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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. Federal contractors must also invite applicants to self-identify as a protected veteran prior to making a job offer, in addition to the post-offer self-identification that is already required. This requirement is meant to track the number of protected veteran applicants a contractor is receiving and alternatively use the data to assess its outreach and recruitment efforts. The pre-offer invitation to self-identify may be included in the contractors’ application materials. After making a job offer to an applicant, the contractor must invite the applicant to voluntarily self-identify as belonging to any of the specific categories of protected veteran (e.g., recently separated veteran; disabled veteran) on which the contractor is required to report by the Veterans Employment and Training Service (VETS).
Some employers may also be voluntarily undertaking affirmative action efforts. In both cases, data can be collected before hire.
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All of the content on this page, including content associated with Express Requests, is for informational purposes only and not for the purpose of providing legal advice. You should always contact your attorney to determine if this information, and your interpretation of it, is appropriate to your particular situation.
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