Compelled Identity: EEOC Policy to Reclassify Ethnicity as a Free Speech Violation

70 Am. U. L. Rev. F. 37 (2020).

* Articles Editor, American University Law Review, Volume 69; J.D. Candidate, May 2021, Evening Division, American University Washington College of Law.

** Senior Law Clerk, The Employment Law Group, P.C.; Note and Comment Editor, American University Law Review, Volume 69; J.D. Candidate, May 2021, Evening Division, American University Washington College of Law. The authors would like to express gratitude for the support and guidance of Dean Susan Carle, Professor Stephen Wermiel, and Allan Taylor.

The Equal Employment Opportunity Commission (EEOC) requires employers to affirmatively classify employees who decline to self-identify with a particular ethnic group into one of seven broadly recognized ethnic categories as part of the Employer Information Report EEO-1 regulatory process. To comply with this reporting requirement, the EEOC offers guidance recommending that employers use visual observation to determine the ethnicity of employees who decline to self-identify. This Note will argue that this process constitutes a form of compelled speech in violation of the First Amendment. Specifically, this Note will demonstrate that self-identification is a form of speech cognizable under the First Amendment, and the EEOC’s requirement that employers reclassify the ethnic status of employees who decline to self-identify constitutes a form of compelled speech in violation of the First Amendment.

Introduction

How would you feel if your employer asked you to identify the race of one of your coworkers based on visual observations alone, despite knowing that your coworker is uncomfortable disclosing this information for any one of a myriad of reasons? You might be surprised to find that your employer is likely making an honest attempt to comply with the Equal Employment Opportunity Commission’s (EEOC) reporting requirement that employers provide data to the EEOC on the ethnic composition of their workforce.¹ Under this regulatory mechanism, employers of more than 100 employees must submit an “Employer Information Report EEO-1” containing data on the ethnic identity of all employees.² To adhere to this requirement, EEOC guidance indicates that employers may use visual observation to classify employees who decline to self-identify as a member of a particular ethnic group.³

This regulatory practice has been the subject of much debate. Some commentators have criticized it as being an ineffective anti-discrimination policy.⁴ Others believe that this procedure can have an adverse effect on non-binary employees.⁵ Litigants have sought redress in court on the basis that use of the Employer Information Report EEO-1 violates their freedom of association⁶ or that reclassification of ethnic status, without consent, constitutes a disparate treatment claim under Title VII.⁷ This Note contributes to that debate by advancing a novel First Amendment argument to demonstrate that the Employer Information Report EEO-1 is unconstitutional. As this Note discusses, the First Amendment protects not only the right to speak, but also the right to refrain from speaking.⁸ Applying that important principle of constitutional law, this Note argues that the EEOC’s requirement that employers reclassify employees who decline to self-identify constitutes a form of compelled speech in violation of the First Amendment. In that vein, this Note builds on a growing conversation surrounding the tense relationship between compelled speech and government regulation.⁹

This Note proceeds in three parts. Part I begins with a discussion of the history and policy underlying the application of the Employer Information Report EEO-1.¹⁰ Part II discusses relevant First Amendment principles, beginning by addressing the threshold question of what qualifies as speech protected by the First Amendment, and then discussing compelled speech jurisprudence. Part III applies the precedents cited in Part II to argue that the EEOC’s requirement that an employer affirmatively classify an employee as a member of a particular ethnic group, without the employee’s consent, constitutes compelled speech and thus violates the First Amendment. Finally, this Note concludes that the EEOC must adjust the way it administers the Employer Information Report EEO-1 to conform to constitutional standards.

I. The Employer Information Report EEO-1

The Employer Information Report EEO-1 is a regulatory mechanism of the EEOC intended to hold employers accountable for ensuring diversity in the workplace.¹¹ While this underlying objective is no doubt important in society and the business community, this Note questions the constitutionality of the means employed by the EEOC to achieve this goal. In setting the stage for that debate, this Part proceeds with a discussion of the Employer Information Report EEO-1 process and its requirement that employers classify the ethnicity of employees who decline to self-identify.

