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Reporting Nonbinary Classifications to the EEOC: Guidance From a New FAQ

On August 15, 2019, the Equal Employment Opportunity Commission (EEOC) added a question and answer to its list of frequently asked questions (FAQs) addressing, among other things, a growing concern for many employers: how to report employees who identify as nonbinary in the EEO-1 Component 2 report. We have previously written on the conundrum facing employers with EEO-1 reporting and written affirmative action obligations and employees who have identified as nonbinary. Until this guidance was issued, there was not a permissible way for employers to report nonbinary employees in the EEO-1 report. Yet many employers with robust diversity and inclusion programs and those with employees in certain jurisdictions—such as Oregon; Washington, D.C.; California; and New York City, where nonbinary identification is allowed in local government documents—offer a nonbinary option for gender identification.

In the FAQ, the EEOC indicates that filers can include “employee counts and labor hours for nonbinary gender employees by job category and pay band and racial group in the comment box on the Certification Page.” The EEOC also provides an example of an appropriate way to list employees who have identified as nonbinary. While this will likely be welcome news for some employers, reporting a nonbinary employee is not as simple as checking a box, as it will require a narrative response in the comment box.

The EEOC did not indicate whether it will revise the EEO-1 report for the next filing cycle to minimize the burden on employers. It will likely not revise the EEO-1 report format to allow for a more efficient reporting of employees identifying as nonbinary until after the Supreme Court of the United States, in its next term, hears a trio of cases regarding whether Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sexual orientation or an individual’s status as transgender (or transitioning), which would resolve a split in the federal circuits.

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About this Author

T. Scott Kelly, Defense Contracting Attorney, Shareholder, Ogletree Deakins Law firm

Scott Kelly provides practical solutions for federal contractors and subcontractors across the United States to comply with the ever-changing affirmative action obligations imposed by doing business with the federal government.  He advocates on behalf of his clients in compliance evaluations and administrative enforcement actions triggered by the United States Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP).  Mr. Kelly assists manufacturing, transportation, construction, food processing, hospitality, healthcare, and financial institutions...