The deadline for filing this year’s EEO-1 report is September 30, 2008. Notably, this is the first time in more than 20 years that the EEO-1 report has substantially changed.

EEO-1 Reporting Basics. EEO-1 reports must be filed annually by the following types of employers:

  •  Private employers with 100 or more full-time, part-time and leased employees (except for state and local governments, primary and secondary school systems, institutions of higher education, Indian tribes and tax-exempt private membership clubs other than labor unions);
  •  Private employers with less than 100 employees if they are affiliated with, owned or controlled by another company, and the workforce of all such related companies, collectively, totals 100 or more employees; and
  •  Federal government contractors and subcontractors with 50 or more employees that (a) have a contract of at least $50,000; (b) serve as a depository of government funds in any amount; or (c) serve as a financial institution that is an issuing and paying agent for U.S. Savings Bonds and Notes.

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

The EEO-1 report is submitted to the Equal Employment Opportunity Commission (EEOC) and the Department of Labor, Office of Federal Contract Compliance Programs (OFCCP). The EEOC uses the data to support civil rights enforcement and analyze employment patterns such as the representation of female and minority workers within companies, industries or regions. The OFCCP uses EEO-1 data to determine which employer facilities to select for compliance evaluations. The OFCCP’s system uses statistical assessment of EEO-1 data to select facilities where the likelihood of systematic discrimination is the greatest.

This year’s EEO-1 report must use employment data from one payroll period during the third quarter (July, August or September) of 2008.

To file the report, employers must (1) use the EEO-1 web-based online filing system; (2) submit the EEO-1 as an electronically transmitted data file; or (3) submit a computer printout in accordance with the Special Reporting Procedure (SRP) outlined by the EEOC. (Information on the SRP can be found at http://www.eeoc.gov/eeo1survey/compfilingsingle. html.)

The new EEO-1 report form contains two major changes. The first change was effective last year and required employers to apply the new definitions for the job category “officials and managers” by breaking down that job group into two subgroups: Executive/ Senior Level Officials & Managers; and First/Mid Level Officials & Managers. The second change is effective this year and requires employers to incorporate new race and ethnicity categories.

Changes to the Race and Ethnicity Categories. The revised EEO-1 report now lists seven race and ethnicity categories. It adds a new category titled “two or more races;” divides “Asian or Pacific Islander” into two separate categories (“Asian” and “Native Hawaiian or other Pacific Islander”); renames “Black” as “Black or African American;” renames “Hispanic” as “Hispanic or Latino;” and strongly endorses self-identification of race and ethnic categories, as opposed to visual identification by employers.

The new category titled “two or more races” is available only for employees who do not identify themselves as “Hispanic or Latino.” The new EEO-1 form classifies Hispanics and Latinos as an “ethnic category;” therefore race data for employees who self-identify as Hispanic or Latino should not be reported on the EEO-1, even though that data must be maintained as an employment record.

Completing the New EEO-1 Report Form. Employers should engage in a confidential self-identification survey of their workforce as soon as possible. Although self-identification is not required, it is the recommended method. The EEOC provides suggested language that employers can use 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 the employee’s self-identification of race and ethnicity. In circumstances where an employee refuses to self-identify using the new race and ethnic categories, an employer may obtain the necessary information from existing employment records or visual observation.

The EEOC has adopted a two-question format for the self-identification survey. Employers should first ask if an employee is Hispanic or Latino (ethnicity), then ask what race or races 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.” 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 but maintain the more detailed information as an employment record.

Affirmative Action Obligations for Federal Contractors. In early August 2008, the OFCCP issued “Interim Guidance on the Use of Race and Ethnic Categories in Affirmative Action Programs” (Guidance).

This Guidance states that contractors will not be cited for noncompliance with Executive Order 11246 if they choose to use the revised EEO-1 categories (described above) in preparing their affirmative action programs, rather than the original EEO-1 categories recognized under OFCCP’s current regulations.

In addition, this Guidance instructs contractors to consider all individuals identified as belonging to two or more races as minorities when comparing the percentage of 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, this Guidance advises contractors to 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, however, the contractor may need to exercise discretion and establish separate goals for those groups.

Where to Go from Here. Employers are required to adhere to the new reporting requirements and file EEO-1 report forms by September 30, 2008.