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Archive for December, 2015

Justice Department’s Office of Special Counsel: Immigration-Related Unfair Labor Practices (Dec. 22, 2015)

Sunday, December 27th, 2015

The following is an excerpt from an OSC advisory letter issued on December 22, 2015. For the complete text of this letter, and to review OSC’s library of technical assistance letters, go to http://www.justice.gov/crt/osc-technical-assistance-letters.

This is in response to your letter of November 2, 2015 to the Office of Special Counsel for Immigration-Related Unfair Employment Practices (“OSC” or “Office”). In your letter, you pose several questions regarding whether certain employer practices violate the Immigration and Nationality Act’s (“INA’s”) prohibition against citizenship status discrimination. Specifically, you ask whether an employer may, consistent with the anti-discrimination provision of the INA, terminate U.S. workers and rely on contract workers with temporary work visas to perform the work previously done by the terminated U.S. workers.

OSC cannot provide an advisory opinion on any set of facts involving a particular individual or entity. However, we can provide some general guidelines regarding employer compliance with the INA’s anti-discrimination provision. The anti-discrimination provision prohibits the following types of employment-related conduct: (1) national origin, citizenship, or immigration status discrimination in hiring, firing, or recruiting for a fee; (2) unfair documentary practices during the employment eligibility verification (Form I-9 and E-Verify) process (“document abuse”), which includes requesting more or different documents than required for employment eligibility verification because of an individual’s citizenship, immigration status, or national origin; and (3) retaliation for filing a charge, assisting in an investigation, or asserting rights under the anti-discrimination provision. 8 U.S.C. § 1324b. For more information about OSC, please visit our website at: http://www.justice.gov/crt/about/osc.

Your letter asks several questions about the appropriate legal framework (and prima facie burdens) for analyzing a citizenship status discrimination claim under the anti-discrimination provision of the INA, 8 U.S.C. § 1324b(a)(1)(B). Citizenship status discrimination occurs when protected individuals are denied or deprived of employment because of their real or perceived immigration or citizenship status. U.S. citizens and nationals, refugees, asylees, and recent lawful permanent residents are protected from citizenship status discrimination under the INA.

The INA grants OSC jurisdiction over citizenship status discrimination claims involving employers with four or more employees.

The elements of a prima facie case of citizenship discrimination under 8 U.S.C. § 1324b(a)(1)(B) depend on whether the alleged discrimination is an individual act or a pattern or practice of discrimination. The prima facie burdens for individual and pattern or practice cases involving intentional discrimination are set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), and International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977), respectively. Further, in determining whether a violation has occurred, the Office of the Chief Administrative Hearing Officer (“OCAHO”), the adjudicative body that hears cases arising under the INA’s anti-discrimination provision, looks to relevant case law of the federal circuit in which the claim arises.

Your letter also asks whether a violation of the anti-discrimination provision of the INA can be established where an employer replaces a protected employee with a non-protected contract employee provided by a third party company, rather than directly hiring a replacement worker from outside of the protected class. Except in very narrow circumstances, an employer violates the anti-discrimination provision if it terminates workers or hires their replacements because of citizenship or immigration status. This is true regardless of whether the employer takes the discriminatory employment actions itself through direct hiring, or contracts, as a joint employer, with an outside agency to implement its discriminatory staffing plan. Whether an employer has, in fact, violated the anti-discrimination provision through its use of contract workers will depend upon the facts of each case, including (1) whether there is evidence of intentional discrimination in the selection of employees for discharge or rehire, (2) the
circumstances surrounding the selection of the third party staffing contractor, and (3) the extent to which the original employer could be considered a joint employer of the contract workers. In addition, nothing prevents the filing of a charge against the contractor for potential citizenship status discrimination, or prevents OSC from independently investigating the contractor for potential discrimination if OSC receives information indicating a possible violation.

Your letter also seeks guidance on the issue of discriminatory intent under the antidiscrimination provision. In contrast to several anti-discrimination laws that prohibit neutral policies that impose a disparate impact on a protected class, the INA’s anti-discrimination provision only prohibits intentional discrimination. This means that to engage in unlawful citizenship status discrimination, an employer must have acted “because of” citizenship or immigration status. 8 U.S.C. § 1324b(a)(1)(B). It is important to note that intentional discrimination does not require animus or hostility toward the protected class member. Determining whether a party has engaged in intentional discrimination will depend upon the facts of each case.

Some examples of OSC’s enforcement efforts to stop unlawful employer preferences for temporary visa holders can be found on OSC’s website. See, e.g., Settlement Agreement with Autobuses Ejecutivos d/b/a Omnibus Express, (resolving OCAHO Case no. 13B0094), and press release; Settlement Agreement with IBM, and press release; Settlement Agreement with Iflowsoft LLC, and press release; Settlement Agreement with iGate/Mastech, Inc., and press
release; see also United States v. Jerry Estopy and Manuel Bortoni, d/b/a Estopy Farms, 11 OCAHO no. 1252 (2015); United States v. Jerry Estopy and Manuel Bortoni, d/b/a Estopy Farms, 11 OCAHO no. 1256 (2015).

