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Remarks of Carol Miaskoff

The U.S. Equal Employment Opportunity Commission

Meeting of November 16, 2005, Washington D.C. on Operations in Wake of Hurricane Katrina and Revisions to EEO-1 Report

Good morning, Madam Chair, Madam Vice Chair, and Commissioners. My name is Carol Miaskoff. I am the Assistant Legal Counsel for Coordination and I am here to summarize the chronology and circumstances leading to the proposed, revised EEO-1 package that is before you today.

CHRONOLOGY

As Deidre Flippen stated, the Commission published its initial Paperwork Reduction Act (PRA) Notice on June 11, 2003, proposing changes to the EEO-1 report and requesting public comments. During this 60-day comment period, 32 interested parties submitted comments, including civil rights organizations, employers, human resources and information technology professionals, and individuals. The Commission held a public hearing about the proposal on October 29, 2003, at which 9 witnesses testified. Several parties submitted supplemental written comments after the hearing. The Office of Legal Counsel analyzed all the comments and testimony. A public meeting and Commission vote was scheduled for June 4, 2004 on a proposed final EEO-1, but this meeting was postponed after the Chair met with civil rights groups to hear their concerns. The Office of Legal Counsel staff then reviewed the entire record, giving full consideration to all points of view. Additionally, coordination with OMB and OFCCP continued in the period between June 2004 and the present. The purpose of today’s meeting is to deliberate and vote on a proposed final EEO-1 package. The next step – after the Commission approves a final revised EEO-1 – will be to publish it in the Federal Register for a 30-day comment period. This is because the process is under the Paperwork Reduction Act. Comments will go directly to OMB, and OMB will then decide whether to approve or disapprove the revised EEO-1.

COMMENTS

My primary role today is to summarize the major themes in the public comments and to present the proposal now before the Commission. The comments primarily focused on four issues:

  • The Commission’s strong endorsement of self-identification of race and ethnicity rather than visual identification by the employer;
  • The Commission’s adoption of a new racial category, “Two or more races”;
  • The Commission’s decision to retain the current EEO-1 practice of reporting Hispanic or Latino employees only by ethnicity but not by race; and
  • The Commission’s decision to divide the job category for Officials and Managers into three hierarchical subcategories.

After discussing each issue, I will summarize how the EEO-1 package now before you responds, starting with the issue of self-identification of race and ethnicity.

Self Identification

The original 2003 EEO-1 proposal stated a strong preference for employers to collect race and ethnic data by asking employees to specify the ethnicity and the race they considered themselves to be. This preference was based on OMB's 1997 Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity (hereinafter 1997 Revised Standards). Public comments objecting to this preference came from employers expressing discomfort about possible employee reaction. Some employers also said that it would be burdensome to collect information in this way. One employer group requested an exemption from self-identification when doing so would prove unduly burdensome or otherwise not practical or feasible.

OMB’s 1997 Revised Standards call for self-identification as the preferred method to collect data about ethnicity and race. This preference is linked to the guidance about giving individuals the opportunity to report more than one category. It is difficult to imagine how a continuation of visual identification by employers could be used to obtain accurate information about whether someone identifies with “Two or more races.” In the EEO-1 materials before you now, there is only one exception: When employees decline to self-identify.

I will now turn to the central question about ethnicity and race, which was whether to have a single category for everyone who self-identifies with more than one race, titled "Two or more races."

Two or More Races

There was extensive public comment on this issue. At the hearing, witnesses discussed the pros and cons of having a single category for all employees who chose to self-identify with Two or More Races, as well as the pros and cons of having categories for the most four common racial combinations, plus a residual, drawn from OMB’s 2000 guidance. Civil rights organizations stated in strong terms that more detailed racial reporting was necessary in the interests of civil rights enforcement and full compliance with OMB’s guidance. Employer groups testified to the burden in both time and money that a detailed race and ethnic reporting scheme would impose. Finally, OFCCP said that adoption of the “Two or More races” category would be consistent with its current uses of EEO-1 data.

In weighing these different points of view, we turned to a consideration what data would be most useful for EEOC’s enforcement program. As Ms. Flippen, Ms. Pierre and Mr. Lee have stated or will explain, staff uses EEO-1 data in two major ways:

  • First, to analyze broad trends in female and minority employment on an industry, regional or national basis; and
  • Second, to help make an early assessment of the strength of a charge and, later, to compare the racial, ethnic and gender makeup of employees at a particular organization with that of employees at similar organizations.

In both of these instances, Commission staff uses EEO-1 data to find statistically significant disparities or trends between a particular employer and other employers, or among larger groups of employers. EEO-1 data is not intended -- and cannot -- provide information about how a specific employer’s workforce came to look as it does, because it is a snapshot of the payroll at one point in time and does not provide any information about individual employment decisions, such as hirings, firings, or promotions. For the same basic reason, the EEO-1 also does not provide EEOC with the information to determine if a specific charge is with or without merit. EEOC staff obtains that kind of specific information from the employer during its investigation of the charge.

