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Archive for March, 2016

Promising Practices In Achieving Universal Access and Equal Opportunity: A Section 188 Disability Reference Guide

Sunday, March 27th, 2016

The Section 188 Disability Reference Guide provides updated information and technical assistance that can help American Job Centers and their partners in the workforce development system meet the nondiscrimination and universal access requirements for individuals with disabilities in Section 188 of the Workforce Investment Act. This reference guide includes examples of promising practices that can help promote equal access for individuals with disabilities to the American Job Center (One Stop) system.

View Training and Employment Notice 1-15 (PDF)

View Promising Practices in Achieving Universal Access and Equal Opportunity: A Section 188 Disability Reference Guide (PDF)

To review the guide, go to http://www.dol.gov/oasam/programs/crc/188Guide.htm.

EEOC: Mavis Discount Tire to Pay $2.1 Million to Settle EEOC Class Sex Discrimination Lawsuit (Mar. 25, 2016)

Sunday, March 27th, 2016

Tire Retailer Violated Federal Law by Systemically Refusing to Hire Women in Its Field Locations, Federal Agency Charged

NEW YORK – Mavis Discount Tire, Inc. / Mavis Tire Supply Corp. / Mavis Tire NY, Inc. / Cole Muffler, Inc., a large tire retailer based in the New York metropolitan area, will pay $2.1 million and provide other relief to settle a class sex discrimination lawsuit by the U.S. Equal Employment Oppor­tunity Commission (EEOC), the agency announced today.

According to EEOC’s lawsuit, Mavis engaged in a pattern or practice of sex discrimination by refusing to hire women for its field positions – managers, assistant managers, mechanics, and tire technicians – in the company’s over 140 stores throughout Connecticut, Massachusetts, New York, and Pennsylvania. EEOC also charged that Mavis failed to make, keep, and preserve employment records.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964. EEOC filed its lawsuit in U.S. District Court for the Southern District of New York (Case No. 12-CV-00741) after first attempting to reach a pre-litigation settlement through its conciliation process.

The consent decree settling the suit, entered by Judge Katherine P. Failla on March 24, 2016, provides that Mavis will pay $2.1 million, to be divided among 46 aggrieved women. Also, the decree provides for extensive safeguards to prevent future discrimination by implementing hiring goals for women, a comprehensive recruitment and hiring protocol, and anti-discrimination policies and training.

“We are pleased that as a result of this settlement, Mavis will be making concerted, verifiable efforts to hire more women at all of its field locations,” EEOC Acting Regional Attorney Raechel Adams said.

EEOC New York District Director Kevin Berry added, “This case exemplifies EEOC’s commitment to remedying systemic bias. EEOC found that Mavis for years had maintained a pattern of not hiring women at its field locations. This settlement ensures that qualified women will continue to be hired in the future – and advances EEOC’s first priority in its Strategic Enforcement Plan, eliminating barriers in recruitment and hiring.”

EEOC General Counsel David Lopez said, “We are pleased that during Women’s History Month, we were able to announce this settlement, which is one in a series of EEOC cases nationally to address discriminatory barriers for women. Moving forward, qualified female applicants will be judged by their talents and skill and not simply passed over because of their gender – and women who were denied positions will be compensated.”

The elimination of recruiting and hiring practices that discriminate against women, racial, ethnic and religious groups, older workers, and people with disabilities is one of six national priorities identified by EEOC’s Strategic Enforcement Plan (SEP).

EEOC’s New York District Office oversees New York, Connecticut, Maine, Vermont, New Hampshire, Massachusetts, Rhode Island, and parts of New Jersey. EEOC enforces federal laws prohibiting employment discrimination. Further information about the agency is available at its website at www.eeoc.gov.

President of Miami-Based Transportation Company Sentenced to 60 Months in Prison for Role in $70 Million Health Care Fraud Scheme (Mar. 25, 2016)

Sunday, March 27th, 2016

The president of a transportation company based in Miami was sentenced today to 60 months in prison for his role in a health care fraud scheme involving three mental health centers that resulted in the submission of approximately $70 million in false and fraudulent claims to Medicare.

