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Archive for June, 2013

U.S. Department of Justice Finds Civil Rights Violations in Housing

Saturday, June 29th, 2013
Justice Department Releases Findings on the Antelope Valley Stations of the Los Angeles County Sheriff’s Department
The County of Los Angeles Agrees to Negotiate Broad Changes to Policing and Section 8 Enforcement in the Antelope Valley

The Justice Department Civil Rights Division and Los Angeles County today announced that they have reached  preliminary agreements to make broad changes to policing in the Antelope Valley and to the enforcement of the Housing Choice Voucher Program (commonly known as Section 8).  Together with statements of intent outlining these changes, the division today released a letter detailing its findings that Los Angeles County Sheriff’s Department’s (LASD) Lancaster and Palmdale stations, both of which are located in the Antelope Valley, engaged in a pattern or practice of stops, searches, and seizures and excessive force in violation of the Constitution and federal law.  In addition, the Justice Department found a pattern or practice of discrimination against African Americans in its enforcement of the Housing Choice Voucher Program in violation of the Fair Housing Act.  The investigation, launched on Aug. 19, 2011, was brought under to the Violent Crime Control and Law Enforcement Act of 1994, Title VI of the Civil Rights Act of 1964, and the federal Fair Housing Act.

Justice Department Settles Race Discrimination Lawsuit Against Owners and Managers of Mobile Home Parks in Alabama and Georgia

The Justice Department announced yesterday that Lawrence Properties Inc., Lawrence at Lakewood LLC, Michael Lawrence, and Williams Bounds have agreed to pay $35,000 to settle a lawsuit involving violations of the Fair Housing Act. The lawsuit alleged that the defendants denied housing to an African American woman and her family because of race. The lawsuit also alleged that the owner and the regional manager of Lawrence Properties communicated to employees a company policy of not renting to African Americans.

Under the consent order, the defendants will pay $25,000 to the family who was denied housing and $10,000 to the United States as a civil penalty. In addition, the order prohibits the defendants from discriminating in the future against prospective tenants based on race, mandates the implementation of a non-discriminatory rental policy, and requires the defendants and their employees to receive training on the Fair Housing Act.

“No family should be denied housing because of their race,” said Eric Halperin, Senior Counsel and Special Counsel for Fair Lending in the Civil Rights Division. “We are committed to enforcing the Fair Housing Act to ensure that everyone has the freedom to choose where they live.”

Office of Disability Employment Policy Newsletter June 28, 2013

Saturday, June 29th, 2013

To read more about any of the articles contained in this newsletter, go to www.odep.dol.gov.

Assistant Secretary Martinez Comments on Technology in the Workplace in the Huffington Post

In a June 23 article in the Huffington Post entitled “New Technologies Get More Disabled People into Workforce,” assistant secretary for disability employment policy Kathy Martinez commented on the ways in which technology has helped people with disabilities in the workplace. “In the professional careers, technology has helped increase the employment rate immensely,” said Martinez. “It’s actually allowed us to participate in office careers more than ever before.”

• Read the Huffington Post story
• Learn about accessible technology

LEAD Center Issues Its Quarterly LEAD On! E-Newsletter

The LEAD Center released its quarterly LEAD On! e-newsletter, which highlights news and innovations in employment, policy and economic advancement for adults with disabilities. LEAD On! features articles, links to useful resources, and profiles of LEAD people and partners. Dedicated to advancing sustainable individual and systems-level change to improve competitive, integrated employment and economic self-sufficiency for adults across the spectrum of disabilities, the LEAD Center is a collaborative of disability, workforce and economic empowerment organizations led by National Disability Institute with funding from the U.S. Department of Labor’s Office of Disability Employment Policy.

• Read the LEAD On! e-newsletter
• Visit the LEAD Center website

U.S. Department of Labor Participates in National HIV Testing Day

The U.S. Department of Labor (DOL) sent tweets and posted on Facebook to support National HIV Testing Day (NHTD) and to acknowledge that employers can play a pivotal role in HIV/AIDS prevention and wellness. Although June 27th was designated NHTD to encourage people to get tested, it is critical for all of us, including employers, to support HIV testing, treatment, and wellness every day of the year. Moreover, employer support is critical to providing meaningful employment opportunities for people living with or at risk of HIV/AIDS.

• Learn about HIV/AIDS and employment
• Read the DOL Facebook post for National HIV Testing Day
• Read a DOL tweet for National HIV Testing Day
• Read another DOL tweet for National HIV Testing Day
• Read a third DOL tweet for National HIV Testing Day

Blog Tackles Myths about Social Media Accessibility

In a blog on “5 Myths about Social Media Accessibility” on DigitalGov, Mario Damiani, a policy advisor at the Office of Disability Employment Policy, talks about the misconceptions related to social media accessibility. Damiani leads the Social Media Accessibility Working Group within the Federal Social Media Community of Practice.

• Read the blog
• Learn about the Federal Social Media Community of Practice

National Organization on Disability and Sirota Consulting Publish Employee Survey Results

The National Organization on Disability (NOD) and Sirota Consulting released the results of a five-year survey of nearly 850,000 employees designed to better understand the experiences of employees with disabilities compared to the experiences of their colleagues without disabilities. The largest differences were found in the strength of the relationship between the employee and the company, and in the amount of encouragement and opportunity employees received to achieve in their position. NOD and Sirota also created a webinar entitled “The Forgotten Diversity Segment: How Employees with Disabilities Rate Their Experiences at Work” to present findings from the survey.

• Read the NOD News story
• View the webinar

Youth Transitions Collaborative to Unveil Survey Results — July 9, 6:30 PM at the National Press Club

On July 9th at 6:30 PM at the National Press Club, the Youth Transitions Collaborative will release a new nationwide poll of people with disabilities, their immediate family members and caregivers. The poll focuses on the disability community’s political views, commitment to advocacy, and potential impact on the American political landscape. The poll also highlights the advocacy trends among younger Americans with disabilities. The Youth Transitions Collaborative, developed by The HSC Foundation, is a community of more than 40 organizations that share a mission to empower youth and young people with disabilities as they enter adulthood and the world of work.

