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Archive for July, 2013

Employee Misconduct During Mediation of Discrimination Complaint Not Protected under Title VII of the Civil Rights Act

Tuesday, July 30th, 2013

In Benes v. A.B. Data, Ltd., ___ F.3d ___, Case No. 13-1166 (7th Cir. July 26, 2013), the court upheld termination of an employee stemming from his misconduct during mediation of a sex discrimination complaint.  The court described the circumstances of the misconduct as follows:

The EEOC arranged for mediation in which, after initial joint session, the parties separated and a go-between relayed offers.  In a separate room mediation, each side (including attorneys and assistants) stays in its own room.  The intermediary shuffles between rooms.  Many mediators believe that this approach prevents tempers from erupting, allows each side to discuss its own position candidly without the adversary’s presence, and facilitates careful deliberation and compromise.  But on receiving a settlement proposal that he thought too low, Benes stormed into the room occupied by his employer’s representatives and said loudly:  ‘You can take this proposal and shove it up your ass and fire me and I’ll see you in court.’
The court then noted, “Within an hour A.B. Data accepted Benes’s counterproposal:  it fired him.”
        Benes claimed the termination constituted unlawful retaliation under Title VII of the Civil Rights Act of 1964.  However, the circuit court upheld the termination stating:
It was Benes who sabotaged the mediation session by barging into the other side’s room.  Mediation would be less useful, and serious claims of discrimination therefore would be harder to vindicate, if people could with impunity ignore the structure established by the mediator.
. . .
We cannot see why misconduct during mediation should be consequence free.  Judges do not supervise mediation, which makes it all the more important that transgressions be dealt with in some other fashion.
The court concluded Title VII “covers investigation and litigation in the same breath” and, since it does not “create a privilege to misbehave in court, it does not create a privilege to misbehave in mediation.”

OFCCP Directive: Properly Calculating Back-Pay in Employment Discrimination Cases

Tuesday, July 30th, 2013
By ADM Notice Number 310 dated July 17, 2013, OFCCP provides valuable guidance for calculating back-pay for victims of employment discrimination. OFCCP explains the two models of calculating such relief—the formula model and the individual model—and it sets forth when it is appropriate to use a particular model and how wages are calculated under that model.
In a nutshell, the formula method is less precise and is utilized to approximate losses in a variety of circumstances, such as where (1) documentation isn’t available, or (2) the matter involves a large class action, and it would be too time-consuming or unduly burdensome to calculate wages for each class member.  The individual relief model, on the other hand, is properly used (1) for small class actions, (2) where documentation to support back wages is available, and/or (3) the liability period is of short duration.
The OFCCP directive further explains how back-pay is calculated under each of these models.  For the details, go towww.dol.gov/ofccp/regs/compliance/directives.

Department of Justice Files Lawsuit Against Vero Beach, Fla. Doctor and Medical Practice for Retaliating Against Deaf Couple

Tuesday, July 30th, 2013

U.S. Department of Justice press release dated July 29, 2013:

 

The Department of Justice announced today that it has filed a lawsuit against Dr. Hal Brown and Primary Care of the Treasure Coast of Vero Beach, Fla. (PCTC), alleging that the doctor and the medical practice violated the Americans with Disabilities Act by discriminating against Susan and James Liese, who are deaf. The complaint alleges that the doctor and the practice violated the ADA by retaliating against Mr. and Mrs. Liese because they engaged in activities protected under the act.  The suit was filed in the U.S. District Court for the Southern District of Florida in Ft. Pierce.

According to the Justice Department’s complaint, the doctor and medical practice terminated Mr. and Mrs. Liese as patients because the couple pursued ADA claims against a hospital for not providing effective communication during an emergency surgery.  The hospital is located next door to and affiliated with PCTC.  The complaint alleges that the Lieses threatened the hospital with an ADA suit based on failure to provide sign language interpreter services, and upon learning of the lawsuit, PCTC and Dr. Brown, who was the Liese’s primary doctor at PCTC, immediately terminated the Lieses as patients.

“The Department of Justice is committed to enforcing the provisions of the ADA that protect an individual from retaliation when he or she opposes disability discrimination and prohibit interference with an individual in the exercise of rights granted by the ADA,” said Jocelyn Samuels, Acting Assistant Attorney General for the Civil Rights Division.  “A person cannot be terminated as a patient because he or she asserts the right to effective communication at a hospital.”

