DATE: May 9, 1995
CASE NO. 89-OFC-1
IN THE MATTER OF
OFFICE OF FEDERAL CONTRACT
COMPLIANCE PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
PLAINTIFF,
v.
JACKSONVILLE SHIPYARDS, INC.
DEFENDANT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND REMAND ORDER
Plaintiff, the Office of Federal Contract Compliance
Programs (OFCCP), filed a complaint on September 30, 1988
alleging that Defendant, Jacksonville Shipyards, Inc. (JSI),
discriminated against women and minorities in violation of
Executive Order No. 11,246 (E.O. 11,246 or the Order), 3 C.F.R.
339 (1964-1965), reprinted as amended in 42 U.S.C. §
2000e note (1988). The parties settled the issues of
discrimination against minorities, and the allegations of
discrimination against women were tried before an Administrative
Law Judge (ALJ) who submitted a Recommended Decision and Order
(R. D. and O.). OFCCP alleged that JSI discriminated against
women in hiring for the entry level job of Helper Second Class
(Helper 2/c) in 1985, but the ALJ recommended that the complaint
be dismissed.
Background
The background facts are set out in detail in the R. D.
and O. at 2-5. Briefly, JSI operates two ship repair facilities
in
[PAGE 2]
the Jacksonville, Florida area and is a covered government
contractor. JSI employed about 1300 production shipyard workers
in 1985 in many different crafts, such as carpenter, welder,
sheetmetal worker and electrician. In each department JSI had
several different job classifications, such as Leaderman,
Mechanic 1st, 2nd and 3rd Class, and Helper 1st and 2nd Class.
T. (Transcript of hearing) 273; P (Plaintiff's Exhibit) - 21,
Appendices A and B at pp. 57-58.
Helper 2/c was the entry level job for production workers,
T. 123, requiring no specific background or experience. R. D. and
O. at 5; T. 138; 419; 557-58. Helpers assisted the craftsmen by
lifting equipment and materials and carrying tools; they were
required to work at temperature extremes, to climb and work at
heights, and sometimes to work in dirty or oily conditions.
T. 191-97. After hire, helpers could be assigned to any
department with vacancies, but JSI company policy prohibited
assigning newly hired women to the rigging and boiler
departments. T. 151; 290. Although JSI allegedly preferred to
hire applicants who had prior heavy labor, shipyard or military
experience, T. 3266; 3278, it hired a significant number of men
who had no such experience and failed to hire some women who did
have this experience. T. 134; 3279-80; 3417. Approximately 1134 individuals applied for Helper 2/c
positions in 1985 and JSI hired a total of 191, [1] but there
was some disagreement about how many women were hired. See
discussion in R. D. and O. at 20-21. [2]
The ALJ Decision
OFCCP introduced considerable statistical evidence and
analyses, see, e.g., P-103 and 104, with numerous
tables, attempting to show significant disparities in the hiring
rates of men and women. But the ALJ found none of OFCCP's
statistical evidence credible and held it was not sufficient to
meet OFCCP's burden of establishing a prima facie case.
R. D. and O. at 25. In addition, assuming OFCCP established a
prima facie case, the ALJ held that JSI's preference for
applicants with the type of relevant experience noted above
"explain[s] the disparities as a product of a legitimate,
nondiscriminatory selection criterion." R. D. and O. at 28.
The ALJ also rejected OFCCP's contention that JSI's policy
excluding women from the rigging and boiler departments had an
effect on the number of women hired as helpers. Because most
helper vacancies occurred in clusters in April, May and July,
1985, and there were vacancies in departments other than rigging
and boiler at those times, the ALJ held OFCCP did not show any
woman was denied a job because JSI excluded women from two out of
15 departments in which it employed helpers. See P-20,
Appendix B (listing departments employing helpers).
[PAGE 3]
Finally, the ALJ rejected OFCCP's circumstantial evidence of
discrimination such as alleged discriminatory comments by a clerk
in the personnel department, disparate treatment in checking
applicants' Social Security cards, and hiring about 15 men with
less relevant experience than six women with such experience.
R. D. and O. at 31-35.
DiscussionI. Applicable legal principles A. Scope of Secretary's Review
JSI argued that the Secretary must restrict review of an
ALJ's recommended decision in E.O. 11,246 cases to a
determination whether it is supported by substantial evidence. I
do not agree. Under the Administrative Procedure Act, 5 U.S.C.
