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Archive for August, 2014

Justice Department Files Lawsuit Against Louisiana Crane Company Alleging Discrimination Against Work-authorized Immigrants (August 29, 2014)

Saturday, August 30th, 2014

The Justice Department announced today the filing of a lawsuit with the Executive Office for Immigration Review against Louisiana Crane Company LLC (Louisiana Crane), which is headquartered in Eunice, Louisiana.

The complaint alleges that Louisiana Crane violated the Immigration and Nationality Act’s (INA) anti-discrimination provision by creating hurdles for immigrants during the employment eligibility verification process because of their citizenship status. Specifically, the complaint states that, from at least January 2013 until at least September 2013, Louisiana Crane required employees who it believed to be non-U.S. citizens to present specific documentation for the Form I-9 and/or E-Verify, but allowed believed to be U.S. citizens the flexibility to present a variety of documents. The INA’s anti-discrimination provision prohibits employers from discriminating against people with permission to work in the United States because of their citizenship status.

“The law protects people who have permission to work from facing discriminatory obstacles during employment eligibility verification,” said Molly Moran, Acting Assistant Attorney General for the Justice Department’s Civil Rights Division. “It is important that all people who have permission to work in the United States face an equal playing field when proving their work authorization.”

The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) is responsible for enforcing the anti-discrimination provision of the INA. Among other things, the statute prohibits citizenship status and national origin discrimination in hiring, firing, or recruitment or referral for a fee; unfair documentary practices; retaliation; and intimidation.

For more information about protections against employment discrimination under immigration laws, call OSC’s worker hotline at 1-800-255-7688 (1-800-237-2515, TTY for hearing impaired); call OSC’s employer hotline at 1-800-255-8155 (1-800-237-2515, TTY for hearing impaired); sign up for a free webinar at www.justice.gov/crt/about/osc/webinars.php , email osccrt@usdoj.gov ; or visit OSC’s website at www.justice.gov/crt/about/osc .

Applicants or employees who believe they were subjected to different documentary requirements based on their citizenship status, immigration status, or national origin, or discrimination based on their citizenship status, immigration status, or national origin in hiring, firing, or recruitment or referral for a fee should contact OSC’s worker hotline for assistance.

Office of Disability Employment Policy Newsletter (August 29, 2014)

Saturday, August 30th, 2014

Ladders of Opportunity: Helping All People Climb on Board – Assistant Secretary Martinez’s Blog

In an August 29 post on the Department of Labor’s blog site, Assistant Secretary of Labor for Disability Employment Policy Kathy Martinez discussed the importance of accessible transportation to employment for people with disabilities. “Transportation is the most critical—and perhaps least appreciated—employment support for American workers. After all, the best skills training program, or a great job offer, serves little purpose if you can’t get there in the first place,” Martinez said. She explained the U.S. Department of Transportation’s “Ladders of Opportunity” initiative in which ODEP is a partner. The initiative is designed to improve the work-related mobility of Americans with disabilities and others with transportation disadvantages by helping communities nationwide modernize and expand transit bus service to better link people with employment and training opportunities, as well as other vital services such as health care.

Assistant Secretary Martinez Speaks to Mexican Consulate during Labor Rights Week

As part of this year’s Labor Rights Week observance, the Mexican Consulate in Philadelphia welcomed Assistant Secretary of Labor for Disability Employment Policy Kathy Martinez, who visited on August 27 to talk about how her agency’s work impacts Mexican workers and employers. In her remarks, she addressed disability in the context of Latino culture and the relationship between ODEP’s work and efforts to increase employment opportunities for all people who face challenges when it comes to community inclusion, including immigrants and other diverse populations. “Whether someone is born with a disability or acquires one, they simply cannot afford to sit on the sidelines,” she said. “As a community, we Latinos have so much to offer our communities and the workplace, and our work ethic is second to none. We all have something to contribute.”

