New EEO-1 Report Must Be Filed by September 30, 2008
 
August 20, 2008
 
Laura Garofalo - Chicago

As we reported in June 2007, last year the Equal Employment Opportunity Commission (EEOC) significantly revamped the EEO-1 report form for the first time in decades. The deadline for filing this year’s report is September 30, 2008. This is the first year that employers must incorporate all of the changes to the EEO-1 report in their filing.

Basic Reporting Requirements

EEO-1 reports must be filed on an annual basis by the following types of employers:

• private employers with 100 or more full-time, part-time and leased employees (excluding state and local governments, primary and secondary school systems, institutions of higher education, Indian tribes and tax-exempt private membership clubs other than labor organizations)
• private employers with less than 100 employees, if they are affiliated with, owned, or controlled by another company, and the employees of the related companies total 100 or more
• federal government contractors and first-tier subcontractors with 50 or more employees that (i) have a contract of at least $50,000, (ii) serve as a depository of government funds in any amount, or (iii) serve as a financial institution that is an issuing and paying agent for U.S. Savings Bonds and Notes

This year’s report must use employment data from any pay period in July through September of 2008. To file the report, employers must use the EEO-1 online filing system or submit the EEO-1 as an electronically-transmitted data file.

The EEO-1 report breaks down an employer’s employee population by job category and then by ethnicity, race and gender.

The new EEO-1 report form contains two major changes. First, it includes new definitions for the job category “officials and managers.” Employers were required to incorporate the changes to the “officials and managers” category for purposes of their September 2007 report. Second, it contains new race and ethnicity categories. Although employers were permitted to rely on the old race and ethnicity categories when completing their 2007 filing, they must use the new categories for purposes of their September 2008 filing.

Changes to the Race and Ethnicity Categories

The new EEO-1 report form contains several modifications to the race and ethnicity categories. It includes a new category titled “two or more races,” which is available only for employees who do not identify themselves as Hispanic or Latino. The new report also divides “Asian or Pacific Islander” into two separate categories – “Native Hawaiian or Other Pacific Islander” and “Asian.” The form now lists a total of seven race and ethnicity categories. Additionally, the new EEO-1 report renames certain categories – “Hispanic” is now “Hispanic or Latino” and “Black” is now “Black or African American.”

Steps Employers Should Take to Complete the New EEO-1 Report Form

The EEOC strongly endorses self-identification of race and ethnic categories, as opposed to visual identification by employers. Accordingly, as soon as possible, employers should ask their employees to confidentially self-identify their race and ethnicity.

The EEOC suggests that employers use the following statement in their self-identification requests:

[Company name] is subject to certain governmental record keeping and reporting requirements for the administration of civil rights laws and regulations. In order to comply with these laws, we invite you to self-identify your race and ethnicity. Submission of this information is voluntary. Refusal to provide it will not subject you to any adverse treatment. The information will be kept confidential and will be used only in accordance with the provisions of applicable laws, executive orders and regulations, including those that require the information to be summarized and reported to the federal government for civil rights enforcement. When reported, data will not identify any specific individual.

An employer must accept an employee’s self-identification as correct and may not dispute it for purposes of filing an EEO-1 report. If, and only if, an employee declines to self-identify may an employer obtain the necessary information from existing employment records or visual observation.

The new EEO-1 form classifies Hispanics and Latinos as an “ethnic category” for which no race data needs to be reported. Employers must report race data (e.g., Caucasian, Asian) only for employees who do not self-identify as “Hispanic or Latino.”

The EEOC has adopted a two-part inquiry of employees as part of its effort to obtain a more accurate count of Hispanics and Latinos. An employer should first ask if an employee is “Hispanic or Latino” (ethnicity). If the employee answers “no,” the employer should then ask what race(s) the employee considers himself or herself to be. If an employee self-identifies as “Hispanic or Latino,” he or she should be reported as “Hispanic or Latino” even if the employee claims to be more than one race. If any non-Hispanic or non-Latino employee identifies himself or herself as being more than one race, the employer should include the employee in the “two or more races” category on the report form. The “two or more races” category is available only for employees who do not identify as “Hispanic or Latino.”

Special Issues for Federal Contractors With Affirmative Action Obligations

In our prior alert relating to the new EEO-1 report, we indicated that the Office of Federal Contract Compliance Programs (OFCCP), which enforces federal contractor affirmative action obligations, had not yet changed its race and ethnicity classifications to make OFCCP regulations consistent with the new EEO-1 report form, nor had the OFCCP announced when its new regulations would go into effect or how affirmative action employers should compare their past race and ethnic information with the new race and ethnic categories for purposes of evaluating progress against past goals. Since that time, the OFCCP has issued an “Interim Guidance on the use of Race and Ethnic Categories in Affirmative Action Programs.”

The Interim Guidance states that, until final rules and guidance are provided by the OFCCP, the OFCCP will not cite a contractor for non-compliance solely because it utilizes the race and ethnic categories required by the new EEO-1 report when preparing its affirmative action program. Alternatively, contractors are permitted to prepare their affirmative action programs using the race and ethnic categories provided under the current OFCCP regulations.

Until further rules and guidance are provided by the OFCCP, when developing an organizational profile, contractors will not be cited for non-compliance if they choose to develop such analyses using the new EEO-1 categories rather than the original EEO-1 race and ethnicity categories. Contractors also are permitted to prepare their affirmative action programs using the race and ethnic categories provided under the current OFCCP regulations.

In addition, pending further guidance, contractors should consider all individuals identified as belonging to two or more races as minorities when comparing the percentage of women and minorities in each of their job groups to the available workforce, or when examining whether their employment practices result in disparities in the employment or advancement of minorities.

When establishing placement goals, contractors should, in most cases, continue to establish a single goal for all minorities. Where a substantial disparity exists in the utilization of a particular minority group, or in the utilization of men or women of a particular minority group, the contractor may be required to establish separate goals for those groups. Pending further guidance, contractors are not expected to set a separate placement goal for individuals identified as belonging to more than one race.

Conclusion

Employers must properly – and timely – submit their EEO-1 reports. The report may be used in a variety of ways, including for civil rights enforcement, to target companies for investigation (e.g., the OFCCP uses EEO-1 reports to select contractors to be audited and to identify employers whose statistics indicate they should be reviewed to address possible systemic discrimination), and by parties during litigation.

Holland & Knight attorneys can assist employers who have questions concerning the preparation and filing of their EEO-1 reports.

For more information, contact:

Laura Garofalo
312.715.5722
laura.garofalo@hklaw.com
toll free: 1.888.688.8500

About Our Labor, Employment and Benefits Practice