§§ 500-559 (1988), where an ALJ has been delegated
authority to hold a hearing and make an initial decision which is
subject to review by the agency, that is, the Secretary, "the
agency has all the powers which it would have in making the
initial decision
. . . ." 5 U.S.C. § 557(b). JSI cited a number of cases
which are inapposite here. Specific, narrow rules for review of
ALJ decisions are provided by statute in Black Lung and Social
Security disability cases. See, e.g., Director,
Office of Workers' Compensation Programs, U.S. Dep't of Labor v.
Ziegler Coal Co., 853 F.2d 529, 532 (7th Cir. 1988); Reyes
v. Bowen, 845 F.2d 242, 244 (10th Cir. 1988). In addition,
Citizens State Bank v. Federal Deposit Ins. Corp., 718
F.2d 1440 (8th Cir. 1983), did not hold that an ALJ's findings of
fact are conclusive, as argued by JSI. The Citizens State
Bank case only held that an agency must give "attentive
consideration" to those findings and articulate reasons for
departing from them. Id. at 1444.
B. Proof of Discrimination
The ALJ set out at some length the legal principles
applicable where, as here, plaintiff alleges a pattern or
practice of discrimination, R. D. and O. at 5-9, and, with one
exception, I agree with his summary of the law. OFCCP charged
JSI with disparate treatment or intentional discrimination
against women. [3] Therefore, the ALJ held:
The Defendant . . . argues that any statistical disparity in
its hiring of women in helper 2/c positions in 1985 was an
unintentional result of its preference for hiring employees
with previous relevant work experience, including military
experience. Although such a scenario could establish
disparate impact discrimination, Defendant has not been charged with disparate impact discrimination.
Accordingly, the Department's case would fail.
R. D. and O. at 5. [4]
However, I held in OFCCP v. Honeywell, Inc., Case No.
77-
[PAGE 4]
OFCCP-3, Sec'y. Dec. and Remand Ord. March 2, 1994, slip op. at
13-14, that where plaintiff has carried its initial burden in a
disparate treatment pattern and practice case, "bare articulation
of a nondiscriminatory explanation will not suffice to rebut
it . . . ." (Quoting Segar v. Smith, 738 F.2d 1249, 1269
(D.C. Cir. 1984).) If defendant identifies a particular
employment practice as having caused the statistical disparity,
defendant has the burden of demonstrating the validity of that
practice. OFCCP v. Honeywell, slip op. at 14.
This case is substantially similar to Lewis v. Bloomsburg
Mills, Inc., 773 F.2d 561 (4th Cir. 1985), where the court
found that statistical evidence showing that a textile mill hired
black women at a rate far below that expected by their
availability in the relevant pool proved a pattern or practice of
discrimination. 773 F.2d at 569. The court rejected the mill's
argument that the cause of the statistical disparity was the
mill's preference for experienced workers and that this
requirement was consistent with business necessity. Id.
In support of this defense, the mill offered only general
testimony that prior experience was used to screen applicants,
but the court found that there were no internal controls or
monitoring of the hiring process to assure that this requirement
was uniformly applied. Id. at 570-71.
Of particular significance for this case is the court's
discussion in Bloomsburg Mills of the differences and
relationship between the disparate impact and disparate treatment
theories of employment discrimination. The court noted that in
some discrimination cases, plaintiff may
simply allege and offer proof of a significant
discriminatory effect, knowing only that the effect is
there, prepared to establish it either as intentional
or merely the consequence of some policy or practice
unknown . . . (i.e., to proceed alternatively on
disparate treatment or disparate impact theories),
depending on the force of [plaintiff's] proof
and upon the defensive stance yet to be assumed
by the employer . . . . A case may . . . become
effectively one of "disparate impact" only by virtue of
the employer's defensive stand putting in issue for the
first time an assertion that any disparate effect shown
. . . is caused solely by a facially neutral practice
or test.
Where . . . the employer has in effect staked its case on
the existence, the causal effect, and the business necessity
of the practice . . . the defense fails if either causation
or necessity fails of proof . . . .
