United States Department of Labor
Office of Administrative Law Judges Law Library

NOTICE: THIS INDEX WAS PREPARED BY THE CIVIL RIGHTS DIVISION, OFFICE OF THE SOLICITOR, U.S. DEPARTMENT OF LABOR, FOR INTERNAL USE. IT IS NOT AN OFFICIAL INTERPRETATION OF THE CASES, AND WAS LAST REVISED IN NOVEMBER, 1996.

Return to Table of Topics, 503 Index

The doctrine of laches generally does not apply to the enforcement of public rights by Government agencies. OFCCP v. E.E. Black, Ltd. 77-OFCCP-7R, ALJ Rec. Dec. and Order, September 13, 1978, slip op. at 9, aff'd, Assistant Secretary for Employment Standards Dec. and Order February 26, 1979, slip op. at 11, aff'd on other grounds, E.E. Black v. Marshall, 497 F. Supp. 1088 (D. Hi. 1980), E. E. Black v. Donovan, 26 FEP Cases 1183 (D. Hi. 1981).

Where OFCCP offered no excuse for the lapse of more than two years between the end of conciliation and the filing of an administrative complaint, the first element of the laches doctrine, inexcusable delay, was met. However, the second element of the laches doctrine, substantial prejudice to the defendant, was not met where the defendant was able to introduce key documents at the hearing and was able to put on testimony from crucial witnesses. OFCCP v. East Kentucky Power Cooperative, Inc., 85-OFC-7, ALJ Rec. Dec. and Order, March 17, 1988, slip op. at 11-13.

Laches applies to a federal agency suing on behalf of others, but does not apply to an agency suing to enforce a public right to assert a public interest. Whether laches may be applied to the OFCCP in a Section 503 enforcement case has never been raised in court and is unclear as 503 enforcement is a hybrid of individual and public interests. In this case, laches certainly does not bar enforcement since neither inexcusable delay nor substantial prejudice to the defendant has been shown. OFCCP v. PPG Industries, Inc., 86-OFC-9, ALJ Rec. Dec., May 17, 1988, slip op. at 11-12, aff'd on other grounds, Deputy Assistant Secretary for Employment Standards Final Dec. and Remand Order on Remedy, January 9, 1989; dismissed on APA review, PPG v. United States, C.A. No. 89-0757 JGP (D.D.C.); reversed and remanded, 52 F 3d. 362 (D.C. Cir. 1995); Consent Decree, September 24, 1996.

The seven year delay between the filing of complainant's claim with the OFCCP and the filing of an administrative complaint was not inordinate nor inexcusable delay. It is not irrational for OFCCP to defer action for three years until final agency review in OFCCP v. Western Electric [citation omitted] clarified whether OFCCP had jurisdiction over the defendant. Id. at 13-14, aff'd on other grounds, Deputy Assistant Secretary for Employment Standards Final Dec. and Remand Order on Remedy, January 9, 1989; dismissed on APA review, PPG v. United States, C.A. No. 89-0757 JGP (D.D.C.); reversed and remanded, 52 F 3d. 362 (D.C. Cir. 1995); Consent Decree, September 24, 1996.

The record does not support a finding that OFCCP acted with "inexcusable" delay or took an "inordinate" time to respond to PPG's conciliation initiatives. OFCCP's wish to discuss the settlement offers with the intervenor and OFCCP's insistence on full back pay and reinstatement are not per se unreasonable. In light of 41 CFR 60-741.26(g)(2), which requires the OFCCP to attempt to secure compliance through informal conciliation and persuasion before initiating suit, OFCCP's conciliation efforts were not unreasonable. Id. at slip op. at 13, aff'd on other grounds, Deputy Assistant Secretary for Employment Standards Final Dec. and Remand Order on Remedy, January 9, 1989; dismissed on APA review, PPG v. United States, C.A. No. 89-0757 JGP (D.D.C.); reversed and remanded, 52 F 3d. 362 (D.C. Cir. 1995); Consent Decree, September 24, 1996.

