Before going on-site, the CO should ensure that he or she has fully reviewed the complaint and the contractor’s compliance history and developed an Investigative Plan. The CO should provide written notice of the on-site investigation to the contractor. During the on-site investigation, the CO and other OFCCP staff members should follow the Investigative Plan. However, the CO should make appropriate changes to the Investigative Plan and implement these changes if he or she learns new information during the investigation indicating that other issues may exist. For example, a complainant may raise an allegation of retaliation during the course of the investigation that was not in the original complaint. If the CO has any concerns about making changes to the Investigative Plan or approach, the CO should discuss these concerns with his or her supervisor.
6I00 Notifying the Contractor of the On-Site Investigation
When the Investigative Plan is complete, the CO should arrange with the contractor for the on-site investigation. Generally, the on-site investigation should, at a minimum, consist of a lead CO and another CO to assist in fact finding. The CO should telephone the contractor and speak with the individual who will represent the contractor during the on-site investigation. The CO should advise the representative that:
- An entrance conference with the facility’s senior officer or designee will take place in order for the CO to outline the investigative process, to explain what will be done on-site and to estimate how many days the on-site investigation may take;
- Identified records should be available for review and should be as specific as possible; and
- Management employees, by name and position or title, should be made available for interviews.
The CO should establish a mutually agreeable date for beginning the on-site investigation. A letter confirming the on-site investigation date or dates must be sent.340
340. See Letter L-16 – Confirmation of Onsite Investigation.
6I01 On-Site Investigation: Road Map
a. General. The CO must conduct the on-site investigation in a manner that conveys the objectivity and fact finding intent of the CO. The focus of the CO’s activity must be on the complainant’s allegations and any contractor actions that gave rise to them. The interviews and review of records should provide information clearly related to the issues raised in the complaint. The CO will make note of any other compliance concerns that he or she observes or is aware of, as discussed below.
For each on-site investigation, the CO will use the appropriate framework to address the allegations by gathering data and by conducting interviews. The Investigative Plan should reflect the data to obtain and the interviews to conduct. The CO should follow this “road map” to conduct the on-site investigation.
b. Entrance Conference. The entrance conference with the facility’s senior official or designee sets the stage for the entire investigation. It is important for the CO – as a neutral fact finder – to be well organized and nonjudgmental. The CO should discuss: the investigative process (including what will actually occur on-site), an estimate of the length of the visit, and a mutually agreeable date and time for an exit conference. Since the CO previously provided the contractor with a copy of the complaint and informed the contractor of the relevant law(s), there may be no need for the CO to repeat that information. However, the CO should be prepared to respond to any questions regarding the complaint allegations and should ensure that the contractor understands the allegations.
The CO should inform the contractor that Executive Order 11246, Section 503 and VEVRAA implementing regulations prohibit interference and intimidation including threats, coercion, harassment and discrimination of any individual in the exercise of his or her rights protected under OFCCP enforced laws. Such protected rights include filing a complaint; assisting or participating in an investigation, compliance evaluation, hearing or any other activity related to the administration of Executive Order 11246, Section 503 and VEVRAA or other EEO laws; opposing any act or practice that violates any of these EEO laws; or exercising any other right afforded them by these laws. During the entrance conference, the CO must also advise the contractor of the need to conduct confidential employee interviews. In that discussion, the CO must make it clear that contractor representatives are not permitted to be present during nonmanagement interviews or during management interviews when it is determined that the manager is not speaking on behalf of the company.
c. Facility Inspection. If appropriate, the CO should conduct an inspection of the contractor’s establishment during the early stages of the on-site investigation. By inspecting the establishment/facility, the CO will be able to observe, among other things, the layout of the facility, what work employees may perform in the location, whether there may have been possible witnesses to an event, whether there is any display of graffiti, and whether there is inappropriate material displayed. The CO should note, and possibly diagram, any physical setting/location identified in the complaint. The CO should also note other observations, as appropriate. For example, in investigating a class complaint alleging discrimination on the basis of sex, the CO should note the presence or absence of women in the work area or job positions at issue. When appropriate, the CO may photograph the location he or she is inspecting. If the contractor objects to the CO taking photographs, the CO should discuss the matter with his or her supervisor.
d. Required Notices and Postings (Executive Order 11246 and Executive Order 13496). During the on-site investigation of a complaint, the CO also has the opportunity to verify that the contractor is in compliance with required notices and postings. Executive Order 11246 requires that the contractor conspicuously display the “EEO is the Law” poster, and any required supplements to that poster. The Pay Transparency Nondiscrimination Provision must also be disseminated to employees and applicants, either by electronic posting or by posting copies in conspicuous places. All of these postings notify applicants and employees that federal law protects applicants and employees from various kinds of discrimination. Executive Order 13496 requires that the contractor post notice of employee rights under the NLRA. The NLRA guarantees employees the right to organize and bargain collectively with their employer. The CO should inspect such areas as break rooms, personnel offices, common areas and employee bulletin boards for the required postings.
