Scrapping Nonbinary Marker Risks Muddling EEOC Workforce Reports

The EEOC’s proposed elimination of a nonbinary identification option from a recently renewed employer report for workforce demographics poses potential complications for employer compliance.

The Equal Employment Opportunity Commission floated a change to remove the option for employers to categorize workers outside of “male” and “female” on EEO-1 reports, according to a filing to the White House’s Office of Budget and Management. The reports apply to roughly 110,000 companies with at least 100 employees, requiring them to disclose data on their workers’ sex, race, and ethnicity.

The change aligns with the civil rights agency’s ongoing efforts to comply with President Donald Trump’s Jan. 20 executive order directing federal agencies to only recognize two sexes. The EEOC also rolled back nonbinary marker options on internal commission forms, and pulled away from backing workers in transgender bias lawsuits.

Employers are “caught between a rock and a hard place,” based on the clash between the Trump administration’s push to prevent reporting nonbinary gender and existing gender identity protections under Title VII of the 1964 Civil Rights Act, said David Cohen, founder and president of DCI Consulting.

“Regardless of what the administration’s position is, gender identity and sexual orientation are a federally protected class under Title VII. That’s not changing. Clearly the administration wishes it wasn’t a federally protected class but it is,” he said.

Other than the elimination of the nonbinary gender option, the proposed EEO-1 report is largely left the same as in past years, according to an information booklet about the EEO-1 data collection filed to OMB.

The booklet said data collection is scheduled to open May 20 with a deadline for companies to file the reports by June 24.

The EEOC has included an option to report employees’ gender as nonbinary since 2019, according to a blog post published by the law firm Fisher Phillips. Starting that year the EEOC guided employers to report the information in a comment box.

The EEOC booklet for the 2024 collection states “the EEO-1 Component 1 data collection provides only binary options (i.e., male or female) for reporting employee counts by sex, job category, and race or ethnicity.”

The US Supreme Court’s 2020 decision in Bostock v. Clayton County said sexual orientation and gender identity are protected categories under Title VII, affirming the EEOC’s responsibility to pursue discrimination charges filed by nonbinary and transgender workers.

But Trump’s two sexes executive order said the Biden administration misinterpreted the Bostock decision, and ordered agencies to list only male or female on any forms that require an individual’s sex.

‘A Rock And a Hard Place’

With the EEOC now limiting demographic disclosures to male or female, employers may not know which category to place an employee in if the person is nonbinary.

Employers are left with an option to “visually ID” an employee, or otherwise remove that individual from their total employee counts, Cohen said.

The count by category is supposed to add up to the same number. But the EEOC’s change may result in a situation where an employer may be able to count an employee by race, or another category, but not by gender.

The agency could provide additional guidance to employers, which could mirror how it’s instructed them to report information on race in the past, said Jim Paretti, an attorney with Littler Mendelson P.C.

Employees voluntarily self identify their race, and if they decline to do so the EEOC guides employers on how to visually identify and report the employee’s race, he said.

Since EEO-1 forms are used to support the commission’s bias charge investigations, deleting the nonbinary option also potentially puts workers looking to sue over gender identity discrimination at a disadvantage.

However the EEOC under Acting Chair Andrea Lucas has signaled it won’t pursue those cases at all, given Trump’s executive order.

The commission said in January it would review charges from workers claiming bias based on their transgender status.

Some labor attorneys and advocacy groups said they had previously been unclear as to whether the EEOC would even follow through with this year’s EEO-1 collection.

The Heritage Foundation’s Project 2025 called for the elimination of the disclosures.

Though Trump denied knowledge of the conservative blueprint for government on the campaign trail, his administration has so far taken some similar actions to those outlined in the plan.

A spokesperson for the EEOC did not respond to a request for comment on the new EEO-1 surveys.