Can Employers Still Collect Race, Ethnicity, and Sex Data in 2026?
Original Air Date: July 22, 2026
Yes. Nothing in Executive Order 14173 or Executive Order 14398 says employers have to stop collecting race, ethnicity, and sex data, and federal and state frameworks continue to require or support it.
Since January 2025, employment law has seen one of its biggest shifts in years, yet the rules for lawfully collecting, storing, and using demographic data have changed very little. DCI's Macy Cheeks and Lily Kerr clear up the confusion with a game of Two Truths and a Lie.
What Employers Need to Know
- Collect demographic data where federal or state law requires it, and make clear that self-identification is voluntary and confidential.
- Store it separately from application and decision-making records, and limit access to people with a legitimate need.
- Keep records as long as the laws that apply to you require: one year under Title VII, up to three years for federal contractors, and four years in California.
- Use the data in aggregate, never as a factor in an individual employment decision.
- Adopt a written data governance policy and audit your own practices periodically.
Frequently Asked Questions
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Do Executive Orders 14173 and 14398 require employers to stop collecting demographic data?
No. Executive Order 14173 (January 2025) rescinded the affirmative action requirements of Executive Order 11246, and Executive Order 14398, Addressing DEI Discrimination by Federal Contractors, followed in March 2026. Neither tells employers to stop collecting demographic data.
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Does the EEOC still support collecting demographic data?
Yes. OIRA approved extending the required collection of race and sex self-identification data, which supports Title VII compliance, and has since reopened its review. The EEOC has proposed ending annual EEO-1 reporting but is still investigating complaints, and recent consent decrees with Battleground Restaurants ($1.1 million) and LeachGarner ($2.8 million) impose detailed recordkeeping obligations.
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Which states require race and sex data?
- California: the Civil Rights Department's annual pay data report requires race and sex information for payroll employees and labor contractor workers, with no unknown values. Failing to report can cost $100 per employee, or $200 for later infractions.
- Illinois: the Equal Pay Registration Certificate requires race and sex information for employees tied to Illinois, and the state pushes back when it is missing.
- Minnesota: annual compliance reporting for certain state contractors requires race and sex data.
DCI's State Legislation Tracker follows new state requirements as they pass.
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How are self-identification forms changing?
OMB's revised Statistical Policy Directive No. 15 (SPD 15) adds a Middle Eastern or North African (MENA) category, allows more than one race selection, and folds Hispanic or Latino into the race question. The final deadline is September 28, 2029, and employers can get ahead now by revising self-ID forms and updating HRIS and ATS systems.
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Who should have access to employee demographic data?
Only people with a legitimate compliance, reporting, legal, or analytic need. Keep it away from supervisors, recruiters, DEI teams, and anyone else making employment decisions, the same principle as the paper-era "tear-off" self-ID sheet. A written policy should set out who owns the data, who approves access, and what training is required.
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How can employers use demographic data without creating risk?
Use it in aggregate to monitor adverse impact, evaluate systemic nondiscrimination risk, and prepare required reports, and conduct those analyses under privilege with your legal counsel. Never use race, ethnicity, or sex as a factor in individual decisions to fix the numbers, and never use quotas, preferences, or set-asides.
What Has Changed Since This Session Aired
- July 23, 2026: the EEOC published its proposal to remove EEO-1 reporting. Comments have closed, no final rule has been issued, and the 2025 EEO-1 collection has not opened.
- August 21, 2026: OFCCP published final rules rescinding the EO 11246 regulations (effective October 26, 2026) and ending the Section 503 disability self-identification requirement (effective September 21, 2026). VEVRAA self-identification remains.
The recording covers all three rounds: collecting, storing, and using demographic data.
Speakers
Macy Cheeks, Associate Principal Consultant
Lily Kerr, Senior Consultant