e. Information Gathering. The CO’s primary responsibility during an on-site investigation is gathering information by conducting interviews with appropriate management officials and witnesses, and requesting relevant contractor records. This part of the on-site investigation is explained in more detail below in FCCM 6I03.
f. Exit Conference. Upon completing the on-site investigation, the CO should conduct an exit conference with the facility’s senior official or designee (preferably the same person who was at the entrance conference). At this meeting, the CO should present a summary of any observed violations and should document any rebuttal arguments made by the contractor. The CO should emphasize that the findings discussed during the exit conference are preliminary, are not binding on OFCCP, and that OFCCP will not draw final conclusions until the CO can complete analyses of all the data and can affirm or refute each allegation. The CO should inform the contractor of the approximate length of time it will take to complete the off-site analysis, prepare the Investigative Report and issue the Notice of Results of Investigation (NORI) (see FCCM 6K). The CO should also remind the contractor that the law prohibits retaliation and interference. COs should also inform contractors that the exit conference is not necessarily the end of the fact-finding and that more information may be requested, if necessary.
6I02 Interview Procedures
a. General. This section reflects current OFCCP policies regarding the mechanics of the interview process, but it does not teach COs how to interview witnesses. Throughout the investigation, including interviewing, the CO must maintain a high degree of objectivity and professionalism.
b. Interview Plan. As a part of the On-Site Plan, the CO must develop appropriate interview questions and identify specific individuals to interview regarding each identified potential problem area or compliance issue. Each planned interview or group of interviews should have an Interview Plan that indicates the topics the interview will address and spells out the initial questions the CO plans to ask. Interview Plans will vary depending on whether the interviewee is a manager, other employee, or unsuccessful candidate for hire, among other considerations. If there is an individual that the CO identified for interview but did not interview, the CO will make a note in the case file as to why the interview did not take place.
c. Informing the Interviewee. The CO will tell each interviewee, at the outset of an interview, that:
- The CO will show the interviewee his or her statement containing the answers to the questions asked during the interview; and
- The CO will ask the interviewee to sign his or her statement.
The CO will inform each interviewee that knowingly providing false or inaccurate information is unlawful and will explain that the following phrase is included in the interview notes where the interviewee signs:
“I have read the above and it is true and accurate to the best of my knowledge.”
In addition, the CO must inform interviewees that the interview is kept confidential to the maximum extent possible. The CO must also inform all interviewees, regardless of their position with the contractor, that it is unlawful for the contractor to intimidate them or take retaliatory action against them for participating in an interview.
d. Contractor Representative Present at Interviews. When the CO conducts interviews with nonmanagement personnel, the contractor does not have the right to have a representative present. However, when the CO conducts interviews with upper level managers and directors that speak for or make decisions on behalf of the company, the contractor may have an attorney or other representative present. If the contractor wants a representative present during management interviews, the CO must first obtain written confirmation of the representation, including the contact information for the representative and the scope of the representative’s authority.341 The exception to this practice is when the manager is not speaking for management. An example may be when the manager is a member of a potentially affected group speaking about the potential discrimination or his or her personal experience, or acting as a whistleblower. In that type of situation, the CO may need to contact the employee directly after the on-site investigation to conduct the interview off-site without the contractor’s representative present. COs should consult with the RSOL and the national office prior to engaging in these types of interviews.
e. Employee Representative Present at Interviews. An employee may request that a personal representative, such as a union representative or personal legal counsel, accompany him or her during the interview. Subject to the limitations described below, this is generally acceptable. However, the CO must discuss the presence of the representative with the interviewee privately to determine whether there may be a conflict of interest or whether the interviewee feels pressured into having the person present. When the employee wants a personal representative present during the interview, the CO must first obtain written confirmation of the representation, including the contact information for the representative and the scope of the representative’s authority, if the CO does not already have the written confirmation.
The contractor does not have the right to have one of its representatives present during an employee interview, either as an observer or as the employee representative. If a nonmanagement employee wants a representative present, including a member of management, then OFCCP must honor the request. The CO can and should meet with the employee alone for the limited purpose of confirming that he or she was not coerced into asking for a management representative. The CO must consult with RSOL if there are any questions about the impact of the presence of a third party on confidentiality or privileges.
f. Preparing Formal Interview Statements. After a formal interview, the CO must ask each interviewee to read, sign and date an interview statement. Immediately, at the conclusion of the interview, the CO will review the questions asked and the answers given, and obtain confirmation that any direct quotes are accurate and that all paraphrases convey the interviewee’s intended meaning. The CO will promptly type the handwritten interview notes using MS Word in order to provide the interviewee with a formal interview statement to sign as soon as possible after the interview. The CO must enter the following phrase above the space where the interviewee will sign on the formal interview statement:
“I have read the above and it is true and accurate to the best of my knowledge.”
