Nonbinary Employees: Invisible on Many EEO-1 Forms

There are many reasons why employers may choose not to report their nonbinary employees on the EEO-1 form, which is due Dec. 5. These reasons include—according to Denise Visconti, an attorney with Littler in San Diego—that they aren’t required to, it’s easier for an employer not to do so or the employer doesn’t recognize their nonbinary employees’ gender.

But for employee relations reasons, employers might want to identify employees as nonbinary not only on the EEO-1 form, but also on other forms and policies. Otherwise, nonbinary workers might feel marginalized, hurting morale, retention and performance.

The U.S. Equal Employment Opportunity Commission’s (EEOC’s) recent frequently asked questions (FAQs) on the EEO-1 form stated that reporting nonbinary employees remains optional.

But filling out the form is required. All employers with 100 or more U.S. employees and federal contractors with at least 50 U.S. employees must submit an EEO-1 report every year. The form has just two boxes for employers to indicate the gender of each of their employees. Nonbinary isn’t an option.

Nonbinary employees don’t identify as exclusively male or female, said Helen Friedman, a clinical psychologist in St. Louis. “They may identify in various ways—for example, as both genders, neither gender, between the two genders, ungendered or genderfluid,” she said.

What are employers’ options for reporting their employees?

Ambiguities for Employers

Data on nonbinary employees can be entered in the form’s comments section, though that may be unwieldy for many large employers, Visconti said.

“Think of an employer that has 500 establishments. It would be extremely time-consuming to have to manually input a comment on every establishment report [that] contains nonbinary reporting,” said Laura Mitchell, an attorney with Jackson Lewis in Denver.

Many states legally recognize nonbinary individuals, issue driver’s licenses and state IDs with nonbinary gender markers on them, and require employers to recognize employees’ identified gender—creating ambiguities for employers because recognizing nonbinary workers on the EEO-1 report remains voluntary, Visconti said.

However, without a box for nonbinary employees on the EEO-1 form, most employers aren’t using the comments field to report them, said Brandon Dixon, an attorney with Seyfarth in Chicago.

The employee counts on employers’ EEO-1 reports often appear off because the total number doesn’t reflect any nonbinary employees, Visconti said.

Form ‘Erases’ Nonbinary Employees

When they are not recognized, nonbinary employees feel excluded, unwelcome and uncounted, Friedman said.

Workplace challenges for nonbinary employees “include being misgendered as male or female, being addressed by the wrong pronouns or name, or assumed to be gay,” she said. “Nonbinary employees are not homogenous. Asking for preferred pronouns is a simple way to show respect. Nonbinary individuals can have any variety of sexual orientations.”

Friedman said the fact that the EEO-1 form doesn’t have a box to identify nonbinary employees is problematic for reporting accurately and establishing a culture of inclusion, equity and diversity.

“By excluding nonbinary employees in the main section of the form and making reporting their demographic data in the comments section voluntary, it not only ‘others’ them, but also effectively erases them,” she said. “Including a box for nonbinary in the main section would signal equality for all genders.”

In addition, it remains difficult for employers to report job classification, gender and race/ethnicity information for their nonbinary workers, said Joanna Colosimo, SHRM-SCP, vice president of workforce equity and compliance strategy and principal consultant with DCI Consulting Group in Washington, D.C.  

Company Policy Changes Needed

Even employers that recognize the gender identity of their nonbinary employees continue to maintain gender-specific policies and practices that contribute to the negative employment experience of nonbinary people, Visconti said.

Such policies include:

• Preventing employees from designating a nonbinary gender marker or pronoun in an employer’s human resource information system or other electronic systems.
• Using binary, gender-specific language.
• Maintaining forms, applications, sign-in sheets and other similar documents that contain only binary gender options.
• Requiring employees to choose a binary gender marker to procure health care coverage.

As an employee relations matter, it’s “very meaningful to gender-nonbinary individuals to be given the option to self-disclose their identity,” said Sam Schwartz-Fenwick, an attorney with Seyfarth in Chicago. One way is to let employees have the option of adding their pronouns to their email signature block, he said.

“Given the massive increase in current workers who identify as nonbinary, allowing them the option of disclosing themselves—and then reporting it—can send a strong signal of corporate values of inclusion,” he said. “That, in turn, can yield strong results in employee retention and performance.”

Moreover, such steps are mandatory in some jurisdictions, noted Michelle Phillips, an attorney with Jackson Lewis in White Plains, N.Y.

The New York City Human Rights Administrative Code states, “Covered entities may avoid violations of the NYCHRL [New York City Human Rights Law] by creating a policy of asking everyone what their gender pronouns are so that no person is singled out for such questions and by updating their systems, intake forms, or other questionnaires to allow all people to self-identify their name and gender. Covered entities should not limit the options for identification to male and female only.”

Nonbinary employees don’t usually object to being asked to voluntarily disclose their status, Schwartz-Fenwick said. “The more common experience is to feel invisible or misgendered at work.”

Change Takes Time

Changing the form to add a nonbinary box would take time because the EEO-1 form is a data collection form approved by the Office of Management and Budget (OMB).

“To alter the data collection section of the form, the EEOC would have to publish a notice in the Federal Register of the change, provide an opportunity for notice and comment, and ultimately obtain approval from the OMB for the change to the form,” Mitchell said. “Thus, this is not a simple change for the EEOC to make.”

Illinois and California—two states with pay data reporting requirements—have a nonbinary option on their state forms, Dixon said. This “shows that it can be done.”