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U. S. Commission on Civil Rights: A Briefing Paper on Assessing the Impact of Criminal Background Checks and the Equal Employment Opportunity Commission’s Conviction Records Policy (December 2013)

Friday, February 28th, 2014

The following are excerpts of the “Summary” and “Introduction and Background” sections of a briefing paper from the U.S. Commission on Civil Rights. For the complete text of the briefing paper, go to www.usccr.gov.

SUMMARY

On December 7, 2012 the United States Commission on Civil Rights held a briefing to examine the disparate impact provisions of the Equal Employment Opportunity Commission’s (EEOC) April 2012 guidance concerning the use of criminal background histories (2012 Guidance or “new guidance”). The Commission wished to learn about the effects of the EEOC’s revised policy on employers and on black and Hispanic applicants with or without a criminal record.

The briefing’s seventeen speakers included a high-ranking EEOC official, scholars, attorneys, social scientists, personnel executives, a former offender now policy director of an advocacy and job placement service, a family member of a victim slain by an unscreened exconvict sent to the victim’s home as a contractor six months earlier, ex-felon advocacy groups, business associations representing home care, small business and retail, and a security company currently under investigation by the EEOC.

The speakers gave views on the effects of the 2012 Guidance, its legal complexities, the sufficiency of its evidentiary basis, and on whether the 2012 Guidance would result in a negative disparate impact on the very groups the agency intends to protect. Former-offender advocacy groups welcomed the 2012 Guidance for its virtual prohibition on blanket exclusionary policies and its strongly suggested consideration of applicants and employees with criminal records of many kinds on a narrowly drawn or case-by-case basis. These records included arrest records only, criminal citations, misdemeanor convictions, expungements, and felony convictions, among others. Speakers representing employers discussed whether the majority of employers, who for legal, statutory mandate, business and/or safety reasons must exclude applicants with particular criminal convictions, might as a result reduce hiring overall, increase automation, or move some jobs overseas. Some thought that such reduction in hiring of entry-level workers would likely have the unfortunate effect of disproportionately lowering job opportunities and reducing employment among blacks and Hispanics.

INTRODUCTION AND BACKGROUND

Disparate impact theory posits that any use of a selection method that is facially nondiscriminatory may still be held discriminatory if it affects proportionally more of one protected group than of another, and the selecting entity, in this case an employer, cannot show that the selection criteria are job-related and consistent with business necessity.

Disparate impact theory is invoked by plaintiffs in private discrimination suits and by various
enforcement agencies. In addition to the EEOC, examples of such enforcement agencies are the U.S. Department of Justice’s Civil Rights Division, the U.S. Department of Housing and Urban Development, the Consumer Financial Protection Bureau, and the U.S. Department of Education, among others.

The EEOC’s mission is enforcement of anti-discrimination and other federal equal employment opportunity laws as authorized under Title VII of the Civil Rights Act of 1964 (the Act). Since the statute does not authorize the agency to issue regulations on this subject, the agency makes known its interpretation of the statute by issuing guidance and policy statements. Employers excluded by statute from its jurisdiction are those with fewer than 15 employees and American Indian tribes. The U.S. Department of Justice litigates Title VII against States and municipalities.

The Civil Rights Act as passed in 1964 did not address disparate impact, although the Supreme Court accepted disparate impact theory with regard to intelligence tests and high school graduation requirements in the 1971 case Griggs v. Duke Power Company. Twenty-five years after the Act’s passage, Congress amended the Act’s Title VII to include disparate impact discrimination as a statutory basis for suits against employers as part of the Civil Rights Act of 19916 after a series of Supreme Court decisions that weakened the reach of disparate impact theory. The amended law did not address criminal histories, and the EEOC’s 2012 Guidance acknowledges that “having a criminal record is not listed as a protected basis in Title VII.” Since at least 1972,9 however, the EEOC has asserted that disparate impact theory drawn from the Griggs decision forbids the blanket exclusion by an employer of all applicants with criminal histories. The EEOC does not prohibit or restrict employers from asking for or obtaining background histories, although eliminating the question from the face of an application is identified as a “best practice” and some members of the public who submitted comments appear to believe that it is still considering the elimination of the question. Many of the public comments sent to the EEOC concerning its new guidance mistakenly objected to the perceived restriction or prohibition against obtaining background checks.

To pursue a claim under Title VII in federal or state court, an aggrieved applicant or employee must first file a charge with EEOC or with a state or local fair employment practices agency authorized to accept charges on the EEOC’s behalf. If the EEOC investigates and does not find reasonable cause to believe that discrimination occurred, it will automatically send the charging party a “Notice of Right to Sue,” after which the charging party will have 90 days to file a lawsuit.

If EEOC investigates and finds reasonable cause to believe that discrimination occurred, the agency will attempt to resolve the charge informally through conciliation. If the attempt to conciliate the charge is unsuccessful, the EEOC will decide whether to file suit. If EEOC decides not to file suit, it will send the charging party a Notice of Right to Sue, and the same 90-day suit-filing period will apply. Once a Notice of Right to Sue has been issued, the agency usually takes no further action on the charge. If EEOC does file suit, the charging party may intervene in that lawsuit but generally may not sue separately. In any lawsuit the EEOC’s policies and guidance statements remain important but not necessarily dispositive considerations for a court in deciding the outcome.

The EEOC’s 2012 Guidance is the most recent policy statement conscribing employee selection. It supersedes all earlier criminal history policies. Because the 2012 Guidance is so recent, Commission briefing speakers based their comments on its expected effects, in addition to the EEOC’s enforcement policy and actions under prior guidances issued in 1987 and 1990.

