After nearly two decades fighting government allegations that it discriminated against African American job seekers, Bank of America Corp. was ordered by an administrative law judge at the Department of Labor to pay nearly $2.2 million in back wages and interest.
The money goes to 1,147 black job applicants who were rejected for entry-level teller and clerical jobs at the company’s facility in Charlotte, NC. Most applied for jobs in 1993. Administrative Law Judge Linda Chapman also ordered the bank to hire 10 class members as positions become available.
"Our investigators and attorneys prevailed despite decades of stalling tactics,” said Solicitor of Labor M. Patricia Smith in a prepared statement. “This case demonstrates that the department will not be deterred in our pursuit of justice for job seekers."
Bank of America also issued a statement, saying that it is “currently reviewing this recommended decision and order, which arises from a 1995 review. At Bank of America, diversity and inclusion are part of our culture and company values. We actively promote an environment where all employees have the opportunity to succeed.”
The bank was represented by Bruce Steen, Aaron Longo and W. Carter Younger at McGuire Woods. Steen forwarded a request for comment to the bank. The bank could decide to ask federal court of appeals to review the decision.
The case was brought by the Labor Department’s Office of Federal Contract Compliance Programs, which has authority over the bank as a federal contractor, since it serves as a depository of federal funds and issues U.S. Savings Bonds. According to the Labor Department, Bank of America “repeatedly challenged the authority” of the contract compliance office during the litigation.
Judge Chapman’s initial decision and order, which was issued in 2010, lays out the tortured procedural history of the case (which almost certainly cost more to litigate than the $2 million penalty).
In 1994, the Charlotte office of what was then known as NationsBank (which acquired Bank America Corp. in 1998 to create Bank of America) was selected for an audit by the contract compliance office, which makes sure government contractors don’t discriminate against employees and comply with affirmative action requirements. The government in 1995 found the Charlotte facility was discriminating against minority applicants, and moved to review bank operations in Tampa and Columbia, SC.
In response, the bank sued the contract compliance office in North Carolina federal court claiming the selection of Tampa and Columbia violated the Fourth Amendment prohibition on unreasonable searches, later adding Charlotte as well.
The bank won the first round, securing a preliminary injunction against the government. But the injunction was overturned U.S. Court of Appeals for the Fourth Circuit, which said the bank had to exhaust its administrative remedies first.
The case went back to the Department of Labor, and in 2000, Administrative Law Judge Richard Huddleston found in favor of the bank, ruling that the selection of the Charlotte facility was not based on an administrative plan containing neutral criteria, and was arbitrary and unconstitutional.
The Labor Department’s Administrative Review Board reversed Huddleston, and the case was assigned to Chapman. She found in 2004 that because the bank voluntarily consented to the initial review in Charlotte, the contract compliance office’s actions were removed from the requirements of the Fourth Amendment. The bank asked for an interlocutory appeal, but the Administrative Review Board said no, and the case went back to Chapman.
In 2010 she went on to find that the government “established by a preponderance of the evidence that there was a disparity between African American and Caucasian candidates in selection rates for entry level administrative positions in 1993 and 2002-2005, and that this disparity was caused by an unlawful bias against African Americans.”
Further, she found, the bank “cannot rebut this statistical evidence merely by arguing that its decisions were legitimate or nondiscriminatory… The Bank cannot meet its burden by arguing that certain actors, in this case the recruiters, did not intend to discriminate.”