Job Accommodation Network Blog Features New Posts

Two new posts have been added to the Job Accommodation Network’s Ask JAN blog. In a post on August 25 in honor of Assistance Dog Week, JAN Lead Consultant Kim Cordingly explored the issue of assistance dogs in the workplace. She profiled Marcie Davis, an expert on the subject, who explained effective workplace practices and emphasized that communication between the employer and the employee with an assistance dog is the key to success. On August 26, Daniel Tucker, JAN Consultant examined accommodations for individuals with depression in the workplace. He provided an overview of potential workplace accommodations and offered resources for those seeking more information.

Partnership on Employment & Accessible Technology to Host Second Accessible Technology Webinar – September 3, 2:00-3:00 PM EDT

The ODEP-funded Partnership on Employment & Accessible Technology (PEAT) will host the second in its series of webinars on Wednesday, September 3, 2014 from 2:00-3:00 PM EDT. “Designing for the Future: Building Accessible Technology for the Workplace” will explore the numerous advantages to developing and marketing workplace technology products that are accessible to all users, including those with disabilities. Join PEAT’s guest speakers to learn why accessibility matters to a company and its customers. Speakers will include Jim Tobias, owner of Inclusive Technologies and principal of Raising the Floor and the Global Public Inclusive Infrastructure (GPII) Project; Dennis Amorosano, vice president and general manager of the Marketing Division of the Business Imaging Solutions Group at Canon USA; Katie Cunningham, developer at Cox Media Group and author of “Accessibility Handbook: Making 508-Compliant Websites”; and Laurie Ellington, manager of State Government Affairs at the CTIA-The Wireless Association.

Justice Department Files Suit Against City of St. Anthony Village Over Denial of Permit for Mosque (August 28, 2014)

Friday, August 29th, 2014

Lawsuit Under the Religious Land Use and Institutionalized Persons Act Seeks Injunctive Relief to Permit Abu Huraira Islamic Center to Open in St. Anthony Business Center

Acting Assistant Attorney General Molly Moran for the Justice Department’s Civil Rights Division and U.S. Attorney Andrew M. Luger for the District of Minnesota today announced the filing of a lawsuit against the city of St. Anthony Village for an alleged violation of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). Specifically, the lawsuit seeks injunctive relief requiring St. Anthony Village to allow the Abu Huraira Islamic Center to maintain a worship space in the basement of the St. Anthony Business Center.

“Religious freedom is one of our most cherished rights, and there are few aspects of that right more central than the ability of communities to establish places for collective worship,” said Acting Assistant Attorney General Moran.

“Freedom of religion and the right to peaceably assemble are enshrined for all Americans in the Bill of Rights,” said U.S. Attorney Luger. “This office conducted a thorough investigation of the circumstances surrounding the City Council’s decision to deny Abu Huraira the right to worship in the St. Anthony Business Center. We aggressively sought to resolve this matter without a lawsuit. However, it is a solemn duty of all United States Attorneys to uphold the Constitution. The people of Abu Huraira have a right to peaceably assemble – they have a right to practice their religion, and it’s our job to enforce that right.”

The complaint, filed in the U.S. District Court in Minneapolis, alleges that the St. Anthony Village City Council treated an application for a conditional use permit to assemble in the St. Anthony Business Center filed by Abu Huraira on less than equal terms as other, non-religious, conditional use permits for assembly. The denial of the necessary permit for the worship center unlawfully disfavored a religious use, because the light industrial zone where the building is located allowed “assemblies, meeting lodges and convention halls,” including a union hall with banquet facilities available to be rented by the public.

In addition to Abu Huraira’s treatment on less than equal terms to similarly situated secular organizations, the denial of Abu Huraira’s permit substantially burdens its members in practicing their faith. Abu Huraira members’ ability to exercise their religion is limited by their current worship site options, including, but not limited to the fact that members in the northern Twin Cities are burdened from praying together based on the length of time it takes to travel to the worship centers in south Minneapolis. Moreover, prayer space at locations in south Minneapolis are too small to accommodate members, many of whom often have to pray in hallways or entryways, and hold multiple prayer sessions in shifts to accommodate crowds.

