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Archive for September, 2011

Harassment and Hostile Environment: Understanding the Basics

Wednesday, September 28th, 2011

If you are the Equal Opportunity (EO) professional charged with ensuring nondiscrimination in the delivery of federally-funded programs and activities, or you serve as the Equal Employment Opportunity/Affirmative Action/Human Resources (EEO/AA/HR) professional charged with ensuring nondiscrimination in the workplace, you must have a working knowledge of “harassment” and “hostile environment.”

√ Two categories of harassment-related complaints.

Let’s start with an understanding that complaints of harassment-related discrimination fall into one of two categories: (1) quid pro quo harassment; or (2) hostile environment harassment.

Whether a complaint involves allegations of quid pro quo harassment or hostile environment, the conduct must be “unwelcome.” And, who defines whether conduct is “unwelcome”? It is defined “through the eyes of the beholder”; namely, the person subjected to the harassing conduct defines whether the conduct is offensive and unwelcome.

√ Harassment is discrimination.

“Harassment” and “hostile environment” constitute forms of discrimination, regardless of whether the “harassment” or “hostile environment” occurs in federally-funded programs and activities, or in the workplace.

When we hear the word “harassment”, many people first think of “sexual” harassment. To be sure, harassment on the basis of “sex” is a form of sex discrimination that is barred by federal law in the workplace, and in the delivery of federally-funded services, aid, training, and benefits.

That being said, it is equally important to keep in mind that harassment or hostile environment may occur on any prohibited basis of discrimination, including race, national origin, color, disability, age, and others. For example, you may see a complaint of race-based hostile environment, or a religion-based quid pro quo harassment complaint.

√ Quid pro quo harassment defined.

In the simplest of terms, quid pro quo harassment takes the form of bartering—“you give me this, and I’ll give you that.” A workplace example occurs where Jane, a supervisor, offers her assistant, Jason, a bonus in exchange for sexual favors. Jane has engaged in prohibited quid pro quo sexual harassment. Notably, Jane’s decision-making regarding whether to give Jason a bonus should be based on bona fide work-related criteria, not through bartering to get Jason to have sex with her.

Similarly, an example in the arena of federally-funded programs and activities is where Scott, the employment-referral counselor at a One Stop Career Center, refuses to refer Khalid to available security guard positions unless Khalid renounces his Islamic faith. Here, Scott has engaged in quid pro quo religious-based harassment—Khalid must give up his Islamic faith in exchange for referral to the security guard positions. This discrimination is illegal because Scott is obligated to base his decision to refer Khalid to security guard positions on whether Khalid meets the essential eligibility requirements for the referral, not Khalid’s religious beliefs or practices.

√ “Hostile environment” defined.

Turning to “hostile environment”, this type of discrimination does not involve the bartering of “you give me this and I’ll give you that.” Rather, a hostile environment is created where one person, or a group of people, engages in offensive conduct that is “so severe and pervasive” that it adversely alters another person’s workplace environment, or the person’s enjoyment of, and participation in, federally-funded programs and activities.

In determining whether conduct is “severe and pervasive”, the following factors should be considered: (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with an employee’s job performance, or with a person’s participation in, or enjoyment of, a federally funded program or activity.

An example of “hostile environment” in the workplace is where Kristen works as a welder alongside eight co-workers, all of whom are men. Two of these co-workers are constantly telling sexist jokes, posting naked photos of women in the work area, and whistling at Kristen when she is working. Kristen is offended by the conduct, finds it unwelcome, and files a complaint. Kristen’s complaint involves allegations of a “hostile sexual environment”, which adversely altered her working conditions.

In federally-funded programs and activities, an example of hostile environment occurs where a group of students at a Job Corps Center posts derogatory remarks on facebook about Josh, a student with a mobility disability. They call him “crippled” and “stupid” in the hallways of the Center and deliberately place obstacles in front of his power chair. Josh files a disability-based hostile environment complaint. Here, the offending group of students created a “disability-based hostile environment” that, in turn, adversely altered Josh’s ability to enjoy, and participate in, the educational programs and activities offered at the Center.

√ Retaliatory “hostile environment” is against the law.

