The Equal Employment Opportunity Commission (EEOC) announced on May 7 that it will delay until March 2021 collection of EEO-1 Component 1 information—which asks for the number of employees who work for a covered business sorted by job category, race, ethnicity and gender.
"The EEOC recognizes the impact that the current public health emergency is having on workplaces across America and the challenges that both employers and employees alike are now facing," the agency said in a statement. "Delaying the collections until 2021 will ensure that EEO filers are better positioned to provide accurate, valid and reliable data in a timely manner."
Joy Chin, an attorney with Jackson Lewis in Long Island, N.Y., noted that the decision only impacts the 2019 EEO-1 reporting requirement. The EEOC is giving employers a one-year extension for filing the 2019 EEO-1 report data—which includes workforce demographics from any pay period from October through December 2019.
Under ordinary circumstances, Chin said, certain employers would have been required to file by March 2020.
Approval Pending
Under federal law, businesses with at least 100 employees and federal contractors with at least 50 employees and a contract of $50,000 or more with the federal government generally must file the EEO-1 form each year. The EEOC uses information about the number of women and minorities companies employ to support civil rights enforcement and analyze employment patterns, according to the agency.
[SHRM members-only HR Q&A: What are the filing requirements for the EEO-1 form?]
If the EEOC had collected surveys in 2020, they would have included employee data from a snapshot period in 2019. Employers should note, however, that the agency is still in the process of seeking approval from the White House Office of Management and Budget (OMB) to collect data from 2019, 2020, and 2021.
Pending approval from the OMB, the EEOC expects to begin collecting 2019 and 2020 EEO-1 Component 1 data in March 2021. The agency said it will "notify filers of the precise date the surveys will open as soon as it is available."
No Pay-Data Collection
"Happily, the pay data and hours worked data, which were required in the Component 2 filing due last Sept. 30, are not required for the 2019 and 2020 data," said Cheryl Behymer, an attorney with Fisher Phillips in Columbia, S.C. The agency has said it does not intend to collect the controversial pay information, which was the source of a heated legal dispute.
The EEO-1 form's well-established Component 1 asks businesses to list their employees by job category, race, ethnicity and sex. The new Component 2 of the EEO-1 form requested employees' hours worked and pay information from W-2 forms, broken down by the same categories.
Employers that opposed the expanded data collection said the W-2 income numbers don't provide adequate information about pay disparities. Some worker-advocacy groups, however, said the information would help them evaluate pay disparities and better serve their clients.
In 2017, the federal government decided not to gather Component 2 data, and several worker-advocacy groups sued to force the EEOC to collect it. After a judge sided with the advocates, the EEOC announced that employers would have to report Component 2 data from 2017 and 2018 payrolls by Sept. 30, 2019.
The EEOC later announced that it doesn't intend to collect the pay data in the future. The agency concluded that the burden imposed on employers to gather the information outweighs the usefulness of the data for the agency.
The EEOC still plans to follow its longtime practice of collecting Component 1 data, which helps the agency better understand the racial, ethnic and gender makeup of the workforce by classification, industry and geography. It also helps the EEOC review a company's diversity when the agency investigates a claim.
The EEOC shares this information with the Office of Federal Contract Compliance Programs, which is responsible for ensuring that federal contractors comply with nondiscrimination laws and regulations.
Start Preparing
The EEOC suggested that covered employers begin preparing the data.
"Most employers already have prepared or were in the process of preparing their 2019 EEO-1 reports while awaiting EEOC's opening of the EEO-1 portal," Chin observed.
The EEOC has not changed the reporting snapshot period—which is any payroll period from October through December. "Thus, if employers have the time and resources to continue or complete preparation of their 2019 EEO-1 reports, they should perhaps do it sooner rather than later," Chin said. It will be one less thing to add to the list later in the year when the 2020 EEO-1 reports will also need to be prepared.
"This is a good time to ensure all of your employees have had the opportunity to voluntarily self-identify their gender, ethnicity and race or to issue forms to the workforce if they have not," Behymer said. "If you identify employees for whom you do not have the information, the EEOC expects that you will acquire the necessary data from other sources—such as using other employment-related documents like the documents provided for an I-9 or even through a visual identification."