?The U.S. Equal Employment Opportunity Commission (EEOC) thus far has not added a box on the EEO-1 form to designate the gender of employees who are nonbinary. Employers unaware of the option to use the comments section to note nonbinary employees might unwittingly misgender employees as male or female as a result, legal experts say.
Nonbinary Individuals
“Nonbinary is an umbrella term for individuals who don’t identify as exclusively male or female,” said Helen Friedman, Ph.D., a clinical psychologist in St. Louis. “They may identify with more than one gender (bigender), partially with one gender (demigender), with no gender (agender), a third gender or have a fluctuating gender identity (genderfluid).”
Friedman said that in recent years, subcategories of nonbinary have proliferated and become more nuanced.
“Someone who is nonbinary or genderqueer may at times identify as or embody some traits that may appear to fit within the label of what we might associate with masculine or feminine traits, but this is not the full picture,” said Michelle Phillips, an attorney with Jackson Lewis in White Plains, N.Y. “Individuals who are nonbinary are not constrained by binary gender labels and they may present in a more genderfluid manner.”
“Understand that coming to terms with one’s gender identity is a process,” Friedman said. “Nonbinary individuals may come to realize that a still different name or set of pronouns is more in line with their true gender identity. Allow for this flexibility and respect their internal process.”
Likelihood of Misgendering Increased by Absence of Third Box on EEO-1 Form
Businesses with 100 or more employees and some federal contractors with at least 50 employees must submit an annual EEO-1 form, which asks for information from the previous year about the number of employees who worked for the business, sorted by job category, race, ethnicity and gender.
The EEOC has stated that it will allow late filing of EEO-1 reports, which were due May 17, until June 21.
When nonbinary employees disclose their gender identity to their employer, the employer should seek to reflect this information appropriately in all systems and reports, including on their EEO-1 report, said Denise Visconti, an attorney with Littler in San Diego.
“By not including a third box so that employers can properly reflect the gender identity of those employees who identify outside the gender binary, the EEOC has made compliance difficult for employers,” Visconti said.
HR professionals completing EEO-1 forms are left with no choice but to manually enter each employee who is nonbinary, she said. “As a result, in addition to the burden placed on employers, by failing to add a box for nonbinary employees, the EEOC has increased the likelihood that nonbinary employees will be misgendered by their employer and undercounted by the federal government.”
Many employers are unaware that they can use the comments section to properly report nonbinary employees, Visconti noted.
“Instead, employers are under the impression that they still need to require all employees—including those employees who identify as nonbinary—to designate a binary gender marker for government reporting purposes,” she said.
Consequently, employers often have two gender markers in their human resources information system—one inclusive set of gender markers for internal purposes and another binary set of gender markers for government purposes. This can lead to confusion, Visconti said.
Many employers either do not solicit data on nonbinary employees or have just started collecting it, so they do not have a large amount of such data to report, said Laura Mitchell, an attorney with Jackson Lewis in Denver.
For those that have collected data on nonbinary employees, employers have to manually add the demographics to the notes section of the report to reflect how many nonbinary employees they have and this is cumbersome, Mitchell said.
Allowing comments in the notes section “seems more like a half measure to move away from a binary concept of gender while not truly establishing a third gender category for data collection reporting purposes,” said Jay Patton, an attorney with Ogletree Deakins in Birmingham, Ala.
While the EEOC has acknowledged nonbinary employees by allowing comments on the EEO-1 reports, this isn’t the same as fully and accurately including nonbinary employees in the actual data collection, as California’s Department of Fair Employment and Housing does for its pay data reports, he added. “Being included in the EEO-1 data collection would add increased legitimacy to the nonbinary gender category,” he said.
For now, “many employers are hesitant to take any steps that raise their profile to the agency, and, instead, they just visually identify employees as male or female, consistent with the EEO-1 format and as permitted by the regulatory requirements,” said Cheryl Behymer, an attorney with Fisher Phillips in Columbia, S.C.