Public Hearing of October 29, 2003 on Proposed Revised Employer Information Report (EEO-1)
On behalf of MALDEF, the Mexican American Legal Defense and Educational Fund, I appreciate the opportunity to submit written comments to accompany my oral briefing to the Equal Employment Opportunity Commission (EEOC) on the topic of proposed changes to the EEO-1 form.(1) By way of background, MALDEF is a national civil rights organization dedicated to the protection and advancement of the civil rights of the over 35 million Latinos living in the U.S. MALDEF was founded in 1968 in San Antonio, Texas. We are now headquartered in Los Angeles, with additional offices in San Antonio, Houston, Sacramento, Chicago, Atlanta, and Washington, DC. We accomplish our goal of advancing Latino civil rights through a number of methods, including community education, advocacy, providing scholarships, and litigation.
I am particularly pleased to participate in this briefing today as I am a former employment rights litigator, having worked in the U.S. Department of Justice Civil Rights Division’s Employment Litigation Section, and I now do civil rights policy and advocacy work. From March of 1999 through April of 2002, I also had the pleasure of serving as the Vice Chair and Acting Chair of the Secretary of Commerce’s Decennial Advisory Committee. Both during this period as well as the broader period of time in which I continue to serve as a member of the Committee, members of the Committee as well as members of the public raised issues and questions regarding race and ethnic data collection by the federal government.
This testimony is divided into a discussion of the proposed changes to the EEO-1 form for the collection of racial and ethnic data and the collection of job category data. The testimony first reviews the history of the federal government’s classification of racial and ethnic data since 1977, the decisions that the federal government has reached on how to aggregate racial and ethnic data in light of the changes to the collection standards issued in 1997, and MALDEF’s recommendations to the collection and use of the data by the EEOC as it relates to EEO-1 collected data. The testimony then switches to a discussion of the segregation of Latinos within the U.S. workforce and presents MALDEF’s recommendation to better identify underutilization and differential earnings for certain job subcategories within the Service Workers job category.
In 1977, the Office of Management and Budget (OMB) issued Directive No. 15 establishing standard classifications for collecting and presenting data on race and ethnicity for Federal Government activities. At that time, the racial categories were set forth as: American Indian/Alaskan Native, Asian/Pacific Islander, Black, and White. In addition to the four major racial groups, OMB also instructed federal agencies to collect data on the basis of one ethnicity, namely, whether or not a person was Hispanic. Hispanic was defined as “a person of Mexican, Puerto Rican, Cuban, Central or South American or other Spanish culture or origin, regardless of race.”
Directive No. 15 informed agencies that the preferred way to collect the data was to collect race and ethnicity separately. OMB stated that the “number of White and Black persons who are Hispanic must be identifiable, and capable of being reported in that category.” To the extent that racial and ethnic data were collected in a combined format, OMB instructed agencies to ensure that there were categories that identified Blacks who were not of Hispanic origin and Whites who were not of Hispanic origin. For civil rights compliance reporting, OMB instructed that any variation with less data or data that could not be aggregated to the above categories had to receive specific approval from OMB.
In 1997, OMB published its revisions to the standards for the classification of federal data on race and ethnicity.(2) The primary changes were that: 1) the Asian/Pacific Islander category was split into “Asian” and “Native Hawaiian or Other Pacific Islander;” and 2) respondents were required to be offered the chance to select one or more races among the racial categories. OMB specifically set forth self-reporting and the two-question format (asking Hispanic ethnicity and race separately) as the preferred data collection methods. In the 1990’s, OMB specifically considered whether to make Hispanics a racial category and rejected that proposal.(3) As a result, OMB retained the two-question format, asking race separately from whether a person was Hispanic or not. The combined format question (where race and Hispanic ethnicity are combined into one question) was clearly the less preferred data collection method and was reserved for observer-collected data, not self-reported data collection.
On the issue of tabulation of the data, OMB stated that the “procedures used by Federal agencies shall result in the production of as much detailed information on race and ethnicity as possible,”(4) (emphasis added). Where the two-question format is used, OMB directed federal agencies that “provision shall be made to report the number of respondents in each racial category who are Hispanic or Latino,”(5) (emphasis added). OMB further “strongly” encouraged federal agencies to provide the detailed distributions of multiple responses to the race question.(6) Similar to the 1997 directive, OMB stated that for civil rights reporting purposes, any variation that would provide “less detailed data or data which cannot be aggregated into the basic categories must be specifically approved by OMB.”(7)
OMB reached its decisions after a four-year review conducted by the OMB and the members of an Interagency Committee, which consisted of representatives from more than 30 Federal agencies. The review included extensive opportunities for public input as well as research and testing assessing the potential effects of suggested changes to the type and format of the data collected.