• Register for the event
• Visit the HSC Foundation website

Smithsonian Launches Online Exhibit on Disability History — Everybody: An Artifact History of Disability in America

The Smithsonian’s National Museum of American History has unveiled an online exhibit of disability in America. The exhibit “Everybody: An Artifact History of Disability in America” features sections on disability and history, people, places, technology and more. The exhibit presents history as viewed from the perspective of people with disabilities, America’s largest minority.

• Visit the exhibit

Computer/Electronic Accommodations Program Releases Workplace Ergonomics Reference Guide

As part of its observation of National Safety Month, the Department of Defense’s Computer/Electronic Accommodations Program (CAP) has released the Workplace Ergonomics Reference Guide. Ensuring proper ergonomics in the workplace increases employee productivity and satisfaction and ensures that employees are working safely. The guide provides illustrations of proper workstation ergonomics and a checklist for implementation of these strategies as well as tips for prevention of repetitive stress injuries.

• Download the Workplace Ergonomics Reference Guide
• Visit the CAP website

 

DOL’s Office of Disability Employment Policy Newsletter June 21, 2013

Friday, June 21st, 2013

√ Office of Disability Employment Policy Signs Alliance with National Working Positive Coalition

On June 17, Assistant Secretary of Labor for Disability Employment Policy Kathy Martinez and National Working Positive Coalition (NWPC) President Mark Misrok signed a formal alliance agreement, continuing a collaboration that began two years ago. The alliance will focus on reducing stigma and discrimination, cultivating training and employment opportunities, and improving financial well-being for people living with HIV/AIDS.

Read the DOL Newsletter story
Learn about HIV/AIDS and employment
Visit the NWPC website

√ Assistant Secretary Martinez Emphasizes the Importance of Employment First

In a blog post on June 21, Assistant Secretary of Labor for Disability Employment Policy Kathy Martinez discussed the value of Employment First, a movement that holds that public financing should support integrated employment as the preferred option for youth and adults with significant disabilities. This post follows Martinez’s June 14 blog regarding a Wage and Hour Division investigation that resulted in the revocation of special minimum wage certificates issued to a Rhode Island disability services provider for willfully violating the employment rights of workers with disabilities.

Read the “Employment First” blog
Learn about Employment First

√ Autistic Self-Advocacy Network Students Meet with Assistant Secretary Martinez

Assistant Secretary of Labor for Disability Employment Policy Kathy Martinez met with nearly 25 college students from the Autistic Self-Advocacy Network (ASAN) on June 12. The students, participants in ASAN’s Summer Leadership Academy, learned about Martinez’s experiences and Office of Disability Employment Policy initiatives.

Read the DOL Newsletter story
Visit the ASAN website

√ Assistant Secretary Martinez Welcomes National Rehabilitation Leadership Institute Members

Assistant Secretary of Labor for Disability Employment Policy Kathy Martinez and her staff met on June 18 with the members of the National Rehabilitation Leadership Institute, led by San Diego State University research professor Dr. Frederic Schroeder. The Institute members, nearly 30 vocational rehabilitation leaders from 14 states and territories, discussed the Office of Disability Employment Policy’s work to advance the employment of people with disabilities.

Read the DOL Newsletter story

√ Job Accommodation Network Webinar on Self-Employment Now Archived

JAN’s webinar “More Than One Path to the Top of the Mountain: Self-employment as an Individualized Process for Individuals with Disabilities” is now available for viewing on the JAN website. The program features Russell Sickles and Brian Connaughton from Job Squad Incorporated, and Larry Batten of the US Small Business Administration.

Visit the webinar archive page
Visit the JAN website

√ EARN|Exchange Blog Addresses Workplace Wellness and Disability

In recognition of National Employee Wellness Month, the EARN|Exchange blog has posted “Workplace Wellness and Disability,” an article addressing the value of investing in employee well-being, and how employers and employees can benefit from workplace wellness programs.

Read the EARN|Exchange blog
Visit the EARN website

√ Archived LEAD Center Webinar on Customized Employment Now Available

The LEAD Center webinar “Promoting Employment — Introduction to Customized Employment and Customized Self-Employment” is now available for viewing. The program provides information on using Customized Employment as a best practice in supporting job placement efforts for a variety of job seekers both with and without disabilities.

Visit the webinar archive page
View the “Customized Employment” webinar on YouTube
Visit the LEAD website

√ United Cerebral Palsy Releases “The Case for Inclusion” 2013 Report

United Cerebral Palsy has issued its annual report on “The Case for Inclusion” for 2013, which ranks all 50 states and the District of Columbia on outcomes for Americans with intellectual and developmental disabilities. The report is housed on an interactive website that includes state and national data, case studies, state rankings, and more.

Visit the “Case for Inclusion” website

U.S. Department of Justice finds State Violated the Americans with Disabilities Act in Area of Workforce Development

Tuesday, June 18th, 2013

Under a new strategy, the U.S. Department of Labor requested assistance from the Civil Rights Division of the U.S. Department of Justice (DOJ) when Labor’s Wage and Hour investigators found violations of the minimum wage requirements of the Fair Labor Standards Act in sheltered employment programs for persons with disabilities operated with funding by Providence, Rhode Island. DOJ, in turn, conducted a civil rights investigation. A suit was filed by DOJ in the federal district court of Rhode Island against the State of Rhode Island and City of Providence alleging violations of the disability-based nondiscrimination provisions of Title II of the Americans with Disabilities Act of 1990, as amended (ADA) as interpreted in Olmstead v. L.C., 527 U.S. 581 (1999). See United States v. Rhode Island, Case No. CA13-442. In essence, DOJ found persons with intellectual and developmental disabilities were offered educational, training, and employment programs and services in segregated settings with fewer opportunities and lesser wages and working conditions than those offered to persons without disabilities.

