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How to Add Non-Binary Employees to EEO-1, Component 2

EEOC allows employees who don't identify themselves as male or female to be listed on the form.

Just when you thought it was safe for you to complete your EEO-1, Component 2 form in time for the Sept. 30 deadline, the Equal Employment Opportunity Commission has added a new wrinkle.

EEOC recently issued a new guidance to assist those employers filling out their EEO-1 reports who have non-binary employees—those individuals who choose not to identify as male or female—in their workforces. The commission earlier released advice on how to fill out the form for employers who have been involved in corporate mergers, acquisitions and spin-offs.

In regard to the newest advice, some readers may be asking, what are non-binary people? Basically, it is anyone who says they are non-binary. Some of them are transgender but are not fully transitioning to a different gender through medical treatments and operations. Others have simply chosen to call themselves non-binary because they see themselves as being “gender fluid.” The definition also applies to those with fluctuating gay or bisexual identities.

All of this stems from an ideological theory that recently became prevalent. It asserts gender is not determined by biology but is just a social construct, and as a result can be self-chosen. A dozen states recognize non-binary options on driver licenses (allowing the driver to use “X” instead of “M” or “F”)—and in some cases, birth certificates as well. They are Arkansas, California, Colorado, Indiana, Maine, Maryland, Minnesota, Nevada, Oregon, Utah, Washington State, and Washington DC.

Activists also are lobbying for non-binary identifications on U.S. passports, something that is already allowed by some countries. Several of the 2020 Democrat Party presidential candidates have promised to support the federal recognition of a third-gender option on identification documents if they are elected.

In the EEOC’s most recently announced guidance, it said that employers 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, prefaced with the phrase “Additional Employee Data.”

Here is an 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.”

“In other words, you are now permitted (but not required) to add additional information in the comment dialogue box on the electronic EEO-1 report portal to explain if any of your workers identify as non-binary,” explain attorneys Cheryl Behymer and Sheila Willis of the law firm Fisher Phillips.

What to Keep in Mind

Behymer and Willis also offer some suggestions how employers can make sure they stay compliant:

Keep things simple. Don’t use extraneous detail when providing this information; don’t offer any narrative above and beyond what the agency has requested. Use the above text example, which was provided by the EEOC, as a template and don’t veer beyond that, they stress.

Don’t feel obligated to inspect your workforce and attempt to identify those who are non-binary. This guidance informs you how to report those who have already notified you that they identify in this manner (either expressly or through government-issued identification), but it doesn’t require you to conduct a fact-finding mission.

However, if you want to collect information for internal demographic purposes, you may consider asking a question along the lines of “how would you describe your gender identity?” and provide options beyond “male” and “female.” You could offer additional boxes such as “non-binary” or “prefer not to say.” Or, as some states do, you could permit individuals to choose “X” for gender on their demographic forms instead of simply “M” or “F,” the lawyers suggest.

Mandated by a federal district court decision earlier this year, the EEO-1, Component 2 form requires that employers collect extensive employment data organized by 12 pay bands that range in salary from about $19,000 to more than $208,000 a year, divided across 10 job categories.

This information then must be divided by the same racial, ethnic and gender groupings that employers previously have used when submitting demographic data in earlier EEO-1 forms that were in use before changes were made by the Obama-era EEOC that were reversed by the Trump-era commission, only to be reversed again by the judge.

All U.S. employers with 100 or more employees, as well as federal contractors and subcontractors who employ 50 or more workers, must supply aggregated data for 2017 and 2018 regarding the pay and hours employees worked. Employers are required to submit a report for employee pay data applicable to 2017 by the same Sept. 30 deadline also imposed for reporting the final installment of the 2018 data.

EEOC expects this data to be drawn from one single payroll period of their choosing that occurred between Oct. 1 and Dec. 31 of each of the reporting years. Employers are required to submit Component 2 if they had 100 or more employees during both of these workforce snapshot periods (50 for federal contractors and subcontractors).

Additional questions about the EEO-1 Form to contact the University of Chicago’s National Opinion Research Center (NORC) HelpDesk. (NORC is assembling and analyzing the data for EEOC). The center can be contacted toll‑free at 877-324‑6214 or by email at [email protected]. Additional information and advice is available from the EEOC at: https://eeoccomp2.norc.org/info. The commission also is offering the answers to employers’ frequently asked questions at: https://eeoccomp2.norc.org/faq.

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