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“EO is The Law” and “EEO is The Law”: Understanding Some of The Distinctions

Monday, October 31st, 2011

All federal civil rights laws have a common purpose: prohibit discrimination and promote equal opportunity. For purposes of this paper, we’ll assume that you are the Equal Opportunity (EO) professional of an agency or organization that operates federally funded programs and activities.

As an EO professional, you are obliged to understand and provide notice of applicable civil rights laws, but this is, at times, easier said than done. With that in mind, we’ll cover distinctions between two required notices, “Equal Opportunity (EO) is The Law” and “Equal Employment Opportunity (EEO) is The Law”. Similarities in the titles of these notices often lead to confusion in understanding some of their differences.

“Equal Opportunity is The Law”.

“Equal Opportunity is The Law” is the guiding civil rights policy for all federally funded programs and activities including publicly funded educational programs, transportation, housing, lending, Medicare, small business development, and a myriad of others. For purposes here, you serve as the EO Officer for an entity offering workforce development programs and activities funded by the U.S. Department of Labor through Title I of the Workforce Investment Act (WIA) of 1998. Some examples of such entities, besides state and local government agencies, would include Local Workforce Investment Boards, One Stop Career Centers, and Job Corps Centers. By law, you must provide the following notice:

Equal Opportunity Is the Law

It is against the law for this recipient of Federal financial assistance to discriminate on the following bases:

against any individual in the United States, on the basis of race, color, religion, sex, national origin, age, disability, political affiliation or belief; and

against any beneficiary of programs financially assisted under Title I of the Workforce Investment Act of 1998 (WIA), on the basis of the beneficiary’s citizenship/status as a lawfully admitted immigrant authorized to work in the United States, or his or her participation in any WIA Title I-financially assisted program or activity.

The recipient must not discriminate in any of the following areas:

deciding who will be admitted, or have access, to any WIA Title I-financially assisted program or activity;

providing opportunities in, or treating any person with regard to, such a program or activity; or

making employment decisions in the administration of, or in connection with, such a program or activity.

What to Do If You Believe You Have Experienced Discrimination

If you think that you have been subjected to discrimination under a WIA Title I-financially assisted program or activity, you may file a complaint within 180 days from the date of the alleged violation with either:

the recipient’s Equal Opportunity Officer (or the person whom the recipient has designated for this purpose); or

the Director, Civil Rights Center (CRC), U.S. Department of Labor, 200 Constitution Avenue NW, Room N-4123, Washington, DC 20210.

If you file your complaint with the recipient, you must wait either until the recipient issues a written Notice of Final Action, or until 90 days have passed (whichever is sooner), before filing with the Civil Rights Center (see address above).

If the recipient does not give you a written Notice of Final Action within 90 days of the day on which you filed your complaint, you do not have to wait for the recipient to issue that Notice before filing a complaint with CRC. However, you must file your CRC complaint within 30 days of the 90-day deadline (in other words, within 120 days after the day on which you filed your complaint with the recipient).

If the recipient does give you a written Notice of Final Action on your complaint, but you are dissatisfied with the decision or resolution, you may file a complaint with CRC. You must file your CRC complaint within 30 days of the date on which you received the Notice of Final Action.

29 C.F.R. § 37.30.

Indeed, as the EO professional for a recipient of WIA Title I-funding, you must ensure that “initial and continuing notice” is provided. 29 C.F.R. § 37.29. What does this mean?

It means that the “Equal Opportunity is The Law” notice must be “prominently” posted in a variety of places at your Center, agency, facility, office headquarters, and the like. And, it must be available in an alternative format for persons with visual impairments along with “a record that such notice has been given” in “the participant’s file.”

Limited English Proficient (LEP) persons must also receive notice. Based on considerations such as the scope of your programs and activities involved as well as the size and concentration of the population needing information in a language other than English, you must take reasonable steps to provide the “EO is The Law” notice in appropriate languages. Check with your state EO leadership for LEP-related materials. The U.S. Department of Justice website, at www.lep.gov, also offers valuable guidance.

Providing notice on a “continuing basis”, means that, in addition to prominently-placed posters, the notice must be communicated through internal memoranda and other written or electronic communications. It must be included in your handbooks and materials. And, the notice must be made available to each participant in your programs and activities and should be located in each participant’s file.

Continuing notice extends to including taglines that the recipient is an “equal opportunity employer/program” and “auxiliary aids and services are available upon request to persons with disabilities” in your:

√ recruitment brochures;
√ orientation materials and presentations;
√ any written or oral communications to staff, clients, or the public regarding WIA Title I programs and activities; and
√ publications and broadcasts regarding the WIA Title I programs and activities.

Moreover, during each orientation session, you must include a discussion of rights under WIA’s nondiscrimination and equal opportunity laws, including the right to file a complaint of discrimination with the Director of the U.S. Department of Labor’s Civil Rights Center.

As you can see, requirements for dissemination of the “EO is The Law” notice are extensive. This is because the notice applies to a wide variety of folks, including registrants, applicants, eligible registrants and applicants, participants, applicants for employment and employees, unions holding collective bargaining agreements with the recipient, sub-recipients, and members of the public.

