Ninth Circuit EEO 1 Report Federal Contractor Disclosure

If you’re a federal contractor, you’ve probably gotten used to the alphabet soup of compliance:
OFCCP, EEOC, EEO-1, FOIA… and now the Ninth Circuit has jumped into the mix and stirred the pot.
A recent decision from the U.S. Court of Appeals for the Ninth Circuit means that many federal
contractors’ EEO-1 reportslong treated as confidentialmust be disclosed in response to
Freedom of Information Act (FOIA) requests. That’s a big shift in how workforce demographic
data may be handled, and it has serious implications for legal risk, DEI transparency, and
public perception.

In this article, we’ll unpack what the Ninth Circuit actually decided, which EEO-1 reports are
at issue, what “disclosure” really means, and what practical steps federal contractors should
take now. We’ll also walk through real-world style experiences from the contractor perspective,
so you’re not just reading case lawyou’re seeing how it plays out on the ground.

EEO-1 Reports 101: What Are We Even Talking About?

Before diving into the Ninth Circuit’s ruling, it helps to remember what an EEO-1 report is.
The Employer Information Report (EEO-1), sometimes called Standard Form 100, is a mandatory
annual snapshot of your workforce demographics. Covered private employers with at least
100 employeesand federal contractors with at least 50 employees and qualifying federal
contractsmust report the number of employees by:

• Race and ethnicity
• Sex
• Job category (e.g., executives, professionals, technicians, laborers)

For multi-establishment employers, the Type 2 consolidated report rolls up
all U.S. locations into one nationwide demographic snapshot. That Type 2 report is exactly what
FOIA requesters have been asking the Department of Labor’s Office of Federal Contract
Compliance Programs (OFCCP) to disclose in recent yearsand what many contractors have worked
very hard to keep confidential.

Important note: these particular FOIA disputes involve EEO-1 Component 1 demographic
data, not the old (and currently inactive) Component 2 pay data. No salary ranges are being
disclosed under this Ninth Circuit decision, but the demographic makeup of your workforce is.

How We Got Here: FOIA Requests, Objections, and Litigation

The FOIA Requests That Started It All

The saga kicked off when public-interest organizations and other requestersmost prominently
the Center for Investigative Reportingfiled FOIA requests with OFCCP seeking federal
contractors’ Type 2 EEO-1 reports for multiple years, often 2016–2020. OFCCP publicly
announced those requests and invited contractors to object, typically through an online portal
or by email, arguing that disclosure would harm them competitively or otherwise.

Historically, OFCCP’s position was that EEO-1 Type 2 data contained
confidential commercial information, so it should be protected under
FOIA Exemption 4 (the “trade secrets and commercial or financial information” exemption).
Many employers relied on that view and submitted objections focused on Exemption 4.

The Department of Labor (DOL) partially agreed. It released the EEO-1 reports of
non-objecting contractors, but withheld thousands of EEO-1 reports submitted by federal
contractors who had objected on Exemption 4 grounds. Those withheld reports became the core
of the litigation that ultimately reached the Ninth Circuit.

The District Court’s Ruling

The case landed in the U.S. District Court for the Northern District of California. After
analyzing a representative set of objecting contractors, the court held that the EEO-1 reports
were not “commercial” information under FOIA Exemption 4. In the court’s view,
workforce demographicsnumbers of employees by race, sex, and job categorydon’t describe how
the company makes money, what it charges, or the terms of its contracts. The court ordered
DOL to release the withheld EEO-1 Type 2 reports for the years at issue.

DOL appealed to the Ninth Circuit and obtained a stay, which temporarily paused the release of
EEO-1 data for objecting contractors while the appeal was pending. That stay gave contractors
a brief breatherbut not for long.

What the Ninth Circuit Actually Decided

EEO-1 Data Is Not “Commercial Information” Under Exemption 4

The Ninth Circuit Court of Appeals affirmed the district court’s decision. In plain English,
the court said: “EEO-1 Type 2 reports are not the kind of ‘commercial or financial information’
that FOIA Exemption 4 was designed to protect.”

