Category: Discrimination

The Equal Employment Opportunity Commission has moved back the deadline to file the Employer Information Report EEO-1 (“EEO-1 Report”) to April 2021 for the 2019 and 2020 EEO-1 Component 1 Data Collection. In 2018, approximately 73,400 employers representing 56.1 million employees filed the mandatory report.

Now is the time for companies to get the information for this report together, which leads to the inevitable question…

What is the EEO-1 Report?

The EEO-1 Report is a mandatory survey for employers that meet certain requirements. Employers that meet the requirements must submit data regarding their employees (workforce composition) by sex, race/ethnicity, and job category. The EEOC uses this generalized data for enforcement, assessment of employers, and research.  

Employers that must submit information include:

• Employers that have 100 or more employees;
• Companies that are affiliated or subsidiaries of a company with more than 100 employees in total;
• Any organization that “serves as a depository of Government funds in any amount, or is a financial institution which is an issuing and paying agent for U.S. Savings Bonds and Notes;” or
• Federal contractors and subcontractors with at least 50 employees that have a contract worth more than $50,000.  There are also some very specific exemptions for certain federal contractors which you can read about here. As a reminder, contractors also have Affirmative Action Plan requirements which you can read about here.

If you are required to file a report, then the next item that you need to review are the types of reports you will be asked to file.

What are the Types of Reports?

Employers are generally divided into two categories.

1. “Single establishment employers” (they have one business and operate in one location) file a single Type 1 report for their company.
2. Employers that have more than one establishment are “multi-establishment” employers and must file the following reports:
   • A company headquarters report (Type 3);
   • A report for each establishment that has 50 or more employees (Type 4);
   • A list of establishments with less than 50 employees with the required information categorizing employees by race, gender, and job category (Type 6). Rather than file a list with the required information employers, have the option to file a separate report for each of these establishments (Type 8);
   • One consolidated report (Type 2) which will be auto-generated.

What Information is Needed for the EEO-1 Report?

All employers should make it a practice to gather self-identification data for new employees.  At the beginning of employment, employers often collect this information through a voluntary EEO-1 survey. In this survey, employees identify their race(s) and gender.  Employees that refuse to complete the information can have their race and gender determined by their employer visually determining these characteristics solely for the purposes of the EEO-1 report.

Let’s break these categories down:

Racial Categories

The race and ethnic categories are:

• Hispanic or Latino;
• White (Not Hispanic or Latino);
• Black or African American (Not Hispanic or Latino);
• Native Hawaiian or other Pacific Islander;
• Asian;
• American Indian or Alaskan Native;
• Two or more races

Gender Categories

The gender categories in the past have been limited to male or female. There have been calls for a non-binary and/or other gender option, but the EEOC has not added this option in past reports, and as of this article it has not released guidance in this area.

In the 2018 EEO-1 report, the EEOC released a FAQ, which is no longer available on the EEOC website, that suggested that employers should use the comment box to report data concerning non-binary employees  and employees that do not identify as male or female.

Job Categories

Determining the job category is tricky. There is a seemingly endless list of jobs and some may arguably fit into more than one category depending on their duties, training, and level of responsibility. If you need help classifying your workers, then you can review the “Job Classification Guide” available on the EEOC website.

The job categories are:

●  Executive/Senior Level Officials and Managers- These are the individuals that are responsible for planning and formulating the strategies and overall direction the company takes. Examples are the CEO, CFO, Chief Human Resources Officer, and other executive positions.

●  First/Mid-Level Officials and Managers- These individuals serve as managers and may oversee the delivery of products and services, lead portions of the organization, and conduct other managerial functions. Examples of individuals in this category are vice presidents, treasurers, regional controllers, and operations managers.

●  Professionals- As the name implies, these are jobs that require a professional degree and/or license. Jobs within this category would include accountants, engineers, lawyers, doctors, and pilots. 

●  Technicians- Technicians  have specific technical skills that they need to perform their jobs. Examples include engineering technicians, lab technicians, dental hygienists, licensed vocational nurses, and emergency medical technicians.

●  Sales Workers- Sales include any job where sales are involved; it is more than just salespersons. This includes cashiers, travel agents, telemarketers, insurance salespersons, and product promoters.

●  Administrative Support Workers – These are typically office workers that are not professionals. This includes billing clerks, bookkeepers, postal service clerks, and data entry clerks.

●  Craft Workers- Craft workers have a specific skill to do their jobs. This includes carpenters, iron and steel workers, oil/gas/mining operators, and others.

●  Operatives- Operatives require minimal training (typically only a few months) to perform their jobs. Examples include meat processing workers, forklift drivers, and engine and other machine assemblers.

●  Laborers and Helpers- Laborers require very limited training. Examples include: loggers, material movers (hand), and other helpers.

●  Service Workers- Service workers work in the service sector of the economy. Examples include fire fighters, police officers, chefs, waiters/waitresses, janitors, and childcare workers.

Additional Needed Information:

Employers also need the following information to complete the report:

• Company name, address and contact information;
• Employer Identification Number;
• Total number of employees by job category, gender, and race/ethnicity;
• Prior reporting year information;
• Payroll period date (typically one day in October-December of the year from when the data was to be collected).  Choosing a date where an employer has less than 100 employees, which would mean that some employers would not need to file a report, is a legitimate choice.

Conclusion

Employers need to start gathering this information immediately to submit the report through the EEOC’s online portal when it opens in April. Compiling the data and submitting it for the two-year period can be time consuming.

Accurately reporting the data is even more important this year since reporting pay data may again be required (as it was in the 2018 report). Vice President Harris supports adding pay data to the EEO-1 requirement  and this was added under the Obama Administration. The pay data may eventually be used by the EEOC and others as evidence that a company treats employees with a specific protected characteristic (i.e., race or gender) differently than other individuals in the same job category.

This year is a chance to look for possible pay disparities among these categories of employees. Employers should consider conducting a pay audit in addition to filing their EEO-1 reports, regardless of the official documentation required.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.