The EEOC began using the Employer Information Report EEO-1 as a reporting tool upon the agency’s creation under the Civil Rights Act of 1964.¹² A survey of the inaugural Employer Information Reports EEO-1 revealed data indicating a strong imbalance in the racial composition of the workforce.¹³ For example, forty-three percent of New York City employers reported having no black workers in high paying jobs, while ninety-nine percent of African Americans in the Carolinas were reported to hold the lowest paying job categories.¹⁴

In its current form, the Employer Information Report EEO-1, as promulgated under 29 C.F.R. § 1602.7, requires employers of 100 or more employees to submit data to the EEOC on the racial composition of their workforce.¹⁵ To adhere to this reporting requirement, employers typically prompt employees to self-identify as belonging to one of seven ethnic categories during the recruitment or onboarding process: (1) Hispanic or Latino, (2) White, (3) Black or African American, (4) Native Hawaiian or Pacific Islander, (5) Asian, (6) Native American or Alaska Native, or (7) Two or More Races.¹⁶ To gather this information, the Society for Human Resources Management recommends a basic checkbox-style questionnaire prompting employees to voluntarily identify with one of the seven enumerated ethnic groups, or check a box indicating that the employee “do[es] not wish to disclose.”¹⁷ When an employee elects not to disclose her ethnic identity, the EEOC recommends “visual surveys of the work force” to “acquire the information necessary for completion” of the Employer Information Report EEO-1.¹⁸

Many people are alarmed to find out that their employer has subjectively determined what their identity is without their consent, especially in light of the invasive practice of using visual observation to make that determination.¹⁹ For example, three Boulder Colorado County Commissioners issued a letter in 2018 apologizing for the county’s use of this practice and acknowledged that the use of visual observation to classify employees “raises concerns about bias and institutional racism and has caused feelings of anxiety and even anger among some staff.”²⁰ New York University came under similar public scrutiny because “the practice of assigning an employee’s race based on their appearance raises ethical questions.”²¹ Yet it is hard to blame these institutions for assigning employees’ races when they are following the government’s regulatory guidance, a compliance tactic legitimized through common industry practices.²² Regardless of the morality of the Employer Information Report EEO-1 as a product of government regulation, the practice’s controversial nature is symptomatic of a legal ailment plaguing the EEOC’s regulatory framework: the use of unconstitutionally compelled speech to elicit racial data from employers.²³

Government reporting and classification requirements touching on racial categorization have been the subject of much debate throughout American history. From the malign debate surrounding the three fifths compromise,²⁴ to the story of Susie Phipps, who was classified by the state of Louisiana as “[C]olored” after forty-three years of life believing she was white;²⁵ the government frequently runs into controversy where it seeks to classify the racial status of an individual. Whether it is a person’s identity on surveys collected by the Census Bureau,²⁶ a politician’s controversial ancestry,²⁷ or someone completing an application for asylum,²⁸ the ability of an individual to maintain the privacy of their racial identity is as relevant as ever. Indeed, this is one of the core values that both the Civil Rights Act of 1964 and the First Amendment seek to protect.²⁹ Accordingly, the First Amendment obligates the EEOC to adjust its regulatory scheme to accommodate the privacy interests of job-seekers³⁰ and multi-ethnic professionals,³¹ a principle that becomes increasingly critical in today’s pandemic-induced world of telecommuters.³²

II. First Amendment Protections and Compelled Speech

The First Amendment protects the freedom of speech and expression.³³ It stands for principles of individualism, personal dignity, and political accountability by embracing the notion that a rich “marketplace of ideas” is indicative of a healthy democracy.³⁴ The First Amendment furthermore protects not only the right to speak, but the right to decline to speak.³⁵ In that vein, one of the core values of the marketplace of ideas is that the government may not compel speech.³⁶ The rationale behind this fixture of American constitutional law is the idea that the right to refrain from speaking protects the concept of “individual freedom of mind.”³⁷ Thus, courts exercise caution when dealing with cases of compelled speech as it “raise[s] the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace.”³⁸

This Part begins with a discussion of First Amendment protections as they apply to pure speech and expressive conduct. Subsequently, this Part provides an overview of compelled speech by tracing the doctrine from its inception to its contemporary application. In synthesizing the current state of compelled speech case law, this Note will delineate between two critically different forms of speech compulsion: where the government unconstitutionally requires the speaker to assume a particular viewpoint and instances of constitutionally permissible compulsion of statements grounded in fact. From there, this Part completes the jurisprudential framework applicable to the Employer Information Report EEO-1 by drawing on instructive case law from the realm of political speech.

