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U.S. Department of Justice Updates the Title VI Legal Manual (Sept. 27, 2016)

Wednesday, September 28th, 2016

Federal Coordination and Compliance Section, Civil Rights Division, U.S. Department of Justice

Ensuring consistent and effective enforcement of Title VI of the Civil Rights Act of 1964 across the federal government

I write to share the publication today of the first portion of our updated and expanded Title VI Legal Manual. Updated sections cover key Title VI concepts, including legislative history, the Department of Justice role, and scope of coverage. The Manual is designed to assist federal funding agencies in meeting their critical obligation to remedy discrimination in federally funded programs through strong administrative enforcement. It also serves as a resource for Title VI practitioners and others interested in learning more about how the law protects against race, color, and national origin discrimination.

We will release additional portions of the Manual as they become available. Upcoming updates will address conduct prohibited by Title VI, including intentional discrimination, disparate impact, and retaliation.

Executive Order 12250 charges DOJ with ensuring the consistent and effective enforcement of Title VI and related statutes. In order to fulfill this mandate, DOJ, through the Civil Rights Division’s Federal Coordination and Compliance Section (FCS), provides assistance, training, and guidance to agency civil rights offices. The Legal Manual is a critical component of the Civil Rights Division’s initiative to restructure, reevaluate, and strengthen our Title VI coordination program.

In addition to the Legal Manual, Title VI News @FCS provides information on current implementation and enforcement efforts across the federal agencies; FCS issues Title VI guidance, including the recent joint guidance on emergencies; and files briefs to facilitate accurate and effective application of Title VI standards. Visit FCS’s website for more information about these efforts.

Please direct any comments about the Manual to FCS (use this email address: fcs.crt@usdoj.gov). It is our intention to revise the document periodically to both update evolving legal principles and respond to agency needs for guidance in new areas. As such, we welcome any feedback you may have.

Finally, a huge thank you to FCS Deputy Chief Peter Gray and Staff Attorney Laurie Gelman, editors of the Title VI Legal Manual, and to so many others in FCS and other offices who are contributing to the development of this important resource.

And thank you for your continued interest in and pursuit of Title VI enforcement.

Christine Stoneman

Acting Chief
Federal Coordination and Compliance Section
Civil Rights Division
U.S. Department of Justice
www.usdoj.gov/crt/fcs and www.lep.gov

U.S. Department of Justice Civil Rights Division News (Sept. 23, 2016)

Monday, September 26th, 2016

Civil Rights Division Updates

Friday, September 23, 2016

The Justice Department opened a civil rights investigation into the death of Terence Crutcher in Tulsa, Oklahoma. The recent death of Keith Lamont Scott in Charlotte, North Carolina, is currently under local investigation. We are aware of the tragic events that resulted in his death, and the Department of Justice and FBI are currently monitoring the situation.

In remarks on Thursday, Attorney General Loretta E. Lynch addressed these recent events and said: “Let us work together to ensure that all Americans have both a voice and value in this great country of ours. I want to reaffirm my full commitment – and the full commitment of the Department of Justice – to advancing that effort. To those exercising that most fundamental of our freedoms, we hear your voices and feel your pain. To all of the law enforcement officers who continue to risk their lives day in and day out to keep us safe and protect those essential freedoms, I extend my deepest thanks.”

Head of the Civil Rights Division Vanita Gupta delivered remarks at a Southern Center for Human Rights Symposium on the Criminalization of Race and Poverty. In her speech she said, “When the criminal justice system ends up punishing people for the size of their bank account or the color of their skin rather than the severity of their crime, it raises serious constitutional concerns. It traps the most vulnerable among us in perpetual cycles of poverty, debt and incarceration. It undermines the legitimacy of our justice system. It threatens the integrity of our democracy.”

The Justice Department reached a resolution agreement with Wheaton College in Massachusetts to ensure the college implements a swift and effective response to allegations of sexual assault and harassment involving students.