The court’s reasoning was straightforward but powerful. The EEO-1 report:

• Does not reveal prices, profit margins, or the cost of doing business.
• Does not disclose proprietary formulas, client lists, or trade secrets.
• Does not show contract terms, competitive bidding strategies, or business plans.

Instead, it simply counts how many people are in each demographic category and job group. The
court concluded that this is workforce background data, not commercial information. Therefore,
FOIA’s Exemption 4 does not apply, and agencies cannot use it as a blanket reason to withhold
EEO-1 reports submitted by federal contractors.

Disclosure Is RequiredBut Not Without Limits

The Ninth Circuit’s ruling requires DOL/OFCCP to disclose EEO-1 Type 2 reports that were
previously withheld where Exemption 4 was the only basis for objection. Other FOIA
exemptionssuch as those covering national security or certain privacy interestswere not
addressed in detail and remain theoretically available in appropriate edge cases.

Practically speaking, though, most contractors objected using Exemption 4, so this decision
opens the door for widespread release of their Type 2 reports for the years covered by the
FOIA requests (often 2016–2020, and in some instances 2021).

Which EEO-1 Reports Are Affectedand Which Are Not?

Historical EEO-1 Type 2 Reports in OFCCP’s Hands

The decision primarily targets historical Type 2 EEO-1 reports that were:

• Filed by federal contractors, and
• Shared with OFCCP through the joint data collection arrangements with EEOC, and
• Withheld solely based on Exemption 4 objections.

For those reports, OFCCP will be requiredbarring further appeals or a successful alternative
legal theoryto release them in response to FOIA requests. OFCCP also maintains a FOIA reading
room, where data subject to multiple requests may be posted for public inspection, which means
some EEO-1 datasets may eventually be available to anyone with an internet connection.

What About Newer EEO-1 Reports?

Here’s a twist: starting with the 2024 EEO-1 cycle, the reporting pipeline is changing.
OFCCP is no longer scheduled to receive copies of EEO-1 reports directly. Instead, the Equal
Employment Opportunity Commission (EEOC) handles EEO-1 reporting under Title VII’s
confidentiality provisions, which typically prevent the agency from disclosing employer-specific
data in response to FOIA requests.

Translation: the Ninth Circuit decision has its biggest impact on historical
EEO-1 Type 2 reports that are (or were) in OFCCP’s possession. Future reports handled solely
by EEOC may be shielded by different legal rules, even though contractors still have to
file them.

Who Is Affected by the Ninth Circuit’s Decision?

At first glance, you might think this is just a “West Coast problem” because the Ninth Circuit
covers states like California, Washington, Oregon, Arizona, Nevada, Alaska, and Hawaii. In
reality, the decision has a much broader reach:

• DOL and OFCCP are national agencies, administering federal programs for contractors across the U.S.
• The litigated FOIA requests sought nationwide Type 2 EEO-1 datanot just reports from Ninth Circuit states.
• Once OFCCP discloses data to a FOIA requester, the genie is out of the bottle; those reports can be analyzed, published, and compared publicly.

If you were a federal contractor between 2016 and 2020 (and in some cases 2021), filed Type 2
EEO-1 reports, and objected to FOIA disclosure based only on Exemption 4, you should assume that
your workforce demographics from those years could become public.

Why This Matters: Legal, Reputational, and Practical Risks

1. Increased Public Scrutiny of DEI Data

For companies that already publish diversity reports, the public release of EEO-1 data may not
feel earth-shattering. But for contractors that have been more cautiousor that have pockets of
underrepresentation in certain job groupspublic EEO-1 data can:

• Fuel media investigations and comparative benchmarking.
• Drive pressure from advocacy groups, unions, or investors.
• Trigger internal employee questions about representation and promotion pathways.

Think of this as involuntary transparency. Even if you never planned to share your EEO-1
numbers, FOIAand now the Ninth Circuitmay do it for you.

