REVISED PROPOSED SCHEDULING LETTER TO BE POSTED ON REGULATIONS.GOV: MINIMAL CHANGES MADE

DCI has received an advanced copy of the revised proposed OFCCP scheduling letter, compliance check and itemized listing. The Office of Management and Budget (OMB) has completed its review of the revised letter and it will be published on Regulations.gov tomorrow, September 29, 2011. The current OFCCP scheduling letter, set to expire this Friday September 30, 2011, was updated and published for public comment in May 2011. The Center for Corporate Equality (CCE), along with 17 other groups/individuals, submitted public comments during the initial comment period.

Upon receiving the revised scheduling letter, it is evident that minimal changes were made by the OFCCP after reviewing public comments. Many stakeholders indicated a variety of issues during the public comment period that were not addressed in the version sent to and approved by OMB, including issues related to contractor burden estimates and concerns regarding the Paperwork Reduction Act. Rationale for OFCCP to disregard many of the comments can be seen in their supporting statement.

Once the revised scheduling letter is published tomorrow, there will be another 30-day comment period for the public. DCI anticipates the final scheduling letter will be released January 1, 2012. Until that time, the contractor community will continue to receive the current scheduling letter when audited. Although the letter is set to expire at the end of this week (September 30, 2011), its use is extended due to the OMB review process. DCI will host a webinar to examine the updated letter, note the minimal changes made during the review period, and implications of the itemized listing for the contractor community. Details to follow next week.

OFCCP V. MANHEIM AUCTIONS, INC. - PART 2

by Art Gutman Ph.D., Professor, Florida Institute of Technology

In a DCI Client Alert published on June 21, 2011, I reported ALJ Alan L. Bergstrom’s ruling in
OFCCP v. Manheim Auctions Inc. [DOL OALJ, No. 2011-OFC-00005, 6/14/11]. The case involved the parent company Manheim Auctions Government Systems LLS (MAGS) and its subsidiary Manheim Auctions Inc. (MAI). As reported in that alert, MAI has more than 50 employees, but no federal contracts, whereas MAGS has federal contracts, but less than 50 employees (the threshold number for submitting to OFCCP jurisdiction). The question was whether MAI and MAGS are a “single entity” for purposes of OFCCP jurisdiction. Bergstrom ruled that MAI has a degree of “common ownership” over MAGS since they share common directors and officers, and therefore, that both companies must file EEO-1 reports.

In a more recent development, Manheim Entities (i.e., MAGS and MAI) agreed to a consent decree to be disbarred rather than submit to OFCCP jurisdiction. The consent decree was signed on September 13, 2011 and can be viewed here. The decree, in part, states:

[T]he Manheim Entities and their officers, agents, employees and purchasers agree not to bid for, knowingly enter into, knowingly perform work, or knowingly provide services necessary to any future Government contracts or subcontracts, except as otherwise provided for in the Consent Decree below.

The exception is that the order can be lifted if MAGS and MAI agree to submit to a full compliance review.

Since April 2007, Manheim Entities has held 18 government contracts with federal agencies such as the General Services Administration (GSA), the US Postal Service, the Drug Enforcement Administration, the US Marshall Services, and the Army/Air Force Exchange Services. Contracts with the GSA and Marshall Services alone are estimated to generate income in excess of $200,000 per year. As far as I know, no company has ever agreed to stop vying for federal contracts in exchange for escaping from OFCCP jurisdiction.

EEOC FILES ADA LAWSUITS AGAINST FIVE COMPANIES

by Art Gutman Ph.D., Professor, Florida Institute of Technology

I was struck while reading the news releases on the EEOC website (http://www.eeoc.gov) that five ADA lawsuits were filed in a span of less than two weeks (9/8/11 through 9/19/11). What’s striking here is not so much the number of lawsuits, but the reasons behind them. Four of the five employees worked for their employers for 13 or more years. The allegations, if true, reflect what I think are “worst practices.”

