September 30 Deadline Looms: How to Properly Complete Your 2008 EEO-1 Report

The U.S. Equal Employment Opportunity Commission (“EEOC”) and the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) adopted the employer EEO-1 data report more than 40 years ago, in 1966. The reported information is intended to allow the EEOC to analyze patterns of employment discrimination, support civil rights enforcement and evaluate trends in female and minority employment. The OFCCP, in turn, uses EEO-1 data to determine which federal contractors and first tier subcontractors to select for compliance evaluations (i.e., audits).

2005 Changes

After years of using essentially the same reporting format, on November 28, 2005, the EEOC issued its final notice of changes to the EEO-1 requirements. The EEOC also announced a transition period, with some changes required for the EEO-1 report due by September 30, 2007 and full implementation required by September 30, 2008. Key changes included:

• Adoption of self-identification as the preferred method of determining race and ethnicity;
• Preference for a two-step inquiry in seeking employee self-identification;
• Creation of new race and ethnicity categories: Hispanic or Latino” (instead of “Hispanic”), “Black or African American” (instead of “Black”), “Asian” and “Pacific Islander” (two categories to replace the previous single “Asian and Pacific Islander” category), and a new “Two or More Races” category;
• Changes in the definition and number of job categories (e.g., subdividing “Officials and Managers” into Executive / Senior Level and First / Mid-Level Officials and Managers; movement of some occupations to Professionals or Operatives; renaming some job categories); and
• Mandatory race and ethnicity reporting by employers in Hawaii (which previously only had to report gender).

Importantly, the new form strongly encourages employers to ask their employees to self-identify their race or ethnicity and only to rely on visual identification when an employee refuses to self-identify. Note, however, that it is not permissible to force employees to declare their racial classification.

The Two-Question Format

In addition to the above category changes, the EEOC prefers that employers use a two-question, Q&A format when asking for self-identification of race / ethnicity. Under the envisioned structure, employees are asked:

1. Are you Hispanic or Latino?

2. If you answered “No”, please select one of the following categories that best describes your race/ethnicity:

• White (Not Hispanic or Latino).
• Black or African American (Not Hispanic or Latino).
• Native Hawaiian or Other Pacific Islander (Not Hispanic or Latino).
• Asian (Not Hispanic or Latino).
• American Indian or Alaska Native (Not Hispanic or Latino).
• Two or More Races (Not Hispanic or Latino).

According to the EEOC, this revised structure is required because the category “Hispanic or Latino” is an ethnicity category that describes “a person of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin, regardless of race.” (Emphasis added). The other listed EEO-1 categories (e.g., White, Black or African American) relate to racial categories for individuals who are otherwise not included in the “Hispanic or Latino” ethnicity grouping. The EEOC also favors the two-question format on the grounds that it has been shown to yield more accurate data about Hispanics and Latinos.

Two or More Races

Although the EEOC adopted a new “Two or More Races” category for the EEO-1, the regulations do not require employers to detail which racial combinations constitute that category. The EEOC cited statistics that showed only 2.4% of respondents identified themselves in the “Two or More Races” category in the 2000 Census. The EEOC also asserted that “Two or More Races” is consistent with the OFCCP’s use of EEO-1 data to distinguish between “minorities” and “non-minorities,” because the category could be counted as a “minority” for purposes of the OFCCP’s analysis (which is only partially correct).

September 30, 2007 Initial Deadline

The revised form first became effective with the 2007 EEO-1 reporting deadline (i.e., September 30, 2007). This means that the new job categories had to be used for 2007 workforce data filed on September 30, 2007. However:

• Employers were not required to resurvey their workforces using the new race / ethnicity categories before submitting the 2007 EEO-1. Mandatory use of the new race and ethnicity categories was essentially deferred until the September 30, 2008 report deadline.
• For new hires, employers were instructed to “seek self-identification of new employees under the new ethnic and racial categories as soon as possible.”
• Employers were also advised that “if the employer does not resurvey its workforce for the 2007 report, it should count [the] employees previously identified [as “Asian / Native Hawaiian or Other Pacific Islander”] as “Asian” for the 2007 EEO-1.

