Judge rules against Bank of America

WASHINGTON — 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’s) 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.

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