data categories. Some comments in court documents in the Supreme Court's recent affirmative action case suggested the race categories are overly broad, so they might be revised in the future, Behymer said.
EEOC spokesman Victor Chen confirmed that the race categories won't change for the 2022 data collection. "Any changes to the race and ethnicity categories in the EEO-1 would require a Commission vote and approval under the Paperwork Reduction Act and are not contemplated in the proposed collection currently pending before the Office of Management and Buget," he said.
"While
the EEOC has participated in the Interagency Technical Working Group
(ITWG) that's looking at revising the race and ethnicity categories, the ITWG
is expected to complete their revisions next year by summer 2024," said Rachel See, an attorney with Seyfarth in Washington, D.C.
Job Categories
On the EEO-1 form, the demographic data is broken down by these job categories: senior-level executives, midlevel managers, professionals, technicians, sales workers, administrative support workers, craft workers, operatives, laborers and service workers. Companies give the EEOC the data in aggregate, so individuals aren't identified.
Completing the EEO-1 report isn't as simple as it may sound, especially when it comes to racial classifications that aren't always obvious.
"For some employers, having more time to fill in race or gender data blanks is helpful," Horvitz said. "Employers rely on employee self-identification to capture race and gender data, but when employees choose not to self-identify, EEOC's instruction booklet doesn't permit employers to drop all these employees from the federally required headcounts just because the employees elected not to self-identify. If employees choose not to self-identify, EEOC instructs employers to use visual identification or other employer records to obtain the data value."
The EEOC recommends that any records of that process be kept separate from the employee's personnel file.
The commission can get a court order to compel an employer to submit the EEO-1 report if the employer fails to do so. Federal contractors and subcontractors could lose their contract if they don't submit the report.