After conducting a search for adequate prayer space lasting nearly three years, Abu Huraira entered into a purchase agreement for the St. Anthony Business Center. The business center is an ideal location for Abu Huraira because it is centrally located, has a basement measuring approximately 11,600 square feet and has ample parking. The business center is in the “light industrial” zone of St. Anthony, conditional uses for which included “assemblies, meeting lodges, and convention halls.”

In February 2012, after consulting St. Anthony Village officials, Abu Huraira applied for a conditional use permit for assembly in the light industrial zone. It was denied on June 12, 2012, by a St. Anthony Village City Council vote of 4-1, despite the professional St. Anthony City Planning Staff recommending approval, despite the St. Anthony Village City Planning Commission recommending approval and despite members of Abu Huraira attending each meeting of the Council and Planning Commission to address any concerns held by the city.

The lawsuit filed by the department seeks to enforce Abu Huraira’s constitutional rights under RLUIPA by requiring St. Anthony Village to grant the conditional use permit to allow Abu Huraira to assemble for the purpose of worship.

Assistant U.S. Attorneys Bahram Samie, Ana Voss, and Greg Brooker as well as Justice Department attorneys from the Civil Rights Division are representing the United States in this matter.

RLUIPA, enacted in 2000, contains multiple provisions prohibiting religious discrimination and protecting against unjustified burdens on religion exercise. Persons who believe that they been subjected to religious discrimination in land use or zoning may contact the Housing and Civil Enforcement Section of the Justice Department’s Civil Rights Division at 1-800-896-7743. More information about RLUIPA, including a report on the first ten years of its enforcement, may be found at http://www.justice.gov/crt/about/hce/rluipaexplain.php .

Justice Department Asks Court to Dismiss Saint Elizabeths Hospital Case After Conditions Improved Under Consent Decree (August 28, 2014)

Friday, August 29th, 2014

Today, the Justice Department asked a federal court to dismiss the injunction to address civil rights violations at Saint Elizabeths Hospital in Washington, D.C., because the District of Columbia and the Department of Behavioral Health have significantly improved the care and treatment of persons confined to Saint Elizabeths Hospital. Saint Elizabeths is the district’s facility for treating individuals with mental health conditions. The reforms, which were implemented following requirements under a court order, have ensured that persons at Saint Elizabeths Hospital are discharged to the community with adequate supports to live in integrated settings. Further, the reforms resulted in important improvements in integrated treatment planning, psychological and psychiatric services, nursing care and protection from assault.

In 2006, the department notified the district that conditions at Saint Elizabeths Hospital violated the constitutional and federal statutory rights of individuals at the hospital. In 2007, the department and the district entered into a court enforceable settlement agreement to implement the necessary reforms. Since entering the settlement agreement, the department, with the help of a team of experts, has monitored the implementation of the reforms and provided technical assistance to facility officials.

Under the settlement agreement, district officials have made steady progress toward improving the care and treatment at Saint Elizabeths Hospital. By June 2014, the district had achieved and maintained substantial compliance with all required remedial measures by replacing a dangerous facility through the construction of a new hospital and increased clinical staff as well as reforming the discharge planning and community placement process. Further, the district lowered the population at Saint Elizabeths Hospital by nearly 50 percent. The district will continue its partnership with the local protection and advocacy group, University Legal Services, after dismissal of the lawsuit. The parties have filed a notice with the court detailing the ongoing monitoring that will be conducted by University Legal Services.

“We commend the district and the Department of Behavioral Health for their commitment to reform the clinical practices at Saint Elizabeths Hospital,” said Molly Moran, Acting Assistant Attorney General for Civil Rights. “The leadership of the Department of Behavioral Health and of Saint Elizabeths Hospital have made significant and often difficult decisions to change the clinical culture at Saint Elizabeths Hospital and ensure that persons confined to hospital were appropriately discharged and integrated into the community with adequate supports. They strongly supported the required changes and provided the time, energy and resources necessary to achieve reform.”

