OFCCP Attempt to Create “Non-Asian” Race Category Unsuccessful

On August 5, a U.S. Department of Labor Administrative Law Judge (ALJ) ruled that the Office of Federal Contract Compliance Programs (OFCCP) cannot maintain a disparate impact claim against a federal contractor because “non-Asian” is “neither a race nor an ethnic group” recognized by Executive Order 11246.

Executive Order 11246 and its associated regulations prohibit selection procedures that have an adverse impact on any race or ethnic group. The OFCCP is charged with enforcing Executive Order 11246. In 2009, the OFCCP issued a notice of violation to a federal contractor for racial discrimination in its hiring of “non-Asian” applicants.

As the ALJ noted, there are five races or ethnic groups that are specifically listed in the regulations. “Non-Asian” is not among them. Instead, the “non-Asian” race was created by the OFCCP by combining White, African-American, and Hispanic employees who worked for this federal contractor. When these three groups were aggregated and compared to Asians, the OFCCP discovered an adverse impact in the hiring of the “non-Asians.”

The regulations are intended to put federal contractors on notice of what is required of them to comply with the executive order. Accordingly, the ALJ found that the OFCCP’s use of the category was improper.

The OFCCP is expected to appeal this decision. In the meantime, federal contractors should take note that the OFCCP is combining different racial and ethnic groups together to make determinations of adverse impact. Please contact Sandie Harrison at sharrison@msec.org or Melinda Sanders at msanders@msec.org for any questions about affirmative action.