New England Biz Law Update
Individuals making complaints to the Equal Employment Opportunity Commission (EEOC) can now select a nonbinary “X” gender marker during voluntary self-identification questions.
Making the announcement on Transgender Day of Visibility, the EEOC indicated it will allow employees filing discrimination claims to select “X” as their gender on forms. The EEOC will also modify forms to include “Mx.” in the list of prefix options.
“Sexual orientation and gender identity are core aspects of every individual’s identity,” said EEOC Vice Chair Jocelyn Samuels in a press release. “[This] will ensure that the identities of all those who come to our agency for assistance are acknowledged and embraced.”
Under the EEOC definition, users may select “X” to indicate they prefer not to disclose their gender identity or to signal they do not identify as male or female.
Other government agencies have also introduced nonbinary options on official forms. U.S. citizens can now select X as their gender marker on passport applications. Twenty-one states and the District of Columbia also offer this option for driver’s license and state IDs.
Despite the changes outlined above, the EEOC’s EEO-1 reporting forms do not yet have fields for nonbinary gender data. That creates a reporting problem for employers who have collected nonbinary gender data from employees.
The EEOC has addressed the discrepancy with FAQ guidance. The agency is advising that nonbinary employee counts can be reported using the open comment box. Filers are asked to preface the data with the phrase “Additional Employee Data:”.
