6H Interviewing the Complainant Before On-Site Investigation
After reviewing the written complaint, the Investigator must discuss it in depth with the complainant to ensure that they have sufficient information to understand the complaint allegations. Before proceeding with the on-site investigation, the Investigator should contact each complainant to establish a mutually agreeable time and place to conduct an interview. The Investigator should conduct the interview in person, either in the OFCCP office or at an off-site location, unless compelling circumstances preclude doing so. In these instances, the Investigator may conduct the interview by telephone. If the complainant resides outside the area covered by the field office, the Investigator and their supervisor should coordinate with the regional office where the complainant is located. If no personal interview takes place at any time during the investigation, the Investigator should record this fact and the reason for it. The Investigator must follow the procedures for conducting interviews, explained below in Section 6J02.
The Investigator should prepare an Interview Plan containing specific questions tailored to obtain detailed information regarding the allegations and to identify sources of evidence necessary to support or refute the complainant’s allegations. In addition to the types of allegation-specific questions discussed in Section 6J03, some examples of the types of information to consider are:
- Name(s) of contractor official(s) who participated in the alleged discrimination, and those who were decision makers involved in the alleged adverse action;
- Name(s) of employee(s) or others who may have witnessed the alleged act(s) of discrimination;
- Detailed circumstances surrounding the act(s) (e.g., dates, locations, description of actions taken or failure to take action when needed, possible witnesses);
- Description of the contractor’s personnel policies and practices related to the employment action at issue;
- Explanation of why the complainant believes that the act(s) was discriminatory;
- Explanation from the contractor to the complainant for any action taken by the contractor;
- Documentation related to the allegations of discrimination, such as personnel policies, job advertisements, job descriptions, written disciplinary warnings, performance appraisals; and
- Data and documents necessary to conduct appropriate comparative or statistical analyses.
After conducting this interview, the Investigator will assess the complaint allegations to determine the sufficiency of the information provided by the complainant to support the complaint allegations (e.g., is the complainant protected, is there evidence that discrimination may have occurred, was the contractor aware of the complainant’s protected status, was there an adverse action).
Because each complaint is based on a unique set of factual circumstances, the Investigator should gain an understanding of the nature of each allegation and why the complainant(s) believes that discrimination occurred. If OFCCP learns of additional allegations during the interview, the Investigator should follow the procedures in Section 6E06.
6H00 Historical Documentation
The CO should query the EIS to determine if there have been any prior compliance or complaint investigations of the contractor establishment. The CO will need to obtain and review copies of any investigative reports, closure letters, CAs, or other documentation generated as a result of such compliance or complaint investigation.
The CO should also contact and make a written request to the EEOC, the Departments of Justice and State, 339 VETS in the DOL, and state and local FEP agencies that are responsible for enforcing state and local nondiscrimination laws. The inquiries would be to determine whether there are any complaints against the contractor. If obtained, the CO should include this information in the case file and incorporate it, as appropriate, in the Investigative Plan.
If the complainant indicates that he or she has filed an EEO grievance or complaint with the contractor or union, the CO should obtain a copy of the grievance or complaint from the complainant. Upon making a data request of the contractor, the CO should request any documentation related to the grievance/complaint, complaint investigation and, if applicable, contractor findings and remedy.
If the CO finds that the EEOC is conducting an ongoing investigation, the CO should obtain adequate information to determine whether the EEOC has exercised jurisdiction over some or all of the allegations over which OFCCP would also have jurisdiction and is proceeding with an investigation of the same. Upon verifying this information, the CO should discuss this with his or her supervisor.
339. See Letter L-17, Inquiry Letter to U.S. Department of Justice or the U.S. Department of State.
6H01 Policies and Practices
The CO should obtain copies of all documents that explain any policy or practice bearing on the allegations in the complaint. If a practice at issue is not in writing or the written material is not current, the CO should request that the contractor provide a written statement of facts or conditions currently in effect, or identify a manager or supervisor who can discuss the practice.
6H02 Other Documents Relevant to the Complaint Allegations
The CO should obtain copies of any written materials that are relevant to the complaint. The nature of the complaint allegations will determine the nature of the documents the CO needs to obtain. For example, in a complaint alleging discriminatory discharge on the basis of disability, which the contractor states was due to poor performance, the CO would obtain documents such as the following: copies of policies and procedures for performance evaluations and terminations; material related to any reasonable accommodation requests and their disposition; any documentation showing whether the poor performance is attributable to the denial of a reasonable accommodation; a copy of the complainant’s personnel file, including his or her performance evaluations; and copies of other similarly situated employees’ files and performance evaluations, in order to conduct a comparative analysis. A similarly situated employee could be a nondisabled individual who received a poor performance rating and was, or was not, subject to discharge.