The Justice Department announced it has reached an agreement with the Superior Court of California, County of Los Angeles (LASC) to ensure that limited English proficient (LEP) court users will have access to timely and accurate language assistance services.

Vanita Gupta gave remarks at a White House Conference on Trauma-Informed Approaches in School to Support Girls of Color and Rethink Discipline. She explained that “Whether due to bullying, sexual assault or discriminatory discipline, the trauma of injustices and indignities can reverberate for years. Trauma can invade nearly every area of a girl’s life. It can damage family relationships. It can interfere with schoolwork and academic performance. It can carry over into one’s social life by making the already awkward, challenging years of adolescence, all the more difficult. And it can leave an emotional and psychological toll that may not be the most visible harm, but that can linger painfully for years.”

The Justice Department issued a new publication, “Language Access in State Courts,” that provides an overview of the importance of legal requirements for, and accomplishments in, providing language access services in state courts across the country. The report – published by the Civil Rights Division’s Federal Coordination and Compliance Section – covers several key areas related to language access in state courts, including: court services and programs; criminal court proceedings; civil court proceedings; limited English Proficient (LEP) witnesses, victims, and others; no-cost language services; and qualification and training of interpreters. The Division’s efforts are part of its ongoing Courts Language Access Initiative, which seeks to level the playing field for people with limited English proficiency in state courts.

The Justice Department filed a proposed consent decree with 30 Hop restaurant and bar in Coralville, Iowa, resolving claims that the establishment violated the new construction requirements of Title III of the Americans with Disabilities Act (ADA).

The Justice Department reached a comprehensive settlement agreement with the California Department of Education (CDE) and the California State Board of Education to improve their compliance monitoring systems and ensure language instruction services to the approximately 1.4 million English Learner (EL) students in the state’s public schools.

For additional information, go to www.justice.gov.

OFCCP Sues Silicon Valley Company Palantir Technologies for Discrimination (Sept. 26, 2016)

Monday, September 26th, 2016

To view the complaint, go to www.dol.gov/ofccp.

The US DEPARTMENT OF LABOR SUES SILICON VALLEY TECH COMPANY FOR DISCRIMINATING AGAINST ASIAN JOB APPLICANTS

PALO ALTO – The U.S. Department of Labor has filed a lawsuit charging that Palantir Technologies, a Palo Alto technology company, discriminated systematically against Asian job applicants in its hiring process and selection procedures.

Filed with the department’s Office of Administrative Law Judges, the lawsuit seeks to end the company’s alleged discriminatory hiring policies and practices. Palantir provides software and data analysis services under federal contract to the U.S. Department of Justice’s Federal Bureau of Investigation, the U.S. Special Operations Command and the U.S. Department of the Army.

The suit also seeks complete relief for the affected class, including lost wages, interest, retroactive seniority and all other lost benefits of employment. The department filed the complaint after the department and Palantir were unable to resolve the findings through the conciliation process.

The suit follows a compliance review by the department’s Office of Federal Contract Compliance Programs, which found that from January 2010 to the present, Palantir violated Executive Order 11246 by:

Using a hiring process and selection procedures that discriminated against Asian applicants for software engineering positions on the basis of their race.
Maintaining a hiring process in which Asian applicants were routinely eliminated in the resume screen and telephone interview phases despite being as qualified as white applicants.
Hiring a majority of applicants from a discriminatory employee referral system. The overwhelming preference for referrals, combined with the contractor’s failure to ensure equal employment opportunity for all applicants without regard to race, resulted in discrimination against Asian applicants.

“Federal contractors have an obligation to ensure that their hiring practices and policies are free of all forms of discrimination,” said OFCCP Director Patricia Shiu. “Our nation’s taxpayers deserve to know that companies employed with public funds are providing equal opportunity for job seekers.”

If Palantir fails to provide relief as ordered, OFCCP requests the cancellation of all of the company’s government contracts and debarment from entering into future federal contracts.