We hope that this information is helpful.

Office of Disability Employment Policy Newsletter (Dec. 18, 2015)

Sunday, December 20th, 2015

Advisory Committee on Increasing Competitive Integrated Employment for Individuals with Disabilities to Meet January 27-28, 2016

The Advisory Committee on Increasing Competitive Integrated Employment for Individuals with Disabilities (the Committee) will hold its seventh meeting on January 27-28, 2016 via webinar. The meeting will be open to the public and will take place each day from 1:00-5:00 PM EST. During the meeting, the Committee’s four subcommittees will report to the whole Committee on their work since the submission of the Interim Report and their areas of focus for the Final Report. There will be a public comment period on January 27, 3:30-4:30 PM EST. Instructions on submitting comments can be found in the Federal Register Notice. Members of the public wishing to participate in the webinar must register by January 15, 2016.

Workforce Recruitment Program Launches 2016 Database

The 2016 Workforce Recruitment Program (WRP) database was launched on December 15, 2015. Sponsored by the U.S. Department of Labor (DOL) in cooperation with the U.S. Department of Defense (DoD), the WRP is the premier resource of college students and recent graduates with disabilities, from over 300 campuses nationwide, who are seeking summer or permanent employment in federal agencies and private companies worldwide. Anyone with a .gov or .mil email address can access the WRP database directly by signing up as an employer at www.wrp.gov. Every candidate is Schedule A eligible, and the database is searchable so employers can find job candidates with the specific skills they require. Employers in the private and non-profit sectors can gain access to the WRP through the Employer Assistance and Resource Network (EARN). DOL Deputy Secretary Chris Lu penned a blog, “Diversify Your Workforce,” about the using the WRP as a key tool to meet disability inclusion goals.

Employment First Technical Briefs Now Available from LEAD Center

The Office of Disability Employment Policy and the LEAD Center have released three Employment First Technical Briefs for anyone working to implement Employment First in their state, region, or agency. Technical Brief #1: “Connecting the Dots: Using Federal Policy to Promote Employment First Systems-Change Efforts,” provides a robust summary and overview of public policy, regulations, rules, and informational bulletins that support employment outcomes and employment first for youth and adults with disabilities. Technical Brief #2: “Federal Legal Framework that Supports Competitive, Integrated Employment Outcomes of Youth and Adults with Significant Disabilities,” highlights various legal actions by federal enforcement agencies that have significant implications for how states prioritize and deliver services for individuals with disabilities. Technical Brief #3: “Criteria for Performance Excellence in Employment First State Systems Change & Provider Transformation,” provides guidance to states that are involved in systems change efforts aimed at improving competitive, integrated employment outcomes of youth and adults with disabilities.

PEAT Publishes December Newsletter

The ODEP-funded Partnership on Employment & Accessible Technology (PEAT) has issued its December newsletter which features a preview of PEAT’s role at the International Technology and Persons with Disabilities Conference (CSUN), as well as new guest blog posts by accessible technology thought leaders Denis Boudreau of Simply Accessible and Shawn Henry of the World Wide Web Consortium. The issue also promotes two upcoming PEAT Talks webinars on topics including “Accessibility and the Seven Principles of Universal Design” and “Raising the Bar on Accessibility.”

National Disability Rights Network and U.S. Department of Labor Enter Agreement that Assists Workers with Disabilities

The National Disability Rights Network (NDRN) has formed an agreement with the Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL). The agreement concerns Section 14(c) of the Fair Labor Standards Act which permits employers to pay wages less than the federal minimum wage, after receipt of a certificate from the DOL, to individuals whose earning or productive capacity is impacted by a physical or mental disability for the work that is to be performed. Ensuring proper implementation, oversight, and enforcement of the section 14(c) subminimum wage program is a key component to protecting the rights and preventing the exploitation of workers with disabilities. The agreement demonstrates the commitment of the WHD and NDRN to protect these rights.

Bob Williams to Join Administration for Community Living as Deputy Commissioner, Administration on Disabilities, and Director, Independent Living Administration

In January 2016, Bob Williams will join the Administration for Community Living as Deputy Commissioner, Administration on Disabilities, and Director, Independent Living Administration. Currently, he is the senior advisor to the deputy commissioner for retirement and disability policy at the Social Security Administration and a key leader of several interagency initiatives to create greater opportunities in career paths, employment, and economic mobility for people with significant disabilities.

