UNITED STATES
DEPARTMENT OF LABOR

OFCCP v. Keebler Co., ARB No. 97-127, ALJ No. 1987-OFC-20 (ARB July 24, 2000)

U.S. Department of Labor

Administrative Review Board 200 Constitution Avenue, N.W. Washington, D.C. 20210

ARB CASE NO. 97-127
ALJ CASE NO. 87-OFC-20
DATE: July 24, 2000

In the Matter of:

OFFICE OF FEDERAL CONTRACT
COMPLIANCE PROGRAMS,
U. S. DEPARTMENT OF LABOR,
    PLAINTIFF,

    v.

KEEBLER COMPANY,
    DEFENDANT.

BEFORE: THE ADMINISTRATIVE REVIEW BOARD

Appearances:

For the Plaintiff:
    L. Denise Galambos, Esq., Jessica Glick, Esq., Pamela A. Gibbs, Esq.,
    Richard L. Gilman, Esq., Diane A. Heim, Esq., Willie M. Alexander, Esq.,
    James D. Henry, Esq., Henry L. Solano, Esq.,
       U. S. Department of Labor, Washington, D.C.

For the Defendant:
    Edward Katz, Esq., Rosemary C. Lumpkins, Esq.,
       Constange, Brooks & Smith, Atlanta, Georgia

   We have before us Office of Federal Contract Compliance Program (OFCCP), Plaintiff's Motion to Alter or Amend the Final Decision and Order of December 21, 1999 in the above-captioned case. We construe the motion as a motion for clarification.

   OFCCP asserts that "[c]ases applying the OFCCP hearing rules have long held that the requirements of 41 C.F.R. §60-741.6(c) are appropriately construed to shift to the contractor the burden of proving that those of its physical and mental qualification standards that disproportionately eliminate qualified individuals with disabilities are justified by business necessity." We agree with this statement, and see nothing in the Administrative Procedure Act or in our final decision that conflicts with that statement or requires further clarification. In any event, §60-741.6(c) and the business necessity defense are not at issue, because, as we held in our decision, OFCCP failed to prove that DeAngelis was a qualified handicapped individual.

   SO ORDERED.

      PAUL GREENBERG
      Chair

      E. COOPER BROWN
      Member

      CYNTHIA L. ATTWOOD
      Member