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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

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.

“Zero Tolerance” Policies: No Exemptions

Thursday, November 1st, 2012

Increasingly, government agencies, organizations, and companies are instituting “zero tolerance” policies of one sort or another in the workplace. In some instances, the policies stem from multiple discrimination complaints, federal or state investigations, lawsuits, or constant grievances. Sexual harassment and overt prejudices in the workplace affect not only those who are directly involved, but others around them. It is logical that, if racial or ethnic slurs, or occurrences of sexual harassment, are rampant among employees, then workplace productivity suffers—more time is spent diffusing workplace tensions than working.

Hence, the advent of “zero tolerance” policies in the workplace.

“Zero tolerance” policies are effective only when enforced across the board; from the upper echelons of management to the myriad of support staff that keep the organization running on a day-to-day basis. An Eleventh Circuit Court of Appeals decision in Smith v. Lockheed-Martin Corp., 644 F.3d 1321 (11th Cir. 2011) illustrates this point.

At issue in this case was the “zero tolerance” policy banning discriminatory behavior in the workplace, including e-mail transmission of racial slurs. The genesis of Lockheed-Martin’s “zero tolerance” policy was a deadly shooting that occurred at one of its plants in 2003 by a self-declared “white supremacist” employee. This employee killed five people and wounded several others in a rampage that ended with the employee’s suicide.

Ultimately, the EEOC concluded that Lockheed-Martin was responsible for the incident because its Human Resources Department knew of racial hostility at the plant, but did nothing to address it. Negative press coverage of the incident followed and a “zero tolerance” policy was instituted.

Under the policy, employees of Lockheed-Martin were required to report violations to supervisors who, in turn, would report violations to the Human Resources Department. An investigation would ensue and, if a person was found in violation of the “zero tolerance” policy, punishment would follow, which may include termination.

Under the facts of Smith, a white supervisor at one of Lockheed-Martin’s plants (Mitten) sent a racial joke, “Top Ten Reasons Why There Are No Black NASCAR Drivers”, via e-mail to his supervisor. The court observed that the e-mail “featured a top-ten list of derogatory stereotypes, all of which portrayed black people as criminals, pimps, and gang members.” A non-supervisory employee brought the e-mail communication to the attention of the Human Resources Department, which conducted an investigation. The white supervisor who transmitted the e-mail to his supervisor was found in violation of the “zero tolerance” policy and was terminated from his employment.

In addition, other white employees who had received and/or transmitted the e-mail were terminated. However, one African-American employee who received the e-mail, was reprimanded.

Later in the year, another e-mail was circulated. This time, the e-mail contained slurs of white employees and was titled, “How to Dance Like a White Guy.” As noted by the court:

Mitten later learned that, within two months of his termination, HR discovered that two black non-supervisors at the Marietta plant had also violated the zero tolerance policy by transmitting racist emails targeting whites. These black employees, however, merely received temporary suspensions as discipline for their conduct.

After learning of this more-lenient treatment for black employees, Mitten concluded that he had been fired—in lieu of a temporary suspension—because he is white.

The Eleventh Circuit found this problematic. Initially, it cited to the McDonnell Douglas framework established by the United States Supreme Court to determine whether Mitten had made “out a case sufficient to withstand a motion for summary judgment”, also known as a “prima facie” case of discrimination. The court concluded that, in this case, the prima facie case was made:

When, as here, the plaintiff claims that his employer discharged him on account of his race, he must establish four elements: (1) that he is a member of a protected class (here, Caucasian); (2) that he was qualified for the position he held; (3) that he was discharged from that position; and (4) that in terminating his employment, his employer treated him less favorably than a similarly situated individual outside of his protected class (here, an African-American). E.g., 16 Maynard v. Bd. Of Regents, 342 F.3d 1281, 1289 (11th Cir. 2003) (citing McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824). If the plaintiff makes this showing, he raises a presumption that his race motivated his employer to treat him unfavorably. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S. Ct. 1089, 1094, 67 L. Ed. 2d 207 (1981).