Federal agencies responsible for monitoring and enforcing civil rights laws requested that OMB provide guidance on how to work with the new racial categories, particularly since respondents would be allowed to select one or more races. OMB led an interagency group to review the specific needs of civil rights enforcement agencies and, in March of 2000, issued guidance on the matter --- OMB Bulletin No. 00-02.
For data collected by Federal agencies that are provided by businesses and other entities in aggregate form, OMB provided an aggregation method which required the data be provided for the following categories: 1) the five single race categories (American Indian/Alaska Native; Asian; Black/African American; Native Hawaiian/Other Pacific Islander; White); 2) the four most common two-race combinations based on pre-Census 2000 data (American Indian/Alaska Native and White; Asian and White; Black/African American and White; American Indian/Alaska Native and Black/African American); 3) racial combinations that meet a 1% or more threshold for the relevant jurisdiction based on Census 2000 data; and 4) a balance category for other racial combinations that do not meet the 1% threshold.
Once Federal agencies, which are charged with enforcing civil rights laws, receive multiple race responses, OMB directs the agencies to allocate(8) the responses in the following manner:
Responses that include two or more minority races are allocated as follows:
In December of 2000, OMB issued its Provisional Guidance on the Implementation of the 1997 Standards for Federal Data on Race and Ethnicity. In this guidance, OMB reaffirmed the guidance contained in OMB Bulletin No. 00-02 and applied that guidance to different civil rights enforcement and monitoring contexts. After reviewing the changes needed to the EEO forms (e.g., separating Asian and Native Hawaiian/Other Pacific Islander), OMB laid out an approach for data collection and the enforcement of employment discrimination laws consistent with its previous guidance.
OMB directs Federal EEO agencies to determine the four most common two or more race categories, based on Census 2000. (9) After that is determined, then Federal EEO agencies are to follow the reporting format listed earlier for racial categories: 1) the five single race categories; 2) the four most common multiple race combinations; 3) any additional multiple race categories that should be reported; and 4) a residual category of the remaining employees reporting two or more races. OMB reinforces self-identification reporting, the two-question format, and the ability to report two or more races. OMB only allows the employer to determine the race and ethnicity of an employee if the employee declines to self-report.
OMB fine-tuned its allocation guidance for EEO Federal agencies in the context of enforcing employment discrimination laws by providing the following approach:
Individuals who select only one racial category will be counted in that category.
Individuals who select one minority race and White will be counted as part of that minority race.
For the purpose of analyzing an enforcement action, responses of individuals who select more than one minority race will be allocated to the race involved in the enforcement action, if that race is among the ones they have selected.
For nonenforcement-related analyses covering internal and external workforce distributions, several implementation issues remain unresolved at this time.
Finally, OMB discussed the need for the EEOC specifically to determine whether resurveying of incumbent employees whose race/ethnicity were reported previously under different standards is needed.
Recommendation #1: The Instruction Booklet’s Section on Race/Ethnic Identification (Section 4) should make it clear that the employer should only determine the race/ethnicity of an employee if the employee declines to self-report.
Currently, the draft Instruction Booklet’s Section on Race/Ethnicity follows OMB guidance when it states that self-identification is the preferred method of identifying the racial/ethnic information to fill out the EEO-1 report. It diverges from OMB guidance(10) by stating that where self-identification is “not feasible,” the employer can gain the information from post-employment records or observer identification. The Instruction Booklet should make it clear that an employee should be given the option to fill out a form self-identifying his/her race and whether or not he/she is Hispanic. Only if the employee declines should the identification fall to the employer. Employers could interpret the term “not feasible” too broadly and not provide employees the opportunity to self-identify. Clearer instructions are warranted to comply with OMB’s consistent guidance since 1997 that there is a strong preference for self-identification.
Recommendation #2: Employers should report both the race and ethnicity of all their employees.
In order to be in compliance with OMB directives, the EEOC must provide as much detailed information on race and ethnicity as possible, and where the two-question format is used EEOC must report the number of respondents in each racial category who are Hispanic or Latino.(11)
This makes sense from a civil rights enforcement perspective. As both OMB and the Census Bureau have pointed out, a person who is of Hispanic/Latino origin can be of any race.(12) A Latino worker can be discriminated against because of his/her ethnicity and/or because of his/her race. For example, an employer can discriminate against an Afro-Latino because he/she is prejudiced against Latinos or because he/she is prejudiced against Blacks or even because he/she is prejudiced specifically against Afro-Latinos. An African American supervisor may look down upon a Black Puerto Rican who speaks Spanish and has a different culture. A white supervisor may look disfavorably on any Black employee, regardless of whether they are Hispanic or not. A Mexican American supervisor may be particularly biased against a Black Dominican. These scenarios explain why it is important to collect and report on both the race and ethnicity of all employees.