On June 13, 2013, an Interim Agreement among the parties was filed with the court. This agreement provides, in part, the following:

On March 13, 2012, the United States communicated its findings, in person, to the State pertaining to the services provided at the sheltered workshop provider Training Thru Placement (“TTP”) and the Harold A. Birch Vocational Program at Mount Pleasant High School (Birch) of the Providence Public School Department (PPSD), as part of the State and PPSD’s day activity services system, concluding the State fails to administer programs and services to individuals with (disabilities) at TTP in the most integrated setting appropriate to their needs and PPSD places Birch students at risk of unnecessary segregation in sheltered workshop and day program settings, including TTP, in violation of the ADA and Olmstead.

In the interim agreement, the parties agree that the broad range of employment-related programs and services offered to persons with disabilities (such as job referrals, job carving, job coaching, job training, career planning, adaptive behavior and skills training, and the like):

. . . shall be individualized and flexible, and shall be available as needed and desired, but shall not be mandated as a condition or working or receiving services in an integrated employment setting.

And, the State and City agreed to “establish and implement a policy that includes the presumption that all individuals covered by this Interim Agreement are capable of working in integrated employment settings.” (italics added). The agreement also covers communications issues that may arise with certain persons with disabilities, and it provides:

Translation and interpretation services, including sign language interpretation, shall be accessible and available to all individuals (with disabilities) and their families who require such services during all employment planning meetings and during the entire career planning process.

The Interim Agreement sets forth a sweeping set of corrective actions. As described by DOJ, “This first-of-its-kind agreement addresses the rights of people with disabilities to receive state- and city-funded employment and daytime services in the broader community, rather than in segregated sheltered workshops and facility-based day programs exclusively with other people with disabilities.”

To read the agreement in its entirety, and to view the complaint, go to http://www.justice.gov/opa/pr/2013/June/13-crt-674.html.

 About the author

Seena Foster, award-winning civil rights author and Partner of the discrimination consulting firm, Title VI Consulting, LLP in Alexandria, Virginia, provides expertise and guidance in the areas of compliance and civil rights investigations to state and local governments, colleges and universities, private companies, and non-profit organizations.  To that end, she offers one hour Webinars, full-day and half-day in-person training sessions, assistance developing procedures, and mediation services addressing a variety of types of discrimination such as racial discrimination, sex discrimination, disability discrimination, age discrimination, and religious discrimination.  The federal law on discrimination is complex and affects our workplaces as well as the delivery of our federally funded programs and activities.  Her book, Civil Rights Investigations Under the Workforce Investment Act and Other Title VI Related Laws:  From Intake to Final Determination, has been described as an “eye-opening” reading experience and a “stand-alone” training resource.   Ms. Foster’s resources and materials are designed to support the work of civil rights and discrimination professionals in the public and private sectors.  You may contact her through www.titleviconsulting.com.

DOL’s Office of Disability Employment Policy Newsletter

Friday, June 14th, 2013

Assistant Secretary Martinez Speaks at M-Enabling Summit

On June 6, Assistant Secretary of Labor for Disability Employment Policy Kathy Martinez spoke as part of a panel at the M-Enabling Global Summit on Accessible Technology, which drew nearly 500 mobile technology industry leaders from more than 40 countries. Her remarks highlighted the role mobile technology is playing in the workplace and emphasized the importance of making mobile communications work for users of all abilities.

Assistant Secretary Martinez Applauds Enforcement Actions to Protect Workers with Disabilities

In a June 14 blog post, Assistant Secretary Martinez lauded a decision by the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) to revoke special minimum wage certificates issued to a Rhode Island disability services provider and require retroactive fair payment for workers with disabilities whose rights were willfully violated. After its investigation, WHD also referred the case to the U.S. Department of Justice, which in turn announced an interim settlement to redress related violations under the Americans with Disabilities Act (ADA), which entitles people with significant disabilities to receive publicly funded services in community-based, integrated settings.

 

Webinar Demonstrates Disability Employment Tabulation

Last week, more than 400 participants participated in a webinar hosted by ODEP and the Census Bureau to demonstrate how to access data from the Disability Employment Tabulation, which was released in March of this year. Sponsored by DOL, the Disability Employment Tabulation draws on three years of data from the American Community Survey to assist in formulating effective education, research and other policy initiatives to improve employment opportunities for people with disabilities.

 

LEAD Center to Present Webinar on Group Discovery – June 26, 3:00 – 4:30 PM EDT

The LEAD Center will present a webinar on June 26 from 3:00 to 4:30 PM EDT titled “Promoting Employment — Group Discovery: An Alternative Assessment Tool for Workforce Centers and Community-Based Providers.” Group Discovery is an alternative tool for identifying the strengths of job seekers with and without disabilities, especially those with multiple barriers to employment. Participants will learn about the Group Discovery process and potential outcomes.

 

Employer Assistance and Resource Network (EARN) to Host Webinar on Building and Inclusive Culture – June 27, 2:00 – 3:00 PM EDT

The Employer Assistance and Resource Network (EARN), in partnership with the U.S. Business Leadership Network (USBLN), will host a free webinar on June 27 from 2:00 to 3:00 PM EDT titled “Lead the Way: Building an Inclusive Business Culture.” This webinar will present strategies for internally communicating an organization’s commitment to a diverse workforce inclusive of people with disabilities. Educational materials will be shared, and HR Certification Institute (HRCI) credits will be available.

State Challenges Investigation by the U.S. Department of Labor’s Civil Rights Center

Sunday, June 9th, 2013

Earlier this month, I posted an article titled “Federal Agency Finds State Violated Civil Rights Laws.” In it, I discussed certain findings in the 56-page Initial Determination issued on April 5, 2013, by the U.S. Department of Labor’s Civil Rights Center (CRC).  Specifically, the CRC concluded Florida’s way of operating its unemployment insurance program discriminated against limited English proficient persons and persons with disabilities in violation of the nondiscrimination and equal opportunity mandates of Section 188 of the Workforce Investment Act and related laws.

