Guidance on "Unknowns" in the Workforce May Soon Be Available

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The Dilemma
When we ask our employees to voluntarily report their race, ethnicity, and gender, we will almost always end up with a small proportion of the population who choose not to provide such demographic information. There are any number of reasons for this. For a growing percentage of the population, the binary options of male or female do not resonate with them. And while the race categories now include “two or more,” there are many who do not feel comfortable indicating their race – whether it is out of fear or due to privacy concerns. Some employees will refuse to provide the information simply because they were given the opportunity to opt out.

The Office of Federal Contractor Compliance Programs (OFCCP) requires federal contractors to “identify the gender, race, and ethnicity of each employee” (41 CFR 60-1.12(c)). To clarify the regulations, OFCCP developed a Frequently Asked Question (FAQ) on the topic:
 
What is the correct procedure for a contractor to obtain the ethnic information of its employees and applicants?

OFCCP regulation 41 CFR 60-1.12(c) indicates that for any personnel or employment record a contractor maintains, it must be able to identify the gender, race, and ethnicity of each employee and, where possible, the gender, race and ethnicity of each applicant.

OFCCP has not mandated a particular method of collecting the information. Self-identification is the most reliable method and preferred method for compiling information about a person's gender, race and ethnicity. Contractors are strongly encouraged to rely on employee self-identification to obtain this information. Visual observation is an acceptable method for identifying demographic data, although it may not be reliable in every instance. If self-identification is not feasible, post-employment records or visual observation may be used to obtain this information. Contractors should not guess or assume the gender, race or ethnicity of an applicant or employee. [emphasis added]

Though the regulation states a zero tolerance policy, the guidance from the OFCCP website anticipates that there may be employees with an unknown race, ethnicity, and/or gender. With the regulations regarding gender identity, this guidance is even more important. Guessing the gender of an employee could be the basis for discrimination, particularly if you guess incorrectly.

Here's the dilemma. The regulations tell us that we must account for the race and gender of all employees in the workforce. However, we are prohibited from requiring employees to provide their race and gender. Furthermore, though “visual observation is an acceptable method for identifying demographic data,” guessing about an employee's race or gender could potentially form the basis for a discrimination lawsuit.
 
The Solution?
I brought this issue to the attention of a high level official in OFCCP during the National Conference and Annual Meeting of the American Association for Access, Equity, and Diversity (AAAED) last June. But my concern was dismissed, as the official wasn't aware of any audits in which federal contractors were cited for having employees with unknown race and/or gender.

In speaking with a group of federal contractors in Houston last month, I learned that contractors are, in fact, still being held accountable for having unknowns in their workforce. So, the confusion continues and it is resulting in a Catch-22 for federal contractors.

On January 24, 2019, the Office of Federal Contract Compliance Programs (OFCCP) invited the federal contracting community to ask a question of the agency's Help Desk. If appropriate, OFCCP will respond by publishing an Opinion Letter. Never one to shy away from a challenge, I offered up a question of my own – about unknowns in the workforce – on January 29, 2019.

On February 6, 2019, I received a call from the OFCCP Help Desk asking for additional information on the question I posed. I was informed that OFCCP will either issue an Opinion Letter or an FAQ on the topic before the end of February.

Stay tuned!

To reach the Help Desk Portal, go to:
https://dol.secure.force.com/DOLFlowQuestions?agency=OFCCP&utm_campaign=directive201903&utm_medium=email&utm_source=govdelivery

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 © Schuyler Affirmative Action Practice.