“Equal Employment Opportunity is The Law”.

From its title, we already understand that the “EEO is The Law” notice is limited in scope to employment-related discrimination. And, the required EEO notice developed by the U.S. Economic Opportunities Commission (EEOC) contains information that is different from the “EO is The Law” notice. The EEOC’s “EEO is The Law” notice reads, in part, as follows:

Equal Employment Opportunity is THE LAW

Private Employers, State and Local Governments, Educational Institutions, Employment Agencies and Labor Organizations
Applicants to and employees of most private employers, state and local governments, educational institutions, employment agencies and labor organizations are protected under Federal law from discrimination on the following bases:

RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN
Title VII of the Civil Rights Act of 1964, as amended, protects applicants and employees from discrimination in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment, on the basis of race, color, religion, sex (including pregnancy), or national origin. Religious discrimination includes failing to reasonably accommodate an employee’s religious practices where the accommodation does not impose undue hardship.

DISABILITY
Title I and Title V of the Americans with Disabilities Act of 1990, as amended, protect qualified individuals from discrimination on the basis of disability in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment. Disability discrimination includes not making reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, barring undue hardship.

AGE
The Age Discrimination in Employment Act of 1967, as amended, protects applicants and employees 40 years of age or older from discrimination based on age in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment.

SEX (WAGES)
In addition to sex discrimination prohibited by Title VII of the Civil Rights Act, as amended, the Equal Pay Act of 1963, as amended, prohibits sex discrimination in the payment of wages to women and men performing substantially equal work, in jobs that require equal skill, effort, and responsibility, under similar working conditions, in the same establishment.

GENETICS
Title II of the Genetic Information Nondiscrimination Act of 2008 protects applicants and employees from discrimination based on genetic information in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment. GINA also restricts employers’ acquisition of genetic information and strictly limits disclosure of genetic information. Genetic information includes information about genetic tests of applicants, employees, or their family members; the manifestation of diseases or disorders in family members (family medical history); and requests for or receipt of genetic services by applicants, employees, or their family members.

RETALIATION
All of these Federal laws prohibit covered entities from retaliating against a person who files a charge of discrimination, participates in a discrimination proceeding, or otherwise opposes an unlawful employment practice.

WHAT TO DO IF YOU BELIEVE DISCRIMINATION HAS OCCURRED
There are strict time limits for filing charges of employment discrimination. To preserve the ability of EEOC to act on your behalf and to protect your right to file a private lawsuit, should you ultimately need to, you should contact EEOC promptly when discrimination is suspected: The U.S. Equal Employment Opportunity Commission (EEOC), 1-800-669-4000 (toll-free) or 1-800-669-6820 (toll-free TTY number for individuals with hearing impairments). EEOC field office information is available at www.eeoc.gov or in most telephone directories in the U.S. Government or Federal Government section. Additional information about EEOC, including information about charge filing, is available at www.eeoc.gov.

Employers Holding Federal Contracts or Subcontracts
Applicants to and employees of companies with a Federal government contract or subcontract are protected under Federal law from discrimination on the following bases:

RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN
Executive Order 11246, as amended, prohibits job discrimination on the basis of race, color, religion, sex or national origin, and requires affirmative action to ensure equality of opportunity in all aspects of employment.

INDIVIDUALS WITH DISABILITIES
Section 503 of the Rehabilitation Act of 1973, as amended, protects qualified individuals from discrimination on the basis of disability in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment. Disability discrimination includes not making reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, barring undue hardship. Section 503 also requires that Federal contractors take affirmative action to employ and advance in employment qualified individuals with disabilities at all levels of employment, including the executive level.

DISABLED, RECENTLY SEPARATED, OTHER PROTECTED, AND ARMED FORCES SERVICE MEDAL VETERANS
The Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended, 38 U.S.C. 4212, prohibits job discrimination and requires affirmative action to employ and advance in employment disabled veterans, recently separated veterans (within three years of discharge or release from active duty), other protected veterans (veterans who served during a war or in a campaign or expedition for which a campaign badge has been authorized), and Armed Forces service medal veterans (veterans who, while on active duty, participated in a U.S. military operation for which an Armed Forces service medal was awarded).

RETALIATION
Retaliation is prohibited against a person who files a complaint of discrimination, participates in an OFCCP proceeding, or otherwise opposes discrimination under these Federal laws.
Any person who believes a contractor has violated its nondiscrimination or affirmative action obligations under the authorities above should contact immediately:

The Office of Federal Contract Compliance Programs (OFCCP), U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, D.C. 20210, 1-800-397-6251 (toll-free) or (202) 693-1337 (TTY). OFCCP may also be contacted by e-mail at OFCCP-Public@dol.gov, or by calling an OFCCP regional or district office, listed in most telephone directories under U.S. Government, Department of Labor.

The remainder of the “EEO is The Law” notice addresses “Programs or Activities Receiving Federal Financial Assistance”. At first blush, this component of the notice appears to address federally funded programs and activities in addition to employment practices. However, if you look at the prohibited bases of discrimination set forth in this part of the EEO notice, only race, color, national origin, gender, and disability are mentioned. From reading the WIA “EO is The Law” notice, you’ll see that the bases of prohibited discrimination are much broader. For a detailed discussion of “basis”, see prior paper titled, “The ‘Basis’ of a Discrimination Complaint: What It Is and Why It’s Important”. As a result, if you operate WIA Title I programs and activities, you must post the “EO is The Law” notice; you cannot rely solely on the “EEO is The Law” notice.