Assistant Attorney General Leslie R. Caldwell of the Justice Department’s Criminal Division, U.S. Attorney Wifredo A. Ferrer of the Southern District of Florida and Special Agent in Charge George L. Piro of the FBI’s Miami Division made the announcement.

Damian Mayol, 45, of Miami, was sentenced by U.S. District Judge Ursula Ungaro of the Southern District of Florida, who also ordered Mayol to pay $26,808,841 in restitution and to forfeit the same amount. In January 2016, Mayol was convicted of conspiracy to pay health care kickbacks after a five-day trial.

According to evidence presented at trial, Mayol was the president of Transportation Services Providers Inc. and, along with his co-conspirators, used the company to coordinate the payment of illegal health care kickbacks to recruiters, who in return referred patients to three now-defunct clinics in the Miami area: R&S Community Mental Health Inc. (R&S), St. Theresa Community Mental Health Center Inc. (St. Theresa) and New Day Community Mental Health Center LLC (New Day).

The evidence introduced at trial further established that R&S, St. Theresa and New Day were community mental health centers that purported to provide intensive mental health services to Medicare beneficiaries. On behalf of the recruited beneficiaries, the centers billed Medicare for costly partial hospitalization program (PHP) services that were not medically necessary or not provided to patients, according to trial evidence. Trial evidence demonstrated that patient records, including group therapy session notes, were falsified to support claims for reimbursement from Medicare. Between January 2008 and December 2010, the centers submitted approximately $70 million in false and fraudulent claims to Medicare. Medicare paid approximately $28 million on those claims, the evidence showed.

In December 2015, co-defendants Santiago Borges, Erik Alonso and Cristina Alonso were sentenced to prison terms ranging from 28 months to 120 months on related charges.

The FBI investigated the case, which was brought as part of the Medicare Fraud Strike Force, under the supervision of the Criminal Division’s Fraud Section and the U.S. Attorney’s Office of the Southern District of Florida. Trial Attorneys A. Brendan Stewart and Timothy Loper of the Criminal Division’s Fraud Section prosecuted the case.

Since its inception in March 2007, the Medicare Fraud Strike Force, now operating in nine cities across the country, has charged over 2,300 defendants who collectively have billed the Medicare program for over $7 billion. In addition, the Department of Health and Human Services (HHS) Centers for Medicare & Medicaid Services, working in conjunction with the HHS Office of Inspector General, are taking steps to increase accountability and decrease the presence of fraudulent providers.

To learn more about the Health Care Fraud Prevention and Enforcement Action Team (HEAT), go to www.stopmedicarefraud.gov.

Office of Disability Employment Policy Newsletter (Mar. 18, 2016)

Saturday, March 19th, 2016

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

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

The next meeting of the Advisory Committee on Increasing Competitive Integrated Employment for Individuals with Disabilities (the Committee) will take place on Wednesday, April 27, 2016, and Thursday, April 28, 2016. The meeting will be open to the public on Wednesday, April 27 from 8:30 AM to 5:00 PM EDT. On Thursday, April 28, the meeting will be open to the public from 8:00 AM to 4:00 PM EDT. The meeting will take place at the U.S. Access Board, 1331 F Street NW, Suite 800, Washington, DC 20004-1111. On April 27 and 28, the four subcommittees of the Committee will report out on their work since the last meeting of the Committee. In addition, the entire Committee will discuss recommendations regarding the AbilityOne® program. Also, the Committee will consider recommendations regarding the certificate program under section 14(c) of the Fair Labor Standards Act (FLSA). The whole Committee will also discuss next steps and timelines for the final report. The public comment period of the meeting will take place on April 27 from 2:45 PM to 3:45 PM EDT. Instructions for submitting comments can be found in the Federal Register Notice. The deadline for submitting comments is April 15.

