Author: Victoria A. Lipnic, Partner, Resolution Economics, LLC
On July 23, 2026, the EEOC issued a proposed “rule to rescind and remove the requirements for the filing of the EEO-1, EEO-2, EEO-3, EEO-4, EEO-5, and EEO-6 reports, and the recordkeeping and record preservation requirements related to these reports, under 29 C.F.R. part 1602 because it has preliminarily determined that the reports are inconsistent with equal employment opportunity law and potentially unconstitutional.”[1] As required under the Paperwork Reduction Act, the Commission held a public hearing in August and then voted 2-1 to eliminate the EEO-1 (and the other EEO-numbered forms) data reporting, which began in the mid-1960’s.[2] The 30-day comment period is now closed and the Commission received more than 2,600 comments to the public record.
The EEO-1 rulemaking raises important questions for employers about whether they should continue to collect race and sex information about their workforce.[3] Indeed, in the wake of the first slew of President Trump’s Executive Orders this was an issue employers immediately focused on. That debate continues especially in the wake of the expected EEO-1 removal.
The EEOC makes the argument that the “EEO Reports were born of their time” (in the 1960’s), but that time has changed with subsequent Supreme Court decisions – especially those dealing with racial classifications. In the rulemaking, the EEOC makes a distinction between race and sex information it may need in an investigation in response to a particular charge versus wholesale, broad-based reporting of race and sex (by job group) that is currently required by the EEO-1. In the Preamble to the rulemaking, the Commission states that: “the EEOC’s primary source of investigatory information to support its enforcement efforts – such as agency requests from a particular employer during a charge investigation for specific ‘records relevant to the determinations of whether unlawful employment practices have been or are being committed,’ 42 U.S.C. 2000e-8(c) — are narrowly tailored to specific alleged violations of federal employment anti-discrimination laws arising from a particular charge of discrimination.” They go on to argue that “because the EEO Reports compel employers to classify employees by race and sex and cannot be justified to support the EEOC’s enforcement efforts, they may violate equal protection guarantees under the U.S. Constitution.”[4]
Most of the comments submitted to the public record were from individuals in a campaign urging the Commission to retain the EEO-1 report. In addition to the individual commenters the substantive comments came from business groups, trade associations, civil rights interest groups (on both the left and the right), think-tanks,[5] academic researchers, and investment groups. Most of the comments from traditional civil rights groups, e.g., the Leadership Conference on Civil and Human Rights and the National Women’s Law Center urged the EEOC to withdraw the rescission rule and explained why they believe the EEOC proposal violates the law, including under the Administrative Procedure Act, and why the EEOC’s legal rationale for rescission is flawed.[6] In contrast, the comments from some of the newer conservative-thinking civil rights groups, like the America First Policy Institute and America First Legal, completely agree with the EEOC’s legal rationale.[7] The comments from the academic researchers all urged keeping the EEO-1 report, underscoring concern about losing an important longitudinal data set.[8]
But, there were two surprises in the record from two important business constituencies. First, a small number of investment groups commented and urged the EEOC to retain the EEO-1 reporting requirements. Most of these groups were large institutional asset managers or state pension fund managers and they described having demographic reporting on the workforce by companies as important to their assessments of the human capital strengths of the companies.[9]
The second surprise is the split in the views of the business groups. As would be expected, many were completely supportive of removing the reporting requirements.[10] But, the surprise came from some business groups who, even if they were supportive of removal of the EEO-1, raised concerns about a gap being left by the EEOC for employer compliance with EEO recordkeeping. The U.S. Chamber of Commerce [11] stated the following: “While the Chamber supports the EEOC’s rescission of the EEO-1 Report in light of the very limited usefulness of the Report, resulting burden, and the Report’s related confidentiality risks, it urges the EEOC to accompany any rescission with technical assistance or guidance regarding employers’ continuing obligations and practices with respect to collection of workforce demographic data to ensure the benefits of such collection and analysis are not compromised or put those employers at risk of EEOC enforcement.” The Chamber further “urges the EEOC [to] consult with interested state agencies and coordinate any changes to existing EEO-1 Report filing requirements with those adopted by state agencies, as required by Section 709(d) of Title VII, as amended, 42 U.S.C. ⸹2000e-8(d).”
Similarly, the Center for Workplace Compliance, even after acknowledging that its members were divided as to whether there was value in keeping the EEO-1 reporting framework, asked that the “recission of the EEO-1 Report should not be understood to prohibit or discourage employers from lawfully collecting, maintaining, analyzing, or, where otherwise required, reporting demographic information to monitor and manage compliance with Title VII and other applicable antidiscrimination laws.”
