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Many federal contractors are required to file Type 2 Consolidated Employer Information Reports, Standard Form 100 (EEO-1 Reports). Generally, employers that are subject to Title VII of the Civil Rights Act of 1964, as amended, and has 100 or more employees must file an EEO-1 Report with the Equal Employment Opportunity Commission (EEOC). In addition, the Office of Federal Contract Compliance Program’s (OFCCP) regulations also require federal contractors and first-tier subcontractors that are covered by Executive Order 11246 (federal contractors who do over $10,000 in government business in one year) and that have 50 or more employees to file the EEO-1 Report. The EEO-1 Report contains demographic data for all employees, categorized by race/ethnicity, sex, and job category. You can review past EEO-1 reports you filed here.

The EEOC received a FOIA request for all EEO-1 Reports filed from 2016 to 2020. The EEOC determined that it must produce the reports, unless the information contained in the reports are confidential. The EEOC is providing federal contractors with the option of submitting objections to the production of their EEO-1 Reports, through an online Submitter Notice Response Portal.

OFFCP has published a FAQ addressing the issue. The FAQ lists the information federal contractors should include if they file an objection:

• Do you consider information from your EEO-1 Report to be a trade secret or commercial information? If yes, please explain why.
• Do you customarily keep the requested information private or closely held? If yes, please explain what steps have been taken to protect data contained in your reports, and to whom it has been disclosed?
• Do you contend that the government provided an express or implied assurance of confidentiality? If yes, please explain. If no, skip to the next question.
• If you answered “no” to the previous question, were there expressed or implied indications at the time the information was submitted that the government would publicly disclose the information? If yes, please explain.
• Do you believe the disclosure of this information could cause harm to an interest protected by Exemption 4 (such as by causing genuine harm to your economic or business interests)? If yes, please explain.

If OFCCP does not receive a written objection by the deadline from a contractor who submitted EEO-1 reports, the agency will assume the party has no objection to disclosure and will begin the process of sending the contractor’s Type 2 EEO-1 Report data to the FOIA requester.

The deadline to submit an objection to production of EE0-1 reports is now October 19, 2022. Those who have submitted EE0-1 reports in the past should consider and discuss with their lawyer whether to file an objection to producing employee information.

This article summarizes aspects of the law and does not constitute legal advice. For legal advice for your situation, you should contact the author of this article.

 

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