The department initiated the investigation of Saint Elizabeths Hospital under the Civil Rights of Institutionalized Persons Act and the Americans with Disabilities Act. These statutes give the Department of Justice authority to protect the constitutional and federal statutory rights of individuals with mental health conditions confined to mental health hospitals. Additional information about the Civil Rights Division is available on its website at www.justice.gov/crt .

Massillon, Ohio Landlords Agree to $850,000 Settlement to Resolve Housing Discrimination Lawsuits (August 25, 2014)

Tuesday, August 26th, 2014

The Justice Department announced today that Massillon, Ohio landlords John and Mary Ruth have agreed to pay $850,000 to settle lawsuits filed by the Justice Department and other parties alleging that the Ruths discriminated on the basis of race and familial status at properties they formerly owned in Massillon. The settlement must still be approved by United States District Judge John R. Adams in the Northern District of Ohio.

The proposed settlement would resolve a lawsuit filed by the department on October 31, 2011, alleging that the Ruths and the companies through which they manage their properties had discriminated against African Americans and families with children at Yorkshire Apartments, Thackeray Ledges and Wales Ridge— three apartment complexes located in Massillon, Ohio. The settlement would also resolve related lawsuits raising similar allegations filed by Stark County, the Ohio Civil Rights Commission and several former property managers and tenants at the complexes. In an order issued on March 31, 2014, the court noted that 10 of Mr. Ruth’s former employees had testified that they were instructed to discriminate against African Americans and that other former employees had testified that they been instructed to discriminate against families with children. The court ruled that the department had presented sufficient evidence of a pattern or practice of unlawful discrimination by the defendants for the case to go to trial before a jury.

Under the terms of the settlement, the defendants will pay:

· $650,000 in damages and attorney’s fees to the plaintiffs in the lawsuits filed by the Ohio Civil Rights Commission, Stark County and several former residents and property managers;
· $175,000 in damages to 11 additional former residents and employees identified by the United States who had been harmed by the defendants’ discrimination; and
· $25,000 in a civil penalty to the United States.

“It is a sad fact that decades after the passage of the Fair Housing Act, many people still face unlawful discrimination when looking for housing,” said Molly Moran, Acting Assistant Attorney General for the Civil Rights Division. “The magnitude of this settlement makes clear that the Department of Justice will vigorously pursue violations of the Fair Housing Act.”

“The freedom of every family to live where they wish, without regard to their race or if they have kids, is basic to who we are in this country,” said U.S. Attorney Steven M. Dettelbach for the Northern District of Ohio. “When landlords deny that basic right, there will be consequences. We will continue to work hard to ensure that this fundamental right is protected in Ohio and across the nation.”

The settlement also requires that the defendants hire an independent management company to manage all of their rental properties, receive training on the requirements of the Fair Housing Act and report to the department for a period of three years on their compliance with the settlement. The settlement also requires the defendants to hire a third party to periodically test their properties to ensure compliance with the Fair Housing Act.

Fighting illegal housing discrimination is a top priority of the Department of Justice. The federal Fair Housing Act prohibits discrimination in housing based on race, color, religion, national origin, sex, disability and familial status. More information about the Civil Rights Division and the laws it enforces is available at www.justice.gov/crt . Individuals who believe that they may have been victims of housing discrimination can call the Justice Department at 1-800-896-7743, e-mail the Justice Department at fairhousing@usdoj.gov , or contact HUD at 1-800-669-9777 or through its website at http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp.

Office of Disability Employment Policy: Business Sense (August 25, 2014)

Tuesday, August 26th, 2014

Are Your Doors Open to ALL Qualified Workers?

When it comes to recruiting and retaining talent, fostering work environments that are flexible and open to all qualified employees and potential employees, including those with disabilities, can provide a competitive edge. But some businesses, especially small businesses, may not fully understand how people with disabilities can contribute to their success.

A recent report can help fill this knowledge gap. Opening the Doors of Small Business to Employees with Disabilities highlights the value people with disabilities can add to small businesses and addresses commonly expressed concerns. The report was developed by the Conference Board — an independent, non-profit business membership and research organization with more than 1,000 members worldwide — in collaboration with the Employer Assistance and Resource Network, a service of the National Employer Technical Assistance Center funded by the U.S. Department of Labor’s Office of Disability Employment Policy (ODEP).

