What You Should Know about EEOC and the Publication of the Notice of Information Collection Regarding the EEO-1.

The Commission approved the publication of Notice of Information Collection (Notice) regarding the Employer Information Report (EEO-1).  The notice was available for review in the Federal Register on Wednesday, September 11, 2019, and was published the next day.

In accordance with the Paperwork Reduction Act (PRA), this 60-day Notice relays the EEOC's intent to seek authorization from the Office of Management and Budget (OMB) for a three-year approval to collect the EEO-1, Component 1, which the EEOC has been collecting since 1966.  The Notice also invites the public to comment on the proposal. 

Because the EEOC's 2016 request for OMB authorization included, for the first time, a request for approval for collection of pay data (Component 2), this Notice makes clear that the Commission is not renewing its request for authorization to collect Component 2.

Through the PRA, Congress established a process by which agencies must obtain approval from OMB to collect certain types of information from the public.  As part of this process, agencies such as the EEOC must conduct their own assessment of the need for the information and the burden imposed by the collection.  In 2016, the EEOC provided a burden analysis to OMB supporting its request for permission to collect Component 1 and 2 data.  In the Notice filed earlier this week, the EEOC updated this burden analysis. 

The revised burden analysis differs from the original burden assessment in that it analyzes burden based on the number of reports an employer is required to file.  In 2016, the EEOC estimated burden at the individual employer level.  In essence, the EEOC treated all employers alike when calculating burden - regardless of the size of the employer or the number of reports that an employer was required to file.  Since multi-establishment employers are generally required to file reports for each of their locations (subject to size limitations) plus a headquarters and consolidated report, the amount of effort that multi-establishment employers must expend to comply with the EEO-1 data collection requirements is often greater than the effort expended by a single-establishment employer.  This burden is magnified by the number of data fields required in a single Component 2 report (3,360 fields) versus a single Component 1 report (140 data fields). 

In the Notice filed earlier this week, the EEOC analyzed the total number of reports submitted by report type and file types, and then estimated an average burden based on the number and types of reports submitted.  Pursuant to the updated methodology employed in the Notice, the EEOC estimates that the burden associated with submitting Component 1 and 2 data for 2017 would be $614 million, and $622 million for 2018.  By contrast, in 2016, the EEOC estimated that the burden to employers for filing Component 1 and 2 reports would be $53.5 million in each of 2017 and 2018. 

Despite the significant increase in burden, however, the EEOC believes the proven utility of Component 1 to EEOC's mission justifies its continued collection. The EEOC has been collecting Component 1 data from EEO-1 filers on an annual basis since 1966.  Component 1 EEO-1 data serves as a valuable resource for EEOC's analysis of industries and regions as well as for investigators in assessing allegation of discrimination.  Therefore, the EEOC believes that the continued collection of Component 1 is necessary for the proper performance of the agency's functions and fulfillment of the agency's mission.

The Notice does not affect the obligation of EEO-1 filers to submit Component 2 data for calendar years 2017 and 2018 by September 30, 2019, or EEOC's obligation to collect 2017 and 2018 Component 2 data, pursuant to the court's March 4, 2019 order in National Women's Law Center, et al., v. Office of Management and Budget, et al., Civil Action No. 17-cv-2458 (D.D.C.).

Next steps:

EEOC currently foresees publishing a 30-Day Notice in the Federal Register, following expiration of the 60-day comment period, and submitting to OMB a request to renew the EEOC's authorization to collect Component 1. The 30-Day Notice will review public comments as appropriate and discuss the EEOC's request for approval under the PRA.  If OMB approves the EEOC's request for authorization to collect Component 1, the EEOC intends to so notify employers required to collect such data and provide required instructions.

Background:

Title VII of the Civil Rights Act of 1964 requires employers to make and keep records relevant to the determination of whether unlawful employment practices have been or are being committed and to produce such records to the EEOC.  Pursuant to its statutory authority, in 1966 the EEOC began requiring certain employers to report employee data by job category, ethnicity, race, and sex, otherwise referred to as "EEO-1" data.