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

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 (https://eeoccomp2.norc.org/Faq).  Many employers are struggling with its completion because of the increase in employees identifying themselves as nonbinary. Nonbinary is a broad term which simply 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 at https://eeoccomp2.norc.org/.

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

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

Small businesses or employers with 100 or more employees, or 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. This data is used by the EEOC to analyze employment patterns and support civil rights enforcement for women and minorities. The form is formatted into 2 components. Component 1 which was due May 31st in 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 how to address 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’ 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 short weeks before the EEO-1 form deadline, and most likely, well after many employers have already filed their reports?

Earlier this month, the EEOC announced that it will not collect EEO-1 Component 2 data in the future. The data required 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 the years 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.

Sources

https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/eeo-1-pay-data-.aspx

https://www.shrm.org/ResourcesAndTools/tools-and-samples/exreq/Pages/Details.aspx?erid=1085

https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/pages/employers-should-review-eeo-1-guidance-before-pay-data-reporting-deadline.aspx


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