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As discussed in our prior alert, employers are now required to submit additional information to supplement EEO-1 reports.  The deadline to submit this new information – which will include employee pay data (referred to by the EEOC as “Component 2”) for calendar years 2017 and 2018  – is September 30, 2019.  More information about what to file and how is available here.

Employers required to submit this data may be concerned about the confidentiality of employee pay data once it is submitted.  The data is provided to the EEOC, and if an employer is also a federal contractor, the EEOC provides data obtained from the EEO-1 to the Office of Federal Contract Compliance Programs (OFCCP) at the Department of Labor.

In light of a recent Supreme Court decision, it is important that employers who are also federal contractors take affirmative steps to attempt to maintain the confidentiality of the EEO-1 pay data they submit.

EEO-1 data would typically only be accessible to the public through a Freedom of Information Act (“FOIA”) request.  If such request is submitted for EEO-1 information, there are two exemptions from disclosure that may apply.  The first is Exemption 3, which covers information that is prohibited from disclosure under federal law.  This Exemption, and Section 709(e) of Title VII, prohibits the EEOC from disclosing the EEO-1 to the public.  Therefore, information submitted by private employers without federal contracts should be protected from disclosure by the EEOC.  However, 709(e) does not apply to the OFCCP, and no other federal law explicitly prohibits the OFCCP from disclosing EEO-1 information.

As a result, the confidentiality protections are more complex when it comes to federal contractors.  The second exemption from disclosure applicable to FOIA requests for EEO-1 information is Exemption 4.  In Food Marketing Institute v. Argus Leader Media, — S. Ct. —, 2019 WL 2570624 (June 24, 2019), the Supreme Court ruled that FOIA Exemption 4 protects information that is customarily and actually treated as private by its owner and provided to the government under an assurance of privacy.

With respect to the EEO-1 pay data, assuming employers treat the information as private, the question is whether that information is provided to the OFCCP “under an assurance of privacy.”  The OFCCP represents that it “will protect the confidentiality of EEO-1 data to the maximum extent possible consistent with FOIA and the Trade Secrets Act.”[1]  It is unclear whether this statement is sufficient to constitute “an assurance of privacy.”  The EEO-1 Component 2 FAQs only state that the pay data may be protected from disclosure under FOIA Exemptions 3 or 4.

Employers can strengthen their argument, that they intend to maintain the confidentiality of their submitted data, by including disclaimers with their Component 2 submission, stating that the information is “Confidential Trades Secret/Privileged and Protected by FOIA Exemption 4.”  We recommend this disclaimer be included with all EEO-1 submissions by federal contractors, including the Component 2 submissions due by September 30, 2019.

[1] Equal Employment Opportunity Instruction Booklet, available online at:  https://www.eeoc.gov/employers/eeo1survey/2007instructions.cfm.

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