If the CO cannot print a copy of the interview statement during the on-site investigation, the CO must ask the interviewee to sign and date the CO’s interview notes. The CO will mail or email the typed interview statement as soon as possible after the on-site investigation for the interviewee to sign and date. If the interviewee wants corrections made, the CO must incorporate the corrections and resend the statement for the interviewee to sign. The CO maintains records of interview notes and each version of the interview statement in the case file. If an interviewee refuses to sign an interview statement, the CO will record this and the reason(s) for refusal to sign, if known.
g. Contact Information. At the conclusion of every interview, the CO must obtain the interviewee’s personal mailing address, contact telephone number and email address. The CO must also provide each interviewee with the CO’s office contact information in the event the interviewee wants to add anything to his or her statement.
h. Informal (Unplanned) Interviews. At any point in the on-site investigation process, a potential witness may approach the CO to provide information related to the review. The CO must make every effort to meet or otherwise interview the potential witness. The CO will follow the interview procedures described in this section.
If, however, the potential witness is unwilling to be interviewed and only wants to provide the information, the CO must document the conditions under which the employee provided the information in a memorandum. For example, the CO records that the employee provided the CO with a document, briefly describes and attaches the document to the memorandum, and indicates in the memorandum that he or she was unwilling to be interviewed. The CO must then use other means to verify the credibility of the information provided in this manner.
i. Location of Interviews. COs normally conduct interviews during the on-site investigation. However, the CO may conduct interviews via telephone, as appropriate. For instance, the CO may need to interview a former employee. There may also be situations when a contractor refuses to allow on-site interviews of nonmanagerial employees or where such employees want their interviews conducted away from the establishment. When possible, the CO will attempt to explore alternatives with the contractor or the employee, as appropriate. One possible alternative is conducting interviews during meal breaks. Other options might include interviewing an employee on-site prior to the start of work shifts, or at the end of his or her shift. A CO may also conduct interviews at an off-site location.
j. Telephone Interviews. COs conduct telephone interviews only when it is not feasible to conduct the interview in person since the CO cannot observe the interviewee’s demeanor during a telephone interview, making credibility determinations more difficult. However, when telephone interviews of current employees, former employees or applicants are necessary, the CO must type the resulting notes and send a copy to the interviewee for review, revisions, as appropriate, and a signature. As with in person interviews, COs will ask whether there is anyone else present with the interviewee to address any concerns this may create, as described above.
k. CO is Unable to Conduct Interview. If the CO is unable to conduct an interview, he or she should add a memorandum to the file explaining who was supposed to be interviewed and why the interview did not occur. For example, the complainant may identify a potential witness to the alleged harassment, but the potential witness indicates to the CO that he or she was, in fact, not a witness to the alleged conduct and does not want to submit to an interview.
341. See FCCM 6D04 for more details on what to request in the written confirmation of representation. If the CO already has written confirmation of the representative, there is no need to ask for it again.
6I03 Gathering Relevant Data and Conducting Interviews
The nature of the specific allegations to be investigated will determine the information the CO should gather. Certain data will be common to most investigations, such as applicable personnel policies, collective bargaining agreement, data regarding the employment practice in question, and the personnel files of the complainant and comparators. The CO’s Investigative Plan should identify what information the CO will need to address each allegation. However, the CO may identify additional information, documentation or records to obtain.
In addition to gathering specific data and documents, the CO will also need to develop a list of possible interview questions to gain an understanding of the allegations and issues, corroborate or verify what was said by other witnesses, what other witness may have said about the allegations, identify other possible witnesses, and generally gather additional information. In order to gain an understanding of the allegations and issues, the CO should prepare open-ended questions to ask interviewees (e.g., ask interviewee to explain and describe their observations and experiences related to the issues). The CO should listen closely to the interviewee’s answers and use them to formulate direct follow-up questions, as appropriate. The Investigative Plan should include a structure (e.g., a list of interview questions or an interview outline) for the interviews the CO will conduct with contractor officials, the complainant and witnesses. The CO should develop interview questions that will elicit responses to explain the factual circumstances surrounding the allegations (e.g., who was involved and who witnessed the actions, what actions were taken, where the events occurred, how decisions were reached and why specific actions were taken). The CO should develop interview questions to ensure that he or she identifies and obtains all relevant documentation. The CO should always be alert to opportunities to ask necessary follow-up questions and pursue unexpected avenues of inquiry that may open up during the interview.
The CO should also confirm and verify information obtained in interviews. For example, the CO may interview two witnesses and each witness provides a similar description of an incident that occurred in the break room, while a supervisor provides a different description of the incident. One of the interviewee’s statements indicated that some employees were clocking out at the time of the incident. Employees enter the break room to clock out. The CO should review sign-out forms for the day and time in question in order to identify other possible witnesses. The CO should then interview these possible witnesses and review any documentation that may provide confirmation.
Provided below, by type of allegation, are general guidelines for data gathering.
a. Harassment. The CO should gather copies of relevant policies and procedures, and make observations of environmental conditions (e.g., if the location of an incident is identified, observe the location and determine whether there may have been possible witnesses to the incident). The CO should request copies of any internal grievance(s) or complaint(s) on file regarding the alleged harassment or other incidents of alleged harassment, and any documentation indicating how the contractor responded to any incidents. If it is alleged that the contractor took action against the complainant, the CO should also review the complainant’s personnel records and other pertinent documents.
