When Workers Aren’t Male or Female, EEOC Reporting Is Complex

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By Jay-Anne B. Casuga

Roughly 67,000 employers annually report workforce data based on gender to the federal government, but what should they do when an employee doesn’t identify as male or female?

Non-binary individuals don’t fall within either the male or the female category, and some state and local governments, such as Oregon and the District of Columbia, have taken steps toward recognizing them.

Earlier this year, they became the first two jurisdictions in the nation to offer non-binary classifications on driver’s licenses, marked as an “X” instead of an “M” or “F.” Bills that would offer non-binary classifications on state identity documents are pending in New York and California.

So far there aren’t definitive numbers on how many people in the U.S. workforce identify as non-binary, a spokesman for the National Center for Transgender Equality told Bloomberg BNA. But management attorneys said that employers should stay on top of developments in the emerging area of surveying workers on their gender identities and potentially reporting that data to the government.

A non-binary option doesn’t exist on the current EEO-1 Report, an annual survey that certain employers must file every year with the Equal Employment Opportunity Commission. A controversial pay data reporting component of the form was suspended by the Trump administration last month, but the other information required, including gender data, is still due March 31, 2018.

The commission to date hasn’t issued any guidance relating to gender non-binary employees and how best to report them on the EEO-1, an agency spokeswoman told Bloomberg BNA. She declined to comment on whether the EEOC would consider issuing such guidance in the future or revising the report to include a non-binary option.

Employers “would welcome additional guidance from the EEOC on this issue,” said Cara Y. Crotty, a partner with Constangy, Brooks, Smith & Prophete in Columbia, S.C.

However, agency guidance specifically on non-binary employee data collection and reporting is unlikely to be forthcoming from the current administration.

“There is a general reluctance to enhance LGBT protections,” said Michelle E. Phillips, a principal at Jackson Lewis in White Plains, N.Y. “It is more likely that the current administration will remain silent on this issue.”

Current Report Asks for Male, Female Data

Private employers with more than 100 employees, and government contractors with more than 50, must report all workers as either male or female on the EEO-1 Report. So what should they do when they have non-binary workers?

Until the EEOC decides to provide a non-binary option, employers should continue to provide workers with the opportunity to self-identify their gender, Crotty said.

If an employee declines to self-identify as male or female, a company is still required to report that worker’s gender.

Businesses are allowed under current agency guidance to conduct a visual observation of an employee for gender, race, or other categories reported on the EEO-1, Phillips said.

Crotty added that employers would record and report their “best estimate” of the person’s biological sex based on that observation.

However, there’s always a chance that an employer relying on visual observation might make a mistake about an employee’s gender, the attorneys said.

“Visual observation is to be made in good faith,” Phillips said. “Unless an employer was making a visual observation in some obvious discriminatory fashion, it is unlikely that the EEOC would take action against an employer on that basis.”

Consider Adding Supplement

The federal government doesn’t require employers to collect worker data based on gender identity. As a result, many employers aren’t surveying their employees on the issue, the attorneys said.

But some businesses, such as Goldman Sachs and others, have begun to ask applicants and employees to voluntarily self-identify their gender identities.

“Many times corporate America moves faster than the government in effecting change, and I think we will begin to see more and more employers offering employees alternative self-identification options,” Crotty said.

A business that internally collects gender identity information volunteered by employees could consider attaching supplemental information on that data with its EEO-1 Report, Phillips said.

“I don’t think it’s typical,” she said. “I don’t see a lot of companies doing it.”

But a supplement is a possible way for an employer to highlight its corporate values and diversity, Phillips said.

Of course, employers may be wary of providing more employment data to the government than what’s legally required.

“This is still an area where employers tread lightly for fear of appearing too inquisitive about employees’ personal lives or, even worse, that such questions could be used against them in a subsequent lawsuit for discrimination on the basis of gender identity,” Crotty said. “Thus, I generally recommend that employers’ self-identification options mirror the government reporting forms to avoid unnecessary inconsistencies.”

To contact the reporter on this story: Jay-Anne B. Casuga in Washington at jcasuga@bna.com

To contact the editor responsible for this story: Terence Hyland at thyland@bna.com

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