Employers will no longer have the option to voluntarily report data on employees who identify as nonbinary in their EEO-1 reports, according to an Equal Employment Opportunity Commission (EEOC) filing submitted on April 15.
The change marks a reversal of a Biden-era policy that allowed employers to include data about nonbinary workers in the comments section of their EEO-1 reports, which include demographic information on businesses’ workforces.
The EEOC cited President Donald Trump’s executive order aimed at “defending women from gender ideology extremism and restoring biological truth to the federal government” in its filing to the Office of Management and Budget. Given that Trump’s order calls for agency forms to require individuals list their sex as either male or female, “the EEOC believes it must remove the voluntary option to report on ‘non-binary’ employees,” the agency wrote.
EEOC introduced nonbinary categorization in 2023. Private employers with 100 or more employees are required to submit workforce data annually to the EEOC that include breakdowns by job category, sex, and race or ethnicity.
In 2023 the agency said employers that wished to voluntarily report employees “who do not identify as exclusively male or female” could do so in the comments section of their EEO-1 reports. EEO-1 forms don’t have an option to designate employees as nonbinary, which had previously prompted concern about employers’ potential to misgender workers, HR Brew reported at the time.
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The Trump administration issued the executive order to remove this option on Jan. 20, which effectively denies recognition of people identifying as a gender other than male or female, such as transgender or nonbinary. The EEOC has since taken a number of other actions to carry out this order, including removing a “pronoun app” that allowed employees’ to identify pronouns in their Microsoft 365 profiles, and removing “Mx.” as an option on discrimination and related forms.
What else HR should know about 2024 EEO-1 reports. Companies covered by the EEO-1 regulations can submit their 2024 reports starting May 20, and must do so by June 24, 2025, according to an instruction booklet from the EEOC. The report must cover demographic data collected during a selected pay period in Q4 last year.
Although the Trump administration recently revoked executive orders that had required federal contractors to file compliance reports, including the EEO-1 report, this group of employees has not yet been exempted from submitting this data. Federal contractors with 50 or more employees are still required to file an EEO-1, along with covered private employers, according to the booklet.