Whether in the workplace, or in federally funded programs and activities, creating a “hostile environment” against an individual in retaliation for filing an EEO complaint, or in retaliation for filing a discrimination complaint in a federally funded program, is prohibited. Every circuit court addressing this issue recognizes these complaints of “retaliatory hostile environment.”

If a person files a discrimination complaint, regardless of whether the complaint is ultimately successful or not, and then the person experiences “severe and pervasive” harassment from any member of your organization’s staff, your organization and the responsible staff members will be held liable. See Clegg v. Ark. Dep’t. of Corr., 496 F.3d 922 (8th Cir. 2007); Jordan v. City of Cleveland, 464 F.3d 584 (6th Cir. 2006); Jensen v. Potter, 435 F.3d 444 (3rd Cir. 2006), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006); Hussain v. Nicholson, 435 F.3d 359 (D.C. Cir. 2006); Noviello v. City of Boston, 398 F.3d 76 (1st Cir. 2005); Von Gunten v. Maryland, 243 F.3d 858 (4th Cir. 2001), abrogated on other grounds by Burlington N., 548 U.S. 53; Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000); Richardson v. N.Y. State Dep’t. of Corr. Serv., 180 F.3d 426 (2nd Cir. 1999), abrogated on other grounds by Burlington N., 548 U.S. 53; Gunnell v. Utah Valley State Coll., 152 F.3d 1253 (10th Cir. 1998); Knox v. Indiana, 93 F.3d 1327 (7th Cir. 1996).

For example, in Gowski v. James Peake, MD (Sec’y., Dept. of Veterans Affairs, et al), ___ F.3d ___, No. 09-16371 (11th Cir. June 4, 2012), the circuit court noted that, after two hospital physician-employees filed EEO complaints of gender-based and religious-based discrimination, they were subjected to “severe and pervasive” retaliation at work, including the spread of demeaning rumors about the physicians by management that damaged their professional reputations, denial of hospital privileges to the physicians that could adversely affect their certifications, excluding the physicians from participating in work-related functions, and other similar acts. The court found that, taken as a whole, this conduct created a retaliatory hostile environment and damages were awarded against the hospital.

√ Obligations of EO and EEO professionals.

Thus, whether you work as an EO professional in federally-funded programs and activities, or as an EEO/AA/HR professional handling workplace discrimination, you must be familiar with the policies and procedures of your agency or organization pertaining to harassment and hostile environment. If no policies or procedures are in place, you must ensure that they are developed and published. Management and employees in your workplace, as well as beneficiaries and potential beneficiaries of your federally-funded programs and activities, must have notice of these policies and procedures.

If you receive a discrimination complaint based on harassment or hostile environment, you are required to take action. These complaints are fact-intensive and there may be more than one appropriate response to a particular complaint of harassment. Although only hindsight offers perfect clarity of what worked and what did not, doing nothing is never acceptable.

Seena Foster is an attorney and award-winning author of “Civil Rights Investigations Under the Workforce Investment Act and Other Title VI-Related Laws: From Intake to Final Determination.” She is also a Partner with Title VI Consulting in Alexandria, VA. You may visit her website at www.titleviconsulting.com.

White House Memorandum M-11-34 from Director Jacob L. Lew

Thursday, September 22nd, 2011

On September 15, 2011, Director Jacob L. Lew issued memorandum M-11-34. In M-11-34, Director Lew notes that, “[o]n February 17, 2009, the President signed into law the American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5 (“Recovery Act”).” He further states the following:

Nearly 85 percent of Recovery funds have now been paid out and the vast majority of remaining funds have already been obligated for projects that communities are counting on for job creation. Despite the rapid pace of spending of Recovery Act funds over the past 30 months, there remain billions in discretionary Recovery Act funds that, although they have been obligated, have not yet been outlayed. In light of the current economic situation and the need for further economic stimulus, it is critical that agencies spend these remaining funds as quickly and efficiently as possible.

As a result, the following is directed:

. . . subject to certain exceptions, Federal agencies are directed to take steps to complete Recovery Act projects by September 30, 2013. This new policy would compress the period of availability for the bulk of remaining funds in discretionary grant programs into the next two years.

