The OFCCP has quietly issued guidance in the form of a “Frequently Asked Question” (FAQ) regarding how federal contractor employers should handle reporting employees who self-identify in something other than the binary sex options for AAP purposes. While the guidance is certainly a step in the right direction, BCGi recommends that contractors not make any changes to their AAP reporting just yet.

Federal contractors are still required to annually report on the demographics of their workforce through the EEO-1 reporting scheme (though the 2019 EEO-1 reports have been delayed). And while the EEOC did provide updated guidance for reporting non-binary employees on the now defunct “Component 2” compensation report, the agency has yet to issue similar guidance for the surviving Component 1. As a result, contractors are still required to report non-binary employees in one of the two binary options for EEO-1 purposes.

Logistically, it should be easier for federal contractors to use the same sex ID information for AAP purposes. Attempting to rely on certain data for one purpose and different data for another is likely to introduce errors into one or both. And although there should be disconnects between EEO-1 and AAP reports, adding more disconnects is likely to just lead to more frustrating conversations in OFCCP compliance reviews.

Furthermore, the OFCCP’s guidance allows contractors to exclude non-binary employees from “the gender-based analyses required by OFCCP’s regulations.” However, contractors must still “include” such employees in their AAPs. How? The agency is silent there, but likely the same way the agency pushes contractors to report applicants with “unknown” sex or race/ethnicity and/or the way contractors are required to annotate the Workforce and Job Group Analyses to indicate employees who report in/out of the plan. In other words, by overhauling all of the required AAP reports and analyses.

While an overhaul of OFCCP-required reporting is likely necessary, contractors should be wary of making major changes based on sub-regulatory guidance that does not have the force and effect of law, and that can be changed on a whim. Vendors will likely treat such changes as a customization requiring additional fees unless and until the OFCCP’s regulations are officially updated (a relatively lengthy process that, to our knowledge, has not yet even begun).

So although we applaud the OFCCP in taking an important step forward, we have to recommend against making any changes to current AAP reports and analyses. Fingers crossed that the EEOC will issue compatible guidance regarding the EEO-1 report and both agencies will follow-through with official updates to their respective requirements. Until then, making any changes now is likely to just lead to headaches and heartbreak.