| U.S. Equal Employment Opportunity Commission

Meeting of August 11, 2026 - Transcript

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

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COMMISSION MEETING

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OPEN SESSION

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TUESDAY, AUGUST 11, 2026

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PRESENT:

ANDREA R. LUCAS Chair

HEATHER OLOWSKI Legal Counsel

RAYMOND PEELER Associate Legal Counsel

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

ALSO PRESENT:

FAY BENCOSME

MARC BENDICK, JR.

MEREDITH BENTON, Whistle Stop Capital

JACK BROWN, Pacific Legal Foundation

MICHAEL EASTMAN, Center for Workplace Compliance (CWC)

MELVINA FORD, Equal Rights Advocates

DAVID FORTNEY, The Institute for Workplace Equality

JOCELYN FRYE, National Partnership for Women and Families

KARLA GILBRIDE, ACLU and EEO Leaders

CARMELLA GLOVER, Diversity Action Alliance

LAUREN KHOURI, National Women’s Law Center

MEGHAN KISSELL, American Association of University Women’s (AAUW)

JOSEPH KOHM III, Do No Harm

RACHEL LEE, Stand with Asian Americans

JING-LI YU, 80-20 Educational Foundation

KEN MARCUS, Brandeis Center

RACHEL MORRISON, Ethics and Public Policy Center (EPPC)

MAYA RAGHU, Lawyers Committee for Civil Rights Under Law

GREG SCOTT, 1792 Exchange

AMALEA SMIRNIOTOPOULOS, Legal Defense Fund

DONALD TOMASKOVIC-DEWEY, UMASS Amherst Center for Employment Equity

ASHLEY WESTBY, National Employment Lawyers Association

CONTENTS

PAGE

Consideration of the Notice of Proposed Rulemaking (NPRM) regarding the removal

of EEO-1, EEO-2, EEO-3, EEO-4, EEO-5, and

EEO-6 reporting requirements and associated record preservation rules under 29 CFR Part 1602, as required by Section 709(c) of Title

VII of the Civil Rights Act 5

Public Comment

David Fortney, Institute for

Workplace Equality 15

Fay Bencosme, concerned citizen 20
Ken Marcus, Louis D. Brandeis

Center 23

Amalea Smirniotopoulos, Legal

Defense Fund 28

Donald Tomaskovic-Devey, UMASS

Amherst Center for Employment

Equity 32

Lauren Corey, National Women’s Law

Center 37

Jing Li Yoon of the 80-20

Educational Foundation 41

Dr. Marc Bendick, Jr. 44
Michael Eastman, Center for

Workplace Compliance 47

Melvina Ford, Equal Rights

Advocates 52

Joseph Kohm, III., Do No Harm 55
Rachel Morrison, Ethics and Public

Policy Center 60

Carmela Glover, Diversity Action

Alliance 65

Jocelyn Frye, National Partnership

for Women Families 70

Carla Gilbride, ACLU and EEO

leaders 73

Megan Kissell, American Association

of University Women 78

Maya Raghu, Lawyers Committee for

Civil Rights Under Law 82

Greg Scott, 1792 Exchange 86
Rachel Li, Stand with Asian

Americans 90

Meredith Benton, Whistle Stop

Capital 95

Ashley Westby, National Employment

Lawyers Association 99

Jack Brown, Pacific Legal

Foundation 104

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

10:00 a.m.

LUCAS: All right, welcome to this hearing of the commission to address our proposed rescission of the EEO-1 reports, EEO 1, 2, 3, 4, 5, and 6, and related recordkeeping and record preservation requirements. We’re delighted to have so many members of the public in person and as well as on the audio line. We haven’t had a hearing like this for a long time. Bear with us as we have figured this out together. I’m grateful for my colleagues during that process.

We’re looking forward to hearing from about 22 different speakers today. This is a hearing to hear from you, so it is not going to be a deliberation, but we’ll have some more discussion about that from our various legal counsel.

With that, I’m going to turn it over for some preliminary information from our Associate Legal Counsel, Raymond Peeler.

PEELER: Good morning, Madam Chair and Commissioners. The EEOC is holding this hearing pursuant to Section 709(c) of Title VII of the Civil Rights Act of 1964, which authorizes the Commission to prescribe recordkeeping and reporting obligations, quote, after public hearing, end quote.

On July 23rd, 2026, the Commission published in the Federal Register on page 46,332 of Volume 91, Notice of a Proposed Rule that would rescind the EEOC’s EEO-1 through EEO-6 information collections and revise the recordkeeping obligations in 29 CFR Part 1602. The proposed rule notice also announced today’s hearing. In addition, the EEOC published a separate notice of this public hearing on July 30th, 2026, on page 48,027 of the same volume of the Federal Register.

The hearing notice instructed that anyone wishing to speak at today’s hearing should request that opportunity in writing no later than Friday, August 7th. To ensure the broadest possible coverage, the Commission provided four separate methods to submit requests to comment. Requests could have been provided through regulations.gov portal, by mail, by fax, or hand delivery. The Commission accepted all requests to speak that were received by the August 7th deadline.

Participation in this hearing is limited to those who submitted requests in advance. Others present are welcome to observe only. Observers seeking to take photographs or video or audio recordings of the hearing must have obtained permission at least 24 hours before this hearing by contacting the executive secretariat to discuss the manner of recording and ensure it does not interfere with the hearing.

The audio of this hearing is being streamed live and also recorded where it will remain available on the EEOC’s YouTube channel. A written transcript of the hearing also will be made available on www.eeoc.gov/meetings.

For a few housekeeping notes, please turn off or silence your phones or other electronic devices so that you do not interrupt today’s proceedings. If you need to make a call, please exit the hearing room. In order to accommodate all of those who have requested to speak, the commissioners agreed to extend today’s meeting for a modest length beyond the two hours announced in the EEOC’s notice. Today’s hearing also will include one 10-minute break. If you need to use restroom facilities then or otherwise, they are located on either side of the hallway just past the elevators outside the glass doors at the training center entrance. Please excuse yourself quietly, and you will be allowed to return to view the balance of the hearing.

For the commissioners, this session is a hearing under the Sunshine Act and not a commission meeting. The procedures for a hearing are slightly different from meeting procedures. The purpose of this hearing, as already noted, is for interested stakeholders to express their views to the Commission on its proposed rulemaking. Members of the Commission cannot engage in deliberations that determine or result in the joint conduct or disposition of official agency business during a hearing.

To ensure all speakers have an opportunity to provide a statement, the agenda does not include time for commissioners to question them. I now turn it over to our legal Counsel, Heather Olowski, for an overview of the NPRM and further procedures for the hearings.

LUCAS: Thank you. Please go ahead.
OLOWSKI: Okay. Good morning, Madam Chair, Commissioners, colleagues, guests. Before we discuss the specific procedures for today’s hearing, I will provide a brief overview of the agency’s EEO information collections, all of which have been proposed for rescission as described in the NPRM.

Starting with EEO-1, the EEO-1 annual reporting requirements apply to private employers with 100 or more employees and to federal contractors that have 50 or more employees and meet certain criteria. Employers report information on their employees by job category and by sex, i.e., male or female, and race or ethnicity.

Employers must report their employees in one of the 10 predetermined job categories provided by the EEOC. Those 10 job categories are executive or senior level officials and managers, first or mid-level officials and managers, professionals, technicians, sales workers, administrative support workers, craft workers, operatives, laborers and helpers, and service workers.

The EEO-1 uses federal race and ethnicity categories, which the commission adopted in 2005 and implemented in 2007. Employers must report employees in one of the 7 race or ethnicity categories provided by the EEOC. Those categories are Hispanic or Latino and the following non-Hispanic or Latino categories: White, Black or African American, Native Hawaiian or other Pacific Islander, Asian, American Indian or Alaska Native, or two or more races also not Hispanic or Latino.

Employers do not provide employee information for an entire fiscal year or calendar year. Rather, employers are only required to provide the information for a selected pay period, i.e., a workforce snapshot period in the fourth quarter or October 1st through December 31st of the reporting year.

The EEO-1 does not collect employee information regarding age, religion, disability, genetic information, national origin, color, sexual orientation, transgender status, pregnancy, childbirth, or related conditions. The EEO-1 also does not collect employee information regarding wages, benefits, reasonable accommodations, hiring, firing, performance, promotions, harassment, training, or caregiver status.

Additionally, all EEO-1 reports and any information from individual reports, as well as the other reports the EEOC collects, are subject to the strict confidentiality provisions of Title VII, Section 709(e) that generally prohibit the EEOC from making any of this information public. The confidentiality requirements only allow the EEOC to publish aggregated information and only in a manner that does not identify any particular employer or reveal any individual employee’s personal information. Any EEOC employee who violates Title VII’s confidentiality prohibition may be fined or imprisoned.

On to EEO-3, 4, and 5. Through these three separate reports, the EEOC also collects limited information from local referral unions, state and local governments, and public elementary and secondary school systems and districts. However, unlike the EEO-1, the EEOC only collects these reports every two years.

Finally, EEO-2 and EEO-6. The EEOC has not required submission of the EEO-2 or EEO-6 since 1981 and 1993, respectively. Rescission of the regulations requiring their submission, therefore, would not affect any joint labor management committees or institutions of higher education. A note on the availability of the EEOC data collections to the public. The information collected pursuant to all of these reports, again, is covered by the confidentiality requirements of Title VII of the Civil Rights Act, which imposes criminal liability or penalties on any EEOC employee who shares such confidential information with the public. Therefore, while some aggregated data may have been made available in limited circumstances by reporting companies themselves, the EEOC does not provide this information to the public, and members of the public cannot, for example, look up the EEO-1 reports of various companies from the EEOC.

Now, I’ll go over a few procedures for today’s hearing. The agenda identifies the order of speakers, copies of which are available on the table at the entrance to this room. The order of speakers corresponds to the order in which the requests were received. Each speaker has been allotted five minutes. Speaking times cannot be reserved, traded, yielded to other speakers, or otherwise changed. Speakers, please note your place in the agenda and be prepared to approach the podium to make your statement when your name is called. If no one approaches the podium shortly after your name is announced, your opportunity to speak will be forfeited.

EEO staff will operate a color-coded timer that includes a countdown display showing how much time you have remaining. A yellow light and an audible beep will occur when you have one minute left, and a red light and continuous beep will occur when your time has ended. For any speaker who needs an accommodation in the form of further audible cues, we will give those, and we will announce your remaining time approximately at one minute and when it expires.

To keep the hearing moving forward and to allow time for everyone who has requested to speak, the microphone may be disconnected for speakers who exceed their time. Please respect the time allotments and promptly vacate the podium at the end of your time so that each participant has an equal opportunity to speak. If a speaker addresses matters that are not germane to the purpose of this hearing, the Chair may warn him or her about addressing such irrelevant matters, and if it continues, that speaker may forfeit their time with instructions to leave the podium. To that end, we in particular urge speakers to avoid speaking to the Commission’s determination in a particular charge or otherwise raising confidential information from specific charges of discrimination with which they may be involved, including any charge numbers or the identities of parties involved. This is not the forum to allege fault in any Commission investigation or to advocate for an ongoing charge under investigation.

