OFCCP Poised to Produce Contractors’ EEO-1 Data Following Losses in Litigation

Starting in 2018, the Center for Investigative Reporting (CIR) and a CIR reporter have been fighting to force OFCCP to disclose EEO-1 reports that have been filed by federal contractors.¹ These contractors have operated with the understanding that the government must keep such reports confidential. 

CIR initially requested reports pursuant to the Freedom of Information Act (FOIA) for a small number of federal contractors. In 2019, after OFCCP denied the request, CIR obtained a ruling from a U.S. magistrate judge in a California federal district court holding that EEO-1 reports were not exempt from FOIA disclosure because they do not constitute commercial information for purposes of FOIA Exemption 4, which was the basis on which OFCCP had declined to produce the reports. At the time, OFCCP chose not to appeal the magistrate judge’s ruling. Although one of the employers whose data had been ordered disclosed tried to intervene and appeal, the Ninth Circuit held that the employer had failed to preserve its rights and denied the appeal.

CIR subsequently filed an additional FOIA request seeking Consolidated EEO-1 reports for all federal contractors from 2016 through 2020. As required under FOIA, OFCCP offered contractors an opportunity to object to the disclosure. As discussed below, there are multiple grounds for objecting to the proposed disclosures. However, the OFCCP chose to focus on just one: FOIA Exemption 4, which, as described by the Ninth Circuit, 

allows agencies to withhold “trade secrets” and “commercial or financial information obtained from a person” that is “privileged or confidential.” 5 U.S.C. § 552(b)(4). The exemption protects entities that are required to submit information to the federal government against the competitive disadvantages that could result from disclosure of their private business information.

CIR again sued OFCCP over its application of this exemption and, in July 2025, the Ninth Circuit ruled that the exemption does not apply and that the EEO-1 data must be made public. Although there are arguments that the Ninth Circuit’s decision is incorrect as a matter of law, OFCCP chose not to seek further judicial review. Following further proceedings in the district court, and pursuant to agreements between OFCCP and CIR, OFCCP is now getting ready to produce contractors’ consolidated EEO-1 reports from 2016 through 2020. Absent a further challenge, the disclosures are scheduled to be made on February 25, 2026.

Although OFCCP based its decision to initially deny CIR’s FOIA request based only on Exemption 4, many contractors asserted objections on other grounds that clearly have merit. In particular, for smaller employers, this disclosure of information will permit the public to identify how individual employees have chosen to voluntarily self-identify or, in instances in which employees declined to self-identify, the determination made by the employer through visual observation. The disclosure of such information is barred by FOIA Exemption 6, which requires agencies to withhold information that would constitute an unwarranted violation of personal privacy.

More broadly, the proposed disclosure would appear to be barred by FOIA Exemption 3 and Section 709(d) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-8(d), which provides that EEO-1 data furnished by the EEOC to another agency “shall be furnished on condition that it not be made public by the recipient agency prior to the institution of a proceeding under State or local law involving such information.” It is possible OFCCP did not want to rely on this argument because it would have required an admission that OFCCP overstepped its legal authority when it began requesting EEO-1 data from the EEOC in the first place and that the EEOC breached its statutory obligation to protect EEO-1 data from public disclosure when it gave the data to OFCCP without requiring an agreement to maintain it as confidential. 

Contractors that timely objected to the disclosure of their data pursuant to Exemptions 3 or 6 may still have remedies, but will have to take immediate action to preserve them. 

Employers that were included in OFCCP’s proposed disclosures but objected to the disclosure based on a claim that they were not federal contractors within OFCCP’s jurisdiction during the relevant period, should contact OFCCP to ensure that their data will not be made public on February 25. These objections remain the subject of further proceedings in the litigation between OFCCP and CIR.

Employers that want to explore their options for protecting the 2016-20 data that OFCCP is now proposing to disclose should contact their legal counsel immediately.

Later requests for Contractors’ 2021 EEO-1 data are still pending before OFCCP and are not covered by the CIR litigation. Contractors concerned about protecting this data should also consult with their legal counsel.