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Justice Department’s Immigrant and Employee Rights Section Offers Webinars for Advocates (Dec. 2017)

Sunday, December 17th, 2017

The Immigrant and Employee Rights Section (IER) is offering a number of free, informative webinars for the public in December and January. These include webinars for workers, employers, and advocates. Please review IER’s webinar schedule to choose the right presentation for you.

IER enforces the anti-discrimination provision of the Immigration and Nationality Act. This law prohibits citizenship, immigration status, and national origin discrimination in hiring, firing, or recruitment or referral for a fee; unfair documentary practices; retaliation and intimidation. For more information visit www.justice.gov/ier.

Tuesday, December 12, 2017 at 2:00 pm ET
IER Worker/Advocate webinar

Wednesday, January 10, 2018 at 2:00 pm ET
IER Worker Advocate webinar

Thursday, January 25, 2018 at 11:00 am ET
IER Employer/HR Representative webinar

Immigrant and Employee Rights: Saipan Restaurant Distributes $40,000 in Back Pay to U.S. Workers Under Justice Department Settlement (Dec. 2017)

Sunday, December 10th, 2017

The Justice Department announced today that J.E.T. Holding Co. Inc. (JET) has paid $40,000 to nine U.S. citizens pursuant to a settlement with the department. The payments, which JET distributed last week, are part of a Jan. 17, 2017, settlement that resolved claims that JET discriminated against U.S. workers in favor of temporary foreign visa workers, in violation of the Immigration and Nationality Act (INA).

In its investigation leading up to the settlement, the department found that from approximately January to June 2016, JET, which operates a restaurant in Saipan, routinely refused to hire qualified U.S. citizens and other work-authorized individuals, including lawful permanent residents, for dishwasher positions because of their citizenship status. Instead, JET preferred to fill the positions with temporary foreign visa workers, according to the department’s investigation. Under the INA, employers cannot prefer to hire temporary foreign visa workers over available and qualified U.S. workers based on citizenship status. Individuals born in Saipan are U.S. citizens and its population includes work-authorized lawful permanent residents, asylees and refugees.

After the investigation was resolved through a settlement, the department’s Civil Rights Division and the United States Attorney Office for the District of Guam collaborated to identify individuals affected by the alleged discrimination. The department determined that nine U.S. citizens were eligible to receive back pay, and the payments JET distributed to them last week exhausted the $40,000 back pay fund established under the agreement.

“We are pleased that U.S. workers received back pay to compensate them for the discrimination they faced, and that JET has worked to improve its hiring practices,” said John M. Gore, Acting Assistant Attorney General of the Civil Rights Division. “The Justice Department is committed to holding employers accountable when they place U.S. workers in a second class status.”

The division’s Immigrant and Employee Rights Section (IER) is responsible for enforcing the anti-discrimination provision of the INA. The law prohibits, among other things, citizenship, immigration status and national origin discrimination in hiring, firing or recruitment or referral for a fee; unfair documentary practices in employment eligibility verification; retaliation; and intimidation.

In February 2017, IER launched its Protecting U.S. Workers Initiative, an initiative aimed at targeting, investigating, and bringing enforcement actions against companies that discriminate against U.S. workers in favor of foreign visa workers. IER filed the first suit as part of the Initiative in October against a Loveland, Colorado, company for allegedly discriminating against U.S. workers.

To learn more about the protections against employment discrimination under immigration laws, call IER’s worker hotline at 1-800-255-7688 (1-800-237-2515, TTY for hearing impaired); call IER’s employer hotline at 1-800-255-8155 (1-800-237-2515, TTY for hearing impaired); sign up for a free webinar at www.justice.gov/crt/about/osc/webinars.php; email osccrt@usdoj.gov(link sends e-mail); or visit IER’s website at www.justice.gov/crt/about/osc.

Applicants or employees who believe they were subjected to: different documentary requirements based on their citizenship status, immigration status or national origin; or discrimination based on their citizenship status, immigration status or national origin in hiring, firing or recruitment or referral, should contact the worker hotline above for assistance.

Office of Disability Employment Policy Newsletter (Dec. 8, 2017)

Sunday, December 10th, 2017

Careers in the Arts Dialogue Starts Today Through December 15
Today through December 15, you’re invited to participate in an ePolicyWorks online dialogue hosted by ODEP and the National Endowment for the Arts. This dialogue will gather valuable input on ways to foster the inclusion of people with disabilities in the arts. Feedback from this dialogue will inform NEA’s effort to create a comprehensive toolkit to help students and job seekers with disabilities thrive in careers in the arts. Please join this crowdsourcing event to submit your ideas, votes, and comments on the strategies, challenges, and solutions that will help create better employment opportunities.

ODEP Publishes #ApprenticeshipWorks Guides
Apprenticeship is a growing strategy for connecting more workers with the skills they need to get jobs. ODEP’s efforts in apprenticeship promote inclusive program models that fulfill employer needs by attracting a diverse array of candidates, including people with disabilities. ODEP released its #ApprenticeshipWorks Guides for Youth, Educators/Service Providers, and Business which introduce each stakeholder group to the benefits and opportunities of inclusive apprenticeship. ODEP published a blog about apprenticeships and disability, titled “Apprenticeship and the American Dream.” The blog examines the many advantages of apprenticeships in today’s economy for both employers and employees, including individuals with disabilities.

Two New Posts from the Ask JAN Blog
The Job Accommodation Network has posted two new blogs. In a piece titled “Breaking the Mold with Workplace Accommodations,” Brittany Lambert, Consultant on the JAN Sensory and Cognitive/Neurological Teams, discusses the topic of accommodating employees with mold allergies. In “Observations from the 2017 Harkin Summit,” Lou Orslene, JAN Co-Director, reflects on his attendance at the Harkin Summit on Global Disability Employment, held November 2-3, 2017. The Summit brought together employers, nonprofit organizations, foundations, and others to focus on the employment of people with disabilities.

