Must I disclose my race?
May 2, 2008 10:41 AM   Subscribe

Is it legal for an employer to require that an employee indicate his or her race?

I am in Chicago, Illinois. I'm being told that an employee MUST check one and only one of five boxes (white, black, Native American, Hispanic, or Asian) on his/her employment form in order for his/her work assignment to begin. This employee has already been hired, but cannot start work until he/she indicates which of those five above races he/she 'is.' In case it matters, the (future?) employee in question is a student at a university, and the employer is that same university. This is a part-time, college-type job, though not part of the federal work-study program.

Any help would be appreciated.

posted by notswedish to Law & Government (23 answers total) 2 users marked this as a favorite
I can't think of a reason why not. The hiring decision has already been made, they will (presumably) know your race before any "promotion" type things come up. This sounds like record keeping demographic info.

Why don't you want to tell them?
posted by toomuchpete at 10:50 AM on May 2, 2008

Well, based on commonsense alone it's patently ridiculous that a person must be required to tick one and only one of those options.

Is the form anonymous, or does it have his/her name on it?
posted by goo at 10:52 AM on May 2, 2008

It is also illegal to exclude members of one group from particular positions or to group or categorize employees or jobs so that certain jobs are generally held by members of a certain protected group. Coding applications/resumes to designate an applicant's race, by either an employer or employment agency, constitutes evidence of discrimination where people of a certain race or color are excluded from employment or from certain positions.

From the EEOC. Of course, you have to be careful about complaining, as it is not difficult to oust troublemakers. On the other hand, they may just be ignorant of the law. If it is a large university it may have an EEO compliance officer who handles these sorts of complaints.
posted by TedW at 10:55 AM on May 2, 2008

This sounds like record keeping demographic info.

That may well be why they are asking, ironically in order to prove that they are complying with various EEOC and other anti-discrimination regulations. However, this information should be voluntary (it certainly is every time I have been asked to fill out a similar document).
posted by TedW at 10:57 AM on May 2, 2008

Why in the world would it be illegal? It would be unlawful to discriminate on the basis of race, but it is clearly not prohibited to collect information relating to race. In most settings, they collect the statistics to analyze if their recruiting practices are discriminatory. There was a move a few years back in California by a right-wing law professor to prohibit the collection of racial statistics by state government actors, but it didn't come to pass. There has been a lot of discussion about what to do about people who identify as members of multiple racial groups and some education statistics now permit multiple choice answers.
posted by Lame_username at 10:58 AM on May 2, 2008

too much pete, why would you assume that the employer would know the employee's race without the employee disclosing it? Lots of people's racial or ethnic heritage is not immediately apparent based on physical appearance. Many multiracial people are mistaken for a different race all the time. My best friend is Sephardic Jewish, and people constantly try to speak Spanish to her because she works in a predominantly Puerto Rican neighborhood and looks Latina. And what race you are has no bearing on your job performance, so your employer shouldn't be trying to guess what race you are anyway.
posted by decathecting at 10:58 AM on May 2, 2008 [2 favorites]

Best answer: IANAL, but I am a Human Resources Professional. You cannot force someone to complete an Equal Employment Opportunity Voluntary Identification form. Every individual has the right to decline. That's why it's a 'voluntary' form.

Employers are permitted to make a visual assessment of the employee's ethnicity if the individual declines to complete the form. This is so the employer can submit data that is as accurate as possible for their EEO-1 Report each year. However, there is no circumstance to my knowledge in which an employer can require an individual to disclose their race.

Hope this helps!
posted by clpage at 11:00 AM on May 2, 2008 [2 favorites]

Just be a Pacific Islander/Native American like me (a pasty white guy)! I take the stance to lie on every one of these things I get. There should be one box, Homo Sapiens. The chances are almost 100% it will never even get looked at, just entered into some database.
posted by Mach5 at 11:01 AM on May 2, 2008 [1 favorite]

Employers may legitimately need information about their employees or applicants race for affirmative action purposes and/or to track applicant flow. One way to obtain racial information and simultaneously guard against discriminatory selection is for employers to use separate forms or otherwise keep the information about an applicant's race separate from the application. In that way, the employer can capture the information it needs but ensure that it is not used in the selection decision.

Also from the EEOC, so it appears they can collect that information, if it is done properly.
posted by TedW at 11:01 AM on May 2, 2008

Is the job tied to a grant? Is it possible the grant has affirmative action provisions built in?
posted by jacquilynne at 11:02 AM on May 2, 2008

If it is a large university it may have an EEO compliance officer who handles these sorts of complaints.
The EEO office will be the primary end-user of that data. I feel certain they will already be quite well aware that it is collected. The passage you quote from the EEOC is not applicable because there is no suggestion that the information is used to prohibit applicants from filling certain positions. In this case, the person is no longer an applicant, but rather an employee.
posted by Lame_username at 11:02 AM on May 2, 2008

Heh, I didn't know there were only 5 demographic groups. I would write in "other", but if I wanted to be snarky I would scribble: "Cauhispblasian Native".
posted by TomMelee at 11:04 AM on May 2, 2008 [1 favorite]

University obsession with "diversity" probably dictates that they collect this sort of data. This is probably legal and nondiscriminatory, but please bring it up anyway and watch the hand-wringing over double standards ensue.

