Since 1966, the Equal Employment Opportunity Commission ("EEOC") and the Office of Federal Contract Compliance Programs ("OFCCP") have used the EEO-1 Report, formally known as the "Employer Information Report," to collect annual data about minority and female participation in the workforce of many private employers and federal contractors. However, after decades of uniformity, on November 16, 2005, the EEOC voted to approve revisions to the EEO-1 Report to, in part, modernize the reporting requirements "to accommodate changing demographics."

The EEO-1 Report, which is also known as the Standard Form 100, must generally be filed by:

• all private employers with 100 or more employees who are subject to Title VII of the Civil Rights Act of 1964; and
  
  
• all employers with 50 or more employees who have federal government contracts of $50,000 or more ("covered employers").¹

Through the EEO-1 Report, covered employers provide a numeric, individualized breakdown of their workforce in terms of race and ethnicity, as well as job category. The EEOC and the OFCCP have always used this data for enforcement purposes. The OFCCP uses the data to determine which employer facilities to select for compliance evaluations. The EEOC uses the EEO-1 data to analyze trends in female and minority employment within companies, industries, regions, and sectors of the economy. According to the EEOC, "the government's commitment to collecting and analyzing these workforce data is a concrete demonstration of its ongoing commitment to full enforcement of Title VII of the Civil Rights Act of 1964."

The revised EEO-1 Report form is now in effect. EEO-1's are due by September 30th of each year. Although next year's EEO-1 Report is not due until September 2007, covered employers should immediately begin familiarizing themselves with the new reporting requirements so that they will be prepared for the revisions of the next reporting cycle.

The changes to the EEO-1 Report are found in Section D-the Employment Data grid. They include changes to the "Race/Ethnic" and "Job" categories. These changes require employers to reevaluate the race and ethnic classifications of their employees, as well as the classifications of specific job positions under the new model.

Under the race and ethnicity categories, the "Black" classification has been renamed "Black or African American" and the "Hispanic" classification "Hispanic or Latino." The revisions also divide the "Asian or Pacific Islander" classification into two separate categories: "Asian" and "Native Hawaiian or other Pacific Islander."

Perhaps the most significant change to the EEO-1 Report is the addition of a new category-the "Two or More Races" category, which, according to the EEOC, has been added to "reflect the increasing diversity of the Nation's population due to growth in immigration and interracial marriage" and to allow people of more than one race "to reflect their full heritage, not just part of it."

With the expansion of the race and ethnicity categories, the EEOC drafted the following revised definitions to simplify the classification process.

• Hispanic or Latino [ethnicity] - A person of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin, regardless of race.
  
  
• White - A person having origins in any of the original peoples of Europe, the Middle East, or North Africa.
  
  
• Black or African American - A person having origins in any of the Black racial groups of Africa.
  
  
• Native Hawaiian or Other Pacific Islander - A person having origins in any of the original peoples of Hawaii, Guam, Samoa, or other Pacific Islands.
  
  
• Asian - A person having origins in any of the original peoples of the Far East, Southeast Asia, or the Indian subcontinent including, for example, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, the Philippine Islands, Thailand, and Vietnam.
  
  
• American Indian or Alaska Native - A person having origins in any of the original peoples of North and South America (including Central America), and who maintains tribal affiliation or community attachment.
  
  
• Two or More Races - All persons who identify with more than one of the above five races.

Since its inception, the EEO-1 Report has required employers to determine an employee's racial or ethnic classification by relying on existing employment records or by using visual observations. Although these methods may still be acceptable, the statements accompanying the EEOC's revisions mean that employers, for the first time, are "strongly encouraged to rely on employee self-identification to identify their ethnicity and race" because self-identification "is the preferred method for gathering ethnic and racial information for the EEO-1 Report."

According to the EEOC, employers should offer employees the opportunity to self-identify. The EEOC does caution, however, that a statement about the voluntary and confidential nature of the inquiry should accompany any such request. An example of acceptable language for such a statement can be found on the EEOC's website (www.eeoc.gov). If employees refuse to self-identify, then employers may resort to using employment records or visual observations to gather the data.

In addition to classifying employees by race and ethnicity, the EEO-1 Report requires covered employers to place each of their employees into a defined job category in accordance with specific guidelines. For example, according to the EEOC, most jobs in the "Professionals" category "require bachelor and graduate degrees, and/or professional certification," and include accountants, auditors, airplane pilots, chemists, and engineers (Precise descriptions for all job categories can be found in Volume 70 of the Federal Register at page 71302 and on the EEOC's website.).

The revisions did not leave these job categories unchanged. The revised EEO-1 Report creates a new category of "Job" classification by dividing an old category into two separate ones: the original category of "Officials and Managers" has been divided into "Executive/Senior Level Officials and Managers" and "First/Mid-Level Officials and Managers." Additionally, the revised EEO-1 Report moves business and financial occupations from the old "Officials and Managers" category to the "Professionals" category to "improve data for analyzing trends in mobility of minorities and women within" the category.

These revisions are intended to provide a more accurate picture of the nature and make-up of the workforce in America. Although the changes are relatively minor and should not require a significant investment of time (EEOC estimates 3.5 hours per EEO-1 Report), they will nonetheless require a modification of prior procedures, mostly by giving employees an opportunity to self-identify. However, the filing of the EEO-1 Report is mandatory, and significant penalties are possible for violations of the reporting requirements.

Since the next reporting deadline is not until September 30, 2007, and the report must have employment data from any period from July through September of that year, covered employers have ample time to prepare and implement a reporting process that is fully compliant with the revised EEO-1 Report.


¹ There are a few qualifications and exceptions to these reporting requirements which are beyond the scope of this article. However, if you meet the minimum employee threshold requirements, either by yourself or with affiliated enterprises, you should seek experienced counsel regarding your potential obligation to file the annual EEO-1 Report.