OFCCP recently revealed a new lawsuit in this press release. It is important to note that this case has not been decided, but a complaint has been filed with the Office of Administrative Law Judges (ALJ). The allegations set forth are serious, if founded, and include allegations of harassment, assault, and abuse of Hispanic employees. OFCCP also alleges disparity in pay and hours against other protected groups. However, some of the allegations in the press release are troubling from a regulatory enforcement perspective.
First, the press release states that the contractor discriminated against “non-Hispanic” applicants. This is an interesting point given the next logical question of whether or not “non-Hispanic” can be considered a protected group for evaluation of discrimination. There is not a clear-cut answer to this question and the issue is further complicated by the fact that the specific details of this case were not made available in the press release. In general terms, determination of whether or not “non-Hispanic” is a viable group for analysis purposes depends on a variety of factors, including (a) whether the “Hispanic” ethnic group is treated as a race or national origin group (see VF Jeanswear for existing precedent on this issue when dealing with racial categories), (b) the availability of anecdotal evidence that may support the designation of “Hispanic” and “non-Hispanic” comparator groups to mirror the realities of the selection process, and (c) whether or not the collection and retention of demographic data allows for a meaningful evaluation of ethnicity/national origin at all.
Second, the complaint alleges that “laborers” were the affected positions, but makes no reference to job titles. This implies that potentially different positions may have been rolled into the EEO-1 Category of laborer to analyze pay and hours. This potential aggregation may not reflect positions with similar content, opportunity, and wage.
Third, the contractor in question is a sub-contractor supplying staff to construction contractors. The press release does not make it clear whether this case is being put forth under the supply and service or the construction regulations.
Finally, it is important to flesh out the allegations of harassment, assault, and abuse of Hispanic employees in this lawsuit. The named contractor is being charged with knowing that Hispanic employees were being harassed, assaulted, and abused while working on construction contracts for other contractors, yet doing nothing about the situation. It is unclear whether the construction contractors responsible for the alleged harassment, assault, and abuse of the Hispanic employees are also being investigated by either the OFCCP or another appropriate agency.
By Emilee Tison, Consultant and Kristen Pryor, Consultant at DCI Consulting Group