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. These laws, as amended, make it illegal for contractors and subcontractors doing business with the federal government to discriminate in employment because of race, color, religion, sex, sexual orientation, gender identity, national origin, disability or status as a protected veteran. In addition, contractors and subcontractors are prohibited from discriminating against applicants or employees because they have inquired about, discussed or disclosed their compensation or that of others, subject to certain limitations. For more information, please call OFCCP’s toll-free helpline at 800-397-6251 or visit http://www.dol.gov/ofccp/.

X X X

Media Contacts:

Leo Kay, 415-625-2630, kay.leo.f@dol.gov
Jose Carnevali, 415-625-2631, carnevali.jose@dol.gov

Justice Department Issues New Publication: “Language Access in State Courts” (Sept. 15, 2016)

Saturday, September 17th, 2016

Today the Justice Department issued a new publication, “Language Access in State Courts,” that provides an overview of the importance of legal requirements for, and accomplishments in, providing language access services in state courts across the country.

The report – published by the Civil Rights Division’s Federal Coordination and Compliance Section – covers several key areas related to language access in state courts, including:

Court services and programs;
Criminal court proceedings;
Civil court proceedings;
Limited English Proficient (LEP) witnesses, victims, and others;
No-cost language services; and
Qualification and training of interpreters.

The publication also provides different sets of resources, including examples of the Justice Department’s enforcement and technical assistance work along with other materials.

The Civil Rights Division has committed to a Courts Language Access Initiative to focus on the implementation of language access requirements and best practices in courts. Despite the significant progress that we have achieved, however, the challenge of providing meaningful language access in state courts demands that we continue to modernize, innovate, and keep pace with the evolving demographics of our country.

We hope you find this publication useful as you encounter these challenges in your communities in the months and years ahead. At the Department of Justice, we look forward to advancing the mission of equal access to state courts by forging dynamic partnerships with all stakeholders, by removing language access barriers, and by celebrating the diversity of our people that has always defined the resiliency and strength of our nation.

To access the publication, go to https://www.justice.gov/crt/file/892036/download.

DOT Seeks Nominations for Every Place Counts Leadership Academy (Sept. 14, 2016)

Wednesday, September 14th, 2016

Call for nominations! On October 5, Secretary Anthony Foxx will launch the Every Place Counts: Leadership Academy with a kickoff event at USDOT Headquarters in Washington, DC. He will bring together hundreds of community members from across the country to learn how they can stay informed about transportation decisions and bring their insights to the decision-making process. Participants will also have a unique opportunity to provide feedback on the initial version of the Transportation Toolkit and help us make it more user-friendly.

We invite you to nominate yourself or someone from your community. Selected nominees will be invited to participate in the kickoff event. Nominees should have limited experience with transportation decision-making, and should not be paid to work in the field of transportation. USDOT encourages nominations of emerging community leaders who are interested in transportation equity and who would like to expand opportunities in their communities.

To nominate yourself or someone else to participate in the Leadership Academy kickoff event, please complete the nomination form. Nominations are due no later than noon EDT Monday, September 19, 2016.

Office of Disability Employment Policy Newsletter (Sept. 10, 2016)

Saturday, September 10th, 2016

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

Fielding a Full Team in Rio — Secretary of Labor’s Blog
In a September 7 post on the Department of Labor blog, Labor Secretary Tom Perez looked forward to the start of the Paralympics in Rio, which will run from September 7-18, 2016. Reflecting on the part that sports has played in his life and the lives of his children, Perez noted that competing on the field, including in the Paralympic arena, helps people prepare for success in the workplace. “People with disabilities are some of our most valuable players,” remarked Perez. “Employers are always looking for people who are forward-thinking, ready for a challenge, and bring fresh perspectives to the table. All of those qualities are part of everyday life for people with disabilities.”

