Reporting Gender Non-Binary Employees to the Equal Employment Opportunity Commission (EEOC)

Over the past half-century, the Equal Employment Opportunity Commission (EEOC) has required certain employers to submit data regarding the number of their employees categorized by race/ethnicity, gender, and job category. After some legal back and forth occurring in the US District Court for the District of Columbia, the collection of pay data has been added to the data collection requirements of the EEOC. Here are some quick answers to burning questions regarding how this change impacts business owners.

What About Reporting Information for Non-Binary Gender Employees?

Companies may elect to collect gender information beyond the male/female binary. If your company wishes to collect and report non-binary gender data for the EEO-1 Component 2 data collection report, you may do so. Data for non-binary gender employee reporting should be added in the comment box on the Certification Page. Non-binary gender data should be prefaced with the phrase “Additional Employee Data:”. An example for how this information should be formatted is provided here.

The Lynch Law Firm recommends you do track your gender non-binary employees and consult with your Employee Resource Group (ERG) regarding the best way to do this.  Collecting reportable data analogous to what is collected for gender binary employees provides great insight for progressive employers. 

Who is Required to File Component 2 Compensation Data?

Employers, including federal contractors, must submit Component 2 compensation data for 2017 if they had 100 or more employees during the 2017 workforce snapshot period (this is an employer-selected pay period between October 1 and December 31 of the reporting year). This also applies to employers during the 2018 fiscal year with the same requirements mentioned above.

Single-establishment employers (employers with one establishment of business in a single location) are required to complete one Component 2 EEO-1 form. Multi-establishment employers (those with multiple locations of business) are required to complete a Consolidated Report of their total compensation data across all establishments as well as a Component 2 EEO-1 form for each establishment with 50 or more employees. For establishments with less than 50 employees, the employer is required to file an establishment report similar to those required for Component 1.

What Information is Included in Component 2 Compensation Data?

Component 2 compensation data includes W-2 wage information and hours worked categorized by race/ethnicity, gender (companies which choose to report non-binary gender employee data may do so—information on how to do this is provided in the section below), and job category of each employee. Employees are placed into one of twelve EEO-1 pay bands using pay data captured from W-2 earnings in Box 1 (Wages, Tips, and Other Compensation.) This includes all full-time and part-time employees who were employed during the workforce snapshot period. Those employed during the workforce snapshot period must be included regardless of their current state of employment within the organization.

When is the Component 2 Compensation Data Filing Deadline?

Since the court’s decision in National Women’s Law Center, et al., v. Office of Management and Budget, et al., Civil Action No. 17-cv-2458 (D.D.C.), EEO-1 filers must submit Component 2 data for calendar year 2017 and 2018 by September 30, 2019. Compensation data for both 2017 and 2018 is required for employers who met the filing requirements for those years.

How Will Component 2 Compensation Data Filing Work Going Forward?

The Department of Justice (DOJ) has filed a notice of appeal of the judicial orders concerning EEOC Component 2 data filing to the United States Court of Appeals for the District of Columbia Circuit. This means there remains a possibility for a stay to be issued on these requirements. Regardless of the outcome of this or future appeals, it would be wise for business owners to ensure they are prepared to report all data currently required by the EEOC.

Where Can I Get More Information Regarding Component 2 Compensation Data?

The EEOC website has online forms in addition to detailed information regarding Component 1 and Component 2 EEO-1 survey requirements. They have also put together a page for Component 2 FAQ. You can contact us with any questions you might have.

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