Voluntary self-ID isn't proof of hiring bias, Shiu's acting replacement named

Kristine Sims

Federal contractors, will asking applicants to voluntarily self-identify by race -- a request that the Office of Federal Contract Compliance Programs requires you to make -- be used against you in a hiring-discrimination lawsuit?

A recent decision from a federal court in New Jersey indicates that the answer is NO, as long as you handle the information correctly.

In Dougboh v. Cisco Systems, Inc., the plaintiff claimed that he was discriminated against because of his race after he applied for hundreds of jobs and didn't get one. (Because of the statute of limitations, the only hiring decisions at issue were related to three applications that he filed in 2012.)

Part of the plaintiff's "proof" was that Cisco asked him to voluntarily self-identify by race. The plaintiff identified himself as African-American. As a federal contractor, Cisco was, of course, required to ask.

Screen Shot 2016-11-02 at 10.34.10 AM
Not the plaintiff's actual self-identification form.

But asking applicants to self-identify wasn't the only thing that Cisco did correctly – it also maintained the self-identifying information separate from the applications. Cisco’s decision-makers and hiring managers did not have access to the self-identification and did not know the plaintiff's race.

Based on this and other evidence, the court granted summary judgment to Cisco, dismissing the lawsuit.

The case illustrates how critical it is that self-identification information be maintained separately from the application, not shared with decision-makers during the hiring process, and used only for affirmative action tracking purposes.

Thomas Dowd named Acting Director of OFCCP

Thomas Dowd OFCCP
Thomas Dowd

Thomas M. Dowd has been named Acting Director of the OFCCP to succeed current Director Patricia A. Shiu, who is stepping down this coming Sunday.

Mr. Dowd joined the OFCCP in January 2011 as Director of the Division of Program Operations, where he oversaw the Functional Affirmative Action Program Unit and DPO’s three branches: Enforcement and Appeals, Field Liaison Operations and Technical Assistance, and Quality Assurance.

According to an October 28 email from Ms. Shiu about Mr. Dowd's appointment, Mr. Dowd is "smart, practical, strategic, and kind."

Here is what the U.S. Department of Labor website says about Mr. Dowd's career:

Thomas M. Dowd serves as OFCCP’s career Deputy Director providing critical management, decision–making and oversight for the agency’s six regional offices. Tom also serves as Acting Director of the Division of Program Operations and Acting Director for the Division of Management and Administrative Programs. Prior to joining OFCCP in January of 2011, Tom spent nearly 17 years managing employment and training programs at the local, state, regional and national levels at the Employment and Training Administration. He joined ETA in 1994 as Division Director for Indian and Native American Employment and Training Programs and rose through the ranks to serve the agency as Associate Regional Administrator in the Rocky Mountain Region, Regional Administrator in the Mid–Atlantic, founding Director of the Business Relations Group, career Deputy Assistant Secretary, and Administrator for the Office of Policy Development and Regulations. From 2006—2007, Tom was tapped by the Department of the Interior to help establish the newly created Bureau of Indian Education.

Mr. Dowd is expected to remain in his new role as Acting Deputy Director of the OFCCP until the President and Secretary of Labor name a permanent replacement for Ms. Shiu.

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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