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Paperback and E-Book: Conducting Civil Rights Investigations in Government Programs and Activities

Wednesday, November 15th, 2017

This is the only book on the market that focuses on discrimination complaint investigations in a wide range of Federally-assisted, public-facing programs and activities! Reviews by State and local equal opportunity officials in 2017 include “I love your book,” and the book is “outstanding,” “easy to follow,” and “extremely useful.”

Paperback:
Cost: $19.99 per copy

Go to www.outskirtspress.com/civilrights; or

Email the author at seena@titleviconsulting.com, and you will receive an invoice by PayPal; or

Mail a check for $19.99 per book (plus $3.00 per book for shipping and handling in the United States) payable to Title VI Consulting at 107 S. West St., PMB 713, Alexandria, VA 22314.

Electronic book:
Cost: $9.99 per electronic copy

Available through Nook, or Kindle. For iPad and iTunes, you’ll find the book in the “Law Library.” Access the e-book through the publisher at http://www.outskirtspress.com/civilrights.

Reviewers describe the book as “the most thorough and the best product on the market,” “an eye-opening experience,” “an excellent reference book,” and “an invaluable resource for its target audience of professionals who must respond to complaints of discrimination.”

About the Book

In Civil Rights Investigations, Ms. Foster assembles a tremendous amount of information, presents it in an organized and easy-to-understand format, and delivers it to you along with practical and useful guidance. Whether you are a novice or expert, this book is a truly exceptional resource that takes you step-by-step through the investigative process. And, the teachings offered are applicable to any discrimination complaint investigation.

Starting with the basics of knowing whether you have a complaint and authority to investigate it, to navigating more in-depth concepts such as understanding the burdens of the parties, properly framing the issues of an investigation, interviewing witnesses, analyzing conflicting evidence, and writing final determinations, Civil Rights Investigations is with you each step of the way, providing insights, tips, and examples.

A wide array of discriminatory bases is explored, including race, color, national origin, gender, sexual harassment, religion, disability, political affiliation, citizenship, and age. And, the book contains sample interrogatories covering numerous adverse actions in government programs such as denial of access, denial of training, denial of services, denial of benefits, and denial of proposals or bids. Other sample interrogatories address adverse actions in the workplace, such as sexual harassment, reasonable accommodation, reasonable modification, retaliation, termination, non-selection, non-promotion, adverse performance appraisals, and damages. Finally, the book contains a jurisdiction checklist as well as templates for every stage of the investigation–from notifying the parties that you do not have jurisdiction to investigate a complaint or notifying the parties you have accepted a complaint for investigation to sample complaint investigation plans and a sample final determination on the merits of a complaint.

Civil Rights Investigations is packed with useful information, and it serves as a top-of-the-line resource for any public or private sector equal opportunity professional.

Civil Rights Investigations addresses several Federal civil rights statutes, including Titles VI and VII of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, the Americans With Disabilities Act of 1990 and the Americans With Disabilities Act Amendments of 2008, Title IX of the Education Amendments Act of 1972, and the Age Discrimination Act of 1975. Its guidance, however, is useful in any civil rights discrimination investigation, and in developing and implementing preventative measures.

Reviews of the Book

Get this one-of-a-kind book judged by a panel of industry experts as a Finalist in the Business Reference category of The USA “Best Books 2011″ Awards, sponsored by USA Book News. The book also received a Bronze Medal in the Government/Politics category (top 5% of over 3,000 entries) for the 2012 International Readers Favorite Book Awards. And, in October 2012, Ms. Foster was announced as a “Finalist of 50 Great Writers You Should Be Reading,” presented by The Authors Show. In October 2013, Civil Rights Investigations was Amazon’s Featured Title of the Week.

Lisa Connor states: “You obviously have a passion for your subject matter–you present your findings in a very well-researched, thorough manner. … I have to say that you have put together an excellent piece”

Omoye Cooper of Albany, New York states: “I have worked in the field of Equal Opportunity for over 30 years and have attended numerous trainings on EO investigations. After attending Seena Foster’s Civil Rights Investigations workshop, I can say without a doubt that it is the most thorough and the best product on the market. Ms. Foster not only gives the technical information, but she also provides step by step guidelines and tools for effective implementation.”

“Ms. Foster’s workshops and book, “Civil Rights Investigations,” are professional resources that are highly recommended for all new and seasoned AA and EEO practitioners. Utilization of her materials will help new EEO professionals build a solid knowledge base that will make it possible to conduct defendable investigations; and for the veteran practitioners, it will take you to another level. Outstanding!”

Readers Favorite (5 out of 5 star ratings):

Brenda Ballard states: Discrimination is a very real problem in the work place but what can a person do? Seena K. Foster, author of “Civil Rights Investigations Under the Workforce Investment Act” leads the reader through the law, the process and the various scenarios of the subject. Citing law and providing examples of letters and check lists, information is outlined in concise and understandable terms. The subject matter is broken down into the simplest legal language possible considering the depth and complexity. Believable examples make sense of it all, guiding the reader step by step.