On June 5, 2013, the Florida Department of Economic Opportunity sent two letters in response.  The first letter is addressed to United States Representative John Kline, who is the Chair of the Committee on Education and the Workforce, and it requests “Congressional Oversight of the Conduct of the United States Department of Labor Civil Rights Center.”  A second letter is addressed to the Labor Department’s Acting Inspector General, and it requests “Investigation of the United States Department of Labor’s Civil Rights Center.”  Both letters assert “the Initial Determination is seriously flawed, resulting from a questionable investigatory process that appears calculated to have reached a predetermined and highly politicized result.”  Together, these letters allege improper investigative conduct such as:

●        “rather than neutrally enforcing the law and acting as an impartial arbiter of complaints— [USDOL] collaborates with political advocacy groups to initiate complaints and allegations of noncompliance with USDOL laws and regulations”;

●        “the Initial Determination relies on test calls that were orchestrated by MWC [Miami Workers Center] attorneys, not by the USDOL; yet USDOL accepted them at face value, without further inquiry”;

●        “USDOL[s] CRC’s Acting Chief of External Enforcement has publicly stated or endorsed the notion that she brings a political and ideological agenda to her civil-rights enforcement role in the federal government”;

●        “had USDOL neutrally reviewed readily accessible data, it would have found that the languages in which DEO’s online claims are successfully filed accurately represent Florida’s population”;

●        “leaping from a single allegation to conclusions about other hypothetical instances and then about the entire system—would not pass muster in a first-year college statistics class, much less in a supposedly impartial and careful federal investigation”;

●        “USDOL’s willful disregard of statistically significant evidence, in favor of unsworn anecdotal evidence, suggests that political and ideological bias has manifested itself in USDOL’s investigation”;

●        “USDOL has refused to act in a cooperative manner. It has repeatedly withheld documents,…”;

●        “[USDOL] advised DEO attorneys to consider the public-relations implications of USDOL issuing a final determination in this matter and threatened to publicize such an action based on USDOL’s “new policy” to make public all final determinations.”

And, the State also stated that it was attempting to take corrective actions in response to some of the CRC’s findings, but requests for time extensions to complete the corrective actions were summarily denied by the CRC.  The text of these letters may be found online at www.floridajobs.org/news-center/news-feed.

The foregoing allegations have not yet been investigated, but they serve to remind all equal opportunity professionals who conduct discrimination complaint investigations of the importance of adhering to proper investigative methods.

In this post, although we’ll discuss proper techniques for conducting discrimination complaint investigations by State and local equal opportunity (EO) professionals in the context of federally-assisted programs and activities, these techniques also are useful for conducting discrimination complaint investigations in the workplace.  If you do not have written discrimination complaint investigation procedures, or written corrective actions and sanctions procedures, contact us at www.titleviconsulting.com, and we will assist you in developing these critical documents.

√       Discrimination complaint investigations

Discrimination complaint investigations are about proper process.  No complainant or respondent likes being on the losing end of a discrimination complaint investigation, and it is inevitable that one party or the other will disagree with the outcome.  The key is how the investigator gets to that outcome—specifically, it is the process.  Properly conducting a discrimination complaint investigation requires that each party be afforded notice of what issues are being investigated, and have an opportunity to be heard on those issues.

●      Avoid conflicts of interest

If there is an actual or apparent conflict of interest between the equal opportunity professional conducting the investigation and one or both parties involved in the investigation, then an independent investigator should be retained to conduct the investigation.  There are a number of circumstances where a conflict of interest may arise, such as the where the investigator is a witness to the events at issue, the investigator is friends with one party or the other, or the investigator assumes a role as “advocate” for one side or the other.  These are just a few examples of instances where an investigator should not proceed; rather, an independent investigator should be appointed to conduct the investigation.

●      Beware of your use of social media

Facebook, uTube, LinkedIn, and any myriad of other social Internet sites are commonplace these days.  Be careful of what you post on these sites.  If you are an EO professional for a State or local government agency, or for an entity that is part of a system of delivering federally-assisted programs and activities, your credibility hinges on the confidence of those who come to you—namely, confidence in your ability to conduct a neutral discrimination complaint investigation.

EO professionals are charged with ensuring compliance with the nondiscrimination mandates of civil rights laws.  In the matter involving Miami Workers Center, those civil rights laws included Section 188 of the Workforce Investment Act (WIA), which prohibits discrimination on the bases of race, color, national origin, age, gender, religion, citizenship, political affiliation, and WIA-Title I participant status.  Thus, if the EO professional conducting a discrimination complaint investigation under WIA expresses discriminatory views, positions, or attitudes on the Internet that actually (or appear to) contradict WIA Section 188, the investigative process may be tainted, and the EO professional’s credibility with one or both parties as a neutral investigator may be compromised.

●      Incoming complaint

A complaint may come from an individual who alleges s/he suffered discrimination in the delivery of services, aid, training, or benefits.  This is known as an “individual” complaint.  If a group of individuals files a complaint alleging the same harm on the same prohibited basis (i.e. race, gender, age, and the like), then you have a “class action” complaint.

Finally, a third-party complaint may be filed.  This is the type of complaint that was filed with the CRC by the Miami Workers Center.  Third-party complaints generally are filed by advocacy groups that focus on particular interests.  For example, the Miami Workers Center states that its purpose is “to create a progressive political and social environment in South Florida.”

Standing alone, a third-party complaint generally does not give rise to a discrimination complaint investigation; rather, it would be utilized to conduct monitoring of the respondent’s operations, or to provide technical assistance to the respondent.  However, if the third-party complainant also has individuals file discrimination complaints, then discrimination complaint investigations may proceed with regard to each of those complainants (either as an individual discrimination complaint investigation, or a class action discrimination complaint investigation, as appropriate).

