Invitation to Self-Identify

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As a part of the data collection and record-keeping requirements under the federal government's affirmative action regulations, federal contractors and subcontractors are obligated to collect race/ethnicity and gender information from applicants. Contractors are also required to survey employees for race/ethnicity and gender information as well as veteran and disability status. The U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) is currently giving a heightened level of scrutiny to all affirmative action practices and programs, and thus this is an appropriate time to review the guidelines regarding self-identification forms for applicants and employees.

Several initial thoughts are important here. First, OFCCP is in the midst of potentially changing its regulations regarding veterans and persons with disabilities. Under OFCCP proposals from 2011, federal contractors and subcontractors would be required to collect veteran and disability information from applicants as well as employees. These proposed changes have NOT been implemented yet, and companies should wait to make changes to applicant surveys until these proposed regulations are issued in final form.

Second, the suggestions below may be problematic for companies using particular applicant tracking systems or HR information systems. Some of the commercially-available systems limit the changes federal contractors and subcontractors can make to applicant and/or employee survey forms. You should contact your system vendor to determine how you can implement the suggestions below.
  • Guidelines for the Self-Identification Form for Applicants

    • Federal contractors and subcontractors must provide a form to applicants that allows them to identify their race/ethnicity and gender. The ethnicity question refers to whether an applicant is or is not Hispanic. Individuals identifying as Hispanic should be informed that they are not to fill out the survey question on race.

    • The race categories used in OFCCP's regulations are as follows:
      • White
      • Asian/Indian Subcontinent/Pacific Islander
      • Black/African American
      • Native American/Alaskan Native

    • OFCCP also allows contractors to use the expanded race/ethnicity definitions that the Equal Employment Opportunity Commission (EEOC) uses. EEOC created a separate category called "Two or More Races" and split Pacific Islander away as a separate category from Asian/Indian Subcontinent. While many companies follow EEOC's lead and use a category called "Two or More Races," a better approach is to eliminate the "Two or More Races" category and allow applicants to select all race categories that apply to them. Individuals who are two or more races are not members of one homogenous group and should not be treated as such, regardless of EEOC's approach to this issue.

    • Under current regulations, federal contractors and subcontractors MAY survey applicants for most veteran statuses; however, they are precluded from surveying applicants for disabled veteran status just as they are precluded from surveying applicants for disability status. Currently, disabled veteran status and disability status can only be asked once a job offer has been made.

    • OFCCP has suggested that applicants should be given the self-identification form sometime prior to the interview stage of the selection process.

    • If a federal contractor requires all applicants to use an on-line application system, but an applicant is unable to use the system, the contractor must find a way to ensure the applicant can apply and complete the self-identification form.

    • If a federal contractor or subcontractor does not use an on-line system but instead accepts resumes via e-mail, the contractor is still required to make an effort to collect race/ethnicity and gender information. Companies that accept resumes via e-mail can send the self-identification form to the applicant via e-mail so that the applicant can fill it out and return it to the contractor. An alternative would be to mail the self-identification form to the applicant.

    • The self-identification form must indicate that completion of the form is voluntary. OFCCP is reviewing self-identification forms to ensure that the word "voluntary" appears on the form.

    • If an applicant declines to identify a race/ethnicity or gender, contractors should not guess the applicant's race/ethnicity or gender. However, it has been our experience that OFCCP compliance officers have frequently indicated that contractors should make a visual identification of an applicant's race/ethnicity and gender if the applicant is interviewed in-person.

    • On occasion, we have had clients who have been instructed by OFCCP compliance officers to guess the gender of all applicants based on name. This is totally contrary to OFCCP's directive 265, and federal contractors and subcontractors should be wary of guessing the race/ethnicity or gender of applicants who have not been seen.

    • Federal contractors and subcontractors are required to keep an applicant's self-identification form separate from that individual's application form so that the self-identification form is not sent to managers and other hiring officials. Contractors are generally required to retain self-identification forms from applicants for two years, although smaller employers may only be required to retain them for one year.

  • Guidelines for the Self-Identification Form for Employees

    • Federal contractors and subcontractors must provide a form to all new employees that allows them to identify their race/ethnicity and gender. The information above regarding the collection and recording of race/ethnicity and gender data on applicants also applies to employees. Even though most HR information systems do not allow employees to fall into more than one race category, there is value in allowing employees to select more than one race on self-identification forms.

    • The self-identification form for employees must also include the opportunity to indicate veteran status. The veteran categories to be used are as follows:
      • Armed Forces Service Medal Veteran
      • Disabled Veteran
      • Active Wartime or Campaign Badge Veteran (otherwise known as "Other Protected Veteran")
      • Recently Separated Veteran

    • Contractors should ask for the date of separation for those identifying as a recently separated veteran. Individuals fall out of this classification three years after their date of separation.

    • Vietnam era veteran status is only required on survey forms for employers who have unmodified federal contracts from before December 1, 2003. There are very few, if any, employers with old unmodified contracts left in the United States.

    • The self-identification form for employees must allow employees the opportunity to indicate their disability status and request a reasonable accommodation for this disability.

    • Federal regulations state that new employees should be given the self-identification form at the post-offer/pre-hire stage. However, many contractors provide this form to new employees at the time they complete other orientation material.

    • Federal contractors may re-survey their entire workforce at any time for race/ethnicity, gender, veteran status, and disability status.

    • The self-identification form must indicate that completion of this form is voluntary. OFCCP is reviewing the self-identification forms to ensure that the word "voluntary" appears on the form.

    • If an employee declines to identify a race/ethnicity or gender, federal contractors should make a visual identification of the employee's race/ethnicity and gender. Race/ethnicity and gender data is required for the annual EEO-1 survey and for affirmative action plans.

    • Federal contractors and subcontractors should keep an employee's self-identification form separate from the employee's basic personnel file or other records available to those responsible for overseeing the employee. The self-identification form potentially contains protected information regarding disability that should not be provided to managers or others without appropriate cause.
Did you know…that during recent OFCCP audits, some compliance officers have asked contractors to provide self-identification forms for applicants and employees? Compliance officers have also asked for written documentation of the process used to offer self-identification forms.

Many thanks to Sally Buzdum of HR Analytical Services, who was the principal author of this article. For more information on the self-identification process, contact Bill Osterndorf at wosterndorf@hranalytical.com. You can find a copy of OFCCP's directive 265 on the HR Analytical Services website at http://www.hranalytical.com/documents.html.

Please note: Nothing in this article is intended as legal advice or as a substitute for any professional advice about your organization's particular circumstances. All original materials copyright © HR Analytical Services Inc. 2012