Reporting Nonbinary Classifications To The EEOC: Guidance From A New FAQ

On August 15, 2019, the Equal Employment Opportunity Commission (EEOC) added a question and answer to its list of frequently asked questions (FAQs) addressing, among other things, a growing concern for many employers: how to report employees who identify as nonbinary in the EEO-1 Component 2 report. We have previously written on the conundrum facing employers with EEO-1 reporting and written affirmative action obligations and employees who have identified as nonbinary. Until this guidance was issued, there was not a permissible way for employers to report nonbinary employees in the EEO-1 report. Yet many employers with robust diversity and inclusion programs and those with employees in certain jurisdictions—such as Oregon; Washington, D.C.; California; and New York City, where nonbinary identification is allowed in local government documents—offer a nonbinary option for gender identification.