OFCCP: Like a dog with a bone

Louise Davies is an Affirmative Action Paralegal in Constangy's Winston-Salem, North Carolina, office. For more than 15 years, she has helped employers develop affirmative action plans and respond to audits and on-site investigations by the Office of Federal Contract Compliance Programs. She also conducts diversity training for employers. Louise is a graduate of Wesleyan College in Macon, Georgia.

Who would have thought a routine compliance review could drag on for 24 years, through four presidential administrations, and ending in a $1 million settlement?Louise

Bank of America would. The bank has just reached a settlement with the Office of Federal Contract Compliance Programs for $1 million dollars in back pay and interest after a routine compliance review of NationsBank (which became Bank of America after a merger in 1998) in Charlotte, North Carolina, that began in 1993. According to the Agency, the compliance review uncovered “systematic hiring violations” against African-American applicants for the positions of teller and clerk, in addition to some administrative positions.

The OFCCP filed an administrative complaint against NationsBank in 1997, and a final decision by the Administrative Review Board was issued in April 2016. (No kidding.) Then, in May 2016, the Bank filed a lawsuit against the U.S. Department of Labor in federal court in the District of Columbia, challenging the ARB decision under the Administrative Procedure Act, which apparently resulted in the settlement.

Under the settlement, a total of 1,027 African-American applicants will receive around $973 each -- if they can be found after all these years. The bank specifically denies any liability or wrongdoing.

The case is listed on the OFCCP’s Class Member Locator website, which went live in 2015.

So what can federal contractors take away from this?

  1. The OFCCP is tenacious (but so is Bank of America!) and has the resources to litigate.
  2. Maintain all applicant and personnel records, and periodically "preventively" assess whether adverse impact exists.
  3. Continue to train all of those involved in the hiring process, especially those who are new to the organization.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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