DOL must appeal or comply by February 20.
Another chapter has unfolded in the ongoing saga relating to the unprecedented and massive FOIA request for all federal contractors’ EEO-1 Reports.
As we previously reported, Will Evans, a reporter with The Center for Investigative Reporting, submitted a Freedom of Information Act request to the Office of Federal Contract Compliance Programs seeking the consolidated (or Type 2) EEO-1 Reports for all federal contractors from 2016 through 2019. The OFCCP provided contractors with the opportunity to object, and released the EEO-1 Reports of those contractors who did not object.
Meanwhile, Mr. Evans and his organization filed suit against the U.S. Department of Labor (of which the OFCCP is a sub-agency) to obtain a court order requiring the OFCCP to release the remaining EEO-1 Reports for all contractors.
On December 23, Judge William Alsup of the federal court for the Northern District of California issued an order compelling the OFCCP to produce the remaining EEO-1 Reports. Judge Alsup rejected arguments that the EEO-1 Reports are exempt from disclosure under the FOIA. Specifically, he found that the EEO-1 Reports are not “commercial” information protected from disclosure. The judge stated as follows:
The 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.
Judge Alsup found that there is nothing inherently "commercial" regarding employee diversity data and therefore that the EEO-1 Reports were not exempt from disclosure. Because the “commercial” information element was not satisfied, the court declined to address whether the confidentiality requirement had been met.
Initially, the court ordered the OFCCP to produce the remaining EEO-1 Reports of contractors within 28 days (or by January 19), but then issued a subsequent order extending that deadline to February 20 – the deadline for the DOL to file an appeal.
Thus, contractors should be prepared for their 2016-2019 consolidated EEO-1 Reports to be released and potentially reported upon by Mr. Evans and his organization. However, if the DOL appeals, contractors could get a reprieve -- either temporary or permanent.
PartnerCara co-chairs Constangy’s practice groups relating to EEO/Contractor Compliance, Reporting & Analytics, and DEI Compliance. She advises employers on proactive strategies to help avoid litigation and has defended employers ...
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