6H Obtaining Documentary Evidence and Records Prior to On-Site Investigation

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.

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.

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.