If the EEOC wants to be more inclusive, advocates say they should start with the EEO-1

On Tuesday, the EEOC followed through on its promise to add a nonbinary “X” gender indicator option to federal discrimination charge intake forms.

While some LGBTQ+ workplace rights advocates think that’s great (really), they had hoped to see the federal agency take more action—specifically, by updating the EEO-1, an annual form that tracks the gender and race composition of a company’s workforce. As of now, that form only has two options for gender: “male” and “female.”

Critics say the categories are outdated and leave the 1.6% of American adults and at least 11% of LGBTQ adults who identify as nonbinary unaccounted for in DE&I reporting.

Refresh my memory: What’s the current policy? Private companies with 100 or more employees, and government contractors with 50 or more employees that meet certain criteria, must submit EEO-1 forms yearly to the EEOC, detailing demographic data by job category annually.

As Michelle E. Phillips, principal at Jackson Lewis PC, and founder of the firm’s affinity group OPAL (Out Professionals and Allies in Law), explained to HR Brew, the trouble lies in the categories.

Phillips said that typically, HR reports employees’ self-identified gender; however, if employees decline to self-identify, potentially because the binary options in front of them don’t match their gender expression, HR is tasked with visually IDing employees to complete the form.

Doing so is legal and compliant, and can feel morally icky fast.

Cassie Whitlock, head of HR for Bamboo HR, told HR Dive that the process can result in HR professionals accidentally misgendering employees.

“HR has this really unique work balance that they have to strike—legal and tax requirements that require us to identify people according to government registrations and social security numbers, and also, individuals, and how they want to be greeted and treated and known in the workspace,” Whitlock said in the HR Dive interview.

Of course, some companies do collect self-reported gender data that has a nonbinary option. These companies can report that data in the comment section of the EEO-1 form, flagged as “Additional Employee Data.” The data sits separate from the binary data; the preceding label marks it as what it currently is under the law: additional, not required.

Phillips calls it a “compromise” and “not a good one” at that.

“Imagine that your gender identity is reduced to being in a comment,” Phillips said.

What’s the hold up? Phillips rattled off examples of landmark EEOC cases that paved the way for expanding the interpretation of Title VII of the Civil Rights Act of 1964 to more inclusively protect workers, such as Macy v. Holder which, in 2012, established transgender employees’ right to work free from sex-based discrimination, and ​​R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, which found employees can’t be discriminated against for their gender identity.

When asked what was taking the agency so long to make this move—one that Whitlock argued would add clarity for HR and Phillips said would help nonbinary workers feel accounted for—Phillips said she didn’t know.

“EEOC really has been on the forefront,” of gender-identity issues, Phillips said. She called the lack of progress on the EEO-1 document a “little surprising.”

Whitlock penned a 2021 op-ed pressing the EEOC to add a third gender marker to the EEO-1 form, joining the growing chorus of voices calling for change. Agency representatives told Bloomberg Law in March that the EEOC was “exploring ways to collect nonbinary gender data from employers.”

In response to HR Brew’s request for comment, the EEOC confirmed via email that it is reviewing its data collection procedures but didn't elaborate beyond the comment made to Bloomberg Law.

At the close of our call, Phillips pondered the goals of corporate DE&I. She believes diversity programs should make employees feel “accounted for” and “heard.”

“The fact that someone’s identity is not accounted for diminishes a lot of the really important DE&I efforts that employers go through.”—SV

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