Covered employers must file their EEO-1 Reports with the EEOC by September 30, 2019. This year will be the first year, however, that employers who must file EEO-1 Reports will have to produce information about their employees’ compensation and working hours. In the past, the EEOC has required employers to classify their employees as either “male” or “female” on the EEO-1 Report, with no other option available, such as “other” or “non-binary.” But an increasing number of states are allowing individuals to classify themselves as non-binary on government-issued identification forms, such as driver’s licenses. For example, a recent USA Today article reported that 10 states and D.C. now offer a non-binary gender option on state-issued IDs. As a result, some employers were concerned about how to report the gender of their employees who were self-identifying as non-binary on their EEO-1 Reports.

The EEOC recently answered that question in a FAQ release. The Employer’s Question was:

“Our company is now collecting gender beyond the male/female binary. We wish to report this for the EEO-1 Component 2 data collection. How do we report it?"

The EEOC’s Answer:

“Filers may report employee counts and labor hours for non-binary gender employees by job category and pay band and racial group in the comment box on the Certification Page, please preface this data with the phrase “Additional Employee Data.” For example, “Additional Employee Data: 1 non-binary gender employee working 2,040 hours in Job Category 4, Salary Pay Band 5, Race/ethnicity non-Hispanic White. 3 non-binary gender employees; combined work hours 5,775; in Job Category 5, Salary Pay Band 8; Race/ethnicity: Employee 1 – Non-Hispanic Black, Employee 2 – Hispanic, Employee 3 – Two or more races”.

Thus, employers may report information regarding their employees who self-identify as non-binary in the comment dialogue box on the electronic EEO-1 Report portal. If an employer chooses to utilize this new option, a few additional suggestions are in order: (1) Use the exact text offered by the EEOC as your model, and do not add any additional information; and (2) Employers do not need to seek to identify employees who are non-binary, as this guidance allows employers to use this method for reporting on employees who have notified their employers that they identify as non-binary.