The ruling, by ALJ Kenneth A. Krantz was handed down on 8/5/13. What’s interesting in this ruling is that OFCCP, for all intents and purposes, believed that VF was showing preference for Asians versus all other protected groups. The problem is that the consultant hired by OFCCP testified that he saw no evidence of disparate treatment of applicants, which requires proof of motive, but testified there was evidence of disparate impact, which requires no proof of motive. The consultant, a labor economist, compared 182 Asian applicants to 367 non-Asian applicants and testified that 87 Asians as compared to 86 non-Asians were selected for interview, representing a shortfall of 29.6 non-Asians. His conclusions were:
a. Applicants referred by employees were given priority in selection for interviews;
b. Asian employees were much more likely to use the referral system;
c. Asian employees made the most referrals; and
d. Asian employees were highly likely to refer Asian applicants when making referrals.
by Art Gutman, Ph.D., Professor, Florida Institute of Technology
