U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

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COMMISSION MEETING

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OPEN SESSION

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TUESDAY, JULY 21, 2026

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PRESENT:

ANDREA R. LUCAS, Chair

KALPANA KOTAGAL, Commissioner

BRITTANY PANUCCIO, Commissioner

         This transcript was produced from audio provided by the Equal Employment Opportunity Commission.

CONTENTS

Notice of proposed rulemaking - Rescission

of EEO report EEO-1, EEO-2, EEO-3 EEO-5,

EEO-6, and related recordkeeping and

Record preservation requirements              4

Vote                                          47

Motion to Adjourn                             47

P-R-O-C-E-E-D-I-N-G-S

         CHAIR LUCAS: Good morning, welcome to this meeting of the Commission.  I'm pleased to be joined today by my colleagues Commissioner Kalpana Kotagal and Commissioner Brittany Panuccio.

         I also want to welcome the agency staff and members of the public are joining us today, whether in person (inaudible).

         I also want to welcome our new legal (inaudible) our meeting today.

         I'm going to (inaudible) provide the Sunshine Act (inaudible) for audio issues.

         (Inaudible.)

         CHAIR LUCAS:  Commissioner Panuccio?  Thank you.

         COMMISSIONER PANUCCIO:  Good morning.

         CHAIR LUCAS:  (Inaudible) Commissioner Panuccio (inaudible).

         All right, we're going to proceed and go ahead, thank you.

      (Inaudible) open to the public, and as such, the Commissioners are (inaudible) consistent with the order (inaudible) the public was invited to listen to the deliberations of (inaudible) remarks and questions.

         CHAIR LUCAS:  Thank you.  We're going to turn to five minutes rounds of opening(inaudible)

         Today, the Commission is considering a notice of proposed rulemaking (inaudible) since several race and sex data collections, the EEO-1, -2, -3, -4, -5, and -6 (inaudible).

         These reports (inaudible) data race and sex to the (inaudible) understand the regulations that created this reporting, (inaudible) must first understand where our discretionary authority to require such reports (inaudible).

         As the NPRM will explain, Congress gives the Commission very specific instructions in Title VII about record keeping and rules.

         Section 709 of Title VII states covered employers shall, one, make and keep such records relevant whether unlawful practices have been, or are being (inaudible).

         Two, preserve such records.  Three, make such reports there from, that the Commission shall prescribe a regulation or order, quote, as reasonable and necessary within (inaudible).

         NPRM identifies several substantive problems with the EEO reports that show continued collection is not, quote, best reasonable and necessary and appropriate for the enforcement of Title VII.

         I want to highlight three proposed justifications for this action.  First the NPRM explains the reporting requirement is inconsistent with EEO law, because it may encourage employers to discriminate against employees who are not considered minorities

         It may promote racial stereotyping by employers at work.  It may encourage employers to engage in discrimination to avoid potential EEOC enforcement actions, or to address perceived, quote/unquote, inequitable outcomes.

         By requiring employers and other regulated entities to report aggregate data related to sex and race, the Commission's EEO reporting requirement may have the unintended effect of promoting, rather than reducing, discrimination because of the mistaken view it is permissible for employers to take race or sex-based actions to correct statistical imbalances.

         On the other hand, an employer could mistakenly believe the absence of a statistical imbalance means that it has not violated the EEO (inaudible), causing the employer to forego its responsibilities to prevent and correct discrimination, even in the absence of such (inaudible).

         Second, the NPRM raises constitutional concerns regarding the compelled collection of employee information that classifies employees by race and sex.

         Through the EEO data reports, the government is requiring regulated entities to ignore individual racial categories, under equal protection doctrine, governmental racial classifications are inherently suspect and must be narrowly tailored to further a compelling governmental interest.

         As contemplated in the NPRM, combating employment discrimination itself is a compelling interest.

         The aggregate demographic data that the reports require, including race and sex categories, are not narrowly tailored to that interest.

         Employers are required to file their reports every year, regardless of any allegation, indication, or evidence of discrimination.

         Yet Title VII violations require proper comparators as specific evidence, not mere raw head counts like the reports (inaudible).

         Moreover, as the NPRM explains, the job categories themselves originated decades ago on Standard Form 40, do not reflect the modern report (inaudible).

         Finally, collecting these reports imposes a substantial burdens on employers, and on the Commission itself.

         NPRM recognizes that employers must spend significant time and resources filing, categorizing (inaudible) race and sex data, imposing hundreds of millions of dollars on employers.

         Again, even when there is no reason to suspect a Title VII violation from (inaudible).

