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Immigration-Related Unfair Labor Practices: New Anti-Discrimination Posters in Multiple Languages from the Justice Department’s Office of Special Counsel

Saturday, March 22nd, 2014

OSC is pleased to announce that its anti-discrimination poster is now available in additional languages. OSC has published translations of its poster in Arabic, Chinese, French, Haitian Creole, Korean, Russian, Spanish, Tagalog, and Vietnamese. These translations are available on OSC’s website located on the Worker Information page at: http://www.justice.gov/crt/about/osc/htm/worker.php and the Employer Information page at: http://www.justice.gov/crt/about/osc/htm/employer.php.

First Executive Order Issued by New Virginia Governor Requires “Equal Opportunity” in State Government (January 14, 2014)

Tuesday, January 14th, 2014

Virginia’s Governor McAuliffe issues his first Executive Order, and it focuses on requiring nondiscrimination in employment practices of the Commonwealth of Virginia on the bases of race, color, national origin, sex, sexual orientation, gender identity, age, religion, political affiliation, and disability. Moreover, Executive Order Number 1 prohibits discrimination against veterans, and permits “employment preferences for veterans” where appropriate. The Executive Order also promotes affirmative measures to “emphasize the recruitment of qualified minorities, women, disabled persons, and older Virginians to serve at all levels of state government.” Below is the text of the newly-issued Executive Order Number 1 (2014):

Importance of the Initiative

By virtue of the authority vested in me as Governor, I hereby declare that it is the firm and unwavering policy of the Commonwealth of Virginia to assure equal opportunity in all facets of state government. The foundational tenet of this Executive Order is premised upon a steadfast commitment to foster a culture of inclusion, diversity, and mutual respect for all Virginians.

This policy specifically prohibits discrimination on the basis of race, sex, color, national origin, religion, sexual orientation, gender identity, age, political affiliation, or against otherwise qualified persons with disabilities. The policy permits appropriate employment preferences for veterans and specifically prohibits discrimination against veterans.

State appointing authorities and other management principals are hereby directed to take affirmative measures, as determined by the Director of the Department of Human Resource Management, to emphasize the recruitment of qualified minorities, women, disabled persons, and older Virginians to serve at all levels of state government. This directive does not permit or require the lowering of bona fide job requirements, performance standards, or qualifications to give preference to any state employee or applicant for state employment.

Allegations of violations of this policy shall be brought to the attention of the Office of Equal Employment Services of the Department of Human Resource Management. No state appointing authority, other management principal, or supervisor shall take retaliatory actions against persons making such allegations.

Any state employee found in violation of this policy shall be subject to appropriate disciplinary action.

The Secretary of Administration is directed to review and update annually state procurement, employment, and other relevant policies to ensure compliance with the non-discrimination mandate contained herein, and shall report to the Governor his or her findings together with such recommendations as he or she deems appropriate. The Director of the Department of Human Resource Management shall assist in this review.

This Executive Order supersedes and rescinds Executive Order No. 6 (2010), Equal Opportunity, issued by Governor Robert F. McDonnell on February 5, 2010.

Effective Date of the Executive Order

This Executive Order shall become effective upon its signing and shall remain in full force and effect until amended or rescinded by further executive order.

Given under my hand and under the Seal of the Commonwealth of Virginia this 11th day of January 2014.

Terence R. McAuliffe, Governor

Justice Department and Consumer Financial Protection Bureau Reach $98 Million Settlement to Resolve Allegations of Auto Lending Discrimination by Ally–Settlement Is Department’s Third Largest Fair Lending Agreement Ever and Largest Ever Auto Lending Agreement

Sunday, December 22nd, 2013

The following press release from the Justice Department was issued on December 20, 2013:

The Department of Justice and the Consumer Financial Protection Bureau (CFPB) today announced the federal government’s largest auto loan discrimination settlement in history to resolve allegations that Detroit-based Ally Financial Inc. and Ally Bank have engaged in an ongoing nationwide pattern or practice of discrimination against African-American, Hispanic and Asian/Pacific Islander borrowers in their auto lending since April 1, 2011. The agreement is the first joint fair lending enforcement action by the department and CFPB. With this agreement, eight of the top 10 largest fair lending settlements in the department’s history have been under Attorney General Eric Holder’s leadership.