A. What Constitutes Speech Under the First Amendment?

The most easily understandable form of speech protected by the First Amendment is “pure speech,” which typically involves the formation of actual words, whether verbally or in text.³⁹ However, the “First Amendment does not only protect ‘verbal and written expression, but also symbols and conduct that constitute “symbolic speech.”’”⁴⁰ As Professor Robbins notes, “[s]ociety’s conception about what constitutes speech has evolved over time and now encompasses many forms of symbolic expression in addition to pure speech.”⁴¹ To make the determination of what constitutes expressive activity, the Supreme Court has formulated a two-part test deriving from two major Supreme Court cases: Spence v. Washington⁴² and Texas v. Johnson.⁴³

In Spence, the Court determined that hanging an American flag upside down with a peace sign on the back amounted to a form of First Amendment speech.⁴⁴ In making this determination, the Court looked to “the nature of [the speaker’s] activity” and “the factual context and environment in which it was undertaken.”⁴⁵ The Court elaborated on this test in Johnson by holding that burning the American flag constitutes First Amendment expression: “(1) whether the speaker intends for the conduct to convey a ‘particularized message,’ and (2) the ‘likelihood [is] great’ that a reasonable third-party observer would understand the message.”⁴⁶

Professor Robbins has offered insight into the Spence-Johnson test and its evolution over time.⁴⁷ Professor Robbins notes that six years after the decision in Johnson, the Court relaxed the “particularized message prong” of the Spence-Johnson test in Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston.⁴⁸ This decision confirmed that “an activity may constitute speech under the First Amendment even if it does not convey a clear message.”⁴⁹ Professor Robbins goes on to argue that the act of clicking “Like” on social media is symbolic speech because it satisfies the Spence-Johnson test.⁵⁰ He argues that clicking “Like” not only generates textual communication which populates in the news feeds of other Facebook users, but also serves as a clear indication of a person’s support for, or subjective viewpoint of, a particular Facebook post.⁵¹ This, Professor Robbins argues, meets the first prong of the Spence-Johnson test.⁵² Furthermore, clicking “Like” is expressive conduct that is likely to be widely understood, which in turn satisfies the second prong of the test.⁵³ Even if clicking “Like” does not satisfy Spence-Johnson in its original form, Professor Robbins contends that it still meets the lesser standard required by Hurley insofar as no “clear and articulable message” is necessary to merit First Amendment protection.⁵⁴

Courts applying Spence and its progeny have held a wide range of different conduct to merit First Amendment protection.⁵⁵ For example, in Junger v. Daley,⁵⁶ the Sixth Circuit held that computer encryption source code is protected by the First Amendment.⁵⁷ In its analysis, the court reasoned that a form of expression that has a “functional capacity” to convey a message, even if “unintelligible to many,” nonetheless merits protection under the First Amendment where it can serve as a form of cognizable communication among a select group, such as computer programmers.⁵⁸ Similarly, in Holloman ex rel. Holloman v. Harland,⁵⁹ the Eleventh Circuit held that raising a fist during a recital of the pledge of allegiance constitutes expressive activity protected by the First Amendment.⁶⁰ The court in Holloman applied Spence and its progeny, noting that the critical question is “whether the reasonable person would interpret it as some sort of message, not whether an observer would necessarily infer a specific message.”⁶¹ The Eleventh Circuit determined that holding up a fist was just as communicative as sign language or displaying a sign during a demonstration, and that the conduct was something that a reasonable student would understand to represent a symbol of dissent.⁶²

A review of these cases indicates that courts and practitioners engaged in a Spence-Johnson analysis must look first to the subjective intent of the speaker and second to the way in which the message the speaker intends to communicate is perceived objectively.⁶³ As Part III.A will demonstrate, this analysis is directly applicable in the context of the Employer Information Report EEO-1 as employers who affirmatively reclassify the ethnic status of their employees engage in expressive conduct protected by the First Amendment.

