Recordkeeping Supporting Statement 2024-09-09

Supporting Statement
Recordkeeping under Title VII, the ADA, and GINA
A.

Justification
1.

Legal and administrative requirements
The Equal Employment Opportunity Commission enforces Title VII of the
Civil Rights Act of 1964 (Title VII), Title I of the Americans with Disabilities
Act (ADA), and Title II of the Genetic Information Nondiscrimination Act of
2008 (GINA), which collectively prohibit discrimination on the basis of race,
color, religion, sex, national origin, disability, or genetic information.
Section 709(c) of Title VII 1 authorizes the EEOC to issue recordkeeping
regulations that are deemed reasonable, necessary, or appropriate to its
enforcement responsibilities, and sections 107(a) of the ADA 2 and 207(a) of
GINA 3 specifically incorporate section 709 of Title VII. The Commission has
issued recordkeeping regulations pursuant to those statutory sections which
are found throughout 29 C.F.R. Part 1602. The statutory language from Title
VII authorizing the recordkeeping requirement is included at the end of this
supporting statement. The recordkeeping requirements in Part 1602 cover all
non-federal employers with 15 or more employees, as well as certain
apprenticeship committees and labor organizations (hereinafter referred to
collectively as “employers” for ease of reference). The recordkeeping
requirements themselves do not mandate the creation of any records.
However, they do require that all employment records a covered employer
creates or uses in the course of business (including, for example: personnel
records concerning hiring, promotion, demotion, transfer, layoff or
termination, rates of pay or other terms of compensation, selection for
training, or reasonable accommodation requests; apprenticeship records such
as test papers, interview records, or reasonable accommodation requests; and
union records such as membership or referral records) must be preserved for
the periods specified in Part 1602.

2.

Use of collected information
Recordkeeping is necessary to the enforcement of Title VII, the ADA, and
GINA. After a charge of unlawful employment discrimination is filed with
the EEOC by an employee or applicant against an employer and served by the
EEOC on the employer, the employer is often asked to submit a position
statement. The respondent employer typically uses the preserved records to
prepare its position statement and may attach relevant retained records to
document its defense to the allegations in the charge. Sometimes the EEOC
will request additional documents relevant to the matter during the
investigation and conciliation of the charge. The EEOC investigators review

42 U.S.C. § 2000e-8(c).
42 U.S.C. § 12117(a).
3
42 U.S.C. § 2000ff-6(a).
1
2

the records proffered or requested (including records relating to the charging
party and to other similarly-situated employees or applicants) to help
determine whether reasonable cause exists to believe that a charging party’s
allegation of discrimination against the respondent employer is true. In
particular, the investigator reviews records to determine what occurred and
whether there is evidence that the action was taken for a prohibited reason or
produced an adverse impact on members of a protected class.
If the records are not preserved, an employer may be unable to reconstruct
what actually occurred and, absent documentary evidence, may have difficulty
responding to a charging party’s allegations during an EEOC investigation or
subsequent court proceeding. In addition, without access to these records the
EEOC’s ability to investigate, issue determinations, conciliate, and litigate
will be unduly complicated, made more costly, and, in some cases, defeated.
3.

Use of information technology
This collection of information does not involve the use of automated,
electronic, mechanical, or other technological collection techniques or other
forms of information technology, and the EEOC has not considered using
information technology to reduce the burden because this is a recordkeeping
requirement that does not require reporting or the creation of any records.
However, employers may create and retain records electronically, and we
assume that many employers already do so to comply with this recordkeeping
requirement.

4.

Description of efforts to identify duplication
Other agencies may require entities they regulate to keep certain types of
records related to their areas of regulation, e.g., banking, pay, tax, or health
records. The EEOC is not aware of any other agency that requires employers
to preserve all employment records. In the PRA notices we publish every
three years in the Federal Register, we invite the public to comment on the
recordkeeping requirement, and we have never received any comment
indicating that it duplicates another agency’s requirement. In addition, to our
knowledge, no employer subject to these recordkeeping requirements has ever
expressed to the EEOC that the recordkeeping requirement duplicates another
agency’s requirement.

