Sylvia Smith
8.21.07

Client Bulletin #376 - For PDF version of this Client Bulletin, click here.

September 30, the deadline for submitting the EEO-1 Report, will be here before we know it. Are you ready? Did you know that even employers who are not federal contractors have to fill out and submit the new form? Here are some FAQs that we hope will help you as the deadline approaches.

FAQ's

 
My company is not a federal contractor.
Do we have to file an EEO-1?

Yes, if you have 100 or more employees. In addition, federal government contractors and subcontractors with 50 or more employees and a contract worth $50,000 or more, as well as most financial institutions, are also required to file.  

What are the changes?

There are two major changes. First, the former “Officials and Managers” category (EEO  category 1) has been subdivided based on responsibility and influence within the organization. Second, the new EEO-1 report requires employers to provide information about “ethnicity” in addition to information about race and sex.

What are the changes to the EEO category formerly known as 1 (“Officials and Managers”)?

The new “category 1” consists of Executive/Senior Level Officials and Managers (new category 1.1) and First/Mid-Level Officials and Managers (new category 1.2).

Executive/Senior Level Officials and Managers plan, direct and formulate policy, set strategy and provide overall direction; in larger organizations, they are within two reporting levels of the CEO. 

First/Mid-Level Officials and Managers direct implementation or operations within specific parameters set by Executive/Senior Level Officials and Managers and oversee day-to-day operations.

What are the changes to ethnicity and race reporting? 

The revised EEO-1 Report requires employers to report their employees by “ethnicity” in addition to race and changes some of the racial categories.

Ethnicity. The ethnicity categories are simple but counterintuitive because there are only two ethnicities: Hispanic/Latino, or Non-Hispanic/Latino. “Hispanic/Latino” is defined as “a person of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin, regardless of race.” This sounds wrong because the Hispanic world is very racially diverse. But that’s the way it is: the reporting categories are artificial and should be treated as such.   

Anyone who is not Hispanic/Latino should be categorized as “Non-Hispanic/Latino.” 

Race. Hispanic/Latino used to count as a “race,” but now it is an “ethnicity.” Under the new EEO-1 rules, Hispanic/Latino people do not have a “race.” Therefore, if an employee self-identifies his “ethnicity” as Hispanic/Latino, then his “race” should be left blank. If he is Not-Hispanic/Latino, then the employer must designate a race from one of the racial categories. Strange, but fairly simple once you get the hang of it.

In addition, the race categories were changed. There is a new category titled “Two or More Races, Not Hispanic/Latino.” The old category “Asian/Native Hawaiian or Other Pacific Islander” has been subdivided. The new categories are “Asian,” and “Native Hawaiian or Other Pacific Islander.”

What race do I assign to, for example, a Honduran of sub-Saharan African descent?

Honduras has a Spanish culture, so this individual’s ethnicity should be designated as Hispanic/Latino. Her race should not be designated at all.

How about a Haitian of sub-Saharan African descent?

This individual’s ethnicity would be Not Hispanic/Latino because Haiti has a French, not a Spanish, culture. Therefore, she would also have to be assigned a race (in this example, “Black or African American”).

What do I do if an employee self-identifies as several specific races? Should I count him in multiple categories?

If the employee is Hispanic/Latino, then the “ethnicity” should be Hispanic/Latino, and there should be no “race.” Non-Hispanic employees who are multiracial should be reported as “Two or More Races, Not Hispanic/Latino.” An employee may be counted in only one of the categories in the revised EEO-1 Report.

Can you give me a link to the new EEO-1 report?

Yes. Click here.

I don’t have this kind of information about my employees. What should I do?

With respect to new hires, employers should be soliciting race and ethnicity information consistent with these revisions.

With respect to current employees, employers are not required to resurvey; however, the Equal Employment Opportunity Commission encourages them to do so. If you periodically ask employees to update personal information, you may use that opportunity to also ask for confidential self-identification using the revised ethnicity and racial categories. If an employee declines to self-identify, employment records or observer identification may be used. If employees provide race or ethnicity data, such records must be preserved under the regulations.

Besides splitting Officials and Managers, and creating new race and ethnicity categories, are there any other changes in the EEO-1 report?

Minor changes were made to other categories that may affect the EEO category assigned to titles within an employer’s workforce.  For example, some business and financial positions were moved from “Officials and Managers” to “Professionals.” Click here for detailed information.
           
What about the other EEO reports?

The EEOC plans to update the other reports, i.e., EEO-3, EEO-4, and EEO-5, to use the same race and ethnicity categories as required for the  EEO-1 Report.  The EEOC has said that it will give respondents a full reporting cycle to change their recordkeeping.  For example, if the EEO-4 form is modified in 2007, the change will not be implemented until 2009.

Are there any new developments that affirmative action employers should be aware of?

Yes. The Office of Federal Contract Compliance Programs plans to amend the recordkeeping and affirmative action regulations to ensure tracking and analysis of race and ethnicity consistent with the revised EEO-1 reporting categories. Right now, the OFCCP regulations authorize only the old categories (for example, a single “Officials and Managers” category, and the old racial categories). Until the OFCCP issues a final rule consistent with the new EEO-1 requirements, it has said that it will not cite a contractor for noncompliance solely because the contractor uses the new race and ethnicity categories in its affirmative action programs. (In other words, until the OFCCP issues its final rule, federal contractors may use either the old categories or the new categories in their affirmative action plans.) 

If you have questions relating to the submission of the annual EEO-1 Report or the collection of demographic information for the same, please contact any member of the Affirmative Action Practice Group or the Constangy attorney of your choice.

  
Constangy, Brooks & Smith, LLC has counseled employers, exclusively, on labor and employment law matters since 1946. The firm represents Fortune 500 corporations and small companies across the country. More than 100 lawyers work with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Georgia, South Carolina, North Carolina, Tennessee, Florida, Alabama, Virginia, Missouri, and Texas. For more information about the firm's labor and employment services, visit www.constangy.com, or call toll free at 866-843-9555.

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