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Transmittal Number: 283
DATE: August 14, 2008
OFCCP ORDER NO.: ADM Notice/Other
- SUBJECT: Federal contractors' obligation to maintain and
analyze the race and ethnicity data of applicants and employees in Affirmative
Action Programs prepared in accordance with Executive Order 11246, as amended.
- PURPOSE: To establish field enforcement guidance for evaluating
the use of race and ethnicity categories in the Affirmative Action Programs
prepared by federal contractors in accordance with Executive Order 11246,
as amended
- FILING INSTRUCTIONS:
Holders of ADM and LEG Binders only:
File this Notice with the attachment behind the "Other" tab in your Administrative
Practices Binder.
District and Area Offices:
File this Notice with the attachment behind the tab for ADM Directives in
your FCCM Binder.
- OBSOLETE DATA: None
- DISTRIBUTION: A, B (both hard copy and electronically); C (hard copy only).
- EXPIRATION DATE: This Directive remains in effect until superseded.
(Signed) Charles James
Charles E. James, Sr.
Deputy Assistant Secretary for
Federal Contract Compliance
August 14, 2008
Date
EMPLOYMENT STANDARDS ADMINISTRATION
U.S. DEPARTMENT OF LABOR
OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS
WASHINGTON, DC 20210
ADM NOTICE/OTHER
- SUBJECT: Federal contractors' obligation to maintain and
analyze the race and ethnicity data of applicants and employees in Affirmative
Action Programs prepared in accordance with Executive Order 11246, as amended.
- PURPOSE: To establish field enforcement guidance for evaluating
the use of race and ethnicity categories in the Affirmative Action Programs
prepared by federal contractors in accordance with Executive Order 11246,
as amended.
- BACKGROUND: Several provisions in the regulations implementing
Executive Order 11246, as amended (the "Executive Order"), require
federal contractors to maintain and analyze data on the sex, race, and ethnicity
of employees and applicants.(1) The Executive Order Affirmative Action Program
(AAP) regulations generally require that contractors perform these analyses
for minorities in the aggregate, rather than for particular minority groups.
Only one provision of the AAP regulations - 41 CFR § 60-2.11 - requires
contractors to use specific race and ethnic categories. This section requires
contractors to develop an organizational profile reflecting the sex, race,
and ethnicity of its incumbents, and indicating the total number of male and
female incumbents in each of the following groups: Blacks, Hispanics, Asians/Pacific
Islanders, and American Indians/Alaskan Natives. See 41 CFR §§ 60-2.11(b)(3)(iv),
60-2.11(c)(4).(2)
Under 41 CFR § 60-1.7(a), federal contractors with 50 or more employees, and that meet the following thresholds, must complete and file annually an accurate Standard Form 100 (EEO-1) Report:
- have a Government contract, subcontract, or purchase order of $50,000 or more,
- serve as a depository of Government funds in any amount, or
- are a financial institution that acts as an issuing and paying agent for U.S. savings bonds and savings notes.
The EEO-1 Report is used by both OFCCP and the United
States Equal Employment Opportunity Commission (EEOC) to collect data from
private employers and government contractors about their minority and female
workforce. (3) The agencies also use the EEO-1 Report data to analyze patterns
of employment of women and minorities and to support civil rights enforcement.
1/All references to federal contractors also include covered federal subcontractors. The term "applicant" is intended to refer to both applicants and Internet Applicants as those terms are used in section 60-1.12(c).
2/See also, 41 CFR § 60-3.4, in which contractors are required to maintain records by "sex, and the following races and ethnic groups: Blacks (Negroes), American Indians (including Alaskan Natives), Asians (including Pacific Islanders), Hispanic (including persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish origin or culture regardless of race), white (Caucasians) other than Hispanic…."