To see the complete version of M-11-34, go to http://www.whitehouse.gov/sites/default/files/omb/memoranda/2011/m11-34.pdf

The WIA Equal Opportunity Officer: Who Are You, To What Are You Entitled, and What Are You (supposed) To Do?

Wednesday, September 21st, 2011

Who are you?

Let’s start with who you are. Most likely, you have been appointed the Equal Opportunity (EO) officer for your organization in addition to your “day job.” Yet, as the EO officer, you perform critical duties. You’ve joined the ranks of EO professionals across the country and the U.S. territories.

As a Workforce Investment Act (WIA) EO officer, you work for an organization that administers, or is financed by, WIA Title I funds. Most likely, the U.S. Department of Labor is your federal funding agency. Your organization may be a state or local government agency, an unemployment insurance call center, a workforce investment board, a LWIA grant recipient, the operator of a One-Stop, a service provider or eligible training provider, an on-the-job-training employer, a Job Corps operator or contractor, or a placement agency.

You are a “senior-level” employee within your organization and you have direct access to top management for purposes of reporting on EO matters.

And, while most of you have duties associated with your “day jobs”, these duties do not create a conflict, or the appearance of a conflict, of interest with your EO duties. Here it is important to recognize that conflicts of interest may arise if you are part of your organization’s human resources (HR) or legal departments, or if you report EO matters to someone in your organization’s HR or legal departments. If you are unsure whether a conflict of interest, or the appearance thereof, exists between the duties of your “day job” and your EO duties, then you should consult with your state-level EO leadership, or the civil rights office of your federal funding agency.

To what are you entitled?

The organization you serve has certain responsibilities which are designed, by law, to enable you to properly perform your EO duties.

The organization is obliged to make your name, position title, and telephone number (voice and TDD/TTY) available to the public and it must ensure that this information appears on all communications pertaining to its nondiscrimination and equal opportunity programs. It is reasonable that this would include communications distributed through outreach, during orientation, on your organization’s website, and the like.

Moreover, the organization is obliged to:

● assign sufficient staff and resources to enable you to do your job;
● provide you and your assigned staff the opportunity to receive training to maintain
your competency; and
● provide you with the necessary support of “top management” to ensure compliance
with WIA’s nondiscriminatory and equal opportunity provisions.

And, it is worth repeating, that the law requires that you have access to report EO matters directly to an appropriate high-ranking official, such as your state-level WIA director, the Governor’s WIA liaison, a Mayor’s WIA liaison, Job Corps Center director, SESA Administrator, or LWIA grant recipient, and the like.

What are you (supposed) to do?

As a WIA EO officer, we know that your organization receives federal taxpayer dollars (WIA Title I funds) to administer programs and activities for the benefit of the public you serve. With these taxpayer dollars comes a legal obligation to provide benefits, aid, services, and training in compliance with WIA’s nondiscrimination and equal opportunity mandates.

Noncompliance can lead to reduction, or elimination, of federal funding. Thus, the importance of your role as the EO officer cannot be overstated. You are the person who is designated to coordinate your organization’s compliance with these nondiscrimination and equal opportunity laws.

You should know that your state or U.S. territory must submit a document called the Methods of Administration for approval by the U.S. Department of Labor’s Civil Rights Center every two years. This resource is generally developed by your state-level EO leadership and is signed by your governor. It contains the policies and procedures your state or U.S. territory has determined will be used to ensure compliance with WIA’s nondiscrimination and equal opportunity laws. It is worthwhile for you to be generally familiar with the location and contents of this resource.

As a WIA EO officer, you serve as your organization’s liaison with the Civil Rights Center (CRC). Any EO officer should be familiar with the location of, and contact information for, his or her organization’s federal funding agency. For WIA EO officers, the phone number for the CRC’s enforcement office is (202) 693-6502 (voice). The TTY is (202) 693-6516. The e-mail address is: CRCExternalComplaints@dol.gov. The physical address for the CRC is: U.S. Department of Labor, Civil Rights Center, 200 Constitution Ave., NW, Room N-4123, Washington, DC 20210. The CRC’s Office of Compliance and Planning, which may be able to offer technical and compliance assistance, is reached at (202) 693-6501 (voice).