Hiring America Features Deputy Assistant Secretary Sheehy
Hiring America is a nationally syndicated television series designed to help veterans leaving the military prepare for new careers. At the Society for Human Resource Management annual conference last June, Hiring America interviewed Office of Disability Employment Policy Deputy Assistant Secretary Jennifer Sheehy about ODEP’s resources for employment of people with disabilities, including veterans with disabilities. “It isn’t just about creating a job for a person, it’s about including people with disabilities in the whole employment culture,” observed Sheehy.

Seamless Transition from School to Competitive Integrated Employment — State Examples from Michigan and Utah — EFSLMP Webinar — September 14, 3:00-4:30 PM ET
On September 14, 3:00-4:30 PM ET, the Office of Disability Employment Policy’s Employment First State Leadership Mentoring Program (EFSLMP) will be hosting a Community of Practice (CoP) webinar on seamless transition from school to competitive integrated employment. Speakers Yasmina Bouraoui, MPH, DrPH, Deputy Director, Michigan Developmental Disabilities Council; Katie Knapp-Wyman, Transition Coordinator for Clare-Gladwin Regional Education Service District and COOR Intermediate School District; Susan Loving, Transition Specialist, Utah State Board of Education; Aimee Langone, MEd., CRC, LVRC, Transition & Supported Employment, Utah State Office of Rehabilitation; and Tricia Jones-Parkin, MMPA, Employment First Program Administrator, Division of Services for People with Disabilities, will explain how they developed seamless transition plans by closely collaborating with many state partners.

Section 508 Interagency Accessibility Forum — October 11, 8:00 AM-4:00 PM ET
The U.S. Department of Health and Human Services (HHS) and other federal agencies are sponsoring a free conference focused on Section 508 Technology Accessibility and Inclusion. The Accessibility Forum is open to federal employees and contractors who want to learn more about accessibility. The Forum will explore the impact of accessibility and look into the future of accessibility through plenary sessions, and participants will be able to select workshops that meet their experience level and interests. Exhibitors will provide hands-on opportunities to learn about new tools and resources. Participants will have a chance to share best practices, learn about new technologies, and network with other federal employees to broaden the dialogue concerning Section 508 implementation. Interpreters and captioning will be provided. All videos will be captioned and described. Materials will be available in accessible formats. The Forum will be held October 11, 8:00 AM-4:00 PM ET at the Natcher Conference Center at the National Institutes of Health in Bethesda, Maryland.

FCC Announces Anticipated Renewal of Its Disability Advisory Committee and Solicits Applications for Membership
The Federal Communications Commission (FCC) has announced the anticipated renewal of its Disability Advisory Committee and is soliciting applications for membership on the Committee, subject to renewal of the Committee’s charter. The Committee provides a vehicle for consumers and other stakeholders to provide feedback and recommendations to the FCC on a wide array of disability issues within its jurisdiction. The FCC is seeking applications from interested consumer organizations, industry and trade associations, corporations, governmental entities, and individuals that wish to be considered for membership on the Committee. Selections will be made on the basis of factors such as expertise and diversity of viewpoints that are necessary to effectively address the questions before the Committee. It is expected that the two-year membership term on the Committee, if renewed, would commence on December 30, 2016. Applications for membership are due by 11:59 PM ET on October 14, 2016.

The Justice Department partners with the United Mexican States to Combat Employment Discrimination (Sept. 2016)

Saturday, September 10th, 2016

The Justice Department and the Ministry for Foreign Affairs of the United Mexican States established a formal partnership to protect workers from discrimination based on citizenship, immigration status and national origin. On September 1, 2016, Principal Deputy Assistant Attorney General Vanita Gupta, head of the Justice Department’s Civil Rights Division, and Mexican Ambassador Carlos Sada signed a memorandum of understanding (MOU) between the embassy and its consulates and the Division’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC). You may view the MOU in English and Spanish.

Go to https://www.justice.gov/opa/file/889381/download for the English version, and https://www.justice.gov/espanol/file/889436/download for the Spanish version.