Still in force are the 1978 Uniform Guidelines on Employee Selection Procedures (1978 Selection Guidelines) on allowable methods of selection. The 1978 Selection Guidelines, issued 35 years ago and not updated since, are in use by various federal agencies. Critics of the 1978 Selection Guidelines allege that accepted standards incorporating advances in validity generalization are not available to employers under these guidelines. Validity generalization would allow employers to develop employee qualification standards that would be applicable to a class of jobs, not just one job. Although the 2012 Guidance acknowledges as a legitimate selection concern the physical or other security risks to customers or other employees inherent in hiring any employee, it leaves employers exposed to the discretionary judgment of the EEOC as to individual hiring decisions.

Among those policies apparently superseded is the 1987 policy distinguishing between crime-specific and non-crime-specific data to control employers’ use of statistical data in excluding former offenders (1987 Statistics Policy). This policy allowed employers where the policy was crime-specific to present data showing that their practices would not adversely affect blacks and Hispanics in the employer’s actual pool as to that particular crime; the new guidance also allows employers to make this showing. Also superseded is the 1990 policy guidance restricting employers’ use of arrest records (1990 Arrest Records Policy); the policy limiting but not eliminating use of arrest records is now included in the new guidance.

The Title VII statute does not distinguish between intentional and inadvertent actions, meaning that an employer may make good-faith efforts to adhere to the guidance and still be in violation of the law. The EEOC has the authority to bring a systemic investigation against several employers alleging a pattern or practice of discrimination and add additional affected employees and/or bases such as national origin.

Some years ago, the EEOC began an initiative called “E-RACE” that adds greater scrutiny to employer practices such as making hiring selections based on “names, arrest and conviction records, employment and personality tests, and credit scores.” The 2012 Guidance does not discuss the relation of E-RACE to the Guidance.

The 2012 Guidance states categorically that any employer policy disfavoring persons with criminal records disproportionally affects racial and ethnic minorities, particularly black or Hispanic with criminal records nationwide. It bases this declaration on data from the U.S. Department of Justice’s Bureau of Justice Statistics showing nationwide conviction rates of blacks and Hispanics disproportionately higher than their representation in the general population of the United States. The EEOC cautions employers against drawing conclusions driven by racial or ethnic animosity, as well as decisions infected by stereotyped thinking which might lead an employer to reject a black or Hispanic applicant based on a higher than average likelihood of a criminal history.

Based on its statistical information, the EEOC regards as likely disparate impact any exclusion of a black or Hispanic job applicant or employee with a criminal record. This would hold true regardless of the type of crime, the type of job, the location, or the nature of the employer’s business, unless the employer uses what the EEOC considers a narrowly drawn or “targeted” screen that does not exclude all persons with criminal records, or enquires into the details of each applicant’s history to determine suitability and establishes a rationale that is consistent with business necessity. The EEOC defines “targeted exclusions” as “an employer policy or practice of excluding individuals from particular positions for specified criminal conduct with a defined time period, as guided by the Green factors.”

The “Green” factors were set out in 1977 in a three-judge panel decision of the Eighth Circuit Court of Appeals, Green v. Missouri Pacific Railroad. The Green factors are 1) the nature and gravity of the offense; 2) the time passed since the offense and/or completion of the sentence; and 3) the nature of the job held or sought.

The EEOC, as is true of many other federal agencies, has broad investigative powers. The EEOC’s 2012 Guidance states that the agency may investigate a charge in light of its national data on disparate impact and consider contrary data provided by employers. In the context of litigation, however, existing disparate impact case law requires a plaintiff to bear the initial burden of proof.

The EEOC held two public meetings prior to the publication of the 2012 Guidance. At the public meeting in November 2008 the EEOC invited eight speakers–six in favor of its views and two opposed. In July 2011, the EEOC held another public meeting to which ten speakers were invited, eight generally supporting the EEOC’s stated views,37 and two possibly somewhat equivocal.38 The law does not require, and the EEOC did not provide, a draft of the new guidance to meeting speakers or the public on either occasion, nor did it provide a draft at any time before the guidance was issued. The EEOC received approximately 300 written public comments for the 2011 meeting, many from ex-offenders and advocacy organizations supporting limits on using criminal histories, many from individuals, groups and businesses opposing restrictions on use or the elimination of background checks. The EEOC did not respond publicly to comments or speaker testimony but says it considered them in its deliberations, and in fact, the new guidance does not forbid or restrict employers from obtaining background checks.

The 2012 Guidance is couched largely in a series of factual examples followed by “best practices,” rather than commands. In the briefing, EEOC speaker Carol Miaskoff stated categorically that it does not require individualized consideration, although the 2012 Guidance could reasonably be read as strongly recommending this approach. The text states that Title VII “does not necessarily require individualized assessment in all circumstances …the use of a screen that does not include individualized assessment is more likely to violate Title VII … [and] the use of individualized assessments can help employers avoid Title VII liability…” Employer counsel at the briefing clearly viewed this warning to mean that any use of criminal history for a protected class member without individual assessment was presumptively illegal and in fact they would be highly vulnerable to suit, an impression contrary to what the EEOC says it intended.

Once a claim is brought against an employer, the 2012 Guidance provides that the employer may defend against the charge by showing that its policy does not cause a disparate impact, using local conviction rates for blacks or Hispanics and/or its own job application data. The Guidance allows the EEOC to reject the showing, however, if it concludes that some applicants who might be in the applicant pool have been discouraged from applying because of the employer’s reputation in the community. The Guidance does not indicate the method of assessment, which potentially complicates the employer’s efforts to comply.

The employer may also defend against the charge by demonstrating that its policy or practice is job-related for the position in question and consistent with business necessity. The EEOC believes there are two established legal or evidentiary criteria for successfully making such demonstration. One is the formal validation for each specific job under the rarely used 1978 Uniform Guidelines on Employee Selection Procedures mentioned above and the other is the creation and use of a specific analysis for each job description that considers the “Green” factors and an individualized assessment. The 2012 Guidance does not address or acknowledge the practical difficulties of performing individualized assessments in largescale hiring by an employer.

