Tag Archives: discrimation

OFCCP Provides List of Resources for Contractors Relating to LGBT Workers

The Office of Federal Contract Compliance Programs (“OFCCP”) recently published a list of resources to assist federal contractors in better understanding how to create an inclusive workplace for lesbian, gay, bisexual, or transgender (“LGBT”) employees.  These resources are intended to assist federal contractors in complying with Executive 13672 and OFCCP’s Final Rule published last December prohibiting federal contractors from discriminating on the basis of sexual orientation and gender identity.  OFCCP’s non-exhaustive list of resources includes various advocacy groups and civil rights organizations, such as The Human Rights Campaign and Lambda Legal Defense & Education Fund.  The list also includes a link to the Department of Justice’s (”DOJ’s”) memorandum announcing DOJ’s position that Title VII prohibits discrimination based on gender identity, including transgender status.

The resources OFCCP provides can be a useful starting point for contractors as they educate their workforce, particularly managers and recruiters, on the implications of these new protections. The Final Rule implementing Executive Order 13672 is set to go into effect on April 8, 2015.

 

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Filed under Executive Order, Office of Federal Contract Compliance Programs

OFCCP Proposes New Sex Discrimination Guidelines for Contractors and Subcontractors

On January 28, 2015, the Office of Federal Contract Compliance Programs (“OFCCP”) announced proposed changes to its sex discrimination guidelines (“Guidelines”).  The current Guidelines set forth the interpretations and guidelines for implementing the nondiscrimination and affirmative action requirements related to sex under Executive Order 11246.  The Guidelines have not been updated since 1970.  According to OFCCP, the proposed changes to the Guidelines will not impose any new obligations on federal contractors and subcontractors, but merely “align[s] OFCCP’s regulations with [the current law and interpretations under] Title VII of the Civil Rights Act of 1964, as interpreted by courts and the Equal Employment Opportunity Commission.”

The notice of proposed rulemaking addresses various issues, including pay, sexual harassment, failure to provide workplace accommodations for pregnancy and gender identity, and family caregiving.  The highlights of the proposed Guidelines include:

  • Adverse treatment of an employee because of gender-stereotyped assumptions about family caretaking responsibilities is discrimination;
  • Leave for childcare must be available to men on the same terms as it is available to women;
  • Contractors must provide workplace accommodations to women affected by pregnancy, childbirth, and related conditions, ranging from extra bathroom breaks to light-duty assignments;
  • Compensation discrimination can result from job segregation or classification on the basis of gender, not just unequal pay for equal work;
  • Contractors must provide equal benefits and equal contributions for both males and females participating in fringe-benefit plans;
  • The Guidelines now include explicit prohibition of both quid pro quo and hostile work environment sexual harassment and encourage contractors to develop and implement procedures to “ensure an environment in which all employees feel safe …[and] are not harassed because of sex”;
  • Adverse treatment of employees because they do not conform to gender norms and expectations about appearance, attire, and behavior is unlawful sex discrimination; and
  • Discrimination based on an individual’s gender identity is unlawful sex discrimination.

OFCCP has included a new page containing FAQs and other resources related to changes proposed to the Guidelines.  The proposed Guidelines are expected to be published in the Federal Register on January 30, 2015.  Assuming it is published on that date, interested parties will have until March 31, 2015 to provide comments.

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Filed under Department of Labor, OFCCP

Cargill Agrees to Pay $2.2 Million to Settle Hiring Discrimination Charges By OFCCP

On January 22, 2014, the Office of Federal Contract Compliance Programs (“OFCCP”) announced that it was settling a case with Cargill Meat Solutions (“Cargill”) for $2.2 million relating to allegations of hiring discrimination based on race and gender.  The settlement stemmed from OFCCP’s investigation of multiple Cargill facilities between 2005 and 2009.  During these reviews, OFCCP alleged that Cargill’s hiring practices for production jobs at several of its facilities discriminated against 2,959 females, African-American, Hispanic, and Caucasian applicants.  OFCCP also allegedly found a number of record-keeping violations at Cargill.

In addition to paying $2,236,218 in back wages, Cargill also agreed to extend job offers to 354 former applicants who were rejected for positions and to undertake extensive self-monitoring measures to ensure full compliance with OFCCP’s laws.

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Filed under Department of Labor, Discrimination, OFCCP

OFCCP Concedes ALJ Ruling that “Non-Asian” Is Not a Proper Class

The Office of Federal Contract Compliance Programs (“OFCCP”) filed a notice on September 19, 2013 with the Department of Labor’s Administrative Review Board (“ARB”) indicating that it will not appeal the Administrative Law Judge’s (“ALJ’s”) ruling in OFCCP v VF Jeanswear Ltd Partnership, (ALJ Case No 2011-OFC-00006, Krantz, K), that “non-Asian” does not constitute a “race” for the purposes of Executive Order 11246 enforcement.

