The federal government has now revised its standards for collecting race and ethnicity information for just the second time since they were developed in 1977.
The first, and still controversial revision came in 1997 when “Hispanic” was split out as an ethnicity and the federal government began asking about Hispanic ethnicity separately from race. That caused significant confusion and skewed reporting.
The new revision will re-combine race and ethnicity questions, allowing individuals to more easily and understandably identify in all race/ethnicity categories that apply. And the much debated “Middle Eastern or North African” (MENA) race category will be added.
As a rather satisfying side note, BCGi has been advocating for years that contractors stop using the term, “minority” to describe people of color in the aggregate as that term can be both misleading and derogatory (and no regulation or law actually requires the use of that term). Office of Management and Budget agrees and is also removing references to “minority” and “majority” when describing race/ethnicity. Additionally, they are removing the word, “Negro,” from the definition of “Black or African American.”
As the federal government collects race and ethnicity data, so follow state and local governments and private organizations that are required to report workforce demographic data to the feds. In other words, race/ethnicity self-identification is going to change for federal contractor employers, but that will take time.
The agency responsible for setting the standard, Office of Management and Budget (OMB) within the White House, will give federal agencies (including the OFCCP) 18 months to propose their plans for implementation. In turn, those plans will likely give the public significant time to switch over to new forms and databases. Federal agencies ultimately have up to five years to implement changes, but are being strongly encouraged to implement as soon as possible.
So there is no “action item” for Compliance professionals yet.
Stay tuned for more developments. In the meantime, those who want a little more detail can read on.
One Question to Rule Them All
The distinction between “race” and “ethnicity” is extremely important in certain circles, but to the average person facing-down a self-identification form, those concepts most often only serve to confuse. The separation of “race” and “ethnicity” questions in the 1997 revisions have demonstrably led to skewed reporting, particularly for those who self-identify as “Afro-Latino.”
And among the myriad debates over the new “MENA” category is whether or not it represents a “race” or an “ethnicity” (Answer: undecided).
The good folks at OMB have finally agreed that the distinction between “race” and “ethnicity” is not actually germane to the self-identification process and reverses that aspect of the 1997 revisions. When the changes are rolled-out, race and ethnicity will be re-combined into a single question, and users will be encouraged to simply select any and all race/ethnicity categories that apply to them. If a user selects an “ethnicity” category and no “race,” that will (and always has been) fine.
For federal contractors, this should simplify self-identification forms and give back some physical space on the form that can be put to better use. Unfortunately for some, this is likely to require significant “back end” changes to software and databases. An “ethnicity” column in a database can simply go “dead,” but software platforms will need to be modified.
Vendors tend to treat these changes, at least initially, as “customizations” that clients are asked to pay for individually. If that happens to you, push back. These changes are not unique to your organization and are necessary for the vendor’s software products to continue to be viable.
The New “Middle Eastern or North African” Category
Much ink has been spilled over all of the hair-pulling involved in this, but almost everyone agrees that we need some new category for people who are loosely from the “Fertile Crescent” region, even if they can’t agree on the particulars of the definition. OMB has settled on the particulars, and this is the definition:
“Individuals with origins in any of the original peoples of the Middle East or North Africa, including, for example, Lebanese, Iranian, Egyptian, Syrian, Iraqi, and Israel.”
Currently, these people are encouraged to self-identify as “White,” though most report that they do not feel like they experience life in America with the privileges typically associated with that label.
Accordingly, the definition of “White” will change to:
“Individuals with origins in any of the original peoples of Europe, including, for example, English, German, Irish, Italian, Polish, and Scottish.”
OMB notes that they are not providing an exhaustive list that associates all possible nationalities with one or more of the race/ethnicity categories. While the category definitions may rely heavily on the concept of nationality, “OMB recognizes that nationality is one of several components that contribute to racial and ethnic identity.”
So Compliance and HR professionals are still going to be facing questions along the lines of, “How do I answer if I am from X country/region?” The good news is that your answer does not change. OMB stresses that this is self-identification, and the individual’s determination, whether it is correct or not, is paramount. There may not be a right answer, so pick one or more that best reflect how you see yourself.
Along those lines, BCGi continues to encourage employers to take their employees’ self-identification responses at face value. Questioning them about their chosen designations is dicey, to put it mildly, and should only be done with very good reason and with the advice of legal counsel.
Using the “Minimum” Categories No Longer the “Default”
Up to now we have technically been talking about the federal government’s “minimum” race/ethnicity categories currently used by the OFCCP for AAP purposes and the EEOC for EEO-1 purposes. But did you know there is also an official, “detailed category” framework?
There is. OMB has also designated terms and definitions for collecting more detailed race/ethnicity data. Each “minimum” category is actually broken-up into several smaller, more specific categories. Up to now, agencies were only encouraged to use the more detailed structure for collecting and reporting on demographic data, but with this revision OMB is requiring all federal agencies to use the more detailed structure unless they obtain an exemption from OMB. In other words, more detailed race/ethnicity self-ID forms will become the “default” for the federal government.