JAN Releases Latest “Consultants’ Corner” on Disability Awareness Training
Through the Job Accommodation Network’s “Consultants’ Corner,” JAN consultants provide advice and guidance on important issues related to accommodations in the workplace. In the latest feature, Melanie Whetzel, Lead Consultant on the JAN Cognitive/Neurological Team, highlights the situations that may arise with co-workers when an employee receives an accommodation. Since employers cannot disclose disability-related information about an employee to others, sometimes misunderstandings can occur when someone appears to be receiving “special” treatment. Whetzel presents several solutions, including providing disability awareness training to all employees and informing them of their right to accommodations should they need them.

New ODEP Policies in Practice Profile — John Winfrey
John Winfrey is a Senior Technical Account Manager and Cloud Service Delivery Manager at Microsoft. John, who is legally blind, leads a team that supports government sector clients. He is also a Section 508 coordinator, helping ensure that Microsoft products are accessible to everyone. At work, he uses magnification software and large screen monitors as accommodations. In his spare time, John is a volunteer with the Knights of Columbus, and enjoys spending time with his grandchildren.

For more information, go to www.dol.gov/odep.

On-Demand Civil Rights Webcasts Available: Delivering Public-Facing Programs and Activities in Compliance with Federal Law

Friday, December 1st, 2017

Delivered by Civil Rights Expert and Author Seena Foster

In 2017, State and local government officials are applauding the webcasts, stating they are “outstanding,” “very informative,” and “extremely useful.” Each webcast is only $29.00.

Available Selection

Compliance with Title VI of the Civil Rights Act: An Overview

Compliance with the Nondiscrimination and Equal Opportunity Provisions of the Workforce Innovation and Opportunity Act: A Comprehensive Overview

Discrimination Complaint Investigations under the Workforce Innovation and Opportunity Act:  Proper Process and Technique

State and local government officials responsible for the delivery of, or monitoring the delivery of, services, aid, training, or benefits to the public must comply with Federal civil rights laws. These laws also apply to service providers, on-the-job trainers, contractors, and partners that assist in delivering public-facing programs and activities. Our webcasts provide practical training for new and experienced professionals working in the area of equal opportunity.

Because the webcasts are on-demand and certificate-based, they provide a convenient and inexpensive way to acquire and document training of staff, contractors, service providers, and partners.

How to register:
To register, simply click on the “Webcast Registration” icon on the left side of this blog. Or, go to https://engage.vevent.com/rt/titleviconsulting.

Cost-effective.  Only $29.00 each. No travel costs.  No lost time from work. These webcasts are absolutely the best value for your dollar!

Content-rich.  Each webcast is packed with useful information, guidance, and helpful tips. Each participant receives a copy of the detailed PowerPoint presentation for the webcast, which may be used as a checklist going forward.

Certificate-based.  Within three to five weeks, each participant who registers and attends the webcast will receive a personalized, signed “Certificate of Completion” to document the training.  

Title: Compliance with Title VI of the Civil Rights Act: An Overview
Description:
This popular webcast provides an informative overview of how to comply with the nondiscrimination mandates of Title VI of the Civil Rights Act of 1964. Title VI applies to the administration, oversight, and delivery process of all state and local programs and activities that are federally-assisted. In this webcast, we’ll focus on the scope and meaning of Title VI of the Civil Rights Act, and we will touch on a variety of compliance-related issues, including environmental justice, serving limited English proficient populations, contracting and procurement, discrimination complaints, harassment and hostile environment, training, monitoring, and data collection. Participants will understand the meaning of race, color, and national origin-based discrimination through Ms. Foster’s use of a variety of easy-to-understand examples. And, participants will learn about surprising federal enforcement policies to include certain types of religious-based discrimination as prohibited under Title VI. A detailed PowerPoint is available for download to viewers of this webcast.

Title: Compliance with the Nondiscrimination and Equal Opportunity Provisions of the Workforce Innovation and Opportunity Act: A Comprehensive Overview
Description: 
This webcast provides a wealth of information, guidance, and tips to help you ensure compliance with the nondiscrimination and equal opportunity provisions of Section 188 of the Workforce Innovation and Opportunity Act (WIOA), and related Federal civil rights laws that apply to the administration, oversight, and delivery process for WIOA Title I-financially assisted programs and activities. In this webcast, we’ll cover a broad range of compliance issues, including taglines, assurances, Equal Opportunity officers (their selection and duties, and the recipients’ obligations in support of EO officers), serving persons with disabilities, serving LEP populations, differences between program complaints and discrimination complaints, harassment and hostile environment, and data collection, including requirements for the discrimination complaint log and storage of medical information. A detailed PowerPoint, updated after promulgation of the final version of the WIOA regulations at 29 C.F.R. Part 38, is available for download to viewers of the webcast.

Title: Discrimination Complaint Investigations under the Workforce Investment Act:  Proper Process and Technique
Description:
This webcast covers the discrimination complaint investigation process from start to finish, including determining jurisdiction, developing a complaint investigation plan, framing the issue of an investigation, developing interrogatories, preparing a letter of acceptance, gathering and analyzing information, interviewing the parties and witnesses, and writing the notice of final action.  Each participant of this webcast will receive a set of templates that they may customize and use for their investigations, including a jurisdiction checklist, sample complaint investigation plans, sample notices rejecting a complaint, a sample letter of acceptance, and a sample notice of final action. Complaint investigation templates and a detailed PowerPoint are available for download to viewers of the webcast. Complaint processing templates and a detailed PowerPoint are available for download to viewers of the webcast.

