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U.S. Equal Employment Opportunity Commission Weekly Digest Bulletin Featuring Select Task Force on Harassment and Sex Discrimination Settlement in Disparate Impact Case (June 2018)

Sunday, June 17th, 2018

EEOC SELECT TASK FORCE ON HARASSMENT HEARS FROM EXPERTS ON HOW TO PREVENT WORKPLACE HARASSMENT

WASHINGTON — The U.S. Equal Employment Opportunity Commission’s (EEOC) Select Task Force on the Study of Harassment in the Workplace reconvened today to hear from expert witnesses on “Transforming #MeToo Into Harassment-Free Workplaces” at a meeting open to the public.

“Our co-chairs’ report on harassment laid the groundwork for the launch of a renewed effort to prevent harassment,” stated Acting EEOC Chair Victoria A. Lipnic. “Since last fall, the public’s demand for action has coalesced with this effort. The EEOC will continue to lead the fight against workplace harassment and to promote solutions to prevent it.”

EEOC Commissioner Chai R. Feldblum added, “Our challenge is to use this #MeToo moment well. We have a road map given the work we have done at the EEOC. We have the attention and commitment of the range of different actors in society that we need. Together, we can channel that energy to create significant and sustainable change.”

Legal scholars and attorneys who represent workers and employers highlighted a range of issues raised in the wake of high-profile allegations of sexual harassment since October 2017 and the rise in the #MeToo and #TimesUp movements. These experts discussed non-disclosure and arbitration agreements and training mandates, and shared proposals for legal reform from state legislatures and industry groups, who have taken up action to address sexual harassment in the workplace.

Elizabeth Tippett, a professor at the University of Oregon School of Law, provided an overview of a range of legal issues and noted the importance of also addressing other forms and aspects of harassment. “It would be a mistake for employers and state legislators to limit their response exclusively to sexual harassment,” Tippett said. “In doing so, they risk laying a foundation for the next crisis, whether it involves other forms of harassment, or discrimination and retaliation.”

Debra Katz, a partner with Katz, Marshall and Banks, said, “#MeToo movement forces society to see the gaps between the promises of our politicians and lawmakers and the realities of individuals, face to face in the workplace.” Katz outlined how Title VII and state laws have been thwarted for too long by evasions that the legal system itself has sanctioned. “#MeToo illustrates the immense cost of that failure,” Katz noted.

Kathleen McKenna, a partner at Proskauer Rose, who represents employers, testified that arbitration provides a neutral and confidential process to resolve individual harassment complaints for conduct that employers “invariably prohibit and work to guard against.” McKenna also explained that proposals to prohibit non-disclosure agreements are likely to be counterproductive, as that could lead to an increase in litigation rather than private resolution.

Suzanne Hultin with the National Conference of State Legislatures testified that over “125 pieces of legislation have been introduced this year in 32 states.” Hultin noted that many states are looking to go beyond federal regulations to prevent workplace sexual harassment. She projected that proposals to address and prevent harassment would continue to be a priority for state legislatures this year and next.

A second panel presented innovative strategies that employers, unions, and others have developed to promote workplaces free of harassing conduct.

Jill Geisler, a fellow with the Newseum’s Freedom Forum Institute, described the Power Shift Project, a solutions-based effort about what newsrooms and media organizations are doing to deal with emerging cases of sexual misconduct, and what systemic changes are needed to end harassment and promote opportunity for all. While discussing the Power Shift Summit, the kick-off event for the project, Geisler described “a sense of new urgency and serious commitment among participants to fix these problems and create meaningful, sustainable change.”

Kasey Nalls, a member of the union UNITEHERE, described the “Hands Off Pants On” campaign that was spearheaded by UNITE HERE Local 1 and the Chicago Federation of Labor two years before the #MeToo movement exploded last fall. The initiative helps protect hotel workers from sexual harassment and assault by guests and an ordinance adopting it was unanimously passed by the Chicago City Council in October 2017. “Since the anti-sexual harassment policy went in to effect in January 2018, we’ve observed a chipping away at culture that permeates the hospitality industry that the “‘guest is always right,’” said Nalls.

