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

Back pay is an appropriate remedy under the Act. OFCCP v. E.E. Black, Ltd., 77-OFCCP-7R, Assistant Secretary for Employment Standards, February 26, 1979, slip op. at 21, 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).

Back pay is an appropriate remedy under the Act. OFCCP v. Firestone Tire and Rubber Co., 80-OFCCP-4, ALJ Dec. and Order, February 6, 1980, slip op. at 1-2.

Judge ordered back pay to individual based on stipulations by parties. OFCCP v. Burlington Northern Railroad, 79-OFCCP-23, ALJ Order Approving Settlement, February 8, 1982, slip op. at 2.

All facts and issues which come to light from the investigation of a properly filed complaint can be used against a defendant in trial and with regard to scope of relief, even if beyond the scope of the original complaint. OFCCP v. Southern Pacific Transportation Co., 79-OFC-10A, ALJ Rec. Dec., November 9, 1982, pp. 15-16; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

Administrative relief may be as complete as the circumstances in a given case reasonably justify. Id. at 117; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

An award of back wages is permissible in appropriate cases. Id.; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

The amendment to the statute that allowed a recovery of attorney's fees implies that Congress intended a private right of action to exist. Id.; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

Reinstatement, promotion, hiring, and award of retroactive seniority are acceptable forms of relief in appropriate cases. Id. at 117-18; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

Collective bargaining agreements do not constitute a bar to back pay, reinstatement, promotion, hiring and award of retroactive seniority. Id. at 118; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

Contract termination may not be a practical remedy in certain situations, in which case specific performance of the terms of the affirmative action portion of the contract may be appropriate. Id. at 122; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

An action that primarily seeks injunctive relief and back pay is not a statutory action for a penalty, but rather an action upon a liability created by statute. OFCCP v. Ozark Air Lines, Inc., 80-OFCCP-24, ALJ Rec. Dec. and Order, December 7, 1982, slip op. at 3, aff'd, Deputy Under Secretary for Employment Standards Final Dec. and Order, June 13, 1986.

Back pay found to be appropriate remedy since it is acceptable in Title VII and Executive Order 11246 proceedings. Id. at 9-10.

Back pay is an appropriate remedy under the Act because the Act authorizes the Secretary to take such action as the facts and circumstances warrant, and the purpose of the Act is to eradicate discrimination and make victims whole. OFCCP v. Ozark Air Lines, Inc., 80-OFCCP-24, Deputy Under Secretary for Employment Standards Final Dec. and Order, June 13, 1986, slip op. at 12.

The Secretary has broad authority under the Act to take such action on complaints as the facts and circumstances warrant and may grant such relieve as is supported by the record regardless of the limitations of the pleadings in the case. OFCCP v. Missouri Pacific Railroad, 81-OFCCP-8, Deputy Under Secretary for Employment Standards, August 12, 1985, slip op. at 2.

Appropriate relief in a job discrimination case includes such items as an offer of employment,an award of back pay over time, pay shift differentials, bonuses, holiday and vacation pay and other fringe benefits such as insurance and pension benefits. In addition, recovery can be awarded for travel, meals, lodging and medical expenses that were incurred by reason of being denied the job in question. OFCCP v. Ford Motor Co., 80-OFCCP-12, ALJ Rec. Dec. and Order, October 4, 1985, slip op. at 18, ALJ Supplemental Rec. Dec., March 20, 1987; Consent Decree, July 20, 1987.

ALJ recommended an award of back pay plus interest, along with any employment benefits that would have accrued (including seniority) had continuous employment been maintained. OFCCP v. Exide Corp., 84-OFC-11, ALJ Rec. Dec., April 28, 1986, slip op. at 12, aff'd, Acting Assistant Secretary for Employment Standards Decision and Final Order, April 30, 1991, vacated on other grounds, Exide Corporation v. Martin, C.A. No. 91-242 (E.D. Ky. 1992).

Employer has the burden of establishing that employee did not act with due diligence in mitigating damages. Id. at 13, aff'd, Acting Assistant Secretary for Employment Standards Decision and Final Order, April 30, 1991, vacated on other grounds, Exide Corporation v. Martin, C.A. No. 91-242 (E.D. Ky. 1992).

Fact that interim employment earnings are difficult to compute

does not mean employee is not entitled to back pay. Id., aff'd, Acting Assistant Secretary for Employment Standards Decision and Final Order, April 30, 1991, vacated on other grounds, Exide Corporation v. Martin, C.A. No. 91-242 (E.D. Ky. 1992).

Whether back pay should be reduced by unemployment compensation is to be determined by the law of the state which made the unemployment compensation payments. Id., aff'd, Acting Assistant Secretary for Employment Standards Decision and Final Order, April 30, 1991, vacated on other grounds, Exide Corporation v. Martin, C.A. No. 91-242 (E.D. Ky. 1992).

OFCCP may not pursue a remedy on behalf of an individual where no complaint has been filed by the individual. OFCCP v. Commonwealth Aluminum, 82-OFC-6, ALJ Rec. Dec., June 26, 1986, p. 7, rev'd, Assistant Secretary for Employment Standards Final Decision and Order, February 10, 1994, at 9; remanded sub. nom., Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

An order to reemploy an individual is an inappropriate remedy when the individual voluntarily resigned the position. Id. at 12; aff'd in part, Assistant Secretary for Employment Standards Final Decision and Order, February 10, 1994, at 17; remanded sub. nom., Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

Section 503 contains a liberal grant of remedial authority to the Department of Labor. OFCCP v. American Commercial Barge Line, 84-OFC-13, ALJ Rec. Dec., September 30, 1986, slip op. at 38-39, rev'd on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Final Decision and Order, April 15, 1992.

A specific form of relief may be awarded under the Act if, with respect to the facts of the case, no other form of relief can better serve the purpose of the Act, and the relief is compatible with both the Act's regulations and the terms of the contract. Id. at 39, rev'd on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Final Decision and Order, April 15, 1992.

When an act of handicap discrimination is not per se illegal, but must be decided on a case by case basis, the remedies of debarment, contract termination and denial of payment are inappropriate remedies. Id., rev'd on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Final Decision and Order, April 15, 1992.

The award of back pay is an appropriate remedy under the Act. Id. at 39, 40, rev'd on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Final Decision and Order, April 15, 1992.

In an administrative hearing it is unnecessary to postpone the award of relief until the judiciary can consider the issue. Id. at 40, rev'd on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Final Decision and Order, April 15, 1992.

Reinstatement is not a necessary remedy when complainant has found other employment which pays a greater salary than defendant employer would pay. Id., rev'd on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Final Decision and Order, April 15, 1992.

Contractor which subjects itself to the terms of the Rehabilitation Act should be aware that it is subject to an award of back wages. Id., rev'd on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Final Decision and Order, April 15, 1992.

ALJ computed back pay for a ship's deckhand by calculating the average number of days a deckhand worked in a given year during the back pay period and multiplying this by the average daily earnings paid plus the average cost of each meal provided to deckhands over the course of the year. Complainant's actual earnings in that year were subtracted from this sum. Complainant was also compensated for the amount of pension he would have earned. Id. at 40-41, rev'd on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Final Decision and Order, April 15, 1992.