About Seena Foster
Seena Foster, award-winning civil rights author and Principal of the discrimination consulting firm, Title VI Consulting in Alexandria, Virginia, provides expertise and guidance in the areas of compliance and civil rights investigations to state and local governments, colleges and universities, private companies, and non-profit organizations. To that end, she offers one-hour on-demand webcasts, full-day and half-day in-person training sessions, discrimination complaint investigation assistance, and mediation services addressing a variety of types of discrimination such as racial discrimination, sex discrimination, disability discrimination, age discrimination, and religious discrimination. Federal non-discrimination laws are complex, and they affect our workplaces as well as the delivery of our Federally-funded programs and activities. Her book, Civil Rights Investigations under the Workforce Investment Act and Other Title VI Related Laws: From Intake to Final Determination, has been described as an “eye-opening” reading experience and a “stand-alone” training resource. Ms. Foster’s resources and materials are designed to support the work of civil rights and discrimination professionals in the public and private sectors.

Her background includes 24 years as Senior Legal Advisor to the U.S. Labor Department’s Office of Administrative Law Judges, where she drafted decisions and orders and developed resources and aids promoting consistency and efficiency in several national adjudication programs. In 2012, Ms. Foster received the U.S. Secretary of Labor’s Exceptional Achievement Award “for outstanding leadership and legal guidance in helping the Office of Administrative Law Judges address the major changes in law” stemming from enactment of the Patient Protection and Affordable Care Act.

In 2003, Ms. Foster served as a Senior Policy Analyst to the U.S. Department of Labor’s Civil Rights Center (CRC). In that capacity, she led a team of equal opportunity specialists to conduct disability-based technical assistance reviews of One-Stop centers, and she assisted the CRC’s leadership in preparing for limited English proficiency-based compliance reviews. Ms. Foster also analyzed and weighed witness statements and documents to prepare numerous final determinations for signature by CRC Director Annabelle Lockhart, which resolved discrimination complaints under a variety of federal civil rights laws such as Title VI of the Civil Rights Act, the Age Discrimination Act, the Rehabilitation Act, the Americans with Disabilities Act, and Section 188 of the Workforce Investment Act.

In 2006, Ms. Foster received the Secretary of Labor’s Equal Employment Opportunity Award in recognition of “exceptional efforts to ensure that individuals with disabilities have full access to employment and related services and benefits at the Nation’s One-Stop Career Centers.” And, at the request of the CRC, Ms. Foster served as a popular workshop speaker at national equal opportunity forums co-sponsored by the CRC and the National Association of State Workforce Agencies. Her presentations covered topics such as the Section 188 disability checklist, conducting discrimination complaint investigations and writing final determinations, and conducting investigations of allegations involving harassment and hostile environment.

Ms. Foster is a graduate of the George Washington University Law School, and she carries certification in federal workplace mediation from the Northern Virginia Mediation Service as well as mediation certification from the Defense Equal Opportunity Management Institute (DEOMI). Ms. Foster also is a member of the Human Rights and Discrimination Law committees of the International Bar Association. You may contact her at seena@titleviconsulting.com.

Paperback and E-Book: Conducting Civil Rights Investigations in Government Programs and Activities

Friday, December 1st, 2017

This is the only book on the market that focuses on discrimination complaint investigations in a wide range of Federally-assisted, public-facing programs and activities! Reviews by State and local equal opportunity officials in 2017 include “I love your book,” and the book is “outstanding,” “easy to follow,” and “extremely useful.”

Paperback:
Cost: $19.99 per copy

Go to www.outskirtspress.com/civilrights; or

Email the author at seena@titleviconsulting.com, and you will receive an invoice by PayPal; or

Mail a check for $19.99 per book (plus $3.00 per book for shipping and handling in the United States) payable to Title VI Consulting at 107 S. West St., PMB 713, Alexandria, VA 22314.

Electronic book:
Cost: $9.99 per electronic copy

Available through Nook, or Kindle. For iPad and iTunes, you’ll find the book in the “Law Library.” Access the e-book through the publisher at http://www.outskirtspress.com/civilrights.

Reviewers describe the book as “the most thorough and the best product on the market,” “an eye-opening experience,” “an excellent reference book,” and “an invaluable resource for its target audience of professionals who must respond to complaints of discrimination.”

About the Book

In Civil Rights Investigations, Ms. Foster assembles a tremendous amount of information, presents it in an organized and easy-to-understand format, and delivers it to you along with practical and useful guidance. Whether you are a novice or expert, this book is a truly exceptional resource that takes you step-by-step through the investigative process. And, the teachings offered are applicable to any discrimination complaint investigation.

Starting with the basics of knowing whether you have a complaint and authority to investigate it, to navigating more in-depth concepts such as understanding the burdens of the parties, properly framing the issues of an investigation, interviewing witnesses, analyzing conflicting evidence, and writing final determinations, Civil Rights Investigations is with you each step of the way, providing insights, tips, and examples.

A wide array of discriminatory bases is explored, including race, color, national origin, gender, sexual harassment, religion, disability, political affiliation, citizenship, and age. And, the book contains sample interrogatories covering numerous adverse actions in government programs such as denial of access, denial of training, denial of services, denial of benefits, and denial of proposals or bids. Other sample interrogatories address adverse actions in the workplace, such as sexual harassment, reasonable accommodation, reasonable modification, retaliation, termination, non-selection, non-promotion, adverse performance appraisals, and damages. Finally, the book contains a jurisdiction checklist as well as templates for every stage of the investigation–from notifying the parties that you do not have jurisdiction to investigate a complaint or notifying the parties you have accepted a complaint for investigation to sample complaint investigation plans and a sample final determination on the merits of a complaint.

Civil Rights Investigations is packed with useful information, and it serves as a top-of-the-line resource for any public or private sector equal opportunity professional.

Civil Rights Investigations addresses several Federal civil rights statutes, including Titles VI and VII of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, the Americans With Disabilities Act of 1990 and the Americans With Disabilities Act Amendments of 2008, Title IX of the Education Amendments Act of 1972, and the Age Discrimination Act of 1975. Its guidance, however, is useful in any civil rights discrimination investigation, and in developing and implementing preventative measures.

