How does the EEOC's proposal to remove EEO-1 reporting impact employers?

On July 21, 2026, the EEOC voted 2-1 to issue a Notice of Public Rule Making proposing to remove form EEO-1 reporting and related recordkeeping requirements. Federal Register :: Removal of Reporting Requirements Form EEO-1 is the annual form the EEOC has used since 1966 to collect race and sex demographic data from employers with over 100 employees and federal contractors with 50+ employees. Forms EEO-2 (labor-management committees that control apprenticeship programs), EEO-3 (labor organizations), EEO-4 (state and local governments), EEO-5 (elementary and secondary school systems), and EEO-6 (higher education) are also on the chopping block.

Note, however, that the EEOC has not historically required submission of EEO-2 or EE0-6 for many years now, so the removal of those forms is of modest impact The rule also falls short of proposing removing all recordkeeping requirements of employment actions generally, and it cannot remove the apprenticeship recordkeeping requirement, codified at 29 CFR Part 1602.2, which is a requirement of Section 709(c) of Title VII of the Civil Rights Act.

The EEOC’s legal argument for abrogating longstanding EEO-1 practices is that regulations concerning race must pass strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment to the Constitution, meaning use of the EEO-1 reporting form must be narrowly tailored to support a compelling government interest. The EEOC has articulated a concern that the current reporting schematic, in effect for 60 years, is unconstitutional because collecting the demographic data could foster improper decision-making based on protected characteristics and imposes substantial costs on employers and the Commission. This rationale comes on the heels of last year’s Supreme Court ruling in Ames v. Ohio Department of Youth Services that did away with a heightened burden-of-proof analysis for reverse racism cases.

In support of the proposal, the EEOC asserts that the Commission may continue to request the same demographic information as needed in conjunction with their active investigations, without needing to otherwise collect the data via EEO-1 forms. While the EEOC did not elaborate on its analysis of the lower “intermediate scrutiny” burden to prove constitutionality for the EEO-1 collection of sex demographics, it assumed the current EEO-1 reporting also would not be substantially related to meeting an important government objective.

On August 11, 2026, the Commission held a public hearing to receive oral comments on the proposal, and the written comment period closed August 24, 2026. A recording of the public hearing is available at the EEOC’s website at the following link: Meeting of August 11, 2026 | U.S. Equal Employment Opportunity Commission. Most importantly for employers, there is no new rule yet, so employers should continue to abide by their required reporting obligations until further notice.

However, employers may be wondering—what is the practical impact on their business if and when the rule does go into effect?

Navigating Demographic Data in the Current Landscape

To collect or not to collect the data? That is the question. Once the EEOC’s rulemaking goes into effect, employers may no longer be required by the EEOC to report their data, but the EEOC has made it clear they may still ask for it in the context of a pending investigation. At some point or another, an employer may be asked to provide the data, and discrimination claims may independently trigger such a preservation obligation, so employers should be discussing with their counsel how best to preserve this data in the most legally beneficial and defensible matter.

 As many employers know, demographic data can be very helpful in the defense of employment litigation. Now, however, it might very well be used against an employer to suggest that hiring criteria improperly took into consideration protected status in violation of Title VII.  Likewise, while the EEOC is deprioritizing its own enforcement of disparate impact Title VII cases, the administrative agenda offers little comfort for employers as courtroom litigants. Whether or not the EEOC takes on a case usually has no impact on a Claimants receiving their “Right to Sue” notices, and case law remains plentiful to supports such claims. In short, employers must be mindful of both the EEOC’s enforcement agenda and the enduring law decided in courtrooms.