No. The regulations at 41 CFR 60-1.12(c) states "where possible" the contractor must be able to identify gender (see below). Additionally, OFCCP Directive 283 says a contractor "may" use visual observation for race, but it is not required (see below): 41 CFR 60-1.12 (c) Contractor identification of record. (1) For any record the contractor maintains pursuant to this section, the contractor must be able to identify: (i) The gender, race, and ethnicity of each employee; and (ii) Where possible, the gender, race, and ethnicity of each applicant or Internet Applicant as defined in 41 CFR 60-1.3, whichever is applicable to the particular position. OFCCP Directive 283 FIELD ENFORCEMENT GUIDANCE: Compliance Officers should adhere to the following principles when evaluating the use of race and ethnicity categories in the AAPs prepared by federal contractors in accordance with the Executive Order, as amended: Contractor data tracking responsibilities remain the same.(4) Accordingly, self–identification will remain the preferred method for compiling information about the sex, race or ethnicity of applicants and employees. A contractor’s invitation to self–identify race or ethnicity should state that the submission of such information is voluntary. However, contractors may use post–employment records or visual observation when an individual declines to self–identify his or her race or ethnicity.(5)
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