EEOC Issues Guidance Addressing Retaliation

Saturday, September 10th, 2016

August 29, 2016: Today the U.S. Equal Employment Opportunity Commission (EEOC) issued its final Enforcement Guidance on Retaliation and Related Issues, to replace its 1998 Compliance Manual section on retaliation. The guidance also addresses the separate “interference” provision under the Americans with Disabilities Act (ADA), which prohibits coercion, threats, or other acts that interfere with the exercise of ADA rights.

The Commission has also issued two short user-friendly resource documents to accompany the new guidance: a question-and-answer publication that summarizes the guidance document, and a short Small Business Fact Sheet that condenses the major points in the guidance in non-legal language.

“Retaliation is asserted in nearly 45 percent of all charges we receive and is the most frequently alleged basis of discrimination,” said EEOC Chair Jenny R. Yang. “The examples and promising practices included in the guidance are aimed at assisting all employers reduce the likelihood of retaliation. The public input provided during the development of this guidance was valuable to the Commission in producing a document to help employers prevent retaliation and to help employees understand their rights.”

On Jan. 21, 2016, EEOC published a proposed guidance for public input on www.regulations.gov. The final guidance issued today reflects the Commission’s consideration of feedback received on the proposal from approximately 60 organizations and individuals representing a wide range of viewpoints. In preparing the final guidance, the agency also considered the stakeholder views expressed at the June 17, 2015 Commission Meeting held on this topic.

The guidance addresses retaliation under each of the statutes enforced by EEOC, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act, the Equal Pay Act (EPA) and Title II of the Genetic Information Nondiscrimination Act (GINA).

Topics explained in the new guidance include:

The scope of employee activity protected by the law.
Legal analysis to be used to determine if evidence supports a claim of retaliation.
Remedies available for retaliation.
Rules against interference with the exercise of rights under the ADA.
Detailed examples of employer actions that may constitute retaliation.

Since EEOC’s 1998 Compliance Manual section on retaliation, the U.S. Supreme Court has issued seven decisions addressing retaliation under EEOC-enforced laws, and the filing of EEO claims that include a retali­ation allegation has continued to grow. Charges of retaliation surpassed race discrimination in 2009 as the most frequently alleged basis of discrimination, accounting for 44.5 percent of all charges received by EEOC in FY 2015. In the federal sector, retaliation has been the most frequently alleged basis since 2008, and retaliation findings comprised between 42 percent and 53 percent of all findings of EEO violations from 2009 to 2015.

EEOC is responsible for enforcing federal laws against employment discrimination. Further information about the agency is available at www.eeoc.gov.

Office of Disability Employment Policy Newsletter (Sept. 2, 2016)

Saturday, September 10th, 2016

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

Pursuing a Degree While Working, Thanks to Flexible Options — DOL Blog
In an August 29 post on the Department of Labor (DOL) blog, Tiffany Jolliff, program specialist in DOL’s Office of Disability Employment Policy (ODEP) reflected on her experiences in pursuing her Master’s degree while working full time in ODEP. Jolliff started working at ODEP shortly after beginning her Master’s program in Organization Development and Knowledge Management at George Mason University. DOL’s workplace flexibility policies were the key to her success. Noted Jolliff, “Juggling a new job and a fairly new class schedule could have been a nightmare; however, thanks to the efforts of Labor Secretary Tom Perez, I ended up in one of the best workplaces for working full-time and completing my education.”

Helping Workers Keep Their Jobs After an Injury, Illness, or Disability — September 13, 12:00-1:30 PM ET
On September 13, 12:00-1:30 PM ET, the Stay-at-Work/Return-to-Work (SAW/RTW) Policy Collaborative of the U.S. Department of Labor’s Office of Disability Employment Policy and Mathematica’s Center for Studying Disability Policy will host a policy forum and webinar to share actionable recommendations for policies that can improve the SAW/RTW outcomes of workers who experience injury, illness or disability. State and federal policymakers, employers, workers, service providers, staff of professional associations and researchers are invited to participate to learn more about SAW/RTW initiatives and contribute to a discussion of critical policy and programmatic issues.