The new guidance emphasizes individualized assessment in part because it asserts that former offenders pose risks that are overestimated by employers, particularly as the years pass with no further convictions. Speakers and advocacy groups at the briefing who work with former offenders supported this view, and gave examples of States in agreement that have passed laws restricting the use of criminal histories after a certain number of years without recidivism, and the groups’ own successes placing ex-offenders they screen who become valued employees.

Justice Department Releases New Planning Tool to Help Courts Provide Access to Limited English Proficient Individuals

Friday, February 28th, 2014

Today, the Justice Department released a new tool to help state and local courts assess and improve their language assistance services for limited English proficient (LEP) litigants, victims and witnesses who need access to court services.

With over 25 million LEP persons in the United States, the Language Access Planning and Technical Assistance Tool for Courts (Planning Tool) will be able to assist courthouses and administrative tribunals across the country to self-assess their court systems to determine how effectively they are providing language assistance services and how these services can be improved. The Planning Tool prompts courts to examine their court rules, the quality and competency of interpretation and translation, the level of their engagement with LEP communities and the implementation of language access plans. Courts also are encouraged to modify this tool for the particular needs and features of their court and court system.

The tool was created by the Federal Coordination and Compliance Section (FCS) of the Civil Rights Division. FCS enforces Title VI of the Civil Rights Act of 1964, under which it is illegal for federally assisted programs and activities to discriminate on the basis of national origin, which includes the failure to provide meaningful language access. The Planning Tool gives courts a tailored checklist of recommended steps towards achieving equal access to justice for all.

“Providing meaningful access to court systems and proceedings is not only required by law, it is the right thing to do and it is in the best interests of the judicial system,” said Acting Assistant Attorney General for the Civil Rights Division Jocelyn Samuels. “When language barriers remain in place, limited English proficient individuals are not provided a meaningful opportunity to participate in important matters, and the results can be catastrophic, which is why this Planning Tool is such a vital instrument for our judicial system.”

The Planning Tool was previously released for public comment and received numerous recommendations from individuals and organizations representing judges, court staff, attorneys, advocates and community groups, which have been incorporated into the final version. For further information, please visit the Federal Coordination and Compliance website (http://www.justice.gov/crt/about/cor/). For additional LEP-related resources, please go to the Federal Interagency LEP website (www.lep.gov).

Office of Disability Employment Policy Newsletter (February 28, 2014)

Friday, February 28th, 2014

Assistant Secretary Martinez – Advancing Inclusion

Assistant Secretary of Labor for Disability Employment Policy Kathy Martinez provided closing remarks to more than 75 Washington, D.C.-area business advocates and allies on February 21 at an LGBT Power Symposium sponsored by the Capital Area Gay and Lesbian Chamber of Commerce. “When we make strides toward equality for any community, whether the disability community, the LGBT community, or any other historically marginalized population, it benefits all of us,” said Martinez.

Federal Communications Commission Releases Standards on Closed Captioning for Television

The Federal Communications Commission (FCC) has unanimously approved standards defining the components necessary for high quality closed captions on television. The new standards explain that to be fully accessible, closed captions on television programs must accurately convey dialogue and sounds in the program, and run from the beginning to the end of the program. In addition, captions must be timed so that they generally do not lag far behind the program’s dialogue and must be placed so they do not block other important information on the screen. The new rules also ensure better access to local news on TV. Further, the Order explains how the new standards apply to pre-recorded, live, and near-live programming, and identifies best practices for video programmers, captioning vendors, and captioners. The new rules will be evaluated again one year after they become effective to ensure full access to TV programming.

NCWD/Youth Publishes Article on Individualized Learning Plans in Education Week

In an article, “Planning for Life After High School,” published in Education Week, V. Scott Solberg of the Boston University School of Education, and Curtis Richards with the Institute for Educational Leadership, write about the importance of individualized learning plans (ILPs) in helping students, including students with disabilities, transition between school and college or work while keeping students engaged and families involved in learning. Solberg and Richards, who lead ODEP’s National Collaborative on Workforce and Disability for Youth (NCWD/Youth), discuss the research they have conducted on exemplary ILP implementation strategies.

US Business Leadership Network Accepting Applications for Executive Education Scholarships – Deadline March 10

The US Business Leadership Network® (USBLN®) is now seeking applications for its new Executive Education Scholarships for certified Disability-Owned Business Enterprises (DOBE®s) to attend the Tuck School at Dartmouth University for a week-long educational program. These five scholarships, underwritten by Wells Fargo, underscore the role that executive education plays in providing business leaders innovative learning tools for the continuous improvement of their companies. Applicants must be DOBE®s and meet the selection criteria, including USBLN® certification, 3-10+ years in business, and the ability to articulate a future vision and business direction. Applications are due March 10.

Stephen M. Wing “Take Flight” Scholarship for Job Training and Education Open for Applications – Deadline March 21

The Stephen M. Wing “Take Flight” Scholarship is designed to assist individuals committed to advancing their career paths by increasing their employment and education opportunities. Eligible candidates include part-time and full-time students attending trade school, community college or university, participating in internships or enrolled/enrolling in other training programs within three months from May 2014, when the scholarships will be distributed by the Partnership for American Veterans Employment and Education Solutions (PAVES). The scholarship can be awarded in various increments; no minimum request will be ignored. The maximum request may not exceed $5,000 for a single application. Applicants may apply for scholarships to go towards college tuition, books, lab fees, training program enrollment, certification classes and tests, leadership programs, computers and laptops, support and counseling services or other products and services to advance education and employment opportunities. Individuals may nominate themselves or be nominated by peers, co-workers, family members or colleagues. Applicants must be 18 years of age or older and a permanent resident of the U.S. Applications will be considered on a first come, first served basis, and are due March 21.