The settlement provides $80 million in compensation for victims of past discrimination by one of the nation’s largest auto lenders and requires Ally to pay $18 million to the CFPB’s Civil Penalty Fund. Ally also must refund discriminatory overcharges to borrowers for the next three years unless it significantly reduces disparities in unjustified interest rate markups. This system will create a strong financial incentive to eliminate discriminatory overcharges.

“With this largest-ever settlement in an auto loan discrimination case, we are taking a firm stand against discrimination in a critical lending market,” said Attorney General Eric Holder. “By requiring Ally to provide refunds to those who are overcharged because of their race or national origin, this agreement will ensure relief for Americans who are victimized. It will enable the Justice Department and the CFPB to work closely with Ally and others to prevent discriminatory practices in the future. And it will reinforce our determination to respond aggressively to discrimination in America’s lending markets – wherever it is found.”

The settlement resolves claims by the department and the CFPB that Ally discriminated by charging approximately 235,000 African-American, Hispanic and Asian/Pacific Islander borrowers higher interest rates than non-Hispanic white borrowers. The agencies claim that Ally charged borrowers higher interest rates because of their race or national origin, and not because of the borrowers’ creditworthiness or other objective criteria related to borrower risk. The average victim paid between $200 and $300 extra during the term of the loan. The Equal Credit Opportunity Act (ECOA) prohibits such discrimination in all forms of lending, including auto lending. Ally’s settlement with the DOJ, which is subject to court approval, was filed today in the U.S. District Court for the Eastern District of Michigan in conjunction with the DOJ’s complaint. Ally resolved the CFPB’s claims by entering into a public administrative settlement.

“Discrimination is a serious issue across every consumer credit market,” said CFPB Director Richard Cordray. “We are returning $80 million to hard-working consumers who paid more for their cars or trucks based on their race or national origin. We look forward to working closely with the Justice Department and Ally to make sure this serious issue will be addressed appropriately in the years ahead as well.”

Rather than taking applications directly from consumers, Ally makes most of its loans through over 12,000 car dealers nationwide who help their customers pay for their new or used car by submitting their loan application to Ally. Ally’s business practice, like most other major auto lenders, allows car dealers discretion to vary a loan’s interest rate from the price Ally initially sets based on the borrower’s objective credit-related factors. Dealers receive greater payments from Ally on loans that include a higher interest rate markup. The coordinated investigations by the department and the CFPB that preceded today’s settlement determined this system of subjective and unguided pricing discretion directly results in Ally’s qualified African-American, Hispanic and Asian/Pacific Islander borrowers paying more than qualified non-Hispanic white borrowers.

The agencies claim that Ally fails to adequately monitor its interest rate markups for discrimination or require dealers to document their markup decisions. Ally’s first effort to monitor for discrimination in interest rate markups began only earlier this year after it learned of the CFPB’s preliminary findings of discrimination, and resulted in only two dealers being sanctioned and subjected to nothing more than voluntary training.

“This settlement provides relief to those who were harmed by this discrimination,” said U.S. Attorney for the Eastern District of Michigan Barbara McQuade. “Lenders must consider an individual borrower’s credit worthiness, based on income, savings, credit history and other objective factors when determining the terms of a loan. This settlement will ensure that in the future, borrowers will be able to obtain loans from Ally based on their own credit history free from discrimination based on race or national origin.”

Today’s settlement represents the first resolution of the department’s joint effort with the CFPB to address discriminatory auto lending practices. The 2010 Dodd-Frank Act gave both the DOJ and the CFPB authority to take action against large banks like Ally for violating the ECOA. Although the department has filed previously filed lawsuits alleging violations of ECOA involving car loans, today is the first ECOA lawsuit against an auto lender that operates nationwide.

In addition to the $98 million in payments for its past conduct and requirement to refund future discriminatory charges, the settlement requires Ally to improve its monitoring and compliance systems. The settlement allows Ally to experiment with different approaches toward lessening discrimination and requires it to regularly report to the department and the CFPB on the results of its efforts as well as discuss potential ways to improve results. The department commends Ally for working cooperatively to reach an appropriate resolution of this case. The department looks forward to Ally’s commitment, as part of the settlement, to work with the Civil Rights Division and the CFPB to find improved ways to fairly charge all consumers while also fairly compensating auto dealers for the services they provide.

