Should Employers Continue to Collect Racial/Sexual Data for the EEO-1 Report Likely to Be Discontinued?

On July 23, 2026, the Equal Employment Opportunity Commission (EEOC) published a proposed rule to discontinue EEO-1 reports.  These requirements have applied to employers with 100 or more employees and require the collection and reporting of various types of racial, ethnic and sex data.  Should the requirement be discontinued, employers may wonder whether they should continue to collect such data.

While no deadline has been set for filing EEO-1 reports for 2026, the requirement has not yet been legally discontinued.  It would be premature to cease gathering such data now.  Further, a few states have similar reporting requirements.

Second, the situation must be distinguished between gathering data for EEO-1 reports which relate to current employees, as opposed to gathering such data from job applicants.  The latter issue relates to affirmative action plans under Executive Order 11246, which has been revoked.  This writer believes that applicant data pertaining to race, sex and ethnicity, should not be recorded and retained.  While there is an argument that the Uniform Guidelines on Employee Selection Procedures do require the collection of such data, it is a questionable view and generally not been found binding.  The collection of applicant flow data makes it much easier for plaintiffs to make out a case of disparate impact discrimination, a contention that the employers hiring criteria adversely affects disproportionately certain minority or sexual groups.  Therefore, this writer believes the collection of applicant flow data, currently probably not required by federal law, is not a best practice.

The collection of demographic data on current employees is a closer question.  Even if not required by law, some employers may choose to gather such data to not only self-evaluate their equal employment practices, but also potentially to use such data as a defense to a discrimination claim.

A compromise answer to this question is to collect current employee demographic data for auditing purposes with the assistance of legal counsel, in hopes that the data will be protected under the attorney/client privilege.  It would arguably allow the best of both worlds, as the privilege could be waived by the company if it decided to later use the data for defensive purposes in a discrimination case. 

This article is part of our October 2026 Newsletter. 

View the newsletter online

Download the newsletter as a PDF