This section generally discusses the types of complaint allegations that OFCCP may receive and the investigative approach to take. The CO must first determine the investigative framework (e.g., legal theory of discrimination to apply, data to obtain, interviews to conduct, records to review, analyses to perform) to use in addressing the complaint allegations in order to develop the Investigative Plan and interview questions, which are discussed in FCCM 6F – Investigative Plan.
6E00 Approach to Investigating Complaint Allegations
In conducting a complaint investigation, the CO is a neutral fact finder. A complaint is essentially a statement of allegations of discrimination or other violations. The CO conducts an investigation to determine if there is sufficient pertinent evidence to support that a violation occurred or not, in light of the allegations in the complaint. In preparing for and conducting the investigation, the CO must exercise objectivity and thoroughness. The CO must conduct each investigation in an atmosphere of open mindedness and fairness to both parties. The CO should display professional conduct at all times.
a. Relationship to Compliance Evaluations. The CO may complete a complaint investigation with or without a compliance evaluation. If, upon evaluating the complaint allegations, or at any time during the investigation of the complaint, the CO obtains information that class, systemic or other issues may be more appropriately addressed by conducting a compliance evaluation (full review, focused review or compliance check), the CO should discuss this issue with his or her supervisor, and obtain national office review and approval prior to expanding the investigation into a compliance evaluation.
b. Investigative Priority. The CO should act expeditiously on any complaint that alleges immediate and irreparable harm. For example, a complaint alleging the threat of termination in retaliation for filing a complaint with OFCCP (or for assisting in an OFCCP compliance evaluation, complaint investigation or enforcement action) requires immediate action.
6E01 Investigative Framework
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.”
6E02 Systemic Allegations
Under the three nondiscrimination laws OFCCP enforces, a complaint may raise allegations of systemic discrimination, that is, discrimination that affects groups or classes of individuals. The complaint may state these allegations in terms of disparate treatment (a pattern or practice of discrimination that is intentional) or disparate impact (a facially neutral policy or practice that has an adverse impact on a protected group, and is not justified by business necessity and job-relatedness). Also, systemic discrimination may be alleged by an individual or by a class of complainants. COs should note that the allegations may warrant examination using both the disparate treatment and the disparate impact frameworks.
Harassment is a form of discrimination that may take a variety of forms, including offensive remarks about an individual, derogatory speech or actions that are directed at a specific individual or group of individuals, and other unwelcome communication, action or physical conduct. Harassment based on a protected characteristic is illegal when it is so frequent or severe that it creates a hostile or offensive work environment, or when it results in an adverse employment decision (such as constructive discharge or demotion of the victim of harassment). The harasser may be the victim’s supervisor, a supervisor in another area, a co-worker or a third party (such as a client or customer).
Sexual harassment is a type of harassment on the basis of sex prohibited by Executive Order 11246. Unwelcome sexual advances, requests for sexual favors, offensive remarks about a person’s sex, and other verbal or physical conduct of a sexual nature constitute sexual harassment when:
- Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment;
- Submission or rejection of such conduct by an individual is used as the basis for employment decisions against the individual; or
- Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment.325
325. See 41 CFR 60-20.8. Harassment based on sex also includes harassment based on pregnancy, childbirth or related medical conditions; and harassment that is not sexual in nature but that is because of sex or sex-based stereotypes.
6E04 Retaliation and Interference
Retaliation occurs when a contractor takes an adverse action against an individual because he or she engaged in protected activity, e.g., filing a complaint of discrimination or providing information to a CO during a compliance evaluation. Adverse action includes employment actions such as termination, demotion or failure to hire. Other types of actions affecting employment may also be adverse actions. These include threats, including threats to take an adverse action; unjustified negative evaluations or references; or actions such as physical assault, or unfounded civil or criminal charges that are likely to deter a reasonable person from pursuing their rights. Adverse actions do not include petty slights and annoyances, such as stray negative comments that are justified by poor performance or history, or “snubbing” a colleague.
A complaint of discrimination may contain an allegation that retaliation or interference occurred, or the allegation may arise during the course of an investigation, or even after the investigation has concluded. The complainant may be an applicant, employee, former employee or person closely associated with an individual who filed a discrimination complaint, opposed an act of discrimination or participated in a protected activity. If a complainant makes an allegation of retaliation in addition to another allegation of discrimination, a finding that the underlying discrimination did not occur will not defeat the allegation of retaliation. The CO must investigate any allegation of retaliation or interference and make an independent finding as to whether sufficient evidence supports it.