B. The Compelled Speech Doctrine

The First Amendment’s protection from compelled speech was enshrined as a foundational principle of constitutional law by the Supreme Court in the landmark case, West Virginia State Board of Education v. Barnette.⁶⁴ In Barnette, the Court struck down a state law obligating public school students to salute the American flag during the pledge of allegiance, holding that the First Amendment prohibits the government from compelling speech or the expression of ideas.⁶⁵ The opinion is riddled with tributes to individualism, along with skepticism of government overreach.⁶⁶ For example, Justice Jackson reasoned that compelled speech “invades the sphere of intellect and spirit which it is the purpose of the First Amendment . . . to reserve from all official control.”⁶⁷

Importantly, Barnette set a framework for the future of the compelled speech doctrine by distinguishing between state action that compels the speaker to assume a certain belief and that which merely educates or informs.⁶⁸ In Barnette, the Court was “dealing with a compulsion of students to declare a belief,”⁶⁹ or one that “requires affirmation of . . . an attitude of mind.”⁷⁰ The purpose of the flag salute and pledge of allegiance requirement, the Court reasoned, was not simply to inform or educate the students what the flag or pledge was, but rather to impose a belief upon them, a policy the Court considered to cross a constitutional boundary.⁷¹

In Wooley v. Maynard,⁷² the Court extended the holding of Barnette to a New Hampshire statute prohibiting drivers from covering the state motto of “live free or die” displayed on state license plates.⁷³ The Court in Maynard was similarly concerned by state action compelling an individual to assume a particular opinion that cuts against their own beliefs and principles.⁷⁴ Indeed, the Court reaffirmed many of the principles underlying the decision in Barnette, such as the importance of individualism and the right of a speaker to decline to assume a viewpoint they feel to be “morally objectionable.”⁷⁵ Maynard also drew comparisons to the flag salute in Barnette insofar as “[t]he fact that most individuals agree with the thrust of New Hampshire’s motto is not the test; most Americans also find the flag salute acceptable.”⁷⁶

More recently, the Supreme Court reaffirmed the principles underlying the compelled speech doctrine in Janus v. American Federation of State, County, & Municipal Employees, Council 31.⁷⁷ In Janus, the Court struck down a law automatically deducting fees from the paychecks of employees of the state of Illinois for participation in union collective bargaining agreement negotiations.⁷⁸ The plaintiff in Janus refused to join the union because of his opposition to the union’s approach to collective bargaining, a fact which proved critical to the Court’s analysis.⁷⁹ The Court reasoned that obligating state employees to contribute portions of their salaries towards an organization they might not believe in constituted compelled speech under Barnette and its progeny because the regulation effectively imposed a viewpoint upon the employees.⁸⁰

In contrast to state action compelling subjective forms of speech, courts generally recognize that the government may compel statements of fact if the policy in question does not impose any particular viewpoint or attitude upon the speaker. For example, the California Supreme Court in Beeman v. Anthem Prescription Management, LLC⁸¹ upheld a state law requiring third-party intermediaries between pharmacies and health insurance companies⁸² to report certain data on pharmacy fees to their clients.⁸³ Specifically, these intermediaries were required by state law to conduct market studies every two years to determine their fee structure and disclose the results of those studies to clients.⁸⁴ While the court applied the California State Constitution’s free speech protections, the opinion relied heavily on Barnette and its progeny.⁸⁵ In particular, the court in Beeman distinguished the state law from the laws and regulations present in Barnette, Maynard, and other compelled speech cases since “[e]ach of those cases involved a law requiring a speaker to adopt, endorse, accommodate, or subsidize a moral, political, or economic viewpoint with which the speaker disagreed.”⁸⁶ The court went on to draw the line at the required disclosure of “objective facts and statistics,” which it held did not violate the First Amendment.⁸⁷ Similarly, in Spirit Airlines, Inc. v. United States Department of Transportation,⁸⁸ the D.C. Circuit held that a Department of Transportation regulation requiring airlines to make ticket price the most prominent figure listed on an advertisement was permissible under the First Amendment.⁸⁹ In particular, the court distinguished between a scenario where the government might compel the airline to say something of substance and the mere disclosure of pricing information.⁹⁰