Complainant awarded post judgment interest on back pay award in accordance with 28 U.S.C. §1961. Id. at 41, rev'd on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Final Decision and Order, April 15, 1992.

Section 503 contain liberal grant of remedial authority to the Department of Labor and a particular form of relief can be awarded under the Act if no other form of relief can better serve the purposes of the Act and the relief is compatible with both the Act's regulations and the terms of the contract. OFCCP v. Yellow Freight Systems, Inc., 82-OFC-2, ALJ Rec. Dec., September 30, 1986, slip op. at 28-29; remanded on other grounds, Acting Assistant Secretary Decision and Order of Remand, October 6, 1993; Consent Decree, January 31, 1994.

The remedies of debarment, contract termination and denial of contract payment are viable methods of relief only when defendant has not voluntarily chosen to obey the mandate of the Act. None of these three remedies will advance the employment of handicapped persons. Id. at 29; remanded on other grounds, Acting Assistant Secretary Decision and Order of Remand, October 6, 1993; Consent Decree, January 31, 1994.

Back pay is a proper remedy for a complainant who was denied employment. Id. at 29-30; remanded on other grounds, Acting Assistant Secretary Decision and Order of Remand, October 6, 1993; Consent Decree, January 31, 1994.

In an administrative hearing it is not necessary to postpone the award of relief until the judiciary can consider the issue. Id. at 30; remanded on other grounds, Acting Assistant Secretary Decision and Order of Remand, October 6, 1993; Consent Decree, January 31, 1994.

Contractor which subjects itself to the terms of the Rehabilitation Act should be aware that is subject to an award of back wages. Id.; remanded on other grounds, Acting Assistant Secretary Decision and Order of Remand, October 6, 1993; Consent Decree, January 31, 1994.

Back pay calculations should include performance and attendance bonuses, profit sharing, holiday and vacation pay, pension benefits, and fringe benefits such as health plans, insurance programs, and legal services plans. OFCCP v. Ford Motor Co., 80-OFCCP-12, ALJ Supplemental Rec. Dec. and Order, March 20, 1987, slip op. at 8; Consent Decree, July 20, 1987.

The proper calculation of back pay compared the complainant's quarterly earnings with those of the three workers closest in seniority to him. Plaintiff had higher seniority that his three comparators; thus it is proper to assume he would have made the highest earnings. Id.

Appropriate relief should place the rejected applicant in the position he would have been in had he not been the victim of illegal discrimination. Interest on back pay should be assessed and was implicit in the make whole rationale for relief stated ion the original ALJ's Recommended Decision and Order, even though the Decision did not specifically order that interest be paid. Id. at 9.

Ford Motor Company was ordered to pay post-judgment interest (from the date of the original ALJ's Decision finding liability on the complainant's back pay award pursuant to 28 U.S.C. §1961. Id. at 10.

Denying back pay to victims of illegal discrimination would frustrate the purpose of the Act, which requires making discriminatees whole. OFCCP v. Central Power & Light Co., 82-OFC-5, ALJ Rec. Dec., March 30, 1987, slip op. at 21; Consent Decree, December 10, 1991.

Rejected applicants were awarded back pay less actual earnings on a year-by-year basis, with pre-judgment interest applied at the rate specified in 26 U.S.C. §6621, and without subtraction of unemployment compensation. Id. at 23.

Once plaintiff establishes a prima facie case of discrimination and the monetary loss resulting from the discrimination, it is defendant's burden to produce further evidence concerning damages in order to establish the amount of interim earnings or any lack of diligence in mitigating lost wages. Defendant's assertion, that because some discriminatees found work within six months those who did not find employment were not diligent, did not rebut plaintiff's evidence that all discriminatees exercised reasonable diligence in seeking work. Id. at 23-24.

Sanction of debarment is an appropriate remedy for failure to submit a written affirmative action program. OFCCP v. Bruce Church, Inc., 87-OFC-7, Secretary Final Decision and Order, June 30, 1987, slip op. at 5-6, aff'g, ALJ Rec. Dec., May 18, 1987.

Although not expressly provided for, back pay is proper when Section 503 has been violated because the purpose of Section 503 is to eradicate discrimination and make victims whole. OFCCP v. Texas Utilities Generating Company, 85-OFC-13, ALJ Rec. Dec., March 2, 1988, slip op. at 10; remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, August 25, 1994; Consent Decree, April 15, 1996.

Back pay, subject to mitigation, is appropriate for the period of time during which the complainant diligently sought reemployment. Further remedies of reinstatement and debarment are found to be "unreasonable" based on the facts of the case. OFCCP v. East Kentucky Power Cooperative, Inc., 85-OFC-7, ALJ Rec. Dec. and Order, March 17, 1988, slip op. at 20, settled and dismissed, ALJ Order Approving Stipulated Dismissal, July 7, 1988.

Back pay and reinstatement are proper remedies under the Act. OFCCP v. Texas Industries Inc., 80-OFCCP-28, Assistant Secretary for Employment Standards Dec. and Order, June 7, 1988, slip op. at 31, rev'g, ALJ Rec. Dec., June 10, 1981, remanded on other grounds, Assistant Secretary for Employment Standards Order of Remand and Stay of Enforcement, September 27, 1990, ALJ Decision 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.

Although complainants have no private right of action under Section 503, it does not follow, as the contractor contends, that there is no basis for OFCCP to seek reinstatement or back pay. The regulations may not expressly provide for these remedies, but they do not foreclose them. If the defendant has violated the Act in breach of its contract, the OFCCP is warranted in seeking reinstatement and backpay. OFCCP v. Yellow Freight System, Inc., 79-OFCCP-7, ALJ Rec. Dec. on Remand, August 26, 1988, slip op. at 9-10, remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards, August 24, 1992; Consent Decree, February 2, 1993.

Because the discrimination against employee has no private avenue of recourse under Section 503, if it were not within the authority of DOL to require reinstatement and back pay, a remedial vacuum would exist, i.e., a wrong without a remedy. Id. at 9, remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards, August 24, 1992; Consent Decree, February 2, 1993.

Although the defendant's exclusive reliance on back x-ray results to reject an applicant was inappropriate, the ALJ refused to order back pay or reinstatement when facts showed a particular applicant's multiple level degenerative disc disease was severe and justified his disqualification. Id. at 64-65, remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards, August 24, 1992; Consent Decree, February 2, 1993.

The defendant, who violated Section 503, was ordered to pay the complainant back wages less interim earnings plus interest at the IRS rates, front pay plus interest, the value of lost benefits, and to reinstate the complainant with seniority and all benefits, and privileges he would have enjoyed had he not initially been discriminated against. OFCCP v. WMATA, 84-OFC-8, ALJ Rec. Dec., June 10, 1988, slip op. at 8, aff'd, Acting Assistant Secretary for Employment Standards Final Dec. and Remand Order, March 30, 1989, modified, Assistant Secretary for Employment Standards Dec. on Back Pay and Remand Order, August 23, 1989, vacated on other grounds, WMATA v. DeArment, 55 EPD ¶40,507 (D.D.C. 1991).

