October 31, 2023 opens the reporting period for private sector employers and federal contractors who are required to report workplace demographic data on an annual basis to the U.S. Equal Employment Opportunity Commission (“EEOC”). These submissions are known as EEO-1 Component 1 reports (“EEO-1 reports”). EEO-1 reports must be submitted by the close of the reporting period on December 5, 2023. Now is the time to review your business’ status for EEO-1 reporting, and how to comply with any requirements so as to avoid consequences for a failure to report. This “Back to Basics” blog post provides a review of frequently asked questions and issues related to EEO-1 reporting requirements.

Who is required to submit an EEO-1 report?

All private sector employers that are subject to Title VII and have 100 or more employees must comply with EEO-1 reporting. Private employers subject to Title VII who have fewer than 100 employees may also be required to report if they are affiliated with another employer such that the employers constitute a single or integrated enterprise with 100 or more employees collectively.

In addition, federal contractors must comply if they have 50 or more employees, are either prime contractors or first tier subcontractors, have a contract or subcontract amounting to $50,000, and are otherwise not exempt from the Equal Opportunity Clause under 41 CFR 60-1.5.

What time period is covered by the annual report?

Employers must provide data from an employer-selected pay period from the fourth quarter (October 1–December 31) of the reporting year, known as a “workforce snapshot period.”

Data from the selected pay period is also used to establish whether an employee has met the required threshold for number of employees. Starting next year, when employers must report their data from 2023, employers who meet the threshold at any point during the fourth quarter cannot avoid the EEO-1 reporting requirement by selecting a workforce snapshot period during which the number of employees falls below the threshold.

What information is included in an EEO-1 report?

The EEOC requires reporting of job classification, sex, and race or ethnicity data of all employees. As detailed in its EEO-1 instruction booklet, the EEOC uses specific categories of job classification and race or ethnicity and provides instructions for assigning employees into those categories. The EEOC’s categorization for sex provides only binary options, though employers may voluntarily report data for non-binary employees through adding comments to their reports. The data must cover all employees from the workforce snapshot period, including those who work remotely, at client sites, and part-time.

An employer that operates out of a single physical location submits only one annual EEO-1 report, called a Single-Establishment Employer Report. Employers with multiple establishments must submit the following reports: 1) Headquarters Report: covering employees who report to the employer’s headquarters; 2) Establishment-Level Report(s): covering employees who report to each non-headquarters establishment; and 3) Consolidated Report: which, starting this year, will be auto-generated from the Headquarters and Establishment-Level reports to populate data covering all employees.

How does an employer submit an EEO-1 report?

The EEOC only accepts EEO-1 data through its online portal, EEO-1 Component 1 Online Filing System (“OFS”). Data can be submitted manually or uploaded through a data file that meets the EEOC’s data file upload specifications, which provide instructions and examples of how to categorize and format the required data.

What is the deadline for submitting an EEO-1 report?

This year, data from the 2022 reporting period must be submitted to the EEOC between October 31 and December 5, 2023.

What are the penalties for not filing an EEO-1 report?

This year, if an employer misses the reporting deadline, the EEOC will issue a “Notice of Failure to File,” which will instruct the employer to submit their data no later than January 9, 2024. After this second deadline passes, the EEOC will no longer accept data from the 2022 reporting period. Although there are no financial penalties, the EEOC may seek an order from a U.S. District Court to compel an employer to file a report.

What steps should an employer take when submitting an EEO-1 report for the first time?

Determine eligibility: Employers filing for the first time must determine eligibility and whether they qualify as a single- or multi-establishment employer.

Register on OFS: Employers should select an individual responsible for filing their EEO-1 report, who will create an account on the OFS log-in portal and register the employer as a first-time filer.

Gather and categorize required data: Following the EEOC’s guidelines for categorization, the employer should work with its HR department to gather the relevant data of all employees from the selected fourth-quarter pay period (number of employees, job categories, sex, and race or ethnicity).

Employers should carefully review the EEOC’s instruction booklet and FAQs for guidance on categorizing employees and gathering employee data. The EEOC’s preferred data collection method for demographic information is to allow employees to self-identify, but if employees decline, employers can use employment records or observer identification. Employers often collect this information through an employee survey, administered at onboarding or afterwards. Care should be taken as to how EEO-1 data is gathered and stored so as to avoid potential discrimination claims.

Complete reports: Employers should assemble EEO-1 reports as needed based on the employer’s number of establishments. Employers should reference the EEOC’s data file upload specifications and sample EEO-1 reports on the OFS portal to ensure compliance.

Submit and retain records: Employers must submit their required EEO-1 reports on OFS by the December 5, 2023, deadline. The last step of submission requires an employee designated as a certifying official to certify the employer’s reports in OFS. Following submission, employers are required to retain their EEO-1 reports for one year. Many employers retain these reports for a longer period of time pursuant to their individual record retention policies.

Ballard Spahr regularly works with employers on employment law compliance issues to assess employer responsibilities for proper reporting to state and federal government agencies and to update policies and procedures and train management staff and work collaboratively with human resources departments and in-house counsel on equal opportunity employment matters.