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EEOC Taking Steps to Include Non-Binary Classification on Forms

The Equal Employment Opportunity Commission (EEOC) has started to take affirmative steps to include non-binary classifications on agency forms. In an announcement last month, individuals will be able to choose non-binary gender markers when filling out intake and charge of discrimination forms used by workers for discrimination complaints levied against employers. On these forms, an individual will be able choose “X” for the voluntary self-identification questions and use the prefix “Mx.”

This announcement builds on an earlier announcement in which the EEOC explained that it was exploring ways to collect non-binary data from employers on an EEO-1 form. At present, employers can voluntarily submit such information using the “comment” section on their EEO-1 forms, but there is currently no requirement for employers to submit this data to federal agencies, like the EEOC or US Department of Labor (DOL). Any such requirement will require a vote of the Commission.

These announcements from the EEOC are the latest in a string of developments regarding transgender protections in the workplace. Since the Supreme Court decided in Bostock v. Clayton County that Title VII’s protections apply to transgender individuals, employers have had to adjust workplace EEO policies to take into account this protected status. (See our previous blog post and coverage on the Bostock decision for additional information.)

Next Steps for Employers

These announcements from the EEOC further reinforces the idea that employers should continue to update employment policies as laws surrounding transgender protections in the workplace continue to evolve. All employers should consider taking the following actions to ensure they are creating a workplace that protects and welcomes all LGBTQ+ employees:

  • Ensure your written Equal Employment Opportunity and Non-Harassment/ Non-Discrimination policies incorporate protections based on sexual orientation, gender identity, gender expression and transgender status.
  • Create a welcoming workplace. Company leaders and human resources staff should become familiar with, and become comfortable using, the correct terminology and inclusive language, such as the use of proper pronouns. Leaders should ensure the company’s values include diversity and inclusion and these values are communicated by the highest leadership of the company in a manner that demonstrates full engagement and buy-in.
  • Ensure training materials and the content of any equal employment opportunity, non-harassment or non-discrimination training includes information and examples of prohibited harassment or discrimination related to sexual orientation and gender identity.
  • Review your benefits policies to ensure they provide coverage equally, regardless of gender identity, sexual orientation or transgender status.
  • Review your dress code. Make sure it is gender-neutral and broad enough so employees of any gender feel comfortable physically presenting themselves in the workplace.
  • Incorporate best practices in your company procedures, such as offering all employees the option of adding pronouns to their email signatures, addressing employees by their preferred name and pronouns, using an employee’s preferred name on internal communications and company websites, and encouraging the use of inclusive, gender-neutral language in the workplace, such as “they or them” versus “he/she or him/her.”

It is also recommended that employers consult with their legal counsel for guidance on navigating these issues.

HR Works, Inc., headquartered at 200 WillowBrook Office Park in Fairport (Rochester), New York, with an office in East Syracuse, is a human resource management outsourcing and consulting firm serving clients throughout the United States. HR Works provides scalable strategic human resource management and consulting services, including: affirmative action programs; benefits administration outsourcing; HRIS self-service technology; full-time, part-time and interim on-site HR managers; HR audits; legally reviewed employee handbooks and supervisor manuals; talent management and recruiting services; and training of managers and HR professionals.