ALJ Ruling

On August 5, 2013, the ALJ ruled that OFCCP could not pursue a finding of discrimination against a contractor on behalf of “non-Asians.”  In that case, OFCCP alleged that VF Jeansware discriminated against 288 “non-Asian” applicants for positions in its Operative job group at its Winston-Salem, North Carolina establishment.   OFCCP alleged there was statistically significant adverse impact against “non-Asians” based on VF Jeansware hiring only sixteen percent of the incumbents for Operative positions from its non-Asian applicant pool as compared to hiring nearly forty-four percent of the Asian applicant pool for positions in that same job group. 

Upon review, the ALJ held that OFCCP could not establish a discrimination claim against “non-Asians” because “non-Asians” were not a protected class.  Although the ALJ acknowledged there was disparate impact on “non-Asians”, he found that “non-Asian” is not a term defined in the regulations and was an aggregate of three ethnic groups (i.e., Whites, African-Americans, and Hispanics).  The ALJ noted that while Whites were underrepresented, African Americans were close to the percentage of African-Americans available in the regional data and Hispanics were actually “overrepresented.”  The ALJ also explained that the only accepted “race” and “ethnic group” classifications for both EEOC and OFCCP purposes are African-American, Native American/Alaskan Native, Asian/Pacific Islander, Hispanic, and White.  Although “non-whites” can constitute a protected class of “minorities”, the regulations do not recognize other “non-” classifications for the purposes of analysis and enforcement. 

OFCCP had thirty days to appeal the ALJ’s ruling to the ARB.  OFCCP filed a notice with the ARB on September 19, 2013 waiving its right to appeal the ALJ’s ruling, and, on September 25, 2013, the ARB issued an order closing the case.

Impact of Ruling

Over the last several years, OFCCP has moved away from conducting adverse impact and disparity analyses at the aggregate level of comparing minorities to non-minorities (i.e., White).  Instead, OFCCP has increasingly been comparing sub-minority and ethnic groups to find cases of disparate impact.  In some instances, such as the VF Jeanswear case, OFCCP has been aggregating certain ethnic and minority groups to increase their odds of finding disparate impact.  Many in the contractor community believed that this type of analysis was unsound and unsupported by the Title VII principles that apply to OFCCP discrimination cases.

The ALJ’s ruling along with OFCCP’s decision not to challenge it emphasizes that OFCCP cannot base discrimination claims on these aggregate ethnic and racial groups.  Contractors, however, should still be prepared during audits for OFCCP to analyze their selection decisions by comparing the highest group selected against each sub-minority or ethnic group that was not selected.

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Filed under ALJ, ARB, Department of Labor, Discrimination, OFCCP

OFCCP Sanctions Contractor for Pre-Employment Test that Adversely Impacted Minorities

On July 19, 2012, the Office of Federal Contract Compliance Programs (“OFCCP”) issued a press release announcing it entered a consent decree with Leprino Foods, Inc. (“Leprino”) relating to use of a pre-employment test that it determined had an adverse impact on minority job-applicants at the company’s Lemoore West facility. The positions for which Leprino was using the test were entry-level, on-call labor positions called WorkKeys. The OFCCP found that the test, which examined applicants’ abilities in mathematics and in locating information, was not job-related because these skills were not critical to the applicants’ job duties, which included inspecting products, monitoring equipment and maintaining sanitation at the facility. In the press release, Director Patricia Shiu warned that contractors “cannot create artificial barriers to employment that unfairly block any individual from competing for good jobs.”

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Filed under Department of Labor, Discrimination, Executive Order, OFCCP, Uncategorized

ARB Overturns Favorable Decision for Contractors

On May 8, 2012, the Administrative Review Board for the Department of Labor (“ARB”) reversed a very favorable ruling for contractors, holding that the Office of Federal Contract Compliance Programs (“OFCCP”) could request data from contractors during desk audits concerning hiring, terminations and promotions after the period covered by OFCCP’s initial Scheduling Letter. 

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Filed under Affirmative Action Plan (AAP), Department of Labor, Discrimination, EEO, OFCCP

OFCCP Files Suit Against Cargill Seeking to Cancel Its Federal Contracts and Debar It From Bidding on Future Solicitations

On November 29, 2011, the Office of Federal Contract Compliance Programs (“OFCCP”) filed an administrative complaint with the Office of Administrative Law Judges (“OALJ”) against Cargill Meat Solutions Corporation (“Cargill”) seeking to rescind over $550 million in contracts held by the Company.  According to a press release issued by OFCCP, Cargill allegedly discriminated against 4,069 qualified female and minority applicants for entry-level production jobs at its Springdale, Arkansas establishment.  OFCCP filed the complaint after it was unable to secure a Conciliation Agreement with Cargill.

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Filed under Affirmative Action Plan (AAP), Department of Labor, Discrimination, EEO, Executive Order, OFCCP, Veterans