2. Litigation and Enforcement Context

While the EEO-1 report alone doesn’t prove discrimination, it can provide context in:

• EEO litigation and class action filings.
• OFCCP audits of affirmative action plans.
• Investigations by state or local civil rights agencies.

Plaintiffs’ attorneys and enforcement agencies may use public EEO-1 data as a starting point to
identify disparities and frame their allegationsespecially in leadership and high-pay job
categories.

3. Brand and Talent Implications

Talent markets are increasingly DEI-aware. Prospective hires, especially early-career
professionals, often look at company diversity statistics when evaluating potential employers.
Public EEO-1 data can either reinforce your DEI story or raise questions you weren’t planning to
answer on social media this week.

The flip side: if your numbers are trending in the right direction, public disclosure can
reinforce your credibility and show measurable progress over time.

Action Plan: What Federal Contractors Should Do Now

1. Confirm Your Status and Coverage
   Identify whether you filed Type 2 EEO-1 reports for 2016–2020 (and, where relevant, 2021) as a federal contractor.
   Confirm whether your company submitted formal FOIA objections and on what grounds. Your legal or HR compliance team
   should be able to locate copies of those submissions.
2. Get Your Own EEO-1 Data in Order
   Pull your historical EEO-1 Type 2 reports and analyze them the way a journalist or analyst would. Look at:
   representation by job category, trends over time, and where your data might raise questions or support your
   existing DEI narrative.
3. Align With Your Public DEI Messaging
   If your website or ESG report already shares diversity statistics, make sure your messaging doesn’t directly
   conflict with the EEO-1 numbers that may be disclosed. You don’t need to publish the EEO-1 form itself, but you
   should be prepared to explain any perceived gaps.
4. Prepare Internal and External Talking Points
   Work with legal, HR, communications, and DEI leadership to create:
   • FAQs for employees who see your EEO-1 data in the news.
   • A concise media statement that acknowledges the disclosure and reinforces your DEI commitments.
   • Board-level updates so leadership is not blindsided by coverage or stakeholder questions.
5. Reassess Your Long-Term Data Strategy
   Even though new EEO-1 cycles may fall under EEOC confidentiality, the trend line is clear: stakeholders want more
   transparency, not less. Decide now whether you will embrace proactive disclosure (with context and narrative) or
   stick to the minimum legal requirements.
6. Stay Close to Counsel
   The Ninth Circuit’s decision doesn’t wipe out all FOIA exemptions. Particular contractors may still have viable
   arguments based on privacy, national security, or unique circumstances. Talk with experienced counsel about your
   specific situation before making any big strategic calls.

FAQs: Ninth Circuit EEO-1 Federal Contractor Disclosure

Does this mean all my EEO-1 reports are now public?

Not automatically, but you should assume that historical Type 2 reports in OFCCP’s possession for 2016–2020 (and in
some cases 2021) may be released if a FOIA request covers them and your only objection was Exemption 4. Future
cycles that sit solely with EEOC are governed by different confidentiality rules.

Is pay data (Component 2) included?

No. The FOIA disputes at issue involve Component 1 demographic data. Pay data is not part of these Ninth Circuit
disclosure orders.

Can I still object now?

In many cases, objection deadlines tied to particular FOIA requests have passed. Some contractors already filed
written objections that were considered by DOL and the courts. New FOIA requests could trigger new objection
windows, but those would be governed by whatever process OFCCP or other agencies establish at that time.

Does the decision only apply in Ninth Circuit states?

Formally, the decision binds agencies within the Ninth Circuit, but because OFCCP is a nationwide agency and the
underlying FOIA requests are national in scope, the practical effect will be broader. Once EEO-1 data is disclosed
to a requester, it is effectively public, regardless of where your headquarters is located.

Real-World Experiences: What This Looks Like on the Ground

Legal opinions are great reading for insomniacs, but what does Ninth Circuit EEO-1 disclosure look like for actual
federal contractors? Here are a few composite “experiences” that reflect what many organizations are navigating
right now.

