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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.