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Eeoc Regulatory Update

EEO-1 Reporting Deadline Now December 5

Sept. 26, 2023
Announcement may signal a more aggressive EEOC.

The Equal Employment Opportunity Commission (EEOC) has finally announced the 2022 EEO-1 Component 1 data collection process that is required of employers throughout the United States. It will begin collecting the data from employers on Halloween, October 31, and the deadline for employers to file their completed EEO-1 reports is Dec 5.

Employers who have at least 100 employees and federal contractors who have at least 50 employees are required to file the reports detailing their employees’ ethnicity, race and gender

The EEOC was delayed earlier in part because it was in the process of pursuing a mandatory, three-year renewal of the EEO-1 Component 1 data collection process by the Office of Management and Budget (OMB), which was required by the Paperwork Reduction Act (PRA).

Laura A. Mitchell, an attorney with the law firm of Jackson Lewis, said employers should keep in mind that the update was posted to the EEO-1 reporting website. She recommends that employers keep up with further updates, which will be posted on the general EEO-1 home page.

The EEOC announced posted the updated 2022 EEO-1 Component 1 Instruction Booklet for the employers who are filing on Sept., 6, and the updated 2022 EEO-1 Component 1 Data File Upload Specifications for filers on Sept. 13.

Why did it take so long for the EEOC to open the reporting process for last year? “OMB’s approval of the EEO-1 reporting process every three years has generally been a routine matter,” explained attorney David Goldstein of the Littler Mendelson law firm in July after the commission announced it would delay the data collection until this fall. “Therefore, it seems reasonable to suspect that the continued delay in the 2022 reporting cycle reflects a political battle over proposals to resume the collection of pay data as part of annual EEO-1 reporting.”

This highly-detailed pay reporting form had been vigorously opposed by employer groups when it was first adopted during the Obama Administration because of the enormous amount of data employers were expected to submit, and the administrative costs associated with doing so. Employers are expected to supply pay data organized by multiple pay levels and job description categories for women and minorities, including disabled employees

The employers also expressed privacy concerns, believing that data could be made public, which could be exploited by tort lawyers and labor unions. The EEOC proponents of collecting the information asserted that the data would only be used by the commission in the process of developing generalized policy positions, but some employers feared it could be used to target individual companies for possible future enforcement actions.

Although the EEO-1 reporting was required in 2017 and 2018, it was later discontinued when a majority of Republican commissioners were able to take control of the five-member body during the Trump administration. The reverse of this process seems to have taken place since the Biden administration took office, but much more slowly due to political opposition.

By law, the EEOC is composed of five members who are nominated by the President and take office only after being approved by the U.S. Senate, with the members serving for staggered five-year terms. The sitting President is allowed to appoint the chairmen and nominate three of the members of his own party, creating a majority that favors his policies and political agenda.

Because of the staggering of the five-year terms, it is not unusual after a new President takes office for the commission to retain a majority of the previous President’s party until one of their terms ends and the new President can nominate and the Senate is able to approve a new member.  Up until early August, the commission had been composed of two Democratic and two Republican member and Senate Republicans had succeeded in blocking Biden’s nominee, resulting in the commission deadlocking in 2-2 votes.

However, that logjam finally broke and on Aug. 9 a third Democrat member was sworn in: Kalpana Kotagal, an experienced employment attorney and law professor, whose term is slated to expire on July 1, 2027—meaning that if a Republican is elected in 2024 she will continue to serve on the commission throughout most of that presidential term.

In 2021, Kotagal and the Transgender Legal Defense and Education Fund concluded negotiations with the Aetna insurance company that ensured access to breast augmentation surgery for transfeminine policyholders  While it is not known whether she will choose to recuse herself from issues like this one that she has worked on previously, her membership on the EEOC seems to ensure a more aggressive policy stance in the future.

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