The enforcement of the ADA is a top priority of the Justice Department’s Civil Rights Division.  The ADA prohibits retaliation against an individual because they oppose an act that is unlawful under the ADA and because they made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing under the ADA.  The ADA also makes it unlawful to coerce, intimidate, threaten or interfere with any individual exercising their rights protected by the ADA.  The department’s Civil Rights Division enforces the ADA, which authorizes the Attorney General to investigate allegations of discrimination based upon disability. Visit www.justice.gov/crt and www.ada.gov to learn more about the ADA and other laws enforced by the Civil Rights Division.

Office of Disability Employment Policy Newsletter (July 26, 2013)

Friday, July 26th, 2013

For more details of the material in this newsletter, go to www.dol.gov/odep.

Secretary of Labor Perez Examines “Progress Made and Challenges Ahead: 23 Years of the Americans with Disabilities Act”

Asserting that “the Americans with Disabilities Act is one of our nation’s proudest civil rights triumphs,” Secretary of Labor Tom Perez lays out his vision for the employment of people with disabilities in a blog post commemorating the 23rd anniversary of the ADA.

Assistant Secretary Martinez Explores the Importance of Diverse Perspectives

In a blog post entitled “Diverse Perspectives: A Competitive Advantage,” Kathy Martinez, assistant secretary of labor for disability employment policy, discusses how employee diversity helps businesses perform better. Notes Martinez, “As a leader, I’ll always choose a solution that represents an amalgam of opinions and insights rather than the one that approaches a problem from only one angle. Because in business, as in society at large, diversity drives innovation.”

Perkins School Welcomes Assistant Secretary Martinez

During a visit to the Perkins School for the Blind on July 19, assistant secretary of labor for disability employment policy Kathy Martinez spoke with 100 students and staff about her experiences growing up blind and the support she received from people in her life that helped her overcome society’s low expectations about her abilities and potential. That evening, she addressed about 300 parents at the National Association of Parents of Children with Visual Impairments National Conference, where she touched on themes of expectation and achievement.
• Read the DOL Newsletter story
• Read the Perkins School news story

Assistant Secretary Martinez Discusses Youth Transition at National Council on Independent Living Event

As a speaker at a preconference event for the National Council on Independent Living (NCIL) Conference on July 23, assistant secretary of labor for disability employment policy Kathy Martinez addressed a group of about 100 on the topic of transition and employment for youth with disabilities. Martinez emphasized the need to “change the paradigm” to encourage youth with disabilities to work rather than end up in the “cycle of dependency” on disability benefits.

Workforce Recruitment Program Seeks Federal Recruiters

Do you want to have a personal impact on the hiring of people with disabilities? The Workforce Recruitment Program (WRP), the primary pipeline bringing college students and recent graduates with disabilities into federal employment, is seeking federal employees to conduct phone interviews with students this fall.

Employer Assistance and Resource Network’s EARN|Exchange Blog Interviews Bobby Silverstein on the Americans with Disabilities Act

The EARN|Exchange blog spoke with Bobby Silverstein, one of the architects of the Americans with Disabilities Act, about the implementation of the ADA over the years and the effect it has had on employers and people with disabilities.

US Department of Justice Celebrates Americans with Disabilities Act Week

“Celebrating Enforcement of the ADA: An Anniversary Week Blog” looks at the role played by the US Department of Justice (DOJ) in “enforcing the ADA and opening up the gateways to full participation and opportunity for people with disabilities.”

Justice Department Settles with Bariatric Clinic in Michigan and Pennsylvania Over HIV Discrimination

Friday, July 26th, 2013

U.S. Department of Justice press release dated July 26, 2013:

The Justice Department announced today that, as part of its Barrier-Free Health Care Initiative, it has reached a settlement with Barix Clinics under the Americans with Disabilities Act (ADA).  Barix Clinics operates bariatric treatment facilities in Michigan and Pennsylvania.  The settlement resolves allegations that Barix Clinics violated the ADA by refusing or cancelling surgery for two individuals because they have HIV.  This is the fifth settlement that the Justice Department has reached this year addressing HIV discrimination by a medical provider.