Comparing the notices.

Comparing the “EO is The Law” notice with the “EEO is The Law” notice, we see that both notices set forth nondiscrimination requirements and inform us regarding where to file a discrimination complaint. However, the “EEO is The Law” notice is limited to addressing nondiscrimination with regard to your employment practices, whereas the “EO is The Law” notice is much broader—it applies to employment practices as well as your agency’s or organization’s delivery of federally funded aid, training, benefits, and services.

Moreover, while some “bases” of prohibited discrimination are the same in the two notices (race, color, national origin, religion, disability, gender), there are differences as well. For example, the WIA “EO is The Law” notice also prohibits discrimination on the bases of citizenship, WIA participant status, and political affiliation. The “EEO is The Law” notice prohibits discrimination in employment practices on the basis of genetics. And, although both notices prohibit discrimination on the basis of age, the “EEO is The Law” nondiscrimination provisions apply to persons over 40 years of age. On the other hand, the age-based provisions of the “EO is The Law” notice prohibit discrimination in federally funded programs and activities on the basis of any age.

Finally, both notices provide instructions for filing discrimination complaints, but we see that the complaints are filed at different locations. The WIA “EO is The Law” notice provides that complaints may be filed with:

√ the recipient’s Equal Opportunity Officer (or the person whom the recipient has designated for this purpose); or

√ the Director, Civil Rights Center (CRC), U.S. Department of Labor, 200 Constitution Avenue NW, Room N-4123, Washington, DC 20210.

This is compared to the discrimination complaint process set forth in the “EEO is The Law” notice, which provides:

There are strict time limits for filing charges of employment discrimination. To preserve the ability of EEOC to act on your behalf and to protect your right to file a private lawsuit, should you ultimately need to, you should contact EEOC promptly when discrimination is suspected: The U.S. Equal Employment Opportunity Commission (EEOC), 1-800-669-4000 (toll-free) or 1-800-669-6820 (toll-free TTY number for individuals with hearing impairments). EEOC field office information is available at www.eeoc.gov or in most telephone directories in the U.S. Government or Federal Government section. Additional information about EEOC, including information about charge filing, is available at www.eeoc.gov.

Therefore, if you operate WIA Title I programs and activities, you must provide initial and ongoing communication of the U.S. Department of Labor’s “Equal Opportunity is The Law” notice at your agency, One Stop Career Centers, Local Workforce Investment Board offices, Job Corps Centers, operator offices, service provider locations, and the like.

The same holds true if you operate programs and activities funded through other federal agencies, such as the U.S. Department of Transportation, U.S. Department of Housing and Urban Development, U.S. Department of Education, U.S. Small Business Administration, and U.S. Department of Health and Human Services, to name a few. As with the WIA “EO is The Law” notice provided by the U.S. Department of Labor, each federal agency has an “Equal Opportunity is The Law” notice for you to use. These notices are tailored to address the specific civil rights laws applicable to the program or activity funded by that federal agency.

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, VA. You may visit her website at www.titleviconsulting.com.

Press Release from the U.S. Department of Labor — New Facebook Site for Jobs

Friday, October 21st, 2011

Secretary of Labor Hilda L. Solis announces social Web partnership to connect unemployed Americans with jobs

Partners include Facebook, the National Association of Colleges and Employers, DirectEmployers Association and the National Association of State Workforce Agencies

WASHINGTON — Secretary of Labor Hilda L. Solis today announced an innovative partnership that leverages the combined audience and expertise of officials from the U.S. Department of Labor, Facebook, the National Association of State Workforce Agencies, DirectEmployers Association and the National Association of Colleges and Employers to provide crucial employment resources to job seekers through the use of social networks.

“Linking American job seekers with the resources they need to get back to work is a top priority of the Obama administration and my department,” said Secretary Solis. “By leveraging the power of the social Web, this initiative will provide immediate, meaningful and ready-to-use information for job seekers and employers, and a modern platform to better connect them.”
As part of the announcement, Facebook officials debuted a “social jobs partnership” page that highlights available training programs, educational opportunities and job search resources, which can be accessed at http://www.facebook.com/socialjobs. Facebook also made a commitment to drive traffic to the page through targeted online public service announcements that will appear to users in geographic areas experiencing high unemployment.

Additionally, the partner organizations will conduct in-depth survey research about how job seekers, college career centers and workforce recruiters are using the social Web effectively; explore how job postings can be shared on Facebook and through other social websites at no charge; and distribute educational materials to recruiters, government agencies and job seekers about the utility of the social Web.

“Facebook is about connecting people, so that they can share what’s important to them, and that is the driving force behind the social jobs partnership,” said Marne Levine, Facebook’s vice president of global public policy. “We’ve brought employers, recruiters, college career services and government agencies together to help the millions of Americans who use Facebook to find jobs.”
In the coming months, public and private-sector partners who have committed to helping Americans find jobs through resources and technology will be added. To view streaming video of the announcement, click on http://s.dol.gov/IZ.