1. The “We Thought We Were Quiet” Tech Contractor

A mid-size technology firm with several federal contracts had never published diversity numbers publicly. The DEI
team was working hard behind the scenes, but leadership viewed demographic data as sensitive and potentially
misunderstood. When the FOIA litigation surfaced, the company filed objections relying mainly on Exemption 4,
assuming that “commercial sensitivity” would protect them.

After the Ninth Circuit decision, the general counsel, CHRO, and head of DEI sat down with historical EEO-1 Type 2
reports for 2016–2020. The data showed meaningful gains in entry-level technical roles, but stagnant representation
for women and people of color in executive positions. That didn’t necessarily indicate discrimination, but it did
raise obvious questions.

Instead of reacting defensively, the company chose to:

• Prepare a simple external statement acknowledging the likely disclosure of EEO-1 data.
• Highlight internal programs aimed at promotion equity and leadership development.
• Share a high-level “diversity journey” timeline with employees, focusing on progress and future goals.

When advocating groups later referenced the company’s EEO-1 data in a report, the firm was ready. The numbers were
not flattering in every category, but the company already had a narrative and a plan, which helped maintain employee
trust and mitigate reputational risk.

2. The “We Already Publish Everything” Health System

A large healthcare system had long been ahead of the curve, publishing annual DEI reports with granular breakdowns
of workforce demographics by region and job type. Their EEO-1 Type 2 data, while not identical to the public
dashboards, largely tracked those published metrics.

When counsel briefed leadership on the Ninth Circuit ruling, the reaction was basically a collective shrug. The
system’s view was, “We’ve been living in a world of transparency for yearsthis just confirms it.” The EEO-1
disclosure created a minor administrative task (coordinating messaging and updating FAQs), but no major policy shift.

The lesson: organizations that consciously align internal compliance data with external DEI storytelling are often
better positioned for moments like this.

3. The Defense Contractor with Sensitive Programs

A large defense contractor worried that EEO-1 disclosure might indirectly reveal staffing patterns on certain
sensitive programs. While the EEO-1 report doesn’t identify specific contracts, leadership was cautious about
anything that might invite additional scrutiny around high-security work.

Working with counsel, the company:

• Reviewed whether any other FOIA exemptionssuch as national security protectionsmight apply in small, discrete areas.
• Prepared a board briefing that separated legal risk (fairly low) from reputational sensitivity (moderate).
• Decided to maintain a low public profile on the issue, while investing in more robust internal DEI communications.

The takeaway here is nuance: not every contractor will have the same risk profile, and some may have unusual facts
that warrant closer legal analysis beyond the broad Exemption 4 question.

Key Experience-Based Lessons

• Don’t wait for a FOIA headline to review your EEO-1 data. Treat it as a strategic, not purely administrative, dataset.
• Context is everything. Raw percentages rarely tell the full story; pair them with initiatives, goals, and timelines.
• Internal trust comes first. Employees will likely see or hear about EEO-1 disclosure; communicating with them early and honestly pays off.
• Legal and DEI teams need to talk to each other. Neither side can manage this issue alonecollaboration is essential.

Conclusion: Turning Mandatory Disclosure into Strategic Transparency

The Ninth Circuit’s EEO-1 disclosure decision may feel like a loss of control for federal contractors. Data that was
once assumed to be confidential is now on the path to becoming public, at least for certain years and certain
reports. But mandatory transparency doesn’t have to be a purely defensive exercise.

By proactively reviewing historical EEO-1 data, aligning it with your DEI story, and preparing clear internal and
external messaging, you can turn this legal development into an opportunity to demonstrate accountability and
seriousness about equity. In a landscape where employees, investors, and regulators all care about representation,
being prepared is not just smart complianceit’s good business.

And if this all feels like a lot, remember: even the EEO-1 form is mostly just counting people in boxes. The real
story is what you do next with those numbers.

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