By: Joanna Colosimo and Zach Olsen
On April 17, 2023, aggregated company race/ethnicity and sex counts by EEO-1 category as a part of the EEO-1 consolidated reports from 2016-2020 were released for federal contractors and subcontractors that did not object to a Freedom of Information Act (FOIA) request. The FOIA request was made by Will Evans at the Center for Investigative Reporting and was received by the Office of Federal Contract Compliance Programs (OFCCP) in 2016. (It was amended multiple times.) OFCCP communicated with federal contractors and subcontractors in 2022 and allowed them the opportunity to object to the release of their EEO-1 Type 2 reports under FOIA’s lawful exemptions.
While this data is now in the public sphere, it is still unclear what the full impact will be on federal contractors. It is clear, however, that there will be challenges faced by both federal contractors that objected to the release of their EEO-1 data and for those who did not.
Non-Objectors
For employers who did not object to the release their EEO-1 Type 2 data, there potential pros and cons:
- Pro: Some news outlets are already reporting aggregated improvements to minority and female representation in leadership across companies or industries. Additionally, news outlets could potentially highlight promising trends for individual companies. For some companies, the information about their competitors could be helpful for benchmarking employment representation trends for their own internal diversity, equity, and inclusion initiatives.
- Con: Some news outlets could leverage any stagnant growth or even decreases in minority and female representation for industries, groupings, or companies in an aggregated or disaggregated way. In addition, organizations could leverage information about their competitor’s race/ethnicity or sex data in a way to highlight representation gaps in a negative light.
Objectors
Federal contractors that did object to the release of their EEO-1 data could also face potential challenges. While the EEO-1 data is unavailable to be scrutinized by outside stakeholders, the act of objecting in itself could become the focus of inquiry and criticism.
The Center for Investigative Reporting (CIR) has already reported on the release of the EEO-1 data for non-objectors. In the article, CIR appears to have cross-referenced the list of employers that didn’t object with databases of all employers with federal contracts to determine a list of potential employers that objected.
Further, DCI has confirmed at least one instance where the Center for Investigative Reporting contacted a federal contractor that did not appear in the data released by OFCCP. That employer in fact had objected to the release of their EEO-1 data.
Federal contractor objectors should prepare for the possibility that media, researchers, others demand the information that was not released. These stakeholders could also question why the employer is ‘hiding’ their representation data from the media and/or researchers.
These stakeholders may not necessarily be media or researchers, either. There could also be backlash from shareholders, employees, or prospective talent. They may believe that the company objected due to fear of how their numbers may be perceived by the public. It’s certainly possible internal stakeholders could push the employer to release the EEO-1 information due to negative publicity for objecting to the FOIA request.
Trends Lean Toward Transparency
Although aggregated EEO-1 data is available by industry publicly at the EEOC website already, this is the first time company-specific information was released in a scalable way by a federal enforcement agency.
Many employers were already releasing this type of information in public ESG disclosures or public statements. In many cases, employers were choosing the data points from the EEO-1 consolidated reports to release in their own disclosures; however, once employers went on record reporting this information in an ESG report, it became a more difficult argument to articulate why they would object to a FOIA release of the same type of information. Some employers are reviewing their strategies for public disclosures to balance transparency and risk given this.
DCI will continue to monitor the impacts of this release and provide updates as they become available.
