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“Auxiliary Aids and Services Available on Request to Persons With Disabilities”

Saturday, September 15th, 2018

If you operate or administer federally funded programs and activities, or if you are a state or local government agency, federal civil rights laws require that you include the foregoing notice on all publications, broadcasts, and other communications. These federal laws are the Rehabilitation Act of 1973, the Americans With Disabilities Act of 1990, and the Americans With Disabilities Act Amendments Act of 2008. The idea here is that persons with sensory, manual, or speaking disabilities are entitled to nondiscrimination and an equal opportunity to participate in, and enjoy the benefits of, programs or activities funded by the United States government.

What are some examples of written communications that must include this notice?

The “auxiliary aids and services” notice must be included on a variety of written materials, including:

√ outreach materials
√ recruitment materials
√ orientation packets
√ brochures
√ written advertisements
√ application, registration, and enrollment forms
√ participant and employee manuals and handbooks

Take a look at the written and electronic materials that you distribute to staff, clients, and the public. Make sure these communications contain the “auxiliary aids and services” notice. An easy and inexpensive fix for written communications that do not currently provide the notice is to create computer-generated labels and affix these labels to the communications.

What does “auxiliary aids and services” involve?

Auxiliary aids and services encompass a wide variety of tools that you may use to assist persons with disabilities, including:

√ qualified readers
√ notetakers
√ taped texts
√ audio recordings
√ brailled materials
√ large print materials
√ equipment, devices, and software (such as assistive hearing devices, speech recognition software, and so on)
√ TDD/TTY or telephone relay service. Keep in mind here that any communication containing your telephone number must also include the TDD/TTY number or the number of the relay service you use. You must also make sure these numbers are operational and staff is trained regarding their use.
√ Qualified sign language interpreters

It is important to remember that any “auxiliary aid or service” must be provided at no charge to the individual with a disability.

What are your obligations to communicate to individuals with disabilities?

You have the obligation to “effectively” communicate with persons who have mobility, hearing, and visual impairments. “Effective” communication means it gets the job done. Often, this may be accomplished through use of auxiliary aids and services. And, keep in mind that:

√ You must provide persons with disabilities information as to the existence and location of accessible services, activities, and facilities; and

√ You must post the international symbol for accessibility at each primary entrance to an accessible facility. For inaccessible facilities, you must provide signage at the primary entrances, which directs folks to a location where they may obtain information about accessible facilities. See 41 C.F.R. § 101-19.6.

To whom do you have these obligations?

You are obliged to offer “auxiliary aids and services” to a variety of categories of persons with disabilities, including:

√ beneficiaries
√ registrants
√ applicants
√ eligible applicants and eligible registrants
√ participants
√ applicants for employment (for example, you may
need to provide accommodation for the interview
process, such as a qualified interpreter when
interviewing persons with hearing impairments)
√ members of the public

In determining the type of auxiliary aid or service to provide, you must give primary consideration to the request of the individual with a disability. A request for an “auxiliary aid or service” constitutes a request for reasonable accommodation or reasonable modification. Such a request must be reviewed and considered on a case-by-case basis; you cannot impose “blanket” policies or procedures. And, while you may consider “undue hardship” in providing accommodation, the process for considering a reasonable accommodation request is an interactive one and, in the end, you are obliged to provide an accommodation that is “effective.”

What are the obligations of private employers?

So far, we have focused on the obligations of entities that administer and/or operate federally funded programs and activities as well as the obligations of state and local governments with regard to persons with disabilities. Turning to private employers, the U.S. Department of Justice and the U.S. Equal Employment Opportunity Commission (EEOC) provide guidance for employers of 15 or more employees.

While private employers are not required to have the “auxiliary aids and services” notice on all their communications, these employers are prohibited by federal civil rights laws from discriminating against “qualified individuals with disabilities” with respect to the terms, conditions, and privileges of their employment. Discrimination may occur in a variety of employment practices, such as:

√ hiring and firing
√ job application procedures
√ job assignment
√ training
√ promotions
√ wages
√ benefits (including health insurance)
√ leave

A “qualified individual with a disability” is an individual who: (1) meets the bona fide occupational requirements (i.e., legitimate skill, education, and experience requirements for the job); and (2) can perform the “essential functions” of the job (otherwise defined as the core duties that are the reason for existence of the job position). The person with a disability must meet these two criteria even without accommodation to be deemed “qualified.” On the other hand, a private employer is prohibited from disqualifying this person on grounds that s/he is unable to perform marginal or incidental job functions. See also prior paper titled, “The Meaning of Disability.”

If a “qualified individual with a disability” requests accommodation, the private employer must consider the accommodation request. Accommodation requests may take the form of:

√ requesting an auxiliary aid or service as described above
√ restructuring a job
√ modifying or adjusting the work environment
√ making existing facilities accessible to, and useable by, persons with disabilities
√ modifying work schedules
√ reassigning a current employee to a vacant position for which the employee is qualified

The purpose of providing reasonable accommodation is to allow the qualified individual with a disability the opportunity to contribute fully in the workplace and enjoy the benefits and privileges of employment.

A private employer should give consideration to a person’s accommodation request, but the employer is not required to provide accommodation if it would create “undue hardship.” Under hardship is an action that constitutes “significant difficulty or expense” in relation to the size of the employer, the employer’s resources, and the nature of the employer’s operation. This may also involve health and safety concerns; specifically, the individual poses a “direct threat” to self and/or others. Accommodation requests and considerations of undue hardship must be made on a case-by-case basis.

Seena Foster is an attorney and award-winning author of “Civil Rights Investigations Under the Workforce Investment Act and Other Title VI-Related Laws: From Intake to Final Determination.” She is also a Partner with Title VI Consulting in Alexandria, VA. You may visit her website at www.titleviconsulting.com.

Political Affiliation Discrimination by Seena Foster

Wednesday, September 5th, 2018

Political affiliation discrimination occurs when an adverse action is taken against a person based on the person’s political affiliation or beliefs. Political affiliation discrimination may arise in federally-assisted programs and activities as well as in the workplace. As the equal opportunity professional for your agency or organization, you must know the federal civil rights laws that apply to your agency or organization, and whether those laws prohibit discrimination on the basis of political affiliation.

We are going to explore two areas where political affiliation discrimination is prohibited by federal civil rights laws—one example involves federally-assisted programs and activities under the Workforce Innovation and Opportunity Act (WIOA), and the second example involves employment decisions of public employers.