Of significant importance to this decision-making process is the fact that in the 2000 Census, only 2.4% of respondents reported that they were in a category that would qualify as “two or more races.” Additionally, the Census Bureau’s modified numbers for 2000 show that 1.4% of the population reported more than one race, with the largest subgroup being those under 13, at 2.4%. These percentages themselves include several unique racial combinations.

In this context, where the total for all people in Two or More Races is small, but where the data is ultimately used to analyze broad trends or comparisons, the decision was made to retain the single category for Two or More Races.

Reporting Race of Hispanic or Latino Employees

The second important question concerning race and ethnicity was whether to change the EEO-1 to require employers to report racial data for Hispanic or Latino employees.

Employers have never been asked to report race data for Hispanic or Latino employees on the EEO-1. This became the subject of debate because OMB's 1997 Revised Standards advised the collection and maintenance of such data when the two question format is used. The phrase “two-question format” means that when race and ethnicity (i.e., Hispanic or Latino) are collected separately, the first question is about ethnicity and the second about race. In public comments, civil rights groups focused on the importance of having complete racial data available in order to combat all workplace discrimination. Most employer groups focused on the burden of collecting, maintaining and reporting race data for Hispanic or Latino employees. Some employers stated that they might choose to collect racial data for Hispanic/Latino employees for research or statistical purposes or to defend against potential EEO claims.

The 2000 Census suggests that a small percentage of the population reported as Hispanic or Latino and also as part of a racial category other than White or “Some other Race.” According to Census 2000, a total of 3.6% of the Hispanic or Latino population reported their race as Black, or American Indian/Alaska Native, or Asian, or Native Hawaiian/Pacific Islander. 42.2% of the Hispanic or Latino population reported their race as “Some other Race,” and 6.3% as Two or More Races. The Census Bureau itself is working to identify ways to collect more accurate data about race from individuals who identify as Hispanic or Latino. Additionally, media reports in the last few years cited debate in society about identifying with American racial groups. Additionally, OFCCP asserted that changing the EEO-1 to report the race of Hispanic or Latino employees would complicate its use of the EEO-1 data. Given all these considerations, the final proposal reaffirms the initial decision not to require employers to report the race of employees who identify as Hispanic or Latino. The Preamble to the final EEO-1 report, however, commends employers who choose to collect more detailed race information than needed to complete the EEO-1 report.

Employee Questionnaire

Finally, the final EEO-1 package does not include the suggested questionnaire, which was included in the 2003 proposal, for employers to use when collecting race and ethnic information from employees. The Preamble to the final EEO-1 report, however, sets forth two basic principles for employers to follow in collecting this information: (1) offer employees the opportunity to self-identify; and (2) provide a statement about the voluntary nature of the inquiry. A sample statement making these two points is included in the Preamble. The Preamble also adopts, as proposed in 2003, a two-question format, meaning that employees are first asked to report their Hispanic or Latino status and second to report the race or races they consider themselves to be.

The next major topic concerns changes in the Job Categories listed on the EEO-1.

Job Categories

Dividing Officials and Managers

The Commission originally proposed expanding the current EEO-1 “Officials and Managers” into three sub-categories: Executive/Senior Level, Mid-Level and First (Lower) Level. In public comments and testimony, employers raised concerns about how to divide Officials and Managers into three subcategories, in particular, about the likelihood of inconsistent categorization of middle-level managers who performed the same functions at different companies. We recognize that it would be difficult to consistently place middle managers. We also, however, concluded that a single category for all Officials and Managers is no longer acceptable. The final EEO-1 package therefore proposes two subcategories of Officials and Managers: Executive/Senior Level Officials and Managers and First/Mid-Level Officials and Managers.

With respect to job categories, some commenters strenuously objected to the use of Census Job Codes as a mandatory basis for subdividing Officials and Managers. The final revised EEO-1 does not use Census codes to define the subcategories. Instead, the final EEO-1 package explains that jobs should be assigned to each subcategory based on the job's level of responsibility and influence in the organizational hierarchy. There are detailed descriptions in the Instruction Booklet and the Preamble.

The proposed revised EEO-1 also moves business and financial occupations from the Officials and Managers category to the Professionals category. This change will improve data for analyzing trends in mobility of minorities and women within the upper reaches of organizations.

Finally, I will address two miscellaneous but significant issues.

Establishments in Hawaii

Under the current EEO-1 report, establishments located in Hawaii were not required to report the race/ethnicity of employees, but were instead permitted to report employment data only by gender. This exemption was spelled out in the current Instruction Booklet. The proposed final EEO-1 does not exempt establishments in Hawaii. Employers will need to complete the revised EEO-1, reporting the gender, race and ethnicity of employees for establishments located in Hawaii.

Resurveying

The EEO-1 package does not mandate that employers resurvey their entire workforce before submitting the first EEO-1 report in the new format. The goal is to minimize burden for employers while they are transitioning to the revised EEO-1 report. The Preamble does, however, urge employers to use all opportunities to resurvey that arise in the normal course of business. The Preamble also reminds employers to seek self-identification of all new employees under the new race and ethnic categories.

This concludes my presentation. Thank you.

This page was last modified on November 17, 2005.