September 30, 2008 Deadline and Resurveying Obligations

The transition period for the new requirements ends with the 2008 EEO-1. Specifically, the EEOC’s Implementation Q&As and the Instruction Booklet clearly anticipate that employers would resurvey their workforces using the new race / ethnicity categories in order to accurately complete a form due on September 30, 2008 However, some employers have declined to resurvey unless the EEOC’s regulations are revised. In addition, the EEOC is informing employers who call that resurveying existing employees is not required, but they should be using the new process and categories to obtain self-identification from new employees.

This is because the EEOC’s Implementation Q&As expressly stated that resurveying the workforce was not required for the reports due in 2007, but it failed to provide any similar written instruction for the 2008 filings (or express requirement). Having said this, the EEO-1 Instructions provide that “[s]elf-identification is the preferred method of identifying the race and ethnic information necessary for the EEO-1 report. Employers are required to attempt to allow employees to use self-identification to complete the EEO-1 report. If an employee declines to self-identify, employment records or observer identification may be used.” (Emphasis added). Moreover, without some type of survey, it will be difficult for employers to comply with the reporting requirements, given that the exceptions in the Implementation Q&As technically do not extend past 2007.

Thus, in applying the new categories, and in particular the new “Asian” and “Two or More Races” categories, many employers are using various methods to solicit self-identification from their workforces in order to make a good-faith effort to submit accurate reports.

OFCCP / Affirmative Action Implications

As noted above, the OFCCP uses the same EEO-1 report data as the EEOC. However, it should be noted that the OFCCP has not yet adopted the new EEO-1 race and ethnicity classifications for its separate affirmative action plan creation and reporting requirements.

Specifically, despite changes to the EEO-1 race categories, the OFCCP continues to require federal contractors and subcontractors to collect, maintain and report race and ethnicity for affirmative action compliance purposes in five categories: White, Black, Hispanic, Asians / Pacific Islander, and American Indian / Alaskan Native. (41 C.F.R. Part 60). The OFCCP also has not adopted a “Two or More Races” category and does not separate “Asians” from “Native Hawaiian or other Pacific Islanders.”

On August 1, 2008, the OFCCP updated its 2007 Interim Guidance on the Use of Race and Ethnic Categories in Affirmative Action Programs. Under the Guidance, until the OFCCP issues final rules, as a matter of enforcement discretion, employers may use either the current OFCCP categories or the new EEO-1 categories in preparation of affirmative action compliance data. The OFCCP “will not cite a contractor for non-compliance solely because it utilizes the race and ethnic categories required by the revised EEO-1 Report when preparing its AAP.” Thus:

• “Contractors are free to collect more detailed demographic data than is required to complete the revised EEO-1 Report.”
• Individuals self-identifying as either “Asian” or “Pacific Islander” in the two new EEO-1 categories may be identified as “Asian or Pacific Islander” in the OFCCP’s categories.
• Individuals who identify as “Two or More Races” should be identified as “minorities” in setting placement goals and reporting employment activity.

Compliance Suggestions

In light of the above changes, we suggest that employers consider the following:

• Use the two-question self-identification format for applicants (to comply with OFCCP requirements, if a federal contractor or subcontractor) as well as current employees.
• Use the new “Two or More Races” category.
• Provide current employees with an opportunity to self-identify using the new racial categories prior to September 30, 2008.
• Where an applicant is given the option to pick “Two or More Races,” if an employer is a federal contractor or subcontractor, ask the applicant to identify the race or ethnicity with which the applicant most identifies in order to comply with current, separate OFCCP reporting requirements.
• Include “Two or More Races” as “minority” when reporting employee activity data, placement goals and goal achievement to the OFCCP.
• Roll up new race / ethnicity categories into old OFCCP categories until new regulations are issued by the OFCCP. Employees who identify as either “Asian” or “Native Hawaiian or Other Pacific Islander” would roll up to old category “Asian or Pacific Islander.”
• Adopt a standard self-identification survey form to document evidence of the two-step process, use of the new categories and informed self-identification by employees.
• Make sure you are a covered federal contractor before checking “yes” in the “contractor box” on the EEO-1 form, because the OFCCP uses that answer in selecting employers for audit.

For assistance in preparing self-identification forms, resurveying your current employees and/or converting data for use in separate OFCCP reporting, please contact any member of the McGuireWoods Labor & Employment or Employee Benefits Teams.