OFCCP Issues New Guidance on the Status of Non-Binary Employees in Affirmative Action Programs

The Office of Federal Contract Compliance Programs (“OFCCP”) recently issued new FAQ guidance on how federal government contractors should treat non-binary employees (i.e., those who do not exclusively identify as either male or female) in their affirmative action programs (“AAP”). OFCCP instructs that contractors should include non-binary employees in AAP documents, but should exclude their data when conducting the gender-based analyses required by OFCCP’s AAP rules. This means that non-binary employees should not be considered when determining gender-based placement goals and analyzing potential gender-based disparities in personnel activity and compensation systems.

The new guidance also reminds contractors that they may not ask applicants or employees for documentation to prove their stated gender identity. As a refresher, some other gender identity-related guidance from prior FAQs include that:

• OFCCP does not require contractors to collect data about the non-binary gender identification of applicants or employees, but contractors may voluntarily choose to do so.
• Contractors’ AAP obligations do not require outreach activities towards LGBT applicants or employees, but contractors may voluntarily choose to do so.
• If an employee self-identifies their gender, including as non-binary, the contractor may not override that identification based on its visual observation or other records.
• Under EEOC guidance, data regarding non-binary employees may be separately reported in EEO-1 form submissions.

The new OFCCP FAQ provides some certainty for contractors and helps alleviate the conflict between OFCCP’s prior gender-binary framework and society’s rapidly-advancing understandings – often reflected in state, and now federal Title VII, law – of gender identity. However, many thorny questions about the treatment of non-binary employees for AAP or other OFCCP compliance purposes remain unaddressed. Because OFCCP accepts gender identity-based complaints from employees, and those complaints can now potentially be raised in a federal lawsuit under Title VII, contractors should take care in addressing these evolving issues.