Agency Information Collection Activities: Existing Collection
| Citation | 85 FR 16340 |
| Record Number | 2020-06008 |
| Published date | 23 March 2020 |
| Section | Notices |
| Court | Equal Employment Opportunity Commission |
Federal Register, Volume 85 Issue 56 (Monday, March 23, 2020)
[Federal Register Volume 85, Number 56 (Monday, March 23, 2020)]
[Notices]
[Pages 16340-16349]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-06008]
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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Agency Information Collection Activities: Existing Collection
AGENCY: Equal Employment Opportunity Commission.
ACTION: Notice of information collection--request for new control
number and approval of collection: Employer Information Report (EEO-1)
Component 1; revision of existing approval for EEO-1 Component 2.
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SUMMARY: In accordance with the Paperwork Reduction Act (PRA), the
Equal Employment Opportunity Commission (EEOC or Commission) announces
that it has submitted to the Office of Management and Budget (OMB) a
request for a three-year PRA approval of Component 1 of the Employer
Information Report (EEO-1). The EEOC is seeking OMB approval to remove
Component 1 from OMB control number 3046-0007 and assign it a new PRA
control number. The EEOC is not submitting a request to approve
Component 2 of the EEO-1 collection.
DATES: Written comments on this notice must be submitted on or before
April 22, 2020.
ADDRESSES: Written comments and recommendations for the proposed
information collection should be sent within 30 days of publication of
this notice to www.reginfo.gov/public/do/PRAMain. Find this particular
information collection by selecting ``Currently under 30-day Review--
Open for Public Comments'' or by using the search function. Commenters
are also encouraged to send comments to the EEOC using any of the
following methods--please use only one method:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the
instructions on the website for submitting comments.
Mail: Comments may be submitted by mail to Bernadette B. Wilson,
Executive Officer, Executive Secretariat, Equal Employment Opportunity
Commission, 131 M Street NE, Washington, DC 20507.
Fax: Comments totaling six or fewer pages can be sent by facsimile
(``fax'') machine to (202) 663-4114. (This is not a toll-free number.)
Receipt of fax transmittals will not be acknowledged, except that the
sender may request confirmation of receipt by calling the Executive
Secretariat staff at (202) 663-4070 (voice) or (800) 669-6820 (TTY).
(These are not toll-free telephone numbers.)
Instructions: All comments received must include the agency name
and docket number. All comments received will be posted without change
to http://www.regulations.gov, including any personal information
provided. However, the EEOC reserves the right to refrain from posting
libelous or otherwise inappropriate comments, including those that
contain obscene, indecent, or profane language; that contain threats or
defamatory statements; that contain hate speech directed at race,
color, sex, national origin, age, religion, disability, or genetic
information; or that promote or endorse services or products.
All comments received, including any personal information provided,
also will be available for public inspection during normal business
hours by appointment only at the EEOC Headquarters' Library, 131 M
Street NE, Washington, DC 20507. Upon request, individuals who require
assistance viewing comments are provided appropriate aids such as
readers or print magnifiers. To schedule an appointment to inspect the
comments at the EEOC's library, contact the library staff at (202) 663-
4630 (voice) or (800) 669-6820 (TTY). (These are not toll-free
numbers.)
FOR FURTHER INFORMATION CONTACT: Rashida Dorsey, Ph.D., MPH, Director,
Data Development and Information Products Division and Senior Advisor
on Data Strategy, Office of Enterprise Data and Analytics, Equal
Employment Opportunity Commission, 131 M Street NE, Washington, DC
20507, (202) 663-4355 (voice) or (202) 663-7063 (TTY). Requests for
this notice in an alternative format should be made to the Office of
Communications and Legislative Affairs at (202) 663-4191 (voice) or
(202) 663-4494 (TTY).
SUPPLEMENTARY INFORMATION:
I. Background
A. The EEO-1 Report
Since 1966, the EEOC has required EEO-1 filers to submit
demographic data (Component 1) on an annual basis. All private
employers that are covered by Title VII of the Civil Rights Act of
1964, as amended (Title VII) \1\ and that have 100 or more employees
are required to file Component 1 data. In addition, Office of Federal
Contract Compliance Programs (OFCCP) regulations require certain
federal contractors to file the EEO-1 if they have 50 or more employees
and are not
[[Page 16341]]
exempt as provided for by 41 CFR 60-1.5.\2\
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\1\ 42 U.S.C. 2000e, et seq.
\2\ Unless otherwise noted, the term ``contractor'' refers to
federal contractors and first-tier subcontractors that satisfy the
employee and contract size coverage criteria that subject them to
the EEO-1 reporting obligations. The term ``private employers'' or
``private industry'' refers to all other entities required to file
the EEO-1 that are not included in the ``contractor'' designation.
The terms ``employer,'' ``covered employer,'' or ``filer'' refer to
all entities that are required to file EEO-1 data.
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B. The 60-Day Notice: The Commission's Statement of Intention for the
EEO-1
On September 12, 2019, the Commission published a Notice in the
Federal Register announcing its intention to seek OMB approval for a
three-year PRA authorization to collect EEO-1 Component 1 data from
covered employers (``60-Day Notice''). The 60-Day Notice also stated
the Commission's intention to request that OMB remove Component 1 from
OMB control number 3046-0007 and provide a new control number.\3\ In
the same 60-Day Notice, the Commission announced that it did not intend
to seek OMB approval of PRA authorization for Component 2 of the EEO-1
(the summary pay data component). The Commission reached the decision
to renew Component 1 but not Component 2 based on its assessment of the
proven utility of Component 1 data and the uncertain utility of
Component 2 data, balanced against updated calculations of the burden
that the Components 1 and 2 collections impose on covered employers, as
defined by the PRA. In the Notice, the Commission requested public
comments during a sixty-day period ending November 12, 2019 (hence the
Notice is referred to as the ``60-Day Notice''). In addition, on
November 20, 2019, the Commission held a public hearing pursuant to
Section 709(c) of Title VII. 42 U.S.C. 2000e-8(c) and considered the
testimony of six witnesses representing both employer and employee
stakeholders, as well as labor economists.\4\
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\3\ 84 FR 48138. The Commission voted to approve this 60-Day
Notice in September 2019. Chair Janet Dhillon was sworn in as a
Commission member on May 15, 2019, ending a four-month period during
which the Commission lacked a quorum and therefore could not
consider or approve documents like the 60-day Notice. There also was
a partial government shutdown from December 22, 2018-January 25,
2019.
\4\ See Notice of public hearing on proposed EEO-1 Report
amendments, 84 FR 59619. The press release on the hearing is
available at EEOC Examines the Efficacy of EEOC's Pay Data
Collection Model (Nov. 20, 2019), https://www.eeoc.gov/eeoc/newsroom/release/11-20-19.cfm. More information about the hearing is
available at EEOC, Hearing of November 20, 2019--Public Hearing on
the Proposed Revisions of the Employer Information Report (EEO-1),
https://www.eeoc.gov/eeoc/meetings/11-20-19/index.cfm.
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C. Factors Necessitating the Intended Positions in the 60-Day Notice
(1) EEO-1 Components 1 and 2 Now Have Different Timelines
In 2016, the EEOC sought OMB approval under the PRA to collect
specific summary pay data as Component 2 of the long-established EEO-1
report. On September 29, 2016, OMB authorized the EEOC to collect
Component 2 data for calendar years 2017 and 2018 under OMB control
number 3046-0007, with the first filing deadline being March 31, 2018
(for 2017 pay data). This OMB approval also authorized the EEOC to
collect Component 1 EEO-1 data for calendar years 2016, 2017, and
2018.\5\
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\5\ These Component 1 collections were timely, except for the
collection of 2018 Component 1 data, which was delayed due to the
partial government shutdown from December 22, 2018 through January
25, 2019. The filing deadline for that 2018 collection was extended
to May 31, 2019.
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On August 29, 2017, OMB exercised its authority under the PRA to
initiate a review of the Component 2 collection and stay the EEOC's
collection of Component 2 data, but not Component 1 data.\6\
Subsequently, the National Women's Law Center and the League of United
Latin American Citizens (LULAC) challenged this action in court and, on
March 4, 2019, the court in National Women's Law Center, et al. v.
