Federal contractors and subcontractors must survey applicants and employees for gender, race/ethnicity, protected veteran status, and disability status. The data collected from the surveys is used for creating statistical reports to analyze employment patterns and is used in the employer’s Affirmative Action Plan (AAP).

Some of the surveying is conducted in the pre-offer and post-offer stages. The pre-offer stage generally means when the applicant applies to a position or is considered for employment by the employer. Thus, it can be included with the application materials, but must be separate from the actual application because the surveys are voluntary. The post-offer stage generally means after the employer offers the individual the job, but before the individual (i.e. new hire) begins performing the duties of the job.

Gender and Race/Ethnicity

The Office of Federal Contract Compliance Programs (OFCCP) and the Equal Employment Opportunity Commission (EEOC) require certain employers to survey applicants and employees for gender and race/ethnicity information for the annual EEO-1 report. EEOC uses the EEO-1 report to assess hiring patterns with an emphasis on women and minorities as well as for civil rights enforcement. OFCCP uses the EEO-1 report as well as other sources of information (e.g. federal acquisition and procurement databases, Dun & Bradstreet data, etc.) when selecting contractors for compliance reviews.

Employers who meet one of the following are required to submit the report:

  • Subject to Title VII of the Civil Rights Act of 1964, as amended, with 100 or more employees; or
  • Subject to Title VII of the Civil Rights Act of 1964, as amended, with fewer than 100 employees if the company is owned by or corporately affiliated with another company and the entire enterprise employs a total of 100 or more employees; or
  • Federal government prime contractors or first-tier subcontractors subject to Executive Order 11246, as amended, with 50 or more employees and a prime contract or first-tier subcontract amounting to $50,000 or more

The EEO-1 report was revised in 2007 to include a new category of “two or more races,” and it separated “Asian or Pacific Islander” into “Asian” and “Native Hawaiian or other Pacific Islanders.” As a result, the race/ethnicity categories are:

  • Hispanic or Latino
  • White
  • Black or African American
  • Native Hawaiian or Other Pacific Islander
  • Asian
  • American Indian or Alaska Native
  • Two or more races

The previous EEO-1 report had five race/ethnicity categories:

  • White
  • Black
  • Hispanic
  • Asian/Pacific Islander
  • American Indian/Alaskan Native

OFCCP currently requires contractors to collect information about race/ethnicity using the above five categories; however, OFCCP will not cite a contractor if it utilizes the seven race/ethnicity categories in the revised EEO-1 report.

The survey form is voluntary and the preferred method of collection is through self-identification; however, there is not a section on the EEO-1 report for “unknown” information. Regarding applicants, a visual survey is unlikely because employers need to conduct the survey in the pre-offer stage, which is before the in-person interview since it needs to be conducted when the applicant applies or is considered for employment by the employer. Regarding employees, employment records or a visual observation can be used if the employee does not respond to the survey.

As a best practice, consider implementing a process of surveying new hires again even though applicants were surveyed at the pre-offer stage because this practice might fill-in some of the “unknown” information. In addition, consider including an option of “I decline to answer” in hopes to increase the collected responses, which will showcase to OFCCP that surveying is occurring.

Veteran Status

OFCCP requires contractors to survey applicants and employees for veteran status at the pre-offer and post-offer stages. The surveys are voluntary and need to be kept confidential.

In the pre-offer stage, contractors should consider surveying at the same time they survey for gender and race/ethnicity. The survey for applicants in the pre-offer stage must list all of the protected veteran categories and definitions within the survey including disabled veterans, recently separated veterans, active duty wartime or campaign badge veterans, and Armed Forces service medal veterans. Individuals may answer using:

  • I identify as one or more of the classifications of protected veteran listed
  • I am not a protected veteran

As previously stated, the post-offer survey must be conducted after offering employment to an individual, but before the individual begins performing the duties of the job. Therefore, contractors should consider surveying on the first day the individual appears for work, but before beginning the job duties. The information on the post-offer survey must list all of the protected veteran categories and definitions. Individuals may answer using:

  • I belong to the following classifications of protected veterans (choose all that apply):
      • Disabled veteran
      • Recently separated veteran
      • Active wartime or campaign badge veteran
      • Armed forces service medal veteran
  • I am a protected veteran, but I choose not to self-identify the classifications to which I belong
  • I am not a protected veteran

Or the post-offer survey can simply list each protected veteran category along with the definitions and include a general “yes” or “no” option for the individual to answer as opposed to selecting the specific veteran categories that apply to the individual. This option stems from the VETS-4212 report that contractors are required to use beginning in 2015. To learn more about this particular option, read OFCCP’s guidance regarding this topic in its FAQs.

Disability Status

OFCCP requires contractors to survey applicants for disability status at the pre-offer and post-offer stages. Similar to the veteran surveys, in the pre-offer stage, employers should consider surveying at the same time they survey for gender and race/ethnicity. For the post-offer stage, it can be done at any time after offering employment to an individual, but before the individual begins performing the duties of the job. Thus, contractors should consider doing it on the first day the individual appears for work, but before the new hire begins conducting the job duties.

OFCCP created a specific survey that contractors are required to use and should not modify the form. If the survey is used online, OFCCP has specific information on how the form needs to appear including:

  • Display the OMB number and expiration date;
  • Contain the text of the form without alteration;
  • Use a sans-serif font, such as Calibri or Arial; and
  • Use at least 11-pitch for font size (with the exception of the footnote and burden statement, which must be at least 10-pitch in size).

Regarding employees, contractors are required to survey current employees for disability status the first year the contractor becomes subject to the requirements as well as every five years thereafter. This requirement was part of the revised regulations in Subpart C. The deadline for all new requirements in Subpart C was the date the contractor’s pre-March 24, 2014 Affirmative Action Plan (AAP) expired.

For example, a January 1, 2014 AAP date means the deadline to comply with Subpart C was January 1, 2015. In this example, surveying current employees should be done within this year. In other words, surveying current employees for disability status should be done no later than December 31, 2015. Again, this is in reference to employees.

In addition, contractors must remind employees that they can submit an updated disability survey at least once between the intervening years.

Submitting a disability survey is voluntary and the employer cannot pressure an individual to self-identify as having a disability. However, if the employer provides reasonable accommodations for an employee who is not identifying as an individual with a disability, the employer should document the accommodations.

Conclusion

As stated previously, the contractor is required to keep all of the information gathered confidential, and it cannot be used to make employment decisions. It should also be stored in a separate folder from hiring personnel, and it cannot be kept in medical files of employees.