Federal Communications Commission Accepting Nominations for Third Annual Chairman’s Awards for Advancement in Accessibility – Deadline March 31

The Federal Communications Commission (FCC) is seeking nominations for the third annual Chairman’s Awards for Advancement in Accessibility. The awards honor outstanding private and public sector initiatives that advance accessibility for people with disabilities. Awards will be given in several categories. The contest is open to any individual or entity in the public or private sector, or a combination thereof. Self-nominations and those made by a third party will be accepted. Winners and honorable mentions will receive their awards from FCC Chairman Tom Wheeler in June 2014. Nominations must be emailed by March 31.

Office of Disability Employment Policy Newsletter (February 21, 2014)

Friday, February 21st, 2014

For more information on any of these articles, go to www.dol.gov/odep.

Assistant Secretary Martinez Posts New Blogs in February

Assistant secretary of labor for disability employment policy Kathy Martinez recently contributed two posts to the Department of Labor’s blog site. In “The Benefits of Striking Out,” posted on February 15, Martinez commented on an article written by a mother in the Huffington Post, “My Child with a Disability is Not My Hero.” The article discusses the importance of letting kids with disabilities succeed and fail, just like all kids. On February 19, Martinez penned “Civil Rights in America: We Rise Together,” in which she reflected on the life of Barbara Jordan, a woman of many firsts, including her status as the first Southern African-American woman elected to the U.S. House of Representatives.

White House Office of Public Engagement Disability Community Call — February 26, 3:00-4:00 PM EST

The White House Office of Public Engagement disability community conference call featuring a senior Administration official will take place on Wednesday, February 26, 3:00-4:00 PM EST. The call will provide participants with information about various disability policy issues, introduce Administration officials who work on these issues and solicit participant input. Registration is currently open. The registration confirmation page will display dial-in numbers and a unique PIN, and an email confirmation of this information will be sent to the registrant. The call will be accessible to deaf and hard of hearing participants through live captioning via the internet. Callers are asked to dial in five minutes before the start of the call. This call is off the record and not for press purposes.

Special Olympics Releases Research on Employment and Adults with Intellectual Disabilities

Special Olympics has released a research paper representing the first-ever nationally-representative data set on the employment situation for adults with intellectual disabilities. The “National Snapshot of Adults with Intellectual Disabilities in the Labor Force” was commissioned by Special Olympics, conducted by the Center for Social Development and Education at the University of Massachusetts Boston and administered by Gallup. Findings show that unemployment among people with intellectual disabilities is more than twice as high as for the general population. However, for those who are employed, most experience job stability, want to work, and have proven that they are capable of being employed.

Think Beyond the Label Online Career Fair — March 5, 1:00-4:00 PM EST

Think Beyond the Label will hold an online career fair on March 5, 1:00-4:00 PM EST. The event will connect companies to qualified candidates with disabilities from Think Beyond the Label’s online community of candidates and its partnerships with employment services agencies and student organizations nationwide. Job seekers will have the opportunity to engage with recruiters one-on-one in this real-time forum. Registration is free for job seekers. Think Beyond the Label is a public-private partnership that delivers information, outreach and resources to businesses, job seekers and the public workforce system to ensure greater recruiting and hiring opportunities for job candidates with disabilities.

Henry Viscardi Achievement Award Nominations Due March 15

The Viscardi Center has issued a call for nominations for the Henry Viscardi Achievement Awards, which pay tribute to exemplary leaders in the disability community who have had a profound impact on shaping attitudes, raising awareness and improving the quality of life of people with disabilities. The Awards will recognize individual, academic, athletic, community, government, nonprofit, military, corporate, and business leaders who are working to improve the lives of people with disabilities. Individuals of any age, with any type of disability, are eligible. Nominations may be self-submitted or made on behalf of another individual. All nominations must meet the Awards Criteria and be submitted using the online form by no later than March 15, 2014 at 5:00 PM EST. The Award recipients will be announced on May 5, 2014.

Disability.gov Seeks Participants for “No Boundaries” Photo Project

Disability.gov is currently seeking participants for its second “No Boundaries” photo project, which will profile four individuals who embrace the theme of “living well with a disability.” Participants will be chosen to represent diversity in age, ethnicity and nature of disability. The photo shoots will take place the week of April 7 in the Washington, D.C. area. Anyone can apply, but no monetary compensation or reimbursement for travel expenses can be provided.

2014 Paul G. Hearne Leadership Award Winners Announced

The American Association of People with Disabilities (AAPD) has announced Talila Lewis and Jason DaSilva as the winners of the 2014 Paul G. Hearne Leadership Award. Lewis, founder and president of Helping Educate to Advance the Rights of the Deaf (HEARD), and DaSilva, an award winning filmmaker, will be presented with their awards, which are given to emerging leaders in the national disability rights movement, at the 2014 AAPD Leadership Gala, on March 18, 2014 in Washington, D.C. The AAPD Paul G. Hearne Leadership Award advances the work of Paul Hearne, one of the founders of AAPD and a renowned leader in the national disability community, and realizes his goal of cultivating emerging disability rights leaders. Each awardee will receive $10,000 to help them continue their progress in disability activism.

Office of Disability Employment Policy Newsletter (February 14, 2014)

Sunday, February 16th, 2014

For more information on any of these articles, go to www.dol.gov/odep.

Executive Order Raises the Minimum Wage for Federal Contract Workers

On February 12, the President signed an Executive Order to raise the minimum wage to $10.10 for federal contract workers, including individuals with disabilities. Under current law, workers whose productivity is affected because of their disabilities may be paid less than the wage paid to others doing the same job under certain specialized certificate programs. Under this Executive Order, all individuals working under service or concessions contracts with the federal government are covered by the same $10.10 per hour minimum wage protections. The higher wage will apply to new contracts and replacements for expiring contracts put out for bid after January 1, 2015.