Occupational Safety & Health Administration Seeks Comments on Preventing Retaliation Against Whistleblowers

The U.S. Department of Labor’s Occupational Safety & Health Administration (OSHA) is seeking public comments on a draft document, “Protecting Whistleblowers: Recommended Practices for Employers for Preventing and Addressing Retaliation,” intended to provide guidance to employers on preventing retaliation against whistleblowers. Comments will be accepted until January 19, 2016 and will be considered by OSHA when preparing the final document for issuance.

U.S. Departments of Education and Health and Human Services Request Comments on Policy Statement on Family Engagement Practices

The U.S. Departments of Education (ED) and Health and Human Services (HHS) are requesting comments on a draft policy statement on the implementation of effective family engagement practices from the early years to the early grades. It is the Departments’ position that when families and the institutions where children learn partner in meaningful ways, children have more positive attitudes toward school, stay in school longer, have better attendance, and experience more school success. To further this position, the Departments will release a policy statement on the implementation of effective family engagement practices in early childhood and learning programs. Comments are requested on the draft statement to inform the final document through December 21, 2015 by emailing comments to ECD@acf.hhs.gov.

American Association for Access, Equity and Diversity is Moving (Dec. 2015)

Wednesday, December 16th, 2015

AAAED is moving soon….
We are moving around the corner, closer to the White House and the Executive Office buildings and closer to Starbucks!

Our telephone numbers, email addresses and web information will remain the same. Please update your records accordingly… and thanks!

Sincerely,

Shirley J. Wilcher
American Association for Access, Equity and Diversity

1701 Pennsylvania Ave NW, Suite 206
Washington, DC 20006-5801

Telephone/web/email remain the same:
202-349-9855
800-252-8952
www.aaaed.org
aaaaexecdir@gmail.com

U.S. Department of Education Reports Record 82% High School Graduation Rate (Dec. 15, 2015)

Wednesday, December 16th, 2015

“The hard work of teachers, administrators, students and their families has made these gains possible and as a result many more students will have a better chance of going to college, getting a good job, owning their own home, and supporting a family. We can take pride as a nation in knowing that we’re seeing promising gains, including for students of color.”

- Secretary Arne Duncan

America’s students are graduating from high school at a higher rate than ever before, reaching 82 percent in 2013-14!

What’s more, the gap between white students and black and Hispanic students receiving high school diplomas continues to narrow, and traditionally underserved populations like English language learners and students with disabilities continue to make gains, the data show.

For more information, go to www.ed.gov.

Small Business & Disability Employment: Steps to Success (Dec. 14, 2015)

Wednesday, December 16th, 2015

When it comes to doing business, a diverse team means more perspectives on how to confront challenges and achieve success. Although the term “diversity” is typically used in reference to differences in race, gender or ethnicity, it actually encompasses an infinite range of experiences — including disability.

When it comes to ensuring a workplace inclusive of the skills and talents of people with disabilities, however, not all businesses may know where to start. Now, Small Business & Disability Employment: Steps to Success provides a path, outlining various effective employment strategies and ways different small businesses across the nation have put them into action. For those involved in business associations, this online tool also describes strategies for engaging member organizations in the issue and raising awareness in their communities.

The Steps to Success were developed based on information gleaned from the Add Us In initiative sponsored by the U.S. Department of Labor’s Office of Disability Employment Policy. Through this program, eight consortia across the U.S. piloted models for increasing employment opportunities for people with disabilities within small businesses, especially those in underrepresented and historically excluded communities. The need for such models was clear; despite being the nation’s major drivers of job growth, small businesses employ people with disabilities at a much lower rate than large businesses.

Each Add Us In consortium was required to include certain partners, among them business associations such as chambers of commerce or Business Leadership Networks. Due in large part to the inclusion of these partners, Add Us In brought to light many innovative and sustainable strategies that can be replicated by small businesses and business associations nationwide — in other words, the Steps to Success.

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

Office of Disability Employment Policy Newsletter (Dec. 11, 2015)

Friday, December 11th, 2015

Enroll for Health Care Coverage Now – Deadline December 15

Only a few days remain before the December 15 deadline to enroll in health care coverage for 2016 through HealthCare.gov. Remember that insurers cannot refuse to sell you a plan or charge you more just because you have a preexisting condition such as HIV, cancer, or any other disability. If you have questions about signing up or want to talk through your options with a trained professional, free help is just a call or click away. Representatives at the Call Center are available 24 hours a day, every day at 1-800-318-2596. Call Center representatives can answer questions and help you enroll in coverage over the phone. Free, confidential, in-person help is also available at enrollment sites and events in communities across the nation. Visit LocalHelp.HealthCare.gov to search for local help in your neighborhood. Follow @HealthCareGov and @HHSgov on Twitter, and HealthCare.gov and HHS on Facebook.

