According to the Office of Federal Contract Compliance Programs (OFCCP), since 2019, Will Evans, a reporter for the Center for Investigative Reporting, has sought the Employment Information Report (EEO-1) data of federal contractors through a Freedom of Information Act (FOIA) request to OFCCP. Mr. Evans amended his FOIA request on June 2, 2022, and now seeks the Type 2 Consolidated EEO-1 Report demographic data of federal prime contractors and first-tier subcontractors for 2016–2020. OFCCP estimates that this impacts approximately 15,000 contractors and first-tier subcontractors.
What does this mean? Absent an objection, OFCCP could disclose your company’s Type 2 Consolidated EEO-1 Reports Component 1 data for 2016–2020 in response to Mr. Evans’s FOIA request.
What is an EEO-1 Report? The EEO-1 Report is the form used annually by the Equal Employment Opportunity Commission and OFCCP to collect a summary of an employer’s workforce data.
What is Component 1 data? Component 1 data is a demographic summary of an employer’s workforce categorized by race/ethnicity, sex, and job category. The EEOC also collected compensation data, referred to as Component 2 data, for 2017 and 2018, but Component 2 data is beyond the scope of the FOIA request.
Who must file an EEO-1 Report? An EEO-1 Report must be filed annually by employers with 100 or more employees and certain federal contractors with 50 or more employees. Specifically, the OFCCP regulations require the filing of an annual EEO-1 by every prime contractor or subcontractor not otherwise exempt from the regulations, and that:
- Has 50 or more employees
- Is a prime contractor or first-tier subcontractor
- Has a contract, subcontract, or purchase order amounting to $50,000 or more; serves as a depository of government funds in any amount; or is a financial institution that is an issuing and paying agent for US savings bonds and savings notes
What is a Type 2 EEO-1 Report? A Type 2 EEO-1 Report is one of the reports prepared by a multi-establishment employer and is a consolidated report of demographic data for all employees at its headquarters and all establishments.
- Does this impact your company? Yes, if your company filed a Type 2 EEO-1 Report for one or more years between 2016 and 2020, and one of the following is true:
- Your company is a federal prime contractor, or
- Your company is a first-tier subcontractor, or
- Your company incorrectly indicated on its EEO-1 filing that it is a federal prime contractor or first-tier subcontractor.
My company is impacted. How long does it have to object? OFCCP has given companies until September 19, 2022, to file an objection.
On what basis can my company object? OFCCP has stated in its notice in the Federal Register that it has reason to believe the requested information may be protected from disclosure under FOIA Exemption 4 as confidential commercial information. OFCCP has outlined five questions, that it believes an objecting company should address in detail, at a minimum, to allow OFCCP to evaluate the objection and determine whether the information should be withheld or disclosed pursuant to Exemption 4. In addition to Exemption 4, a company may also wish to explore other grounds for its objection.
If your company wants to prevent its EEO-1 Reports from being disclosed in response to this FOIA request, the company should take steps to file its objection with OFCCP in advance of this fast-approaching deadline. If you need help analyzing whether to file an objection, or you want assistance with filing an objection, you may contact the authors or your relationship partner at McCarter.