What You Need To Know About The EEO-1 Report

Rick Grimaldi and Brian Waerig
March 14, 2007 — 2,520 views  
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The EEO-1 Report – formally known as the “Employer Information Report” – is a government form requiring many employers to provide a count of their employees by job category and then by ethnicity, race and gender. The EEO-1 report is submitted to both the EEOC and the Department of Labor, Office of Federal Contract Compliance Programs (OFCCP).

Recently the federal government made certain changes to the EEO-1 Report. Unfortunately, many employers are blissfully unaware that they are required to file the report. Faced with the possibility of penalties and legal fees, it is important for employers to understand their current reporting requirements.

Who Needs To File The EEO-1 Report?

The EEO-1 Report must be filed by all private employers who are: (1) subject to Title VII of the Civil Rights Act of 1964 (as amended by the Equal Employment Opportunity Act of 1972) with 100 or more employees EXCLUDING state and local governments, primary and secondary school systems, institutions of higher education, Indian tribes and tax-exempt private membership clubs other than labor organizations; OR (2) subject to Title VII who have fewer than 100 employees if the company is owned or affiliated with another company, or there is centralized ownership, control or management (such as central control of personnel policies and labor relations) so that the group legally constitutes a single enterprise, and the entire enterprise employs a total of 100 or more employees. The EEO-1 Reports must also be filed by all federal contractors (private employers), who: (1) are not exempt as provided for by 41 CFR 60-1.5, (2) have 50 or more employees, and (a) are prime contractors or first-tier subcontractors, and have a contract, subcontract, or purchase order amounting to $50,000 or more; or (b) serve as a depository of Government funds in any amount, or (c) is a financial institution which is an issuing and paying agent for U.S. Savings Bonds and Notes.

Uses Of The EEO-1 Report

Both the EEOC and OFCCP have used the EEO-1 since 1966. The EEOC uses the data to support civil rights enforcement. The EEOC also uses the data to analyze employment patterns, such as the representation of female and minority workers within companies, industries, or regions.

OFCCP uses EEO-1 data to determine which employer facilities to select for compliance evaluations. OFCCP’s system uses statistical assessment of EEO- 1 data to select facilities where the likelihood of systematic discrimination is the greatest.

The Commission is required by law to keep individual employer EEO-1 reports strictly confidential. 42 U.S.C. 2000e-8(e).

When Must The EEO-1 Report Be Filed?

The EEO-1 report must be filed annually with the EEOC by September 30. It must use employment numbers from any pay period in July through September of that year. The revised EEO-1 report must be used beginning with the survey due by September 30, 2007. For the surveys due by September 2006, employers should continue to use the EEO-1 report format from previous years (in the event they are late since the due date has already run). The EEOC strongly recommends that EEO-1 reports be submitted through the EEO-1 Online Filing System or as an electronically transmitted data file. Paper EEO-1 forms will be generated on request only, and only in extreme cases where Internet access is not available to the employer.

Changes In Racial/Ethnic Categories In The EEO-1 Report

Beginning with the next EEO-1 Report, the EEOC strongly endorses self-identification of race and ethnic categories, as opposed to visual identification by employers. It is no longer enough for an employer to rely on visual identification by the employer to set forth the race or ethnicity of its employees.

A number of significant changes have been made to the race and ethnic categories. The revised EEO-1 report: (1) adds a new category titled “Two or more races,” (2) divides “Asian or Pacific Islander” into two separate categories: “Asian” and “Native Hawaiian or other Pacific Islander,” (3) renames “Black” as “Black or African American,” and (4) renames “Hispanic” as “Hispanic or Latino.” The “Hispanic or Latino” designation is the only category that requires that two questions be asked. This two-question system requires the employer to not only designate all Hispanic and Latino employees but also ask which ethnic group the employee considers himself to be in.

The changes to the race categories were made as an attempt to balance three interests: (1) Obtaining data to support the EEOC and OFCCP in enforcing Title VII; (2) Modernizing the EEO-1 to accommodate changing demographics; and (3) Limiting the burden on employers.

Changes To The Job Categories In The EEO-1 Report

The EEOC feels that the current job categories conflate data about jobs of widely discrepant responsibility and skill and risks obscuring important trends in the employment of women and minorities. To address these concerns, the current category of “Officials and Managers” has been divided into two levels based on responsibility and influence within the organization: (1) Executive/Senior Level Officials and  Managers (plan, direct and formulate policy, set strategy and provide overall direction; in larger organizations, within two reporting levels of CEO); and (2) First/Mid-Level Officials and Managers  (direct implementation or operations within specific parameters set by Executive/Senior Level Officials and Managers; oversee day-to-day operations).

The revised EEO-1 also will move business and financial occupations from the Officials and Managers category to the Professionals category (to improve data for analyzing trends in mobility of minorities and women within Officials and Managers).

Possible Penalties

The filing of EEO-1 Reports is required by law; it is not voluntary. Under section 709(c) of Title VII, the Equal Employment Opportunity Commission may compel an employer to file this form by obtaining an order from the United States District Court. Under Section 209(a) of Executive Order 11246 the penalties for failure by a Federal contractor or subcontractor to comply may include termination of the Federal government contract and debarment from future Federal contracts. The information contained in an EEO-1 Report must be truthful. The making of willfully false statements in an EEO-1 Report is a violation of the United States Code, Title 18, section 1001, and is punishable by fine or imprisonment as set forth therein.

Important Considerations

It is important that all employers make note of these very important changes before doing next year’s EEO-1 Report. Even more importantly, any employers who have to complete the Report but have not filed the Report in the past should insure that it is done to meet future deadlines.

If you have any questions about the EEO-1 Report or the changes to the Report, or need assistance in completing the Report, please contact a member of the White and Williams LLP Labor and Employment Law Group. Rick Grimaldi may be reached at 215.864.6350 or [email protected]. Brian Waerig may be reached at 215-864-6254 or [email protected].

Rick Grimaldi and Brian Waerig

White and Williams LLP