As anybody knows, legal reading can be dry and confusing. Admittedly, there were a few places I personally had to re-read but that would be attributed to my own lack of experience with the subject. I found the examples very useful and was able to utilize the bullet points and checklists to realize the meaning of it all. It was an eye-opening learning experience to read this book! I never realized how much is involved in filing such a suit, getting an investigation underway, working with both parties, and finding resolution. Businesses should consider having this book in their own library as a reference guide in their personnel department. This work could be used as a stand-alone in training sessions for employees and managements. The tremendous effort the author has put into “Civil Rights Investigations Under the Workforce Investment Act” is immediately evident. Nothing is left to question and, should there be any residual wonder, references can be looked up. Highly recommended! 5 out of 5 stars!

Lori M. states: Because I am currently taking a graduate-level Human Resources class in Employment Law, this book about civil rights investigations by Seena K. Foster interested me very much. This would make an excellent reference book for HR managers, lawyers, and anyone involved in employee or labor issues. It is very well-organized and provides just the right amount of information that you need on a number of different topics. Foster, who has a law degree, does a good job making the contents interesting, understandable, and easy to follow.

There are specific sections defining race, color, national origin, gender, religion, age, citizenship, and disability issues in depth so that any reader can understand what constitutes the definition of discrimination against each. Additionally, she takes you through the steps of how to determine whether or not you have a discrimination complaint, a glossary of terms, jurisdiction, and filing the complaint. I like how Foster included easy-to-use checklists throughout the book to graphically depict what she has already told you in the text. It is a good way to help the reader grasp the information provided and double-check the details. This book talks about statutes of limitations and time frames within which a party has to file a complaint, notifying the parties of a complaint, jurisdictional issues, and even alternative dispute resolution topics such as arbitration or mediation. This book is a great toolkit for those interested in employment law matters dealing with civil rights investigations under the workforce investment act and Title VI-related laws. 5 out of 5 stars!

Alice D. states: “Civil Rights Investigations Under the Workforce Investment Act and Other Title VI Related Laws” is a book that really needed to be written and now it has been, thank goodness! Author Seena Foster has created a book that focuses on the treatment of individual and class action complaints. From the beginning where she asks the readers to decide whether they have a complaint and whether there is jurisdiction to investigate the complaint, Foster clearly establishes that those pursuing an issue such as discrimination must have merit; in other words, they must have a covered basis such as race, gender and nationality. She is quite clear in insisting that the person charged with the complaint must receive federal funds, and the CP, the charging party, must know how to organize a complaint, how to fill it with statistics and witness information. Then she shows the reader how exactly the CP and the respondent must reply in cases involving such things as employment, hostile work environ ment, and disability. She discusses sexual harassment, especially in the school environment, and writes about the use of mediation in helping parties come to a mutually acceptable solution. Do you think your civil rights have been violated at work? This is the book for you.

“Civil Rights Investigations” is not the type of book that people will grab off bookstore shelves, but they should. Author Seena Foster discusses, clearly and concisely, how the charging party and the respondent should respond in a variety of cases. Chapter after chapter deals with how to handle potential civil rights violations in the workplace and in federally funded programs and activities that have an impact on all of us. The author states that those filing the complaint must give details like why they were not hired, etc., and those who answer the claim must show the same clarity in their response. Specific and easy to read, this book should be in readers’ hands everywhere. 5 out of 5 stars!

Laurie Gray states: “Civil Rights Investigations under the Workforce Investment Act and Other Title VI-Related Laws from Intake to Final Determination” by Seena K. Foster offers guidance to professionals handling discrimination complaints for governmental agencies and employers that receive federal funding covered by the Workforce Investment Act of 1964. The book focuses on individual and class actions as opposed to third-party complaints, identifying and devoting a chapter to each protected class: race, color, national origin, sex, religion, disability, citizenship, age, political affiliation and belief. The chapters on sexual harassment, religion, and disability are most comprehensive. Foster provides specific examples, sample notices, and clear explanations on how to assess the merit of each complaint, properly frame the issues, develop a Complaint Investigation Plan, and investigate complaints without violating confidentiality policies. She further outlines the relevant burdens of proof and reliability of direct, circumstantial and comparative evidence. Though not for the average lay person, this book is an invaluable resource for its target audience of professionals who must respond to complaints of discrimination in a timely and consistent manner or risk losing their agencies’ federal funding. Ms. Foster clearly understands complex federal laws and regulations and concisely organizes the information in a user-friendly way, highlighting important deadlines, providing detailed questions to ask complaining parties and respondents, and encouraging professionals to seek competent legal advice when necessary. An introduction, conclusion and biography outlining the author’s credentials would be helpful additions to the next edition of the book. I do hope that Ms. Foster will update this informative guide as the laws continue to evolve. 5 out of 5 stars!

The Importance of “The Script” by Seena Foster

Monday, June 1st, 2015

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.

WIA EO Officers and Equal Opportunity Professionals in Federally-Funded Programs: Assistance Developing Nondiscrimination Policies and Procedures

Friday, March 7th, 2014

Often, you know the civil rights laws that apply to your federally-assisted programs and activities (such as Title VI of the Civil Rights Act, the Rehabilitation Act, the Age Discrimination Act, the Workforce Investment Act, Title IX of the Education Amendments Act, and so on), but you get stuck trying to figure out how to implement these laws on the ground. We can help.