In addition to outlining relevant research findings, the report includes concrete steps small businesses can take to integrate people with disabilities into their organizations. It also offers a first-of-its-kind planning matrix to assist in developing a plan and establishing priorities. Through bottom-line actions, and checklists and timelines for their implementation, this matrix is useful to not only employers new to disability employment, but also those who already employ people with disabilities and want to ensure they can continue to benefit from their skills in the years to come. Because after all, ensuring doors are open to all qualified workers makes good business sense.

For additional news and resources, sign up for ODEP’s e-mail updates. Go to www.dol.gov/odep.

Office of Disability Employment Policy Newsletter (August 22, 2014)

Sunday, August 24th, 2014

For more information, go to www.dol.gov/odep.

Employment and Training Administration to Hold WIOA Stakeholder Consultation Webinars on Individuals with Disabilities on August 26 and September 2

The U.S. Department of Labor’s Employment and Training Administration (ETA) invites state and local workforce leaders and practitioners, workforce system partners, customers, and other stakeholders to provide input on the implementation of the Workforce Innovation and Opportunity Act (WIOA) (Pub.L. 113–128). ETA will gather input through stakeholder consultation webinars via a “chat feature” in order to most efficiently gather thoughts and ideas from webinar participants. The topic for August 26, 2014 is “Consultation with Consumers, Advocacy Groups, and Direct Service Providers on Services for Individuals with Disabilities.” The topic for September 2, 2014 is “Services to Individuals with Disabilities.” More information about the Act, and specific discussion questions and registration links for these webinars can be found on ETA’s WIOA resource webpage.

Office of Special Education and Rehabilitative Services Seeks Comments on Implementation of WIOA Amendments to the Rehabilitation Act of 1973

The U.S. Department of Education’s Office of Special Education and Rehabilitative Services (OSERS) and Office of Career, Technical, and Adult Education (OCTAE) invite comments and recommendations to help implement the Workforce Innovation and Opportunity Act (WIOA). This new law seeks to maximize opportunities for youth and adults, with and without disabilities, to succeed in postsecondary education and in high-skill, high-wage, high-demand jobs in the 21st century economy. Specifically, OSERS and OCTAE seek comments as they begin the process of implementing the amendments to the Rehabilitation Act of 1973 that were made by Title IV of WIOA and of the new version of the Adult Education and Family Literacy Act (AEFLA), in Title II of WIOA.

Professional Baseball Athletic Trainers Society Launches New Public Service Announcement

As part of their Alliance, the Professional Baseball Athletic Trainers Society (PBATS) and the U.S. Department of Labor’s Office of Disability Employment Policy (ODEP) released a PSA to Major League Baseball clubs and their minor league affiliates. This PSA featuring Curtis Pride is part of a multi-year outreach initiative, “Ability Transcends Challenges,” undertaken by PBATS to educate the public about the talents of people with disabilities in sports and in the workplace. In his own words, Pride, who is deaf and played eleven years in the major leagues, talks about being accepted for his talent. He urges everyone to give people with disabilities an opportunity to prove themselves. The PSA refers viewers to ODEP’s resources ranging from accessibility and transition to accommodations and employment.

LEAD Center to Present Webinar on Best Practices in Employee Retention and Return-to-Work: Lessons Learned from Employers — August 27, 3:00-4:30 PM EDT

Disability management and prevention is an important component in retaining talented employees and reducing turnover costs. In 2013, the LEAD Center studied a large successful U.S. Corporation to learn about and document effective retention and return-to-work policies and practices. This is a major focus for the U.S. Business Leadership Network as well as the Families and Work Institute, which just published their 2014 National Study of Employers. Join the LEAD Center for a review of lessons learned including employer retention and return-to-work best practices, how workforce professionals can partner with employers to promote employee retention and return to work, and how to identify employers with policies that support customized employment. The webinar will be held on August 27, 3:00-4:30 PM EDT. All LEAD Center webinars are captioned and presentation materials are sent to participants in advance of the webinar. For any other reasonable accommodation requests, please contact Brittany Taylor at btaylor@ndi-inc.org.

