Legal to require race/ethnicity information of employees?
January 21, 2011 12:23 PM   Subscribe

Is it legal for employers (specifically schools and government employees) to require race and ethnicity to be reported? It was my understanding that providing such information was always voluntary, but a friend who works for a high school just told me he was required to provide the information, and that if he didn't self report it, the school was required to report it based on what other employees thought. Is that legal? When did it become legal to require information that was previously required to be voluntary only?
posted by tonyx3 to Law & Government (15 answers total)
Are you in the US?
posted by phunniemee at 12:24 PM on January 21, 2011

Yes, in the US.
posted by tonyx3 at 12:34 PM on January 21, 2011

Yep, that's legal. I used to work for a mega-bank (a City Bank, if you will), for the sub-prime lending division, and those were the rules we had to follow.

It was completely optional for the borrower to provide race and ethnicity info, but if they demurred then the broker was supposed to fill in the data based on his observations.
posted by I am the Walrus at 12:57 PM on January 21, 2011

I ain't no fancy pants EEO lawyer (or any kind of lawyer), but the following would seem to be relevant:

EEOC info:


Self-identification is the preferred method of identifying the race and ethnic information necessary for the EEO-1 report. Employers are required to attempt to allow employees to use self-identification to complete the EEO-1 report. If an employee declines to self-identify, employment records or observer identification may be used.

Final Guidance on Maintaining, Collecting, and Reporting Racial and Ethnic Data to the U.S. Department of Education
The Department will continue to require the use of
observer identification at the elementary and secondary school level,
as a last resort, if racial and ethnic data are not self-identified by
the students --typically the students' parents or guardians.
As a general matter, while educational institutions and other
recipients are required to comply with this guidance, individuals are
not required to self-identify their race or ethnicity. If respondents
do not provide information about their race or ethnicity, educational
institutions and other recipients should ensure that respondents have
refused to self-identify rather than simply overlooked the questions.
If adequate opportunity has been provided for respondents to self-
identify and respondents still do not answer the questions, observer
identification should be used.
While the Department recognizes that obtaining data by observer
identification is not as accurate as obtaining data through a self-
identification process, places some burden on school district staff,
and may be contrary to the wishes of those refusing to self-identify,
it is better than the alternative of having no information.
Additionally, this approach should assist in discouraging refusals to
self-identify because respondents are informed that if they fail to
provide the racial and ethnic information someone from the school
district will provide it on their behalf. In some instances, this may
result in

[[Page 59269]]

self-identification. This approach should also provide useful data for
carrying out Department monitoring and enforcement responsibilities,
and enable the Department to continue ``trend'' analysis of data. The
Department emphasizes that observer identification should only be used
as a last resort when a respondent does not self-identify race and
ethnicity. It does not permit any representative of an educational
institution or other recipient to tell an individual how that
individual should classify himself or herself.
posted by zamboni at 12:57 PM on January 21, 2011

Not just legal, but, as far as I know, it's required. See for example from here:

We are asking all staff to self-identify according to the new requirements. If you do not self-identify, federal law requires that the district designate another staff person to choose one or more categories based on prior knowledge and observation; this practice is known as Observer-Identification. We firmly believe self-identification is preferable, but are required to implement Observer-Identification as a last resort to complete a record.
posted by brainmouse at 12:58 PM on January 21, 2011

I know there was a question similar to this asked before in the University context but I can't find it. This thread may have some relevant information.
posted by ND¢ at 12:58 PM on January 21, 2011

I'm not a lawyer, but, from your description, it doesn't sound like your friend was required to volunteer the information.
posted by box at 12:59 PM on January 21, 2011

Whenever I am required to provide my racial background, I always take the passive aggressive route and lie about my race. It feels a lot less invasive to lie.
posted by parakeetdog at 1:12 PM on January 21, 2011 [1 favorite]

In the US, employees at private employers without government contracts are not required to provide this information. The company, however, is required to provide the information to the government via the EEO1 survey if they employ 100+ individuals. Self-identification is the preferred method used to complete the survey, but a "visual survey" (i.e., taking a guess based on the person's hair & skin tone) is permitted.

I don't know what's required of public employees (e.g., employees of a public high school), or to private employees of companies with government contracts, FYI. They're often required to submit a different EEO survey that also includes information on employees' veteran status.
posted by pecanpies at 2:27 PM on January 21, 2011

(Also, I've been the person who's had to guess what race/ethnicity some of our employees are when completing the EEO1. I totally realize & agree that it's ridiculous, and I'm sure many of my guesses were flat out wrong.)
posted by pecanpies at 2:28 PM on January 21, 2011

I, too, have been the "guess someone else's racial/ethnic self-identification" person and it's ludicrous.

But the reason for it (at least in my experience) has been mostly the special snowflakes who refused to check the "White, non-Hispanic" box despite their unbroken heritage of English or Irish or German or Scots ancestry. Which makes it easier, to be honest.

(The Guyanese person who had one grandmother who was a black lady from Trinidad and one grandfather who was a Bengali man from Trinidad and one grandmother who was half-Carib and half-Dutch and one grandfather who was Dutch always made a good-faith attempt to figure out what would be the most helpful box to check, because she wasn't all "Oh, bah, we're all post-racial now" unlike Helmut McPrivilege III.)
posted by Sidhedevil at 2:41 PM on January 21, 2011 [6 favorites]

(Thank God there's now a "2 or more races" box!)
posted by pecanpies at 3:13 PM on January 21, 2011

Yeah, agree with all the above. One of my former job duties was preparing and submitting our EEO-1 report (equal employment opportunity). This meant that I needed to know the race of everyone that worked for us AND who we interviewed for a job. If someone didn't fill out the form we were told (by the gov't) to make our best guess. Yes, the company must report the data. No, you do not have to provide the data if you don't want to but then someone is going to make a guess.

Luckily the report doesn't ask us to distinguish between Chinese or Vietnamese, etc. you just have to say "Asian or Pacific Islander."
posted by magnetsphere at 3:46 PM on January 21, 2011

The government is tracking race and ethnicity more and more. For your employer, it's likely due to the Department of Labor (EEO Commission) as stated above, but there are other federal programs that require this data like the Department of Health and the Department of Education. In the state that I live, we have a large immigrant population and in the schools we need to track student ethnicity/race to an even more descriptive degree due to federal mandates (it's not just "Asian or Pacific Islander" anymore, we've got Chuuk, Pohnpeian, Laotion, you name it). We also track which is the "primary" race identification and whether the information was provided or "observed." For the DOE this information is presumably to track student progress (or dropout rates) across demographics, but if this is data being mined at the high school level I would expect that it will continue to be monitored after these students leave school... hopefully for more school, but also to see where they enter the work force or not at all.

These kinds of programs are put in place to address disparities in opportunity, and ethnicity/race an important piece of data in measuring the success or failure of initatives.
posted by krippledkonscious at 4:28 PM on January 21, 2011

... and just to reiterate, YOU are not legally required to provide your race or ethnicity, or even to tell the truth. Your employer, however, IS legally required to report whatever information you volunteer, or else indicate what you appear to be.
posted by krippledkonscious at 4:45 PM on January 21, 2011

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