OFCCP applies the same concepts, standards and analyses as EEOC when assessing possible retaliation.326 Although Title VII’s retaliation provision does not expressly prohibit intimidation, harassment and interference as OFCCP’s regulations do, EEOC has interpreted retaliation to include these concepts. The ADA and its implementing regulations expressly prohibit such conduct.
326. Appendix A-9 – Retaliation and Interference: Complaint Processing Outline and Checklist.
6E05 Allegations Specific to Executive Order 11246
Executive Order 11246 prohibits employment discrimination on the basis of race, color, religion, sex, sexual orientation, gender identity or national origin. In addition, Executive Order 11246 prohibits employment discrimination against applicants or employees because they inquired about, discussed or disclosed their compensation or that of others, subject to certain limitations. When OFCCP finds contract coverage, the regional office assigns Executive Order 11246 complaints involving class or systemic issues to a field office for investigation. The regional office also assigns individual complaints alleging discrimination based on sexual orientation or gender identity, and individual complaints alleging discrimination for asking about, discussing or disclosing pay to the field for investigation.327 Executive Order 11246 complaints may include individual disparate treatment claims (e.g., a claim that an individual was unlawfully terminated, demoted, not hired, not promoted, harassed), allegations of systemic discrimination, or denial of accommodation for religious observances or practices. The regional office will generally refer individual complaints alleging employment discrimination based on race, color, religion, sex or national origin to EEOC pursuant to the EEOC and OFCCP MOU.
327. See FCCM 6B.
6E06 Allegations Specific to Disability Complaints
Section 503 prohibits employment discrimination on the basis of disability. Complaints may include a variety of allegations that require determination of the legal and analytical approaches to be used in conducting the complaint investigation. Allegations may include individual disparate treatment claims (e.g., a claim that an individual was unlawfully terminated, demoted, not hired, not promoted, harassed); issues of systemic discrimination; denial of reasonable accommodation; and/or the use of medical inquiries, examinations, and mental and physical job qualification standards. In examining complaint allegations filed by a disabled veteran, the CO should determine if the complaint also raises issues under VEVRAA.328 Complainants filing under Section 503 or VEVRAA based on disability may also allege any violation of the law or its implementing regulation unrelated to discrimination.329 Disability complaints may be “dual filed” under both Section 503 and the ADA.330
a. Not Making Reasonable Accommodation. An issue unique to disability complaints (and complaints from disabled veterans) relates to the provision of reasonable accommodation. Section 503 requires that a contractor provide reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability unless the contractor can demonstrate that doing so would impose an undue hardship on the operation of the business. As a matter of affirmative action, if an employee with a known disability is having significant difficulty performing his or her job, and it is reasonable to conclude that the performance problem may be related to the disability, the contractor must confidentially notify the employee of the problem, and inquire whether the problem is related to the disability and, if so, whether the employee needs a reasonable accommodation. A reasonable accommodation can include changes in the work environment, work processes or procedures so that a qualified individual with a disability or disabled veteran can apply for a job, perform the essential functions of a job or enjoy the benefits and privileges of employment. Reasonable accommodation may include a variety of modifications, including making the workplace accessible for an individual with mobility impairment and providing a reader or interpreter for someone who is blind or hearing impaired.
During the course of an investigation of a failure to accommodate claim, a contractor may assert that it did not provide a reasonable accommodation because significant difficulty or expense would have been incurred if it did so. When determining whether the contractor has proved that providing an accommodation would have caused it undue hardship, the CO will consider several factors:
1. The nature and net cost of the accommodation needed, taking into consideration the availability of tax credits and deductions, and/or outside funding.
2. The overall financial resources of the facility or facilities involved in the provision of the accommodation, the number of persons employed at such facility, and the effect on expenses and resources.
3. The overall financial resources of the contractor, the overall size of the contractor’s business with respect to the number of its employees, and the number, type and location of its facilities.
4. The type of operation or operations of the contractor, including the composition, structure and functions of the work force of the contractor; and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the contractor.
5. The impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility’s ability to conduct business.
If the CO concludes that the contractor has proved that a specific accommodation would impose an undue hardship, the CO must examine whether there are other potential accommodations available that would not have caused undue hardship.
b. Medical Examinations and Inquiries. Aside from offering applicants the opportunity to voluntarily self-disclose as a person with a disability, Section 503 generally prohibits contractors from asking applicants disability-related questions or questions that are likely to elicit information about a disability prior to a conditional offer of employment. The law also prohibits contractors from conducting or requiring medical examinations of applicants until after a conditional offer of employment is made. For example, job applications may not contain medical inquiries or questions about disability, including whether an applicant will need a reasonable accommodation if hired. Disability-related inquiries and medical examinations of employees, such as return-to-work exams and periodic physicals, are prohibited unless they are job-related and consistent with business necessity. A complainant may allege that a contractor asked an unlawful disability-related question or conducted an unlawful medical exam whether or not he or she has a disability. Exceptions to these general prohibitions are listed below.