In addition to serving as a liaison to the CRC, monitoring and investigating your organization’s activities to ensure compliance with nondiscrimination and equal opportunity laws are part of your duties as an EO officer. Here, you must have an understanding of how your organization operates each of its federally-funded programs and activities, and make sure that staff knows and understands the policies and procedures in place to prevent violations of the nondiscrimination and equal opportunity laws.

Speaking of written policies and procedures, as the EO officer, you are also responsible for reviewing these written documents to ensure that they are nondiscriminatory (see my prior blog titled, “The Importance of ‘The Script’”). To meet this obligation, you must have a complete collection of your organization’s policies and procedures pertaining to delivery of each of your federally-funded services, aid, benefits, and training. If you have questions regarding the propriety of any particular policies and procedures, contact your state EO leadership, or the civil rights office of your federal funding agency for guidance. You may also take a look at the policies and procedures set forth in your state’s or territory’s MOA.

Investigating discrimination complaints is another responsibility of the EO officer. For this, you must familiarize yourself with your organization’s discrimination complaint procedures. If no procedures are in place, you are responsible for developing and publishing such procedures. For this, you may seek guidance from your state EO leadership, the MOA, or the civil rights office of your federal funding agency. Moreover, our publication, Civil Rights Investigations Under the Workforce Investment Act and Other Title VI-Related Laws: From Intake to Final Determination, is highly-recommended as a comprehensive, detailed, easy-to-follow resource. You may order a copy by visiting our website at www.titleviconsulting.com.

Finally, you are obliged to report EO matters to top management officials in your organization. Moreover, if directed by top management, you are compelled to attend training, paid by your organization, to maintain your competency in EO matters.

In sum, you are the eyes, ears, and voice on the front lines. You serve as liaison, monitor, investigator, policy developer, reviewer, and coordinator of critical, legally-mandated functions designed to ensure the nondiscriminatory delivery of federally-funded programs and activities to the public.

For regulations applicable to WIA EO officers, see 29 C.F.R. Part 37.

Seena Foster is an attorney and author of “Civil Rights Investigations Under the Workforce Investment Act and Other Title VI-Related Laws: From Intake to Final Determination. She is also a Partner with Title VI Consulting in Alexandria, Virginia. You may visit her website at www.titleviconsulting.com.

Library Essentials for the Equal Opportunity Officer

Tuesday, September 13th, 2011

As the designated Equal Opportunity (EO) professional for your agency, company, or organization, you have key responsibilities for ensuring the nondiscriminatory delivery of federally-funded aid, training, benefits, and services. Building a good resource library is a proven way to manage these responsibilities efficiently and successfully.

This paper directs you to some important issues that arise in discrimination complaint investigations. Gathering the policies and procedures of your agency, company, or organization on these issues in advance will undoubtedly save you time and resources down the road. And, if you find that there are no policies or procedures for a particular issue, you can follow-up with the civil rights office of your federal funding agency and EO leadership to develop sound policies and procedures for handling the issue.

√ Where do you fit in the overall process?

Make sure that you know the source potential discrimination complaints that may be filed with you. This will include beneficiaries and potential beneficiaries of the aid, training, benefits, and services you offer. Is there a web site for potential complainants to find complaint forms and other information? If a complainant asks for sources of legal representation, do you have the number of the local bar association or other legal entity to provide? If you have investigated a complaint, and one of the parties disagrees with your determination, what are the party’s rights?

√ How to you handle issues of representation?

What are the policies and procedures related to representation of a party to a discrimination complaint? Is a union representative, lay representative, or attorney representative allowed? If so, at what point in the process may the representative enter an appearance? How much involvement may the representative have with non-party witnesses?

√ How do you process a discrimination complaint involving a minor?

This most often occurs in the context of providing educational and/or training programs and services. For example, in a Job Corps program, a discrimination complaint may arise between a teacher or school official and a minor student, between two minor students, or any number of other variations. Can a minor file a discrimination complaint alone, or must a legal guardian also sign the complaint? What is the age for a person to be deemed a “minor”? How do you handle confidentiality and privacy of the minor? How do you handle witnesses who are minors?

