OFCCP Week In Review: January 29, 2024

The DE OFCCP Week in Review (WIR) is a simple, fast and direct summary of relevant happenings in the OFCCP regulatory environment, authored by experts John C. Fox, Candee J. Chambers and Cynthia L. Hackerott. In today’s edition, they discuss:

• Federal Trial Court Dismissed Novel Complaint Alleging Certain Algorithm-Based Applicant Screening Tools Discriminated Based on Race, Age, & Disability
• US DOL ETA Explained Its Lengthy NPRM to “Modernize Registered Apprenticeship Regulations”
• U.S. EEOC Commissioner Charges Continued to Rise in FY 2023
• In Brief
• New Publications
• Looking Ahead: Upcoming Date Reminders

Friday, January 19, 2024: Federal Trial Court Dismissed Novel Complaint Alleging Certain Algorithm-Based Applicant Screening Tools Discriminated Based on Race, Age, & Disability

Complaint Sought Class Action Certification

Judge Allowed Lead Plaintiff Opportunity to Revise Complaint

A potential lead plaintiff in a case seeking class action certification failed to sufficiently allege facts in his complaint to support his claim that Workday, Inc., violated federal anti-discrimination laws by providing companies with algorithm-based applicant screening tools that discriminated against him and other similarly situated job applicants based on race, age, and disability, a federal trial court ruled. Judge Rita F. Lin of the United States District for the Northern District of California (San Francisco) concluded the plaintiff did not allege the necessary facts to state a plausible claim that Workday is liable as an “employment agency” under the anti-discrimination statutes at issue (Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Age Discrimination in Employment Act). Nevertheless, Judge Lin allowed the plaintiff an opportunity to amend his complaint and spent a significant amount of her written opinion providing the plaintiff with instructions on how to replead his case. The case is Mobley v. Workday, Inc. (No. 3:23-cv-00770).

Employment Agency Theory

After ruling that the plaintiff sufficiently exhausted his administrative remedies, the court turned to the deficiencies of his complaint. The plaintiff claimed that, as an African-American man over the age of forty with anxiety and depression, he applied to 80 to 100 jobs with companies that use Workday’s screening tools and received not a single job offer. His complaint was deficient, however, because he did not allege facts to state a plausible claim that Workday is liable as an “employment agency” under the anti-discrimination statutes at issue, Judge Lin wrote. Specifically, he did not allege facts sufficient to state a claim that Workday was “procuring” employees for these companies, as required for Workday to qualify as an “employment agency.”

Still, the plaintiff contended that he could amend his complaint to fix those deficiencies by pleading additional facts, which he outlined in his brief opposing Workday’s motion to dismiss his complaint.

Indirect Employer & Agent Theories

Moreover, at the motion hearing and in his opposition brief, the plaintiff also identified two other potential legal bases for Workday’s liability: as an “indirect employer” and as an “agent.”

Finding that the plaintiff could potentially amend his complaint to sufficiently plead these legal theories, Judge Lin not only permitted him to do so but also guided him as to how to go about it. As to the “indirect employer” theory, the plaintiff must allege facts to establish Workday’s control over, participation in, or interference with the job application process, she instructed. For the agency theory, the plaintiff would need to provide factual allegations about companies delegating control to Workday over the hiring process.

Intentional Discrimination & Disparate Impact

The judge also found that the complaint lacked sufficient allegations to support the plaintiff’s claims of discrimination under either the intentional discrimination or disparate impact theories. Among other things, Judge Lin stated that the plaintiff failed to allege the type of jobs for which he applied, what his qualifications were for those jobs, or whether he got better results applying to similar jobs that did not use Workday.

He also did not adequately identify a specific employment practice. His complaint was not clear as to what or whose specific use of the referenced screening tools is allegedly discriminatory, the judge pointed out.

Finally, Judge Lin noted that he failed to plead a plausible theory of causation. He did not plead allegations sufficient to show a significant disparity sufficient to infer causation, nor did he cite any data, scientific literature, or personal experiences to support the theory that Workday’s screening tools had a discriminatory impact on a specific protected group.