Reviews of the Book

Get this one-of-a-kind book judged by a panel of industry experts as a Finalist in the Business Reference category of The USA “Best Books 2011″ Awards, sponsored by USA Book News. The book also received a Bronze Medal in the Government/Politics category (top 5% of over 3,000 entries) for the 2012 International Readers Favorite Book Awards. And, in October 2012, Ms. Foster was announced as a “Finalist of 50 Great Writers You Should Be Reading,” presented by The Authors Show. In October 2013, Civil Rights Investigations was Amazon’s Featured Title of the Week.

Lisa Connor states: “You obviously have a passion for your subject matter–you present your findings in a very well-researched, thorough manner. … I have to say that you have put together an excellent piece”

Omoye Cooper of Albany, New York states: “I have worked in the field of Equal Opportunity for over 30 years and have attended numerous trainings on EO investigations. After attending Seena Foster’s Civil Rights Investigations workshop, I can say without a doubt that it is the most thorough and the best product on the market. Ms. Foster not only gives the technical information, but she also provides step by step guidelines and tools for effective implementation.”

“Ms. Foster’s workshops and book, “Civil Rights Investigations,” are professional resources that are highly recommended for all new and seasoned AA and EEO practitioners. Utilization of her materials will help new EEO professionals build a solid knowledge base that will make it possible to conduct defendable investigations; and for the veteran practitioners, it will take you to another level. Outstanding!”

Readers Favorite (5 out of 5 star ratings):

Brenda Ballard states: Discrimination is a very real problem in the work place but what can a person do? Seena K. Foster, author of “Civil Rights Investigations Under the Workforce Investment Act” leads the reader through the law, the process and the various scenarios of the subject. Citing law and providing examples of letters and check lists, information is outlined in concise and understandable terms. The subject matter is broken down into the simplest legal language possible considering the depth and complexity. Believable examples make sense of it all, guiding the reader step by step.

As anybody knows, legal reading can be dry and confusing. Admittedly, there were a few places I personally had to re-read but that would be attributed to my own lack of experience with the subject. I found the examples very useful and was able to utilize the bullet points and checklists to realize the meaning of it all. It was an eye-opening learning experience to read this book! I never realized how much is involved in filing such a suit, getting an investigation underway, working with both parties, and finding resolution. Businesses should consider having this book in their own library as a reference guide in their personnel department. This work could be used as a stand-alone in training sessions for employees and managements. The tremendous effort the author has put into “Civil Rights Investigations Under the Workforce Investment Act” is immediately evident. Nothing is left to question and, should there be any residual wonder, references can be looked up. Highly recommended! 5 out of 5 stars!

Lori M. states: Because I am currently taking a graduate-level Human Resources class in Employment Law, this book about civil rights investigations by Seena K. Foster interested me very much. This would make an excellent reference book for HR managers, lawyers, and anyone involved in employee or labor issues. It is very well-organized and provides just the right amount of information that you need on a number of different topics. Foster, who has a law degree, does a good job making the contents interesting, understandable, and easy to follow.

There are specific sections defining race, color, national origin, gender, religion, age, citizenship, and disability issues in depth so that any reader can understand what constitutes the definition of discrimination against each. Additionally, she takes you through the steps of how to determine whether or not you have a discrimination complaint, a glossary of terms, jurisdiction, and filing the complaint. I like how Foster included easy-to-use checklists throughout the book to graphically depict what she has already told you in the text. It is a good way to help the reader grasp the information provided and double-check the details. This book talks about statutes of limitations and time frames within which a party has to file a complaint, notifying the parties of a complaint, jurisdictional issues, and even alternative dispute resolution topics such as arbitration or mediation. This book is a great toolkit for those interested in employment law matters dealing with civil rights investigations under the workforce investment act and Title VI-related laws. 5 out of 5 stars!

Alice D. states: “Civil Rights Investigations Under the Workforce Investment Act and Other Title VI Related Laws” is a book that really needed to be written and now it has been, thank goodness! Author Seena Foster has created a book that focuses on the treatment of individual and class action complaints. From the beginning where she asks the readers to decide whether they have a complaint and whether there is jurisdiction to investigate the complaint, Foster clearly establishes that those pursuing an issue such as discrimination must have merit; in other words, they must have a covered basis such as race, gender and nationality. She is quite clear in insisting that the person charged with the complaint must receive federal funds, and the CP, the charging party, must know how to organize a complaint, how to fill it with statistics and witness information. Then she shows the reader how exactly the CP and the respondent must reply in cases involving such things as employment, hostile work environ ment, and disability. She discusses sexual harassment, especially in the school environment, and writes about the use of mediation in helping parties come to a mutually acceptable solution. Do you think your civil rights have been violated at work? This is the book for you.

“Civil Rights Investigations” is not the type of book that people will grab off bookstore shelves, but they should. Author Seena Foster discusses, clearly and concisely, how the charging party and the respondent should respond in a variety of cases. Chapter after chapter deals with how to handle potential civil rights violations in the workplace and in federally funded programs and activities that have an impact on all of us. The author states that those filing the complaint must give details like why they were not hired, etc., and those who answer the claim must show the same clarity in their response. Specific and easy to read, this book should be in readers’ hands everywhere. 5 out of 5 stars!

Laurie Gray states: “Civil Rights Investigations under the Workforce Investment Act and Other Title VI-Related Laws from Intake to Final Determination” by Seena K. Foster offers guidance to professionals handling discrimination complaints for governmental agencies and employers that receive federal funding covered by the Workforce Investment Act of 1964. The book focuses on individual and class actions as opposed to third-party complaints, identifying and devoting a chapter to each protected class: race, color, national origin, sex, religion, disability, citizenship, age, political affiliation and belief. The chapters on sexual harassment, religion, and disability are most comprehensive. Foster provides specific examples, sample notices, and clear explanations on how to assess the merit of each complaint, properly frame the issues, develop a Complaint Investigation Plan, and investigate complaints without violating confidentiality policies. She further outlines the relevant burdens of proof and reliability of direct, circumstantial and comparative evidence. Though not for the average lay person, this book is an invaluable resource for its target audience of professionals who must respond to complaints of discrimination in a timely and consistent manner or risk losing their agencies’ federal funding. Ms. Foster clearly understands complex federal laws and regulations and concisely organizes the information in a user-friendly way, highlighting important deadlines, providing detailed questions to ask complaining parties and respondents, and encouraging professionals to seek competent legal advice when necessary. An introduction, conclusion and biography outlining the author’s credentials would be helpful additions to the next edition of the book. I do hope that Ms. Foster will update this informative guide as the laws continue to evolve. 5 out of 5 stars!

