EEOC’s August 11, 2026 Public Hearing Provides a Preview of the Comments That Will Be Submitted In Response to the Proposed Elimination of Race and Sex Data Reporting Obligations

On August 11, 2026, the Equal Employment Opportunity Commission (EEOC) held a public hearing regarding its July 23, 2026 notice of proposed rulemaking to stop collecting race and sex data from private and public employers via the EEO-1s, EEO-3’s, EEO-4’s, and EEO-5’s.^[1]

The timing of the July rescission notice and the August hearing suggests the possibility that EEOC is trying to accomplish the rescission prior to September 30, 2026 in order to avoid the EEO-1 data collection for 2025.

Importantly, even if the EEOC eliminates the collection of data from employers via the EEO-1 form, Section 709(c) of Title VII of the Civil Rights Act of 1964 still requires employers to “make and keep such records relevant to the determinations of whether unlawful employment practices have been or are being committed” and “preserve such records for such periods” as the Commission requires.

In addition, several states require employers to collect race and gender demographic data on applicants and employees and report that information in connection with state affirmative action obligations and pay data reporting, for example.

The August 11, 2026 Public Hearing: Arguments For and Against the Proposal

Of the 22 individuals who testified at the EEOC’s hearing, 16 opposed removing the EEO-1 filing requirement, and 6 supported the EEOC’s proposal to rescind the report.

Some of the arguments in favor of keeping the EEO-1 data collection and against the EEOC’s proposal to stop collecting the data include:

• Federal void may create state burdens: Whenever the federal government abandons a uniform data reporting obligation such as this one, it is reasonably likely to expect that some states will seek to fill the void, and then multi-state employers face the very real possibility of having different data collection and filing requirements across different states, which will increase their overall burden. For example, several states established various different pay data reporting obligations after EEOC abandoned the EEO-1 pay data collection efforts that it initiated.
• Utility of the data for employment trend research: The EEOC previously has aggregated employer data and allowed employers and social scientists to research this data by year of submission, geographic region, NAICS code (industry code), EEO-1 category, race and sex. The data was highly informative in identifying trends and patterns across industries and regions of the country, and was the only source of stratified data that looked at Executive & Senior Level Officials and Managers, First & Mid-Level Officials and Managers, Professionals, Technicians, Sales Workers, Administrative Support Workers, Craft Workers, Operatives, Laborers & Helpers, and Service Workers, with race, ethnicity, and sex demographics.
• The EEOC’s Arguments Lack Evidence: The EEOC has presented no evidence to support its assertion that requiring employers to report data by sex and race/ethnicity has resulted in employer decisions to favor “minority” groups. We’ve worked with employers in preparing and using their EEO-1 reports for decades. We have never seen this occur.
• The Administration is Taking Inconsistent Positions Regarding Collection of Race and Sex Data: While the EEOC seeks to rescind the EEO-1 report on equal protection grounds, the Department of Education imposed new data reporting requirements on certain universities and graduate schools by requiring them to report race and sex information of applicants as part of their Integrated Postsecondary Education Data System (IPEDS) reports. This undermines the EEOC’s framing that the rescission is a principled policy decision aligned with legal requirements and instead suggests that the Administration will require data reports that it believes will support its talking points political positions and eliminate data reports that might undermine their talking points and political positions. The current EEOC majority purports that there is a rampant pattern or practice of disparate treatment of workers in the name of diversity, equity, and inclusion. Just as the Department of Education believes that collection of admission data by race and sex will help it identify race-based admission decisions, presumably the EEO-1 forms would bear out the pattern of incongruous preferences for minority workers. Notably, EEOC didn’t even reference the EEO-1 reports themselves as evidence of favoritism for minority workers. On a macro level, the data has shown the opposite of this. Perhaps, that fact alone is the basis for EEOC’s speculative assertion that employers discriminate in favor of minorities as a result of compiling EEO-1 data. Regardless, it seems convenient to the Administration’s political objectives to end EEO-1 reporting given that it has consistently shown underrepresentation of women in management positions and certain race/ethnicity groups in both professional and management positions. In short, when it suits the administration to impose collection of data by race and sex to further the anti-DEI agenda in college admissions, the data collection requirement is lawful, but when it does not suit the administration to collect race and sex data from employers, the requirement allegedly is unlawful and potentially unconstitutional. The very arguments for the elimination of the reports don’t hold up to scrutiny.
• EEOC’s Employer Burden Estimates Reveal a Low Burden: The EEOC asserts that the EEO-1 reporting requirement is burdensome on employers. Yet, the EEOC’s own burden estimates show the contrary. EEOC estimates that a single establishment employer (one work location) would have to spend 45 minutes per year to upload data, and the average multi-establishment employer would have to spend 200 minutes per year (3.3 hours) to upload data. This is nearly nothing for reports that create significant insights regarding national employment trends and potentially offer helpful context when assessing and investigating patterns or practices of disparate treatment (as well as disparate impact).
• The EEOC’s Own Burden to Analyze or Aggregate the Data Also is Low: Regarding the government’s burden to collect it, the EEOC estimated that it would cost the government $35.38 per employer to collect and aggregate the data. The total cost to collect and analyze the data across all employers is .8% of its FY27 budget request. Again, the very burden estimates in EEOC’s proposal contradict its burden claims.

Supporters largely echoed the EEOC’s arguments:

• Compelling employers to assign a race and gender label to employees who have not self-identified is an unconstitutional race classification.
• Employers could use this data to try to balance their workforces and thereby discriminate in employment.
• The race categories are arbitrary, overbroad, and underinclusive.
• The data does not tell the EEOC anything about actual discrimination and thus is not needed for the agency’s nondiscrimination enforcement mission.
• EEOC enforces laws prohibiting discrimination based on pregnancy, disability, religion, and national origin, but does not collect data on those categories — proving that the EEOC can accomplish its non-discrimination mission without that data;
• It is burdensome to require hundreds of thousands of employers to classify and report workforce demographics every year.

Administrative Procedure Act Issue

Although the EEOC’s proposed rescission in the Unified Agenda envisioned a 60-day comment window between NPRM publication in July 2026 and NPRM Comment Period End in September 2026, the EEOC shortened the comment period to 30 days in what we suspect is its effort to finalize the rescission before the yearly reporting deadline.

Other Thoughts

In sum, it is worth reiterating: whether employers no longer have to report this data to the EEOC does not prohibit employers from requesting the voluntary submission of race/ethnicity and sex data at the time of hire and maintaining these records. Employers should continue to ensure (as they always have done) that recruiters and supervisors do not have access to this data. Employers should ensure that the data is closely-held and is used for lawful purposes only.

The EEOC has made it crystal clear that it intends to prioritize and pursue class action cases and systemic pattern-and-practice disparate treatment investigations. It said so in its National Enforcement Plan and in its FY27 budget request to Congress. We believe that it is risky for employers to not be evaluating their employment data. Employers should not be blind to whether their data shows incongruities in hiring, promotion, termination, and compensation by race/ethnicity or sex. These analyses serve as an audit of all potential biases, including patterns of disparate treatment in the name of diversity, equity, and inclusion. Employers are best served by looking into what explains the data discrepancies well before they receive a charge or are subject to an investigation. Those employers can be confident that they either will be able to defend their practices or are proactively implementing changes to correct problematic practices ahead of time before they are subject to a charge or investigation. Moreover, it’s simply best practice to proactively ensure nondiscrimination in employment, when the data shows a potential issue.

THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.