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AccuWeather Inc. faces a government lawsuit after the company allegedly didn’t allow the Labor Department to conduct an on-site investigation into a sexual orientation discrimination complaint, according to administrative filings obtained Feb. 21 by Bloomberg BNA ( OFCCP v. AccuWeather, Inc. , Dep’t of Labor A.L.J., No. 2017-OFC-11, complaint obtained through FOIA request 2/21/17 ).
The DOL’s Office of Federal Contract Compliance Programs has brought a number of these denial of access actions against government contractors that don’t provide requested data during audits or block on-site reviews—one of the most recent being against Google Inc. over pay data.
But the lawsuit against Accuweather is unique in that it stems from an investigation into a sexual orientation bias complaint, and not a routine compliance audit.
The OFCCP audits thousands of government contractor locations every year for compliance with affirmative action and nondiscrimination requirements. By comparison, it conducts about 100 to 200 investigations of employee complaints annually.
“I am not aware of any other examples of a government contractor denying OFCCP access to conduct a complaint investigation arising out of allegations of sexual orientation discrimination,” Alissa Horvitz, an attorney with Roffman Horvitz in McLean, Va., told Bloomberg BNA. Horvitz isn’t involved in the Accuweather case but has more than 20 years of experience practicing OFCCP law.
“It is possible that this could be the first one,” said Horvitz, who previously served as co-chairman of Littler Mendelson’s OFCCP practice group.
No other OFCCP administrative complaints in recent years appear to include a similar fact pattern, according to a Bloomberg BNA review of administrative actions filed by the agency since fiscal year 2015. That’s when the agency issued final rules prohibiting contractors from discriminating against applicants and employees based on sexual orientation and gender identity.
President Donald Trump late last month upheld the Obama-era executive order that served as the basis for those rules.
In the case against AccuWeather, a former employee submitted a complaint to the OFCCP claiming that a vice president called her derogatory names and interfered with her work because of her sexual orientation. She further alleged she was ultimately fired because of her orientation.
The OFCCP attempted to schedule an on-site complaint investigation. AccuWeather denied the agency access, arguing that it wasn’t a covered federal contractor, and the agency brought the lawsuit Jan. 23.
Information from the government’s Federal Procurement Data System shows that AccuWeather has contracts with the Defense Logistics Agency and the Department of the Navy totaling more than $85,000, the OFCCP said in its filing.
Companies need only have government contracts worth more than $10,000 to be covered by the nondiscrimination provisions enforced by the OFCCP.
If an administrative judge or board rules against AccuWeather, and the company doesn’t provide access to the OFCCP, the agency will request cancellation of the company’s federal contracts and an order banning it from future federal contracting.
The likelihood of a company losing its federal contracts is slim, however, according to a recent Bloomberg BNA analysis. Only six contracting bans stemming from OFCCP actions are currently active.
An Accuweather spokesman told Bloomberg BNA Feb. 22 that the company denies the charges but has no other comment on pending litigation.
Labor Department representatives didn’t immediately respond to Bloomberg BNA’s Feb. 22 request for comment.
To contact the reporter on this story: Jay-Anne B. Casuga in Washington at email@example.com
The complaint is available at http://src.bna.com/mn5.
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
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