August 19, 2019


For those employers who must file an EEO-1 report, you know all too well very the limited options in choosing an employee’s gender when an employee does not self-report.  You can choose male or you can choose female.  But what is an employer to do when an employee is identifies as nonbinary since there is no option to choose other or unknown.  First, the EEOC states that an employer may use employment records or employer observations of the employee to determine whether to identify the employee as either male or female on the EEO-1 report.  However, recent guidance from the EEOC on nonbinary employees goes even further.  The EEOC  has issued a new FAQ stating that employers can include “employee counts and labor hours for nonbinary gender employees by job category and pay band and racial group in the comment box on the Certification Page.”  So while the EEOC has yet to provide us with an updated form with more gender options, there is now at least the chance to provide a more complete narrative response in the comments section. 

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