As these precedents demonstrate, courts carefully scrutinize all types of speech compulsion on the part of the government. However, courts draw the line where state action crosses over from a required disclosure involving a statement grounded in fact to compelled speech forcing the speaker to assume a subjective viewpoint.⁹¹ Of course, all people are sometimes obligated to disclose certain facts to the government or other parties—date of birth to obtain a passport, address for a voter registration card, and income level on a tax return, to name a few.⁹² As Professor Volokh insightfully points out, “[t]he Maynards were required to display a motto on their car as a condition of driving it on public streets, but surely at least one of them was also required to convey a good deal of information to the government to get a license to drive on those streets.”⁹³

C. Political Speech Jurisprudence as Guidance for a Compelled Speech Analysis

Political speech cases can be instructive when analyzing compelled speech in the context of the required disclosure of an individual’s identity. Requiring an individual to disclose her identity when engaging in political speech violates the First Amendment. For example, in McIntyre v. Ohio Elections Commission,⁹⁴ the Court held that individuals have a right to distribute campaign literature without disclosing their identity.⁹⁵ Justice Brennan, writing for the majority, noted that anonymity “exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation—and their ideas from suppression—at the hand of an intolerant society.”⁹⁶ This rationale is also evident in other political speech cases dealing with anonymity. Both Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton⁹⁷ and Buckley v. American Constitutional Law Foundation, Inc.⁹⁸ struck down laws obligating individuals to identify themselves in the course of engaging in political speech on the grounds that the right to anonymous expression is a core principle of the First Amendment.⁹⁹

While McIntyre did not apply a Barnette analysis, the statute in question easily could have been analyzed through the lens of compelled speech. And scholars agree. For example, Professor Volokh relies on McIntyre, Buckley, and Watchtower Bible to contend that “compelling speakers to disclose certain things that they would be reluctant to disclose (such as their identities)” is presumptively unconstitutional.¹⁰⁰ Similarly, Professor Greene noted that “compelling speech violates an autonomy or personhood right of the individual, intruding on the person and insulting the person’s dignity through requiring the person to speak words she would rather not speak.”¹⁰¹ The statute in McIntyre effectively imposed a requirement that individuals disclose their identity in the course of handing out pamphlets.¹⁰² Obligating someone to disclose their identity in the political speech context constitutes an infringement on the right to anonymous expression that McIntyre and related cases stand for—a principle with clear similarities to the right not to speak recognized by Barnette and subsequent compelled speech cases.¹⁰³

III. Application of Compelled Speech Principles to the Employer Information Report EEO-1

Thus far, this Note has explained how a typical EEO-1 questionnaire functions through a series of checkboxes prompting employees to select an ethnicity to identify with, which in turn requires employers to affirmatively classify which ethnic group an employee belongs to when the employee declines to select an ethnic identity. This Note has also discussed case law surrounding the extent to which expressive conduct is protected by the First Amendment through an application of the Spence-Johnson test, as modified by Hurley.¹⁰⁴ Thereafter, this Note has laid out the current state of compelled speech jurisprudence in order to delineate between speech compulsions grounded in fact and those imposing a subjective viewpoint on the speaker. Finally, this Note draws on case law from the context of political speech to inform a broader compelled speech analysis. The following section builds on those underlying principles in applying the test for First Amendment speech protections and relevant compelled speech precedents to argue that the EEO-1 reporting mechanism constitutes a form of compelled speech in violation of the First Amendment.

