OFCCP Director shares thoughts on current case
The following letter was shared though media sources on June 10, 2016
Setting the Record Straight: OFCCP v. Bank of America
By Patricia Shiu on June 4, 2016
In an April 2016 decision in OFCCP v. Bank of America, the department’s Administrative Review Board – which reviews recommended decisions of department administrative law judges and issues final agency decisions for the secretary of labor – ruled in a case dating back more than 20 years. A number of published reports and statements reflect a misunderstanding of the ARB’s split decision, in which three judges took three distinct approaches to resolving the allegations regarding discrimination during 2002-2005. The following is an explanation of the decision to help set the record straight.
Following a 1993 compliance review of what was then NationsBank’s corporate headquarters in Charlotte, North Carolina, OFCCP filed an administrative complaint in 1997 alleging that the bank, a federal contractor, had violated Executive Order 11246 by engaging in a pattern or practice of intentional hiring discrimination against African Americans. NationsBank subsequently merged with Bank of America, and the case went through several years of judicial and administrative litigation before finally going to trial before an administrative law judge. The ALJ ultimately issued a series of recommended decisions rejecting the bank’s Fourth Amendment challenge to its selection for a compliance review, finding the bank liable for a pattern or practice of intentional racial discrimination against African-American applicants in 1993 and in 2002-2005, and awarding back pay and interest totaling more than $2 million.
2016 decision The three ARB judges each came to separate conclusions on certain issues, but all rejected the bank’s argument that its selection for an Office of Federal Contract Compliance Programs compliance review violated the Fourth Amendment, holding instead that the bank had voluntarily and contemporaneously consented to the review. All three judges on the panel also affirmed the finding that the bank intentionally discriminated against African-American applicants in 1993 and upheld the award of $964,033 plus interest to those applicants.
With respect to the 2002-2005 period, one member of the panel, Judge Brown, rejected the ALJ’s liability finding solely on the basis that OFCCP did not, in his view, follow proper procedures in expanding liability to that period; his opinion never discusses the sufficiency of the evidence related to the 2002-2005 period (page 34).
A second member, Judge Corchado, determined that the evidence did not establish a violation during the later period, but did not decide whether OFCCP followed proper procedures, asserting that he “takes no position” on the procedural issues. (page 16).
The third member, Judge Royce, found both that OFCCP followed proper procedures in expanding the liability period and that there was sufficient evidence to establish the bank’s violation in 2002-2005 as well as 1993. Judge Royce would have affirmed the ALJ’s findings in their entirety (pages 35-41).
Contrary to some accounts, “the ARB” did not hold that OFCCP failed to present sufficient evidence to establish a violation during this period, nor did “the ARB” hold that OFCCP failed to afford the bank proper procedural safeguards by expanding liability to the 2002-2005 period. Instead, only one of the three judges on the panel reached each of these respective conclusions. On May 23, 2016, the bank appealed the ARB’s decision to the U.S. District Court for the District of Columbia. The case is now pending in that court.
Patricia Shiu is the director of the Office of Federal Contract Compliance Programs.