When Will Employers Need to File EEO-1 Reports in 2020?

woman working on laptop and taking notes

[Update: The EEOC announced on May 7 that it won't collect employer EEO-1 data in 2020 due to the coronavirus pandemic.]

Although the historic deadline for filing EEO-1 surveys has passed, the Equal Employment Opportunity Commission (EEOC) is still waiting for approval to continue collecting such reports—which ask for the number of employees who work for a covered business sorted by job category, race, ethnicity and gender.

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 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. Forms submitted in 2020 would include employee data from a snapshot period in 2019—but the EEOC only had approval to collect the data through 2018. So the agency is in the process of seeking approval from the White House Office of Management and Budget (OMB) to collect the EEO-1 survey for 2019, 2020, and 2021.

"The opening of the collection, as well as the new deadline date, will be announced by posting a notice on the EEOC home page and sending a notification letter to eligible EEO-1 filers," the EEOC said.

The agency initially sent its request to the OMB in September 2019, but it sent a new request on March 23, 2020, and the public has 30 days to comment on the request.

"Given this timeline, I do not expect to see the EEO-1 portal open until June 2020 at the earliest," said Jim Paretti, an attorney with Littler in Washington, D.C. 

No Pay-Data Collection

Employers should note that the agency does not intend to collect controversial pay data that were the source of a heated legal dispute. The EEO-1 form's well-established Component 1 asks businesses to list its 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.

[SHRM members-only HR Q&A: What are the filing requirements for the EEO-1 form?]

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 (OFCCP), which is responsible for ensuring that federal contractors comply with nondiscrimination laws and regulations.

Compliance Tips

Employers can start preparing their EEO-1 data now, Paretti said. For Component 1, data typically must be pulled from one pay period between October and December of the following year. Employers can start by selecting the most appropriate payroll period to use as the workforce snapshot.

The best source for information about a worker's race, ethnicity and gender is the worker him- or herself, Paretti noted. Employers have the opportunity to ask for voluntary self-identification when employment starts, and employers should keep this information separate from other employment files.

If an employee declines to self-identify, the EEOC allows employers to provide their best estimate using visual or other available information, but employers can't omit this information from the EEO-1 report.

As more employees have identified their gender as nonbinary rather than male or female, employers have struggled to determine how to report these workers' gender on the EEO-1 form. The EEOC previously said in an FAQ that employers may report this information in a comments section of the form. The agency also said it may provide an update prior to the 2020 collection period.

The OFCCP uses Component 1 data to decide, in part, which contractor establishments the agency will audit for affirmative action compliance.

"If you are a federal contractor, we would encourage employers to do a deeper dive into their assignment of EEO-1 categories," said Sadé Tidwell, an attorney with Seyfarth Shaw in Chicago. "We have found that the OFCCP has become increasingly focused on EEO-1 categories, as they serve as the backbone of any federal contractor's affirmative action plan." 

Since employers' EEO-1 category assignments are being scrutinized more than ever, Tidwell said, going deep into the EEOC's EEO-1 Job Classification Guide and the EEO-1 Instructions would be well worth a contractor's time.



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