Office of Management and Budget, et al., Civil Action No. 17-cv-2458
(D.D.C.), vacated OMB's stay of Component 2. The court ordered that
OMB's September 29, 2016 PRA approval of the revised EEO-1 was in
effect. On April 25, 2019, the court further ordered that the PRA
approval for the EEO-1, including Component 2 data, under OMB control
number 3046-0007, would expire no later than April 5, 2021. The court
also ordered that the collection of Component 2 data would not be
deemed complete until the percentage of filers submitting Component 2
reports equaled or exceeded the mean percentage of EEO-1 reporters that
actually submitted EEO-1 reports in each of the past four reporting
years. The court ordered the EEOC to collect Component 2 data for 2017
and 2018 with a submission deadline for covered employers of September
30, 2019. On October 29, 2019, the court ordered the EEOC to continue
to collect Component 2 data through January 31, 2020, and on February
10, 2020, the court ordered that the EEOC's collection of Component 2
data was complete. This case is now pending on appeal before the U.S.
Court of Appeals for the D.C. Circuit. National Women's Law Center, et
al. v. Office of Management and Budget, et al., Case No. 19-5130 (D.C.
Cir.).
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\6\ During the term of this stay, the EEOC collected Component 1
data for reporting years 2017 and 2018.
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The EEOC must now seek PRA authorization from OMB to continue to
collect EEO-1 data for calendar years 2019, 2020, and 2021. To minimize
confusion in light of the above-referenced litigation involving
Component 2, the EEOC is asking OMB to approve Component 1 under a new
OMB control number.
(2) EEO-1 Burden Calculations in 2016 Were Based on Incorrect
Assumptions
In May 2018, the EEOC created the Office of Enterprise Data and
Analytics (OEDA) with the goal of creating a 21st century data and
analytics program within the agency. OEDA is now staffed largely by
data scientists and statisticians who did not work at the EEOC in 2016
when the Commission developed the 2016 PRA package for the EEO-1. When
the EEOC began preparing materials to seek this PRA approval of the
EEO-1 collection, staff in OEDA revisited the methodology used in 2016
for calculating EEO-1 burden estimates. OEDA staff considered the
methodology the EEOC used prior to 2016 and, significantly, also
referenced Government Accountability Office (GAO) statements \7\ and
OMB instructions \8\ on
[[Page 16342]]
the appropriate methodology for calculating burden estimates in federal
information collections. Per guidance published in a 2018 GAO report:
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\7\ See Government Accountability Office Report GAO-18-381,
``PAPERWORK REDUCTION ACT, Agencies Could Better Leverage Review
Processes and Public Outreach to Improve Burden Estimates,'' July
2018 (GAO Report), https://www.gao.gov/assets/700/693057.pdf.
\8\ ROCIS HOW TO Guide for Agency Users of the (ICR) Module,
April 5, 2017, https://www.rocis.gov/rocis/jsp3/common/ROCIS_HOW_TO_Guide_for_AGENCY_Users_of_ICR_Module-04052017.pdf, p.
105, ] 12. (``Provide estimates of the hour burden of the collection
of information. The statement should: * Indicate the number of
respondents, frequency of response, annual hour burden, and an
explanation of how the burden was estimated. Unless directed to do
so, agencies should not conduct special surveys to obtain
information on which to base hour burden estimates. Consultation
with a sample (fewer than 10) of potential respondents is desirable.
If the hour burden on respondents is expected to vary widely because
of differences in activity, size, or complexity, show the range of
estimated hour burden, and explain the reasons for the variance.
Generally, estimates should not include burden hours for customary
and usual business practices.
* If this request for approval covers more than one form,
provide separate hour burden estimates for each form and aggregate
the hour burdens.
* Provide estimates of annualized cost to respondents for the
hour burdens for collections of information, identifying and using
appropriate wage rate categories. The cost of contracting out or
paying outside parties for information collection activities should
not be included here. Instead, this cost should be included under
`Annual Cost to Federal Government'.'')
A single information collection request may contain multiple
burden hour estimate formulas depending, for example, on whether
there are different forms or different types of respondents. The
total annual burden hour estimate is the sum of all of individual
burden hour estimate formulas. If the information request is for the
maximum 3-year period, then the annual burden estimate is the
average over that 3-year period.\9\
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\9\ GAO Report at p. 8, Footnote a. to Figure 2.
In light of these considerations, OEDA staff concluded that the
EEOC's 2016 burden estimate for the EEO-1 had underestimated the burden
to submit Component 1 and Component 2 data. After Janet Dhillon was
sworn in as Chair of the EEOC on May 15, 2019, she consulted with the
Director of OEDA about the EEO-1 burden calculation and other aspects
of the PRA process.
OEDA staff concluded that the 2016 methodology did not adhere to
the standard approach of OMB and GAO, which was to account for the
burden of filing each different type of the EEO-1 ``report'' (see
explanation below of the five types of EEO-1 reports). Rather, the 2016
burden methodology initially assessed employer burden entirely at the
firm level, assuming that covered employers would use automated data
systems to centralize EEO-1 data collection and then utilize the EEOC's
upload file function to send data to the agency.\10\ Although later
acknowledging that tasks such as data entry would necessarily be
performed at the establishment level, especially if a covered employer
did not use the EEOC's upload file function, the final 2016 burden
methodology still asserted that ``the bulk of the tasks performed in
completing the EEO-1 report will be completed at the firm level due to
the centrality of automation'' and calculated burden at the firm
level.\11\ This assumption led to the conclusion that ``the total
estimated annual burden hour costs for employers and contractors that
will complete both Components 1 and 2 in 2017 and 2018 will be
$53,546,359.08.'' \12\
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\10\ Agency Information Collection Activities; Notice of
Submission for OMB Review, Final Comment Request: Revision of the
Employer Information Report (EEO-1), 81 FR 45479, 45493 (July 14,
2016) (``the EEOC [initially] concluded that most employers would be
filing the EEO-1 with a digital file upload by the time they file
their EEO-1 reports for 2017 and 2018. Therefore, in the 60-Day
Notice, the EEOC reasoned that `each additional report filed [would
have] just a marginal additional cost.' Accordingly, the burden
calculation in the [2016] 60-Day Notice was based on the number of
firms filing one or more EEO-1 reports, not on the number of reports
submitted or the number of separate establishments submitting
reports.'')
\11\ Id. (``Second, the EEOC no longer assumes that all the EEO-
1 reports for 2017 and 2018 will be submitted by one data upload
filed by the firm on behalf of all the establishments. While still
reflecting that the bulk of the tasks performed in completing the
EEO-1 report will be completed at the firm level due to the
centrality of automation, the EEOC's 30-Day Notice recognizes that
there are certain tasks that will be performed at the establishment
level for employers who enter their EEO-1 data directly onto the
Joint Reporting Committee's secure portal. Therefore, the 30-Day
Notice burden calculations are based on the number of hours needed
to complete the tasks at the firm level and also at the
establishment level for the proportion of EEO-1 filers who do not
now use centralized, secure data uploads.'')
\12\ Id.
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By contrast, the methodology used to develop the burden estimates
in this 30-Day Notice returns to the approach used by the EEOC prior to
2016, which accounted for the burden of filing each different type of
EEO-1 ``report.'' The EEO-1 Instructions direct covered employers to
use different reports for different purposes, and OMB and GAO direct
agencies to account for the burden of filing each different kind of
report.\13\ An employer with only a single location files one EEO-1
report--a type 1 EEO-1 report--and an employer with numerous locations
files a corresponding number of EEO-1 ``establishment'' reports, plus a
headquarters report and a consolidated report, as follows: \14\
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\13\ Not all employers are required to file all form types.
\14\ See Table 1 in section V.B. for the projected annual burden
to report Component 1 data in reporting years 2019-2021, by report
type and reporting time.