Fair Housing News (Nov. 29, 2017)

Wednesday, November 29th, 2017

Dear Colleague,

WASHINGTON – The newest edition of “Programs of HUD” has been posted. It may be found on the HUD.gov public website, and also at this direct link: https://www.hud.gov/hudprograms. This document provides a broad summary of HUD programs, along with the corresponding statutory and regulatory authorities.

People who believe they have experienced discrimination may file a complaint by contacting HUD’s Office of Fair Housing and Equal Opportunity at (800) 669-9777 (voice) or (800) 927-9275 (TTY). Housing discrimination complaints may also be filed by going to hud.gov/fairhousing, or by downloading HUD’s free housing discrimination mobile application, which can be accessed through Apple and Android devices.

November Issue of FTA Transit Safety and Oversight Spotlight Newsletter Now Available (Nov. 2017)

Wednesday, November 29th, 2017

A new issue of the Transit Safety and Oversight Spotlight newsletter is now available.

The November edition includes a recap of the 2017 Joint State Safety Oversight and Rail Transit Agency Workshop, an update on FTA’s Safety Management System pilot at the Chicago Transit Authority, upcoming events and safety training, and more.

Please share the newsletter with colleagues and send comments to FTASafetyStakeholder@dot.gov.

EEOC: Promising Practices for Preventing Workplace Harassment (Nov. 2017)

Tuesday, November 28th, 2017

As many employers recognize, adopting proactive measures may prevent harassment from occurring. Employers implement a wide variety of creative and innovative approaches to prevent and correct harassment.

The Report of the Co-Chairs of EEOC’s Select Task Force on the Study of Harassment in the Workplace (“Report”) identified five core principles that have generally proven effective in preventing and addressing harassment:

Committed and engaged leadership;
Consistent and demonstrated accountability;
Strong and comprehensive harassment policies;
Trusted and accessible complaint procedures; and
Regular, interactive training tailored to the audience and the organization.

The Report includes checklists based on these principles to assist employers in preventing and responding to workplace harassment. The promising practices identified in this document are based primarily on these checklists. Although these practices are not legal requirements under federal employment discrimination laws, they may enhance employers’ compliance efforts.

A. Leadership and Accountability

The cornerstone of a successful harassment prevention strategy is the consistent and demonstrated commitment of senior leaders to create and maintain a culture in which harassment is not tolerated. This commitment may be demonstrated by, among other things:

Clearly, frequently, and unequivocally stating that harassment is prohibited;
Incorporating enforcement of, and compliance with, the organization’s harassment and other discrimination policies and procedures into the organization’s operational framework;
Allocating sufficient resources for effective harassment prevention strategies;
Providing appropriate authority to individuals responsible for creating, implementing, and managing harassment prevention strategies;
Allocating sufficient staff time for harassment prevention efforts;
Assessing harassment risk factors and taking steps to minimize or eliminate those risks; and
Engaging organizational leadership in harassment prevention and correction efforts.

In particular, we recommend that senior leaders ensure that their organizations:

Have a harassment policy that is comprehensive, easy to understand, and regularly communicated to all employees;
Have a harassment complaint system that is fully resourced, is accessible to all employees, has multiple avenues for making a complaint, if possible, and is regularly communicated to all employees;
Regularly and effectively train all employees about the harassment policy and complaint system;
Regularly and effectively train supervisors and managers about how to prevent, recognize, and respond to objectionable conduct that, if left unchecked, may rise to the level of prohibited harassment;
Acknowledge employees, supervisors, and managers, as appropriate, for creating and maintaining a culture in which harassment is not tolerated and promptly reporting, investigating, and resolving harassment complaints; and
Impose discipline that is prompt, consistent, and proportionate to the severity of the harassment and/or related conduct, such as retaliation, when it determines that such conduct has occurred.

In addition, we recommend that senior leaders exercise appropriate oversight of the harassment policy, complaint system, training, and any related preventive and corrective efforts, which may include:

Periodically evaluating the effectiveness of the organization’s strategies to prevent and address harassment, including reviewing and discussing preventative measures, complaint data, and corrective action with appropriate personnel;
Ensuring that concerns or complaints regarding the policy, complaint system, and/or training are addressed appropriately;
Directing staff to periodically, and in different ways, test the complaint system to determine if complaints are received and addressed promptly and appropriately; and
Ensuring that any necessary changes to the harassment policy, complaint system, training, or related policies, practices, and procedures are implemented and communicated to employees.

To maximize effectiveness, senior leaders could seek feedback about their anti-harassment efforts. For example, senior leaders could consider:

Conducting anonymous employee surveys on a regular basis to assess whether harassment is occurring, or is perceived to be tolerated; and
Partnering with researchers to evaluate the organization’s harassment prevention strategies.

