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Changes in Reporting Information to Government Agencies Will Affect Employers' Affirmative Action Practices

By Matthew J. Camardella
  • June 20, 2003

Two recent developments at federal fair employment practice agencies may have a significant impact on the way many employers conduct their compliance efforts and diversity initiatives. In a long-anticipated move, the Equal Employment Opportunity Commission has proposed changes to how companies must report the race and ethnicity of employees on the EEO-1 Report. In the EEOC's notice, published June 11, 2003, the commission also proposed to alter the number, names and descriptions of the job categories themselves, as well as the preferred method for ascertaining race, ethnicity and gender. And, the Office of Federal Contractor Compliance Programs has begun targeting covered contractors for audits based upon the latest round of the controversial EO Survey sent out in late 2002.

EEOC's Proposed Changes

Private employers with 100 or more employees and federal government contractors with 50 or more employees are required to file the EEO-1 Report on an annual basis. The Report provides the EEOC and other federal agencies, including the OFCCP, with a workforce breakdown by job category, race, ethnicity and gender. Covered employers must file separate reports for individual establishments.

The first proposed change would revise the five current race and ethnic categories (White; Black; Hispanic; Asian/Pacific Islander, and American Indian/Alaskan Native) to five race categories and one ethnic category. The ethnic category would be Hispanic/Latino. The race categories would be White; Black/African American; Native Hawaiian/Other Pacific Islander; Asian; and American Indian/Alaska Native. In addition, the EEOC is proposing to allow employees to select more than one racial category, as well as Hispanic or Latino ethnicity, thus requiring companies to report individuals who identified two or more races.

The second proposed change would subdivide the "Officials and Managers" job category into three levels, while the remaining categories would undergo minor changes to their names, numeric designations and descriptions. The new Officials and Mangers groups would be as follows: (1) Executive/Senior Level Officials and Managers, (2) Mid-level Officials and Managers and (3) Lower-level Officials and Managers. To assist employers, the designation of the EEO-1 categories are matched to their respective Census 2000 occupational titles.

The third proposed change shifts the preferred method of obtaining race and ethnicity information from visual observation to self identification. To assist employers in making the changes the EEOC even published a "suggested" race and ethnicity self-identification form.

The EEOC's proposed changes, which are not scheduled to go into effect until 2004 at the earliest, are open to public comment for 60 days.

OFCCP Targets Contractors Based on EO Surveys

The OFCCP, the Department of Labor agency that enforces the federal contractor affirmative action regulations, recently announced that from now until September 30, 2003, it would select 2,000 federal contractor establishments for audit. The selections will be made from the 10,000 Equal Opportunity Surveys the agency sent to contractors at the end of 2002. (For more about the EO Survey, please see OFCCP Extends Deadline for Equal Opportunity Survey.)

Beginning October 1, 2003, the OFCCP will return to its usual system of selecting contractors for audits. Over the past several years, that system has been based on the OFCCP harvesting information from the EEO-1 Reports that contractors file annually with the EEOC (see discussion above). A "yes" answer to Question 3 in Section C on the EEO-1 Report about federal contractor status puts the contractor and its establishments into the OFCCP's Equal Employment Data Survey System. Typically, the information from the EEO-1 Report filed two years earlier is added to the EEDS list and used to select contractors for audit.

EEO-1 forms are filed by a parent company for all of its establishments and for its subsidiaries of which the parent owns all or the majority of stock and their establishments. Determining whether a company may be on the EEDS list requires checking whether "yes" was answered to Question 3 of Section C on any of the company's EEO-1 reports. In addition, for each company location that received an EO Survey from the OFCCP, there is a 20% chance that location will be audited between now and the end of OFCCP's fiscal year.

There are steps a company can and should take now to prepare for a potential audit. For more information on these proposed changes or how to prepare for an OFCCP audit, or if you have any questions regarding affirmative action plan preparation and compliance issues generally, please contact the Jackson Lewis attorney with whom you regularly work, or members of the Jackson Lewis Affirmative Action Practice Group.

©2003 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

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