Outten & Golden: Empowering Employees in the Workplace

EEOC now gives nonbinary people a way to be counted in workplace

August 21st, 2019 | Casey Quinlan

Image result for casey quinlanThe EEOC quietly acknowledged nonbinary workers in a change to the “Frequently Asked Questions” section on its site.

The Equal Employment Opportunity Commission (EEOC), an independent federal agency that is responsible for enforcing federal civil rights laws against workplace discrimination, recently changed its website to address how employers can report workers as nonbinary.

Before the EEOC’s actions last week, employers didn’t have a way to report nonbinary workers in what are known as EEO-1 reports, which are filed with the agency as mandated by Title VII of the Civil Rights Act of 1967.

More Americans are informing people that their gender is under the nonbinary umbrella, which places a pressing need on employers to recognize their gender, and more states are recognizing this diversity.

According to a Harris Poll done on behalf of GLAAD in 2017, 12% of millennials say they are transgender, agender, genderfluid, or bigender, which is double the percentage of Generation X who said the same. The report said there were growing levels of young people whose genders are outside of the gender binary. More than one third of people in Generation Z say they know someone who uses non-binary pronouns such as they and them.

A few states allow nonbinary people to choose a marker other than “M” or “F” on government identification such as driver’s licenses and ID cards. California, Oregon, Minnesota, Colorado, Maine, Maryland, Hawaii, and the District of Columbia allow nonbinary people to have this option such as an “X” designation. Washington, Oregon, and New Jersey allow nonbinary birth certificates.

The EEOC has recognized this need under its Frequently Asked Questions page addressing 2017 and 2018 compensation data. According to the National Law Review, these changes were made on August 15.

Although this guidance for employers is not a long-term solution for nonbinary people, it is an improvement over completely erasing nonbinary people’s genders. It also defies the binary understanding of gender that the Trump administration has embraced from the beginning. The EEOC directs employers to write the nonbinary worker’s gender in the comment box on the Certification Page and to preface it with “Additional Employee Data.” The EEOC provides an example:

Harper Jean Tobin, director of policy at the National Center for Transgender Equality, said the EEOC was likely responding to employers’ questions about how to account for nonbinary workers.

“There has not been a concern that something bad was going to happen to employers because they didn’t include this data. Employers wanted to know how to provide accurate data to the EEOC so the EEOC said that’s fine. We’re not going to get into the business of defining people’s gender,” she said.

“If you have employees who are nonbinary, you can use the narrative comment section of the form, like you could for anything else that doesn’t fit into the boxes they give you to report a number of nonbinary employees.”

Tobin compared this case of acknowledging nonbinary workers to actions at the U.S. Department of Health and Human Services to undo protections for transgender people. HHS recently rolled out a proposal that would quash guidelines that are part of the ACA which explicitly includes gender identity under sex discrimination. Last year, The New York Times also reported on an HHS memo that classified sex as either male or female and determined at birth.

“It does stand in contrast to the position U.S. Health and Human Services has staked out in its recent health care rule, which is a position contrary to medical science that gender is immutably determined at birth and that there are only two genders,” she said.

“The EEOC is recognizing the reality that employers know who their own workforce is.”

“The EEOC is recognizing the reality that employers know who their own workforce is, and who their employees are because they work with them every day, whereas HHS is simply covering its eyes and saying we don’t see nonbinary people. They don’t exist. That is part of a broader problem in the HHS proposal and its approach to civil rights laws. Denying that gender identity is a core part of human identity, that gender transition is often medically necessary, that our civil rights laws have long been understood to protect transgender people from discrimination.”

Although this may seem like a small tweak, it matters to nonbinary workers to be counted and not forced to choose between two genders when neither accurately describes them.

This action can also be understood in the context of other recent actions from the EEOC. Last week, the Justice Department filed a court brief on behalf of the EEOC to argue that transgender people, and in turn other people affected by sex stereotypes, are not protected under Title VII of the Civil Rights Act. It would essentially overturn Price Waterhouse v. Hopkins (1989). In 2014, the EEOC sued for alleged discrimination against Aimee Stephens, a trans woman who said she was fired because she informed her employer that she was a woman.

Stephens said the termination violated the Civil Rights Act. The EEOC won in the Sixth Circuit Court of Appeals. At the U.S. Supreme Court level, however, the EEOC has to be represented by the Solicitor General, who can say the opposite of what the EEOC has said in the lower courts. Tobin said this rarely happens, but has occurred twice in recent months. Although the general counsel for an agency usually signs these briefs, the EEOC did not. The National Law Journal writes that this may be evidence that the EEOC doesn’t agree with the Justice Department’s argument.

“It’s telling that lawyers for the EEOC weren’t willing to sign their names to the brief … We’ve had many cases in the recent past where Justice Department lawyers were not willing to sign their names to briefs filed on behalf of the administration because of its legal arguments and this may be another such case,” Tobin said. “In this case, it also happens to not reflect the view of commission in the way that day-to-day it’s still interpreting and enforcing the law — at least what is consistent with most of the case law.”

There have been attempts to politicize the EEOC. Members of the commission are usually reconfirmed without much attention but in 2018, Sen. Mike Lee (R-UT), objected to the reappointment of Chai Feldblum, who is a lesbian. Lee said she had “radical views on marriage.”

These nominations are usually passed by unanimous consent. Feldblum later withdrewher name from the nomination process. In an interview with HRDive in February, she said that Title VII protects sexual orientation and gender identity.

This article was originally published at Think Progress on August 20, 2019. Reprinted with permission.

About the Author: Casey Quinlan covers policy issues related to gender and sexuality. Their work has also been published in The Establishment, Bustle, Glamour, The Guardian, Teen Vogue, The Atlantic, and In These Times. They studied economic reporting, political reporting, and investigative journalism at the CUNY Graduate School of Journalism, where they graduated with an M.A. in business journalism.

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