Deputy Assistant Secretary Sheehy Addresses Employment First Orientation Meeting

On December 9, Deputy Assistant Secretary of Labor for Disability Employment Policy Jennifer Sheehy addressed more than 60 Core State Coordinators at the Office of Disability Employment Policy’s Employment First State Leadership Mentoring Program annual orientation meeting at the Department of Labor in Washington, DC. The EFSLMP fosters the development of a national and state Employment First strategic policy framework. During the all-day meeting, attendees reflected on accomplishments and brainstormed on further advancing the objectives of the Employment First movement.

EARN Releases Latest Newsletter

The Employer Assistance and Resource Network (EARN) has issued its December 9 newsletter, featuring information on inclusive party planning, an apprenticeship policy brief, upcoming web events, and more.

GSA Updates Section 508 Guidance Documents

The General Services Administration (GSA) Section 508 Guidance Documents have been updated to reflect a newly modified website. This site, Section508.gov, provides information and links to guidance, resources, tools, and blog articles focusing on helping the Federal Government implement the requirements of Section 508. Using this website, federal employees and the public can access resources for understanding and implementing the requirements of Section 508 as they apply to the development, procurement, maintenance, or use of Information and Communication Technology (ICT) products and services. Resources on the site include helpful tips for agencies to improve compliance with Section 508, information on Section 508 compliance in the basic federal acquisition process, things to do and things to avoid when reviewing IT solicitations, guidance on how to resolve issues identified in a solicitation review, and more.

FEMA’s Office of Disability Integration and Coordination Is Accepting Job Applications – Deadline December 18

The Federal Emergency Management Agency (FEMA) Office of Disability Integration and Coordination (ODIC) is now accepting applications for several full-time vacancies at FEMA headquarters and across the U.S. ODIC’s mission is to lead and achieve whole community emergency management, inclusive of individuals with disabilities, and others with access and functional needs. The office provides guidance, tools, methods, programs, and strategies for physical, program, and effective communication access before, during, and after disasters. The job announcements, advertised through USAJobs.gov, will close on December 18 or the date the 200th application is received, whichever comes first. If you have any questions, please contact Mia Burke at mia.burke@fema.dhs.gov or by phone at 202-212-4693.

2016 AAPD Washington, DC Summer Internship Program Application Now Available

The American Association of People with Disabilities (AAPD) Summer Internship Program places college students, graduate students, law students, and recent graduates with all types of disabilities in paid 10-week summer internships in Congressional offices, federal agencies, non-profits, and for-profit organizations in the Washington, DC area. Each intern is matched with a mentor who will assist them their career goals. AAPD provides the interns with a stipend, transportation to and from Washington, DC, and fully-accessible housing. At the beginning of the summer, interns participate in a 1-week orientation session to learn about AAPD as well as the disability rights movement, meet the other interns, and participate in a variety of engaging workshops and events. As part of the AAPD network, interns also receive opportunities to attend events on Capitol Hill, conferences, community events, happy hours, and more. Applications are due by 5:00 PM EST on Friday, January 15, 2016.

US Labor Department alleges hiring discrimination by Indiana federal contractor that manufactures portable military meals: Complaint seeks back wages, 27 job offers for male victims (Dec. 9, 2015)

Friday, December 11th, 2015

EVANSVILLE, Ind. – A federal contractor that manufactures portable meals for the U.S. Department of Defense and other government agencies discriminated systematically against qualified men seeking entry-level production jobs, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs alleges in a lawsuit filed today.

An OFCCP investigation of AmeriQual Group, LLC found the Evansville-based company segregated its production line workforce. The company based work assignments on gender stereotypes: putting women in “light duty” jobs and having men do more labor intensive work. Through interviews with company officials and employees, OFCCP investigators learned women were selected for table inspector jobs, where a majority of the hiring occurred, while men were relegated generally to loader and utility positions, where less hiring took place.

In its suit, the department seeks back wages and job offers for 27 men who applied for jobs at AmeriQual Group. The company produces, packages, assembles and distributes shelf-stable food products to the U.S. Department of Defense, other federal agencies and major food companies. Its products include “Meals Ready to Eat,” commonly known as MREs, used by the armed services. Since January 2010, the company has held federal government contracts worth more than $700 million.

“Qualifications for a job are tied to skills and experience, not gender. Stereotypical notions of what jobs are appropriate for women are outdated, and perpetuate discrimination,” said OFCCP Director Patricia A. Shiu. “We expect that employers funded by taxpayer dollars to provide meals to our Armed Forces will exemplify the same spirit of equal employment opportunity and diversity that exists in our military.”

OFCCP found the company’s discriminatory practices violated Executive Order 11246 and affected 237 male applicants. Although there was a significantly larger male applicant pool, AmeriQual disproportionately selected women over men.

The investigation also found that AmeriQual attempted to create after-the-fact justifications for failing to hire male applicants by making notations on “sticky notes” and other documents and then adding them to files. Those notations did not appear on the original documents that the company provided at the beginning of the investigation. AmeriQual also failed to provide specific hiring records during the course of the investigation.