EEOC v. Walgreens
http://www.eeoc.gov/eeoc/newsroom/release/9-8-11c.cfm)

Josefina Hernandez, a cashier who worked at Walgreens for nearly 18 years, was fired after she opened a bag of potato chips while suffering a hypoglycemia attack. She had no disciplinary record and Walgreens knew of her disease. According to Hernandez, she usually carries snacks for such attacks, but did not have one on this occasion. EEOC San Francisco Regional Attorney William R. Tamayo noted “one wonders whether a long-term, experienced employee is worth less than a bag of chips to Walgreens.” (Approximate cost $1.39 cents)

EEOC v. Miles Kimball
(http://www.eeoc.gov/eeoc/newsroom/release/9-12-11.cfm)

Laura Nejedlo is a deaf person who was successfully employed by Miles Kimball for 13 years. According to the EEOC, she was assigned to use a new software program and was fired after her request for a sign language interpreter to help train her for optimal use of the new program. John Rowe, director of EEOC’s Chicago District, noted “all Ms. Nejedlo wanted was a sign language interpreter for training so she could keep on performing successfully. Our contention is that there was no good reason why Miles Kimball denied her an interpreter and then fired her.”

EEOC v. Buy Rite
http://www.eeoc.gov/eeoc/newsroom/release/9-13-11b.cfm)

According to the EEOC, Chris Cherling, an epileptic who was a night shift stocker at Buy-Rite, was fired a after he experienced mild seizures at work. Cherling was a 17-year employee, who by his report, had experienced such seizures in the past and, nevertheless, was able to perform his job. Buy-Rite claims that he was a danger to himself and others. The EEOC claims the proper action was to “request Cherling to take a fitness exam or provide medical documentation of his ability to perform the job duties required of his position…. to determine that Cherling was a danger to himself and others.” EEOC San Francisco Regional Attorney William R. Tamayo noted “Please don’t assume that having seizures caused by epilepsy automatically disqualifies your employee from doing a job, in this case as a stocker. It’s critical to use objective evidence to determine whether that particular individual can perform the duties of the job.”

EEOC v. McDonalds
(http://www.eeoc.gov/eeoc/newsroom/release/9-14-11b.cfm)

Derrick Morgan, who has cerebral palsy, worked at a McDonalds store from 2006 through 2009 without any problems. In fact, he was promoted to floor supervisor in 2008. However, after a change in ownership to a company that operates 20 franchises in central California, the EEOC alleges that new management demoted Morgan to a janitor, dramatically cut his hours, and reduced his hourly wages. Anna Y. Park, regional attorney for the EEOC’s Los Angeles District Office, noted “this is a case where the company illegally stripped a well-qualified worker of his ability to earn a living due to misperceptions about his disability.”

EEOC v. Wal-Mart
(http://www.eeoc.gov/eeoc/newsroom/release/9-19-11a.cfm)

Marcia Arney, who also has cerebral palsy and worked for Wal-Mart for 22 years, attempted to return to work after surgery necessitated by her disability. Arney presented the store manager with a doctor’s note stating that she needed to take periodic breaks. The EEOC alleges that the manager, rather than returning her to work, demanded that Arney produce a medical release with no restrictions. EEOC Supervisory Trial Attorney Toby Wosk Costas noted “This skilled employee had decades of experience with customers who recognized and greeted her. She had a loyal customer base that also benefited the store. Not allowing her to return to her job or even discuss her temporary restrictions meant the loss of a loyal employee, and violated the federal law against disability discrimination.”

ELLIS V. COSTCO - DUKES V. WAL-MART REVISITED?

by Art Gutman Ph.D., Professor, Florida Institute of Technology

In a ruling that should interest all employers facing class action lawsuits, the 9th Circuit, interpreting Dukes v. Wal-Mart, overturned the main components of a class action lawsuit against Costco, one of Wal-Mart’s chief competitors. The ruling was handed down on September 16, 2011 [2011 U.S. App. Lexis 19060]. The allegations in this case are that Costco discriminated against women for promotion to its two chief managerial positions, Assistant General Manager (AGM) and General Manager (GM). Unlike the Dukes case, the allegations are limited to promotion.

This case is an easier read than Dukes (thank goodness!) Costco promotes from within. Applicants must be AGMs to qualify for GM, and applicants must hold one of four Senior Staff Manager positions to qualify for AGM (Front End Managers, Administration Managers, Receiving Managers, and Merchandise Managers). There are three named plaintiffs. Shirley “Rae” Ellis applied for GM, sued in 2002, and left Costco in 2004. Leah Horstman applied for AGM, sued in 2003, and resigned in 2004. Elaine Sasaki, applied for GM, sued in 2005, and remains with the company.

