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Government Contractor Compliance & Regulatory Update

ALJ Rules “Non-Asian” Group Not Protected Under Executive Order 11246

Posted in Discrimination, OFCCP

A Department of Labor Administrative Law Judge (“ALJ”) ruled on August 5, 2013 that the Office of Federal Contract Compliance Programs (“OFCCP”) cannot proceed with a disparate impact claim against a clothing manufacturer because “Non-Asians” is “neither a race nor an ethnic group” for purposes of Executive Order 11246.

OFCCP issued a Notice of Violation in 2009 to VF Jeanswear Limited Partnership, an apparel manufacturer with a facility in Winston-Salem, North Carolina.  The Notice stated that in 2005 VF Jeanswear discriminated against “non-Asian” applicants in the hiring of Operative job group positions.  OFCCP filed an administrative complaint against VF Jeanswear in May 2011 and both parties moved for summary judgment.

The ALJ decision granted VF Jeanswear’s motion for summary judgment.  The ALJ noted that the “non-Asian” classification “was apparently custom-designed for this case,” aggregating one group that was over-represented (Hispanics), one group that was under-represented (Whites) and one group that was closely proportional (African-American) compared to regional U.S. Census data.  The ALJ explained that the only accepted “race” and “ethnic group” classifications for both EEOC and OFCCP purposes are African-American, Native American/Alaskan Native, Asian/Pacific Islander, Hispanic, and White.  Although “non-whites” are effectively a protected class (collectively as “minorities”), the regulations do not recognize other “non-” classifications for the purposes of analysis and enforcement.  The ALJ concluded that because “Non-Asian” is not a protected race, ethnic group, or class for OFCCP purposes, it could not serve as a basis for asserting a discrimination claim.

The decision recognizes constraints on OFCCP’s ability to make groupings and comparisons in assessing potential discrimination claims and issuing notices of violation.  Contact the Government Regulatory Compliance & Relations group at Proskauer if you have any questions concerning OFCCP compliance issues.