The Equal Employment Opportunity Commission (“EEOC”) recently implemented a new EEO-1 form, changing the annual reporting requirements for covered employers. Covered employers include private employers of 100 or more employees and certain federal government contractors with 50 or more employees. Generally, the EEO-1 calls for data regarding the employer’s workforce, broken down by job category, race, ethnicity, and sex. Among other things, the new EEO-1 adds new job categories and race/ethnicity categories, and endorses self-identification as the preferred method for collecting race and ethnicity data. Employers must begin using the new EEO-1 form for the report due on September 30, 2007. For the 2007 report, however, employers are not required to resurvey current employees using the new race/ethnicity categories.

Complying with the Changes

Self-Identification. In recognition of the EEOC’s preference for self-identification, employers are now required to allow employees to use self-identification to provide the race and ethnicity data necessary for the EEO-1. Employers may use employment records or visual observation as an alternative method for gathering this information only if an employee declines to self-identify. The EEOC instructs that employers should seek self-identification of new employees and resurvey current employees under the new race/ethnicity categories as soon as possible. The EEOC further directs that in inviting employees to self-identify, employers should provide employees with a statement about the voluntary nature of the inquiry. The EEOC suggests the following language for such purposes:

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.

Reporting Race/Ethnicity Information. The most significant change in reporting race information is the creation of a new “Two or More Races” category. In this category, employers report those employees who identify with more than one of the defined race categories. Employers are not required to report each different race category with which these employees identify. However, if the employee volunteers this information, employers must preserve the information as an employment record.

The defined race categories also have changed. The new EEO-1 divides “Asian or Pacific Islander” into two separate categories—“Asian” and “Native Hawaiian or other Pacific Islander”—and renames “Black” as “Black or African American” and “Hispanic” as “Hispanic or Latino.” The “White” and “American Indian or Alaska Native” categories remain the same. The EEOC also instructs that employers who do not resurvey for the 2007 EEO-1 should count as “Asian” any employees previously counted as “Asian or Pacific Islander” for purposes of the 2007 report.

As with the old form, race information is not required for employees who identify as having a Hispanic or Latino ethnicity. With the new EEO-1, however, the EEOC adopted the “two-question format” for collecting race and ethnicity data. Under this format, employers should first ask employees their Hispanic or Latino status, and then ask those employees who do not identify as Hispanic or Latino for their race. Each defined race category also adds the clarifying language “(Not Hispanic or Latino)” after the category’s name. If an employee who self-identifies as Hispanic or Latino volunteers race information, this data is not reported but employers must preserve it as an employment record.

Reporting Job Category Information. The most significant job category change is the adoption of two new subcategories in place of the previous “Officials and Mangers” category: (1) Executive/Senior Level Officials and Managers, and (2) First/Mid-Level Officials and Mangers. The EEO-1 provides detailed descriptions for both new subcategories. Generally, the Executive/Senior Level Officials and Managers category is for individuals who plan, direct and formulate policy, set strategy, and provide the overall direction of the organization. In larger organizations, this includes individuals within two reporting levels of the CEO, whose responsibilities require frequent interaction with the CEO. The First/Mid-Level Officials and Managers subcategory is generally for those who direct implementation or operations within the specific parameters established by Executive/Senior Level management, as well as those who oversee implementation of day-to-day goals.

The new EEO-1 also assigns individuals in non-managerial business and financial occupations to the Professional category (rather than the previous Officials and Managers category) and renames four job categories: “Office and Clerical” has become “Administrative Support Workers;” “Craft Workers (Skilled)” has become “Craft Workers;” “Operatives (Semi-skilled)” has become “Operatives;” and “Laborers (Unskilled)” has become “Laborers and Helpers.”

The EEOC offers the EEO-1 Job Classification Guide as a reference tool to assist employers in determining where to place their jobs within the occupational categories. This guide has been updated to reflect the new EEO-1 job categories and is available online at http://www.eeoc.gov/eeo1survey/index.html.

Miscellaneous. Employers in Hawaii are no longer exempt from the EEO-1 reporting requirement. Thus, covered employers will now need to file the EEO-1 reports for establishments located in Hawaii.