
With the deadline approaching, the Equal Employment Opportunity
Commission (EEOC) has released guidance to filing employers through answers to Frequently Asked Questions. Among
other issues, the EEOC addressed reporting non-binary gender employees. Previously,
the EEOC required an employer to list an employee’s gender for EEO-1 reporting
as male or female. The EEOC also stated that self-identification was the
preferred method of identifying an employee’s sex. The EEOC, however, had not
previously answered the question of how to complete the EEO-1 form related to
employees who identify as non-binary.
The EEOC has now addressed this and provided a non-binary reporting
option for employers. In the FAQs, the EEOC stated that employers 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. Employers
should preface that 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.”
The EEOC guidance joins a growing movement of legal recognition for
non-binary gender classifications. More than 10 states, including Minnesota,
now offer a third gender option on state identity documents and more than 20
states, again including Minnesota, prohibit workplace discrimination on the
basis of gender identity or expression.
Other topics addressed in the EEOC’s FAQs include summary compensation
data, hours worked, multi-establishment reporting, acquisitions and mergers,
spinoffs, professional employer organizations, the online filing system,
confidentiality, and data security. For background information on the EEO-1
reporting requirements, see our previous posts on this topic available here
and here.
Implications for Employers
Covered employers should be in the process of collecting 2017 and 2018
Component 2 pay data to ensure they can meet the September 30 reporting
deadline. As stated above, self-identification is the preferred method of
identifying the demographic information necessary for the EEO-1 report. Employers
should provide the opportunity to self-identify, but should clearly communicate
that submission of such information is voluntary. If an employee declines to
self-identify, employment records or observer identification may be used. When
an employer has employees that identify as non-binary gender, the EEOC’s
guidance should be followed for reporting those individuals.
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