EEOC’s pending removal of non-binary reporting set to hit May 20, compliance questions loom

The EEOC’s latest proposed changes to workforce data collection are adding fresh layers of operational friction and legal uncertainty.

Shifting federal requirements are making HR compliance increasingly complex. The U.S. Equal Employment Opportunity Commission (EEOC) has signaled its intention to proceed with the 2024 EEO-1 Component 1 data collection, submitting proposed revisions to its instruction booklet for approval by the White House Office of Management and Budget (OMB).

Proposed timeline: Pending OMB approval, the EEOC aims to open the online filing portal on May 20, 2025, with a deadline for employers to submit their workforce demographic data by June 24, 2025. This filing window is notably shorter than in previous years, advises legal firm Constangy, Brooks, Smith & Prophete via JD Supra, urging employers to prepare data early and not assume extensions will be granted.

Non-binary reporting option removed: The most significant proposed change involves eliminating the voluntary option for employers to report employees identifying as non-binary in the report’s comment section. The EEOC stated in its submission that this change is necessary to comply with Executive Order 14168, issued in January 2025, which mandates federal forms collect sex data using only male or female categories. This reverses guidance from 2023 that allowed for such voluntary reporting.

Compliance clash created: This removal places employers in a difficult position, potentially caught between the executive order’s mandate and Title VII protections against gender identity discrimination affirmed by the Supreme Court’s 2020 Bostock v. Clayton County decision. David Cohen of DCI Consulting described the situation to Bloomberg Law as leaving employers “caught between a rock and a hard place.” The change also raises concerns about data accuracy and the ability to track workforce diversity effectively, potentially erasing non-binary worker classification from key federal datasets used to monitor equity.

Contractor filing rules unclear: Further complicating matters, the proposed EEOC instructions continue to cite the now-revoked Executive Order 11246 as the basis for requiring federal contractors with 50 to 99 employees to file the EEO-1 report. President Trump revoked EO 11246 on January 21, 2025, creating significant ambiguity about whether these smaller contractors are still obligated to file. The EEOC has not yet clarified this apparent contradiction in its submitted documents.

Operational hurdles increase: Beyond the major policy shifts, the EEOC also proposes removing language about “Notice of Failure to File” letters, suggesting employers may not receive that additional reminder. Combined with the shorter filing window and the complexities around gender reporting, and contractor status, HR departments face a potentially more burdensome and risk-laden EEO-1 cycle.

Approval pending: It is important to note that these changes and the proposed timeline are still awaiting final approval from the OMB’s Office of Information and Regulatory Affairs (OIRA). Employers required to file EEO-1 reports are advised to monitor the EEOC’s data collection website for official confirmation of the dates and final instructions.