Does that mean it will become the default for everyone else? Doubtful, at least any time soon.
OMB recognizes that agencies that work with highly integrated data and those that collect data from the public have a much larger burden with these upcoming changes, and though they aren’t called out specifically, OFCCP and EEOC are likely to be topping that list.
Moving all EEO-1 filers and all AAP preparers to a more detailed race/ethnicity data collection would be a HUGE lift for both the federal agencies and the affected employers. Just implementing changes to the “minimum” categories is hard enough that OMB decided to give agencies up to five years to comply instead of the recommended four years.
Blowing out the AAP utilization analysis by “detailed” race/ethnicity categories would likely be a disaster, so while contractor employers may eventually be required to collect more specific race/ethnicity data for reporting purposes, if they do they will likely then have to “translate” the detailed responses back into the “minimum” categories for AAP purposes.
Both the OFCCP and EEOC are likely to request and be granted exemptions to keep using the “minimum” categories as they do now.
If you’re curious, below are the new “detailed” categories approved by OMB.
Asian:
- Chinese
- Asian Indian
- Filipino
- Vietnamese
- Korean
- Japanese
- Another group (for example, Pakistani, Hmong, Afghan, etc.)
Black or African American:
- African American
- Jamaican
- Haitian
- Nigerian
- Ethiopian
- Somali
- Another group (for example, Trinidadian and Tobagonian, Ghanian, Congolese, etc.)
Hispanic or Latino:
- Mexican
- Puerto Rican
- Salvadoran
- Cuban
- Dominican
- Guatemalan
- Another group (for example, Columbian, Honduran, Spaniard, etc.)
Middle Eastern or North African:
- Lebanese
- Iranian
- Egyptian
- Syrian
- Iraqi
- Israeli
- Another group (for example, Moroccan, Yemeni, Kurdish, etc.)
Native Hawaiian or Pacific Islander:
- Native Hawaiian
- Samoan
- Chamorro
- Tongan
- Fijian
- Marshallese
- Another group (for example, Chuukese, Palauan, Tahitian, etc.)
White:
- English
- German
- Irish
- Italian
- Polish
- Scottish
- Another group (for example, French, Swedish, Norwegian, etc.)
How did they decide what to list as a specific category and what to list in the “other” group? That was based on the most recent Census figures and determined by the relative sizes of those populations, as far as they can tell from current data.
Terminology Changes
OMB is also taking the opportunity to clean-up some language and terminology.
“Other” is being removed from the “Native Hawaiian and Other Pacific Islander” category. They’re removing the phrase “who maintains tribal affiliation or community attachment” from the definition of “American Indian or Alaskan Native.” And they’re eliminating a duplicated reference to Cuba, replacing “Indian Subcontinent” with “South Asia,” and a few other linguistic clean-ups.
Most notably, though, they are removing the term, “Negro,” from the definition of “Black or African American,” and they are removing references to “majority” and “minority” when describing demographics (those terms can still be used in a statistical context, as appropriate).
“Negro” was expunged from OFCCP regulations and materials long ago, but references to “minorities” persist in the regulations to this day, leading many to believe that it is a “regulatory term” that they are required to use, regardless of any confusion or offense that term might generate.
But the OFCCP’s regulations simply use the term; they do not actually require any contractors to use that term. If and when the agency ever gets around to revising it’s regulations implementing Executive Order 11246, we fully expect them to follow OMB’s lead and expunge references to “minorities.”
BCGi has long recommended contractors refer to “people of color” or “POC” instead, with the latter even fitting better in report column headers. OMB, nor the OFCCP, has landed on an “alternate” term, and it is unclear at this point if they even intend to do so. Regardless, “minority” is going the way of the Dodo.
Clearly, the federal government has heard us. We will ignore the countless individuals who actually worked on this issue and take full credit for the change.
Timeframe for Changes
Nothing is happening right now. Your self-identifications don’t need to change yet, nor do your HRMS and ATS platforms and such.
Federal agencies have 18 months just to submit implementation plans to OMB, and will have up to five years to actually comply. OMB is strongly encouraging agencies to move fast where they can, but fully anticipates this being a slower process for agencies that are public-facing and/or dealing with “integrated” data, describing both the OFCCP and EEOC.
When it comes to AAPs and EEO-1 reporting, there are a lot of moving parts for both the agencies and the organizations they regulate. The changes will likely come in phases and federal contractors will be given plenty of notice along the way.
So we can stop speculating about what is coming, and just focus on the when. Getting conversations started with any in-house IT responsible for any proprietary systems that will be impacted is a good idea because IT gets grumpy when we drop last-minute, high-priority changes on them out of the blue.
As for any third party platforms you use, the vendors should be up on these sorts of developments and working on their own plans for modifications. But if you happen to be interacting with your software vendor reps, it may not be a bad idea to just make sure they are aware of what is coming down the pike.
We will continue to follow the issue and alert you to the major milestones. In the meantime, if you have questions about this or any other federal compliance issue, feel free to drop us a line at BCGi@Biddle.com.