The CO will assess the specific allegation accepted by OFCCP for investigation to determine the framework appropriate for investigating and resolving each allegation. This assessment may require different approaches for each allegation. If there are multiple allegations, the CO will need to determine which framework is appropriate to use in investigating, analyzing and resolving each specific allegation. The CO should develop the Investigative Plan, including interview questions, to reflect each specific allegation and the approach to investigating and resolving it.
When assessing the complaint allegations under any of OFCCP’s laws, COs should determine whether the complainant or complainants are being treated less favorably because of a protected basis (i.e., disparate treatment), or whether they are being adversely impacted by a facially neutral policy or procedure that is unjustified (i.e., disparate impact).
a. Disparate Treatment. Disparate treatment discrimination occurs when a contractor treats individuals or groups less favorably because of a protected basis. It is necessary to prove intent to discriminate under this theory of employment discrimination. Disparate treatment complaints may include allegations of less favorable treatment regarding employment actions such as hiring, terminations, promotions, compensation, application of selection criteria, family and pregnancy leave issues, or the denial of equal benefits and opportunities, or possibly both.
b. Disparate Impact. Disparate impact occurs when a facially neutral policy or procedure, including selection procedures, has an adverse impact on a particular group, and it is not justified by business necessity and its relationship to the job. For example, a complainant may allege discrimination because a contractor has strength, agility, or other physical requirements that exceed the actual requirements necessary to perform the job in question and the requirements negatively impact women substantially more than men. Similarly, a complainant may allege that a contractor’s use of criminal records to screen applicants negatively impacts applicants because of their race.324
The CO must also determine whether a complaint is individual or systemic in nature. Once these fundamental questions have been answered, the CO will delve into the particular types of allegations raised, such as termination, nonpromotion, demotion, harassment, denial of accommodation and retaliation. The fundamentals for some of these allegations, and more, are described below.
324. See OFCCP Directive 2013-02, “Complying with Nondiscrimination Provisions: Criminal Record Restrictions and Discrimination Based on Race and National Origin.”