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The White House recently launched an effort to revise and update the statistical standards for race and ethnicity data collection across federal agencies with a stated goal of better reflecting the growing diversity of people in the United States.

On January 27, 2023, the Office of Management and Budget (OMB) published a notice in the Federal Register seeking comments on proposals to revise the race and ethnicity standards in OMB’s 1997 Statistical Policy Directive No. 15: Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity (SPD 15). According to the notice, the proposals, which the OMB’s Federal Interagency Technical Working Group developed, seek “to improve the quality and usefulness of Federal race and ethnicity data.”

Background

OMB sets statistical standards for the collection of race and ethnicity and other data across federal agencies. The agency first developed SPD 15 in 1977 (later revised in 1997) to ensure that federal agencies were using consistent race and ethnicity data, including for the decennial census, surveys, and federal forms such as benefit application forms. This directive dictates the race and ethnicity categories federal contractors and subcontractors must use to prepare written affirmative action programs (AAPs). Employers with one hundred or more employees must also use these categories when filing annual Employer Information Report (EEO-1) Component 1 (EEO-1) surveys with the U.S. Equal Employment Opportunity Commission (EEOC).

The 1997 standards require that respondents self-identify their race and ethnicity in two separate questions: first, with which ethnicity do they identify (i.e., “Hispanic or Latino” or “Not Hispanic or Latino”), and second, with which race do they identify (i.e., “American Indian or Alaskan Native,” “Asian,” “Black or African American,” “Native Hawaiian or Other Pacific Islander,” or “White”). However, OMB stated that review of these categories is necessary because in the nearly twenty-five years since the 1997 revisions, the United States has seen an increase in diversity and an increase in the number of individuals who identify as more than one race or ethnicity.

Proposals

The OMB’s Federal Interagency Technical Working Group made three overarching proposals to change OMB’s race and ethnicity categories centered on collecting more data that will reflect the growing diversity within the United States:

1. “Collect race and ethnicity information using one combined question.”

According to the notice, evidence suggests that the two-question inquiry “confuses many respondents who instead understand race and ethnicity to be similar, or the same, concepts. OMB is seeking input on the impact of allowing respondents to select multiple categories so that they have the “ability to self-report all aspects of their identity.”

2. “Add ‘Middle Eastern or North African’ (MENA) as a new minimum category.”

This proposal seeks to make MENA a distinct category and remove it from the definition of the “White” reporting category. According to the notice, this change would be beneficial as research suggests that MENA respondents “view their identity as distinct from White.” However, OMB is seeking comment on whether the term would “be consistently understood and acceptable among those with different experiences,” namely recent immigrants to the United States.

3.Require the collection of detailed race and ethnicity categories by default.”

This proposal calls for asking respondents more detailed questions about their race and identity, unless the potential benefit of the additional detailed data “would not justify the additional burden to the agency and the public or the additional risk to privacy or confidentiality.” OMB stated that there is a need for this detailed data collection due to an “increasing demand for analysis that represents the diversity of the American public.” One example included in the notice would allow respondents to check a box for their race and then check other subcategories with which they identify. Under this example, if a respondent identifies as “White” the respondent would then be able to further identify as “German,” “Irish,” English,” “Italian,” etc.

Key Takeaways

The proposals seek to increase, and as the agency states “improve,” race and ethnicity data collected by federal agencies and comes amid growing diversity across the United States and evolving understandings of individuals’ racial and ethnic identities. However, OMB stated that federal “race and ethnicity standards are inherently complex because they seek to capture dynamic and fluid sociopolitical constructs,” and they “are not an attempt to define race and ethnicity biologically or genetically.” Further, the agency noted that its new recommendations are only “preliminary” and do not represent the final positions of OMB or other federal agencies.

Comments on the proposals are due by April 12, 2023, and OMB has a stated goal of completing the revisions by the summer of 2024. Covered contractors with affirmative action obligations and employers with one hundred or more employees may want to closely monitor these developments as they will certainly impact self-identification categories.

Ogletree Deakins’ Affirmative Action and OFCCP Compliance Practice Group will continue to monitor developments with respect to these and other regulatory developments and will post updates on the Affirmative Action / OFCCP blog. Important information for employers is also available via the firm’s webinar and podcast programs.

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