In October of 2024, the Office of Federal Contract Compliance Programs (“OFCCP”) announced it had received two Freedom of Information Act (“FOIA”) requests to disclose EEO-1 Type 2 Consolidated Report data, which is filed annually by prime federal government contractors and first tier sub-contractors. The Type 2 report is one of the annual filings required for multiple-establishment covered contractors. The report includes demographic data for all U.S. based employees categorized by race, ethnicity, gender and job category. The FOIA requests do not apply to companies that 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 requests to the OFCCP are for all covered contractor Type 2 Reports from 2021 and 2022. OFCCP currently has EEO-1 data only for 2021, and therefore, the Notice is limited to the 2021 data set. The requests were made by the University of Utah and a non-profit organization, As You Sow, which is dedicated to shareholder advocacy. 

The Notice issued by the OFCCP says 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 short window to submit written objections to the OFCCP regarding the disclosure of their company’s demographic data. The deadline for filing objections is December 10, 2024. Covered contractors who fail to respond with objections will be considered to have no objections to the disclosure of the company’s demographic data.

To facilitate 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 here.

Companies are advised to contact their Dinsmore 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.