Federally-assisted programs and activities

Starting with federally-assisted programs and activities, Section 188 of WIOA prohibits discrimination in certain workforce development programs on a variety of bases, including political affiliation or belief. Unemployment insurance benefits, employment referral services, on-the-job training, resume writing, and interview skill development are some examples of the aid, training, services, and benefits funded by the federal government through WIOA. American Job Network centers, Job Corps centers, and certain community colleges are prime examples of WIOA-Title I funded recipients and sub-recipients that are prohibited from engaging in political affiliation discrimination in delivering aid, benefits, services, and training to the public. And, any state, U.S. territory, or other recipient receiving WIOA-Title I funds also must comply with WIOA’s prohibition on political affiliation discrimination.

To provide an example of political affiliation discrimination prohibited by WIOA Section 188, let’s say that a new political party received the majority of votes in your state or U.S. territory. Members of the new party take office and they issue a Request for Proposals (RFP) for organizations and companies to apply for WIOA grant monies to deliver training to unemployed persons. Reviewers of the 100 proposals select 25 organizations and companies for the WIOA grants. Of these 25 entities, a total of 24 entities are owned by persons whose known political affiliations are aligned with those of the new party in office. Only one entity has a known political affiliation with the former party in power. Of the 75 entities not selected for the grants, 55 have known political affiliations with the former party, 5 have unknown political affiliations, and 15 have known affiliations with the new party. If the new party has, in fact, considered an entity’s political affiliation in determining whether the entity would receive a WIOA-funded grant, then the new party has engaged in political affiliation-based discrimination in violation of the nondiscrimination mandates of WIOA Section 188. As a result, the RFP process would be null and void.

So, if you administer or operate WIOA-Title I programs or activities, you are prohibited from basing your decisions regarding delivery of aid, benefits, services, or training on an applicant’s, participant’s, or beneficiary’s political affiliation or belief. As the equal professional for an agency or organization operating these programs, you must train staff and decision-makers that aid, benefits, training, and services cannot be doled out based on political affiliation. Monitor your systems of delivery to ensure continued adherence to this nondiscrimination mandate.

Public employers

Turning to the workplace, the Civil Rights Act of 1871, which applies to public employers and is codified at 42 U.S.C. § 1983, prohibits political affiliation discrimination. Public employers include state and local governments as well as other entities like publicly-funded colleges and universities, the police, and so on. This federal civil rights law requires that employment decisions, such as selection, promotion, and termination cannot be based on consideration of the employee’s or potential employee’s political affiliation or belief.

Take, for example, the case of Wagner v. Jones, 664 F.3d 259 (8th Cir. 2011), where the Dean of a publicly-funded college of law denied a legal writing teaching position to an applicant because of the applicant’s political affiliation. Notably, the applicant’s conservative political affiliations and beliefs were apparent from her resume, which reflected a background with certain conservative educational institutions and employers. Evidence of record demonstrated that one out of 50 law school faculty members at the college was a registered Republican. And, the court noted that two, less experienced applicants were later hired for the position at issue. In the end, the court concluded that the Dean presented insufficient evidence to demonstrate that the applicant’s political affiliation was not a factor in the employment decision.

So, if you are the HR/EEO professional for a public employer, engage in training and outreach to managers and supervisors, including political appointees at the highest levels of your agency or organization, and inform them of them of their obligations and responsibilities of nondiscrimination based on political affiliation. Help them understand that political affiliation discrimination can take many forms from the more commonplace acts of non-selection, non-promotion, and termination to other acts such as engaging in hostile environment based on political affiliation, providing an adverse performance appraisal, relocating a worker to a less desirable office, and so on. Managers and supervisors should base employment-related decisions on the knowledge, skills, and abilities evident from an applicant’s educational background and experience, not the applicant’s political affiliation or belief.

However, for public employers, there is an exception to this rule that merits comment. Notably, employment decisions related to “confidential” employees and senior “policy-makers” may be based on the employee’s or potential employee’s political affiliation or belief without running afoul of federal civil rights laws. Keep in mind that this exception will apply to a very narrow category of folks working for, or seeking to work for, a public employer.

Here, we’ll take a look at another circuit court case that is illustrative. In Soderbeck v. Burnett County, Wisconsin, 752 F.2d 285 (7th Cir. 1985), the circuit court was confronted with a newly-elected sheriff’s decision to terminate an office employee because the employee was the wife of the former sheriff who lost the election. The Seventh Circuit provides a helpful discussion on the issue of “confidential” employees and “policy-makers” in the context of political affiliation discrimination:

A public agency that fires an employee because of his political beliefs or political affiliations infringes his freedom of speech, see Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), but there are exceptions to this principle, carved out to minimize its adverse impact on the effective functioning of government. For example, employees at the policy-making level of government can be fired on political grounds. Id. at 367-68 (plurality opinion); Shakman v. Democratic Organization of Cook County, 722 F.2d 1307, 1309-10 (7th Cir.1983) (per curiam). Mrs. Soderbeck was not a policy maker; but if, as the defendants argue, she was the sheriff’s confidential secretary, then Kellberg could fire her without violating the Constitution. See Stegmaier v. Trammell, 597 F.2d 1027, 1038 (5th Cir.1979) (dictum). You cannot run a government with officials who are forced to keep political enemies as their confidential secretaries, and Mrs. Soderbeck was the political enemy of her husband’s political enemy, Kellberg. Any implication of the plurality opinion in Elrod v. Burns that only a policy maker is unprotected by the principle announced in that case was superseded by the broader formulation in the majority opinion in Branti v. Finkel, which allows an employee to be fired if ‘the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.’ 445 U.S. at 518, 100 S.Ct. at 1294. See also Livas v. Petka, 711 F.2d 798, 800-01 (7th Cir.1983). It need not be a policy-making office. If Rosalynn Carter had been President Carter’s secretary, President Reagan would not have had to keep her on as his secretary.

Mrs. Soderbeck, however, had been trained as a bookkeeper and her title was bookkeeper, not secretary or confidential secretary; and though she did do most of the typing in the sheriff’s office, there was evidence that if the sheriff needed something typed he would hand his handwritten draft to whoever in the office was handy. Burnett County has a population of only 12,000 and a tiny sheriff’s office whose six employees at the time of Mrs. Soderbeck’s termination did not have sharply differentiated tasks; it was only after she was fired that a position of “confidential secretary” was created with a different job description from that of the bookkeeper’s position that Mrs. Soderbeck had occupied. So while she did typing and handled legal papers, such as summonses and warrants, the other employees did these things too. She also did janitorial work, and performed domestic chores for the prisoners in the county jail (which is in the same building as the sheriff’s office and home) as jail matron and laundress–not the usual functions of a confidential secretary. And she did not take dictation–no one in the office did. If she could be fired as a confidential employee, so could anyone else employed in the office, on the theory that if an office is small enough the tasks usually performed by the boss’s personal secretary may be parceled out among all the employees.