Assistant Secretary Martinez Heads to Sochi for the 2014 Paralympic Winter Games

Kathy Martinez, Assistant Secretary of Labor for Disability Employment Policy, will be traveling to Sochi, Russia as part of the Presidential Delegation to the 2014 Paralympic Winter Games, which start on March 7. The Honorable Tammy Duckworth, Member of the United States House of Representatives (IL-08) will lead the delegation. While in Sochi, delegation members will attend athletic events, meet with U.S. athletes, and attend the Opening Ceremony. “It is an honor to be selected to represent President Obama in cheering on the U.S. athletes as they compete in the Paralympics and showcase to the world the best of America—diversity, determination and teamwork,” said Martinez.

Making Online Application Systems Accessible – JAN Webcast – February 26, 2:00 – 3:30 PM EST

The new Section 503 regulations stop short of requiring federal contractors to make their on-line application systems accessible, but the regulations do codify the OFCCP’s position that federal contractors must make reasonable accommodations for any applicants with disabilities who cannot access on-line systems, and further state that making on-line application systems accessible is a recommended best practice. In light of this, many federal contractors are implementing changes to make their on-line application systems accessible. In this free webcast, JAN Consultants will share practical tips and tools to help these contractors succeed in their efforts. The presentation will be held on February 26, 2:00 – 3:30 PM EST.

Best Practices in Disability Recruiting – Think Beyond the Label Webinar – February 24, 2:00 – 3:00 PM EST

Think Beyond the Label will be presenting a free, HRCI-certified webinar on February 24, 2:00-3:00 PM EST, to help federal contractors comply with the new Section 503 regulations regarding hiring people with disabilities. The webinar will focus on what the legislation means, how to find and engage job seekers with disabilities, and how to showcase an organization’s diversity hiring initiatives. Think Beyond the Label is a public-private partnership that delivers information, outreach and resources to businesses, job seekers and the public workforce system to ensure greater recruiting and hiring opportunities for job candidates with disabilities.

The HSC Foundation’s Advocates in Disability Award Program is Seeking the Next Generation of Disability Advocates

The Advocates in Disability Award (ADA) program, funded by The HSC Foundation and the Sarah Beth Coyote Foundation, awards and encourages a young adult with a disability between the ages of 14 and 26 who is dedicated to positively affecting the lives of individuals with disabilities and their families. The program also supports an innovative project developed by the recipient to serve and empower individuals with disabilities. The selected recipient is awarded $3,000 in recognition of his or her disability advocacy and receives up to an additional $7,000 in funding support for a project to benefit the disability community. Applicants must be citizens or permanent residents of the United States at the time of application submission and recipient selection. Applications must be received by 5:00 PM EST on April 11, 2014.

Action Sports Star and Host of MTV’s The Challenge TJ Lavin Stars in New PSA on Disability

“We all should have the same opportunity to achieve the American dream,” TJ Lavin, BMX bike champion and host of MTV’s The Challenge says in a new public service announcement (PSA) created by RespectAbilityUSA, a non-profit organization devoted to reshaping attitudes so that people with disabilities can more fully participate in and contribute to society. Lavin knows how a disability can potentially change a person’s life. In October of 2010, he suffered serious bleeding on the brain, a broken wrist, and an orbital fracture after a bike crash left him in a coma for 9 days. After years of rehabilitation, Lavin is now 100 percent recovered, fully integrated back into society and back as a star MTV host. “People with disabilities deserve an equal chance at employment. While most people don’t do BMX, everyone is just an accident, disease or age related issue away from a disability, said Lavin. “It is time we respect people for their abilities rather than focusing on their disabilities.”

Non-Discriminatory Practices During the Form I-9 Verification and Re-Verification Process: Justice Department’s Latest Technical Assistance Letter (February 7, 2014)

Wednesday, February 12th, 2014

The following is the text of a February 7, 2014, technical assistance letter issued by the Justice Department’s Office of Special Counsel. To access this and other technical assistance letters, go to http://www.justice.gov/crt/about/osc/htm/techletters.php.

Text of the letter:

Thank you for contacting the Office of Special Counsel for Immigration-Related Unfair Employment Practices (HOSC”). This is in response to your email to Byron Wong, dated January 8, 2014. For future reference, you may wish to email written inquiries to OSC’s email inbox at osccrt@usdoj.gov.

In your email and follow-up clarification, you ask several questions pertaining to “Driver Authorization/Driver Privilege Cards,” which you describe as cards issued by states “to individuals who are unable to document proof of lawful status,” often to individuals who are not authorized to work in the United States. You further explain that “different States currently or may in the future have different formats for these documents and/or annotations that specifically reference whether such documents are acceptable for federal identification purposes on the face of the documents.”

Specifically, you ask whether: (1) such cards “constitute acceptable List B documents to evidence identity during the Form 1-9 completion process;” (2) an employer may employ an individual who presents this type of card given that “such documents are statistically issued to predominantly undocumented individuals;” and (3) an employer employing an individual who has shown this type of card for 1-9 or other purposes might be deemed to have knowingly employed an individual who is not authorized to work in the United States.

OSC enforces the anti-discrimination provision of the Immigration and Nationality Act (“INA”), as amended, 8 U.S.C. § 1324b. The anti-discrimination provision prohibits citizenship or immigration status discrimination, national origin discrimination, unfair documentary practices (“document abuse”) during the employment eligibility verification (Form 1-9) process, and retaliation for filing a charge or asserting rights under the anti-discrimination provision. More information on OSC, including a number of OSC technical assistance letters on the topic of pre-employment inquiries, can be found on our website: www.iusticc.gov/crt/about/osc.

Justice Department’s Office of Special Counsel Offers Informative Webinars Addressing Immigration-Related Unfair Labor Practices

Tuesday, February 11th, 2014

For more information on the new webinars offered by the Justice Department’s Office of Special Counsel and to register for any of the webinars, go to http://www.justice.gov/crt/about/osc/webinars.php.

