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Tyson Foods sex bias case signals tough DOL stance

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WASHINGTON—A settlement of sex discrimination charges against units of Tyson Foods Inc. reflects a more aggressive stance by the U.S. Department of Labor's Office of Federal Contract Compliance Programs, some observers say.

Tyson said the charges were based on statistical analyses, not complaints.

Under two consent orders, Dakota Dunes, S.D.-based Tyson Fresh Meats Inc. will pay $2.25 million in back wages, interest and benefits to more than 1,650 female job applicants who were rejected for employment at four facilities in Joslin, Ill.; West Point, Neb.; and Waterloo and Denison, Iowa.

The DOL said that during scheduled compliance reviews of the four facilities, the OFCCP determined that Tyson Fresh Meats violated an executive order that prohibits federal contractors from discriminating on the basis of sex.

Under terms of the consent decrees, Tyson also agreed to offer jobs to at least 200 of the affected women as positions become available in the Illinois and Iowa locations; the Nebraska facility closed in 2006. Tyson also will “undertake extensive self-monitoring and corrective measures to ensure that its employment practices fully comply with the law,” the DOL said in its statement.

The federal agency said the consent decrees resolve the latest in a string of cases brought by OFCCP against Tyson Foods subsidiaries. In 2008, a law department administrative law judge ruled that Green Bay, Wis.-based TNT Crust had systemically discriminated against Latino applicants in its entry-level position hiring.

Last year, the OFCCP settled a case against Vernon, Texas-based Tyson Refrigerated Processed Meats after the agency said it found evidence the company had discriminated against 157 African-American and 375 Caucasian job applicants, who allegedly were less likely to be hired than Hispanic applicants.

“At $2.25 million, the Tyson settlement is one of the largest in the history of OFCCP.” Violations of federal nondiscrimination laws “are, unfortunately, not rare. But such extensive serial violations are much less common,” the OFCCP said in a statement.

Responding to a request for comment on the latest litigation, Tyson said in a statement that its officials have denied the claims, stating that there were legitimate, nondiscriminatory reasons for not hiring the applicants.

“We believe this was really about documentation, not discrimination,” Ken Kimbro, Tyson Foods senior vp and chief human resources officer, said in a statement. “The OFCCP's charges were strictly based on a statistical analysis of job applications at the plant, not on complaints by any applicants, the types of jobs involved or the applicants' qualifications.”

“We remain committed to treating all job applicants fairly,” he said. “Tyson has a very diverse workforce and strict policies prohibiting discrimination in the workplace. We also communicate our position against discrimination through our core values and team member bill of rights.

“It's our policy to provide a work environment free of unlawful harassment and discrimination,” Mr. Kimbro said. “This position is also reinforced by the company's code of conduct, which all our people are required to follow.”

Tyson also said that since the OFCCP audits, it has put procedures in place to ensure it retains documentation to support its hiring decisions. The company said it also routinely audits its hiring practices to ensure there is not any disparity among female or minority job applicants.

Tyson said the Joslin and Waterloo plants each employ 2,400 people, while the Denison plant has a staff of 380. During the audit periods covered by the OFCCP reviews, minorities represented 52% of the combined workforce at the four plants, while women represented 31%, according to Tyson.

Tyson also said that nearly 400 of the 1,650 female applicants who did not initially receive Tyson job offers were hired subsequently by the company before the OFCCP complaints were filed, and the OFCCP is giving the company credit for these hires.

Patrick Nooren, a partner with Folsom, Calif.-based Biddle Consulting Group Inc., said the OFCCP has been “incredibly aggressive lately.” OFCCP Director Patricia A. Shiu has “made it very clear” that the OFCCP is “first and foremost an enforcement agency,” he said.

The OFCCP's involvement with the DOL's solicitor general's office is “stronger in the current administration than it's ever been in the past,” said Debra Milstein Gardner, president of Owings Mills, Md.-based Workplace Dynamics L.L.P. Previously, the agency may have settled sooner or the OFCCP may not have pursued companies legally, she said.

Neil Dickinson, managing partner at Mount Pleasant, N.C.-based consultant HudsonMann Inc., said it is important that firms have good documentation to support their employment decisions. Many times, the absence of documentation leads to “an assumption of guilt,” he said.