         On the Commission side, maintaining and processing and preserving large volumes of data costs the agency millions each year and diverts precious resources from activities tied directly to specific charge enforcement, education, outreach, and (inaudible).

         The NPRM considers the interest of those who rely on the EEO report (inaudible) as well as alternative (inaudible) and concluded that the rescission of the EEO reporting would better serve the EEOC's mission and legal obligations.

         Additionally, the NPRM concludes that whatever minimal benefits might exist, are outweighed by the substantial costs.

         While these issues and others will benefit from public input, I believe the NPRM raises questions that underscore the need to reassess the longstanding assumption that these reports must (inaudible) with the administration, Administrative Procedures Act, the APA, the Commission will carefully consider all public comments and relevant data before making any (inaudible).

         I'm going to pause for a moment (inaudible) facing technical (inaudible)

         CHAIR LUCAS:  All right, unfortunately, I'm being told that I need to repeat my statements.  I am sorry about this.  (Inaudible) not acceptable and we're (inaudible).

         The Commission is considering a notice of proposed rulemaking that would rescind several race and sex data collections.  The EEO 1, 2, 3, 4, 5, and 6 reports.  These reports require employers to annually report aggregate data (inaudible).

         (Pause.)

         CHAIR LUCAS:  -- enforcement of Title VII.  And to highlight three justifications for this proposed action.

         First, the NPRM explains the reporting requirement is inconsistent with EEO law, as it may encourage employers (inaudible) discriminate against employees not considered minorities.

         They promote racial stereotyping by employers by work, and may encourage employers to engage in discrimination to avoid potential EEOC enforcement actions, or to address perceived inequitable outcomes.

         By requiring employers and other regulated entities to report aggregate data related to sex and race, the Commission's EEO reporting requirement may have the unintended effect of promoting, rather than reducing, discrimination because of the mistaken view that it is permissible for employers to take race, or sex-based actions, to correct statistical imbalances.

         On the other hand, an employer could mistakenly believe that the absence of a statistical imbalance means that it is not violated a (inaudible), causing the employer to forego its responsibilities to prevent and correct discrimination, even in the absence of such (inaudible).

         Second, the NPRM raises constitutional concerns regarding the compelled collection of employee information that classifies (inaudible) by race and sex.

         Through the EEO data reports, the government is requiring regulated entities (inaudible) individual categories.

         Under equal protection doctrine, governmental racial classifications are inherently suspect, must be narrowly tailored to further a compelling governmental (inaudible).

         (Inaudible) in the NPRM, adding employment discrimination itself may be a compelling (inaudible).

         The aggregate demographic data the reports require including race and sex categories, are not narrowly tailored (inaudible).

         Employers are required to file a report every single year, regardless of any allegation, indication, or evidence (inaudible)

         Yet Title VII violations require proper comparators and specific evidence, not mere raw headcount (inaudible).

         Moreover, as the NPRM explains, the jobs categories themselves originated decades ago from standard Form (inaudible) and do not reflect the modern (inaudible).

         Finally, collecting these reports imposes substantial burdens on employers and on the Commission itself.

         The NPRM recognizes that employers must spend significant time and resources categorizing and submitting race and sex data, imposing hundreds of millions of dollars (inaudible).

         Again, when there is no reason to suspect a (inaudible) violation from (inaudible).

         On the Commission's side, maintaining and processing, and preserving large volumes of data costs the agency millions each year, and diverts precious resources from activities tied to specific charge enforcement, education, outreach, and services.

         The NPRM considers the (inaudible) of those who rely on the EEO report, as well as alternative (inaudible), and concluded that the (inaudible) of the EEO (inaudible) serves the EEOC's mission, legal obligations.

         Officially, the NPRM concludes that whatever minimal benefits might exist, are outweighed by the substantial costs.

         All these issues and others will benefit from public input.  I believe the NPRM raises questions that underscore the need to reassess the longstanding assumption that these reports must (inaudible).

         Pursuant to the Administrative Procedures Act, the APA, (inaudible) the Commission will carefully consider all public comments and relevant data (inaudible) making any (inaudible).

         Thank you.  I'll turn it over to my colleague, Commission Kotagal.

         COMMISSIONER KOTAGAL:  Good morning everyone.  For 60 years, the EEOC has collected workforce demographic data.

         Yet today, the Commission discusses whether to turn back time to a period before the Civil Rights movement, kneecapping its ability to protect workers.

         We take up this proposal not because discrimination is no longer pervasive, nor because the law has changed.

