While employers are not required to report employees as nonbinary on the EEO-1 survey, they may do so in the comments section of the reports as described below. Currently, there is no box on the EEO-1 form to designate the gender of employees who are nonbinary as there is for male and female employees.
When reporting employees as nonbinary, the Equal Employment Opportunity Commission (EEOC) specifies that if the sex reported by an employee during voluntary self-identification differs from the sex recorded in the employee’s employment records, the employer should report the former (i.e., self-identification) and not the latter (i.e., employment records).
Comment reporting sections
Single-establishment employers can enter the data for nonbinary employees in the “Certification Comments” section of the Single-Establishment Employer Report.
Multi-establishment employers can enter the data for nonbinary employees in the “Headquarters Report” comments section for those working in or reporting into the company headquarters location, and in the “Establishment-Level Report(s)” comments section for each individual nonheadquarters establishment.
When reporting nonbinary employees in the applicable comments section of the reports, the EEOC directs employers to preface the data with the phrase “Additional Nonbinary Employee Data,” followed by the corresponding data. An example of a correct entry is as follows:
“Additional Non-Binary Employee Data: 1 non-binary employee in Job Category Administrative Support Workers; Race/Ethnicity: White (Not Hispanic or Latino). 3 nonbinary employees in Job Category Professionals; Race/Ethnicity: Employee 1 – Black or African American (Not Hispanic or Latino) / Employee 2 – Hispanic or Latino / Employee 3 – Two or More Races (Not Hispanic or Latino).”
The employer should not include nonbinary employees in the male or female categories or any other categories (i.e., job category and race or ethnicity) within the reports. This means that those employees will not be included in the totals for each of the individual reports. However, employers must count nonbinary employees when determining if the employer meets the threshold for EEO-1 reporting purposes.
For example, if a nonfederal contractor employer has a total of 100 employees, of which two are reported as nonbinary in the comments, the employer is still required to file even though the total number of employees on the employer’s “Single-Establishment Employer Report” would reflect only 98 employees.
Likewise, if a multi-establishment employer has a total of 1,000 employees and is reporting 10 of those employees as nonbinary for the entire enterprise, the multi-establishment employer would do so in the comments section of the report where those 10 nonbinary employees are employed (i.e., on the appropriate “Headquarters Report” or “Establishment-Level Report”).
Using this same example, if there are 200 employees at the multi-establishment employer’s headquarters and five of those employees are reported as nonbinary in the comments section, the “Headquarters Report” would only show a total of 195 employees (i.e., less the five nonbinary employees reported in the comments section). The remaining five nonbinary employees would be reported in the comments section of the appropriate “Establishment-Level Report.” Finally, the employer’s “Consolidated Report” would show an employee count of 990 employees (i.e., less the 10 nonbinary employees reported in the comments sections on the “Headquarters Report” and “Establishment-Level Report”).
If an employer chooses not to report employees as nonbinary who self-identify as such, then the employer should assign either a male or female gender and include the employees along with all others in the report.