We will work with you to develop policies and procedures tailored to the structure of your organization, and the nature of the federally-assisted programs and activities you offer. There are a variety of procedures required to document your compliance with civil rights laws, including:

● Discrimination complaint procedures
● Procedures for assessing corrective actions and sanctions
● Procedures for serving limited English proficient (LEP) populations
● Procedures for serving persons with disabilities and handling accommodation requests
● Procedures for handling religious-based accommodation requests
● Procedures for gathering, handling, and storing medical information
● Procedures for including required assurances on all agreements as well as the use of taglines, posting the “Equal Opportunity Is the Law” posters, and data collection

We also offer a variety of consultation services, training, and off-site desk audits of your website and other written materials to help you ensure your organization’s compliance with federal civil rights requirements, and we work hard to provide the most cost-effective and practical recommendations for you. Failure to comply with federal civil rights laws in delivering aid, services, training, or benefits to the public may result in the loss of funding.

You’ll find more information about our services at www.titleviconsulting.com. Our customers appreciate the thoroughness and timeliness of our work. As an example, one senior county executive commented, “Your procedures document is very comprehensive and inclusive of all that I am aware that we need and beyond . . . it is a pleasure working with you.”

About Seena Foster.

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

In 2003, Ms. Foster served as a Senior Policy Analyst to the U.S. Department of Labor’s Civil Rights Center (CRC). In that capacity, she led a team of equal opportunity specialists to conduct disability-based technical assistance reviews of One-Stop centers, and she assisted the CRC’s leadership in preparing for limited English proficiency-based compliance reviews. Ms. Foster also analyzed and weighed witness statements and documents to prepare numerous final determinations for signature by the CRC Director, which resolved discrimination complaints under a variety of federal civil rights laws such as Title VI of the Civil Rights Act, the Age Discrimination Act, the Rehabilitation Act, the Americans with Disabilities Act, and Section 188 of the Workforce Investment Act.

In 2006, Ms. Foster received the Secretary of Labor’s Equal Employment Opportunity Award in recognition of “exceptional efforts to ensure that individuals with disabilities have full access to employment and related services and benefits at the Nation’s One-Stop Career Centers.” And, at the request of the CRC, Ms. Foster served as a popular workshop speaker at national equal opportunity forums co-sponsored by the CRC and the National Association of State Workforce Agencies. Her presentations covered topics such as the WIA Section 188 disability checklist, conducting discrimination complaint investigations and writing final determinations, and conducting investigations of allegations involving harassment and hostile environment.

Ms. Foster is a graduate of the George Washington University Law School. You may contact her through www.titleviconsulting.com.

The U.S. Department of Justice’s Office of Special Counsel Announces Outreach Materials Available in Multiple Languages

Sunday, December 22nd, 2013

OSC is pleased to announce that its outreach materials are now available in additional languages. OSC has published translations of its “E-Verify Know Your Rights,” “Know Your Rights” and “Name and Social Security Number (SSN) ‘No-Match’ Information for Employees” flyers in Arabic, Eastern Punjabi, Haitian Creole, Hindi, Korean, Russian, Simplified Chinese, Spanish, Tagalog, Traditional Chinese, Urdu, Vietnamese, and Western Punjabi. OSC has also updated its Refugee/Asylee flyers for both employers and workers. OSC has posted translations of the worker Refugee/Asylee Flyer in Amharic, Arabic, Armenian, Burmese, Farsi, French, Kayah, Nepali, Russian, Sgaw Karen, Simplified Chinese, Somali, Spanish, and Tigrinya. These translations are available on OSC’s website: http://www.justice.gov/crt/about/osc/htm/worker.php.

The OSC prosecutes immigration-related unfair labor practices.

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

Sunday, December 22nd, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

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

U.S. 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.

U.S. Department of Labor’s Civil Rights Center Finds State Violated Federal Nondiscrimination Laws

Saturday, June 1st, 2013

On April 5, 2013, the U.S. Department of Labor’s Civil Rights Center (CRC) issued a 56-page Initial Determination in Miami Workers Center v. Florida Dept. of Economic Opportunity, Division of Workforce Services, CRC Complaint No. 12-FL-048, finding the State’s electronic filing system for unemployment insurance (UI) benefits had a discriminatory effect on limited English proficient (LEP) persons and persons with disabilities in violation of Title VI of the Civil Rights Act, Section 504 of the Rehabilitation Act, Title II of the Americans With Disabilities Act, and Section 188 of the Workforce Investment Act (WIA).  Based on these violations, the CRC concluded Florida must take certain corrective actions, or face a slew of sanctions, including termination of Department of Labor (DOL)-funding.

Although this determination involves a DOL-funded UI benefits program, the lessons learned are highly-instructive for Equal Opportunity (EO) professionals charged with ensuring their federally-assisted programs and activities operate in compliance with federal civil rights laws.

A copy of the CRC’s initial determination may be found through the National Employment Law Project (NELP) website at http://nelp.3cdn.net/2c0ce3c2929a0ee4e1_wim6i5ynx.pdf.  The State filed a response on June 5, 2013, which is located at http://www.floridajobs.org/news-center.  See June 2013 blog post titled, “State Challenges Investigative Techniques of Federal Civil Rights Office.”

