EEO Form 395-B Fate Still Uncertain

A recent hearing on the US Fifth Circuit Court of Appeals on the legitimacy of the FCC decision reinstating EEO Form 395-B to collect employee ethnicity, race and gender shed very little light on whether the form itself will survive judicial scrutiny.  The FCC conceded during the hearing that the addition of a “non-binary” gender category on the form would be removed under President Trump’s new executive order that the U.S. government will recognize only male and female genders.

Because there are also petitions pending at the FCC seeking reconsideration of the decision reinstating Form 395-B, the Court asked whether the FCC might be reconsidering and reversing the reinstatement of the form.  The FCC notified the court after the hearing that it is deadlocked 2-2 on the issue given that a third Republican Commissioner has not yet been appointed.  Whether the Court rules before the FCC might internally take up the issue remains to be seen. A ruling upholding the form, even without the new “non-binary” gender category, might complicate the Commission’s ability to change course.

For the moment, the status quo remains – the legal challenges prevent the FCC from ordering completion and submission of the form by broadcasters.  A revamped Office of Management and Budget, which would have to approve any revised form, could spell another obstacle to the form being approved.  While the rule sets a September 30 annual deadline for the form to be filed, the Media Bureau must issue a notice first, an unlikely step at this point.