         Instead, the Commission advances this rescission to bow to the worst impulses of this administration, to weaken Equal Employment Opportunity and civil rights. That's a grave disservice to the public.

         Today, you're going to hear a lot of acronyms.  EEO 1, for one.  My goal here is to cut through the noise and explain why this wonky issue of data collection is so important, starting from first principles.

         Since 1966, the EEOC has required large employers to submit race and sex data for their employees.

         EEOC has, in turn, used this data to protect workers by investigating race and sex discrimination.

         If a worker files a complaint of discrimination, the EEOC staff use this data to assess whether the issue may be more widespread.

         EEOC staff dig deeper to see if there is statistically significant racial or gender disparities, compared with the local workforce.   Disparities may warrant further investigation.  This data helps the agency to focus our limited resources on particularly strong, impactful cases.  It's a key tool in our toolbox and you don't have to take my word for it.

         Under this administration, even as it criticizes the collection and use of demographic data, the EEOC has repeatedly used EEO-1 data to build cases, including ones that advance the Chair’s (priorities.

         Take our recent subpoena enforcement action against Vallarta Food, based on a commissioner charge filed by former Vice Chair Samuels.  According to court filings, the EEOC is investigating whether the employer discriminated against non-Hispanic workers' treatment, hiring, and promotion.  Defending its subpoena, the EEOC explained that the employer's EEO-1 report showed that nearly 100 percent of its employees were Hispanic.

         This is just one example of how EEO-1 data not only informed enforcement but also bolstered an investigation to protect workers against discrimination.

         The agency also used EEO-1 data to identify industry and employers where there might be barriers to opportunity, and targets and informs our outreach and education efforts.  The agency maintains the confidentiality of individual data that is aggregated, that is available on the EEOC's website.

         As EEOC explains, users can analyze data associated with more than 56 million employees, and more than 73,000 employers nationwide.  This is incredibly valuable.

         EEO-1 data has also informed) important Commission reports.  In 2024, former Chair Burrows released a report of the tech industry, analyzing EEO-1 reports from 2014 to 2022.  It highlighted persistent demographic disparities for workers and 56 STEM occupations, showing a meaningful under-representation, lack of career advancement for women, Black, and Hispanic workers, despite the growth of these populations.

         Outside the EEOC, the data is used by state and local civil rights agencies to enforce the law, and by employers, researchers, and the press to educate the public about workforce trends.

         Notably, this proposal comes after the Chair has eliminated the agency's Office of Enterprise Data Analytics, or OEDA, which was created by former Republican Chair Vicki Lipnic, and was responsible for analyzing EEO-1 data.  The EEOC also failed to secure a contract for EEO-1 data collection after the existing contract expired in September of 2025.

         And though employers are required to submit data, given the critical importance of demographic data, why is the Commission's racing to scrap it? Particularly at a time when the EEOC is at its lowest staffing levels in over five years, why make it harder for the agency to investigate or prosecute discrimination claims?

         Unfortunately, this action by the administration further erodes civil rights.  These efforts should be seen for what they are: an attempt to weaken equal employment opportunity, and to undermine progress for women and historically marginalized communities. 

         It's a see no evil, hear no evil approach.  But discrimination doesn't go away just because you erase the data.  It just becomes harder to prove.  Enforcement gets weaker, takes more time, it’s costlier.  Accountability suffers.  Workers get left behind.

         CHAIR LUCAS:  Thank you, Commissioner Kotagal.  Now I'm going to turn to Commissioner Panuccio.

         COMMISSIONER PANUCCIO:  Good morning.  I appreciate the opportunity to discuss this important topic with my colleagues, Chair Lucas and Commissioner Kotagal.

         As always, thank you to our headquarters staff whose hard work made this meeting possible.  And an extra thank you for working through all the technological issues.

         Thank you to our career staff throughout the country, as well, whose work is critical to achieving our mission of preventing and remedying workplace discrimination.

         Each Commission inherits statutes, regulations, guidance, documents, and longstanding practices developed over many decades.  Some continue to serve the agency well; others do not.  Part of our responsibility as Commissioners is to exercise independent judgment, to ask whether the policies we inherited serve the purposes for which they were adopted and remain faithful to the laws Congress entrusted us to administer.  That responsibility reflects good governance.

         My approach to the matter before this Commission begins with first principles.  The laws we enforce necessarily speak in terms of protected characteristics.  Congress prohibited discrimination based on race, sex, religion, national origin, and other protected characteristics, because discrimination often occurs on those bases.  We cannot faithfully enforce those laws without recognizing that reality.

