US Labor Department's in-house anti-bias cases unconstitutional, lawsuit claims
10/09/2024 17:32
By Daniel Wiessner
Sept 10 (Reuters) - Janitorial services company ABM
Industry Groups ABM.N has sued the U.S. Department of Labor,
claiming the agency's administrative proceedings for enforcing
anti-discrimination requirements for federal contractors are
unconstitutional.
ABM in a complaint filed in Houston federal court on Monday
said the in-house proceedings violate its constitutional right
to a jury trial and that administrative judges with DOL's Office
of Federal Contract Compliance Programs are improperly insulated
from removal by the U.S. president.
OFCCP enforces executive orders barring federal contractors
from discriminating based on race, sex, and other traits and
retaliating against workers who engage in protected activity.
ABM is seeking to block a Labor Department case that began
in 2021 accusing the company of favoring Hispanic job applicants
over white or Black applicants, which it has denied.
The lawsuit is at least the third filed since last month
claiming that Labor Department proceedings violate the U.S.
Constitution in light of a June U.S. Supreme Court ruling in
Jarkesy v. U.S. Securities and Exchange Commission.
The justices in Jarkesy said the SEC's practice of imposing
civil penalties in administrative financial fraud cases violates
the guarantee of a jury trial in the Seventh Amendment of the
U.S. Constitution.
Comcast and Perdue Farms filed lawsuits last month claiming
that administrative whistleblower cases heard by DOL judges are
unconstitutional.
The Labor Department did not immediately respond to a
request for comment on Tuesday.
ABM's lawsuit alleges that OFCCP administrative judges wield
executive power, and so the Constitution requires that they be
held accountable to the president. Currently the judges can only
be removed for cause after a federal civil service board that is
not directly controlled by the White House recommends it.
In the Jarkesy case, the New Orleans-based 5th U.S. Circuit
Court of Appeals in 2022 said SEC administrative judges were
improperly shielded from removal. The Supreme Court did not
address that issue, but affirmed the 5th Circuit's separate
holding regarding civil penalties.
The case is ABM Industry Groups v. U.S. Department of Labor,
U.S. District Court for the Southern District of Texas, No.
4:24-cv-03353.
For ABM: Catherine Eschbach and Michael Kenneally of Morgan
Lewis & Bockius; John Fox, Alexa Morgan, and Jay Wang of Fox
Wang & Morgan
For DOL: Not available
Read more:
US Supreme Court faults SEC's use of in-house judges in
latest curbs on agency powers
SEC in-house judges violate right to jury trial, appeals
court rules
(Reporting by Daniel Wiessner in Albany, New York)
((daniel.wiessner@thomsonreuters.com))