Remarks of Wade Henderson, Executive Director Leadership Conference on Civil Rights

Public Hearing of October 29, 2003 on Proposed Revised Employer Information Report (EEO-1)

I. INTRODUCTION

On behalf of the Leadership Conference on Civil Rights (LCCR), I appreciate the opportunity to testify before the Equal Employment Opportunity Commission (the Commission) regarding proposed changes to the EEO-1 report which captures race, ethnicity, and gender information essential for civil rights enforcement. I am Wade Henderson, executive director of the Leadership Conference on Civil Rights (LCCR), a diverse coalition of more than 180 national organizations representing a broad constituency, including persons of color, women, children, labor unions, individuals with disabilities, older Americans, major religious groups, and gays and lesbians.

The EEOC’s mission and critical role in advancing equal employment opportunities through the enforcement of Title VII is obviously one which the LCCR supports. The LCCR is committed to ensuring that the Commission continues to receive the data it needs to insure compliance with civil rights laws so that all are treated equally in the work place. As the Commission considers changing how race and job categorizations are reported with a new EEO-1 report, the LCCR addresses the importance of the report and offers some perspective on the proposed changes to the existing EEO-1 report.

II. IMPORTANCE OF THE EEO-1 REPORT

As an initial matter, I would like to address the relevance of the EEO-1 report in enforcing anti-discrimination laws. A review of some of the comments submitted from the business community seems to imply that the importance of capturing an employer’s demographic data through EEO-1 reports has waned over the years. In essence, these employers believe that the EEO-1 report has out-served its usefulness and has little practical utility. Nothing could be further from the truth. The report serves not only an enforcement purpose, but also provides a valuable historical perspective. How can we measure our progress if we do not know where we have been?

The data collected through the EEO-1 Report is essential to meaningful enforcement of our nation’s laws prohibiting unlawful discrimination in the workplace. The Commission is specifically empowered “to prevent any person from engaging in any unlawful employment practice as set forth in” Title VII. As the EEOC is well aware, the data collected in the EEO-1 report provides baseline information essential to this function. As Commissioners, you know best the intrinsic nature of this data in the enforcement of anti-discrimination laws. The importance of ensuring that employers indeed provide an equal employment opportunity for all cannot be understated.

EEO-1 data is used to determine whether employers are in compliance with the civil rights laws that protect those who have historically experienced discrimination. Courts and parties repeatedly rely on the EEO-1 report in analyzing compliance with our nation’s anti-discrimination laws. Indeed, a recent electronic legal search uncovered over 260 cases where courts included the EEO-1 data in its analysis of whether an employer was guilty of discrimination.

The Department of Labor’s Office of Federal Contract Compliance Programs, or OFCCP, also relies on EEO-1 data to allocate its limited investigatory resources efficiently. OFCCP monitors federal contractors’ compliance with the nondiscrimination obligations of Executive Order 11246. Due to limited resources, OFCCP can only investigate the employment practices of a small fraction of the contracting community. For this reason, OFCCP relies on EEO-1 data to help select the strongest cases for investigation and to limit the burden on contractors.

In addition to its importance to federal agencies charged with enforcing the federal employment anti-discrimination law, the report is vital to others fulfilling their roles as private attorneys general as envisioned by Title VII. As you well know, the ability of private individuals to effectively bring charges against employers and to prove unlawful discrimination exists is a key element of Title VII. This role is crucial to the organizations like those which comprise the LCCR. It is likewise pertinent to private plaintiffs in their efforts to have their rights redressed through EEOC and the courts. As noted by the Supreme Court of the United States, the Commission files suit in “less than one percent of the charges filed each year.” Obviously, meaningful private enforcement of Title VII depends upon information like that captured by the EEO-1 report. This information is needed to properly prepare and analyze these cases. Thus, the ability of individuals to have the tools to effectively advocate on their own behalf is essential to the enforcement of anti-discrimination laws.

Courts, also, have consistently relied upon EEO-1 data to determine the racial composition of a particular locality’s workforce in order to compare or contrast a particular employer’s hiring or promotional practices. The current EEO-1 report has been used as “evidence of gross disparity at the office/manager level positions” by an employer. EEO-1 data is, also, routinely used in comparison with census data to demonstrate the availability of a particular racial or ethnic group for employment at a specific level. The report has been repeatedly viewed as “relevant,” “accurate,” “efficient,” and “probative” in the analysis of discrimination performed by the court.

The importance of this data in civil rights enforcement is equally as important to employers. As one court noted, “EEO-1 reports, including the self evaluative portions, . . . contain information helpful to . . . claim[s] of employment discrimination . . . useful information of intent and motivation. As the defendant corporate authors of these types of reports may use the reports to demonstrate positive motivation, so should the plaintiffs be allowed access to those reports to determine whether proof of any elements of their cause of action can be aided by that information” (emphasis added).