         But our job is to see individuals, not categories.  The Commission's responsibility is to apply anti-discrimination protections faithfully and even-handedly to every individual entitled to them under the law.  That same commitment to equal treatment requires us to examine the tools the Commission uses to fulfil its mission.

         A regulation must have a lawful and continuing justification.  A reporting requirement must provide value commensurate with the burden it imposes on both the agency and outside stakeholders.  The collection of information by the federal government must remain connected to a legitimate enforcement need.  And longevity alone cannot supply that justification.

         The Commission must ensure that its regulations are faithful to the statutes we administer, the Constitution, and the principle of equal treatment those authorities protect.  A practice does not become lawful, necessary, or appropriate simply because the government has followed it for many years.  Our responsibility today is to examine that practice on its merits and determine whether it's justified.

         Responsible government also requires us to make thoughtful choices about how we use the limited resources we have been entrusted with.  We should not continue administering a regulatory program simply because it's become routine.  Nor should we continue spending public funds on one that no longer serves its intended purpose.  The relevant question is whether that program lawfully and meaningfully advances the Commission's important work.

         I look forward to today's discussion and, if we publish this notice of proposed rulemaking, to receiving and engaging with the public comments, and carefully considering them before the Commission determines what, if any, changes should be made to the proposed rule.

         Thank you.

         CHAIR LUCAS:  Thank you, Commissioner Panuccio.  We're now going to move into the introduction of (inaudible) motion followed by two rounds of five-minute discussion rounds, (inaudible), as well as provide some additional (inaudible).

         So, I'm going to make a motion to adopt the draft notice of proposed rulemaking rescission of EEO report EEO-1, -3, -5, -6, and related record-keeping (inaudible).

         Is there a second?

         COMMISSIONER PANUCCIO:  Yes, I second the motion.

         CHAIR LUCAS:  Thank you.  Now that it is on the floor, we'll move to discussion.  I'll begin the first round, and then recognize my fellow Commissioners.

         Executive Secretariat will keep time.  As I said in my opening, for decades the EEOC has required over two million employers, regardless of whether any allegation of discrimination was ever made, to classify their employees by race and sex every single year, and to report that data to the EEOC.

         In contrast, every year the EEOC receives approximately 82,000 charges of discrimination.  It's certainly a high volume of charges for a relatively small agency to investigate, but proportionately very low compared to the number of regulated entities.

         Even assuming that every single charge was filed against a separate employer or other covered entity, which is not in fact the case, the agency's annual charge receipts would approximately (inaudible) would amount to only approximately 4.5 percent of the covered entities (inaudible) charge of discrimination against someone of particular (inaudible).

         Despite this, the EEOC's current regulations employ a blunt and blanket demand that all 2 million-plus employers provide an annual (inaudible) to the EEOC, costing hundreds of millions of dollars, approximately $275 million dollars in compliance burdens for regulated entities. In comparison, the Commission's current budget is $435 million, and the President has supported a mark of $455 million.  We are imposing on employers more than half of the budget that we receive.  And every year we -- this last past year, we recovered $660 million (inaudible). Again, we are simultaneously imposing an almost $300 million cost on employers to receive (inaudible).  However, that data is not leading to those $660 (inaudible) has received.

         I strongly believe that the proposed rescission of the annual reporting requirement will not hinder the Commission's critical law enforcement work to investigate specific charges of discrimination, that specific work that is leading to (inaudible) recovery for workers(inaudible).  In contrast, every single year, the vast majority of the data reports that are filed sit gathering dust, whether literally or metaphoric, disconnected to any charges currently before the agency's core laws.

         Even where an employer or other covered entity faces a charge of discrimination, a maximum of 4.5 percent of all (inaudible) in the country, that employer's EEO data is neither necessary, nor sufficient itself, for the agency to find reasonable cause to believe discrimination has occurred.

         Without fail, it is vastly more valuable for the agency's law enforcement work for the agency, during its investigation, to issue requests for information tailored to the specific charge and allegation at issue.  And when we subpoena enforcement actions or other charge requests, the former members of the Office of Enterprise Analytics are some of the data analysts who help us work through that specific, tailored charge information.  Every single one of those employees retained their jobs and assist the Commission in its systemic investigations, as well as the other charge investigations.

         If finalized following review and consideration of public comment, the Commission's rescission of these reports would not change or otherwise affect the Commission's ongoing statutory right to request specific, detailed, tailored records relevant to charge investigations.

         Indeed, over my six years at the Commission so far, I have and will continue to support the Commission's reasonable pursuit of relevant enforcement investigations, including via supporting thousands of enforcement actions filed in federal court to obtain information to which the Commission was entitled, and which was necessary in support of investigations.

