As we’ve been discussing, now is the time for employers to be filing their annual EEO-1 reports.  Coincidentally, and perhaps not un-intentionally, Public Citizen, a non profit advocacy group is also using this time to sue OFCCP around its practices of withholding information involving employers’ EEO-1 reports.

On February 26, Public Citizen filed suit in Washington D.C. District Court claiming that OFCCP improperly denied its Freedom of Information Act (FOIA) requests for information on who is looking into Employer EEO-1 data.

FOIA requires federal government agencies to disclose certain information under their control.  FOIA requests are subject to a number of exemptions that protect the release of private, classified, or personal data based upon different rationales.  Typically when we see FOIA requests involving OFCCP and EEO-1 reports, the requests are seeking release of EEO-1 data for specific employers.

Interestingly, Public Citizen’s lawsuit is not based upon accessing the substantive information contained in the EEO-1 Reports rather, it is seeking information on who else is submitting FOIA requests to try to access employer EEO-1 data and for what purposes these other parties are seeking the information.  In this case, OFCCP partially denied the Plaintiff’s FOIA request based upon its supposed policy of  withholding information regarding “open” (ongoing)  FOIA requests.   

“OFCCP advised that, as a matter of policy, it withholds all records related to “open” FOIA requests on the theory that they fall within the scope of FOIA exemption 7.

 Exemption 7 of FOIA allows government agencies to deny release of information if releasing the information “could reasonably be expected  to interfere with law enforcement proceedings.” The complaint in this case contends that the processing of FOIA requests by the Agency is not any kind of law enforcement proceeding and therefore violates the FOIA statute.

It will be interesting to see how OFCCP responds and whether they will ultimately be required to disclose the information.

 

Tags: EEO-1 Report, FOIA, Freedom of Information Act, OFCCP, Office of Federal Contract Compliance Programs
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Photo of Laura A. Mitchell Laura A. Mitchell

As co-leader of the firm’s ESG group, Laura Mitchell partners with her clients to evaluate, set, achieve and monitor their organizational culture and human capital goals. She focuses her practice on data analytics, including pay equity and other employee analytics, working side-by-side with…

As co-leader of the firm’s ESG group, Laura Mitchell partners with her clients to evaluate, set, achieve and monitor their organizational culture and human capital goals. She focuses her practice on data analytics, including pay equity and other employee analytics, working side-by-side with employers to build programs that benefit employees and create a stable, high-functioning workplace. Understanding that an inclusive, values-based culture provides a crucial competitive advantage in the modern workplace, Laura enjoys counseling companies on the development of proactive and equitable pay and diversity practices.

In Laura’s version of the reimagined workplace, attention to human capital issues, especially DEI and pay equity, would be the rule rather than the exception nationwide and she works with companies across all industries—both new and well-established multi-national organizations of all sizes—to realize this vision for her clients’ ongoing success. She helps clients understand all issues across the spectrum of their journey, helping to establish regular analyses as well as counseling organizations on implementation and compliance obligations, where applicable. Committed to putting her clients’ organizational goals first and foremost, Laura views herself as an extension of her clients’ team, responsible for providing proactive guidance and engaging in transparent, ongoing communication.

Laura also represents companies in OFCCP matters, preparing for and defending OFCCP audits, and counseling employers on issues stemming from OFCCP regulations. She personally oversees the development of hundreds of Affirmative Action Plans for clients each year and is intimately involved in the defense of OFCCP audits. Her approach to compliance is one of facilitation and conciliation while simultaneously advocating in the best interests of her clients.

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