The defendant has the burden of proving what the complainant could have earned with reasonable diligence. OFCCP v. WMATA, 84-OFC-8, Acting Assistant Secretary for Employment Standards Final Dec. and Remand Order, March 30, 1989, slip op. at 27, vacated on other grounds, WMATA v. DeArment, 55 EPD ¶40,507 (D.D.C. 1991).

The award of prejudgment interest on back pay due was upheld despite the defendant's exception that it is a governmental entity which possesses sovereign immunity. Id. at 28-29, vacated on other grounds, WMATA v. DeArment, 55 EPD ¶40,507 (D.D.C. 1991).

The fact that the intervenor did not file a formal application does not bar relief, because the intervenor thought submitting an application would be futile because of his rejection from the same position two months earlier. OFCCP v. PPG Industries, Inc., 86-OFC-9, Deputy Assistant Secretary for Employment Standards Final Dec. and Remand Order on Remedy, January 9, 1989, slip op. at 31; 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.

There is no authority for the proposition that it would be fair and equitable to require OFCCP to share in the cost of back pay because of the time this case has been pending. Id. at 35; 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.

Government contractor is ordered to provide OFCCP with access to its premises for the purpose of conducting compliance reviews. If UNC fails to comply then UNC government contracts will be canceled and UNC will be debarred from future government contracts. OFCCP v. University of North Carolina, 84-OFC-20, Acting Secretary of Labor Dec. and Final Administrative Order, January 23, 1989, aff'd, Secretary of Labor Order Denying Stay, April 25, 1989, aff'd, Board of Governors of the University of North Carolina v. United States Department of Labor, 917 F. 2d 812 (4th Cir. 1990), cert. denied, 500 U.S. 916(1991).

The authority to order the defendant to cease and desist from further violation and to award back pay with interest is recognized under Section 503 of the Rehabilitation Act. OFCCP v. Norfolk and Western Railway Co., 80-OFCCP-14, ALJ Rec. Dec. and Order on Remand, June 20, 1989, slip op. at 7, rev'd on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Decision and Order, November 19, 1991.

Sanctions (such as reinstatement, front pay, or debarment) are either not authorized by the Rehabilitation Act or by VEVRA, or they are not warranted under the circumstances. Id. at 7.

Basic principles of calculating back pay liability after a finding of discrimination, as enunciated in Ford Motor Co. v. EEOC, 458 U.S. 219 (1982), are applicable in Section 503 cases. OFCCP v. WMATA, 84-OFC-8, Assistant Secretary for Employment Standards Dec. on Back Pay and Remand Order, August 23, 1989, slip op. at 3, aff'd, Assistant Secretary for Employment Standards Order Denying Motion to Amend August 23 Order, November 17, 1989, vacated on other grounds, WMATA v. DeArment, 55 EPD ¶40,507 (D.D.C. 1991).

The contractor has the burden of proving that the complainant did not exercise reasonable diligence in finding other suitable employment. The burden may be satisfied by establishing that 1) there were substantially equivalent positions available, and 2) the complainant failed to use reasonable care and diligence in seeking such positions. Id. at 4, vacated on other grounds, WMATA v. DeArment, 55 EPD ¶40,507 (D.D.C. 1991).

A substantially equivalent position "must afford the claimant virtually identical promotional opportunities, compensation, job responsibilities, working conditions, and status." Id. at 4, citing, Rasimas v. Michigan Dep't of Mental Health, 714 F.2d 614, 624, (6th Cir. 1983), vacated on other grounds, WMATA v. DeArment, 55 EPD ¶40,507 (D.D.C. 1991).

Where the most important characteristics of the position in question was its permanency and full-time status, then with regard to reasonable diligence in finding a substantially equivalent position, such a position must also afford those opportunities and conditions. Id. at 4-5, vacated on other grounds, WMATA v. DeArment, 55 EPD ¶40,507 (D.D.C. 1991).

Back pay liability need not be tolled at the point the complainant quit a nonunion job to change to a union position. Id. at 8-9, vacated on other grounds, WMATA v. DeArment, 55 EPD ¶40,507 (D.D.C. 1991).

Tolling back pay during periods of illness or after accidents which are not work-related is appropriate. Id. at 12, vacated on other grounds, WMATA v. DeArment, 55 EPD ¶40,507 (D.D.C. 1991).

Prejudgment interest should not be compounded. Calculating back pay and interest quarterly, which is the methodology followed under Title VII and the National Labor Relations Act, is a reasonable means of achieving the objective of making a claimant whole by not penalizing him for unusually high earnings in a particular quarter. Id. at 14, aff'd, Assistant Secretary for Employment Standards Order Denying Motion to Amend August 23 Order, November 17, 1989, slip op. at 9, vacated on other grounds, WMATA v. DeArment, 55 EPD ¶40,507 (D.D.C. 1991).

Tolling back pay at the expiration of workers' compensation payments is not in accord with the principle that an employer who has been found to have discriminated is liable for back pay during periods when the claimant is unable to work due to injuries which would not have taken place absent the discrimination, such as following an on the job injury. Id. at 12, 15, aff'd, Assistant Secretary for Employment Standards Order Denying Motion to Amend August 23 Order, November 17, 1989, vacated on other grounds, WMATA v. DeArment, 55 EPD ¶40,507 (D.D.C. 1991).

Where it is impossible for a contractor to pay into the retirement fund the employer's portion of the pension contribution that the discriminatee would have received, then the employer should purchase an annuity of equivalent value for the complainant. This approach would shelter the portion of back pay from income taxes, as it would have been if paid into the retirement fund. Id. at 15, aff'd, Assistant Secretary for Employment Standards Order Denying Motion to Amend August 23 Order, November 17, 1989, vacated on other grounds, WMATA v. DeArment, 55 EPD ¶40,507 (D.D.C. 1991).

An employee who was discriminated against but left her final work assignment for reasons of personal preference and choice, and not because of constructive discharge, is not entitle to compensation for any period after she left employment. OFCCP v. Mountain Bell Telephone Co., 87-OFC-25, ALJ Rec. Dec. and Order, November 3, 1989, slip op. at 14, remanded on other grounds, Assistant Secretary for Employment Standards Order Denying Motion to Strike, Decision and Order of Remand, August 25, 1994; Consent Decree, February 9, 1995.

As a matter of policy the applicability of the Debt Collection Act of 1982, 29 CFR Part 20 (1988) should be used as a guide to ensure consistency between actions against public and private contractors. OFCCP v. WMATA, 84-OFC-8, Assistant Secretary for Employment Standards Order Denying Motion to Amend August 23 Order, November 17, 1989, slip op. at 2 n.1, vacated on other grounds, WMATA v. DeArment, 55 EPD ¶40,507 (D.D.C. 1991).

Only simple, not compound, interest may be assessed on back pay for a Section 503 victim of discrimination. Id. at 3-4, vacated on other grounds, WMATA v. DeArment, 55 EPD ¶40,507 (D.D.C. 1991).