√ How do you process anonymous complaints?

Anonymous complaints present special concerns to the EO professional. Possibly the complainant is afraid of retaliation for filing the complaint and seeks to protect his/her identity. On the other hand, a complainant may harbor a grudge against the respondent and seek to harass the respondent through the discrimination complaint process. Either way, you should know the policies and procedures of your agency, company, or organization for handling these complaints. Some policies may be to proceed with the investigation. Other policies may provide that such complaints be handled as subjects for monitoring or compliance reviews by EO leadership.

√ What if a complaint should be directed to another agency?

It would not be uncommon for you to receive discrimination complaints directed against private employers. What is the policy for handling such complaints? Do you have the contact information for the EEOC and/or state agencies with authority to handle such complaints? Will you forward the complaint directly to the other agency and notify the complainant, return the complaint to the complainant with instructions to file with the other agency, or will you handle the complaint another way?

√ How do you handle issues of privacy and confidentiality?

We covered these issues in conjunction with handling complaints involving minors, but issues of privacy and confidentiality are present in every discrimination complaint investigation. What are the policies pertaining to privacy and confidentiality? Who has access to the investigative file? If you get a request for documents from the file from a non-party, what do you do? If a party wants copies of all witness statements, do you provide those? How do you handle a complainant’s medical information that may be the investigative file? If a party or non-party wants your investigative notes, do you provide those? If you get advice from your EO leadership or legal staff and a party or non-party requests that information, do you provide it? What do you do with PII (personally identifiable information) such as Social Security numbers, birth dates, addresses, and the like?

√ What if the complainant dies or cannot be located?

You have received a discrimination complaint from the complainant and then learn that the complainant has died, or that you can no longer make contact with the complainant. What do you do with the complaint? Does it make a difference if the complainant filed the complaint alone, or as part of a class action?

√ How do you handle a complainant’s request to withdraw a complaint?

If a complainant seeks to withdraw his or her discrimination complaint, what do you do? What are the complainant’s rights should s/he choose to re-file the complaint?

√ What is the policy for reducing witness statements to writing?

Once you have completed interviews of the parties to a complaint as well as any witnesses, what is the policy or procedure for reducing the statements of the parties and witnesses to writing? Who writes the statements? Do the statements need to be signed? Must they be notarized? What if an interviewee is Limited English Proficient?

√ What is the policy on sexual harassment and is it publicized?

You must have a full understanding of the sexual harassment policies of your agency, company, or organization. Make sure the policies are well-known at all levels. Conduct periodic training to minimize the potential for a discrimination complaint based on sexual harassment to be filed. Convey a “no tolerance” position on the subject. If your review of the sexual harassment policies reveals the need for correction or clarification, pursue this with your EO leadership. The more comprehensive and more effective the sexual harassment policies, the less likely you will face this type of complaint.

√ What are your policies for handling accommodation and modification requests?

Knowing the policies for handling disability-based or religious-based requests for accommodation or modification is central to effectively and successfully resolving these issues. Staff must be trained regularly on these policies and how to implement them from the moment a beneficiary or potential beneficiary makes that initial request. Reasonable accommodation and modification processes are highly interactive and having a well-trained staff goes far in alleviating these types of complaints.

√ How do you handle persons with Limited English Proficiency (LEP)?

As our communities benefit from the skills, knowledge, and experiences of increasingly diverse peoples, some of whom are not proficient in the English language, we must afford them access to, and the benefit of, all aid, training, benefits, or services for which they meet the essential eligibility requirements. What are the procedures you have in place for handling LEP-persons in your community? What if you receive an LEP-person who does not speak any of the languages spoken by a majority of the population in your community? What are the resources available to you at the federal, state, and local levels for assisting LEP-persons? Is your staff trained to handle LEP-persons from the moment they come through your doors? If you are part of the One Stop delivery system, how do you handle translation of orientation materials, unemployment insurance forms, and the like?

√ What are the policies for using mediation to resolve disputes?

