Title VII of the Civil Rights Act of 1964 requires employers to make and keep records relevant to the determination of whether unlawful employment practices have been or are being committed and to produce such records to the EEOC. Pursuant to its statutory authority, in 1966 the EEOC began requiring certain employers to report employee data by job category, ethnicity, race, and sex, otherwise referred to as "EEO-1" data.
On Monday, March 23, 2020, the EEOC announced in the Federal Register that it applied to the Office of Management and Budget (OMB) for approval to collect EEO-1 workforce demographic data (EEO-1 Component 1 data) from covered employers for three years. See EEOC Announcement of Application to OMB for Approval to Collect EEO-1 Component 1 data. This notice does not request renewal of the EEO-1 summary pay data collection (EEO-1 Component 2). The public is invited to comment to OMB about this proposal within 30 days, or by April 22, 2020. (Accordingly, this Notice is called the 30-Day Notice.) OMB will make a decision regarding the EEOC's request.
The publication of this 30-Day Notice follows the EEOC's first notice (the 60-Day Notice), published on September 12, 2019. In the 60-Day Notice, the EEOC announced that it intended to request renewal of the EEO-1 Component 1 but not of the EEO-1 Component 2. In response to the 60-Day Notice, the EEOC received and posted over 11,500 timely comments. In addition, on November 20, 2019, the EEOC held a public hearing at which it received testimony from six witnesses representing both employer and employee stakeholders, as well as labor economists.
After considering the public comments and the testimony from the public hearing, the Commission announced in the 30-Day Notice that it decided to seek OMB approval for a three-year extension of Component 1 of the EEO-1 (demographic data) with a new control number that will separate it from the EEO-1 Component 2 collection. The Commission also announced its decision not to apply for approval of the Component 2 collection. The Commission considered the burden of gathering, tabulating, and submitting EEO-1 Component 2 data and how it compared to the evidence of its practical utility.
The EEOC's application for approval is governed by the Paperwork Reduction Act (PRA). Under the PRA, agencies such as the EEOC must seek approval from OMB to conduct an information collection, based on the utility of the information as balanced against the burden imposed by the collection. In 2016, the EEOC provided a burden analysis to OMB supporting its request for permission to collect Component 1 and Component 2 data. In the 60-Day Notice and again in the 30-Day Notice, the EEOC updated this burden analysis by considering the total number of reports submitted by report type and file types, and then estimating an average burden based on the number and types of reports submitted.
Despite the significant increase in burden, the EEOC believes the proven utility of Component 1 to the EEOC's mission justifies its continued collection. By contrast, the Commission stated that it cannot at this time conclude that the Component 2 data has significant practical utility in assisting the Commission to fulfill its mission.
Written comments on the 30-Day Notice must be submitted to OMB on or before April 22, 2020. If OMB approves the EEOC's request for authorization to collect Component 1, the EEOC will notify employers of next steps at that time.