Hunton Employment & Labor Perspectives

The EEOC recently published guidance under its FAQ page regarding the question of how to report nonbinary gender employees on the annual EEO-1 report.  The EEO-1 report is a yearly survey that employers must complete and submit to the agency which requires the employer to identify characteristics of its workforce such as race/ethnicity and sex.  This survey does not allow the employer or the affected employee to abstain from responding, which creates difficult decisions for the employer who must fill-in-the-blank when an employee declines to self-identify.

The issue of filling-in-the-blank is especially thorny when it comes to gender identity.  The EEO-1 form only allows an employee to be categorized as male or female, while the updated version of the EEO-1 form allows an employee to be categorized as more than one race/ethnicity.  According to the EEOC, employers may use other gender-identifying documents or a visual identification when employees decline to self-identify.  However, these methods were imperfect, because in some states, employees may choose nonbinary on their state-issued identification documents, and relying on a visual identification may put the employer’s identification at odds with the employee’s identification, or lack of identification, within a binary.

On August 15, 2019, the EEOC addressed this issue by publishing guidance which states that the employer may account for nonbinary gender employees in the comment box on the Certification Page with the preface phrase “Additional Employee Data.”