●      Filling out the complaint form

The investigator may assist an individual complainant in completing a discrimination complaint form.  This would include providing interpretation and/or translation services for limited English proficient persons as well as auxiliary aids and services as requested by persons with disabilities.

If a complainant needs assistance in understanding and/or completing the discrimination complaint form, it is acceptable to explain what is required for various components of the form and, if needed, help the individual complete the form. Importantly, however, you are not the complainant’s advocate; you are merely assisting him or her in completing the required information on the form.

Once the form is completed and signed, you should inform the complainant that the information provided will be reviewed to determine whether there is authority to proceed with the complaint.  Do not place yourself in a position where you are advising the complainant, or suggesting a certain course of action to the complainant.

If you determine a complaint cannot be accepted for investigation, you must notify the complainant in writing of this denial and provide supporting rationale.  The complainant also must be notified of any further rights s/he may have (i.e. for WIA Title I-financially assisted programs and activities, the complainant would have a right to file a discrimination complaint with the CRC).

●      Accepting a complaint for investigation

If you find you have authority to investigate a complaint, i.e. all of the jurisdictional requirements such as timeliness, apparent merit, and the like are met, then you notify the parties (complainant and named respondent) in writing of the following:

The issue(s) accepted for investigation

Each party has a right to representation in the course of the discrimination complaint investigation

The parties may elect to participate in mediation of the complaint

A notice of the complainant’s rights

●      Conducting the investigation—an overview

Once the parties are notified of the specific issue(s) under investigation, it is time to conduct the investigation.  Discrimination complaint investigations are multi-faceted—you will interview individuals, review documents, and take a look at procedures, practices, and policies related to matters under investigation.  In the delivery of federally-assisted programs and activities, you also will conduct statistical analyses to determine whether there are any significant discrepancies between the composition of your service area population, and the composition of the folks coming through your doors and being served.

●      Order of interviews

In any discrimination complaint investigation, interviews should be conducted in the following order:

1.     Interview the complainant first.

2.     Interview the named respondent(s).

3.     Interview first-hand witnesses, as needed, to resolve areas of factual conflict.

4.     Interview the complainant last.

Because the complainant carries the burden of demonstrating it is more likely than not discrimination occurred, the investigator should begin and end with interviews of the complainant.  In the beginning, you are trying to determine what happened, when it happened, who was involved, and what was said from the complainant’s perspective.  At the end, you will ask the complainant to address areas of factual disagreement presented by the respondent as well as the reasons put forth by the respondent for the conduct at issue.

When interviewing the respondent, you will gather the policies, practices, and procedures utilized for the specific program or activity at issue.  And, you will gather information regarding what happened, when it happened, who was involved, and what was said from the respondent’s perspective.  When analyzing the witness statements and documentation gathered during the investigation of a federally-assisted program or activity, two things you will determine are:  (1) whether the policies, practices and procedures were followed for the particular complainant (disparate treatment), and (2) looking at the bigger picture, whether the policies, practices, and procedures at issue discriminate against certain populations (disparate impact).

Finally, first-hand witnesses should be interviewed only if necessary.  Namely, if there is a conflict regarding one or more facts that would be critical to resolving the complaint, then it is appropriate to interview these witnesses.  Witnesses with second or third-hand information (i.e. they heard what happened through the “grapevine”) are less reliable and, most likely, they would not be interviewed.

●      Interviewing rules

There are some basic protocols that you should follow for each interviewee (complainant, respondent, and witness):

1.  If the interviewee requested representation, then make sure the representative is present for the interview as well as any follow-up interviews.  Any e-mail exchanges with the interviewee also should include the representative.

2.  Do not agree or disagree with what the interviewee tells you; rather, you should take notes and periodically summarize what the interviewee tells you to make sure you understand the interviewee’s version of the facts.  Ask neutral, fact-specific questions designed to help you understand what happened, when it happened, where it happened, who was involved, and what was said from the witness’s perspectives.

Only after you have analyzed all of the materials gathered during the investigation will you determine why it happened, and whether prohibited discrimination occurred.

3.  Prepare a written statement for review and signature of the interviewee.  Let the interviewee make any changes to the statement.

As you interview each party and/or witness, you will do so without the other parties and/or witnesses in the room.  This enables the interviewee to speak freely.  For this reason, it is important that notes be taken, which will then be put in writing for review and signature of each interviewee.  At the end of the day, signed statements will constitute some of the documentation used to support findings of fact in your determination.

√             Settling the complaint

Settling a discrimination complaint is desirable for both parties if the settlement is voluntary, and if it ensures compliance with applicable civil rights laws.  The ultimate goal of the EO professional conducting a discrimination complaint investigation is not limited to determining whether prohibited discrimination occurred with regard to a particular individual or group of individuals; rather, it is one means by which civil rights compliance may be achieved in the federally-assisted program or activity, or in the workplace, going forward.  Certainly, it is preferred to have measures in place to prevent discrimination from occurring in the first place, but resolution of a discrimination complaint on the back end also serves to achieve compliance.

Keep in mind that parties should not be forced into a settlement or conciliation agreement through the use of coercion, veiled threats, or the like.  If an agreement simply cannot be reached, then the EO professional must follow his or her procedures for instituting corrective actions and sanctions with regard to federally-assisted programs and activities.  In the workplace, established disciplinary procedures would be followed.

