Private sector employers with 100 or more employees (as well as employers with a federal government contract that have 50 or more employees) are required to fi le an EEO-1 report annually by September 30. Employers may use employment data from any pay period in July through September of the year in which the report is fi led. Generally, the form should be submitted electronically through the EEO- 1 Online Filing System or as an electronically transmitted data fi le. The Equal Employment Opportunity Commission (“EEOC”) uses the data to analyze trends in female and minority employment within companies, industries, regions and sectors of the economy and for civil rights enforcement. For government contractors, the Offi ce of Federal Contract Compliance Program (“OFCCP”) utilizes the information on the EEO-1 report to determine which facilities may be selected for compliance evaluations. EEO-1 data is also used by the EEOC and OFCCP to identify patterns of employment discrimination.

Under prior EEO-1 reporting guidelines, many employers had been submitting EEO-1 reports containing data on employees’ ethnicity and race based purely on the employer’s best guess as to the categories in which an employee should be placed. Fearful that questions concerning protected categories could mislead employees into thinking that such information may be considered in employment decisions, many employers have relied on visual identifi cation of employees’ race and ethnicity. Moreover, despite an employee’s multi-racial or ethnic background, only one race could previously be recorded on the EEO-1. If an employee was noted as Hispanic, for example, race information was not reported. Recent changes to the reporting obligations promote more accurate and reliable data collection.

2007 Changes to Race and Ethnicity Reporting: The race and ethnic categories in the 2007 EEO-1 forms have been changed as follows:

  • “Two or more races” has been added;1
  • “Asian or Pacific Islander” has now been divided into two separate categories of “Asian” and “Native Hawaiian or other Pacific Islander”;2
  • “Black” has been changed to “Black or African American”; and
  • “Hispanic” has been changed to “Hispanic or Latino.”

For the 2007 report, the “Previous Year Total” cells will be automatically completed, and the data cells for the new categories will be marked “Void.” This row must be completed by employers beginning with the 2008 report. Self-identification of Race and Ethnicity: The EEOC reaffirms its position that voluntary self-identifi cation of race and ethnicity (as opposed to an employer’s visual identification) is the preferred (but not legally required) method for gathering information for the EEO-1 report. A “two question” format is now specifi cally endorsed by the EEOC in which the employer should fi rst ask whether the employee is Hispanic or Latino (to determine ethnicity), and then ask what race or races the employee considers himself or herself to be. However, race data for a Hispanic or Latino employee is still not reported on the EEO-1. To emphasize to employees that self-identifi cation is voluntary and that ethnicity and race data are being collected only for proper purposes, the EEOC recommends the following statement be included on any document requesting ethnicity or race 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 selfidentify their race and ethnicity. Submission of this information is voluntary and refusal to provide it will not subject you to any adverse treatment. The information will be kept confi dential and will 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 specifi c individual.

An employer may still use visual identifi cation for employees, but this method should be used for those who decline to self-identify. The EEOC encourages but does not require employers to resurvey current employees (e.g., include a confi dential, voluntary opportunity to self-identify when personnel information is updated).

EEO Job Category Changes: With respect to EEO-1 job categories, business and financial occupations must now be placed in the “Professionals” category. (They were previously placed in the “Offi cials and Managers” job category.) Further, the EEO-1 form has now divided the former “Offi cials and Managers” category into two separate groups: “Executive/Senior Level Offi cials” and “Managers and First/Mid-Level Offi cials and Managers.” Differences in responsibility and infl uence will determine the categorization of a position employers must use.

  • Executive/Senior Level Officials include the following: Employees who plan, direct and formulate policies, set strategy and provide the overall direction of the organization for the development and delivery of products and services, within the parameters approved by boards of directors or other governing bodies. The Executive/ Senior Level Offi cials also plan, direct or coordinate activities with the support of subordinate executives and staff managers. In larger organizations, those individuals within two reporting levels of the CEO and whose responsibilities require frequent interaction with the CEO are Executive/Senior Level Offi cials and Managers. Examples of Executive/Senior Level Offi cials include chief executive offi cers; chief operating officers; chief fi nancial offi cers; line of business heads; presidents or executive vice presidents of functional areas or operating groups; chief information offi cers; chief human resource offi cers; chief marketing offi cers; chief legal officers; management directors; and managing partners.
  • First/Mid-Level Offi cials and Managers include the following: Employees who oversee and direct the delivery of products, services or functions at group, regional or divisional levels. The First/Mid-Level Offi cials and Managers directly implement policies within specifi c parameters set by Executive/Senior Level Offi cials and Managers. They may also serve at functional, line of business segment or branch levels and may be responsible for directing and executing the day-to-day operational objectives of the organization, conveying the directions of higher level offi - cials and managers to subordinate personnel and, in some instances, directly supervising the activities of exempt and non-exempt personnel. Examples of First/Mid-Level Officials and Managers include vice presidents and directors; group, regional or divisional controllers; treasurers; human resources, information systems, marketing and operations managers; fi rst-line managers; team managers; unit managers; operations and production managers; branch managers; administrative services managers; purchasing and transportation managers; storage and distribution managers; call center or customer service managers; technical support managers; and brand or product managers.

Conclusion: Employers subject to EEO-1 reporting requirements should carefully consider any decision to adopt the voluntary self-identifi cation methods to collect data for their 2007 and subsequent years’ EEO-1’s. To ensure that jobs are correctly categorized, employers should also review the updated job classifi cation guide available from the EEOC that will assist employers with identifying which jobs belong in each EEO job category. The guide may be found at  www.eeoc.gov.