January 2012

The Office of Federal Contract Compliance Programs (OFCCP) has recently taken aim at two prominent Minnesota companies by filing separate administrative complaints within just days of one another, alleging systematic discriminatory hiring practices. One complaint was filed against Cargill Meat Solutions (Cargill) on November 29, 2011, the other against Minnesota boat maker Lund Boat Co. (Lund) and its parent company Brunswick Corp on December 1, 2011. The OFCCP’s complaints against Cargill and Lund seek significant financial remedies to those affected by the alleged discriminatory practices, including but not limited to lost wages, interest and benefits. In addition to monetary relief, the agency seeks other equitable remedies such as extending job offers to certain applicants. Undoubtedly, the OFCCP will also request other far reaching remedies against these companies by attempting to control to what extent and under what circumstances these companies should be allowed to engage in future government contracts.

In a nutshell, the OFCCP was created to assist in enforcing Executive Order 11246 which, among other things, was enacted to ensure that companies doing business with the federal government do not engage in hiring practices that discriminate on the basis of various protected classes, such as race and sex.

The current actions against Cargill and Lund appear to be an enactment by the OFCCP of its promise to increase its enforcement efforts through a highly publicized strategy known as ACE (Active Case Enforcement). ACE focuses more aggressively on the examination and dissection of employment data, thereby placing the employer through a more thorough review process. ACE was approved by the OFCCP’s new Director, and former plaintiff’s attorney, Patricia A Shiu, who appears to be using it to guide the agency toward a larger and more active role in questioning decisions in the workplace alongside other agencies such as the EEOC.

Although it is common knowledge that government contractors need to make efforts to ensure there is no unlawful discrimination in its hiring practices, not all companies engaged in government contracts are aware of the nuances involved in that compliance under Executive Order 11246 and the accompanying rules and regulations. Therefore, now is the perfect time to perform an audit to verify and ensure compliance. Further, any company that is unsure about whether it must comply with the OFCCP or needs assistance determining best practices for compliance with this Executive Order, is directed to contact our Minneapolis office.