Seyfarth Synopsis: Following the Ninth Circuit’s July 2025 decision holding that EEO‑1 workforce data is not protected “commercial” information under FOIA Exemption 4, and the court’s subsequent December 29, 2025 mandate requiring the Department of Labor (DOL) to release the reports, the parties submitted a joint stipulation that now sets firm dates for public disclosure of federal contractors’ EEO‑1 Component 1 Report data. As these reports cover filing years 2016 through 2020, much of the information to be released is six to ten years old and may not reflect contractors’ current workforces. Federal contractors should expect the DOL to begin releasing the historical data throughout February 2026 while litigation concerning the status of EEO‑1 Reports from non‑federal contractors remains ongoing.
Litigation Background
In connection with United States District Court for the Northern District of California’s December 2023 decision, which we previously reported on, the current schedule to release EEO-1 Report data arises from a three-and-a-half year FOIA dispute initiated in August 2022. In Center for Investigative Reporting v. Department of Labor, reporter Will Evans of the Center for Investigative Reporting (CIR) submitted a request to the Office of Federal Contract Compliance Programs (OFCCP) seeking all Consolidated EEO‑1 Reports from 2016 to 2020.
On December 22, 2023, the district court ordered the DOL to produce the withheld data, holding that EEO‑1 Reports are not fundamentally commercial because the report’s broad job categories (e.g., executive/senior level officials and managers, professionals, sales workers, operatives, etc.) and other aggregated demographic groupings do not reveal commercially meaningful or competitively sensitive information. The district court found any connection between workforce demographics and commercial operations “too attenuated” to satisfy Exemption 4.
The DOL appealed, and on July 30, 2025, the Ninth Circuit affirmed the lower court’s ruling, concluding that EEO‑1 workforce‑composition data is neither “the object of commerce” nor does it “describe an exchange of goods or services or the making of a profit.” The appellate court rejected arguments that headcount, organizational structure, or diversity patterns indirectly reveal operational capacity or profitability, describing those links as insufficiently direct to qualify as commercial information under FOIA.
Ninth Circuit Decision and Required Disclosures
On December 29, 2025, the Ninth Circuit issued its mandate giving effect to the court’s July 2025 decision and requiring the DOL to release the EEO‑1 Report data that had been withheld during the litigation. This action moved the case from appellate review into the disclosure phase and prompted the parties to submit a joint stipulation establishing how and when the DOL would carry out the required releases. The stipulation, which the court entered on February 9, 2026, provides the structure for the DOL’s implementation of the ruling and sets out the specific dates on which federal contractor data will be made public.
The court’s entry of the stipulation provides the framework for the disclosure phase, which will proceed according to the following timeline.
- The district court’s stay on the release of the files was lifted on February 9, 2026.
- The Department of Labor will release the EEO‑1 Report data for the five “bellwether” objectors by February 11, 2026.
- The remaining non‑bellwether federal contractors will receive a notice from the Department of Labor on February 11, 2026, stating its intention to release their EEO‑1 Report data.
- The Department of Labor will release the EEO‑1 Report data of the remaining non‑bellwether federal contractors on February 25, 2026.
This schedule only applies to federal contractors. Whether the release of the EEO‑1 Reports for non‑federal contractors was properly withheld remains an issue in the case and will be subject to further proceedings. The distinction arises because the Ninth Circuit’s decision and the resulting order addressed only the records over which the DOL exercises jurisdiction. Reports filed by non‑federal contractors fall outside OFCCP’s scope of enforcement. A hearing on this issue is scheduled for March 12, 2026.
Looking Ahead
The forthcoming disclosures will reflect EEO‑1 filings submitted between 2016 and 2020, meaning the underlying information is now six to ten years old and unlikely to resemble contractors’ present‑day workforce structures, job category distributions, or organizational configurations. Contractors may wish to be prepared to clarify that the data reflects historical reporting periods and should be understood in that context. Given the age of the information, the practical impact of the release is expected to be limited, particularly for organizations that have experienced significant growth, restructuring, or other workforce changes since the relevant filing years.
Seyfarth will continue to monitor the remaining issues in this matter, including proceedings concerning non‑federal contractor reports, and will provide updates as the litigation progresses. For additional questions or assistance, please contact the authors of this alert, a member of Seyfarth’s People Analytics team, or your Seyfarth attorney.
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