Id. at 571 n.16 (emphasis in original). The court went on
to
[PAGE 5]
hold that it was error for the district court, when an employment
discrimination case is in this posture, to find "a prima
facie case of class disparate impact defeated by the mere
production or `articulation'" of a legitimate business reason for
the difference in treatment. Id. at 572. The ALJ here
committed the same error. I note that proof of discrimination through statistics has
long been an accepted method of establishing violations of Title
VII of the Civil Rights Act of 1964, as amended. "[T]he courts
have frequently relied upon statistical evidence to prove a
violation . . . in many cases the only available avenue of proof
is the use of . . . statistics to uncover clandestine and covert
discrimination." Int'l Bhd. of Teamsters v. United
States, 431 U.S. 32, 339-40 n.20 (1977). In another case
involving alleged discrimination in hiring for entry level
unskilled jobs, the Seventh Circuit held that "in some cases,
statistical disparities alone may prove intent, [and] statistical
evidence can also be sufficient to establish a pattern and
practice of discrimination . . . ." EEOC v. O. & G. Spring
and Wire Forms Specialty Co., 38 F.3d 872, 876 (7th Cir.
1994), and cases discussed therein. [5]
In addition, it is important to add to the ALJ's discussion
the specific measure of the significance of statistical
disparities adopted by the Supreme Court and the courts of
appeal:
One unit of measurement used to express the probability that
an observed result is merely a random deviation from a
predicted result is the "standard deviation" . . . .
Generally, the fewer the number of standard deviations that
separate an observed result from a predicted result, the
more likely it is that any observed disparity . . . is not
really a "disparity" at all but rather a random fluctuation.
Conversely, "[t]he greater the number of standard
deviations, the less likely it is that chance is the cause
of the expected and observed results." [Citations omitted.]
A finding of two standard deviations corresponds
approximately to a one in twenty, or five percent, chance
that a disparity is merely a random deviation from the norm,
and most social scientists accept two standard deviations as
a threshold level of "statistical significance." SeeCasteneda [v. Partida], 430 U.S. [482] at 496 n.17 .
. . .
Ottaviani v. State Univ. of New York, 875 F.2d 365, 371
(2d Cir. 1989), cert. denied, Ottaviani v. State
University of New York, 493 U.S. 1021 (1990). EEOC v.
American Nat'l Bank, 652 F.2d 1176, 1192 (4th Cir. 1981)
("[M]ost social scientists . . . are prepared to discard chance
as an hypothesis when its probability
[PAGE 6]
level is no more than 5%, i.e., at approximately two
standard deviations." [6]
II- The statistical evidence
OFCCP relied primarily on two exhibits, P-103 and 104,
prepared by its statistical expert, Dr. Carl Hoffman, to show
significant disparities between the rate of hiring men and women
into Helper 2/c jobs. Dr. Hoffman developed two sets of criteria
for counting applicants as "hired," which he called Success 1 and
Success 2, and applied various statistical tests to these sets. Success 1 included only those applicants for whom JSI had an
employment application [7] and who appeared on the payroll
tapes. T. 2322. Dr. Hoffman counted 1134 total applicants, 69
women and 1065 men. Of the total number hired as Helpers 2/c,
191, 2 were women and 189 were men. P-103, Table 3 - Revision C.
One would have expected JSI to have hired about 12 women from
this applicant pool. [8] Dr. Hoffman testified that the
probability of a distribution of two women and 189 men occurring
by chance was one in a thousand. T. 2339. Both Dr. Hoffman and
JSI's expert,
Dr. Charles Haworth, calculated the standard deviation for these
statistics to be about 3.2 or 3.3, T.2355; 3320, making the
difference between the expected number of women and the actual
number hired about three standard deviations. R. D. and O. at 10
n.9. [9]
Dr. Hoffman's set of "Success 2 hires" included anyone who
"passed the first hurdle, [that is] got passed [sic] the
application review," or anyone with respect to whom there was
"some evidence of intention to hire." T. 3053. For example,
Dr. Hoffman counted as "Success 2" individuals sent for a
physical examination or referred for an interview for a craft or
mechanic's position. R. D. and O. at 16.
The ALJ rejected both sets of basic statistics compiled by
Dr. Hoffman. I agree that the "Success 2" set represented "an
undefined, ever-changing category," R. D. and O. at 17, which "is
not entitled to any weight since it is unclear what it measures."