Recall from the discussions of the Dukes case that class certification requires meeting all four requirements of Rule 23(a), including: (1) numerosity (the class is large enough so that individual trials are impractical); (2) commonality (the harm claimed is common to the class); (3) typicality (a relationship between the named plaintiff(s) claims and claims alleged on behalf of the class); and (4) adequate protection of class interest (the named plaintiff(s) will fairly and adequately represent the interest of the class). Also, plaintiffs must satisfy the requirements of either Rule 23(b)(1), 23(b)(2) or Rule 23(b)(3). Critically for present purposes (as well as the Dukes case), Rule 23(b)(2) is for injunctive or declaratory relief (so that any monetary relief is “incidental”), whereas Rule 23(b)(3) is primarily for monetary relief and is more difficult to satisfy because it requires both predominance (common issues predominate over individual ones) and superiority (class action is superior to other means of resolving the dispute). In comparison, Rule 23(b)(2) permits a purely statistical analysis for the merits of the claims, thus denying the defendant to answer individual claims.

At the district court level [2007 U.S. Dist. LEXIS 2103], the Costco plaintiffs submitted declarations from (1) a statistician who claimed females are promoted at a slower rate and are underrepresented in the AGM and GM positions; (2) a labor economist who claimed females are underrepresented in the Senior Staff Manager, AGM, and GM positions; and (3) a sociologist who claimed that Costco has “a pervasive culture of gender stereotyping and paternalism.” Costo’s expert claimed that women are not underrepresented at any of these positions at Costco, and whatever disparities exist are confined to only 2 of 25 regions. Costco also offered nondiscriminatory reasons in relation to failure to promote the three plaintiffs, declarations of support from 200 employees, and a motion to strike the declarations from the plaintiffs’ experts.

On January 11, 2007, District Court Judge Marilyn Hall Patel, upheld the declarations from the plaintiffs’ experts, ruled that all four elements of Rule 23(a) were satisfied, and granted class certification under Rule 23(b)(2) to a class of women who have been employed at Costco as Senior Staff Managers or AGMs since January 3, 2002.

Interestingly, Judge Patel struck down one of the declarations (from the statistician), but not the other two (from the labor economist and sociologist). Of some interest here is that two other Costco experts, including Frank Landy, testified that far from being too subjective, Costco’s promotion procedures represented “best practices.”

On the issue of commonality Judge Patel was satisfied that the plaintiffs “provided sufficient evidence of gender disparities in the promotion of women to GM and AGM to raise a common issue of triable fact” and that “absence of written criteria for promotion by the employer as well as other evidence that the process was subjective satisfied the court that there was a policy common to the class.”

Speaking for a unanimous 9th Circuit, Judge N. Randy Smith ruled that Judge Patel was overly reliant on the declarations from the plaintiffs’ experts, and failed to conduct a “rigorous” analysis of the issue of commonality and ruled that the plaintiffs did not have a “common question that will connect many individual promotional decisions to their claim for class relief.” Judge Smith also struck down Judge Patel’s ruling on typicality, for reasons somewhat unique to 9th Circuit case law (that typicality does not apply if 'there is a danger that absent class members will suffer if their representative is preoccupied with defenses unique to it.” More importantly for present purposes, Judge Smith reversed on use of Rule 23(b)(2) because two of the plaintiffs had already quit, and therefore would primarily be interested in money, not injunctive relief. Stated alternatively, only one of the named plaintiffs (Sasaki) was deemed an adequate class representative under Rule 23(b)(2) and the other two (Ellis and Horstman) could serve as adequate class representatives only under Rule 23(b)(3).

Legal mumbo jumbo aside, this ruling is somewhat akin to what the circuit court did in the Dukes case. Of course, the Supreme Court ruled unanimously that Rule 23(b)(2) is inapplicable, and there was a 5-4 split in which the majority ruled there was insufficient evidence for commonality and that Rule 23(b)(3) was also inapplicable. Stay tuned for further developments.

GRANT V. METRO (PART 2)

by Art Gutman Ph.D., Professor, Florida Institute of Technology

I want to use this space to explain why Grant v. Metro is potentially a landmark case in the making. It’s a relatively lengthy story, so please bear with me. The story begins with the Supreme Court’s ruling in Watson v. Fort Worth Bank (1988) [487 US 977] and Wards Cove v. Antonio (1989) [490 US 642]. These two cases are not connected so much by their facts, but rather, by the need for the Supreme Court to amplify a plurality opinion in Watson, a truly good adverse impact case, in Wards Cove, which should have been Int. Teamsters v. United States (1977) [431 US 324] revisited. Then there was the failed attempt to modify Wards Cove and five other 1989 Supreme Court rulings in the Civil Rights Restoration Act of 1990 (CRRA-90) and the successful modification of these cases in the Civil Rights Act of 1991 (CRA-91). I will take it a little at a time.