         As always, the Commission will carefully consider all comments before making any final determination. I look forward to thoughtful and robust dialogue at this meeting as we consider rescission, as well as (inaudible).

         Commissioner Kotagal.

         COMMISSIONER KOTAGAL: Perhaps what’s most perplexing about this proposal to rescind the EEOC's demographic data collection is that we're depriving ourselves of critical data that employers are required to collect.

         The $660 million that the agency recovered for FY25, was recovered during a time while the agency was collecting the EEO-1 demographic data.  And we know that not all discrimination that we (inaudible) because an employee files a charge.

         I fear that today's proposal is going to confuse employers, risking future liability, and so I want to be clear.  Regardless of whether the Commission ultimately rescinds its EEO-1 regulations, employers are still required to collect demographic data under the law.

         Section 709(c) of Title VII, which is oft-quoted this morning, states that employers must, quote, make and keep such records relevant to the determination of whether unlawful employment practices have been, or are being committed, end quote.  Demographic data is necessarily part of that record-keeping requirement.  It's essential, ensuring that the Commission can enforce the law.

         Collecting and maintaining this data is also central to employer obligations to guard against disparate impact liability under Title VII. The Supreme Court first recognized disparate impact in 1971 in Griggs, and Congress codified it by amending Title VII in 1991.

         Even if this administration refuses to investigate all of these cases, employers can still be found liable for disparate impact discrimination in court.  Practically, that means that employers should continue to validate employment practices, such as AI screening tools, to ensure that are job-related and consistent with business necessity.  Our own regulations require employers to have available for inspection records that show the impact of selection procedures by race, sex, or ethnic group to assess compliance with the uniform guidelines.  It doesn't take a textualist to see Title VII requires demographic data collection.

         Section 709(c) of Title VII also requires the EEOC to promulgate regulations, so that employers can submit reports to the agency.  These are the very same regulations that we're considering re-writing today.

         In addition to their legal obligations, employers should stay the course and continue to collect and maintain demographic data for several other reasons.

         For one, a future Democratic administration will reinstate EEO-1 data collection, and eliminating the structures that employers have in place, only to reinstate them in the near future, isn't prudent.

         In fact, under the prior administration, the EEOC filed 18 lawsuits for non-compliance with EEO-1 requirements, lawsuits which the current chair did not object to at the time.

         Collecting and analyzing demographic data is also good for business.  EEO-1 data collection is an important way for employers to conduct self-assessment to compare themselves to peers in the same industry, or in geographic areas, to identify whether existing policies and practices may create barriers to opportunity.  This type of analysis helps to prevent discrimination and to minimize liability in the long-term.  For example, such an analysis may help employers to broaden their recruitment efforts or to engage in skills-based hiring.

         Employers should also to continue to collect and analyze demographic data to comply with similar state laws, which surely will multiply in response to the actions today.  The State of Colorado has just passed legislation to require EEO-1 reporting in anticipation of this proposal.

         Again, it's inexplicable why we would kneecap our ability to protect workers, instead of burying our heads in the sand we should be fighting for workers equal opportunity.

         In light of these concerns, I have a motion.  As I noted, the EEOC began collecting this data 60 years ago.  In one of its first acts, the agency held a public hearing on December 16, 1965, to advance its EEO-1 data collection.  Today, the Commission considers a proposal to rescind the data collection, offering the public just 30 days to comment, even though prior recent agency actions like the recent Pregnant Workers Fairness Act rule, allowed for a 60-day comment period.  The 30-day comment period is also contrary to the administration's own regulatory agenda, which promised 60 days.

         The 63-page NPRM asserts novel constitutional, statutory, and factual arguments to justify this rescission.  In the interest of transparency and to allow for real public engagement, accordingly, I move that the notice and comment be extended to 60 days to allow the public sufficient time to weigh-in.

         CHAIR LUCAS:  Is there a second?

         (No audible response.)

         CHAIR LUCAS:  All right, Commissioner Panuccio, please proceed to your five-minute discussion period.

         COMMISSIONER PANUCCIO:  Thank you, Chair Lucas.  We've heard a fair amount from Commissioner Kotagal this morning about the usefulness of demographic data in our investigations.  But the question before us today is not whether demographic information can ever be relevant to enforcing our nation's employment discrimination laws.  It can.  The question is whether the federal government should require every covered employer in America to classify its workforce by race and sex and submit that information to the EEOC as a matter of course.

