Legal Update

Apr 21, 2023

OFCCP Releases EEO-1 Reports of Nearly 20,000 Federal Contractors

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On April 17, 2023, the Office of Federal Contract Compliance Programs (“OFCCP”) released the EEO-1 data of 19,277 federal contractors to a reporter named Will Evans with the Center for Investigative Reporting (“CIR”). The disclosure responds to a Freedom of Information Act (“FOIA”) request filed by Evans in June of 2022, where Evans and the CIR sought public access to the Type 2 EEO-1 Reports of all federal contractors for years 2016-2020. The “Type 2” is the “Consolidated” EEO-1 Report: a one-page document that lists all employees within a corporate organization (parents, subsidiaries, and affiliates together), by race, ethnicity, and gender, within ten occupational categories (from executives to service workers).  EEO-1 Reports are not publicly available outside the FOIA process, and many companies view the staffing and DEI data they contain to be confidential.  The CIR has also sued the OFCCP in federal court in California, over the Agency’s alleged failure to timely respond to its FOIA request. 

We have been closely monitoring this situation since August of last year, when the OFCCP first attempted to inform the contractor community about the FOIA request. The Agency published a notice in the Federal Register, advising contractors that their Type 2 EEO-1 Reports form 2016-2020 were subject to a FOIA request for public disclosure. OFCCP gave contractors until September 19, 2022 to object to the release of their data.  Thousands of contractors objected, but many did not see the publication, and missed the objection deadline.  OFCCP then granted a series of extensions and attempted additional forms of notice to impacted employers.  The final objection deadline was March 31, 2023.

On March 2, 2023, OFCCP released the EEO-1 data of twenty-one (21) federal contractors who had voluntarily agreed to disclosure of their information.  The Agency made its second release to the CIR on April 17, 2023, providing data from more than 50,000 EEO-1 reports from years 2016-2020.  The CIR is already reporting on the released information and what the data ostensibly reflects about diversity in American employment.

It is estimated that more than 4,000 federal contractors have objected to the release of their EEO-1 data.  OFCCP has not decided on those objections to date.  It will likely take several more months for the Agency to complete its assessment.