As we have written previously, OFCCP continues to focus its investigations on adverse impact in hiring.  This week, one employer received good news in response to its challenge of an Agency finding.

On Monday, a Department of Labor Administrative Law Judge issued a ruling that limited the OFCCP’s approach to investigating and establishing racial discrimination among subminorities.  In the case of VF Jeanswear, OFCCP found adverse impact against a group of “non-Asian” job applicants; VF Jeansware challenged OFCCP’s analytical approach.  In short, the Court held OFCCP may not find discrimination in favor of one subminority group to the detriment of all others when there are no statistical indicators of any potential discrimination against any of the “other” subminority groups.   Relying on the text of the regulations, the Judge explained, contractors “are prohibited from employee selection procedures with a disparate impact on a ‘race’ or ‘ethnic group,’”  explaining further that a manufactured grouping that aggregates “all other” racial classifications “is neither . . . , either by regulatory definition or as used in common parlance.”

OFCCP has the opportunity to appeal this decision to the Administrative Review Board, so we will have to wait and see how this ultimately plays out.  But for now it seems employers have an argument to raise with the Agency over these types of aggregated analyses.