[guest author: Alexa Morgan]

Increasingly, employers are choosing to encourage their job applicants and employees to self-identify their gender, race/ethnicity, disability, and veteran status to assist with voluntary diversity and inclusion initiatives. For federal contractors and subcontractors, however, obtaining and retaining self-identification information is not optional, it is a requirement. But knowing from whom you may request self-identification information, when you may request it, and what form(s) to use can be confusing given that the obligations stem from four sets of statutes and regulations, each of which have different requirements.

In this three-part blog series, we will discuss self-identification compliance requirements and “best practices” covered federal government contractors choose to undertake. In today’s blog, Part One of the series, we will cover self-identification for purposes of EEO-1 reporting. In Part two of the series, we will discuss self-identification reporting pursuant to Executive Order 11246 and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA), as amended. Finally, in Part Three of the series, we will cover self-identification pursuant to Section 503 of the Rehabilitation Act of 1973 (Section 503), as well as self-identification recordkeeping, and some tips for encouraging self-identification.

Self-Identification for EEO-1 Reporting

OFCCP’s Rules require prime federal contractors and first-tier subcontractors subject to Executive Order 11246, as amended, with 50 or more employees and “a” prime contract or “a” first-tier subcontract valued at $50,000 or more to annually submit an EEO-1 report to the EEO-1 Joint Reporting Committee–comprised of the Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP). See 41 CFR section 60-1.7, which implements Executive Order 11246. Executive Order 11246 authorizes OFCCP to undertake information collections from covered federal government contractors independently of the EEOC’s separate information collection authority pursuant to Title VII of the 1964 Civil Rights Act. (NOTE: The EEOC is currently in the process of seeking approval under the Paperwork Reduction Act (PRA) to collect the EEO-1 survey for 2019, 2020, and 2021. The EEOC is seeking to collect Component 1 of the survey and to discontinue the collection of Component 2 pay data. The EEOC will announce the opening of future EEO-1 collections, as well as new deadline dates, by posting a notice on the EEOC home page and sending a notification letter to eligible EEO-1 filers). Covered federal government contractors do not file EEO-1s for Puerto Rico, the Virgin Islands, Guam, Samoa, or other U.S. territories and Protectorates. See Paragraph 1 of the EEOC’s EEO-1 Instruction Booklet.

On the EEO-1 report, the covered employer must report all employees the employer must categorize by race, sex, and job category. Federal agencies use the EEO-1 Report to collect data from private employers and government contractors about their women and minority workforce to create a baseline on employment demographics by race and sex. The agencies also use the EEO-1 Report data to support civil rights enforcement and to analyze employment patterns, such as the representation of women and minorities within companies, industries, or regions. Both the EEOC and the OFCCP have informally taken the position that employee self-identification is the preferred method to collect this demographic information. If an employee declines to self-identify his or her race and/or ethnicity, the reporting employer may use employment records, personal knowledge, or visual identification. The EEOC also insists that employers report the race, sex, and ethnicity of all of its employees, but also suggests, in the absence of legal authority, that it is unlawful for employers to require employees to report their race, sex, and ethnicity. As a result, an urban myth has grown up within the HR community nationwide that it is not lawful to compel an employee to reveal his/her race, sex, or ethnicity for the purpose of filing an accurate EEO-1 Report. While we believe it is more likely than not that a covered employer required to file an EEO-1 report could compel an employee to reveal his/her race sex information pursuant to the employee’s duty of loyalty owed to every employer, few Human Resources managers relish the idea of taking adverse action against employees who fail or refuse to self-identify their race, sex and/or ethnicity. Rather, HR managers simply routinely default to visual identification and make their best judgment about an employee’s race, sex, and ethnicity. Problem solved.

Many HR managers believe that employees should be given the opportunity to self-identify via a paper or electronic self-identification form, although in recent years there has been a groundswell of movement towards on-line reporting of all HR data, including EEO-1 race, sex, and ethnicity data. Most employers provide new hire employees with a self-identification form, post-offer, and acceptance, as part of the onboarding process. Alternatively, more modern electronic applicant tracking systems and corporate HR software simply port over any pre-employment self-identification data to the new hire’s employee files.

To preserve a “lack of knowledge” defense to failure-to-hire claims, contractors should preserve self-identification data separately from application files or other records available to those responsible for personnel decisions. Neither the EEOC nor the OFCCP endorse or require a particular self-identification form for race, sex, and ethnic information (there are different rules for federal contractors governed by Section 503 of the Rehabilitation Act as to self-identification of disability). Accordingly, employers and covered federal government contractors are free to create their own “self-ID” forms for purposes of EEO-1 reporting. In deference to the EEOC’s concern that employers not force even incumbent employees to reveal their race, sex, or ethnicity, most self-ID forms collecting EEO-1 demographic information currently begin with a statement about the voluntary nature of the form. The EEOC suggests the following language which many employers embroider to add a request for information about the employee’s sex and or veteran status [to help complete the VETS-4212 form if the employer is also covered by 38 USC section 4212(d)], among other improvements in the language to encourage persons expressing interest in a position to provide the requested demographic data:

“The employer is subject to certain governmental recordkeeping and reporting requirements for the administration of civil rights laws and regulations. In order to comply with these laws, the employer invites employees to voluntarily self-identify their race or ethnicity. Submission of this information is voluntary and refusal to provide it will not subject you to any adverse treatment. The information obtained will be kept confidential and may only be used 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.”

It is prudent for employers to also collect the employee’s name and job title and assign an identifier number for electronic retrieval for further statistical analyses. As with all other federal agencies, the EEOC and OFCCP must use the Office of Management & Budget’s definitions of race and ethnicity set out in OMB Directive 15 (rev 1997) as follows:

• Hispanic or Latino: A person of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin regardless of race.
• White (Not Hispanic or Latino): A person having origins in any of the original peoples of Europe, the Middle East, or North Africa.
• Black or African American (Not Hispanic or Latino): A person having origins in any of the black racial groups of Africa.
• Native Hawaiian or Pacific Islander (Not Hispanic or Latino): A person having origins in any of the peoples of Hawaii, Guam, Samoa, or other Pacific Islands.
• Asian (Not Hispanic or Latino): A person having origins in any of the original peoples of the Far East, Southeast Asia, or the Indian Subcontinent, including, for example, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, the Philippine Islands, Thailand, and Vietnam.
• Native American or Alaska Native (Not Hispanic or Latino): A person having origins in any of the original peoples of North and South America (including Central America), and who maintain tribal affiliation or community attachment.
• Two or More Races (Not Hispanic or Latino): All persons who identify with more than one of the above five races.

Employers should use only these race/ethnicity categories and not add any additional ones, although the federal government allows collection of which two or more races in the employer’s discretion (which seems to be of interest only to the federal government and certain university employers). The EEOC requires all employers responsible to file an EEO-1 Report pursuant to Title VII to account for all employees and will not countenance “other” or “unknown” employer responses as to any individual employee.

Contractors that are concerned about reporting “non-binary” employees (i.e., someone who does not identify exclusively as male or female) should read DE’s November 22, 2019 blog post titled, The “Non-Binary” Dilemma: Federal Gender Reporting When “Male” & “Female” Are No Longer the Only Realities in the Workplace.