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?
To submit objections, contractors can complete a web form available on the OFCCP’s Submitter Notice Response Portal or email written objections to OFCCPSubmitterResponse@dol.gov.
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?
Yes, the OFCCP has published FAQs, and contractors can also email OFCCP at SubmitterResponse@dol.gov or call 877-680-0971.
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.
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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