The department’s enforcement of fair lending laws is conducted by the Fair Lending Unit of the Housing and Civil Enforcement Section in the Civil Rights Division. Since the Fair Lending Unit was established in February 2010, it has filed or resolved 30 lending matters under the Fair Housing Act, ECOA and the Servicemembers Civil Relief Act. The settlements in these matters provide for a minimum of $775 million in monetary relief for impacted communities and more than 535,000 individual borrowers. The Attorney General’s annual reports to Congress subject to ECOA highlight the department’s accomplishments in fair lending and are available at www.justice.gov/crt/publications.

The settlement provides for an independent administrator to locate victims and distribute payments of compensation at no cost to borrowers whom the department and the CFPB identify as victims of Ally’s discrimination. The department and the CFPB will make a public announcement and post information on their websites once more details about the compensation process become available. Borrowers who are eligible for compensation from the settlement will be contacted by the administrator, and do not need to contact the department or the CFPB at this time. Individuals who have auto loan questions or would like to submit a complaint can contact the CFPB at (855) 411-2372.

The Civil Rights Division, the U.S. Attorney’s Office for the Eastern District of Michigan and the CFPB are members of the Financial Fraud Enforcement Task Force. President Obama established the interagency Financial Fraud Enforcement Task Force to wage an aggressive, coordinated and proactive effort to investigate and prosecute financial crimes. The task force includes representatives from a broad range of federal agencies, regulatory authorities, inspectors general and state and local law enforcement who, working together, bring a powerful array of criminal and civil enforcement resources. The task force is working to improve efforts across the federal executive branch, and with state and local partners, to investigate and prosecute significant financial crimes, ensure just and effective punishment for those who perpetrate financial crimes, combat discrimination in the lending and financial markets and recover proceeds for victims of financial crimes. For more information on the task force, visit www.StopFraud.gov.

U.S. Civil Rights Commission Advisory Committee Report, “Unemployment Disparity in Minnesota” (August 2013)

Tuesday, December 10th, 2013

The State Advisory Committees to the U.S. Commission on Civil Rights

By law, the U.S. Commission on Civil Rights has established an advisory committee in each of the 50 states and the District of Columbia. The committees are composed of state citizens who serve without compensation. The committees advise the Commission of civil rights issues in their states that are within the Commission’s jurisdiction. More specifically, they are authorized to advise the Commission on matters of their state’s concern in the preparation of Commission reports to the President and the Congress; receive reports, suggestions, and recommendations from individuals, public officials, and representatives of public and private organizations to committee inquiries; forward advice and recommendations to the Commission, as requested; and observe any open hearing or conference conducted by the Commission in their states.

State Advisory Committee Reports

This report is the work of the Minnesota Advisory Committee to the U.S. Commission on Civil Rights. The report, which may rely on studies and data generated by third parties, is not subject to an independent review by the Commission staff. The views expressed in this report and the findings and recommendations contained herein are those of a majority of the Minnesota Advisory Committee members and do not necessarily represent the views of the Commission or its individual members, nor do they represent the policies of the U.S. government.

Executive Summary

On September 15, 2011, the Minnesota Advisory Committee to the U.S. Commission on Civil Rights held a daylong community forum which focused on the unemployment disparities in Minnesota, the underlying causes of the racial disparities, and recommendations for change. The presenters represented a range of perspectives and diverse backgrounds including business, government, community-based organizations, the faith community, and nonprofits.
The common thread that flowed through each of the presentations is the belief that Minnesota’s unemployment disparity, in which Blacks are more than three times as likely to be unemployed than their White counterparts, is detrimental to the African American community in particular, and to the current and future regional competitiveness of the State of Minnesota as a whole. This report includes various aspects of the testimony that was presented during the community forum, current trends that may be contributing to the racial disparities, and areas of opportunity to make a positive impact in closing the disparities in unemployment between Blacks and Whites in the Twin Cities metropolitan area.

This report follows two major reports that have been released in Minnesota in recent years to explore growing disparities between Whites and People of Color in Minnesota in income and employment. The first is a 2005 report by the Itasca Project and the Brookings Institute called “Mind the Gap” and the second is a report that was released in 2011 by the Ramsey County Blue Ribbon Commission entitled, “Everybody In.” Like previous reports, this report examines the demographic shifts occurring in the State of Minnesota and their impacts on current employment opportunities and future workforce preparedness; and the challenges that exist regarding educational attainment for African Americans in Minnesota. Further, this report provides an in depth analysis on topics that have not yet been fully explored in other reports examining unemployment disparities in Minnesota, such as the benefits of increasing access to government contracting opportunities; increasing access to capital for small and minority-owned businesses; and the impacts of arrest records and criminal justice contacts on African American employment prospects. While metropolitan areas across the nation are grappling with similar challenges, our research indicates that some of the issues that have resulted in intolerably high unemployment rates for African Americans are unique to Minnesota and the Twin Cities Metro area. It is our hope that the U.S. Commission on Civil Rights will assist the Minnesota Advisory Committee in formulating and implementing concrete recommendations that will address what some are calling a crisis in Minnesota.