OSC Webinars

To celebrate its 25th anniversary, OSC launched its live webinar series. If you’re a worker or worker advocate, please consider joining us for the monthly worker/advocate track webinar. Employers/HR professionals are invited to join our monthly employer track webinar. Either way, you’ll participate in a knowledgeable one-hour presentation conducted live from OSC’s headquarters in Washington, DC. Simply select the event you’re interested in and click on the adjacent link to register for the event. Registration is fast and free! Then save the date and join OSC for the desired webinar.

For webinar materials in alternate format or other reasonable accommodation requests, contact Lyn Sowdon at Lyn.Sowdon@usdoj.gov or (202) 616-2940 at least one week before the webinar or as soon as possible, to ensure there is adequate time to arrange for the accommodation. In your request, please include a description of the type of accommodation needed and your contact information.

*Please Note: There is a maximum registration of 200 participants for each webinar. If you are unable to register for the webinar of your choice, please sign up for another date.

February 19, 2014 at 1:30 pm EST

OSC Employer/HR Representative webinar (Maximum: 200 participants)

March 4, 2014 at 3:30 pm EST

OSC Worker/Advocate webinar (Maximum: 200 participants)

March 13, 2014 at 2:00 pm EST

OSC Employer/HR Representative webinar (Maximum: 200 participants)

April 9, 2014 at 2:30 pm EST

OSC Worker/Advocate webinar (Maximum: 200 participants)

April 17, 2014 at 3:30 pm EST

OSC “en Español” Worker/Advocate webinar (in Spanish!) (Maximum: 200 participants)

April 22, 2014 at 11:00 am EST

OSC Employer/HR Representative webinar (Maximum: 200 participants)

Joint OSC/USCIS Webinars

OSC has joined with USCIS to present webinars on employee rights during the E-Verify and Form I-9 employment eligibility verification processes. These webinars on employee rights are useful for workers, worker advocates, and job seekers alike. To sign up for a joint OSC/USCIS webinar on employee rights, mark your calendar for the time listed below, and click the link to register.

Please Note: There is a maximum registration of 200 participants for each webinar. If you are unable to register for the webinar of your choice, please sign up for another date.

Thursday, February 20, 2014 at 10:00 am EST (Maximum: 200 participants)

Thursday, February 27, 2014 at 11:30 am EST (“en Español” webinar) (Maximum: 200 participants)

Tuesday, March 25, 2014 at 2:00 pm EST (“en Español” webinar) (Maximum: 200 participants)

Office of Disability Employment Policy Newsletter (February 7, 2014)

Saturday, February 8th, 2014

For more information regarding any of the following articles, go to www.dol.gov/odep.

A Powerful Message for Youth with Disabilities — Assistant Secretary Martinez’s Blog

In a post on the U.S. Department of Labor’s blog, assistant secretary of labor for disability employment policy Kathy Martinez recounted the story of Derrick Coleman of the Seattle Seahawks, the first legally deaf member of an NFL offense, and his nine-year-old fan Riley Kovalcik who, like Coleman, wears hearing aids. “This heartwarming story reinforces the importance of what I like to call “look-alike mentors” for young people with disabilities — something that lies at the heart of our work at ODEP,” said Martinez.

Inclusive Ads, Positive Portrayals — Assistant Secretary Martinez Discusses Disability-Inclusive Advertising and Entertainment

Leaders in the advertising and entertainment industries, including corporate, industry associations and union representatives along with diversity thought leaders, gathered in New York City on February 4 to discuss the need for disability-inclusive diversity in advertising on large, small and personal screens. Assistant secretary of labor for disability employment policy Kathy Martinez headlined the event, which helped promote an upcoming pair of industry summits called Lights! Camera! Access! 2.0. “Together we have the power to raise awareness and change minds,” said Martinez. “We have the power to foster a more inclusive entertainment industry, and a stronger, more inclusive American workforce in general—one where every person who wants to work, does work, and where America’s promise of equal opportunity for all truly means all.”

LEAD Center Issues January Policy Update — Employment, Health Care and Disability

The LEAD Center’s Policy Update — Employment, Health Care and Disability provides information about relevant policy developments regarding Medicaid, the Affordable Care Act and related topics, with a focus on improving employment outcomes for individuals with disabilities. The just-released January update features articles on the new CMS home and community-based care services (HCBS) regulations, a proposed bill to fund integrated employment, Medicaid expansion and several articles on managed care for long-term services and supports (LTSS) in various states. Each monthly update will be published to the Resource Center found on the LEAD Center website. Subscribers who sign up to receive LEAD Center news and information will receive notice of each newly published update.

Webinar for New Federal Disability Program Managers — February 26, 2014, 2:00-3:30 PM EST

The “You’ve Just Been Appointed a Federal Disability Program Manager — Now What?” webinar will explore all the tools new federal Disability Program Managers (DPMs) need to be successful and to build a strong foundation for their agency’s disability program. Effective techniques, strategies and programs will be discussed, including the Schedule A appointing authority, targeted recruitment, free resources and much more. The webinar is designed for DPMs with little or no experience in the field. It will be presented on February 26, 2014, 2:00-3:30 PM EST, and is open to individuals with a .gov or .mil email address.

Job Accommodation Network Publishes Quarterly E-News

The Job Accommodation Network (JAN) has published its first quarterly E-News for 2014. Topics include finding resources for compliance with the new Section 503 regulations and VEVRAA, providing temporary accommodation solutions, and dealing with illegal drug use disclosures, among others. Also listed are links to JAN publications and archived webcasts.