An order to pay back pay under Section 503 is a claim by the government against a contractor for violation of the terms of the contract. The provisions of the Debt Collection Act and the implementing regulations are applicable as they would be to any other government claim, absent an explicit exemption or clear indication in the legislative or regulatory history excluding back pay claims. Id. at 6, vacated on other grounds, WMATA v. DeArment, 55 EPD ¶40,507 (D.D.C. 1991).

There is an explicit reference to back pay in the regulations implementing the Debt Collection Act. The regulations provide that "[t]he rate of interest prescribed in section 6621 of the Internal Revenue Code shall be sought for back wages recovered in litigation by the Department." 29 CFR 20.58(a). The conclusion that the regulation should not be read to mean that back wages are subject to any of the other regulations implementing the Debt Collection Act is rejected. Id. at 6-7, vacated on other grounds, WMATA v. DeArment, 55 EPD ¶40,507 (D.D.C. 1991).

Back pay with interest is a debt owed to the United States and sovereign immunity does not bar assessment of interest in this case. Id. at 7, vacated on other grounds, WMATA v. DeArment, 55 EPD ¶40,507 (D.D.C. 1991).

The Rehabilitation Act and the regulations delegate broad discretion to the ALJ in formulating a remedy. OFCCP v. Louisville Gas & Electric Co., 88-OFC-12, ALJ Rec. Dec. and Order, January 29, 1990, slip op. at 13, aff'd, Special Assistant to the Assistant Secretary for Employment Standards Final Dec. and Administrative Order, January 14, 1992; Consent Decree, May 28, 1992.

Payment of back wages subject to mitigation is a relief authorized by law. Ibid., aff'd, Special Assistant to the Assistant Secretary for Employment Standards Final Dec. and Administrative Order, January 14, 1992; Consent Decree, May 28, 1992.

Contractor met its burden of proving that there was an ample supply of comparable jobs available during the relevant time period and that complainant failed to use reasonable care and diligence in seeking substantially equivalent employment; contractor introduced evidence that hundreds of jobs for which employee was qualified were advertised in the local paper and filled through the state unemployment insurance office and demonstrated that complainant failed to apply for a single job listed in the newspaper, did not place a single application for employment during the six months preceding the contractor's decision to hire him, and applied for only five positions during the eighteen month period he was unemployed. Id. at 15, rev'd in part, Special Assistant to the Assistant Secretary for Employment Standards Final Dec. and Administrative Order, January 14, 1992, slip op. at 7-8; Consent Decree, May 28, 1993.

A worker who has been the victim of an unfair labor practice is not entitled to simply await reimbursement from his or her employer for wages lost; Section 503 was not intended to encourage idleness. Ibid., rev'd in part, Special Assistant to the Assistant Secretary for Employment Standards Final Dec. and Administrative Order, January 14, 1992, slip op. at 7-8; Consent Decree, May 28, 1993.

Because the complainant failed to mitigate damages, he is not entitled to backpay. Ibid., rev'd, Special Assistant to the Assistant Secretary for Employment Standards Final Decision and Administrative Order, January 14, 1992, slip op. at 8; Consent Decree, May 28, 1993.

Despite complainant's failure to mitigate, ALJ orders reinstatement with retroactive seniority. Id. at 16, aff'd, Special Assistant to the Assistant Secretary for Employment Standards Final Dec. and Administrative Order, January 14, 1992; Consent Decree, May 28, 1993.

Where a hearing record lacks sufficient evidence regarding the amount of back pay due and it is anticipated that the parties may not agree on this issue, a remand for presentation of evidence to an ALJ is appropriate. 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 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.

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. Ibid.; 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.

Tolling the back pay period does not accomplish the purpose of back pay which is to make "whole" the employee or applicant who has suffered economic loss as a result of an employee's illegal discrimination. Id. at 4-5; 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 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.

The principles set forth is OFCCP v. WMATA, 84-OFC-8, Deputy Assistant Dec. on Back Pay and Remand Order, August 23, 1989, and OFCCP v. PPG Industries, 86-OFC-9, Assistant Secretary Dec. and Remand Order on Remedy, January 8, 1989, govern computation of back pay and benefits. Id. at 6; 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.

Prejudgment interest is to be calculated according to 26 U.S.C. §6621; post-judgement interest should be calculated according to 28 U.S.C. §1961. Id. at 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.

Because the current record is devoid of any evidence supporting an award of front pay, the issue of the applicability of front pay and the amount thereof, if any, is remanded to the ALJ. Id. at 7-8; 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.

Because the record lacks sufficient evidence for a determination of the scope of benefits and calculation of benefits, issues are remanded for determination by ALJ; benefits to be considered shall include, but not be limited to, bonuses, holiday pay, vacation pay, insurance and pension benefits and retroactive seniority. Id. at 8; 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.

Where Assistant Secretary found that complainant was qualified as a cement truck driver and ordered contractor to reinstate her in the next available job for which she is qualified, contractor can reject her as physically unqualified only if a medical examination reveals that there has been some deterioration of her back or other change in her physical condition which now makes her physically unable to perform the duties of the job. Rejection may also be based on any additional physical qualification, if any, which the Department of Transportation has imposed since her previous rejection. Id. at 9; 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.

Complainant made good faith efforts to maximize earnings as truck driver after contractor rejected her for employment and thereby acted reasonably and diligently to mitigate damages. OFCCP v. Texas Industries, Inc., 80-OFCCP-28, ALJ Dec. and Order on Remand, March 11, 1991, slip op. at 2, remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, January 27, 1995, Consent Decree, June 21, 1996.

ALJ includes in back pay award certain benefit costs (including average contributions to pension plan and costs for safety and service benefits) but excludes costs which tend to benefit employees generally or which tend to provide a degree of general employment security rather than assured in-pocket income (such as costs for group disability insurance, workers' compensation, unemployment insurance and social security payments.) Id. at 3; remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, January 27, 1995, Consent Decree, June 21, 1996.

Because complainant has not been reinstated, ALJ orders contractor to pay back wages through January 1, 1991, and recommends severance of other issues, i.e., issues regarding continued back pay, front pay, and complainant's qualifications for job at the time of reinstatement. Id. at 4; remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, January 27, 1995, Consent Decree, June 21, 1996.

Complainant's uncontradicted testimony that her interim earnings exceeded her W-2 earnings is credited. Id. at App. A, p.2; remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, January 27, 1995, Consent Decree, June 21, 1996.

Because complainant quit an interim job in order to find less taxing work and a position closer to home, complainant failed to mitigate damages during the three month period between the date she quit and the date she obtained other employment. Id. at Appendix A, slip op. at 3-4; remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, January 27, 1995, Consent Decree, June 21, 1996.

Although complainant quit an interim job in order to find less taxing work and a position closer to home, she continued to seek comparable employment. Thus, back pay should not be terminated on the date she quit. Id. at Appendix A, slip op. at 3; remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, January 27, 1995, Consent Decree, June 21, 1996.

Contractor is liable to complainant for short-term disability insurance payments she would have received had she been employed by contractor during the period she underwent medical treatment and surgery not related to her employment. Id. at Appendix A, slip op. at 4-5, 14, and 22; remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, January 27, 1995, Consent Decree, June 21, 1996.