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A type 2 `Consolidated Report,' which must include all
employees of the employer categorized by race, gender and job category;
A type 3 `Headquarters Report,' which must include
employees working at the main office site of the employer and those
employees who work from home and report to the corporate office. In
addition, a separate EEO-1 report for the headquarters establishment is
required even if there are fewer than 50 employees working at the
headquarters establishment.
A type 4 `Establishment Report' must be submitted for each
physical establishment with 50 or more employees. Employment data must
be categorized by race or ethnicity, gender, and job category.
A type 6 or type 8 `Establishment Report' must be
submitted for each establishment site with fewer than 50 employees:
[cir] An employer choosing to submit type 8 `Establishment Reports'
provides a separate type 8 report for each establishment employing
fewer than 50 employees. Like filers submitting the type 4
`Establishment Report, filers choosing to create a type 8 report enter
employment data categorized by race or ethnicity, gender, and job
category for each type 8 report. The employment data entered for each
such establishment on a type 8 report will automatically populate the
filer's type 2 Consolidated Report on the EEOC's system.
[cir] An employer choosing to submit a type 6 `Establishment List'
should provide the establishment names, complete addresses, and total
number of employees for all physical location where fewer than 50
employees are working. Because the type 6 report does not tally the
number of employees, employers choosing a type 6 data report for each
establishment employing fewer than 50 employees must manually enter
data categorized by race or ethnicity, gender, and job category to the
type 2 `Consolidated Report' to include all company employees.
Accounting for the burden of filing each different type of form or
report, the Commission's September 12, 2019 60-Day Notice concluded
that the burden for Components 1 and 2 of the EEO-1 was $614,391,388 in
2017 and $622,015,798 in 2018.\15\
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\15\ See 84 FR. 48138, 48140-48141. The EEOC uses 2017 and 2018
data as an example because it is the agency's most recent data. For
2017, the EEOC calculates that of the $614,391388, $247,959,388 is
attributable to Component 1 and $366,431,751 is attributable to
Component 2. For 2018, the EEOC calculates that of the $622,015,388,
$250,626,707 is attributable to Component 1 and $371,389,091 is
attributable to Component 2. See footnote 28, infra (describing how
the burden estimates for Component 2 were calculated).
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II. The Public Comments on the 60-Day Notice
The Commission received and posted 11,504 timely public comments in
response to the 60-Day Notice.\16\ The comments were submitted by
individual members of the public, employers, employer associations,
Members of Congress, civil rights groups, women's organizations,
industry and trade groups, human resources organizations, and social
scientists. Several thousand of the posted comments were part of mass
comment-writing campaigns and opposed the proposal not to continue
Component 2.
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\16\ 11,504 timely comments were posted on regulations.gov. One
timely comment was not posted because its content was irrelevant to
the 60-Day Notice and therefore the EEOC determined it was submitted
in error.
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[[Page 16343]]
III. Scope of the Public Comments on the 60-Day Notice
A. Component 1
(1) Summary of 60-Day Notice
The 60-Day Notice announced the Commission's intention to continue
its collection of Component 1 data, even as the EEOC recalculated the
burden on employers and concluded that it was higher than previously
contemplated. Nonetheless, the Commission noted that collection of
Component 1 data is a long-held practice that has occurred for over 50
years and it has already proven its utility to the EEOC's enforcement
of employment discrimination laws in many ways. The 60-Day Notice
recognized that Component 1 EEO-1 data is an important internal
resource for analysis of industries and regions, and also for EEOC
investigators who use the EEO-1 along with other data sources as they
start to assess allegations of discrimination. Under these
circumstances, even with a higher burden estimate, the EEOC concluded
that the continued collection of Component 1 data would be necessary
for the continued effectiveness of the agency.
(2) Summary of Public Comments
Almost all the public comments supported the EEOC's proposal in the
60-Day Notice to continue to collect Component 1 data.\17\ Even while
supporting the proposed continuation of Component 1, however, many
commenters questioned the accuracy of the Component 1 estimated burden
calculation as set forth in the 60-Day Notice. Some of these commenters
stated that the EEOC's higher burden estimate for Component 1 still
underestimated the actual employer burden. Notwithstanding this concern
about the accuracy of the burden estimates, these commenters concluded
that the utility of the Component 1 collection continued to justify the
burden. Other commenters stated that the estimated burden for Component
1 set forth in the 60-Day Notice overstated the burden on employers.
These commenters nonetheless supported the EEOC's proposal to continue
collecting Component 1 data.
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\17\ One anonymous commenter expressed concern about government
oversight generally, and that individuals should turn to internal HR
processes or litigation to address unfair treatment.
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One commenter, representing a consulting firm that assisted clients
with Component 2 filings, suggested the EEOC should discontinue the
Component 1 collection in its entirety and argued that all the
demographic data currently collected on Component 1 could be collected
just as accurately but more efficiently if the EEOC implemented only
Component 2.
A small number of commenters suggested changes to the Component 1
data collection. Two commenters, both of which are firms that assist
clients with EEO-1 reporting, suggested the EEOC should consider
implementing changes that would facilitate the reporting of gender for
non-binary employees.
The few commenters who addressed the EEOC's request for a separate
OMB Control number for Component 1 supported the proposal.
B. Component 2
(1) Summary of 60-Day Notice
The EEOC announced its intention not to seek approval of the
Component 2 summary pay data collection in the 60-Day Notice because it
determined that the uncertain utility of the data was outweighed by the
burden on employers collecting the data. The 60-Day Notice outlined the
EEOC's methodology for calculating the employer reporting burden and
why the EEOC decided to use this methodology. The EEOC explained in the
60-Day Notice that it now calculated the burden by deconstructing the
total number of reports submitted by report type and by filer type, and
then estimating an average burden based on the number and types of
reports submitted.\18\ These estimates account for the different
amounts of time required to complete different types of EEO-1
reports,\19\ and are based on the EEOC's experience during the data
submission process. Even using modest assumptions about the time needed
to complete various EEO-1 reports, as explained in detail in the 60-Day
Notice, the EEOC estimated with this new methodology that the combined
burden hour costs for submitting both Components 1 and 2 was
$614,391,388 in 2017 and $622,015,798 in 2018.\20\ The EEOC concluded
in the 60-Day Notice that the revised burden calculation, which was
substantially higher than the Commission's 2016 burden calculation and
higher than the burden for Component 1, was too high to justify the
continuance of the Component 2 collection, especially in light of
Component 2's uncertain utility.
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\18\ See footnote 2, supra; see also, e.g., Mortality in
Correctional Institutions, 84 FR 1507, 1508-09 (2019).
\19\ Using Component 1 2017 data as the basis for an example of
the new methodology, 75,043 EEO-1 filers submitted a total of
1,597,036 Component 1 reports to the EEOC. Forty percent, or 30,203
filers, submitted a report for only a single establishment. Single
establishment filers are referred to as ``Type 1'' filers by the
EEOC. Each Type 1 filer submitted a single report, yielding a total
of 30,203 reports in 2017. These Type 1 filers have the lowest
burden, with an average estimated burden of 45 minutes annually to
complete their submission of Component 1. Multiple establishment
filers are referred to as ``Type 2'' filers by the EEOC. In 2017,
Type 2 filers accounted for 60%, or 44,840 filers of Component 1,
and in 2017 submitted a total of 1,566,833 reports, or 98% of all
Component 1 EEO-1 reports submitted. Type 2 filers have a higher
reporting burden because they are required to submit a combination
of reports: one type 2 (``consolidation'') report, one type 3
(``headquarters'') report, and a type 4 establishment report, a type
8 establishment report, or a type 6 establishment list for each
establishment. The estimated burden for Type 2 filers varies between
3.5 and 9.5 hours, depending on the report type combination. This
new method for calculating the filers' burden yielded a total
estimated burden of 7,643,874 hours for 75,043 filers to submit
1,597,036 reports for data year 2017. Per U.S. Department of Labor's
Bureau of Labor Statistics wage rates, the associated total annual
burden hour cost is $297,381,066 for required filers. The EEOC
estimates that the total cost of the administration of the EEO-1
Component data collection to the federal government is $2 million
annually.
