“It is important to note that an employee declining to self-identify sex does not mean that they should automatically be reported in the non-binary category.”
The California Pay Data Report has rules that are different from EEO-1 and OFCCP related to gender identification. The California Department of Fair Employment and Housing (DFEH) recognizes three categories: female, male, and nonbinary. If you fall under the jurisdiction of DFEH for filing this report, we recommend that you create an extra field for “nonbinary”. To clarify, nonbinary is an umbrella term for people with gender identities that fall outside of the traditional conceptions of strictly either female or male.
If a person does not self-identify in one of the three recognized DFEH categories, employers should report nonbinary employees in the same manner as male and female employees. We recommend that you continue tracking the Do Not Disclose (DND) field for internal recordkeeping purposes to distinguish employees that have voluntarily self-identified from those that have not voluntarily self-identified race/ethnicity or sex. If an employee does not voluntarily self-identify, the employer must still submit one of the three gender categories and race/ethnicity information for all employees to DFEH.
With further regard to DND, employee self-identification is always the preferred method for reporting, but it is voluntary. It is important to note that an employee declining to self-identify sex does not mean that they should automatically be reported in the non-binary category. For these employees, further research should be conducted to identify the appropriate category through the use of (1) historic employee self-identification records that identify sex information or (2) the use of records that indicate the employee’s own pronoun usage.
You are still required to report EEO-1 data to EEOC, consistent with reporting required by OFCCP. Kairos recommends you continue to submit your AAP data in the same manner as you have before, which may result in a minor disconnect between your DFEH and AAP/EEO-1 data. You should track this difference for the time being, reporting each as required by state and federal regulations.
Feel free to reach out to Kairos if you have any questions.