In addition to Executive Order 11246, OFCCP enforces Section 503 of the Rehabilitation Act of 1973 and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974. As amended, these three laws make it illegal for contractors and subcontractors doing business with the federal government to discriminate in employment on the basis of race, color, religion, sex, sexual orientation, gender identity, national origin, disability or status as a protected veteran. For more information, please call OFCCP’s toll-free helpline at 800-397-6251 or visit http://www.dol.gov/ofccp/.

Federal Transit Authority: Transit-Oriented Development Technical Assistance Webinar Dec. 10, 2015

Tuesday, December 8th, 2015

Learn more about FTA’s new transit-oriented development (TOD) initiative to encourage development near transit systems that boosts the local economy; provides easy access to jobs and services; and creates compact, mixed-use, walkable communities at a webinar to be held 1 p.m. EDT Thursday, December 10.

FTA has engaged Smart Growth America (SGA) to run the technical assistance and provide a variety of planning and analysis tools. Along with developing best practices and profiles, SGA will work on site with community leaders to offer in-depth technical assistance tailored to local needs. The free technical assistance, which will be offered through a competitive process, will include planning for and managing economic development near transit through effective zoning and land use as well as expert advice on preserving affordable housing and securing advantageous commercial development, among other challenges. Learn more about the assistance and the application process during our webinar. The online event is free but registration is required.

Office of Disability Employment Policy Newsletter (Dec. 5, 2015)

Saturday, December 5th, 2015

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

United Nations Working Group on Issues of Discrimination against Women in Law and Practice Visits Department of Labor

Representatives from the U.S. Department of Labor and other federal agencies met with the United Nations Working Group on Issues of Discrimination against Women in Law and Practice on November 30 in Washington, DC, to focus on preventing and combatting discrimination against women. The economic, family, and social issues affecting women in America were discussed, as well as the constitutional and legislative initiatives protecting women’s rights, promoting gender equality, and eliminating discriminatory practices, including discrimination against women with disabilities. Among the participating agencies was the Office of Disability Employment Policy.

Job Accommodation Network Posts Schedules for Monthly and Federal Webcast Series

The Job Accommodation Network (JAN) presents free monthly Webcasts on a variety of topics, as well as a three-month Federal Employer Winter Webcast Series. The monthly webcasts are an opportunity to provide live, in-service training for management and employees on disability etiquette, assistive technologies, management techniques, the latest on accommodations, and the employment provisions of the Americans with Disabilities Act. These Webcasts begin at 2:00 PM EST and are one hour long. The Federal Employer Winter Webcast Series, which will run in January, February, and March 2016, focuses on topics of special interest to federal employers. Federal Webcasts begin at 2:00 PM EST and are 90 minutes long.

New EARN Policy Brief Translates NPRM on Inclusive Apprenticeships

The U.S. Department of Labor recently issued a Notice of Proposed Rulemaking (NPRM) on increasing the representation of people with disabilities and other historically under-represented groups in apprenticeship programs. To assist employers and other stakeholders in understanding the proposed changes, the Employer Assistance and Resource Network (EARN) prepared a policy brief synopsizing the key provisions in the NPRM applicable to all protected groups. This policy brief also provides a summary of the NPRM from a disability perspective. Employers are encouraged to review the policy brief and comment on the NPRM by January 5, 2016.

LEAD Center Publishes Policy Update — Employment, Health Care and Disability

The LEAD Center’s Policy Update – Employment, Health Care and Disability is a monthly update focusing on the intersection of disability, employment, and health care policy. It provides policymakers, disability service professionals, individuals with disabilities, and their families with 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 November/December 2015 update features stories on Open Enrollment for 2016 coverage through the Health Insurance Marketplace, an FY2016 budget deal that would prevent double-digit premium increases for many Medicaid and SSDI beneficiaries, an EEOC Notice of Proposed Rule Making that would amend Title II of the Genetic Information Non-discrimination Act, and more.

Business Strategies that Work: Accompanying Research and Resource Compendium

A supplement to “Business Strategies that Work: A Framework for Disability Inclusion”, this compendium provides a review of recent literature (2011-2014) regarding the recruitment, hiring, retention, and advancement of people with disabilities and a selective list of technical assistance materials to aid employers in implementing or enhancing disability inclusion initiatives.

New Publications on Harassment in the Workplace Released by the Job Accommodation Network

The Job Accommodation Network (JAN) has released two new Effective Accommodation Practices Series publications on harassment in the workplace. Workplace harassment is defined as unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability, or genetic information. The JAN publication “Employees Experiencing Workplace Harassment” provides advice and resources for employees who feel they have been harassed. “Addressing Workplace Harassment: Employer’s Responsibilities” focuses on steps that employers should take when harassment issues arise in the workplace.