1. Invitation to self-identify. Contractors are required to invite applicants and employees to self-identify as an individual with a disability for affirmative action purposes, following the regulatory procedures specified in 41 CFR 60-741.42.
2. Acceptable pre-employment inquiry. Contractors may make pre-employment inquiries into the ability of all applicants to perform job-related functions. They may also ask all applicants to describe or demonstrate how – with or without reasonable accommodation – they will be able to perform job-related functions. Other inquiries could also be made if they are for the purpose of taking affirmative action to recruit and hire individuals with disabilities.
3. Employment entrance examination. Contractors may require a medical examination and/or ask disability-related questions after making a conditional offer of employment to a job applicant and before the applicant begins his or her employment duties, as long as this is done for all entering employees in the same job.
Such entrance examinations or inquiries do not have to be job-related and consistent with business necessity. However, if a contractor uses the results of the exam or inquiries to screen out applicants on the basis of disability, the contractor must demonstrate:
- That the exclusionary criteria used are job-related and consistent with business necessity; and
- That the standard cannot be met nor performance of the essential job functions accomplished, even with reasonable accommodation.331
4. Examination of employees. Contractors may require medical examinations and/or disability-related inquiries of employees only if they are job-related and consistent with business necessity.
5. Voluntary medical examinations and inquiries. Contractors may conduct voluntary medical examinations and activities, including voluntary medical histories, which are part of an employee health program available to employees at the work site. These voluntary exams and activities do not have to be job-related and consistent with business necessity.
c. Confidentiality of Medical Information. A complainant may allege that the contractor breached confidentiality of medical information. Whenever a contractor inquires about an applicant’s or employee’s medical condition, or conducts a medical examination, the contractor must keep all resulting information in a separate, confidential medical file. The confidential medical records must be maintained separately from information on self-identification, which is kept in a data analysis file. For instance, if an employee voluntarily informs a contractor that he or she has a disability and requires a reasonable accommodation, this information must be kept confidential in the employee’s medical file, whereas the employee’s response to the invitation to self-identify (i.e., Form CC-305) would be maintained in the contractor’s data analysis file.
The contractor must keep the medical information confidential with three exceptions:
- Supervisors and managers may be informed regarding necessary restrictions on the work or duties of applicants and employees and necessary accommodations.
- First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment.
- Government officials engaged in enforcing OFCCP’s laws or the ADA shall be provided information relevant to an investigation or compliance evaluation on request.
d. Mental and Physical Job Qualification Standards. Contractors subject to Section 503 or VEVRAA may not use qualification standards, employment tests or other selection criteria that exclude an individual with a disability or class, or individuals with disabilities on the basis of disability, or individuals on the basis of their status as protected veterans, unless the selection criteria are job-related and consistent with business necessity. Selection criteria that concern only the performance of a marginal function would not be consistent with business necessity, and the contractor may not exclude a qualified individual with a disability simply because a disability prevents him or her from performing a marginal function. A selection criterion that concerns an essential function may not be used to exclude an individual with a disability if the individual could satisfy the criterion with a reasonable accommodation.332 In such a situation, the contractor should provide the reasonable accommodation needed unless it can show that doing so would impose an undue hardship.
It is also unlawful for contractors to use a qualification standard, employment test or other selection criterion based on an individual’s uncorrected vision unless the standard, test or criterion is shown to be job-related and consistent with business necessity. Individuals wishing to challenge a contractor’s use of a standard, test or criterion based on uncorrected vision do not need to have a disability. These individuals only need to show that they were adversely affected by the application of the standard, test or other criterion.333
e. Relationship or Association with an Individual with a Disability. A complainant may allege that the contractor discriminated against him or her because of the known disability of an individual with whom the complainant has a relationship or association. Anyone can raise this claim; a complainant making such an allegation need not have a disability or allege that the contractor regarded him or her as having a disability. Rather, the complainant need only allege that he or she was denied an EEO or benefit because of his or her relationship with one or more persons who have a disability. Most often, the individual with whom the complainant has a relationship will be a family member, such as a child, spouse or parent, but the law applies equally to business, social and other types of relationships.
328. COs should note that in offering employment or opportunities to individuals with disabilities and protected veterans, it is unlawful for a contractor to reduce the amount of compensation offered because of any income based upon a disability-related pension or other disability-related benefit the applicant or employee receives from another source.