Erin Wade and her staff at a restaurant called Homeroom developed a simple color-coded system for wait staff to use to signal if they confront harassing conduct from a customer, which then triggers a specific, mandated action by the manager to handle the situation. Wade emphasized that “We need to listen to the suggestions of women for how to solve the problems plaguing them, and put them in the position to change their own worlds.” She reported the success of this system as customer harassment is no longer a significant problem and the system has created a safe workplace for staff.

Jess Ladd, founder and CEO of Callisto, testified about her non-profit’s online documentation and reporting platforms in which the first report of a harassing incident creates a “matching escrow” that allows victims of sexual harassment to hold their identities in escrow until another victim of the same harasser comes forward. The second report triggers both victims being put in touch with the same Callisto legal advocate. “Callisto Expansion is designed to help victims understand the full range of their options, from HR to police to the press to the EEOC to confronting their perpetrator. We help victims understand which of these options they can pursue, given their case and the case of linked victims,” Ladd testified.

Lisa Gelobter, CEO and co-founder of tEQuitable, has created an independent, confidential platform to address issues of bias, discrimination and harassment in the workplace. She said that tEQuitable has built a third-party, tech-enabled Ombuds program, which “is the only platform implementing solutions to proactively stop harassment, not just reactively catch harassers after the fact.”

The Select Task Force, co-chaired in 2015 and 2016 by EEOC Commissioner Chai R. Feldblum and Commissioner and now-Acting Chair Victoria A. Lipnic, consisted of representatives of academia and social science; legal practitioners on both the plaintiff and defense sides; employer and employee advocacy groups; and organized labor. Co-Chairs Feldblum and Lipnic released a report based on the work of the task force on June 20, 2016. The report includes recommendations regarding leadership, accountability, policies and procedures, training, and developing a sense of collective responsibility.

As a result of the co-chairs’ report, the EEOC developed an innovative training program called Respectful Workplaces that has been provided in over 200 training sessions to over 5,200 employees and supervisors in 18 states. Since June 2016, when the report was released, the EEOC has also con-ducted about 2,700 outreach events related to harassment, reaching approximately 300,000 individuals.

The Task Force heard from the following witnesses during the meeting:

• Elizabeth Tippett, University of Oregon School of Law
• Debra Katz, Katz, Marshall & Banks
• Kathleen McKenna, Proskauer Rose
• Suzanne Hultin, National Conference of State Legislatures
• Jill Geisler, Power Shift Project, Freedom Forum Institute
• Kasey Nalls, UNITEHERE
• Erin Wade, Homeroom Mac & Cheese
• Jess Ladd, Callisto
• Lisa Gelobter, tEQuitable

The written statements of the witnesses are available at www.eeoc.gov.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.

CSX TRANSPORTATION TO PAY $3.2 MILLION TO SETTLE EEOC DISPARATE IMPACT SEX DISCRIMINATION CASE
Railroad to Cease Challenged Physical Abilities Testing, Federal Agency Announces

HUNTINGTON, W.V. – CSX Transportation, Inc. (CSXT) will pay $3.2 million and furnish other relief to settle a company-wide sex discrimination lawsuit filed by the U.S. Equal Employment Oppor­tunity Commission (EEOC), the federal agency announced today.

According to the EEOC’s lawsuit, CSXT conducted isokinetic strength testing as a requirement for workers to be hired for various jobs. The EEOC said that the strength test used by CSXT, known as the “IPCS Biodex” test, caused an unlawful discriminatory impact on female workers seeking jobs as con­ductors, material handler/clerks, and a number of other job categories. The EEOC also charged that CSXT used two other employment tests, a three-minute step test seeking to measure aerobic capacity and a dis­continued arm endurance test, as a requirement for selection into certain jobs, and that those tests also caused an unlawful discriminatory effect on female workers.

