Tuesday Insight – August 23, 2022: Contractor EEO-1 Reports Will be Released Unless Objection Filed

Sep 2, 2022

The deadline to object is September 19.

The Office of Federal Contract Compliance Programs announced that it plans to release Type 2 (or consolidated) EEO-1 Reports of all federal contractors for the past 5 years in response to a Freedom of Information Act request. Contractors have 30 days to object directly to the OFCCP regarding the release of their Type 2 reports. The OFCCP states that it will release Type 2 reports of all contractors who do not object.

According to the notification published in the Federal Register, the OFCCP received a FOIA request for all contractors’ EEO-1 Type 2 reports for 2016 through 2020. The Type 2 report is the consolidated report that includes information for all the company’s establishments combined. Thus, the Type 2 report will show a company’s racial and gender demographics by EEO-1 occupational category across the entire organization. Although the EEOC is prohibited by Title VII from releasing EEO-1 Reports, the OFCCP has no such restriction.

Although filing an objection with the OFCCP is essential to ensuring that the Type 2 report is not produced in response to this FOIA request, it may not necessarily be sufficient. At least one court previously ruled that an employer’s consolidated EEO-1 Report does not implicate any FOIA exemption and ordered the OFCCP to produce type 2 reports over contractors’ objections.

Below is additional information in Q&A format:

Who requested the information?

Will Evans of the Center of Investigative Reporting, the same entity involved in the lawsuit noted above.

Does the request include Component 2 compensation data?

No. The request only seeks information from Standard Form 100

How many contractors are covered by this FOIA request?

The OFCCP estimates 15,000 contractors may be covered.

When are objections due?

Objections are due by September 19th.

How can objections be submitted to the OFCCP?

To submit objections, contractors can complete a web form available on the OFCCP’s Submitter Notice Response Portal or email written objections to OFCCPSubmitterResponse@dol.gov.

What information should the objection include?

  • The contractor’s name, address, contact information.
  • Whether the contractor considers the information from its EEO-1 Report to be a trade secret or commercial information, and if so, why.
  • Whether the contractor keeps the requested information private or closely held, and if so, the steps taken to protect data contained in the reports and to whom it has been disclosed.
  • Whether the contractor contends that the government provided an express or implied assurance of confidentiality, and if so, an explanation.
  • Whether the contractor believes that there were expressed or implied indications at the time the information was submitted that the government would publicly disclose the information, and if so, an explanation.
  • Whether the contractor believes that disclosure of this information could cause harm to an interest protected by FOIA Exemption 4 (such as by causing genuine harm to your economic or business interests), and if so, an explanation.

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