PEAT Talk: The Global Public Inclusive Infrastructure (GPII) — September 15, 2:00-2:30 PM ET
The Partnership on Employment & Accessible Technology (PEAT) will hold its next PEAT Talk on September 15, 2:00-2:30 PM. Today, the ability to use ICT technologies is a core element of most jobs, but many applications and websites aren’t accessible to everyone. But what if users could invoke and use the access features they need anywhere, anytime, on any device? The Global Public Inclusive Infrastructure (GPII) is a software and service enhancement to our broadband infrastructure designed to make access simpler, more inclusive, available everywhere and more affordable. In this webinar, Raising the Floor’s Gregg Vanderheiden will discuss how and why they are building this new global infrastructure, and the potential it has to impact the employment of people with disabilities.

NCWD/Youth Releases Publications on Financial Capability for Youth
The National Collaborative on Workforce and Disability for Youth (NCWD/Youth) has published a new Info Brief for families, “Developing Financial Capability Among Youth: How Families Can Help.” Developing financial capability has been recognized as an important part of preparing youth for the transition to adulthood, including under the Workforce Innovation and Opportunity Act. Families are one of the most significant influences on young people’s financial knowledge and attitudes. This brief provides families with suggestions and resources on how to talk with youth about money and assist them in learning and practicing financial management skills through their interactions at home. NCWD/Youth has also published a new Info Brief for youth, “Taking Charge of Your Money: An Introduction to Financial Capability.” Developing financial capability — the capacity based on knowledge, skills and access to manage financial resources effectively — is an important part of becoming an adult. This brief provides a starting point for youth to learn about and develop financial capability so that they can make smart decisions about managing money now and in the future.

Latest EARN Newsletter Now Available
The Employer Assistance and Resource Network on Disability Inclusion (EARN) has issued its August 31 newsletter, featuring information on Disability Mentoring Day, telecommuting, upcoming web events and more.

LEAD Center Issues 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. 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 July/August 2016 update features stories on select state HCBS plan updates, a new CMS report on long-term supports and services (LTSS) expenditures, a Harvard School of Public Health study on the connections between poor workplace accommodations and health outcomes for workers with disabilities and more.

AAPD Seeks Nominations for the 2017 Paul G. Hearne Leadership Awards
Through the AAPD Paul G. Hearne Leadership Awards, the American Association of People with Disabilities (AAPD) recognizes outstanding emerging leaders with disabilities who exemplify leadership, advocacy and dedication to the broader cross-disability community. Two individuals will each receive $2,500 in recognition of their outstanding contributions and $7,500 to further a new or existing initiative that increases the political and economic power of people with disabilities. The recipients of the AAPD Paul G. Hearne Leadership Awards are honored among national disability leaders each year at the AAPD Leadership Awards Gala in Washington, DC. Nominations are due by 5:00 PM ET on September 30, 2016.

AAPD Now Accepting Applications for Its Summer Internship Program
The American Association of People with Disabilities (AAPD) Summer Internship Program develops the next generation of leaders with disabilities and offers host employers access to a talented, diverse workforce. Each summer, AAPD 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-profit and for-profit organizations in the Washington, DC area. Each intern is matched with a mentor who will assist them with 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 for the program must be completed by 5:00 PM ET on November 7, 2016.

Your Discrimination Complaint Log

Thursday, September 1st, 2016

As the Equal Opportunity professional for an agency or entity administering federally funded programs and activities, you must develop and publish discrimination complaint policies and procedures. And, as part of those procedures, you must maintain a discrimination complaint log.

In this paper, we will discuss what is included in the log (including how to distinguish between discrimination complaints and program complaints), why the log is important, whether you include complaints that are settled, dismissed, or withdrawn, and how you properly classify (and investigate) pregnancy-related complaints as well as complaints involving harassment and hostile environment.

What do I include in the log?

