Non-binary Employees and the EEO-1 Report

By Fiona W. Ong - Shawe Rosenthal LLP

August 28, 2019

Years ago, I wrote a blog post, “Two or More Genders? Gender Identity and the EEO-1 Form,” in which I discussed what employers should do when an employee refuses to identify as either male or female for purposes of EEO reporting. At that time, I spoke with the Office of Federal Contract Compliance Programs about their approach to this issue (which was to assign a sex based on visual identification), but was never able to get the Equal Employment Opportunity Commission to respond to me, despite multiple phone calls and emails. Well, now, the EEOC has offered some guidance on a related issue – reporting non-binary employees (those who do not identify as either male or female) on the EEO-1 Component 2 report.

As we have previously discussed in excruciating detail, the EEOC revised its EEO-1 form to add the collection of pay data organized by pay bands, race, ethnicity and sex (Component 2) to the demographic data (Component 1) already required by the form. But in belated recognition of the shifting norms of gender identity in our society, the EEOC has now offered the following FAQ on the Collection of 2017 and 2018 Component 2 Data:

Our company is now collecting gender beyond the male/female binary. We wish to report this for the EEO-1 Component 2 data collection. How do we report it?

Filers may report employee counts and labor hours for non-binary gender employees by job category and pay band and racial group in the comment box on the Certification Page, please preface this data with the phrase “Additional Employee Data:”. For example, “Additional Employee Data: 1 non-binary gender employee working 2,040 hours in Job Category 4, Salary Pay Band 5, Race/ethnicity non-Hispanic White. 3 non-binary gender employees; combined work hours 5,775; in Job Category 5, Salary Pay Band 8; Race/ethnicity: Employee 1 – Non-Hispanic Black, Employee 2 – Hispanic, Employee 3 – Two or more races”.

Notably, the filing deadline for the 2019 EEO-1 Component 1 report has already passed – so these non-binary employees have not previously been reported as “non-binary” to the EEOC. In fact, the employer would have had to assign a male or female sex to the employee for purposes of Component 1, as the EEO-1 form still only contemplates those two sexes. And yes, this means that the same employee that showed up as either male or female on the Component 1 report can now be non-binary for purposes of the Component 2 report!

The obvious next step for the EEOC would be to revise the EEO-1 form to include a “non-binary” option for sex. That would likely require a formal rule-making process. And given this administration’s apparent resistance to LGBTQ interests, I don’t believe this is likely to happen anytime soon…