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on sex, including the use of tests that are administered to all applicants and employees regardless of sex but that cause a discriminatory effect or impact on persons of a particular sex or any other demographic category. Employers using such tests must prove that those practices are necessary for safe and efficient perform­ance of the specific jobs for which the tests are used. Even if this necessity is proven, such tests are prohibited by Title VII if it is shown that there are alternative practices that can achieve the employers’ objectives but have a less discrimin­atory effect.

The EEOC originally filed the lawsuit (U.S. EEOC v. CSX Transportation, Inc. Case No. 3:17-cv-03731) in U.S. District Court for the Southern District of West Virginia in Huntington on Aug. 1, 2017. The EEOC and CSXT agreed to settle the EEOC’s disparate impact claims before any ruling by the federal court. The EEOC did not allege any intentional discrimination by CSXT in this case.

The consent decree settling the EEOC’s lawsuit, which has received approval by the federal court, requires CSXT to cease the physical abilities testing practices that the EEOC charged were causing a disparate impact against female workers. The decree also requires CSXT to pay $3.2 million into a settlement fund to pay lost wages and benefits to a class of women in over 20 states who were denied positions because of the testing. Under the decree, CSXT must also retain expert consultants to conduct scientific studies before adopting certain types of physical abilities testing programs for use in its hiring.

“We commend CSX Transportation for working collaboratively with the EEOC to address our concerns about the railroad’s physical abilities testing program,” said EEOC Regional Attorney Debra M. Lawrence. “The company’s willingness to confer with the EEOC about the agency’s concerns and its agree­ment to cease the testing practices at issue reflect a corporate commitment to gender diversity and inclu­sion that will benefit both workers and the company.”

EEOC Pittsburgh Area Office Director Roosevelt Bryant said, “Railroad and other transportation occupations provide excellent career opportunities for women when sex-based barriers to their participa­tion in those jobs are removed. The EEOC is committed to ensuring that all workers have an equal oppor­tunity for hiring and advancement in such work.”

EEOC District Director Jamie R. Williamson said, “The EEOC will continue to carefully examine employer testing and screening practices to identify those that operate as systemic barriers to employment based on protected characteristics. Workers who believe they are being subjected to the discriminatory effects of such practices should bring them to the attention of the EEOC.”

Eliminating barriers in recruitment and hiring, especially class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women and persons with disabilities, is one of six national priorities identified by the Commission’s Strategic Enforcement Plan.

According to company information, CSX Corporation, together with its subsidiaries based in Jacksonville, Fla., is one of the nation’s leading transportation suppliers. CSX’s principal operating company, CSX Transportation, provides an important link to the transportation supply chain through its approximately 21,000 route-mile rail network, which serves major population centers in 23 states east of the Mississippi River, the District of Columbia and the Canadian provinces of Ontario and Quebec. CSX serves more than 70 ocean, river and lake ports along the Atlantic and Gulf Coasts, the Mississippi River, the Great Lakes and the St. Lawrence Seaway. CSX also serves thousands of production and distribution facilities through connections to more than 240 short line and regional railroads.

The lawsuit was commenced by the EEOC’s Pittsburgh Area Office, one of four component offices of the agency’s Philadelphia District Office. The Philadelphia District Office has jurisdiction over Pennsylvania, West Virginia, Maryland, Delaware and parts of New Jersey and Ohio. Attorneys of the Philadelphia District Office also prosecute discrimination cases in Washington, D.C. and parts of Virginia.

U.S. Department of Justice Weekly Digest Bulletin (June 2018)

Sunday, June 17th, 2018

Refugees’ and Asylees’ Right to Work

This free webinar will educate refugees, asylees and the professionals working with them about workers’ rights under the anti-discrimination provision of the Immigration and Nationality Act, and special issues facing refugees and asylees related to this law. Representatives from the Department of Justice Civil Rights Division’s Immigrant and Employee Rights Section (IER) will describe how this office assists refugees and asylees discriminated against based on their national origin or citizenship status. Attendees will learn how to identify possible discrimination in the process of verifying a worker’s authorization to work in the United States.

