OFCCP published a notice in the Federal Register on August 19, 2022 stating that it has received a FOIA request from an investigative reporter for all EEO-1 Type 2 consolidated reports filed by federal contractors and first tier subcontractors from 2016 to 2020. OFFCP estimates that the request affects approximately 15,000 government contractors.

Type 2 consolidated reports are reports filed by multi-establishment employers and include aggregated demographic data for all of the organization’s employees, categorized by race/ethnicity, sex, and job category. Notably, EEO-1 Component 2 compensation information is not within the scope of the FOIA request.

OFCCP states that the requested EEO-1 data “may be protected from disclosure under FOIA Exemption 4,” although OFCCP has not yet made a determination.  Exemption 4 exempts from disclosure (among other things) confidential commercial information.

Contractors have the opportunity to object to disclosure of their EEO-1 data by September 19, 2022, and may do so using a portal that OFCCP has set up for this purpose. Filing an objection does not guarantee that the contractor’s data will not be disclosed; however, failure to object will likely result in disclosure. Additional information about the objection process is available in FAQs published by OFCCP.

Action Items for Federal Contractors

• Determine whether your organization filed Type 2 consolidated EEO-1 reports at any time between 2016 and 2020. According to the OFFCP FAQs, prior year reports are available in the EEO-1 Online Filing System.

• Review any EEO-1 reports subject to the FOIA request carefully to determine whether they include information that should be protected from public disclosure (including, for example, in the “remarks” section at the bottom of the report). 

• Consider whether to object to disclosure of your EEO-1 data. This decision will be different for each contractor and will depend on a number of factors, including the likelihood of harm from disclosure (for example, to economic or business interests), and the extent to which the entity has publicly disclosed information about its workforce demographics in the past. Contractors should also consider the potential for negative publicity associated with filing an objection.

For assistance with filing an objection or determining whether it is in your organization’s interest to do so, contact one of the authors of this post or the Hogan Lovells attorney with whom you regularly work.

Authored by George Ingham, Amy Folsom Kett, and Heather McAdams.