?Employers need to understand that the timeline for submitting their demographic data to the U.S. Equal Employment Opportunity Commission (EEOC) is somewhat different this year. The agency recently confirmed that EEO-1 reporting for 2022 data is scheduled to begin in mid-July. In recent years, the starting points and deadlines for data collection have varied.
“The EEOC’s shifting deadlines and belated fulfillment of its announced intentions regarding the scope of required EEO-1 reporting creates considerable confusion and uncertainty for employers,” said Peter Spanos, an attorney with Taylor English Duma in Atlanta.
All private employers with 100 or more employees and federal contractors with 50 or more employees must file EEO-1 reports each year that summarize employee headcount by sex, race/ethnicity, and job category. This component of data collection, called Component 1, does not include pay data.
Breakdown of Categories
The form asks employers to denote the gender identity and sexual orientation of employees.
“Reporting categories have continued to change. For 2022, there are updated fields for gender identity and sexual orientation,” Spanos said. “Employers must not only list such employees in the sexual orientation section of the EEO-1 report, but all covered employers must provide the statistics for such employees in the discrimination section and the other disabilities and characteristics sections. Employers will continue to face the difficult task of gathering more information about employee gender identity and sexual orientation.”
The EEO-1 form currently does not have a box for designating nonbinary individuals, but employers can manually enter the number of workers who identify as nonbinary in the comments section.
“I am not aware of any instructions officially issued as yet by the EEOC regarding reporting transgender employees,” Spanos said.
The categories for race are white, Black or African American, Native Hawaiian or other Pacific Islander, Asian, American Indian or Alaska Native, or two or more races.
The “EEOC takes the position that an employer should either use other employment-related documents or even a visual identification to identify the race/ethnicity of an employee who declines to self-identify,” said Cheryl Behymer, an attorney with Fisher Phillips in Columbia, S.C. “Many employers are hesitant to usurp the employee’s right to decline to self-identify, which puts them in the awkward position of potentially having to guess at these characteristics. Many employers face challenges from their Middle Eastern employees whose race is identified as white, according to the definitions provided in the directions that accompany EEO-1 reporting.”
Hispanic or Latino is categorized as an ethnicity, not a race, on the form. “If an employee identifies as Hispanic or Latino, the employee does not have the opportunity to also be reported as two or more races,” Behymer said.
Job categories include:
- Managers.
- Professionals.
- Technicians.
- Sales workers.
- Administrative support workers.
- Craft workers.
- Operatives.
- Laborers and helpers.
- Service workers.
The purpose of collecting the data is to support enforcement actions, facilitate research on employment patterns, and encourage self-assessment by employers, according to the EEOC. Some companies voluntarily go a step further and publicly release their demographic information to support their diversity efforts or improve accountability.
There are consequences for not complying with the reporting requirement. “Employers who fail to file an EEO-1 report may be subject to fines, back pay and corrective action. In some cases, the EEOC may also bring civil suits against employers,” Spanos said.
Federal contractors may lose their contract if they don’t submit their data.
Action Steps
Employers should add all new employees to payroll records and gather up-to-date information about their gender identity and sexual orientation, Spanos said.
“Using a compliant EEO-1 voluntary self-identification form can help employers collect the demographic information that needs to be submitted with the EEO-1,” said Andrew Maunz, an attorney with Jackson Lewis in Pittsburgh.
Employers can use the data to inform their ongoing diversity efforts, comparing one year to the next.
“If the employer also wants to use the data for its own diversity, equity and inclusion (DE&I) programs, it should ensure the voluntary self-identification survey form does not limit the use of the data only to mandatory government reporting, so that the employer keeps trust with its workforce in its data handling,” Behymer said. “If the employer is also a federal contractor or subcontractor, it should review the additional data required for affirmative action compliance and ensure it is collecting and reporting those data, as well.”
