Friday, August 23, 2019

EEOC Released FAQs on EEO-1 Reporting, Including Guidance on Reporting Non-Binary Employees

The deadline for employers with annual EEO-1 reporting requirements to submit Component 2 pay data is just over a month away. Employers must file 2017 and 2018 Component 2 compensation data by September 30, 2019.

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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