About the Department of Labor

The Department of Labor works to expand opportunities for all Americans, keep workers safe, and ensure that workers are able to provide for their families and keep what they earn. The department is getting America back to work though a wide range of training programs, nearly 3000 One-Stop Career Centers nationwide, and online tools to connect Americans with good jobs and training resources in their local communities.

About Facebook

Founded in February 2004, Facebook’s mission is to give people the power to share and make the world more open and connected. Anyone can sign up for Facebook and interact with the people they know in a trusted environment. Facebook is a privately held company and is headquartered in Palo Alto, Calif.

About the National Association of State Workforce Agencies

NASWA is a private, nonprofit organization based in the District of Columbia that serves as an advocate for state workforce agencies’ programs and policies, a liaison between federal and state workforce system partners, and a forum for the exchange of information and effective practices. NASWA’s state agency members administer public workforce programs, including employment services, job training, labor market information and unemployment insurance in all 50 states, the district, Puerto Rico and Guam.

About DirectEmployers Association

DirectEmployers Association Inc. is a 501(c)(6) nonprofit employer association with more than 600 members. A board of directors consisting of representatives from member companies manages its business and affairs. Its mission is to provide employers an employment network that is cost-effective, improves labor market efficiency and reaches an ethnically diverse national workforce.

About the National Association of Colleges and Employers

NACE connects college career services professionals with HR/staffing professionals focused on college relations and recruiting. The professional association forecasts trends in the job market; tracks student attitudes, “the job search,” internships and salary information; reports on legal issues in employment and hiring practices; and provides professionals with benchmarks for their work.

Collecting and Storing Medical Information: Federal Civil Rights Laws and HIPAA

Wednesday, October 19th, 2011

Very few of us would find it acceptable for our medical information to be shared with anyone who asks for it. In fact, a majority of us prefer that such information remain private and confidential. We are not interested in other people assessing our mental and/or physical health, nor do we want to be the victims of discrimination based on what others think they know about our medical condition.

For purposes of this paper, we are going to take a general look at the intersection of federal civil rights laws requiring nondiscrimination and equal opportunity, and the right to medical confidentiality and privacy under the Health Insurance Portability and Accountability Act (HIPAA). Notably, federal civil rights laws require data collection and, under certain circumstances, collection of a person’s medical information. As the Equal Opportunity (EO) professional for an agency or organization operating federally funded programs and activities, you must know when you are entitled to request medical information, how you get this information, and what you do with it once you have it.

To set the stage for data collection under federal civil rights laws, we’ll start with Title VI of the Civil Rights Act of 1964 (Title VI). This was an impressive piece of legislation that, for the first time, mandated nondiscrimination and equal opportunity based on race, color, and national origin in federally funded programs and activities. Data collection was part of this law. For example, DOL regulations implementing Title VI at 29 C.F.R. § 31.6(b) requires, in part, the following:

In general, recipients should have available for the department racial and ethnic data showing the extent to which members of minority groups are beneficiaries of federally assisted programs.

29 C.F.R. § 31.6(b). The main purpose for this data collection was to measure a recipient’s performance and compliance with Title VI.

For example, a One Stop Career Center is located in an area where 85 percent of the population is Hispanic, but the Center’s data reveals that 15 percent of the persons they serve are Hispanic. This disparity may signal a need for the Center to strengthen and expand its outreach in the community among other actions. As another example, data reveals that 80 percent of black persons are being referred to higher paying jobs with a local company, whereas only 20 percent of white persons with the same credentials are being referred to these higher paying jobs. Here, data collected supports a finding that the recipient engaged in discriminatory referral of applicants in violation of Title VI.

Moving to collection of medical information, disability-related nondiscrimination laws first surfaced in 1973 with enactment of the Rehabilitation Act. Again, certain data collection requirements are imposed on recipients of these federal funds to gauge compliance with the law. For example, in DOL-funded programs, 29 C.F.R. § 32.44(b) requires:

. . . recipients should have available for the Department data showing the extent to which known handicapped individuals are beneficiaries and participants in federally assisted programs or activities.

29 C.F.R. § 32.44(b). Likewise, the ADA and ADAAA, enacted in 1990 and 2008, respectively, place similar disability-related nondiscrimination and equal opportunity requirements on recipients operating federally funded programs and activities.

Let’s take a closer look at circumstances where a recipient offering federally funded programs and activities must collect medical-related data on an individual. One example would be to determine whether the person meets the “essential eligibility requirements” for the federally funded service, aid, training, or benefit at issue. Another example is where the person requests accommodation. In such a situation, medical documentation may be requested to satisfy the requirements for providing such accommodation, or to determine what accommodation would be reasonable.

As the Equal Opportunity (EO) professional for a recipient of federal funds, storing this data in an unsecured location, or sharing it without limitation, leaves the individual with a disability particularly susceptible to discrimination, and it would leave the recipient operating federally funded programs and activities open to liability and/or sanctions.