         That's a different question.  And it's the question that this proposal asks us to answer.  Chair Lucas has already discussed the legal analysis supporting this proposed rule, and I agree with it.  The starting point for that analysis is the text of Title VII itself.  Section 709(c) authorizes the Commission to require reports only when they are reasonable, necessary, or appropriate to enforce the laws we administer.

         The Commission is not required to impose these reporting requirements on regulated entities.  And it lies within the Commission's discretion to eliminate them if they are inconsistent with the law, no longer useful to enforce anti-discrimination laws, or counter to the EEOC's enforcement priorities.

         The Supreme Court has repeatedly observed that racial classifications and government action based on race must be subject to continuing oversight and end at some point.  The Commission, thus, has an ongoing responsibility to ensure that the regulations it administers remain faithful to the statutes Congress enacted and consistent with constitutional requirements.

         The constitutional guarantee of equal protection is universal and not restricted to certain favored groups.  It makes no exception for benign classifications, and history has shown that so-called benign classifications have perpetuated the discrimination they were supposedly designed to prevent.  The Constitution's equal protection guarantee applies to individuals without regard for their membership in a particular protected group.

          As the notice of proposed rulemaking explains, the EEO-1 reporting requirement may violate these equal protection principles by forcing all covered employers to sort their employees into arbitrary and imprecise categories. Because of this, as the Supreme Court recently reaffirmed in Students for Fair Admissions, government-imposed racial classification schemes, like the EEO-1 reporting requirement, are subject to strict scrutiny.  They must further a compelling government interest and be narrowly tailored to serve that interest.

         Requiring every covered employer to classify every employee by race and submit that information annually is not narrowly tailored when Title VII already provides the Commission with charge-specific authority to obtain relevant evidence during investigations.

         The proposed rule also explains why mandatory sex-based reporting raises distinct constitutional concerns under the standard applicable to sex classifications.  And I believe the legal analysis is sound.

         I would also add that, for me, today's action reflects a broader principle about how the Commission should exercise the authority Congress has given us.  Our enforcement tools must fit the job they are designed to do.  And there is an important difference between requesting information because it might be useful someday and requesting it for a specific investigation. The federal government should not require every employer in America to collect and report demographic information simply because it may later be analyzed for patterns, untethered to any particular allegation of unlawful discrimination. The question is whether the government has a sufficient justification for compelling the reporting in the first place.

         I want to make clear that by publishing this proposed rule the Commission would not abandon its responsibility to enforce Title VII.  It's not giving up its authority to investigate discrimination or closing the door on systemic enforcement where the facts warrant it.

         Nothing in this proposed rule prevents the Commission from obtaining demographic information when it's relevant to an investigation.  Nothing prevents the Commission from requesting information tailored to a particular charge, employer, or allegation of unlawful discrimination.  Congress gave us those tools and this proposed rule leaves them intact.

         Today, the Commission is considering whether this particular reporting requirement remains justified. After reviewing the record, the governing law, and the legal and factual justifications underlying these reporting requirements, I believe the answer is no. So, I support publication of the notice of proposed rulemaking and look forward to the public's input on the proposal to decide our path forward.

         Thank you.

         CHAIR LUCAS:  Thank you, Commissioner Panuccio.  Now we'll move to a second round of discussion.  I'm reserving my time for this round and will speak last.

         Commissioner Kotagal, the floor is yours.

         COMMISSIONER KOTAGAL:  Thanks.  I want to be clear that we don't require every employer in America to file these reports, only employers with more than 100 employees.

         As I've noted, and as has been reported in the press, the EEOC is at its lowest staffing levels in more than five years.  We have roughly 600 fewer employees than at the height of the prior administration, an approximately 5 percent drop.  Staff shortages will only, I fear, given deflated morale.  At a time when we are barely scraping by, why make it harder for the agency to fulfil its mandate?

         I'm skeptical that the rescission will lead to cost savings for the agency.  Were this change to go into effect, to get baseline demographic data, the EEOC's staff, already contending with resource shortages, will have to further rely on RFIs and subpoenas.  Employers will challenge in court, prolonging investigations, and needlessly wasting precious resources.  Staff will have to battle with employers in resource intensive ways to get them to produce data.  I don't believe this advances government efficiency.

         I'm also concerned by several of the other arguments that the NPRM advances.  First, the argument that collecting demographic data somehow leads to sex or race-based employment actions, is entirely speculative.  With no foundation in law or fact, the NPRM fails to offer any evidence, not one example of employers discriminating against their workers because of EEO-1 reporting.  EEOC has collected this data from employers since 1966 with no issues.