R. D. and O. at 22. I cannot agree that the "Success 1" set must
be rejected as having no probative value.
The ALJ criticized OFCCP's "Success 1" set on many grounds,
see R. D. and O. at 11-13; 17-22, noting, among other
things, the difficulty in reconciling different groups of
documents, such as the applications, the applicant log, and the
payroll tapes. The ALJ concluded that the "Success 1"
statistics, as well as all of OFCCP's other statistical evidence,
was not credible. R. D. and O. at 25.
But JSI's own expert, Dr. Haworth explained that he too had
difficulty determining the exact number of hires for Helper 2/c
because there were "inconsistencies between hard copy data and
the data that was in the computer." T. 3299. Nevertheless,
[PAGE 7]
Dr. Haworth counted a total of 186 hires and 68 women applicants,
T. 3300, and he presented no evidence to contradict Dr. Hoffman's
count of the total number of applicants. T. 3451. In addition,
JSI admitted in discovery that only two women were hired as
Helpers 2/c in 1985. [10] JSI's Response to Request No. 27 of
OFCCP's Request for Admissions, March 20, 1989, and Response to
Request No. 21 of OFCCP's Second Request for Admissions, Nov. 21,
1990. [11]
To be sure, this is not a case of "the inexorable zero,"
Honeywell, slip op. at 9; OFCCP v. Lawrence Aviation
Indus., Inc., Case No. 87-OFC-11, Sec'y. Dec. and Remand
Order June 15, 1994, slip op. at 3, or one in which gross
disparities alone may be sufficient to establish a prima
facie case of discrimination. Hazelwood Sch. Dist. v.
United States, 433 U.S. 299, 307-08 (1977). But viewing the
record as a whole, including the testimony of both expert
witnesses and facts admitted in discovery, I find that OFCCP has
presented credible evidence of statistically significant
differences in hiring rates between men and women for Helper 2/c
jobs in 1985. Therefore, OFCCP presented credible evidence which
supports an inference of discrimination on the basis of sex.
JSI challenged OFCCP's statistics on the grounds that they
did not reflect JSI's actual hiring practices. When vacancies
occurred, JSI obtained applicants through the Florida State
Employment Service, the Urban League, or by word of mouth.
T. 3262. When the vacancies were filled, the applications of
unsuccessful applicants were filed, but they were not considered
when new vacancies occurred because JSI found that prior
applicants did not respond in a timely manner. T. 3267. JSI
argued, therefore, that for purposes of statistical analysis,
only current applicants applying in a "window" of time close to
the date of a vacancy should be considered.
But JSI's expert, Dr. Haworth conceded that, considering
various employment "windows," e.g., one week, or three to
four weeks, on average women still constituted 6.1% of the
applicants. T. 3413; 3447. In fact, during some of JSI's
heavier hiring periods, more than 6.1% of applicants were women.
T. 3449. Therefore, I reject the ALJ's finding that no evidence
was presented to show that the date of hire did not account for
the disparity in hiring men and women. See R. D. and O.
at 29.
III- JSI's defense
JSI claimed its preference for workers with prior relevant
experience explained any disparity in hiring rates, but several
facts in the record persuade me that this explanation is
pretextual. To begin with, JSI did not apply this hiring
criterion even handedly. There are a number of examples of JSI
hiring men without prior relevant experience, but passing over
[PAGE 8]
women who applied at the same time who had such experience. For
example, a woman who had worked for JSI as a helper in 1980 and
1981 applied for work on April 11, 1985 but was not hired. P-17
at p. 3134. On the same day, JSI hired a man who had no prior
relevant experience, P-1 at p. 295, and the next day hired two
men who had no relevant experience. P-1 at pp. 1029, 2028. On
April 23, 1985, a woman applied who had prior experience at
another local shipyard, as well as other experience in
construction and heavy labor, but JSI passed over her to hire a
man on April 29 who had applied two days later but who had no
relevant experience. See P-1 at p. 2045; P-17 at p. 3220.