Here is where it is useful to understand the purpose of HIPAA. HIPAA is not a civil rights law; rather, it is a health information privacy law. This law gives the individual control over who may review or receive his or her mental and/or physical health information and it gives the individual certain rights over this information.

The interplay between a privacy law, like HIPAA, and a civil rights law is best demonstrated by example. For this purpose, we’ll look at the Workforce Investment Act of 1998 (WIA). WIA prohibits discrimination in federally-funded programs and activities on a wide variety of bases, including disability. Some examples of WIA-funded recipients operating programs and activities are One Stop Career Centers offering employment referral services, training, and unemployment insurance benefits as well as Job Corps Centers offering educational programs and activities designed to enhance a person’s employability.

As with civil rights laws coming before it, DOL’s regulations for WIA set forth certain data collection and reporting requirements as follows:

Each recipient must record the race/ethnicity, sex, age, and where known, disability status of every applicant, registrant, eligible applicant/registrant, participant, terminee, applicant for employment, and employee.

29 C.F.R. § 37.37(b)(2). Importantly, however, this law further requires:

Such information must be stored in a manner that ensures confidentiality and must be used only for the purposes of recordkeeping and reporting; determining eligibility, where appropriate, for WIA Title I-financially assisted programs or activities; determining the extent to which the recipient is operating its WIA Title I-financially assisted program or activity in a nondiscriminatory manner, or other use authorized by law.

29 C.F.R. § 37.37(b)(2).

You are the EO Officer for a Job Corps Center offering federally funded educational programs and activities. Sam asserts that he is a person with a visual impairment and he requests reasonable accommodation by way of enhanced computer technology. Sam wears glasses and sometimes uses a stick when he walks. In order to determine the appropriate accommodation, you request medical documentation.

HIPAA prohibits you from accessing Sam’s medical documentation directly from his health care providers. Rather, Sam must authorize the providers to release whatever medical information he desires for you to review. For your part, you should request only that medical information, which is necessary to make a decision.

Now, once Sam’s medical documentation is in your hands, WIA limits its use and requires confidentiality. Notably, you must use the information solely for purposes of determining a reasonable accommodation for Sam and the information must be kept confidential.

Consequently, as the EO professional for your agency or organization, it is highly-recommended that you keep all medical information obtained in conjunction with a reasonable accommodation request, or in conjunction with determining whether an individual meets the essential eligibility requirements for a particular service, aid, training, or benefit, in a folder that is completely separate from your program file on the individual. Moreover, the separate folder containing medical information should be in a secure location. This means that paper medical records would be kept in a locked drawer or locked filing cabinet with very limited access. Electronic medical information should be password protected and/or encrypted and, again, with very limited access. Any employee of the recipient with access to these records must understand that s/he is strictly bound to adhere to confidentiality requirements pertaining to the records. Finally, you should review your agency’s or organization’s policies for time limits on storing such information—you will not keep an individual’s medical information indefinitely.

Look at the Methods of Administration for your state or territory to determine how you should handle confidential medical information. You may also seek guidance from your state EO leadership, or from the civil rights office of the federal funding agency.

Also, keep in mind that the same confidentiality requirements are imposed on employers with regard to their employees. Namely, EEO/AA/HR professionals must ensure that all medical information pertaining to an employee is kept in a folder that is separate from the employee’s personnel record. And, the medical information folder must be confidential and secure. Look to the U.S. Equal Employment Opportunities Commission for additional guidance in the context of the workplace.

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, VA. You may visit her website at www.titleviconsulting.com. The opinions expressed in this paper are attributable to Ms. Foster.

Press Release from the U.S. Department of Justice – Religious Accommodation

Saturday, October 15th, 2011

Office of Public Affairs

FOR IMMEDIATE RELEASE

Thursday, October 13, 2011

Justice Department Settles Religious Discrimination Lawsuit Against Berkeley School District in Illinois

WASHINGTON — The Department of Justice announced today that it has entered into a consent decree with the Board of Education of Berkeley School District 87 in Berkeley, Ill. that, if approved by the court, will resolve a religious accommodations lawsuit filed in December 2010. In its lawsuit, the United States alleged that the school district violated Title VII of the Civil Rights Act of 1964 by failing to reasonably accommodate the religious practices of Safoorah Khan, a Muslim teacher at McArthur Middle School.

“Employees should not have to choose between practicing their religion and their jobs,” said Thomas Perez, Assistant Attorney General for the Civil Rights Division. “ The facts of this case show the consequences of an employer refusing to engage in any interactive process to understand and work with an employee to find an accommodation of the employee’s religious beliefs that will not cause undue hardship to the employer. We are pleased that Berkeley School District has agreed to implement a training program that puts into place an interactive process to ensure that each request for a religious accommodation will be considered on a case-by-case basis and granted if it poses no undue hardship on the school district.”

The government’s complaint, filed in the U.S. District Court for the Northern District of Illinois in Chicago, alleged that Ms. Khan requested an unpaid leave of absence in December 2008 to perform Hajj, a pilgrimage required by her religion, Islam. According to the complaint, Berkeley School District denied Ms. Khan a reasonable accommodation of her religious practice, compelling Ms. Khan to choose between her job and her religious beliefs, thus forcing her discharge. The United States also alleged that the school district maintains a policy under which it refuses to grant leave to non-tenured teachers as an accommodation for their religious practices if the leave requested is not already provided for in the school district’s leave policy.