The amount that complainant claimed as depreciation expenses on her Federal tax return is not chargeable as income and, thus, should not reduce back pay award. Id. at Appendix A, slip op. at 6; remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, January 27, 1995, Consent Decree, June 21, 1996.

Complainant is not entitled to back pay during period she received workers' compensation due to an on-the-job injury at another company. Id. at Appendix A, pp.7 and 12; remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, January 27, 1995, Consent Decree, June 21, 1996.

Workers' compensation is a regulated, insured, no-fault recovery system intended both to assure the worker continued compensation and the employer's reliance upon exclusive liability. Id. at Appendix A, slip op. at 7; remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, January 27, 1995, Consent Decree, June 21, 1996.

Complainant's decision to operate her own business as a truck owner-operator does not indicate a failure to mitigate damages even though business was not profitable. Id. at Appendix A, slip op. at 9; remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, January 27, 1995, Consent Decree, June 21, 1996.

In period following complainant's decision to discontinue her own business operations, back pay should be reduced to reflect the earnings she could have received had she decided to stay with her previous employer and not start her own business. Id. at Appendix A, slip op. at 10-14; remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, January 27, 1995, Consent Decree, June 21, 1996.

In balancing the equities between contractor and complainant, it would not be fair to make contractor bear the entire risk of complainant's decision to start up an owner-operated trucking business for a second time during the period of liability. Thus, ALJ reduced back pay not by the amount complainant actually earned from her business, but the amount she would have earned at the job she held immediately prior to the commencement of her owner-operated trucking operation. Id. at Appendix A, p.16; remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, January 27, 1995, Consent Decree, June 21, 1996.

Where contractor violates Section 503, reinstatement of the victim is appropriate. OFCCP v. Exide Corporation, 84-OFC-11, Acting Assistant Secretary for Employment Standards Dec. and Final Order, April 30, 1991, slip op. at 16, vacated on other grounds, Exide Corporation v. Martin, Civil Action No. 91-242, (E.D. Ky. 1992).

Because complainant would have become a charging operator had he not been illegally terminated, he should be reinstated to that position. Ibid., vacated on other grounds, Exide Corporation v. Martin, Civil Action No. 91-242, (E.D. Ky. 1992).

Back pay is an appropriate remedy for violation of the Rehabilitation Act. Id. at 17, vacated on other grounds, Exide Corporation v. Martin, Civil Action No. 91-242, (E.D. Ky. 1992).

An individual discriminated against in violation of Section 503 has the duty to mitigate damages. Id. at 19, vacated on other grounds, Exide Corporation v. Martin, Civil Action No. 91-242, (E.D. Ky. 1992).

The burden is on the contractor to show that the claimant has failed to exercise reasonable diligence in mitigation. To meet this burden contractor must show that 1) there were substantially equivalent positions which were available; and 2) the claimant failed to use reasonable care and diligence in seeking such positions. Ibid., vacated on other grounds, Exide Corporation v. Martin, Civil Action No. 91-242, (E.D. Ky. 1992).

Contractor failed to establish that complainant failed to mitigate damages where the only evidence offered on mitigation was complainant's testimony that he had registered with three job placement services and where contractor failed to show that those agencies referred complainant to manufacturing jobs or to higher paying jobs than complainant held during the back pay period and failed to show that manufacturing or higher paying jobs were available during the back pay period. Id. at 19, n.12, vacated on other grounds, Exide Corporation v. Martin, Civil Action No. 91-242, (E.D. Ky. 1992).

Difficulty in calculating back pay does not constitute an exceptional circumstance which would justify denial; ambiguities should be resolved against the discriminating employer. Id. at 20 and n.13, vacated on other grounds, Exide Corporation v. Martin, Civil Action No. 91-242, (E.D. Ky. 1992).

The wages of the job in which complainant would have been placed but for the discrimination should govern his lost wages. However, where complainant would have eventually moved to a higher-paying job, the wages of that job should govern lost wages beginning on the date complainant would have been placed in that position. Id. at 21-23, vacated on other grounds, Exide Corporation v. Martin, Civil Action No. 91-242, (E.D. Ky. 1992).

Contractor is liable for back pay during period in which complainant was unemployed because his truck broke down and he could not get to work, where evidence shows that complainant made efforts to retain his employment and that, but for his financial situation resulting from contractor's discriminatory treatment, complainant could have maintained employment at either place. Id. at 24, vacated on other grounds, Exide Corporation v. Martin, Civil Action No. 91-242, (E.D. Ky. 1992).

A contractor found to have discriminated is liable for back pay during periods which claimant is unable to work due to injuries which would not have taken place absent the discrimination, such as on-the-job injuries. Id. at 25, vacated on other grounds, Exide Corporation v. Martin, Civil Action No. 91-242, (E.D. Ky. 1992).

Back pay award should not be reduced by the amount of unemployment compensation complainant received; failure to deduct such compensation does not lead to unjust enrichment. Id. at 26-27, vacated on other grounds, Exide Corporation v. Martin, Civil Action No. 91-242, (E.D. Ky. 1992).

Reinstatement, back pay and lost medical and insurance benefits may be awarded to victims of employment discrimination pursuant to Section 503. OFCCP v. Norfolk and Western Railway Co., 90-OFC-1, ALJ Rec. Dec. and Order, June 26, 1991, slip op. at 37-38; Consent Decree, November 22, 1991.

In order to satisfy duty to use reasonable diligence in finding other suitable employment, the complainant is not required to go into another line of work, accept a demotion, or take a demeaning position. Id. at 38, quoting, Ford Motor Co., v. EEOC, 458 U.S. 219 (1981).

The burden is on the contractor to show that the claimant has failed to exercise reasonable diligence in mitigation. To meet this burden contractor must show that 1) there were substantially equivalent positions which were available; and 2) the claimant failed to use reasonable care and diligence in seeking such positions. Ibid.

A substantially equivalent position does not include inferior employment; it must afford complainant virtually identical promotional opportunities, compensation, job responsibilities, working conditions and status. Ibid., quoting, Rasimas, 714 F.2d 614 (6th Cir. 1983).

The duty to mitigate does not require complainant to accept a position that is not consonant with his particular skills, background, and expertise, or which involves conditions that are substantially more onerous than his previous position. Ibid., quoting, Peterson, 622 F. Supp. 232 (D.N.C. 1985).

Complainant was not required to accept carman or coal minor jobs in order to mitigate; the positions were not substantially equivalent to the brakeman/conductor job because the positions differed significantly from the brakeman/conductor job, complainant would have lost his seniority and would have initially suffered a substantial cut in compensation. Id. at 38-39.

ALJ orders contractor to review vision standards and revise them to ensure that they comport with Section 503, where standards automatically excluded applicants with monocular vision. Id. at 39.

Principles applicable to a complainant's obligation to mitigate damages under Section 503 were enunciated in OFCCP v. WMATA, 84-OFC-8, Acting Assistant Secretary Dec. on Back Pay and Remand Order, August 23, 1989. OFCCP v. Louisville Gas & Electric Co., 88-OFC-12, Special Assistant to the Assistant Secretary for Employment Standards Final Dec. and Administrative Order, January 14, 1992, slip op. at 3-4; Consent Decree, May 28, 1992.

