A vote on July 21, 2026, was 2-1 by the EEOC Commissions to end workforce demographic data collections. A notice of rulemaking must appear in the Federal Register for a 30-day comment period, after which the Agency can convene again to finalize the rescission. The EEO-1 reports require employers with 100 or more employers, or federal contractors with over 50 workers, to submit annual workforce demographic data by job category, sex, race or ethnicity. The Commission has in the past used the information for enforcement and research, as well as supporting company self-assessments. EEOC Chair Andrea Lucas stated that: “The Commission’s EEO reporting requirements may have the unintended consequence of promoting rather than reducing discrimination, because of the mistaken view that it is permissible for employers to take race and sex-based actions to correct statistical imbalances.”
Even should the EEO-1 requirement be eliminated, there is some argument that the Uniform Guidelines on Employee Selection Procedures, issued in 1978, require the maintenance of records disclosing the impact of selection procedures for people identifiable by race, sex, or ethnic group. There is an argument that the Guidelines require companies to continue to maintain the data even without submitting EEO-1 forms. In any event, should the Uniform Guidelines be eliminated by the EEOC, it is clear there is no obligation under Title VII itself to create or maintain such demographic records. Some employers believe that regardless of requirements, obtaining such data can be helpful to employers for self-evaluation.
Editor’s Note: There is a great deal of controversy even among the employer community as to whether maintaining racial data on applicants and employees is helpful or dangerous. Some commentators argue that the maintenance of such data helps an employer to defend discrimination claims, and further some states such as California have state laws requiring the maintenance of such demographic data. Others say the maintenance of such data by employers allows plaintiffs to prove their case that discrimination has occurred as revealed by the employer’s own data. Otherwise, plaintiffs would have a much more difficult time finding proof of the race and sex of the comparable employees or applicants in question.
It should also be noted in its National Enforcement Plan released on June 4 of this year, the EEOC said company policies that allow sharing data about employee’s race or sex by non-HR personnel could constitute a discriminatory DEI practice, at least under some circumstances.
This is an area where caution and legal advice from competent employment law counsel is necessary. Also, individual employers may have different approaches to such issues.
This article is part of our September 2026 Newsletter.
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