6B Bases of Complaint Allegations
Employees and applicants may file complaints with OFCCP under any of the laws OFCCP enforces, including complaints alleging discrimination or alleging other violations of OFCCP’s laws and regulations. OFCCP processes and investigates some complaints in coordination with the EEOC.
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.”
Like Executive Order 11246, complainants filing under Section 503 or VEVRAA may allege employment discrimination, or other violations of the law or its implementing regulations.304 For example, a complainant could allege affirmative action or recordkeeping violations, as well as discrimination under Section 503 or VEVRAA.
a. Complaints filed under VEVRAA. For VEVRAA complaints, OFCCP retains and investigates all complaints over which OFCCP establishes jurisdiction, regardless of whether they are individual or class complaints. Since none of the laws enforced by EEOC include veteran status as a protected basis, VEVRAA complaints are not dual filed with EEOC. However, if a VEVRAA complaint also contains allegations of age discrimination, OFCCP will bifurcate the complaint, retaining the VEVRAA allegations for investigation, and referring the other allegations to EEOC. In another example, if a VEVRAA complaint also contains allegations of individual discrimination based on race, color, religion, sex or national origin, OFCCP could decide to bifurcate the complaint, retaining the VEVRAA allegations for investigation, and referring the other allegations to EEOC. OFCCP could also opt to retain all the allegations in the complaint for investigation. Finally, OFCCP generally retains and does not bifurcate VEVRAA complaints that also contain allegations of disability discrimination, so long as the disability allegations fall within the jurisdiction of Section 503.
b. Complaints filed under Section 503. In contrast to VEVRAA complaints, complaints filed under Section 503 often also fall within EEOC’s jurisdiction under Title I of the ADA, as amended and are, thus, dual filed. OFCCP generally retains and investigates all Section 503 complaints over which OFCCP establishes jurisdiction, regardless of whether they are individual or class complaints. OFCCP acts as EEOC’s agent when receiving, investigating and processing complaints that are dual filed under the ADA.
However, OFCCP may choose to bifurcate complaints that allege discrimination based on disability in addition to individual discrimination based on race, color, religion, sex, national origin or age. If the decision is to bifurcate the allegations, OFCCP retains and investigates any disability discrimination and Section 503 affirmative action allegations while referring allegations of individual discrimination based on race, color, religion, sex, national origin or age to EEOC. If the complaint alleges Section 503 affirmative action violations in addition to systemic discrimination based on race, color, religion, sex or national origin, OFCCP would retain the entire complaint and not bifurcate it.
For Section 503 complaints, OFCCP uses legal standards for determining liability, as well as damages and remedies, consistent with those applied under the ADA in determining whether a contractor committed an unlawful employment practice. OFCCP also follows ADA principles when investigating Section 503 discrimination allegations that are not dual filed.
304. See 41 CFR 60-300.61(a) and 60-741.61(b).
Individuals or groups may also file complaints alleging retaliation or interference under any of the laws enforced by OFCCP. OFCCP’s anti-retaliation regulations prohibit intimidation, threats, coercion, harassment and discrimination against any individual because he or she has engaged in “protected activity.” An individual has engaged in protected activity when he or she has:
- Filed a complaint;
- Assisted or participated in any activity related to the administration of any federal, state or local law requiring equal opportunity (e.g., provided information to a CO conducting a compliance evaluation);
- Opposed practices made unlawful by equal opportunity laws (whether those practices were aimed at the person filing the complaint or at another person); or
- Exercised any other rights under OFCCP’s laws, or any other federal, state or local law requiring equal opportunity.
Allegations of retaliation may be included in the same complaint with allegations of discrimination or may be filed separately. Retaliation complaints that implicate a Title VII or ADA basis are considered dual filed with EEOC. OFCCP will refer dual filed individual complaints of retaliation to EEOC unless:
- The complainant’s protected activity was related to the complainant’s participation in the administration of an OFCCP law (e.g., participation in an OFCCP compliance evaluation or complaint investigation); or
- The complainant alleges retaliation because of a complaint previously filed and investigated by OFCCP.
This is a specific example of when OFCCP would retain a retaliation complaint that is related to a discrimination complaint: The complainant alleges discrimination based on gender identity and retaliation. If OFCCP retains the underlying discrimination component of the complaint, it would also retain the retaliation portion of the complaint.
OFCCP also investigates complaints of noncompliance with Executive Order 13496, which requires contractors to provide notice to their employees of their rights under the NLRA, and include a similar notice in subcontracts and purchase orders. OFCCP and the OLMS share enforcement authority for Executive Order 13496.305
305. See Directive 2010-01, “Verification Procedures under E.O. 13496: Notification of Employee Rights under Federal Labor Laws.” This directive explains the investigation procedures for complaints alleging noncompliance with Executive Order 13496.