A corollary to the mitigation rule is that a complainant who is unable, after a reasonable period of time, to find comparable employment must "lower his sights" and consider "other available, suitable employment at a somewhat lower rate of pay." Id. at 4, quoting, NLRB v. Madison Courier, Inc., 472 F.2d 1307, 1320 (D.C. Cir. 1972).

Complainant's failure to accept lower paying jobs in an effort to mitigate damages is not excused on grounds that complainant's former wife would have been entitled to a substantial portion of the income; court-ordered support payment are like any other debt an employee may be obligated to pay and cannot excuse failure to mitigate. Id. at 6.

In determining whether complainant should have accepted lower paying employment in an effort to mitigate damages, all doubts should be resolved in favor of the employee. Id. at 7.

Where complainant is an unskilled worker seeking essentially entry level jobs, 90 days is a reasonable time within which to determine whether jobs comparable in pay are available. Thereafter, the employee should "lower his sights" and accept a lower paying job. Ibid.

Assistant Secretary refuses to adopt holding in Sellers v. Delgado College, 902 F.2d 1189 (5th Cir. 1990), that if employer proves that the employee did not make reasonable efforts to find work, the employer does not also have to prove that comparable jobs were available; employer must prove both elements to carry its burden on this affirmative defense. Ibid.

Where contractor proved that complainant could have obtained a janitor or laborer job paying at least $3.35 per hour, back pay should be reduced to reflect that amount. Id. at 8.

The purpose of interest is to assure complete compensation, i.e., to compensate the wronged employee for the lack of the use of the money he would have earned. Ibid.

The Rehabilitation Act and the regulations delegate broad discretion to the ALJ in formulating a remedy. OFCCP v. Cissell Manufacturing Co., 87-OFC-26, ALJ Rec. Dec. and Order, May 22, 1992, slip op. at 15, affirmed, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Co., v. U.S. Department of Labor, No. 94-0184 (W.D. Ky. May 24, 1994), appeal pending.

Once plaintiff establishes a prima facie case of discrimination and damages that arose therefrom, the burden of production shifts to the employer to show that the complainant had interim earnings which reduce the back pay owed or that the claimant failed to mitigate damages. Id. at 16; affirmed, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Co., v. U.S. Department of Labor, No. 94-0184 (W.D. Ky. May 24, 1994), appeal pending.

Reinstatement is an appropriate remedy for violations of Section 503. Ibid.; affirmed, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Co., v. U.S. Department of Labor, No. 94-0184 (W.D. Ky. May 24, 1994), appeal pending.

Complainant should be reinstated because he applied several times for new positions with contractor only to be denied positions because of his impairment. Thus, reinstatement would assure that contractor redresses the wrong committed against complainant personally. Ibid.; affirmed on other grounds, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Co., v. U.S. Department of Labor, No. 94-0184 (W.D. Ky. May 24, 1994), appeal pending.

Cease and desist order should be issued with respect to contractor's "no light duty policy" in order to prohibit any future occurrence of a violation of the Act. Ibid.; affirmed, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994, at 19; final decision vacated sub. nom., Cissell Manufacturing Co., v. U.S. Department of Labor, No. 94-0184 (W.D. Ky. May 24, 1994), appeal pending.

The goal of anti-discrimination statutes, in general, is to make an aggrieved employee whole for injuries suffered by completely redressing the injury. Ibid.; affirmed on other grounds, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Co., v. U.S. Department of Labor, No. 94-0184 (W.D. Ky. May 24, 1994), appeal pending.

In facilitating make-whole relief, back wages should always be awarded unless there are specific findings of exceptional circumstances. Ibid.; affirmed on other grounds, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Co., v. U.S. Department of Labor, No. 94-0184 (W.D. Ky. May 24, 1994), appeal pending.

Although complainant's lack of diligence in mitigating damages could be inferred from the facts of the case, the contractor's failure to show that a substantially equivalent job was actually available defeats contractor's claim that complainant failed to mitigate. Thus, contractor is liable for full amount of back pay, interest in accordance with the rate presented in 29 U.S.C. §6621, and must reinstate complainant and restore benefits such as lost seniority, sick pay, and pension benefits. Id. at 17; affirmed, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Co., v. U.S. Department of Labor, No. 94-0184 (W.D. Ky. May 24, 1994), appeal pending.

Liability for back pay extends through to the time of the Secretary's final decision. Ibid.; affirmed on other grounds, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Co., v. U.S. Department of Labor, No. 94-0184 (W.D. Ky. May 24, 1994), appeal pending.

On the issue of mitigation, contractor has the burden to demonstrate that there was a substantially equivalent position available to the complainant, one that was virtually identical in the terms of compensation, status, and promotion. Ibid.; affirmed, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994, at 16; final decision vacated sub. nom., Cissell Manufacturing Co., v. U.S. Department of Labor, No. 94-0184 (W.D. Ky. May 24, 1994), appeal pending.

Although debarment is considered a severe or significant sanction, it is an appropriate remedy when a contractor fails to comply with its affirmative duties under the statute and the regulations. Ibid.; affirmed, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Co., v. U.S. Department of Labor, No. 94-0184 (W.D. Ky. May 24, 1994), appeal pending.

Contractor's failure to comply with the terms of a conciliation agreement, in which contractor agreed to correct AAP violations under the Executive Order, Section 503 and VEVRA, was not merely a failure to comply with "paperwork" rules, nor merely a failure to file routine reports on time, but rather a deliberative, complete violation of that agreement and of substantive equal employment opportunity law. OFCCP v. Disposable Safety Wear, Inc. (Executive Order, Section 503 and VEVRA), 92-OFC-11, ALJ Recommended Dec. and Order, August 20, 1992, slip op. at 13, rev'd on other grounds, Secretary of Labor Dec. and Final Administrative Order, September 29, 1992.

Contractor's violation of a conciliation agreement would warrant debarment and contract cancellation but for the following special factors: 1) contractor's persuasive promises that it will comply with its affirmative action obligations in the future; and 2) the plant manager's "concern" for loss of jobs by employees at the plant should sanctions be imposed. Id. at 13-14, rev'd, Secretary of Labor Dec. and Final Administrative Order, September 29, 1992.

The Secretary has authority to order debarment and cancellation of contracts under the Executive Order, Section 503 and VEVRA. OFCCP v. Disposable Safety Wear, Inc. (Executive Order, Section 503 and VEVRA), 92-OFC-11, Secretary of Labor Dec. and Final Administrative Order, September 29, 1992, slip op. at 4.

Although the Secretary's usual practice is to give a contractor a reasonable period of time in which to come into compliance before imposing sanctions, the Secretary has imposed immediate sanctions where the facts are not in dispute and the law is settled. Id. at 5.

Debarment of contractor for violation of a conciliation agreement is appropriate because, by entering into the conciliation agreement, the contractor had the opportunity to demonstrate compliance for almost four years and failed to do so. Id. at 6-7.

