A new Freedom of Information Act (“FOIA”) request may result in disclosure of federal contractors’ and first-tier subcontractors’ Type 2 Consolidated EEO-1 Report data (“EEO-1 data”) from the 2021 filing year to the public. On October 29, 2024, the Office of Federal Contract Compliance Programs (“OFCCP”) announced that they will be making EEO-1 data for reporting year 2021 public. As OFCCP believes that these reports may contain confidential commercial information, OFCCP is requesting that entities that file EEO-1 reports file a written objection by December 9, 2024.

What is the Consolidated EEO-1 report?

The Consolidated EEO-1 report is a data collection form mandated by the Equal Employment Opportunity Commission (“EEOC”) that requires multi-establishment employers to file workforce demographic data, including data categorized by job category, race, ethnicity, and gender for all of the employer’s locations consolidated into one report. Compensation data provided on prior reports is not included on the Consolidated EEO-1 report.

Other types of EEO-1 reports, including those filed by single-establishment employers, or individual establishment reports filed by multi-establishment employers, are not covered by the FOIA request.

Is my EEO-1 report going to be disclosed?

Contractors can search the list available here to determine whether their EEO-1 data is subject to the data request for reporting year 2021.

How do I prevent my EEO-1 report from getting disclosed?

Any contractor subject to disclosure must submit a written objection no later than December 9, 2024. Two options are available to submit the objection:

Option 1 (preferred): Submit written objections using the web form available here.

Option 2: Submit written objections via email to OFCCPSubmitterResponse@dol.gov or mail to:

• Office of Federal Contract Compliance Programs
  Michele Hodge
  200 Constitution Ave NW
  Washington, DC 20210

What must my written objection contain?

Regardless of method of submission, all written objections must contain:

1. Contractor’s name, address, and contact information for the contractor or its representative; and
2. Answers to the following questions in detail to determine whether the requested information should be disclosed:
   • What specific information from the 2021 EEO-1 Report does the contractor consider to be a trade secret or commercial or financial information?
   • What facts support the contractor’s belief that this information is commercial or financial in nature?
   • Does the contractor customarily keep the requested information private or closely-held? What steps have been taken by the contractor to protect the confidentiality of the requested data, and to whom has it been disclosed?
   • Does the contractor contend that the government provided an express or implied assurance of confidentiality? If no, were there express or implied indications at the time the information was submitted that the government would publicly disclose the information?
   • How would disclosure of this information harm an interest of the contractor protected by Exemption 4 (such as by causing foreseeable harm to the contractor’s economic or business interests)?

What happens if I fail to submit a written objection?

Contractors who fail to submit a timely written objection will be deemed to have no objection to the disclosure of that information to the public.

Read more about this request on the Federal Register’s website or more generally about EEO-1 reports. If you have questions about EEO-1 reports or this public disclosure, please reach out to a Kullman Law attorney for assistance.