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Department of Justice and Department of Education Joint Guidance on the Voluntary Use of Race

Wednesday, December 7th, 2011

Assistant Attorney General, Thomas E. Perez, and Assistant Secretary for Civil Rights in the Department of Education, Russlynn Ali, have posted joint guidance on the voluntary use of race to achieve diversity or avoid racial isolation in schools. The guidance is intended to help schools, colleges, and universities lawfully achieve compelling interests in diversity, and for K-12 schools, the additional compelling interest in avoiding racial isolation. The guidance is presented in two documents, one for elementary and secondary schools and the other for postsecondary institutions.

To access the joint guidance letter as well as the separate attachments for K-12 educational institutions and for colleges and universities, go to www.justice.gov/crt/about/edu/guidance

Guidance letter

Elementary and secondary school guidance

Postsecondary education guidance

The Road to Nondiscrimination: Focusing on The Fundamentals

Thursday, December 1st, 2011

Federal civil rights laws mandate nondiscrimination and equal opportunity in federally funded programs and activities and in the workplace. Often, however, achieving the goal of nondiscrimination is easier said than done.

The fact is, we tend to gravitate to people who look, think, and speak like we do. It’s difficult to step outside our zone of comfort to interact with folks who look or speak differently, or who hold “disagreeable” beliefs, views, or thoughts. And, even when we do venture outside our zone of comfort, it is a struggle to consider the other person and the person’s views without trying to mold him or her to conform to our way of thinking, speaking, or looking.

So, in this paper, we’re going to focus our attention on one way we can promote nondiscrimination and equal opportunity. We’ll assume that you are the Equal Opportunity (EO) professional for your organization and one of your job duties is ensuring nondiscrimination and equal opportunity in your federally funded programs and activities and in your employment practices.

Essential eligibility requirements

Let’s start with federally funded programs and activities. Every federally funded program and activity has a set of criteria, known as the “essential eligibility requirements”, which must be satisfied by any person seeking to take advantage of the service, aid, training, or benefit offered. This holds true for unemployment insurance, financial aid for college, rental housing assistance, Medicare, or any one of a myriad of other federally funded programs and activities.

Keeping a list of these “essential eligibility requirements” in front of you as you process an individual’s application, as opposed to focusing on how the person looks, speaks, or thinks, will help ensure that decisions are based on nondiscriminatory criteria. To illustrate this point, let’s say that you are offering a federally funded financial aid program and the essential eligibility requirements for this program are: (1) the applicant must have a household income of $24,500.00 per year or less in the 12 months preceding the date of the application; and (2) the applicant must establish that s/he has been a resident of your state or territory for at least 12 months prior to the date of the application.

For purposes of the exercises that follow, we are not concerned with the amount of the financial aid offered or its purpose—it could be emergency financial assistance for living expenses, or to pursue an education at a college or university, or as down payment assistance for a home or rental unit, or to offset the costs of health care expenses, or any number of other possibilities. Take a look at each of the following scenarios and make a determination regarding whether the applicant would be entitled to the aid.

● Applicant Marsha Taylor is a middle-aged black woman with four children who has lived in your state for seven years and is trying to provide a better life for her children. She works two jobs and her household income is $25,200.00. She desperately needs the financial aid you offer. What do you do?

Answer: Ms. Taylor does not qualify for this aid. Although she has been a resident of your state for seven years, her household income exceeds the $24,500.00 limit. You may empathize with her difficult circumstances; you are not able to deviate from the “essential eligibility requirements” for this program.

● Applicant Steve Smith is a 28 year old white male who has been a resident of your state for 13 months. He lives with his mother and their annual household income is $24,400.00. He has been unemployed for over a year because he does not believe in the “capitalist way of life”. He has a religious belief that you find objectionable and you cannot stand his abrasive personality, especially because he talks constantly about how Americans are stupid. What do you do?

Answer: Mr. Smith qualifies for this aid. His household income is less than the $24,500.00 limit and he has been a resident of your state for 13 months. Even though you find certain aspects of Mr. Smith’s beliefs or lifestyle offensive, he meets the “essential eligibility requirements” for this program.

● Applicant Jose Vargas is a 24 year old person who is Limited English Proficient (LEP). Using a language line, you learn that he came to the United States 15 years ago with his parents, is a citizen of the United States, and has lived in your state for two years. He lost his job two months ago and his household income in the year preceding his application was $24,750.00. What do you do?

Answer: Mr. Vargas does not qualify for the aid. Here, Mr. Vargas meets the residency requirement for this program, but his household income exceeds the program’s income limits of $24,500.00. Even though he is unemployed, the “essential eligibility requirements” require that you look at the household income in the immediately preceding 12 month period of time. During that period of time, Mr. Vargas’ household income was $24,750.00.

For more information on working with LEP persons, see prior paper titled, “Limited English Proficiency (LEP) Persons: Some of the Basics in Federally Funded Programs and Activities.”

● Marion Turnball comes to you to apply for financial aid. She has a visual impairment and requests that you assist her in completing her application. You do so and learn that she has lived in your state for three years and her household income is $24,600.00. What do you do?

Answer: In this example, Ms. Turnball meets the residency requirement since she has lived in your state for three years. On the other hand, her household income in the 12 months preceding the date of her application is $24,600.00, which exceeds the program’s limits of $24,500.00. Therefore, she does not meet the “essential eligibility requirements” for this program.

Bona fide occupational requirements

Federal civil rights laws also mandate nondiscrimination and equal opportunity in your employment practices. As we’ve already learned, focusing on the “essential eligibility requirements” in federally funded programs and activities is one way of ensuring nondiscrimination. In your employment practices, there is a similar concept known as the “bona fide occupational requirements.” For the workplace, you’ll keep this list of actual, business-related requirements in front of you as you make decisions in your hiring, recruitment, termination, promotion, selection, and other practices.