Some of the potential causes for the disparity outlined in the report include the use of screening tools such as criminal background checks in the hiring process, and barriers to awarding contracts to small, minority-owned businesses. Although this report addresses challenges in Minnesota, it contains instructive information for all jurisdictions. For the full report, go to www.usccr.gov/pubs/MN.

“Adverse Actions” in Federal Civil Rights Discrimination Complaints

Sunday, December 1st, 2013

In a prior paper titled, “The ‘Basis’ of a Discrimination Complaint: What It Is and Why It’s Important,” we discussed the fact that 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 (also known as “adverse actions”) give rise to complaints of discrimination?

In the workplace.

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

√ Termination;
√ Nonselection for a job;
√ Nonpromotion;
√ Refusal to provide accommodation or modification;
√ Harassment or hostile environment (see prior paper titled, “Harassment and Hostile Environment: Understanding the Basics”); or
√ Receipt of an adverse performance appraisal.

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. There are countless other types of “adverse actions” that also 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 “adverse action.” Again, the “adverse action” must stem from a prohibited basis of discrimination to give rise to a complaint under federal civil rights laws.

For example, Michael, a person with a visual impairment, 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. Here, the “adverse action” is denial of a security clearance, but no civil rights violation has been alleged by Cheri. 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 to employees 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. 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 isn’t under 40 years of age, whether the employee comes to work in a wheelchair, or the like.

In federally-funded programs and activities.

Similarly, “adverse actions” in violation of federal civil rights laws can occur in 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, Medicare, environmental justice, workforce development, 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 civil rights laws.

There are a variety of “adverse actions” that may occur in 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 reasonable accommodation. For this component of the paper, we’ll illustrate some “adverse actions” unique to federally-funded programs and activities through use of examples related to the nondiscrimination requirements of Section 188 of the Workforce Investment Act of 1998. This civil rights law prohibits discrimination 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 an American Job Network Center or a Job Corps Center and, in this capacity, you investigate complaints of discrimination.

√ Denial of 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 that 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 was available only in English, then she has alleged a violation of federal civil rights laws. Notably, Maria alleges and “adverse action” (denial of access to apply for UI benefits) on a prohibited based (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, a large manufacturing company in the area, 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 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.

√ 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 has immigrated to the United States 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 is a counselor 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 requirement for referral to on-the-job-training (she had her high school diploma), 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 they 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, a majority of this 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, six 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).

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 leadership and staff understand both the federal nondiscrimination and equal opportunity laws applicable to the programs and activities you operate 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 (members of your public) of their rights under these laws. It is important to have policies and procedures in place ensuring nondiscriminatory delivery of aid, training, benefits, and services to your public, and to conduct periodic training so each person in your organization understands his or her role in delivering programs and activities 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.

About Seena Foster.

Seena Foster, award-winning civil rights author and Principal of the discrimination consulting firm, Title VI Consulting, LLP in Alexandria, Virginia, provides expertise and guidance in the areas of compliance and civil rights investigations to state and local governments, colleges and universities, private companies, and non-profit organizations. To that end, she offers one-hour on-demand webcasts, full-day and half-day in-person training sessions, and mediation services addressing a variety of types of discrimination such as racial discrimination, sex discrimination, disability discrimination, age discrimination, and religious discrimination. The federal law on discrimination is complex and affects our workplaces as well as the delivery of our federally funded programs and activities. Her book, Civil Rights Investigations under the Workforce Investment Act and Other Title VI Related Laws: From Intake to Final Determination, has been described as an “eye-opening” reading experience and a “stand-alone” training resource. Ms. Foster’s resources and materials are designed to support the work of civil rights and discrimination professionals in the public and private sectors.

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.

Title VI Consulting, LLP is an affiliate member of the National Association of State Workforce Agencies (NASWA). Ms. Foster is a graduate of the George Washington University Law School. You may contact her through www.titleviconsulting.com.