“Getting to Work” Training Curriculum for HIV/AIDS Service Providers

“Getting to Work: A Training Curriculum for HIV/AIDS Service Providers and Housing Providers” is a multi-media curriculum that educates service providers about proven strategies for incorporating employment into the HIV/AIDS service menu. This three-module online training program was developed collaboratively by the Office of Disability Employment Policy and the U.S. Department of Housing and Urban Development’s Office of HIV/AIDS Housing. It is being highlighted in honor of World AIDS Day which was observed on December 1.

Latest EARN Newsletter Now Available

The Employer Assistance and Resource Network (EARN) has issued its November 25 newsletter, featuring information on the “Small Business & Disability Employment: Steps to Success” toolkit and webinar, the “Getting Down to Business” pilot program for business associations, the “At Your Service” customer service training video, and more.

International Day of Persons with Disabilities: Luis’ Long Road to the 7th Grade

In observance of the International Day of Persons with Disabilities (IDPD) on December 3, Jessica Creighton, International Relations Officer with the U.S. Department of Labor’s Bureau of International Labor Affairs (ILAB), posted a blog that tells the story of Luis, a student with autism who lives in Ecuador, and his journey back to the classroom. ILAB funds a project called EducaFuturo, which delivers targeted, direct services to vulnerable communities in Panama and Ecuador and serves students with disabilities like Luis who otherwise might fall into child labor. Another ILAB-funded project in Panama and Ecuador takes the approach of working with government agencies to weave disability issues into child labor eradication efforts. “At the U.S. Department of Labor’s Bureau of International Labor Affairs, we recognize that ending child labor means addressing issues like disability,” noted Creighton.

EEOC Issues Publications on the Rights of Job Applicants and Employees Who Have HIV Infection

The U.S. Equal Employment Opportunity Commission (EEOC) has issued two documents addressing workplace rights for individuals with HIV infection under the Americans with Disabilities Act of 1990 (ADA), including the right to be free from employment discrimination and harassment, and the right to reasonable accommodations in the workplace. The publication “Living with HIV Infection: Your Legal Rights in the Workplace Under the ADA” explains that applicants and employees are protected from employment discrimination and harassment based on HIV infection, and that individuals with HIV infection have a right to reasonable accommodations at work. The document “Helping Patients with HIV Infection Who Need Accommodations at Work” informs doctors that patients with HIV infection may be able to get reasonable accommodations that help them to stay productive and employed, and provides them with instructions on how to support requests for accommodation with medical documentation.

Computer/Electronic Accommodations Program Mobile App Provides Assistive Technology Resources

The Department of Defense’s Computer/Electronic Accommodations Program (CAP) has released a free app now available in the iTunes App Store and Google Play. The app provides information about the services and resources that CAP offers to federal employees and service members who need assistive technology and other accommodations to perform their jobs successfully. Features include news and tips on the latest assistive technology, the ability to download CAP event presentations and materials, videos to learn about assistive technology, easy ways to contact CAP, and more. For those who are not federal employees or service members, the CAP app is a valuable starting place to learn more about assistive technology for use on the job.

Jurisdiction to Investigate Discrimination Complaints: When It Exists and Why It Matters by Seena Foster

Tuesday, December 1st, 2015

A discrimination complaint is filed when someone feels that s/he has been unfairly or unjustly treated as compared to someone else. Sometimes, the person believes that a process or criteria has been inefficiently or inconsistently applied to him or her as compared to another person. Discrimination complaints can arise in the workplace, or in the delivery of federally-assisted programs and activities to the public.

In this article, we are going to focus on understanding the important concept of jurisdiction over complaints of discrimination in federally-assisted programs and activities. An example of a discrimination complaint in federally-assisted programs and activities is where Jane alleges she was denied admittance to a certification apprenticeship program funded by the U.S. Department of Education because of her gender. Prior to launching an investigation of Jane’s complaint, you first must have jurisdiction.

Why jurisdiction matters?

Jurisdiction to investigate a discrimination complaint means you have authority to look into the complaint and resolve it. Importantly, you will not have jurisdiction (authority) to investigate every complaint and, sometimes, “dual jurisdiction” exists; that is, you share jurisdiction over the complaint with another agency or entity.

When does jurisdiction exist?

There are certain requirements for establishing jurisdiction that apply across-the-board in all federally-assisted programs and activities. The complaint must:

• Be in writing
• Be signed by the aggrieved individual or his or her authorized representative
• Set forth sufficient contact information for the complainant to establish a line of communication, such as email, mail, or phone number
• Identify a wrong-doer, also known as a “respondent”
• Be filed within 180 days of the date of the alleged adverse action
• Allege discrimination on covered “basis,” such as race, color, national origin, disability, age, and the like
• Have “apparent merit,” which means that the complaint draws a connection between the adverse action and covered basis

Failure of the complainant to satisfy each of the foregoing requirements, after being provided notice of any deficiencies and afforded time to correct them, will result in dismissal of the complaint for lack of jurisdiction and you will not conduct an investigation. However, even where you conclude you do not have jurisdiction to investigate, you may elect to monitor a particular program or activity to ensure it is operating in compliance with the nondiscrimination requirements of applicable federal civil rights laws.

