Executive Action, Part 10--The EEO-1 Report

It seems that some form of sanity is starting to pervade the Federal executive branch, at least with respect to labor and employment law initiatives undertaken by the previous administration that were ill advised. The latest change relates to the ubiquitous EEO–1 form, which the EEOC requires of all employers with more than 100 employees, or federal government prime or first-tier contractors with 50 or more employees and a $50,000 contract.  In a heavily criticized move, the Commission put in a new requirement mandating employers to submit their normal race, ethnicity and gender information, but now linked to W-2 wages and hours worked for all employees, grouped into 10 broad job categories that were then subdivided into 12 separate pay bands. The new requirements greatly increased the workload for employers and were challenged by numerous groups, including the US Chamber of Commerce, for their additional cost, limited utility, and potential for misuse.

Fortunately, yesterday the Office of Management and Budget indefinitely stayed the deadline for compliance with these new requirements.  OMB noted that the data collected would not be grouped into meaningful categories, but rather would result in comparing employees in completely different jobs, who perform completely different tasks, requiring completely different skills. To cite an example that hits close to home, lawyers, doctors, accountants, nurses, and dietitians would all be grouped as "professionals," with their compensation data compared based on gender, race and ethnicity.  Even the Commission noted that it did not expect that the data would identify specific, similarly situated comparators or that it would allow the Commission to establish pay discrimination as a legal matter. No wonder hundreds of employers were asking exactly why they were being forced to pull all this together.

For now, employers should plan to report the usual race, ethnicity and gender requirements within the EEOC job categories as they would normally. Those of us who are following these developments believe that, although the revised EEO-1 format is not dead, it's definitely on life support, and will likely not survive the pending appointment of a Republican majority on the OMB.

My thanks to Nick Haynes for his thoughts on this issue.