By Vin Gurrieri

Law360 (May 7, 2020, 5:44 PM EDT ) The U.S. Equal Employment Opportunity Commission said Thursday it will push back until 2021 its annual collection of demographic data from large employers due to the chaos caused by the novel coronavirus pandemic.

In a notice that will run in Friday's Federal Register, the workplace bias watchdog said it will delay until next year its collection of the EEO-1 employer information report that must be filed every year by private businesses with 100 or more workers as well as some federal contractors. The form contains so-called Component 1 data, which seeks demographic information from employers on race, gender and ethnicity by job category.

Although the agency was slated to open the window for employers to submit Component 1 data later this year, it now expects to start collecting data from employers for both 2019 and 2020 starting in March 2021, pending approval from the White House's Office of Management and Budget. The agency said in its regulatory notice that it will inform businesses of exact dates at a later time.

The EEOC also said in its regulatory filing that it will similarly push back its collection of so-called EEO-3 and EEO-5 surveys, the former of which requires certain local unions to submit labor force demographic data and the latter of which seeks demographic information from public elementary and secondary school districts with more than 100 employees. The agency will start collecting both of those forms, which are normally submitted only in even-numbered years, starting in January 2021.

"In light of the [COVID-19] public health emergency, and consistent with delays in federal reporting requirements across the government and other actions taken to relieve employers of unnecessary burdens during this crisis, the Commission is delaying the anticipated opening of the 2019 EEO-1 Component 1 and the 2020 EEO-3 and EEO-5 Data Collections to a time when the agency anticipates that filers will have resumed more normal operations.

The EEOC's move to delay the compliance surveys marks the latest twist in a yearslong story of uncertainty surrounding EEO-1 reports.

During the Obama administration, the EEOC sought to expand EEO-1 reports by adding so-called Component 2, which would require employers to report W-2 wage information and hours worked for employees within 12 specified pay bands.

Workers' advocates and some EEOC commissioners said collecting the expanded pay data was an important tool that the agency could use to identify and combat illegal pay gaps. But the business community largely opposed it, arguing that it would impose a pointless burden on companies and that it would do little to root out pay discrimination.

The Trump administration, through the OMB, shelved that initiative in 2017. But the National Women's Law Center subsequently spearheaded a legal challenge to the OMB's decision, which resulted in an order last year by U.S. District Judge Tanya Chutkan reinstating the data collection.

That set off a scramble among businesses and the EEOC itself to figure out exactly what information businesses had to turn over, what the deadlines were and what criteria the court would apply to render the data collection complete.

Ultimately, the EEOC collected Component 2 pay data from employers for 2017 and 2018 from about 90% of eligible respondents, according to data the agency submitted to Judge Chutkan.

However, while the data collection was ongoing, the EEOC said in a September regulatory filing that it wouldn't seek to renew its Component 2 data collection beyond the two years that Judge Chutkan ordered it to obtain, saying in part that it had significantly underestimated the compliance costs for businesses to submit yearly EEO-1 reports when it proposed expanding them in 2016 to include the pay data.

However, as part of its September regulatory filing, the EEOC said it still intended to collect Component 1 data for the next three years — 2019, 2020 and 2021 — as it has done for decades.

In a statement announcing the delayed submission windows, the EEOC said it "recognizes the impact that the current public health emergency is having on workplaces across America and the challenges that both employers and employees alike are now facing."

"Filers of the EEO-1, EEO-3 and EEO-5, which include private sector employers, local referral unions and public elementary and secondary school districts, are dealing with unique and urgent issues," the agency added. "Delaying the collections until 2021 will ensure that EEO filers are better positioned to provide accurate, valid and reliable data in a timely manner."

--Editing by Alanna Weissman.

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