Federal law requires all private employers with 100 or more employees to file the federal EEO-1 report annually, as well as certain federal contractors with 50 or more employees. The EEO-1 Report is a compliance survey mandated by federal statute and regulations. The survey requires company employment data to be categorized by race/ethnicity, gender and job category. Information is used to support civil rights enforcement and analyze employment patterns, such as representation of women and minorities in certain industries or regions.
Question: What is the best way for an employer to collect race, ethnic, and gender information for the EEO-1 report?
Answer: Voluntary self-identification is the preferred method for gathering race and ethnicity information for the EEO-1 report. As an employer, you are required to ask employees to self-identify; however, employees are not required to provide this information.
You may find it helpful to clarify why you are asking employees for race and ethnicity information by providing them with a statement explaining its purpose and reminding them it is voluntary and confidential.
The Equal Employment Opportunity Commission (EEOC) provides the statement below, which employers may use and adapt for their workplace:
The employer is subject to certain governmental recordkeeping and reporting requirements for the administration of civil rights laws and regulations. In order to comply with these laws, the employer invites employees to voluntarily self-identify their race or ethnicity. Submission of this information is voluntary and refusal to provide it will not subject you to any adverse treatment. The information obtained will be kept confidential and may only be used in accordance with the provisions of applicable laws, executive orders, and regulations, including those that require the information to be summarized and reported to the federal government for civil rights enforcement. When reported, data will not identify any specific individual.
What Form Do We Give to Employees/Applicants?
The EEOC does not endorse or require a particular self-identification form, but it does provide two sample forms. Of note, the EEOC advises that employers adhere to the following before using any form:
- Do not use or add any race or ethnicity categories other than those used on the EEO-1 Survey form.
- The EEO-1 Survey does not collect data on Veteran Status.
- All employees must be accounted for. There are no “other” or “unknown” race or ethnicity categories.
How Do We Report Nonbinary Employees?
Until the EEOC addresses another gender or “nonbinary” option, the only gender choices on the EEO-1 are male or female, even when an employee chooses not to identify as one of the two genders. In California, employees can choose to identify as male, female or “x” (non-binary), but this does not relieve employers of their EEO-1 reporting obligations.
When is This Year’s Report Due?
For employers who are required to submit an EEO-1, EEO-1 “Component 1” data (everything except pay data) for 2018 was due by May 31, 2019, and must be submitted on the EEOC’s EEO-1 survey web portal.
“Component 2” data (pay data) for 2017 and 2018 is due September 30, 2019.
What is the Status of Component 2 Pay Data?
Whether or not employers would be required to submit pay data has been the subject of much back and forth. The EEOC wants to collect pay data in an attempt to address wage inequality between male and female workers (“pay gap”).
A recent court decision requires EEO-1 filers to begin preparing to submit Component 2 pay data for the calendar year 2017, in addition to data for the calendar year 2018, by September 30, 2019 ( National Women's Law Center, et al., v. Office of Management and Budget, et al.).
The EEOC expects to begin collecting EEO-1 Component 2 data for calendar years 2017 and 2018 in mid-July, 2019, and will notify filers of the precise date the survey will open as soon as it is available.
The future of pay data collection is not certain. On May 3, 2019, the Department of Justice filed a Notice of Appeal in National Women's Law Center. However, the filing of this appeal does not alter EO-1 filers' obligations to submit Component 2 data. EEO-1 filers should begin preparing to submit Component 2 data as described above.