B. Comprehensive and Effective Harassment Policy

A comprehensive, clear harassment policy that is regularly communicated to all employees is an essential element of an effective harassment prevention strategy. A comprehensive harassment policy includes, for example:

A statement that the policy applies to employees at every level of the organization, as well as to applicants, clients, customers, and other relevant individuals;
An unequivocal statement that harassment based on, at a minimum, any legally protected characteristic is prohibited;
An easy to understand description of prohibited conduct, including examples;
A description of any processes for employees to informally share or obtain information about harassment without filing a complaint;
A description of the organization’s harassment complaint system, including multiple (if possible), easily accessible reporting avenues;
A statement that employees are encouraged to report conduct that they believe may be prohibited harassment (or that, if left unchecked, may rise to the level of prohibited harassment), even if they are not sure that the conduct violates the policy;
A statement that the employer will provide a prompt, impartial, and thorough investigation;
A statement that the identity of individuals who report harassment, alleged victims, witnesses, and alleged harassers will be kept confidential to the extent possible and permitted by law, consistent with a thorough and impartial investigation;
A statement that employees are encouraged to respond to questions or to otherwise participate in investigations regarding alleged harassment;
A statement that information obtained during an investigation will be kept confidential to the extent consistent with a thorough and impartial investigation and permitted by law;
An assurance that the organization will take immediate and proportionate corrective action if it determines that harassment has occurred; and
An unequivocal statement that retaliation is prohibited, and that individuals who report harassing conduct, participate in investigations, or take any other actions protected under federal employment discrimination laws will not be subjected to retaliation.

In addition, effective written harassment policies are, for example:

Written and communicated in a clear, easy to understand style and format;
Translated into all languages commonly used by employees;
Provided to employees upon hire and during harassment trainings, and posted centrally, such as on the company’s internal website, in the company handbook, near employee time clocks, in employee break rooms, and in other commonly used areas or locations; and
Periodically reviewed and updated as needed, and re-translated, disseminated to staff, and posted in central locations.

C. Effective and Accessible Harassment Complaint System

An effective harassment complaint system welcomes questions, concerns, and complaints; encourages employees to report potentially problematic conduct early; treats alleged victims, complainants, witnesses, alleged harassers, and others with respect; operates promptly, thoroughly, and impartially; and imposes appropriate consequences for harassment or related misconduct, such as retaliation.

For example, an effective harassment complaint system:

Is fully resourced, enabling the organization to respond promptly, thoroughly, and effectively to complaints;
Is translated into all languages commonly used by employees;
Provides multiple avenues of complaint, if possible, including an avenue to report complaints regarding senior leaders;
Is responsive to complaints by employees and by other individuals on their behalf;
May describe the information the organization requests from complainants, even if complainants cannot provide it all, including: the alleged harasser(s), alleged victim(s), and any witnesses; the date(s) of the alleged harassment; the location(s) of the alleged harassment; and a description of the alleged harassment;
May include voluntary alternative dispute resolution processes to facilitate communication and assist in preventing and addressing prohibited conduct, or conduct that could eventually rise to the level of prohibited conduct, early;
Provides prompt, thorough, and neutral investigations;
Protects the privacy of alleged victims, individuals who report harassment, witnesses, alleged harassers, and other relevant individuals to the greatest extent possible, consistent with a thorough and impartial investigation and with relevant legal requirements;
Includes processes to determine whether alleged victims, individuals who report harassment, witnesses, and other relevant individuals are subjected to retaliation, and imposes sanctions on individuals responsible for retaliation;
Includes processes to ensure that alleged harassers are not prematurely presumed guilty or prematurely disciplined for harassment; and
Includes processes to convey the resolution of the complaint to the complainant and the alleged harasser and, where appropriate and consistent with relevant legal requirements, the preventative and corrective action taken.

We recommend that organizations ensure that the employees responsible for receiving, investigating, and resolving complaints or otherwise implementing the harassment complaint system, among other things:

Are well-trained, objective, and neutral;
Have the authority, independence, and resources required to receive, investigate, and resolve complaints appropriately;
Take all questions, concerns, and complaints seriously, and respond promptly and appropriately;
Create and maintain an environment in which employees feel comfortable reporting harassment to management;
Understand and maintain the confidentiality associated with the complaint process; and
Appropriately document every complaint, from initial intake to investigation to resolution, use guidelines to weigh the credibility of all relevant parties, and prepare a written report documenting the investigation, findings, recommendations, and disciplinary action imposed (if any), and corrective and preventative action taken (if any).

D. Effective Harassment Training

Leadership, accountability, and strong harassment policies and complaint systems are essential components of a successful harassment prevention strategy, but only if employees are aware of them. Regular, interactive, comprehensive training of all employees may help ensure that the workforce understands organizational rules, policies, procedures, and expectations, as well as the consequences of misconduct.

Harassment training may be most effective if it is, among other things:

Championed by senior leaders;
Repeated and reinforced regularly;
Provided to employees at every level and location of the organization;
Provided in a clear, easy to understand style and format;
Provided in all languages commonly used by employees;
Tailored to the specific workplace and workforce;
Conducted by qualified, live, interactive trainers, or, if live training is not feasible, designed to include active engagement by participants; and
Routinely evaluated by participants and revised as necessary.

In addition, harassment training may be most effective when it is tailored to the organization and audience. Accordingly, when developing training, the daily experiences and unique characteristics of the work, workforce, and workplace are important considerations.

Effective harassment training for all employees includes, for example:

Descriptions of prohibited harassment, as well as conduct that if left unchecked, might rise to the level of prohibited harassment;
Examples that are tailored to the specific workplace and workforce;
Information about employees’ rights and responsibilities if they experience, observe, or become aware of conduct that they believe may be prohibited;
Encouragement for employees to report harassing conduct;
Explanations of the complaint process, as well as any voluntary alternative dispute resolution processes;
Explanations of the information that may be requested during an investigation, including: the name or a description of the alleged harasser(s), alleged victim(s), and any witnesses; the date(s) of the alleged harassment; the location(s) of the alleged harassment; and a description of the alleged harassment;
Assurance that employees who report harassing conduct, participate in investigations, or take any other actions protected under federal employment discrimination laws will not be subjected to retaliation;
Explanations of the range of possible consequences for engaging in prohibited conduct;
Opportunities to ask questions about the training, harassment policy, complaint system, and related rules and expectations; and
Identification and provision of contact information for the individual(s) and/or office(s) responsible for addressing harassment questions, concerns, and complaints.

