In their effort to monitor compliance with federal anti-discrimination statutes and equal employment opportunity requirements, certain employers must submit reports to the Equal Employment Opportunity Commission (EEOC) and Office of Federal Contract Compliance Programs (OFCCP) each year.  These reports, known as EEO-1 reports, contain workforce statistics regarding the racial and gender makeup across a pre-defined set of job classifications.  Since this year’s reporting window begins in July, now is the time for employers to gain a complete understanding of what is required.

Three categories of employers must file the EEO-1 report:

1. Private employers with 100 or more employees;

2. Private employers with less than 100 employees if affiliated with, owned, or controlled by another company, where the employees of the related companies total 100 or more employees; and

3. Federal contractors, if they are not exempt, have 50 or more employees, and qualify as either (a) a prime contractor or first tier subcontractor with a $50,000 contract or purchase order; (b) depositories of government funds, or (c) financial institutions issuing or paying agents for U.S. bonds and notes.

Whereas employers doing business at a single location must file only one EEO-1 report, a so-called “multi-establishment employer” must file a set of reports together in a combined package.  That set includes data for the employer’s headquarters, a listing of its branch operations, data for each branch operation with 50 or more employees, and a consolidated report.

Web-based EEO-1 report filing is preferred by the EEOC. An online procedure has been designed to minimize the time needed to satisfy actual report filing and to provide access to up to 10 years of historical information about an employer's establishments. The on-line system, located at www.eeoc.gov/eeo1survey, requires a login ID and password, which employers who have filed EEO-1 reports in the past customarily receive in a mailing from the EEOC sent out each June.   First-time EEO-1 report filers must apply for a company number through the EEOC website.

EEO-1 reports must be filed by September 30 of each calendar year.  An employer can choose to report workforce data taken from any pay period that occurs in the months of July, Augusta or September.  To collect the data reported, employers may rely on post-hire information in its possession or can conduct visual surveys of the workforce.  Employers should not ask employees directly for race and gender information needed to complete its EEO-1 report.  From year to year, employers are also required to explain key changes in data from the previous year’s report. 

The preparation and submission of EEO-1 reports is more than a bureaucratic, recordkeeping exercise.  Data compiled and provided to the EEOC is consulted in connection with that agency’s audit and enforcement activities.  The data contained in EEO-1 reports have also been used in Title VII litigation on numerous occasions.  Plaintiffs seek to introduce the information contained in these reports as evidence to establish a prima facie case of discrimination.  Defendant employers use them to rebut circumstantial evidence of alleged discriminatory trends in hiring and promotions.  The main point is that the law requires the annual preparation and filing of EEO-1 reports; it is not voluntary.  Although federal law does not provide for specific penalties for an employer’s failure  to make the requisite filing, under section 709(c) of Title VII, the EEOC may compel an employer to file by obtaining an order from a U.S. District Court.