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exercises these important duties.
There are few cases addressing this Non-Delegable Duty doctrine in the context of recruitment and most of these have involved public employers. Whirlpool Corporation was recently involved in an OFCCP claim involving an employment test that disproportionately discriminated against Blacks. The test was administered by a county agency on behalf of Whirlpool. While not admitting any liability, in 2005 Whirlpool paid $850,000 and agreed to offer positions to 48 rejected applicants to settle the claim.
In light of this potential liability, some contractors are entering into indemnity agreements and provisions to track applicant race and gender with their recruitment firms.
At this point in time, there may not be enough case law for the OFCCP to successfully take the issue of Non-Delegable Duty doctrine into litigation, but it appears they are at least beginning to attempt to use the theory to pressure contractors into settlements.
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