A defense based on laches is generally of no avail against the U.S. Government. The application of the doctrine of laches is discretionary and in the absence of a showing of prejudice as to the liability aspect of the case the ALJ recommends it not be applied. The defense can be reasserted in connection with damages. OFCCP v. Yellow Freight System, Inc., 79-OFCCP-7, ALJ Rec. Dec. on Remand, August 26, 1988, slip op. at 66, remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards, August 24, 1992; Consent Decree, February 2, 1993.

The general rule is that laches is not a defense to government actions brought to vindicate a public right. OFCCP v. Norfolk and Western Railway, Co., 84-OFC-4, ALJ Rec. Dec. and Order, June 28, 1989, slip op. at 17, stipulated dismissal, November 13, 1991.

The contractor was not prejudiced in its defense where there was no indication that any of the physicians testifying were unable to make an informed judgment on the central issues based on the available medical records. Id.

Contractor's claim that Assistant Secretary's seven-year delay in issuing a final decision and order violates 5 U.S.C. §555(b), which requires agencies to conclude matters before it "within a reasonable time," is not an appropriate ground for reconsidering the merits of the case. OFCCP v. Texas Industries, Inc., 80-OFCCP-28, Assistant Secretary for Employment Standards Order of Remand and Stay of Enforcement, September 27, 1990, slip op. at 3, n.2., ALJ Dec. and Order on Remand, March 11, 1991; remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, January 27, 1995, Consent Decree, June 21, 1996.

In case involving seven-year lapse between ALJ recommended decision and Assistant Secretary Final Order, contractor's request for tolling of back pay six months after the ALJ issued his decision is denied. Id. at 4; ALJ Dec. and Order on Remand, March 11, 1991; remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, January 27, 1995, Consent Decree, June 21, 1996.

The length of time a Section 503 case is pending does not relieve a discriminating employer of its obligation to assume the full cost of the back pay due. Id. at 5; ALJ Dec. and Order on Remand, March 11, 1991; remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, January 27, 1995, Consent Decree, June 21, 1996.

The cost of delay should not be borne by the employee because the wronged employee is at least as much injured by delay in collecting back pay as is the wrong-doing employer and because the employer knowingly created the risk by his our wrong-doing. Id. at 5; ALJ Dec. and Order on Remand, March 11, 1991; remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, January 27, 1995, Consent Decree, June 21, 1996.

Assistant Secretary's seven-year delay in issuing final decision does not constitute grounds for denying pre-judgement interest on back pay for the same reasons that delay does not constitute grounds for tolling back pay. Id. at 6-7; ALJ Dec. and Order on Remand, March 11, 1991; remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, January 27, 1995, Consent Decree, June 21, 1996.

Contractor's claim that OFCCP action should be dismissed because of the age of the case is a laches defense. OFCCP v. Yellow Freight Systems, Inc., 79-OFCCP-7, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, August 24, 1992, slip op. at 9; Consent Decree, February 2, 1993.

It is questionable whether laches can be applied against OFCCP because of its status as a Federal agency. Ibid.

Contractor's laches defense which was based on factors including death of one of the complainants, the unknown whereabouts of the others, and the unlikelihood that OFCCP or contractor would still have records regarding coverage is merely speculative and conclusory and does not demonstrate the existence of the two elements necessary to establish the defense: 1) plaintiff's inordinate and inexcusable delay and 2) prejudice the defendant occasioned by that delay. Ibid.

Generalized allegations of irreparable harm from the passage of time do not constitute a showing of prejudice sufficient to establish a laches defense. Id. at 9-10.

If records sought regarding coverage are now unavailable, they need not be produced; if they are available no prejudice has been suffered. Id. at 10.

As a general rule, actions by the government to protect the public interest are not subject to the defense of laches. OFCCP v. First Federal Savings Bank of Indiana, 91-OFC-23, ALJ Recommended Decision and Order, June 29, 1994, at 6; affirmed, Secretary of Labor, Final Decision and Order, October 26, 1995, at 5.