An OFCCP ALJ has issued a recommended ruling that Bank of America discriminated against African-American job applicants for entry level positions in Charlotte, NC, in 1993 and from 2002 to 2005.
Next: A hearing to determine what remedies should be provided by the bank.
DOL Press release 02/02/2010:
Following US Labor Department investigation, administrative law judge finds Bank of America discriminated against African-American job applicantsWASHINGTON — A protracted case that started with a U.S. Department of Labor Office of Federal Contract Compliance Programs (OFCCP) investigation has resulted in an administrative law judge's (ALJ) recommended ruling that Bank of America discriminated against African-American job applicants for entry level positions in Charlotte, N.C., in 1993 and from 2002 to 2005.
"The Labor Department is committed to ensuring that all workers — including African-Americans — are treated fairly by federal contractors in decisions concerning hiring, promotion and compensation," said OFCCP Director Patricia A. Shiu. "Further, contractors cannot use litigation as a means to obstruct OFCCP's ability to conduct its authorized investigations and pursue relief for victims of discrimination."
The ruling by ALJ Linda Chapman arises in a case that began in 1993 when OFCCP requested information from NationsBank (the bank's previous name) as part of a compliance review to determine if the bank, as a federal government contractor, treated its employees without discrimination as required by Executive Order 11246. After OFCCP advised the bank in 1995 of its findings of discrimination, the bank challenged — in federal court — OFCCP's authority to conduct the review as a violation of the bank's Fourth Amendment rights. After the challenge failed and Labor Department attorneys filed an administrative complaint, the bank pursued that challenge in the administrative forum. The department's Administrative Review Board ruled in 2003 that if the bank had consented to the review, there was no Fourth Amendment violation. The ALJ subsequently held that the bank had, in fact, consented, and department attorneys were able to address the discrimination claims.
After that hearing, ALJ Chapman held that the bank intentionally discriminated against African-American clerical, administrative and teller applicants at its Charlotte facility. The ALJ also held that the bank's failure to retain records as required by law without justification did not lessen the statistical disparities found by OFCCP's expert. Chapman now will hold a hearing to determine what remedies should be provided by the bank. After the ALJ issues a recommended decision on a remedy, the case will proceed to the department's Administrative Review Board for a final agency decision.
OFCCP enforces Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veterans' Readjustment Assistance Act of 1974 (VEVRAA), 38 U.S.C. 4212, that prohibit employment discrimination by federal contractors. The agency monitors federal contractors to ensure that they provide equal employment opportunities without regard to race, gender, color, religion, national origin, disability or veteran status. Information is available at http://www.dol.gov/ofccp/.
Well, that didn't take too long.
Just a few months after the U.S. Supreme Court's ruling in Ricci v. DeStefano, a black firefighter filed suit yesterday in U.S. District Court alleging that he was unfairly denied promotion to the position of lieutenant because of the city's scoring of a 2003 promotional exam.
You can download the complaint here.
The case (H/T New Haven Independent) "alleges that the city weighs the oral and written components of the exam differently from how other cities do, in a way that has a disparate impact on African-Americans and resulted in Briscoe being denied promotion."
A lawsuit like this was certainly expected at some point or another. It was just a question of when. The larger question, however, is what will happen next. After all the Supreme Court, in its Ricci decision, suggested a suit like this might occur and offered a possible defense:
Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.
This language suggests that the City may indeed have a fair strong defense to this lawsuit but still, it will no doubt be litigating it for some time to come. There will also be issues of statutes of limitations that may also pop up.
Although the spotlight has turned away from the Ricci case after Justice Sotomayor's confirmation, this new lawsuit (and potentially others coming) signal a continuation of a drama that has yet to have its final act written.
(Further H/T CT News Junkie)
So, while everyone has been paying attention to the Ricci v. DeStefano case, which dealt with a group of white firefighters who claim that they should've been promoted, another case involving New Haven firefighters has been making its way through the state court system.
(As an aside, are there any firefighters in New Haven who haven't brought an employment discrimination claim against the city?)
Today, the Connecticut Supreme Court reversed a jury verdict which found that, by promoting other firefighters through a practice called ‘‘underfilling,’’ the City of New Haven (and others) had discriminated against several African-American firefighters on the basis of race in violation of their right to equal protection under the fourteenth amendment to the United States constitution.
The case, Broadnax v. City of New Haven (download here), won't be officially released until next week, but it dates back to some decisions made in the 1990s.
Frankly, because the case is decided on equal protection grounds, it will be of little impact to private employers in the state. For government entities, though the case, delves into the practice of "underfilling" and says that, at least in this situation, it was handled properly.
What is "underfilling"? Don't bother looking it up in Google. But the Connecticut Supreme Court provides its definition:
Underfilling, as the term is used in the present case, occurs when the fire department promotes an individual to a particular position, and the city’s budget has not allocated funds to pay the salary of that position, whereby funds for a vacant higher ranking position are used to pay for the newly appointed lower ranking position. For example, if ten individuals are promoted to lieutenant, and only five vacancies exist in the budget for the position of lieutenant, but several vacancies exist in a higher ranking position, such as captain or battalion chief, the first five newly appointed lieutenants are promoted and paid with budgeted lieutenant funds, but the next five newly appointed underfilled lieutenants are paid with funds reserved
for the vacant captain or battalion chief positions. Thus, when an individual employed at a lower ranking position is paid from funds reserved for a higher ranking position, that individual is considered to have been underfilled.’
Got that?
In any event, the Court here says New Haven's practices were not discriminatory and that the evidence presented by the firefighters fell far short of establishing their case.
For New Haven, the case will surely bring a sigh of relief that it can close yet another case involving firefighters in the city. But don't expect that we've heard the last of a group of firefighters. Yet another group of firefighters have been requesting judicial relief as well lately.