LEAD Center Issues Resources to Use in Reviewing State WIOA Unified or Combined State Plans from a Disability Perspective

The Workforce Innovation and Opportunity Act (WIOA) requires the Governor of each State to submit a Unified or Combined State Plan to the Secretary of the Department of Labor (DOL) by April 1, 2016 that outlines a four-year strategy for the State’s workforce development system to provide services and supports that assist all job-seekers in securing good jobs while providing businesses with skilled workers. States must have approved State Plans in place to receive funding for the six core programs under WIOA. In order to ensure that these Unified or Combined State Plans address the needs of individuals with disabilities, as required by WIOA, the LEAD Center has created two guides that can be used by local and state Workforce Development Boards, disability-related stakeholders, and workforce partners as a tool when reviewing their state’s plan from a disability perspective. Also provided are the LEAD Center’s Review of 10 Unified and Combined WIOA State Plans and a link to a Training and Employment Guidance Letter (TEGL) No. 14-15 published on March 4, 2016 by DOL’s Employment and Training Administration (ETA).

Employment First Policy Established by Governor’s Executive Order in Pennsylvania

Pennsylvania Governor Tom Wolf has signed Executive Order 2016-03 — Establishing “Employment First” Policy and Increasing Competitive Integrated Employment for Pennsylvanians with a Disability. Through its participation as a Core State in ODEP’s Employment First State Leadership Mentoring Program (EFSLMP), the implementation of this policy reflects an outcome of the work in Pennsylvania under its Employment First technical assistance plan and as part of its Vision Quest work in FY2015. As stated in the text of the Executive Order, “Pennsylvania government is actively committed to promoting improved competitive integrated employment outcomes through its involvement as a core state selected by the United States Department of Labor’s Office of Disability Employment Policy’s Employment First State Leadership Mentoring Program.” ODEP congratulates the state of Pennsylvania for its commitment to expanding competitive integrated employment opportunities for Pennsylvanians with disabilities through the establishment of this Employment First policy, and is gratified to have had the opportunity to work with them in this important effort.

Latest EARN Newsletter Now Available

The Employer Assistance and Resource Network on Disability Inclusion (EARN) has issued its March 16 newsletter, featuring information on an EARN policy brief on EEOC’s Section 501 Notice of Proposed Rulemaking, the “Side by Side” social media campaign, Brain Injury Awareness Month, future webinars, and more.

OPM Presents Webinar for Federal Employees on Adult Dependent Caregivers — March 24, 2:00-3:30 PM EDT

The Office of Personnel Management (OPM) will present a webinar on “Work-Life Supports for Federal Employees with Adult Dependent Care Responsibilities” on March 24, 2:00-3:30 PM EDT. About 25.8 million family caregivers provide personal assistance to individuals 18 years or older who have a disability (physical and/or cognitive) or chronic illness. During this webinar, participants will learn critical information related to workplace, education, health care, and transportation supports for federal employees and their dependents and/or other family members with disabilities or health conditions. Speakers include Carol Boyer from the Department of Labor and Doris Rippey from OPM.

SSA Hosts WISE Webinar on Ticket to Work and Financial Independence — March 23, 3:00-4:30 PM EDT

The Social Security Administration (SSA) will host a National Work Incentives Seminar Event (WISE) webinar on March 23, 3:00-4:30 PM EDT. The webinar “Make it Happen: The Ticket to Financial Freedom” is aimed at those who receive Social Security disability benefits, and will present experts who will discuss how Ticket to Work and other work incentives can help with goal setting to reach financial independence. Participants will gain basic financial knowledge such as budgeting and expense tracking, and learn about tax benefits and asset building. Registration is available online or at 866-968-7842 (V) or 866-833-2967 (TTY).

Office of Disability Employment Policy Newsletter (Mar. 4, 2016)

Sunday, March 6th, 2016

Mitsubishi Electric America Foundation Welcomes Deputy Assistant Secretary Sheehy

On February 25, Deputy Assistant Secretary of Labor for Disability Employment Policy Jennifer Sheehy spoke as part of a panel at a summit held in Washington, DC, in honor of the Mitsubishi Electric America Foundation’s (MEAF) 25th anniversary. The corporate foundation of the Mitsubishi Electric group companies in the U.S., MEAF funds a variety of projects to empower youth with disabilities to lead productive lives through increased employment.