IER representatives will also discuss free resources relating to this law, including for individuals with limited English proficiency, such as IER’s worker hotline. In addition to providing the public information on the law that IER enforces, IER’s hotline intervention program informally resolves problems. Examples of issues that IER may be able to assist with include when an employer: rejects a refugee’s I-94 as a valid Form I-9 receipt, does not allow a refugee to start work without a Social Security number, rejects a asylees’s or refugee’s driver’s license and Social Security card as valid Form I-9 documentation, or rejects an Asylee I-94 as a valid List C document for the Form I-9.

Wednesday, June 27, 2018 at 2:00-3:30 pm ET
IER Training for Refugee and Asylee Service Providers

Register Here

On-Demand Civil Rights Webcasts Available: Delivering Public-Facing Programs and Activities in Compliance with Federal Law

Saturday, June 16th, 2018

Delivered by Civil Rights Expert and Author Seena Foster

In 2017, State and local government officials are applauding the webcasts, stating they are “outstanding,” “very informative,” and “extremely useful.” Each webcast is only $29.00.

Available Selection

Compliance with Title VI of the Civil Rights Act: An Overview

Compliance with the Nondiscrimination and Equal Opportunity Provisions of the Workforce Innovation and Opportunity Act: A Comprehensive Overview

Discrimination Complaint Investigations under the Workforce Innovation and Opportunity Act:  Proper Process and Technique

State and local government officials responsible for the delivery of, or monitoring the delivery of, services, aid, training, or benefits to the public must comply with Federal civil rights laws. These laws also apply to service providers, on-the-job trainers, contractors, and partners that assist in delivering public-facing programs and activities. Our webcasts provide practical training for new and experienced professionals working in the area of equal opportunity.

Because the webcasts are on-demand and certificate-based, they provide a convenient and inexpensive way to acquire and document training of staff, contractors, service providers, and partners.

How to register:
To register, simply click on the “Webcast Registration” icon on the left side of this blog. Or, go to https://engage.vevent.com/rt/titleviconsulting.

Cost-effective.  Only $29.00 each. No travel costs.  No lost time from work. These webcasts are absolutely the best value for your dollar!

Content-rich.  Each webcast is packed with useful information, guidance, and helpful tips. Each participant receives a copy of the detailed PowerPoint presentation for the webcast, which may be used as a checklist going forward.

Certificate-based.  Within three to five weeks, each participant who registers and attends the webcast will receive a personalized, signed “Certificate of Completion” to document the training.  

Title: Compliance with Title VI of the Civil Rights Act: An Overview
Description:
This popular webcast provides an informative overview of how to comply with the nondiscrimination mandates of Title VI of the Civil Rights Act of 1964. Title VI applies to the administration, oversight, and delivery process of all state and local programs and activities that are federally-assisted. In this webcast, we’ll focus on the scope and meaning of Title VI of the Civil Rights Act, and we will touch on a variety of compliance-related issues, including environmental justice, serving limited English proficient populations, contracting and procurement, discrimination complaints, harassment and hostile environment, training, monitoring, and data collection. Participants will understand the meaning of race, color, and national origin-based discrimination through Ms. Foster’s use of a variety of easy-to-understand examples. And, participants will learn about surprising federal enforcement policies to include certain types of religious-based discrimination as prohibited under Title VI. A detailed PowerPoint is available for download to viewers of this webcast.

Title: Compliance with the Nondiscrimination and Equal Opportunity Provisions of the Workforce Innovation and Opportunity Act: A Comprehensive Overview
Description: 
This webcast provides a wealth of information, guidance, and tips to help you ensure compliance with the nondiscrimination and equal opportunity provisions of Section 188 of the Workforce Innovation and Opportunity Act (WIOA), and related Federal civil rights laws that apply to the administration, oversight, and delivery process for WIOA Title I-financially assisted programs and activities. In this webcast, we’ll cover a broad range of compliance issues, including taglines, assurances, Equal Opportunity officers (their selection and duties, and the recipients’ obligations in support of EO officers), serving persons with disabilities, serving LEP populations, differences between program complaints and discrimination complaints, harassment and hostile environment, and data collection, including requirements for the discrimination complaint log and storage of medical information. A detailed PowerPoint, updated after promulgation of the final version of the WIOA regulations at 29 C.F.R. Part 38, is available for download to viewers of the webcast.