√             Jurisdiction

Having traced funding for Florida’s UI benefits program back to a multi-million dollar grant from DOL’s Employment and Training Administration, the CRC concluded Florida was a “recipient” of DOL funding.  From this, the CRC determined it had jurisdiction to investigate the State’s policies and procedures in delivering its UI benefits program for possible violations of applicable federal civil rights laws.

In the course of this discrimination complaint investigation, a week-long onsite review of Florida’s UI claims process was conducted during which time a number of individuals were interviewed (including the State EO Officer, Florida’s Unemployment Compensation Manager, UI call center personnel, and individual complainants).  Additionally, over a period of several months, written materials and website pages were reviewed, and numerous e-mail exchanges took place between CRC investigators and State officials.

√             The issue

At the crux of the discrimination complaint was Florida’s shift from allowing claims for UI benefits to be filed by mail, telephone, and Internet, to a system that focused on filing claims by Internet only.  And, in addition to an lengthy claim form, individuals pursuing UI benefits under the new system also had to complete an online 45-question Initial Skills Review.

The conversion to an Internet filing system was mandated by Florida’s legislature, which passed a bill requiring all claims for UI benefits be filed electronically effective August 1, 2011.  Although certain limited exceptions to electronic filing were permitted, these exceptions were not widely-publicized or otherwise known to individuals filing for UI benefits.

Although Florida maintained its “modernization” efforts requiring electronic UI claims filing was designed to “improve the claims, benefits, and appeals processes and strengthen the relationship with Workforce Services for quicker reemployment,” the complaint alleged LEP persons and persons with disabilities were effectively denied access to apply for UI benefits under the new system.

√             National origin-based discrimination established

U.S. Census Bureau’s American Community Survey (ACS).  As an initial matter, the CRC accepted Florida’s use of the ACS to find “the two top languages spoken at home in Florida, following English, are Spanish (spoken by approximately 18.8% of the State population) and ‘French Creole’ (spoken by approximately 1.7% of the State population).”  The CRC agreed the Spanish and Creole languages “are used by a significant number or proportion of the State population.”

Florida’s LEP-related obligations.  The CRC explained, as a “recipient” of federal funding, Florida has two LEP-related obligations under federal civil rights laws:  (1) Florida must communicate in the language(s) used by a “significant number or proportion” of its service area population; and (2) Florida must assess “the particularized language needs” of LEP persons who “communicate in less-widely-used languages.”  Thus, even if the LEP person speaks a language that a staff person has never heard before, Florida must have a system in place to identify the language and provide interpretation and/or translation services to afford the LEP person “meaningful access” to the program.  Moreover, Florida must widely-publicize the fact that interpretation and translation services will provided at no charge to LEP persons.

No “meaningful access” provided.  Based on its investigation, the CRC found Florida did not provide “meaningful access” to the UI claims process for LEP persons.  Here, the CRC cited to several deficiencies, including the following:

●      Florida failed to translate “vital” website information in other languages.  For example, the “Instructions for Filing a Claim and Registering for the Initial Skills Review” appeared only in English on the website.

●      Updates to the website were provided regularly in English, but some updates were not provided on the Spanish or Creole versions of the website.

●      A link to Florida’s “Online Help Center” was provided only on the English version of the webpage.

●      The “Equal Opportunity is The Law” notice was translated into Spanish and Creole, but the discrimination complaint form was not available online in Creole.

●      A link to contact the UI office by e-mail appeared only on the English version of the website.

●      The State relied on LEP callers to provide their own interpreters (such as a family member or friend) to navigate the UI claims process.

And, although Florida had a telephone system in place as a secondary means for filing UI claims, the CRC found it was neither widely-publicized nor did it provide “meaningful access” to LEP persons for a number of reasons.  With regard to an LEP person speaking Spanish or Creole, the CRC noted:

[T]he deficiencies (in the telephone system) include the provision of outgoing recorded messages in English only, even on phone lines dedicated to (Spanish and Creole); callers’ inability to reach a live attendant after pressing a button for the appropriate language; undue delays waiting for interpreters; calls with Spanish (interpreters) that were dropped mid-conversation . . ..

Moreover, the CRC noted LEP persons were not informed, orally or through the posting of written notices, that they could file their UI claims and questionnaires by telephone instead of filing the claims electronically.

With regard to Florida’s ability to serve LEP persons who did not speak Spanish or Creole, the CRC found the State failed to have a system in place to “meet (their) particularized language needs.”  Notably, the CRC found Florida’s UI program personnel operated based on “ill-advised and inaccurate assumptions”; that is, personnel assumed LEP persons:

●      “can understand some English, if you’re speaking slowly”; and

●      LEP persons are able to recognize the English word “language,” and can then identify the language in which they communicate.

In support of its finding of violations, the CRC cited to the logs of various language “testers” utilized during the investigation (the testers spoke languages such as Portuguese, Hindi-Punjabi, Polish, and Russian), which revealed a lack of “meaningful access” to the UI benefits program.  Indeed, the CRC noted, at times, the testers were subjected to abusive language by call center operators.  In one case, the call center attendant stated, “I only speak English.  Speak English.”  During another call, the tester was told, “I don’t speak jibberish so call when you know English.”

Further, the call center attendants failed to identify the correct language of the testers, and the testers experienced undue delays in reaching a live attendant, or were never connected to a live attendant.  Additionally, when a tester was connected to a live attendant, the tester was misinformed about the UI claims process, or the call was dropped in mid-conversation.