329. See FCCM 6E07 – Allegations Specific to VEVRAA (Non-Disability) Complaints.
330. See FCCM 6B and 41 CFR 60-742.5 - Processing of Complaints Filed with OFCCP.
331. If the contractor withdrew a job offer from an individual who satisfied only the “regarded as” prong of the definition of “disability” (i.e., the individual did not also have an actual disability or a record of disability), the individual would not be entitled to receive reasonable accommodation and therefore would have to be able to perform all job functions without reasonable accommodation. See 41 CFR 60-741.2(s)(4).
332. 41 CFR 60-300.21(g) and 60-741.21(a)(7). In addition to this nondiscrimination requirement which applies to all types of selection criteria, contractors subject to the affirmative action requirements of Section 503 or VEVRAA have an obligation to periodically evaluate the impact of any mental and physical job qualification(s) to determine if their use tends to screen out qualified individuals with disabilities or disabled veterans. See 41 CFR 60-300.44(c) and 60-741.44(c).
333. 41 CFR 60-741.21(a)(7)(ii).
6E07 Allegations Specific to VEVRAA (Nondisability) Complaints
VEVRAA prohibits employment discrimination on the basis of one’s status as a protected veteran. The regulations specify the specific protected categories of veterans: disabled veterans, recently separated veterans, active duty wartime or campaign badge veterans, and Armed Forces service medal veterans. In reviewing a complaint filed under VEVRAA and in discussing it with the complainant, the CO should clearly distinguish whether the complainant believes the alleged discrimination was based on his or her status as a disabled veteran, or based on one of the other specific categories of protected veterans. If the allegation is based on the complainant’s status as a disabled veteran, the CO should follow the procedures for a disability complaint.334 The complaint may contain allegations of individual disparate treatment (e.g., a claim that an individual was unlawfully terminated, demoted, not hired, not promoted or harassed) or systemic discrimination based on the complainant’s status as a protected veteran. Complainants filing under VEVRAA may also allege any violation of the law or its implementing regulations unrelated to discrimination. For instance, under VEVRAA, contractors must list employment openings with the appropriate ESDS where the openings occur.335 Contractors must list all employment openings except for executive and senior management positions, positions that will be filled internally, and jobs lasting three days or less. Typically, the location of a job opening, or the location to which the employee must report for work is where the opening “occurs.” However, when a vacancy announcement indicates that the opening is for a remote job to be performed entirely by telework, there is no fixed place where the job “occurs.” The contractor may, therefore, satisfy the job listing requirement for a remote job by listing the opening with an ESDS in any area where qualified candidates might be found. Where the vacancy announcement indicates that the job may be performed either from a specified duty station or remotely, the contractor must list the job with the ESDS where the duty station is located, but may also list the opening with any other ESDS it determines is appropriate. A complainant may allege that the contractor is not complying with this mandatory job listing requirement.
Complaints alleging discrimination on the basis of status as a protected veteran may also include veteran-related issues that OFCCP is unable to address. When perfecting the complaint, the regional office will refer these allegations to the appropriate enforcement office. If the complainant raises these allegations at a later point in the process, the CO may refer the complaint allegations to the appropriate office or work in coordination with the other enforcement office, as appropriate.336 For example, a complainant may indicate that he or she has a re-employment issue that falls under the Uniformed Services Employment and Reemployment Rights Act (USERRA), which is administered by the DOL’s VETS.
334. See FCCM 6E06 – Allegations Specific to Disability Complaints.
335. 41 CFR 60-300.5.
336. See “Memorandum of Understanding: Office of Federal Contract Compliance Programs and the Veterans’ Employment and Training Service,” dated May 20, 1997, that addresses the agencies’ coordinated efforts in serving veterans.
6E08 Equal Opportunity Clause and Recordkeeping Requirements
During the course of a complaint investigation, a CO may find that the contractor has not met its Executive Order 11246, Section 503 or VEVRAA equal opportunity contract clause obligations other than nondiscrimination (e.g., failing to post required notices), or that recordkeeping or other regulatory violations exist. If so, the CO should conduct appropriate inspections and examine records to discuss these concerns with the contractor. If the contractor does not correct these violations, the CO should prepare a CA to address these violations.337
337. See FCCM Chapters 1 and 2 for discussions on the equal opportunity contract clause and recordkeeping requirements.
6E09 Novel Issues
Novel issues are those that are unfamiliar, unique or fall outside the norm. Periodically, the national office will identify certain novel issues and develop specific procedures to address them. COs may encounter novel issues in the course of complaint investigations, as well as during compliance evaluations.338 When reviewing complaint allegations, the CO should identify whether the complaint raises any novel issues. In these instances, the CO should discuss the identified novel issues with his or her supervisor before proceeding.
338. See FCCM 1A07 – Novel Issues.