This is not to say that Mrs. Soderbeck was, as a matter of law, an employee who could not be fired because of her political affiliation. It is to say merely that the question was sufficiently uncertain to be one for the jury to decide. The defendants argue that whether or not an employee exercises a policy-making role or is a repository of confidences that make loyalty an essential part of his job description should always be a question of law, but we cannot agree with this point, for which no authority is offered, and which has been rejected in previous cases in this and other circuits. See, e.g., Nekolny v. Painter, 653 F.2d 1164, 1169 (7th Cir.1981); Stegmaier v. Trammell, supra, 597 F.2d at 1034 n. 8, and cases cited there.

If you are the HR/EEO professional for a public employer seeking to terminate, or take some other adverse action, against an employee because of the employee’s political affiliation, make sure the employee falls in the category of a “policy-maker” or “confidential employee.” While job titles and job descriptions may assist in this determination but, standing alone, job titles do not determine the outcome. You’ll need to get into the weeds of the employee’s actual day-to-day job duties and functions. Concluding that an employee is, or is not, a “policy-maker” or a “confidential employee” involves very fact specific findings that must be made on a case-by-case basis.

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.” In 2007, Ms. Foster was certified as a mediator by the Virginia Supreme Court, and later obtained “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.

The “Basis” of a Discrimination Complaint: What It Is and Why It’s Important by Seena Foster

Friday, June 15th, 2018

A discrimination complaint is filed when someone feels that s/he has been unfairly or unjustly treated as compared to someone else. Sometimes, the person believes that a process or criteria has been inefficiently or inconsistently applied to him or her as compared to another person.

There may be any number of reasons for the alleged differing treatment, yet only certain reasons are prohibited by law. The reason for alleged differing treatment constitutes the complaint’s “basis” or, in the case of multiple reasons, the “bases” of discrimination.

Why is the “basis” of a discrimination complaint important to the Equal Opportunity (EO) professional? It is one of the critical factors used in determining whether a violation of applicable civil rights laws has been alleged. While it is true that any form of discriminatory conduct or preferential treatment is offensive and unfair, not all conduct is illegal.

Federally-funded programs and activities

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

While the foregoing statutes set forth prohibited bases of discrimination across the board in federally-funded programs and activities, there are certain statutes delineating additional prohibited bases of discrimination, which are applicable to specific types of programs and activities. For instance, Title IX of the Education Amendments Act of 1972 (Title IX) prohibits discrimination on the basis of sex or gender in federally-funded educational programs and activities. And, one of the most expansive civil rights laws applies to certain workforce development programs and activities. Notably, Section 188 of the Workforce Innovation and Opportunity Act (WIOA) of 2014 prohibits discrimination on the previously-mentioned bases of race, color, national origin, age, disability, and gender. And, it contains the following additional prohibited bases of discrimination: religion, political affiliation or belief, citizenship, and WIOA-participant status.

To illustrate the concept of “basis” and its importance, we’ll look at a couple of examples. First, let’s assume that Michelle wants to enroll in a GED program at a nearby public college, which receives WIOA-related funding from the U.S. Department of Labor as well as financial assistance from the U.S. Department of Education. The admissions officer of the college does not permit Michelle to complete the enrollment form because Michelle has been pregnant five times in the past seven years. Michelle files a complaint. Here, Michelle has filed a complaint alleging gender-based discrimination; that is, Michelle alleges that she is subjected to discrimination (not allowed to enroll) because of her history of pregnancies and, since pregnancy is unique to women, this is an allegation of gender-based discrimination. Because the college operates its programs and activities using federal dollars, the delivery of these educational programs and activities is governed by Title IX, which prohibits gender-based discrimination. And, gender-based discrimination at this college also is prohibited under WIOA Section 188. So, Michelle’s complaint alleges illegal discrimination.

Now, let’s turn to Joe, who alleges that he is being denied on-the-job-training through a WIOA-funded American Job Network center because he is homeless. If we look at the prohibited “bases” of discrimination under WIOA Section 188, we see that “homelessness” is not listed. Undoubtedly, discrimination against a person because s/he is homeless is offensive and unfair, but the WIOA EO professional does not have authority to investigate Joe’s complaint under WIOA Section 188 because his complaint does not allege a “basis” of discrimination prohibited by those laws.

If you are an EO professional for your agency, organization, or company, you must know the civil rights laws that apply to your federally-funded programs and activities. Review these laws to determine the prohibited “bases” of discrimination in the delivery of your programs and activities. If you receive a discrimination complaint, you will need to ensure that the alleged basis of discrimination is prohibited by one or more civil rights laws governing your programs and activities before you consider accepting the complaint for investigation.

In the workplace

If you are an EEO/AA/HR professional in the workplace, you also will need to know the federal, state, and local civil rights laws applicable to workplace discrimination. As with laws governing federally-funded programs and activities, civil rights laws governing the workplace will delineate certain prohibited “bases” of discrimination. These workplace “bases” include age (40 years of age and over), disability, equal compensation, genetic information, national origin, sex (including pregnancy and sexual harassment), race, color, and religion.

As an example, 46-year-old Mario alleges he was transferred to a less desirable office location and, recently, he has been excluded from monthly management meetings as compared to a 28-year-old colleague who continues to attend the meetings and occupies a highly, sought-after office location in the company. Here, Mario has filed an age-based discrimination complaint, and you would have authority to investigate that complaint under the Age Discrimination in Employment Act.

On the other hand, Joan files a discrimination complaint alleging that her supervisor does not like her and gave her a poor performance review because she is vocal in her disagreement with the supervisor’s policies. This complaint does not allege any “basis” of discrimination prohibited by federal or state civil rights laws. Notably, “personality conflicts,” “policy differences,” or “disagreements” are not among the prohibited bases of discrimination in the workplace. As a result, you would not have authority to investigate Joan’s complaint.

Conclusion

As an EO professional, it will save you time to make a list of the prohibited “bases” of discrimination under the civil rights laws applicable to your federally-funded programs and activities. For the EEO/AA/HR professional, you’ll need to have a clear understanding of the civil rights laws applicable to your employment practices. This knowledge, in turn, will help you quickly assess whether a complaint alleges illegal discrimination. For complaints that allege discrimination on a prohibited basis, you must ensure all other jurisdictional requirements are met prior to accepting the complaint for investigation. For complaints that do not allege discrimination on a prohibited basis, you do not have jurisdiction to investigate the complaint under federal civil rights laws, but you may determine that issues raised in the complaint may be addressed informally (such as by taking steps to address customer service issues in the delivery of federally-funded programs and activities), or through the non-discrimination grievance process in place at your agency, organization, or company for workplace-related complaints.

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 on-demand webcasts, 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. To learn more about Ms. Foster, and the services she has to offer, go to www.titleviconsulting.com.