A. The Employer Information Report EEO-1 as First Amendment Speech

An employee’s response to an employer’s EEO-1 questionnaire is a type of pure speech because it implicates the use of plain language.¹⁰⁵ In particular, this procedure provides data that employers later publish in the Employer Information Report EEO-1, which employers submit to the EEOC.¹⁰⁶ Accordingly, the specific contents of an employee’s EEO-1 questionnaire include the direct byproduct of that employee’s expression, which is in turn converted to data or text in the employer’s Employer Information Report EEO-1.¹⁰⁷ The employee completing an EEO-1 questionnaire checks a box in response to a specific question, an action reflecting the employee’s answer to that question.¹⁰⁸ Likewise, where the employer functionally checks the box on the employee’s behalf by populating the contents of its Employer Information Report EEO-1, the employer is simply speaking for the employee. If the EEO-1 questionnaire structure instead prompted an employee to fill in a blank space by writing out their ethnic affiliation, that use of plain words would surely constitute pure speech.¹⁰⁹ Furthermore, a check mark is a commonplace character in everyday communication, and it represents a clear thought indicating that something has been observed or confirmed.¹¹⁰ This notion is consistent with the Third Circuit’s determination that “[i]n analyzing this First Amendment compelled speech claim, we will assume without deciding that the act of answering questions on a survey is speech for First Amendment purposes.”¹¹¹ An employer’s use of data deriving from an employee’s checkmark on a questionnaire to populate the contents of an Employer Information Report EEO-1 thus represents a form of pure speech.

However, classifying an employee’s ethnic status on an Employer Information Report EEO-1 using visual observation does not necessarily need to constitute pure speech in order to fall within the protection of the First Amendment.¹¹² Rather, it is speech for First Amendment purposes as long as it constitutes expressive conduct, which is a standard that companies meet by subjectively assigning ethnic identities to their employees.¹¹³ This is especially true given that an employee’s responses in their EEO-1 questionnaire reflect that individual’s identity, which is not only an extremely personal matter, but also an important element of the employee’s sense of autonomy and dignity.¹¹⁴

The Spence-Johnson test is an appropriate starting point to evaluate whether determining the ethnic identity of an employee through visual observation and then noting that determination on the Employer Information Report EEO-1 constitutes protected speech.¹¹⁵ As mentioned earlier, this analysis involves a two-pronged inquiry: (1) whether the speaker intends to convey a particularized message and (2) whether that message could be reasonably understood by a third-party.¹¹⁶

Reclassifying an employee’s ethnic status clearly indicates a subjective message the employer is conveying through the Employer Information Report EEO-1, and thus serves to satisfy the first prong of the Spence-Johnson test.¹¹⁷ While the use of visual observation to reclassify an employee might seem like an administrative formality, it is in no way such a di minimis action. Employers have no reliable way of knowing how employees who decline to self-identify might characterize themselves ethnically if forced to do so, especially in light of today’s multi-ethnic workforce composition. A determination of this kind is therefore necessarily a subjective thought process.¹¹⁸ The employer in this context is not only speaking for employees against the employees’ wishes but classifying them in a way that may in fact be inaccurate. In the same way that clicking “Like” on Facebook conveys a person’s subjective view of a particular Facebook post,¹¹⁹ an employer’s reclassification of an employee’s ethnic status conveys the employer’s subjective view of that employee’s ethnic identity.

This reasoning is also consistent with lower courts’ application of the Spence-Johnson test.¹²⁰ Given that computer encryption source code is sufficiently particularized to merit First Amendment protection,¹²¹ checking a box on a job application is assuredly an expressive form of communication. In the same way that computer code can contain a specific message,¹²² the contents of the EEO-1 questionnaire communicates an employee’s expression of their ethnic status. Similarly, completing an EEO-1 questionnaire could be considered a symbolic form of expression analogous to the message being conveyed by the student who held up his fist during the pledge of allegiance, as discussed in Holloman.¹²³ In the same way that holding up a fist might represent an expression of disagreement with the status quo,¹²⁴ declining to self-identify represents an employee’s disagreement with the characterization of their ethnicity reflected by the cookie-cutter ethnic categories that the EEO-1 form provides. And where an employer changes the contents of that employee’s EEO-1 questionnaire responses, the employer is expressing a subjective viewpoint on behalf of the employee. Accordingly, an application of the holdings of Junger and Holloman, as well as the reasoning of Professor Robbins, indicates that the first prong of Spence-Johnson is met where an employer reclassifies an employee’s ethnic status because such conduct conveys a “particularized message.”¹²⁵