LEAD Center Policy Roundtable Report Now Available

The LEAD Center has released the report from its first bi-annual 2013 Policy Roundtable held July 17-18, 2013 in Washington, DC. These policy roundtables bring together stakeholders — including federal agency leaders, state and local agency policymakers, practitioners and subject matter experts — to share knowledge and promote cross-system collaboration to advance individual and systems level change to promote employment and economic advancement for people with disabilities. The 2013 LEAD Center Policy Roundtable and corresponding report, both entitled “Making Collaboration Real,” focus on building a progressive vision to leverage resources effectively across systems to promote employment and socioeconomic advancement of youth and adults with disabilities.

Bureau of Labor Statistics Releases Youth Employment Rate Numbers for January 2014

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.

Collecting, Using, Storing, and Disclosing Medical Information: Federal Civil Rights Laws and HIPAA

Saturday, February 1st, 2014

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

For purposes of this paper, we are going to take a general look at the intersection of federal civil rights laws requiring nondiscrimination on the basis of disability (along with collection of disability-related data) on the one hand, and the right to medical confidentiality and privacy under the Health Insurance Portability and Accountability Act (HIPAA) on the other hand. Although many concepts discussed here apply to our workplaces, we are going to focus on the use of medical or disability-related information in the delivery of federally-assisted programs and activities.

As the equal opportunity (EO) professional for an agency, company, or organization operating federally-assisted programs and activities, you must know when you are entitled to collect medical information, how you use this information once you have it, where you store such information, and under what circumstances you disclose the information. Although the concepts discussed in this article may be applied to federally-assisted programs and activities across-the-board, for purposes of providing examples, we are going to focus on the delivery of U.S. Department of Labor-funded workforce development programs and activities governed by Section 188 of the Workforce Investment Act.

√ Origins of data collection under federal civil rights laws

To set the stage for data collection under federal civil rights laws, we’ll start with Title VI of the Civil Rights Act of 1964 (Title VI). This was an impressive piece of legislation mandating nondiscrimination on the bases of race, color, and national origin in the delivery of federally-assisted programs and activities. And, companion legislation at Title VII of the Civil Rights Act of 1964 (Title VII) prohibited discrimination on the bases of race, color, and national origin in our employment practices. Data collection was an important component of these federal laws.

For example, U.S. Department of Labor (DOL) regulations implementing Title VI at 29 C.F.R. § 31.6(b) require, in part, the following:

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

29 C.F.R. § 31.6(b). The main purpose for this data collection is to measure a recipient’s performance and compliance with Title VI as it delivers federally-assisted training, aid, benefits, and services to its public.

For example, an American Job Network center is located in an area where 85 percent of the population is Hispanic, but the center’s data reveals that only 15 percent of persons it serves are Hispanic. This disparity may mean prohibited national origin-based discrimination has occurred at the center, thus signaling a need for the center to strengthen and expand its outreach in the community in addition to taking other actions.

As another example, data reveals that 80 percent of black persons are referred by the center to higher paying jobs with a local company, whereas only 20 percent of similarly-qualified white persons are referred to these higher paying jobs. Here, data collected indicates that the center engaged in discriminatory referral of applicants on the bases of race and/or color in violation of Title VI.

√ Disability-related civil rights laws

Federal disability-related nondiscrimination laws first surfaced in 1973 with enactment of the Rehabilitation Act. This statute prohibiting disability-related discrimination contained provisions that applied both to the delivery of federally-assisted programs and activities as well as to our employment practices. Again, certain data collection requirements were put in place. For example, in DOL-funded programs, 29 C.F.R. § 32.44(b) requires:

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

29 C.F.R. § 32.44(b). Likewise, the ADA and ADAAA, enacted in 1990 and 2008, respectively, expanded disability-related nondiscrimination requirements.

And, Section 188 of the Workforce Investment Act of 1998 (WIA), which applies to the delivery of a variety of workforce development programs and activities, contains enhanced protections for persons with disabilities. Specifically, this statute requires nondiscrimination and equal opportunity for persons with disabilities.

Again, collection of disability-related or medical data under these statutes is designed to gauge compliance with their nondiscrimination requirements. On the flip side, however, federal authorities do not want this information to be used to engage in the very form of discrimination prohibited by these laws. Here, we are going to focus on the important requirements for gathering, using, storing, and disclosing medical and disability-related information in the context of delivering federally-assisted workforce development programs and activities.

√ Gathering medical or disability-related information

Using federally-assisted workforce development programs and activities as the backdrop for our discussion, DOL’s regulations implementing WIA Section 188 set forth certain data collection and reporting requirements as follows:

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

29 C.F.R. § 37.37(b)(2). The Labor Department’s Civil Rights Center emphasizes that, prior to asking any medical or disability-related questions, you must notify the individual of the following:

● providing the information is voluntary;
● the information will be kept confidential as provided by law;
● refusal to provide the information will not subject the individual to any adverse treatment; and
● the information will be used only in accordance with the law.

Keep in mind that gathering such information in connection with employment-related activities (such as referral for job training, or job placement) generally is illegal. But, for service-related activities (such as determining eligibility for unemployment insurance benefits), you have more discretion in gathering medical or disability-related information to determine whether an individual meets the “essential eligibility requirements” for your program or activity, or to determine whether the individual meets the requirements to participate in a “targeted” program or activity, or to determine the appropriate accommodation needed to allow the individual to participate in a program or activity.

√ Storing medical or disability-related information

Regardless of the circumstances under which you acquire medical or disability-related information, storing this information in an unsecured location, or sharing it without limitation, leaves the individual with a disability particularly susceptible to discrimination, and this conduct is prohibited by federal law. For example, regulations implementing WIA Section 188 provide the following:

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

29 C.F.R. § 37.37(b)(2).

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

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

Keep in mind that the same confidentiality requirements are imposed on employers with regard to their employees. Namely, EEO/AA/HR professionals must ensure that all medical information pertaining to an employee is kept in a folder that is separate from the employee’s personnel record. And, the medical information folder must be kept confidential and secure. Look to the U.S. Equal Employment Opportunities Commission at www.eeoc.gov for additional guidance in the context of the workplace. And, for special considerations applicable to federal contractors and subcontractors, look for guidance from the Labor Department’s Office of Federal Contract Compliance Programs (OFCCP) at www.dol.gov/ofccp.