How thin can they slice it? "We need at least 30% people of color, meaning we need at least 15% African-Americans and 15% Hispanics, meaning that we need at least 5% Chicanos, meaning that we need at least 1% Chicanos with some Asian ancestry, meaning that we need at least .1% people that have a grandparent on every continent..."

Comedy answer: Since the data they collect is entirely based on people's definition of themselves into categories, have him check something that really makes them do a double take.
posted by Inspector.Gadget at 11:05 AM on May 2, 2008

Oops, forgot to add: I think the reason this might not be acceptable is the line "The employee cannot start...", which means she/he/it can't get a paycheck or actually become an employee until they state a demographic group. I mean, I can SAY that everyone on metafilter are my employees, can I probably even convince a few of you to send me SSN's---but that doesn't mean you actually work for me.

posted by TomMelee at 11:06 AM on May 2, 2008

"why would you assume that the employer would know the employee's race without the employee disclosing it?"

1. Because the vast majority of people's race is visually identifiable.
2. Even if it's not, or the employee gets mislabeled, the employer will still THINK they know the race of the person and will make decisions/keep statistics accordingly.

If you're really up in arms about it, contact the university's legal department. Be prepared for them to tell you that they think it's perfectly legal. At that point your options are: fill out the form, don't take the job, and/or sue/call the EEOC.

Also, you never mentioned who you're being told this by. Are you reading a form? Being told by a manager? Or is this being relayed as an HR/University policy?

Even still, I haven't read anything in this thread that makes me think this sort of thing would be illegal.
posted by toomuchpete at 11:08 AM on May 2, 2008

Well, that also sounds like an outdated form, because as of the 2000 Census, the 'check 1' option was no longer confining, and one can check more than one iteration of race, as well as checking Hispanic or non-Hispanic for ethnicity.

Which creates about 120 different categories, if I remember right. Great for someone like myself, who is multiracial, but a statistical nightmare.
posted by waylaid at 11:18 AM on May 2, 2008

Best answer: The collection and reporting of racial/ethnic data are mandatory for all institutions that receive, are applicants for, or expect to be applicants for Federal financial assistance as defined in the Department of Education (ED) regulations implementing Title VI of the Civil Rights Act of 1964 (34 CFR 100.13), or defined in any ED regulations implementing Title IX of the Education Amendments of 1972. The collection of racial/ethnic data in vocational programs is mandated by Section 421(a)(1) of the Carl D. Perkins Vocational Education Act.

The Fall Staff section of the Human Resources component is also mandated by P.L. 88-352, Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972 (29 CFR 1602, subparts O, P, and Q), in odd-numbered years (i.e., 2007-08, 2009-10, etc.), for institutions with fifteen (15) or more full-time employees.

For those institutions not required to complete this survey on the basis of the above requirements, completion is voluntary and authorized by P.L. 103-382, National Education Statistics Act of 1994, Sec. 404(a).
posted by ND¢ at 11:35 AM on May 2, 2008

That's bullshit. I'm mixed race & I don't see how a form that is impossible for me to honestly complete isn't prima facie discrimination. If you are mixed race I'd bring that up. Then again a reasonable response on their part would be along the lines of "flip a coin, we don't care."
posted by Wood at 11:58 AM on May 2, 2008 [1 favorite]

FYI for anyone who is interested...

The current version of the EEO Voluntary Form provides the following options:

___ Hispanic or Latino – A person of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin regardless of race.

___ White (Not Hispanic or Latino) – A person having origins in any of the original peoples of Europe, the Middle East or North Africa.

___ Black or African American (Not Hispanic or Latino) – A person having origins in any of the black racial groups of Africa.

___ Native Hawaiian or Other Pacific Islander (Not Hispanic or Latino) – A person having origins in any of the peoples of Hawaii, Guam, Samoa or other Pacific Islands.

___ Asian (Not Hispanic or Latino) – A person having origins in any of the original peoples of the Far East, Southeast Asia or the Indian Subcontinent, including, for example, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, the Philippine Islands, Thailand and Vietnam.

___ American Indian or Alaska Native (Not Hispanic or Latino) – A person having origins in any of the original peoples of North and South America (including Central America) and who maintain tribal affiliation or community attachment.

___ Two or More Races (Not Hispanic or Latino) – All persons who identify with more than one of the above five races.
posted by clpage at 12:34 PM on May 2, 2008

The current EEOC form copied by clpage is much more reasonable. I suggest the OP obtain a copy of one of those and submit it along with the application. Might work, can't hurt.
posted by JimN2TAW at 12:50 PM on May 2, 2008

clpage: However, there is no circumstance to my knowledge in which an employer can require an individual to disclose their race.

Small note: this is not precisely true. There are circumstances in which race is one of the factors in hiring, and must be reported.

I have a friend who was one of several fully qualified applicants for a library position in San Francisco; he was turned down, and they were explicit that it was because of diversity requirements mandated by the state.
posted by Viomeda at 1:54 PM on May 2, 2008

Viomeda - The job application for San Francisco City jobs says:

The Department of Human Resources is legally allowed to gather this information. This information which is voluntary will not be used for employment decisions.

So if your friend was explicitly denied because of his or her race, I'd say he or she should complain. This does not apply if there is a specific reason that's related to the job, like being able to speak a particular language.
posted by jasper411 at 4:29 PM on May 2, 2008

He had been applying for a job with a state-funded school; as such, it's subject to affirmative action laws.
posted by Viomeda at 10:13 AM on May 5, 2008

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