The EEOC has required employers to report workforce race and gender data since 1966. A new proposal could end that
The U.S. Equal Employment Opportunity Commission (EEOC) voted 2-1 last week to advance a proposal that would end the EEO-1 report, the federal government's longstanding system for tracking the racial and gender makeup of the American workforce. The proposal was published in the Federal Register on July 23, opening a 30-day comment period running through August 24.
Jim Paretti, an employment and labor relations attorney at Littler Mendelson in Washington, D.C., shared his read on what the vote means for employers.
"I was not surprised. This is something I think they had long planned to do," Paretti said. "Given where the administration has been, with an intense focus on not looking at information about sex, race, or ethnicity, and just making what they'd call decisions on their own merits, I can't say I'm surprised that the agency proposed eliminating these things."
A proposal, not yet a rule
Nothing changes for employers today. The filing requirement, which applies to larger employers and covered federal contractors, stays in effect until a final rule is issued. The EEOC's own announcement of the proposal frames the change as a matter of consistency with Title VII, and the full text of the proposed rule argues the reports collect far more demographic data than the agency needs for enforcement, since every covered employer must file them regardless of whether there's ever been a discrimination complaint against them.
There's also an open question hanging over the current cycle, since the 2025 EEO-1 portal never opened this year. Paretti said clients keep asking whether the EEOC will still collect that data or close the door on it for good.
"My advice to employers would be, they should have been collecting it, but don't delete those files just yet. Let's wait until we get clear notice," Paretti said.
Why the data mattered
Chai Feldblum, president of Washington, D.C.-based EEO Leaders and a former EEOC commissioner, called the vote a harmful decision.
"I wish I could say I was surprised, but I wasn't. My reaction was to be quite dismayed," she said. "It's a very harmful decision, both for the efficient running of the EEOC in identifying the right types of enforcement actions, and it's detrimental to employers who might feel chilled from collecting the data on their own, which they're still legally permitted to do. They might be chilled from doing so because they'll be afraid the EEOC will bring a charge against them on the theory that if they're collecting data, they must necessarily be taking actions that violate Title VII to remedy the disparity, which is an unfounded and inappropriate assumption."
Feldblum explained why the aggregate numbers matter in the first place, and what they can reveal before a complaint is ever filed.
"If an employer finds that it has a significant disparity in its workforce overall or in its upper level management that is not consistent with the qualified talent for that job, that is a red flag for the employer to check whether there are barriers to individuals based on race or gender. It gives them the opportunity to fix those barriers in ways that are still race or sex neutral and therefore legal under the law," Feldblum said.
Paretti was asked why this data matters for tracking diversity and discrimination patterns nationally, and he saw less value in the reports as an enforcement tool, and more as something worth watching at the market level.
"If you had five companies in a given market, and four out of five of them had a set of numbers that looked one way and the fifth looked entirely different, that might be some reason to say, I wonder what might be the cause of that," Paretti said.
The EEOC investigation gap
Paretti said the EEOC can request applicant and employee data directly once an investigation opens, so he doesn't see the rescission as a major enforcement blow. Feldblum, on the other hand, points out that most investigations look backward.
"The EEOC usually asks for this data for the previous three or four years. But if you haven't collected that data, the employer won't know the demographic data. That's a problem for the EEOC, but it's also a problem for the employer, because then it will be held to not be responding to a request for information," Feldblum said.
Feldblum connects the proposal to a broader shift under Chair Andrea Lucas, who has defended the rescission as consistent with a colorblind approach to civil rights law. HRD America has tracked that broader shift elsewhere, including in the EEOC's subpoena fight with Nike over its diversity programs, IBM's recent settlement over its diversity practices and the EEOC chair's shift toward a more conservative reading of civil rights law.
"It is simply not in their interest to have that data for the type of systemic investigations they want to bring," Feldblum said.
What employers should do now
Both sources agreed employers should keep collecting the data anyway, even without a federal requirement to do so.
For Paretti, it's a business calculation. Some states already require employers to file EEO-1-style data directly, including Colorado under a law that stays in effect regardless of what happens to the federal rule, and he expects more states to follow. Multi-state employers may find it simpler to adopt the most demanding state standard across the board. He also flagged a legal upside, since a privileged self-audit can help a company spot statistical patterns before a plaintiff's attorney does, though that only works if the data stays walled off from actual decision-making.
"You cannot use it to make an employment decision. You cannot use it to dole out benefits or design programs. You put it in a black box with people whose job it is to analyze it, but you're not sharing it with hiring managers," Paretti said.
Feldblum agreed employers should keep collecting the data, both for internal awareness and as protection if a claim comes later. She also flagged a separate risk: if a charge is filed and the EEOC discovers a company has been collecting the data, the agency could point to that collection itself as evidence of an illegal motive, a theory she considers unfounded but one employers should still watch for.
Both attorneys agreed on one more point. Don't dismantle the systems built to track this information, even if a company stops collecting for now, since some version of this reporting will likely be required again within a few years.
Until the EEOC issues a final rule, the safest move for most employers is the least dramatic one, keeping the infrastructure in place and waiting to see what happens next.
