Office of Federal Contract Compliance Programs (OFCCP)
Interim Guidance on the use of Race and Ethnic
Categories in Affirmative Action Programs
Categories in Affirmative Action Programs
Beginning in 2007, employers, including Federal contractors, were required to report data about the racial, ethnic, and gender composition of their workforces on a revised Standard Form 100, Employer Information Report (commonly referred to as the “EEO–1 Report”). The revised EEO–1 Report was to be filed for the first time by September 30, 2007.
The previous EEO–1 Report calls for workforce data to be broken down by nine job categories, using five race and ethnic categories. The revised EEO–1 Report changes the race and ethnic categories by adding a new category titled “two or more races” and dividing the category “Asian or Pacific Islander” into two separate categories – “Asian” and “Native Hawaiian or other Pacific Islanders.” In addition, the approved revisions divide the Officials and Managers job category into two subgroups – Executives/ Senior Level and First/Mid Level Officials. More information about the revised EEO–1 Report may be found on the Equal Employment Opportunity Commission’s website.
OFCCP currently requires contractors to collect and maintain information about the gender, race, and ethnicity of their employees in the five race and ethnic categories used on the previous EEO–1 Report: Blacks, Hispanics, Asians/Pacific Islanders, and American Indians/Alaskan Natives. In light of the changes to the EEO–1 Report, OFCCP is considering amendments to the recordkeeping and affirmative action program (AAP) regulations at 41 CFR parts 60–1 and 60–2 designed to require the use of consistent race and ethnic categories in the Executive Order program. Any proposed regulatory changes would be published in the Federal Register for a sixty–day public comment period.
OFCCP understands that many contractors already have taken significant steps to develop and implement new data systems for collecting and reporting the race and ethnicity data required by the revisions to the EEO–1 Report, while other contractors have either delayed implementation, awaiting further instructions from the OFCCP, or faced difficulty in making the required system changes. OFCCP also recognizes that contractors will need to begin collecting data under these new standards before they are able to use such data in their AAPs and other records produced during compliance evaluations.
Accordingly, until final rules and guidance are provided by OFCCP, as a matter of enforcement discretion, the agency will not cite a contractor for non–compliance solely because it utilizes the race and ethnic categories required by the revised EEO–1 Report when preparing its AAP. Contractors also are permitted to prepare their AAP using the racial and ethnic categories provided under OFCCP’s current regulations.
Nothing in this interim guidance is intended to prohibit more detailed data collection by a contractor. Thus, contractors are free to collect and maintain more detailed demographic data than is required to complete the revised EEO–1 Report. OFCCP commends efforts by contractors to collect and analyze workforce data in a manner that allows them to meaningfully examine their progress towards equal employment opportunity.
Until further rules and guidance are provided by OFCCP, when developing an organizational profile, as required by § 60–2.11, contractors will not be cited for noncompliance with the Executive Order if they choose to develop such analyses using the revised EEO–1 categories, rather than the race and ethnicity categories listed in §60–2.11 (the original EEO–1 categories). Contractors also are permitted to prepare their AAP using the racial and ethnic categories provided under OFCCP’s current regulations.
In addition, pending further guidance, contractors should consider all individuals identified as belonging to two or more races as minorities when comparing the percentage of women and minorities in each of their job groups to the available workforce, as required by §§ 60–2.13, 60–2.14 and 2.15, or when examining whether their employment practices result in disparities in the employment or advancement of minorities, as required by § 60–2.17.
When establishing placement goals pursuant to § 60–2.16, contractors should, in most cases, 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, the contractor may be required to establish separate goals for those groups. Pending further guidance, contractors are not expected to set a separate placement goal for individuals identified as belonging to more than one race.
This announcement also has no effect on how the agency will examine a contractor’s overall good faith efforts, or its compliance with recordkeeping, nondiscrimination or affirmative action requirements, beyond the above interim enforcement guidance. OFCCP will continue to rely on Census data, labor market data, or other information to assess a contractor’s employment practices when the contractor has not maintained sufficiently detailed information regarding the effect of its employment practices on minorities and women.