by JPeters | March 29, 2024 1:58 pm
EEOC’s Data Harvesting Begins on April 30! EEO-1 Reports are due on June 4
As most private employers already know, when you have at least 100 employees — or are a federal contractor with at least 50 employees — you must submit some fundamental demographic data about your workforce to the government each year.
Why? Title VII of the Civil Rights Act [1]of 1964 requires employers to keep records about the composition of their workforce and be able to produce these records whenever the Equal Employment Opportunity Commission[2] (EEOC) — or any other government agency — wants to see them. The EEOC uses this data when investigating possible unlawful employment practices and developing and publishing a range of reports on the demographic characteristics of the nation’s workforce. All published information is based on data in aggregate. The confidentiality of each employer and employee is protected.
In 1966, the obligation to share workforce data became further developed in the form of the EEO-1 Report[3], which is the document covered employers annually are required to file to classify their employees using EEOC’s ten categories and by sex, race, ethnicity, and race.
If you are a covered employer, the window for filing your online 2023 EEO-1 Report[4] opens on April 30, 2024, and closes on June 4, 2024. The online Message Center — a “Help Desk” for filers — will also open on April 30 to answer questions. The EEOC says they’ll post the 2023 EEO-1 Component 1 Instruction Booklet and the 2023 Data File Upload Specifications by March 19.
First Time Filers
If you are filing your EEO-1 Report for the first time, you’ll need to create an account through the EEOC’s data collection website[5] before filing. To complete the report, the user will need the following:
• EEOC Company ID and PIN (supplied by the EEOC when you create your account)
• Company EIN and NAICS code
• Company DUNS Number (if the company is a federal contractor)
• Address(es) Single establishments submit only one EEO-1 Report; a company with multiple establishments must submit a separate report for each location.
• A count of all full-time and part-time employees during the specified pay period. Remote employees are linked to the facility where they report or to the facility where their manager reports. Managers who don’t report to a location should be included in
the headquarters report. The pay period selected should represent the employer’s workforce throughout the year.
• Job categories for all employees. There are ten major EEO job categories: Executive/Senior Level Officials and Managers; First/Mid-Level Officials and Managers; Professionals; Technicians; Sales Workers; Administrative Support Workers; Craft Workers; Operatives; Laborers and Helpers; and Service Workers.
• Gender of each employee. The EEOC’s data collection tools currently provide only binary options (i.e., male or female) for reporting employee counts by sex, job category, and race or ethnicity. Employers can voluntarily report non-binary employees in the “comments” section of the report(s). If they do this, they should not assign such employees the male and female categories — or job categories and race or ethnicity categories — anywhere else in the report.
• Race/ethnicity of each employee. Employers must categorize all employees under the following six ethnic and racial categories: White (not Hispanic or Latino); Native Hawaiian or other Pacific Islander (not Hispanic or Latino); American Indian or Native
Alaskan (not Hispanic or Latino); Asian (not Hispanic or Latino); Hispanic or Latino; Black or African American (not Hispanic or Latino)
EEO-1 Exemptions
Some organizations are exempt from filing an EEO-1 Report. State and local governments, public and private secondary school systems, post-secondary educational institutions, American Indian or Alaska Native tribes, and tax-exempt private clubs other
than labor organizations need not file an EEO-1 Report. However, some organizations exempt from filing the EEO-1 Report are required to report employee information at a different time of the year.
• The EEO-3 Report[6] is a biennial report filed by unions with 100 or more members.
• The EEO-4 Report[7] is a biennial report filed by all state and local governments with 100 or more employees.
• The EEO-5 [8]Report is a biennial report filed by all public elementary and secondary school systems and districts with 100 or more employees.
Negative Consequences of Failure to File
There are several understandable reasons why employers may fail to submit their EEO1 Report. Some employers may not realize their employee headcount puts them over the threshold. That’s the most common reason employers don’t report. Others blame
their human resources department and turnover in the staff that prepare such reports. Unfortunately, neither of these reasons is a legal excuse for noncompliance.
Employers who have an account with the EEOC and do not submit and certify their mandatory 2023 EEO-1 Component 1 Report(s) by the “published due date” (June 4, 2024) will immediately receive a “Notice of Failure to File” from the EEOC. This notice will instruct these tardy employers to submit and certify their data as soon as possible and provide another deadline (i.e., the “Failure to File” deadline).
While failure to file your EEO-1 Report has specific statutory and regulatory consequences — and possible fines — it’s impractical for the federal government to compel compliance of this obligation through the courts. The more practical potential “penalty” (at least for companies that are not federal contractors or subcontractors – see below) is being unable to produce this report on demand during an enforcement audit or when the EEOC is investigating a discrimination charge.
Section 709 (c) of Title VII of the Civil Rights Act of 1964 says that a court may compel the completion of any reports required by the EEOC. The EEOC echoes this in their regulation (29 CFR §1602.9[9]), which states: “Any employer failing or refusing to file
Report EEO-1 when required to do so may be compelled to file by order of a US District Court, upon application of the Commission.”
For federal government contractors or subcontractors selected for an enforcement audit by the Office of Federal Compliance Programs [10](OFCCP), the failure to file an EEO-1 Report can have significant consequences. In every enforcement audit, the
OFCCP issues a Notice of Desk Audit accompanied by an “Itemized Listing” detailing all the information and documents the government wants submitted — including copies of a federal contractor/subcontractor’s “EEO-1 Reports for the last three years.” If the employer cannot produce these reports, it will likely trigger a Conciliation Agreement[11]. A Conciliation Agreement will significantly enhance the odds that OFCCP will initiate another compliance review soon.
For non-federal employers, when the EEOC investigates a charge of discrimination, the Commission will probably request a recent EEO-1 Report. If the discrimination charge involves allegations of gender or race discrimination, it will be difficult for an
employer to argue that the EEO-1 Report information is irrelevant to the investigation. The inability to produce an EEO-1 Report when the EEOC (or an investigating state agency) requests it could very well have a negative impact on the investigator’s view of
the employer in the investigator’s assessment of the discrimination allegations. Intentionally falsifying data on an EEO-1 report can lead to fines, imprisonment of up to five years, or both.
The Compliance Opportunity
The EEO-1 Report plays a role in enhancing workplace equality and minimizing discrimination. A culture of compliance isn’t created through mandatory reporting, but assembling the data for your annual EEO-1 Report presents an ideal opportunity to
evaluate your workforce, learn new things, and demonstrate your commitment to best practices in hiring and workforce management.
In FY 2023, the EEOC filed 143 new employment discrimination lawsuits. This represents a 50 percent increase over FY 2022. We can expect this litigation trend to continue and increase in the year ahead.
If you have any questions about employment law compliance and reporting responsibilities to state and federal government agencies, don’t hesitate to contact Orr & Reno for assistance.
Steven L. Winer [12]and Elizabeth C. Velez[13]
Source URL: https://orr-reno.com/eeoc-data-collection/
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