\20\ The EEOC uses 2017 and 2018 data as an example because it
is the agency's most recent data. Because the 2016 PRA package
combined the Component 1 and 2 burdens for filers that would
complete both Components 1 and 2 in 2017 and 2018, the recalculated
burden reflected in the 60-Day Notice similarly provided a combined
burden calculation for Components 1 and 2 for 2017 and 2018.
However, above the Commission has provided a breakdown of how much
the burden was attributable to each Component. See footnote.15,
supra.
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Because the EEOC must balance the utility of the data to its
enforcement programs against the burden the data collection imposes on
the employers who must submit it, the Commission said in the 60-Day
Notice that it should consider information from the ongoing Component 2
data collection before deciding whether to submit another pay data
collection request to OMB. Without this assessment,\21\ the 60-Day
Notice reasoned that the practical utility to the EEOC's enforcement
program of the pay data as defined in the 2016 Component 2 was far
outweighed by the burden imposed on employers that must comply with the
reporting obligation. For this reason, the EEOC decided not to seek
renewal of the Component 2 summary pay data collection.
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\21\ At the time of the September 12, 2019, 60-Day Notice, the
collection of Component 2 data for 2017 and 2018 was ongoing. The
Component 2 data collection has now been completed, pursuant to the
February 10, 2020 court order in the matter of National Women's Law
Center, et al., v. Office of Management and Budget, et al., Civil
Action No. 17-cv-2458 (D.D.C.) . . .
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(2) Summary of Public Comments
Almost all commenters emphasized the importance of addressing pay
inequity in the U.S. workforce. Many of the commenters who had also
provided input on the original 2016 proposal to
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create Component 2 reiterated the arguments they raised at that time,
whether for or against the Component 2 summary pay data collection.
a. Comments Supporting the Discontinuation of Component 2
Almost all the comments urging the discontinuation of the Component
2 collection were submitted by consultants who provide compliance,
technical and/or human resources assistance to EEO-1 filers, and by
trade and industry groups. Members of Congress also submitted comments
urging the EEOC to discontinue the Component 2 collection. Commenters
sometimes reiterated concerns they had raised in 2016 with the
Component 2 collection and stated that employers' actual experiences
with the 2017 and 2018 Component 2 collections not only validated, but
in some respects heightened, their earlier concerns. These comments
questioned the EEOC's authority to implement the Component 2
collection, expressed concerns about both the burden and the utility of
the Component 2 collection, and expressed unease about the
confidentiality and privacy of the data the EEOC collects. Many
commenters asserted that any EEOC pay data collection should be
undertaken only pursuant to rulemaking, which they argued would provide
for a more robust notice-and-comment process.
With respect to the burden calculations, some commenters indicated
that although the Component 2 burden in the 60-Day Notice was more
accurate than the 2016 estimate, they believed the burden on employers
was even higher than the estimate in the 60-Day Notice due to a number
of factors. These factors included the difficulty matching the W-2, Box
1 information with the demographic data, and complications arising when
employees' employment status changes during the reporting year--for
example, when an employee moves between exempt and non-exempt status,
or from one job category to another. They argued that addressing these
issues required manual adjustments and therefore the Component 2
reporting process could not be fully automated. They noted that even
when an employer used the upload file function it nonetheless had to
expend significant time on manual adjustments and analyses before
uploading the data. Commenters also observed that many of these issues,
as well as complications caused by business changes such as mergers and
acquisitions, meant this burden would not be significantly reduced in
future years.
Similarly, one commenter, a consulting firm representing multiple
businesses, explained why its own experience with Component 2, and that
of its clients, demonstrated that the burden of collecting, organizing,
and filing the data exceeded the firm's own estimates of the burden.
All told, the time actually spent by the firm on first-year
implementation costs as a third-party vendor was approximately 20%
greater than the time it had estimated for this process in the firm's
2016 Component 2 Comments to the EEOC. The firm explained it took 280
hours to update its software to accept employer Component 2 data and
create a data upload file to comply with the Component 2 Data
Specifications. An additional 20 hours of time was spent by the firm's
consultants and subject matter experts advising their programming team
on the Component 2 data requirements, reviewing, and approving the
programming files, and communicating and resolving error messages with
the batch upload file during the Component 2 filing process. Notably,
the consulting firm rejected the notion that in the future employers
would be able to file Component 2 data with little or no burden because
of the time already invested for the 2017 and 2018 collections.
According to the firm, the belief that the burden will be significantly
less for future collections ``reflects a complete misunderstanding of
how employers store and use the data points being collected.'' This is
just one of the numerous examples provided by commenters regarding the
real-world burden experienced in attempting to complete the Component 2
data collection.
Despite expressing concern about pay inequities and reiterating
their commitment to identifying and eliminating unfair pay practices,
many of these commenters concluded the Component 2 summary pay data
collection would be ineffective in addressing pay equity issues. Many
commenters argued that both the W-2, Box 1 data and the hours-worked
data were inaccurate and inappropriate measurements and, when combined
together, created further inaccuracies because the W-2, Box 1 wages,
which include pay for hours not worked, did not correspond with the
hours-worked data. Commenters also argued that organizing the data into
job categories and pay bands resulted in inaccurate and misleading
comparisons. Some commenters also stated that collecting and reporting
aggregate W-2, Box 1 wage data in wide pay bands across broad
occupational categories increases both ``false positives'' (Type 1
statistical errors) and ``false negatives'' (Type 2 statistical errors)
and that extensive Type 1 and Type 2 errors would render the data of
minimal to no utility for attributing any differences observed to the
presence of illegal employment discrimination. Some commenters and some
hearing witnesses (including EEO-1 filers and entities that provide
filing assistance to said filers) said their experience conducting the
2017 and 2018 Component 2 collections demonstrated that the Component 2
pay data would not be useful to them for assessing their own pay
policies and practices and that it was burdensome. Commenters similarly
argued that any EEOC publications of aggregated data organized in pay
bands and job categories would not be useful to employers in
undertaking self-assessments for the purposes of voluntarily complying
with equal pay laws. One economist/consultant who worked with employers
filing Component 2 data testified that the Component 2 pay bands are
unlikely to reflect actual compensation distribution at many companies,
and that Component 2 does not collect any information about the
legitimate factors for pay differentials (e.g., length of employment).
He noted that an employee starting her career would be reported in the
same way as an employee with 30 years of experience in the same
occupation. This consultant also stated that a simulated study found
the predictive value of Component 2 pay data was no better than random
selection (using either Mann-Whitney or compared to other firms).
Some commenters noted that the EEOC failed to implement the
recommendations in the 2012 report from the National Research Council,
National Academy of Sciences (NAS Report).\22\ Many of these commenters
argued that the EEOC failed to implement the NAS Report's
recommendation to conduct a true pilot study. Some commenters argued
that the Commission possibly could have developed a pay data collection
that addressed their utility and burden concerns had it more fully
implemented the recommendations of the NAS Report. Other commenters
suggested there may be no form of pay data collection that would have
sufficient utility to justify the burden on respondents.
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\22\ National Research Council, 2012. Collecting Compensation
Data from Employers. Washington, DC: National Academies Press,
http://www.nap.edu/read/13496/chapter/1#ii.
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[[Page 16345]]
Commenters also expressed concern that the EEOC failed to address
adequately the NAS Report's recommendations that would more adequately
protect the confidentiality of sensitive employer pay data and that
would ensure employee personal identifying information would not be
exposed in any EEOC publications of aggregated pay data. They also
expressed concerns that the pay data may not be adequately protected
from disclosure when it is shared outside the EEOC, including with
OFCCP \23\ and other agencies that are not bound by Title VII's
confidentiality provisions.\24\
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\23\ The EEOC's 2016 Component 2 proposal had reflected the
contemporaneous expectation that the EEOC would share some part of
the Component 2 dataset with OFCCP. As discussed in the ``Data
Sharing'' section below, the EEOC no longer intends to provide any
Component 2 data to OFCCP.
