January 16, 2007
Employers with over 100 employees (or federal contractors with over 50 employees) are required to annually report the gender, race and ethnicity of their employees to the Equal Employment Opportunity Commission (the “EEOC”). For the first time in 40 years, the EEOC has revised the form it requires for these reports (the EEO-1). This new form is required for the next reporting deadline, September 30, 2007, and should reflect data from one pay period from July through September 2007.
- Self-Identification of Racial Background. One of the most significant changes in the data collection process is that employers are requested to have employees “self-identify” their racial background, as opposed to using existing employment records or visual identification. While employers are not required to survey their current workforce for the purpose of having employees self- identify, they are encouraged to do so, and they should immediately begin surveying new hires for this information.
- Changes to Racial Background Categories. The addition of a new category of “Two or More Races” as an option for racial background is an important change reflective of the realities of present day society. Also, the former category of “Asian or Pacific Islander” has been subdivided into two separate categories of “Asian” and “Native Hawaiian or other Pacific Islander.” In addition, Hawaiian employers are required to report race and ethnicity data for the first time.
- Changes to Job Categories. Finally, the EEO-1 report refines the former job category of “Officials and Managers” into two subgroups: “Executive/Senior Level Officials and Managers” and “First/Mid- Level Officials and Managers.”
Litigation Avoidance Tip. The EEOC analyzes the data reported on EEO-1 forms to flag employers who appear to be illegally underemploying women or minorities. Employers would be well advised to complete a mock EEO-1 to evaluate this infor- mation prior to filing an official report. This can also give employers an opportunity to review the data reported for senior and mid-level managers for any “glass ceiling” indicators.
Involving an attorney in the analysis of the data may even protect the mock report from discovery in litigation, due to the attorney-client privilege.