It is appropriate to impose sanctions where a clear violation of the Executive Order has occurred and impairment of the Government's monitoring and enforcement of the Order has resulted. Id. at 6-7.

The Secretary rejected contractor's argument that she should not impose debarment sanction due to possible impact on contractor's business and the jobs of current employees. Id. at 7-10.

In determining which sanctions are appropriate, cases arising under the Service Contract Act are not analogous to the Executive Order, Section 503 and VEVRA because of significant differences in those laws regarding the scope of the Secretary's discretion to impose sanctions after a violation has been found. Id. at 7-8, n.3.

In determining which sanctions are appropriate, FLSA cases are analogous to the Executive Order, Section 503 and VEVRA, and hold that financial hardship caused by an administrative order is not a valid basis on which to deny employees their remedy or to allow a wrong against the public to go uncorrected. Id. at 8-10.

Contractor should bear the burden of showing that sanctions would so adversely affect their business as to threaten their existence. Id. at 11.

Purpose of debarment is to encourage compliance and immediate imposition of sanctions can be an appropriate step in achieving that purpose. Id. at 11.

Effective enforcement of the Executive Order, Section 503 and VEVRA depends on voluntary compliance and meaningful sanctions when voluntary compliance is repeatedly not forthcoming. Id. at 12.

The Secretary orders debarment of contractor for a period of 90 days for contractor's repeated violations of a conciliation agreement in which contractor agreed to correct AAP violations under the Executive Order, Section 503 and VEVRA. After 90 days, contractor may petition for reinstatement in accordance with 41 CFR 60-1.31. Id. at 13-14.

It is unclear whether damages, other than back pay, are recoverable under Section 503. OFCCP v. Exxon Corporation, 92-OFC-4, ALJ Rec. Dec. and Order, June 15, 1993, slip op. at 44; affirmed on other grounds, Administrative Review Board Final Decision and Order, October 28, 1996.

The Section 503 statute and the regulations are silent with regard to damages. Id. at 44; affirmed on other grounds, Administrative Review Board Final Decision and Order, October 28, 1996.

ALJ finds that employment discrimination cases under Title VII and retaliation claims under the Fair Labor Standards Act have allowed for damages other than lost wages. Id. at 44-45; affirmed on other grounds, Administrative Review Board Final Decision and Order, October 28, 1996.

In light of the remedial purposes of Section 503, there is no reason why damages aside from lost wages should not be allowed. Id. at 45; affirmed on other grounds, Administrative Review Board Final Decision and Order, October 28, 1996.

Contractor is liable for the losses the complainant incurred on the sale of his home where the sale of his home was a direct result of contractor's discriminatory actions. Id. at 45; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996, at 28 and n. 34.

Contractor is liable for costs of relocating complainant to his previous job location, where contractor violated Section 503 by unlawfully transferring complainant to another State. Id. at 45; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996, at 26.

Contractor is not liable for damages to complainant's wife associated with her failure to obtain employment after contractor unlawfully transferred complainant to a job in another State. There is no case law to support such an award, spouses were expected to be transferred, and contractor offered spousal relocation assistance which complainant's wife did not take advantage of. Id. at 45; affirmed on other grounds, Administrative Review Board Final Decision and Order, October 28, 1996.

Because complainant was a "qualified handicapped individual" his termination could only be justified if it was predicated upon a valid screening process for determining possible future injury consistent with the exclusionary standard enunciated in Mantolete v. Bolger, 767 F.2d 1416 (9th Cir. 1985). Contractor's screening process did not comport with the standards enunciated in that case and are therefore invalid. Thus, complainant is entitled to a remedy and remand to the ALJ to consider remedy is appropriate. OFCCP v. Yellow Freight System, Inc., 84-OFC-17, Assistant Secretary Final Decision and Order of Remand, July 27, 1993, slip op. at 16; Order Approving Settlement and Dismissal, April 20, 1994.

Contractor's employment screening process violated Section 503 in that contractor relied solely on back x-rays to determine whether employees posed a reasonable probability of substantial harm. Therefore, Assistant Secretary orders contractor to develop and implement policies and procedures regarding back conditions including the use of x-ray examinations therein, which are consistent with Section 503. Id. at 16-17.

The Department of Labor has consistently held that back pay is an available remedy under Section 503, and has ordered it where appropriate. OFCCP v. Yellow Freight System Inc., 89-OFC-40, Administrative Law Judge Recommended Decision and Order, May 17, 1994, at 32; Consent Decree, February 29, 1996.

Back pay, calculated by subtracting complainant's actual earnings from the earnings he would have received from Yellow Freight, with interest until paid is appropriate from the date he was terminated until his reinstatement. Id. at 33.

An employer should not be allowed to shield itself in perpetuity from its obligations under Section 503 by arguing that past circumstances rendered the employee disqualified. Thus, upon request an employer is required to reconsider its employment decision after the passage of time when the employee's handicap is subject to change over time. OFCCP v. CSX Transportation, Inc., 88-OFC-24, Assistant Secretary for Employment Standards Decision and Order of Remand, October 13, 1994, at 20-21; case closed January 17, 1996.

The degree of relief available to a complainant who alleges a continuing violation is contingent on the ALJ identifying the initial discriminatory incident, and determining that the initial incident and the continuing events are sufficiently linked. Id. at 25.

In assessing the availability of relief, the Secretary of Labor has analyzed the linkage between discriminatory events and a finding of a continuing violation by considering the subject matter of the acts, the frequency or recurrence of the acts, and the degree of permanence. Id. at 25.

Once a complaint is received OFCCP has jurisdiction to seek individual relief for all violations discovered in its investigation. OFCCP v. Commonwealth Aluminum Corp., 82-OFC-6, Assistant Secretary for Employment Standards Final Decision and Order, February 10, 1994, at 20-21, n.10; remanded sub. nom., Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

The absence of any mention of back pay in Section 503 does not preclude its availability as a remedy for violations. Id. at 24; remanded sub. nom., Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

The Assistant Secretary held that while there are many cases stating that there is no private right of action under Section 503, no where do those cases hold that OFCCP cannot seek a remedy on behalf of a complainant. Id. at 25, and n.13; remanded sub. nom., Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

The Assistant Secretary has the authority under Section 503, after a finding of discrimination, to award retroactive seniority without participation of the union in the proceedings. Id. at 25-27; remanded sub. nom., Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

Contractor found to have violated Section 503 is ordered by the Assistant Secretary to make offers of employment to complainants in positions comparable to those for which they applied. In addition, contractor must award seniority retroactive to the date complainants would have been hired but for the illegal discrimination. Id. at 27-28; remanded sub. nom., Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

Section 503 parallels Executive Order 11246 with respect to the agency's authority to order payment of back wages to make victims of discrimination whole. OFCCP v. American Airlines, Inc., 94-OFC-9, Assistant Secretary For Employment Standards Decision and Remand Order, April 26, 1996 at 16.

The Assistant Secretary held, that because Section 503 obligates covered contractors not to discriminate against qualified disabled individuals, that obligation would be meaningless if contractors could violate it and not provide relief to victims of their illegal discrimination. Id. at 16.

