Employers must consider obligations imposed by both the Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP) to determine this answer.
In some instances, employers may be working to measure the validity of a selection procedure. For example, if an employer implements a test that measures typing skills, it may wish to determine if the test is eliminating protected class members at a higher rate than applicants who are not members of a protected class. It is necessary to collect information on an applicant’s status as a protected class member to measure this. Both the EEOC and the OFCCP permit this.
In other situations, the employer may be collecting data to satisfy EEO-1 reporting or affirmative action requirements. Employers that are subject to EEO-1 reporting, but not to affirmative action requirements would collect data on race and sex after employment commences. The EEO-1 report requires employers to provide information on their employees, but not on applicants.
Employers that are subject to affirmative action requirements are required to collect anonymous data on race and sex from applicants. Some employers may also be voluntarily undertaking affirmative action efforts. In both cases, data can be collected before hire.
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