Overall, the CRC concluded Florida’s system of delivering UI benefits failed “to provide meaningful access to accurate information” for LEP persons.

√             Disability-based discrimination established

Likewise, Florida’s UI benefits system violated WIA’s equal opportunity mandates when serving persons with disabilities.  Specifically, the CRC noted the system “deprive(s) persons with disabilities of equal opportunity.”  The CRC explained Florida is obliged to ensure its system of communicating with persons with disabilities is as effective as its system of communicating with others.  Moreover, Florida cannot segregate persons with disabilities, or use criteria or methods of operation that tend to screen them out of the claims process, or deny them access to the program.

In the course of its investigation, the CRC noted Florida’s Division of Workforce Services Director acknowledged the State took “no steps to make the on-line filing system accessible to persons with disabilities.”  The CRC found persons with visual or hearing impairments were denied effective means of communications during the UI claims process.  One example cited by the CRC involved persons with hearing impairments and their experiences at Florida’s American Job Centers:

Attorneys for the Complainant provided declarations from two claimants who were born deaf, communicated most effectively in American Sign Language (ASL), and do not understand complex written English.  Both claimants attempted to file for (UI) benefits . . . by going to WorkSource Career Centers and asking for help to file their claims.

In one case, a member of the Center’s staff attempted to help a hearing impaired individual file his claim online without the assistance of an ASL interpreter and, as a result, incorrect information was included in the claim.  A second hearing-impaired person stated the following about his experience at an American Job Center:

The representative didn’t understand what I was saying.  I told them they were required to provide an interpreter; I showed them a card that stated so.  They made excuses and said they were too busy and I would have to wait.  They then kept me waiting for about two-three hours.  I needed to get home and couldn’t wait any longer, so I left.

In the end, the CRC found Florida engaged in disability-based discrimination in its system of delivering UI benefits.

√             Remedies

The CRC’s proposed remedies in this determination are quite sweeping.  In directing that Florida take certain corrective steps, the CRC stated:

[T]hese steps must include actions to end and/or redress the above-described deficiencies; make-whole relief for individual victims of discrimination; and other remedial or affirmative relief.

Failure to achieve voluntary compliance with applicable civil rights laws could, according to the CRC, result in the ultimate termination of DOL funding to Florida:

 . . . DOL will take appropriate enforcement actions as authorized by the applicable laws and their implementing regulations.  Such actions may include, but are not limited to, referral of the matter to the Attorney General with a recommendation that an appropriate civil action be instituted; issuance of a Final Determination, which initiates administrative procedures to suspend, terminate, deny, or discontinue Federal financial assistance from DOL; or such other action as may be provided by law.

Some examples of the corrective steps put forth by the CRC to ensure nondiscrimination for LEP persons in Florida’s system of delivering UI benefits are as follows:

●      providing written translation of all “vital” website and written materials related to the UI benefits program into Spanish and Creole;

●      immediately ceasing any requirement that LEP persons provide their own interpreters;

●      training staff at American Job Centers and call centers to understand their obligations to provide interpreters for LEP persons as well as how such interpreters will be provided;

●      training call center staff regarding how to properly respond to LEP callers, including callers who speak no English at all;

●      widely-publicizing (in written form and through broadcast media) options to the online UI filing system for LEP persons, such as “informing (LEP) claimants that they may file by telephone”; and

●      monitoring the telephone system “to ensure that (UI)-related services and benefits for LEP persons are neither denied nor delayed because of problems” with the system.

With regard to serving persons with disabilities, the CRC suggested Florida either make the online filing system “fully accessible for persons with varying types of disabilities, or provide an alternative method of filing claims that provides an equal degree of access as is provided for persons without disabilities.”  Moreover, the CRC directed that Florida develop, implement, and widely-publicize “detailed procedures” for handing requests for communication assistance, including interpreting services such as ASL or Spanish Sign Language, and providing Communications Access Real Time (CART) transcriptions.

Finally, as previously noted, the Initial Determination calls for Florida to provide “make-whole” relief to LEP individuals and individuals with disabilities who “were denied any (UI) benefits to which they would have been entitled but for (Florida’s) unlawful actions . . ..”

√             About the author

Seena Foster, award-winning civil rights author and Partner of the discrimination consulting firm, Title VI Consulting, LLP in Alexandria, Virginia, provides expertise and guidance in the areas of compliance and civil rights investigations to state and local governments, colleges and universities, private companies, and non-profit organizations.  To that end, she offers one hour Webinars, full-day and half-day in-person training sessions, assistance developing procedures, and mediation services addressing a variety of types of discrimination such as racial discrimination, sex discrimination, disability discrimination, age discrimination, and religious discrimination.  The federal law on discrimination is complex and affects our workplaces as well as the delivery of our federally assisted 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.

 

The WIA Equal Opportunity Officer: Who Are You? To What Are You Entitled? What Are You (supposed) To Do?

Tuesday, January 1st, 2013

Who are you?

Let’s start with who you are. Most likely, you have been appointed the Equal Opportunity (EO) officer for your organization in addition to your “day job.” Yet, as the EO officer, you perform critical duties. You’ve joined the ranks of EO professionals across the country and the U.S. territories.