Any former government employees participating in today’s hearing additionally are reminded to not reveal any non-public government information, particularly information covered by the attorney-client or deliberative process privileges. EEOC’s acceptance of your request to participate in today’s hearing did not waive those privileges or otherwise authorize you to disclose confidential information that you obtained while working at the EEOC, other federal agency, or department.

The general counsel and I will monitor today’s remarks to ensure that privileged information is not publicly disclosed, and we may interrupt speakers who appear to be addressing such matters. For those who are unable to attend in person to give remarks today or those who wish to expound on their oral statements, written statements on the notice of proposed rulemaking will be accepted through Monday, August 24th, 2026. Thank you for your attention. With that, I return the floor to Chair Lucas.

LUCAS: Thank you very much. All right. With that, we’ll proceed to our speakers. I now recognize David Fortney from the Institute for Workplace Equality for his public comment. The floor is yours.
FORTNEY: Thank you, Chair Lucas, and good morning. I want to thank the Chair, the Commissioners, the EEOC staff for convening the hearing and facilitating this opportunity, and also to Ray Windmiller for his very successful efforts in facilitating today.

I’m here on behalf of the Institute for Workplace Equality, and the workplace for the institute is comprised of some of the nation’s largest employers, federal contractors, all of whom are extensive users of EEO-1 data and have extensive experience in filing such data. I personally have also had some experience in being a regulator and appreciate the task and challenge in front of the Commission in assessing these matters.

Briefly, the position of the institute on behalf of its members is that the proposed EEO-1 reform and the stated justifications are not the correct approach. We believe that this proposal would result in the elimination of one of the key data sources that both employers and the EEOC can use and do use to detect and to end illegal DEI and unlawful discrimination. Specifically, the stated fears in the NPRM, and we’ve reviewed those carefully, that regarding the possible misuses of EEO-1 data, we cannot square that with the experience of our members and, I might add, with my personal experience.

Although the NPRM proposes essentially a rescission of data collection, we respectfully would propose that the Commission engage in, instead of eliminating EEO-1, a constructive discussion on how data can be collected, should be collected, the standards on how data are used lawfully, and there’s been a great deal of discussion about that up to this point. Perhaps updating the worker classifications and addressing what information the EEOC might collect that is to be responsive to the agency’s own burden concerns which have been articulated. We would welcome the opportunity to work with the Commission on such an approach on improving EEO-1 reporting.

Let me briefly touch on one or two points, the factual foundation. I note that the NPRM references may -- that there may be use of quotas or information. Presumably after six decades, if the agency had specific instances, it would’ve called those out. I would note we’ve queried our members. I’ll tell you from my personal experience: we have not seen it. I would highlight that the Trump Administration, the first administration -- the Labor Department conducted over 4,000 employer audits, each of which looked at EEO-1 data, and not a single instance found that there was a use of quota approach.

The responsibility to prevent and to address unlawful discrimination is one, of course, that’s the agency’s core mission, and it’s also a mission and an objective that employers share. EEOC currently relies on EEO-1 data to assert pattern and practice cases. Employers typically look at this to assess their own conduct and ensure that it is compliant.

Another consideration, this administration has also looked at the 1964 Civil Rights Act and specifically Title VI, dealing with higher education. We need to call out that the administration’s approach for Title VI reporting, dealing with staff and faculty, is imposing exactly the standards, in fact, more detailed reporting than the current EEO-1 reporting has for non-higher ed employers. Clearly, the administration does not believe that such reporting for higher ed employers is unconstitutional or raises concerns. Indeed, it notes in justifying it that the proposal is necessary to have this data in order to detect potentially unlawful discrimination. We’re aligned, and we would recommend and encourage that the EEOC also align itself, or at a minimum, explain why the EEO1 data would be different.

Finally, if you look at the statute, which, of course, is what we all must look at and be guided, it is mandatory. The word shall appears repeatedly in the statute. Employers shall maintain the records. Employers create the records, and the administration shall determine specifically which records are to be maintained. We would recommend, consistent with the statute, that that same approach be continued and followed but improved.

In closing, respectfully, the data are not the problem. Eliminating data does not eliminate discrimination. We would welcome the opportunity to work on these matters going forward. Thank you.

LUCAS: Thank you. We’ll now recognize the second speaker, Fay Bencosme.
BENCOSME: Good morning, Madam Chair, Commissioners. My name is Fay Bencosme, and I’m here as a concerned citizen and an advocate for a very simple principle, and that is that all Americans are created equal in citizenship and should not be defined by racialized categories created and assigned by their government.

I imagine many people today far more knowledgeable than I about employment discrimination will urge the Commission to retain the requirement that employers collect and report workforce demographic data. My request, however, is much simpler. I ask the Commission to consider what 60 years of routine racialized classification has done, not simply to our employment data, but to the way Americans have come to understand one another.

The question before the Commission is not whether discrimination should be prohibited; it should. Nor is the question whether our civil rights should be vigorously enforced; they should. The question is whether enforcing those rights should require the federal government to routinely classify Americans by race. I submit that it does not.

When the EEOC began collecting workforce demographic data in 1966, America was barely two years removed from the Civil Rights Act. The purpose was understandable, to identify patterns that might reveal discrimination and help enforce the law. But a policy can begin with a legitimate purpose and still produce consequences its creators never intended. So Sixty years later, I believe we must ask a larger question: What does it do to a nation when a government continually asks its citizens to understand themselves and one another as members of racialized groups? Government classifications do not merely describe society. Over time, they help shape it. A box created for statistical purposes becomes an official identity, and eventually categories intended to monitor discrimination become groups around which benefits, burdens, grievances, and claims to remedy are organized, and that has consequences. A disparity can become a reason for suspicion. A category can become a shortcut for assumptions about privilege, disadvantage, ability, or experience. An individual can find himself judged not by anything he has done, but by what is presumed to be true of the category to which he has been assigned; and that is stereotyping, even when done in pursuit of a worthy goal. It comes at the cost of trust that we belong to one another as equal citizens rather than representatives of competing racialized groups. None of this is healthy for civic cohesion.

A diverse republic cannot flourish on perpetual suspicion. Our institutions should be helping Americans transcend these divisions, not continually reinforcing the categories through which we perceive one another. Ending routine racialized reporting does not mean ending the pursuit of fairness. We can and should enforce civil rights for all vigorously.

Equal protection under law does not require perpetual racialized classification of the American workforce. And surely a policy created for one period in our history should not continually continue without our asking toward what end? Another 60 years? Another 100? Into perpetuity? If the destination is equality in the eyes of the law, then at some point we must be willing to loosen our dependence on classifications that divide us. The promise of civil rights was never better racialized classification. It was equal rights for every American.

America cannot classify its way to equality or apportion its way to justice. We can fight discrimination without institutionalizing racialized division. We can enforce equal rights without teaching generations of Americans to see one another through racialized boxes. Therefore, I urge the Commission to begin this transformation by retiring routine racialized reporting and putting persons before categories. Thank you.

LUCAS: Thank you very much. We’ll now move to the third speaker, Ken Marcus from the Brandeis Center.
MARCUS: Chair Lucas and Commissioners, I’m Kenneth L. Marcus, Chair of the Louis D. Brandeis Center. Thank you for the opportunity. Before Chairing the Brandeis Center, earlier I also served as Staff Director of the U.S. Commission on Civil Rights, where we conducted oversight over civil rights agencies, including this one.

We support the Commission’s proposal. The Equal Employment Opportunity Commission should be fighting against discrimination rather than incentivizing employers to get their numbers right in ways that might violate the very laws that the agency was established to enforce. As Chair Lucas correctly observed, the purpose of the nation’s civil rights laws is to guarantee treatment equally for every individual, not to incentivize race or sex conscious decision-making based on aggregate demographic data in the way that this sort of data collection can encourage.

At the same time, the Commission should recognize that the Jewish experience illustrates both the promise and the peril of demographic data collection. History demonstrates that data collection can protect vulnerable communities in some circumstances, while exposing them to extraordinary danger in others. The Commission should therefore avoid viewing either the collection or the elimination of demographic data as an end in itself. The proper objective is vigorous enforcement of Title VII against actual discrimination.

The Jewish people have lived through dangers of both extremes. Throughout history, governments have used population registries, census records, religious rolls, and other demographic information to identify Jewish communities for persecution. The Holocaust provides only the starkest example. So, unlike many protected groups, Jews frequently disappear within existing demographic classifications. Jewish identity encompasses religion, ancestry, ethnicity, and peoplehood, making it difficult to fit within conventional racial and ethnic categories. As a result, antisemitism often goes unrecognized in demographic analyses, even where Jewish employees are experiencing significant discrimination.

Recent years have illustrated this problem with increased frequency. Many employers and institutions have relied heavily on demographic frameworks to guide diversity, equity, and inclusion initiatives. Because Jews are often perceived as part of a majority population or grouped into broad racial categories that fail to capture Jewish identity, Jewish employees have sometimes found themselves excluded from conversations about discrimination despite a documented surge in antisemitic harassment and hostility. Worse, Jews have been stigmatized by stereotypical notions of power and privilege under reductive systems that divide people into oppressor or oppressed roles based on racial or ethnic assumptions. Aggregate demographic data can therefore obscure rather than illuminate the reality of the discrimination which Jewish workers are facing.

The Commission is right to caution against allowing statistical disparities to eclipse individualized protections guaranteed by Title VII. Indeed, one of the most important principles reflected in the NPRM is the observation that the EEOC’s primary responsibility is to investigate actual discrimination through targeted and individualized enforcement. We agree that no demographic report standing alone should establish or disprove discrimination. Employers should not be encouraged to pursue demographic balancing rather than compliance with the law. Our fear is that merely by being required to provide this sort of data to the government, the incentive is clear for institutions to get their numbers right in ways that are inconsistent with federal law.

The Brandeis Center supports the Commission’s effort to ensure that Title VII enforcement remains focused on actual discrimination against individuals. At the same time, we respectfully urge the Commission to make equally clear that the elimination of demographic reporting cannot and should not result in diminished attention to other forms of discrimination, affecting not only Jews, but also other groups. The measure of our civil rights laws is not whether the government counts members of identity groups. It is whether the government protects everyone equally. For Jewish Americans, history demonstrates that neither demographic classification nor demographic invisibility has ensured equal treatment. Only vigilant enforcement of the law can do that. Thank you.

LUCAS: Thank you. Before I proceed to the next speaker, just a reminder to the audience that recording of this meeting in any way, including screenshotting, is not permitted unless you’ve received advance permission about that. Thank you. We’ll now recognize Amalea Smirniotopoulos from the Legal Defense Fund.
SMIRNIOTOPOULOS: Good morning. My name is Amalea Smirniotopoulos, and I’m a senior policy counsel at the Legal Defense Fund, the nation’s oldest racial justice law organization. I am here to testify in opposition to the U.S. Equal Employment Opportunity Commission’s, or EEOC’s, proposed rescission of its workforce demographic data collection requirements.

