Will we be required to file EEO-1, EEO-4, or EEO-5 statements this year?
Various Equal Employment Opportunity (EEO) reports have been required since 1966, based on the landmark Civil Rights Act of 1964 that prohibited discrimination on the basis of sex, race, color, national origin, and religion.
EEO-1 reports are required annually for all private employers of 100+ employees and certain federal contractors with 50+ employees, and require submission of data from a single “snapshot” pay period between October and December of the year at issue with the number of employees categorized by sex, race/ethnicity, and job category. EEO-4 reports, also referred to as EEOC Form 164, are mandatory biennial data collection and reporting requirements applicable to state and local governments with 100+ employees, requiring submission of employee data categorized by sex, race/ethnicity, job category, and also salary band. EEO-5 reports, also referred to as EEOC Form 168A, are mandatory biennial data collection and reporting requirements applicable to public elementary and secondary public school systems and districts with 100+ employees, requiring submission of employee data categorized by sex, race/ethnicity, and activity assignment classification. The reasons for these reporting requirements are to track data on equal employment based on race and gender, support enforcement actions, encourage employer “self-assessment,” and allow for research of aggregated data that is made publicly available. The reports and reported data are shared with other federal agencies, as well, and may be used for enforcement actions or compliance checks by other federal agencies.
With the Trump Administration’s executive orders scaling back or eliminating various diversity-based programs and requirements, one of many questions to arise is whether employers, state and local governments, and schools are required to file these EEO statements in 2025, and whether any consequences or penalties may arise for failing to do so.
Typically, the EEO-1 reports were required to be filed in May of the year following the year subject to the report. For example, the 2023 EEO reports were due to be filed between April 30 and June 4, 2024. However, for 2025 filings of 2024 reports, no due dates have been provided, and there is some indication that the data collection will be delayed. This indication of delay or possible lack of enforcement is based on the fact that the EEOC website containing information on EEO-5 report filings states “the 2024 EEO-5 data collection has been delayed” with regard to the required filing of EEO-5 reports for public schools. Additionally, the EEOC website location for filing of EEO-4 reports from state and local governments has not been updated, and still only states “the 2023 EEO-4 data collection is CLOSED.” See EEO Data Collections | U.S. Equal Employment Opportunity Commission.
Key Takeaway
All private employers, federal contractors and subcontractors, state and local governments, and public schools that are usually subject to federal EEO reporting requirements should retain their collected data and be prepared to submit reports if required, but check the EEOC website to determine whether and when any reports may be required to be filed.
Some states still require EEO statements.
Even though the federal government may or may not be requiring the filing of EEO statements, certain states still require their filing based on applicable state law. In particular, California and Massachusetts currently require their own state-specific EEO-1 statements be filed.
California requires its own EEO-1 Component 1 report to be filed by all private employers with at least one California-based employee and 100+ employees total (anywhere), including labor-contracted workers. California somewhat follows the EEO-1 report process, ostensibly including the “snapshot” time period between October and December 2024. However, California adds additional report requirements, including employee location, job category, race/ethnicity/sex, 2024 pay, pay bands, work group hours data (several types), employee hours worked in 2024, and remote worker status. The reports must be submitted to the State of California Civil Rights Department by May 14, 2025, through the Department’s online portal.
Massachusetts recently adopted its own EEO-1 reporting requirement, and 2025 will be the first year that reports are due. However, unlike California, Massachusetts simply requires covered employers to file the same EEO-1 statement that would be filed with the federal government, to also be filed with the Secretary of State’s office in an online portal. Covered employers are those private employers with 100+ employees in the Commonwealth of Massachusetts at any time during the prior calendar year. 2024 reports were due to be submitted by February 1, 2025. However, no new information has been provided relating to private employers who may be subject to this reporting requirement but who have not (or will not) file EEO-1 reports with the federal government.
Additionally, some states may seek to adopt new laws requiring the filing of EEO or similar reports in response to the federal government’s recent actions.
Key Takeaway
Even if EEO reports are not required to be filed at the federal level this year, if an employer or contractor operates in California, an EEO-type report is still required, Massachusetts may still require the filing of a federal EEO-1 report, and other states may add similar requirements in the coming months or years.
What is the status of the federal Office of Federal Contract Compliance Programs (OFCCP)?
In one of his first actions after taking office, President Trump signed an executive order that, among other things, revoked long-standing Executive Order 11246 (see Employment Law in Motion | President Trump Order Seeks to End Discriminatory DEI Programs and Mandates, Affecting Federal Contractors, Private Sector, and Higher Education | Miller Nash LLP). Among other requirements, prior Executive Order 11246, dating back to President Lyndon Johnson in 1965, required implementation of certain affirmative action programs, promotion of diversity, and encouraged workforce “balancing” based on protected characteristics such as sex, race, color, and national origin. These programs have also variously been referred to as “affirmative action,” “positive discrimination,” or “reverse discrimination.” Recent U.S. Supreme Court cases have held that any form of discrimination on the basis of protected characteristics is unlawful, even if the intent is to promote diversity, such as through college admissions programs that include race as a factor for admission. President Trump’s Executive Order, issued January 23, 2025, reiterated the holdings of these recent Supreme Court decisions and re-stated that discrimination based on protected characteristics of any type is unlawful, and proceeded to revoke numerous prior executive orders relating to the promotion of diversity, including Executive Order 11246. President Trump’s Executive Order further stated that contractors could, but apparently would not be required to, continue complying with Executive Order 11246 for up to 90 days, essentially allowing for a transition period.