Recommendation #3: If an employee reports he/she is a member of more than one race, both races should be reported by the employer. The employer should not report the employee as a member of a “Two or More Races” category.
When OMB conducted its review of the collection of racial and ethnic data for federal statistical and law enforcement purposes, it specifically rejected the proposal to have a “multiracial” category.(13) Further, the OMB guidance on aggregation of data on race for use in civil rights monitoring and enforcement is clear. In order to accommodate the possibility of having to deal with too many racial combinations,(14) OMB provided a framework for deciding which categories to include. EEOC is required to allow employees to choose among the five single race categories, the four most common racial combinations, additional racial combinations as determined appropriate, and a residual racial combination category.(15) Reporting in this manner allows the EEOC to comply with OMB’s guidance on allocation of data on race for civil rights monitoring and enforcement (discussed in Recommendation #4).
It is unlikely that the EEOC could monitor or enforce the employment anti-discrimination statutes it is charged with enforcing for employees who are lumped together in a “two or more race” category as currently proposed in the EEO-1 form. A person who is White and Asian could be perceived very differently in the workplace than a person who is White and Black/African American. In our current society, it is unlikely that they will be perceived to look the same or that the assumptions made about them based on how they look will be the same. Rather, it is likely that a person who is mixed White and Asian will be identifiable as either Asian or part-Asian, while a person who is mixed White and Black/African American will be identifiable as either Black or part-Black. If an employer has prejudices against Asians but not Blacks, these two employees could be facing a very different workplace environment despite their both falling into the “two or more race” category. For these reasons, employers should be required to report on the EEO-1 form both races of employees (at least for the most common racial combinations) and not lump them into a “two or more races” category.
Recommendation #4: If an employee reports he/she is both a minority race and white, the employer should report the employee as a member of the particular minority race identified and white. Upon receiving that data, the EEOC should allocate that individual to the minority race.
Recommendation #4 is really a corollary recommendation to Recommendation #3. After clarifying that employers should report both races of employees who choose two races, there is an allocation question of how should the EEOC allocate that racial data. While the allocation question and answer do not need to be set forth in the EEO-1 form or the accompanying Instruction Booklet, the allocation question should be addressed now in order to be certain that the EEO-1 form will gather the data required by OMB for law enforcement purposes. OMB is clear on the answer to the question; once the EEOC receives data indicating an employee is a member of a racial minority group and white, the EEOC is required to allocate the person to the minority race.(16)
As mentioned earlier, OMB reached this decision with the assistance and direction of an interagency group brought together to specifically answer questions about how best to collect, aggregate and allocate racial and ethnic data for civil rights law enforcement purposes. Historically, most persons who are mixed race with some combination of a minority race and White are perceived as non-white and a member of the minority race despite their mixed heritage. While a small percentage of mixed race persons who are minority and white mixed have historically “passed” as white, the vast majority have not. As a result, the discrimination faced by members of the minority group, to which the mixed-race person is visually identified and associated, is often felt by the mixed-race person despite having some heritage that is of the white race. In other words, even if a person who is racially Black and White, identifies himself/herself as racially mixed, it is most likely for civil rights enforcement purposes, that that person will continue to be perceived as Black and treated similarly to other Blacks who have higher rates of discrimination than Whites. It is for this reason, OMB’s allocation decision is the right decision and should be followed by the EEOC.
If EEOC chose not to follow OMB’s directive, it is MALDEF’s position that it would have to seek clearance from OMB to allocate racial data differently. At a minimum, it is our position that if EEOC fails to allocate an employee who is a member of a minority race and White to the minority race, then it should at least provide the complete data for that employee. This will allow an opportunity for plaintiffs to argue and the courts to ultimately decide whether it is appropriate to allocate racial data in this manner for civil rights enforcement purposes.
According to the U.S. Department of Labor’s Bureau of Labor Statistics, over 16 million Hispanic men and women contributed their labor to the American economy in 2002.(17) Nationally, Latinos constitute over 11% of the U.S. workforce and represent a larger share of the labor force in nine states.(18) The Latino workforce continues to be integral to the American economy and projections place Latinos as an ever increasing share of this nation’s labor pool. The number of Latino workers will grow by 36.3% during the coming decade; reaching 13.3% of the total U.S. labor force in 2010.(19)
Yet if past employment distribution patterns serve as any predictors, Latino labor is and will likely continue to be concentrated in certain industries and occupations and almost absent in others, unless attention is drawn to persistent employment segregation patterns. Stated another way, Latinos are, at the same time, over-represented in some U.S. industries and occupations and under-represented in others. Accordingly, how much or how little data are collected from EEO-1 compliant employers will either bring to light, or alternatively mask, how much or little annual advancement Latinos make in the coming decade.