Employer Assistance and Resource Network to Host Webinars on Self-Identification of Disability

The Employer Assistance and Resource Network (EARN) has opened registration for two webinars it will host in September. On September 18, 1:00-2:00 PM EDT, in the webinar “Creating an Inclusive Culture: Increasing Self-Identification,” participants will learn about emerging practices for encouraging people with disabilities to self-identify, tips and tools for hiring managers on disclosure, and strategies for fostering disability allies. On September 22, 12:00-1:00 PM EDT, in the webinar “Do Ask, Do Tell: Creating a Disability-Inclusive Workplace, Encouraging Employees with Disabilities to Self-Identify,” participants will learn how employers can build an inclusive workplace where people feel safe disclosing that they have a disability while also meeting the new federal requirements for government contractors. HRCI credits will be available to participants for both webinars.

President’s Committee for People with Intellectual Disabilities to Hold Public Meeting

On September 3, 2014, the President’s Committee for People with Intellectual Disabilities (PCPID) will begin a three-day meeting to swear in new committee members and discuss possible topics for the Annual Report to the President. The meeting will be held at the U.S. Department of Health and Human Services (HHS) in the Hubert H. Humphrey Building, located at 200 Independence Avenue SW, Washington, DC. The meeting is open to the general public. Established in 1966, PCPID aims to ensure the right to a “decent, dignified place in society” for people with intellectual disabilities. The PCPID’s duties include advising the President and Secretary of HHS concerning a broad range of topics including educational opportunities, home ownership, workplace integration, transportation, and increased access to community living and assistive technology.

Justice Department Reaches Agreement with the City of Baltimore to Prevent Disability Discrimination (August 20, 2014)

Thursday, August 21st, 2014

The Justice Department today announced that it has reached an agreement with the city of Baltimore, Maryland, to end hiring practices that discriminate against people with disabilities. The agreement, filed as a consent decree along with a complaint in the U.S. District Court for the District of Maryland, resolves allegations by the department that the city engaged in a pattern or practice of discrimination under the Americans with Disabilities Act (ADA). Title I of the ADA prohibits employers from discriminating against individuals on the basis of disability in various aspects of employment, including hiring.

The department alleges that the city required job applicants, including an individual complainant, to submit to a medical examination and answer disability-related inquiries before the city made conditional offers of employment. Under the ADA, employers may not require applicants to submit to medical exams or answer disability-related inquiries before making conditional offers of employment. The department also alleges that the city refused to hire the complainant for a fire dispatcher position because of her disability, even though she was already working successfully as a dispatcher elsewhere and required no accommodations.

The consent decree must be approved by the court, and requires the city to:

· pay $65,000 to the complainant in compensatory damages;
· adopt new policies and procedures regarding the administration of pre-employment medical examinations and inquiries;
· provide training on the ADA to all employees who participate in making personnel decisions related to pre-employment medical examinations and inquiries;
· ensure that the city’s contract with any medical examiner provides that the examiner is required to comply with the ADA in conducting medical examinations and certify that it has reviewed ADA training materials;
· provide periodic reports to the department on compliance; and
· designate an employee to address ADA compliance matters.

“The Justice Department will not tolerate discriminatory, outdated stereotypes that prevent individuals with disabilities from being hired for positions for which they are qualified,” said Acting Assistant Attorney General Molly Moran for the Civil Rights Division.

Those interested in finding out more about the ADA may call the Justice Department’s toll-free ADA information line at 800-514-0301 (TDD 800-514-0383) or visit www.ada.gov.

OFCCP Posts New Directive on Gender Identity and Sex Discrimination (August 19, 2014)

Thursday, August 21st, 2014

OFCCP has posted Directive 2014-02, Gender Identity and Sex Discrimination (DIR 2014-02).