The Office of Federal Contract Compliance Programs (OFCCP) was created within the U.S. Department of Labor to enforce numerous federal equal employment opportunity and affirmative action programs and requirements that applied to federal contractors and subcontractors. The laws enforced by OFCCP principally include: (a) the Civil Rights Act of 1964 (as amended), prohibiting discrimination on the basis of sex, race, color, national origin, and religion, and including Executive Orders based thereon such as 11246; (b) Section 503 of the Rehabilitation Act applicable to persons with disabilities; (c) the Americans with Disabilities Act of 1990 (as amended); and (d) certain protections for all disabled, active duty, and recently separated veterans under the expanded Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA). The OFCCP, among other tasks, gathered large amounts of data from federal contractors and subcontractors, performed compliance reviews in response to employee claims of discrimination against federal contractors and subcontractors, and recommended enforcement actions to the Department of Labor’s Solicitor.
The federal statutory requirements of the Americans with Disabilities Act, Section 503 of the Rehabilitation Act, and VEVRAA have not changed, as any such change would need to come from Congress. However, President Trump has exercised his authority to revoke numerous prior executive orders, including Executive Order 11246. As part of the process, the U.S. Labor Secretary on March 24, 2025, announced the appointment of Catherine Eschbach to head the OFCCP. Eschbach is a lawyer from Houston, Texas, and in the press release announcing her appointment, stated she is “committed to carrying out President Trump’s executive orders, which will restore a merit-based system to provide all workers with equal opportunity.” Eschbach further stated that Executive Order 11246 had “facilitated federal contractors adopting DEI practices out of step with the requirements of our Nation’s civil rights laws.” As director, Eschbach is expected to shrink the size of the OFCCP, but is also expected to use the office to investigate whether federal contractors and subcontractors are violating various civil rights laws by maintaining DEI-related programs.
Key Takeaway
Federal contractors and subcontractors should review existing policies and practices to ensure compliance with federal civil rights laws, including carefully reviewing DEI programs, “affirmative action” programs, and similar practices that potentially excluded employees from participation on the basis of a protected characteristic such as sex, race, color, national origin, or religion.
What is the status of the Federal Acquisition Regulations relating to affirmative action?
On February 15, 2025, the new director of the U.S. General Services Administration (GSA) issued a Civilian Agency Acquisition Council letter authorizing civilian federal executive agencies to deviate from certain pre-existing Federal Acquisition Regulations (FARs) and procurement practices to implement President Trump’s executive orders relating to illegal discrimination and DEI programs. Consistent with President Trump’s revocation of Executive Order 11246, FARs relating to affirmative action programs, certain apprentice and trainee programs based on diversity, on-site equal opportunity compliance evaluations, reporting requirements, and similar diversity-based requirements will no longer be enforced or required to be included in federal acquisition contracts and bids (generally certain clauses in FAR 52.222-9 through 52.222-29). Additionally, contractors will not be required to include certain equal employment opportunity employer language in job postings and other previously required locations. Furthermore, there are certain revised contracting requirements, including revised terms and conditions language adopted in February 2025 that only requires certifications for certain non-diversity-based portions of the previously required contractor certifications. Federal contractors and subcontractors are highly encouraged to consult all current FARs for pre-existing and new federal contracts and subcontracts to ensure knowledge of and compliance with the current regulations.
Additionally, and of particular note, the letter states that existing civil rights and non-discrimination laws remain in effect and enforceable. This includes Disabled Worker and Equal Opportunity for Veterans rules, which are based in statute and remain unchanged to date, as action by Congress would be required to alter these legal requirements. With respect to these aspects, federal contractors and subcontractors must still comply with federal civil rights and anti-discrimination laws, including the Civil Rights Act of 1964, which protects against discrimination on the basis of sex, race, color, national origin, and religion. Additionally, federal contractors and subcontractors must continue to comply with federal laws applicable to disabled workers and veterans.
Furthermore, in keeping with President Trump’s executive orders, some federal agencies are now requiring contractors to certify in their newly-issued contracts that the contractor “does not operate any programs in violation of any applicable federal anti-discrimination laws” or language to this effect, and potentially including a reference to the False Claims Act and potential penalties if the certification is false. Federal contractors and subcontractors should carefully review all contracts and certification requirements prior to signing such certifications, and ensure the certifications, if and when signed, are true and accurate.
Key Takeaways
Federal contractors and subcontractors will no longer be required to include in contracts or comply with some prior affirmative action requirements but must still comply with disabled worker and veteran-related programs and requirements. Any new federal contracts and subcontracts should be carefully reviewed prior to signing certifications in such contracts, and compliance with certifications must be carefully reviewed. All federal contractors and subcontractors are highly encouraged to read pre-existing and new contracts carefully against the revised FARs to ensure compliance with enforceable requirements.
The legal issues impacting this topic are and will continue to be ever-changing (Employment Law in Motion!), and since publication of this blog post, new or additional information not referenced in this blog post may be available.
This article is provided for informational purposes only—it does not constitute legal advice and does not create an attorney-client relationship between the firm and the reader. Readers should consult legal counsel before taking action relating to the subject matter of this article.
