June 1, 2016

Gordon Food Service Settles with OFCCP for $1.85 Million

On May 11, OFCCP announced that Gordon Food Service (GFS) settled with the agency, agreeing to pay $1.85 million to female applicants to resolve allegations of hiring discrimination for laborer positions at four separate locations:  two in Michigan, one in Kentucky, and one in Wisconsin. Specifically, there were 926 affected female applicants across locations, and GFS agreed to hire 37 of those applicants as positions become available.

The allegations centered on findings of adverse impact at the job group level and referenced a strength test, lacking validation in accordance with UGESP, as the source of the adverse impact. OFCCP evaluated three separate time periods across the four facilities, the shortest being approximately 19 months of data at two facilities (Kenosha, Wisconsin and Grand Rapids, Michigan) and the longest being approximately 23 months of data at the Kentucky facility.

Each conciliation agreement indicated that the strength test adversely impacted female applicants and was not validated in accordance with the Uniform Guidelines on Employee Selection Procedures (UGESP). The conciliation agreements mentioned that an interim validation study was conducted, but it failed to include “an investigation of suitable alternative selection procedures and suitable alternative methods of using the selection procedures which have as little adverse impact as possible.” In other words, the agency determined that the interim validation study did not provide any or enough information about potential reasonable alternatives to the strength test. GFS has agreed to cease use of the strength test until it has been validated in accordance with UGESP or a comparable UGESP validated assessment is identified.

This case serves as a reminder to research the underlying cause of statistical disparities. Per UGESP, this research should take the form of breaking down the hiring process into the steps or points where decisions are made. If a step is identified to be driving the disparity, sufficient validation evidence is then required to support the continued use of that step, in spite of the statistical disparity. Personnel psychology research literature generally reports that tests of physical strength and/or endurance are likely to produce adverse impact against females. As such, federal contractors using these types of assessments should seriously consider formal validation research in accordance with UGESP.

By Kristen Pryor, Consultant, and Jeff Henderson, Associate Consultant, DCI Consulting Group

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