Elements of an Inclusive Workforce Development System

Thursday, February 15th, 2018

The following excerpt is from remarks delivered by Ms. Foster at a national Equal Opportunity Conference in Washington, DC:

It is a privilege for me to be here today, and this has been such an impressive line-up of civil rights experts.

The importance of you and the equal opportunity work you perform in the field of workforce development at this pivotal time in our country’s history cannot be overstated. If we hope to have a stronger, more stable economy at the national level, it must start with you at the local level.

Underlying everything we do in the field of equal opportunity is the concept that we don’t leave segments of our population behind to dead end. We want to help folks in our communities get jobs, or get better jobs. We want to find a way for all members of our community to engage and be productive, contributing citizens.

The vast majority of us and vast majority of the citizens in our communities are not independently wealthy. So, if we aren’t working, we aren’t earning money. And, if we aren’t earning money, we aren’t able to put a roof over our heads, food on the table, or clothes on our backs. And, where does that lead? Logically, it leads to increased demand on our safety net programs—homeless shelters or public housing, food stamps, free medical care, the list goes on.

No one has ever been able to explain to me how a stronger, more stable economy is built on leaving segments of a community behind in our workforce development programs whether it is women, minorities, limited English proficient persons, persons with disabilities, folks of a certain age, Veterans, or folks of certain religious beliefs.

Getting systems in place to move all of our populations forward, and training staff on the use of these systems, is where we need to spend a little time and thought as equal opportunity professionals. Not every customer is going to move along the same track, or at the same pace. The point is to get them moving as opposed to setting them off to the side.

As you work to develop inclusive workforce development systems, keep in mind these four core elements—communication, access, integration, and individualized treatment—must be front and center in your planning. Every speaker here today has addressed one or more of these elements. And, I am going to briefly describe each of these elements, and why they are important.

Communication

Communication takes two forms. First, is the one most of us think of immediately; that is, being able to understand what a customer is saying, and ensuring the customer understands us. So, if establishing that baseline communication with our customer means using a sign language interpreter, captioning, or a language line, than that is what needs to happen.

Now, the next level of communication involves “notice.” Notice to the public of what programs we have to offer, notice about how to access our programs, and notice that we operate these programs in compliance with the nondiscrimination and equal opportunity mandates of WIOA Section 188. Providing notice includes prominently displaying that “Equal Opportunity Is the Law” notice wherever we do business, and publishing our discrimination complaint procedures and forms.

On the other end of things, notice also includes making sure employers, to the extent they use screening tools like e-Verify or criminal background checks, give notice of any disqualifying adverse information to the potential applicant and allow the applicant an opportunity to explain or dispute it.

So, an inclusive workforce development program means we are able to communicate with our customers, and we convey important notices to them about their rights and our obligations under the nondiscrimination and equal opportunity provisions of WIOA Section 188.

Access

Access is another core element of an inclusive program. Access means folks have access to apply for, or participate in, our programs or activities. And, denial of access can take a variety of shapes.

One example is holding a training course on the first floor of a building, but folks have to get up the two steps at the entrance to the building. Without a ramp, some folks with mobility disabilities, who qualify to take this course, would be denied access to participate.

Another example of denial of access is one that I came across when I visited a particular locality to conduct training. The job referral counselor at the center would not even consider women for construction-related training or apprenticeship programs in welding, carpentry, masonry, and so on. Here, women who met the essential eligibility requirements for such training were denied access to even to apply for these programs.

And, access is a rising issue as we move forward with more internet-based application and enrollment processes. We are at the very beginning of what I describe as the incoming technology tsunami. The harnessing and use of various technologies on the market will undoubtedly strengthen many aspects of our workforce development programs and activities by building in efficiencies at a greater savings of staffing and money resources.

We’ve already seen the use of technology increase exponentially in the processing of unemployment insurance claims. And, the use of technology is growing in other areas such as computerized matching of a customer’s skills to available jobs in the market.

While these advances work for the vast majority of our populations, certain segments of our community’s population will be left behind. Persons with certain disabilities, and folks who are not able to read or write English very well could be denied access to programs for which they would otherwise be qualified.

I’ve heard some folks ask, why should we build systems around the exceptions? These folks need to come into the 21st Century.

Keep in mind, there is room in this country for all of us. Not every job out there requires an IT background, or access to the Internet. Not every job requires the ability to read, write, or speak English. Landscapers, cleaners, movers, certain construction trades, and caregivers are some examples of occupations that may not require IT savvy, access to the internet, or the ability to speak or understand English.

And, you’ve got some folks who are IT-savvy and understand English but, for example, they have a disability and need some type of auxiliary aid or service to navigate the internet application process.

The key here is to figure out what safety valves can be put in place in your particular community to ensure these populations aren’t left out. And, I think this is an excellent opportunity for the kinds of civil rights experts we’ve heard from today to establish a working group that includes folks like you and other interested stakeholders to work collaboratively to come up with some “best practices,” develop low or no cost resources, and generate ideas for resource-sharing and partnerships in our communities, to get these safety valves in place.

Integration

Beyond communication and access, we have the element of integration.

Decades ago, “Separate but Equal” was considered an acceptable way of doing business—whites could go to certain schools, blacks could go to other schools. Wisdom prevailed and we learned as a society that it is not healthy to divide ourselves by the color of our skin. Each of us has value beyond these surface qualities.

Unfortunately, the “Separate but Equal” concept is still with us, but it has morphed into other areas.

I’ll give you an example.

Too often, our workforce development programs are designed to channel persons with disabilities into separate tracks out of the gate. Regardless of the disability, or what the customer would like to do, we channel the customer to a single person at the center, or to rehabilitative services.

Earlier this year, I was asked to conduct training at a particular locality and visited one of its centers to gather a better understanding of how that locality operated its workforce development programs. The center had four job referral counselors. However, any person with a disability, regardless of the disability, would be referred to the one counselor designated as the “disability job referral counselor.” And, if that counselor was in a meeting, out of the office, or otherwise unavailable, the person with a disability had to make an appointment to come back another day.

On this particular day, a customer who was deaf came in and handed the greeter a resume and a card asking for sign language interpreter services so he could meet with a job referral counselor.

The “disability job referral counselor” at the center was out on vacation, one other counselor had a customer in her office, and two counselors were available.

At first, the center manager was going to ask the gentleman to reschedule a time the following week when the disability job referral counselor returned from vacation.

But, after a little discussion, the center manager called for a sign language interpreter who would arrive in the next 30 to 40 minutes. And, the manager had one of the available counselors at the center call the relay line in the meantime to get the process started.

As an aside, I’ll tell you that the customer on this particular day was a CPA and had advanced degrees in accounting as well as executive level accounting experience for a large company. He had relocated because of his wife’s change of jobs, and wanted assistance finding a job in his new community.

