Is it legal for employers to ask about gender identity on a job application?
I saw a Linkedin post today asking "is it legal for employers to ask about gender identity on a job application?" The image below was included as a screenshot from the application. Since I've seen similar posts a handful of times, I thought I would answer and elaborate.
To Job Applicants Asking This Question:
It could seem intrusive for employers to ask you about your gender identity and may make you wonder...
Am I less likely to get the job if someone with biases reviews the application?”
Will selecting an option make me less likely to get an interview?”
What happens with this data? Is it attached to me and my application forever, even as an employee?”
To answer these questions, we must first learn about the origination and intention for collecting gender identity (+ other) info. It comes from the EEOC or the Equal Employment Opportunity Commission, an agency of the federal government, created by the Civil Rights Act of 1964. The most basic form of the only EEO questions allowed are:
What is your race?
What is your gender?
Do you have the right to work in the US?
Do you have a disability?
Are you a US veteran?
You've likely seen these questions at the end of job applications, and companies are required to ask EEO questions on job applications in order to file the EEO-1 Report; a federal compliance regulation.
To comply with all US States and federal laws, these questions must be voluntary for applicants. In addition, employers can’t discriminate against someone who refuses to provide that information, or discriminate based on selections.
How is this usually accomplished?
Heads up...the next part answers ALL the questions above.
First, the voluntary piece is accomplished by having the selection "decline to identify" or a similar opt out.
Second, avoiding discrimination with the application data collection is usually accomplished via the selections being anonymous.
Your selections go into a data collection pool that isn't attached to your name. The software ATS when you apply is usually built this way to accommodate this feature. I've never worked in an ATS that didn't collect EEO data this way automatically, and I've worked in many.
I will note, the EEOC has flaws, and biases DO exist in the interview process. We're just focusing on the logistics of these questions today.
Lastly, expansions on questions such as asing more than Male/Female for the gender question is usually an attempt to be more progressive and inclusive. The image above shows a company’s intentions to collect gender identity data beyond the basic Male/Female, such as:
Cisgender Man
Cisgender Woman
Non-Binary/Third Gender
Transgender Female
Transgender Male
Not Listed
Decline to State
To Employers considering asking about gender identity on job applications:
Your applicants aren't aware of all these details as most aren't SMEs in HR or employment law. It's confusing them and can send the wrong signals. Not elaborating on your good intentions is likely losing you quality talent.
Intentions may be to follow the law and to expand upon the requirements in progressive ways (including multiple gender identity options). Without details, it can lead to skepticism.
I recommend the following:
Include a blurb, explaining that the data collection is anonymous, legally required, and will not factor into the decision making process.
Take it a step further and include a short video from leadership or HR regarding the anonymous nature of the gender identity data collection, along with all EEOC data requirements.
So, can employers ask about gender identity on a job application? Yes, they can if it’s anonymous to prevent biases, and if it’s optional to answer.
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