Hunton Employment & Labor Perspectives

The Equal Employment Opportunity Commission 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 a 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 a previous 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 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.  Indeed, 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 Bostock.)  These announcements from the EEOC further reinforce that employers will have to continue to update employment policies as the law surrounding transgender protections in the workplace evolve.  Employers should consult with counsel to navigate these sensitive issues.