The Watson & Wards Cove Rulings

Only eight justices heard the Watson case and they unanimously agreed that subjective selection decisions are subject to adverse impact rules. However, a plurality of four argued for fundamental changes in the adverse impact scenario. The facts are that Clara Watson, a black woman, was passed over for promotion four times, each time in favor of a white applicant, and each time based on subjective ratings by white supervisors, including ratings of (1) job performance, (2) interview performance and (3) past experience. It was unclear how these ratings were combined, but there was clearly bottom-line adverse impact for the total selection process. Speaking for three others (Rehnquist, Scalia & White), Justice O’Connor proposed a major change in the adverse impact scenario originally formed in Griggs v. Duke Power (1971) [401 US 424] and Albemarle v. Moody (1975) [422 US 405] such that (1) plaintiffs must identify a cause(s) of adverse impact (which Clara Watson did), (2) prove the causal relationship statistically, and (3) force the defendant to articulate a legitimate nondiscriminatory reason to support the identified causes (as in disparate treatment cases such as McDonnell Douglas v. Green (1975) [411 US 792]). It was the third proposal that led to controversy, since previously, cases involving cognitive tests (e.g., Griggs & Albemarle) satisfied the first two proposals, thereby forcing the defendant to prove (not simply articulate) that the identified cause(s) is job related. In other words, O’Connor’s proposal transplanted a traditional pattern and practice burden to the adverse impact scenario, which was a lighter burden than the traditional adverse impact burden of demonstrating job-relatedness.

A year later, Justice Kennedy joined the Court, forging a majority of five that turned O’Connor’s plurality opinion in Watson into case law. The facts in Wards Cove were that two salmon packing companies had a hiring-hall arrangement for unskilled jobs (salmon packing), but used different procedures to hire skilled workers (e.g., machinists), who were paid, fed, and housed better than the unskilled packers. Eskimos and Filipinos were overrepresented in the unskilled jobs and underrepresented in the skilled jobs. That’s why it should have been Teamsters revisited. As in Teamsters, minorities were congregated in a less desirable job and whites in more desirable jobs. However, in Teamsters, it was clear that minority and white workers were equally qualified; this was the arguable issue in Wards Cove. More on that part later. For present purposes, a majority of five used this case to cement O’Connor’s prior proposals.

Then, Congress tried to overturn Wards Cove (and five other cases) in CRA-90, but President Bush vetoed the bill. The House easily overrode the veto, but the Senate failed to concur by only a single vote. The main reason for the veto was political disagreement on Wards Cove. Feeling the pressure of a near override, Congress got serious in CRA-91 and overturned Wards Cove and the other cases. CRA-91 kept O’Connor’s first two proposals but not her third. Of interest here for Grant v. Metro is the provision that if the cause of adverse impact cannot be identified because components of it cannot be disaggregated, then the total selection procedure should be analyzed as a single practice. More importantly for the general adverse impact scenario, the defense for proven adverse impact was restored to “job relatedness and consistency with business necessity” which, for all intents and purposes, is a restatement of the original defense from Griggs and Albemarle.

(you might want to take a refreshment break here … I have much more to come)

How Wards Cove Should Have Been Decided

What characterized cases like Griggs and Albemarle is that proof of adverse impact required statistically significant differences in applicant flow rates (or implied chilling factors such as educational requirements). What characterized pattern or practice cases such as Teamsters is the need to explain (not necessarily prove) why gross stock statistical disparities existed. What muddied the waters was a slew of lower court cases in which plaintiffs charged both adverse impact based on only stock statistics. Historically, this was not an issue because the ruling invariably went in the direction of the pattern or practice claim. That is, no adverse impact claim in any such case was supported while, at the same time, the pattern or practice claim was turned down. Similarly, the adverse impact charges failed every time the pattern or practice charges failed. The lone exception to this rule, both pre and post-Wards Cove, was Wards Cove.

In Wards Cove, the district court favored the defendants on both pattern and practice and adverse impact and the 9th Circuit, while upholding the pattern or practice ruling, reversed the adverse impact ruling, thereby forcing the defendants to prove job relatedness of their selection procedures. Sound familiar? In Grant v. Metro, a jury ruled for the defense on pattern or practice and the district court judge, after prompting from the 6th Circuit, upheld the adverse impact ruling. The district court judge also favored a motion for a new trial on pattern or practice, which the 6th Circuit endorsed.