The lawsuit was based on a charge of discrimination filed by Ms. Khan with the Chicago District Office of the Equal Employment Opportunity Commission (EEOC). After investigating Ms. Khan’s charge, finding reasonable cause to believe that Berkeley School District had discriminated against Ms. Khan, and unsuccessfully attempting to conciliate the matter, the EEOC referred the charge to the Department of Justice.

Under the terms of the consent decree, Berkeley School District will pay $75,000 to Ms. Khan for lost back pay, compensatory damages and attorneys’ fees. Berkeley School District also is required to develop and distribute a religious accommodation policy consistent with Title VII’s requirement to reasonably accommodate the religious beliefs, practices and/or observances of all employees and prospective employees. In addition, Berkeley School District is required to provide mandatory training on religious accommodation to all board of education members, supervisors, managers, administrators and human resources officials who participate in decisions on religious accommodation requests made by its employees and prospective employees.

This is the first lawsuit brought by the Department of Justice as a result of a pilot project designed to ensure vigorous enforcement of Title VII against state and local governmental employers by enhancing cooperation between the EEOC and the Civil Rights Division.

“As the favorable resolution of this case demonstrates, closer collaboration between the EEOC and the Department of Justice will strengthen the enforcement of this nation’s civil rights laws,” said Jacqueline A. Berrien, Chair of the EEOC. “Our partnership is critical to ensuring that workplaces are free of bias.”

Title VII prohibits discrimination in employment on the basis of gender, race, color, national origin or religion, and prohibits retaliation against an employee who opposes an unlawful employment practice, or because the employee has made a charge or participated in an investigation, proceeding or hearing under the Act. More information about Title VII and other federal employment laws is available on the Department of Justice website at www.usdoj.gov/crt/emp/index.html .

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its website at www.eeoc.gov.

Religious Accommodation in Federally-Funded Programs and Activities: An Overview

Wednesday, October 12th, 2011

As the Equal Opportunity (EO) professional for an agency or organization charged with administering federally-funded programs and activities (also known as a “recipient”), you should have written policies and procedures for handling requests for religious accommodation. In this paper, we explore some basic concepts related to religious accommodation using the Workforce Investment Act of 1998 (WIA) as the context for guidance offered.

Some examples of WIA-funded programs and activities are found at One Stop Career Centers offering unemployment insurance benefits, employment referral services, and training. In addition, most Job Corps Centers offer WIA-funded educational programs and activities designed to get folks educated, skilled, and employed.

For WIA-funded programs and activities, one prohibited basis of discrimination is “religion”. (For a discussion of “basis”, see prior paper titled, “The ‘Basis’ of a Discrimination Complaint: What It Is and Why It’s Important”). And, with this prohibition comes an obligation to provide reasonable, religious-based accommodation when requested, if no “undue hardship” is present.

“Religious belief or practice” defined.

Initially, it is helpful to have a common understanding of how the phrase, “religious belief or practice”, is defined. Because the WIA and its implementing regulations do not define “religious belief or practice”, it is useful for us to look at how this phrase is defined under Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits religion-based discrimination in the workplace. Here, we find that a “religious belief or practice” may represent mainstream religious views, or it may be less common, less understood, and less well-known. And, the concept of “religious belief or practice” includes persons who ascribe to no religious belief or practice at all.

Some examples of “religious belief or practice” under Title VII include, but are not limited to:

● Agnostic
● Atheist
● Buddhist
● Christian
● Hindu
● Jewish
● Kemetic
● Muslim
● Native American spiritual beliefs
● Sikh
● Wicca
● and countless others.

A common thread defining any “religious belief or practice” is that it reflects a person’s views of life, purpose, and death. On the other hand, social, political, and economic philosophies as well as personal preferences do not constitute “religious beliefs or practices” protected by federal civil rights laws.

The “religious belief or practice” must be bona fide.

Religious-based accommodation is premised on the fact that the asserted “religious belief or practice” is bona fide. Said differently, it is “sincerely held” by the requestor. Generally, this requirement is met without difficulty. However, if the requestor behaves in a manner that is markedly inconsistent with the professed “religious belief or practice”, then you may determine that the belief or practice is not bona fide or “sincerely held” by the requestor. This, in turn, means that there is no obligation to provide accommodation.

Essential eligibility requirements must be met.

Before entertaining a request for religious accommodation of a federally-funded program or activity, the requester must meet its “essential eligibility requirements”. If a person does not meet the “essential eligibility requirements” for the program or activity, then there is no obligation to provide accommodation.

Common religious-based accommodation requests.

In federally-funded programs and activities, some common religious-based accommodation requests include:

● Changes in scheduling of programs and activities;
● Modification of testing and selection procedures;
● Modification of dress and/or grooming requirements; and
● Permitting forms of religious expression.

In the workplace, religious-based accommodation requests may take similar forms of:

● Changes in scheduling of work shifts;
● Modification of testing and selection procedures;
● Modification of dress and/or grooming requirements; and
● Permitting forms of religious expression.

