On the eve of the Labor Day weekend, OFCCP notified federal contractors of the availability of updated census data for use in determining the AAP availability of women and minorities:  Equal Employment Opportunity Tabulation (EEO Tab).  While the data is not 2020 census data, it is based on 2014 through 2018 American Community Survey census data, which is updated from the 2006 through 2010 data OFCCP has previously required contractors to use for availability in AAPs.  According to OFCCP, this is the most current availability data accessible.  OFCCP makes no mention of when 2020 census data may be accessible.

The Agency has also posted a website notice regarding the new data, including the requirement that federal contractors “must begin using the 2014–2018 EEO Tabulation (2018 EEO Tab) to develop all written affirmative action programs (AAPs) that commence on or after January 1, 2022.”

Notably, as reflected in OFCCP’s FAQs, the Agency has slightly modified the race and ethnicity categories:

In this tabulation, there are a total of 7 race and ethnicity (Hispanic origin) categories:

  1. Hispanic or Latino origin

Not Hispanic or Latino, one race-

  1. White alone
  2. Black or African American alone
  3. American Indian and Alaska Native alone
  4. Asian alone
  5. Native Hawaiian and Other Pacific Islander alone

And-

  1. Balance of not Hispanic or Latino

OFCCP explains that federal contractors must use the “Balance of not Hispanic or Latino” numbers when determining total minority availability (as they did for “Two or More Races).  As Director Yang alluded to in her remarks last month at the NILG National Conference,  contractors “may” also be required to set utilization goals for specific minorities:

  • The 2014-2018 EEO Tabulation includes a column labeled “Balance of not Hispanic or Latino,” which includes the balance of non-Hispanic individuals who reported multiple races or reported some other race alone. For OFCCP AAP purposes, when determining minority availability, contractors must include the information from the “Balance of not Hispanic or Latino” column. However, when the percentage of a particular minority group is substantially less than would be reasonably expected given the availability of that particular group, OFCCP may require the contractor to establish separate goals for that particular group. Therefore, when determining the availability of disaggregated race or ethnicity groups, do not use the information included in the “Balance of not Hispanic or Latino” column. For more information on disaggregated goal-setting, visit OFCCP’s FAQ website for https://www.dol.gov/agencies/ofccp/faqs/placement-goals

The FAQs are filled with additional information regarding the census data.  For example, what are “worksite-to-residence commuting flows”?

  • The worksite-to-residence commuting flows focus on where people work (worksite) and provide additional information on where people commute from (place of residence). County-to-county flows are included in tables EEO 1w through EEO 7w. Contractors should consider this data when establishing the reasonable recruitment area for determining availability, see 41 CFR 60-2.14(b)(1).

It is also interesting to note that the number of occupation codes has decreased.  Why?

  • In an effort to reduce the number of empty (suppressed) cells and to increase the reliability of the estimates, the federal consortium reduced the number of detailed occupations from 488 in the 2006-2010 EEO Tabulation to 237 in the 2014-2018 EEO Tabulation. (The number of industrial estimates was also reduced from 90 to 20.) The process was influenced by many factors including, revisions to the 2018 ACS PUMS Occupation Code and more stringent data disclosure rules. More technical information and a crosswalk of occupations from the 2006-2010 EEO Tabulation and the 2014-2018 EEO Tabulation can be found at the Census EEO website here: https://www.census.gov/acs/www/data/eeo-data/eeo-tables-2018/

This change will require some reworking of availability analyses and will likely impact the resulting utilization analyses, and goal setting.

As we dive into the new census data, we will share our insights and thoughts so stay tuned for more.

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Photo of Laura A. Mitchell Laura A. Mitchell

Laura A. Mitchell is a Principal in the Denver, Colorado, office of Jackson Lewis P.C. She is a member of the firm’s Affirmative Action and OFCCP Defense practice group as well as the firm’s Pay Equity Resource Group. She is also on the…

Laura A. Mitchell is a Principal in the Denver, Colorado, office of Jackson Lewis P.C. She is a member of the firm’s Affirmative Action and OFCCP Defense practice group as well as the firm’s Pay Equity Resource Group. She is also on the leadership team for the firm’s Government Contractor Industry Group.

Her practice is focused on representing government and non-government contractors in OFCCP matters, preparing for and defending OFCCP audits, and counseling employers on issues stemming from OFCCP regulations. Ms. Mitchell personally oversees the development of hundreds of AAPs each year and is intimately involved in the defense of numerous OFCCP audits. She also spends significant time counseling companies in connection with conducting pay equity analyses as well as government contractor employment obligations.

Ms. Mitchell is the editor and a principal contributor of The Affirmative Action Law Advisor blog and frequently presents on pay equity, affirmative action compliance, OFCCP enforcement trends, and government contractor obligations.

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