As a Workforce Investment Act (WIA) EO officer, you work for an organization that administers, or is financed by, WIA Title I funds. Most likely, the U.S. Department of Labor is your federal funding agency. Your organization may be a state or local government agency, an unemployment insurance call center, a workforce investment board, a LWIA grant recipient, the operator of a One-Stop, a service provider or eligible training provider, an on-the-job-training employer, a Job Corps operator or contractor, or a placement agency.

You are a “senior-level” employee within your organization and you have direct access to top management for purposes of reporting on EO matters.

And, while most of you have duties associated with your “day jobs”, these duties do not create a conflict, or the appearance of a conflict, of interest with your EO duties. Here it is important to recognize that conflicts of interest may arise if you are part of your organization’s human resources (HR) or legal departments, or if you report EO matters to someone in your organization’s HR or legal departments. If you are unsure whether a conflict of interest, or the appearance thereof, exists between the duties of your “day job” and your EO duties, then you should consult with your state-level EO leadership, or the civil rights office of your federal funding agency.

To what are you entitled?

The organization you serve has certain responsibilities which are designed, by law, to enable you to properly perform your EO duties.

The organization is obliged to make your name, position title, and telephone number (voice and TDD/TTY) available to the public and it must ensure that this information appears on all communications pertaining to its nondiscrimination and equal opportunity programs. It is reasonable that this would include communications distributed through outreach, during orientation, on your organization’s website, and the like.

Moreover, the organization is obliged to:

● assign sufficient staff and resources to enable you to do
your job;
● provide you and your assigned staff the opportunity to receive training to maintain your competency; and
● provide you with the necessary support of “top management” to ensure compliance with WIA’s nondiscriminatory and equal opportunity provisions.

And, it is worth repeating, that the law requires that you have access to report EO matters directly to an appropriate high-ranking official, such as your state-level WIA director, the Governor’s WIA liaison, a Mayor’s WIA liaison, Job Corps Center director, SESA Administrator, or LWIA grant recipient, and the like.

What are you (supposed) to do?

As a WIA EO officer, we know that your organization receives federal taxpayer dollars (WIA Title I funds) to administer programs and activities for the benefit of the public you serve. With these taxpayer dollars comes a legal obligation to provide benefits, aid, services, and training in compliance with WIA’s nondiscrimination and equal opportunity mandates.

Noncompliance can lead to reduction, or elimination, of federal funding. Thus, the importance of your role as the EO officer cannot be overstated. You are the person who is designated to coordinate your organization’s compliance with these nondiscrimination and equal opportunity laws.

You should know that your state or U.S. territory must submit a document called the Methods of Administration for approval by the U.S. Department of Labor’s Civil Rights Center every two years. This resource is generally developed by your state-level EO leadership and is signed by your governor. It contains the policies and procedures your state or U.S. territory has determined will be used to ensure compliance with WIA’s nondiscrimination and equal opportunity laws. It is worthwhile for you to be generally familiar with the location and contents of this resource.

As a WIA EO officer, you serve as your organization’s liaison with the Civil Rights Center (CRC). Any EO officer should be familiar with the location of, and contact information for, his or her organization’s federal funding agency. For WIA EO officers, the phone number for the CRC’s enforcement office is (202) 693-6502 (voice). The TTY is (202) 693-6516. The e-mail address is: CRCExternalComplaints@dol.gov. The physical address for the CRC is: U.S. Department of Labor, Civil Rights Center, 200 Constitution Ave., NW, Room N-4123, Washington, DC 20210. The CRC’s Office of Compliance and Planning, which may be able to offer technical and compliance assistance, is reached at (202) 693-6501 (voice).

In addition to serving as a liaison to the CRC, monitoring and investigating your organization’s activities to ensure compliance with nondiscrimination and equal opportunity laws are part of your duties as an EO officer. Here, you must have an understanding of how your organization operates each of its federally-funded programs and activities, and make sure that staff knows and understands the policies and procedures in place to prevent violations of the nondiscrimination and equal opportunity laws.

Speaking of written policies and procedures, as the EO officer, you are also responsible for reviewing these written documents to ensure that they are nondiscriminatory (see my prior blog titled, “The Importance of ‘The Script’”). To meet this obligation, you must have a complete collection of your organization’s policies and procedures pertaining to delivery of each of your federally-funded services, aid, benefits, and training. If you have questions regarding the propriety of any particular policies and procedures, contact your state EO leadership, or the civil rights office of your federal funding agency for guidance. You may also take a look at the policies and procedures set forth in your state’s or territory’s MOA.

Investigating discrimination complaints is another responsibility of the EO officer. For this, you must familiarize yourself with your organization’s discrimination complaint procedures. If no procedures are in place, you are responsible for developing and publishing such procedures. For this, you may seek guidance from your state EO leadership, the MOA, or the civil rights office of your federal funding agency. Moreover, our publication, Civil Rights Investigations Under the Workforce Investment Act and Other Title VI-Related Laws: From Intake to Final Determination, is highly-recommended as a comprehensive, detailed, easy-to-follow resource. You may order a copy by visiting our website at www.titleviconsulting.com.

Finally, you are obliged to report EO matters to top management officials in your organization. Moreover, if directed by top management, you are compelled to attend training, paid by your organization, to maintain your competency in EO matters.

