Hunton Employment & Labor Perspectives

On December 23, 2023, a federal District Court in California issued an order compelling the OFCCP to produce formerly-withheld EEO-1 reports to a news organization who submitted Freedom of Information Act (FOIA) requests for the reports. This order is significant because it compels the OFCCP to produce the EEO-1 reports for all federal contractors between 2016 and 2020. The plaintiff news organization submitted four FOIA requests to the OFCCP between 2019 and 2022 requesting all EEO-1 reports submitted by all federal contractors from 2016 through 2020. OFCCP published a notice in the Federal Register informing all contractors of the requests and an opportunity to object. OFCCP released all EEO-1 reports from all non-objecting contractors. The instant litigation relates to the EEO-1 reports of the objecting contractors.

The court considered and rejected the OFCCP’s argument that the EEO-1 reports requested, to which 4,796 contractors objected to the disclosure of, are exempt from FOIA disclosure. The OFCCP relied on Exemption 4 to FOIA, which excuses mandatory disclosure for any commercial or financial information obtained from a person or by the government that is also privileged or confidential. The OFCCP argued that the EEO-1 reports are both commercial and confidential in nature and thus exempt from disclosure. Specifically, it argued that the reports contain information about headcount totals and staffing levels across job occupation categories and demographic data that reveals a company’s diversity within its workforce, which the OFCCP argued is all “commercial” in nature.

The court rejected these arguments, finding that the information contained in EEO-1 reports is “too attenuated from the commercial aspects of business” to satisfy Exemption 4’s commercial nature inquiry. The court specifically held that “[t]he EEO-1 form contains broadly sweeping categories such as ‘professionals’ and ‘senior officials’ which are to be used irrespective of relevant job categories that are found within any one industry. As a result, the report cannot itself yield any commercial insight that is specific to the operations of the federal contractor.” The court went on to find that the evidence presented “posit[s] a vague connection between the data and the commercial success of each company but do not demonstrate the inherently commercial nature of the diversity data. Like names or birthdays, the demographic background of employees does not speak to the commercial contributions of a company’s workforce” and denied application of Exemption 4 to the EEO-1 reports based on demographic data.

The order compels production of EEO-1 reports from the almost-5,000 contractors that objected to their reports’ disclosure. The Department of Labor must appeal the order or comply by February 20. Absent a reversal on appeal, federal contractors should be prepared for their EEO-1 reports to be released to, and possibly reported on by, the plaintiff news organization in this case.