2021 EEO-1 Reports of Federal Contractors to be Released by OFCCP Absent Employer Action

Seyfarth Synopsis. The University of Utah and a non-profit organization named "As You Sow" have issued FOIA requests to the Office of Federal Contract Compliance Programs (“OFCCP”) for the 2021 Type 2 Consolidated EEO-1 Reports filed by federal contractors.  Federal contractors who wish to object to the release of their EEO-1 Reports must submit their objections to OFCCP by December 10, 2024.[1]  Employers can file objections via an online OFCCP Submitter Notice Response Portal or by email to OFCCPSubmitterResponse@dol.gov.   

FOIA Requests for EEO-1 Data

OFCCP has received two requests under the Freedom of Information Act (FOIA) for the 2021 Type 2 Consolidated Employer Information Reports, known as EEO-1 Reports, filed by federal contractors. These requests were submitted by the University of Utah and "As You Sow," a non-profit shareholder advocacy organization.     

Federal agencies are required to give notice to parties when their submitted information becomes the subject of a FOIA request. OFCCP estimates that at least 14,000 unique covered contractors warrant notice obligations.  Due to the large number of contractors potentially covered by this FOIA request, OFCCP published a “Notice of Request Under the Freedom of Information Act for Federal Contractors’ Type 2 Consolidated EEO-1 Report Data” in the Federal Register on October 29, 2024 and sent emails to contractors for whom they had contact information. While the FOIA request sought data covering the 2021 and 2022 EEO-1 reports, OFCCP currently only has the 2021 EEO-1 data in its possession, and therefore limited the notice to cover only the 2021 EEO-1 reporting year.

EEO-1 Reports must be filed annually by all employers with 100 or more employees, and by covered federal contractors and first-tier subcontractors with 50 or more employees.  There are several types of EEO-1 Reports that are filed, depending on the organizational structure of the reporting entity.  The instant FOIA requests seek “Type 2” EEO-1 Reports, which are the Consolidated Reports required of multi-establishment employers. These Reports include aggregated data for all employees of the company — at headquarters as well as all other establishments — categorized by race/ethnicity, sex, and job category.

OFCCP has published a list of companies it believes to be covered by this FOIA request here.  Companies who appear on this list and wish to protect their data from disclosure must submit their objections by December 10, 2024. FOIA has several delineated exemptions that can be invoked on a case-by-case basis.  The most common objection to the release of EEO-1 data is “Exemption 4,” which OFCCP has specifically identified in its notice.  Exemption 4 protects the disclosure of “trade secrets and commercial or financial information” that is privileged or confidential.

Notably, currently on appeal in the Ninth Circuit Court of Appeals is a 2023 decision by the U.S. District Court for the Northern District of California ruling that EEO-1 Reports do not contain the type of “commercial” information that is protected from disclosure under FOIA.  The Northern District of California’s decision stems from a 2022 FOIA request that was submitted by reporter Will Evans and his employer, the Center for Investigative Reporting, seeking Type 2 EEO-1 Reports filed by federal contractors in 2016-2020.  In response to the U.S. District Court’s decision, the Department of Labor appealed the decision arguing that EEO-1 data contains “commercial information” within the meaning of FOIA Exemption No. 4. 

Guidelines for Submitting Objections

OFCCP has created an online submission portal for objections, available at OFCCP Submitter Notice Response Portal. Objections may also be submitted via email at OFCCPSubmitterResponse@dol.gov or by mail. Each objection must include the contractor's name, address, contact information for the contractor (or its representative), and should, at minimum, address the following questions in detail:

• What specific information from the 2021 EEO-1 Report does the contractor consider to be a trade secret or commercial or financial information?
• What facts support the contractor's belief that this information is commercial or financial in nature?
• Does the contractor customarily keep the requested information private or closely-held? What steps have been taken by the contractor to protect the confidentiality of the requested data, and to whom has it been disclosed?
• Does the contractor contend that the government provided an express or implied assurance of confidentiality? If no, were there express or implied indications at the time the information was submitted that the government would publicly disclose the information?
• How would disclosure of this information harm an interest of the contractor protected by Exemption 4 (such as by causing foreseeable harm to the contractor's economic or business interests)?
• Does the contractor believe there are other legal or factual issues related to the potential disclosure of this information OFCCP should be aware of?

Contractors who do not file an objection by December 10, 2024 will be considered to have no objection to the release of their EEO-1 Reports. Contractors who submit timely objections will receive written notice if OFCCP decides to disclose their information, along with an explanation and a disclosure date following the notice.

If a company desires to object, but cannot do so within the 40-day period, it should request an extension from OFCCP as soon as possible. Extension requests are considered on a case-by-case basis. If enough contractors seek extensions, the Agency could find that 40 days is not an inherently “reasonable period” and extend the objection period for all contractors.

Next Steps

While some companies have chosen to voluntarily disclose aspects of their EEO-1 Reports, others have carefully guarded the confidentiality of this data.  Timely action is essential to preserve any claims of confidentiality regarding EEO-1 data.  If your business would like assistance filing objections with OFCCP, please contact a member of Seyfarth’s People Analytics team.  

 

[1] The Federal Register Notice lists an objection due date of December 9, 2024, while OFCCP’s submission portal and FAQs list a due date of December 10, 2024. OFCCP confirmed that the submission deadline is December 10, 2024.