         Similarly, I believe the constitutional arguments are untethered from reality, even if the data collection were subject to strict scrutiny, which I don't concede, and which no court has found.  The agency's own experience over six decades shows that the EEO-1 collection is narrowly tailored and advances a compelling government interest of protecting workers.

         Moreover, the Supreme Court has recognized that the mere act of classifying individuals does not, in and of itself, burden the equal protection clause. There must be a benefit or burden based on a racial classification. There isn't one here.

         Nor is this data collection unduly burdensome.  Most employers already have the structures in place to collect this demographic data.  And, as I've noted, employers will be required to continue to collect this data under the law.

         This NPRM, from my perspective, is held together by conjecture, not case law. Worse, it is ahistorical and divorced from the reality of present-day discrimination. All of this is unbecoming.

         The truth is that EEO-1 data has been key to our investigations of race and sex discrimination.  Just this May, EEOC announced a $5.5 million settlement with Central Transport, resolving allegations that, for at least 10 years, the company passed overqualified female truck driver applicants, instead hiring male applicants with less experience.

         As the EEOC noted in its complaint, an analysis of the company's EEO-1 reports revealed significant disparities in the hiring of male drivers and directly contributed to the EEOC finding cause that discrimination had occurred.

         In another case against Bass Pro, the EEOC secured a $10.5 million settlement to resolve allegations that the company failed to hire Black and Hispanic applicants.  As former general counsel David Lopez explained to the press, the company's EEO-1 data showed that several stores had no Black or Hispanic employees, even in counties with sizeable Black and Hispanic populations.  The data led investigators to dig deeper.

         This administration has recognized the value of demographic data when it serves their interests.  In March 2025, the Chair requested demographic data in letters to 20 law firms about their practices.  In the interest of even-handed enforcement, I think it's important we continue to collect demographic data to protect all workers against discrimination.

         This administration also has not hesitated to request demographic data in other contexts.  For instance, notwithstanding the newfound contention that collecting demographic data may be unconstitutional and may lead to discrimination, the Education Department has a new extensive data collection requirement forcing colleges and universities to hand over race and sex admissions data to track compliance with Students for Fair Admissions.

         In closing, today's proposal chooses Project 2025 over protecting workers.  It will weaken the EEOC's ability to investigate discrimination and protect workers.  I cannot not in good conscience, support this proposal.

         CHAIR LUCAS: Thank you, Commissioner Kotagal. I now turn it over to Commissioner Panuccio.

         COMMISSIONER PANUCCIO:  Thank you, Chair Lucas.  I just want to take a couple of minutes to respond to some of the arguments that we've heard today.  I appreciate my colleague's perspective, but I disagree that today's proposed rule deprives the Commission of an important enforcement tool.

         There is a reason the Commission does not use EEO-1 reports to identify potential violations based solely on demographic disparities. The courts have repeatedly recognized that this approach would raise serious constitutional questions.  And DOJ's Office of Legal Counsel recently reached the same conclusion in an opinion that's binding on this Commission.

         Standing alone, demographic data cannot answer the central question of whether unlawful discrimination has occurred.  That doesn't mean that demographic information is never relevant; it may be.  But where it is, the Commission already has ample authority to obtain it through requests for information, subpoenas, and other investigative tools tied to a particular investigation.  Today's proposed rule simply returns us to that approach.

         Furthermore, where there is independent evidence suggesting unlawful employment practices, whether through public statements, media reports, referrals, or other credible information, the Commission remains free to initiate a commissioner’s charge or a directed investigation.  Nothing in the proposed rule prevents the Commission from identifying, investigating, or remedying unlawful systemic discrimination whenever there is reason to believe it has occurred.

         I'd also like to respond to Commissioner Kotagal's comments about our staffing and our resources.  Just a year ago, I was a career staff member at the Department of Justice being asked to do more with less, so I personally know what it is like to work and pursue enforcements under those conditions.

         So, I have deep appreciation for the work that our career staff are doing on a daily basis to enforce this country's workplace anti-discrimination laws.  I do not believe -- and would not want to pursue something that I would believe would make their jobs more difficult.  And, moreover, regardless of the effect that it has on our day-to-day investigations, it is our duty to do things that comply with our statutory mandates and with the Constitution.

         So that, ultimately, is my guiding star as far as what route should be pursued.  And I support publication of this proposed rule, and I look forward to engaging with the public on this important matter to determine the best course forward for all stakeholders involved.

         Thank you.