The U.S. Department of Justice, which oversees compliance with, and enforcement of, Title VI of the Civil Rights Act of 1964 (Title VI) and related laws, states the following:

Each federal agency shall maintain a log of Title VI complaints filed with it, and with its recipients, identifying each complainant by race, color, or national origin; the recipient; the nature of the complaint; the dates the complaint was filed and the investigation completed; the disposition; the date of disposition; and other pertinent information.

. . .

Federal agencies shall report to the Assistant Attorney General on January 1, 1977, and each six months thereafter, the receipt, nature and disposition of all such Title VI complaints.

28 C.F.R. § 42.408(d). And, directly related to your work, these regulations further provide:

Each recipient processing Title VI complaints shall be required to maintain a similar log.

28 C.F.R. § 42.408(d).

In developing and maintaining a discrimination complaint log, one of the key things to keep in mind is that not all types of complaints are recorded in this log. In particular, only those complaints alleging discrimination on a prohibited “basis” are included in this log. These are known as “discrimination complaints.” Here, you must know the civil rights laws enforced by your federal funding agency and the bases of discrimination prohibited by those laws.

On the other hand, if you receive a complaint that does not allege discrimination on a prohibited basis, you will not have jurisdiction to investigate this complaint under federal civil rights laws and the complaint would not be noted in your log. These types of complaints are known as “program complaints.”

As an example, Jane Doe files a complaint with you alleging that she was denied federally funded rental housing assistance because her income level is too high. She states that the income level requirements for the program should be lowered. Here, Jane has not alleged denial of the assistance because of race, color, national origin, gender, age, disability, or the like. Rather, she seeks adjustment of the program’s income level requirements. This is a “program complaint” and would be processed under the federal funding agency’s regulations for operating the program.

If Jane Doe alleges, however, that the black housing counselor denied Jane’s application for federally funded rental housing assistance because Jane is white, then you have a “discrimination complaint” that would be included in your log. Namely, Jane alleges denial of rental housing assistance on the basis of race/color.

Why is the complaint log important?

The complaint log is a valuable asset to you in monitoring your programs and activities to ensure compliance with Title VI and related laws. Preferably, you want to identify and resolve discrimination-related problems at your level as opposed to allowing these problems to draw the interest of your federal funding agency.

Using your complaint log, you will be able to identify instances of alleged discrimination by (1) program or activity, and (2) basis. For example, let’s say you notice an increase in complaints alleging discrimination on the basis of disability in a computer skills training program. Review of your complaint log leads you to notice that nearly all of the complaints involve denial of access to the training facility, which is located on the second floor of a building without an elevator. At this point, you have pinpointed the program or activity (computer skills training) and the basis (disability) of a trend of complaints. With this knowledge, you can approach your training folks to bring the operation of this program into compliance with federal civil rights laws, such as relocating the computer skills training program to the first floor of the building, or moving it to another building that has an elevator.

Properly maintaining your complaint log also will enable you to respond to requests for this data from your federal funding agency, Governor’s office, or the like. And, at times, federal agencies will conduct compliance reviews or desk audits to check compliance with Title VI and related laws and your organization may be selected. Inevitably, one of the key records you will be asked to produce during the review or audit is your discrimination complaint log.

Determine your federal funding agency’s requirements

Because you operate federally assisted programs and activities, you must ensure nondiscrimination and equal opportunity on the basis of race, color, and national origin in compliance with Title VI. The same holds true for the basis of disability under the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, and the Americans With Disabilities Act Amendments Act of 2008. Finally, you also must ensure nondiscrimination and equal opportunity on the basis of age under the Age Discrimination Act of 1975.

Beyond these statutes, however, many federal funding agencies will enforce additional civil rights laws. To properly develop a discrimination complaint log for your programs and activities, you must know the civil rights laws enforced by your federal funding agency.

