OFCCP Week In Review: April 2024
Revisions Effective Immediately
First Revisions Since 1997
A bit earlier than expected, the White House Office of Management and Budget (“OMB”) released its finalized revisions to the 1997 version of its Statistical Policy Directive No. 15: Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity (“SPD 15”). SPD 15 contains common definitions to allow the federal government to compare race and what OMB calls “ethnicity” data across federal agencies. Federal contractors use SPD 15 primarily to identify the races and national origins of applicants and employees (for use in Affirmative Action Plans) and discrimination analyses.
Covered federal Government contractors employing 50 or more employees and employers subject to Title VII with 100 or more employees also use the same Statistical Policy Directive-15 definitions of race and ethnicity when filing annual EEO-1 Surveys with the Joint Reporting Committee of OFCCP and the Equal Employment Opportunity Commission.
U.S. Chief Statistician, Dr. Karin Orvis, first announced the finalized revisions in a blog posted Thursday, and OMB officially published them in Friday’s edition of the Federal Register. The preamble ends and the text of SPD 15 itself begins here (starting on page 22191 of the pdf version).
Section C of the preamble explains the revisions by:
describing the initial proposals of the Working Group; summarizing public input; describing the final recommendations of the Working Group (and how they differed, if at all, from the initial proposals); and presenting and explaining OMB’s decisions. What Did OMB Revise?
Based in many cases on the recommendations of the Federal Interagency Technical Working Group on Race and Ethnicity Standards (“Working Group”), OMB revised SPD 15 to:
Additional Specifics of Note Regarding the Revised Items Listed Above
As to the above items, we detail below some specifics of note that OMB addressed in the preamble of the Federal Register notice.
Single combined race and ethnicity question. OMB pointed out that “[b]ecause respondents may perceive categories like Hispanic or Latino or MENA as either a race or ethnicity, the revised SPD 15 requires agencies to treat the categories equally and report them as “race and/or ethnicity” categories;”
Defining race and ethnicity. OMB explained that “[f]or purposes of SPD 15, the race and ethnicity categories set forth are sociopolitical constructs and are not an attempt to define race and ethnicity biologically or genetically.”
Moreover, [t]hey are not to be used as determinants of eligibility for participation in any Federal program. The standards do not require any agency or program to collect race and ethnicity data; rather they provide a common language for uniformity and comparability in the collection and use of race and ethnicity data by Federal agencies.”
Requiring collection of detailed data by default. While OMB accepted the Working Group’s recommendation to require the collection of detailed race and ethnic data by default, it added the following caveats:
“However, the intent of SPD 15 to produce consistent and comparable data is best served by providing a common framework for the collection of detailed data, rather than allowing each agency to determine what additional detail to collect. Therefore, agencies are required to collect the detailed categories described in this Notice as a default. These detailed categories were selected to represent the largest population groups within the minimum categories, according to the results of the 2020 Census. Selecting the largest groups by United States population prioritizes the utility of the data by maximizing the sample sizes. Small sample sizes are often the primary barrier to publication of data for specific groups; small samples decrease precision, make it harder to identify differences between groups, and increase privacy risk.
OMB recognizes racial and ethnic identities and terminology are continuously changing and SPD 15 needs to balance the need for consistency with the ability to adapt to change and meet specific program needs. An agency may submit a request to OIRA for an exemption to the requirement to collect more detailed data beyond the minimum categories if the agency determines that the potential benefit of the detailed data would not justify the additional burden to the agency and the public or the additional risk to privacy or confidentiality. Agencies may also submit a request to OIRA for a variance to the detailed categories if they determine that collecting different detailed data categories than the ones listed in SPD 15 provides more useful or accurate data for the collection’s specific context and intended uses. Any variances in detailed data collection must be able to be aggregated up to the required minimum categories. OIRA will review agency requests for exceptions and variances, and they will only be approved if they contain sufficient justification. Finally, due to the extensive testing done in the context of the American Community Survey, agencies may collect the detailed categories used on the most recent version of that survey, should they differ from the detailed categories listed in SPD 15, without further justification.”
Data collection by proxy. The revised SPD 15 allows for data collection by proxy. OMB added two important notes in this regard:
First, OMB accepted the Working Group’s recommendation to encourage agencies to transparently describe how race and ethnicity data were collected and generated, and how nonresponse or other missing data were assigned or allocated. However, OMB modified this recommendation as follows:
“For statistical survey reporting, agencies are required, rather than encouraged, to transparently describe whether race and ethnicity data are self-reported or collected by proxy, along with any imputation or coding procedures. With respect to other agency products, agencies are strongly encouraged to provide this information whenever possible. OIRA will continue to review agency PRA requests to ensure that race and ethnicity data are collected by self-report whenever possible.”
Second, OMB pointed out:
“The method of data collection has implications for the quality and fitness for use of the resulting data. Wherever possible, race and/or ethnicity data should be collected through self-report, where the respondents directly provide their own race and/or ethnicity. In cases where self-report is not possible, data may be collected by proxy reporting, where a person knowledgeable of another’s race and/or ethnicity responds on their behalf; by record matching, where existing records on an individual that contain their race and/or ethnicity are used to supply the information; or by observer identification, where an observer uses their best judgement of the most appropriate race and/or ethnicity categories in which to report an individual.
