The federal Office of Federal Contract Compliance Programs (OFCCP) recently filed an administrative complaint alleging hiring bias against men against AmeriQual, an Indiana company that manufactures portable meals for the military.  While the complaint may leave some scratching their heads, wondering how a company that hires more women than men can possibly be in legal trouble, it is an excellent reminder that discrimination need not adversely impact a “minority” class in order to be unlawful.  Discrimination based on gender, national origin or race provides protections for all genders, national origins and races, not just those in the historic minority.  Claims for “reverse” discrimination may be brought under any statute prohibiting discrimination on the basis of a protected characteristic.

An understanding of this fact is particularly true for government contractors who have affirmative action obligations and are subject to OFCCP scrutiny.  The OFCCP has demonstrated in recent years that it will closely examine a contractor’s hiring data to make sure that nobody is a victim of discrimination, regardless of whether such groups are considered traditional victims of discrimination.  Indeed, this firm has handled OFCCP audits where OFCCP claimed discrimination when historically disfavored groups, such as blacks or Hispanics, were favored over whites.  OFCCP is particularly sensitive to the type of systemic discrimination allegedly occurring at AmeriQual, where women were “steered” toward lighter-duty positions, where most of the hiring activity occurred, while men were “steered” toward more labor-intensive jobs.  

Employers can protect themselves by proactively monitoring their hiring practices, to ensure that their hiring practices do not adversely impact any particular protected class, even groups that may not be considered traditional victims of discrimination.