By Annette Tyman, Christy Kiely, and Michelle Mellinger

Seyfarth Synopsis. The Center for Investigative Reporting has issued a FOIA request to the Office of Federal Contract Compliance Programs (“OFCCP”) for all Type 2 Consolidated EEO-1 Reports filed by federal contractors from 2016-2020.  Contractors have a 30-day period in which to file objections to the disclosure of their Type 2 reports.  Employers can file objections via an online OFCCP Submitter Notice Response Portal or by email to OFCCPSubmitterResponse@dol.gov.  If a company plans to file objections, but needs more time, it should immediately submit a request for an extension to the same email address.

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

The FOIA Request at Issue

Will Evans, a reporter with The Center for Investigative Reporting (“CIR”), initially submitted a FOIA request to OFCCP in January of 2019, seeking the Type 2 consolidated EEO-1 reports for all federal contractors for 2016.  Some contractors may remember being notified, and possibly objecting, to the FOIA request at that time.  Since then, CIR has amended its FOIA request several times.  The most recent was on June 2, 2022, when CIR expanded the request to reach all federal contractors and first-tier subcontractors for 2016-2020 Type 2 EEO-1 Reports.

Federal agencies are required to give notice to parties when their submitted information becomes the subject of a FOIA request.    On August 19, 2022, OFCCP published in the Federal Register a “Notice of Request under the Freedom of Information Act for Federal Contractors’ Type 2 Consolidated EEO-1 Report Data.”  OFCCP estimates that roughly 15,000 unique covered contractors merit notice here.

While The Center for Investigative Reporting FOIA request only seeks reports of federal contractors and subcontractors, the practical reality is that the request may encompass a potentially large number of businesses that are not covered contractors as well.  This is for a number of reasons, including: (i) employers sometimes misidentify as federal contractors in their EEO-1 filings; (ii) all entities of a corporate family are identified as federal contractors in the EEO-1 data if any of them are covered (even if some affiliates are not covered contractors); and (iii) OFCCP may erroneously identify companies as covered contractors or subcontractors, when they are not.

EEO-1 Reports and FOIA

EEO-1 Reports must be filed annually by all employers with 100 or more employees, and by OFCCP-covered federal contractors and first-tier subcontractors with 50 or more employees.  There are several types of EEO-1 Reports, depending on the organizational structure of the reporting entity.

The Center For Investigative Reporting’s FOIA request seeks only “Type 2” EEO-1 Reports — not to be confused with “Component 2” reports, which for a brief period required the production of compensation data.  “Type 2” Reports are the Consolidated Reports required of multi-establishment employers; they include aggregated data for all employees of the company — at headquarters as well as all establishments — categorized by race/ethnicity, sex, and job category.

EEO-1 Reports are promulgated and collected through a joint effort of the EEOC and the OFCCP called the EEO-1 Joint Reporting Committee. The EEOC is bound by statutory confidentiality under Title VII, and cannot make its compliance survey data public.  In fact, the EEOC provides that such data will only be released to a litigant who has filed a lawsuit.  OFCCP regulations state that “[EEO-1] Reports filed pursuant to this section shall be used only in connection with the administration of [EO 11246], the Civil Rights Act of 1964, or in furtherance of the purposes of the order and said Act.”  OFCCP takes the position based on a 1974 D.C. Circuit case that they are not bound by the EEOC’s confidentiality prohibitions.

FOIA is a federal law that provides for public access to information provided to the government upon request.  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 FOIA’s “Exemption 4,” which protects the disclosure of “trade secrets and commercial or financial information” that is privileged or confidential.

When a federal agency believes that information requested from it may be protected from disclosure under FOIA, it must notify the parties who submitted the information before it makes a determination.  Submitters must be given a “reasonable time” to respond, which here OFCCP has set at 30 days.

If a company desires to object, but cannot do so within the 30-day period, it should request an extension from the 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 30 days is not an inherently “reasonable period” and extend the objection period for all contractors.

What Should a Company Do?

Companies that have historically kept their EEO-1 data confidential and wish to maintain that confidentiality, should take immediate steps to file an objection to the FOIA request.  Such employers must act promptly to protect their information by filing objections or seeking an extension no later than September 19, 2022. A company that fails to respond by September 19, 2022 (without obtaining an extension) “will be considered to have no objection to the disclosure of the information” according to the OFCCP.

Any objections filed must include “at minimum” the following:

  • The contractor’s name, address, and contact information
  • The specific information in the EEO-1 Report considered to be a trade secret or commercial or financial information
  • Facts to establish the data as commercial or financial in nature
  • Whether the information is customarily kept private or closely held, the steps taken to protect its confidentiality, and to whom it has been disclosed
  • Whether the company believes the government has provided an express or implied assurance of confidentiality or, to the contrary, whether at submission it was implied that the government would disclose the information
  • How disclosure of the information would harm the interest of the contractor (e.g., harm to economic or business interests)

OFCCP will evaluate the objections, in light of its regulations and other law, and provide notice  of its decision whether to disclose the information.

We encourage you to contact your legal representative or a member of Seyfarth’s People Analytics team as soon as possible if your organization is interested in filing an objection with the OFCCP.