This week’s post was co-authored by Robinson+Cole Labor and Employment Group lawyer Emily A. Zaklukiewicz.

As 2021 comes to an end, many employers are preparing to meet record and reporting obligations. For employers with 100 or more employees who are required to file the EEO-1 Component 1 Report (EEO-1 Report) annually, this may involve ensuring that the relevant personnel information is accurate. While the annual deadline for submitting the EEO-1 Report is typically March 31 (subject to change and extension), employers must generally choose a “snapshot” period for their EEO-1 Report by selecting one pay period in the fourth quarter of the relevant survey year (i.e., the year prior to submission). One issue related to reporting obligations that has arisen in recent years is how to properly report employee with non-binary genders on the EEO-1 Report.

To provide background, the EEO-1 Report requires that employers report their annual workforce data, organized by location, job category, race/ethnicity, and gender. In the past, the Equal Employment Opportunity Commission (EEOC) provided employers with two options for reporting an employee’s gender on the EEO-1 Report: male or female. However, as more employers strive for LGBTQIA+ inclusion and gender inclusivity in their workplaces, reporting of employees’ gender has posed some questions for employers, especially in light of recent state laws. These laws include allowing individuals to designate a non-binary gender marker on government documents such as driver’s licenses and requiring that employers recognize a non-binary employee’s preferred gender markers, among other things. Some states, such as California, expressly require that employers report non-binary employees in order to comply with state reporting obligations such as filing of pay data reports. In 2019, the EEOC released guidance which advises that employers may choose, but are not required, to report non-binary genders in the comment box on the Certification Page in the EEO-1 Report by prefacing the data with the phrase “Additional Employee Data.” With that option, employers can account for non-binary genders on the EEO-1 Report.

Based on this guidance, and in light of changes to various state laws, employers may wish to revise their voluntary self-identification forms by providing employees with non-binary options for self-identification. This change could increase the likelihood that employees will provide accurate responses, promote gender inclusivity, and avoid inconsistencies in data and information in light of the fact that employees may possess state-issued government identification documents that indicate a non-binary gender choice.

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Photo of Abby Warren Abby Warren

As an attorney in Robinson+Cole’s Labor, Employment, Benefits + Immigration Group, I represent manufacturers in all areas of labor and employment law.  This includes discharge and discrimination issues, workplace investigations, affirmative action compliance, employee discipline, wage and hour issues, disability and reasonable accommodation…

As an attorney in Robinson+Cole’s Labor, Employment, Benefits + Immigration Group, I represent manufacturers in all areas of labor and employment law.  This includes discharge and discrimination issues, workplace investigations, affirmative action compliance, employee discipline, wage and hour issues, disability and reasonable accommodation, family and medical leave, unemployment, training, and defense in federal and state court and before administrative agencies. My full firm bio can be accessed here.

I represent manufacturers in the aerospace, consumer goods, machinery and other industries, which involves identifying practical, cost-effective and realistic solutions that prioritize and solidly execute the client’s objectives.  Manufacturers face unique challenges stemming from compliance with ever-changing industry regulations, including those impacting federal contractors.  Early in my career, I toured a client’s facility facing union-related struggles and realized that only through observing the workplace on the ground level can an attorney successfully understand and represent businesses.  As an employment attorney, I work alongside clients as a true partner to further their key personnel and human resources goals, including efficient and safe operations, recruitment and retention of talent, diversity and inclusion, among other issues. Whether advising on a leadership transition or on compliance with wage payment laws, the aim is always the same – to solve problems so clients can focus their attention on doing what they do best – manufacturing.