The Justice Department found that Barix Clinics unlawfully refused to perform bariatric surgery on a man at its Langhorne, Pa., facility because he has HIV.  The department also determined that Barix Clinics cancelled bariatric surgery for another individual, Mr. Frank Hill, at its Ypsilanti, Mich., facility because of his HIV.  The department’s investigation revealed that Barix Clinics’ actions were not based on individual assessments of the patients or based on current medical knowledge.

“Erecting unnecessary barriers to medical care for people with HIV can further exacerbate their condition and their marginalization in society,” said Jocelyn Samuels, Acting Assistant Attorney General for Civil Rights.  “These are the barriers that the ADA and the Justice Department seek to tear down.”

“Blanket exclusions of patients with HIV are misguided and illegal,” said Barbara L. McQuade, U.S. Attorney for the Eastern District of Michigan.  “Under the law, caregivers cannot withhold care unless the decision is based on current medical knowledge about the particular patient and condition, not on stereotypes about a disability.”

Under the settlement, Barix Clinics must pay $20,000 to the first complainant, $15,000 to Hill and a $10,000 civil penalty.  In addition, it must train its staff on the ADA and develop and implement an anti-discrimination policy.

In the past six months, the department has reached five settlement agreements with medical providers to address HIV discrimination.  All five settlements are part of the Department of Justice’s Barrier-Free Health Care Initiative, a partnership of the Civil Rights Division and U.S. Attorney’s offices across the nation, to target enforcement efforts on a critical area for individuals with disabilities.  The initiative, launched on the 22nd anniversary of the ADA in July 2012, includes the participation of 40 U.S. Attorney’s offices and addresses access to health care for people with HIV and those with hearing disabilities, as well as physical access to medical facilities.  The department has reached a total of 18 settlements (including these five) regarding medical providers’ failure to provide access for people with HIV or who are deaf or hard of hearing.  For more information on the Barrier-Free Health Care Initiative visithttp://www.ada.gov/usao-agreements.htm .

 

For more information on the ADA and HIV, visit www.ada.gov/aids .   Those interested in finding out more about these settlements or the obligations of public accommodations under the ADA may call the Justice Department’s toll-free ADA information line at 800-514-0301 or 800-514-0383 (TDD), or access its ADA website at www.ada.gov .  ADA complaints may be filed by email to ada.complaint@usdoj.gov .

United States Reaches Agreement with School District to Resolve Sex Discrimination Allegations

Wednesday, July 24th, 2013
U.S. Department of Justice press release dated July 24, 2013:

The United States entered into a settlement agreement with the Arcadia Unified School District in Arcadia, Calif., to resolve an investigation into allegations of discrimination against a transgender student based on the student’s sex.  Under the agreement, approved by the district’s school board unanimously last night, the school district will take a number of steps to ensure that the student, whose gender identity is male and who has consistently and uniformly presented as a boy at school and in all other aspects of his life for several years, will be treated like other male students while attending school in the district.

The agreement, joined by the Department of Education’s Office for Civil Rights, which participated in the investigation, resolves a complaint filed in October 2011.  The complaint alleged that the district had prohibited the student from accessing facilities consistent with his male gender identity, including restrooms and locker rooms at school, as well as sex-specific overnight accommodations at a school-sponsored trip, because he is transgender.  The United States investigated this complaint under Title IX of the Education Amendments of 1972 and Title IV of the Civil Rights Act of 1964.  Both Title IX and Title IV prohibit discrimination against students based on sex.

Under the settlement agreement, the district will:

•          work with a consultant to support and assist the district in creating a safe, nondiscriminatory learning environment for students who are transgender or do not conform to gender stereotypes;

•          amend its policies and procedures to reflect that gender-based discrimination, including discrimination based on a student’s gender identity, transgender status, and nonconformity with gender stereotypes, is a form of discrimination based on sex; and

•          train administrators and faculty on preventing gender-based discrimination and creating a nondiscriminatory school environment for transgender students.

Additionally, the district will take a number of steps to treat the student like all other male students in the education programs and activities offered by the district.  The district-wide provisions of the agreement will be in place until the end of the 2015-2016 school year.  The student-specific provisions of the agreement will be in place as long as the student is enrolled in the district.