PEAT Talk on the Importance of User Testing for Accessibility — March 17, 2:00 PM ET

The Partnership on Employment and Accessible Technology (PEAT) will present a PEAT Talk on March 17 at 2:00 PM ET. The speaker will be Sharron Rush, co-founder and executive director of Knowbility, who will talk about the importance of user testing to ensure that workplace technologies are truly accessible. PEAT Talks is a monthly virtual speaker series to showcase organizations and individuals whose work is advancing accessible technology in the workplace. Held the third Thursday of every month at 2:00 PM ET, these events are designed to be energetic and interactive discussions highlighting a spectrum of exciting work. Featured speakers will deliver a 10- to 15- minute talk and then field questions from attendees.

“Advancing State Policy for a More Inclusive Workforce” National Online Dialogue

As states strive to promote workforce inclusion, people with disabilities are a key part of the solution. Recognizing this, the Office of Disability Employment Policy launched the State Exchange on Employment & Disability (SEED), a collaborative of state intermediary organizations committed to assisting busy state legislators in effectively addressing policy barriers that may hinder the employment of people with disabilities. The Council of State Governments (CSG) and the National Conference of State Legislatures (NCSL) are partnering to convene a National Task Force on Workforce Development and Employability for People with Disabilities in collaboration with SEED. In preparation for the first meeting of the National Task Force, CSG and NCSL are interested in hearing from individuals involved in state policymaking efforts about their experiences with state level disability employment-related policy, including existing state-sponsored legislation, executive orders, regulations, programs, and studies. This online dialogue is open to anyone interested in joining the conversation, and state representatives and policymakers are encouraged to participate. The dialogue will run until the National Task Force convenes on March 19.

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

The LEAD Center’s Policy Update — Employment, Health Care and Disability 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 latest update features stories on President Obama’s 2017 Budget, a new HCBS toolkit from the HCBS Advocacy Coalition, the newly released StatsRRTC Annual Disability Statistics Compendium, an update on Washington State’s HCBS Transition Plan, and more.

Latest EARN Newsletter Now Available

The Employer Assistance and Resource Network on Disability Inclusion (EARN) has issued its March 2 newsletter, featuring information on the Equal Employment Opportunity Commission’s proposed rule on affirmative action in disability hiring for federal agencies, a new resource from the Society for Human Resource Management on the aging workforce, disability inclusion training as an effective employment practice, future webinars, and more.

NCWD/Youth Hosts Webinar with CAST on Improving Postsecondary Outcomes with Universal Design for Learning

On February 17, the National Collaborative on Workforce and Disability for Youth (NCWD/Youth) and CAST hosted a webinar for postsecondary institutions on how to use Universal Design for Learning (UDL) to improve retention and graduation rates. The webinar provided an orientation to UDL and explained how postsecondary education professionals use evidence-based UDL practices to facilitate engaged learning for all students. This webinar is part of a series for postsecondary education faculty and staff hosted by NCWD/Youth. The full recording and transcript are available online.

JAN Archives Webcast on Accommodations in the Federal Workforce

An archived version of the Job Accommodation Network (JAN) webcast “Successfully Accommodating Individuals with Disabilities in the Federal Workforce” is now available on the JAN website. In this February 17 event, JAN consultants shared real-life accommodation scenarios from the federal sector, provided practical ideas for making successful accommodations in the workplace, and discussed possible solutions to current accommodation challenges.

Social Security Administration Publishes ANPRM on Ticket to Work Program

The Social Security Administration (SSA) has published an Advanced Notice of Proposed Rulemaking (ANPRM) to solicit public input on whether and how to revise the current Ticket to Work program rules to help both beneficiaries and the providers that serve them through the program. SSA is requesting comments and suggestions by April 11.

