The Equal Employment Opportunity Commission (EEOC) reported in March 2022 that it would be updating the voluntary self-identification questions that are part of the intake process for filing a charge of discrimination. On June 27, 2022, the EEOC announced that the intake process has been updated. Note that this gender self-identification change in the intake process does not require employers to do or change their self-identification forms at this time. This change comes in line with growing recognition that having only the option to select “male” or “female” is not likely representative of all gender identities and also as a result of Executive Order 14075. When someone registers online with the EEOC as part of the complaint filing process, there now is an option under salutation to select “Mx.”. Also, the voluntary demographic question related to gender has been updated through the online public portal used to submit inquiries regarding filing a charge of discrimination to allow for the selection of a nonbinary “X” gender.
How does this impact employers required to file the EEO-1 Annual Survey? At this point, the workforce data submitted to the agency only allows for the option to report “male” and “female”. Although the EEOC is reviewing nonbinary data collection, currently the Agency is allowing organizations to voluntarily report non-binary employees in a comment box on the certification page when you file your EEO-1 reports.
In the meantime, the U.S. Department of Labor, Office of Federal Contract Compliance Programs (OFCCP) held a virtual listening session on June 16, 2022 whereby organizations were given the opportunity to discuss gender non-binary identification. Currently, the OFCCP has addressed the collection of nonbinary applicants and employees through the Frequently Asked Questions on their website by stating “OFCCP has not mandated a particular method for a contractor to obtain information about a person’s gender. If an employee or applicant chooses to self-identify as non-binary, or as a gender other than male or female, the contractor must still include the individual in its AAP submission. However, the contractor may exclude that individual’s data from the gender-based analyses required by OFCCP’s regulations.” More information regarding whether the OFCCP will require federal contractors and subcontractors required to collect gender information from applicants and employees is expected to come in the near future as the number of states that legally allow nonbinary gender marker is increasing.
If you have questions, feel free to contact us at BCGi@Biddle.com.