Section 503 implicitly prohibits discrimination and allows relief for individuals discriminated against in violation of the section. OFCCP v. American Airlines, Inc., 94-OFC-9, ALJ Dec. and Order on Defendant's Motions for Summary Judgment, September 19, 1995, at 5-6, rev'd on other grounds, Assistant Secretary of Labor, Decision of Remand Order, April 19, 1996.

Determining whether employment is comparable often requires more than an examination of compensation. Considerations such as job duties and responsibilities, promotion potential, working environment, and benefits also may be relevant. OFCCP v. Mt. Bell Telephone Co., 87-OFC-25,Assistant Secretary for Employment Standards, Order Denying Motion to Strike; Decision and Order of Remand, August 25, 1994, at 5; Consent Decree, February 9, 1995.

Unless constructively discharged, a complainant is not eligible for post-resignation damages and back pay or for reinstatement. Id. at 6.

A finding of failure to mitigate damages requires proving that an award of back pay or damages should be reduced because of an employee's lack of reasonable diligence in mitigating the damage caused by an unlawful discharge. Ibid.

To comport fully with the make whole objective of Section 503 a remedy formula, which provides back pay equal to the complaint's projected salary, should be adjusted upward to reflect merit pay increases that she reasonably would have received had she continued at commensurate pay under a program to afford her reasonable accommodation. The complainant is also due an award of prejudgment interest. Id. at 7.

The complainant is entitled to back pay with interest from the time he was terminated in October 1985 to the date of the Assistant Secretary's final decision. OFCCP v. Cissell Manufacturing Co., 87-OFC-26, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994, at 14; final decision vacated sub. nom., Cissell Manufacturing Co., v. U.S. Department of Labor, No. 94-0184 (W.D. Ky. May 24, 1994), appeal pending.

The Assistant Secretary has consistently held that the authority to award back pay is implicit under Section 503. Id. at 14; final decision vacated sub. nom., Cissell Manufacturing Co., v. U.S. Department of Labor, No. 94-0184 (W.D. Ky. May 24, 1994), appeal pending.

The authority to order back pay is implied by the broad grant of authority to the Department to "take such action [on a complaint] as the facts and circumstances warrant." (E.g., reinstatement, and back dated seniority and benefits). Id. at 15-16; final decision vacated sub. nom., Cissell Manufacturing Co., v. U.S. Department of Labor, No. 94-0184 (W.D. Ky. May 24, 1994), appeal pending.

The argument made by Cissell based on the adoption by Section 504a, 29 U.S.C. § 794a, of the remedies available under Title VI of the Civil Rights Act for the actions under Section 504, actually tends to show that back pay is available under Section 503. Title VI also does not mention specific remedies for its violation, other than termination of funding, but the courts have held that back pay is an available remedy under Title VI. Id. at 15; final decision vacated sub. nom., Cissell Manufacturing Co., v. U.S. Department of Labor, No. 94-0184 (W.D. Ky. May 24, 1994), appeal pending.

Once discrimination has been proven, the employer has the burden of proving that the employee did not exercise reasonable diligence in finding other suitable employment, and the employer may satisfy that burden only by showing (1) that there were substantially equivalent positions available and (2) that the employee did not use reasonable care and diligence in seeking such positions. Id. at 15-16; final decision vacated sub. nom., Cissell Manufacturing Co., v. U.S. Department of Labor, No. 94-0184 (W.D. Ky. May 24, 1994), appeal pending.

[A] substantially equivalent position "must afford the [employee] virtually identical promotional opportunities, compensation, job responsibilities, working conditions and status." Id. at 16; final decision vacated sub. nom., Cissell Manufacturing Co., v. U.S. Department of Labor, No. 94-0184 (W.D. Ky. May 24, 1994), appeal pending.

Cissell failed to meet its burden in opposition to an award of back pay by offering evidence that substantially equivalent positions were available, or that any vacancies existed for welders in the Louisville, Kentucky area during the relevant period. Id. at 16; final decision vacated sub. nom., Cissell Manufacturing Co., v. U.S. Department of Labor, No. 94-0184 (W.D. Ky. May 24, 1994), appeal pending.

The degree of diligence of the employee cannot be considered if the employer has not carried its burden to establish that substantially equivalent jobs existed. Id. at 16-17 and n. 13; final decision vacated sub. nom., Cissell Manufacturing Co., v. U.S. Department of Labor, No. 94-0184 (W.D. Ky. May 24, 1994), appeal pending.

The Assistant Secretary held that given the actual functioning and circumstances of Cissell's business and its failure to show that reasonable accommodation to the complainant would impose an undue hardship, it was appropriate to affirm the ALJ's recommendation that Cissell be ordered to cease its "no light duty" policy and to provide accommodation to the complainant and to all other qualified handicapped individuals. Id. at 17-19; final decision vacated sub. nom., Cissell Manufacturing Co., v. U.S. Department of Labor, No. 94-0184 (W.D. Ky. May 24, 1994), appeal pending.

Defendant's contention that the complainant is not entitled to relief because of "after acquired evidence" consisting of omissions on his application, is a remedial issue to be addressed on remand. OFCCP v. Yellow Freight System, Inc., 84-OFC-17, Acting Assistant Secretary for Employment Standards, Reconsideration of Final Decision and Order of Remand, December 22, 1993, at 9-10 and n.4; Order Approving Settlement and Dismissal, April 20, 1994.

The ARB affirmed the ALJ's recommended remedy that complainant be offered reinstatement to the position of field foreman at the LaBarge facility. . . . with seniority and the pay he would have received had he not been transferred, and that Exxon reimburse him [consequential damages] for moving costs and the loss realized on the sale of his house. The ARB affirmed the ALJ's rejection of OFCCP's argument for lost wages for his wife, caused by the involuntary transfer. OFCCP v. Exxon Corporation d/b/a/ Exxon Company, 92-OFC-4, Final Decision and Order, Administrative Review Board, October 28, 1996, at 26.

In ordering Exxon to discontinue its policy of categorical exclusion, the ARB agreed with OFCCP and held that the Rehabilitation Act authorizes the Department of Labor to "take such action" on any complaint of noncompliance "as the facts and circumstances warrant, consistent with the terms of [the contractor's] contract and the laws and regulations applicable thereto." 29 U.S.C. § 793(b). Certainly an order directing Exxon to discontinue a policy that violates the affirmative action/nondiscrimination mandate of section 503 is an "action" which is "consistent with" the Rehabilitation Act. Id. at 26-27.

The regulations implementing the Rehabilitation Act require contractors, as a condition of obtaining a government contract, to institute employment practices which are consistent with "the affirmative action obligation imposed by section 503. . . ." 41 CFR 1 60-741.6. To this end, OFCCP may require modification of existing practices. Id. at 27.

Since each government contract must include an "affirmative action clause" and a non complying contractor must "make a specific commitment, in writing, . . . to meet the requirements of the Act" before it can be found to be in compliance, an order directing Exxon to "correct" the policy of categorical exclusion is an "action" which is "consistent with the terms of [its] contract. See 41 CFR §§ 60-741.4, 60-741.6, and 29 U.S.C. § 793(b). Id. at 27.