The following chart illustrates these and other examples of JSI
failing to hire women with relevant experience while hiring men
without such experience who applied at about the same time:
Name Sex Applied Hired Experience
Willie Mae Hines F 4/11/85 No Shipyard
Leon Bridges M 4/9/85 4/11/85 Food store
Bernard Burns M 4/9/85 4/11/85 Laborer
Stephen Harris M 4/9/85 4/12/85 Clerk; weight instructor
George Norris M 4/9/85 4/12/85 Gas station; yard work
George Rudd M 4/9/85 4/12/85 Yard work; truck driver
Gerald Striggles M 4/10/85 4/15/85 Laborer;janitor
Kay Johnson F 4/22/85 No Shipyard
Teresa Woods F 4/23/85 No Shipyard; Heavy labor
Marie Carter F 4/25/85 No Shipyard
Leonard Hopkins M 4/16/85 5/6/85 Carpet layer
John Orischek M 4/18/85 4/22/85 Gas station
Carlos Salomon M 4/25/85 4/29/85 Counseling; tutoring
Mary Catherine West F 5/1/85 No Mechanical
Connie Cox F 5/4/85 No Military, mechanical
William Harding M 5/1/85 5/3/85 Meat dep't; bus boy
Michael Allen M 5/2/85 5/6/85 Work with horses
In addition, John Stewart, JSI's Manager of Industrial
Relations, testified that JSI had no written position description
for the Helper 2/c job. T. 135. The criteria he listed for
employment as a Helper 2/c, willingness to work in heavy
industry, not being afraid of heights, ability to climb, and
ability to do heavy dirty work, did not include prior shipyard,
military or related experience. JSI hired a significant number
of men who did not have such experience. T. 3417. In other
words, JSI's asserted preference for workers with prior
experience could not have caused the disparity. Lewis v.
Bloomsburg Mills, 773 F.2d at 570-71. In sum, JSI's
preference
[PAGE 9]
was not to hire people with relevant work experience, it was to
hire men.
More importantly, even if JSI had uniformly applied a
relevant experience criterion, it had the burden of demonstrating
that the requirement was job related and justified by business
necessity because "a defendant cannot rebut statistical evidence
by mere conjectures or assertions, without introducing evidence
that the missing factor can explain the disparities as a product
of a legitimate, nondiscriminatory selection criterion."
Palmer v. Shultz, 815 F.2d 84, 101 (D.C. Cir. 1987). The
requirement of prior experience for an entry level job is not
such an obviously relevant factor that merely pointing out its
omission from OFCCP's statistics defeats the inference of
discrimination. Id. Further, it does not relieve JSI of
the obligation to demonstrate the validity of the criterion.
Honeywell, slip op. at 14-15 (prior experience requirement
must be validated); Fitzpatrick v. City of Atlanta, 2 F.3d
1112, 1118 n.6 (11th Cir. 1993) ("An employer's subjective belief
that a practice is necessary without any supporting evidence, is
plainly insufficient to justify a discriminatory practice.");
Palmer v. Schultz, 815 F.2d 84, 101 (D.C. Cir. 1987)
("Implicit in the Bazemore [v. Friday, 478 U.S. 385
(1986)] holding is the principle that a mere conjecture or
assertion on the defendant's part that some missing factor would
explain the existing disparities between men and women generally
cannot defeat the inference of discrimination created by
plaintiff's statistics.") JSI offered no evidence of the
validity of its preference for workers with prior relevant
experience.
I find the ALJ's analysis of the evidence on JSI's failure
to hire women with relevant experience illogical. The ALJ
appeared to accept the fact that at least six women with relevant
experience were not hired when less experienced men were, but
held that this "is not enough to prove . . . deliberate
discrimination." R. D. and O. at 35. However, this evidence,
taken together with other evidence in the record discussed here,
lends strong support to OFCCP's charge of systemic
discrimination. Bazemore v. Friday, 478 U.S. at 400-01
(1986) (evaluating whether plaintiff met its burden must be based
on all evidence); United States Postal Serv. Bd. of Governors
v. Aikens, 460 U.S. 711, 714 n.3 (deciding discrimination
cases, "[a]s in any lawsuit . . . [t]he trier of fact should
consider all the evidence . . . ").
The ALJ also suggested the experienced women might have been
passed over because almost all the men hired at that time were
younger than the women. But he backed off this approach because
JSI never raised it as a defense. R. D. & O. at 35.