EEOC Holds Public Meeting on National Origin Bias: A Summary of the Meeting (November 15, 2013)

Friday, November 15th, 2013

On Wednesday, November 13, 2013, the U.S. Equal Employment Opportunity Commission held a public meeting on the issue of national origin-based discrimination in the workplace at its headquarters in Washington, DC.

A variety of advocacy groups and non-profit organizations participated alongside federal sector officials and counsel from private law firms. The range of topics included discriminatory treatment in a variety of areas related to national origin such as job assignments, pay inequity, recruitment, hiring, harassment, retaliation, and issues related to language and/or accent.

As one of six areas of priority in its strategic enforcement plan, the EEOC identified issues affecting immigrants, migrants, and other vulnerable worker populations that suffer national origin-based discrimination. Headed by EEOC General Counsel David Lopez, and Lead Coordinator Administrative Judge Lucilia Rosas, in 2011 the EEOC established an in-house team to address discriminatory practices, particularly with regard to immigrants, migrants, and other vulnerable workers such as victims of human trafficking. Education and outreach efforts have been ramped-up in areas with populations where English is spoken little or not at all. Materials and resources developed by the EEOC team are available in Spanish, Arabic, Chinese, Korean, Russian, Vietnamese, and Haitian-Creole.

National origin-based discrimination may occur in a variety of ways, including the use of screening tools by employers such as English-only requirements, or citizenship status, to exclude individuals from employment. Attendees stated the EEOC should provide clearer guidance that such screening tools or exclusionary job requirements should not be utilized absent a showing of “business necessity.” And, the EEOC should provide concrete examples of when English-only requirements are, and are not, appropriate. Given competing priorities, representatives of the EEOC were uncertain whether updated guidance on national origin-based discrimination would be forthcoming anytime soon.

And, problems associated with “job segregation” were discussed. In “job segregation,” immigrants, migrants, and other vulnerable workers are placed in positions that involve little or no customer contact. Typically, these segregated jobs offer less pay, and less opportunity for promotion or advancement. It was noted that, often in these situations, the employer cites to its “corporate image,” or presumed “customer preference,” for the segregation. The concept of “intersectional discrimination” also was discussed; that is, certain individuals may be the victims of discrimination on multiple bases such as religion, color, or race in addition to national origin.

Finally, “code switching” was discussed. This is where a bilingual employee changes from speaking English to his or her native language, which is a common occurrence for bilingual employees. Attendees encouraged the EEOC to develop guidance making clear that “code switching” should not serve as the basis for disciplining an employee.

Attendees of the meeting encouraged the EEOC to update its guidance in this area, and be more proactive in addressing national origin-based discrimination. Given the rapidly changing demographics of the country, it was agreed that this issue probably will take on greater prominence in the years to come.

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

U.S. Commission on Civil Rights: Discipline and Disparate Impact at Educational Institutions

Friday, October 18th, 2013

The following is the Letter of Transmittal and Executive Summary of a briefing on school discipline and disparate impact before the U.S. Commission on Civil Rights. The full text of the briefing may be found at http://www.usccr.gov/pubs/School_Disciplineand_Disparate_Impact.pdf.

Although the briefing focuses on “schools and school districts,” it offers valuable insights for all educational institutions, including colleges and universities.

School Discipline and Disparate Impact Briefing Before The United States Commission on Civil Rights
Held in Washington, DC
Briefing Report

Letter of Transmittal
The President
The President of the Senate
The Speaker of the House

Sirs:

The United States Commission on Civil Rights (“Commission”) is pleased to transmit this report, School Discipline and Disparate Impact. The report is drawn from a briefing that the Commission held on February 11, 2011 that examined the effect that the U.S. Department of Education’s Fall 2010 Disparate Impact initiative has had on schools and school districts across the country. This federal initiative was implemented to look at differences in discipline outcomes between students of color and other similarly-situated students.

The initiative’s aim is to identify whether the application of exclusionary discipline policies has had a disparate impact on students of color. During the briefing the panelists, teachers and administrators from racially diverse public school districts described how their particular schools have responded to this initiative. The Commission inquired as to whether the schools have changed their policies and practices and what those changes have been. In addition, the Commission inquired into whether school districts maintain comprehensive data that allows them to track the effectiveness of their discipline policies; whether teachers are appropriately trained to implement these policies; and what other methods are being used by districts to evaluate the effectiveness of their policies. Finally, the U.S. Department of Education provided background information on its disparate impact initiative and how the disparate impact theory is being implemented in its enforcement work.

