The Department of Labor’s Office of Federal Contracts Compliance and Programs (OFCCP) denied Logan Isaac due process in several ways in the course of their investigation of his complaint against Duke University.
According to the DoL’s Federal Complaints Compliance Manual (FCCM), the field office “must complete” investigations within 60 calendar days (FCCM § 6C06, p.198). An extension of 120 days can be approved by the regional director, for a total window of 180 days from initial receipt of the complaint to finalizing the investigation. The FCCM allows for 60 days of conciliation efforts, but Duke declined all invitations of conciliation, so that is not applicable in Isaac’s case.
The NC field office received his complaint on September 13, 2016 and he was told of his case being closed on June 22, 2017. This is a length of 282 days, exceeding DoL timeliness standards by 102 days.
Standards in Conflict
The standard that Duke University establishes for itself in their Affirmative Action Plan (AAP) is a Preponderance of Evidence, also known as the 51% test. It is the lowest burden of proof. An OFCCP finding of “No Violation” is the legal equivalent of saying ‘the DoL finds that all the evidence supplied (anecdotal, circumstantial, and direct) is not enough to persuade a reasonable person that it is more likely (51%) that bias, harassment, and discrimination is more likely effect of chance rather than the effect of systemic discrimination.’
However, in order to establish whether discrimination is systemic, OFCCP looks for Statistical Significance (FCCM Glossary, p.321), a much higher standard than Preponderance. Statistical significance is typically very difficult to establish; two standard deviations usually equates to a five percent threshold. Nothing in my Isaac’s case file, which were acquired through the Freedom of Information Act (FOIA), indicates any statistical analyses were conducted.
Notice of Results
When an investigation is complete, the complainant is informed and may be given ten business days to provide additional information (FCCM § 6J01a, p. 223). On June 22, 2017, Isaac was told on the phone that the DoL did not find sufficient evidence and offered this ten day window. In a follow up email a day after that call, he asked investigators the following questions;
- Did OFCCP conduct an Impact Ratio Analysis, and if so, what were its findings? (FCCM, p.304)
- Did OFCCP conduct a Regression Analysis, and if so, what were its findings? (FCCM, p.317)
- What percentage of veteran employees would be “statistically significant” to warrant a violation or investigation thereof? (FCCM p.321)
- Did Duke provide “support Data” that sufficiently justified the pattern of discrimination? (FCCM p.322) According to FCCM § 2L02, the burden of proof is on the university, not upon the claimant.
DoL officials informed Isaac that they were not required to answer any of his questions and reiterated their request for additional information. Isaac pointed out that he had reason to believe that 1) some of the information reported was never investigated, 2) some of the information had been improperly interpreted, and 3) demonstrably false information had been tolerated by the DoL.
Without answering Isaac’s concerns, he was sent their Notice of Results of Investigation, or NORI, on July 6, 2016, more than 24 hours prematurely. The additional information provided was ignored.