On June 30, 2014, the Secretary announced that DOL is updating its enforcement protocols and nondiscrimination guidance to reflect that DOL provides the full protection of the federal nondiscrimination laws that it enforces to individuals with claims of gender identity and transgender status discrimination. In accordance with this announcement, as well as with the EEOC’s decision in Macy v. Holder and the Title VII case law on which it is based, DIR 2014-02 clarifies that under Executive Order 11246, as amended, discrimination on the basis of sex includes discrimination on the bases of gender identity and transgender status.

The directive reaffirms that in compliance evaluations and complaint investigations, OFCCP fully investigates and seeks to remedy instances of sex discrimination that occur because of an individual’s gender identity or transgender status. The directive explains that, when investigating such instances of potential discrimination, OFCCP adheres to the existing Title VII framework for proving sex discrimination, as outlined in OFCCP’s Federal Contract Compliance Manual.

DIR 2014-02 takes effect immediately. The effective date of the Directive is August 19, 2014.

The Labor Department’s OFCCP Directive

An excerpt of the text from the Directive (footnotes omitted) is as follows:

Directives (DIRs) provide guidance to OFCCP staff or federal contractors on enforcement and compliance policy or procedures. Directives do not change the laws and regulations governing OFCCP’s programs and do not establish any legally enforceable rights or obligations.

SUBJECT: Gender Identity and Sex Discrimination

PURPOSE: To clarify that existing agency guidance on discrimination on the basis of sex under Executive Order 11246, as amended, includes discrimination on the bases of gender identity and transgender status.

REFERENCES: Macy v. Holder, Appeal No. 0120120821, 2012 WL 1435995 (EEOC) (2012), also available at http://www.eeoc.gov/decisions/0120120821%20Macy%20v%20DOJ%20ATF.txt (last accessed August 12, 2014), on remand, DOJ Final Agency Decision, Agency Complaint No. ATF–2011–00751, DJ No. 187–9–149 (July 8, 2013).

AFFECTED POLICY:
A. 41 CFR § 60–1.1; 60–1.4(a)(1); 60–1.4(b)(1); 60–1.8; 60–1.10; 60–1.20(a); 60–3.1 – 60–3.18; and 60–20.1 – 60–20.6.
B. Federal Contract Compliance Manual (FCCM) § 1F05; 2H; 2J05; 2L02; 2L03; 3A; 3H03; 3H04; 3I03; 3J; 3L; 6E03; 6E04; 6E06; and 6E10.

BACKGROUND: As the Secretary of the U.S. Department of Labor (DOL) has said:

Our workforce and our entire economy are strongest when we embrace diversity to its fullest, and that means opening doors of opportunity to everyone and recognizing that the American Dream excludes no one.

Consistent with this statement, on June 30, 2014, the Secretary announced that DOL is updating its enforcement protocols and nondiscrimination guidance to clarify that DOL provides the full protection of the federal nondiscrimination laws that it enforces to individuals on the bases of gender identity and transgender status. This directive is, therefore, issued to clarify the Office of Federal Contract Compliance Programs’ (OFCCP) interpretation of the nondiscrimination obligation.

OFCCP enforces Executive Order 11246, as amended, a law that prohibits federal contractors and subcontractors from discriminating on the basis of race, color, religion, sex, or national origin. OFCCP interprets the nondiscrimination obligations under Executive Order 11246 in accordance with Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. (Title VII), which prohibits employers from discriminating on the same protected bases. This means that OFCCP enforces the nondiscrimination obligations under Executive Order 11246 by following Title VII and the case law principles that have developed interpreting that statute. Additionally, since the Equal Employment Opportunity Commission (EEOC) is the lead federal agency responsible for administering and enforcing Title VII, pursuant to Executive Order 12067, OFCCP generally defers to the EEOC’s interpretations of Title VII law.

