You Didn’t Discriminate in Your Hiring? Prove It!
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You Didn’t Discriminate in Your Hiring? Prove It!

Last week, the OFCCP reached a settlement of hiring discrimination charges with Jennie-O Turkey Stores. Jennie-O Turkey is the second-largest turkey processor in the country and holds a $360 million contract with the U.S. Department of Agriculture, which in turn supplies food to schools and food banks. The OFCCP alleged that Jennie-O Turkey Stores’ selection practices discriminated against qualified female applicants for laborer positions between February 2009 and February 2010. Applicants did not undergo any pre-employment testing as part of the selection procedures. The OFCCP found that Jennie-O disproportionately granted interviews to men over women applicants during one phase of the hiring process.

In addition to its proactive cooperation with the OFCCP to settle the matter, Jennie-O agreed to offer laborer positions to 53 qualified female applicants and to pay $491,861 in back wages to 339 applicants denied entry-level jobs at its turkey-processing facility, located in Wilmar, Minnesota. Jennie-O also agreed to train its hiring personnel to prevent any such discriminatory hiring practices going forward. As with many such settlements, Jennie-O did not admit liability and it made a statement that it disagrees with the OFCCP’s findings and is committed to promoting and maintaining a discrimination-free workplace, and that the settlement was “a way to avoid costly litigation and move forward with our business”.

How did the parties arrive at the numbers it did? The figures are based on OFCCP estimates. The OFCCP argued that if there were no discrimination involved, the selection rate would be 35% women. That rate would have yielded 53 women. As for the back pay amounts, are based on what the female applicants would have earned if hired by Jennie-O minus what they would likely have earned working elsewhere, leading to a minimum payout of $1450 a person. The OFCCP will send notices to women who applied for the laborer positions between February 2009 and February 2010 and Jennie-O will offer positions within that group of previously rejected female candidates.

We have written before about large settlements with large federal contractors and have made recommendations to our readers as to how to avoid ending up in those same situations. Those recommendations have included training, reviewing policies and procedures, beefing up outreach and recruitment. Those recommendations are still sound and we stand by them. These recommendations, however assume that the contractor did in fact discriminate or at the very least failed to take appropriate steps to ensure that it didn’t do anything discriminatory.

What if the contractor didn’t actually discriminate though? What if the contractor in fact made all the efforts it should have made to ensure appropriate representation of all protected classes under Affirmative Action laws? What if discrepancies are caused by factors not attributable to any action or omission on the contractor’s part? If that were so, how would the OFCCP be achieving these types of settlements? Perhaps, some of these cases are indicative of something else…

If the contractor didn’t actually discriminate or fail to take steps to avoid discriminating, and if the contractor in fact took all the steps it should have in its outreach and recruiting efforts, where could it have gone wrong? If you are asking that question and you don’t know the answer, then you, like these other contractors have one major, though often overlooked area that you will want to re-visit immediately: recordkeeping.

You may well know that OFCCP regulations already require, sometimes implicitly, sometimes explicitly that you create and maintain records related to your Affirmative Action Program. If you are lax with your recordkeeping, you may already be in violation of those regulations, but that is not really our focus right now. You can review the regulations about recordkeeping in order to know which records are required by regulation. You can also review the current scheduling letter that the OFCCP sends to contractors prior to the commencement of a Compliance Evaluation and see what documents you should create and maintain in preparation for such an eventuality. Putting aside these requirements, you still need to create and maintain records or you can find yourself in the same position in which Jennie-O and a number of other similarly situated contractors find themselves.

Let’s assume for the moment that Jennie-O did everything it should have done to recruit and hire qualified female applicants. Let’s assume it offered laborer positions to the appropriate percentage of qualified female applicants. What if those applicants turned down the job offers or what if they tried finding the right percentage of qualified female applicants, and their recruiting and outreach efforts were everything they should have been? What if they trained their hiring personnel accordingly? What would be the problem, then? What if there is no record of any of that?

Here’s the nauseating conclusion. Even if they did everything they should have done, if they didn’t document those efforts, if they didn’t document the results and the reasons, if they didn’t document why they hired or rejected certain candidates, they have no proof. As far as the OFCCP is concerned, there is a discrepancy in hiring, and the contractor didn’t do what it was supposed to do to ensure an appropriate number of hires among qualified female candidates, and/or the contractor discriminated. Why is that? Because there is no proof that the contractor did in fact do what it was supposed to do. If you are an H.R. practitioner, you have probably heard sayings, such as “If it’s not in writing it didn’t happen”, or “If you didn’t document it you didn’t do it”. Literally that may not be true, but practically it is—because if the OFCCP comes knocking and finds a statistical disparity that you cannot explain or refute, then, you will likely be found to have discriminated – even though you didn’t really.

Yes, you should engage in appropriate outreach and recruitment efforts to attract, hire, retain and promote qualified female, minority, veteran and disabled candidates. Yes, you should train your hiring personnel in appropriate recruitment and hiring practices. Yes, you should, of course, have your Affirmative Action Plans and all required statistical analyses readily available. You should also document all the efforts you have made to recruit and hire qualified female, minority, disabled and veteran candidates. You should document who you hired, who you rejected and why. If there are other reasons why, despite doing everything you should have there are still discrepancies between what the OFCCP says your numbers should be and what they are, you’ll be able to explain it. That documentation may well be enough to save you from an audit or a lawsuit. At the very least, if you do have to make a statement to the media, it will be credible, because your documentation will support it.
For more information contact Ahmed Younies at (714) 426-2918, x 1 or ayounies@hrunlimitedinc.com.

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