JPMorgan Pay Bias Case Tackles Scope of DOL Enforcement

JPMorgan Chase & Co. lost its most recent bid to nix Labor Department claims that the financial giant discriminates against women in pay, in a case that some attorneys say exemplifies hardships that federal contractors face in defending lengthy agency enforcement actions.

The company argued that the DOL’s allegations of unfair pay that occurred after 2012 should be dismissed because employer liability is limited to the two years before a compliance audit is conducted, among other reasons. The DOL’s Office of Federal Contract Compliance Programs initially audited JPMorgan in 2012, and sued the company in 2017 for allegedly underpaying at least 93 women in different job titles.

DOL Administrative Law Judge Jerry DeMaio declined to dismiss the post-2012 claims, saying the agency has “some latitude to conduct discovery and offer evidence from the time period following the initiation of the review” to determine if the alleged bias has been resolved. But he added in his June 24 ruling that he was “uneasy” with the agency claiming that bias “continues to the present,” noting that OFCCP doesn’t have “carte blanche to seek discovery and prosecute its case through an undetermined end date.”

Former agency officials and attorneys who represent federal contractors said this case is a prime example of why OFCCP litigation, which can be drawn out over many years, poses challenges for federal contractors.

The “tremendous lapse in time” between when the agency audited JPMorgan for anti-discrimination compliance, when it sued the company, and the judge’s latest order, shows how time-consuming DOL enforcement “creates substantive and procedural hardships for government contractors,” said Alissa Horvitz, an attorney with Roffman Horvitz, who represents employers in OFCCP enforcement matters.

“Now in 2020, JPMorgan Chase has learned that it will have to supply documents and discovery beyond the date when OFCCP commenced its compliance review,” Horvitz said. “The ALJ’s procedural conclusion that the case was not resolvable at this early point in the briefings means that the parties will continue to debate the temporal scope of an OFCCP compliance review, and all the while, any potential victims of alleged discrimination are without remedies.”

Attorney John Fox, who also defends employers and was a former OFCCP official during the Reagan administration, said he’s consistently seen significant amounts of elapsed time during enforcement proceedings.

“Its just a really poor way to do business, even if it’s not an unlawful way to do business,” Fox said.

The judge’s ruling moves the lawsuit closer to an administrative trial between JPMorgan and an agency recently known for its high-profile and contentious pay discrimination lawsuits. The OFCCP is locked in ongoing litigation with Oracle Corp., and wrestled with Alphabet Inc.'s Google over access to employee pay data.

Representatives for JPMorgan and the Labor Department declined to comment.

The case is OFCCP v. JPMorgan Chase & Co., Dep’t of Labor A.L.J., No. 2017-OFC-00007, summary judgment denied 6/24/20.