Jottings By An Employer's Lawyer

Friday, February 12, 2010

Executive Order 11246, OFCCP and The Reach of Time

The next time you open a letter from your friendly Office of Federal Contract Compliance Programs investigator advising you that you will be subject to a friendly review of your compliance practices, you might just contemplate the following:

November 24, 1993

October 19, 1994

August 25, 2000

March 31, 2003

August 11, 2004

October 15-16, 2008

March 3-5, 2009

January 21, 2010

What are those dates? Well the first was the initial letter to what was then called NationsBank, now Bank of America, advising them that their Charlotte facility had been selected for compliance review by the OFCCP.

The January 21,2010 date is the decision of the Administrative Law Judge recommending that BOA be "found to have discriminated against African-American applicants in hiring for entry-level positions in 1993, and 2002-2005, on the basis of their race."

That's right, more than 16 years after the initial letter, a "Recommended Decision and Order" has been finally issued as to liability. The ALJ has kept jurisdiction to determine damages.

Still to come in addition to a determination of the damages is the appeal to the Administrative Review Board and then no doubt an appeal to a circuit court of appeal. And of course the possibility if the ALJ's determination is not completely correct the possibility of a remand to do it or some part of the process over.

For what happened on the interim dates listed above, feel free to review Judge Linda S. Chapman's 66 page order. ($)

Now this matter has had a number of unusual twists, turns and legal questions and challenges, but still ... 16 years plus? And 16 years plus to get not to an end, but to a recommended decision on liability alone? 

My purpose is not to point fingers at either the Bank or the OFCCP, as I don't know enough to suggest whether either (or both) did anything that unduly protracted the issue.  And I am sure that most OFCCP investigations/prosecutions don't take nearly this long.

Still it's not a healthy situation, for anyone, when cases take this long. And we ought to be looking for a better way.


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