5.

Impact on small business
Small businesses with 15 or more employees are subject to this recordkeeping
requirement. The burden on small businesses is minimal because, as
discussed in item 1 above, employers are required only to preserve records
that they otherwise make or keep in the course of their business; there is no
requirement that they create any new records or make reports. For these
reasons, the EEOC has not taken any additional steps to further minimize the
already low burden on small businesses.

6.

Consequences if information were collected less frequently
If the records required by the regulation to be preserved were not retained at
all or were retained for a shorter period of time, the EEOC’s ability to
investigate charges of discrimination, issue determinations, conciliate, and
litigate would be unduly complicated, made more costly, and, in some cases,
defeated. An individual who wishes to file a charge has up to 300 days from
the date of the discriminatory conduct to do so; therefore, it is necessary for
employers to retain pertinent records for at least one year to ensure that they
are not destroyed before a charging party files a charge. Further, retaining the
records benefits employers because, as noted above in item 2, an employer
asked to respond to charges filed against it often needs the records to prepare a
position statement. For these reasons, the regulation requires employers to
preserve records for the following periods:
Private Employers – Personnel or employment records shall be
preserved for one year from the date of the making of the record or the
personnel action involved, whichever occurs later, but if a charge of
discrimination is filed or an action is brought by the Commission or
the Attorney General under Title VII, the ADA, or GINA, all
personnel records relevant to that charge or action must continue to be
preserved until final disposition of the charge or action.
Apprenticeship Committees – Other records relating to apprenticeship
shall be retained for two years from the date of the making of the
record, but if a charge of discrimination is filed or an action is brought
by the Attorney General under Title VII, the ADA, or GINA, all
records relevant to that charge or action must continue to be preserved
until final disposition of the charge or action.
Labor Organizations – Membership or referral records (including
applications for same) shall be preserved for one year from the date of
the making of the record, but if a charge of discrimination is filed or an
action is brought by the Commission or the Attorney General under
Title VII, the ADA, or GINA, all records relevant to that charge or
action must continue to be preserved until final disposition of the
charge or action.
State and Local Governments – Personnel or employment records shall
be preserved for two years from the date of the making of the record or
the personnel action involved, whichever occurs later, but if a charge
of discrimination is filed or an action is brought by the Attorney
General under Title VII, the ADA, or GINA, all personnel records
relevant to that charge or action must be preserved until final
disposition of the charge or action.

Educational Institutions – Personnel or employment records shall be
preserved for two years from the date of the making of the record or
the personnel action involved, whichever occurs later, but if a charge
of discrimination is filed or an action is brought by the Commission or
the Attorney General, all personnel records relevant to that charge or
action must be preserved until final disposition of the charge or action.
7.

Special circumstances
There are no special circumstances.

8.

Consultation outside the agency
As required by 5 C.F.R. § 1320.12, the EEOC published a notice in the
Federal Register on July 3, 2024, (89 FR 55266) soliciting comments on the
proposed extension of our recordkeeping regulations. One comment was
received from the public; however, the comment did not address the EEOC’s
recordkeeping requirements. Accordingly, no changes have been made to the
requirements based upon the comment.
The EEOC also routinely engages with the regulated community on relevant
issues. For example, the EEOC has participated in numerous conferences
with advocacy groups and employers concerning enforcement of Title VII, the
ADA, and GINA. The EEOC also presents many forums for discussion of
enforcement issues through its various outreach and education events, training
programs, and assistance to small businesses.
In the past, the EEOC has sought input from other federal agencies when it
proposed changes to these regulations. In addition, the EEOC has consulted
with the U.S. Department of Labor (DOL) on our respective agency
recordkeeping regulations and coordinated with DOL’s Office of Federal
Contract Compliance Programs (OFCCP) on its proposed recordkeeping
regulations to eliminate the possibility of unnecessary duplication.
The EEOC has also met with representatives of OFCCP, the Wage and Hour
Administration, the Solicitor’s Office, and other components of DOL to
discuss various aspects of our agency recordkeeping requirements.