At a time when so many people are struggling, this proposal will make it harder for people to find a living wage job, get equal pay and advancement opportunities, and be treated with dignity at work. By weakening EEOC enforcement, these changes will harm all workers, but particularly Black workers and other workers of color who continue to face racial discrimination more frequently. We strongly urge the EEOC to withdraw the proposed rule.

Collecting workforce data from employers, what I will call EEO data broadly, is an essential tool in advancing the EEOC’s mission. When Congress passed Title VII of the Civil Rights Act of 1964, it required employers to make and keep records that would allow the EEOC to identify workplace discrimination and empower the agency to request regular reports from employers. The EEOC began requesting this data from large private companies beginning in 1966, shortly after the agency opened its doors.

In the decades since, the agency has used this data to guide its enforcement actions, issue reports, draft guidance, and set its strategic priorities. EEO data continues to play an essential role in identifying workplace discrimination, including and particularly intentional discrimination. EEO data showing an employer discriminated against other people of the same race or sex can shed light on whether an individual person suffered discrimination. This data can also help the agency identify patterns and practices of discrimination that impact many workers. For example, in 2011, the EEOC used EEO data to identify discriminatory hiring patterns that excluded Black and Latino workers at Bass Pro Shops throughout the country. And earlier this year, the EEOC settled a lawsuit alleging a trucking company discriminated against women after EEO data showed the company disfavored hiring women applicants.

Ending EEO data collection does not change employers’ legal obligation to make and keep records or to ensure equal employment opportunities, but it will hamper the EEOC’s ability to identify and address workplace discrimination. The agency’s rationale for rescinding its EEO data collection requirements is contrary to law. The proposed rule makes a confusing, radical, and inaccurate argument that collecting demographic data is unconstitutional. The U.S. Constitution does not require the government to blind itself to the reality that race impacts our lives, where we work, where we live, where we go to school, and whether we can thrive. The agency cannot point to a single example of an employer making unlawful race-based decisions because they are required to report EEO data.

Taken to its end, the EEOC’s argument would prohibit similar kinds of government data collection, including the U.S. Census, weakening the ability of government to serve people in this country. The proposed rule is also inconsistent with other actions by the Trump Administration. While the agency argues EEO data collection is unconstitutional, just last year, as was mentioned previously, the U.S. Department of Education expanded demographic data collection on higher education admissions and has weaponized data to target schools that admit Black and Latino students. This inconsistency shows the EEOC’s arguments are a smokescreen.

Under the leadership of Chair Lucas, the EEOC has ignored its duty to protect Black workers and other workers of color from discrimination. Among other actions, Chair Lucas has actively solicited White men, a group that does not experience discrimination at the same rates as people of color and women based on their race and gender, to file lawsuits claiming so-called DEI discrimination. The EEOC also improved a national enforcement plan that discourages disparate impact discrimination claims and prioritizes, again, DEI-related race and sex discrimination over other forms of discrimination based on race and sex.

EEO data shows the inconvenient truth that Black people and other people of color, women, and other historically marginalized groups continue to face higher rates of discrimination. Hiding EEO data would limit the ability of Congress and the public to hold the EEOC accountable for pursuing its harmful political agenda at the expense of workers. Ending data collection because the agency doesn’t like the reality it shows is the definition of arbitrary and capricious. For these reasons, we ask the EEOC to immediately withdraw the rule.

LUCAS: Thank you. I’ll now recognize Professor Donald Tomaskovic-Devey from the UMASS Amherst Center for Employment Equity.
TOMASKOVIC-DEVEY: Thank you for the opportunity to speak to you this morning. It’s Donald Tomaskovic-Devey, and I’m a social scientist at the University of Massachusetts Amherst, where I co-direct the Center for Employment Equity. So, I come to you as a social scientist. Over the last 25 years, I’ve published two books, dozens of scientifically peer-reviewed articles and policy analyses using the EEO-1, EEO-4 data series, as well as the EEOC’s charge records. I was a member of the recent National Academy of Sciences panel evaluating the utility of the EEO-1 pay data collection.

With others, I organized EEO Data Net, a National Science Foundation-funded collaboration between the EEOC and social scientists designed to increase the utility of social science research for EEOC enforcement. Most recently, I worked with OFCCP and EEOC analyzing that same EEO-1 pay data collection.

For the last 60 years and using the data series that we’re talking about today, the EEOC has been working with social scientists to develop scientifically sound knowledge on the efficacy of EEOC, OFCCP, and civil court enforcement of the law. Also, what works and what does not work in managerial and private sector firms human resource efforts have been based on analyses of these data as well, as well as our ability to evaluate societal progress towards an equal opportunity labor market.

Now, if the U.S. labor market was free of discrimination and segregation outlawed by that ‘64 Civil Rights Act, maybe we wouldn’t need these data series anymore, or we probably would need different data. But the scientific research on this is really clear that the level of discrimination and segregation now is lower than it was in ‘64 but has stalled at pretty high levels. Right? Other parts of that research are also clear. All firms do not have patterns of discrimination. Some firms do. Right?

I’m going to outline a little bit of what we’ve learned. From the EEO-1 and EEO-4 data series, we’ve learned race and gender segregation declined after the Civil Rights Act in both private and public sector workplaces, but that the declines have since stalled. That is, we do not see an increased pattern of integration along race and gender lines. From the EEO-4 and the recent EEO-1 pay data collection, we’ve learned that many private and public sector workplaces have small or no racial or gender earnings gaps at the job level, but just as many do. Right?

From the EEO-1 data that merges with survey reports of firm human resource practices, we have learned that some widespread firm equal opportunity practices are ineffective and may actually be counterproductive. But that others actually do promote equal opportunity in employment and reductions in discrimination. All right? Data is useful in saying what works and what doesn’t work, when it works and when it does not.

From the EEO-1 data series, we have learned that federal contractor affirmative action mandates were very effective in the ‘60s and ‘70s. Now what they seem to do is stable human resource practices, and there’s no evidence in comparing contractors to non-contractors that it actually leads to discrimination against White men. It leads to small adjustments that are narrowly targeted. The same type of finding comes out of research on EEOC’s own enforcement activities, and what happens in courts, in civil courts. Both kinds of studies show that current enforcement is typically narrowly tailored and does not produce long-term patterns of discrimination against White men or other groups.

If the EEOC actually wanted to identify firms where the systematic discrimination against White men was happening, the data series you propose to eliminate would be the place I would look. So, much of what we know about the efficacy of the regulatory enforcement firm human resource practices have been based on collaborations between the EEOC and social scientists and based on these data series that the EEOC proposes to discontinue today. These data are fundamental to our societal understanding of progress toward equal opportunity enshrined in U.S. law and fundamental to our democracy.

I mentioned before I was a member of the National Academy of Sciences panel. I’d strongly endorse their conclusions that the EEO-1 data have utility but should be modernized similar to Mr. Fortney’s point and could be collected at lower cost to employers. The EEOC should do a better job of data collection going forward, not discontinuing. Ending these data series means that EEOC, employers and our society will be flying blind into the future. Thank you very much.

LUCAS: Thank you. Ray, are we still doing the one-minute yellow timer because I’m not seeing that? We just want to double-check that people are getting a warning of their one-minute mark. Thank you. All right, our next speaker is Lauren Corey from the National Women’s Law Center.
COREY: Good morning, and thank you. My name is Lauren Corey, and I’m the senior director of Workplace Equality at the National Women’s Law Center. Since 1972, NWLC has worked to protect and advance the progress of women and their families and core aspects of their lives, and to remove barriers to equal treatment of women in the workplace, particularly those that suppress women’s wages. It is for these reasons and others that we oppose the proposed rule rescinding EEO-1 and the other data collections.

As of last week, new monthly data showed that from the Bureau of Labor Statistics, showed that women accounted for 100 percent of the decline in the labor force in July, meaning that they are now no longer working or looking for work. Since January, over 845,000 women have left the labor force, compared to only 406,000 men. With only half of the year over and nearly 1 million women already leaving the workforce, it is more important than ever that workers have access to good jobs without discrimination.

Unfortunately, workplace discrimination remains widespread. In FY25, the EEOC received over 26,000 charges alleging sex-based discrimination. Women remain severely underrepresented in non-traditional jobs, which are often higher paying than traditional female occupations. This underrepresentation is due in part to discrimination, harassment, and other barriers that prevent women from entering better paying fields.

The EEOC has historically collected and used EEO-1 data to help combat this problem and identify trends, particularly in industries where there are barriers to opportunity. For example, in 2026, the EEOC filed a lawsuit against Central Trucking alleging hiring discrimination against female truck drivers over the course of a decade. According to the EEOC’s public complaint in that case, the company’s EEO-1 report showed the number of female applicants hired as compared to male applicants for the same trucking positions had a statistically significant disparity in the field. This data, along with testimonials of other applicants who were not hired, supported the EEOC’s cause finding and led to an early resolution in that case, which brought monetary and programmatic relief.

There are numerous other examples like this one that show the EEOC working at its best, bringing relief to individual charging parties while moving the needle forward in an industry where data shows that women are significantly underrepresented, with men accounting for roughly 90 to 96 percent of all over-the-road and commercial truck drivers. The ability to direct resources to problems that exist so that the EEOC’s limited resources can have the greatest impact has always been important, but it’s particularly so now that the EEOC is experiencing historically low staffing levels. If EEO-1 is rescinded, there is no substitute tool in the EEOC’s toolbox to address this type of trend information. One-off subpoenas, while critically important, do not and will not provide the same information that we just talked about reflecting the trucking industry as a whole, as one example.

In the absence of any compelling justification, it appears designed to make rooting out and remedying discrimination harder. Over the past year, we’ve seen this agency seek out data in the very ways it now condemns, attack employers for promoting diversity, equity, and inclusion, and suggest that efforts to ensure equal opportunity for all workers inherently discriminates against White men. Unfortunately, these actions follow the radical to-do list laid out in Project 2025. And as I revisited that list to prepare for this hearing, I noted that rescinding EEO-1 data collection is the last directive there that the EEOC has to fulfill. But conceding to the demands of The Heritage Foundation Project 2025 is neither the mission nor the task of the EEOC, our nation’s civil rights agency, born from the civil rights movement. Eliminating data of the demographics of the workforce will make discrimination harder to identify, and it will make it harder to see which workers are being impacted. The real consequences will fall on workers who rely on and trust the EEOC. Thank you for the opportunity to testify today.

LUCAS: Thank you. Our next speaker is Jing Li Yoon of the 80-20 Educational Foundation.
YOON: Good morning, Madam Chair and Honorable Commissioners. My name is Jing Li Yoon. I represent the 80-20 Educational Foundation, which fights for equal opportunity and equal justice for all Asian Americans. We oppose removing the requirement to report EEO-1 data because that information is critical to us monitoring, and thus fighting, the bamboo ceiling above Asian Americans.