Title: Discrimination Complaint Investigations under the Workforce Investment Act:  Proper Process and Technique
Description:
This webcast covers the discrimination complaint investigation process from start to finish, including determining jurisdiction, developing a complaint investigation plan, framing the issue of an investigation, developing interrogatories, preparing a letter of acceptance, gathering and analyzing information, interviewing the parties and witnesses, and writing the notice of final action.  Each participant of this webcast will receive a set of templates that they may customize and use for their investigations, including a jurisdiction checklist, sample complaint investigation plans, sample notices rejecting a complaint, a sample letter of acceptance, and a sample notice of final action. Complaint investigation templates and a detailed PowerPoint are available for download to viewers of the webcast. Complaint processing templates and a detailed PowerPoint are available for download to viewers of the webcast.

About Seena Foster
Seena Foster, award-winning civil rights author and Principal of the discrimination consulting firm, Title VI Consulting in Alexandria, Virginia, provides expertise and guidance in the areas of 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, discrimination complaint investigation assistance, and mediation services addressing a variety of types of discrimination such as racial discrimination, sex discrimination, disability discrimination, age discrimination, and religious discrimination. Federal non-discrimination laws are complex, and they affect 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.

Her background includes 24 years as Senior Legal Advisor to the U.S. Labor Department’s Office of Administrative Law Judges, where she drafted decisions and orders and developed resources and aids promoting consistency and efficiency in several national adjudication programs. In 2012, Ms. Foster received the U.S. Secretary of Labor’s Exceptional Achievement Award “for outstanding leadership and legal guidance in helping the Office of Administrative Law Judges address the major changes in law” stemming from enactment of the Patient Protection and Affordable Care Act.

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 CRC Director Annabelle Lockhart, 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 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, and she carries certification in federal workplace mediation from the Northern Virginia Mediation Service as well as mediation certification from the Defense Equal Opportunity Management Institute (DEOMI). Ms. Foster also is a member of the Human Rights and Discrimination Law committees of the International Bar Association. You may contact her at seena@titleviconsulting.com.

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

Saturday, June 16th, 2018

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

Friday, June 15th, 2018

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

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

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

Federally-funded programs and activities

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

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

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

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

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

In the workplace

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

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

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

Conclusion

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

About Seena Foster

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

EEOC RECONVENES SELECT TASK FORCE ON STUDY OF HARASSMENT IN THE WORKPLACE (June 2018)

Tuesday, June 12th, 2018

CONTACT:

Kimberly Smith-Brown
Christine Nazer
James Ryan
Joseph Olivares
Kim Dulic
202-663-4191
newsroom@eeoc.gov

FOR IMMEDIATE RELEASE

Tuesday, June 8, 2018

WASHINGTON — The U.S. Equal Employment Opportunity Commission’s (EEOC) Select Task Force on the Study of Harassment in the Workplace will reconvene on Monday, June 11, from 9:30 a.m. to 1:00 p.m. (Eastern Time), at agency headquarters, 131 M Street, N.E., Washington, D.C. The meeting, entitled “Transforming #MeToo into Harassment-Free Workplaces: A Reconvening of the EEOC’s Select Task Force on the Study of Harassment in the Workplace,” will be open to public observation.

The Select Task Force, co-chaired in 2015 and 2016 by EEOC Commissioner Chair R. Feldblum and Commissioner and now-Acting Chair Victoria A. Lipnic, consisted of representatives of academia and social science; legal practitioners on both the plaintiff and defense sides; employer and employee advocacy groups; and organized labor. Co-chairs Feldblum and Lipnic released a report based on the work of the task force on June 20, 2016. The report includes recommendations regarding leadership, accountability, policies and procedures, training, and developing a sense of collective responsibility.