Two important employer groups urged the EEOC to replace and modernize the forms, not rescind them. The Society for Human Resource Management (SHRM)[12] cited its own 2026 survey research, which was not favorable to the current EEO-1 reporting framework, and stated: “It is SHRM’s ardent belief that rescinding the current reporting requirements should be an opportunity to build something better – not an invitation to abandon the underlying value of workforce demographic data.”
The second employer group, the Institute for Workplace Equality (IWE), whose members are long-time federal contractors with extensive experience with OFCCP affirmative action requirements, offered substantial rebuttal to the EEOC’s legal and factual basis for rescinding the EEO-1. Among many counterpoint arguments made by IWE one of the most significant was “Data collection is not a racial classification for decision-making purposes.”[13] The IWE urged the Commission to withdraw the NPRM, retain the EEO-1 Report and convene a stakeholder task force to modernize it. They conclude: “The data is not the problem. Eliminating it does not eliminate discrimination. It eliminates our ability to see it.”
The comments raise important questions the Commission will have to address in a final rulemaking, assuming such a rulemaking goes forward. Among them: whether the EEOC’s requirement for recordkeeping and reporting by employers is mandatory or discretionary; what will the EEOC do, at all, about state reporting requirements and does it have an obligation to consult with state and local authorities about removing EEO-1 reporting; is the EEOC’s rescission of the EEO-1 contrary to the administration’s requests for race and sex information in other contexts (e.g., by the Department of Education in admissions) and therefore, arbitrary and capricious under the Administrative Procedure Act; is collecting information on employees based on race and sex different from taking actions about employees based on race and sex; and will the EEOC, if it rescinds, provide any other kind of written guidance to employers about the legal boundaries of collecting workforce information based on race and sex.
Also, it is important to remember that the Commission, and Chair Andrea Lucas, have not completely eschewed the need for employers to have race and sex information on hand when the Commission comes calling,[14] despite the Trump administration’s clear distaste for any kind of racial classifications. She is especially interested in that as a means to challenge corporate and institutional DEI practices.[15] Further, in the past, the EEOC has provided important guidance about the guardrails for employer collection of and use of race- and sex-based workforce information, explaining that such data must be used carefully and in accordance with individual rights.[16] Chair Lucas has made public statements endorsing this approach, but whether further guidance will follow from the EEOC’s rescission of the EEO-1 forms, as requested by numerous employer groups, remains to be seen.
Additionally, don’t forget the states and local jurisdictions – several of whom have created their own workforce demographic reporting requirements. These include California, Colorado, Illinois, Massachusetts and the Big Apple – New York City. Each of these reporting requirements has its own standards, but at a minimum, race and sex workforce information.
Finally, employers are cautioned not to act too soon in halting their internal systems for collecting workforce demographic information – even in the way they may currently have it structured for purposes of reporting the EEO-1 information. In 2017 – 2019, the Office of Management and Budget (OMB), acting on a petition to it under the auspices of the Paperwork Reduction Act, directed the EEOC to stay collecting employer compensation information (known as “Component 2” information). The “pay data” collection had been very controversial when first proposed by the EEOC in 2016 and when the administration changed from President Obama to President Trump OMB issued its stay. Some of the very same civil rights interest groups who have commented to the public record for the current rulemaking sued to reverse the OMB stay — and they were successful. In National Women’s Law Center, et.al. v. Office of Management & Budget, et. al., 358 F. Supp. 3d, 66 (D.D.C. 2019), Judge Tanya Chutkan held that the organizations had standing to seek the pay data (even though the information is generally required to be kept confidential by the EEOC), vacated OMB’s stay and ordered the previous approval of the revised EEO-1 form to be in effect. Hence, the EEOC and employers were in a scramble to complete the 2019 Component 2 pay data collection. Assuming the EEOC finalizes the current EEO-1 rulemaking, at which point there would be a “final agency action” (for purposes of an Administrative Procedure Act challenge), expect a similar lawsuit.
[1] See 91 Fed. Reg. No. 140, 46332, July 23, 2026. The EEOC proposes the “Removal of Reporting Requirements” for all of the EEO forms. The reference to the “EEO-1” in this section is meant to include all of the EEO-forms, although the one most significant to most employers is the EEO-1.
[2] For the dissenting vote, see Commissioner Kotogal’s Statement on the Proposal to Rescind EEO Report available at https://www.linkedin.com/feed/update/urn:li:activity:7485365910212591616?. Commissioner Kotogal noted a recent settlement by the EEOC for a sex-discrimination-in-hiring case where the Commission specifically noted it relied on EEO-1 data to help with its case. See https://www.eeoc.gov/newsroom/eeoc-reaches-early-55-million-resolution-central-transport-over-nationwide-sex.
