This year’s EEO-1 reporting instructions do not provide guidance on how to report employees who self-identify as nonbinary, resulting in different approaches among employers. Nonbinary workers don’t identify as exclusively male or female. However, the Trump administration in an executive order and in public statements has clarified its view that sex is binary.

Private employers with 100 or more employees and federal contractors with 50 or more employees must submit annual EEO-1 reports through the U.S. Equal Employment Opportunity Commission’s (EEOC’s) online filing system.

None of the approaches employees are adopting are risk-free, said Joy Chin, an attorney with Jackson Lewis in Long Island, N.Y.

But “it’s safe to assume that the current EEOC might decide to investigate an employer who reported nonbinary information,” said Jennifer Sandberg, an attorney with Fisher Phillips in Fort Lauderdale, Fla., and Atlanta.

Most employers are reporting binary data and not mentioning nonbinary employees in the form’s comments, she said.

Background

For the current 2024 EEO-1 report due June 24, the EEOC quietly removed from the filing instructions the option for employers to report nonbinary employees; last year, they could do so in the comments section.

Now, the instruction booklet and frequently asked questions simply say, “The EEO-1 Component data collection provides only binary options (i.e., male or female).”

“None of the EEOC’s materials give any guidance as to how employers...

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