         CHAIR LUCAS:  Thank you, Commission Panuccio.  I'll spend my remaining five minutes with just a few quick points of rebuttal (inaudible) to the vote.

         Commissioner Kotagal notes that the data collection does not currently cover all (inaudible).  But, nonetheless, two million is still an order of magnitude higher than the 90,000, max, charges that we receive.  And many of those are often filed against repeat offenders or (inaudible) we often will receive dozens claims against a particular employer, and many other employers may find themselves never appearing in our charge data.

         Second, as Commissioner Panuccio notes, we do have a binding Department Office of Legal Counsel opinion with respect to our uniform guidelines and employee selection procedures that found that, as currently interpreted, those procedures were (inaudible).

         So, while Title VII's vision on disparate impact in terms of methods of (inaudible) it remains in Title VII, that document has current (inaudible) by the Department of Justice.  And that does bind the agency (inaudible) addressing that (inaudible) future matter.

         Further, with respect to Central Transport, I voted for that matter.  It involved widespread sex discrimination, disparate treatment, not disparate impact, against women in trucking.  And that was supported by careful testimonial (inaudible) staff worked (inaudible) support and bring to life the data that we had. Without that testimonial evidence, without the laborious witness testimony, we would not be able to bring that case, and I would not have voted for the case.

         But what turned the day in that particular matter was, again, seeing staff in our agency (inaudible) evidence (inaudible) direct discrimination, based on testimonial, specific harm caused (inaudible), not simply disparities untethered (inaudible).

         Further, I believe that other data collections by the federal government are (inaudible).  Again, what we are talking about here is whether or not the EEOC, itself, can cause employers (inaudible) classify race or sex, untethered to any action.  There may be other appropriate reasons why the federal government may have a compelling reason to collect information, and, indeed, we may collect information in the course (inaudible) a charge.  But untethered to a particular action, that's the question here.

         As for staff morale, while the Commission is at a lower staff level right now, (inaudible) grateful for the President (inaudible) an increased budget.  And I believe that the agency (inaudible) landmark civil rights (inaudible) the President has put (inaudible).

         Indeed, we are seeing the fruits of the focus (inaudible) expansion of our mandate, widening the aperture to ensure that all workers are protected from discrimination, with record-breaking results: $660 million (inaudible) highest in the agency's sixty-year history.  The vast majority (inaudible) matters that were (inaudible) EEO-1.  Data was neither necessary sufficient to receive (inaudible) like that.

         Among other substantial recoveries, EEO-1 data has nothing to do with (inaudible) discrimination, pregnancy discrimination, disability discrimination, and millions, tens of millions, of dollars of that $660 million is from those things.  Again, completely disconnected from any (inaudible) respect of race or sex discrimination (inaudible).

         Then, finally, as to staff morale, I understand that my fellow colleague seems to see the Commission on the sunset side of the mountain.  But I choose to believe that we are on the sunrise side of the mountain.  The Commission's future is bright. Staff morale is improving. That our executive leaders are energized. We had an excellent meeting last (inaudible), all of our SES. And I'm extremely optimistic about new technologies that will help us be more efficient and effective, about excellent recoveries that we (inaudible), about absolutely landmark amounts of (inaudible) that we are receiving every day for a broad range of work.

         So, I feel that the Commission's future is bright.  And I am pleased that we will be able to both make sure that our collection of data is consistent with our constitutional and statutory obligations, while (inaudible) equal opportunity (inaudible).

         All right, that concludes the discussion round, and we'll now move to a roll call vote for the record.

         Commissioner Kotagal, how do you vote on the motion to adopt the proposed (inaudible)?

         COMMISSIONER KOTAGAL: I vote no.

         CHAIR LUCAS:  Commission Panuccio, how do you vote?

         COMMISSIONER PANUCCIO:  I vote yes.

         CHAIR LUCAS: And I vote yes. So the motion to adopt the draft notice of proposed rulemaking, rescission of EEO reports, EEO-1, -2, -3, -4, -5, -6, and related record keeping and record preservation requirements, is approved by a vote of 2 to 1. Myself and Commissioner Panuccio voting yes; Commission Kotagal, no.

         With no further matters listed on our agenda, do I have a motion to adjourn?

         COMMISSIONER PANUCCIO:  Yes.

         CHAIR LUCAS:  I second the motion.  And with that, the meeting is adjourned.  Thank you very much.

         (Whereupon, the above-entitled matter went off the record.)

C E R T I F I C A T E

I hereby certify that the attached transcription is to the best of my belief and ability a true, accurate, and complete record of the above referenced proceedings as contained on the provided audio recording.

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Transcriber