As more employees have identified their gender as nonbinary rather than male or female, employers have struggled to determine how to report these workers’ gender on the EEO-1 form provided to the Equal Employment Opportunity Commission (EEOC). The EEOC recently has said in an FAQ that employers may report this information in a comments section of the form. But some experts think this won’t solve the problem of not including a box designated for nonbinary individuals on the EEO-1 form.
Nonbinary is an umbrella term for anyone who doesn’t identify as exclusively male or female. This includes genderqueer, agender, bigender and intersex individuals.
EEO-1 Form Filing Requirement
Businesses with at least 100 employees and federal contractors with at least 50 employees and a contract with the federal government of $50,000 or more must file the EEO-1 form. The EEOC uses information about the number of women and minorities companies employ to support civil rights enforcement and analyze employment patterns.
Component 1 of the form, which asks for the number of employees who work for the business listed by job category, race, ethnicity and sex, was due May 31. Component 2 data—which includes hours worked and pay information from employees’ W-2 forms listed by race, ethnicity and sex—is due Sept. 30.
Dilemma for Employers
Prior to releasing the FAQ, the EEOC gave employers only two options for reporting their employees’ gender on the EEO-1: male or female. This means that employers faced “the uncomfortable option” of either:
- Underreporting any employee who did not identify as a man or woman.
- Forcing all employees into two categories, regardless of how the employees identified themselves.
These options were becoming increasingly difficult given the growing number of states that are now issuing state identifications and driver’s licenses with a nonbinary gender marker to anyone who requests one. Visconti said these jurisdictions include Arkansas, California, Colorado, Hawaii, Indiana, Maine, Maryland, Minnesota, New Hampshire, New Jersey, New York, Oregon, Pennsylvania, Washington, D.C., and Washington state. Most of these states also require employers to recognize nonbinary individuals’ preferred gender markers.
For example, California generally requires that employers permit employees to self-designate as gender nonbinary. In addition, the California Fair Employment and Housing Council regulations state:
- If an employee requests to be identified with a preferred gender, name and/or pronoun, including gender-neutral pronouns, an employer must comply with the employee’s stated preference.
- An employer is permitted to use an employee’s gender or legal name as indicated in a government-issued identification document only if it is necessary to meet a legally mandated obligation; otherwise, it must identify the employee in accordance with the worker’s gender identity and preferred name.
- It is unlawful for employers and other covered entities to ask about or require documentation or proof of an individual’s sex, gender, gender identity or gender expression as a condition of employment.
In light of these states’ laws, some employers have been recording two genders for certain individuals—one for state law purposes and the other for federal reporting purposes. The FAQ appears to resolve the dilemma faced by employers because it allows employers to report workers who do not identify as men or women on their EEO‑1 without forcing them into one of two gender categories.
‘A Good Start’
Nonetheless, that the FAQ is a good start, but for those employers who are not aware of the FAQ, they may still face the above-described dilemma without knowing there is a solution.
Adding a box on the EEO-1 form for nonbinary individuals hopefully is the next step for the EEOC.
If employees identify as genderqueer, agender, bigender or intersex, they typically would be included within the umbrella term “nonbinary” for EEO-1 reporting purposes.
Unfortunately, the FAQ addresses only the ability to report the data for nonbinary individuals for Component 2 of the EEO-1 report. It doesn’t explain how the data should be handled for Component 1. Nor does it address whether employers should actually be soliciting nonbinary designations from employees. It simply says, in essence, if you have this data, this is how you can report it.
The extent of the protections afforded by Title VII of the Civil Rights Act of 1964 remains an open question that the Supreme Court will resolve this term. So there will likely not be a contemplated change to the EEO-1 form—Component 1 or Component 2—until that is resolved, if even then.
Numerous legal experts have said that a box for nonbinary individuals is needed, however, to avoid privacy concerns. Specific notes on employees’ gender, job category, pay band, racial group and total hours worked in the EEO-1 form’s comments section potentially compromise nonbinary workers’ anonymity.
By listing these employees in the comments box, their information will not be analyzed in a systemic way.