Under current Title VII case law principles, discrimination based on gender identity or transgender status, as defined below, is discrimination based on sex. In its decision in Macy v. Holder, 2012 WL 1435995, the EEOC unanimously concluded that discrimination because a person is transgender is sex discrimination in violation of Title VII. The complainant in Macy, a transgender woman working as a police detective, alleged that she was denied a job with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) when she informed the ATF that she was in the process of transitioning from male to female. The EEOC concluded that discrimination on these grounds was discrimination “on the basis of sex,” citing both the text of Title VII and multiple federal court decisions interpreting the statute.

First, the EEOC identified sex stereotyping as one way in which a transgender employee, job applicant, or former employee could prove sex discrimination. Specifically, disparate treatment of a transgender employee because he or she does not conform to the gender stereotypes associated with his or her biological sex is a form of sex discrimination—a theory frequently upheld by federal courts. The EEOC noted that Title VII prohibits discrimination based on gender, which “encompasses not only a person’s biological sex but also the cultural and social aspects associated with masculinity and femininity.” Macy, 2012 WL 1435995 at *6.

The EEOC explained that treating a person differently because the person is transgender is by definition sex discrimination because it is “related to the sex of the victim” in violation of Title VII. This is true regardless of whether the discrimination was motivated by sex stereotyping or by some other reason related to the employee’s gender identity, such as discomfort with the idea of a transition. The EEOC additionally noted that Ms. Macy would have had a claim of sex discrimination if the employer was willing to hire her when he thought she was a man, but was not willing to hire her once he found out that she was a woman.

The EEOC, therefore, concluded that gender identity and transgender status did not need to be specifically addressed in Title VII in order to be protected bases of discrimination, as they are simply part of the protected category of “sex” under Title VII.

Consistent with Macy and the Title VII case law on which it is based, this directive deals with discrimination on the basis of gender identity only as a form of sex discrimination. It does not address gender identity as a stand–alone protected category, which (along with sexual orientation) is the subject of Executive Order 13672. As noted above, Executive Order 13672 amends Executive Order 11246 effective immediately, and will apply to contracts entered into on or after the effective date of the implementing regulations.

ROLES AND RESPONSIBILITIES: It is the responsibility of compliance officers (COs) to conduct complaint investigations and compliance evaluations related to transgender status and gender identity in accordance with this directive.

POLICY: In accordance with Macy v. Holder and tlle Title VII case law on which it is based, OFCCP continues to fully investigate and seek to remedy instances of sex discrimination that occur because ofan employee’s gender identity or transgender status. OFCCP continues to accept and investigate individual and systemic complaints alleging sex discrimination against trans gender employees. In the case of individual allegations of gender identity discrimination, and pursuant to the Memorandum of Understanding between EEOC and OFCCP, OFCCP will request that it initially retain such complaints to ensure effective enforcement of this Directive. OFCCP continues to seek to remedy any findings of sex discrimination against transgender employees that are discovered by OFCCP compliance officers during scheduled compliance evaluations of federal contractors or subcontractors. When investigating whether a federal contractor or subcontractor discriminated against an employee because of his or her gender identity, the agency continues to adhere to the existing Title VII framework for proving sex discrimination, as outlined in the FCCM.

ATTACHMENTS: None.

Patricia A. Shiu
Director
Office of Federal Contract Compliance Programs

FTA Environmental Justice Training Course Now Available (August 19, 2014)

Thursday, August 21st, 2014

NTI will be holding the Environmental Justice training course on September 29-30, 2014, held in Los Angeles, CA.

Development of this training is sponsored by FTA’s Office of Planning and Environment in cooperation with the National Transit Institute. The training is intended to serve as guidance for practitioners, reviewers, and grantees on effective ways for integrating the consideration of Environmental Justice impacts throughout the transportation planning and project development / NEPA processes.

This training is designed to meet the needs of our grantees, while satisfying the requirements of Executive Order 12898 and U.S. DOT Order 5610.2(a) on Environmental Justice. The pilot is strictly limited to State DOT staff, RPO/MPO staff, and transit agency/provider staff.

If interested in the course, please sign up at: http://ntionline.com/courses/courseinfo.php?id=272