Under Title VII of the 1964 Civil Rights Act, private-sector employers who employ 100 or more employees must file a Form EEO-1 with the Equal Employment Opportunity Commission (EEOC) annually. The deadline for filing is September 30. Most financial institutions with at least 50 employees, along with federal government contractors and first-tier subcontractors with at least 50 employees and with contracts for at least $500,000, must also file the Form EEO-1. State and local governmental employers, school systems and colleges and universities are exempted from having to file a Form EEO-1, although they may have to file other, similar reports on a biannual basis. Smaller private sector employers (those with less than 100 employees) who are owned by or affiliated with other businesses such that they constitute a "single enterprise" with 100 or more employees must also file Form EEO-1.
Generally speaking, Form EEO-1 is used to gather data on the race, ethnicity and gender of an employer's workforce at each of the employer's "establishments." Submitting employers are allowed to use employee data from any pay period from July through September. Beginning with the 2007 reporting period, the EEOC has revised the Form EEO-1 job groupings and race/ethnic origin categories. The new categories are:
Executive/Senior Officials & Managers
First-/Mid-Level Officials & Managers
Administrative Support Workers
Laborers and Helpers
Hispanic or Latino
Black or African-American
Native Hawaiian or Pacific Islander
American Indian or Alaskan Native
Two or More Races
The EEOC prefers that employees be allowed to self-identify their race and ethnicity. If an employee fails or refuses to self-identify, other employment records or observer identification may be used. According to the EEOC, any records containing race or ethnic information about an employee should be kept separate from the employee's personnel file.
The U.S. Department of Labor, Office of Federal Contract Compliance Programs ("OFCCP") uses Form EEO-1 as its principal (though not only) source to determine which employers are required to have affirmative action plans ("AAPs") under Executive Order 11246, the federal Rehabilitation Act and veterans protective laws. Form EEO-1 requires employers to disclose whether they are covered by the AAP requirements (although as worded the form does not "pick up" all covered subcontractors, but only "first-tier" subcontractors). OFCCP also analyzes the data submitted on Form EEO-1 to select contractors for "compliance reviews," using rough statistical measures to identify those establishments whose data may indicate "systemic discrimination." Most smaller employers who have AAPs use the job groups on Form EEO-1 as their AAP job groups, but there is no OFCCP rule specifying job groups. OFCCP expects that employers with more than 150 employees create "customized" job groups based on their actual workforce structure. Until this year, the "race/ethnicity" categories on Form EEO-1 and those used to prepare an AAP were the same. However, OFCCP has not yet officially adopted the new Form EEO-1 race/ethnicity categories and has announced that for the present, employers may use either last year's categories or the new Form EEO-1 categories to prepare AAPs. OFCCP will most likely amend its regulations next year to require contractors to use the new Form EEO-1 race/ethnicity categories.
The Form EEO-1 is filed online. The Form, along with instructions on how to file it, can be found at http://www.eeoc.gov/eeo1survey/. If you have any questions about the Form EEO-1, affirmative action plans, or any other employment-related matter, please feel free to contact any member of our Labor and Employment Law Practice Group.