√             About the author

Seena Foster, award-winning civil rights author and Partner of the discrimination consulting firm, Title VI Consulting, LLP in Alexandria, Virginia, provides expertise and guidance in the areas of compliance and civil rights investigations to State and local governments, colleges and universities, private companies, and non-profit organizations.  To that end, she offers one hour Webinars, full-day and half-day in-person training sessions, assistance developing procedures, and mediation services addressing a variety of types of discrimination such as racial discrimination, sex discrimination, disability discrimination, age discrimination, and religious discrimination.  The federal law on discrimination is complex and affects our workplaces as well as the delivery of our federally funded programs and activities.  Her book, Civil Rights Investigations Under the Workforce Investment Act and Other Title VI Related Laws:  From Intake to Final Determination, has been described as an “eye-opening” reading experience and a “stand-alone” training resource.   Ms. Foster’s resources and materials are designed to support the work of civil rights and discrimination professionals in the public and private sectors.  You may contact her through www.titleviconsulting.com.

 

DOL’s Office of Disability Employment Policy Newsletter

Saturday, June 8th, 2013

Assistant Secretary Martinez Joins DOL Acting Secretary Harris at National Summit to Boost Education and Employment Outcomes for Americans with Disabilities

Assistant secretary of labor for disability employment policy Kathy Martinez joined acting secretary of labor Seth Harris as he made remarks at the “Building a More Inclusive Workforce: A National Summit to Boost Education and Employment Outcomes for Americans with Disabilities” event on May 31 in Wilmington, DE. Speaking to a group of employers, advocates and activists, acting Secretary Harris addressed the need to work together to achieve better outcomes for students, workers and job seekers with disabilities. The summit was co-sponsored by the National Governor’s Association, the Council on Foundations, and the U.S. Business Leadership Network, and was attended by Sen. Tom Harkin and Delaware Gov. Jack Markell.

Add-Us-In Kansas City Participant Achieves Success

Add-Us-In Kansas City, a grantee of the U.S. Department of Labor’s Office of Disability Employment Policy (ODEP), operates an award-winning, six-week program providing skills training, job search assistance and links to local employment opportunities for youth with disabilities. Recently, one of Add-Us-In’s participants, Brittany McCurley, took advantage of these career preparation options and now works as a ticket taker at a local musical venue, in addition to attending classes at a community college. The Add-Us-In initiative is designed to identify and develop strategies to increase employment opportunities within the small business community for individuals with disabilities. Specifically included within the small business community are those located in or serving underrepresented and historically excluded communities. There are Add-Us-In grantees in eight sites across the country.

Employer Assistance and Resource Network Publishes EARN|Exchange Blog on Employee Mental Health

To wrap up Mental Health Awareness Month in May, the EARN|Exchange blog has posted “Employers Can’t Afford to Ignore Mental Health,” an article by Clare Miller, director of the Partnership for Workplace Mental Health, a program of the American Psychiatric Foundation. The article explores how companies are approaching prevention, employee education, behavioral health benefits, and disability management to support employees and improve mental health in the workplace.

Job Accommodation Network Releases Just-in-Time Training Module on Assistive Technology in the Workplace

The Job Accommodation Network (JAN) has released its fourth Just-in-Time training module, which explores assistive technology in the workplace. Assistive technology enables individuals with disabilities to access devices, equipment, and services so that they can perform job tasks and maintain employment. Employers and employees with disabilities can greatly benefit from exploring the use of assistive technology as an accommodation in the workplace. This 21 minute introductory training module and accompanying transcript will cover the basics of assistive technology, alternative input, products, and resources available for use in the workplace. This module can be used to train new accommodation specialists, disability managers, and others responsible for making accommodation decisions.

Perspectives to Host Webinar on the Reasonable Accommodation Process — June 19, 1:00-2:30 PM EDT

The federal Perspectives on Employment of Persons with Disabilities group will host a webinar to provide an in-depth look at a step-by-step guide used to process requests for reasonable accommodation. Attendees will learn that, in most instances when there is a breakdown in the accommodation process, it is because either the management official or the employee has skipped a step. Bill Haig, National Reasonable Accommodation Coordinator, U.S. Environmental Protection Agency will present the webinar. The event will be held on June 19, 1:00-2:30 PM EDT.

Disability Equality Index(SM) Advisory Committee Announced

The American Association of People with Disabilities (AAPD) and the US Business Leadership Network® (USBLN®) have jointly announced the formation of the Disability Equality Index(SM) Advisory Committee, a diverse group of thought leaders who have assembled to share with AAPD and the USBLN® their knowledge, expertise, and vision to enhance disability inclusion policies and practices in the workplace. The Disability Equality Index(SM) is under development and will be a transparent national disability inclusion benchmark tool that will offer major employers an opportunity to receive an objective score on their disability inclusion policies and practices.

Bureau of Labor Statistics Releases Youth Employment Rate Numbers for May 2013

Employment data for youth with and without disabilities is obtained from the Current Population Survey (CPS), a monthly survey of households conducted by the U.S. Census Bureau for the Bureau of Labor Statistics.

 

 


Disability Employment Tabulation 2008-2010 Overview Webinar — June 6, 2:00-3:30 PM EDT

Saturday, June 1st, 2013

On June 6, 2013, 2:00-3:30 PM EDT, the U.S. Department of Labor’s Office of Disability Employment Policy (ODEP) will present a webinar with Melissa Chiu, Chief of the Industry and Occupation Statistics Branch at the U.S. Census Bureau, discussing the recently released Disability Employment Tabulation 2008-2010. The Disability Employment Tabulation, sponsored by ODEP and the Office of Federal Contract Compliance Programs (OFCCP), provides data on disability employment in order to further education, research, and policy initiatives that improve employment opportunities and outcomes for people with disabilities. The webinar will include a live demonstration showing how to access the data in American FactFinder. A question-and-answer session will follow the presentation. A confirmation message with the all of the event details will be sent by email after registration.

