The Employer Information Report EEO-1 (also known as the EEO-1 Report) is required to be filed annually by covered employers with the US Equal Employment Opportunity Commission’s (EEOC) Office of Enterprise Data and Analytics' employer data team. Most employers with 15 or more employees are covered by Title VII of the Civil Rights Act of 1964 (Title VII) and are required to keep employment records mandated by the EEOC. The EEO-1 Report requires covered employers to report the number of employees by job category, sex, race, and ethnicity. The information in the EEO-1 Report is collected under the authority of Title VII.
The EEO-1 Report for calendar year 2018 must be filed by May 31, 2019. However, in light of a recent decision 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.), there will be an additional filing requirement for calendar years 2017 and 2018.
By way of background, in February 2016, the EEOC announced its intention to modify and expand the EEO-1 Report into two components. Component 1 data is data the EEO-1 Report currently collects (i.e., the number of employees by job category, sex, race, and ethnicity). Component 2 data would comprise employees' W-2 earnings and hours worked utilizing 12 pay bands for the ten EEO-1 job categories that are currently on the EEO-1 Report. The EEOC proposes to use the data to enforce equal pay laws.
In August 2017, the EEOC announced its intention to stay the collection of the Component 2 data. The National Women’s Law Center subsequently sued the federal government to reinstate the collection of Component 2 data. As a result of the litigation, the EEOC announced it will collect Component 2 data for calendar years 2017 and 2018. Specifically, the EEOC indicated that EEO-1 filers “should begin preparing to submit Component 2 data for calendar year 2017, in addition to data for calendar year 2018, by September 30, 2019.” As EEO-1 filers know, the EEO-1 Report is submitted electronically to the EEOC via the EEOC’s website. The EEOC expects to begin collecting EEO-1 Component 2 data for calendar years 2017 and 2018 in mid-July 2019 and will notify filers of the precise date the second part of the EEO-1 Report survey will open. Component 2 data, like Component 1 data, will be filed electronically.
Although the federal government has appealed the ruling of the court in National Women's Law Center, et al., v. Office of Management and Budget, et al., the appeal does not stay the filing of the Component 2 data. Specifically, the EEOC highlights on its website that “[t]he filing of th[e] Notice of Appeal does not [delay] the district court orders or alter EEO-1 filers' obligations to submit Component 2 data. EEO-1 filers should begin preparing to submit Component 2 data…”
Once the EEOC opens its portal for submission of Component 2 data, we will issue a legal alert reviewing the specific filing requirements. In the interim, employers should be aware of and prepare for filing Component 2 data by September 30, 2019. Employers who fail to properly and timely file the Component 2 data can be sued by the EEOC and be compelled to provide the data.
If you have any questions regarding the content of this alert, please contact Michael Sciotti, partner, at msciotti@barclaydamon.com, or another member of the firm’s Labor & Employment Practice Area.