[3] Section 709(c)) of Title VII requires employers, labor organizations, and employment agencies to: “(1) make and keep such records relevant to the determinations of whether unlawful employment practices have been or are being committed, (2) preserve such records for such periods, and (3) make such reports therefrom as the Commission shall prescribe by regulation or order, after public hearing, as reasonable, necessary, or appropriate for the enforcement of [Title VII] or the regulations or orders thereunder.” 42 U.S.C. 2000e-8(c).
[4] See 91 Fed. Reg. No. 140, 46332, 46335, July 23, 2026.
[5] See, e.g., Comment of the Institute for Women’s Policy Research: “One of the challenges in understanding the extent and causes of labor market discrimination is imperfect data. Survey data like the US Census Bureau’s American Community Survey (ACS) and Current Population Survey (CPS) collect self-reported information from workers without capturing explicit information on precisely where an individual works. This data also relies on self-reported earnings and working hours, which can have errors in accuracy. For example, self-reported earnings in the CPS mask the magnitude of the Black-White wage gap, which is revealed when these data are linked to administrative tax data. Data provided to the EEOC in the EEO-1 report provide an additional tool for understanding labor market discrimination and supporting enforcement of antidiscrimination law by providing data on employers and firms across years.” https://www.regulations.gov/comment/EEOC-2026-0034-2429
[6] See Comment of Legal Defense Fund, the Lawyer’s Committee for Civil Rights Under Law, The Leadership Conference on Civil and Human Rights, et. al.: “The EEOC lacks a reasoned basis for the proposed change, in violation of the Administrative Procedure Act (APA), 5 U.S.C. ⸹706(2). . . . In order for an agency action to be valid under the APA, it must be the product of ‘reasoned decision-making.’ Citing Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 53 (1983). These same requirements apply when an agency revises its regulations. When an agency substantially alters an existing regulation, it must provide a ‘more detailed justification’ for a change in policy when the ‘new policy rests upon factual findings that contradict those which underlay its prior policy’ or where the previous policy has ‘engendered serious reliance interests that must be taken into account.’ The EEOC has failed to do so here.” https://www.regulations.gov/comment/EEOC-2026-0034-2560. See also Comment of Equal Rights Advocates, https://www.regulations.gov/comment/EEOC-2026-0034-0805
[7] See Comment of America First Policy Institute: “Section 703(j) provides that nothing in Title VII ‘shall be interpreted to require any employer’ to grant preferential treatment because of an imbalance between the racial composition of its workforce and that of the surrounding labor market. Likewise, although Congress authorized the EEOC to collect information necessary to enforce Title VII, it do so to investigate unlawful discrimination – not to transform racial composition into an ongoing measure of employer reporting.” https://www.regulations.gov/comment/EEOC-2026-0034-2303. See also Comment of American Civil Rights Project, https://www.regulations.gov/comment/EEOC-2026-0034-1190 . See also Comment of America First Legal, https://www.regulations.gov/comment/EEOC-2026-0034-2525
[8] See Comment of University of Massachusetts, Amherst, Center for Employment Equity, https://www.regulations.gov/comment/EEOC-2026-0034-0327; Sse also Comment of American Institute for Boys and Men (AIBM): “AIBM is a research and policy organization focused on improving the wellbeing of boys and men. We use public data to identify where boys and men are struggling or underrepresented, and to help policymakers understand those challenges.” They urged the Commission to maintain the Elementary-Secondary Staff Information Report (EEO-5) because it illustrates the underrepresentation of men in teaching: “just 23% of K-12 teachers are men.” https://www.regulations.gov/comment/EEOC-2026-0034-2526
[9] See Comment by State of New York, Office of the State Comptroller, Thomas P. DiNapoli: “As Trustee of the Fund, I oversee one of the largest public pension funds in the United States, valued at approximately $295.4 billion. . . . I support continued required reporting of the EEO-1 Consolidated Report (Report) because the vast majority of the Fund’s thousands of investee companies are required to file the Report, which serves as an important risk management tool for corporate management. . . . For good reason, it has been market practice for domestic public companies to disclose their EEO-1 data to their investors. In mid-2024, 82% of the S&P 500 and 97% of the S&P 100 had publicly released a recent Report. Investors have asked for this reporting because they view the workforce as an asset that increasingly drives corporate value creation.” https://www.regulations.gov/comment/EEOC-2026-0034-2319
See also Comment of the Oregon State Treasury: “OST invests more than $147 billion, including $101 billion for the Oregon Public Employees Retirement Fund (OPERF), which is among the largest public pension funds in the United States. . . . Investors are well aware that human capital issues are a material driver of firm value. Workforce composition data in the standardized federal format is the only consistent, comparable, longitudinal source of such data across U.S. employers. Investors representing trillions of dollars have petitioned regulators for it, adopted proxy-voting policies keyed to it, filed shareholder proposals that won supermajority support demanding its disclosure, and persuaded nearly all of the largest public companies to publish it.” https://www.regulations.gov/comment/EEOC-2026-0034-2152.
