The Equal Employment Opportunity Commission (“EEOC”) and the Office of Federal Contract Compliance Programs (“OFCCP”) both provide protections against discrimination on the basis of gender identity. OFCCP’s frequently asked questions define gender identity as referring to a person’s internal sense of their own gender and that this internal sense may or may not correspond to the sex assigned at birth and may not be visible to others. Despite these regulations, employers who are required to submit EEO-1 reports face challenges in reflecting gender identity diversity in their workforce because the federal reporting forms reflect a binary gender framework.
On August 15, 2019, the EEOC posted a new question and answer to its website regarding non-binary employees. Until this guidance was issued, there was not a permissible way for employers to report non-binary employees in the EEO-1 report. The EEOC FAQ indicates that EEOC filers can include “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.” Filers may now use the box for comments on the EEO-1 to report the number (if any) of employees who identify as non-binary. If a filer uses the comment box, they should provide all other required information in the comment box. The FAQ does not appear to require employers to collect information as to whether an employee identifies as non-binary, but simply provides instructions on how to report those who do identify as non-binary.
The EEOC is not likely to revise the EEO-1 reporting form for the next filing cycle to minimize the burden on employers to report non-binary employees. The Supreme Court of the United States is expected to rule this term on a trio of cases regarding whether Title VII prohibits discrimination on the basis of sexual orientation or an individual’s status as transgender, which will resolve a split in the federal circuits. Based on these opinions, the EEOC and OFCCP may revise the EEO-1 form in the future.