The CO should develop questions to assist in understanding the specifics of the alleged incident(s), applicable policies and all relevant documentation, other similar incidents, possible witnesses to the alleged discriminatory action(s), contractor response to alleged harassment, etc.
For example: The complainant alleged that a drawing, including a derogatory depiction and remark that made fun of a physically impaired person, was posted on a wall in the break room. The complainant observed the drawing during his lunch break. The CO should ask the complainant to identify possible witnesses to interview, but should also make a random selection of other employees to interview who may have had the opportunity to observe the drawing. The CO should develop questions for possible witnesses and contractor staff members to gather information confirming or disaffirming whether the drawing was posted; whether the poster contributed to a hostile environment; whether anything else happened to contribute to a hostile work environment; whether it was the only time such a derogatory depiction was posted on the work site and, if not, how often; what the remark said; and whether the contractor knew or should have known about the depiction. If the contractor did know, did it take immediate and appropriate action to remedy the identified harm, and to prevent future harassment and, if so, what were those actions?
COs should note that in conducting interviews and recording the information obtained during an investigation of an allegation of harassment, COs should fully and accurately document any harassing or derogatory remarks, statements or actions. This documentation is necessary to ensure that the CO can make a determination whether the words or actions were severe or pervasive enough to constitute harassment. The CO must not rephrase the interviewee’s statements or make use of euphemisms. It is also important to note that witnesses may provide statements that are in direct conflict with each other. When the statements are given confidentially, it is important to make sufficient efforts to confirm and verify testimony whenever possible, while maintaining confidentiality.
b. Retaliation and Interference. In conducting a complaint investigation, the CO should inform contractor officials, employees and applicants, as well as other people who may be a part of the investigation, that the law prohibits the contractor from retaliating because of their involvement in the process.342
The CO should gather data and develop questions regarding the activity that the complainant alleges was the cause for the retaliation.343 Because a retaliatory action can include any number of actions, including harassment, the CO will need to identify the policies and procedures at issue, and obtain these for review. The CO may also need data to conduct a comparative analysis if the complainant alleges that the retaliatory act was an adverse employment action (e.g., terminated, demoted, not hired) or the contractor treated the complainant less favorably than other individuals.
The CO should develop questions to determine whether the complainant engaged in protected activity, whether the complainant was subjected to adverse action or treatment, or whether there is a connection between the protected activity and the adverse action or treatment (e.g., close proximity in time or other evidence such as the complainant was treated less favorably than others in a similar situation). The CO should examine contractor assertions for credibility. If the contractor makes an assertion that there is a legitimate, nondiscriminatory reason for any adverse action, the CO should examine the action accordingly. For example, the CO finds evidence supporting that the complainant participated in a protected activity (e.g., filed an EEO complaint) and the complainant was subjected to adverse action (e.g., demotion) shortly after the complainant’s supervisor received notice of the complaint. The contractor asserts that the complainant was demoted because of poor performance and not because of having filed the complaint.
For this example, the CO should review any pertinent policy regarding demotions, review the complainant’s personnel record to determine whether the complainant’s work performance was rated poorly and whether the complainant received any required notice that he or she would be subject to demotion. The CO should also examine other employees’ personnel files to determine if similarly situated employees who did not engage in protected activity were treated in the same or similar manner. The CO should interview the supervisor who took the adverse action, interview other contractor officials regarding the policy governing demotions and applicable procedures, and interview witnesses, as appropriate.
c. Specific Claims under Executive Order 11246. Under Executive Order 11246, a complainant may have been terminated, harassed, demoted, denied employment or denied benefits provided by a contractor, among other potential discriminatory acts. The CO should gather data and tailor interview questions according to the particular facts of the allegations and the protected basis. For example, a claim of termination based on gender identity will involve a different set of questions than a complaint alleging termination for discussing a co-worker’s compensation.
Below are a few examples of different types of discrimination that are intended to illustrate the types of allegations that a CO may investigate under Executive Order 11246. These examples are not exhaustive; they are only intended to illustrate some of the types of data requests and interview questions a CO would include in the Investigative Plan for allegations that are specific to Executive Order 11246. The CO should interview employees, former employees and management officials, as appropriate to the case, developing questions that address policies and procedures related to the alleged discriminatory action, as well as questions that address the specific factual scenario that gave rise to the alleged discriminatory act.
1. Not Making Accommodation to Religious Observance. If a complaint raises an allegation of denial of religious accommodation, the CO should ask the contractor whether and how it makes accommodation to the religious observances and practices of its employees, whether and how the complainant was accommodated, and obtain any relevant policies and records. If the contractor denied an accommodation, the CO should ask whether the complainant requested a religious accommodation and how the contractor responded. If the contractor denied a religious accommodation, the CO should ask why.344 If the contractor reports that no one requested an accommodation, the CO should review procedures available for evaluating such requests. The CO should review employee files and be alert for any pattern of discipline or terminations based on refusal to work on certain days for religious observances. Allegations of national origin discrimination may sometimes be closely linked to discrimination on the basis of religion. The CO should examine the factual situation to determine whether it gives rise to both forms of discrimination.