Here, the center provided assistance to him on the day he came, and did not ask that he make an appointment to come back in one or two weeks when the “disability job referral counselor” returned from vacation.

So, offering integrated services means here that each counselor should be able to take each customer in order, without regard to whether the person has a disability, is limited English proficient, is a Veteran, is a woman, and so on.

Individualized treatment

Finally, in addition to communication, access, and integration, our systems need to be designed provide individualized treatment.

The purpose of our workforce development programs is to move folks from unemployment to employment, or to transition folks from certain jobs to better jobs.

If someone comes to one of your centers directly, or comes through the unemployment insurance portal, individualized treatment requires that we start with that individual’s baseline.

What does this mean? It means we take an individual as we find him or her and work from there. We ask the customer, what skills, education, interests, and talents do you bring to the table?

At the other end of the spectrum, we take a look around to see what jobs are in our community and the skills and education required for those jobs. If we find a match, we make a referral.

If we don’t find a match, we look to bridge the gap. The first step across the bridge for some customers may be the local community college to obtain a certification, diploma, or degree. For others, the first step may be attending English as a Second Language classes.

But, keep in mind that not everyone is cut out for these types of educational pursuits. We don’t have to force all of our customers into the school or college pipeline for workforce development.

We’ve got other pipelines. Apprenticeships to learn a trade, on-the-job training, and licensing programs are some examples.

Keep in mind, folks don’t come to us out of nowhere—they have histories, they have skills, they have interests. Our job is to figure out what they bring to the table in terms of skills, education, and experience, and what workforce development pipelines would be suitable given their background and interests. And, if figuring out what someone brings to the table requires the use of a language line, captioning, or sign language interpreter services, then make sure that happens.

At the end of the day, our systems should be inclusive.

Inclusive systems will afford women access to opportunities in nontraditional fields. Inclusive systems mean we won’t skip over persons with disabilities, or persons who are limited English proficient, because we don’t know what to do with them, or because it takes a little extra time to get a sign language interpreter or connect to the language line.

Inclusive systems mean we’ll encourage employers focus first and foremost on an applicant’s qualifications, push the use of screening tools like criminal background checks and e-Verify, for example, as far back in the process as possible. And, we’ll stress the importance of employers giving an applicant the opportunity to explain, challenge, or clear-up any adverse results that surface through the use of these screening tools.

In the delivery of inclusive workforce development activities and programs, the elements of communication, access, integration, and individualized treatment are present.

From unemployment insurance to on-the-job training to resume writing assistance to job referrals to referrals for an apprenticeship program to counseling and many others, the key is to ensure all members of our population know about the programs, and have access to the programs. Make sure we are serving folks in as integrated a setting as possible, not placing folks off to the side because we don’t know what to do with them. And, we give folks individualized treatment to ensure their success.

At the end of the day, if a customer meets the essential eligibility requirements for a workforce development program or activity, then the customer must be allowed to enroll, apply, and participate.

Thank you for your time, and I wish you every success in the important work you do.

The Importance of “The Script” by Seena Foster

Saturday, January 20th, 2018

In this article, we look at the importance of having sound policies and procedures in place for ensuring the nondiscriminatory delivery of aid, training, benefits, and services to the public and the importance of sticking to these policies and procedures. For purposes here, we will call the policies and procedures, the “script.”

Successful discrimination complaints stem from one of three problems: (1) no script; (2) a bad script; or (3) deviation from a good script.

Let’s start with “no script.” No script means that you do not have any policies or procedures in place for handling a particular situation. In these circumstances, too much discretion is left with staff members and this, in turn, leads to inconsistent (and perhaps discriminatory) handling of issues. For example, Jane Doe comes to an American Job Network Center seeking assistance with her resume. She is deaf and requests the assistance of a sign-language interpreter. Without policies and procedures in place for handling this request, how does a staff member know what to do? Indeed, there may be disagreement among staff regarding a proper response to the request. In the meantime, time is ticking and Ms. Doe becomes increasingly frustrated with her lack of access to your services and files a complaint with you. The importance of having a script cannot be overstated.

Next, we’ll move to the bad script. Here, you have policies and procedures in place, but they are either incomplete, or result in a disparate impact on a class of beneficiaries or potential beneficiaries. One example of a bad script is in the area of unemployment insurance (UI) benefits. Mr. Sanchez, whose native language is Spanish, comes to your American Job Network Center seeking to apply for UI benefits. Your policies and procedures provide that you hand him a packet of forms. This is the same packet of forms you hand to anyone seeking UI benefits. The forms are written in English. Mr. Sanchez cannot understand the forms because he is limited English proficient (LEP). On its face, you have a neutral policy and procedure in place for your staff to follow–everyone seeking UI benefits gets the same set of forms. However, the policy has a disparate impact on LEP persons like Mr. Sanchez. Your script does not address this situation and Mr. Sanchez is effectively denied access to apply for the UI benefits.

Finally, let’s look at the good script that is not followed. In this scenario, you have policies and procedures in place that are sound, but staff is not following them. Deviation from established policies and procedures may be intentional or unintentional, but the result is the same—the process is left open to discriminatory treatment of beneficiaries or potential beneficiaries. Sometimes, policies and procedures are not followed because staff is simply unaware that they exist or they do not know how to properly implement them. This is generally the product of inadequate training. Other times, the staff member will be aware of the script, but chooses to deviate from it. This, too, presents problems.

For example, Mr. Doe serves as an employment referral counselor at an American Job Network Center. Widget Manufacturing Company states that it would like referral of five applicants to fill an accountant position. The company specifies that a bachelor’s degree is required along with one year of relevant experience. The script provides that Mr. Doe is to refer only those applicants who meet an employer’s stated requirements.

Mr. Doe has four applicants that he refers, and these applicants meet the company’s stated requirements. However, Mr. Doe also refers a fifth applicant, who has the bachelor’s degree with only six months of relevant experience. Mr. Doe explains that he referred the fifth applicant because he has worked with the applicant for several months and he knows what a “great person” the applicant is. You receive a discrimination complaint from a non-referred applicant who alleges he had the same qualifications as the fifth referred applicant (a bachelor’s degree and six months of experience).

In this example, Mr. Doe had “good intentions” when referring the fifth applicant who did not meet the company’s stated requirements, but he exposed the Center to a discrimination complaint because he deviated from the script.

Thus, as the Equal Opportunity professional for your agency, company, or organization, you should conduct periodic reviews of the policies and procedures for your federally-funded programs and activities, tweak them as needed to correct problems, and ensure staff is trained on the policies and procedures as well as the importance of adhering to them.

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 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 American Job Network centers (formerly One Stop Career 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 obtained “Federal Workplace Mediation” certification through the Northern Virginia Mediation Service.

