Earlier this week, Bank of America (BOA) filed a complaint seeking federal court review of the DOL Administrative Review Board’s (ARB) latest ruling in a case that started with the initiation of an OFCCP compliance review over two decades ago. In its most recent ruling, an ARB panel unanimously affirmed an ALJ’s conclusions that the bank intentionally discriminated against African Americans in 1993 as well as the ALJ’s award of remedies on those claims. However, a majority of the ARB panel found—for different reasons—that the OFCCP failed to establish that BOA was liable for the damages awarded for alleged discrimination in 2002-2005, and therefore, reversed the ALJ’s liability and remedy orders pertaining to 2002-2005 period. One of the administrative appeal judges in the 2-1 majority found fault with the OFCCP’s statistical analysis as to that period, while the other determined that the OFCCP violated the bank’s due process rights as to those claims (OFCCP v Bank of America, ARB Case No 13-099 (ALJ Case No 1997-OFC-016), April 21, 2016). The bank’s complaint, filed in the federal district court for the District of Columbia on May 23, 2016 (dkt no 1:16-cv-968), alleges that the ARB's conclusion that BOA intentionally discriminated against African American applicants in 1993 was erroneous because it:
- is based upon 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;
- is contrary to the OFCCP’s established procedures, practices and regulations; and
- fails to consider or account for all of the evidence, is contrary to the evidence, and is unsupported by substantial evidence.
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