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

Laura Mitchell is a principal in the Denver office of Jackson Lewis P.C. and leads the firm’s Workplace Analytics and Preventive Strategies Pay Equity subgroup. She partners with employers to evaluate, develop and implement policies and practices that ensure workplace fairness while mitigating…

Laura Mitchell is a principal in the Denver office of Jackson Lewis P.C. and leads the firm’s Workplace Analytics and Preventive Strategies Pay Equity subgroup. She partners with employers to evaluate, develop and implement policies and practices that ensure workplace fairness while mitigating legal risk. Laura is a guiding force in the firm’s most specialized and technical practice areas where she leverages an analytics-focused approach to partner with her clients in building legally compliant programs around which they can anchor their workplaces achieving productivity and stability.

Laura understands that creating a competitive advantage for employers in today’s workplace involves using a data-driven approach to counsel companies on the development of proactive and equitable non-discriminatory practices in hiring, promotions, separations and pay—and where advancements in technology can create both opportunities for efficiencies and risk that can be measured. Committed to putting her clients’ organizational goals first and foremost while balancing legal risk, Laura views herself as an extension of her clients’ team, responsible for providing proactive guidance and engaging in transparent, ongoing communication. Staying the course with employers across their organizational journey while balancing legal compliance obligations throughout their employees’ lifecycle ensures Laura’s position as a go-to resource.

Laura works with companies across all industries—both new and well-established multi-national organizations of all sizes—to realize the combined vision of legal compliance, increased productivity and economic growth enhanced by a focus on pay equity.  As part of the pay equity journey, she advises employers on the evolving pay transparency landscape, working to align compliant practices with the practical realities of the business world.

Laura partners closely with government contractors to understand, implement and demonstrate compliance with their EEO regulatory and compliance obligations. She also works closely with non-government contractor clients to conduct risk assessments of their programs, policies, and training to align with federal and state anti-discrimination requirements.

Laura is the editor and a principal contributor of the GovCon Employment Exchange blog and presents on pay equity and government contractor obligations. To round out her days, Laura enjoys spending time with her family and friends attending sports events, working out, riding her bike, playing pickleball and taking in Colorado’s incomparable sunsets.

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