Non-Binary Employees and Component 2 of the EEO-1 Report

Poyner Spruill LLP

Poyner Spruill LLP

If your company employs 100 or more employees or has 50 or more employees and a federal contract of $50,000 or more, the deadline to file your employee pay information with the federal government is the end of this month.[1]  Hopefully, if your company falls in either of these categories, you filed your EEO-1 employee report on or before May 31, 2019.  The Component 2 report, a mandatory second EEO-1 filing containing different information from the May 31, 2019 report, must be filed on or before September 30, 2019.  It requires covered employers to collect, organize and submit detailed compensation data and hours worked information by gender, race/ethnicity and EEO-1 job category.

Late last month, the EEOC released new guidance making it a bit easier for employers to report employees who self-identify their gender as something other than “male” or “female.”  Historically, the EEOC has taken the position that an employer should use an employee’s self-reported gender and race/ethnicity, rather than the employer’s “best guess” or visual identification.  However, the structure of the report allowed only male or female as gender options.  Employers with employees who refused to use those two binary options were faced with difficulty when completing the EEO-1.  Now, however, the EEOC has clarified that with respect to gender, a company can use the comments box on the form to include information on employees who self-identify in a non-binary fashion.  The new FAQ says:

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”.

Importantly, the agency has not indicated that employers can use the comments box to report employees who refuse to self-identify as one of the EEOC’s designated race/ethnicity categories (White; Black or African American; Hispanic or Latino; American Indian or Alaska Native; Asian; and Native Hawaiian or Other Pacific Islander).  For now, if an employee refuses to self-identify race/ethnicity, the agency indicates that employers “may consult with employee-provided information when on-boarded or the employer may use visual observation.”

Further information on the Component 2 report can be found here:

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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