It’s that time of year again! No, we’re not referring to spring. On Tuesday, April 30, 2024, the Equal Employment Opportunity Commission (EEOC) will open its portal for filing 2023 EEO-1 data. The deadline for submissions is Tuesday, June 4, 2024. Are you ready to report? Here are some frequently asked questions (FAQs) about EEO-1 reporting.
FAQs on EEO-1s
What is an EEO-1 report? Since the mid-1990s, the EEOC has required qualifying employers to submit workforce demographics on a yearly basis—known as an EEO-1 report. It allows the agency to view, in broad strokes, the gender, race, and ethnicity makeup of the American workforce across industries and job types.
Who is required to file an EEO-1 report? Private employers with 100 or more employees and federal contractors that have 50 or more employees who aren’t otherwise exempt (and most aren’t) must file EEO-1 reports each year.
What data is collected? The EEOC collects data on job categories (for example, executives, midlevel managers, professionals, technicians, sales workers, craft workers, laborers and helpers, etc.) and the breakdown of employees by gender, race, and ethnicity (for example, Asian, Pacific Islander, White, Hispanic or Latino, and Black or African American) in each job category. Employers will designate the type of industry the location operates in using North American Industry Classification System (NAICS) numbers.
Are employees identified by name or another designation? No, employees’ identities aren’t included, just their demographic information.
How do we know employees’ gender and race/ethnicity? The EEOC encourages the use of self-reporting identification forms. You can include the forms when onboarding employees or ask them to fill them out before you file your EEO-1 reports for the year. Self-reporting identification forms are voluntary. If an employee declines to self-identify, you may make an assessment based on observation, but this is the least-recommended method for collecting the data.
The self-identification forms should be kept confidential and in a separate location from employees’ basic personnel files and away from persons who are responsible for personnel decisions. A good practice is to allow access only to the person or persons responsible for preparing and filing the EEO-1 reports and/or Human Resources (HR) managers. Many HR information system (HRIS) programs will compile the information in a way that limits visibility to those who need to access it, and many HRIS programs also are able to prepare the data for easier filing.
What about employees who leave employment during the year? The EEOC only collects a snapshot of an employer’s data, consisting of workforce data for one pay period during a quarter that’s designated by the EEOC—likely to be October 1 through December 31, 2023.
How do we report nonbinary employees for gender-reporting obligations? In 2022, the EEOC provided only binary options (male or female) for reporting employee counts by job category. However, it allowed employers to voluntarily choose to report employee demographic data for nonbinary employees in the comments section. If an employer used the comments section to voluntarily report nonbinary employees, they shouldn’t have been included in the male or female categories for any of the other data.
The EEOC is expected to release the instruction booklet for the 2023 EEO-1 by March 19, 2024, on the EEO-1 portal (known as the EEO-1 Component 1 Online Filing System). Employers should check the EEOC portal (www.EEOCdata.org/eeo1) to review the instructions before compiling EEO-1 reports.
How do we report for different locations? The EEOC requires employers to report each “establishment” separately. An establishment is a single physical location where business is conducted or where services are performed. All establishments must be reported separately, even if they perform the same type of work. For multi-establishment employers, there’s also a “headquarters” report.
How do we report remote workers? Remote workers should be assigned to the establishment (or headquarters) where they report.
We’ve heard a lot about the collection of pay data since 2016. Do we have to report that, too? As many of you probably (painfully) remember, there’s been a whiplash effect surrounding the collection of pay data (also known as EEO-1 Component 2 data) over the last eight years. The EEOC planned to begin collecting Component 2 data in 2017, which was halted by then-President Donald Trump after he took office. After litigation, a federal judge ruled the halt was unlawful and ordered the EEOC to collect data for 2017 and 2018. But the collection of Component 2 data was lawfully discontinued in 2019.
In the last year, under President Joe Biden, the EEOC indicated it intends to begin collecting Component 2 data again. However, it hasn’t issued a statement that it will collect Component 2 data for the 2023 EEO-1, which indicates it may not be included this year. You should continue to monitor the EEOC’s portal leading up to April 30.
I still have so many questions! What should I do? The EEOC typically releases an instruction booklet and its own more detailed FAQs before opening the portal for filing. It has indicated it will provide an instruction booklet on its portal on or before March 19.
In the meantime, employers that are new to reporting can read last year’s FAQs and instruction booklet to get more general information on how the process works. But be careful to read the most current information when the EEOC puts it into the portal. The agency will also have a help desk, known as the “Filer Support Message Center,” beginning April 30. You can also always contact your friendly employment counsel for assistance.
Audra Hamilton is an attorney with Mitchell Williams in Little Rock and can be reached at ahamilton@mwlaw.com.