EEO Compliance Dispatch

As we previously reported, the Center for Investigative Reporting and its reporter Will Evans are battling the U.S. Department of Labor over its refusal to produce federal contractors’ EEO-1 Reports.

The U.S. Court of Appeals for the Ninth Circuit recently held that the EEO-1 Reports are not exempt from the Freedom of Information Act and must be released. 

In 2022, Mr. Evans and the CIR requested that the Office of Federal Contract Compliance Programs produce the consolidated (or Type 2) EEO-1 Reports for all federal contractors from 2016 through 2020. They made a subsequent request for 2021 EEO-1 Reports. The OFCCP provided contractors an opportunity to object to the disclosure but released the EEO-1 Reports of contractors who did not object.

The DOL refused to produce the Reports of contractors who objected, arguing that the information was exempt from FOIA under Exemption 4. This FOIA exemption permits the government to withhold commercial or financial information that is privileged or confidential. The DOL ultimately withheld 16,755 Reports of 4,141 objecting contractors on the ground that the Reports contained confidential commercial information. The CIR and Mr. Evans sued the DOL, seeking to force it to disclose the Reports.

In January, a federal district court in California ruled that the DOL had to produce the withheld Reports, and the DOL appealed. On July 30, the Ninth Circuit affirmed, finding that the data in an EEO-1 Report is not “commercial” within the meaning of FOIA. Relying on the dictionary definition of “commercial,” the court found that EEO-1 Reports were not the object or subject of commerce – the exchange of goods or services or the making of a profit. According to the court, none of the information in the Reports was designed to be bought or sold, nor did the information pertain to business or trade. 

As stated by the Ninth Circuit,

[EEO-1 Reports] do not disclose any details about the services provided by federal contractors, the prices charged for those services, the resulting profits, the terms of the contractors’ agreements with the government, or any similar information that we or other courts ordinarily treat as “commercial.” So the EEO reports do not, without more, reveal anything about the exchange of goods or services.

The DOL has 60 days to seek review of the ruling by the U.S. Supreme Court. To date, the agency has not announced what it plans to do. Contractors who objected to the production of the EEO-1 Reports should prepare for their possible release.

For examples of how CIR and Mr. Evans used the EEO-1 Reports already provided, their articles can be found here and here. Spoiler alert: they generally believe employers are not doing enough to achieve diversity.