2. Claims on Basis of Sexual Orientation. If, for example, a complaint alleges sexual orientation discrimination because the complainant was denied a noncompetitive promotion shortly after announcing her plan to marry her same-sex partner, the CO should ask the complainant and the contractor for information regarding the promotion opportunity and its denial. The CO also should ask the complainant details about her wedding announcement (e.g., whether and when the supervisor or others in the workplace were informed, and whether and when the announcement was published in the local newspaper), and ask her supervisor whether and when he was aware of the complainant’s sexual orientation. The CO should obtain information regarding any policies or procedures that apply to noncompetitive promotions; review the personnel record and performance evaluations of the complainant to confirm when her performance evaluation occurred; determine whether the evaluation was conducted in conformance with policy and procedures, and whether prior performance evaluations were similar or significantly different and, if so, for what reason. The records and performance evaluations of similarly situated employees of other sexual orientations should be reviewed to determine whether noncompetitive promotions were awarded for any individuals and any noted reasons for differences in performance ratings. The CO should also conduct interviews of individuals who were present when the complainant announced her plan to marry and question whether anyone observed the supervisor’s (or other management) reaction to the announcement or expression of an opinion regarding the announcement. The CO should also, through interviews, gather information about the workplace environment or corporate culture, including whether there have been other similar incidents or allegations of discrimination on the basis of sexual orientation.
3. Claims on the Basis of Gender Identity. If, for example, a complainant alleges that he was fired when he told his boss that he was planning to receive transition-related medical services to facilitate the adoption of a sex other than his designated at birth, the CO should obtain information through interviews and record reviews to determine whether the complainant was treated less favorably or was subjected to a policy that, on its face, discriminates on the basis of gender identity. The CO should first ask the contractor and review documentation as to the reason the contractor terminated the complainant. Then, the CO should review any pertinent policies and procedures applicable to termination actions to determine if the policies are nondiscriminatory on their face, and in their application. This process would include reviewing a sample of personnel files for terminated employees for comparative purposes. The CO should review the complainant’s personnel record to determine whether the record does or does not support the termination or indicates a reason for termination, and whether such reason is in conformance with existing nondiscriminatory policy. The CO must also interview the complainant, supervisor, and any other individuals who have knowledge of the termination action, and, among other things, ask why the complainant was terminated and whether the complainant’s gender transition played any role in the decision to terminate. The CO should conduct interviews of other employees and supervisors to determine the workplace environment or corporate culture promoted by the contractor, and review any anti-discrimination training provided by the contractor.
4. Pay Transparency Claims. If, for example, a complainant alleges that she was demoted after discussing with other female colleagues how much their male co-worker makes, the CO would obtain information through interviews and reviews of contractor records to determine the particular circumstances of the pay discussion and her demotion, as well as the particulars of the complainant’s job functions. The CO must determine whether the contractor had knowledge that such a discussion took place and whether there appears to be a connection between demotion and the contractor’s knowledge of the discussion (e.g., a sudden negative change in how the complainant’s work was perceived after the contractor learned of the discussion). It is important to understand the situation surrounding the discussion in the event the contractor raises a workplace rule defense, claiming that the complainant was demoted for violating a consistently and uniformly applied company policy. Also, in the event that the contractor raises the essential job functions defense, the CO must determine whether the complainant had access to the compensation information of other employees or applicants as part of her essential job functions and whether she was discussing the compensation of colleagues with other employees who do not have access to compensation information as a part of their essential job functions. Determining whether one of these contractor defenses applies is an important part of the CO’s investigation and will require review of the complainant’s personnel records, including position description. Also, it is important for the CO to interview witnesses to the discussion of pay that prompted the complainant’s demotion, as well as the complainant’s supervisor and other company officials, to determine whether the contractor maintains a written or unwritten pay secrecy policy.
5. Not Making an Accommodation for Pregnancy. Complainants may allege that a contractor denied them light duty as an accommodation when they were unable to perform some of their job duties because of pregnancy. In these types of complaints, the CO should obtain documentation of the complainants’ accommodation requests, their written job descriptions, the limitations of any nonpregnant employees currently or previously provided with light duty similar to that requested by the complainant, light duty requests from nonpregnant employees and the dispositions of all such requests, the contractor’s leave and light-duty policies, and records showing how the contractor handled other light duty requests. This documentation must be analyzed to determine whether the contractor only denied light duty as an accommodation to employees affected by childbirth, pregnancy or related medical conditions. It should also be analyzed to assess whether the employer’s policies impose a significant burden on pregnant workers, for example, whether the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers. The CO should also review the medical files of any employees for whom light duty was granted as an accommodation and the written job description of those employees. This documentation will help the CO determine whether the employees who received light duty as an accommodation were similar to the complainants in their ability or inability to perform their job duties. Other employees should be interviewed about the contractor’s light duty practices. The CO should ask the contractor its reasons for denying the light duty as an accommodation for pregnancy.
d. Disability Complaints. Under Section 503, a complaint may contain allegations of individual discrimination (e.g., termination, nonselection, harassment and termination) or systemic discrimination based on disability, or retaliation. Additionally, Section 503 allows any individual to file a complaint alleging violations of the Section 503 regulations (e.g., violation of the confidentiality or medical examination provisions). The CO should gather data and develop interview questions for the Investigative Plan accordingly. Below are several examples of types of complaints that OFCCP may receive under Section 503. The examples include the types of data and interview questions that should be included in an Investigative Plan.