Generally, a religious-based accommodation request is made to address conflicts between a federally-funded program and activity and a person’s religious belief or practice. For example, your One Stop Center receives a request that orientations for the Center’s programs and activities be scheduled any day of the week except Friday because Friday is considered a “holy day” by the requestor. This is an example of a religious-based accommodation request.

Communication is a must.

If a person seeks accommodation based on his/her religious belief or practice, then the accommodation request must be made known to the recipient offering federally-funded programs and activities (such as the One Stop Career Center or Job Corps Center). Magic words are not required, but the requestor must convey enough information for the recipient to understand that accommodation is sought pursuant to the requestor’s religious beliefs or practices. A recipient cannot be held liable for failure to provide accommodation if it was unaware of the need in the first place.

Information-sharing between the requestor and the recipient’s EO professional is critical as determinations of accommodation are made on a case-by-case basis after consideration of the particular facts.

Avoid discriminatory consideration of requests.

If a person meets the essential eligibility requirements for a federally-funded program or activity, and the person requests accommodation based on a bona fide religious belief or practice, then the EO professional is obliged to avoid consideration of discriminatory criteria. Examples of discriminatory criteria are as follows:

● “The person looks like a terrorist”;
● “The person’s beliefs are illogical, inconceivable, or
incorrect”;
● “I disagree with the person’s beliefs”;
● “The person’s name is associated with a particular religion”;
● “The person’s name is associated with terrorism”;
● “The person’s religious belief or practice is offensive”;
● “The person’s religious belief or practice is immoral”;
● “I am uncomfortable with the religious belief or practice”; or
● “The person’s religious belief or practice is in the minority.”

It bears repeating that it is discriminatory to employ any of the foregoing criteria, or similar criteria, in considering an accommodation request. Sincerely held religious beliefs and practices are intensely personal and they must be accepted “as is” for purposes of addressing a religious accommodation request under federal civil rights laws.

“Undue hardship” defined.

A recipient offering federally-funded programs and activities is obliged to provide reasonable religious-based accommodation unless it can demonstrate “undue hardship”. For example, the regulations implementing WIA at 29 C.F.R. § 37.4 define “undue hardship” as follows:

For purposes of religious accommodation only, “undue hardship” means any additional, unusual costs, other than de minimis costs, that a particular accommodation would impose upon a recipient. See Trans World Airlines, Inc.v. Hardison, 432 U.S. 63, 81, 84 (1977).

It is Respondent’s burden to demonstrate “undue hardship”.

“Undue hardship” is not established.

Asserting speculative, or showing only de minimus, costs associated with providing accommodation does not give rise to a finding of “undue hardship”. And, “undue hardship” is not established by a recipient’s mere assertion that providing accommodation for one person will lead to an incoming tide of other requests.

“Undue hardship”: Factors to consider.

As we noted earlier, “undue hardship” must be determined on a case-by-case basis after consideration of all the facts. The following factors may be relevant and are properly considered:

● Costs associated with providing the accommodation are identifiable and more than “de minimus” in
relation to the Respondent’s size and operating costs;
● Providing the requested accommodation would diminish the efficiency of Respondent’s federally-
funded programs and activities;
● Safety would be impaired by allowing the accommodation;
● The requested accommodation would conflict with another law; or
● In the employment context, the requested accommodation violates of the terms of a collective
bargaining agreement, or violates seniority rights of other employees.

In assessing whether a requested accommodation would conflict with another law, it is important to keep in mind that federally-funded programs and activities are paid by taxpayers of all races, colors, national origins, genders, disabilities, and religions. These funds, in turn, are used to provide aid, benefits, services, and training to any member of the public meeting certain essential eligibility requirements. Attached to this federal funding are obligations imposed on the recipient to ensure nondiscrimination on a variety of bases, including religion, sex, race, national origin, color, disability, and age among others.

So, let’s assume that you are the EO Officer for a Job Corps Center, which provides educational programs and activities. Your Center is located in an area that is largely comprised of persons of a particular religion requiring separation of men and women in educational programs and activities. You receive a request for accommodation by persons of this religious belief asking that you provide separate classes for men and women at your Center. What should you do?

We start with the law. The regulations implementing WIA bar discrimination on certain “prohibited grounds” as follows:

(a) For the purposes of this section, “prohibited ground” means race, color, religion, sex, national origin, age, political affiliation or belief, and for beneficiaries only, citizenship or participation in any WIA Title I—financially assisted program or activity.

29 C.F.R. § 37.6(a). And, the regulations further provide that offering segregated or separate programs and activities is a form of discrimination:

(b) A recipient must not, directly or through contractual, licensing, or other arrangements, on a prohibited ground:
. . .
(3) Subject an individual to segregation or separate treatment in any matter related to his or her receipt of any aid, benefits, services, or training under a WIA Title I—funded program or activity; . . ..

29 C.F.R. § 37.6(b)(3).

In our example, the requested accommodation (segregation of men and women in educational programs) would lead your Center to engage in gender-based discrimination in violation of federal law. As previously noted, the law prohibits “segregation or separate treatment” on any “prohibited ground”, which includes sex. Keep in mind that the same would hold true if you received a religious-based accommodation request seeking segregation based on race, color, national origin, age, or the like. It is not reasonable to discriminate against participants on one of these prohibited bases in order to accommodate a religious belief or practice.