The EEOC’s mission of rooting out unlawful employment and promotion discrimination is a critical one to assuring advancement and promotion opportunities for all, including Latinos segregated in certain corners of America’s work sites. Because EEO-1 data are used by EEOC to investigate charges and to provide information about the employment status of minorities and women, the extent to which the EEO-1 form and collection framework allows the agency to gather detailed annual assessments of the utilization of minorities and women is critical. MALDEF believes that the EEO-1 Job Categories need to further require reporting of skills-based subcategories in order to meaningfully assist the Agency in investigations and provide work utilization information that will breakup the isolation, concentration, and segregation many Latina/o workers face daily.
MALDEF applauds the Agency’s efforts to subdivide the current Officials and Manager category into three distinct hierarchical, skill-based subcategories.(20) MALDEF also supports the inclusion of most business and financial operations occupations in the Officials and Managers category and splitting that category into three levels of responsibility.(21) Such efforts will allow for more detailed assessment of the minority and gender utilization data, thereby revealing glass ceilings and workforce isolation patterns women and minorities often face. Yet, MALDEF believes that the Service Worker category should similarly be divided.
Recommendation #5: The EEO-1 Form should require employers to divide the Service Workers job category into distinct, skills-based subcategories similar to the four listed in the June 11, 2003 Federal Register Notice - “Food Services,” “Cleaning Services,” “Personal Services,” and “Protective Services.”
The Bureau of Labor Statistics (BLS) estimates that there were 19,219,000 people employed in service occupations in 2002 with 18.1% being of Hispanic origin.(22) In 2002, BLS estimates that there were 3,475,000 Hispanics in service occupations.(23)
BLS divides the service occupations into three main groupings - (1) Private Households, (2) Protective Services, and (3) Other Services Occupations Excluding Private Households and Protective Services. The third group, Other Services, is further broken down into (a) Food Preparation Services, (b) Health Services, (c) Cleaning and Building Services, and (d) Personal Services. This data, absent the first category -- Private Household -- which by definition is excluded from EEO-1 reporting compliance, is much in line with the four categories EEOC has listed in the June 11, 2003 Federal Register.
Careful consideration of these categories reveals that Latino workers employed in the Protective Services earn on average significantly higher weekly earnings as compared to Latinos in the Food Preparation Services, Health Services, Cleaning and Building Services, and Personal Services. Yet, Latinos are less represented in the Protective Services than the other four categories indicating that Latinos are funneled into the lower-wage service occupations. Moreover, there are pervasive weekly earnings differentials between Latinos and Latinas across all service occupations; Latinas on average earn less each week than their male counterparts for comparable work.(24)
Take for example, in 2002, a Hispanic worker in the Protective Services earned, on average, $690 per week while a Hispanic worker earned, on average, $352/wk in the Food Services, $414/wk in the Health Services, and $380/wk in the Personal Services. The latter three earn drastically lower than the median pay for Hispanics engaged in protective services. Allowing EEO-1 compliant employers to report all service occupations combined together masks the variation in utilization rates, pay and benefits Latinas/os face within the service occupation category.
Moreover, the service occupation category covers wide ground - including occupations that require formal training, job-related training, and/or direct experience to properly perform. While a janitor, part of the Cleaning Services subcategory, and a guard, part of the Protective Services subcategory could conceivably work for the same employer, the difference in employment tracks and weekly wages available to Latino applicants could easily remain undetected should all service occupations be reported together on the revised EEO-1.
Much like the proposed change to subdivide the current Officials and Manager category into 1.1 Executive/Senior Level Officials and Managers, 1.2 Mid-Level Officials and Managers, and 1.3 Lower-Level Officials and Managers, the Service Workers category should also be subdivided into 6.1Protective Service Worker, 6.2 Food Service Worker, 6.3 Personal Services Worker, and 6.4 Cleaning Service Worker. This additional proposed change would allow the utilization of Latina and Latino workers, along with other minorities and women, to be more fully reported to the EEOC. An alternative proposed change would be to subdivide the category into 6.1 Protective Service Worker and 6.2 Food, Personal, and Cleaning Service Workers. This would address any concern that the form would become too long, too cumbersome, or too complex. By adding one additional row to EEO-1, the Agency would be able to investigate and to provide information related to the utilization, or lack thereof, of Latina/o workers in the Protective Services.