1. Not Making Reasonable Accommodation. If, for example, a complainant alleges that she was denied an accommodation needed to enable her to perform the essential functions of her job, the CO should ascertain how and to whom the request for accommodation was made, whether the contractor requested documentation of the existence of the disability (or the limitation needing accommodation) and, if so, the documentation provided by the complainant in response. If a request was made but no accommodation was provided, the CO should ask the contractor its reasons for denying the request and for any documentation supporting its reasons. The CO should also inquire as to whether the contractor engaged the complainant in an interactive process to determine an appropriate accommodation. (Though not a requirement, whether the contractor engaged in an interactive process with the complainant to determine an appropriate accommodation is relevant to the question of damages in a dual filed complaint, should a failure to accommodate be found.) If the contractor asserts that an accommodation different from the one requested was provided, the CO should verify that accommodation was provided and determine whether the accommodation provided was effective, that is, did it enable the complainant to perform the essential functions of her job? In making this determination, the CO may need to gain a clear understanding of the job or position in question and the differences between the requested and provided accommodations. The CO should obtain a written job description, information regarding the processing of the complainant’s and others’ requests for reasonable accommodation, any written accommodation procedures or practices, and information to confirm whether the contractor provided the reasonable accommodation in a timely and appropriate manner.
When a contractor defends itself against an allegation that it did not make a reasonable accommodation by claiming that the specific reasonable accommodation caused undue hardship, the contractor must prove that providing that accommodation would have caused significant difficulty or expense. When investigating such a complaint, the CO should obtain information to determine whether a contractor’s assertion that an accommodation would impose an undue hardship is valid, and whether it was valid at the time the contractor denied the accommodation. In examining the contractor’s assertion, the CO should review the undue hardship factors listed in 41 CFR 60-300.2(aa) and 60-741.2(aa). If the evidence supports that providing a specific accommodation would have imposed an undue hardship, the CO should determine whether the contractor considered alternative accommodations, and whether an alternative accommodation existed that would have been effective, but would not have imposed an undue hardship. If such an alternative existed, the contractor would be obligated to provide it.345
The CO should develop interview questions regarding the functions of the job or position in question, the requested accommodation (and the provided accommodation, if any), whether the complainant can perform the essential functions of the job with accommodation and the contractor’s response to the request for accommodation. The CO should interview the complainant as to his or her physical or mental impairment, the major life activity or activities substantially limited by the impairment, the need for an accommodation and the accommodation(s) requested. The CO should interview contractor officials as to whether the contractor provided the requested reasonable accommodation or an effective alternative accommodation. The CO should also question whether and how the contractor responded to other similar requests for accommodation.
2. Requiring and Using Medical Examinations or Disability-Related Inquiries. For all complaints related to a contractor’s use of medical examinations or disability-related inquiries, the CO needs to determine at what stage of the employment process (i.e., pre-offer, post-offer or during employment) the examination or inquiry was made and the contractor’s stated justification for requiring the examination or making the inquiry. The CO should initially determine whether making the inquiry or requiring the medical examination was unlawful (e.g., the complainant was an applicant and the exam was conducted pre-offer or the complainant was an employee and the exam was not job-related and consistent with business necessity). If the information obtained from the exam or inquiry was used in an adverse manner against the complainant (e.g., a job offer was withdrawn or the complainant was terminated), the CO should also consider whether the adverse action discriminated against or screened out the complainant on the basis of disability. Depending on the nature of the complaint, the CO may also need to determine the contractor’s process for administering the exam or making the inquiry, and if the exam or inquiry is administered to all similarly situated applicants or employees.
The CO should interview contractor officials to determine applicable policies and procedures, including how and when the contractor makes and records medical inquiries. The CO should also question how and when the provider conducts medical examinations and how the contractor uses the information obtained from the examination. The CO should interview the providers of any medical examinations required by the contractor to verify instructions the contractor gave to them and identify how they reported results. The CO must obtain a copy of the report, including any recommendations provided to the contractor. In addition, when a complainant alleges that, as an employee, he or she was unlawfully required to take a medical exam, the CO would ask questions related to whether the exam was job-related and consistent with business necessity. For example, if a contractor required a “fitness for duty” return-to-work exam for the complainant who was on leave because of cancer treatments, the CO would ask the contractor to explain the complainant’s job duties. Additionally, the CO would ask the contractor how the exam relates to the performance of the complainant’s job duties and why the exam is necessary for the operation of its business.
3. Confidentiality Issues. Anyone may file a complaint alleging that the contractor violated its obligations under the confidentiality provisions in Section 503 or VEVRAA, regardless of whether they have a disability or are a disabled veteran. In investigating these complaints, the CO should examine the contractor’s policy and practices regarding records that are to be kept confidential. The CO may need to review records and inspect the location of the records to determine if there was a breach of confidentiality. Interviews may be necessary to determine whether the contractor breached confidentiality by inappropriately sharing medical information with other employees, or unlawfully commingles confidential medical records with the employee’s personnel file or the contractor’s data analysis file on self-identification.
