United States: Making Binary Gender Choices In An Increasingly Non-Binary World As EEO-1 Season Approaches

Last Updated: February 6 2019
Article by James A. Patton

Government contractors are entering the 2018 EEO-1 reporting cycle facing a confusing landscape when it comes to reporting the gender of their employees. Contractors face an employment marketplace that is dealing with gender in new ways while dealing with federal government reporting requirements built on traditional gender models. This confusion will likely not disappear anytime soon, and the landscape may become even more complicated in the future.

The Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP) both provide protections against discrimination on the basis of gender identity. The EEOC interprets the prohibition of sex discrimination in Title VII of the Civil Rights Act to forbid "employment discrimination based on gender identity." The EEOC's guidance states that this protection arises from recent decisions from the Supreme Court of the United States and other courts prohibiting discrimination on the basis of sexual orientation or gender identity. The EEOC has also posted a page titled "Preventing Employment Discrimination Against Lesbian, Gay, Bisexual or Transgender Workers" that includes gender identity in its protections.

Gender identity is also included within the protections of Executive Order 11246 and OFCCP regulations issued in 2015. These regulations include gender identity in the definition of "sex," thereby prohibiting discrimination against applicants or employees on the basis of their gender identity. OFCCP has followed up on these regulations by issuing a training webinar, publishing a list of answers to frequently asked questions (FAQs), and maintaining a webpage collecting related information. The FAQs are focused on sexual orientation and gender identity, and they cover a variety of topics, including definitions and appropriate ways for job advertisements to take into account gender identity protections. The FAQs state that gender identity "refers to one's internal sense of one's own gender" and that this internal sense "may or may not" correspond to the "sex assigned at birth" and may not be "visible to others."

OFCCP's FAQs include a section dealing with self-identification that states that a contractor cannot ask applicants or employees to prove their gender identity. The FAQs also provide clarity for employers that voluntarily collect gender identity information for applicants and employees, stating that when employers collect such information, OFCCP may request the collected data during an investigation or compliance evaluation when "relevant." It then states that contractors should not be deterred from collecting such information for this reason. The FAQs make it clear that while contractors do not have to collect gender identity information, they are encouraged to collect data that furthers their diversity and inclusion efforts.

OFCCP and the EEOC's gender identity protections are focused on individuals who do not identify with their gender assigned at birth and who wish to be identified as the opposite gender. These protections do not address situations in which individuals do not identify as either male or female. These individuals believe that while gender has traditionally has been a binary choice, there are options outside the traditional male and female categories.

This movement toward non-binary gender categories goes beyond the protections provided by OFCCP and the EEOC. This conclusion is supported by a review of both agencies' gender reporting requirements. The EEOC's EEO-1 Instruction Booklet does not discuss gender, and the EEOC has yet to publish any guidance on how to deal with employees who do not identify as either male or female. But completion of mandatory EEO-1 reports requires employers to identify all employees' gender as either male or female. The EEOC has made it clear that employees who decline to self-identify may not be excluded from EEO-1 reporting as to race/ethnicity. All employees must be accounted for, and there are "no 'OTHER' or 'UNKNOWN' race/ethnicity categories." This requirement likely applies to gender as well. Likewise, the OFCCP regulations discussing affirmative action programs require employers to classify employees as either male or female. (41 C.F.R. §§ 60-2. 10 – 60-2.17.) Both agencies' reporting requirements treat gender as a binary choice.

While the EEOC and OFCCP view gender through the traditional binary lens, several jurisdictions allow individuals to identify their gender as neither male nor female. Oregon and Washington, D.C., were the first jurisdictions to allow non-binary gender identification in government documents. Other cities and states already allow or are in the process of allowing non-binary gender identification, including New York City and California. While individuals in these jurisdictions can identify their gender as non-binary on public documents, federal law does not require employers to provide this option to applicants and employees. However, some employers have already started providing this option to applicants and employees. When government contractors provide the option for non-binary gender identification, they must deal with several resulting questions.

If an employer allows an individual to identify as non-binary, the employer must then decide how to report that individual's gender when dealing with the EEOC and OFCCP. Since both agencies require binary gender identification for all employees, a government contractor would need to reclassify as either male or female all individuals who identified as non-binary. The EEOC's guidance for dealing with employees who decline to self-identify as to their race/ethnicity directs employers to use "employment records or observer identification" to determine the employee's race/ethnicity. This same approach would seem to apply to an individual who chooses not to identify as either male or female.

Contractors with non-binary employees must first decide whether to report these employees as male or female using either observer identification or employment records. This can be especially difficult where the employees have directly stated that they do not fit in either category. Once the contractor makes this difficult choice, it must then decide how to record the individual's gender identity in its records. The contractor may decide to keep two sets of records for gender: one set for internal purposes and one set for federal reporting purposes. The contractor may also want to consider what information it will provide to non-binary individuals who are classified as male or female for federal reporting purposes. While having a conversation about binary federal reporting may be difficult, it might alleviate problems that can result from non-binary individuals discovering that a contractor reported them as male or female without their knowledge.

Contractors that allow employees to identify their gender as non-binary may also want to consider whether to provide this option throughout the organization or only in jurisdictions with non-binary gender regulations or laws. Contractors with wide geographic footprints may also want to consider how they will define gender across the organization. For instance, contractors could define gender differently based on whether jurisdictions recognize non-binary gender identifications, or they could maintain the same definition across the entire organization. Due to jurisdictional differences, in some ways, these questions about non-binary gender identity mirror the issues contractors face when dealing with different minimum wage rates across their operations.

While the current gender classification landscape for government contractors is already confusing, it may become even more challenging, as OFCCP may soon release a notice of proposed rulemaking designed to increase protections for "religious-exercising organizations." While the content of this proposed rulemaking is unknown, it could impact existing gender identification protections. There have also been rumors of deeper changes to the definition of "gender identify," which could further complicate a government contractor's efforts to comply with its reporting obligations while dealing with society's changing understanding of gender.

For now, contractors will be required to classify all individuals as male or female on their EEO-1 reports and affirmative action programs. Making this decision can be difficult, especially where individuals have identified their gender as non-binary.

A version of this article was previously published in The OFCCP Digest.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
McLane Middleton, Professional Association
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
McLane Middleton, Professional Association
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions