As we begin June and Pride Month, here is a relevant question we continue to get asked in some form more and more frequently: “Are we allowed to ask employees and applicants to identify beyond just the male or female genders?”
The short answer is: Yes, you are allowed to collect more than the binary genders.
While it is encouraged to embrace gender identity in your diversity and inclusion strategy, there are some important things to consider from a compliance perspective.
Currently, based on their definition of gender identity, the OFCCP and the EEOC’s gender identity protections are only focused on transgender workers, individuals who do not identify with their gender assigned at birth. This means that the OFCCP and EEOC still view gender as binary—either male or female. It does not address those who believe there are options outside the traditional categories and do not identify as either male or female. Therefore, AAP and EEO-1 reporting still remains collecting and analyzing binary genders.
In June 2017, Oregon became the first US state to allow residents to identify as other than male or female on state driver’s licenses. Since then, 21 other states and the District of Columbia issue driver’s licenses with nonbinary gender markers, and the number is increasing quickly.
In order to keep up with the times, but without changing the regulations (yet… more on that later), the OFCCP addressed the question of allowing employees and applicants to self-identify as non-binary in an FAQ posted in 2021. Their recommendation is: “If an employee or applicant chooses to self-identify as non-binary, or as a gender other than male or female, the contractor must still include the individual in its AAP submission. However, the contractor may exclude that individual's data from the gender-based analyses required by OFCCP's regulations. OFCCP's FAQs specify that a contractor may not ask applicants or employees for documentation to prove their gender identity or transgender status.” In other words, the employee would still be included in the race-based analyses, but not included in the gender-based analyses, which still only requires comparison of males and females.
This solution is preferred for the time being since it does not uncomfortably force the individual(s) into one of the two categories. The 2015 U.S. Transgender Survey (which will be updated following their 2022 Survey) found that 33% of transgender individuals indicate they would prefer not to be assigned to either male or female gender. However, the OFCCP’s recommended method of reporting non-binary individuals means your total employee headcounts would not match between the types of analyses and could cause some confusion, so documenting any exclusions is highly recommended.
Note, always remember that employees should still have the option not to answer and contractors are not allowed to ask applicants or employees to prove their gender identity.
There is some good news on the horizon: there have been various measures taken by the EEOC, OFCCP, and multiple state entities to make steps towards more inclusive data reporting.
In the meantime, your organization may still look to create initiatives to be more inclusive of gender identity as part of your diversity and inclusion strategy. Here are a few tips to get you started, although a full initiative will go well beyond this.