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Administrative Review Board Reverses Charges Sought by OFCCP

The Office of Federal Contract Compliance (OFCCP) is an agency designed to ensure companies that receive federal funding adhere to three equal opportunity mandates

  1. Executive Order 11246
  2. Section 503 of the Rehabilitation Act of 1973
  3. Vietnam Era Veterans’ Readjustment Assistance Act of 1974

Each year, the agency selects thousands of federal contractors for compliance reviews, and if the OFCCP finds evidence of discrimination, the contractor could face severe administrative and financial penalties.

While the objective of the OFCCP is to ensure that businesses that are awarded federal contracts remain compliant and do not discriminate, the agency has been known to be overreaching in their efforts and use questionable tactics to uncover patterns of discrimination or disparate treatment.

Evidence of such actions has come to light with a recent decision from the Department of Labor’s Administrative Review Board (ARB) to reverse discrimination charges in the OFCCP’s case against Bank of America (BOA) 2002-2005.

The ongoing case against Bank of America’s North Carolina locations has lasted nearly 20 years. Two time periods have been the focus of the case, with the first in 1993 and the second from 2002 to 2005, where the OFCCP has claimed to uncover discrimination towards African American applicants.

Over the years, the case had taken several turns and presumed to be resolved when BOA was forced to pay over $2 million to affected class members. That is until the case reached the ARB, where it was reexamined and ARB found the OFCCP’s claims of discrimination from 2002-2005 were based on flimsy statistics and should not have been tacked on as a continuation of the original 1993 case.

The ARB stating, “The ten-year gap of data and evidentiary information between these periods prevents any realistic ability to connect those two periods logically.” This case should serve as a wake-up call to the OFCCP concerning their overreaching efforts and tactics to uncover alleged discrimination.

Also evident is how the heavy burden of proof lies on the shoulders of the agency and not the employer. According to the ARB, concerning the 2002-2005 allegations, “the OFCCP did not argue that there were statistically significant standard deviations for one or more stages of the hiring process.” It is up to the agency, or Plaintiff, to supply sufficient evidence proving the company was intentionally discriminating, and in this instance, the OFCCP failed to do so.

Litigation Timeline

  • 1993- OFCCP notified BOA (previously known as NationsBank). They had selected the bank’s Charlotte, North Carolina headquarters for a compliance review and requested BOA’s affirmative action plan and additional documentation for review. OFCCP’s initial assessment of the bank’s affirmative action plan did not find sufficient evidence of discrimination. The agency then performed an onsite investigation to conduct a more thorough review of BOA’s hiring practices, records explicitly for job positions in job groups.
  • 1994- OFCCP determined BOA had discriminated against African American job applicants during its hiring process at the Charlotte headquarters.
  • 1994-BOA submits a complaint, stating the second search of BOA’s hiring practices violated its Fourth Amendment rights since BOA only gave consent to review initial documentation and not its hiring practices.
  • 1997 OFCCP filed an administrative complaint alleging that BOA had violated Executive Order 11246 by engaging in practices or patterns of racial hiring discrimination against African Americans.
  • 2000-An administrative law judge (ALJ) dismissed the OFCCP’s case against BOA, ruling that BOA had not consented to the second search.
  • 2004- After the OFCCP filed several objections, the case was moved to another ALJ, who found BOA consented to the second search.
  • 2010-The administrative law judge found that BOA had:
    • Engaged in patterns of discrimination in 1993 against African Americans in its hiring practices and ordered BOA to pay close to $1 million
    • Engaged in patterns of discrimination from 2002 to 2005 against African Americans in its hiring practices and ordered to pay $1.2 million
    • BOA was ordered to extend ten job offers to African Americans who had applied during those periods.
  • April 2016–Conclusions from The Labor Department’s Administrative Review Board:
    • REJECTED- BOA’s objections to the OFCCP’s selection of BOA for a compliance review as an illegal search in violation of the Fourth Amendment.
    • AFFIRMED- Evidence supporting the ALJ’s findings concludes that BOA intentionally discriminated against African Americans in 1993.
    • AFFIRMED- The ALJ ordered a reasonable remedy for the unsuccessful 1993 African-American applicants, the ALJ’s award of $964,033 in back pay damages, and other remedies for 1993.
    • ORDERED– BOA pay an additional amount of interest on the back pay award for the period from September 18, 2013, to the date on which BOA has paid the monetary judgment in full.
    • REVERSED- The discrimination claims and damage awards for the period 2002-2005, the OFCCP improperly found BOA liable. The ALJ’s finding of a pattern or practice of intentional discrimination during the 2002-2005 period and remedy orders of the 2002-2005 period were also reversed.
  • May 2016- BOA appealed the ARB’s decisions for the 1993 time period to the U.S. District Court for the District of Columbia. The case is now pending.

Takeaway

As the OFCCP continues to aggressively identify federal contractors that discriminate and build upon allegations of discrimination, as evident with the new Class Member Locator Website, employers should expect to see the agency’s conduct more frequently reviewed and scrutinized. Simultaneously, the findings in this review could be a sign of change in how OFCCP conducts audits or brings cases before an ALJ. It’s important to remember that if a company is charged with discrimination, the outcome could be debarment from receiving federal funding (see B&H Foto Electronics Corp. is Being Sued by the OFCCP & Stands to Lose $46 Million in Government Contracts). If a compliance review occurs, employers should ensure proper procedural processes are followed and seek additional assistance from an affirmative action expert. If you have questions concerning this case or your affirmative action obligations, contact us at info@crincorporated.com.

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  1. Pingback: 2016 Federal Contractor Update|Affirmative Action Plan|CRI

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