FOIA Suit Seeks EEO-1 Data the EEOC Wants to Stop Collecting

Quick Hits

• A nonprofit has sued DOL under FOIA to compel disclosure of federal contractors’ 2021 and 2022 Type 2 EEO-1 data, the most recent reporting years targeted by such a request.
• The suit mirrors an earlier case in California, Center for Investigative Reporting v. U.S. Department of Labor, where the same type of FOIA request for contractor EEO-1 data led to disclosure of the 2016 through 2020 reports.
• The suit was filed as the EEOC moves to rescind the EEO-1 reporting requirement, meaning contractors that filed Type 2 reports for 2021 and 2022 may face pressure to disclose data even as the report itself heads toward elimination.

The suit follows more than two years of administrative delay and comes just months after a separate FOIA dispute resulted in the Office of Federal Contract Compliance Programs’ (OFCCP) release of 2016 through 2020 EEO-1 reports of federal contractors. The lawsuit signals that requests for workforce demographic data will continue even as the future of the EEO-1 reporting obligation itself remains unsettled.

The Lawsuit

As You Sow’s April 2024 FOIA request sought a spreadsheet of all consolidated (Type 2) EEO-1 reports for all federal contractors for 2021 and 2022. Type 2 reports consolidate a multi-establishment employer’s companywide workforce by job category, sex, and race or ethnicity, which permits analysis of a contractor’s overall demographic composition. As You Sow, which describes itself as a nonprofit organization seeking the records for educational, research, and noncommercial purposes, also requested a waiver of fees.

According to the complaint, the request followed a lengthy administrative process. DOL acknowledged the request and routed it to OFCCP. DOL also denied the fee waiver request, prompting a separate appeal that was eventually resolved in As You Sow’s favor. At one point, DOL told the requester that EEO-1 requests were under review to determine whether the agency could still process them following the revocation of Executive Order 11246, which had served as the legal foundation for OFCCP’s federal contractor compliance authority. The complaint further alleges that DOL’s Appeals Unit found OFCCP’s response still outstanding and remanded the matter to OFCCP for a response.

The complaint alleges that, more than two years after the request was filed and acknowledged, As You Sow has received no records and no indication of when any records will be produced. As You Sow asserts that it has exhausted its administrative remedies and that DOL is improperly withholding records to which it has a statutory right of access. The complaint seeks a declaration that DOL’s failure to disclose is unlawful, an injunction against continued withholding, and an award of costs and attorneys’ fees.

A Familiar Path: The Center for Investigative Reporting Litigation

The As You Sow complaint follows the same theory advanced in earlier litigation over contractor EEO-1 data. The Center for Investigative Reporting (CIR) sued DOL in the U.S. District Court for the Northern District of California over a FOIA request for contractors’ 2016 through 2020 Type 2 reports, alleging that DOL violated FOIA by failing to notify the requester of a determination and failing to disclose the records.

The U.S. Court of Appeals for the Ninth Circuit held that EEO-1 Type 2 workforce demographic data is not protected commercial information under FOIA Exemption 4, affirming the district court’s order compelling disclosure. The ruling addressed only the 2016 through 2020 reports and did not resolve objections based on contractor status or jurisdiction. The Ninth Circuit’s decision is not binding on the District of Columbia court, but its reasoning could carry persuasive weight if DOL raises Exemption 4 as a defense in the As You Sow case.

After the government declined to seek rehearing, OFCCP released the withheld data in February 2026, beginning with five bellwether objectors and extending to the remaining objecting contractors on February 25, 2026.

The EEOC’s Proposed Rescission

The lawsuit also arrives as the federal government moves to end EEO-1 reporting. On May 14, 2026, EEOC submitted a proposed rule to the Office of Information and Regulatory Affairs (OIRA) that would rescind the EEO-1 reporting requirement, along with the EEO-2 through EEO-5 reports. OIRA concluded its review on June 9, 2026, clearing the way for EEOC to publish the proposed rule in the Federal Register, where it will be open for public comment before EEOC can issue any final rule.

The rescission is not yet in effect. Until EEOC completes the rulemaking process, covered employers’ existing obligation to collect and report EEO-1 workforce demographic data remains in force, and employers may wish to be prepared to file if EEOC opens a 2026 filing window. If finalized, however, the rescission would end a reporting obligation that has been in place since 1966, while requesters such as As You Sow continue to seek data already submitted under that obligation.

Next Steps

The As You Sow complaint confirms that contractor EEO-1 data remains a focus of FOIA requesters. Federal contractors that filed Type 2 reports for 2021 and 2022 may want to monitor this matter, review how their organizations have historically treated EEO-1 data as confidential, and consider how a potential disclosure could intersect with their broader compliance strategies.

Ogletree Deakins’ Diversity, Equity, and Inclusion Compliance Practice Group, Government Contracting and Compliance Practice Group, and Workforce Analytics and Compliance Practice Group will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion Compliance, Employment Law, Government Contracting and Compliance, and Workforce Analytics and Compliance blogs as additional information becomes available.

This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ Administration Resource Hub.

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts