According to a new Frequently Asked Question (FAQ) published recently by the Labor Department’s Office of Federal Contract Compliance Programs (OFCCP), employees that identify themselves as “non-binary” as their gender classification must be accounted for in a federal contractor’s E.O. 11246 affirmative action program (AAP). At the same time, OFCCP makes clear that contractors may exclude these individuals when conducting any of the required gender-based analyses.

OFCCP’s E.O. 11246 regulations do not recognize a gender identification other than the traditional male or female designation. A growing number of state and local jurisdictions, however, now permit employees and applicants to identify themselves as a gender other than male or female. As a result, some contractors have raised questions as to whether and how to include those persons in their AAP and/or how to conduct gender-based analyses to determine adverse impact when employees and applicants do not identify themselves as male or female. OFCCP’s new FAQ is somewhat responsive to these questions, though because this is a developing area, several questions remain unanswered

Members of the Center for Workplace Compliance (CWC) can read more here.