OFCCP Extends Deadline to Object to Release of EEO-1 Reports; Employers Should Consider Submitting Objections

On August 19, 2022, the Office of Federal Contract Compliance Programs (OFCCP) announced the impending release of federal contractors’ Type-2 EEO-1 Reports from 2016-2020 in response to a Freedom of Information Act (FOIA) request submitted by Will Evans from the Center for Investigative Reporting (CIR). The OFCCP initially informed contractors that they could object to the release of their EEO-1 Reports by September 19, 2022, and the OFCCP would consider (but did not guarantee) deeming the requesting contractors’ EEO-1 Reports exempt from CIR’s FOIA request under Exemption 4. The OFCCP recently extended the deadline for federal contractors to submit objections to October 19, 2022.

Employers with 100 or more employees that are subject to Title VII, and employers with 50 or more employees that hold certain federal contracts, are required to file EEO-1 Reports annually. EEO-1 Reports include information regarding the number of individuals working for the employer as well as data regarding the sex, race, and ethnicities of those employees. While federal law prohibits the EEOC from making EEO-1 Reports public, the OFCCP does not believe the prohibition applies to it. Thus, the OFCCP established a procedure for handling FOIA requests of  EEO-1 Reports, whereby it allows federal contractors to raise any appropriate objections to the production before releasing the reports.

Though the impending release of EEO-1 Reports is limited to federal contractors, it may also implicate EEO-1 Reports of employers who are not federal contractors. This could be because  (1) the employer selected wrong answers while completing its Employer Information Report due to the confusing way in which the EEOC’s questions are phrased; (2) the employer is a parent company of a federal contractor and failed to properly distinguish itself from the contractor entity; or (3) the OFCCP—which regularly includes non-contractor entities in its Corporate Scheduling Announcement Lists by mistake—improperly has in its possession these entities’ EEO-1 Reports and inadvertently releases them. Emphasizing this third concern, the OFCCP’s August, 19 2022 announcement estimated that the request covers approximately 15,000 unique government contractors, but makes no effort to identify those contractors.

An employer who chooses not to object to the OFCCP’s release of its EEO-1 Reports should consider the potential risks associated with having its EEO-1 Reports made public, such as (1) competitors reverse-engineering data contained in the reports to determine the employer’s business health (whether the employer’s workforce is expanding or contracting year-to-year); (2) competitors piggybacking off of the employer’s risk-taking efforts by gauging the employer’s business health following the employer’s implementation of new business technology or strategies; and (3) meritless discrimination lawsuits based on, or supported by, data contained in the employer’s EEO-1 Reports.

Non-government contractor employers whose information may be subject to inadvertent publication by the OFCCP can object to the release of any of their EEO-1 reports on the basis that such reports are not encompassed in the scope of the FOIA request and should not be released (however, as the OFCCP should not be in possession of such information in the first place, it is unclear whether such objections will have any impact).

Further, as previously mentioned, FOIA Exemption 4 may serve as a valid basis for objecting to the release. In preparing objections on the basis of Exemption 4, and in addition to addressing the other, more ascertainable requirements of Exemption 4 (confidentiality and foreseeable harm), employers should focus on the commercial nature and value of their information contained in EEO-1 Reports. The information contained in EEO-1 Reports (1) has independent commercial value to competitors (by providing insight into employers’ business health and enabling competitors to piggyback off of employers’ strategic risk taking); and (2) could serve as the basis for or support meritless litigation brought by opportunistic plaintiffs’ attorneys. However, a recent court decision has rendered unclear whether the information contained in EEO-1 Reports satisfies the “commercial information” requirement of Exemption 4.

Additionally, employers may submit objections based on FOIA Exemption 3, which applies to information exempted from disclosure by statute. Thus, Exemption 3 incorporates 42 U.S.C. § 2000e-8(e), which prohibits the EEOC from “mak[ing] public” EEO-1 Reports.” While that statute does not directly apply to the OFCCP, the memorandum of understanding between the EEOC and the OFCCP that serves as the basis for the OFCCP’s procurement of the EEO-1 Reports, specifically binds the OFCCP to the strictures of the statute, rendering the EEO-1 Reports in the OFCCP’s possession potentially exempt from release under Exemption 3.

For these reasons, federal contractors and other employers who file EEO-1 Reports should strongly consider objecting to the OFCCP’s release of their EEO-1 Reports on the basis(es) that (1) such exceeds the scope of the FOIA request, (2) such is exempt under Exemption 4, and/or (3) such is exempt under Exemption 3. Even though submitting objections does not guarantee that the OFCCP will refrain from releasing the EEO-1 Reports, it presumably makes it more likely. To that end, and considering the nuances of the FOIA exemptions and the confusing language contained in the OFCCP’s online objection portal (the OFCCP’s preferred method for employers to submit objections), employers that decide to submit objections to the OFCCP’s release of Type-2 EEO-1 Reports should consider obtaining legal counsel for guidance on how to file objections that stand the best chance of succeeding.