September 8, 2008
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:
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:
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:
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:
Compliance Suggestions
In light of the above changes, we suggest that employers consider the following:
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.