Confused About the EEO-1?

By Lehr Middlebrooks Vreeland & Thompson, P.C.

March 27, 2019

This article was prepared by JW Furman, EEO ConsultantInvestigator, Mediator and Arbitrator for the law firm of Lehr Middlebrooks Vreeland & Thompson, P.C. Prior to working with the firm, Ms. Furman was a Mediator and Investigator for 17 years with the Birmingham District Office of the U.S. Equal Employment Opportunity Commission (EEOC). Ms. Furman has also served as an Arbitrator and Hearing Officer in labor and employment matters.
 

It’s OK to admit it if you are. Everyone who is required to file this report is wondering what in the world is going on.

Even though the online portal for filing 2018’s EEO-1 report is already open and accepting submissions, the reporting requirements could change. This is what we know so far, including some history of this report.

1966 – EEOC began requiring employers with 100 or more employees (and certain government contractors and subcontractors with 50 or more employees) to file an EEO-1 form annually. The form reported numbers of employees by job category, race, sex and ethnicity.

2016 – EEOC announced its expansion of the report to include pay data, effective with the March 2018 submission. The new component would report numbers of full-time and part-time employees by demographic and job categories in each of 12 pay bands, along with aggregate hours worked by employees in each pay band.

August 2017 – Office of Management and Budget, who previously approved the addition of the pay data component to the EEO-1, stayed its prior approval, claiming collection of the information would be “unnecessarily burdensome” and “lack practical utility.”

November 2017 – A lawsuit was filed against OMB in the U.S. District Court for the District of Columbia after it failed to respond to a Freedom of Information Act request seeking documents explaining OMB’s decision to halt EEOC’s collection of pay data after previously approving it.

2018 – Nothing happened that affected employers’ responsibilities regarding the EEO-1. The lawsuit was proceeding but no rulings were made. EEOC offered no new policies or amendments. Remember, EEOC was losing Commissioners without Congressional approval of nominated replacements and it lost its General Counsel. EEOC headquarters personnel expected the new administration to cancel the pay data requirement or at least create a less burdensome system for some wage comparison information.

February 1, 2019 – EEOC announced that, because of the government shutdown, its online portal for EEO-1 reports would not open until early March and would accept submissions through May 31, 2019.

March 4, 2019 – U.S. District Court reinstated the EEO-1 pay data reporting (aka Component 2) requirement effective immediately.

March 18, 2019 – EEOC announced it “ ... is opening its EEO-1 online portal to receive 2018 EEO-1 Component 1 data.” (emphasis in original). Component 1 data is the original EEO-1 form for demographic workforce information only – no pay data. Plaintiffs in the above lawsuit then asserted to the court that EEOC’s statement was not compliant with the March 4 order.

March 19, 2019 – The court gave EEOC until April 3 to detail how and when it will implement the March 4 order.

As of March 26, 2019, EEOC has not appealed or stated an intent to appeal the March 4 order reinstating Component 2 reporting or requested an extension of time to respond. Its website still says, “The EEOC is working diligently on next steps in the wake of the court’s order .... The EEOC will provide further information as soon as possible.”

If you are required to file an EEO-1 and have not already done so, I suggest you hold off at least a couple more weeks to see what the EEOC and OMB propose on April 3 and to see if the judge or the opposing parties in the lawsuit have any immediate reaction. At the moment, employers simply cannot comply with the court order to supply Component 2 pay data as the EEOC’s portal is only accepting Component 1. If you have not compiled 2018 pay data yet, I suggest you lay the groundwork to do so within a short period of time. This judge appears intent on pay data being gathered this year.