The U.S. Court of Appeals for the 5th Circuit is currently reviewing the FCC’s order reinstating EEO Form 395-B. Oral arguments in the case were held last week.
Form 395-B would require stations to collect specific employment data regarding race, gender, and ethnicity of a station’s workforce. In addition, the FCC’s decision included an additional non-binary gender category. Because of constitutional concerns, the FCC would not use the data as a basis for enforcement. However, the FCC’s order required stations to make the workforce data public. Several organizations, including the Texas Association of Broadcasters and the National Religious Broadcasters Association, filed lawsuits against the FCC’s decision.
As we reported last week, the FCC sent a letter to the court in which it appeared to be backing away from the order. Its position became clear at oral argument. The FCC and Department of Justice conceded that the inclusion in the form of “non-binary” gender information would no longer be defended because of President Trump’s Executive Order recognizing there are only two genders.
The FCC, however, defended the remainder of the order despite the President’s executive order suspending DEI initiatives. In a letter to the court, the FCC stated that it could not reverse its decision because there is currently a 2-2 split in the Commission. Remember, FCC Chairman Carr and Commissioner Simington opposed reinstating Form 395-B, and Commissioner Starks and Commissioner Gomez supported it. As a result, until a new Commissioner is appointed, the FCC is not in a position to review the petitions for reconsideration that have been filed in the proceeding.
This leaves the decision squarely in the hands of the Fifth Circuit Court of Appeals. While the FCC is bound by statute regarding EEO, it is not bound to collect and make the data public. While the questions asked at the oral argument seemed favorable to those challenging the rule, predicting the outcome based on oral argument is always risky. We will keep a close watch on this litigation.
A copy of the FCC’s post-oral argument letter can be seen here.
Our previous story on this case can be found here.