\24\ 42 U.S.C. 2000e-8(e). Title VII forbids the EEOC or any
EEOC officer or employee from making public any information,
including EEO-1 data, before a Title VII proceeding is instituted
that involves that information.
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b. Comments Opposing the Discontinuation of Component 2
Comments opposing the EEOC's decision to discontinue the Component
2 collection were submitted by members of Congress, several employee
advocacy groups representing diverse workers in several segments of the
U.S. workforce, academics, and thousands of concerned individuals. Most
of the thousands of individual comments were submitted as part of
comment-writing campaigns. In many instances, those who had commented
on the EEOC's 2016 proposal reiterated arguments supporting the
Component 2 summary pay data collection that were reflected in those
earlier comments.
Comments opposing the discontinuation of Component 2 generally
argued that Component 2 is a necessary and effective tool for
identifying and addressing the persistent gender and race/ethnicity pay
gaps, and that the decision not to continue the Component 2 collection
undermines the EEOC's ability to combat pay discrimination. They
asserted that Component 2 not only is an essential tool for the EEOC to
fulfill its enforcement mandate, but that it also provides critical
information for workers and employers to help identify pay inequities.
The majority of these commenters also criticized the EEOC for not
addressing and analyzing the utility of Component 2 in the 60-Day
Notice before concluding its utility could not justify the reporting
burden on employers. Commenters stated that the EEOC's burden
calculations were inadequately explained and/or based on faulty
assumptions or calculations.
In addressing the pay gap, commenters focused on how the pay gap
impacts workers, their families, businesses, and the economy as a
whole. Commenters often cited pay gap statistics, frequently focusing
on the pay gap impacting their members and constituents. Commenters
also frequently highlighted statistics showing how the pay gap is wider
for women of color. These commenters concluded that the Component 2
collection was a critical tool for identifying and addressing these pay
inequalities. In addition to serving as a critical tool for the EEOC's
effective and efficient enforcement of equal pay laws, the commenters
argued Component 2 would incentivize employers to voluntarily comply
with those laws and would provide them useful data that will assist
their self-assessments.\25\ Finally, commenters contended the
aggregated data (job categories and pay bands) would help to identify
pay trends in industries and geographic areas, and would also expose
other forms of discrimination such as job segregation.
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\25\ Many of these commenters also argued that the Component 2
data would enhance OFCCP's enforcement efforts.
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Some commenters argued that the EEOC was premature in concluding
that the Component 2 collection was overly burdensome because the 2017
and 2018 collections were still underway when the EEOC reached that
conclusion. These commenters questioned the EEOC's motivations for not
seeking renewal of the Component 2 collection, suggesting the EEOC
should have continued the Component 2 collection and assessed its
burden only after the 2017 and 2018 collections had concluded, thereby
allowing the EEOC to take into consideration the actual experience of
employers who filed Component 2 for 2017 and 2018.
Some commenters asserted that many of the initial implementation
costs of the Component 2 collection have already been incurred by
employers and therefore future Component 2 collections would be less
burdensome; relatedly, they argued that a different form of pay data
collection would increase employer burden. Commenters also argued the
EEOC's burden calculations do not adequately account for how, in the
long term, automation and technology decrease employer burden.
Finally, some commenters contrast the process the EEOC used to
develop the 60-Day Notice burden estimates with the process the EEOC
used to develop the 2016 burden calculations, arguing the 2016 process
was more transparent and the result of many years of careful study and
analysis, in addition to notice and comment under the PRA process and
Title VII's requirement for a public hearing.
c. Comments Specific to the Burden Estimation Methodology
The EEOC also received several comments about the burden estimate
stated in the 60-Day Notice. Some commenters said the 60-Day Notice
inadequately explained the estimated time needed to complete the type 1
and type 2 reports. Some commenters expressed concern about how the
EEOC calculated the burden for single- vs. multi-establishment firms
and about the EEOC's assumptions relating to the time needed to
complete each report. One commenter argues that the GAO guidance
referenced in the 60-Day Notice does not require a calculation based on
number of forms. At least one commenter questioned why the EEOC
included burden calculations for some forms that employers would no
longer use. One commenter suggested that the burden calculation
includes an arithmetic mistake and questioned why the burden
calculation does not assume employers will use only the least costly
and least time-consuming alternatives for filing.
IV. Commission Decisions and Final EEOC Proposals to OMB
A. The EEOC Will Seek Three-Year Extension of the EEO-1, Component 1,
and Request a New OMB Control Number for Component 1
After evaluating the comments and holding a public hearing, the
Commission will seek OMB approval for a three-year extension of
Component 1 of the EEO-1. The EEOC also will request that OMB assign a
new Control number to Component 1, thereby separating it from the
collection of Component 2 data under OMB Control number 3046-0007 that
was ongoing until February 2020. The Component 1 data collection, which
the Commission has conducted for over 50 years, continues to prove its
utility to the EEOC's enforcement of employment discrimination laws on
a regular basis. Component 1 EEO-1 data remains an important tool for
the Commission's enforcement of federal laws prohibiting discrimination
in employment. EEOC investigators use the EEO-1, together with other
data sources, in their assessments of allegations of discrimination.
The EEOC also uses the
[[Page 16346]]
Component 1 data to analyze employment patterns within companies,
industries, or regions. For these reasons, and even with the higher
burden estimate for Component 1 outlined below, as compared to the 2016
burden estimates, the EEOC believes the collection of Component 1 data
is necessary for the proper performance of the agency's functions and
concludes its practical utility to the fulfillment of the EEOC's
mission justifies the burden on employers.
Further, because the EEOC is not seeking renewal of Component 2 for
the reasons addressed below, the EEOC is requesting a new OMB control
number for Component 1 that is separate from the current control number
under which the 2017 and 2018 Component 2 summary pay data collections
were being conducted until February 2020. As noted in the 60-Day Notice
and above, Component 2 approval under control number 3046-0007 will
expire no later than April 5, 2021, by order of the court in National
Women's Law Center, et al. v. Office of Management and Budget, et
al.\26\ A new and separate control number for Component 1 will minimize
confusion for EEO-1 filers.
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\26\ Civil Action No. 17-cv-2458 (D.D.C.) On February 10, 2020,
the court ordered that the 2017 and 2018 Component 2 collections
were complete.
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Because the number of Component 1 filers increased to 87,021 by the
close of data year 2018, the EEOC estimates that the number of filers
required to submit Component 1 will increase again to approximately
90,000 for data years 2019 through 2021. Table 1 below in the
`Component 1' subsection of the Formal Paperwork Reduction Act
Statement section provides a breakdown of the number of estimated
records by type that will be submitted by the estimated 90,000 filers.
Accordingly, the EEOC is calculating the burden estimates in this 30-
Day Notice based on this revised estimate of the number of filers.
B. The EEOC Will Not Seek a PRA Extension of Component 2
The necessity of filing now with OMB to request a new PRA approval
of the EEO-1 requires the EEOC to make decisions based on the
information available. After evaluating the comments and holding a
public hearing, the Commission will not seek OMB approval for an
extension of Component 2. The Commission concludes that at this time it
cannot state that Component 2 data has significant practical utility in
assisting the Commission in fulfilling its mission in combating illegal
employment discrimination. The Commission's decision is supported by
written comments and by testimony at the November 20, 2019 hearing from
those with actual experience collecting Component 2 data.\27\ Based on
the Commission's evaluation of the public comments received in response
to the 60-Day Notice and the agency's own burden calculations,\28\ and
because the PRA requires an agency to demonstrate that the practical
utility of the information collection outweighs the burden of the
collection, the Commission cannot justify continuing to collect
Component 2 data.
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\27\ See the summary of comments in Section III.B.2 above.
