• How Do You Report Non-Binary Employees to the EEOC?
  • November 6, 2017 | Authors: Steven B. Loeb; John T. Andrishok; Jerry L. Stovall; Leo C. Hamilton; Melissa M. Shirley; Sunny Mayhall West; Jacob E. Roussel; Rachael Jeanfreau; E. Fredrick Preis; Rachael M. Coe; Eve B. Masinter; Murphy J. Foster
  • Law Firms: Breazeale, Sachse & Wilson, L.L.P. - Baton Rouge Office; Breazeale, Sachse & Wilson, L.L.P. - New Orleans Office
  • Workforce data is reported to the federal government annually by an estimated 67,000 employers. The current forms have two options for gender: male and female. This has recently become a dilemma for some employers who have employees that are non-binary, or those who do not identify as either male or female. Some state and local governments like Oregon and the District of Columbia are taking steps to recognize these employees. They became the first two jurisdictions to offer a non-binary option on driver's licenses. People can choose either “X,” “M,” or “F.” New York and California also have legislation pending that would offer non-binary classifications on state identity documents. It is unclear how many non-binary employees there are in the U.S. workforce according to a spokesman for the National Center for Transgender Equality, but employers should keep an eye on developments in the area of surveying workers on their gender for data reports to the government. The current EEO-1 Report does not offer a non-binary option. The EEO-1 Report is required by the EEOC for certain employers and must be filed every year. It is unlikely any guidance on reporting non-binary employees will be forthcoming from the current administration, but employers should pay attention to changes in their state and local governments to avoid reporting issues down the road. Until the EEOC offers a non-binary option, employers should continue to give workers the opportunity to self-identify their gender, and if an employee declines to self-identify as either male or female, the company is currently allowed to conduct a visual observation of an employee to report gender, race or other categories required on the EEO-1.