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EEOC Releases New FAQS for Reporting Nonbinary Individuals on The EEO-1 Form

#lynchlawfirm #lynchlaw #lynchpintoyoursucess #workplaceinvestigations#512law #austinattorney Oct. 2, 2019

EEOC Releases New FAQS for Reporting Nonbinary Individuals on The EEO-1 Form

New information from the EEOC on how to complete the EEO-1 form has been released. These instructions relate to the documentation small businesses and employers must provide the EEOC on or before September 30th, including data about employees who do not identify themselves exclusively as female or male. Many employers struggle with its completion because of the increase in employees identifying themselves as nonbinary. Nonbinary is a broad term that means a gender identity that is not exclusively male or female and includes agender, bigender, genderqueer, or intersex individuals. Recent updates to filing component2 of the EEO-1 form can be found on the EEO's website.

With the EEO-1 Form FAQS release, the EEOC informed employers to report this information in the provided remarks or comments section. However, many experts believe this won’t solve the issue of employers underreporting employees who do not identify as male or female. Nor will it dismiss the pressure employees have to check either gender category regardless of how they identify themselves.

What Is the EEO-1 Form for Employers and Small Businesses?

Small businesses or employers with 100 or more employees, federal contractors with 50 employees or more, and a contract worth $50,000 or more with the federal government must file Component 2 of the EEO-1 form. The EEOC uses this data to analyze employment patterns and support civil rights enforcement for women and minorities. The paper is formatted into two components. Component 1, due May 31st, 2019, requires the employer to provide the number of employees who work for them by job category, race, ethnicity, and sex. Component 2 asks employers to provide data on pay information and include the number of hours worked from each employee’s W-2 form according to race, ethnicity, and sex, due September 30th.

An Employer and Small Business Predicament

Employers found the predicament with the EEO-1 form was only compounded by the fact that an increasing number of states issue driver’s licenses and identifications with a nonbinary gender marker. In hindsight, the FAQS given by the EEOC do not address the EEO-1 form in its entirety. There is still the matter of handling the data required for Component 1 of the EEO-1 form. In addition, the issue of how employers should address or elicit the nonbinary designation from employees is never fully explained.

There is also the matter of privacy. While a box designating nonbinary as a selection is needed, providing specific information about an employee's gender, pay, job category, race, and total hours worked in the comments or remarks section can undermine an employee’s anonymity. How will listing nonbinary employees in the comments section allow data to be systemically analyzed? Or does providing this data within a separate section only single out individuals unnecessarily? How prepared are employers and small businesses to provide this information when it is made a requirement a few weeks before the EEO-1 form deadline and, most likely, after many employers have already filed their reports?

Earlier this month, the EEOC announced that it would not collect EEO-1 Component 2 data. This is because the necessary data for Component 2 focused on pay information according to job category, race, sex, and ethnicity. Yet, data for Component 2 of the EEO-1 form is still required for 2017 and 2018 and must be submitted on September 30th. The online filing system for EEO-1 Component 2 is accessible on the EEOC’s website.


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