In sum, you are the eyes, ears, and voice on the front lines. You serve as liaison, monitor, investigator, policy developer, reviewer, and coordinator of critical, legally-mandated functions designed to ensure the nondiscriminatory delivery of federally-funded programs and activities to the public.

For regulations applicable to WIA EO officers, see 29 C.F.R. Part 37.

About the author.

Seena Foster, award winning civil rights author and Partner of the discrimination consulting firm, Title VI Consulting, LLP in Alexandria, Virginia, provides expertise and guidance in the areas of compliance and civil rights investigations to state and local governments, colleges and universities, private companies, and non-profit organizations. To that end, she offers 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 Title VI For Colleges and Universities

Tuesday, February 7th, 2012

Attorney and award-winning author, Seena Foster, will conduct a one hour webinar on Wednesday, February 15, 2012 from 2:00 pm to 3:00 pm addressing issues of compliance with Title VI of the Civil Rights Act of 1964 by colleges and universities. The webinar is sponsored by the American Association for Affirmative Action at www.affirmative action.org. Ms. Foster is a Partner of Title VI Consulting in Alexandria, Virginia. You may visit her website at www.titleviconsulting.com.

The Meaning of “Disability”

Sunday, February 5th, 2012

Federal civil rights laws prohibit disability-based discrimination in federally-funded programs and activities as well as in your employment practices. Disability-based discrimination complaints generally fall into one of three legal theories—disparate treatment, disparate impact, or reasonable accommodation. In order to prevent discrimination on the basis of disability under any of these legal theories, we must understand how “disability” is defined. In this paper, we will focus on the definition of “disability” in the civil rights context. Other issues pertaining to disability-based discrimination, such as reasonable accommodation, will be handled in a separate paper.

Our understanding of the concept of “disability” is guided by the Rehabilitation Act of 1973, the Americans With Disabilities Act of 1990, and the Americans With Disabilities Amendments Act of 2008 (ADAAA).

“Disability” defined

Under these federal civil rights laws, “disability” is broadly defined as (1) a physical or mental impairment that substantially limits one or more major life activities, or (2) a record of such impairment, or (3) being regarded as having such an impairment.

“Physical or mental impairment” defined

The types of conditions that may give rise to a physical or mental impairment include, but are not limited to, the following:

√ physiological disorder or condition
√ cosmetic disfigurement
√ anatomical loss affecting one or more body systems, including neurological, muscoskeletal, respiratory, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine
√ mental disability
√ organic brain syndrome
√ emotional or mental illness
√ specific learning disabilities
√ contagious and noncontagious diseases
√ visual, speech, or hearing impairments
√ cerebral palsy
√ epilepsy
√ HIV disease (symptomatic or asymptomatic)
√ tuberculosis
√ illegal drug addiction (prior or perceived)
√ alcoholism (prior or perceived)
√ cancer
√ heart disease
√ diabetes
√ muscular dystrophy

It is important to keep in mind the ADAAA provides that a temporary or transient condition of six months or less (i.e. a broken arm) does not constitute a “disability” for purposes of the federal civil rights laws.

With regard to illegal drug use, generally an individual who is currently engaged in illegal drug use will not be deemed an “individual with a disability” when a recipient operating a federally funded program or activity acts on the basis of such use. On the other hand, if the person successfully completed a drug rehabilitation program, or is participating in such a program and is no longer using illegal drugs, s/he may meet the definition of and “individual with a disability.” Similarly, if the individual is erroneously regarded as using illegal drugs (when, in fact, the individual is not), then that individual also may meet the definition of an “individual with a disability”; namely, the individual is “perceived” to have impairment where none exists.

However, even if state law permits the use of certain drugs but their use is illegal under federal laws, then the person will not be deemed an “individual with a disability” under the ADA and the statute’s nondiscrimination provisions do not apply. In James, et al v. City of Costa Mesa, ___ F.3d ___, Case No. 10-55769 (9th Cir. May 21, 2012), plaintiffs sought to prevent the shutdown of marijuana dispensing locations by the City of Costa Mesa, California through filing a discrimination complaint under the ADA. The circuit court held that even though the State of California permits the use of marijuana for medicinal purposes, under federal law, this constitutes “illegal drug use” and the ADA does not apply. The court stated:

We recognize that the plaintiffs are gravely ill, and that their request for ADA relief implicates not only their right to live comfortably, but also their basic human dignity. We also acknowledge that California has embraced marijuana as an effective treatment for individuals like the plaintiffs who face debilitating pain. Congress has made clear, however, that the ADA defines ‘illegal drug use’ by reference to federal, rather than state, law, and federal law does not authorize the plaintiffs’ medical marijuana use. We therefore necessarily conclude that the plaintiffs’ medical marijuana use is not protected by the ADA.

If you have questions regarding whether a person is an “individual with a disability”, check with the civil rights office of your federal funding agency, or with your EO leadership.

“Substantially limits a major life activity” defined

It is important to keep in mind that a mere “physical or mental impairment” is insufficient to invoke the protections of federal civil rights laws; rather, the “physical or mental impairment” also must “substantially limit one or more major life activities.” “Major life activities” are commonly understood as including the following:

√ Caring for one’s self;
√ Performing manual tasks;
√ Walking;
√ Seeing;
√ Hearing;
√ Speaking;
√ Breathing;
√ Learning; and
√ Working.

