The U.S. Equal Employment Opportunity Commission (EEOC) does not require employers to report employees as nonbinary on the EEO-1 form. While the form contains separate boxes for employers to designate male and female employees, there is no such box to designate an employee as nonbinary. However, the EEOC specifies that employers should use the comments section on the EEO-1 form to report these employees if they choose to do so.
This type of reporting applies when an employee voluntarily self-identifies as a sex that differs from the sex recorded in the employee’s employment record. In that instance, the EEOC directs employers to report the employee’s self-identified sex as opposed to the sex reflected on the employee’s employment record. However, suppose an employer chooses not to report employees who self-identify as nonbinary. In that case, the employer should assign those employees either a female or male gender according to their employment records and include them with all other employees in the report.
Where to Report Nonbinary Employees on the EEO-1 Form
Employers who submit the Single-Establishment Report can enter data for nonbinary employees in the “Certification Comments” section.
Employers with multiple establishments can report data for nonbinary employees working in or reporting to the headquarters location in the “Headquarters Report” comments section. These employers can report data for nonbinary employees working at each non-headquarters establishment in the “Establishment-Level Report(s)” comment section.
How to Report Nonbinary Employees on the EEO-1 Form
The EEOC directs employers to report nonbinary employees in the applicable comment section of the form by titling the entry “Additional Nonbinary Employee Data.” The employee then should follow the title with the number of nonbinary employees, their job category, and their race/ethnicity.
When reporting employees as nonbinary, employers should not include those employees in the male/female categories or any other categories, such as job categories or race/ethnicity categories, within the reports. As a result, the employer’s total number of employees on the reports will not include nonbinary employees.
Nonetheless, when an employer determines whether they are subject to EEOC reporting requirements, they must count the nonbinary employees in their employee total. For instance, non-federal contractor employers must file EEO-1 forms with the EEOC if they have 100 or more employees. If one such employer has 100 total employees, five of whom are nonbinary, the employer must file an EEO-1 form. Nonetheless, the employer’s “Single Establishment Employer Report” will show only 95 employees, plus five nonbinary employees listed in the comments section.
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