As I found out this morning, I’d originally intended to offer a demonstrative, but I found out we’re not actually allowed to do that. So, in our written comments, we had submitted a chart that showed that Asian Americans comprise almost half the professionals of the Magnificent Seven leading American technology companies, but they comprise the lowest percentage of management. That chart was created from EEO-1 data. I think in this case, it was voluntarily submitted by the companies, published by the companies. But that EEO-1 data was crucial to showing that Asian Americans have the lowest chance to rise to management of all groups, despite having the highest percentage of professionals.

This bamboo ceiling harms America’s long-term competitiveness because it threatens America’s supremacy at technology and artificial intelligence. When Asian Americans, year after year, see that they do not have equal opportunity to rise to the top, they may eventually leave for Chinese and European companies.

In our written comments, we also submitted three questions for the EEOC. Would it be possible for the 80-20 Educational Foundation to construct such graphs without the EEO-1 data? Would it be possible for us to monitor the bamboo ceiling in the high-tech industry without the EEO-1 data? And with such strong evidence of the bamboo ceiling, why is it very hard to enforce the EEOC’s rules? I also want to add that the situation here is similar to what Asian Americans faced in college admissions, where we have long faced discrimination in college admissions and we were able to detect that because of systematic data. Many years ago, we worked with the Brandeis Center to submit an amicus brief for the plaintiff in Fisher v. Texas, and we had also worked with SFFA in their case fighting the discrimination of Asian American applicants by Harvard.

One of the strongest pieces of evidence of discrimination against Asian American applicants was that Harvard gave Asian American applicants the lowest personal scores, but they had the highest academic scores. And similarly here, one of the most powerful pieces of evidence for the bamboo ceiling is that Asian Americans have the highest percentage of professionals in the leading technology companies in this country but have the lowest percentage of management.

As some of my friends had said, as some of my fellow witnesses have said, this is a strong piece of evidence for a pattern and practice of discrimination, and we need this data to monitor, and to fight, and then to eventually eliminate the bamboo ceiling. Eliminating the bamboo ceiling will protect America’s long-term interests. Thank you very much.

LUCAS: Thank you. We’ll now move to our eighth witness, which is Marc Bendick, Jr.
BENDICK: Good morning. I’m economist Dr. Marc Bendick, Jr., and along with more than 60 other nationally recognized economists, statisticians, and other scholars, I have signed written comments opposing elimination of the EEO-1 through EEO-6 surveys. Our perspective is that of evidence-based public policy making, citing literally hundreds of pieces of fact-based scholarly research to correct major incorrect and misleading premises on which the proposed rule relies.

Our fundamental point is that these surveys continue to be well-designed, narrowly tailored, efficient, effective, and essential components of the EEOC’s Title VII enforcement. They cannot be eliminated without severely weakening that enforcement and substantially undermining Equal Employment Opportunity. Our written comments document how employment discrimination continues to operate in the American labor market today. The research we cite specifically demonstrates that ongoing need for enforcement of EEO laws in the six distinct components of the labor market covered by the six surveys: private employers, public employers, and so forth. The research also specifically documents that need for the demographic groups and types of data gathered in the survey.

If anything, this evidence calls for improving and expanding the surveys as the EEOC itself has proposed in recent years with respect to wage data and authoritative voices such as the National Academy of Sciences have endorsed. The most obvious role of the surveys in enforcement is in processing the more than 88,000 charges filed with the EEOC each year. Specifically, the surveys enable EEOC attorneys and investigators to assess the charge’s credibility, whether the issues affect only an individual or other workers more broadly, the magnitude of potential damages, and the appropriate scope of discovery.

To fulfill these functions, it is essential to collect data in a consistent format for the entire industry so that the charged employer can be compared to external benchmarks. The proposed rule’s characterization of these surveys as irrelevant to EEOC charge processing is flatly incorrect. Equally, the surveys support EEO enforcement in at least eight ways other than complaint processing. These include informing congressional oversight, shaping EEOC enforcement strategic plans, developing guidance for employers and EEOC staff, steering the EEOC’s systemic enforcement initiatives, empowering state and other enforcement partners, assisting employers self-correction efforts, and informing the general public. Misleadingly, the proposed rule is completely silent on all eight of these roles as if they do not exist.

Lastly, the proposed rule claims to measure reductions in the administrative burdens the surveys impose on employers and the EEOC itself. These figures are fundamentally flawed in that they do not recognize the multiple requirements that, were the surveys abolished, the EEOC, employers, and other parties would still spend time and money to collect the very same data. Absent measuring the administrative burdens of these offsetting activities, the estimates do not provide a correct defensible measure of reductions in administrative burdens. If the Commission considers factual evidence instead of the incorrect, incomplete, and misleading statements in the proposed rule, then it will understand why we researchers urge that this rule be withdrawn. Thank you.

LUCAS: Thank you. We’ll now recognize the ninth speaker, Michael Eastman, for the Center for Workplace Compliance.
EASTMAN: Good morning. My name’s Michael Eastman, and I’m the Senior Vice President of Policy and assistant general counsel at the Center for Workplace Compliance. CWC is the nation’s leading nonprofit association of employers dedicated to helping members comply with employment non-discrimination and other workplace laws and regulations.

My testimony focuses on the EEO-1 report and related recordkeeping requirements. Our members collectively file tens of thousands of EEO-1 reports each year. CWC members have different views on whether the EEO-1 report should be retained or rescinded. Some value the EEO-1 framework because it provides a standardized approach for collecting, maintaining, and reporting workforce demographic information. Others question whether the report’s value justifies the cost and effort. Reasonable people can disagree about that.

But whatever one thinks about the reporting requirement itself, the proposal raises a separate question. What role may demographic information play in helping employers evaluate compliance with non-discrimination laws? We agree with the basic principle underlying the EEOC’s proposal. Employers should not use race, sex, ethnicity, or other protected characteristics to make, influence, incentivize, or predetermine employment decisions even in part. But not all uses of demographic information are the same. Many employers use these data for a different and entirely lawful and prudent purpose: to evaluate whether their employment systems are operating consistently with Title VII and other applicable non-discrimination laws.

Properly used, these analyses never dictate employment decisions nor prove discrimination. Instead, they help identify patterns that warrant closer review. Two examples from our members may help make the point. One large multi-establishment employer reported an issue at one of its manufacturing facilities. As part of a periodic corporate HR and legal review of aggregate workforce data, the employer identified a concern with a well-intentioned employee referral program. The program was designed to help fill jobs efficiently by encouraging employees to refer people they knew. But the data showed that the program was producing a consistently narrow applicant pool and a homogeneous hiring pattern at the facility. No one had designed the program to exclude anyone.

While the data did not prove unlawful discrimination, they gave the employer a reason to look more closely at how referrals were generated, how openings were communicated, and whether the process was limiting access to job opportunities in a way that exposed the organization to systemic hiring discrimination risk under federal and state non-discrimination laws.

Another member identified a different problem through a proactive privileged review of aggregate promotion data. The review tracked how promotion decisions were actually made and revealed an unusual pattern suggesting some managers had misunderstood internal policies and believed race or sex could be considered in promotions. The employer corrected the misunderstanding, retrained decision-makers, and reinforced a basic rule: Promotions must be based on merit, qualification, and business needs, not protected characteristics. These examples reflect what many large employers are trying to do when they use demographic data for compliance purposes. They’re not trying to make employment decisions based on protected characteristics. They’re trying to identify potential concerns early, focus review where it’s needed, and address legal risk before concerns become charges, litigation, or enforcement matters. That matters because large employers cannot observe every employment decision in real time. They rely on policies, training, oversight, and internal controls, but they also need tools to test whether those controls are working. Careful use of statistics to analyze aggregate race, ethnicity, sex, and other demographic data is one of those tools. Used properly, these analyses help employers reinforce lawful merit-based employment systems, not undermine them.

For these reasons, we urge the Commission to make clear that should it rescind the EEO-1 report, that does not by itself prohibit employers from lawfully collecting, maintaining, analyzing, or using demographic information to monitor and manage non-discrimination compliance. That clarity would reduce uncertainty, support consistent compliant practices, and help employers continue to meet their obligations under Title VII and other federal, state, and local laws prohibiting discrimination. Thank you for the opportunity today.

LUCAS: Thank you. We’ll now recognize the 10th speaker, Melvina Ford from the Equal Rights Advocates.
FORD: Thank you, Commissioners. Good morning. My name is Melvina Ford, and I serve as the National Legal Director at Equal Rights Advocates. ERA is a national gender justice organization committed to advancing rights and opportunity for women and girls in school and at work. We also house Equal Pay Today, a network of over 50 organizations across the country advancing wage justice and fighting against pay discrimination.

On behalf of ERA, I urge the EEOC to withdraw the proposed rule at issue and preserve federal EEO data reporting. Workplace discrimination remains a pervasive problem in the United States, especially for working women. More than 40 percent of these women report experiencing discrimination at work, ranging from discrimination in hiring, promotion, and termination to workplace harassment and violence. And the percent is significantly higher for women of color.

Also, EEOC findings reflect the prevalence of this discrimination. Over the past three decades, roughly one-third of all of EEOC filings have involved sex-based charges. In addition, working women are also experiencing a persistent and increasing pay gap, with women earning 76 cents per every dollar earned by men. Research suggests that nearly 40 percent of this pay gap is due to occupational segregation, and the only way to identify how women are segregated and steered into certain lower-paying jobs is with data, the exact kind of data that EEO-1 reporting is designed to collect.

It’s unclear going forward how the EEOC will effectively and fairly target its outreach and enforcement resources without this data. Moreover, state and local fair employment practice agencies also rely on this data to establish their own enforcement priorities and to identify potential discrimination by employers. For example, when an employment discrimination charge is filed in California, the state where ERA is located, the state civil rights department uses EEO-1 data to investigate the employer’s practices and workforce composition, identifying problematic employment trends and practices. This is critical because often a single plaintiff filing a charge at the EEOC has no idea that the discrimination they are experiencing is more widespread than their complaint.

Finally, eliminating long-standing workforce demographic data collection requirements would increase employer confusion and legal risk. EEO-1 data reporting is grounded in Title VII, which requires covered employers to create and maintain records, including demographic data. And regardless of federal requirements, some states require the collection and sharing of this data, and employers may still be required to produce demographic data in response to charges, investigations, or subpoenas. The mission of the EEOC is to enforce federal employment discrimination laws. Since 1966, EEO-1 data collection has supported the EEOC in fulfilling this mission. Rescinding this rule would be a blow to all who believe in equal employment opportunity, making it harder to identify unlawful discrimination. And to be clear, erasing this data will not erase the discrimination. It will just erase the evidence. Accordingly, ERA urges the commission to preserve EEO-1 reporting by withdrawing the proposed rule. Thank you.

LUCAS: Thank you. I’ll now recognize the 11th speaker, Joseph Kohm, III., from Do No Harm.
KOHM: Good morning, Chair Lucas and Commissioners. Thank you for the opportunity to testify this morning. My name is Joseph Kohm. I serve as senior policy director at Do No Harm. We are a nonprofit organization representing physicians, nurses, medical students, and patients committed to the principle that medicine should be driven by evidence and merit, not ideology. We strongly support this rule because federal data collection is never passive. What the government counts, institutions manage, and patients pay for it years down the line.

