Federal Race Data Revamp Gives EEOC More Precise Worker Insights

The EEOC’s implementation of recently finalized federal race and ethnicity reporting categories, including the introduction of “Middle Eastern or North African,” paves the way for more precise data collection and reporting at the agency.

In addition to creating a new reporting category for “MENA” employees who previously had to identify on forms as “White,” the Office of Management and Budget’s finalized revisions to standards for data collection on racial background include using a single combined race and ethnicity question that allows multiple responses. This will change how Hispanic people are counted, no longer placing them into a separate ethnic category.

The changes, due to be implemented by federal agencies by March 2029 for all recordkeeping, will impact the way the US Equal Employment Opportunity Commission uses annual EEO-1 forms, which collect data about workers’ race and gender from companies with over 100 employees. According to former agency staff, the EEOC has at times contemplated modifying worker categories, but changes like the creation of a MENA grouping have been hard to execute.

“When I was at the EEOC, I worked with a lot of groups who really pushed having that included as a category,” said David Lopez, a professor at Rutgers Law School and former EEOC general counsel. “That’s going to get you a better sense of what is going on in the workplace for that particular group.”

Agency Data Collection

The EEOC collects employee race and gender information through the EEO-1 forms so that it “can get a picture of the company’s makeup” and flag any kind of disparities or potential issues to reference for future investigations if discrimination charges arise, according to Andrew Maunz, a labor and employment attorney at Jackson Lewis and former EEOC legal counsel.

Currently, “many EEO-1 self-identification forms direct people of Middle East and North African heritage to identify as White,” said Maunz.

Changes to the category come as the EEOC has been monitoring charges filed on the basis of religion and national origin to see if there has been an uptick in discrimination affecting Jewish, Muslim, and Arab workers due to the Israel-Hamas conflict.

The civil rights agency has been trying to add MENA as well as other changes to the form for several years, said former EEOC Democratic Commissioner Chai Feldblum.

“For the nine years that I was there, on almost every regulatory agenda, there was ‘we’re going to be changing how we’re collecting the racial data, allow people to say two or more races, etc.,” said Feldblum. “So separate from even this larger group, EEOC would have been working on this and therefore working with OMB.”

Feldblum said the EEOC has previously been unable to change the EEO-1 form because the agency had to follow the Paperwork Reduction Act of 1995, which requires a long and intensive process to collect public comment on proposed information collection.

“It is absolutely the right policy thing to do because it more accurately reflects the demographics of our country,” she said. “And this is a very long process— always has been in terms of the way the Paperwork Reduction Act works in our system.”

The cross-agency changes to racial categories are being put into place by the White House and OMB after consulting a working group of federal government career staff which solicited public stakeholder input.

David Fortney, a labor and employment attorney and co-founder of FortneyScott LLC, said the changes in worker categories could impact the EEOC’s controversial pay data collection if the agency chooses to revive Component 2 of its EEO-1 forms, which it has signaled interest in doing.

Component 2 was created to help the EEOC address pay gaps for women and minorities, and prompted controversy and legal challenges across the Obama and Trump administrations. The EEOC hasn’t collected pay data since 2019.

A 2022 National Academy of Sciences, Engineering, and Medicine report evaluating the EEOC’s previous data collection work said it would be useful to have more detailed data available on employees to evaluate pay gaps.

EEOC Approach

It is unlikely that the changes to reporting categories will make a difference in charges filed with the EEOC, given that those who report that they are White get the same race-based protections as any other group under Title VII of the Civil Rights Act of 1964, Maunz said.

However, Fortney said the changes “will affect everything,” including who the EEOC looks at as being “similarly situated” individuals while investigating a charge, and what emphasis programs the commission develops based on where they see discrimination trends.

Changes to how Hispanic individuals are identified and the ability to select more than one race will have the most impact, he said.

Under today’s standards, Fortney said, a person who identifies as Hispanic and Black, and another who identifies as Hispanic and White, are both labeled as Hispanic. “We don’t get into the consideration of race at all,” he said. “But as we all know, just from common experience, the term that America uses for Hispanic covers multiple racial groups.”

According to Feldblum, while she was at the EEOC, there were talks of modifying EEO-1 forms to allow people to self identify as non-binary or LGBTQ+, but the issue never made it to a commission vote.

In 2022, the EEOC introduced the option to select a nonbinary “X” gender marker in the voluntary self-identification questions as part of the intake process for filing a discrimination charge.

It is likely the EEOC will hold hearings on any changes to the forms, including those proposed by the OMB, as they have in the past, Fortney said.

Former Republican EEOC Commissioner Victoria Lipnic said that the planned changes to employee categories will be process-heavy for the civil rights agency to implement.

Some labor and employment attorneys also said they could have an adverse impact on the agency’s operations.

Larry Lorber, an attorney with Seyfarth Shaw LLP, said in an email that the creation of further distinctions such as MENA would “hopelessly muddle the reason for government data collection” by making individuals harder to categorize and identify as being part of given groups.

“For employment issues, I viewed many of the options problematical,” he said. “Observed identification would be exceedingly difficult and self identification questionable.”