How to Accommodate ‘Gender-Nonbinary’ Individuals—Neither Men nor Women

New honorific, Mx., and pronoun, zhe, might need to be used

Allen Smith, J.D. By Allen Smith, J.D. February 16, 2018
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​The number of people identifying as "gender-nonbinary"—meaning, as neither male nor female—is on the rise, shifting the diversity conversation and raising new compliance challenges. California and New York City have specific protections that prohibit discrimination against gender-nonbinary individuals. Laws in other jurisdictions are less clear, as is the issue of how to handle certain workforce reporting responsibilities. The EEO-1 Report that private employers must file, for example, requires a male or female designation for each employee.

Just how many gender-nonbinary people are in the United States is uncertain. A 2016 study by the Williams Institute, a think tank at UCLA Law School, estimated that there are 1.4 million transgender and gender-nonbinary adults in the United States. Among transgender individuals, more than one-third (35 percent) would prefer not to be assigned either a male or female gender designation, according to the National Center for Transgender Equality publication The Report from the 2015 U.S. Transgender Survey. The survey is the largest one of transgender people, with 27,715 respondents from all 50 states.

People who have nonbinary genders may be androgynous or intergender, may have a neutral or unrecognized gender identity, may have multiple gender identities, may have a gender identity that varies over time, may have a partial connection to a gender identity, may be intersex, or may have a culturally specific gender identity that exists only within that culture, notes Gender Wiki.

"The number of persons who consider themselves [gender-]nonbinary is almost certain to increase," said Bill Osterndorf, president and founder of HR Analytical Services in Milwaukee.

Young people are more likely to identify outside traditional notions of gender and sexual orientation binaries such as gay/straight and man/woman, according to a 2017 study by GLAAD, a civil rights organization that works on behalf of the lesbian, gay, bisexual, transgender and queer (LGBTQ) communities.

Compliance Issues

California prohibits discrimination based on gender, which encompasses gender-nonbinary people in that state, noted Michelle Phillips, an attorney with Jackson Lewis in White Plains, N.Y.

The New York City Commission on Human Rights takes the position that gender-nonconforming employees are covered by the city's statutory protections, she added.

Mark Phillis, an attorney with Littler in Pittsburgh, and Denise Visconti, an attorney with Littler in San Diego, wrote in an e-mail that Title VII of the Civil Rights Act of 1964 has been interpreted by several federal appeals courts to prohibit discrimination based on gender identity or expression in cases involving transgender people. Anti-discrimination laws or regulations in 20 states and the District of Columbia also prohibit discrimination based on an individual's gender identity or expression. Executive Order 13672 similarly provides the same prohibition for federal contractors.

But Michelle Phillips said she is not aware of jurisdictions other than California and New York City that grant protections based on being gender-nonbinary. "Many gender-fluid employees are afraid of coming out as gender-nonbinary at work," she noted.

Training and Policy Changes

Phillips recommended that employers cover all aspects of LGBTQ and gender-nonbinary designations during annual harassment prevention training.

Gender-fluid individuals often are mocked, bullied, and physically and verbally harassed in the workplace, Phillis and Visconti noted.

In addition to providing training, employers should review equal employment and anti-harassment policies to include protections for gender-nonconforming people, Michelle Phillips said. "This action will send a message to staff that the employer recognizes gender fluidity and promotes inclusion and diversity of many different types of people."

Cheryl Behymer, an attorney with Fisher Phillips in Columbia, S.C., said progressive employers may want to consider modifying their HR forms to allow a gender-nonbinary designation in some circumstances. Most forms include only male or female choices, pressuring a gender-fluid employee into making a selection that the employee does not want to choose, she added.

Phillips noted that a transgender or gender-nonbinary employee may want to be referred to as he, she, they or zhe—a gender-neutral pronoun that is pronounced "zay."

Some gender-nonbinary people prefer the title Mx. instead of Mr. or Ms., Phillis and Visconti observed.

"It should be the decision of employees to inform the employer as to their preferred personal pronoun and name," Michelle Phillips said. "Once the employee self-identifies as gender-nonconforming, it is the responsibility of the employer to honor that request."

EEO-1 Reporting

Nevertheless, gender-nonbinary status is a challenge for EEO-1 reporting, as the EEO-1 form has no place for employees who do not report as either male or female, Osterndorf said. The Office of Federal Contract Compliance Programs' data-reporting regulations also do not recognize gender-fluid employees, he added.

Employers with at least 100 employees must file the EEO-1 form annually with the Equal Employment Opportunity Commission (EEOC), noting racial and gender composition of the workforce by specific job categories.

[SHRM members-only HR Q&A: Can you explain the filing requirements for the EEO-1 form?]

The EEOC has not issued any guidance on how to best report gender-nonbinary employees on the EEO-1 form. Until the agency provides a gender-fluid option, employers should let workers self-identify their gender, Phillips said.

But if the worker declines to self-identify as male or female, a company still must report a gender for that person. HR may conduct a visual observation of the employee for gender and report in good faith. "Unless an employer was making a visual observation in some obviously discriminatory fashion, it is unlikely that the EEOC would take action against an employer on that basis," she said.

 

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