Next, applying the second prong of the Spence-Johnson test confirms that the classification of employees’ ethnicities for EEO-1 reporting constitutes First Amendment speech. Like computer source code, a cognizable form of communication among computer programmers,¹²⁶ the use of visual observation to classify employees’ ethnic status on an Employer Information Report EEO-1 is clearly a recognizable means of communication among human resources professionals, as well as the broader public. Accordingly, human resource professionals, as well as the business community at-large, can easily discern when employers affirmatively reclassify their employees’ ethnic statuses. If anything, compared to computer code, reasonable third-parties are more likely to understand communication through completed EEO-1 questionnaires given the fact that anyone who has applied to work for a company that has more than 100 employees has, at one point or another, had to select an ethnic status for EEO-1 purposes.¹²⁷ Affirmatively reclassifying the ethnic status on an employee’s EEO-1 questionnaire submission is akin to clicking “Like” on Facebook or raising a fist in protest during the pledge allegiance, insofar as any reasonable person would understand the message.¹²⁸ Employers engaging in this regulatory process are communicating to the EEOC what they subjectively believe to be the ethnic identity of their employees. That easily understandable message satisfies the second prong of a Spence-Johnson analysis.

B. Affirmatively Creating Answers for Employees who Decline to Self-Identify as a Form of Compelled Speech

Like all forms of compelled speech, obligating an employer to subjectively dictate an employee’s ethnic identity as provided by the Employer Information Report EEO-1 “invades the sphere of intellect and spirit which it is the purpose of the First Amendment . . . to reserve from all official control.”¹²⁹ In that respect, the argument that this Note advances is directly in line with the core principles outlined in Barnette.¹³⁰ Given that Barnette dealt with a “belief and an attitude of mind”¹³¹ of a minority of individuals, the EEOC requirement to categorize an employee through visual observation on the Employer Information Report EEO-1 is exactly the type of compelled expression Barnette sought to avoid because it can force an expression contrary to one’s belief.¹³² As such, drawing the line between compelled speech that compels a statement of a subjective view and that which compels a statement of fact is consistent with the core of compelled speech jurisprudence.¹³³ Completion of the EEO-1 questionnaire, whether by the employee or upon alteration by the employer, clearly constitutes expression of a subjective viewpoint that the government cannot regulate through compelled speech.

This process is compulsory insofar as it obligates employers to assign ethnic identities that their employees otherwise would not identify with, or that might in fact be inaccurate. It cuts against both the business interest of the employer and the employee’s interest in personal autonomy and privacy. A company or organization might have many legitimate reasons for not wanting to adhere to the ethnic reclassification component of the Employer Information Report EEO-1 process: ethical duty, avoiding potential employment discrimination litigation, data privacy, staff morale, the list could go on.¹³⁴ Similarly, an employee who declines to self-identify might simply feel that they do not fit into any of the seven prescriptive ethnic categories provided by a typical EEO-1 questionnaire. Alternatively, that same employee might believe they will be subject to discrimination based on their responses to the EEO-1 questionnaire.¹³⁵ Or perhaps some employees might fear they will be investigated by the government, especially where ethnicity might be correlated to immigration status.¹³⁶ Still other employees might simply consider their ethnicity to be a private matter they do not wish to share with coworkers.¹³⁷ Ultimately, the EEO-1 reporting mechanism compels an employer to express a subjective view of its employees,¹³⁸ which runs afoul of the First Amendment protections outlined in Barnette.¹³⁹ Employers can and should rely on the First Amendment to preserve the chosen ethnic identity of their employees.

