BoA Sues Feds Over Discrimination Award

WASHINGTON (CN) — Bank of America is disputing a federal order mandating that it pay back pay and offer employment to African-American job applicants after a federal audit found evidence of discrimination.

In a federal lawsuit filed on Monday, Bank of America alleges its constitutional rights were violated during a Labor Department audit more than 20 years ago, which led to a $2.2 million penalty against the bank.

Federal investigators had no probable cause to conduct the search, the bank contends in the suit, and therefore it should not be sanctioned.

The "conclusion that the bank intentionally discriminated against African-American applicants in 1993 is based upon a fundamental misunderstanding of the nature of a pattern or practice of intentional discrimination case, of the proof required in such a case, and of the use and meaning of statistics in such a case," the lawsuit states.

In 1994, the Office of Federal Contract Compliance Programs (OFCCP), which is designed to ensure companies that do business with the federal government adhere to nondiscrimination laws, determined Bank of America discriminated against black job applicants during its hiring process after searching through the bank's hiring statistical data and finding it had hired more whites than minorities in its Charlotte headquarters.

The OFCCP initially searched the bank's affirmative action plan and its wage practices and found no significant evidence of discrimination regarding the advancement of minorities and females. The office then shifted its investigation to look into the bank's hiring practices, where it discovered evidence of discriminatory hiring practices among several job groups.

However, that latter search was in violation of the bank's Fourth Amendment rights because Bank of America never consented to a federal investigation of its hiring practices, only its glass ceiling practices, the complaint says.

In 2000 an administrative law judge dismissed the government's case, ruling that Bank of America had not consented to the search. After the OFCCP filed objections, the case was transferred to another administrative law judge, who in 2004 found the bank had consented to the search.

During the case, Bank of America also argued it wasn't technically a federal contractor, and thus not subject to OFCCP. However, the government argued (successfully) that because the bank was federally insured it was subject to the agency's audits.

After six years of litigating, the administrative law judge in 2010 found that Bank of America had engaged in a pattern of discrimination against black applicants in 1993 and again from 2002 to 2005.

Eventually Bank of America was ordered to pay nearly $1 million to the 1993 group of unsuccessful applicants and $1.2 million to the 2002-2005 group. The bank also was ordered to extend job offers to ten others who sought employment during those periods.

The Labor Department's Administrative Review Board, which acts as an appeals court for administrative law judge rulings, upheld the constitutionality of the judge's ruling in April.

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