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Thelen Reid Brown Raysman & Steiner LLP
Two
large, well-known companies have entered into settlements
resolving complaints brought against them by the Office
of Federal Contract Compliance Programs.
Ford
Motor Co. will pay $3.8 million to settle a complaint brought
by OFCCP, which charged that Ford unlawfully discriminated
when it failed to hire women and minorities in proportion
to the number that had applied. An OFCCP compliance review
found that although women made up 38 percent of qualified
applicants for an entry level assembler position, they constituted
only about 25 percent of those hired for the position.
Ford's
practice was to hire minorities in proportion to the regional
population using data from the U.S. Census. Ford denied
any discriminatory hiring practices but explained that it
accepted the settlement to avoid the costs and uncertainty
of litigation.
OFCCP
reported that the $3.8 million settlement was the fifth
largest reached under Executive Order 11246, which prohibits
discrimination by federal contractors. Under the terms of
the settlement, $2 million will be divided among 381 female
class members who where denied jobs at one plant. Another
$1.4 million will be divided among female and minority class
members at other plants. In addition, the settlement requires
Ford to hire 100 applicants who were rejected for jobs,
with a $4,000 bonus to each individual to compensate for
lost seniority.
Ford
also agreed to hire the same proportion of minority and
female employees as apply in the future. For example, if
Ford wishes to hire 100 workers and 70 percent of qualified
applicants are women, Ford must hire at least 70 women,
regardless of the percentage of women in the region.
In
another matter, Dupont agreed to pay $456,678 in back pay
to settle a claim by the OFCCP that it used an employment
test that discriminated against female applicants. OFCCP
claimed that Dupont's written mechanical aptitude test,
which was followed by an interview and classroom exercise,
disproportionately eliminated qualified female applicants.
OFCCP
charged that there was not an adequate correlation between
an applicant's test score and on-the-job performance. Labor
Secretary Alexis Herman warned that "employers must
be very careful when they use tests to be sure that they
legitimately indicate which candidates can successfully
perform the job and that the tests do not unfairly screen
out qualified women and minority applicants."
Under
the terms of the settlement, Dupont will hire 8 of 31 women
who were denied employment and pay all 31 of them $14,731
each in back pay for a total of $456,678. The eight new
hires will receive a retroactive hiring date of 1997 for
the purposes of seniority, pension and vacation benefits.
As
a result of the charges, Dupont has hired testing consultants
to review its testing process and recommend improvements.
The plant has also updated its selection criteria. Employers
should review all employment testing and may wish to hire
testing consultants to ensure compliance with federal and
state laws and regulations.
Human
Resources Departments should carefully review hiring practices
in light of the OFCCP 's more aggressive stance. Hiring
that reflects the regional demographics may not be sufficient
protection against OFCCP action.
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For more information about the issues covered in this report, please contact Linda S. Husar in our Los Angeles office at 213-576-8017 or at lshusar@thelen.com or contact your Thelen attorney. For more information about Thelen's Construction and Government Contracts Department, click here.
©2000 Thelen Reid Brown Raysman & Steiner LLP
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