OFCCP accepts complaints alleging discrimination based on any of the protected bases listed in Executive Order 11246,301 and it may refer or jointly investigate some of the complaints with the EEOC. The Executive Order 11246 regulation at 41 CFR 60-1.24(a) states that OFCCP may refer appropriate complaints to the EEOC for processing under Title VII, as amended. In keeping with a MOU302 between OFCCP and the EEOC, OFCCP will generally refer individual complaints alleging employment discrimination based on race, color, religion, sex or national origin to the EEOC. COs should refer complaints alleging harassment or retaliation to EEOC, unless the basis for the complaint is sexual orientation or gender identity, or the harassment or retaliation is related to a prior OFCCP complaint or investigation.
Generally, OFCCP retains individual complaints against federal contractors alleging employment discrimination based on sexual orientation or gender identity,303 and individual complaints alleging discrimination because applicants or employees have inquired about, discussed or disclosed their compensation or that of others. OFCCP may also retain complaints based on a violation of Executive Order 11246 to avoid duplication and ensure effective law enforcement (e.g., when OFCCP is entering a CA with the same contractor to remedy violations found during a compliance evaluation). Finally, OFCCP retains complaints alleging class or systemic discrimination on any basis protected by Executive Order 11246.
Whenever a complainant files a complaint of employment discrimination with OFCCP under Executive Order 11246 and the allegations in the complaint also fall within the jurisdiction of Title VII, the Title VII portion of the complaint is deemed dual filed with the EEOC. OFCCP acts as EEOC’s agent for the purposes of receiving, investigating and processing the Title VII component of dual filed complaints. OFCCP processes dual filed complaints in a manner consistent with Title VII principles of liability and relief.
301. If a complainant does not allege discrimination, but alleges other violations of EO 11246, such as affirmative action violations, OFCCP may conduct a compliance evaluation using one or any combination of its investigative procedures, such as a focused review. See 41 CFR 60-1.20.
302. The MOU between OFCCP and the EEOC was first entered into on May 20. 1970, it was revised in 1974, and revised again in 1981 as published at 46 FR 7435 (Jan. 23, 1981). The 1981 MOU was revised in 1999 as published at 64 FR.17664 (Apr. 12, 1999), and most recently updated in November 2011 as published at 76 FR 71029 (Nov. 7, 2011).
303. See Directive 2015-01, “Handling Individual and Systemic Sexual Orientation and Gender Identity Discrimination Complaints,” stating that OFCCP analyzes these complaints “to determine whether the alleged discrimination occurred on the basis of sexual orientation or gender identity, as well as on the basis of sex, and will coordinate with, and refer complaints to, EEOC on a case-by-case basis.”