4. Qualification Standards, Tests and Other Selection Criteria. The CO should determine whether the application of a qualification standard, test or other selection criterion excluded the complainant from an employment opportunity on the basis of his or her disability. If so, the CO should gather information to determine whether the challenged selection criterion is job-related and consistent with business necessity. The CO should obtain a written job description, an explanation from the contractor and any supporting documentation as to how the criterion relates to the job, and factual information about how the job is actually performed. If the criterion relates to health or safety, the CO should gather information to determine whether the criterion is necessary to avoid the existence or creation of a direct threat, or is required by federal law. Should the CO determine that the criterion is job-related and consistent with business necessity, the CO should obtain information to assess whether the complainant could satisfy the selection criterion with the provision of a reasonable accommodation.
With this type of complaint, an individual or group of individuals would likely allege that they have been screened out by a qualification standard because of a disability. The CO would ask the contractor for specifics on whether the complainant was not selected because the qualification standard screened him or her out because of his or her disability; whether the qualification standard is job-related and consistent with business necessity; whether the qualification standard is consistently applied to all similarly situated employees, including incumbent employees; what the job functions for the position are; whether the selection criterion only concerns a marginal job function; and whether there would be an accommodation that would enable the complainant to meet the qualification standard.
5. Relationship or Association with an Individual with a Disability. The data gathered and questions asked will vary depending upon the specific nature of the allegation. For example, if the complaint alleges that the contractor denied the complainant equal access to the contractor’s health insurance plan because he or she has a child with a disability, the CO should obtain copies of the contractor’s policies and procedures related to health insurance, records related to the complainant’s application for insurance and records related to the processing of that application. If the complaint alleges that the contractor did not hire or promote the complainant because of his or her association with a person with a disability, the CO would gather information and data related to the selection process, the other applicants for the job at issue (including the applicant selected) and the reasons for the nonselection of the complainant.
The CO should interview the complainant to determine that he or she has a relationship or association with an individual with a disability and the reason(s) for his or her belief that the contractor discriminated against him or her because of that relationship or association. The CO should also determine whether the contractor was aware that the complainant had a relationship with an individual with a disability and obtain an explanation from the contractor regarding the reason for the employment action or decision that is the subject of the complaint, and information regarding any relevant policies or practices. If the contractor denies knowledge of the complainant’s relationship with an individual with a disability, the CO should examine the credibility of the statements made and seek possible witnesses who could confirm or disaffirm whether the contractor knew of the complainant’s relationship.
e. Complaints from Protected Veterans (Non-Disability). Under VEVRAA, a complaint may contain allegations of individual discrimination (e.g., termination, nonselection, harassment and termination) or systemic discrimination based on protected veteran status, or retaliation. 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 gathering data and developing interview questions for a disability complaint.346
Additionally, VEVRAA allows any individual, whether or not they are a protected veteran, to file a complaint alleging violations of the VEVRAA regulations (e.g., failure to list jobs with the appropriate ESDS). The CO should gather data and develop interview questions for the Investigative Plan accordingly.
1. Protected Veteran Status. If a complaint alleges discrimination based on protected veteran status, the CO should obtain from the complainant documentation proving his or her status as a protected veteran (e.g., DD-214). If the complaint raises class issues, the CO should obtain documentation to prove that affected class members are protected veterans. As with other types of discrimination, the CO would gather data and tailor interview questions according to the particular facts of the allegations, with a specific focus on employment practices or acts that the might indicate that the complainant or complainants’ veteran status was taken into consideration in a manner that resulted in discrimination.
For example, if the complainant alleges that he or she was terminated because of his or her status as a protected veteran, the CO should gather data through a review of records, and conduct interviews with company officials, the complainant and select employees. The CO should analyze information, from the time period in question, to include: termination data indicating whether any employees have self-identified or were otherwise known to be protected veterans; personnel records for terminated employees who were also protected veterans, including the complainant; a comparative sample of personnel records of similarly situated nonprotected veteran employees who were terminated, and records for similarly situated employees who were retained; written policies regarding terminations; and descriptions of programs designed to retain protected veterans. The CO would also interview the officials involved in the termination to find out, among other things, if they knew the complainant was a protected veteran, the policies governing their decision to terminate, the reason for termination, the particular information the officials relied on to make the decision, and the names and circumstances of any other employees who had been terminated during the time period in question.
