In a previous article, we wrote about a May 2012 decision by the federal Administrative Review Board (ARB) holding that federal contractors have an ongoing duty to comply with OFCCP data and document requests.

Specifically, the ARB ruled that the OFCCP was empowered to pursue “a concern about statistically significant disparity in hiring women” and obtain additional applicant and hiring data since the agency’s 2006-2007 audit began (Frito-Lay Inc. v. Solis).

The ARB ultimately found that the request for 2008 and 2009 data was “narrow and motivated by the objective deficiency discovered during the 2007 desk audit,” and that as a result, the “request for 2 subsequent years [of data] is consistent with a proper disparate impact analysis.”

In reaction to ARB's decision, Frito-Lay refused to supply the additional data and documents and, instead, appealed ARB’s ruling in federal district court in the Northern District of Texas. The appeal claims (in part) that ARB’s decision is “arbitrary and capricious” and an abuse of the Board’s discretion, that the OFCCP is acting in violation of its own Federal Contract Compliance Manual (FCCM), and that the request for additional data was a violation of the Fourth Amendment of the Constitution, barring unreasonable searches and seizures (Frito-Lay Inc. v. Solis, N.D. Tex., No. 12-01747, complaint filed 6/5/12).

Frito-Lay requests the federal district court to prohibit OFCCP’s data request as unconstitutional and in violation of the FCCM, to award the company costs and attorneys’ fees, and to time-bar any alleged discriminatory action by the company for all time periods (2005 to 2007 and 2008 to 2009).

We will continue to follow this case and report any updates.