I’m going to start with a brief story. A very popular study purported to show that Black infants were dying. It was really tragic because no one wants babies to die. The study found better survival rates for Black babies treated by Black doctors, and so the deaths of the other Black babies were blamed on race, and the racial statistics the EEOC collects to track were used to track the supposed solution. But there was a problem. The study was fundamentally flawed. It never accounted for the fact that the sickest newborns go to specialists and that those specialists are more likely to be White. But the EEOC’s reports were used to reimpose these nasty racial preferences on healthcare in the name of fake solutions like this, and it should never happen again.

For 60 years, these reports have produced an annual racial tally of the American workforce. That tally does not sit in a filing cabinet. It gets compared against population shares, and the gap gets a tag. Once an institution has a number describing one of these gaps, it will find a way to close it. In medicine, we’ve seen exactly how that works, like the story I began with. It starts with a claim that patients fare better when treated by a physician of their own race. This is the main argument for racial preferences in medical school admissions and hiring. Do No Harm examines the studies behind this, and they found, surprise, surprise, that the studies do not survive close examination, such as that study on Black infant mortality. But the claim did its work anyway. Accreditors wrote diversity requirements into the standards of governing medical education. Health systems then built residency programs closed to applicants of the wrong race. And every one of these institutions could point to its own headcount as proof that something needed fixing. And this pattern doesn’t vary. An institution measures itself against a demographic benchmark, finds itself short, and then adjusts its people.

Medicine is where that substitution is most unbearable. A patient on an operating table has no interest in the demographic composition of the surgical team, but she has a critical interest in whether it is competent. A seat in a medical school class filled by demographics is a seat not filled by the most capable applicant. And the person who pays for that is not the applicant who was passed over, but a patient years later. These reports do not merely enable this; they demand it. Virtually every employment practice yields some sort of disparate impact on a group, as the Office of Legal Counsel now accepts. No employer holding its own racial headcount can be sure it’s safe. The government hands the employer a requirement, warns the requirement may be used against it, and then expresses surprise when the employer manages its staff to achieve that requirement. Rescinding the requirements for these reports eliminates the pressure and the racial pretext at the same time.

Just some brief notes on the law as I close. Federal racial classifications receive the constitutional standard of strict scrutiny, and the government can’t escape that standard by conscripting private employers to do the classifying for it. As Justice Scalia observed in Ricci v. DeStefano, a government forbidden from discriminating by race is surely also forbidden from requiring third parties to do it. These classifications are the government conscripting private hands to discriminate. They also fail both prongs of strict scrutiny. On the first prong, there is no compelling interest. What justified these reports in 1966 should not be assumed to justify them in 2026. Shelby County v. Holder held that current burdens must be justified by current needs. And Students for Fair Admissions v. Harvard requires that any government use of race have a logical endpoint, and these reports have none.

On the second prong, they are not narrowly tailored. When a discrimination charge is filed, the commission may simply subpoena the relevant records. That alternative exists and is being used today. Everything beyond it is essentially a census, and Congress has never authorized a racial census of the American workforce. So for 60 years, the government has told American employers to line their workers up by race and then count. It was never authorized, never given an endpoint, and never shown to catch much discrimination. Do No Harm therefore urges the Commission to finalize this rule. Thank you.

LUCAS: Thank you. We’re now going to take a 10-minute break. It is currently 11:07, so we’ll return promptly at 11:17. Again, there are restrooms outside, and we will start regardless of whether or not everyone is in their seat, so please plan on coming back at 11:17. Thank you.

(Whereupon, the above-entitled matter went off the record at 11:07 a.m. and resumed at 11:17 a.m.)

LUCAS: Okay, welcome back to the commission hearing. As we’re resuming from a break, I’ll just do another roll call to ensure we still have a quorum. I myself, Andrea Lucas, Chair, am here. Commissioner Kotagal?
KOTAGAL: Present.
LUCAS: Commissioner Panuccio.
PANUCCIO: Present.
LUCAS: Thank you. Now we’ll proceed to our 12th speaker, which is Rachel Morrison from the Ethics and Public Policy Center.
MORRISON: Chair Lucas and Commissioners, thank you for the opportunity to provide testimony. My name is Rachel Morrison. I’m a fellow at the Ethics and Public Policy Center, where I direct EPPC’s Administrative State Accountability Project. I am also a former attorney at the EEOC.

I fully support the proposal to eliminate the EEO data reports for the reasons provided in the proposed rule. It is inconsistent with equal opportunity law, potentially unconstitutional, unnecessary to enforce anti-discrimination laws, and imposes substantial burdens on both employers and the EEOC that are not outweighed by its marginal benefits. I’d like to focus on two main points today.

First, collecting EEO data is unnecessary for the EEOC to fulfill its mission. The EEOC’s mission is to prevent and remedy unlawful employment discrimination and advance equal opportunity for all in the workplace. I remember seeing this mission on the wall every day when I went up the elevator to my office when I was at the EEOC. It’s a mission I support, and I know it’s a mission you support as well. I have been pleased to see that under Chair Lucas’ leadership, the EEOC has renewed its focus on that mission, delivering record-breaking results for workers in America.

The EEOC reported that for fiscal year 2025, it secured an incredible 660 million dollars for 17,680 victims of employment discrimination. This is the third highest total monetary recovery in recent history. I suspect that the vast amount of data in the EEO reports was not relevant to these enforcement efforts, and that even the relevant data was not necessary to achieve these results. From my experience and that of others at the EEOC, the EEO data collected in the reports is frankly not used for EEOC enforcement actions. Instead, what is used is the information, including any demographic information, requested and disclosed during investigations that are tailored to the specific charge of discrimination.

Significantly, and as Chair Lucas emphasized in her statement on the proposed rule, eliminating the EEO reports does not change those tailored enforcement efforts. Instead of spending millions of taxpayer dollars every year to administer the EEO reports, those funds could be redirected to help even more victims of employment discrimination. Despite the claims that you have heard today that EEO data is necessary and important to fighting discrimination in the workplace, this purported need seems to be limited to race and sex. Religion and pregnancy are also protected under Title VII, yet I have not seen an outcry that religion and pregnancy non-discrimination enforcement efforts are undermined because the EEOC does not require employers to report that data. Of course, many bristle at the thought of the federal government collecting data on Jews, Catholics, Muslims, or pregnant women. Indeed, the EEOC has never collected this data across administrations. Yet the EEOC would, I am confident, rigorously dispute any suggestion that its race and sex enforcement efforts are more important than its religion and pregnancy enforcement efforts. The choice not to collect data on religion or pregnancy underscores that the EEOC data is not actually necessary for EEOC to enforce Title VII or fulfill its mission.

This brings me to my second point. The EEO reports undermine EEOC’s mission. EEOC’s mission focuses on unlawful discrimination and equal employment opportunity. The EEO reports focus on neither. The reports are broad brush data collection divorced from any actual charge of discrimination, and the data focuses solely on outcomes, not equal opportunity. Setting aside the many problems with trying to classify employees based on race, collecting demographic data can give a snapshot of what is, but it cannot explain the why. And Title VII's prohibition against discrimination in the workplace, which EEOC enforces, focuses on the why: whether employment decisions were made because of such individual’s race, color, religion, sex, or national origin.

As evidenced by those who believe that the EEO reports are necessary to stop workplace discrimination, the reports have given the false impression that disparities reveal discrimination. If the EEOC is collecting such data, it must be important and relevant to whether employers violate Title VII, right? Why else would the EEOC collect this data? But the reports focus on outcomes and, by implication, disparities at best shifts Title VII's emphasis away from equal opportunity and at worst induces employers to eliminate the perception of discrimination by minimizing any disparities, which requires them to make employment decisions based on race and sex, otherwise known as unlawful discrimination. In short, the EEO reports are antithetical to Title VII and undermine EEOC’s mission of equal employment opportunity. For those reasons, among others, the EEOC should finalize its proposal to rescind the EEO reporting requirements. Thank you.

LUCAS: Thank you. I’ll recognize our 13th speaker, Carmela Glover from the Diversity Action Alliance.
GLOVER: Madam Chair, Commissioners Kotagal and Panuccio, thank you for the opportunity to testify today, and good morning. I’m Carmela Glover. I lead a nonpartisan nonprofit where we benchmark representation across the public relations and corporate communications profession. Our data has represented as many as 20,000 communications employees. We use EEOC collection standards to simplify voluntary reporting and participation for our members, and it makes results comparable over time. We also keep this data public by reporting it in aggregate. It is also anonymized and confidential.

My background is in chemical engineering, so I was trained to find solutions starting with the data trends. Data does not discriminate. It doesn’t assume. It objectively follows the evidence, not perceptions of inequity. The arguments in the proposed rule suggest EEO data has limited lawful value unless connected to an existing charge or complaint. My experience leads to the opposite conclusion. Consistent data is most useful before an allegation. It encourages compliance and accountability and leaves no excuse for shirked responsibility. The data will tell us where to look, or if we should look at all, but alone it is not a definitive conclusion; but it is useless if not preserved. We do not wait for an immigration audit to record and retain I-9 records, or for a wage claim to maintain payroll records, or for a workplace accident and investigation to create safety records. After-the-fact reconstruction is less reliable, less efficient due to backtracking, and results in higher expenses to piece together historical baselines.

Civil rights enforcement should follow the same sound administrative principles. If EEO data could hypothetically be misused for quotas or stereotyping, that should shape how it’s governed, not whether it’s collected. Prohibit the unlawful use of the data. Don’t prohibit the measurement. Prohibit all discrimination. EEO reporting does not decide who receives a job, promotion, wage or benefit. Counting in itself is not discriminating and does not justify or warrant quotas or race- or sex-based actions. It justifies any actions that target the underlying problem of bias or discrimination, an underlying systemic issue or a pattern of discrimination. Keeping quality records is responsible of what we’ve learned based on feedback from an observation with our members. It protects all parties and encourages responsible accountability and compliance.

I would argue that incidents of non-compliance and discrimination is the more likely hypothetical circumstance without the reporting and record keeping requirements. No data, no proof, no safeguard against civil rights violations. The need for this evidence won’t disappear, nor will the cost. It will be painstakingly obtained employer by employer, case by case, through retroactive requests, subpoenas, and litigation. The cost will be deferred, not avoided. Compliance will be fragmented, and cases will be weaker. They may take longer and require more back-end work and expenses for both employers and the now 25 percent smaller EEOC agency staff.

Commissioners, this is not conjecture or my personal opinion. The case law and precedents show that EEO data is an impartial tool that can establish a pattern in one case and dispel it in another. It can prove discrimination against men or women, people of color or non-Hispanic White employees. It works to protect all. Used properly, it does not encourage discrimination against those who are not underrepresented, nor those who are currently in the majority. A section of the NPRM also declares the racial category is imperfect, suggesting the various changes in racial category descriptions over the years are arbitrary, over broad, under inclusive, and incoherent. I agree that they’re imperfect. OMB describes them as a social political construct, not biological definitions, but imperfection calls for remediation and maybe expansion, but not rescission.

