OFCCP to Release EEO-1 Type 2 Reports in 2023

Beginning in the new year, the Office of Federal Contract Compliance Programs (OFCCP) will release several years’ worth of federal contractors’ EEO-1 type 2 reports.

Employers were given a deadline of October 19, 2022, to object to the release of this data. If you believe there is an error and that your company is exempt from disclosure, contact OFCCP as soon as possible, but no later than January 2, 2023.

Why is OFCCP releasing EEO-1 type 2 data?

In 2019, the Center for Investigative Reporting (CIR) filed a Freedom of Information Request (FOIA) with OFCCP seeking all type 2 consolidated EEO-1 reports filed by federal contractors starting in 2016.

OFCCP notified contractors via the Federal Registrar of the October deadline to object to the release of their data. In its notice, the agency estimated that more than 15,000 contractors were subject to the FOIA request.

It is possible that non-federal contractors will also be erroneously subject to the EEO-1 report disclosure. Employers should confirm directly with OFCCP whether the request applies to them or not. 

What is the significance of EEO-1 type 2 reports?

EEO-1 type 2 reports contain federal contractors’ consolidated employee demographic data, including race, gender/ethnicity, and EEO-1 job category. The goal of disclosing this information is to investigate potential representation issues and discrimination. Ultimately, the goal of the disclosure is to promote workforce transparency. 

FOIA contains exemptions under which agencies may redact, or withhold entirely certain information. For example, FOIA Exemption 4 protects privileged and confidential information, such as trade secrets and commercial or financial information, from disclosure.

According to OFCCP’s notice in the Federal Registrar, EEO-1 report data requested by CIR may be protected under this exemption, providing a basis for contractors to object to the disclosure.

What is the status of the FOIA request?

OFCCP’s compliance with the request has become the subject of litigation. On November 5, 2022, CIR filed a complaint in the Northern District of California against the agency for failing to respond to its request within 20 business days. The lawsuit seeks to require OFCCP to produce the requested records, including lists of federal contractors that did or did not consent to the release of their data.

The Department of Labor has not yet responded to the complaint, and it remains to be seen how the court will proceed.

This case shows the increasing demand for companies’ workforce data to be made public. EEO-1 reports reveal how employers are performing when it comes to diversity efforts, and spotlight workplace discrimination practices, whether intentional or not. 

Working with a professional pay equity, diversity, and inclusion software provider is the best way to understand your company’s workforce data. Contact Trusaic to learn about how we can assist your organization.

For more information on the importance of transparency in the workplace, download our research report, Creating a Culture of Diversity, Equity, and Inclusion, conducted by the Harvard Business Review.