By Taylor Flake Lawson
On March 31, 2022, the Equal Opportunity Employment Commission (EEOC) announced that it will add an option to mark “X,” a non-binary gender marker, during two stages of the intake and charge filing process. The announcement came as a part of a broader White House initiative that aims to promote gender inclusivity across the Federal government. This initiative is being enacted across various Federal agencies in a variety of different ways. For example, other agencies are also beginning to account for non-binary Americans in their processing forms.
Presently, a worker only has two gender options (male or female) when he or she files a charge with the EEOC. Those two options arguably do not include workers who identify as non-binary. The addition of the new gender marker allows for the inclusion of the broad range of gender identities. The added marker also further promotes greater equity and inclusion for members of the LGBTQI+ community. In discussing the upcoming change, EEOC Vice Chair Jocelyn Samuels said, “Sexual orientation and gender identity are core aspects of every individual’s identity. The EEOC’s announcement that it will add a non-binary gender marker to these forms will ensure that the identities of all those who come to our agency for assistance are acknowledged and embraced.”
How will the EEOC define “X”?
The EEOC plans to incorporate the Centers for Disease Control and Prevention’s National Center for Health Statistics (NCHS) definition for “X.” NCHS defines “X” as (1) “unspecified” and (2) “another gender identity.” The EEOC’s use of NCHS’s definition is intended to help promote clarity, inclusion, safety and privacy for individuals.
What will be changed?
The non-binary gender marker will be added at two stages of the intake and charge filing process. The new gender marker will be added on the following forms:
- The voluntary demographic questions on the online public portal, Online Spanish Initial Consultation Form and Pre-Charge Inquiry Form will be updated with the non-binary gender marker.
- The charge of discrimination form will be modified to include “Mx” in the list of prefix options.
What does this mean for employers?
For businesses with at least 100 employees and Federal contractors with at least 50 employees and a contract with the federal government of $50,000 or more must file an EEO-1 form. The form is used to track the number of minorities employed by qualifying companies and determine employment patterns. The EEOC previously advised employers to report gender information in the comments section of the EEO-1 form. Employers have either not tracked their employees’ gender identity or grappled with how to report gender for employees who identify as non-binary on the EEOC’s EEO-1 form. Now, with the added gender marker, employers who track gender identities among employees will be able to report non-binary employees without going through additional hoops to do so.
With the addition of the “X” option, employers may be concerned with the potential effect such reporting might have on their business operations and employer obligations. Administratively, employers who are required to complete the EEO-1 form will now shift from documenting non-binary employees in the comments section to checking a box. For some employers that might mean that adjustments will need to be made to the gender identities that are tracked by employers. Some employers have already had to make adjustments because the particular states where they operate have begun issuing state identifications and driver’s licenses with a non-binary gender option for those who request such option.
Practical Tips for Employers
On March 31, 2022, the Equal Opportunity Employment Commission (EEOC) announced that it will add an option to mark “X,” a non-binary gender marker, during two stages of the intake and charge filing process. The announcement came as a part of a broader White House initiative that aims to promote gender inclusivity across the Federal government. This initiative is being enacted across various Federal agencies in a variety of different ways. For example, other agencies are also beginning to account for non-binary Americans in their processing forms.
Presently, a worker only has two gender options (male or female) when he or she files a charge with the EEOC. Those two options arguably do not include workers who identify as non-binary. The addition of the new gender marker allows for the inclusion of the broad range of gender identities. The added marker also further promotes greater equity and inclusion for members of the LGBTQI+ community. In discussing the upcoming change, EEOC Vice Chair Jocelyn Samuels said, “Sexual orientation and gender identity are core aspects of every individual’s identity. The EEOC’s announcement that it will add a non-binary gender marker to these forms will ensure that the identities of all those who come to our agency for assistance are acknowledged and embraced.”
How will the EEOC define “X”?
The EEOC plans to incorporate the Centers for Disease Control and Prevention’s National Center for Health Statistics (NCHS) definition for “X.” NCHS defines “X” as (1) “unspecified” and (2) “another gender identity.” The EEOC’s use of NCHS’s definition is intended to help promote clarity, inclusion, safety and privacy for individuals.
What will be changed?
The non-binary gender marker will be added at two stages of the intake and charge filing process. The new gender marker will be added on the following forms:
- The voluntary demographic questions on the online public portal, Online Spanish Initial Consultation Form and Pre-Charge Inquiry Form will be updated with the non-binary gender marker.
- The charge of discrimination form will be modified to include “Mx” in the list of prefix options.
What does this mean for employers?
For businesses with at least 100 employees and Federal contractors with at least 50 employees and a contract with the federal government of $50,000 or more must file an EEO-1 form. The form is used to track the number of minorities employed by qualifying companies and determine employment patterns. The EEOC previously advised employers to report gender information in the comments section of the EEO-1 form. Employers have either not tracked their employees’ gender identity or grappled with how to report gender for employees who identify as non-binary on the EEOC’s EEO-1 form. Now, with the added gender marker, employers who track gender identities among employees will be able to report non-binary employees without going through additional hoops to do so.
With the addition of the “X” option, employers may be concerned with the potential effect such reporting might have on their business operations and employer obligations. Administratively, employers who are required to complete the EEO-1 form will now shift from documenting non-binary employees in the comments section to checking a box. For some employers that might mean that adjustments will need to be made to the gender identities that are tracked by employers. Some employers have already had to make adjustments because the particular states where they operate have begun issuing state identifications and driver’s licenses with a non-binary gender option for those who request such option.
Practical Tips for Employers
With the upcoming changes from the EEOC, Employers should be mindful of the new reporting forms required to be used and their obligation to report correct information on the updated forms, while also keeping in mind the impact such reported information may have on their work environments. Employers may also need to consider reviewing other documents and forms used in the workplace, to the extent that including a non-binary option may be appropriate. Depending on a particular employer’s circumstances, this might include allowing for a non-binary “X” option or a prefix option of “Mx.”
Rainey Kizer Reviere & Bell PLC
tlawson@raineykizer.com
www.raineykizer.com