The briefing identified a common theme among most of the teachers. This is that disciplinary problems can be greatly reduced through individualized instruction based on the student’s capabilities, cultural sensitivity or competency, parental involvement and support, and effective school leadership. School administrators indicated that disciplinary problems could be reduced through consistent application of a transparent and uniform school-wide disciplinary policy. Many of the school administrators also indicated that they had successfully reduced discipline disparities and overall expulsions through the adoption of nationally-tested behavior management programs.

This report was unanimously approved on October 21, 2011 by Chairman Martin R. Castro, Vice Chair Abigail Thernstrom, and Commissioners Roberta Achtenberg, Todd Gaziano, Gail Heriot, Peter Kirsanow, David Kladney, and Michael Yaki.

For the Commission,
Martin R. Castro
Chairman

Executive Summary

The Commission held a briefing entitled, “School Discipline and Disparate Impact” on February 11, 2011 to examine the effect of the U.S. Department of Education’s disparate impact initiative announced in the fall of 2010 for schools and school districts across the country. The Commission asked teachers and administrators from racially diverse public school districts how they have responded to the new initiative; specifically, whether their teachers and administrators have changed their policies and practices as a result, and what those changes were. The Commission was interested also in whether the districts kept statistics to track the effectiveness of policies; how they train their teachers in implementing discipline policies; and what other means the districts used to evaluate whether their policies worked.

The Commission asked the U.S. Department of Education (ED or Department) to describe its disparate impact initiative and supply case documents indicating the manner in which the Department implemented disparate impact theory in its enforcement work. The Department’s civil rights enforcement unit, the Office for Civil Rights (OCR), provided documents relating only to closed cases, which showed investigations that proceeded to resolution based initially on a disparate impact theory. The Department’s policy as stated during the briefing is that statistically disparate results create a presumption of discrimination that must be rebutted by the school or district with evidence that the school or district has a legitimate educational justification and that there are no equally effective alternative policies that would achieve the school’s educational goals. The Department indicated that it would continue to use disparate impact theory in its investigations, including those currently open, in addition to disparate treatment theory.

Teachers appearing before the Commission were Mr. Allen Zollman, Ms. Andrea Smith, Ms.Jamie Frank, Mrs. Louise Seng, and Mr. Patrick Welsh. Administrators appearing before the Commission were Ms. Suzanne Maxey, Principal at TC Williams High School in Alexandria City, Virginia; Dr. Osvaldo Piedra, Assistant Principal, East Lake High School, Pinellas County, Florida; Mr. Joseph Oliveri, Retired Director of Alternative Schools for the Austin Independent School District, Texas; Mr. Edward Gonzalez, Associate Superintendent, Department of Prevention and Intervention, Fresno Unified School District, Fresno County, California; Dr. Hardy Murphy, Superintendent, Evanston/Skokie District 65, Cook County, Illinois; Dr. Hertica Martin, Executive Director for Elementary and Secondary Education, Rochester Public Schools, Olmstead County, Minnesota; and Dr. Douglas Wright, Superintendent, San Juan School District, Blanding, Utah. Mr. Ricardo Soto, Principal Deputy Assistant Secretary for Civil Rights, Office for Civil Rights, U.S. Department of Education, appeared for the Department.

Points of agreement among most of the teachers were that disciplinary problems were greatly reduced among all students by attention to appropriate levels of difficulty in instructional materials, sensitivity to individual students and their backgrounds, parental involvement and support, and effective leadership by a school principal. Most, but not all of the teachers reported no effort by school administrators to interfere with classroom discipline, but some reported onerous procedural and paperwork burdens before any disruptive student could be removed from class.

Points of agreement among the school administrators were the importance of the following: telling students what the rules are; why the school has those rules, what the consequences are for violating those rules, and being consistent in applying the rules. Also effective in their view was maintaining an approach that sought ways to change the school to better meet the needs of the students, rather than inflexibly following a pre-set view or imposing zero-tolerance rules that students knew produced unfair results; training teachers in understanding different cultures and personalities; devising special programs for behaviorally high-risk students; instituting parent engagement and education programs; and/or adopting one of several nationally-tested behavior management programs that had reduced disparities and overall expulsions in other districts.