√ Using medical or disability-related information

As previously noted, for your employment-related activities, the permitted uses of this information is very narrow. For example, as a job referral counsellor, it is illegal to “steer” a person with a disability to a particular job; rather, each person with a disability is entitled to individualized treatment. For service-related activities, on the other hand, medical or disability-related information may be used to assess reasonable accommodations, or to determine whether the individual meets the “essential eligibility requirements” to participate in a particular program or activity.

√ Disclosing medical or disability-related information

Confidentiality of medical and disability-related information is of paramount importance whether in the delivery of federally-assisted programs and activities, or in the workplace. Disclosure of such information must be made under extremely limited conditions. Some examples in federally-assisted workforce development programs may include disclosure to a training provider only to explain reasonable accommodation, or disclosure to first aid or safety personnel only if the condition may require emergency treatment.

As with gathering, storing, and using medical or disability-related information, it is critical to have written policies and procedures in place addressing the limited circumstances under which such information may be disclosed. If you need assistance with the development of such procedures, you may contact us at info@titleviconsulting.com.

√ Understanding the role of HIPAA

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

The interplay between a privacy law, like HIPAA, and a civil rights law is best demonstrated by example. For this purpose, we’ll look at a scenario arising under WIA Section 188. As previously noted, WIA Section 188 prohibits discrimination in federally-funded programs and activities on a wide variety of bases, including disability. Some examples of recipients operating WIA-related programs and activities are American Job Network centers offering employment referral services, training, and unemployment insurance benefits as well as Job Corps Centers offering educational programs and activities designed to enhance employability of youth.

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

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

Now, once Sam’s medical documentation is in your hands, the federal civil rights law, WIA Section 188, prohibits discrimination against Sam based on this information. Moreover, this statute limits your use and disclosure of this information, and it requires that you ensure confidentiality of this information; that is, you must keep this information in a file that is separate from Sam’s student or participant file. Moreover, the medical file must be kept in a secured location with limited access.

√ About Seena Foster

Seena Foster, award-winning civil rights author and Principal of the discrimination consulting firm, Title VI Consulting, LLP in Alexandria, Virginia, provides expertise and guidance in the areas of civil rights compliance and discrimination complaint investigations related to the delivery of federally-assisted programs and activities. Her customers include state and local governments, colleges and universities, private companies, private counsel, and non-profit organizations. You may contact her at seena@titleviconsulting.com, or visit her web site at www.titleviconsulting.com for additional information regarding the services and resources she offers.

By way of background in this area, in 2003, Ms. Foster served as a Senior Policy Analyst to the U.S. Department of Labor’s Civil Rights Center (CRC). In that capacity, she led a team of equal opportunity specialists to conduct disability-based technical assistance reviews of One-Stop centers, and she assisted the CRC’s leadership in preparing for limited English proficiency-based compliance reviews. Ms. Foster also analyzed and weighed witness statements and documents to prepare numerous final determinations for signature by the CRC Director, which resolved discrimination complaints under a variety of federal civil rights laws such as Title VI of the Civil Rights Act, the Age Discrimination Act, the Rehabilitation Act, the Americans with Disabilities Act, and Section 188 of the Workforce Investment Act. In 2006, Ms. Foster received the Secretary of Labor’s Equal Employment Opportunity Award in recognition of “exceptional efforts to ensure that individuals with disabilities have full access to employment and related services and benefits at the Nation’s One-Stop Career Centers.” And, at the request of the CRC, Ms. Foster served as a popular workshop speaker at national equal opportunity forums co-sponsored by the CRC and the National Association of State Workforce Agencies. Her presentations covered topics such as the WIA Section 188 disability checklist, conducting discrimination complaint investigations and writing final determinations, and conducting investigations of allegations involving harassment and hostile environment.

With a passion for ensuring nondiscrimination and equal opportunity in the delivery of federally-assisted programs and activities, Ms. Foster remains highly active in the field through her series of on-demand webcasts for equal opportunity professionals as well as through her mediation services, training, and assistance developing policies and procedures designed to ensure compliance with applicable federal civil rights laws. Her training in the areas of compliance and complaint investigations has been described as “dynamic,” “hitting the nail on the head,” “well-organized,” and “informative.” And, her award-winning book on conducting discrimination complaint investigations is viewed as “eye-opening” and “the best on the market.” In 2007, Ms. Foster was certified as a mediator by the Virginia Supreme Court, and later obtained “Federal Workplace Mediation” certification through the Northern Virginia Mediation Service.

In her local community of Alexandria, Virginia, Ms. Foster volunteers at Carpenter’s Shelter, and serves on its Development Committee and Major Donors and Partners Subcommittee. In addition, Ms. Foster serves on Alexandria’s Economic Opportunities Commission, which addresses availability of housing and jobs for economically-disadvantaged persons. In 2013, Ms. Foster received the City of Alexandria’s “Joan White Grass Roots Service Award” for her commitment of time and effort “working to improve the lives of the homeless as well as advocating their needs and the mission of Carpenter’s Shelter in the community.”

Ms. Foster is a member of the Discrimination Law and Human Rights Law Committees of the International Bar Association. Finally, in November 2011, Ms. Foster was selected as a lifetime member of the Cambridge Who’s Who among Executives, Professionals, and Entrepreneurs based on her “accomplishments, talents, and knowledge in the area of civil rights.”

Ms. Foster received her undergraduate degree from Michigan State University, and she has a Juris Doctorate from The George Washington University Law School.