As recently as the 2010 census, the race question included the racial category Black, African-American, or Negro. I know this because I was employed by the local Census Bureau at the time. If standards never evolved, language like that could still appear on a form, and Negro is not the term I would use today, nor would have I used in 2010 in a self-identification survey. EEOC should improve its collection rather than eliminate it. The well-researched modernization revisions and path OMB has recommended for implementation through SPD 15 followed extensive testing and public participation and will produce more accurate and useful data in greater detail, allowing the full breadth of American workers to be recognized. The Constitution prohibits unequal treatment, and the collection, void of a replacement of reporting of this data, upholds that. We are happy at the Diversity Action Alliance to partner in improving the process, and we respectfully request the rescission of this rule. Thank you for the opportunity to testify.

LUCAS: Thank you. I now recognize our 14th speaker, Jocelyn Frye from the National Partnership for Women Families.
FRYE: Thank you, Madam Chair, Commissioners Kotagal, and Panuccio. Thank you for the opportunity to testify. My name is Jocelyn Frye. I’m the president of the National Partnership for Women Families. Throughout our 55-year history, our nonpartisan organization has advocated for equal employment opportunity and economic justice for women workers, and indeed all workers. Our work has included, in particular, advancing the critical mission of the EEOC to combat employment discrimination. The National Partnership strongly opposes the proposed rule to rescind requirements for filing EEO-1 demographic data collection reports, including the EEO-1 form. The proposed rescission is harmful, ill-advised, and counterproductive. It would undermine effective enforcement practices, equal employment opportunity for women and other workers, and the agency’s longstanding commitment to root out all forms of discrimination.

For more than 60 years, the EEOC has required employers with at least 100 employees to report workforce demographic data annually using the EEO-1 form. This requirement has proven to be a reliable and powerful enforcement tool used consistently by every administration. Even the current administration has used EEO-1 data to settle cases alleging widespread sex discrimination in hiring, securing millions of dollars for American workers. The arguments put forward to justify the proposed rescission are misleading, devoid of context, and deeply problematic. The proposal attempts to redefine discrimination by mischaracterizing the collection of data by categories such as race and sex as inherently discriminatory and impermissible. But the act of collecting data does not cause discrimination, and refusing to collect data does not make discrimination go away. Rather, the loss of EEO-1 data will reduce visibility into employment practices and make discrimination harder to detect and civil rights laws harder to enforce.

The proposal complains that EEO-1 data unfairly focuses attention on women and workers of color but largely ignores the broader context and realities of our workplaces. It says little about how discrimination against women workers, workers of color, and Black workers in particular led to such laws as Title VII. There is no mention of the EEOC’s own data that show most sex and race discrimination charges are filed by women and people of color. Blaming data because they reveal uncomfortable disparities or tell a story that is different from a preferred narrative does not justify rescinding an effective enforcement tool. The proposal speculates that the mere collection of disaggregated data promotes misuse and illegal action by employers, yet it puts forward no compelling evidence to support this claim.

The proposal overreaches to allege that the gathering of disaggregated data triggers constitutional concerns. But merely collecting and reporting data is not the same as conferring a race or sex-based benefit. Such an overbroad analysis is dangerous and, if adopted, could jeopardize critical federal data collection efforts, not only in employment, but also in other contexts. The proposal disregards clear evidence documenting the value of EEO-1 data. It also minimizes the proposal’s far-reaching effects by arguing that the EEOC would continue to collect data from individual employers facing specific charges. But the absence of EEO-1 data collection would still be burdensome and costly. It would slow down investigations requiring requests for data that would’ve already been on hand. Furthermore, this proposal would curb the agency’s ability to pursue commissioner charges, class actions, and systemic cases, which often start or progress without charges, and which the EEOC itself has noted it is uniquely positioned to bring.

The EEOC has an extraordinary and important mission: to enforce discrimination laws for millions of workers who lack resources to challenge their employers. The agency needs every tool available. I urge the commission to withdraw this proposal and reorient the agency toward advancing its mission to protect all workers from discrimination. Thank you.

LUCAS: Thank you. Now recognize our 15th speaker, Carla Gilbride from the ACLU and EEO leaders.
GILBRIDE: Good morning. My name is Carla Gilbride, and I served as General Counsel of the EEOC from October of 2023 until January 28th of 2025. I’m speaking today on behalf of the American Civil Liberties Union, where I work as Deputy Director of the Disability Rights Program. I’m also speaking on behalf of EEO Leaders, a group of former officials at the EEOC and Department of Labor who served in both Republican and Democratic presidential administrations. Both of these organizations oppose the EEOC’s proposal to stop collecting data about the demographic makeup of the American workforce.

The EEO survey data facilitates the EEOC’s mission in several ways. Upon receiving a charge, it gives the assigned investigator an immediate sense of how widespread the alleged discrimination might be and what follow-up questions to ask the employer, making the investigation more targeted and efficient. The data may spur commissioner charges into practices that employees are too afraid to report to the agency themselves. The data is especially important when investigating claims of widespread hiring discrimination, such as the cases against Bass Pro and Central Transport, the trucking cases that earlier speakers mentioned.

FRYE: Madam Chair, I request a sidebar. Please pause the speaker’s time.
LUCAS: Mr. Windmiller, please pause, and we’ll have a sidebar with general counsel and legal counsel. Thank you.
WINDMILLER: You’re at three minutes.
GILBRIDE: Okay. Perfect.
WINDMILLER: Just hold for a second.
GILBRIDE: Let me know when I can resume.
LUCAS: Yes. Mr. Windmiller, please restart the clock. Ms. Gilbride, go ahead.
GILBRIDE: These data are especially important when investigating claims of widespread hiring discrimination as well as claims of job segregation. And outside of investigations, the data allows the EEOC to focus its limited resources on sectors of the economy where underrepresentation is especially severe, such as, for example, the recent guidance documents that were directed to the tech and construction industries.

The EEO surveys are also helpful to employers who can use the aggregate data published by the commission to determine whether they may be missing out on talent from particular demographic groups compared to their competitors, perhaps due to a gap in recruitment. While employers can and should continue collecting demographic data about their own employees, it’ll be much harder for them to benchmark themselves against their peers without the EEOC’s nationwide and industry-wide data. The NPRM suggests that because these surveys involve race-based classifications, they must survive strict scrutiny. But this misapprehends the Supreme Court’s equal protection jurisprudence, which holds that a race-based classification only triggers heightened scrutiny if the government distributes benefits or burdens based on that classification. Simply gathering information about race and ethnicity in the workplace does not benefit or burden any racial group. Indeed, the EEO surveys are no different from other categories of race-conscious data that the federal government collects to gain a fuller picture of the country and its population, such as the decennial census.

The EEOC also posits that it must stop collecting EEO survey data because simply knowing the demographic makeup of their workforce may tempt employers to make illegal race or sex-based employment decisions. But the NPRM cites no example when any employer has succumbed to that temptation in the 60 years that these surveys have been conducted. To the contrary, it is standard practice for employers to keep the demographic information gathered to comply with reporting requirements separate from personnel files that are used in individual hiring and promotion decisions.

In short, the EEOC has offered nothing beyond speculation to suggest that continuing to conduct this data will lead to discrimination. Conversely, no longer conducting it will hinder the commission’s mission of protecting employees and preventing and remedying workforce discrimination because it is harder to prevent and remedy what it is harder to measure. Unfortunately, the proposal to stop collecting this data coincides with other trends that are creating new risks of employment discrimination while making it harder to identify and prove.

Employers are increasingly relying on technology to automate aspects of the hiring process, replacing human decision-making with decisions made by algorithms whose workings the employers themselves often do not understand. These developments call for the EEOC to use all the tools at its disposal to keep up with advances in technology. But instead of adapting its existing tools to meet these new challenges, the EEOC is proposing to throw away one of those tools altogether based on a vague, unproven assertion that someone somewhere might misuse it. This is an ill-considered proposal, and we urge the commission to withdraw the proposed rule. Thank you for the opportunity to testify.

LUCAS: Thank you. I’ll now recognize our 16th speaker, Megan Kissell from the American Association of University Women.
KISSELL: Good morning, and thank you for the opportunity to testify. My name’s Megan Kissell. I’m the Senior Director of Policy and Member Advocacy at AAUW, the American Association of University Women. For more than 140 years, AAUW’s worked to remove barriers that prevent women from being judged on their merits in both education and the workforce. So we’re not here asking for special treatment. We’re here because we publish the research, including our annual pay gap report, and we know what happens when the data disappears. Accountability disappears with it.

EEO data was not designed to advance any ideology. It was designed to make equal opportunity measurable and to help this commission do its job. The National Academies of Sciences, in a report commissioned by this agency, found that EEO-1 data is the only federal data source that captures pay and workforce demographics at the employer level. It is what allows investigators to compare one employer’s workforce composition to peer companies in the same industry. It’s what allows the commission to focus its limited resources on the industries and employers where the data says that discrimination is most likely occurring, rather than waiting for individual workers, many who may not even know they’re being discriminated against, to come forward. I want to speak directly to the principle of merit-based employment because we share that goal. If employers want to hire the best candidates, they need to know whether their screening process is doing exactly that, and recent research suggests that for many employers, it isn’t. This is exactly what happens when we don’t have data.

In a May 2026 study from Stanford, Chapman, and Northeastern Universities, it wasn’t about EEO-1 reporting, but it illustrates precisely why disaggregated employer-level data matters. Researchers analyzed 4 million job applications across 156 employers. They found that one in four applications submitted by Black candidates went to positions where the AI screening system produced outcomes meeting the federal definition of discrimination, screening out candidates before a human ever reviewed their files. That discrimination was completely invisible in the aggregate numbers. It only appeared when researchers looked position by position, employer by employer.

So, if you eliminate the reporting requirement on EEO data, you eliminate the ability to see whether merit is actually what’s driving decisions or whether something else got there first. AAUW’s own pay gap analysis draws on the Census Bureau data, national survey data to document the size of pay gap. That data tells us that women working full-time earn only 81 cents for the dollar for every dollar a man earns. For Black women working full-time, that goes down to 65 cents; for Latinas, 58 cents. National survey data tells us that these gaps exist. EEO data tells us exactly where they are happening and which employers are responsible. These are not redundant data sources. They work together. Remove one, and you have a map with no addresses. This reporting requirement has existed for nearly 60 years because Congress understood something that has not changed. You cannot enforce civil rights law without knowing who is being hired, promoted, and how much they are paid. You cannot claim a process is merit-based if you have no way to verify it. AAUW urges this commission to withdraw this proposal. Equal opportunity must remain measurable. Thank you for your time.