Two of the speakers (Dr. Wright, San Juan, Utah and Dr. Martin, Rochester, Minnesota) were administrators from districts currently under investigation by the U.S. Department of Education’s Office for Civil Rights for possible violations under the new discipline initiative. Dr. Wright’s district uses nationally-tested behavioral support programs mentioned by other speakers, expanded the role for guidance counselors, and instituted a student support system; Dr. Martin’s district uses some of the same techniques and nationally-tested programs discussed in the briefing. Mr. Soto of the U.S. Department of Education’s Office for Civil Rights (OCR) provided an overview the office’s work and mission, which is to ensure equal access to education through vigorous enforcement of civil rights. Mr. Soto stated that OCR’s disparate impact initiative stemmed from data showing a sharp increase in the numbers of students nationwide who were suspended or expelled, which OCR views as an indication of possible violations of Title VI of the Civil Rights Act of 1964 and addresses using both disparate treatment and disparate impact theories.

The Justice Department’s Office of Special Counsel Offers Outreach Presentations on Immigration-Related Unfair Labor Practices

Friday, September 13th, 2013

Justice Department news release dated September 13, 2013:

The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), in the Justice Department’s Civil Rights Division, is responsible for enforcing the anti-discrimination provisions of our nation’s immigration law. Employers must know that while they have the obligation to obey immigration law by hiring only authorized workers, they also must not violate anti-discrimination laws when hiring or firing workers. Specifically, the law prohibits employers from four types of discriminatory acts: First, employers may not refuse to hire and may not terminate workers authorized to work in the United States because of national origin or citizenship status. For example, employers may not refuse to hire a job applicant because of the
applicant’s foreign appearance or accent.

Second, employers may not require job applicants to hold certain citizenship or visa status unless mandated by law or government contract. This means that preferences for U.S. citizens or temporary visa holders are against the law. In fact, any preference for undocumented workers over legal workers also may be a violation of immigration law as well as citizenship status discrimination. Third, employers may not discriminate by demanding more documents than what the law requires from workers to prove identity or eligibility to work in this country. A list of acceptable documents is provided on the back of the Employment Eligibility Verification form (commonly known as Form I-9), which employers must complete for all newly hired workers. Finally, employers may not retaliate against workers who assert their rights under these anti-discrimination laws. Employers who discriminate or retaliate against workers may be required to hire or rehire the worker, pay back wages, or change internal policies to avoid further discrimination.

Employers also may become liable for monetary fines or the workers’ legal fees. To better understand workers’ rights or employers’ responsibilities under these anti-discrimination laws, please visit OSC’s website at http://www.usdoj.gov/crt/osc/. OSC also operates telephone hotlines where OSC’s
attorneys and investigators resolve employers’ questions about properly completing the “I-9″ process, and ensuring that legal workers do not lose their jobs because of a misunderstanding of the law. The number for employers to call is 1-800-255-8155, or 1-800-237-2515 (TDD for hearing impaired). Workers may call 1-800-255-7688, (202) 616-5525 or 1-800-237-2515 (TDD for hearing impaired).

Workers who believe that they were denied jobs or were terminated from jobs because of national origin or citizenship status may file a charge against the employer with OSC. The charges must be filed within 180 days of the alleged act of discrimination. Workers may obtain a charge form from
http://www.usdoj.gov/crt/osc/htm/charge.htm or by calling OSC at (202) 616-5594 or 1-800-255-7688 (toll free). The hearing impaired may call (202) 616-5525 or 1-800-237-2515 (toll free). Workers may file the charge via facsimile at (202) 616-5509, or by mail to: Office of Special Counsel for Immigration-Related Unfair Employment Practices/NYA, 950 Pennsylvania Avenue, N.W., Washington, D.C. 20530. In the event that the
particular allegations fall outside of OSC’s jurisdiction, OSC will refer the charge to the Equal Employment Opportunity Commission (EEOC) on the worker’s behalf.

One effective way to become familiar with these rights and obligations is to take advantage of OSC’s public education and outreach resources. Each year, OSC conducts hundreds of outreach presentations to workers and employers across the country. To request an OSC speaker for your local chapter or for any
other community organization, please call any of the numbers listed above and ask for OSC’s public affairs specialist. We look forward to working with workers and employers across the country to eliminate citizenship status and national original discrimination.

Justice Department’s Office of Special Counsel Offers New Complaint Form in Multiple Languages for Allegations of National Origin-Based and Citizenship-based Discrimination

Wednesday, July 17th, 2013

Individuals who believe they have suffered discrimination may call the OSC toll-free Worker Hotline at 1-800-255-7688 [Voice] or 1-800-237-2515 [TTY].