U.S. Department of Education Releases NPRM to Improve Equity for Students with Disabilities

The U.S. Department of Education (ED) has released a Notice of Proposed Rulemaking (NPRM) to address equity for students with disabilities of color under the Individuals with Disabilities Education Act (IDEA). The proposed Equity in IDEA rule would, for the first time, require states to implement a standard approach to compare racial and ethnic groups, with reasonable thresholds for determining when disparities have become significant. The proposed rule would also provide identified districts with new flexibility to support the needs of students.

Kessler Foundation Announces Signature Employment Grants

The Kessler Foundation has announced the availability of its Signature Employment Grants. The grants are awarded nationally each year to fund new pilot initiatives, demonstration projects, or social ventures that lead to the generation of new ideas to solve the high unemployment and underemployment of individuals with any type of disability. Preference is given for interventions that overcome specific employment barriers related to long-term dependence on public assistance, advance competitive employment in a cost-effective manner, or launch a social enterprise or individual entrepreneurship project. Projects must be collaborative, serve a large geographic area, and include multiple funding partners and stakeholders. In addition, initiatives or projects must have the potential for growth, scalability, or replication. The deadline for online grant concept applications is March 18 at 5:00 PM EDT.

“Adverse Actions” in Federal Civil Rights Discrimination Complaints by Seena Foster

Tuesday, March 1st, 2016

Federal civil rights laws prohibit discrimination on a wide variety of bases, including race, color, national origin, religion, disability, age, gender, and so on.  But, what types of conduct constitute “adverse actions” that may give rise to a complaint of discrimination? 

In federally-funded programs and activities

“Adverse actions” in violation of federal civil rights laws can occur in the delivery of federally-funded programs and activities.  This is a less understood area of civil rights, yet the reach of federally- funded programs and activities is far and wide and includes public education, transportation, small business development, fair lending, fair housing, unemployment insurance, workforce development, Medicare, environmental justice, employment referral services, and many others.  Here, federally-funded services, benefits, aid, and training must be delivered to members of the public in compliance with nondiscrimination and equal opportunity mandates of applicable civil rights laws.

There are a variety of “adverse actions” that may occur in the delivery of federally-funded programs and activities.  Some “adverse actions” are similar to those found in workplace discrimination complaints such as harassment and hostile environment, or refusal to provide religious-based or disability-based reasonable accommodation.  We’ll illustrate some  “adverse actions” unique to federally-funded programs and activities through use of examples related to Section 188 of the Workforce Innovation and Opportunity Act (WIOA), which governs the delivery of state and local workforce development programs and activities.

WIOA Section 188 mandates nondiscrimination and equal opportunity in the delivery of WIOA Title I-financially assisted aid, training, benefits and services on the bases of race, color, national origin, religion, disability, gender, age, political affiliation or belief, and citizenship among others.  For purposes of these examples, we’ll assume that you are the Equal Opportunity Officer for a American Job Network center or a Job Corps Center and, in this capacity, you investigate complaints of discrimination.

√     Denying aid, training, benefits, or services

Steven tells you that he was denied enrollment in an on-the-job training program.  At this point, Steven has not alleged a violation of any civil rights laws.  However, if Steven says he was denied enrollment in an on-the-job training program because he is black, then he has alleged a violation of civil rights laws.  Specifically, Steven asserts an “adverse action” (denial of enrollment in an on-the-job training program) on a prohibited basis (color).

√     Denying access to apply for aid, training, benefits, or services

Maria alleges she was laid-off from her job.  She tells you that, when she walked into the American Job Network center, she was not able to apply for unemployment insurance (UI) benefits.  So far, Maria has asserted an “adverse action” (denial of access to apply for UI benefits), but she hasn’t asserted a violation of any federal civil rights law.  But, if Maria tells you that she is limited English proficient (LEP), and the packet of UI forms were available in English only, then she has alleged a violation of federal civil rights laws.  Notably, Maria alleges an “adverse action” (denial of access to apply for UI benefits) on a prohibited basis (national origin-LEP).