2. Job Listing Requirement. If a complaint alleges a violation of the job listing requirement, the CO should request job listings from the contractor and contact the ESDS that the contractor used. The CO should request confirmation that the contractor listed its employment openings with the ESDS in a manner or format permitted by the ESDS. The CO should obtain from the ESDS a listing of the job orders that the contractor placed by job title and date. The CO should then compare this list with a list of vacancies the contractor has filled through new hires, identify any such jobs not listed with the employment office, and determine whether the jobs should have been listed. The CO should also determine whether the contractor informed the ESDS that it is a federal contractor and provided the ESDS with contact information for each of the contractor’s hiring locations in the state. The job listing requirement is unique to VEVRAA and ESDSs have special responsibilities regarding protected veterans.347 The local ESDS offices usually have a representative who deals primarily with veterans’ matters. The CO should contact the LVER in the office nearest the contractor’s establishment for any pertinent information regarding the contractor or the complainant.
f. Other Equal Opportunity Clause and Recordkeeping Requirements. As explained above, the CO should conduct appropriate inspections and examine records to determine whether other equal opportunity clause or recordkeeping violations exist.348 The CO should conduct interviews of contractor officials responsible for meeting its regulatory obligations, such as posting workplace posters, and for creating and maintaining records. Interview questions should seek to determine who is responsible for meeting these obligations, whether there are policies applicable to the obligation and whether there were deviations from the policy. If the contractor did not comply with an obligation, the CO should question responsible parties to determine why the contractor did not meet the obligation.
Provided below is general guidance for creating questions based on the applicate legal framework for providing types of discrimination:
a. Systemic Disparate Treatment. The CO will gather data and develop interview questions regarding the specific employment action (e.g., use of a selection procedure), or the loss of benefit or opportunity at issue, in order to conduct analyses to determine whether systemic disparate treatment occurred, that is, whether similarly situated individuals outside the complainant’s protected group received more favorable treatment. The type of data needed will depend on the specific allegation. If a complainant indicates that there is an EEO grievance or complaint on file, the CO should request these records. Additionally, the CO should request copies of any grievances others have filed that raise similar issues. The CO will need other data and information, including copies of any applicable policies and procedures.
Data related to employment actions may include, but is not limited to, applicant flow, hiring, termination, promotion, and compensation. In examining selection procedures, the CO may also need to analyze data that reflects the application of specific selection criteria (e.g., a structured interview). In addition to hiring or promotion data (who was hired or promoted and who was not), the CO should also include data such as whether the selection procedure is pass/fail or a score is used (cut-off score or weighted), and the results of the selection procedure (i.e., who advanced from the interview and who did not).
The CO should ask interview questions designed to determine established policies and procedures, and any deviations that may have occurred in the application of the policies and procedures. In addition, the interview questions should seek to identify people who were similarly situated to the complainant but may have been treated differently. Interview questions should also cover the criteria used at each selection stage and the people who applied them at each stage.
b. Systemic Disparate Impact. The CO should develop interview questions and examine employment data (e.g., applicant flow, hiring, termination, promotion, compensation data), as appropriate, to the allegations. Additionally, the CO should obtain and review any policies applicable to the action in question (e.g., written policies regarding eligibility for promotion or increases in compensation). The CO will examine data regarding the specific employment action or use of selection procedure to determine by statistical analysis whether the policy or procedure has the alleged adverse impact. The CO may also need to analyze data that reflects the application of a specific selection procedure. For example, if the complaint alleges that a pencil and paper test used as a selection criterion has a disparate impact, the data needed will include not only hiring or promotion data such as who was hired or promoted and who was not, but also data and information relevant to whether the contractor validated the selection procedure and how, and a description of how the selection procedure was applied to applicants and employees, as appropriate. A copy of the validation study should also be included.
If the complaint alleges that a specific policy or practice has an adverse impact, the CO should develop questions for appropriate contractor officials to gain an understanding of the development and application of the policy or practice in question (e.g., a compensation policy with an adverse impact on women in a particular job group). The questions should help the CO evaluate whether the policy or practice is job related and consistent with business necessity.
c. Individual Disparate Treatment. Many of the Section 503, VEVRAA and Executive Order 11246 complaints that OFCCP investigates will allege that the contractor treated the individual filing the complaint less favorably because of a protected basis. These individual disparate treatment claims may allege less favorable treatment in employment actions, such as hiring, harassment, terminations, promotions, compensation or application of selection criteria, among others.
342. See FCCM 6B03, and 41 CFR 60-1.32, 60-300.69 and 60-741.69.
343. See Appendix A-9 – Retaliation and Interference: Complaint Processing Outline and Checklist.
344. A contractor must accommodate the religious practices and observances of employees or prospective employees, unless it is unable to reasonably accommodate the observance or practice without undue hardship on the conduct of the employer’s business. “Undue hardship” in religious accommodation complaints is interpreted differently by courts than the undue hardship standard in disability cases under the ADA. See FCCM 2J01.
345. Also, see FCCM Section 6E06.
346. See FCCM 6I03(i) – Gathering Relevant Data and Conducting Interviews.
347. 41 CFR 60-300.84.
348. See FCCM 2I: Technical Requirements.
6I04 Review of Records
The CO should review all of the records submitted by or obtained from the complainant and contractor relevant to the allegations in the complaint. FCCM 6I03 addresses the types of records that the CO should obtain during the on-site investigation and FCCM 6H discusses the types of documentary evidence a CO should attempt to obtain prior to the on-site investigation. The nature of the allegations and the applicable legal theories will determine the types of analyses the CO should conduct using the data obtained during the on-site visit.