Objections to Disclosure of EEO-1 Data Due Sept. 19

Allen Smith, J.D. By Allen Smith, J.D. August 26, 2022
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U.S. Department of Labor headquarters

​Federal contractors that submit EEO-1 reports don't have much time to object to the Office of Federal Contract Compliance Programs' (OFCCP's) recently announced disclosure to the public of EEO-1 data. The agency must receive any objections to the disclosure by Sept. 19.

The OFCCP notified contractors about the disclosure through the Federal Register, an e-mail to all federal contractors for whom the OFCCP has contact information, and its website.

The planned disclosure is in response to a 2019 Freedom of Information Act (FOIA) request for Type 2 Consolidated EEO-1 report data submitted by federal contractors and first-tier subcontractors. In June 2022, the request was amended to include all data submitted by contractors and first-tier subcontractors from 2016 until 2020.

The Federal Register notice includes a list of questions that should be addressed by contractors that wish to object to the disclosure of their Type 2 Consolidated EEO-1 Report data. The OFCCP also has created the submitter notice response portal for objectors. The portal page includes a link to frequently asked questions.

Type 2 Consolidated Report

All employers with 100 or more employees—and federal contractors with 50 or more employees—are legally required to annually file EEO-1 reports that summarize employee headcount as of a moment in time by worksite, job categories, sex, and race or ethnicity, said David Goldstein, an attorney with Littler in Minneapolis.

"Different types of reports are filed for the headquarters location of the employer or its ultimate parent if there are multiple related employing entities—and for every other location," he said. "The Type 2 Consolidated Report is generated by the EEO-1 reporting system and covers the entire corporate enterprise, aggregating all subsidiaries and locations in a single report."

The potential disclosure is applicable only to federal contractors and subcontractors that file for multiple establishments because employers with only a single location do not file a Type 2 report, explained Lauren Hicks, an attorney with Ogletree Deakins in Atlanta and Indianapolis.

That said, "aggregate data may include data for federal contractors and nonfederal contractors, such that data from nonfederal contractors also may be released," said Debra Friedman, an attorney with Cozen O'Connor in Philadelphia.

"So this is not just an issue for federal contractors," Goldstein said. "Any employer that is concerned about the possible publication of its confidential information should be asking OFCCP to indicate whether or not its data is included in this planned disclosure."

He also recommended that employers ask the OFCCP to provide them with a copy of the data that the agency is proposing to produce. "It makes sense to review the proposed production before deciding whether to object," he said.

Hicks added that there has been some confusion due to the terminology of the data to be released. The Type 2 EEO-1 report refers to the Consolidated Component 1 EEO-1 employee demographics report, a separate report from the EEO-1 Component 2 compensation report. The EEO-1 Component 2 compensation report is not within the scope of this FOIA request, she said.

Reasons for Objections

"Federal contractors may consider objecting on multiple grounds, including pursuant to Exemption 4 of FOIA, which protects privileged or confidential trade secrets and commercial or financial information," noted Eric Felsberg and Taylor Napoli, attorneys with Jackson Lewis in Melville, N.Y., in a joint e-mail.

"Contractors can also object on additional grounds, such as under Exemptions 6 and 7 of FOIA, which protect personal privacy interests," they added. "Objections can be fact-sensitive and therefore may differ among various employers."

Concerns vary depending on, among other things, the size of the employer, the number of locations and the period covered by the reports, Goldstein said.

Employees provide demographic information to companies under a general assurance of privacy, and the release of that information could cause employees to be less willing to provide that information in the future, Felsberg and Napoli noted.

"Additionally, the EEO-1 reports would be released to a third party with no context, which may cause the information to be misinterpreted," they stated. "Employers will be unable to explain any data nuances."

The information in the Type 2 EEO-1 reports could reveal workforce trends or give competitors insight into the company's hiring strategies, Hicks said. "Businesses often consider the makeup of an executive team or other highly skilled employees to be particularly confidential."

She added, "There has also been a general trend post-2020 to allocate more resources into DE&I [diversity, equity and inclusion] initiatives, so the age of this data may reveal demographic information that fails to highlight more recent diversity successes."

The data also does not consider nonbinary gender identities, Friedman noted. "Accordingly, it may not provide a full picture of the race/ethnicity and sex make-up of the workforce, but nevertheless may be used to support discrimination claims or to question an employer's commitment to diversity, equity and inclusion," she said.

The Equal Employment Opportunity Commission, which is the primary driver and recipient of EEO-1 data, is prohibited by law from releasing EEO-1 data, Goldstein said.

"That OFCCP has this data and is taking the position that it might be required to produce it in response to a FOIA request represents a disregard of a clear congressional intention to protect EEO-1 reports from disclosure," he stated.

Goldstein added that there is a good argument that the OFCCP has misinterpreted the law and that the agency is not permitted to release any EEO-1 data under FOIA.

Failure to object now may adversely affect an employer's ability to successfully object in the future, Felsberg and Napoli noted.

Some Employers Disclose Data

Employers sometimes release demographic information publicly to support their DE&I efforts or improve accountability, Hicks said.

"Some employers choose to disclose the EEO-1 Type 2 on the employer's website or other public filing, while other employers may choose to disclose demographic information in a higher-level summary format," she noted.

Nonetheless, "many employers still do not disclose any demographic information publicly," she said.

Many contractors believe that a public disclosure of their employee information "could put them at a competitive disadvantage," said Jeffrey Kopp, an attorney with Foley & Lardner in Detroit.

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