OSC staff members (who have access to language interpreters) can help workers by calling employers and explaining proper verification practices and, when necessary, by providing victims of discrimination with charge forms. Upon receipt of a charge of discrimination, OSC investigations typically take no longer than 7 months. Victims may obtain various types of relief, including job relief and back pay.

To file a charge, please mail or fax the charge form to:

Office of Special Counsel for Immigration-Related Unfair Employment Practices
Civil Rights Division
US Department of Justice
950 Pennsylvania Avenue, NW (NYA)
Washington, DC 20530

Direct Office Line: 202-616-5594
Worker Hotline: 1-800-255-7688
Employer Hotline: 1-800-255-8155
Teletypewriter (TTY): 202-616-5525 & 1-800-237-2515
Fax: 202-616-5509

You can also print and sign the charge form and send it as an email attachment to our OSC mailbox at: osccrt@usdoj.gov.

Forms

English

Spanish

Chinese

Vietnamese

Arabic

Haitian Creole

Korean

Russian

Tagalog

Justice Department’s Civil Rights Division Enters into Memorandum of Understanding with National Labor Relations Board: New Enforcement Strategy for Anti-Discrimination Requirements of the Immigration and Nationality Act

Wednesday, July 10th, 2013

In a press release dated July 8, 2013, the U.S. Department of Justice states the following:

The Justice Department announced today that the Civil Rights Division’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has entered into a Memorandum of Understanding (MOU) with the National Labor Relations Board, formalizing a collaborative relationship that allows both agencies to share information, refer matters to each other and coordinate investigations as appropriate. OSC is responsible for enforcing the anti-discrimination provision of the Immigration and Nationality Act, which prohibits citizenship status and national origin discrimination in hiring, firing and recruitment or referral for a fee, as well as discriminatory Form I-9 and E-Verify practices. The National Labor Relations Board (NLRB) is an independent agency that enforces the National Labor Relations Act, which protects the rights of most private-sector employees to join together, with or without a union, to improve their wages and working conditions.

The MOU will allow the NLRB to make referrals to OSC, with the express authority of the NLRB charging party, when a matter before the NLRB suggests a possible violation of the anti-discrimination provision, such as verification of employment authorization, in the I-9 or E-Verify process, that appears to be discriminatory based on citizenship status or national origin. Similarly, the department will refer matters to the NLRB that appear to fall within that agency’s authority, such as infringement on the right to form, join, decertify or assist a labor organization, and to bargain collectively through representatives of their own choosing or to refrain from such activities. The MOU also provides for cross-training and technical assistance to ensure that staff within each agency can identify appropriate referrals. OSC has more than 50 partnership agreements with federal, state and local agencies, including U.S. Citizenship and Immigration Services and the Equal Employment Opportunity Commission.

“Employers cannot avoid liability under the law just because an employee has turned to the wrong agency or is unaware of additional protections available under a different law. Employees deserve to benefit from the efficiency of government cooperation, and employers will continue to benefit from agency guidance on how to comply with the anti-discrimination provision and the National Labor Relations Act,” said Gregory Friel, Deputy Assistant Attorney General for the Civil Rights Division.

For more information about protections against employment discrimination under the immigration laws, call OSC’s worker hotline at 1-800-255-7688 (1-800-237-2525, TTY for hearing impaired), sign up for a free one-hour webinar at www.justice.gov/crt/about/osc/webinars.php, email OSC at osccrt@usdoj.gov, or visit OSC’s website at www.justice.gov/crt/about/osc.

√             About Seena Foster

Seena Foster, award-winning civil rights author and Partner of the discrimination consulting firm, Title VI Consulting, LLP in Alexandria, Virginia, provides expertise and guidance in the areas of compliance and civil rights investigations to state and local governments, colleges and universities, private companies, and non-profit organizations.  To that end, she offers Webinars, full-day and half-day in-person training sessions, assistance developing procedures, and mediation services addressing a variety of types of discrimination such as racial discrimination, sex discrimination, disability discrimination, age discrimination, and religious discrimination.  The federal law on discrimination is complex and affects our workplaces as well as the delivery of our federally funded programs and activities.  Her book, Civil Rights Investigations Under the Workforce Investment Act and Other Title VI Related Laws:  From Intake to Final Determination, has been described as an “eye-opening” reading experience and a “stand-alone” training resource.   Ms. Foster’s resources and materials are designed to support the work of civil rights and discrimination professionals in the public and private sectors.  You may contact her through www.titleviconsulting.com.