Lockheed-Martin asserted that, because Mitten held a supervisory position with the company, he was held to a higher standard in enforcement of the “zero tolerance” policy on racial slurs. Under the circumstances of the case, the court observed:

Lockheed asserts that Mitten was fired because he was employed as a supervisor, not because he is white; however, record evidence permits a jury to infer reasonably that this justification merely is a pretext for a discriminatory motive. See, e.g., Silverman, 637 F.3d at 734 (stating that circumstantial evidence that the employer’s offered justification for an adverse employment action is pretextual could permit a reasonable jury to infer the employer’s discriminatory intent). The evidence shows that Tom Heiserman (vice president of Human Resources), in the summer of 2005, discriminatorily fired white employees employed in non-supervisory positions who, like Mitten, distributed racially insensitive emails. Although these other fired white employees were not supervisors, a jury reasonably could conclude that Heiserman, having discriminatorily fired white employees for similar conduct around the time of Mitten’s discharge, also discriminated against Mitten. See Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1286 (11th Cir. 2008) (finding evidence of other acts Elevator Co., 513 F.3d 1261, 1286 (11th Cir. 2008) (finding evidence of other acts of discrimination by the same decisionmaker against other employees in the plaintiff’s protected group to be admissible under Fed. R. Evid. 404(b) because that evidence is probative of the decisionmaker’s discriminatory intent).

In the end, the court concluded that it was improper for the Human Resources Department to consider a perpetrator’s race in doling out disciplinary actions. The court stated:

The foregoing circumstantial facts preclude summary judgment (in favor of Lockheed-Martin) in this case as a jury reasonably could infer that Lockheed only fired Mitten because he is white. The evidence yields this inference because it: (1) suggests that Lockheed’s justification for firing Mitten is a pretext for racial animus; (2) shows that Lockheed had a substantial incentive to discipline white employees more harshly than black employees . . .; and (3) indicates clearly that Lockheed consciously injected race considerations into its discipline decision making without an adequate explanation for doing so.

The court noted that lesser disciplinary actions levied on African-American employees as compared to their white counterparts for similar conduct under the “zero tolerance” policy indicated racial motivation in the decision-making.

For a copy of this opinion, go to www.ca11.uscourts.gov.

About the author.

Seena Foster, award winning 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 one hour Webinars, 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. You may contact her through www.titleviconsulting.com.

Compliance With Federal Civil Rights Laws

Sunday, April 1st, 2012

Attorney and award-winning author, Seena Foster, has developed a series of free informational papers available through this blog, which are designed to help Equal Opportunity Professionals comply with the nondiscrimination and equal opportunity mandates of federal civil rights laws. For more information about Ms. Foster and the services she offers, you may visit www.titleviconsulting.com. The following is a list of articles to date:

September 2011:

Harassment and Hostile Environment: Understanding the Basics
The WIA Equal Opportunity Officer: Who Are You, To What Are You Entitled, and What Are You (supposed) To Do?
Library Essentials for the Equal Opportunity Officer
The Importance of “The Script”
“Unemployed Need Not Apply”: The Road to Nowhere for Our Economy

October 2011:

“EO is The Law” and “EEO is The Law”: Understanding Some of The Distinctions
“Adverse Actions” in Federal Civil Rights Discrimination Complaints
Press Release from the U.S. Department of Labor–New Facebook Site for Jobs
Collecting and Storing Medical Information: Federal Civil Rights Laws and HIPAA
Religious Accommodation in Federally-Funded Programs and Activities: An Overview
The “Basis” of a Discrimination Complaint: What It Is and Why It’s Important

November 2011:

Limited English Proficiency (LEP) Persons: Some Basics in Federally Funded Programs and Activities

December 2011

The Road to Nondiscrimination: Focusing on The Fundamentals

January 2012

Immigration-Related Unfair Labor Practices: Guidance for Employers

February 2012

The Meaning of “Disability”

March 2012

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

April 2012

Your Discrimination Complaint Log

Coming in May 2012

Investigating Pregnancy Related Discrimination Complaints

Department of Justice and Department of Education Joint Guidance on the Voluntary Use of Race

Wednesday, December 7th, 2011

Assistant Attorney General, Thomas E. Perez, and Assistant Secretary for Civil Rights in the Department of Education, Russlynn Ali, have posted joint guidance on the voluntary use of race to achieve diversity or avoid racial isolation in schools. The guidance is intended to help schools, colleges, and universities lawfully achieve compelling interests in diversity, and for K-12 schools, the additional compelling interest in avoiding racial isolation. The guidance is presented in two documents, one for elementary and secondary schools and the other for postsecondary institutions.

To access the joint guidance letter as well as the separate attachments for K-12 educational institutions and for colleges and universities, go to www.justice.gov/crt/about/edu/guidance

Guidance letter

Elementary and secondary school guidance

Postsecondary education guidance