Federal contractors should be aware of significant updates following the Ninth Circuit’s decision requiring the Department of Labor (DOL) to disclose previously withheld EEO-1 Type 2 Consolidated Reports.
What Happened
- In 2022, Will Evans, a reporter for the Center for Investigative Reporting, submitted a FOIA request for EEO-1 Reports filed by federal contractors and subcontractors for filing years 2016 through 2020. Following the request, OFCCP provided contractors the opportunity to object. The objections have subsequently been under review in court.
- The Ninth Circuit Court of Appeals affirmed that EEO‑1 workforce demographic data is not protected “commercial” information under FOIA Exemption 4 and must be released.
- The federal government declined to seek rehearing, making the decision final and clearing the way for public disclosure.
Next Steps for Contractors
In a message to contractors on February 11, 2026, OFCCP announced that five contractors’ reports would be released that day. The EEO-1 Type 2 Reports for all other contractors who objected to the FOIA request are scheduled to be released on February 25, 2026. The released reports will cover 2016-2020 and are restricted to the Type 2 Consolidated Reports. Often confused with the EEO-1 Component 2 reports, contractors should note that while the Type 2 reports contain information about job categories, ethnicity, race, and gender, they do not contain wage data. Type 2 reports only pertain to multi-establishment employers but present the employer’s U.S. workforce in aggregate rather than by establishment.
While no action needs to be taken on these aging reports, employers wishing to prepare their organizations for the release can:
- Ensure stakeholders within your organization are aware of this pending release of information. This may include legal, communications/public relations, senior leadership, human resources, and DEI staff.
- Keep in perspective that it is unknown what the recipients of the information intend to do with it and that the request was not targeted at an individual employer.
- Review any of the EEO-1 Type 2 Consolidated Reports you have on file for 2016-2020 for any inaccuracies or drastic changes in data across years. Note that these reports cannot be changed and that you may no longer have them retained due to age. Further complicating this, the EEO-1 filing system is not currently available for accessing filed reports.
Outstanding Legal Issues
Two narrow issues remain pending:
- Whether EEO‑1 reports for 621 entities deemed not to be federal contractors were properly withheld.
- Final determination of attorneys’ fees and costs related to the litigation.
Additional Information
OFCCP has developed a website to consolidate information and communication about the FOIA requests. The website includes a list of impacted employers and a catalog of OFCCP correspondence to date.