9.

Gifts or payments
The EEOC does not provide payments or gifts to employers that are subject to
this requirement.

10.

Confidentiality of information
The EEOC does not provide an assurance of confidentiality because the
recordkeeping regulations do not require employers to report any information
to the Commission. Any of the records maintained pursuant to the regulations
that are subsequently disclosed to the EEOC during an investigation are
protected from public disclosure by the confidentiality provisions of sections

706(b) and 709(e) of Title VII, which are incorporated by reference into the
ADA and GINA.
11.

Questions of a sensitive nature
There are no questions of a sensitive nature; in fact, there are no questions of
any nature involved in this collection as it is a recordkeeping requirement
only.

12.

Information collection burden
This information collection is limited to record retention; it does not require
record creation or reporting. In order to estimate the hour burden for retaining
these records the agency has made some assumptions.
First, covered entities do not engage in a special process to meet Title VII,
ADA, and GINA recordkeeping requirements specifically. We assume that
entities already create, access, and collect records during the employment
process and the regular course of business. Some or all of this information
may be collected automatically through electronic means or entered by the
employees. Once created or collected, the information is automatically
retained until the covered entity destroys the information. Therefore, entities
with processes in place incur little or negligible additional cost in complying
with the EEOC’s record retention requirement. The total number of
respondents that are subject to the recordkeeping requirement is estimated to
be 887,869, which combines estimates from private employment, 4 the public
sector, 5 colleges and universities, 6 apprenticeship programs, 7 and labor
organizations. 8
Second, newly formed entities may incur a small burden when setting up their
data collection and retention systems to ensure compliance with the EEOC’s
recordkeeping requirements. We assume some effort and time must be

Source of original data: 2021 Economic Census (https://www.census.gov/data/tables/2021/econ/susb/2021-susbannual.html). Local Downloadable CSV data. Select U.S. & states, 6-digit NAICS. The original number of employers
was adjusted to include only those with 15 or more employees.
5
Source of original data: 2022 Census of Governments: Employment. Individual Government Data File
(https://www.census.gov/data/datasets/2022/econ/apes/2022.html), Local Downloadable Data zip file “Individual
Unit Files.” The original number of government entities was adjusted to include only those with 15 or more
employees.
6
Source: U.S. Department of Education, National Center for Education Statistics, IPEDS, Fall 2022, Institutional
Characteristics component (provisional data). See Table 1, “Number and percentage distribution of Title IV
institutions, by control of institution, level of institution, and region: United States and other U.S. jurisdictions,
academic year 2022–23” (https://nces.ed.gov/ipeds/search/viewtable?tableId=35945&returnUrl=%2Fsearch).
7
Source: U.S. Department of Labor, Registered Apprenticeship National Results Fiscal Year 2021, Number of active
apprenticeship programs in 2021 (https://www.dol.gov/agencies/eta/apprenticeship/about/statistics/2021).
8
The EEOC has undertaken measures to enhance the agency’s existing EEO-3 data frame (i.e., roster) of potentially
eligible filers that was most recently used during the 2022 EEO-3 data collection. The number of labor organizations
was estimated by comparing the EEOC’s 2022 EEO-3 frame to a list of active unions from the U.S. Department of
Labor’s Office of Labor Management Standards (OLMS) Online Public Disclosure Room (OPDR) database
(https://olmsapps.dol.gov/olpdr/).
4