 

Registration Instructions

 

U.S. Department of Labor’s Civil Rights Center Finds State Violated Federal Nondiscrimination Laws

Saturday, June 1st, 2013

On April 5, 2013, the U.S. Department of Labor’s Civil Rights Center (CRC) issued a 56-page Initial Determination in Miami Workers Center v. Florida Dept. of Economic Opportunity, Division of Workforce Services, CRC Complaint No. 12-FL-048, finding the State’s electronic filing system for unemployment insurance (UI) benefits had a discriminatory effect on limited English proficient (LEP) persons and persons with disabilities in violation of Title VI of the Civil Rights Act, Section 504 of the Rehabilitation Act, Title II of the Americans With Disabilities Act, and Section 188 of the Workforce Investment Act (WIA).  Based on these violations, the CRC concluded Florida must take certain corrective actions, or face a slew of sanctions, including termination of Department of Labor (DOL)-funding.

Although this determination involves a DOL-funded UI benefits program, the lessons learned are highly-instructive for Equal Opportunity (EO) professionals charged with ensuring their federally-assisted programs and activities operate in compliance with federal civil rights laws.

A copy of the CRC’s initial determination may be found through the National Employment Law Project (NELP) website at http://nelp.3cdn.net/2c0ce3c2929a0ee4e1_wim6i5ynx.pdf.  The State filed a response on June 5, 2013, which is located at http://www.floridajobs.org/news-center.  See June 2013 blog post titled, “State Challenges Investigative Techniques of Federal Civil Rights Office.”

√             Jurisdiction

Having traced funding for Florida’s UI benefits program back to a multi-million dollar grant from DOL’s Employment and Training Administration, the CRC concluded Florida was a “recipient” of DOL funding.  From this, the CRC determined it had jurisdiction to investigate the State’s policies and procedures in delivering its UI benefits program for possible violations of applicable federal civil rights laws.

In the course of this discrimination complaint investigation, a week-long onsite review of Florida’s UI claims process was conducted during which time a number of individuals were interviewed (including the State EO Officer, Florida’s Unemployment Compensation Manager, UI call center personnel, and individual complainants).  Additionally, over a period of several months, written materials and website pages were reviewed, and numerous e-mail exchanges took place between CRC investigators and State officials.

√             The issue

At the crux of the discrimination complaint was Florida’s shift from allowing claims for UI benefits to be filed by mail, telephone, and Internet, to a system that focused on filing claims by Internet only.  And, in addition to an lengthy claim form, individuals pursuing UI benefits under the new system also had to complete an online 45-question Initial Skills Review.

The conversion to an Internet filing system was mandated by Florida’s legislature, which passed a bill requiring all claims for UI benefits be filed electronically effective August 1, 2011.  Although certain limited exceptions to electronic filing were permitted, these exceptions were not widely-publicized or otherwise known to individuals filing for UI benefits.

Although Florida maintained its “modernization” efforts requiring electronic UI claims filing was designed to “improve the claims, benefits, and appeals processes and strengthen the relationship with Workforce Services for quicker reemployment,” the complaint alleged LEP persons and persons with disabilities were effectively denied access to apply for UI benefits under the new system.

√             National origin-based discrimination established

U.S. Census Bureau’s American Community Survey (ACS).  As an initial matter, the CRC accepted Florida’s use of the ACS to find “the two top languages spoken at home in Florida, following English, are Spanish (spoken by approximately 18.8% of the State population) and ‘French Creole’ (spoken by approximately 1.7% of the State population).”  The CRC agreed the Spanish and Creole languages “are used by a significant number or proportion of the State population.”

Florida’s LEP-related obligations.  The CRC explained, as a “recipient” of federal funding, Florida has two LEP-related obligations under federal civil rights laws:  (1) Florida must communicate in the language(s) used by a “significant number or proportion” of its service area population; and (2) Florida must assess “the particularized language needs” of LEP persons who “communicate in less-widely-used languages.”  Thus, even if the LEP person speaks a language that a staff person has never heard before, Florida must have a system in place to identify the language and provide interpretation and/or translation services to afford the LEP person “meaningful access” to the program.  Moreover, Florida must widely-publicize the fact that interpretation and translation services will provided at no charge to LEP persons.

No “meaningful access” provided.  Based on its investigation, the CRC found Florida did not provide “meaningful access” to the UI claims process for LEP persons.  Here, the CRC cited to several deficiencies, including the following:

●      Florida failed to translate “vital” website information in other languages.  For example, the “Instructions for Filing a Claim and Registering for the Initial Skills Review” appeared only in English on the website.

●      Updates to the website were provided regularly in English, but some updates were not provided on the Spanish or Creole versions of the website.

●      A link to Florida’s “Online Help Center” was provided only on the English version of the webpage.

●      The “Equal Opportunity is The Law” notice was translated into Spanish and Creole, but the discrimination complaint form was not available online in Creole.

●      A link to contact the UI office by e-mail appeared only on the English version of the website.

●      The State relied on LEP callers to provide their own interpreters (such as a family member or friend) to navigate the UI claims process.

And, although Florida had a telephone system in place as a secondary means for filing UI claims, the CRC found it was neither widely-publicized nor did it provide “meaningful access” to LEP persons for a number of reasons.  With regard to an LEP person speaking Spanish or Creole, the CRC noted:

[T]he deficiencies (in the telephone system) include the provision of outgoing recorded messages in English only, even on phone lines dedicated to (Spanish and Creole); callers’ inability to reach a live attendant after pressing a button for the appropriate language; undue delays waiting for interpreters; calls with Spanish (interpreters) that were dropped mid-conversation . . ..

Moreover, the CRC noted LEP persons were not informed, orally or through the posting of written notices, that they could file their UI claims and questionnaires by telephone instead of filing the claims electronically.

With regard to Florida’s ability to serve LEP persons who did not speak Spanish or Creole, the CRC found the State failed to have a system in place to “meet (their) particularized language needs.”  Notably, the CRC found Florida’s UI program personnel operated based on “ill-advised and inaccurate assumptions”; that is, personnel assumed LEP persons:

●      “can understand some English, if you’re speaking slowly”; and

●      LEP persons are able to recognize the English word “language,” and can then identify the language in which they communicate.