Mediation can be useful in resolving discrimination complaints, particularly when used early in the process. Often, issues involving denial of access to aid, training, benefits, or services are suitable for mediation. Do you know the policies for use of mediation? What are the resources available to you at the federal, state, and local levels?

√ Are there instances where you will expedite consideration of a complaint?

What are your policies and procedures for expedited handling of a discrimination complaint? For example, if a complainant alleges that s/he was retaliated against because of a prior complaint filed, is there a policy to give the retaliation complaint expedited treatment?

√ Is the complainant required to exhaust administrative remedies?

What are the policies and procedures for exhaustion of remedies? If so, what are the types of complaints covered by these policies? For example, before you accept a discrimination complaint pertaining to the denial of unemployment insurance (UI) benefits, will you require that the complainant exhaust the UI appeals process?

√ What are the policies for audio and/or video recordings of interviews?

During your interviews of witnesses, you may seek to record the interviews by means of audio and/or video equipment. Are you allowed or prohibited from recording interviews? Do you need permission from the interviewee? Will you summarize the interview in a written statement? What procedure will you follow to allow the interviewee to review the statement for purposes of ensuring accuracy and completeness? Does the interviewee need to sign the statement?

Seena Foster is an attorney and author of “Civil Rights Investigations Under the Workforce Investment Act and Other Title VI-Related Laws: From Intake to Final Determination. She is also a Partner with Title VI Consulting in Alexandria, Virginia. You may visit her website at www.titleviconsulting.com.

“Unemployed Need Not Apply”: The Road to Nowhere for Our Economy

Wednesday, September 7th, 2011

Amazingly, in an economic climate that rivals the Great Depression, some employers have made clear that “unemployed” persons need not bother to apply for job openings.

In these times, when our employment levels have suffered a serious down-shift, people who find themselves on the rosters of the unemployed now must navigate the narrow gauntlet of stiff competition for fewer jobs. And, it is counterproductive to our economic recovery for employers to exclude the “unemployed” from consideration for available job openings.

For certain executive level positions, some employers will court high-performers of competitors with the goal of gaining some advantage over these competitors. Often, however, exclusion of unemployed persons from consideration reflects prejudices that unemployed persons have work performance problems, or their skills and contacts must be outdated.

To be sure, some unemployed people are not interested in working. Those intangible qualities such as “work ethic”, nuts and bolts knowledge and experience, up-to-date skills and contacts, and compatibility with others in an organization can be difficult, if not impossible, to ascertain from an interview, resume, and select references.

On the other hand, it cannot be presumed that unemployed persons lack these intangibles by mere virtue of the fact that they presently do not have jobs. In fact, each of us who has worked in any type of job for any type of employer can readily point to one or more co-workers, managers, or supervisors who we would describe as lazy, incompetent, limited, abrasive, or overpaid. And, these people are employed!

Moreover, it is a mistake to assume that an unemployed person has lost his or her skills or contacts. To the contrary, time spent without a job can often be the most productive in terms of skill and knowledge development. Additionally, persons who are unemployed often spend time pursuing additional “contacts”, engage in various training and certification programs to improve skills, and pursue other avenues to stay “current” in the field.

Job loss, for whatever reason it occurred, is devastating financially as well as emotionally, mentally, and physically. If you are an employer with job openings, or if you work for a One Stop Career Center or Job Corps Center focused on getting people to work, consider carefully the day-to-day duties required of an available job and then look closely at any person, employed or unemployed, who demonstrates an ability to perform these duties.

One Stop Career Centers and Job Corps Centers should make sure that unemployed persons are being afforded an opportunity to participate in every educational, training, and/or on-the-job training opportunity for which they meet the essential eligibility requirements. Moreover, participants should be encouraged to include these training and educational pursuits on their resumes so that potential employers may see ongoing skill-building in the field.

Seena Foster is an attorney and author of Civil Rights Investigations Under the Workforce Investment Act and Other Title VI-Related Laws: From Intake to Final Determination. She is also a Partner with Title VI Consulting, LLP in Alexandria, Virginia. You may visit her website at www.titleviconsulting.com.