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.