January 10, 2020
A federal court has ordered the Department of Labor (DOL) to turn over workforce demographic data for 10 federal contractors in response to a Freedom of Information Act (FOIA) request from investigative journalists.
Title VII prohibits disclosure by EEOC but a 1965 executive order placing equal employment opportunity requirements on federal contractors does not do so explicitly. For the past 50 years, the Equal Employment Opportunity Commission has shared the EEO-1 (diversity) data it collects on federal contractors with the DOL's Office of Federal Contract Compliance Programs (OFCCP), which then uses the data when conducting its audits.
While the OFCCP has traditionally refused to release the data under FOIA for “commercial” reasons that “could cause financial harm to the companies,” the court decision could change that.
The OFCCP has 60 days to turn over the data or appeal the court order.
The decision is the first to require the DOL to disclose employer information following a June 2019 U.S. Supreme Court ruling that broadened the FOIA exemption for “commercial or financial” information that’s considered “privileged or confidential.”
Outlook: It is unclear at this point whether the decision will be appealed. Notably, the OFCCP has announced that it will not request or accept the EEO-1 Component 2 pay data that the EEOC collected from employers this year. Separately, Sen. Patty Murray (D-WA) has sent a letter to the DOL asking the OFCCP to reconsider its decision.