Since 1977, employers have been required to report data on the EEO-1 Report using five race and ethnic categories, and nine job categories. The race and ethnic categories are:
- Hispanic
- White (not of Hispanic origin)
- Black (not of Hispanic origin)
- Asian or Pacific Islander
- American Indian or Alaskan Native
The job categories are:
- Officials and Managers
- Professionals
- Technicians
- Sales Workers
- Office and Clerical
- Craft Workers (Skilled)
- Operatives (Semi-skilled)
- Laborers (Unskilled)
- Service Workers
In November 2005, the EEOC, after consultation with OFCCP and consideration of extensive public comments, finalized several modifications to the system used by employers to classify, the race, ethnicity, and job categories of their workforce on the EEO-1 Report. The revised EEO-1 Report requires reporting in seven racial and ethnic categories, and subdivides the "Officials and Managers" job category. The chart below outlines these changes:
|
OLD EEO-1 REPORT
|
NEW EEO-1 REPORT
|
Race and Ethnicity |
Hispanic
|
Hispanic or Latino
|
White (not of Hispanic origin)
|
White, not Hispanic or Latino
|
Black (not of Hispanic origin)
|
Black or African-American, not Hispanic or Latino
|
Asian or Pacific Islander
|
Asian, not Hispanic or Latino
Native Hawaiian or Other Pacific Islander, not Hispanic
or Latino
|
American Indian or Alaskan Native
|
American Indian or Alaskan Native, not Hispanic or
Latino
|
|
|
Two or More Races, not Hispanic or Latino.
|
Job Categories |
Officials and Managers
|
Executive/Senior Level Officials and Managers
First/Mid Level Officials and Managers
|
Professionals
|
Professionals
|
Technicians
|
Technicians
|
Sales Workers
|
Sales Workers
|
Office and Clerical
|
Office and Clerical
|
Craft Workers (Skilled)
|
Craft Workers (Skilled)
|
Operative (Semi-Skilled)
|
Operative (Semi-Skilled)
|
Laborers
|
Laborers
|
Service Workers |
Service Workers |
3/ See 42 U.S.C 2000e-8(c). For more information on who must file the EEO-1 Report, see
http://www.eeoc.gov/eeo1survey/whomustfile.html
OFCCP's regulations regarding the race, ethnicity, and job categories used by contractors have not changed to reflect the new EEO-1 categories, thus resulting in contractors either maintaining dual data collection systems or delaying implementation awaiting further instructions from OFCCP.
- POLICY: As a matter of enforcement discretion, OFCCP will not cite any contractor for non-compliance with the Executive Order solely because it utilizes the race, ethnicity, or job categories required by the new EEO-1 Report. Further, OFCCP will accept AAPs and supporting records that reflect the race, ethnicity, and job categories outlined in either 41 CFR Part 60-2 or the new EEO-1 Report.
- FIELD ENFORCEMENT GUIDANCE: Compliance Officers should
adhere to the following principles when evaluating the use of race and ethnicity
categories in the AAPs prepared by federal contractors in accordance with
the Executive Order, as amended:
- Contractor data tracking responsibilities remain the same.(4) Accordingly, self-identification will remain the preferred method for compiling information about the sex, race or ethnicity of applicants and employees. A contractor's invitation to self-identify race or ethnicity should state that the submission of such information is voluntary. However, contractors may use post-employment records or visual observation when an individual declines to self-identify his or her race or ethnicity.(5)
- Until further rules and guidance are provided by OFCCP, contractors should not be cited for noncompliance with the Executive Order if they prepare their AAPs using the revised EEO-1 categories, rather than the race and ethnicity categories listed in §60-2.11 (the original EEO-1 categories). Contractors also should not be cited for continuing to use the racial and ethnic categories provided under OFCCP's current regulations. Regardless of which categories are used, and consistent with the guidance of the EEOC,(6) Compliance Officers should evaluate whether contractors are: (1) permitting individuals to choose to self-identify as belonging to more than one race; and (2) obtaining this data either by allowing individuals to select more than one of the single race categories or by allowing individuals to select a two or more races category.
4/See Contractor Data Tracking Responsibilities Directive, esa/ofccp/regs/compliance/directives/dir265.htm
5/Contractors are encouraged to use tear-off sheets, post cards, or short forms to request demographic data.
- It is important that contractors be permitted to collect and analyze workforce data in a manner that allows them to meaningfully examine their progress towards equal employment opportunity. Accordingly, nothing in this Directive is intended to prohibit more detailed data collection efforts by contractors. Contractors may, but are not required to, obtain more detailed demographic data from applicants and employees. Some contractors may find such data useful for research or statistical purposes, or for self-monitoring of their equal employment opportunity efforts. For example, some contractors may wish to obtain more detailed demographic data from individuals self-identifying as a single race, such as Asian, while other contractors may wish to obtain more detailed demographic data, including racial data, from those individuals who self-identify as Hispanic or Latino. Still other contractors may wish to collect and analyze more detailed demographic data regarding those individuals who self-identify as belonging to more than one race.