She is a member of the 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.

Office of Disability Employment Policy Newsletter (April 4, 2014)

Friday, April 4th, 2014

For more information on any of the following articles, go to www.dol.gov/odep.

The Changing Workforce – Assistant Secretary Martinez Addresses DMEC Conference

Speaking to an audience of disability management professionals, insurance vendors and HR practitioners at the Disability Management Employer Coalition’s FMLA/ADAAA Employer Compliance Conference in Washington, DC on April 1, Assistant Secretary of Labor for Disability Employment Policy Kathy Martinez discussed disability employment and our rapidly “graying” workforce. The conference also highlighted workplace flexibility and return-to-work programs as exemplary practices that benefit workers and employers alike.

Shelly Saves the Future – The Importance of Individualized Learning Plans

The Office of Disability Employment Policy (ODEP) has created an info-comic that illustrates the benefits of having an Individualized Learning Plan (ILP) for high school students like Shelly, the star of the comic. ILPs are tools that help students explore their strengths and interests, learn how their interests are related to career options, and connect what they do in high school with college, job and career goals. In an April 2 posting on the Department of Labor’s blog site, Maria Town, policy adviser in ODEP, introduces Shelly’s story of career development.

Opening the Doors of Small Business to People with Disabilities: Moving Up the Ramp – Webinar – April 11, 11:00 AM – 12:00 PM EDT

This webinar, presented by the Employer Assistance and Resource Network, will help small businesses learn about employing people with disabilities. Topics include the lower than anticipated costs of workers’ compensation, health care and accommodations; the benefits of employing people with disabilities, including retention, productivity, attendance, safety, team performance and financial incentives; and best practices and employment strategies. The webinar will take place April 11, 11:00 AM – 12:00 PM EDT.

LEAD Center Publishes Its Quarterly “LEAD On!” E-Newsletter

LEAD On!, the LEAD Center’s quarterly e-newsletter, highlights news and innovations in employment, policy and economic advancement for adults with disabilities. The current edition features stories on the new LEAD Center/National Council for Independent Living community of practice to promote employment and economic advancement; the recently released LEAD Center Policy Roundtable report; the new Section 503 regulations that took effect March 24, and more.

What’s New with Disability.gov?

Disability.gov, the federal government website for information on disability programs and services nationwide, now offers nine “Guides to Information” to help users quickly find a variety of resources on a single topic. The subjects covered include employment, federal government grants, self-employment, housing, transportation and other topics.

Bureau of Labor Statistics Releases Youth Employment Rate Numbers for March 2014

Employment data for youth with and without disabilities is obtained from the Current Population Survey (CPS), a monthly survey of households conducted by the U.S. Census Bureau for the Bureau of Labor Statistics.

OFCCP Launches a New Outreach and Recruitment Database for Contractors

Friday, March 21st, 2014

On March 13, 2014, the Office of Federal Contract Compliance Programs (OFCCP) launched a new database to help contractors find qualified workers with disabilities and veterans, and to assist contractors with establishing relationships with national organizations and local community groups that have access to these workers.

Contractors, as well as others, can visit OFCCP’s Disability and Veterans Community Resources Directory on the OFCCP Web site at http://www.dol-esa.gov/errd/resources.html. This new resource supplements the agency’s existing Employment Resources Referral Directory (ERRD).

EEOC’s Fact Sheet on Religious Garb and Grooming in the Workplace: Rights and Responsibilities (March 6, 2014)

Tuesday, March 11th, 2014

This fact sheet provides basic information about how federal employment discrimination law applies to religious dress and grooming practices. A full-length question-and-answer guide is available at http://www.eeoc.gov/eeoc/publications/qa_religious_garb_grooming.cfm.

In most instances, employers covered by Title VII of the Civil Rights Act of 1964 must make exceptions to their usual rules or preferences to permit applicants and employees to follow religious dress and grooming practices. Examples of religious dress and grooming practices may include: wearing religious clothing or articles (e.g., a Christian cross, a Muslim hijab (headscarf), a Sikh turban, a Sikh kirpan (symbolic miniature sword)); observing a religious prohibition against wearing certain garments (e.g., a Muslim, Pentecostal Christian, or Orthodox Jewish woman’s practice of wearing modest clothing, and of not wearing pants or short skirts); or adhering to shaving or hair length observances (e.g., Sikh uncut hair and beard, Rastafarian dreadlocks, or Jewish peyes (sidelocks)).

Title VII prohibits disparate treatment based on religious belief or practice, or lack thereof. With the exception of employers that are religious organizations as defined under Title VII, an employer must not exclude someone from a job based on discriminatory religious preferences, whether its own or those of customers, clients, or co-workers. Title VII also prohibits discrimination against people because they have no religious beliefs. Customer preference is not a defense to a claim of discrimination.

Title VII also prohibits workplace or job segregation based on religion (including religious garb and grooming practices), such as assigning an employee to a non-customer contact position because of actual or assumed customer preference.

Title VII requires an employer, once on notice that a religious accommodation is needed for sincerely held religious beliefs or practices, to make an exception to dress and grooming requirements or preferences, unless it would pose an undue hardship.

Requiring an employee’s religious garb, marking, or article of faith to be covered is not a reasonable accommodation if that would violate the employee’s religious beliefs.

An employer may bar an employee’s religious dress or grooming practice based on workplace safety, security, or health concerns only if the circumstances actually pose an undue hardship on the operation of the business, and not because the employer simply assumes that the accommodation would pose an undue hardship.

When an exception is made as a religious accommodation, the employer may still refuse to allow exceptions sought by other employees for secular reasons.
Neither co-worker disgruntlement nor customer preference constitutes undue hardship.

It is advisable in all instances for employers to make a case-by-case determination of any requested religious exceptions, and to train managers accordingly.

Title VII prohibits retaliation by an employer because an individual has engaged in protected activity under the statute, which includes requesting religious accommodation. Protected activity may also include opposing a practice the employee reasonably believes is made unlawful by one of the employment discrimination statutes, or filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the statute.

Title VII prohibits workplace harassment based on religion, which may occur when an employee is required or coerced to abandon, alter, or adopt a religious practice as a condition of employment, or for example, when an employee is subjected to unwelcome remarks or conduct based on religion.
To locate the EEOC office in your area regarding questions or to file a charge of discrimination within applicable time deadlines, call toll free 1-800-669-4000 or 1-800-669-6820 (TTY) for more information. Federal sector applicants and employees should contact the EEO office of the agency responsible for the alleged discrimination to initiate EEO counseling. For more details, see “How to File a Charge of Employment Discrimination,” http://www.eeoc.gov/employees/charge.cfm.