(With respect to two of the women, this defense might have been
an
[PAGE 10]
admission of violating the Age Discrimination in Employment Act
of 1967, 29 U.S.C. §§ 621-634 (1988).) [12] Finally,
the ALJ appeared to reject this evidence because the record did
not show whether men with relevant experience were passed over as
well. Id. Of course, because far more men applied than
there were vacancies available during 1985 (1065 men applied for
191 vacancies), it would not be surprising if some men with
experience were not hired. If men with experience were passed
over when inexperienced men were hired, it would tend to support
the conclusion that prior experience was not one of JSI's bona
fide selection criteria, but was a pretext for denying
employment to women.
IV- Other evidence of discrimination
The ALJ also completely rejected other evidence of
discrimination submitted by OFCCP, the most significant being
JSI's admitted practice of excluding women from assignment to two
departments, rigging and boiler. The ALJ held that, because JSI
did not assign workers to specific departments until after they
were hired, and vacancies for the most part occurred in clusters
with openings in other departments in addition to rigging and
boiler, exclusion of women from those two departments could not
have had an effect on selection for hire. R. D. and O. at 31.
As the following chart shows, on several occasions JSI hired men
and assigned them to the rigging department, but failed to hire
women who applied at the same time, even though the women
met JSI's preference for prior relevant experience and the men
did not:
Name Sex Applied Hired Assigned
Willie Mae Hines F 4/11/85 No
Leon Bridges M 4/9/85 4/11/85 Rigging
Bernard Burns M 4/9/85 4/11/85 Rigging
Stephen Harris M 4/9/85 4/12/85 Rigging
George Rudd M 4/9/85 4/12/85 Rigging
Kay Johnson F 4/22/85 No
Teresa Woods F 4/23/85 No
Marie Carter F 4/25/85 No
Leonard Hopkins M 4/16/85 5/6/85 Rigging
Carlos Salomon M 4/25/85 4/29/85 Rigging
I agree with the ALJ that it is reasonable to assume vacancies
existed in other departments when vacancies occurred in rigging
and boiler. [13] But JSI offered no explanation why these
experienced women were not hired and assigned to those other
departments.
In addition, even if I agreed that JSI's admitted
[PAGE 11]
discrimination in departmental assignment did not constitute
direct evidence of discrimination in hire, this fact should be
weighed together with all the evidence in the record, rather than
dismissed as irrelevant. As the Supreme Court held in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-05
(1973), "other evidence that may be relevant to any showing of
pretext includes . . . [the employer's] general policy and
practice with respect to minority employment." See also
Corley v. Jackson Police Dep't, 566 F.2d 994 (5th Cir. 1978)
(finding history of race discrimination and reaction to prior
EEOC complaints relevant to proof of pretext); Kinsey v. First
Regional Sec., Inc., 557 F.2d 830, 839 (D.C. Cir. 1977)
(holding evidence of hiring practices followed by same defendant
in different geographic locations than office where plaintiff
applied may support plaintiff's claim of discrimination);
Abramson v. The American University, 48 Empl. Prac. Cas.
(CCH) ¶ 38,439, p. 54,501 (D.D.C. 1988) ("[E]vidence that
[defendant] discriminated against other minority groups is surely
relevant towards the issue of . . . discriminatory intent in
general . . . .")
JSI's admitted discrimination against women in departmental
assignments lends significant support to OFCCP's charge of
discrimination in hiring because it tends to show JSI's corporate
attitude toward women as not being capable of heavy work.
See T. 284-89 (JSI believed certain departments required
physical strength which JSI evaluated by applicant's appearance).
See OFCCP v. Lawrence Aviation, slip op. at 6-7 (using
height and weight as proxy for ability to do heavy work violates
E.O. 11,246).
JSI was under no obligation to hire a specific number of
women. JSI was, however, required to treat all job applicants
equally, regardless of gender. I find, based on the record as a
whole, that JSI failed to treat all applicants equally and that
OFCCP has proved JSI engaged in a pattern and practice of
discrimination against women in hiring for Helper 2/c jobs in 1985. This matter is REMANDED to the ALJ for a determination of
the appropriate remedy. [14]
SO ORDERED.