expended by new employers or labor organizations to familiarize themselves
with Title VII, ADA, and GINA recordkeeping requirements and explain
those requirements to the appropriate staff. We estimate that 30 minutes
would be spent for this familiarization process. This figure is the same as our
previous estimate. Once this burden is incurred during the familiarization
process, we assume that the employer will never face the same burden again.
The annual hour burden is based on the estimated number of newly-formed
entities with 15 or more employees that enter the market annually. Using
projected business formation estimates from the U.S. Census Bureau for 2023
and the number of new apprenticeship programs established in 2021 provided
by the Department of Labor, we estimate that there are 356,969 entities that
would incur this start-up burden. 9 Assuming a 30-minute burden per entity,
the total annual hour burden is 178,485 hours (.5 hour × 356,969 new entities
= 178,485 hours). The estimated associated burden hour cost to respondents
is $5,806,101, or around $16.27 per new entity. 10
13.

Information collection cost burden
There is no additional annual cost to the employers because this is a
recordkeeping requirement that does not require reporting or the creation of
any new documents. As noted above, employers must only retain those
records that they have already made or kept for other reasons.

14.

Cost to federal government
There is no cost to the federal government because this is merely a
recordkeeping requirement for regulated entities and does not obligate the
EEOC to incur any costs.

15.

Program changes or burden adjustments
There have been no program changes or adjustments to the requirements of
this information collection since its last approval.

16.

Publication of data for statistical use
No data will be published.

17.

Approval not to display the expiration date
The EEOC is not seeking approval for non-display of the OMB approval date
for this collection.

Sources: Business Formation Statistics from the U.S. Census Bureau
(https://www.census.gov/econ/bfs/index.html); Total projected business formation statistics (series BF_PBF4Q) for
2023, across all industries, for the US, not seasonally adjusted; U.S. Department of Labor, New Apprenticeship
programs for 2021 (https://www.dol.gov/agencies/eta/apprenticeship/about/statistics/2021).
10
Burden hour cost estimates are based on the median hourly wage rate of $32.53 for Human Resources Specialists
obtained from the Bureau of Labor Statistics, May 2024 (see U.S. Department of Labor, Bureau of Labor Statistics,
Occupational Outlook Handbook, https://www.bls.gov/ooh/).
9

18.

Exceptions to the certification statement
There are no exceptions to the EEOC’s certification statement.

42 U.S.C. § 2000e-8(c)
(c) Execution, retention, and preservation of records; reports to Commission; training
program records; appropriate relief from regulation or order for undue hardship;
procedure for exemption; judicial action to compel compliance
Every employer, employment agency, and labor organization subject to this
subchapter shall (1) make and keep such records relevant to the determinations of
whether unlawful employment practices have been or are being committed, (2)
preserve such records for such periods, and (3) make such reports therefrom as the
Commission shall prescribe by regulation or order, after public hearing, as
reasonable, necessary, or appropriate for the enforcement of this subchapter or the
regulations or orders thereunder. The Commission shall, by regulation, require each
employer, labor organization, and joint labor-management committee subject to this
subchapter which controls an apprenticeship or other training program to maintain
such records as are reasonably necessary to carry out the purposes of this subchapter,
including, but not limited to, a list of applicants who wish to participate in such
program, including the chronological order in which applications were received, and
to furnish to the Commission upon request, a detailed description of the manner in
which persons are selected to participate in the apprenticeship or other training
program. Any employer, employment agency, labor organization, or joint labormanagement committee which believes that the application to it of any regulation or
order issued under this section would result in undue hardship may apply to the
Commission for an exemption from the application of such regulation or order, and, if
such application for an exemption is denied, bring a civil action in the United States
district court for the district where such records are kept. If the Commission or the
court, as the case may be, finds that the application of the regulation or order to the
employer, employment agency, or labor organization in question would impose an
undue hardship, the Commission, or the court, as the case may be, may grant
appropriate relief. If any person required to comply with the provisions of this
subsection fails or refuses to do so, the United States district court for the district in
which such person is found, resides, or transacts business, shall, upon application of
the Commission, or the Attorney General in a case involving a government,
governmental agency or political subdivision, have jurisdiction to issue to such
person an order requiring him to comply.