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OFCCP FAQ Provides Guidance Regarding Non-Binary Employees and Applicants

The Office of Federal Contract Compliance Programs (“OFCCP”) recently released a FAQ addressing how contractors should “handle counting employees and/or applicants who identify as a gender other than male or female such as Gender X as recognized in California[.]”

In response to this question, the FAQ provides “[i]f an employee or applicant chooses to self-identify as non-binary, or as a gender other than male or female, the contractor must still include the individual in its AAP submission[,]” but “the contractor may exclude that individual’s data from the gender-based analyses required by OFCCP’s regulations.”  The FAQ further provides that “a contractor may not ask applicants or employees for documentation to prove their gender identity or transgender status.”

Employers are increasingly providing employees and applicants the opportunity to self-identify as a gender other than male or female, and until now federal government contractors have had no guidance regarding how to account for individuals who self-identified as non-binary or as a gender other than male or female in their affirmative action programs and analyses.  This FAQ, gives some clarity to the agency’s position on some of the issues that arise from the intersection of OFCCP regulations and gender non-binary employees and applicants.

© 2020 Proskauer Rose LLP. National Law Review, Volume X, Number 244



About this Author

Guy Brenner, Labor Attorney, Proskauer Rose, arbitration proceedings Lawyer

Guy Brenner is a partner in the Labor & Employment Law Department and co-head of the Non-Compete & Trade Secrets Group. He has extensive experience representing employers in both single-plaintiff and class action matters, as well as in arbitration proceedings. He also regularly assists federal government contractors with the many special employment-related compliance challenges they face.

Guy represents employers in all aspects of employment and labor litigation and counseling, with an emphasis on non-compete and trade secrets issues,...

Caroline L. Guensberg Associate Labor & Employment Employment Litigation & Arbitration

Caroline Guensberg earned her J.D. from George Washington University Law School, graduating with honors. While attending law school, Caroline was a notes editor of the Federal Circuit Bar Journal and had her note published in the journal. Caroline was also a member of the Alternative Dispute Resolution Board and served as a writing fellow and a dean’s fellow. In addition, Caroline worked as a legal intern for the United States Equal Employment Opportunity Commission and the Federal Mine Safety Commission.

Prior to joining Proskauer, Caroline was a judicial clerk for the Connecticut Appellate Court. Caroline earned a B.A. in English Literature and Political Science from Wake Forest University.