Should the EEOC Collect EEO-1 Data on LGBTQ Status?

The Equal Employment Opportunity Commission (EEOC) collects data each year on the EEO-1 survey about the number of women and minorities certain companies employ. This information supports civil rights enforcement efforts and helps identify employment patterns, according to the agency.

So should the EEOC collect data on sexual orientation and gender identity now that the U.S. Supreme Court has ruled that workers are protected from discrimination based on lesbian, gay, bisexual, transgender and queer (LGBTQ) status?

Employment attorneys said there may be better ways to collect and analyze workplace data to support the LGBTQ community.

Addressing Inequities

"Studies have shown that transgender discrimination in equal pay is a major issue," said Janell Stanton, an attorney with Wagner, Falconer and Judd in Minneapolis and a member of the SHRM LegalNetwork, which provides affordable legal help to small businesses.

For instance, in a National LGBTQ Task Force survey on transgender pay equity, transgender respondents were four times more likely than the general population to report a household income of less than $10,000 per year.

"Gathering this data is clearly important in rooting out pay inequities, but that onus should not fall on the employer who is ill-equipped to handle gathering this type of information," Stanton said.

There are many different classifications of sexual orientation and gender identity, and they tend to be very fluid. "While this is not unlike race and gender, adding more categories to a form that is already widely criticized for forcing employees into too narrow of categories seems more likely to muddy the waters of pay disparities rather than clarify it," she noted.

Jim Paretti, an attorney with Littler in Washington, D.C., said the EEO-1 survey is a useful tool "in some limited instances."

The EEOC may want to issue a request for information to see what the public says about adding EEO-1 categories. "But there's a lot of workforce data the EEOC doesn't collect," he observed.

The EEOC is responsible for enforcing federal employment laws, including Title VII of the Civil Rights Act of 1964, which prohibits employers with at least 15 employees from discriminating against job applicants and employees based on national origin, race, color, religion and sex (including sexual orientation and gender identity). But the EEO-1 survey focuses on the number of employees who work for a business, sorted by 10 job categories, race/ethnicity and gender.

Businesses with at least 100 employees and some federal contractors with at least 50 employees must submit an EEO-1 form each year. The EEOC and the Office of Federal Contract Compliance Programs (OFCCP) say they use this information "to support civil rights enforcement and to analyze employment patterns, such as the representation of women and minorities within companies, industries or regions."

The EEOC also collected pay data based on these categories on Component 2 of the EEO-1 form for 2017 and 2018 but decided not to collect this information moving forward. The agency is currently studying whether the pay data collected on that form is useful to the EEOC and the OFCCP.

Voluntary Self-Identification

Employers are required to give employees the opportunity to voluntarily self-identify EEO-1 information. "Self-identification is the preferred method of identifying the race and ethnic information necessary for the EEO-1 report," according to the EEOC.

In years past, the agency has required employers to classify each employee as either "male" or "female" with no option for "other" or "neither" or "nonbinary."

"This has left some employers feeling confused and uncertain on how to proceed, fearing either offending one or more of their workers or not fully complying with a government obligation," noted Cheryl Behymer and Sheila Willis, attorneys with Fisher Phillips in Columbia, S.C., in a joint statement.

In Aug. 2019, the EEOC provided guidance for employers on reporting information for employees who identify as nonbinary. However, Behymer noted that the EEOC offered the guidance as part of the Component 2 EEO-1 report, which was discontinued. As of this writing, employers once again have an option of identifying employees only as "male" or "female," she said.

Adding an option to the form for nonbinary employees who don't identify as male or female may be straightforward, but there are some issues that will arise if workers are asked to self-identify as LGBTQ, particularly for workers who don't openly share that information.

Stanton noted that adding a category for LGBTQ status would put employees in a position of having to disclose their sexual orientation or gender identity to their employer when that information may not yet be public and invades an employee's privacy rights.

Furthermore, the EEOC currently requires employers to provide EEO-1 data even when employees have refused a voluntary self-identification, by either consulting other employment-related documents or by a visual identification. "If that same requirement were attached to collection of sexual-orientation and gender-identity data, employers would be forced to resort to a visual identification, which could result in employee relations issues related to this sensitive topic," Behymer explained.

HR shouldn't be put in the position to guess, Paretti said, and an inaccurate count may be worse than no count when analyzing workplace data.

Alternative Solutions

Stanton thinks nonprofit organizations may be more properly equipped to collect and study pay disparities based on sexual orientation and gender identity.

"There is no risk for an employee to face increased discrimination or trauma for having to disclose this information to their employer," she said. "And these organizations are much better equipped to conduct these studies, are staffed with statisticians and other mathematical theory experts, and specialize in addressing these types of societal issues."

Employers can create a more inclusive environment for LGBTQ employees, she said, by:

• Encouraging workers to include their preferred pronouns in e-mail signatures.
• Ensuring diversity at all levels of the organization.
• Modifying gender-based dress-code policies.
  
• Providing unisex bathrooms in the workplace.
• Conducting training that is up-to-date and taught by a qualified professional.

"The message has to come from the top and be sincere," Paretti said.