In addition to Title VII’s prohibitions on religious, race, color, national origin, and sex discrimination, the EEOC enforces federal statutes that prohibit employment discrimination based on age, disability, or genetic information of applicants or employees. You may contact the EEOC with questions about effective workplace policies that can help prevent discrimination, or with more specialized questions, by calling 1-800-669-4000 (TTY 1-800-669-6820), or sending written inquiries to: Equal Employment Opportunity Commission, Office of Legal Counsel, 131 M Street, NE, Washington, D.C. 20507.

Congressional Letter to Labor Secretary Perez Seeking LGBT Protections by Job Corps, One Stop Career Centers, Federal Contractors, and in Veterans’ Programs

Monday, March 10th, 2014

By letter dated March 5, 2014, to Secretary of Labor Thomas Perez, several Democratic members of Congress promoted the need for improvements in the inclusion of lesbian, gay, bisexual, and transgender (LGBT) individuals in the Labor Department’s programs and activities. The Members of Congress assert:

[T]here is more that the Department (of Labor) can do to alleviate the high rates of unemployment and discrimination faced by LGBT workers around the country. The Department has tools at its disposal to address these barriers impacting the ability of LGBT people to thrive in the American economy.

These congressional representatives specifically stated they “would like to know more about what the Department is doing for LGBT workers generally” and in certain program areas, including the Office of Federal Contract Compliance Programs’ (OFCCP’s) enforcement of existing Executive Orders and how LGBT people can be better covered as OFCCP’s implementation of the 2012 ruling of the U.S. Equal Employment Opportunity Commission (EEOC) in Macy v. Holder, wherein the Commission held “gender identity is a protected category under existing federal civil rights protections covering sex.” Moreover, the representatives seek information regarding the Employment and Training Administration’s “inclusion of, and guidance on, LGBT and gender non-conforming youth” in Job Corps programs and One Stop Center programs as well as Veterans Employment Training Services’ inclusion of LGBt veterans in its programs and policies. The Members of Congress note:

Due in large part to systemic discrimination in education, housing, and employment, LGBT people are at increased risk for poverty throughout the lifetime. Employment protections are a vital step towards ending this discrimination and increasing economic opportunity and stability for LGBT workers and their families.

The Congress Members concluded by stating, “[W]are aware of the need for better inclusion of LGBT individuals . . . and we are eager to hear from you on where these changes stand.”

Recent Federal Court Decision Emphasizes State and Local Government Agencies and their Contractors Must Comply with Title VI of the Civil Rights Act

Monday, March 10th, 2014

As a state or local government official, or as the contractor for a state or local government, you must know, and comply with, applicable federal civil rights laws. Notably, Title VI of the Civil Rights Act of 1964 (Title VI) applies to the delivery of all federally-assisted programs and activities, and it prohibits discrimination on the bases of race, color, and national origin.

Where a state or local government receives federal financial assistance either directly or indirectly for the purpose of operating a program or activity for the benefit of its public, then the nondiscrimination mandates of Title VI will apply to all aspects of the operation of the program or activity. Some examples of federally-assisted programs and activities in a locality include public housing, American Job Network centers providing job training, apprenticeship opportunities, and other workforce development programs and activities, public educational institutions including colleges and universities accepting students using federal financial aid, Medicare and Medicaid programs, environmental protection programs, emergency preparedness programs, and many others. The concept underlying Title VI is that no person shall be excluded from participating in, or benefitting from, the federally-assisted services, aid, training, or benefits on the bases of race, color, or national origin.

Often, a state or local government will contract with a private company to help them deliver a federally-assisted program or activity. An example of this is presented in the case of Carnell Construction Corp. v. Danville Redevelopment and Housing Authority, ___ F.3d ___, Case Nos. 13-1143, 13-1129, and 13-1239 (4th Cir. Mar. 6, 2014). Here, a public housing authority entered into a contract with Carnell Construction to clear a construction site for building public housing. The contractor also was responsible for grading the land, and installing drainage and erosion controls. As this case illustrates, not only must a state or local government agency offer public housing to members of its public in compliance with Title VI, but it also must ensure that the contracting and procurement practices related to development of this housing comply with Title VI.

In Carnell Construction, a Title VI race-based disparate treatment lawsuit was filed by a minority-owned business against the Danville Redevelopment and Housing Authority (Housing Authority). The court held the minority-owned corporation “can acquire a racial identity and establish standing to seek a remedy for alleged race discrimination under Title VI.” Thus, the corporation was entitled to file a lawsuit against the Housing Authority alleging race-based discrimination and retaliation under Title VI with regard to the Housing Authority’s contracting and procurement practices.

Under the facts of the case, the minority-owned business alleged the Program Director and the Contracting Officer of the Housing Authority made racially-discriminatory statements, and the Housing Authority engaged in “disparate treatment with respect to contracting practices such as ‘prepayment’ for materials, ‘retainage’ of process payments, and approval of change order requests.” The court stated:

We hold that a corporation that is minority-owned and has been properly certified as such under applicable law can be the direct object of discriminatory action and establish standing to bring an action based on such discrimination. Accordingly, we agree with the conclusions reached by our sister circuits that prudential considerations should not bar review of a claim of race discrimination suffered by such a corporation during its participation in a program that has received federal funding assistance.

Slip op. at p. 6.

Here, the president and sole shareholder of Carnell Construction was African-American, and he “publicly represented that (his business) was eligible for consideration as a minority business enterprise when it contracted with the Housing Authority on a public project receiving federal funding assistance.” Because the corporation alleged the Housing Authority “discriminated against (it) during its performance on the (public housing) contract based on the minority status of the owner, and that (the corporation) suffered direct injury as a result of that racial discrimination,” the court determined Carnell Construction had standing to sue under Title VI.

The court concluded that the minority-owned business had standing to sue even though it was not the intended beneficiary of the public housing funding (i.e. seeking to reside in public housing). Citing to 40 U.S.C. § 2000d, the court explained that Title VI requires no person “shall be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance” on the basis of race. While Title VI applies to the intended beneficiaries of the program or activity (i.e. the Housing Authority cannot discriminate against applicants for public housing on the bases of race, color, or national origin), the court made clear that Title VI also applies to the contracting and procurement process related to the public housing program; that is, it was illegal for the Housing Authority to discriminate against Carnell Construction on the basis of race because the corporation was participating, or seeking to participate, as a contractor for the Housing Authority in the delivery of its public housing program.

√ Lessons learned

Although this case involved a federally-assisted public housing program, its holding applies to the delivery of any federally-assisted program or activity for the benefit of the public including, but not limited to, programs related to employment or workforce development, transportation, education, environmental protection, emergency preparedness, and health and human services among many others. Often, state and local government agencies, or instrumentalities of these agencies, such as the Housing Authority involved in Carnell Construction, will utilize the services of independent contractors to assist in the delivery of federally-assisted programs (i.e. in this case, the Housing Authority contracted with the minority-owned business to prepare a site for public housing construction).