\28\ The estimated number of respondents who must file EEO-1
Component 2 data was 62,718 filers for calendar year 2017 and 66,126
filers for calendar year 2018. The estimated number of responses was
1,558,927 for reference year 2017 and 1,588,882 for reference year
2018. The EEOC estimated that about 40% of Component 2 respondents
(23,149 in 2017 and 24,182 in 2018) would report data on a single
establishment, and that it would take these filers an average of 60
minutes per reporting year to complete their Component 2 EEO-1
report. About 60% of Component 2 filers (39,569 in 2017 and 41,944
in 2018) would report data on multiple establishments. Multi-
establishment filers complete both type 2 and type 3 reports, in
addition to completing either a type 4, 6, or 8 report for each
establishment, totaling, 1,535,778 multi-establishment reports for
reporting year 2017 and 1,564,700 multi-establishment reports for
reporting year 2018. Single establishments submitted 23,149 reports
in 2017 and 24,182 in 2018.
For the 2017 and 2018 Component 2 data collection effort, we
estimated that a total of 3,147,809 reports would be submitted.
While the actual time spent by multi-establishment filers varies
based on a number of factors, as noted in the Component 1 section
above, we estimated that it would take a filer, on average, 7.3
hours to complete Component 2 data for 2018. We further estimated
that completing 2017 Component 2 data would be more burdensome for
filers than completing 2018 Component 2 data because filers would
need additional time to locate historical records. As a result, we
estimated that it would take a filer, on average, 7.4 hours to
complete Component 2 data for 2017. We estimated the average burden
for filers to submit 2017 and 2018 Component 2 data to be 7.3 hours.
The collection of EEO-1 Component 2 data for calendar years 2017
and 2018 is estimated to have imposed total burden hours of
22,744,870 for 3,147,809 Component 2 reports. We estimate the total
cost of the 2017 collection ($366,443,051) and 2018 collection of
($371,400,532) Component 2 data to be $737,843,583.
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If the EEOC seeks to pursue a pay data collection in the future, it
will do so using notice and comment rulemaking and a public hearing
pursuant to Title VII \29\ because a pay data collection would be a
significant new collection and reporting requirement. The EEOC believes
that there should be a transparent and open process, aligning with the
recommendations in the EEOC-commissioned 2012 study from the National
Academy of Sciences (NAS), entitled ``Collecting Compensation Data from
Employers,'' (NAS Study),\30\ that the EEOC:
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\29\ See, 42 U.S.C. 2000e-8(c). See also, ``Amendments to the
Regulations at 29 CFR part 1602 to Provide for a Pay Survey'' in the
EEOC's Fall 2019 Regulatory Agenda, https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201910&RIN=3046-AB15.
\30\ National Research Council. 2012. Collecting Compensation
Data from Employers. Washington, DC: National Academies Press.
Available at https://www.nap.edu/catalog/13496/collecting-compensation-data-from-employers.
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1. Develops a plan for using pay data before initiating any data
collection. Clearly articulating the ultimate uses of the data will
help determine both which data elements need to be collected as well as
the best approach to collecting the data to ensure the validity,
reliability, and utility of the data collected.
2. Initiates a scientifically sound pilot study to test the pay
data collection instrument and the plan for the use of the data; and
3. Uses a definition of compensation that is measurable,
collectable, and meaningful.
Further, the EEOC concludes that the 2016 burden estimate was
developed using an inadequate methodology that significantly
underestimated the burden of the Component 2 collection. By contrast,
the methodology used to develop the burden estimates in this 30-Day
Notice returns to the methodology used by the EEOC prior to 2016 and
takes into consideration GAO and OMB guidance on calculating burden
estimates in federal information collections. Commenters' experience
with submitting Component 2 data confirmed the EEOC's revised burden
estimates to submit Component 2 data. These commenters explained why
every year, gathering and submitting Component 2 data would continue to
be very time consuming, and that increased automation would not
meaningfully reduce the burden and drive cost savings. Based on these
comments and the Commission's own calculations, the burden estimate
contained in the 60-Day Notice and this Notice is more accurate than
the 2016 burden estimate.
In response to specific comments about the burden calculations in
the 60-Day Notice, the EEOC responds as follows:
1. Regarding the comments about the estimated time needed to
complete the reports, as the EEOC indicated in the 60-Day Notice and
also concludes in this 30-Day Notice, the estimated average of 45
minutes \31\ each to complete both the
[[Page 16347]]
type 1 and the type 2 report was based on feedback that EEO-1 project
staff received from employers filing type 1 and type 2 reports during
the 2018 EEO-1 Component 1 data collection. As stated above, feedback
from commenters who file EEO-1 reports largely supported the
Commission's revised burden estimates and the determination that the
burden was higher for the EEO-1 than the Commission estimated in 2016.
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\31\ This is the estimate for a single establishment to file
their EEO-1 Component 1 report, which is being used because the
Commission is seeking approval for the collection of Component 1.
The Commission estimates under the burden methodology set forth in
the 60-Day Notice and this Notice. that it would take a single
establishment 60 minutes to file an EEO-1 Component 2 report due to
the additional data elements. See footnote 28, supra.
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2. On the concerns about single vs. multi-establishment firms, the
60-Day Notice explains in detail the calculations for single vs. multi-
establishment firms as well as the estimated completion time for each
type of required report. This 30-Day Notice also explains that
calculation in detail. It also includes Table 1 (see below) to further
elucidate the Commission's approach.
3. Regarding the comment about GAO guidance, as the EEOC explains
in the 60-Day Notice and again in this 30-Day Notice, the GAO report
provides guidance on scientifically sound methods and techniques for
calculating burden for federal information collections. In light of the
GAO guidance, we believe the scientifically sound way to conduct this
data collection is to calculate based on forms. Agency submission of
accurate burden estimates using scientifically sound methods and
techniques is required by the PRA.
4. On the comment about estimating for forms that are no longer
used, all estimates used by the EEOC in both the 60-Day Notice and this
30-Day Notice are based on forms that were actually filed by employers
in the 2018 EEO-1 Component 1 data collection. As the EEOC noted, not
all employers are required to file all form types.
5. Regarding the comment alleging an arithmetic mistake, the burden
calculations in 60-Day Notice do not contain any arithmetic mistakes.
The commenter is attempting to calculate average burden at the
individual employer level which changes the unit of analysis. As the
EEOC explains in both the 60-Day Notice and this 30-Day Notice, the
appropriate unit of analysis for burden estimation is at the form type
level. Additionally, the EEOC does not dictate filing methods (i.e.,
online portal or upload) and employers are free to choose whichever
filing method they deem appropriate.
As required by the PRA, the EEOC has evaluated the significant
burden of the Component 2 collection against its practical utility.
Based on this assessment, the EEOC has concluded that the utility of
the current Component 2 collection does not justify the burden of the
collection on employers. For this reason, the EEOC does not seek OMB's
PRA approval to continue the Component 2 information collection.
C. Data Sharing
Title VII forbids the EEOC or any EEOC officer or employee from
making public any information, including EEO-1 data, before a Title VII
proceeding is instituted that involves that information.\32\ EEOC staff
who violate this prohibition may be found guilty of a criminal
misdemeanor and could be fined or imprisoned.
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\32\ 42 U.S.C. 2000e-8(e). Consistent with these confidentiality
requirements, the EEOC has released aggregate EEO-1 data in the past
that does not reveal the identity of individual filers.
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The EEO-1 data are collected under Title VII and Executive Order
11246. The EEO-1, administered by the EEOC's Office of Enterprise Data
and Analytics, is a single data collection designed to meet the
enforcement data needs of both the EEOC and OFCCP while simultaneously
avoiding duplication. With respect to sharing data with OFCCP, and
consistent with EEOC's updated practices, the EEOC will share with
OFCCP only Component 1 data for federal contractors. Further, in light
of the OFCCP's announcement of its decision not to request, accept, or
use Component 2 data from the EEOC, the EEOC does not intend to provide
any Component 2 data to OFCCP. See, OFCCP Intention not to Request,
Accept, or Use Employer Information Report (EEO-1) Component 2 Data, 84
FR 64932 (Nov. 25, 2019).\33\
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\33\ In the Supporting Statement issued with the 2016 PRA, the
EEOC stated: ``OFCCP will not receive EEO-1 summary pay data for
companies that are not federal contractors under OFCCP's
jurisdiction.'' FINAL EEO-1 Supporting Statement (September 28,
2016). Notwithstanding this statement, the EEOC's practice was to
share all employer Component 1 data with OFCCP (regardless of
federal contractor status). The EEOC has ceased the practice of
sharing all Component 1 employer data with OFCCP and going forward,
the Commission will only provide OFCCP Component 1 EEO-1 data for
federal contractors.