Witnesses and Task Force members will address harassment in the workplace in light of the #MeToo movement, and discuss how employers can and have worked to transform themselves and prevent and stop harassment. The Task Force will hear from the following panelists during the meeting:

Elizabeth Tippett, University of Oregon School of Law
Debra Katz, Katz, Marshall, & Banks
Kathleen McKenna, Proskauer Rose
Suzanne Hultin, National Conference of State Legislatures
Jill Geisler, Power Shift Project, Freedom Forum Institute
Erin Wade, Homeroom Mac & Cheese
Jess Ladd, Callisto
Lisa Gelobter, tEQuitable

Seating is limited. We encourage visitors to arrive at least 30 minutes before the meeting to be processed through security and escorted to the meeting room. Visitors should bring a government-issued photo identification card to facilitate entry into the building. The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.

U.S. Department of Justice Immigrant and Employee Rights Section (June 12, 2018)

Tuesday, June 12th, 2018

Refugees’ and Asylees’ Right to Work

This free webinar will educate refugees, asylees and the professionals working with them about workers’ rights under the anti-discrimination provision of the Immigration and Nationality Act, and special issues facing refugees and asylees related to this law. Representatives from the Department of Justice Civil Rights Division’s Immigrant and Employee Rights Section (IER) will describe how this office assists refugees and asylees discriminated against based on their national origin or citizenship status. Attendees will learn how to identify possible discrimination in the process of verifying a worker’s authorization to work in the United States.

IER representatives will also discuss free resources relating to this law, including for individuals with limited English proficiency, such as IER’s worker hotline. In addition to providing the public information on the law that IER enforces, IER’s hotline intervention program informally resolves problems. Examples of issues that IER may be able to assist with include when an employer: rejects a refugee’s I-94 as a valid Form I-9 receipt, does not allow a refugee to start work without a Social Security number, rejects a asylees’s or refugee’s driver’s license and Social Security card as valid Form I-9 documentation, or rejects an Asylee I-94 as a valid List C document for the Form I-9.

Wednesday, June 27, 2018 at 2:00-3:30 pm ET

IER Training for Refugee and Asylee Service Providers Register Here

June 5 TRB Webinar: Tools for a Sustainable Transit Agency (June 2018)

Monday, June 4th, 2018

TRB will conduct a free webinar 2-3 p.m. ET Tuesday, June 5, 2018 that features research from the Transit Cooperative Research Program (TCRP)’s Tools for a Sustainable Transit Agency (Research Report 197).

“Tools for a Sustainable Transit Agency” presents the research that developed two practical tools for improving sustainability at transit agencies. After conducting interviews with transit agency staff, researchers learned they needed tools to quantify and evaluate different sustainability strategies, guidance on integrating sustainability throughout organizations and culture, and how to make the case for sustainability to decision-makers and communicate their sustainability successes to the public. The tools include:

The Sustainability Routemap – an interactive PDF that guides the user to improve a transit agency’s sustainability program through applying change management principles, best practice examples, and references to online tools

The S+ROI Calculator – an Excel-based tool that quantitatively evaluates potential sustainability projects in terms of financial, social, and
environmental returns

FTA sponsors TCRP to develop and apply innovative solutions to help meet the demands placed on the nation’s public transit systems.

U.S. Equal Employment Opportunity Commission Weekly Digest: Sexual Harassment and Disability (June 2018)

Monday, June 4th, 2018

DISCOVERING HIDDEN HAWAII TOURS TO PAY $570,000 TO SETTLE EEOC MALE-ON-MALE SEXUAL HARASSMENT SUIT
Company President Sexually Harassed Male Employees for More Than a Decade, Federal Agency Says

HONOLULU, Hawai‘i – Three related Hawai‘i tour companies — Discovering Hidden Hawaii Tours, Inc., Hawaii Tours and Transporta­tion Inc. and Big Kahuna Luau, Inc. — will pay $570,000 and provide other relief to settle a sexual harassment suit filed against the companies by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

The EEOC filed suit against the three companies in 2017, charging that the male president of Discovering Hidden Hawaii Tours engaged in a pattern of sexually harassing male employees, many of whom were subsequently forced to quit as a result of the egregious harassment or were retaliated against for reporting the harassment, thereby violating Title VII of the Civil Rights Act of 1964 (EEOC v. Discovering Hidden Hawaii Tours, Inc. et al, Case No: 1:17-cv-00067-DKW-KSC).

