Court Orders DOL to Release Company Demographic Data

Thousands of companies recently lost their bid to prevent public disclosure of their workforce demographic data. On Dec. 22, the U.S. District Court for the Northern District of California ruled that the U.S. Department of Labor (DOL) must turn over the information to the Center for Investigative Reporting, a nonprofit investigative news organization in Emeryville, Calif.

“This order is significant because it compels the [DOL’s Office of Federal Contract Compliance Programs] to produce the EEO-1 reports for all federal contractors between 2016 and 2020,” said Meredith Gregson, an attorney with Hunton Andrews Kurth in Austin, Texas.

Private employers with 100 or more employees, and federal contractors with 50 or more employees, must submit EEO-1 forms to the U.S. Equal Employment Opportunity Commission, including their number of workers by job category, sex and race. The reports list aggregate data, not information on individuals. The DOL uses the reports to enforce laws that prohibit unlawful employment discrimination.

The news organization sought copies of the EEO-1 reports through a Freedom of Information Act (FOIA) request. This request covered about 75,000 reports from 24,355 federal contractors. The DOL released all EEO-1 reports of about 20,000 companies that didn’t object. About 4,800 companies objected to the disclosure, according to court documents.

The news organization asked the court to order the DOL to release the remaining reports.

Legal Application

To promote government transparency, the FOIA generally requires full or partial disclosure of documents controlled by the U.S. government, state or other public authority upon request. There are exceptions based on personal privacy, national security, law enforcement and trade secrets.

The DOL “argued the EEO-1 reports should be considered confidential business information, deserving protection under the Trade Secrets Act. The court dismissed this argument, stating EEO-1 report data do not qualify as trade secrets or confidential commercial information under the act,” said Joy Chin, an attorney with Jackson Lewis in Long Island, N.Y.

The DOL argued that workforce demographic composition is a core operational metric that is critical to corporations and their profitability. It claimed the EEO-1 reports could potentially reveal a company’s business model or strategy in the distribution of a workforce.

However, the court concluded, “Like names or birthdays, the demographic background of employees does not speak to the commercial contributions of a company’s workforce.”

As a result, federal contractors “should prepare for potential outcomes of EEO-1 disclosure, as the DOL has a deadline of Feb. 20 to either release the remaining EEO-1 reports or appeal this decision,” said Evan Szarenski, associate principal consultant with DCI Consulting in Wilmington, Del.

The DOL does not proactively publish the EEO-1 reports. Instead, an individual or entity must submit a FOIA request to get the information. To meet demands from investors and consumers, many companies voluntarily publish their EEO-1 reports, especially in the tech and financial industries, according to research from Harvard Law School in Cambridge, Mass.

The federal court ruling “marks another step in the ongoing dialogue about transparency and privacy in employment practices,” Chin said. “Employers should carefully review their reporting strategies with a close eye on potential unintentional future disclosures and consider the broader implications of this ruling on their operations and public image.”