√     Providing one person different aid, training, benefits, or services than is provided others

Here, we look at the conduct of an employment referral counselor at your American Job Network center.  Widget Company has numerous job openings, and the counselor is referring people to fill these openings.  Janet complains that she was referred to a lower-paying position with Widget.  Thus, Janet has alleged an “adverse action” (referral to a lower paying job), but she has not alleged a violation of civil rights laws.  However, if Janet alleges that she was referred to a lower-paying position with Widget, but men with the same credentials were referred to higher-paying positions, then she has presented an alleged violation of civil rights laws.  Namely, Janet asserts an “adverse action” (referral to a lower paying position) on a prohibited basis (gender).

√     Segregating a person, or treating the person separately, with regard to his or her receipt of aid, training, benefits, or services

An example of segregation is where your Job Corps Center offers a computer science course, but requires that “persons with disabilities” attend the course at one classroom location, whereas all other students must attend the course at another classroom location.  Thus, there is an “adverse action” (segregation of classes) on a prohibited basis (disability).  To the extent feasible, you must provide integrated services, aid, training, and benefits allowing persons with disabilities to participate alongside persons without disabilities.

√     Restricting a person’s enjoyment of any advantage or privilege enjoyed by others receiving any aid, training, benefits, or services

Hostile environment offers an example of restricting a person’s enjoyment of federally-funded programs and activities.  Let’s assume that Borek is one of your Job Corps Center students, and he has immigrated to the United States with his family from Iraq.  He files a complaint with you alleging that other students call him a “terrorist” in class and in the hallways, they post derogatory material about him on Facebook, and they repeatedly tell him he should “go back to Iraq where he came from.”  Here, Borek alleges an “adverse action” (being subjected to a hostile environment) on a prohibited basis (national origin).

√      Treating one person differently from others in determining whether s/he satisfies any admission requirement or condition for aid, training, benefits, or services

Here, let’s assume that Marsha informs you that her application for on-the-job training has been denied by Carol, who works at your American Job Network center.  By itself, this denial is an “adverse action,” but it is not a violation of civil rights laws.  However, Marsha further tells you that she met the essential eligibility requirements for referral to on-the-job-training, but Carol told Marsha she was concerned about referring her because Marsha had been pregnant five times within the past seven years.  Now, a civil rights violation has been alleged.  Notably, Marsha asserts an “adverse action” (denial of referral to on-the-job-training) on a prohibited basis (gender-prior pregnancies).

√     Denying or limiting a person with a disability the opportunity to participate in a program or activity

Your American Job Network center offers weekly orientations for any interested members of the public to learn about the services, aid, benefits, and training opportunities offered through the Center.  Jake, who is in a wheelchair, tells you that he was unable to attend the orientation earlier this week because it was offered on the second floor of your building and your building does not have an elevator.  Here, Jake alleged an “adverse action” (denial of access to the orientation) on a prohibited basis (disability).

√     Determining the site or location of a facility that has the purpose or effect of discriminating on a prohibited basis

State and local officials are in the process of determining where to establish a American Job Network center in a particular city, and decide to place the facility near an affluent neighborhood in one suburb of the city.  However, a majority of the city’s population is located on the other, more densely populated side of town.  And, the majority of the population is comprised of Hispanics and African-Americans.  The minorities in this city generally use public transportation, which is widely-available on the densely populated side of town.  The center’s location in the affluent neighborhood is, however, sixteen blocks from the nearest bus stop.  Thus, by locating the center in the affluent neighborhood away from public transportation, the center is not readily-accessible by a majority of the city’s population, most of whom are minorities.  Here, there are allegations of an “adverse action” (location of the facility in a less populated neighborhood that is not readily-accessible by public transportation) on prohibited bases (national origin and race).

√     Imposing different eligibility criteria on a prohibited basis in the delivery of services, aid, benefits, or training

An example here is James alleges his bid for a contract to provide workforce development services for your city has been denied. This constitutes an “adverse action,” but it does not rise to the level of alleged discrimination. However, if James further asserts that his company was required to secure a higher amount of insurance coverage in order to be awarded the contract because he is Hispanic, and that non-Hispanic-owned bidders were required to demonstrate a lower amount of coverage, then discrimination on a prohibited basis is alleged. James alleges an “adverse action” (imposition of different eligibility criteria in requiring higher coverage) on a prohibited basis (national origin).