- Regardless of how detailed the demographic data the contractor collects, it must be maintained in accordance with OFCCP's recordkeeping requirements.
- Compliance with specific AAP requirements:
- Workforce Analysis (Organizational Profile 60-2.11): Until further
rules and guidance are provided by OFCCP, when developing an organizational
profile, as required by § 60-2.11, contractors should not be cited
for noncompliance with the Executive Order if they choose to develop
such analyses using the revised EEO-1 categories, rather than the
race and ethnicity categories listed in §60-2.11 (the original EEO-1
categories). Contractors also are permitted to prepare their AAP using
the racial and ethnic categories provided under OFCCP's current regulations.
- Job Group Analysis (60-2.12): When conducting a job group analysis
for affirmative action purposes, small contractors with fewer than
150 employees may prepare the required analysis utilizing the revised
EEO-1 Report job categories as job groups. Accordingly, these contractors
will generally subdivide the officials and managers AAP job group
into two AAP job groups: (1) Executive/Senior Level Officials and
Managers and (2) First/Mid Level Officials and Managers. In some circumstances,
subdividing the officials and managers category may result in job
groups with too few incumbents to permit meaningful analyses and goal
setting. In these cases, contractors with fewer than 150 employees
should combine the Executive/Senior Level Officials and Managers and
the First/Mid Level Officials and Managers subcategories when examining
potential underutilization.
6/"Employers may ask employees
to specify particular races rather than to check "Two or More Races,"
but they are not required to do so." http://www.eeoc.gov/eeo1/qanda-implementation.html
The Commission does not require employers to collect and maintain
more detailed data than needed to complete the EEO-1 report, although
the Commission notes that some employers may find it necessary to
do so for research or statistical purposes or for self-monitoring.
See 70 Fed. Reg. 71294, 71298 (11/28/05).
- Utilization Analysis (60-2.13 through 60-2.15): Consistent with
OFCCP's longstanding policy, all individuals identified as being Hispanic
or Latino should continue to be counted as minorities when comparing
the percentage of women and minorities in each of a contractor's job
groups to the available workforce, as required by §§ 60-2.13, 60-2.14,
and 60-2.15, or when examining whether a contractor's employment practices
result in disparities in the employment or advancement of minorities,
as required by § 60-2.17. If an individual self-identifies as Hispanic
or Latino and also selects a race, contractors should continue to
identify the individual as being "Hispanic or Latino" when preparing
the required AAP analyses. This approach is consistent with the approach
adopted by the EEOC for purposes of the revised EEO-1 Report.
Similarly, contractors should consider all individuals identified
as belonging to two or more races as minorities when comparing the
percentage of women and minorities in each of their job groups to
the available workforce, as required by §§ 60-2.13, 60-2.14 and
2.15, or when examining whether their employment practices result
in disparities in the employment or advancement of minorities, as
required by § 60-2.17.
- Placement of Goals (60-2.16): When establishing placement goals
pursuant to § 60-2.16, contractors should, in most cases, continue
to establish a single goal for all minorities. Where a substantial
disparity exists in the utilization of a particular minority group,
or in the utilization of men or women of a particular minority group,
the contractor may be required to establish separate goals for those
groups. Contractors are not expected to set a separate placement goal
for individuals identified as belonging to more than one race. If
a contractor has established placement goals for particular minority
groups and has maintained data regarding the specific races of those
individuals identified as belonging to two or more races, the contractor
may present such data to OFCCP to demonstrate its good faith efforts
in addressing its utilization of particular minority groups.(7)
7/The small number of individuals
identified as belonging to more than one race makes it unlikely
that many quantitative analyses of a contractor's workforce will
reveal a substantial disparity in the utilization of individuals
belonging to Two or More Races. In the 2000 Census, 2.4 percent
of the total population (or 6.8 million people) identified themselves
as belonging to more than one race. See United States Census Bureau,
The Two or More Races Population: 2000, Census 2000 Brief, at p.