Because supervisors and managers have additional responsibilities, they may benefit from additional training. Employers may also find it helpful to include non-managerial and non-supervisory employees who exercise authority, such as team leaders.

Effective harassment training for supervisors and managers includes, for example:

Information about how to prevent, identify, stop, report, and correct harassment, such as:
Identification of potential risk factors for harassment and specific actions that may minimize or eliminate the risk of harassment;
Easy to understand, realistic methods for addressing harassment that they observe, that is reported to them, or that they otherwise learn of;
Clear instructions about how to report harassment up the chain of command; and
Explanations of the confidentiality rules associated with harassment complaints;
An unequivocal statement that retaliation is prohibited, along with an explanation of the types of conduct that are protected from retaliation under federal employment discrimination laws, such as:

Complaining or expressing an intent to complain about harassing conduct;
Resisting sexual advances or intervening to protect others from such conduct; and
Participating in an investigation about harassing conduct or other alleged discrimination; and
Explanations of the consequences of failing to fulfill their responsibilities related to harassment, retaliation, and other prohibited conduct.

To help prevent conduct from rising to the level of unlawful workplace harassment, employers also may find it helpful to consider and implement new forms of training, such as workplace civility or respectful workplace training and/or bystander intervention training. In addition, employers may find it helpful to meet with employees as needed to discuss issues related to current or upcoming events and to share relevant resources.

The complete report is available here.

U.S. Equal Employment Opportunity Commission Litigation Briefs (Nov. 2017)

Monday, November 20th, 2017

November 7, 2017

CON ED TO PAY $800,000 TO SETTLE EEOC DISABILITY DISCRIMINATION SUIT: Utility Giant Refused to Hire Applicants Due to Their Disabilities, Federal Agency Charged

NEW YORK – Consolidated Edison Company of New York, Inc., the utility that provides electrical and gas service to New York City and Westchester County, will pay $800,000 and furnish other relief to resolve a disability discrimination suit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

According to the EEOC’s complaint, the company’s doctors refused to medically approve quali-fied applicants to begin employment because of their disabilities, even though they could perform the jobs for which they applied. The company also performed medical examinations of applicants without giving them a conditional job offer first. Finally, the company’s doctors imposed improper medical restrictions on some existing employees with disabilities that reduced their earnings, and in one case led to termin¬ation, the EEOC said.

The Americans with Disabilities Act of 1990 (ADA) prohibits discrimination in hiring and terms and conditions of employment based on disability. This includes refusing to hire applicants because of their disabilities when they can perform the essential functions of the job with or without a reasonable accommodation. Additionally, an employer may not ask applicants disability-related questions and may not conduct medical examinations until after it makes a conditional job offer to the applicant. The EEOC filed suit in U.S. District Court for the Southern District of New York (EEOC v. Consolidated Edison Company of New York, Inc., Civil Action No.17-cv-7390), after first attempting to reach a pre-litigation settlement through its conciliation process.

Under the consent decree settling the suit, the company will pay the job applicants and employees who were discriminated against $800,000 in lost wages and damages. The decree also requires that Con Ed give a written job offer before it conducts any pre-hire medical examination. Under the decree, Con Ed must make an individualized assessment of each applicant’s ability to perform the job and will raise the threshold for its doctors to place disability-related restrictions on applicants and employees.

“The EEOC appreciates Con Ed’s willingness to resolve this case without protracted litigation,” said Jeffrey Burstein, the EEOC’s regional attorney for the New York District Office. “The agency remains committed to enforcing federal law to ensure that people with disabilities do not face discrim-inatory barriers to full and equal participation in the workforce.”

EEOC New York District Director Kevin Berry said, “Congress passed the ADA to protect Americans with disabilities from adverse employment actions based on fears and myths about their conditions. We applaud Con Ed’s willingness to change its hiring procedures to ensure that disabled applicants are given a fair and equal opportunity to work for them.”

The EEOC’s New York District Office is responsible for processing discrimination charges, administrative enforcement and the conduct of agency litigation in New York, northern New Jersey, Connecticut, Massachusetts, Rhode Island, Vermont, New Hampshire and Maine.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.

November 15, 2017

SPEC FORMLINERS TO PAY $105,000 TO SETTLE EEOC EQUAL PAY LAWSUIT: Female Sales Representative Was Paid Less Than Her Male Coworker, Federal Agency Charged

LOS ANGELES — Spec Formliners, Inc., a Santa Ana, Calif.-based business, will pay $105,000 and provide other relief to settle an equal pay lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

According to the EEOC’s lawsuit, Spec Formliners paid a female sales representative less than a male sales representative in base pay. The EEOC also contended that the company required the female sales representative to sell more to earn the same commission as her male colleague.

Such alleged conduct violates the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964. The EEOC filed its lawsuit on Nov. 17, 2016 in U.S. District Court for the Central District of California (EEOC v. Spec Formliners, Inc., Case No. 8:16-cv-02066-BRO-AJW) after first attempting to reach a pre-litigation settlement through its conciliation process.

As part of the consent decree settling the suit, Spec Formliners will pay $105,000 to the former employee. In addition to the monetary relief, Spec Formliners also agreed to retain external equal emp-loyment opportunity consultants who will assist the company in creating, reviewing and revising its policies and practices to ensure compliance with Title VII and the EPA. The external EEO consul¬tants will also assist the company in conducting fair pay audits, reviewing and revising its recruitment prac-tices, and preparing annual reports for the EEOC on the company’s progress. Spec Formliners further agreed to conduct anti-discrimination training and distribute the revised policies to all employees. The EEOC will monitor Spec Formliners’ progress with the 2.5-year decree.