If jurisdiction exists, then you will investigate the complaint to determine whether prohibited discrimination occurred and, if so, the corrective actions or sanctions that will be imposed.

A special note about “basis”

• Certain civil rights laws apply across-the-board

Prohibited bases of discrimination in federally-assisted programs and activities are established by statute. For example, Title VI of the Civil Rights Act of 1964 (Title VI) provides that race, color, and national origin are illegal bases of discrimination. Disability is another prohibited basis of discrimination pursuant to Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, and the Americans with Disabilities Act Amendments Act of 2008. The Age Discrimination Act of 1975 prohibits discrimination on the basis of age—any age.

• Additional laws may apply

While the foregoing statutes set forth prohibited bases of discrimination across the board in federally-assisted programs and activities, there are certain statutes delineating additional prohibited bases of discrimination, which are applicable to specific types of programs and activities. For instance, Title IX of the Education Amendments Act of 1972 (Title IX) prohibits discrimination on the basis of sex or gender in federally-assisted educational programs and activities. And, one of the most expansive civil rights laws applies to certain workforce development programs and activities. Notably, the Workforce Innovation and Opportunity Act (WIOA) of 2014 prohibits discrimination on the previously-mentioned bases of race, color, national origin, age, disability, and gender. It also contains the following additional prohibited bases of discrimination: religion, political affiliation or belief, citizenship, and WIOA-participant status.

So, when determining whether jurisdiction exists, you first must know the federal civil rights laws that apply to your programs and activities. These laws will, in turn, inform you of the “bases” of discrimination prohibited in the programs and activities. If a complaint alleges discrimination on a basis not set forth in these laws, then you will not have jurisdiction to investigate the complaint. Rather, you may find that the complaint should be referred to another agency or entity, or that a particular type of discrimination is not prohibited by applicable civil rights laws.

For example, the prohibited (covered) bases if discrimination in programs and activities funded using U.S. Department of Education (Education) dollars are race, color, national origin, disability, age, and gender. So, if Education receives a complaint in an Education-funded program alleging discrimination on the basis of political affiliation, Education will not have jurisdiction to investigate the complaint. However, if this same program was funded under WIOA Title I, then political affiliation is a prohibited basis of discrimination under WIOA and, provided all other jurisdictional requirements are met, the WIOA Equal Opportunity Officer would have jurisdiction to investigate the complaint.

What happens when there is “dual” jurisdiction?

Under certain circumstances, you may find that there is “dual jurisdiction” over a complaint. Dual jurisdiction complaints are governed by the federal regulations that apply to operation of the programs and activities at issue. Here, you will need to understand who has primary authority to investigate the complaint, which not only will save time and resources, but also will promote consistent decision-making.

For purposes of this section, we’ll use workforce development programs and activities covered by the nondiscrimination requirements of WIOA Section 188 as the source for our examples, and we’ll assume you are the WIOA Equal Opportunity Officer who receives the discrimination complaint. The regulations addressing dual jurisdiction in these complaints is found at 29 C.F.R. § 37.85.

• Age

Let’s say that, through an American Job Network center, John alleges he has been denied entry to an apprenticeship program on the basis of his age. In determining whether you have jurisdiction to investigate this complaint, you see that “age” is one of the covered bases of discrimination under WIOA Section 188. So, assuming all of the other foregoing requirements are met, you would have jurisdiction (authority) to investigate the complaint.

However, 29 C.F.R. § 37.85 requires that this complaint be processed according to the U.S. Department of Health and Human Services (HHS) regulations at 45 C.F.R. § 90.43(c)(3). This regulatory subsection, in turn, requires that you forward the matter for mediation to an agency designated by the HHS Secretary within 45 days of receipt and, if mediation is unsuccessful, then the matter would be returned to you for investigation.

• Employment-related discrimination

Here, let’s say a staff member in a WIOA-funded position files an employment-related discrimination complaint with you. If all other jurisdictional requirements are met, you would have jurisdiction to investigate the complaint alongside the U.S. Equal Employment Opportunity Commission (EEOC). For this dual jurisdiction complaint, under 29 C.F.R. § 37.85, you refer the complaint to the EEOC if: (1) the only allegation in the complaint involves individual employment discrimination; and (2) the basis of the complaint (i.e. race, color, national origin, and the like) is covered by laws enforced by the EEOC. Currently, laws enforced by the EEOC are as follows:

Title VII of the Civil Rights Act of 1964 (Title VII), which makes it illegal to discriminate against a person on the basis of race, color, religion, sex, or national origin