In support of its finding of violations, the CRC cited to the logs of various language “testers” utilized during the investigation (the testers spoke languages such as Portuguese, Hindi-Punjabi, Polish, and Russian), which revealed a lack of “meaningful access” to the UI benefits program.  Indeed, the CRC noted, at times, the testers were subjected to abusive language by call center operators.  In one case, the call center attendant stated, “I only speak English.  Speak English.”  During another call, the tester was told, “I don’t speak jibberish so call when you know English.”

Further, the call center attendants failed to identify the correct language of the testers, and the testers experienced undue delays in reaching a live attendant, or were never connected to a live attendant.  Additionally, when a tester was connected to a live attendant, the tester was misinformed about the UI claims process, or the call was dropped in mid-conversation.

Overall, the CRC concluded Florida’s system of delivering UI benefits failed “to provide meaningful access to accurate information” for LEP persons.

√             Disability-based discrimination established

Likewise, Florida’s UI benefits system violated WIA’s equal opportunity mandates when serving persons with disabilities.  Specifically, the CRC noted the system “deprive(s) persons with disabilities of equal opportunity.”  The CRC explained Florida is obliged to ensure its system of communicating with persons with disabilities is as effective as its system of communicating with others.  Moreover, Florida cannot segregate persons with disabilities, or use criteria or methods of operation that tend to screen them out of the claims process, or deny them access to the program.

In the course of its investigation, the CRC noted Florida’s Division of Workforce Services Director acknowledged the State took “no steps to make the on-line filing system accessible to persons with disabilities.”  The CRC found persons with visual or hearing impairments were denied effective means of communications during the UI claims process.  One example cited by the CRC involved persons with hearing impairments and their experiences at Florida’s American Job Centers:

Attorneys for the Complainant provided declarations from two claimants who were born deaf, communicated most effectively in American Sign Language (ASL), and do not understand complex written English.  Both claimants attempted to file for (UI) benefits . . . by going to WorkSource Career Centers and asking for help to file their claims.

In one case, a member of the Center’s staff attempted to help a hearing impaired individual file his claim online without the assistance of an ASL interpreter and, as a result, incorrect information was included in the claim.  A second hearing-impaired person stated the following about his experience at an American Job Center:

The representative didn’t understand what I was saying.  I told them they were required to provide an interpreter; I showed them a card that stated so.  They made excuses and said they were too busy and I would have to wait.  They then kept me waiting for about two-three hours.  I needed to get home and couldn’t wait any longer, so I left.

In the end, the CRC found Florida engaged in disability-based discrimination in its system of delivering UI benefits.

√             Remedies

The CRC’s proposed remedies in this determination are quite sweeping.  In directing that Florida take certain corrective steps, the CRC stated:

[T]hese steps must include actions to end and/or redress the above-described deficiencies; make-whole relief for individual victims of discrimination; and other remedial or affirmative relief.

Failure to achieve voluntary compliance with applicable civil rights laws could, according to the CRC, result in the ultimate termination of DOL funding to Florida:

 . . . DOL will take appropriate enforcement actions as authorized by the applicable laws and their implementing regulations.  Such actions may include, but are not limited to, referral of the matter to the Attorney General with a recommendation that an appropriate civil action be instituted; issuance of a Final Determination, which initiates administrative procedures to suspend, terminate, deny, or discontinue Federal financial assistance from DOL; or such other action as may be provided by law.

Some examples of the corrective steps put forth by the CRC to ensure nondiscrimination for LEP persons in Florida’s system of delivering UI benefits are as follows:

●      providing written translation of all “vital” website and written materials related to the UI benefits program into Spanish and Creole;

●      immediately ceasing any requirement that LEP persons provide their own interpreters;

●      training staff at American Job Centers and call centers to understand their obligations to provide interpreters for LEP persons as well as how such interpreters will be provided;

●      training call center staff regarding how to properly respond to LEP callers, including callers who speak no English at all;

●      widely-publicizing (in written form and through broadcast media) options to the online UI filing system for LEP persons, such as “informing (LEP) claimants that they may file by telephone”; and

●      monitoring the telephone system “to ensure that (UI)-related services and benefits for LEP persons are neither denied nor delayed because of problems” with the system.

With regard to serving persons with disabilities, the CRC suggested Florida either make the online filing system “fully accessible for persons with varying types of disabilities, or provide an alternative method of filing claims that provides an equal degree of access as is provided for persons without disabilities.”  Moreover, the CRC directed that Florida develop, implement, and widely-publicize “detailed procedures” for handing requests for communication assistance, including interpreting services such as ASL or Spanish Sign Language, and providing Communications Access Real Time (CART) transcriptions.

Finally, as previously noted, the Initial Determination calls for Florida to provide “make-whole” relief to LEP individuals and individuals with disabilities who “were denied any (UI) benefits to which they would have been entitled but for (Florida’s) unlawful actions . . ..”

√             About the author

Seena Foster, award-winning civil rights author and Partner of the discrimination consulting firm, Title VI Consulting, LLP in Alexandria, Virginia, provides expertise and guidance in the areas of compliance and civil rights investigations to state and local governments, colleges and universities, private companies, and non-profit organizations.  To that end, she offers one hour Webinars, full-day and half-day in-person training sessions, assistance developing procedures, and mediation services addressing a variety of types of discrimination such as racial discrimination, sex discrimination, disability discrimination, age discrimination, and religious discrimination.  The federal law on discrimination is complex and affects our workplaces as well as the delivery of our federally assisted programs and activities.  Her book, Civil Rights Investigations Under the Workforce Investment Act and Other Title VI Related Laws:  From Intake to Final Determination, has been described as an “eye-opening” reading experience and a “stand-alone” training resource.   Ms. Foster’s resources and materials are designed to support the work of civil rights and discrimination professionals in the public and private sectors.  You may contact her through www.titleviconsulting.com.