OFCCP’s New FAQ Advises How to Handle Individuals Who Identify as a Gender Other than Male or Female

If an employee or applicant identifies as non-binary or a gender other than male or female, they must be included in the AAP but can be excluded from any gender-based analyses

OFCCP has now issued guidance on handling an employee or an applicant who self-identifies as non-binary or a gender other than male or female, such as Gender X currently recognized in California.

Q: How should contractors handle counting employees and/or applicants who identify as a gender other than male or female such as Gender X as is recognized in California?

A: Those contractors that must develop and maintain Affirmative Action Programs under Executive Order 11246 are required to invite all applicants and employees to voluntarily self-identify their gender (as well as their race and ethnicity). OFCCP has not mandated a particular method for a contractor to obtain information about a person's gender. If an employee or applicant chooses to self-identify as non-binary, or as a gender other than male or female, the contractor must still include the individual in its AAP submission. However, the contractor may exclude that individual's data from the gender-based analyses required by OFCCP's regulations. OFCCP's FAQs specify that a contractor may not ask applicants or employees for documentation to prove their gender identity or transgender status.