Contractors: Be Aware of Bias Complaints Filed With Labor Department

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By Jay-Anne B. Casuga and Jasmine Ye Han

The Labor Department has collected at least $4 million from government contractors in the last decade through investigations of discrimination complaints filed by employees, according to a Bloomberg BNA analysis of government data. And those investigations have the potential to keep increasing.

The DOL’s Office of Federal Contract Compliance Programs is arguably best known for its government contractor audits, which focus on compliance with various affirmative action and nondiscrimination requirements. The agency conducts several thousand audits per year.

But it also can accept and investigate bias complaints from employees based on race, sex, color, national origin, religion, sexual orientation, gender identity, disability and veteran status, based on the audits of government contractors.

Bias complaints received by the OFCCP have grown incrementally since fiscal year 2007, though they’ve leveled off a bit in recent years, according to a Bloomberg BNA analysis of agency enforcement data.

In fiscal 2007, workers submitted 518 complaints to the agency. That number grew by more than 30 percent to 691 complaints received in fiscal 2016, reaching highs of 780 and 790 for complaints received in fiscal years 2012 to 2013.

Complaint investigations that the agency closes every fiscal year have fluctuated since fiscal 2007, between a low of 84 in fiscal 2009 and a high of 232 in fiscal 2013.

Most Common Claims: Disability, Veterans’ Bias

The OFCCP has closed about 1,003 complaint investigations from fiscal 2011 through March 8, 2017.

Those complaints contained roughly 1,575 different claims of discrimination.

Of those claims, bias based on disability and veterans’ status appeared most often at 437 and 369, respectively, making up about 28 percent and 23 percent of total claims.

The OFCCP is the only federal enforcement agency that provides affirmative action and nondiscrimination protections based on veteran status.

On March 27, the agency reached a $50,000 disability discrimination settlement with an Iowa munitions manufacturer. The bias claims stemmed from a complaint filed with the OFCCP by two former security officers who alleged their disabilities weren’t reasonably accommodated.

Race and sex discrimination followed with 316 claims and 211 claims, respectively. The majority of race discrimination claims were brought by black workers—about 77.5 percent. Women brought the majority of sex bias claims, at about 73 percent.

Individual Complaints Outnumber Class Complaints

Under its governing rules, the OFCCP must accept and investigate complaints that fall within its jurisdiction, that is, when an employee works for a covered government contractor and alleges a type of discrimination prohibited under Executive Order 11,246, Section 503 of the Rehabilitation Act or the Vietnam Era Veterans’ Readjustment Assistance Act.

The OFCCP focuses on systemic discrimination when it analyzes government contractors’ employment data during audits. In other words, the agency tries to identify a companywide pattern, practice or policy that has a discriminatory effect on a broad class of workers.

Generally, it will also keep and investigate complaints alleging systemic discrimination. The agency must refer individual complaints outside of its jurisdiction to the Equal Employment Opportunity Commission, if the EEOC might have jurisdiction over those claims.

However, it appears that the OFCCP has been retaining and investigating more individual complaints than class complaints.

Of the 1,003 complaints closed since fiscal 2011, only 150 included class claims, or about 15 percent. The remainder were individual claims.

The number of complaints that included class claims also appears to be declining, reaching a high of 45 in fiscal 2013 and dropping to 15 by fiscal 2016.

To contact the reporter on this story: Jay-Anne B. Casuga in Washington at jcasuga@bna.com; Jasmine Ye Han in Washington at yhan@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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