It does not matter that the Employer Information Report EEO-1 might cover a range of ethnic groups that are viewed by most Americans as providing an adequate opportunity to characterize a person’s ethnic identity. That is not the point. As indicated by Maynard, the entire rationale underlying compelled speech is that we all have the right to decline to assume a position widely accepted by the majority.¹⁴⁰ By that same logic, the use of the EEO-1 questionnaire and the Employer Information Report EEO-1 runs afoul of this basic principle insofar as it ignores the right of an employer to decline to assume the belief of an employee, even if the employer is classifying the employee within a broad range of ethnic categories otherwise acceptable to a majority of Americans.

The Employer Information Report EEO-1 can be distinguished from similar fact-based regulatory processes because it represents the manifestation of a subjective viewpoint. As noted previously, certain facts are required to be filed with the government such as one’s date of birth to obtain a passport, address for a voter registration card, or income level on a tax return.¹⁴¹ That reasoning is in line with Beeman, Spirit Airlines, and other commercial speech cases where the First Amendment does not prohibit the government from eliciting factual statements.¹⁴² The crucial factor in those scenarios is that they do not involve the mindset of an individual. By contrast, the completion of the Employer Information Report EEO-1 obligates both the employee and employer to assume a viewpoint they might not otherwise share. Indeed, an employer’s visual observation of an employee does not establish that employee’s ethnicity as a matter of fact. It is rather a subjective speculation that many employers would just as soon avoid having to make. Thus, the EEO-1 process cannot be fairly considered fact-based speech that is ordinarily constitutionally permissible. Instead, these subjective views amount to compelled speech in violation of the First Amendment.

C. Viewing the Constitutionality of the Employer Information Report EEO-1 in Light of Political Speech Precedents

Looking to political speech precedents furthers the argument that use of the EEO-1 questionnaire runs afoul of basic First Amendment principles. Specifically, the concept articulated by the Supreme Court that there exists a critical right to anonymity in the political speech context is similar to the principles of individuality and personal autonomy underlying the compelled speech doctrine.¹⁴³ For example, the Court’s concern with the statute in McIntyre imposing a requirement that individuals disclose their identities to hand out political pamphlets suggests that courts should be skeptical of the EEO-1 reporting process because it infringes on an employee’s right to anonymity.¹⁴⁴ Regardless of whether an employee declines to self-identify because they do not believe they fit into one of the seven provided ethnic categories or because they simply prefer that their employer, and by extension the government, does not know how they ethnically identify, the First Amendment protects the employer’s interest in respecting employees’ anonymity. The right to anonymous expression is at the heart of compelled speech jurisprudence in the same way that it underlies the political speech doctrine. Both areas of constitutional law play an axiomatic role in protecting our fundamental freedoms, and the core principles underlying political speech lend further support to the argument that the EEO-1 reporting process constitutes compelled speech.

Conclusion

The EEO-1 reporting process constitutes a form of compelled speech in violation of the First Amendment. To begin with, both the act of self-identification through the EEO-1 questionnaire and reclassification of an employee’s ethnic status on an Employer Information Report EEO-1 constitute a form of protected speech. It thus stands to reason that the government may not compel an employer to engage in that type of conduct; such state action runs afoul of fundamental First Amendment principles dictated by Barnette and its progeny.¹⁴⁵ However, the EEOC violates this basic principle by compelling employers to make a subjective determination of an employee’s ethnic status, a personal invasion into an individual’s privacy and autonomy, rather than obligating employers to merely disclose purely factual information.

This Note does not dispute the importance of holding employers to account for the ethnic composition of their work force. However, the EEOC must approach that admittedly complex issue through a means that is compatible with the spirit of the First Amendment. Where the EEOC obligates an employer to reclassify the racial identity of its employees, it engages in unconstitutional speech compulsion.¹⁴⁶ Such a policy forces the employer to make a subjective determination on behalf of the employee without the employee’s consent. The Employer Information Report EEO-1 process is thus unconstitutional under the First Amendment, and the EEOC must find another means to fulfill its mandate.

Compelled Identity: EEOC Policy to Reclassify Ethnicity as a Free Speech Violation

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