“We commend Spec Formliners for agreeing to put measures in place that will help remove barriers for female sales representatives and ensure equal pay for equal work,” said Anna Park, regional attorney of the EEOC’s Los Angeles District, which includes Orange County in its jurisdiction. “Employees will do their best work when they know that their efforts are fairly compensated.”

Rosa Viramontes, director of the agency’s Los Angeles District Office, added, “The changes that will be implemented as part of this settlement will ensure that female sales representatives will receive fair compensation for sales equal to those of their male counterparts. This not only benefits female employees, but also the company as a whole.”

According to the company’s website, www.specformliners.com, Spec Formliners creates and customizes form liner patterns for concrete projects.

Enforcement of equal pay laws and targeting compensation systems and practices is one of the six national priorities identified by the Commission’s Strategic Enforcement Plan (SEP).

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.

November 14, 2017

STRATAFORCE SETTLES EEOC DISABILITY DISCRIMINATION LAWSUIT: Company Required Applicants to Complete an Unlawful Pre-Offer Health Questionnaire, Federal Agency Charged

INDIANAPOLIS - Strataforce, a staffing firm with offices in California, Indiana, North Carolina, and South Carolina, agreed to resolve a lawsuit by the U.S. Equal Employment Opportunity Commission (EEOC) alleging that the company made pre-offer health inquiries of applicants in violation of federal law.

According to EEOC’s lawsuit, Strataforce asked applicants to complete an application package that included a detailed medical questionnaire before the company offered the applicant a position or placement. The medical questionnaires asked for sensitive health information, and included numerous disability-related questions. Employers are generally prohibited from making pre-offer medical inquiries and refusing to hire qualified individuals with disabilities by the Americans with Disabilities Act (ADA).

EEOC filed suit against Strataforce in the U.S. District Court for the Southern District of Indiana, Indianapolis Division (EEOC v. Workforce Integration Inc d/b/a Strataforce, Case No. 1:17-cv-4104, S.D. Ind.) on Nov. 6, 2017. The parties reached agreement and filed a joint motion to approve a consent judgment on November 7. The motion was approved by the Court and the Consent Judgment was entered on November 13. Under the Consent Judgment, Strataforce will be required to provide notice to applicants of their rights under the ADA and submit annual compliance reports to the Commission during the Judgment’s four-year term.

“Congress recognized that prohibiting pre-offer medical inquiries was necessary to prevent applicants from being subjected to harmful and unfounded stereotypes on the basis of an actual or perceived disability,” said EEOC Regional Attorney Kenneth Bird. “As staffing agencies now play a large role in our nation’s workforce, eliminating any discrimination in their screening practices is increasingly important to ensuring that workers with disabilities have equal access to work opportunities. Here, EEOC’s investigation showed Strataforce has hired many individuals with disabilities, and we are pleased that in the future Strataforce will conduct its hiring processes in compliance with the ADA. I commend Strataforce for entering an early resolution of the case.”

Eliminating barriers in recruitment and hiring is one of six national priorities identified by EEOC’s Strategic Enforcement Plan (SEP). These barriers can include exclusionary policies and practices, restrictive application processes, and the use of screening tools such as pre-employment tests, background checks and medical questionnaires.

The Indianapolis District Office’s jurisdiction includes Indiana, Kentucky, Michigan, and parts of Ohio. The EEOC is the federal government agency responsible for enforcing federal anti-discrimination laws in the workplace. Further information about EEOC is available on the agency’s website at www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.

Fair Housing News (Nov. 2017)

Friday, November 17th, 2017

Dear Colleague,

WASHINGTON – The U.S. Department of Housing and Urban Development (HUD) announced today it is charging the owner and landlord of several rental properties in Wichita, Kansas, and his wife, who co-owned one of the properties, with housing discrimination after the landlord allegedly sexually harassed two female tenants at his properties. HUD’s charge further alleges that he also made discriminatory statements based on one of the women’s race. Read HUD’s charge here.

The Fair Housing Act makes it illegal to discriminate against individuals on the basis of race, color, religion, national origin, sex, familial status, or disability. Sexual harassment is a form of illegal sex discrimination.

“Landlords who use their position to intimidate or harass residents or to attempt to trade sexual favors for rent violate the sanctity of a woman’s home, the place where she should feel the safest,” said Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity. “HUD is committed to protecting the housing rights of those who are sexually harassed and will continue to take action any time housing providers violate those rights.”

The charge is the result of complaints filed by two female residents alleging that the landlord made unwanted sexual advances toward them, harassed them, made derogatory statements based on race, and evicted them because they refused his advances.

HUD’s charge alleges that the landlord subjected one of the women, who was working as a property manager, to a hostile environment, including entering her apartment uninvited, sexually harassing her, and requesting sex in exchange for allowing her to stay in her unit. The charge also alleges that the landlord told her that he could be her “sugar daddy,” grabbed her buttocks, and made comments about her body to others. On one occasion she awoke to find him in her bedroom on her bed.

The charge further alleges that the landlord subjected a second woman to a hostile environment by making numerous requests for sex when he picked up her rent payments. Once, when she was late paying a portion of her rent, the landlord allegedly asked her if she wanted to have sex with him instead of paying the $150 she owed. When she refused the offer, the landlord allegedly became very upset and immediately wrote her a 3-day notice to vacate.

The charge will be heard by a United States Administrative Law Judge unless any party elects for the case to be heard in federal court. If the administrative law judge finds after a hearing that discrimination has occurred, he may award damages to the complainants for their loss as a result of the discrimination. The judge may also order injunctive relief and other equitable relief, as well as payment of attorney fees. In addition, the judge may impose civil penalties in order to vindicate the public interest.

People who believe they have experienced discrimination may file a complaint by contacting HUD’s Office of Fair Housing and Equal Opportunity at (800) 669-9777 (voice) or (800) 927-9275 (TTY). Housing discrimination complaints may also be filed by going to hud.gov/fairhousing, or by downloading HUD’s free housing discrimination mobile application, which can be accessed through Apple and Android devices.