The race and ethnicity categories used in EEO-1 forms will be updated by the EEOC pursuant to a long-awaited Office of Management and Budget directive that applies to all federal reporting. The directive requires agencies to implement the changes by 2029, but the EEOC could act well before then after holding hearings. The changes also would apply to a Component 2 pay data requirement the EEOC is considering reviving.
A single combined question: The directive requires agencies to consolidate the current questions on race and ethnicity into a single question that allows employees to select as many options as they believe relevant. The change is intended to avoid confusion that often occurs among respondents who identify as multi-racial. Thus, individuals who identify as Hispanic or Latino will also have the option to identify their race as well, or not to do so.
New category: Currently, employees of Middle Eastern and North African descent are identified as “White,” which has drawn considerable criticism. A new “MENA” category will be created for those employees.
Mixed responses: The “single question” change has drawn strong praise from some while generating concerns among management-side attorneys about potential compliance challenges. Former Democratic EEOC Chair Chai Feldblum stated: “It is absolutely the right policy thing to do because it more accurately reflects the demographics of our country.” Former Acting DOL Solicitor David Fortney of FortneyScott cautions that the changes “will affect everything” noting that the EEOC looks at “similarly situated” individuals while investigating a charge. It also considers discrimination trends in deciding its emphasis in enforcement strategies.
What you should do: At some point in the next five years, the changes in the EEO-1 form will be a done deal, as could a new Component 2 pay date reporting requirement. This gives your company time to consider how compliance will be affected. The impact on your DEI priorities, if any, is also worth examining. As with many regulatory changes, these may be long overdue with a worthy rationale but, as Mr. Fortney notes, “it will affect everything.”
