September 23, 2021

Volume XI, Number 266

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“EEOC Explore” Tool Launched to Provide Greater Transparency and Access to Diversity Data – Employers Beware Overreaching and Generalizations

Earlier this month, the EEOC launched EEOC Explore, “an interactive data query and mapping tool” that gives users access to aggregate data on more than 73,000 employers and 56 million employees across the United States.  According to the agency, EEOC Explore “enables stakeholders to explore and compare data trends across a number of categories, including location, sex, race and ethnicity, and industry sector without the need for experience in computer programming or statistical analysis.”

In a press release,  (https://www.eeoc.gov/newsroom/eeoc-launches-new-data-tool-track-employment-trends) the EEOC’s Chief Data Officer Dr. Chris Haffer, stated that the tool will make “tracking employment trends as simple as a few clicks, particularly for those analyzing job patterns for minorities and women in private industry.”  The EEOC’s Chair, Janet Dhillon, also emphasized the potential benefits of Explore in eradicating workplace bias, by “mak[ing] it easier to navigate the agency’s aggregate EEO-1 data for everyone interested in advancing equal opportunity for all in the workplace.”

Tool Overview

EEOC Explore uses data sourced from EEO-1 reports, which are filed annually by private employers with 100 or more employees and federal contractors with 50 or more employees.    At present, data is only available from 2017 and 2018. EEOC Explore lets users filter data through interactive dashboards by (1) Year, (2) Geographic Region (going as granular as the county level), (3) Sex, (4) Race/Ethnicity, (5) EEO-1 Job Category, and (6) NAICS Code.   This permits users to narrow data and review (i) job categories by sex, (ii) race and ethnicity by sex, (iii) industry(ies), (iv) state trends by year, and (v) state-by-state comparisons.

Implications for Employers

The data available on Explore is more detailed than data previously public in the EEOC’s various statistical tables. Significantly, though, the data is still in aggregated form, and users cannot identify any particular employer or employee.  A business’ EEO-1 Report thus remains confidential (unless voluntarily disclosed or obtained via FOIA).

Because the data is aggregated, its use is limited to generalized research and comparisons.  For instance, summary workforce compositions may be useful for benchmarking against peers and competitors.  Such data can also help companies understand the types and numbers of workers potentially available for employment. Given the ongoing and increasing focus on diversity and inclusion programs, the EEOC Explore tool may help employers perform a workforce equity audit, by providing data sets that can be compared through statistical analysis (under privilege and with the assistance of outside counsel).  Since every business is unique, and a successful D&I program must be tailored to the specific needs and demographics of the company, the raw and filtered data available through EEOC Explore may allow more meaningful assessments.

It will take time for the impact of the EEOC Explore tool to play out, particularly in terms of whether it is used (or useful) in enforcement actions or private lawsuits.  Of course, the efficacy of such information in enforcement actions or private lawsuits would be limited if relevant at all, and employers should be wary of attempted use of such information in a generalized form, which employers would see as an overreach and improper use of such information.

That said, the publication of this information reflects the EEOC’s effort to make a maximum amount of data accessible for public consumption, in a usable format, while still protecting confidentiality of individual EEO-1 filers.  The EEOC has further forecasted that it may update the data after it collects EEO-1 demographic data for 2019, which was delayed until 2021 due to the COVID-19 pandemic.

It also remains to be seen whether the EEOC will add historic pay data, known as “Component 2,” to the EEOC Explore dataset.  Component 2 wage data was an Obama-era initiatives that reflects employee compensation organized in pay bands by gender and race.   Most likely, EEOC will defer a decision on Component 2 data until after it receives and reviews the report commissioned by the National Academies of Sciences, Engineering and Medicine, which will study and assess the usefulness of such pay data.

Copyright © 2021, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume X, Number 353
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About this Author

Anna Rothschild Labor Attorney Hunton Andrews Kurth
Associate

Anna is an associate in the firm’s Boston office and a member of the labor and employment group. She represents corporate clients in complex employment disputes, focusing her practice on restrictive covenant litigation, wage and hour class and collective actions, as well as providing general employment advice.

Anna earned her JD at Wake Forest University, and is a member of the Massachusetts, Boston and North Carolina Bar. 

617 648 2764
Christy Kiely Employment Lawyer Hunton Andrews Kurth Law Firm Richmond

Christy’s practice encompasses employmentlitigation, EEOC charges, #MeToo investigations, pay equity analyses, advice, training, affirmative action, and audit defense before the OFCCP.

Christy’s work focuses on pay equity analyses, affirmative action work and audit defense before the Office of Federal Contract Compliance Programs. She also has substantial experience with employment litigation in federal and state courts, administrative practice before the Equal Employment Opportunity Commission, and advice to business management and in-house counsel on a full range of employment...

804 788 8677
Christopher Pardo Employment Lawyer Hunton Andrews Kurth
Partner

Chris focuses his practice on the defense of complex employment cases in federal and state courts, arbitration, and before administrative agencies.

He represents a broad range of clients in employment, contractual, and labor matters, particularly in the defense of class and collective actions; complex wage and hour issues; trade secret litigation and restrictive covenant agreements; matters involving race, sex, age, disability, and pregnancy discrimination; wrongful termination; ERISA; RICO; and various state law claims, including wage and discrimination claims under the...

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