Title 38, United States Code § 4212(a) establishes a federal requirement that any “party contracting with the United States take affirmative action to employ and advance in employment qualified covered veterans.” Duke University is a prime contractor engaging in business with multiple agencies of the United States government.
On October 25, 2016, the Department of Labor (DoL) Office of Federal Contracts Compliance Programs (OFCCP) initiated what that agency claims was an “investigation” following multiple allegations of discrimination, noncompliance, and retaliation by a protected disabled veteran.
Title 41, Code of Federal Regulations § 60-300.44(e) mandates that “the contractor must develop and implement procedures to ensure that its employees are not harassed because of their status as a protected veteran.” At the time the OFCCP investigation began, multiple policy documents and practices excluded veteran status, including but not limited to the University’s
- “Discrimination Grievance Procedure”
- “Harassment Policy and Procedures”
- Task Force on Bias and Hate Issues “Final Report”
- “A Review of Duke University’s Grievance and Complaint Procedures for Fairness and Related Requirements for Contractors”
Despite this violation of contractually binding federal regulations, OFCCP failed to find sufficient evidence of a violation. The claimant maintains that the agency conducted a “Compliance Review” rather than an investigation, based on statements by OFCCP’s Southeast Regional Director, the Raleigh Area Assistant District Director, and the local field office’s own Compliance Officer. This is significant because, per the OFCCP “Investigative Plan” outlined in the Federal Contracts Compliance Manual § 6F01(b), “The [Compliance Officer] should obtain copies of all documents that explain any policy or practice bearing on the allegations in the complaint.”
Had the Department of Labor conducted an investigation in accordance with their own manual, OFCCP officers would have acquired the above named documents and found the University in noncompliance with 41 CFR 60-300.44(e). However,these documents were never obtained by the OFCCP Compliance Officer or any other Department of Labor official.
On November 7, 2016, several months after OFCCP’s “investigation” began, Duke University altered the policies without notice. The only change made to these two documents was the addition of “veteran status” to the end of two lists of bases upon which discrimination is forbidden at Duke. Title 18 United States Code, Chapter 73 (§§ 1505, 1519) makes it a federal crime to alter records or documents in such a way to influence or impede “the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States.”
If, as OFCCP has insisted, an investigation did occur, then Duke University has committed a federal crime by obstructing justice. On the other hand, if OFCCP in fact only conducted what it’s own administrators called a “Compliance Review,” then the Department of Labor has failed to uphold it’s statutory obligations under 38 USC § 4212.