“All students, including transgender students, have the right to attend school free from discrimination based on their sex,” said Jocelyn Samuels, Acting Assistant Attorney General for the Civil Rights Division.  “We commend the district for taking affirmative steps to ensure that this student and his peers can continue to learn and thrive in a safe and nondiscriminatory environment.”

“Our commitment to civil rights enforcement runs deep and nowhere is that commitment more meaningful than in our schools,” said André Birotte, Jr., United States Attorney for the Central District of California. “This agreement helps ensure continued advancement towards equal rights under the law for all students.”

In recent years, the Justice Department and the Department of Education resolved a number of cases involving gender-based harassment in public schools.  In 2012, the departments entered into a consent decree addressing harassment against students who do not conform to gender stereotypes in the Anoka-Hennepin School District, Minn.  In 2011, the departments entered into an agreement with the Tehachapi Unified School District, Calif., to resolve a similar complaint of harassment against a gay student who did not conform to gender stereotypes.

Title IV of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972 each prohibit harassment based on sex.  The enforcement of Title IV and Title IX are top priorities of the Justice Department’s Civil Rights Division.  Additional information about the Civil Rights Division is available on its website at www.justice.gov/crt .

Justice Department Obtains Comprehensive Agreement to Ensure New York City Adult Home Residents with Mental Illness Are Afforded Opportunities to Live in the Community

Tuesday, July 23rd, 2013
U.S. Department of Justice Press Release for July 23, 2013:

The Justice Department’s Civil Rights Division and the U.S. Attorney’s Office for the Eastern District of New York announced today that they, along with plaintiff adult home residents, entered into a comprehensive settlement agreement with the state of New York under the Americans with Disabilities Act (ADA).  The settlement agreement will provide relief to thousands of people with mental illness unnecessarily segregated in 23 adult homes in New York City.  Adult homes are institutional, segregated settings that house large numbers of people with mental illness.

Under the settlement agreement, New York will offer supported housing to people with mental illness currently residing in adult homes.  Supported housing is apartments scattered throughout  the community for which the state provides rental assistance and housing-related support services.  Supported housing residents have access to community-based services and supports that promote their inclusion, independence, and full participation in community life.  The settlement agreement has been filed with the U.S. District Court for the Eastern District of New York for the court’s approval.

The Supreme Court made clear in its landmark decision Olmstead v. L.C, that people with disabilities have a civil right under the ADA to receive services in the most integrated setting appropriate to their needs.  The state worked cooperatively with the department and private plaintiffs to negotiate a settlement that resolves the allegations that the New York mental health service system violates the ADA by relying on large, institutional adult homes instead of supported housing units that are scattered throughout the community.  A state is responsible for segregation when it designs and implements a system that unnecessarily relies on institutional facilities, regardless of whether they are privately owned and operated.

“Today’s settlement agreement reaffirms the right of people with disabilities to live independently and participate in all aspects of community life,” said Eve L. Hill, Deputy Assistant Attorney General for the Civil Rights Division.  “This agreement creates opportunities for thousands of New Yorkers with mental illness to participate fully in community life, enriching local communities and ending the stigmatization of institutional life.  Governor Andrew Cuomo played a crucial role in making this agreement a reality, and I commend his leadership.”

Over the next five years, New York will provide scattered-site supported housing to at least 2,000, and potentially more than 4,000, adult home residents.  New York has also committed to providing people moving to supported housing with the community-based services and supports that will allow them to thrive in the community.  The agreement also will ensure that adult home residents have the information they need to make an informed choice about where to live.  If they choose to move to supported housing, they will participate in a person-centered, transition planning process.  An independent reviewer with extensive experience in mental health systems will monitor the state’s compliance with the agreement.

Because of this agreement, people like Ilona Spiegel, one of the named plaintiffs, will get the opportunity to live independently and “become emancipated” after 15 years in an adult home.  Spiegel lived independently in her own apartment until she received psychiatric treatment in a hospital in 1998.  When she left the hospital, her only discharge option was to move into an adult home.  In the adult home, Spiegel shares a small room with a roommate, has scheduled mealtimes and no opportunity to cook for herself, has little privacy as staff have entered her room without permission and finds living in the adult home extremely isolating.  Spiegel has said that she cannot wait to live in her own apartment again and have autonomy over her life, including doing her own cooking, cleaning and shopping, have personal privacy in her home, and be free from intrusion into her personal belongings.