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The EEOC directly imposes Title VII's confidentiality requirement
on all of its contractors, including contract workers and contractor
companies, as a condition of their contracts. With respect to other
federal agencies with a legitimate law enforcement purpose, the EEOC
gives access to information collected under Title VII only if the
agencies agree, by letter or memorandum of understanding, to comply
with the confidentiality provisions of Title VII. For the EEOC, its
agents and contractors, Title VII only permits disclosure of
information after suit is filed in a particular matter on the issues
that were investigated at the administrative level.
With respect to data-sharing with state and local fair employment
practices agencies (FEPAs), Title VII itself states that the EEOC may
only give FEPAs information (including EEO-1 data) about employers in
their jurisdiction on the condition that they not make it public prior
to the institution of a proceeding under state or local law involving
such information.\34\ The EEOC's current practice is to share EEO-1
data with a contracted FEPA only upon request and to share only EEO-1
data for an employer within the FEPA's jurisdiction and only when that
employer is a respondent to a particular charge of discrimination cited
by the FEPA in its data request. Title VII authorizes the EEOC to
decline to honor a FEPA's subsequent requests for information if the
FEPA violates Title VII's confidentiality requirements.\35\
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\34\ 42 U.S.C. 2000e-8(d).
\35\ Id.
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To align with provisions of Title VII, the Federal Information
Security Modernization Act of 2014 (FISMA),\36\ the Foundations for
Evidence-Based Policymaking Act of 2018 (Evidence Act),\37\ and OMB
Memorandum M-19-15 Improving Implementation of the Information Quality
Act issued on April 24, 2019,\38\ the EEOC is modernizing its policies
and procedures concerning data access to EEO-1 data for approved
external data users. The EEOC is reviewing and updating all current
data sharing memoranda with other federal enforcement agencies. The
EEOC will only provide approved users access to the minimum data
necessary to adhere to the specific terms of the relevant memoranda.
Consistent with the requirements of the Evidence Act, the EEOC is
exploring secure mechanisms to facilitate access to EEO-1 restricted
data for approved researchers for statistical purposes and for
developing evidence. As defined by the Evidence Act, ``evidence'' only
means ``information produced as a result of statistical activities
conducted for a statistical purpose.'' See, 44 U.S.C. 3561(6).
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\36\ Public Law 113-283 (2014).
\37\ Public Law 115-435 (2019).
\38\ https://www.whitehouse.gov/wp-content/uploads/2019/04/M-19-15.pdf.
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[[Page 16348]]
V. Formal Paperwork Reduction Act Statement
A. Overview of Information Collection
Component 1
Collection Title: Employer Information Report (EEO-1) Component 1.
OMB Number: 3046-XXXX (previously 3046-0007).
Frequency of Report: Annual.
Type of Respondent: Private employers with 100 or more employees
and certain federal government contractors and first-tier
subcontractors with 50 or more employees.
Description of Affected Public: Private employers with 100 or more
employees and certain federal government contractors and first-tier
subcontractors with 50 or more employees.
Reporting Hours: 9,167,393.
Respondent Burden Hour Cost: $297 million.\39\
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\39\ This estimate is based on the most recent median pay data
from the Bureau of Labor Statistics. We estimated that a computer
support specialist would account for 60% of the estimated hourly
wage; a database administrator would account for 20%; an HR
specialist would account for 10%; legal counsel would account for 5%
and an CEO would account for 5%, for a total estimated hourly wage
of $32.44. See U.S. Dept. of Labor, Bureau of Labor Statistics,
Occupational Outlook Handbook, https://www.bls.gov/ooh/business-and-financial/human-resources-specialists.htm.
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Federal Cost: $2 million.
Number of Forms: 1.
Abstract: Section 709(c) of Title VII of the Civil Rights Act of
1964 (Title VII) requires employers to make and keep records relevant
to the determination of whether unlawful employment practices have been
or are being committed, to preserve such records, and to produce
reports as the Commission prescribes by regulation or order.\40\
Pursuant to this statutory authority, the EEOC in 1966 issued a
regulation requiring certain employers to file executed copies of the
EEO-1 in conformity with the directions and instructions on the form,
which called for reporting employee data by job category, ethnicity,
race, and sex.\41\ Pursuant to Executive Order 11246,\42\ the Office of
Federal Contract Compliance Programs (OFCCP), U.S. Department of Labor,
in 1978 issued its regulation describing the EEO-1 as a report
``promulgated jointly with the Equal Employment Opportunity
Commission'' and requiring certain contractors to submit ``complete and
accurate reports'' annually.\43\ Currently, Component 1 of the EEO-1
directs certain covered employers with more than 50 employees
(contractors) or 100 employees (private industry) to report annually
the number of individuals they employ by job category and by race,
ethnicity, and sex.\44\ The data include seven race and ethnicity
categories \45\ and ten job categories,\46\ by sex. The individual EEO-
1 reports are confidential. EEO-1 data are used by the EEOC to
investigate charges of employment discrimination against employers in
private industry and to provide information about the employment status
of minorities and women.\47\
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\40\ 42 U.S.C. 2000e-8(c).
\41\ The EEOC's EEO-1 regulation is at 29 CFR part 1602 Subpart
B. The EEOC is responsible for obtaining OMB's PRA approval for the
EEO-1 report.
\42\ Exec. Order No. 11,246, 30 FR 12,319 (Sept. 24, 1965).
\43\ 41 CFR 60-1.7(a). The EEOC may also share EEO-1 data with
state and local Fair Employment Practices Agencies under the
authority of section 709(d) of Title VII. Subject to their agreement
to retain confidentiality as required by 42 U.S.C. 2000e-8(e), the
EEOC shares EEO-1 reports with the Department of Justice (DOJ), the
Federal Insurance Corporation (FDIC), and the National Credit Union
Administration (NCUA). The FDIC and NCUA use EEO-1 data pursuant to
the Dodd-Frank Wall Street Reform and Consumer Protection Act of
2010 to help analyze diversity in management, employment, and
business activities. DOJ uses the EEO-1 data when it defends OFCCP
in litigation, in the event a federal contractor sues OFCCP to
prevent debarment.
\44\ The EEO-1 uses federal race and ethnicity categories, which
were adopted by the Commission in 2005 and implemented in 2007.
\45\ Hispanic or Latino--A person of Cuban, Mexican, Puerto
Rican, South or Central American, or other Spanish culture or origin
regardless of race.
White (Not Hispanic or Latino)--A person having origins in any
of the original peoples of Europe, the Middle East, or North Africa.
Black or African American (Not Hispanic or Latino)--A person
having origins in any of the black racial groups of Africa.
Native Hawaiian or Other Pacific Islander (Not Hispanic or
Latino)--A person having origins in any of the peoples of Hawaii,
Guam, Samoa, or other Pacific Islands.
Asian (Not Hispanic or Latino)--A person having origins in any
of the original peoples of the Far East, Southeast Asia, or the
Indian Subcontinent, including, for example, Cambodia, China, India,
Japan, Korea, Malaysia, Pakistan, the Philippine Islands, Thailand,
and Vietnam.
American Indian or Alaska Native (Not Hispanic or Latino)--A
person having origins in any of the original peoples of North and
South America (including Central America), and who maintain tribal
affiliation or community attachment.
Two or More Races (Not Hispanic or Latino)--All persons who
identify with more than one of the above five races.
\46\ The ten job groups are: Executive/Senior Level Officials
and Managers; First/Mid Level Officials and Managers; Professionals;
Technicians; Sales Workers; Administrative Support Workers; Craft
Workers; Operatives; Laborers and Helpers; and Service Workers.
\47\ Any reports the EEOC publishes based on EEO-1 data include
only aggregated EEO-1 data that protects the confidentiality of each
employer's information, as well as the privacy of each employee's
personal information.
