Bank of America Fights Back

As reported previously, an Administrative Law Judge (ALJ) found Bank of America (BOA) (previously Nations Bank) guilty of a pattern or practice of discrimination of race discrimination in hiring for entry level jobs, and was ordered to pay $964,033 for back pay for 2003 and $1.2 million for back pay for 2002-2005.  The ALJ ruled that there were statistically significant differences in applicants first interviewed and applicants then hired, even when controlling for critical covariates.  Also at issue in the 1993 case was disproportion automatic exclusions for code violations (i.e., credit checks and incompatible work schedules).  However, as later determined by a three-panel Administrative Review Board (ARB), it upheld the 1993 award but overturned the 2002-2005 ruling (and corresponding $1.2 million award).  On May 23, 2016, shortly after the ARB  ruling, BOA sued the Labor Department challenging the ruling in a brief nine-page complaint.

 

BOA’s complaint may be read here.

 

BOA’s appeal was made under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706, permitting judicial review of a Final Decision and Order.  BOA’s arguments are that:

 

  1. The final order was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, contrary to Bank of America’s constitutional rights, without observance of procedure required by law, and unsupported by substantial evidence.”
  2. The review board (or ARB) mistakenly ruled that BOA intentionally discriminated against African American applicants in 1993.
  3. That this conclusion is based on a “fundamental misunderstanding of the nature of a pattern or practice of intentional discrimination case, of the proof required in such a case, and of the use and meaning of statistics in such a case.”
  4. That it is contrary to OFCCP’s established procedures, practices and regulations.
  5. That it failed to consider all of the evidence in this case, the ruling itself is unsupported by substantial evidence.
  6. The remedies imposed are contrary to law and unsupported by substantial evidence
  7. The ARB falsely concluded that BOA voluntarily agreed to the compliance review and, therefore, the OFCCP violated the 4th Amendment by ordering it.

 

BOA’s conclusion is that the Final Order should be held unlawful and set aside.

 

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

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