The EEO-1 survey is an incomparable source of data on employee diversity at U.S. corporations. The survey is conducted by the Equal Employment Opportunity Commission and requires private employers with over 100 employees to collect race and gender data on their employees on an annual basis. The data collection includes, among other data points, a breakdown of how many racial and ethnic minorities and women are employed at each of 10 professional levels at a company including executive and senior level managers. According to the EEOC, in 2018, approximately 73,400 employers representing 56.1 million employees filed EEO-1 reports. Given its scope, the EEO-1 survey could be an incredible tool to understand employment patterns for women and racial minorities at individual companies and push for greater diversity where necessary…if the public had access to the data collected in the survey.
Section 709(e) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–8(e), prohibits the EEOC from disclosing to the public any of the employment data it collects as part of the EEO-1 survey. While the EEOC is permitted to publish aggregate EEO-1 data, it is up to individual companies to determine if they will voluntarily disclose the data. According to New York City Comptroller Scott Stringer, only 29 public companies currently disclose their EEO-1 report data, and only 14 of those 29 companies are in the S&P 100. The stringent confidentiality provisions regarding EEO-1 data have allowed most large companies to escape any real scrutiny or accountability for their failure to employ a diverse workforce, particularly at the senior and executive levels.
A change may be on the horizon. The murder of George Floyd and the subsequent racial protests that occurred across the country led to an unprecedented number of U.S. corporations publicly expressing their support for racial justice. Companies from Disney to Door Dash issued statements espousing their dedication to racial equality and pledging financial support to organizations fighting systemic racism. The response from many racial justice advocates was that companies needed to do “more than talk” about diversity. Beauty executive Sharon Chuter suggested in launching her campaign to encourage beauty companies to disclose the number of Black employees at their corporate and executive levels, that it was time for companies to “Pull Up or Shut Up.”
In July 2020, Stringer launched a campaign calling on 67 companies in the S&P 100 “to match their statements affirming their commitments to racial equality and diversity and inclusion with concrete action, by publicly disclosing their annual EEO-1 Report data.” If the companies refused to release the data by 2021, they risked being targeted for submission of shareholder proposals to release the data or opposition to the election of directors seeking re-election at the next annual shareholder meeting. In September 2020, Stringer announced that 34 companies, including Amazon, PayPal, PepsiCo, and Wells Fargo had committed to releasing their EEO-1 data.
Calvert Research & Management, a sustainable investment firm, also launched a campaign in July 2020 targeting the board chairs of the U.S.’s 100 largest companies and asking them to release their EEO-1 data. As of December 17, 2020, 50 of the 100 companies, including Coca-Cola, Starbucks, Target, and Morgan Stanley, agreed to make their EEO-1 data publicly available.
Disclosure of companies’ EEO-1 data is an important first step for the public and shareholders to hold companies accountable for their performance in meeting diversity goals. Companies cannot claim to support diversity in their TV ads while failing to employ a diverse workforce as Nike discovered when it was revealed that less than 10% of its more than 300 vice-presidents were black.
The EEO-1 data can also be a powerful tool for employees to detect patterns, and potentially discrimination, in a company’s failure to hire, promote, and retain women and people of color. If you believe your employer has acted unlawfully, you should consult an employment lawyer. Sanford Heisler Sharp, LLP has experienced attorneys in New York, Washington, DC, San Francisco, San Diego, Tennessee, and Baltimore.