With regard to the laws it enforces, a federal agency will have regulations located in the Code of Federal Regulations addressing requirements for developing and maintaining your discrimination complaint log. For example, if you receive Workforce Innovation and Opportunity Act (WIOA) Title I funding, regulations implemented by the U.S. Department of Labor (DOL) require that you maintain a log of complaints alleging discrimination on any one or more of the following bases:

● race
● color
● national origin
● religion
● sex
● disability
● age
● political affiliation or belief
● citizenship
● participation in a WIOA-financially assisted program or activity

Moreover, the complaint log must include:

● name and address of the complainant
● the basis of the complaint
● the date the complaint was filed
● the disposition and date disposition was issued
● “other pertinent information”

Finally, DOL regulations require that all records regarding complaints and actions taken on complaints must be maintained for a period of not less than three years from the date of resolution of the complaint. Indeed, DOL’s Civil Rights Center has developed a standardized format that it requires you to use. This standardized complaint log is found at https://www.dol.gov/oasam/programs/crc/Discrimination3.htm.

Check with the civil rights office of your federal funding agency for similar regulations and standardized complaint log information.

What if I settle the complaint informally?

You are required to enter information pertaining to any discrimination complaint filed, regardless of whether the complaint is decided on the merits, dismissed for lack of probable cause, settled (even settled “informally” or early in the process), or withdrawn.

What types of complaints must be included in the log?

All types of discrimination complaints must be included in your log. This will include individual, class action, and third party complaints. As you are aware, an individual complaint is where an individual comes to you and alleges that s/he has been discriminated against in one of your programs or activities. For example, Josh files a complaint alleging that his bid for a federally funded transportation contract was rejected because he is from Israel. This is an individual complaint alleging national origin-based discrimination.

A class action involves a group of individuals alleging similar acts of discrimination on the same basis (e.g., race, color, national origin, and so on). One example of a class action is where a group of individuals allege that they were denied entry into a federally funded apprenticeship program for welders because they are women.

Finally, there is the third party complaint. As an example, La RAZA complains that your agency only provides unemployment insurance forms in English. La RAZA states that its members cannot complete the application process because they are limited English proficient (LEP) and their native language is Spanish. So, La RAZA has not been injured directly, but is alleging that your unemployment insurance process has a discriminatory impact on an entire class of potential beneficiaries (LEP persons). While you may utilize this type of complaint to conduct monitoring or a compliance review of your the program as opposed to processing the complaint through your traditional discrimination complaint process, it is important to include it in your complaint log.

How do I classify harassment and hostile environment complaints?

When we talk about harassment or hostile environment, most of us think of sexual harassment or hostile sexual environment. However, harassment or hostile environment may occur on any prohibited basis (race, color, national origin, age, disability, and so on). As an example, one student uses Facebook to repeatedly post derogatory remarks about another student from Morocco repeatedly calling the student “terrorist” and the like. The Facebook posts have “gone viral”, and the targeted student subsequently was attacked at your school. You receive a complaint from him. This is a national origin-based hostile environment complaint and would be recorded as such in your complaint log.

And, keep in mind that hostile environment complaints usually involve a series of adverse actions alleged to have occurred because of a person’s race, color, national origin, disability, or the like. So long as a hostile environment complaint is filed within 180 days of the last adverse act, then it is timely and you may consider the entire series of adverse acts to determine whether prohibited hostile environment discrimination occurred.

How do I classify pregnancy-related complaints?

Pregnancy-related complaints often create confusion for the investigator. It is common for these types of complaints to be viewed as disability-related, but most of them are not. Complaints alleging discrimination on the basis of past, present, or the possibility of future pregnancy should be logged (and investigated) as gender-based complaints. Only if the complainant alleges discrimination based on a medical condition or disability resulting from the pregnancy would you investigate this complaint as a disability-based complaint. Pregnancy, standing alone, is not disability.

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 workforce development 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 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 has a “Federal Workplace Mediation” certification through the Northern Virginia Mediation Service. She is a member of the Human Rights Institute and Discrimination Law and Human Rights Law Committees of the International Bar Association. Ms. Foster received her undergraduate degree from Michigan State University, and she has a Juris Doctorate from The George Washington University Law School.