From the point of soliciting bids or proposals to selecting a contractor to overseeing the contractor’s performance of work related to the delivery of a federally-assisted program or activity, the nondiscrimination mandates of Title VI of the Civil Rights Act of 1964 apply. This means the state or local government agency, or an instrumentality of the agency, cannot treat one contractor differently from another contractor in this process (solicitation, selection, payment, performance oversight) based on race, color, or national origin.
Examples of disparate treatment include requiring more or different documentation from one contractor as compared to another contractor. One example here is a contracting officer that requires a Hispanic-owned contractor provide documentation proving eligibility to work, but non-Hispanic-owned contractors are not required to provide such documentation. This is a form of national origin-based discrimination.

Another example of disparate treatment is delayed or different payment for contract performance. For example, the contracting officer denies prepayment of certain funds to cover the costs of job site materials for a black-owned contractor, whereas non-black-owned contractors do receive prepayment of certain funds to cover the costs of job site materials. This is a form of race and/or color-based discrimination.

Another important facet of the Carnell Construction case is the court’s conclusion that a minority-owned corporation with an established racial identity may sue a state or local government agency, or an instrumentality of the agency like the Housing Authority, for damages under Title VI. So, the nondiscrimination requirements of Title VI apply not only to members of the public who may ultimately benefit from the federally-assisted program or activity, but also to a corporation with an established identity that is protected by the statute (i.e. race, color, and/or national origin) where the corporation seeks to participate in the federally-assisted program.

Therefore, all contracting and procurement functions of a state or local government agency, or its instrumentality, must be performed in compliance with applicable federal civil rights laws. In Carnell Construction, Title VI was implicated. But, keep in mind, other federal civil rights laws may apply to a program or activity, such as Section 504 of the Rehabilitation Act (prohibiting disability-based discrimination), or the Age Discrimination Act (prohibiting age-based discrimination), and it would be illegal to discriminate against contractors as well as beneficiaries seeking to participate in a program on these bases as well.

An example where additional federal civil rights laws would apply is in the area of workforce development. For purposes here, let’s assume a state or local workforce development agency (such as an American Job Network center) contracts with a language line provider to provide translation assistance for its limited English proficient customers. The agency’s process and practices for soliciting, selecting, and overseeing the language line provider/contractor must comply with the nondiscrimination requirements of Section 188 of the Workforce Investment Act (WIA), which, in addition to prohibiting discrimination on the bases of race, color, national origin, disability, and age, also requires nondiscrimination on the bases of gender, political affiliation, and religion. Moreover, the contractor, while engaged in providing translation assistance for the workforce development agency, also must comply with WIA Section 188 as it interacts with members of the public.

So, if the workforce development agency requested additional insurance coverage from a woman-owned language line provider as opposed to non-woman-owned providers, then it has engaged in prohibited gender-based discrimination in the contracting process in violation of WIA Section 188.

Turning to performance of the contract, if the workforce development agency’s language line provider/contractor refuses to provide Arabic translation services to members of the public seeking to participate one of the agency’s workforce development programs on grounds that Arabic-speaking persons are Muslim, then the provider/contractor has engaged in religious-based discrimination in violation of WIA Section 188.

At the end of the day, your contracting process along with your delivery of federally-assisted programs and activities to your public must comply with applicable federal civil rights laws.

√ 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 civil rights compliance and discrimination complaint investigations related to the delivery of federally-assisted programs and activities. Her customers include state and local governments, colleges and universities, private companies, private counsel, and non-profit organizations. You may contact her at seena@titleviconsulting.com, or visit her web site at www.titleviconsulting.com for additional information regarding the services and resources she offers.

By way of background in this area, in 2003, Ms. Foster served as a Senior Policy Analyst to the U.S. Department of Labor’s Civil Rights Center (CRC). In that capacity, she led a team of equal opportunity specialists to conduct disability-based technical assistance reviews of One-Stop centers, and she assisted the CRC’s leadership in preparing for limited English proficiency-based compliance reviews. Ms. Foster also analyzed and weighed witness statements and documents to prepare numerous final determinations for signature by the CRC Director, which resolved discrimination complaints under a variety of federal civil rights laws such as Title VI of the Civil Rights Act, the Age Discrimination Act, the Rehabilitation Act, the Americans with Disabilities Act, and Section 188 of the Workforce Investment Act. In 2006, Ms. Foster received the Secretary of Labor’s Equal Employment Opportunity Award in recognition of “exceptional efforts to ensure that individuals with disabilities have full access to employment and related services and benefits at the Nation’s One-Stop Career Centers.” And, at the request of the CRC, Ms. Foster served as a popular workshop speaker at national equal opportunity forums co-sponsored by the CRC and the National Association of State Workforce Agencies. Her presentations covered topics such as the WIA Section 188 disability checklist, conducting discrimination complaint investigations and writing final determinations, and conducting investigations of allegations involving harassment and hostile environment.

With a passion for ensuring nondiscrimination and equal opportunity in the delivery of federally-assisted programs and activities, Ms. Foster remains highly active in the field through her series of on-demand webcasts for equal opportunity professionals as well as through her mediation services, training, and assistance developing policies and procedures designed to ensure compliance with applicable federal civil rights laws. Her training in the areas of compliance and complaint investigations has been described as “dynamic,” “hitting the nail on the head,” “well-organized,” and “informative.” And, her award-winning book on conducting discrimination complaint investigations is viewed as “eye-opening” and “the best on the market.” In 2007, Ms. Foster was certified as a mediator by the Virginia Supreme Court, and later obtained “Federal Workplace Mediation” certification through the Northern Virginia Mediation Service.

In her local community, she volunteers at Carpenter’s Shelter in Alexandria, Virginia, and serves on its Development Committee and Major Donors and Partners Subcommittee. In addition, Ms. Foster serves on the Economic Opportunities Commission for Alexandria, Virginia, which addresses availability of housing and jobs for economically-disadvantaged persons. In 2013, Ms. Foster received the City of Alexandria’s “Joan White Grass Roots Service Award” for her commitment of time and effort “working to improve the lives of the homeless as well as advocating their needs and the mission of Carpenter’s Shelter in the community.” She is a member of the Discrimination Law and Human Rights Law Committees of the International Bar Association. And, in November 2011, Ms. Foster was selected as a lifetime member of the Cambridge Who’s Who among Executives, Professionals, and Entrepreneurs based on her “accomplishments, talents, and knowledge in the area of civil rights.”
Ms. Foster received her undergraduate degree from Michigan State University, and she has a Juris Doctorate from The George Washington University Law School.