In addition to enforcement efforts, the EEO-1 report plays a role in measuring progress toward an integrated work force. Without the EEO-1 report, the EEOC and the OFCCP would not be able to track the history of civil rights compliance by employers. An employer’s record of diversity, or lack thereof, speaks volumes as to how it implements civil rights policies as well as its inclination to obtain and maintain a diverse work place. As one district court noted, the reflection of the racial composition of a workplace and an employer’s history as evidenced on the EEO-1 reports is part of the factual background considered in determining the motive or intent behind employment decisions. “To the extent the EEO-1 reports deal with the racial composition of defendant's workforce they are relevant to the subject matter of the action.”

III. EEOC’S PROPOSED CHANGES TO THE EEO-1 REPORT

A. The Refinement of the “Officials and Managers” Category into Three Separate Categories

The LCCR supports the refinement of the “officials and managers” category. Currently there is only one category for officials and managers which range from Chief Executive Officer to branch managers. The proposed changes to the job category data increase the accuracy of the distribution of the minorities and women in the various management levels. The expansion of the “officials and managers” category will allow the Commission to better track disparities at the upper levels. Both the Commission and individuals may use the EEO-1, report in conjunction with other evidence, to charge an employer with discrimination in hiring and promotions against minorities and women. An overly broad categorization of “officials and managers” has prevented courts from certifying class actions because the lack of refined data could not support to whom the class representatives were similarly situated. One danger of the overly broad categorization of “officials and managers” is demonstrated in In re PEPCO Employment Litigation, where the court refused to certify a class based on the broad EEO-1 categories of employees.” Because the EEO-1 categorization of “managers” was overly broad and all those characterized in that category clearly were not similarly situated, the class certification was denied. The expansion of the “officials and managers” category should offer even greater clarity as to racial and gender stratification occurring at or above the “glass ceiling.”

B. Separation of the Racial Categories

We, also, have no opposition to the creation of “Native Hawaiian or other Pacific Islander” as its own racial category. The proposed EEO-1 report would follow the Office of Management and Budget (OMB) decision to revise the Statistical Policy Directive No. 15, Race and Ethnic Standards for Federal Statistics and Administrative Reporting. Since 1977, OMB has been utilizing the established racial classifications of “American Indian/Alaskan Native,” “Asian/Pacific Islander,” “Black,” and “White.” This separation of Pacific Islanders from the Asian racial category should provide a more accurate record of the presence of both racial groups in the American workforce. This new racial category not only reflects the desire of native Hawaiians and other Pacific Islanders to be counted separately from Asians, but also follows the intent to capture data relevant to indigenous peoples.

In addition the OMB also employed the category “Hispanic” to gather ethnic data specific to them. With this decision the following two modifications were made: (1) the separation of the category “Asian/Pacific Islander” into two categories - “Asian” and “Native Hawaiian or Other Pacific Islander,” and (2) the term “Hispanic” was changed to “Hispanic or Latino.” The revised standard left five racial categories. In addition there were two ethnic categories: “Hispanic or Latino” or “Not Hispanic or Latino.”

C. Reporting of Racial and Ethnic Data

The proposed changes to the EEO-1 report states self-identification as the preferred method for acquiring racial and ethnic information from employees. It is not unless self-identification is not feasible that post-employment or observer identification may be used. According to the EEOC, when self-identification is not feasible an employee may be included in the group to which he or she appears to belong, identifies with, or is regarded in the community to belonging.

With the proposed EEO-1 Report, employers are now to separate ethnicity from race. They must first ask whether an employee is “Hispanic or Latino” or not. It is only after that is determined that the employer should inquire about an employee’s race. We refer you to the testimony submitted by the Mexican American Legal Defense and Educational Fund regarding this structure of the EEO-1 report. The LCCR finds the reporting and capturing of refined race and ethnicity data is an important and essential component to civil rights enforcement and diversity in the workplace.

V. Conclusion

For over 50 years, the work of the LCCR has reflected our longstanding, unwavering commitment to ensuring equal employment opportunity and affirming equal justice principles. Our support for the Commission and its mission, and its role in civil rights enforcement to ensure equal opportunity and treatment for all employed in American workplaces is rooted firmly in this commitment. We understand the concern to have current racial classifications on the EEO-1 report and to implement changes that promote the interests of employees without overburdening employers. We believe that accurate racial data, especially as they relate to managerial positions, will promote diversity and equal opportunity in employment. Our view is that any change in this report must enhance the vital enforcement function of the Commission. We thank you for the opportunity to participate in today’s hearing and we look forward to working with you on these critical issues.

This page was last modified on October 29, 2003.