Updates on EEO-1 Reports, Non-Binary Self-Identification, and VETS-4212 Reports
With September upon us, many employers are remembering the prior filing deadline for EEO-1 Reports and wondering what is happening with that obligation. The short answer is that the U.S. Equal Employment Opportunity Commission (EEOC) announced that it will delay collecting EEO-1 Reports from covered employers until March 2021.
Covered employers, including private companies with 100 or more employees and federal contractors with 50 or more employees, are required to file EEO-1 Reports each year, identifying the number of employees in various job groups by race and sex (“Component 1”). Last year, with the added collection of pay data (“Component 2”), the EEO-1 Report deadline was changed to the spring.
On June 12, 2020, the Office of Management and Budget approved the collection of EEO-1 Component 1 data from covered employers. The EEOC announced it will begin collecting the 2019 EEO-1 Component 1 data along with the 2020 EEO-1 Component 1 data in March 2021. The EEOC will notify filers of the precise date the collections will open as well as the new deadline by posting a notice on the EEOC home page and sending a notification letter to eligible EEO-1 filers.
Importantly, at this time the EEOC does not plan to continue collecting Component 2 data, after a long fought legal battle to collect such pay data that began in 2016 (See End to EEO-1 Component 2 Pay Data Reporting for Now…). The EEOC explained “[a]t this point in time, the unproven utility to its enforcement program of the pay data as defined 2016 Component 2 is far outweighed by the burden imposed on employers that must comply with the reporting obligation.” Specific details for the 2021 filing of 2019 and 2020 data are forthcoming and we will continue to monitor the situation and provide updates as they become available.
For years now, employers have struggled with how to report employees who do not identify as male or female in the EEO-1 Report and Affirmative Action Program (“AAP”).
While the EEOC previously issued an FAQ instructing employers to report this information in the comments section of the EEO-1 Report, that may not be a sustainable or efficient solution. Since the Supreme Court’s Bostock v. Clayton County decision holding that Title VII protects LGBTQ people from workplace discrimination, there is increased discussion about whether the EEOC will provide a non-binary reporting option on its EEO-1 Report, in addition to the existing categories of male, female, and wish not to disclose. As of right now, there is no formal guidance beyond the prior FAQ.
The Office of Federal Contract Compliance Programs (“OFCCP”), by contrast, recently released a FAQ addressing self-identification in the AAP context. While OFCCP does not mandate a particular method for collecting self-identification demographic information of its employees and applicants, nearly all contractors covered by OFCCP regulations are required to submit an EEO-1 Report (see above). As a result, most contractors use self-identification forms issued by the EEOC for compiling information about a person’s sex, race, and ethnicity.
OFCCP encourages contractors to rely on employee self-identification to obtain this information. Alternatively, contractors may use visual observation where self-identification is not feasible. However, deference should be given to an individual’s self-identification and it should not be questioned or overridden by a contractor based on visual observation.
OFCCP’s updated FAQs instruct: “If an employee or applicant chooses to self-identify as non-binary, or as a gender other than male or female, the contractor must still include the individual in its affirmative action program (“AAP”). However, the contractor may exclude that individual’s data from the gender-based analyses required by OFCCP’s regulations.” Contractors are forbidden from asking applicants or employees for documentation to prove their gender identity or transgender status. Thus, OFCCP does not require a non-binary option for self-identification, but contractors can certainly add one as opposed to employees and applicants choosing between male, female, and wish not to disclose.
Federal contractors and subcontractors with a contract or subcontract of $150,000 or more are required to file the VETS-4212 Report with the Department of Labor by September 30, 2020.
The VETS-4212 Report requires, among other things, contractors and subcontractors to provide the total number of employees in their workforces by job category and hiring location; the total number of such employees, by job category and hiring location who are protected veterans; the total number of new hires during the period covered by the report; and the total number of new hires during the period covered by the report who are protected veterans.