7C10 Calculating Victim-Specific Remedies

a. Approach. The victim-specific model, which provides make-whole relief for identified victims of the discrimination, is used infrequently by OFCCP in systemic discrimination cases. Individualized relief should be sought when it is feasible to identify individual victims, and to calculate their personal losses, interim earnings, mitigation efforts, tax implications and other relevant factors.

b. Remedy Phases. There are two stages to the remedy phase: (1) identifying the specific class members entitled to relief and (2) determining the exact remedy to which each victim is entitled.

1. Identifying Victims. The first step in the process is to identify potential victims of the discriminatory policy or practice. In other words, the CO must define the group or class of individuals for whom he or she is seeking relief. Examples include: all blacks who failed an invalidated pass-fail test; all Hispanics who were eligible for supervisory positions, but were not promoted; or all women who were denied reinstatement following maternity leave. In defining the group at this point, the CO should at least refer to what he or she has determined to be the minimum objective qualifications the contractor actually imposed. The CO should not evaluate comparative (“relative”) qualifications at the remedy phase as the class consists of all who met the minimum objective qualifications.

2. Computing Lost Earnings. The CO should gather information to compute each individual’s specific losses. The type of information gathered depends on the nature of the violation, e.g., failure to hire; wrongful termination; failure to promote, or discriminatory compensation. The information will include, but is not limited to, wages, interim raises, promotion potential, overtime and shift differentials, and any other compensation such as bonuses, stock options and benefits. The CO should also gather information supporting appropriate nonmonetary relief for the victims that may include such relief as priority promotions, and training, counseling and EEO counseling for supervisors.

c. Contractor’s Response. The CO must inform the contractor of the name of each individual for whom the CO is seeking individualized relief, and the amount of back pay and other forms of make-whole relief necessary to fully remedy each individual. All identified individuals are entitled to relief unless the contractor provides a reason that the individual is not a victim, such as the individual applied outside of the scope of the period at issue. Individuals who are not qualified should have been eliminated from the class at the liability phase. Each person the contractor cannot eliminate from the group of individuals entitled to relief is considered to be an actual, identified victim of discrimination. Even if the contractor cannot eliminate an individual from the group entitled to relief, it may raise defenses to reduce an individual’s claim to relief.

d. Individual Remedies. The CO must then determine make-whole relief for each individual victim of discrimination. The CO should tailor the precise remedy to the situation of each victim. The CO should be sure to consider all the different types of harm that the victim has suffered. For example, the passage of time since the violation may mean that victims are less interested in reinstatement or hiring because they have built new careers. On the other hand, if very little time has passed since the violation occurred and monetary damages are small, reinstatement or preferential hiring may be a viable remedy.