On August 19, 2022, the Office of Federal Contract Compliance Programs (“OFCCP”) published that it had received a Freedom of Information Act (“FOIA”) request from a journalist with the Center for Investigative Reporting. The request sought the disclosure of EEO-1 Type 2 Consolidated Report data filed annually by prime federal government contractors and first tier sub-contractors (“covered contractors”). The Type 2 report is one of the reports that multiple-establishment covered contractors must file annually which consists of demographic data for all U.S. based employees categorized by race, ethnicity, gender, and job category. The FOIA request does not apply to companies which file an EEO-1 Report as a single establishment which is defined as a company that does business at only one establishment in one location.

The FOIA request to the OFCCP is for all covered contractor Type 2 Reports from 2016 through 2020.

The Notice issued by the OFCCP states that it has reason to believe the information requested may be protected from disclosure under FOIA Exemption 4 which protects against the disclosure of “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” 5 U.S.C. 552(b)(4).

Covered contractors have a limited window for filing written objections with the OFCCP to the disclosure of their company’s demographic data. The deadline originally was scheduled for September 19, 2022. However, the OFCCP has extended the deadline for filing objections until October 19, 2022. Covered contractors which fail to respond with objections will be considered to have no objections to the disclosure of their company’s demographic data.

Among the possible objections a covered contractors should consider is an objection that the Type 2 EEO-1 report is commercial information as it relates to the company’s business or trade, and it includes records revealing business operations, such as those that are instrumental for legal compliance.  The submission includes a company’s EEOC-assigned company number, Tax Identification Number, DUNS number, name and job title of the executive who certified the reports, and the name, title, email and telephone number of the person who uploaded the data into the EEOC’s portal.

Additionally, if the objecting company does not publish its employees’ demographic data, it should include an objection that revelation of individually-identifying information violates privacy and confidentiality promises because the employees did not expect their gender and race/ethnicity information to be shared when they self-identified.

To facilitate covered contractors’ written objections and the OFCCP’s assessment of them, the agency has created a portal to collect relevant information from covered contractors. The portal can be found at Submitter Notice Response Portal

Companies should contact their Dinsmore labor and employment attorney with any questions regarding the OFCCP’s Notice or with help in drafting objections to the disclosure of the demographic data of its U.S. based employees. Read more about Dinsmore’s Affirmative Action Plans and OFCCP Compliance here.