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?
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.
Will the OFCCP honor all objections, or will it evaluate each objection individually?
The OFCCP’s notice states that contractors with objections must “submit a detailed written statement as to why the information is a trade secret or commercial or financial information that is privileged or confidential” and that it “will give careful consideration to the objection” before making a determination. The agency states that it will “independently evaluate” the objections that are submitted.
What if a contractor does not file an objection?
If no objection is filed, the OFCCP will assume that the contractor does not object to disclosure and will release the information.
Will contractors be notified if the OFCCP agrees with the objection?
Yes. The OFCCP will notify both the contractor and Mr. Evans of its decision to withhold the information.
What if the OFCCP disagrees with an objection?
If the OFCCP decides that disclosure of the Type 2 report is appropriate, it will provide written notice to the contractor for the reason and a date when the disclosure will be made.
Is there a resource for additional information?
Contractors who desire to retain the confidentiality of their Type 2 EEO-1 Reports should file an objection with the OFCCP no later than September 19, outlining why the information in the information is exempt from disclosure under FOIA.
Constangy attorneys have previously assisted clients with objections to FOIA requests for EEO-1 Reports, so please reach out to the Constangy lawyer of your choice for assistance if needed.
Our Affirmative Action Alert blog focuses on the latest news and topics affecting federal contractors and subcontractors and their compliance with affirmative action and other employment-related laws and regulations. With breaking news, quick updates, and headlines on the Office of Federal Contract Compliance Programs and affirmative action issues, this blog is a great resource for in-house counsel, HR managers, and other compliance professionals. Our blog is a companion to Constangy’s Affirmative Action newsletters, which address significant legislative, regulatory, and administrative proposals and changes. Subscribe to both to stay current on these important topics!
- October 2023
- September 2023
- August 2023
- May 2023
- April 2023
- March 2023
- January 2023
- November 2022
- October 2022
- September 2022
- August 2022
- March 2022
- February 2022
- January 2022
- December 2021
- November 2021
- October 2021
- September 2021
- July 2021
- June 2021
- April 2021
- March 2021
- January 2021
- December 2020
- November 2020
- October 2020
- September 2020
- July 2020
- May 2020
- April 2020
- March 2020
- February 2020
- January 2020
- November 2019
- October 2019
- September 2019
- August 2019
- July 2019
- June 2019
- May 2019
- April 2019
- March 2019
- February 2019
- December 2018
- October 2018
- September 2018
- August 2018
- July 2018
- June 2018
- May 2018
- April 2018
- March 2018
- February 2018
- January 2018
- December 2017
- November 2017
- October 2017