EEOC Considers Tracking Nonbinary Employee Data in the Workforce

Allen Smith, J.D. By Allen Smith, J.D. March 16, 2022

​The U.S. Equal Employment Opportunity Commission (EEOC) is considering tracking nonbinary employee data in the workforce, joining a trend in other federal enforcement agencies, such as the Office of Federal Contract Compliance Programs (OFCCP). We've gathered articles on the news from SHRM Online and other media outlets.

Revisions to EEO-1 Form Requires Certain Procedural Steps

People who are nonbinary don't identify exclusively as male or female. While the EEOC is exploring ways to collect nonbinary gender data from employers—the first time the agency has signaled such an interest—the agency doesn't have authorization to require employers to collect that information in EEO-1 reports. Revisions to the information collected on the EEO-1 form require a vote of the full commission followed by approval of an information collection request by the Office of Budget and Management. The annual EEO-1 form 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 OFCCP also is considering options to let federal contractor employees self-identify as nonbinary.

(Bloomberg) and (SHRM Online)

Supreme Court Says Federal Anti-Bias Law Protects LGBTQ Workers

A federal employment law—Title VII of the Civil Rights Act of 1964—shields workers from discrimination based on sexual orientation and gender identity, according to a landmark U.S. Supreme Court ruling in 2020. The high court found that an employer that fires an individual merely for being gay or transgender violates Title VII. "An individual's homosexuality or transgender status is not relevant to employment decisions," wrote Justice Neil Gorsuch for the court. "That's because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex."
(SHRM Online)


As more employees have identified their gender as nonbinary rather than male or female, employers have struggled to determine how to report these workers' gender on the EEO-1 form provided to the EEOC. The EEOC said in a 2019 FAQ that employers may report this information in a comments section of the form. But some experts think this won't solve the problem of not including a box designated for nonbinary individuals on the EEO-1 form.

(SHRM Online)

More Employee Handbooks Replace 'He' and 'She' with 'They'

Increasingly, companies are removing "he" and "she" from their employee handbooks and replacing them with gender-neutral pronouns, such as "they." The companies are doing this to make nonbinary individuals who do not identify as male or female feel included. The companies are also scrapping such gender-specific pronouns as "his," "hers," "him" and "her" in favor of "their" and "them." Many Millennials identify as nonbinary, said Denise Visconti, an attorney with Littler in San Diego.

(SHRM Online)

Using Employees' Preferred Gender Pronouns

While some nonbinary individuals identify as transgender, others don't. Some nonbinary individuals prefer to use pronouns other than he/him/his or she/her/hers, such as they/them/theirs or ze/hir. Their choice goes to the very core of their identity.

"Bias against nonbinary people often takes the form of disbelief, disregard and disrespect," said Michelle Phillips, an attorney with Jackson Lewis in White Plains, N.Y.

"I've seen a lot of managers and staff who are uncomfortable with the issue in general," she said. Some people still make discriminatory remarks about transgender and nonbinary people and think that it's acceptable. "It's not."

(HR Magazine)

Lawsuit Challenges Use of Nonbinary Language

A teacher in the Geary County, Kan., Schools Unified School District has sued the school district's board members, the superintendent and her middle school's principal over the use of nonbinary language. She alleged that the defendants violated her First Amendment rights by forcing her to use nonbinary language and implementing policies that breached her personal and religious beliefs. The teacher "believes that God created human beings as either male or female, that this sex is fixed in each person from the moment of conception, and that it cannot be changed, regardless of an individual person's feelings, desires or preferences," the complaint stated. The defendants declined to comment.

(The Washington Post)



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