It is illegal to pass over an individual who meets the “bona fide occupational requirements” for a job, promotion, or the like, because the person has a prosthetic limb, or because you don’t like the color of the person’s skin, how the person speaks or dresses, or the religious beliefs held by the person. To the contrary, employment decisions should be based on whether a person meets your list of bona fide occupational requirements. And, for each person who does meet these requirements, your ultimate decision should be based on a legitimate comparison of his or her credentials with the credentials of other qualified persons.

Let’s put these concepts into practice. Assume that there are certain positions in your company that require a high-level security clearance. You accept applications for the security clearance only when there is an opening in one of these positions. The person selected for the security clearance will get a significant bonus and be promoted in rank at the company. Let’s say that, prior to applying to obtain the security clearance, the employee must demonstrate that s/he: (1) has a credit rating of 750 or higher with no history of bankruptcies, (2) has been employed with your company for at least 10 years, and (3) has received outstanding job performance appraisals for each of the last ten years. Four employees express an interest in applying for the security clearance:

● Amanda Wilson has a reputation as one of the most devoted and hardest workers at your company. Her credit rating is 810 and, within the next two months, she will have 10 years of service with your company. She has never filed for bankruptcy. She has consistently received outstanding job performance appraisals for each of the past 9 years and is expected to receive an outstanding appraisal after completion of her 10th year in the next two months. In fact, her supervisors have praised her ability to go above and beyond that expected of her to offer innovative and effective solutions to problems. What do you do?

Answer: With a score of 810, Ms. Wilson clearly exceeds your requirement of a credit score of 750. Moreover, Ms. Wilson has never filed for bankruptcy. The problem is, however, Ms. Wilson does not have 10 years of employment with your company. You know that she has received outstanding performance appraisals for each of the past nine years with your company and her supervisor assures you that she will receive an outstanding performance appraisal in her 10th year with the company, which occurs at the end of only two more months. Nonetheless, at the time her application was filed, Ms. Wilson did not meet the 10 years of service requirement such that you cannot permit her to apply for the security clearance at this time.

● Khalid Al-Sharawah has worked for your company for 15 years. He came from Iraq and obtained his U.S. citizenship two years ago. He has received outstanding job performance appraisals for each of the last ten years. He practices a certain religious faith and, in the beginning of his employment with the company, you received complaints that he made derogatory comments about women and people of other religious faiths at work. You counseled him that this is unacceptable behavior and, in the past several years, you stopped receiving complaints. His credit score is 752 and he has not filed for bankruptcy in the past. What do you do?

Answer: Mr. Al-Sharawah meets the years of service requirement and has received outstanding performance appraisals for each of the past ten years. He has never filed for bankruptcy, and his credit score of 752 exceeds the required score of 750. Although you may disagree with Mr. Al-Sharawah’s beliefs and views, he is entitled to apply for the security clearance.

● Joe Thompson has been with your company for 13 years. His credit score is 812 and he has not filed a bankruptcy in the past ten years. He tells you that he did file for bankruptcy when he was younger (about 20 years ago) because of unexpected medical expenses incurred by his daughter who suffered from cancer. He is known in your company as being very loyal and a hard worker. He has received outstanding performance appraisals for each of the past ten years. What do you do?

Answer: Mr. Thompson is one of the most pleasant people you have encountered. He meets the service requirements and has received outstanding performance appraisals for each of the past ten years. His credit score is the highest of any of the applicants at 812. However, he has filed bankruptcy in the past. Although the bankruptcy was filed 20 years ago, your “essential eligibility requirements” do not provide a time limit for bankruptcy filings. Under these circumstances, Mr. Thompson would not be permitted to apply for the security clearance.

● Tamara Wake has been with your company for 10 years. Her credit score is 801. She has never declared bankruptcy. In the first year of her employment with your company, she received a rating of “incompetent” by her supervisor. She filed a discrimination complaint and, on investigation, it was determined that the supervisor gave Ms. Wake the adverse appraisal because she is black and he did not agree with hiring “coloreds.” The performance appraisal was revised to reflect “outstanding” job performance. And, in the nine years since that time, Ms. Wake received outstanding performance appraisals by a different supervisor. What do you do?

Answer: Here, Ms. Wake meets the 10 year service requirement and she has an excellent credit score of 801. Moreover, she has never filed for bankruptcy. Turning to the performance appraisals, you note that, because her first performance appraisal was amended to reflect an outstanding rating, she meets the requirement of receiving outstanding performance appraisals for each of the past ten years. As a result, Ms. Wake is permitted to apply for the security clearance.

In the end, we can see how important the “essential eligibility requirements” and “bona fide occupational requirements” are in an organization’s decision-making process. Focusing on these requirements as opposed to personal, subjective criteria will enable you to avoid engaging in discriminatory conduct. Indeed, these requirements offer the objective measure of an applicant’s ability, or inability, to qualify for whatever you are offering. It is important to have established policies and procedures that you apply evenly to all applicants, which include the “essential eligibility requirements” or “bona fide occupational requirements” at issue. For further discussion of policies and procedures, see prior paper titled, “The Importance of ‘The Script’”.

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.” Her book was judged by a panel of industry experts as an award-winning Finalist in the Business Reference category of the 2011 USA Best Books competition, sponsored by USA Book News. She is also a Partner with Title VI Consulting in Alexandria, VA. You may visit her website at www.titleviconsulting.com.