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EEOC Weighs Tracking Nonbinary Worker Data at U.S. Companies

March 14, 2022, 5:05 PM

The EEOC said it wants to track nonbinary workforce data, along with other categories such as race and national origin, joining other agencies acknowledging the gender fluidity increasingly present in the workplace.

The U.S. Equal Employment Opportunity Commission told Bloomberg Law that it is exploring ways to collect nonbinary gender data from employers. The civil rights agency, however, doesn’t have authorization to require employers to collect that information in their annual reports. This is the first time the civil rights agency has signaled interest in gathering this information from employers.

People who are nonbinary don’t identify as strictly male or female. The EEOC signal that it might track these workers follows a U.S. Supreme Court opinion that expanded workplace protections for LGBT individuals. Gender roles and sex-stereotyping has long been covered under protections under Title VII of the 1964 Civil Rights Act, and recent worker challenges include those surrounding some workplace dress codes and pronoun usage.

Any revisions to the information collected on the EEO-1 form, which companies with more than 100 workers provide the government detailing protected categories of workers, requires a vote of the full commission followed by approval of an information collection request by the Office of Budget and Management.

EEOC spokeswoman Christine Nazer confirmed that the agency is weighing nonbinary data collection. She said in an email that employers can voluntarily report data to the agency in the “comment” section of their EEO-1 forms.

The Labor Department’s Office of Federal Contract Compliance Programs said in November that it is considering options that would allow federal contractor employees to self-identify as nonbinary. The OFCCP regulates employers that do business with the federal government and already requires they submit data on the race and sex of job applicants and employees.

The OFCCP doesn’t currently collect data on LGBT employees for contractors.

Federal contractors have been prohibited from discriminating against LGBT workers since 2014 under an executive order signed by former President Barack Obama—years before the U.S. Supreme Court extended that ban to encompass more employers.

To contact the reporter on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com