Quick Hits
- The EEOC has proposed rescinding federal EEO reporting requirements, including mandatory annual EEO-1 filings.
- As of the publication date of this article, the proposed rule has not yet been formally published in the Federal Register and remains subject to public comment.
- Current reporting obligations remain in effect unless and until the EEOC issues a final rule; the EEOC would retain authority to seek relevant records during investigations.
The NPRM, titled, “Removal of Reporting Requirements,” seeks to rescind and remove the requirements to file EEO reports, specifically the filing of EEO-1, EEO-2, EEO-3, EEO-4, EEO-5, and EEO-6 reports and the report-specific recordkeeping and record preservation requirements. The Commission also states that it intends to incorporate previously proposed references to the Pregnant Workers Fairness Act (PWFA) into 29 CFR Part 1602 as part of any final rule issued at the conclusion of this rulemaking.
According to the NPRM, the EEOC “has preliminarily determined that the reports are inconsistent with equal employment opportunity law and potentially unconstitutional” and that “the data collected is not narrowly tailored, is unnecessary to enforce anti-discrimination laws, and at a minimum, that any marginal benefits are outweighed by the substantial burdens imposed on both employers … as well as the Commission.”
The EEOC unveiled the NPRM shortly after a public meeting during which the Commission voted 2–1 to move forward with the proposal. Chair Andrea Lucas and Commissioner Brittany Bull Panuccio voted in favor, while Commissioner Kalpana Kotagal voted against the proposal.
The Proposed Rule
If finalized, the proposed rule would eliminate the EEO demographic reporting requirements in 29 CFR Part 1602, including employers’ annual EEO-1 reports (required of private employers with at least one hundred employees, or federal contractors with at least fifty employees and contracts amounting to at least $50,000) on workforce filing demographic data organized by job category, race/ethnicity, and sex, and the related demographic surveys for unions (EEO-3), state and local governments (EEO-4), and public school systems (EEO-5). The EEOC noted that it had not actually collected EEO-2 data related to joint labor-management committees that control apprenticeship programs since 1981 or EEO-6 data related to institutions of higher education since 1993.
The NPRM estimates that the proposed action would generate approximately $278.4 million in annual cost savings to private employers, state and local governments, local unions, public elementary and secondary school systems and districts, and the Commission.
The Legal Rationale
The EEOC rests its rationale for rescinding EEO reporting on its preliminary conclusion that wholesale collection of demographic information through the EEO reports—unconnected to any specific allegation of discrimination—may hinder effective enforcement of the EEO laws, and may violate the U.S. Constitution. The EEOC’s rationale centers on four arguments:
“Impermissible Focus on ‘Minorities’ and Women”
The Commission contends that the EEO reports were born of a framework focused on discrimination against “minority groups” and women. The agency contends this framework is in tension with the Supreme Court of the United States’ holding in Ames v. Ohio Department of Youth Services, which rejected a heightened standard for members of majority groups to bring claims under Title VII of the Civil Rights Act of 1964. The NPRM states that predetermined racial categories may prioritize combating discrimination against certain groups over others.
Racial Categories Promote “Stereotyping”
The NPRM challenges the usefulness of the race classifications used in EEO reporting, stating they are “largely arbitrary and not based on the EEOC’s enforcement needs.” The NPRM states that the classifications may promote unlawful race- or sex-based stereotyping and conflict with the principle that “employer actions should be colorblind.”
“Misuse of Data”
The NPRM expresses concern that employers may mistakenly believe the EEOC will target them for enforcement based solely on statistical imbalances, and, as a result, take discriminatory actions—including to “correct” those imbalances. It also references Executive Order 14281, which directed federal agencies to “deprioritize enforcement of all statutes and regulations to the extent they include disparate-impact liability.”
“Potential Equal Protection Violation”
The core constitutional argument is that, because the reports compel government-mandated racial classifications, they are subject to strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment. The EEOC has concluded that the mass collection of demographic data—unconnected to any specific charge of discrimination—is not “narrowly tailored” to a compelling governmental interest. The Commission distinguishes this bulk data collection from its investigative authority to request specific records from a particular employer during an active charge investigation, which it views as a more narrowly tailored alternative.
The Dissent
During the public meeting, Commissioner Kotagal opposed the proposal, arguing that rescinding the reporting obligations would increase costs because the agency would have to use legal processes to require employers to produce the data, which could increase the length of investigations. She further emphasized that employers would need to continue collecting data under certain state laws. She also unsuccessfully sought to extend the comment period to the standard sixty days to provide additional time for stakeholders to review and comment on the proposal.
“It’s a ‘See no evil, hear no evil’ approach,” Commissioner Kotagal stated. “But discrimination does not go away just because you erase the data. It just becomes harder to prove.”
What Employers Need to Know
The proposal to rescind EEO reporting represents a significant potential shift in federal employment reporting requirements. However, the proposal is not yet final, and current reporting obligations remain in effect. The EEOC will also continue to maintain the authority to seek workforce and personnel records during investigations. Employers may wish to distinguish between the proposed elimination of routine EEO reporting and continuing personnel record preservation obligations.
Even if the proposal advances, it may face legal challenges. The constitutional justification relies on recent Supreme Court precedent that could draw legal scrutiny. Specifically, the NPRM treats mandatory demographic data collection as a racial classification subject to strict scrutiny that may be tested in court.
Further, even if EEO-1 reporting is rescinded, separate state and local data collection and reporting requirements would remain in effect, and states may seek to fill the gap by imposing additional workforce demographic data collection requirements.
Next Steps
The NPRM provides for a thirty-day public comment period following its formal publication in the Federal Register. A public hearing is scheduled for August 11, 2026, at the EEOC’s headquarters. Requests to testify must be submitted by August 7, 2026.
Employers and other stakeholders may want to consider submitting comments on the proposal and should stay tuned to forthcoming developments and further details.
Ogletree Deakins’ Diversity, Equity, and Inclusion Compliance, Government Contracting and Compliance, and Workforce Analytics and Compliance practice groups will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion Compliance, Employment Law, Government Contracting and Compliance, and Workforce Analytics and Compliance blogs as additional information becomes available.
This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ Administration Resource Hub.
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