EEOC is currently in the midst of collecting pay data for 2017 and 2018. The data is being collected by NORC at the University of Chicago. The NORC website where pay data is being collected has a series of FAQs and responses from EEOC regarding this collection of pay data.

A recent FAQ reads as follows: “Our company is now collecting gender beyond the male/female binary. We wish to report this for the EEO-1 Component 2 data collection. How do we report it?” EEOC’s response is as follows:

Filers may report employee counts and labor hours for non-binary gender employees by job category and pay band and racial group in the comment box on the Certification Page, please preface this data with the phrase “Additional Employee Data:”. For example, “Additional Employee Data: 1 non-binary gender employee working 2,040 hours in Job Category 4, Salary Pay Band 5, Race/ethnicity non-Hispanic White. 3 non-binary gender employees; combined work hours 5,775; in Job Category 5, Salary Pay Band 8; Race/ethnicity: Employee 1 – Non-Hispanic Black, Employee 2 – Hispanic, Employee 3 – Two or more races”.

This is the first time EEOC has explicitly provided guidance regarding how non-binary employees are to be reported for EEO-1 purposes. It is not clear whether EEOC intends to use this methodology to collect EEO-1 Component 1 data (the traditional demographic data on ethnicity, race, and gender of employees). It is also not clear what this FAQ means for EEOC’s treatment of non-binary employees in other contexts.

Various states and local units of government now allow or require the use of “non-binary” as a means of reporting gender. EEOC (and OFCCP) have no formal means for employers to show a gender other than “male” or “female” in the demographic reports that must be submitted to these agencies. EEOC’s FAQ is a first step in determining how information on non-binary status will be reported.