In the end, religious-based accommodation requests are fact-intensive and must be handled on a case-by-case basis. To the extent that “undue hardship” is not present, you are obliged under federal law to provide reasonable religious-based accommodation, if requested, to persons who meet the essential eligibility requirements for the program or activity. And, you must accept the requestor’s religious belief or practice “as is”. For complicated accommodation requests, including any requests that may conflict with other federal civil rights laws, you should consult with the EO leadership of your state or territory for guidance, or with the civil rights office of your federal funding agency.

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, VA. You may visit her website at www.titleviconsulting.com. The opinions expressed are those of Ms. Foster. In handling a religious-based accommodation request, you should consult the EO leadership of your state or territory, or the civil rights office of your federal funding agency.

The “Basis” of a Discrimination Complaint: What It Is and Why It’s Important

Wednesday, October 5th, 2011

A discrimination complaint is filed when someone feels that s/he has been unfairly or unjustly treated as compared to someone else. Sometimes, the person believes that a process or criteria has been inefficiently or inconsistently applied to him or her as compared to another person.

There may be any number of reasons for the alleged discrimination, yet only certain reasons are prohibited by law. The reason for alleged discrimination constitutes the complaint’s “basis” or, in the case of multiple reasons, the “bases” of discrimination.

Why is the “basis” or “bases” of a discrimination complaint important to the Equal Opportunity (EO) professional? It is one of the critical factors used in determining whether a violation of federal civil rights laws has been alleged. While it is true that any form of discriminatory conduct or preferential treatment is offensive and unfair, not all conduct is illegal.

Prohibited bases of discrimination in federally-funded programs and activities are established by statute. For example, Title VI of the Civil Rights Act of 1964 provides that race, color, and national origin are illegal bases of discrimination. Disability is another prohibited basis of discrimination pursuant to the Rehabilitation Act of 1973, the Americans With Disabilities Act of 1990, and the Americans With Disabilities Act Amendments Act of 2008. The Age Discrimination Act of 1975 prohibits discrimination on the basis of age—any age.

While the foregoing statutes set forth prohibited bases of discrimination across the board in federally-funded programs and activities, there are certain statutes delineating additional prohibited bases of discrimination, which are applicable to specific types of programs and activities. For instance, Title IX of the Education Amendments Act of 1972 (Title IX) prohibits discrimination on the basis of sex or gender in federally-funded educational programs and activities. And, one of the most expansive civil rights laws applies to certain workforce development programs and activities. Notably, the Workforce Investment Act (WIA) of 1998 prohibits discrimination on the previously-mentioned bases of race, color, national origin, age, disability, and gender. And, it contains the following additional prohibited bases of discrimination: religion, political affiliation or belief, citizenship, and WIA-participant status.

To illustrate the concept of basis and its importance, we’ll look at a couple of examples. First, let’s assume that Michelle wants to enroll in a GED program at a nearby Job Corps Center, which receives WIA-related funding. The admissions officer of the Center does not permit Michelle to complete the enrollment form because she has been pregnant five times in the past seven years. Michelle files a complaint. Here, the basis of Michelle’s complaint is gender discrimination; that is, Michelle alleges that she is subjected to discrimination because of her history of pregnancies and, since pregnancy is unique to women, she alleges gender-based discrimination. Since the Job Corps Center operates federally-funded educational programs and activities, it is governed by Title IX, which prohibits gender-based discrimination. Moreover, gender-based discrimination is prohibited under WIA as well.

Now, let’s turn to Joe, who alleges that he is being denied on-the-job-training through a WIA-funded One Stop Career Center because he is homeless. Take another look at the prohibited “bases” set forth in the civil rights laws we have reviewed, including WIA. You will note that “homelessness” is not listed. Undoubtedly, discrimination against a person because s/he is homeless is offensive and unfair, but the EO professional does not have authority to investigate Joe’s complaint under federal civil rights laws because his complaint does not allege a basis of discrimination prohibited by those laws.

If you are an EO professional, then you should know the federal civil rights laws that apply to your federally-funded programs and activities. Review these laws to determine the prohibited “bases” of discrimination. If you receive a discrimination complaint, you will need to ensure that the alleged basis of discrimination is, in fact, prohibited by one or more civil rights laws governing your programs and activities.

If you are an EEO/AA/HR professional in the workplace, you will need to know the federal, state, and local civil rights laws applicable to workplace discrimination. As with laws governing federally-funded programs and activities, civil rights laws governing the workplace discrimination will delineate certain prohibited “bases” of discrimination. These workplace “bases” include age (40 years old and over), disability, equal compensation, genetic information, national origin, sex (including pregnancy and sexual harassment), race, color, and religion.

It will save you time to make a list of the prohibited “bases” of discrimination under the civil rights laws applicable to your federally-funded programs and activities, and/or to your workplace. This, in turn, will help you quickly assess whether a complaint alleges illegal discrimination.

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, VA. You may visit her website at www.titleviconsulting.com.