See also comment of Boston Common Asset Management: BCM is an “investor with approximately $4.8 billion in assets under management. . . . Boston Common has long used standardized workforce composition data to assess risks and compare companies across areas such as litigation and reputational risk exposure, talent management, and human capital management strategies.” https://www.regulations.gov/comment/EEOC-2026-0034-2426.
[10] See Comment of the National Federation of Independent Business: “Elimination of the annual EEO-1 reporting requirement will save small and independent businesses substantial time and money and reduce the risk of misuse of EEO-1 data. NIFB supports EEOC adoption of the proposed rule.” https://www.regulations.gov/comment/EEOC-2026-0034-2311
See also Comment of the Associated Builders & Contractors: “ABC agrees that collecting, maintaining and reporting the EEO-1 data places significant burdens on employers across the board – most of whom have never faced, and may never face, an allegation of discrimination.” ABC further notes, however, “While we are pleased the EEOC proposes to rescind the EEO-1 reporting requirement, many employers will still be required to report demographic workforce data under existing state and /or local reporting requirements. Employers required to collect demographic information under state and/or local laws should have the ability to tailor their collections and recordkeeping to what is required and not be subject to the threat of EEOC enforcement.” https://www.regulations.gov/comment/EEOC-2026-0034-2504
[11]See Comment of U. S. Chamber of Commerce, https://www.regulations.gov/comment/EEOC-2026-0034-2559
[12] See Comment of Society of Human Resource Management (SHRM): “SHRM’s 2026 research demonstrates why modernization [of current EEO reporting] warrants consideration. When asked about current state and federal workforce demographic reporting requirements, 59% of HR professionals said those requirements are sufficient and appropriate as-is; 30% said they are excessive and should be reduced, and 11% said they are insufficient and should be expanded. The more significant finding is how employers assess the usefulness of the current reporting process. Among organizations subject to mandatory demographic reporting, 22% said the data is not at all useful, and 35% said it is not very useful in supporting compliance and workforce analysis; only 6% considered the data very useful.” https://www.regulations.gov/comment/EEOC-2026-0034-2550
[13] See Comment of Institute for Workplace Equality: “The Supreme Court has consistently distinguished between race-conscious remedies, which allocate a benefit or burden to a person because of race and race-conscious monitoring, which does neither. Collecting data to detect the possibility of discrimination is categorically different from using race as a criterion in an actual employment decision. Further, and critically, the Commission’s proposed rule does not identify a single instance in which EEO-1 data determined any individual’s employment outcome. The absence of any decision invalidating EEO-1 style demographic reporting over six decades is significant because the requirement has operated openly under Title VII since 1966, has repeatedly been renewed through the Paperwork Reduction Act (“PRA”) process, and has never been treated by courts or the Commission as an individualized racial classification.” (italics in the original). https://www.regulations.gov/comment/EEOC-2026-0034-2516
[14] On May 20, 2026, Chair Lucas spoke at the Fortune Workplace Innovation Summit in Atlanta, Georgia. When asked about the Commission’s purpose in collecting workforce data, she said “ . . . . there is no way to protect victims of harassment or discrimination unless you collect information about them.”
See https://fortune.com/2026/05/28/eeoc-chair-andrea-lucas-demographic-data-eeoc/
[15] See Congressional Budget Justification for the EEOC for FY 2026: “Under the President’s Executive Order 14173, the EEOC is charged with robustly enforcing civil rights cases involving workplace diversity, equity, and inclusion policies, programs or practices that violate Title VII’s prohibitions on discrimination based on race, sex, or other protected characteristics. Litigating these cases likely will require expert witnesses and the discovery of large-scale selection data to prove the existence and extent of a pattern or practice of discrimination and identify aggrieved individuals. (emphasis added).” https://www.eeoc.gov/fiscal-year-2026-congressional-budget-justification.
[16] See Informal Discussion Letter: “Title VII: Employer Questionnaire on Applicant Gender, Race and Ethnicity Data,” from Reed Russell, Legal Counsel, U.S. Equal Emp. Opportunity Comm’n (Nov. 18, 2008), https://www.eeoc.gov/foia/eeoc-informal-discussion-letter-200. As the Commission explained in this letter: Requests for race, ethnicity and sex self-identification must be voluntary; data collected must be kept separate from the employment application; the information must be kept confidential and should not be shared with individuals making the selection and hiring decisions; and the data must not be used as a basis for employment decisions.