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B. Burden Statement
The previous annual estimated burden for Component 1 under the 2016
clearance \48\ was 1,952,146 hours. After reviewing the methodology
used to calculate the 2016 burden for Component 1, we identified an
approach we believe is substantially more precise and is supported by
comments received in response to the 60-Day Notice and public hearing
on November 20, 2019.
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\48\ The 2016 burden was estimated to be 6.6 hours per
respondent, multiplied by 60,886 respondents. The EEOC has now
determined that the proper unit of analysis to calculate burden
should be the number of reports submitted by report type, rather
than the number of respondents.
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The methodology used in this notice to calculate the burden for
Component 1 is to separate Type 1 (single establishment) and Type 2
(multi-establishment) filers and calculate the burden by considering
the following factors: Type of filer, the combination of report types
submitted by the filer, and the total number of reports filers will
certify to complete their EEO-1 submission.
Reporting time estimates for EEO-1 Component 1 filers are based on
the most recently completed Component 1 collection cycle. During the
2018 data collection cycle (which took place in 2019), 80,396 of the
87,021 eligible EEO-1 Component 1 filers submitted a total of 1,628,897
records. Based on data trends over the last five data collection years,
we expect that the total number of eligible filers submitting data will
increase to 90,000 filers. We further estimate that of the 90,000
filers, Type 1 filers will continue to represent about 40% of filers
and these filers will submit less than 2% of all records, while type 2
filers will continue to represent about 60% of filers and will submit
more than 98% of records. We have no reason to believe that completion
time by record type will vary from previous years and we believe that
filers will continue to submit the same record combination types, e.g.
Type 1 filers will submit a type 1 report only, and type 2 filers will
submit type 2 and type 3 reports, and then either type 4, type 6 or
type 8 reports, depending on their business structure.
Using the 90,000 number, we estimate that Component 1 EEO-1 filers
will submit a total of 1,915,345 records annually, for data years 2019
and 2021. We estimate that the 36,223 type 1 filers will submit 36,223
type 1 records, and it will take them 27,167 hours to submit these
records. We estimate the 53,777 type 2 filers will submit 1,879,122
records. Based on 2018 data, we calculated that the ratio of type 2
records to type 3 records was 1:1, or type 2 filers submit an equal
number of type 3 headquarters records. Since type
[[Page 16349]]
4, 6 and 8 records report establishment data, the ratios of type 4-to-
type 2; type 6-to-type 2; and type 8-to-type 2 records are considerably
larger. Specifically, the ratio of type 4 records to type 2 records is
4.9:1, or for every type 2 record submitted, nearly 5 type 4 records
were submitted. The ratio for type 6 records to type 2 records is
14.9:1, or for every type 2 record submitted, nearly 15 type 6 records
were submitted. The ratio for type 8 records to type 2 records is
13.1:1, or for every type 2 record, about 13 type records were
submitted. These ratios were then applied to the estimated number of
type 2 filers--53,777--to estimate the total number of records by type
we expect to receive for data years 2019 through 2021. We estimate it
will take filers a total of 9,140,226 hours to submit these records.
The total aggregate reporting time for Component 1 EEO-1 filers is
9,167,393 hours. The aggregate reporting time for Component 1 EEO-1
filers by record type varies between a low of 27,167 hours for type 1
filers submitting type 1 reports, and 6,414,815 hours for type 2 filers
submitting type 6 reports. The table below outlines that number of
records, the average reporting time by record type, and the total
number of hours estimated to submit these records.
Table 1--Projected Annual Burden for Component 1 Data Years 2019-2021, by Report Type and Reporting Time
----------------------------------------------------------------------------------------------------------------
Average Aggregate
Number of reporting time reporting
records (minutes) time, hours
----------------------------------------------------------------------------------------------------------------
Type 1.......................................................... 36,223 45 27,167
Type 2 \a\...................................................... 53,777 45 40,333
Type 3 \b\...................................................... 53,777 45 40,333
Type 4 \c\...................................................... 264,403 120 528,806
Type 6 \d\...................................................... 801,852 480 6,414,815
Type 8 \e\...................................................... 705,313 180 2,115,940
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Total....................................................... 1,915,345 .............. 9,167,393
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\a\ The Consolidated Report must include all employees of the company categorized by race, gender and job
category.
\b\ Headquarters Report (Required)--The Headquarters Report must include employees working at the main office
site of the company and those employees that work from home that report to the corporate office. Employment
data must be categorized by race, gender and job category. A separate EEO-1 report for the headquarters
establishment is required even if there are fewer than 50 employees working at the headquarters establishment.
\c\ Establishment Report--A separate EEO-1 Type 4 report must be submitted for each physical establishment with
50 or more employees. Employment data must be categorized by race, gender and job category.
\d\ Establishment list--includes establishment name, address and total number of employees for each location
with less than 50 employees. Employers choosing Type 6 reports must also manually enter data categorized by
race, gender and job category into the accompanying Type 2 report and include all company employees.
\e\ A separate EEO-1 report must be submitted for each establishment employing fewer than 50 employees. Like the
Type 4 report, Type 8 report employment data must also be categorized by race, gender and job category.
Employers choosing Type 8 reports must enter employment data categorized by race, gender and job category for
each Type 8 report. The employment data entered for each such establishment will automatically populate the
Type 2 Report.
An estimate of the total number of respondents and the amount of
time estimated for an average respondent to respond: The estimated
number of respondents who must annually file EEO-1 Component 1 data for
the next three years is 90,000 filers each year. The EEOC estimates
that the 90,000 filers will submit 1,915,345 reports. Reports represent
the annual number of responses. About 40% of Component 1 filers (36,223
filers) will submit a single report on a single establishment, and it
is estimated that it will take these filers an average of 45 minutes
per reporting year to complete their Component 1 EEO-1 report. About
60% of Component 1 filers (53,777 filers) will report data on multiple
establishments. All multi-establishment filers must complete both type
2 and type 3 reports, in addition to completing either a type 4, 6, or
8 report for each establishment for each reporting year, for a total of
1,879,122 multi-establishment EEO-1 reports submitted by 53,777 multi-
establishment filers. While the actual submission time for single and
multi-establishment filers varies,\49\ for purposes of this exercise we
estimate that it will take a filer, on average, under 5 hours to
complete their Component 1 EEO-1 report. Each filer will be asked to
respond to Component 1 of the EEO-1 once annually. The burden estimate
is based on data from prior administrations of Component 1 of the EEO-
1.
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\49\ Burden for single establishment filers is based on a single
report. Burden for multi-establishment reporters is cumulative and
is based on the report type combination. EEO-1 project staff
estimate that the average completion time for the type 2 report
would be 45 minutes, the completion of the type 3 report adds an
average of 45 minutes to the burden, and the completion of type 4
reports adds an average of 2 hours to the burden, so a Type 2 filer
completing type 4 reports will have an average burden of 3.5 hours
(45 minutes for the type 2 report, plus 45 minutes for the type 3
report, plus 2 hours for the type 4 reports). A Type 2 filer
completing type 6 reports will add--on average--8 hours to the
burden, for a total burden of 9.5 hours. A Type 2 filer completing
type 8 reports will add--on average--3 hours to the burden, for a
total burden of 4.5 hours. While this analysis recognizes that
individual filers' burdens will vary, on average a multi-
establishment filer submitting 2/3/4 reports would have the lowest
estimated burden of 3.5 hours while a filer submitting 2/3/6 reports
would have the highest estimated average burden of 9.5 hours. Once
Type 1, or single establishment filers, and filers submitting 2/3/8
are considered, the average estimated burden for EEO-1 filers is
approximately 5 hours.
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An estimate of the total public burden (in hours) associated with
the collection: The collection of EEO-1 Component 1 data for calendar
years 2019, 2020, and 2021 is estimated to impose a total of 9,167,393
annual burden hours for 1,915,345 Component 1 reports. Filers are
encouraged to report data electronically to decrease burden.
Dated: March 11, 2020.
For the Commission.
Janet Dhillon,
Chair.
[FR Doc. 2020-06008 Filed 3-20-20; 8:45 am]
BILLING CODE P