In this paper, we’ve discussed only a few types of “adverse actions” that may occur in federally-funded programs and activities.  Again, a mere allegation by an individual that s/he suffered an “adverse action” is not sufficient to support a discrimination complaint.  But, allegations by an individual that s/he has suffered an “adverse action” on a prohibited basis do support an allegation of civil rights violations.

As the Equal Opportunity professional for your agency or organization, you should make sure staff at the agency or organization understand federal nondiscrimination and equal opportunity laws applicable to your programs and activities as well as the types of “adverse actions” that may lead to a violation of those laws.  Moreover, you are obliged to notify beneficiaries and potential beneficiaries of their rights under these laws.  It is important to have policies and procedures in place, and to conduct periodic training, so that each person in your agency or organization understands his or her role in the mission of delivering services, aid, benefits, and training to the public without imposing discriminatory criteria.  Keep in mind that these nondiscrimination laws cover all aspects of your operations, including outreach and recruitment, registration, counseling and guidance, testing, selection, placement, appointment, referral, training, and promotion and retention.

In the workplace

There are certain “adverse actions” that we typically see in discrimination complaints involving the workplace.  These “adverse actions” include the following:

●  Termination;

●  Non-selection;

●  Non-promotion;

●  Refusal to provide accommodation or modification;

●  Harassment or hostile environment; or

●  Receipt of an adverse performance appraisal.

There are countless other types of “adverse actions” that may occur in the workplace:

●  Relocation to a smaller and/or less desirable office location;

●  Refusal to provide training;

●  Denial of access to equipment and/or resources;

●  Denial of a security clearance;

●  Denial of paid and/or unpaid leave;

●  Exclusion from certain meetings; or

●  Imposition of dress and/or grooming requirements.

This list is not exhaustive; rather, it is designed to give you an idea of what constitutes an employment-related “adverse action.”

Just as with the delivery of government programs and activities, in the workplace, it is important to remember that an “adverse action,” standing alone, does not give rise to a discrimination complaint under federal civil rights laws.  On the other hand, an “adverse action” taken on the basis of race, gender, disability, or the like, does allege a violation of federal civil rights laws.

For example, Michael is blind, and he alleges that his company fired him after he asked for specialized voice-recognition software to assist him in performing certain job duties.  Here, Michael has alleged an “adverse action” (termination) on a prohibited basis (disability).

Another example is where Cheri alleges she was denied a security clearance because her supervisor “doesn’t like her.”  Here, the “adverse action” is denial of a security clearance, but no civil rights violation has been alleged by Cheri; that is, the fact that her supervisor does not like her is not a prohibited basis of discrimination under federal civil rights laws.  On the other hand, if Cheri alleges she was denied a security clearance because she is Hispanic, now she has asserted a violation of civil rights laws; that is, she alleges an “adverse action” (denial of a security clearance) on a prohibited basis (national origin).

If you are an EEO/AA/HR professional for your agency or organization, it is important that you train supervisors and managers regarding their obligations under various federal civil rights laws.  And, you will want to convey any additional requirements imposed by state and local human rights laws.  Taking an “adverse action” against an employee does not, in and of itself, constitute illegal discrimination.  For example, disciplining an employee based on poor work performance or shoddy attendance does not violate civil rights laws.  But, a violation of civil rights laws does exist if the “adverse action” is premised on how an employee looks, what religious beliefs s/he holds (or doesn’t hold), the fact that s/he is over 40 years of age, whether the employee comes to work in a wheelchair, or the like.

About Seena Foster

Seena Foster, award-winning civil rights author and Principal of the discrimination consulting firm, Title VI Consulting 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.” Ms. Foster is a mediator, and obtained “Federal Workplace Mediation” certification through the Northern Virginia Mediation Service.

Ms. Foster received her undergraduate degree from Michigan State University, and she has a Juris Doctorate from The George Washington University Law School. She is a member of the Human Rights Institute and Discrimination Law and Human Rights Law Committees of the International Bar Association.