The Deadline for EEO-1 Reports Is Fast Approaching

Time is running out for filing EEO-1 reports. The EEO-1 report is a government form that requires employers to describe their workforce in terms of job categories, ethnicities, races, and genders. Private employers with 100 or more employees, as well as private employers that have federal government contracts of $50,000 or more and 50 or more employees, must file an EEO-1 report every year with the U.S. Equal Employment Opportunity Commission’s EEO-1 Joint Reporting Committee.
The EEO-1 report must be filed by no later than Sept. 30.
The purpose of the EEO-1 report is to provide federal agencies with a window through which they can see various indications of discrimination and take remedial actions if necessary. One such agency is the EEOC, which is the federal agency responsible for enforcing laws that prohibit discrimination based upon a person’s race, color, religion, sex (which includes pregnancy), national origin, age, disability, or genetic information. Using the EEO-1 reporting data, the EEOC will search for any sign of discrimination, including disproportionately low representations of female or minority workers in a given company, industry, or region.
If the EEOC believes that discrimination may exist, it has the authority to file a lawsuit in its name in order to protect both the rights of individuals as well as the interests of the public.
Another agency that utilizes EEO-1 reporting information is the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP). The OFCCP is charged with enforcing the affirmative-action and equal-employment-opportunity obligations of federal contractors. Similar to the EEOC, the OFCCP uses the EEO-1 data to assess which workplaces have the highest risks for discrimination. Once a workplace is deemed a high risk, the OFCCP can investigate and conduct compliance evaluations of the federal contractors’ practices and procedures and make recommendations to the solicitor of Labor to take enforcement action.
Covered employers who fail to file their EEO-1 report can incur severe penalties. These penalties are particularly steep for federal government contractors. Indeed, employers who engage in contracts or subcontracts with the federal government risk losing those contracts and also run the risk of being barred from obtaining future federal contracts. Penalties for failing to file can be just as devastating for employers that do not have any contracts. Any noncompliant employer may incur a punitive fine from the EEOC. Another remedy that is available to the EEOC is to seek a court order from the U.S. District Court to compel an employer to file.
In 2007, the EEOC revised its EEO-1 report for the first time in 40 years. The major changes in the new EEO-1 form include revised race, ethnic, and job categories. One particularly noteworthy change was made to the former category of ‘officials and managers.’ This category was divided into two levels: executive/senior-level officials and managers, and first/mid-level officials and managers. Another revision added a ‘two or more races’ category in the race/ethnicity section of the form. Other revisions included: dividing the ‘Asian and Pacific Islander’ category into ‘Asian’ and ‘Native Hawaiian or other Pacific Islander’; ‘Black’ became ‘Black or African American’; and ‘Hispanic’ became ‘Hispanic or Latino.’
In light of these changes, employers need to make sure they are using the new self-identification forms to collect EEO-1 information from their employees. Outdated self-identification forms will fail to provide an adequate explanation of all the ethnic and racial categories that are available to employees. Even employers who simply added the new categories to their old forms may not be providing employees with an adequate opportunity to voluntarily identify which ethnic and racial category they fit into. For example, if someone is of both Hispanic and African-American ancestry; would they check off ‘Hispanic’ and ‘Black or African-American,’ and ‘two or more races?’ Instructional information about filing and sample EEO-1 reports can be accessed at the Equal Employment Opportunity Commission’s Web site at www.eeoc.gov/
employers/eeo1survey/index.cfm.
Employers are well advised to ensure the accuracy of their report. While employers are responsible for the initial validation of their report’s accuracy, the EEOC enlists a ‘data quality and integrity team’ to verify the reported information. This team takes several measures to ensure accuracy, including performing automated edit checks, random manual checks, random sampling of actual survey results, and comparisons to prior survey filings.
With these considerations in mind, employers must act quickly to meet the filing deadline of Sept. 30. Because of the impending deadline, employers may want to consult with their labor- and employment-law counsel to have them perform a review of their self-identification forms and other information-gathering practices to ensure proper filing compliance.

Amy B. Royal, Esq. and Benjamin A. Bristol, Esq. specialize exclusively in management-side labor and employment law at Royal & Klimczuk, LLC, a women-owned, boutique, management-side labor and employment law firm; (413) 586-2288; aroyal@rkesq.com