Decades-long saga ends as Bank of America agrees to pay $1 million to settle OFCCP charges of racial bias in hiring
April 19th, 2017 | Cynthia L. Hackerott
Ending a 24-year saga, Bank of America (BOA) has agreed to pay $1 million in back wages and interest to 1,027 African-American applicants in a settlement that resolves OFCCP allegations of hiring discrimination against African-American applicants for entry-level clerical, teller and administrative positions at the bank’s Charlotte, North Carolina headquarters facility. Although Bank of America continues to deny these claims, it has agreed to the monetary settlement and also agreed to extend 10 job opportunities, according to an April 17, 2017 OFCCP statement announcing the settlement.
Litigation history. The case began in November 1993 when the OFCCP initiated a compliance review of the bank’s (at that time known as NationsBank) Charlotte, North Carolina facility. In April 2004, the bank responded without objection by providing the documents requested by the OFCCP and permitting the agency to conduct an onsite investigation. After the OFCCP advised the bank of its findings of discrimination, first in October 1994 and then with a revised notice in June 1995, the bank brought a federal court challenge to the agency’s authority to conduct the review, arguing that the OFCCP’s action violated the bank’s Fourth Amendment rights. NationsBank merged with the Bank of America, N.A. in 1998. When the court challenge failed (NationsBank Corp v. Herman, 4thCir, No 98-1127, April 6, 1999; cert. denied, sub nom. Bank of America Corp v. Herman, U.S.S.Ct., No 99-394, December 6, 1999) and Labor Department attorneys filed an administrative complaint, the bank pursued the case in the administrative forum.
On May 23, 2016, the bank filed a complaint in the federal district court for the District of Columbia (dkt no 1:16-cv-968) seeking review of the DOL Administrative Review Board’s (ARB) most recent ruling in the case (OFCCP v. Bank of America, ARB Case No 13-099 (ALJ Case No 1997-OFC-016), April 21, 2016). There, the 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. More detail on that ARB ruling and the history of this litigation is available here.
In December 2016, the parties informed the federal district court for the District of Columbia that they were in the process of negotiating a resolution of the matter, and requested a stay of the proceedings while settlement discussions were ongoing. On April 4, 2017, the court has entered an order to stay the proceedings until specified settlement provisions are met and ordered the parties to file a joint status report on July 7, 2017, if the matter has not been voluntarily dismissed by then.
Statements. “Although much time and effort has gone into this case by all parties, the department is pleased that the matter has been resolved. It is a win for the affected job applicants, for Bank of America and for the department,” said Acting OFCCP Director Thomas M. Dowd in the agency’s statement. “It reinforces our nation’s founding principles of fair treatment and level playing fields.”
In a statement provided to Employment Law Daily on April 18, 2017, a Bank of America spokesperson said: “We remain committed to fair hiring practices. While we continue to disagree with the Department of Labor’s analyses, we are pleased to have resolved this nearly-25-year-old matter.”