EEOC gets one step closer to eliminating equal employment opportunity data

The Equal Employment Opportunity Commission (EEOC) voted on July 21 to approve a proposal that would repeal EEO data reporting requirements on sex and race that have, for 60 years, helped identify and rectify discrimination in the workplace.

Equality advocates are worried. If finalized, the change would affect EEO-1 reporting (for employers with over 100 workers), a move that has been widely criticized by civil rights advocates who claim the lack of reporting could open up employers to legal liabilities and harm workers.

EEOC Chair Andrea Lucas, whose role is to enforce anti-discrimination laws, claimed in a contradictory statement that collecting demographic data without a formal discrimination allegation is antithetical to Title VII. “The Commission’s authority to request specific, tailored records relevant to a charge investigation, however, remains unchanged,” she said.

While Lucas asserted that EEO-1 data is not “colorblind,” the move is just the latest in a larger rollback of long-standing nondiscrimination efforts.

The commission’s lone Democrat, Kalpana Kotagal, issued a statement disagreeing with the proposal, noting that EEO-1 data is used to help investigate discrimination and identify talent acquisition opportunities.

“The data helps the agency focus our limited resources on particularly impactful cases,” she wrote in dissent. “I fear that this proposal will confuse employers, risking future liability.”

Kotagal emphasized that, regardless of the rule change, employers will still be required to collect demographic data as part of a recordkeeping requirement in Section 709(c) of Title VII.

“If adopted as a final rule, the proposal would deprive employers of information about their industries that can provide early-warning signals of potential discrimination in their own workplaces,” EEO Leaders, a nonprofit comprised of former EEOC and Department of Labor Office of Federal Contract Compliance Programs leaders, wrote in a statement. “And rescission of these tools will also deny researchers a source of valuable information that can inform studies of employment patterns and trends.”

Employers play wait-and-see. T. Scott Kelly, shareholder and employment lawyer at Ogletree Deakins, told HR Brew that he is advising employer clients to wait before making any drastic changes to their data collection process, as some states, such as Colorado, have their own EEO-1 data requirements.

“This is the time to prepare and think about it. But it’s too early to act until there’s a final rule,” he said.

While the federal government has tried to limit demographic data collection among employers, it’s tried to expand it for higher education institutions. The Department of Education requested seven years of admissions data as part of its affirmative action crackdown, according to the Hechinger Report. Many colleges have resisted the change and in March, a Massachusetts district judge blocked the demographic data request for hundreds of colleges, while leaving the door open for others across the country.

“In higher education institutions, they’re saying that the government needs that information to ensure that schools aren’t discriminating in the admissions process,” Kelly said. “Why is it being required in that regard?...they’re really going back and like making sure that schools are complying with the students for fair admissions decision.”

Members of the public can comment on the proposed EEO rule change and request to speak at an Aug. 11 public hearing.