1. I wish to acknowledge and thank Legislative Staff Attorney Jim Ferg-Cadima on my staff for doing the research and writing for the section of this testimony covering the job categories contained in the EEO-1 form.
2. OMB, 62 Fed. Reg. 58782 (Oct. 30, 1997).
3. See Clara E. Rodriguez, Changing Race: Latinos, the Census and the History of Ethnicity in the United States 14-16, 159-173 (2000).
4. OMB, 62 Fed. Reg. 58782, 58789 (Oct. 30, 1997).
8. OMB's Guidance clarifies that allocation for enforcement purposes is different than allocation for "bridging" purposes. Bridging is necessary to compare current data with past data collections.
9. The answer to this question depends on whether agencies included the "Some other race" (SOR) category as one of the two or more races chosen by the population. For civil rights enforcement purposes, it makes sense to not include this as a category since there is no protection for the racial category "some other race." Not including racial combinations that include SOR, the top four racial combinations based on Census 2000 data are: White and American Indian/Alaska Native (1.1 million); White and Asian (870,000); White and Black/African American (780,000); and Black/African American and American Indian/Alaska Native (180,000). Including combinations with SOR would have resulted in White with SOR taking the lead position (2.2 million) followed by the top three combinations that do not include SOR. U.S. Census Bureau, Population by Race, Including All Specific Combinations of Two Races, for the U.S.: 2000. Another reason to not include the SOR category for law enforcement purposes is that over 90% of the SOR responses, either alone or in combination with other races, were Hispanic. U.S. Census Bureau, Overview of Race and Hispanic Origin: 2000. Hispanics are counted by a question separate from race and thus for law enforcement purposes do not need to be identified in the SOR category as Hispanic again.
10. OMB, Provisional Guidance on the Implementation of the 1997 Standards for Federal Data on Race and Ethnicity, at 67 (Dec. 15, 2000).
11. See OMB, 62 Fed. Reg. 58782, at 58798 (Oct. 30, 1997).
12. According to Census 2000, 94% of Hispanics were counted under one racial category. Forty-eight percent of Hispanics were counted as White, while 42% were counted in the SOR category. Two percent were counted as Black, 1% as American Indian/Alaska Native, and less than 1% for both the Asian and Native Hawaiian/Other Pacific Islander combined. Considering the size of the Latino population, the 2% figure for Afro-Latinos is not insignificant. It translates into over 700,000 people in the U.S. who identify as Black and Latino. The Census revealed that 6% of Hispanics checked off two or more races, over 80% included SOR as one of the races. U.S. Census Bureau, Overview of Race and Hispanic Origin: 2000.
13. See OMB, 62 Fed. Reg. 58782, at 58784 (Oct. 30, 1997).
14. Despite all of the controversy surrounding the collection of data for persons who identify themselves as two or more races, only 2.4% of the population identified themselves as belonging to two or more races. Of those who did, 93% checked off only two races leaving 7% who checked off as belonging to three or more races. U.S. Census Bureau, Overview of Race and Hispanic Origin: 2000.
15. OMB, Provisional Guidance on the Implementation of the 1997 Standards for Federal Data on Race and Ethnicity, at 66 (Dec. 15, 2000).
16. OMB, Provisional Guidance on the Implementation of the 1997 Standards for Federal Data on Race and Ethnicity, at 66 (Dec. 15, 2000).
17. See U.S. Bureau of Labor Statistics, Table 12. Employed White, Black, and Hispanic-Origin Workers by Sex, Occupation, Class of Worker, and Full- or Part-Time Status (2002).
18. See Sean Thomas-Breitfeld, The Latino Workforce, National Council of La Raza Statistical Brief No. 3 (2003) (listing New Mexico, Texas, California, Arizona, Florida, Nevada, Colorado, New York, and New Jersey).
19. See id.
20. 68 Fed. Reg. 34965, 34967 (June 11, 2003).
21. 68 Fed. Reg. 34965, 34968 (June 11, 2003).22. See Bureau of Labor Statistics, Table 11. Employed Persons by Detailed Occupation, Sex, Race, and Hispanic Origin (2002).
23. See Bureau of Labor Statistics, Table 13. Employed Mexican, Puerto Rican, and Cuban-Origin Workers by Sex, Occupation, Class of Worker, and Full- or Part-Time Status (2002).
24. See Bureau of Labor Statistics, Table A-19. Employed Persons by Detailed Occupation, Sex, Race, and Hispanic Origin (2002). (unpublished table on file with MALDEF).
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