The Pregnancy Discrimination Act, which amended Title VII to make it illegal to discriminate against a woman because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth

The Equal Pay Act of 1963, which makes it illegal to pay different wages to men and women if they perform equal work in the same workplace

Title I of the Americans with Disabilities Act of 1990 (ADA), which makes it illegal to discriminate against a person with a disability in private companies and state and local governments

The Age Discrimination in Employment Act of 1967 (ADEA), which protects people who are age 40 or older from discrimination because of age

Title II of The Genetic Information Nondiscrimination Act of 2008 (GINA), which makes it illegal to discriminate against employees or applicants because of genetic information

If your complaint alleges more than employment discrimination, or the basis of the alleged discrimination is not covered by the EEOC, you would keep jurisdiction of the complaint and conduct the investigation.

• Partners in the one-stop delivery system

Dual jurisdiction also may exist where a complainant alleges discrimination in the delivery of a program or activity that is financially-assisted by a Federal grant-making agency other than the Department of Labor, but which participates as a partner in the one-stop delivery system.
Where the alleged basis of discrimination is prohibited both by WIOA Section 188 and by the other Federal grant-making agency, then dual jurisdiction exists. Here, under 29 C.F.R. § 37.85, you refer the complaint to the Federal grant-making agency for investigation and resolution. Both the complainant and respondent must be notified in writing of the referral.

An example would be allegations that a one-stop career center counsellor denied referral of the complainant to an Education-funded program on the basis of complainant’s gender. Because gender is a prohibited basis of discrimination under WIOA Section 188 as well as by Title IX, which is enforced by Education, there would be dual jurisdiction of the complaint, and it would be referred to Education for investigation and resolution since the program is funded by Education.

On the other hand, if one of the bases of discrimination is prohibited solely by WIOA Section 188, then you have sole jurisdiction (authority) to investigate the complaint, and no referral would be made. The most common bases where you likely would have sole jurisdiction to investigate a complaint are religion, political affiliation, citizenship, or WIOA-participant status.

So, using our previous example, let’s say that the one-stop career center counsellor denied referral of the complainant to an Education-funded program on the basis of complainant’s citizenship. Because citizenship is a prohibited basis of discrimination under WIOA Section 188, but is not a covered basis of discrimination enforced by Education, there is no dual jurisdiction of the complaint, and you would retain the complaint for investigation and resolution.

About Seena Foster

Seena Foster, Principal of Title VI Consulting, assists administrators, equal opportunity professionals, and private sector businesses understand the civil rights laws that apply to their programs, activities, and operations. Her background includes 24 years as Senior Legal Advisor to the Labor Department’s Office of Administrative Law Judges, where she drafted decisions and orders and developed resources and aids promoting consistency and efficiency in several national adjudication programs. In 2012, Ms. Foster received the U.S. Secretary of Labor’s Exceptional Achievement Award “for outstanding leadership and legal guidance in helping the Office of Administrative Law Judges address the major changes in law” stemming from enactment of the Patient Protection and Affordable Care Act.

Ms. Foster also served as a Senior Policy Analyst to the Labor Department’s Civil Rights Center (CRC) where, in 2003, she led a team of specialists to conduct disability-based technical assistance reviews, prepared materials for limited English proficiency compliance reviews, prepared determinations issued by CRC Director Annabelle Lockhart resolving numerous discrimination complaints, and presented at the CRC/NASWA national equal opportunity forum on the Workforce Investment Act Section 188 Disability Checklist. In 2006, Ms. Foster received the Secretary of Labor’s Equal Employment Opportunity Award for her work at the CRC, and, on request by the CRC, Ms. Foster continued to serve as a workshop presenter at subsequent CRC/NASWA equal opportunity conferences conducting workshops on conducting discrimination complaint investigations and writing determinations, and addressing harassment and hostile environment complaints in educational programs and activities.

Currently, Ms. Foster conducts onsite civil rights training for state and local governments as well as private companies focusing on the nondiscriminatory delivery of their programs and activities to the public. Her award-winning book, Civil Rights Investigations under the Workforce Investment Act and other Title VI-Related Laws: From Intake to Final Determination, and her highly popular on-demand webcasts covering compliance and discrimination complaints investigations have been applauded by equal opportunity and compliance professionals for their clarity and content. In addition to multiple state and local training engagements conducted across the country, Ms. Foster also has conducted national level civil rights training for the American Association for Affirmative Action, the U.S. Department of Labor, the National Association of State Workforce Agencies, and at the U.S. Institute for Peace as a panelist at the National Civil Rights Conference hosted by numerous federal civil rights departments and agencies, including the U.S. Department of Justice.

Ms. Foster has a Juris Doctorate from The George Washington University Law School, and she is certified as a mediator through the Defense Equal Opportunity Management Institute. Ms. Foster also is a member of the Human Rights and Discrimination Law committees of the International Bar Association.