LUCAS: Thank you. We’ll now proceed to the 17th speaker, Maya Raghu from the Lawyers Committee for Civil Rights Under Law.
RAGHU: Thank you, Madam Chair and Commissioners. Good morning. I’m Maya Raghu, and I’m here on behalf of the Lawyers Committee for Civil Rights Under Law. The Lawyers Committee is a nonpartisan, nonprofit civil rights organization founded in 1963 to secure equal justice for all through the rule of law by targeting the inequities confronting Black Americans and other people of color.

The Lawyers Committee opposes the EEOC’s proposal to rescind longstanding regulations requiring covered entities to collect and report workplace demographic data, and we urge the commission to withdraw this proposal. This proposal undermines the EEOC’s mission of civil rights enforcement, ignores the ongoing barriers to employment opportunity facing Black workers and other workers of color, and discourages employers from conducting internal analyses to promote compliance. The EEO data collections grounded in Title VII are unique government datasets that help illuminate who has access to equal employment opportunity and who does not.

For decades, they have provided a standardized picture of employment by race, ethnicity, sex, and job category, and in the case of the EEO-4, pay bands across workplaces, industry, and geography. Black workers and other workers of color face persistent occupational segregation and unequal access to employment opportunities compared to their White counterparts, even after accounting for differences in education, experience, and geography. Race discrimination remains one of the leading categories of EEOC charges, and research demonstrates that workers of color face discrimination from hiring through promotion and advancement. The EEOC’s proposal would eliminate a critical tool that helps identify disparities for further inquiry.

The EEOC’s proffered legal arguments do not provide a reasoned basis for eliminating these longstanding requirements. The suggestion that collecting demographic information constitutes an impermissible racial classification or that data collection may cause employers to take unlawful race-based actions is speculative and unsupported by the law or actual evidence. And as others have noted, the EEOC’s position is also inconsistent with that of other federal agencies, including the Department of Education, which seeks to collect demographic data about students, and recent settlement agreements requiring universities to produce student and applicant demographic data to the government. This inconsistency reveals that selective enforcement and objections to demographic data are not guided by legal principle or evidence, but rather to advance a particular agenda.

EEO data supports enforcement by placing individual charges in context and helping identify broader patterns of disparity for closer examination. As others have noted, the EEOC has used EEO-1 data during investigations of discriminatory hiring practices in the retail and trucking industries and produced research about the systematic underrepresentation of women and people of color in sectors like construction. Eliminating these data collections would further shift the burden onto individual workers to expose discrimination. Workers often cannot access information indicating broader workplace disparities. Without public aggregated EEO data and EEOC analyses, workers and their advocates may have to obtain similar information through costly and time-consuming litigation.

The EEO data help the EEOC determine where enforcement priorities, education, and outreach can have the greatest impact, which is especially important when the agency is operating with historically low staffing levels and limited resources. The EEO data collections, as has been noted, are also a valuable diagnostic tool for responsible employers, helping them evaluate whether their employment practices promote equal opportunity and to identify problems before they result in litigation or the loss of talent. But eliminating a longstanding regulatory acquirement will not eliminate employers record-keeping and anti-discrimination obligations under federal laws.

Instead, the EEOC’s proposal risks creating uncertainty about actions employers are permitted to take to support compliance and then expose them to liability. This proposal is among the most significant steps this leadership has taken to weaken civil rights enforcement, coupled with the refusal to pursue disparate impact cases. The harm to Black workers from the agency’s aggregated actions is substantial. Eliminating EEO data collection does not eliminate inequality. It just makes it easier to ignore. For these reasons, we urge the EEOC to preserve the EEO data collections and withdraw its proposal. Thank you.

LUCAS: Thank you. We’ll now recognize the 18th speaker, Greg Scott from the 1792 Exchange.
SCOTT: Good morning, Chair Lucas, Commissioners, and staff. My name is Greg Scott. I’m Executive Vice President at 1792 Exchange. 1792 Exchange is America’s leading provider of actionable data on corporate bias. Thanks for the opportunity to testify strongly in support of the Commission’s proposed rescission of EEO-1 and related demographic reporting requirements.

The Commission’s proposal is a long overdue course correction. It reorients the agency to the actual text and original intent of Title VII of the Civil Rights Act of 1964. Title VII forbids discrimination against any individual on the basis of race, color, religion, sex, or national origin. It does not authorize the government to compel every covered employer, regardless of whether a single charge of discrimination has been filed, to annually sort its workforce into race and sex categories and submit those tallies to Washington. However, that regime has been in place for decades. In practice, every American business has been treated as a potential suspect, and every employee has been reduced to an overly simplified data point in a group identity spreadsheet.

The proposed rescission would end this unneeded, expensive surveillance operation. Employees will continue to be covered by all existing legal workplace protections. Employers will remain fully subject to the law and to investigation and litigation whenever credible charges of discrimination arise. And the Commission will retain complete authority to request tailored records relevant to specific cases. What disappears is the costly, automatic collection of demographic data disconnected from any allegation of wrongdoing. That change would free businesses from the pressure of perfecting numbers for federal forms so they can return to their core mission, which is producing goods and services, innovating and competing.

What does not change is the fundamental expectation that all employees be treated lawfully and fairly. This outcome is good for business and good for workers. Equal opportunity means hiring, promoting, compensating, and retaining people on the basis of merit, skill, experience, and performance. No serious person opposes diverse teams that arise naturally from a wide talent pool. What must end is the pressure to engineer outcomes by race and sex. Treating individuals as interchangeable members of preferred or disfavored groups is the opposite of the color blind principle that civil rights law was meant to enshrine. The Supreme Court has repeatedly made clear that racial classifications by government are deeply suspect. Compelling private employers to maintain and report those same classifications year after year stands in direct opposition to that principle. Opponents of this change have argued that ending these reporting requirements will somehow cover up discrimination. That’s not true. Discrimination doesn’t magically disappear because a spreadsheet is filed, and a spreadsheet alone does not provide a full or reliable picture of whether discrimination is occurring.

When workplace discrimination does take place, it is discovered and remedied through individual complaints, investigations, and when necessary, the courts. Aggregate statistics have never been a reliable proxy for individualized wrongdoing. As we have seen, they have often been misused as a tool to pressure employers into preferential treatment rather than equal treatment. The commission’s recent statements clarifying that employers of every classification can and should report discrimination when they experience it is not a betrayal of the agency’s mission as some have charged. It is a clear return to that mission. Our nation’s laws protect every person and every employee, not just those in a currently favored category. Discrimination against anyone, to be clear, in the workplace is wrong, and it must be eradicated. America’s workplaces function best when managers are free to evaluate talent rather than check boxes. Employees succeed when they are judged not by demographic identity, but by what they can contribute to the organization.

The EEOC’s proposed rule aligns the agency with that reality. It would reduce unnecessary regulatory burdens, reaffirm equal opportunity for all, and allow businesses to get back to business and continue the work of creating value. This is a long overdue recovery of the EEOC’s core mission, and on behalf of 1792 Exchange, I urge the commission to finalize this rule. Thank you for your time.

LUCAS: Thank you. We’ll now recognize our 19th speaker, Rachel Li, with Stand with Asian Americans.
LI: Chair Lucas, Commissioner Kotagal, Commissioner Panuccio, thank you for the opportunity to testify. My name is Rachel Li. I am the President and General Counsel of Stand with Asian Americans, the nation’s first civil rights organization focused on anti-Asian workplace discrimination. Chair Lucas, in April, when asked why this Commission collects information about the people it protects, you answered, There’s no other way to protect victims of harassment or discrimination unless you collect information on them. That is our position in a sentence. We oppose a proposed rule rescinding EEO-1 and related reporting requirements, and I would like to raise three points for the commission’s consideration today.

First, what this data means for Asian American workers. The EEO-1 report is the only federal instrument that exposes what we call the bamboo ceiling. Asian Americans are often well represented in the professionals and technicians job categories yet conspicuously absent from officials and managers, according to the Commission’s own report and other independent analyses. Simply put, Asian American workers are the least likely group to be promoted into management. A total headcount does not show that gap. It appears only when the counts are broken out by job category, which no other federal report does. So, while the Commission concludes this data is not narrowly tailored, for this community it is the most precisely tailored instrument the Commission has. Further, the model minority myth that Asian Americans face no employment barriers persists because it is rarely tested against evidence. Data collection does not create that stereotype. It is the only thing capable of rebutting it, and counting does not create that stereotype. It disproves it. We commend the Commissioner’s 2024 edition of the Middle Eastern and North African category, and we should do more.

The current Asian category collapses more than 20 national origin groups with different labor market outcomes. Hmong, Cambodian, Bangladeshi, and Burmese workers have employment and wage profiles that differ significantly from the aggregate. The reform we need is better, more disaggregated data, not none.

Second, the proposed rule offers targeted requests during an investigation as a substitute. However, a targeted request presupposes a target. Someone has to complain first. Asian workers file EEOC charges at rates well below their share of the workforce. That is not because the discrimination is absent. Roughly one in five Asian adults report experiencing racial discrimination in workplaces, yet they file charges at very low rates. There are many reasons for such gap, including fear of retaliation, concern for reputation and job mobility, cultural reticence, immigration status, and language barriers. Nationally, the overwhelming majority of workers who experience discrimination never file a formal charge. As an organization that provides legal support for Asian Americans facing workplace discrimination, we see this every day. A system that relies only on individual charges makes underreporting communities statistically invisible. Only EEO-1 data gathered before any dispute gives the commission, employers, and the workers a baseline against which conduct can be recognized as discriminatory that no single complainant can show.

Third, the proposed rule contains legal and procedural inconsistencies. Title VII protects individuals regardless of the group they belong to. That principle applies in every direction. Every charging party needs comparative evidence, including members of the majority group, following the Supreme court’s decision in Ames. EEO-1 data will provide the charging party with evidence to substantiate a claim rather than inference based on the colleague’s appearance and will provide the Commission and employers readily available and reliable information with which to investigate.

In addition to this Commission treating these reports as essential to enforcement for the past 60 years, the proposed rescission conflicts with existing legal mandates and procedures, such as the congressional mandate, the Uniform Guidelines on Employee Selection Procedures, and OIRS’ recent approval of this collection through 2029. The 30-day comment period is also inconsistent with the 60 days contemplated in the commission’s regulatory agenda.

In closing, we respectfully ask that the Commission first, withdraw the proposed rule; second, extend the comment period to 60 days; third, disaggregate the data for Asian and other overly broad categories; fourth, publish guidance affirming that voluntary employer self-audits remain lawful; and fifth, preserve the Pregnant Workers Fairness Act related revisions proposed in 2024. The EEO-1 report is not a burden. It is a promise that this nation’s civil rights laws will be enforced with evidence, not guesswork. We ask you to keep that promise. Thank you.

LUCAS: Thank you. I’ll now recognize our 20th speaker, Meredith Benton from Whistle Stop Capital.
BENTON: Hello, I’m Meredith Benton, founder of Whistle Stop Capital. We’re a research and analytics firm focused on latent, emerging, and overlooked risks in the marketplace. Since 2019, Whistle Stop has also managed the workforce culture program for As You Sow, a nonprofit organization that promotes corporate responsibility. This has included conversations with over 100 public companies on how they measure, manage, and disclose workforce diversity data, benchmarking of diversity data disclosure, and examining how standardized workforce diversity reporting adds value to companies and to their investors.

