Is contractor EEO-1 data up for grabs?

DOL is ordered to release contractors' EEO-1 Report information.

The U.S. Department of Labor has lost a battle concerning the release of contractors’ EEO-1 Reports under the Freedom of Information Act. Federal Magistrate Judge Kandis A. Westmore of the Northern District of California ruled that the DOL must produce unredacted versions of the consolidated EEO-1 Reports for contractors identified in a FOIA request.

Center for Investigative Reporting v. DOL

The Center for Investigative Reporting, a non-profit news organization, submitted a FOIA request to the DOL, requesting EEO-1 Reports for numerous federal contractors. The DOL released the reports of any contractors who did not object; however, it declined to release EEO-1 Reports from any contractors who objected on the ground that the information was exempt from FOIA. The Center filed suit contesting the DOL’s refusal to release the EEO-1 Reports.

The ruling

Magistrate Judge Westmore held that the consolidated EEO-1 Reports were not exempt from the FOIA. Generally, the FOIA provides that the public is entitled to information possessed by the government. However, there are a number of exceptions to this general rule. The DOL and the affected contractors argued that the EEO-1 Reports fell under FOIA’s Exemption 4, which exempts disclosure of commercial or financial information. Judge Westmore disagreed, stating as follows:

There is no salary information, sales figures, departmental staffing levels, or other identifying information in these reports. Rather, the diversity reports merely disclose the workforce composition to ensure compliance with Executive Order 11,246, which prohibits employment discrimination by federal contractors.

Judge Westmore noted that the companywide information provides only a breakdown of employee demographics by broad EEO-1 category, which does not explain how the contractors allocate resources or indicate other information of a competitive nature. 

No need to panic!

Although the decision should be a concern to federal contractors, the scope of the decision is limited in several significant ways.

Consolidated reports only. Significantly, the Center requested only the consolidated, or Type 2, EEO-1 Reports. Because the Center did not seek EEO-1 Reports for individual establishments, that information will not have to be produced. 

Component 1 (basic) information only. In addition, the court's ruling is limited to "Component 1" EEO-1 Reports and does not apply to "Component 2," which required contractors to submit compensation data. It is likely that Component 2 data would be subject to a FOIA exemption. At the very least, a FOIA request that included Component 2 data would provide contractors with a much stronger argument against disclosure. 

Federal contractors only. The court's ruling does not apply to employers that are not federal contractors. Companies that are not federal contractors submit their EEO-1 Reports only to the Equal Employment Opportunity Commission, which is prohibited by Title VII from releasing this information under the FOIA or otherwise.  

On the other hand, EEO-1 Reports filed by federal contractors are shared with the DOL’s Office of Federal Contract Compliance Programs as required by the regulations. The OFCCP’s regulations include no prohibition on disclosure, so the EEO-1 Reports of federal contractors are exempt from disclosure only if a FOIA exemption applies.   

No application outside Northern District of California, and the DOL could appeal. Finally, the ruling comes from the Northern District of California and is presumably limited to that jurisdiction. It remains to be seen whether the DOL will adopt this standard nationwide or whether it will appeal the district court’s decision.

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!


* indicates required
Back to Page