Jim Higgins – Don’t Let This Happen To You!

OFCCP News Release: [12/02/2010]
Release Number: 10-1644-ATL

When I learned of this case I got that dreaded feeling of “here we go again”. I sometimes feel like a broken record because I find myself providing the same warning over and over again.

This time, the US Labor Department is suing the nation's 2nd largest wholesale food distributor. Guess what for? Discrimination against women due to biased selection procedures. If you look back at my previous posts, you will see that I have repeatedly warned of this—and now I do it again.

ALL EMPLOYERS BEWARE! The OFCCP is able to win more cases, levy more fines, and net employees more restitution from discrimination arising from biased and invalid contractor testing and selection procedures than from any other source. If your pre-employment tests are not valid—or even if they are but you don’t have the evidence to prove it—it is just a matter of time before I am featuring you in this blog.

Summarizing the DOL news update:

In this current case, the U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) filed an administrative complaint against Nash Finch Company for systematically discriminating against more than 80 qualified women who applied for order selector positions at the company's Lumberton facility. Nash Finch is the second-largest publicly traded wholesale food distributor in the United States and is based in Minneapolis, Minnesota. The company contracts with the federal government to provide goods and services to more than 200 military bases both in the U.S. and overseas.

Over the course of the past decade, the OFCCP settled discrimination cases with Nash Finch facilities in Norfolk, Virginia, St. Cloud, Minnesota, and Omaha, Nebraska. In those cases, the OFCCP uncovered serious violations of the law with regard to recordkeeping and hiring discrimination, and found the company's policies and procedures created an uneven playing field for women, minorities and veterans seeking employment with the company.

Patricia Shiu, Director of the OFCCP stated "It is unacceptable that a company which profits from lucrative federal contracts would repeatedly violate the law in this manner. Nash Finch has demonstrated an unfortunate pattern and practice of hiring discrimination, and the American taxpayers should not have to bankroll this company's bad behavior anymore."

Order selectors at the Lumberton facility pull warehouse stock to fill customer orders. Under Executive Order 11246, federal contractors cannot discriminate in employment practices based on gender. However, data collected from Nash Finch during a six-month period showed striking hiring discrepancies. The company hired approximately 6 percent of qualified female applicants compared to 26 percent of male applicants. In 2007 and 2008, there were no women in any order selector positions at the Lumberton distribution center.

The Labor Department's administrative complaint seeks remedies for the rejected applicants, including lost wages, benefits and interest for more than 80 affected class members, as well as job offers and retroactive seniority for at least 11 of the original applicants. In addition, the OFCCP is petitioning the Labor Department's administrative law judge to cancel all of Nash Finch's existing federal contracts and debar the company from entering into any future contracts until the violations are resolved and the company corrects its discriminatory employment practices.

In addition to Executive Order 11246, the OFCCP's legal authority exists under Section 503 of the Rehabilitation Act of 1973 and the Vietnam Era Veterans' Readjustment Assistance Act of 1974. As amended, these three laws hold those who do business with the federal government, both contractors and subcontractors, to the fair and reasonable standard that they not discriminate in employment on the basis of gender, race, color, religion, national origin, disability or status as a protected veteran.

The charge of discrimination is still pending and it is possible that Nash Finch will be found “not guilty”. Even if they are found guilty, there is no way to know whether Nash Finch was discriminating out of malice or intent. It is difficult for me to believe that in this day in time a company would willingly choose to discriminate based on gender or race. It is more likely that their pre-employment testing and selection system suffered from neglect and indifference. This much is surprising as they had been targeted previously for the same behavior.

As I have said many times about other employers, Nash Finch could easily have avoided this situation and the risk of losing its contracts by simply following the appropriate procedures to validate their tests and testing program. For what is comparably an insignificant amount of work and a tiny cost, they could have virtually assured that they would have been in compliance with the law and common sense and protected that all important asset—a good reputation.

I urge you to review your selection procedures. If there are any that are not based on a quality job analysis and if there is no evidence that the test is measuring critical and essential knowledge, skills, and abilities that are required at entry to the job, please take the time now to do so before you find yourself in Nash Finch’s uncomfortable position.

Should you require help with test validation or any other OFCCP compliance-related project, we at Affirmative Action Services are happy to help you with the highest quality service at a very affordable cost. Visit our website at www.AffirmativeActionServices.com or email me at JHiggins@AffirmativeActionServices.com.