When data are collected through visual observation, agencies are not required to collect detailed categories and are encouraged to instead use the minimum categories. For statistical survey reporting, agencies must maintain records on the mode and method of data collection, and how nonresponse or other missing data were assigned or allocated and must make that information available to data users to allow them to evaluate the utility, objectivity, and integrity of the data. Agencies should also maintain and provide this information for administrative, grant, and compliance-related data collections whenever feasible. Agencies should use the terminology in this section when describing the method of collection and should make it a practice to describe the method of data collection in any reports on data collection design or methods.
When coding write-in data, imputing missing data, or otherwise editing responses, agencies must adopt practices that maximize comparability between data collected on forms and surveys with and without write-in fields. Doing so will improve the comparability of race and ethnicity data across Federal datasets. For statistical survey reporting, agencies must maintain records on data processing procedures (such as coding, editing, and imputation practices), and must make that information available to data users to allow them to evaluate the utility, objectivity, and integrity of the data. Agencies should also maintain and provide this information for administrative, grant, and compliance related data collections whenever feasible.”
Updated Terminology. Of note as to the updated terminology, OMB accepted the Working Group’s recommendations to:
remove “majority” and “minority” terminology, except when statistically accurate and used for statistical descriptions or when legal requirements call for use of the terms; remove the phrase “who maintains tribal affiliation or community attachment” in the American Indian or Alaska Native (AIAN) definition; change “(including Central America)” to having “Central America” listed co-equally with North and South America in the AIAN definition; replace “Far East” with “Central or East Asia” and “Indian Subcontinent” with “South Asia” in the Asian definition; remove “Negro” from the Black or African American definition; correct “Cuban” being listed twice in the Hispanic or Latino definition; remove “. . . regardless of race. The term `Spanish origin’ can be used in addition to `Hispanic or Latino’ from the Hispanic or Latino definition. OMB modified that recommendation a bit so that this definition now reads, “Hispanic or Latino. Includes individuals of Mexican, Puerto Rican, Salvadoran, Cuban, Dominican, Guatemalan, and other Central or South American or Spanish culture or origin;” and remove “Other” from the “Native Hawaiian and Other Pacific Islander” category title.
The revised definitions for each of the race and ethnic categories are in SPD 15 here.
Additional topics
In the preamble to the finalized revisions, OMB discussed additional topics, including:
But Wait There’s More…
OMB, in the preamble, also discussed topics for further research.
On its website, the Working Group also posted its Final Report and Annexes (see the right side of the webpage) and promised additional website updates “in the coming days.”
Separately, the U.S. Census Bureau released a statement promising that it “will keep the public informed and determine a regular cadence for communications as we develop plans to implement the changes in our censuses and surveys.”
…Including New OMB Interagency Committee on Race and Ethnicity Statistical Standards
In her blog, Dr. Orvis noted:
“… this review process showed that racial and ethnic identities, concepts, and data needs continue to evolve. To improve the ability of Directive No. 15 to adapt and better meet those needs, OMB is establishing an Interagency Committee on Race and Ethnicity Statistical Standards, convened by the Office of the U.S. Chief Statistician, that will maintain and carry out a government-wide research agenda and undertake regular reviews of Directive No. 15. Some areas of interest identified in the technical expert research, as well as by stakeholders and engaged members of the public, lacked sufficient data to determine the effects of potential changes. Those areas of interest have now been identified as a top priority for additional research and data development in advance of future reviews. The updated standards identify several key research topics for the Interagency Committee to focus on initially. For more information on these research topics and the planned schedule for future reviews, see the updated Directive No. 15.”
Effective Dates
Importantly, OMB noted that:
“The provisions of these standards are effective March 28, 2024 for all new record keeping [sic] or reporting requirements that include racial or ethnic information. All existing record keeping [sic] or reporting requirements should be made consistent with these standards through a non-substantive change request to the Office of Information and Regulatory Affairs (OIRA), or at any time a collection of information is submitted to OIRA for approval of either a revision or extension under the Paperwork Reduction Act of 1995 (PRA), as soon as possible, but not later than March 28, 2029.”
In her blog, Dr. Orvis added that OMB had instructed the agencies to finalize their implementation plans to migrate their race and national origin data collection systems, forms, and reports within the next 18 months against a hope that a uniform data collection applying the new definitions would emerge in the next five years:
“…the standards instruct federal agencies to begin updating their surveys and administrative forms as quickly as possible, submit an Agency Action Plan for complete compliance within 18 months – which will be publicly available, and finish bringing all data collections and programs into compliance with the updated standards within five years of today’s date.”
Employers may thus expect to see OFCCP and the EEOC develop and submit to OMB “Agency Action Plans” on timelines each agency will develop. The EEO-1 report and related reports in that reporting series, including IPEDs reports and potentially Affirmative Action Plans, will be affected. Federal contractors and employers should feel free to express their opinions to OFCCP and the EEOC if the agencies do not ask soon.
How We Got Here
In June 2022, Dr. Orvis first announced plans to update SPD 15 (see our story here). That announcement discussed, among other things, the establishment of the Working Group. Our story on the Working Group’s five initial proposals is here.
We most recently reported on SPD 15 on May 30, 2023, when we reported the Working Group’s announcement that it was preparing its final recommendations to OMB. At that time, the Working Group stated that “OMB has set a goal to revise SPD 15 by Summer of 2024.” See that story for additional background details on the process leading up to the finalized revisions. For additional discussion on the MENA category, see our story here.
Last June, we also discussed how three Supreme Court Justices squared off over the accuracy and utility of SPD 15 in the Harvard/UNC admissions case decision.