9 (November 2001), available at http://www.census.gov/prod/2001pubs/c2kbr01-6.pdf.
The U.S. Census 2005 American Community Survey Report reported that
only 1.9 % of the total U.S. population identified as belonging
to the Two or More Races category. See United States Census Bureau,
American Community Survey, General Demographic Characteristics:
2005, available at http://factfinder.census.gov/servlet/DTTable?_bm=y&-geo_id=01000US&-ds_name=ACS_2005_EST_G00_&-mt_name=ACS_2005_EST_G2000_B02001 ;
http://factfinder.census.gov/servlet/ADPTable?_bm=y&-geo_id=01000US&-ds_name=ACS_2005_EST_G00_&-_lang=en&-_caller=geoselect&-format.
- Additional AAP Requirements (60-2.17): OFCCP's regulations require
that a contractor perform in-depth analyses of its total employment
process to determine whether and where impediments to equal employment
opportunity exist. Section 60-2.17 requires that contractors examine
whether their employment practices result in disparities in the employment
of minorities in the aggregate.(8)
When conducting this analysis, contractors are not required to separately
evaluate their employment practices with regard to individuals identified
solely as belonging to two or more races. Rather, these individuals
should be considered as part of the aggregate group of minorities.
Some contractors find it useful to conduct the analyses required
by § 60-2.17 for particular minority groups, as well as for minorities
in the aggregate. Contractors that maintain more detailed information
regarding the race and ethnicity of their workforces may choose
to reallocate those identified as belonging to two or more races
into single race categories for purposes of affirmative action analyses.
Contractors electing to do this reallocation may use the allocation
rules developed by OMB in its Guidance on Aggregation and Allocation
of Data on Race for Use in Civil Rights Monitoring and Enforcement.
(9)
- Support Data (60-2.17(b)(2) and Part 60-3): When evaluating whether
a contractor has maintained information on the impact of its selection
procedures and conducted an adverse impact analysis under part 60-3,
contractors will only be expected to produce analyses relating to
the impact on those identified as belonging to one of the single race
and ethnic categories. Contractors will not be expected to produce
analyses of the impact of employee selection procedures on groups
comprised of individuals identified as belonging to more than one
race; but contractors may be asked for other employment records they
may have relating to such individuals. Such records may include any
information regarding the reallocation of individuals identified as
belonging to more than one race into single race categories, or records
maintained by the contractor that utilize the race and ethnic categories
of the new EEO-1 form.
8/Pursuant to section 60-2.17, the contractor must evaluate the following minimum areas: (1) The workforce by organizational unit and job group to determine whether there are problems of minority or female utilization (i.e., employment in the unit or group), or of minority or female distribution (i.e., placement in the different jobs within the unit or group); (2) personnel activity (applicant flow, hires, terminations, promotions, and other personnel actions) to determine whether there are selection disparities; (3) compensation system(s) to determine whether there are sex-, race-, or ethnicity-based disparities; (4) selection, recruitment, referral, and other personnel procedures to determine whether they result in disparities in the employment or advancement of minorities or women; and (5) any other areas that might impact the success of the affirmative action program.
9/OMB, Bulletin 00-02, Guidance on Aggregation and Allocation of Data on Race for Use in Civil Rights Monitoring and Enforcement (March 9, 2000), available at http://www.whitehouse.gov/omb/bulletins/b00-02.html.
- Where a contractor has not maintained more detailed demographic information about those individuals identified as belonging to more than one race, Census data, labor market data, and other labor market data may be used to assess a contractor's employment practices. In conducting this analysis, the proportion of individuals identified as belonging to more than one race in the contractor's workforce may be compared with labor force statistics or other data on the percentages of multiple race individuals in the relevant qualified labor force. This data could then be used to estimate single race allocation for those individuals identified as belonging to more than one race when a contractor has not retained such information.
- OBSOLETE DATA: None.
- DISTRIBUTION: A, B (both hard copy and electronically); C (hard copy only).
- EXPIRATION DATE: This Directive remains in effect until superseded.
(Signed) Charles James
Charles E. James, Sr.DATE
Deputy Assistant Secretary for
Federal Contract Compliance
August 14, 2008
Date
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