Here’s What I Predict

Regardless of what happens in the new trial, there will be an appeal for en banc ruling by the 6th Circuit. Regardless of what this ruling is, there will ultimately be a Supreme Court ruling.

Here’s What I Hope Will Happen

In my opinion, Wards Cove would have been A-OK had the Supreme Court correctly identified the charges as valid for pattern or practice (thereby forcing defendants to articulate a legitimate explanation and plaintiffs to prove that the explanation is a pretext for class-wide disparate treatment), but that the adverse impact charges were invalid because there were no applicant flow statistics (or implied chilling factors). The Supreme Court did not have to change any adverse impact rules. There has been no opportunity for such a ruling since Wards Cove.

Grant v. Metro also offers resolution for the identification provision in CRA-91. Two out of three 6th Circuit judges ruled Grant failed to carry its burden on treating the entire selection procedure as one practice, and a dissenting judge thought otherwise. However, this is the lesser of my two concerns. Had there been failure to disaggregate in the face of bottom-line applicant flow disparities, I would agree with the dissenting judge. The more important issue is, in my opinion, that adverse impact and pattern or practice cases should not be confused with each other, which is, after all, what the Wards Cove ruling “accomplished.”

Ultimately, Congress both preserved and reversed portions of the Wards Cove ruling in CRA-91.

I could say more but that’s enough for now. By the way, if you want an easy way to read the Supreme Court cases cited above you can use “cases” link at http://uwf.edu/cap/eeolaw/

GRANT V. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TN (METRO) - PART 1

by Art Gutman Ph.D., Professor, Florida Institute of Technology

Grant v. Metro was decided on August 26, 2011 by a divided three-judge panel of the 6th Circuit Court [2011 U.S. App. LEXIS 18054]. The case was recently summarized by Rich Tonowski of the EEOC (see http://www.ptcmw.org/ptcmw/2011/09/legal-update-september-2011.html#more). I’ve been waiting for this type of case since the Civil Rights Act of 1991 (CRA-91) was enacted. I have long maintained that Wards Cove v. Antonio (1989) should have been a pattern or practice case, not an adverse impact case (e.g., Gutman, 2005; Gutman, Koppes & Vodanovich, 2010 Ch.2). What the 5-4 Supreme Court ruling did in Wards Cove was apply pattern or practice rules to adverse impact, and this, in my opinion, was the main fuel for CRA-91. I’ve been waiting for a case with facts analogous to Wards Cove, and Grant v. Metro fits the bill. It is a class action suit alleging both pattern or practice and adverse impact based on stock statistics. This is a complicated matter. I will cover the basics of Grant v. Metro below, and discuss in a sequel the relationship of this case to Wards Cove and CRA-91.

The plaintiffs claimed that Metro used a racially discriminatory “preselection” procedure that included tailored job qualifications, selective interviewing, and subjective decision-making. As noted by Tonowski, there was no attempt to isolate (or disaggregate) these practices so as to link them with specific outcomes. The plaintiffs charged that the preselection procedure hurt black employees with respect to post-hiring opportunities, most notably promotion, but also with job assignments, pay, accommodations, discipline, and other terms and conditions of their employment. The plaintiffs advanced both pattern or practice and adverse impact theories of liability.

At the district court level, Judge William J. Haynes, Jr. granted class certification for "all former, current, and future African-American employees of … Metro … from the period January 1, 2000 to the present.” However, a jury ruled for Metro on the pattern or practice charge and Judge Haynes reserved judgment on adverse impact (Grant v. Metro (2010) [727 F.Supp 2nd 677]). The plaintiffs appealed on pattern or practice, requesting a new trial. Judge Haynes agreed, and his motion was upheld by a three-judge panel of the 6th Circuit (See In re Metro (2010)[ 606 F.3d 855]). A new trial on pattern or practice therefore awaits. Of primary interest here is that the 6th Circuit also ordered Judge Haynes to rule on adverse impact, and his ruling was that the plaintiffs presented sufficient prima facie evidence of adverse impact, and the plaintiffs were awarded back pay (to be determined by a special master) and immediate injunctive relief prohibiting Metro from conducting oral interviews for MWS promotions or imposing an interview requirement for lateral transfers. The August 26th ruling by the 6th Circuit addressed Metro’s appeal of Judge Haynes adverse impact ruling. As noted above, it was a split ruling in which two judges favored Metro and one judge dissented and favored the plaintiffs. Here’s the key --- both the majority ruling and the dissent make sense, but for different reasons.