_________________________
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] There was some disagreement about exactly how many Helper
2/c hires there were in 1985, but JSI's expert ultimately agreed
that 191 was an appropriate figure and that he had no data to
indicate another figure should be used. T. 3451. In addition,
although the ALJ criticized OFCCP's expert for counting some men
as hires and failing to count others, if all such counting errors
are corrected the total number of men hired is 189. See R. D.
and O. at 17-19.
[2] The ALJ criticized OFCCP's expert for the accuracy of the
data he presented as well as the methods he used to analyze it,
but the ALJ recognized that some of the difficulty analyzing the
data in this case was caused by poor or inadequate record keeping
by JSI. See R. D. and O. at 10.
[3] Disparate treatment is "simply treat[ing] some people less
favorably than others because of their race, color, religion,
sex, or national origin." International Bhd. of Teamsters v.
United States, 431 U.S. 324, 342 n.15 (1977).
[4] Disparate impact "involve[s] employment practices that are
facially neutral in their treatment of different groups but that
in fact fall more harshly on one group than another and cannot be
justified by business necessity." Teamsters, 431 U.S. at
335 n.15.
[5] Proof of discrimination through statistics does not require
covered contractors to adopt quotas to avoid liability. Where a
contractor applies a valid selection criterion, it is not subject
to sanction if its workforce in that job category does not
reflect the labor market availability of minorities or women.
See 41 C.F.R. § 60-3.2C. (1994) (validated selection
procedures may be used "for the purpose of selection on the basis
of relative qualifications . . . .")
[6] I also note that courts recognize the diminishing
usefulness of statistical analyses in discrimination cases when
sample sizes become too small to assure reliability. SeeEEOC v. American Nat'l Bank, 652 F.2d at 1193 n.12. But
the sample size here, 191 out of 1134, qualifies as a "large
sample" by the standards discussed in EEOC v. American Nat'l
Bank.
[7] JSI also kept an applicant log, P-102, a handwritten list
of applicants with the date of application and other basic
information, but there were many names on the log for which JSI
had no applications and JSI had a number of applications from
individuals whose names did not appear on the log. T. 2276;
2285.
[8] Women constituted 6.1% of all applicants (69 out of 1134);
one would have expected an equivalent percentage of new hires to
have been women, 12 new hires. JSI hired two women in 1985 in
Helper 2/c jobs, so the "shortfall" of women new hires was 10.
T. 2327-28.
[9] "Three standard deviations corresponds to approximately a 1
in 384 chance of randomness." Ottaviani v. State Univ. of
N.Y., 875 F.2d at 373 n.7.
[10] JSI asserted in those responses that it had also made
offers of employment to two additional women, but if all men to
whom offers were made also were counted, it would not have
substantially changed the "shortfall" of women hires. T. 3465-
66.
[11] I agree with the ALJ that one woman, Kelly Rensdell, who
applied late in 1985 and was hired in 1986, R. D. and O. at 20,
should be counted as a hire for purposes of this case. But
including one additional woman hired results in a "shortfall" of
9 or 2.73 standard deviations.
[12] It would not be surprising that applicants with
experience, who had been in the work force longer, would be older
than inexperienced applicants.
[13] For example, at least six men hired on April 11 and 12,
1985 were assigned to departments other than rigging and boiler.
See applications of W. Bosworth, A. Clark, R. Lewis, G. Norris,
L. Smith, and J. Williams, P-1.
[14] JSI noted in its Responses to OFCCP's exceptions that it
ceased its ship repair operations in August 1992 and no longer
has any contracts with the federal government and does not intend
to solicit government contracts in the future. JSI's Responses
to OFCCP's Exceptions at p. 3 n.2. Whether JSI continues to be a
government contractor or subcontractor will be an issue for the
ALJ to determine on remand. However, even if JSI now holds no
government contracts or subcontracts, it still has an obligation
under the equal opportunity clause and the regulations to provide
remedies for the affected class found in this case. 41 C.F.R.
§ 60-1.3 (1994) ("Prime contractor means any person
holding a contract and, for purposes of Subpart B of this part
[General Enforcement; Compliance Review and Complaint Procedure],
any person who has held a contract subject to the [Executive]
[O]rder."); OFCCP v. Priester Construction Co., 78-OFCCP-
11, Sec'y. Dec. Feb 22, 1983, slip op. at 63.