Given this, we have a strong thesis that federal-mandated diversity reporting requirements are necessary to support the ongoing success of the American workplace. Here’s why, Whistle Stop Capital led the research for As You Sow’s Capturing the Diversity Benefit report released this past July. This study reviewed EEO-1 filings from 2016 to 2024, matching financial performance to 1,482 publicly traded companies. The regression analysis showed that more diverse management teams were positively associated with key financial performance outcomes, such as income after tax, revenue growth, return on invested capital, and longer term share price performance. The relationship was particularly strong for large cap companies. Investors have long intuited the importance of this data, having for years requested the disclosure of EEO-1 forms from companies as a part of efforts to understand the human capital management practices of potential investments. These investors represent literally trillions of assets under management. These results identify associations and do not establish causation. But because of their consistency over time and across companies, EEO-1 forms allowed us to identify the importance of workforce diversity data within the mosaic of indicators that guide how investors allocate their capital to U.S. employers.

I also note that collecting demographic information is not the same as discriminatory treatment. Completing an EEO-1 report does not require hiring, firing, promoting, or otherwise treating any worker differently. It allows for insights into how a workplace is run and the experience of all employees. A number of the executives we have spoken with have told us that they and their boards use their employees voluntarily provided EEO-1 data to compare against industry and regional employers and to monitor their own workforce culture to identify unexpected anomalies.

Our research also indicates that voluntary corporate disclosure cannot replace mandatory standardized reporting. Of the 1,090 companies in our dataset with management level EEO-1 information for 2016 through 2020, 637 companies appeared only through a Department of Labor Freedom of Information Act release and never voluntarily published their EEO-1 data. These companies averaged 19.3 percent diverse management representation compared with 23.8 percent among voluntary reporters. We are therefore concerned that eliminating mandatory reporting may produce significant selection bias, leaving investors, researchers, and the Commission itself with information disproportionately supplied only by the companies that are comfortable sharing it.

Company sustainability reports are not substitute for EEO-1. Definitions, reporting periods, and demographic groupings vary across companies, and disclosure is very selective. Without the EEO-1, collecting essential workplace data becomes costly, uncertain, and misleading. The Commission’s cost analysis does not adequately account for what disappears if the collection of this data ends: the cost of attempting to reconstruct comparable information, the loss of historical continuity, and the diminished ability of researchers, employers, investors, and the Commission itself to identify outliers and benchmark performance. We urge the Commission to withdraw this proposal and instead look to improve and modernize the data collection and reporting process. Thank you.

LUCAS: Thank you. Now I recognize our 21st speaker, Ashley Westby from the National Employment Lawyers Association.
WESTBY: Good afternoon, Chair Lucas, Commissioner Panuccio, and Commissioner Kotagal. My name is Ashley Westby, and I’m the Program Director for the National Employment Lawyers Association. I’m grateful for the opportunity to testify today. NELA is the largest professional membership organization in the country comprised of lawyers who represent employees in labor, employment, wage and hour, and civil rights disputes. A substantial number of NELA members clients raise discrimination claims to which EEO-1 and other reports provide relevant evidence.

NELA strongly opposes the proposed change eliminating the requirement to complete and file EEO-1 and other EEO reports. Elimination of EEO reporting will undermine the work of the EEOC and make obtaining relevant evidence harder for workers pursuing discrimination claims. Additionally, the justifications set forth in the notice of proposed rulemaking do not stand up to scrutiny. EEO-1 data is vital to workers, employers, and the work of the Commission. If EEO-1 reporting is eliminated, such data will still be sought by the EEOC and by plaintiffs in discovery just in a more onerous manner.

Absent EEO-1 reporting, there will be a lack of standardization in where and how information is stored that will end up causing everyone to spend more resources on obtaining or reviewing data and fighting over what the employer has to produce. Thus, whether it’s the EEOC for an investigation, a plaintiff in discovery, or an employer responding to demands, and even courts who prefer not to spend time resolving discovery disputes, eliminating the standardization that EEO-1 reporting brings will impose real costs on all stakeholders. Ultimately, it’ll be workers and enforcement of EEO laws that suffer.

EEO-1 data is regularly used by the commission in determining how to allocate its limited resources and support its cases, and by workers pursuing evidence in support of their discrimination claims. Just last year, in EEOC v. Vallarta Foods, the Court’s ruling stated that the investigation did not arise from a report of alleged discrimination by an employee or job applicant. Instead, as detailed below, it was a Commission-led investigation, the impetus for which was an examination of the respondent’s own data produced as part of their regulatory obligations under EEO-1 reporting. That reporting permitted the EEOC to identify a case in which non-Hispanic applicants were being harmed by discrimination. Not all workers, especially job applicants who are never hired, have enough information to bring a charge of discrimination to the EEOC. But the EEOC’s own analysis of EEO1 reports can permit it to identify evidence of discrimination, which requires an EEOC investigation. Standardized data collection also reduces burdens on employers. Maintaining a standard format for demographic data retention, as required by Title VII, and reporting will be less burdensome for employers than addressing ad hoc requests.

Most importantly, EEOC data is important to workers. Plaintiffs pursuing disparate treatment claims routinely obtain EEO discovery and EEO-1 reports in their discovery. This will be even more important as workers who previously could have relied upon the EEOC to investigate disparate impact claims will be impacted by the current administration’s decree to eliminate disparate impact liability in civil rights enforcement. EEO-1 reports play a number of vital roles in employment litigation, including being relied upon in class certification, summary judgment, and for the merits of litigation. Courts have admitted EEO-1 reports as evidence relied upon by workers opposing summary judgment and cited to EEO-1 reports as evidence in support of rulings on the merits of discrimination claims.

Further, the provided rationales behind the proposed rescission do not stand up to scrutiny. Recording demographic data is not unlawful, and the law and EEOC will continue to require classification with or without reporting. When courts have directly confronted claims that merely having a record of an employee’s race or ethnicity is a violation, the contention has been soundly rejected, which is not surprising. Simply stating a claim under Title VII or under the Equal Protection Clause involves identifying one’s own race or other relevant characteristic, as well as the race or other relevant characteristic of the individuals alleged to have received more favorable treatment. This rationale alone shows that the EEOC is making a mockery of equal protection and articulating a novel interpretation in which to present evidence in support of a claimed violation is itself a violation of that clause simply because it involves classification.

Reporting data also does not encourage discrimination or stereotyping. The rationale given in the proposed rule that reporting demographic data will encourage discrimination against employees who are not considered minorities is purely speculative. The EEOC has current EEO-1 reports. If there were evidence in such reports of discrimination against non-minorities in that data, presumably the EEOC would pursue such discrimination with charges and litigation.

Given the tremendous value that the EEOC, workers, and courts have found from EEO-1 data and that none of the cases cited by the EEOC in support of elimination of the demographic classification, NELF strongly urges the EEOC to withdraw the proposed rule. Thank you for your time.

LUCAS: Thank you. We’ll now recognize the final speaker, Jack Brown, from the Pacific Legal Foundation.
BROWN: Thank you, Madam Chair and Commissioners Kotagal and Panuccio, for the opportunity to be here today. My name is Jack Brown, and I’m an attorney at Pacific Legal Foundation. PLF is a nonprofit public interest law firm that has litigated constitutional challenges to racial classifications for more than 50 years. Our testimony will explain why the EEO reporting regime is fundamentally incompatible with the Constitution’s commitment to equal treatment and individual liberty. Consequently, we support the Commission’s proposal to rescind the reporting requirements.

The reporting regime violates the Equal Protection Clause of the 14th Amendment by institutionalizing racial classifications. It requires employers to classify every employee by race using racial categories that our Supreme Court in Students for Fair Admissions recognized as arbitrary, overbroad, and lacking any coherent limiting principle. The Supreme Court has repeatedly explained that race may never operate as a stereotype or proxy for individual identity. This, however, is what the reporting regime requires.

Every year, millions of Americans are assigned to government-defined racial categories by their employers as a routine administrative exercise. These classifications rest on stereotypes. They often agglomerate many people of a wide variety of ethnic backgrounds into one category with little rhyme or reason. Moreover, they require employers to sort employees who do not wish to self-identify with one of those categories to using observer identification, meaning visual observation, to complete the mandatory data and comply with the reporting requirement. This is at odds with the Equal Protection Clause.

Our Supreme Court has recognized the core purpose of equal protection is to eliminate race as a governmental criterion. A federal reporting regime that indefinitely requires employers to classify their employees by race moves America away from that constitutional objective, not towards it. It is odious to the citizens of a country founded on the idea that we are all created equal by threatening to stigmatize them based on their membership in a racial group.

Classifying individuals into these artificial categories facilitates stereotyping, particularly given that employers must sort individuals into these categories via visual identification where the employee declines to self-identify. That stereotyping undermines the core purpose of the Equal Protection Clause and is unconstitutional. By facilitating sorting into racial sorting in this manner, the government encourages private parties to engage in discrimination and stereotyping that it itself is forbidden from doing, as Justice Scalia admonished in his concurrence in Ricci v. DeStefano. This reliance on racial categories should be abandoned in light of the Supreme Court’s admonition that they are arbitrary and perpetuate stereotypes. The EEO-1 requirement also violates the 1st Amendment’s prohibition on compelled speech. As the Supreme Court has explained, freedom of speech necessarily encompasses both the right of both what to say and what not to say. Compelled statements of fact receive 1st Amendment scrutiny as the Supreme Court recognized in NIFLA v. Becerra. A government-mandated declaration about another person’s race is not a neutral or objective fact. It necessarily reflects and reinforces the government’s chosen racial taxonomy. The government cannot require private parties to adopt, endorse, or communicate its racial classifications, particularly over the objection of the very individuals being classified.

The reporting regime requires employers to report what the race of their employees is. Employers are forced to classify them. Where workers refuse to self-identify, employers are required to visually inspect them and report their judgment about what racial class the worker falls within to the EEOC. Not only does that, as discussed previously, facilitate racial stereotyping, but it also forces employees to classify themselves or face classification, and it forces the employer to speak on the arbitrary racial category to which they believe their employee belongs. Through the EEO-1 requirement, the EEOC thus compels speech on the subject of race, a compulsion that is subject to strict scrutiny. It forces employers who would rather not disclose to the government their best guess of the race of their workers to do just that, even if they don’t wish to or disagree with the very concept of sorting their employees into a racial group, and it thus implicates protected speech.

Eliminating this arbitrary classification scheme is necessary to comply with the Constitution and is long overdue. Requiring employers to submit data on these arbitrary categories en masse is not necessary to enforce anti-discrimination laws, and the Commission can and should use less restrictive means to achieve that end. Thank you.

LUCAS: Thank you. With that, we will adjourn the hearing. Thank you so much for your participation, we appreciate everyone coming out today. Have a nice day!

(Whereupon, the above-entitled matter went off the record at 12:17 p.m.)

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