Loretta E. Lynch, U.S. Attorney for the Eastern District of New York stated: “With this agreement, thousands of New Yorkers will be able to leave the shadow of institutional living and instead live in and contribute to their communities.  Because of this cooperative effort, their lives will be immeasurably better and our communities all the richer for their presence.”

The individual plaintiff adult home residents, on behalf of themselves and a class of adult home residents with mental illness, are represented by Paul, Weiss, Rifkind, Wharton & Garrison, LLP; Disability Advocates Inc.; Bazelon Center for Mental Health Law; New York Lawyers for the Public Interest; MFY Legal Services Inc.; and Urban Justice Center.

The Civil Rights Division enforces the ADA, which authorizes the attorney general to investigate whether a state is serving individuals with disabilities in the most integrated settings appropriate to their needs. Visit www.justice.gov/crt to learn more about the Olmsteaddecision, the ADA, and other laws enforced by the Justice Department’s Civil Rights Division.

This agreement is due to the efforts of the following Civil Rights Division and U.S. Attorney’s Office staff: Alison Barkoff, Special Counsel for Olmstead Enforcement; Rebecca B. Bond, Chief of the Disability Rights Section; Sheila Foran, Special Legal Counsel; Amanda Maisels and Nicholas Lee, Trial Attorneys; Lance Simon, Contractor; and Michael J. Goldberger, Chief of Civil Rights in the Civil Division of the U.S. Attorney’s Office for the Eastern District of New York.

Justice Department Settles with Louisiana Tech University Over Inaccessible Course Materials

Tuesday, July 23rd, 2013
U.S. Department of Justice Press Release for July 23, 2013:

The Justice Department announced today that it has reached a settlement with Louisiana Tech University and the Board of Supervisors for the University of Louisiana System to remedy alleged violations of the Americans with Disabilities Act (ADA).  The settlement resolves allegations that the University violated the ADA by using a version of an online learning product that was inaccessible to a blind student.  The student’s lack of access to the course materials persisted nearly one month into the University quarter, at which point the student was so far behind in his coursework that he felt compelled to withdraw from the course.  The settlement also resolves allegations that in a subsequent course, the same student was not provided accessible course materials for in-class discussion or exam preparation in a timely manner.

Under the settlement agreement, the university will adopt a number of disability-related policies, including the requirement to deploy learning technology, web pages and course content that is accessible in accordance with the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA standard in the university setting.  The university will also make existing web pages and materials created since 2010 accessible.  The agreement also requires the university to train its instructors and administrators on the requirements of the ADA, and secured a total of $23,543 in damages for the student from the university and the Board.

“Emerging technologies, including internet-based learning platforms, are changing the way we learn, and we need to ensure that people with disabilities are not excluded or left behind,” said Eve L. Hill, Deputy Assistant Attorney General for the Civil Rights Division.

“This a positive move by Louisiana Tech University and the Board of Supervisors.  Their efforts reflect a commitment to ensuring that all individuals with disabilities have full access to the University,” said Stephanie A. Finley, U.S. Attorney for the Western District of Louisiana.

The ADA protects individuals with disabilities from discrimination in the services, programs or activities of state and local government entities.  Under Title II of the ADA, state and local governments must afford individuals with disabilities an equal opportunity to participate in or benefit from aids, benefits or services provided.  For more information about the ADA, call the Department’s toll-free ADA Information Line at 800-514-0301 (TDD 800-514-0383) or access the ADA website at www.ada.gov.

Federal Resources for Serving and Employing Persons with Disabilities

Tuesday, July 23rd, 2013

The Americans With Disabilities Act:  

Advancing America’s Ideals

 

Since its earliest days, America has been known the world over as a nation of entrepreneurs. Today, this spirit is perhaps best reflected in the millions of small businesses that everyday play a critical role in job creation and economic growth in communities across the country.

America’s entrepreneurial character stems from its founding premise of equal opportunity, first enshrined in the Declaration of Independence and later affirmed through laws enacted to ensure more people can fully realize it. One such law is the Americans with Disabilities Act (ADA), signed into law 23 years ago this week. Like other pieces of civil rights legislation before it, the ADA paved the way for more Americans to fully participate in all aspects of community life, including employment.