The majority (Judges Batchelder & Sutton) focused on the first two prongs in CRA-91 for making an adverse impact prima facie case: (1) identifying “specific employment practices … responsible for any observed statistical disparities” and (2) proof that these practices cause adverse impact. Prong 1 has an exception such that if the decisonmaking process cannot be disaggregated for statistical analysis, then the entire process may be analyzed as a single employment practice. Judge Batchelder, who wrote the majority opinion, ruled that the plaintiffs “never attempted to demonstrate that the elements of that process are incapable of separation for analysis.” Explaining Further, Judge Batchelder ruled:

The district court appears to have assumed that merely challenging the promotions process as a whole is sufficient to take advantage of the statutory exception, but that is simply not the law. … [CRA-91] clearly requires plaintiffs to identify and isolate specific employment practices … A plaintiff may challenge the process as a whole only if he first demonstrates that its elements are incapable of separation. … The district court erred by allowing Plaintiffs to reap the advantages of the statutory exception without first meeting its requirements.

For Prong 2, the plaintiff’s presented stock statistical comparisons showing that blacks were disproportionately represented in lower paying jobs. Or in Batchelder’s words, the plaintiffs’ statistical expert:

[F]ocused specifically on the representation of "blacks in higher level positions compared to the overall black to white ratio at MWS." He did not look at actual promotion rates, nor did he compare the ratios of black and white employees eligible for promotions with those who actually received promotions. He explained that, in light of MWS's alleged practice of altering job qualifications and criteria, it was impossible to determine who was actually eligible for promotions.

In short, the majority ruling reduces the requirement to show actual applicant flow disparities (i.e., significant differences in selection rates) in order to prove causation.

The dissenting Judge (Clay) made three major points. First, he disagreed that the plaintiffs failed to identify specific employment practices. Second, he pointed to several pieces of anecdotal evidence of discrimination. For example, he cited the following example:

In one instance, Metro eliminated a bachelor's degree requirement for a director position after a qualified black employee applied, and awarded the position to a white applicant without a degree, even though the previous director had both bachelor's and master's degrees.

Several such probative examples were cited. However, third, and most important for present purposes, Judge Clay opined that the statistical evidence provided by the plaintiffs was sufficient for a prima facie case of adverse impact because it showed that “the rate of promotions of black employees, across nearly every job category, was three to four standard deviations lower than would be expected in the absence of discrimination.”

OK … so why is this important. Mainly, both Batchelder and Clay raise important issues. However, Batchelder’s requirement for applicant flow disparities is, in my opinion, the correct one for a prima facie case of adverse impact, whereas the anecdotal evidence of discriminatory decisionmaking coupled with disparities between minority and non-minority employees in different job categories is the correct requirement for a prima facie case of classwide disparate treatment. Thus, I think Judge Batchelder’s ruling was correct and Judge Clay’s opinion should be reserved to the new trial on the pattern or practice charges. I will explain more in the sequel.


References

Gutman, A. (2005). Adverse Impact: Judicial, Regulatory, and Statutory Authority. In F.J. Landy (Ed.) Employment Discrimination Litigation: Behavioral, Quantitative, and Legal Perspectives. San Francisco, CA: Jossey Bass, pp. 20-46.

Gutman, A., Koppes, L.L. & Vadonovich, S.J. (2010). EEO Law and Personal Practices (3rd Edition). New York: Routledge, Taylor & Francis Group.

OFCCP SUES LEPRINO FOOD FOR ADVERSE IMPACT AGAINST BLACK, ASIAN & HISPANIC APPLICANTS

by Art Gutman Ph.D., Professor, Florida Institute of Technology

The suit, announced on September 1, 2011, seeks back pay, interest for at least 270 class members and job offers for at least 17 of the original applicants under the threat of cancellation of existing contracts and debarment from future contracts. Leprino Foods is the largest producer of mozzarella and whey products to the Farm Services Agency and has contracts totaling 5 million dollars. At issue is a job skills assessment called WorkKeys. According to the OFCCP the selection rate based on this assessment over a 22-month period was 49% for minority applicants as compared to 72% for non-minority applicants. WorkKeys, according to the company, assesses applied math, workplace observation, and information location skills, which are purported to be essential for on-call laborers that perform a variety of entry-level tasks such as inspecting products, monitoring equipment, and maintaining sanitation at the facility. According to OFCCP Direct Shiu "Leprino Foods' hiring process simply doesn't pass the sniff test." It should be interesting to see what ALJ assigned to this case thinks of “sniffing” out workplace discrimination.