Types of adverse actions at issue

Disability-based discrimination may take a variety of forms. In federally funded programs and activities, a person with a disability may be subjected to illegal discrimination under the following circumstances:

√ outright intentional exclusion from the program or activity;
√ being subjected to the discriminatory effects of architectural, transportation, or communication barriers;
√ exclusion from participation based on certain qualification standards or criteria;
√ segregation from others in participating in a program or activity;
√ failure to address a request for accommodation or modification; and
√ being channeled to lesser programs or activities.

Similarly, in your employment practices, disability-based discrimination may arise from the following:

√ refusal to hire or promote because of the disability;
√ use of exclusionary occupational criteria or standards;
√ being subjected to the discriminatory effects of architectural, transportation, or communication barriers;
√ failure to address a request for accommodation or modification; and
√ segregation from others at workplace events or meetings.

These lists are not exhaustive; rather, they are intended to give you an idea of the types of discriminatory acts that are encountered by persons with disabilities.

Past, Present, and Perceived Disability

Illegal disability-based discrimination may occur based on an individual’s present or past disability, or your “perception” that the individual has a disablity. Let’s start with examples of discrimination based on a “present” disability.

√ In a federally funded program or activity. Jane is blind. She has a master’s degree in business administration and comes to your One Stop Career Center seeking employment in this field with a company. Your employment counselor, however, refers Jane to a position as an entry level clerk for a company. Although this position requires only an associate’s degree and it pays much less, the counselor explains that he has successfully referred other blind people to these positions with the company. Here, Jane has been given a job referral to a lesser position because of her “present” disability (blindness).

√ In the workplace. Again, we’ll use Jane for purposes of our example. She has been working as a project manager for your company for ten years and has received excellent reviews by her supervisors. She has applied for a promotion to a position that involves supervising staff. Although Jane is an excellent candidate, you are concerned with how she would interact with subordinate staff because she is blind. As a result, you decline to promote her. In this example, Jane has been denied a promotion because of her “present” disability.

Illegal discrimination also may occur on the basis of a person’s “past” disability. Here, the person, at one time, suffered from a disability that limited one or more major life activities. And, even though the person no longer suffers from the disability, s/he suffers from discrimination because of the “past” disability. Let’s take a look at a couple of examples.

√ In a federally funded program or activity. Three years ago, John was diagnosed with an aggressive form of cancer. For 12 months, he was treated with chemotherapy. For the past two years, he has received check-ups from his physician every six months and the cancer is in remission. John seeks to enroll in an on-the-job training program in the construction industry. He meets the essential eligibility requirements for the program because he has a bachelor’s degree and five years of experience. However, you deny his application to enroll. You state that the program is expensive and requires a commitment of four years. You are concerned that the cancer will reappear in that time period. Here, you have discriminated against John on the basis of a “past” disability, i.e. you denied enrollment in the training program because he suffered from cancer in the past.

√ In the workplace. Again, we’ll use John as our example. This time, he applies to be hired by your company for a supervisory position. Your company is expanding and you need someone who can “hit the ground running” and get results from the team of folks assigned to him or her. You believe John’s recent bout with cancer constitutes too much of a risk to place him in such a critical position with your company even though he meets all of the occupational qualifications for the position. You decide not to hire him. Here, John has suffered illegal discrimination on the basis of a “past” disability.

Finally, we’ll take a look at discrimination on the basis of a “perceived” disability. Here, the person may have a disability, but it does not substantially limit any major life activities. Or, the person does not have any disability at all. Yet, the person is treated as if s/he does have a disability.

√ In a federally funded program or activity. In this example, Joan seeks training as a construction project manager. When she arrives at your One Stop Center, she accidentally catches her foot on the corner of a desk. You did not see this and, as Joan approaches your desk, she is walking with a limp. Because the training program requires considerable walking, lifting, and bending, you decide that Joan would not be able to complete the training given her limp. Here, you have denied training to Joan based on your “perception” that she suffers from a disability, which is illegal.

√ In the workplace. Again, we’ll use Joan as our example. Here, you are a bank manager seeking to hire tellers. Joan arrives at your bank to interview for the position. She was referred by one of your existing tellers. However, a different teller whispers to you that he thinks Joan has an “illegal drug problem” and would pose a risk if hired. You proceed to interview Joan. Even though she meets your educational and experience requirements for the bank teller position, you decline to hire her. You are concerned about her “illegal drug problem.” In reality, Joan has never used illegal drugs. In this example, you have discriminated against Joan on the basis of a “perceived” disability.

Conclusion

In sum, discrimination may occur on the basis of a present, past, or perceived disability. To avoid disability-based discrimination in federally funded programs and activities, you should focus on the essential eligibility requirements for the service, aid, training, or benefit and whether a person meets those requirements regardless of any past, present, or perceived disability. Similarly, in the workplace, focus on the bona fide occupational requirements and essential job duties for a position or promotion. And, whether in federally funded programs or activities, or in the workplace, you must have policies and procedures in place to handle requests for accommodation and/or modification.

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, Virginia. You may visit her website at www.titleviconsulting.com.