ODEP offers a variety of resources to help employers of all sizes understand their obligations under the ADA. For example, the Job Accommodation Network (JAN) is the leading source of free, expert and confidential guidance on workplace accommodations — a critical component of the ADA’s employment provisions. Employers can also find resources related to hiring and retaining people with disabilities by accessing the Employer Assistance and Resource Network (EARN), a free service of ODEP’s National Employer Technical Assistance Center.

The Equal Employment Opportunity Commission (EEOC) also offers guidance on the employment provisions of the ADA, with specific resources available for small businesses. Its publication titled The Americans with Disabilities Act: A Primer for Small Businesses is an easy-to-read overview of the ADA’s basic employment provisions as they relate to employees and job applicants. In addition, small businesses can contact one of EEOC’s Small Business Liaisonsfor one-on-one guidance.

Together, these resources can help small businesses understand how the ADA applies to specific situations and steps they can take to foster a workplace culture inclusive and welcoming of the skills and talents of all qualified individuals.

For additional news and resources, sign up for ODEP’s e-mail updates.

Office of Disability Employment Policy Newsletter (July 19, 2013)

Friday, July 19th, 2013

For additional details, go to www.dol.gov/odep.

Thomas E. Perez Confirmed by Senate as Secretary of Labor

The nomination of Thomas E. Perez as Secretary of Labor was approved by the Senate on July 18. Perez, who has spent his career in public service, will begin his tenure on July 23.

Assistant Secretary Martinez Participates in LEAD Policy Roundtable

Opening remarks were delivered by Assistant Secretary of Labor for Disability Employment Policy Kathy Martinez at the first annual LEAD policy roundtable on July 17. The focus of the event was aligning public resources across different government systems to improve employment services and supports for people with disabilities.

ODEP Signs Alliance with the National Association of State Workforce Agencies

At the National Association of State Workforce Agencies (NASWA) Board of Directors meeting on July 17, Assistant Secretary of Labor for Disability Employment Policy Kathy Martinez and NASWA President and Executive Director Mark Henry signed an Alliance agreement to support the agencies’ common goal of improving the workforce system for individuals with disabilities. In addition to information sharing, the partnership will include training and professional development, and feedback on ODEP’s policies and programs.

Assistant Secretary Martinez Speaks to States about Employment First at Administration on Intellectual and Developmental Disabilities Meeting

Addressing the Administration on Intellectual and Developmental Disability’s (AIDD) Partnerships in Employment grantees, Assistant Secretary of Labor for Disability Employment Policy Kathy Martinez stressed the unique aspects of ODEP’s Employment First State Leadership Mentoring Program (EFSLMP). AIDD and ODEP are working together to involve the grantees in the EFSLMP, which is aimed at furthering integrated employment for people with disabilities.
National Disability Employment Awareness Month Posters are Here!

Start your National Disability Employment Awareness Month (NDEAM) celebrations now by downloading or ordering hard copies of the poster bearing the 2013 NDEAM theme “Because We Are EQUAL to the Task.” Held officially in October, NDEAM is a national campaign to raise awareness about disability employment issues and highlight the contributions of America’s workers with disabilities. ODEP encourages everyone to promote NDEAM all year long.

White House Appoints Claudia Gordon as Public Engagement Advisor for the Disability Community

Claudia Gordon has been appointed Public Engagement Advisor for the Disability Community in the White House Office of Public Engagement. Ms. Gordon, a highly accomplished attorney and disability advocate, most recently served as Special Assistant to the Assistant Secretary for the Office of Federal Contract Compliance Programs at the US Department of Labor. Ms. Gordon’s appointment has been greeted enthusiastically by the disability community.

Job Accommodation Network ENews Now Available

The latest version of the Job Accommodation Network (JAN) ENews features articles on essential functions, personal assistance services, job coaching, and other important topics. Also included is information on JAN’s recently released resources.

LEAD Center Presents Webinar on Promoting Employment — Discovering Your Potential: Using Discovery to Identify Your Employment Goals — July 31, 3:00-4:30 PM EDT

This LEAD Center webinar will discuss using Discovery, an alternative assessment tool to identify the strengths of job seekers with and without disabilities, to find personal employment goals. The webinar will be presented on July 31, 3:00-4:30 PM EDT.