Thursday, January 25, 2024: US DOL ETA Explained Its Lengthy NPRM to “Modernize Registered Apprenticeship Regulations”

In a 90-minute webinar, agency officials explained the extensive, 181-page, U.S. Department of Labor’s (“DOL”) Employment and Training Administration (“ETA”) Notice of Proposed Rulemaking (“NPRM”) designed to modernize the regulations governing Registered Apprenticeships (“RAs”). (See our earlier stories on this proposal here and here.) The presenters went through forty presentation slides and stated that the ETA would post a recording of the webinar at a later date.

The speakers (see slide 7) explained that the proposed substantive changes would revise the regulations at 29 CFR §29 addressing labor standards of apprenticeship and the governance of the National Apprenticeship System (last updated in 2008). The ETA did not propose any substantive changes to the current text of 29 CFR §30, which governs equal employment opportunity in apprenticeships (last updated in 2016). The agency only proposed technical and conforming adjustments to the Part 30 regulations (see slide 37). Notably, they said some of the proposed changes to the Part 29 regulations incorporate much of what is already in the Part 30 regulations.

The presenters did not take any questions or comments, telling attendees to save those for their formal comments on the NPRM. Comments on the NPRM are due on March 18, 2024. You may submit them here or here.

After providing some background information (slides 4 – 14), the speakers walked through the proposal’s three subparts (slide 15). The following embedded links and printed page references go to the relevant parts of the NPRM’s preamble:

• Subpart A: RA standards (starts at NPRM printed page 3144) updates key areas related to standards of apprenticeship, program registration, determining occupational suitability for apprenticeship training (i.e., “apprenticeability”), apprenticeship agreements, deregistration of programs, and embedding DEIA strategies. (See slides 16-23);
• Subpart B: Career Technical Education (“CTE”) programs (starts at NPRM printed page 3190) proposes to establish a new, student-centric model to register apprenticeships aligned to Perkins CTE programs. (See slides 24-29); and
• Subpart C: State Apprenticeship Agencies (“SAAs”) and performance (starts at NPRM printed page 3211) addresses the administration and coordination of the National Apprenticeship System through the modification of certain requirements and processes related to data reporting requirements and SAA governance. (See slides 30-36)

Thursday, January 25, 2024: U.S. EEOC Commissioner Charges Continued to Rise in FY 2023

The upswing in U.S. Equal Employment Opportunity Commission (“EEOC”) Commissioner Charges continued in fiscal year (FY) 2023, with 35 total, compared to 29 total in FY 2022. The number of such charges in FY 2022 marked a substantial increase compared to only 3 Commissioner Charges in both FY 2021 and FY 2020.

As it did with its FY 2022 update (see our story here), the EEOC updated its webpage on Commissioner Charges and Directed Investigations on Thursday without any accompanying announcement. In addition to investigating discrimination charges filed by individuals, Congress authorized the EEOC to investigate possible discrimination under Title VII, the Americans with Disabilities Act, and the Genetic Information Nondiscrimination Act using Commissioner Charges. The rough equivalent to Commissioners’ Charges under the Age Discrimination in Employment Act and the Equal Pay Act are referred to as “Directed Investigations.”

The update included the following table which illustrates the number of charges initiated by each Commissioner in FYs 2020, 2021, 2022, and 2023. It shows that Commissioner Andera Lucas (R) filed the majority of charges in FY 2023 with fifteen charges, followed by Vice Chair Jocelyn Samuels (D) with eleven charges, and Commission Chair Charlotte Burrows (D) with eight. Kalpana Kotagal (D), the newest member of the Commission, who was sworn in on August 9, 2023, filed one charge. Commissioner Keith Sonderling (R) did not file any charges in FY 2023.

The following two graphs illustrate both total Commissioner Charges and total Directed Investigations from FY 2015 to FY 2023:

THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.