As part of the settlement announced today, the parties entered into a three-year consent decree providing $570,000 in damages to a class of male employees. The decree requires that the alleged harasser not have further involvement in the operations and divested of control of the companies. The companies will designate an external equal employment opportunity (EEO) consultant to ensure the companies’ compliance with Title VII and anti-retaliation policies and procedures.

The decree also requires an independent complaint process and impartial investigations, together with a centralized tracking system for harassment and retaliation complaints and provisions holding supervisors, managers and officers of the companies accountable for harassment and retali­ation. Annual training on sexual harassment and retaliation will be provided, especially for the presid­ent and other supervisors and managers, to educate them on their rights and responsibilities on sexual harassment and retaliation with the goal of preventing and deterring any discriminatory practices in the future.

“This settlement sends an unequivocal message that accountability is required regardless of who the alleged harasser is and no one is above the law under Title VII,” said Anna Park, regional attorney for the EEOC’s Los Angeles District, which includes Hawai‘i in its jurisdiction, “The EEOC will continue to relentlessly enforce laws against any sexual harassment in workplaces.”

Glory Gervacio Saure, director of the EEOC’s Honolulu Local Office, added, “Unfortunately, our society still stigmatizes the victims, not the perpetrators, of sexual harassment. Especially in light of the #MeToo movement, it is critical for victims to speak up, despite the stigma, so that we can effect­ively address sexual harassment in the workplace.”

According to the company’s website, www.discoverhiddenhawaiitours.com, Discovering Hidden Hawaii Tours provides guided tours of Oahu, Maui, the Big Island and Kauai.

Individuals who may have experienced sexual harassment or have information pertaining to sexual harassment in connection with employment at Discovering Hidden Hawaii Tours should contact the EEOC at 808-541-3133 for more information.

Preventing workplace harassment through systemic litigation and investigation is one of the six national priorities identified by the EEOC’s Strategic Enforcement Plan (SEP).

ST. VINCENT HOSPITAL TO PAY $15,000 TO SETTLE EEOC DISABILITY DISCRIMINATION LAWSUIT
Company Refused Transfer as a Reasonable Accommodation, Federal Agency Charged

INDIANAPOLIS – St. Vincent Hospital and Health Care Center, Inc. will pay $15,000 and furnish other relief to resolve a lawsuit disability discrimination filed by the U.S. Equal Employment Opportun­ity Commission (EEOC), the federal agency announced today. The EEOC had charged that the hospital violated federal law when it failed to provide its employee with a reasonable accommodation of a transfer to a vacant position for which she was qualified.

According to the EEOC’s complaint, when St. Vincent learned that Latoya Moore’s lifting restrictions caused by her disabilities were indefinite, St. Vincent required Moore to take leave at reduced pay, even though she wanted to continue working. Instead of trans­ferring Moore to vacant positions she was qualified for and could perform, St. Vincent fired her, the EEOC charged.

The EEOC brought the suit under the Americans with Disabilities Act (ADA), which prohibits employers from discriminating against an individual because of disabilities. Under the ADA, it is illegal for an employer to refuse to provide a reasonable accommo­dation to a qualified individual with a disability unless the employer can demonstrate the accommodation would impose an undue hard­ship. Transfer to a vacant position for which the employee is qualified can be a reasonable accommo­dation. The case (EEOC v. St. Vincent Hospital and Health Care Center, Inc., Civil Action No. 1:17-cv-3426-RLY-DML) was filed in U.S. District Court for the Southern District of Indiana, Indianapolis Division on Sept. 26, 2017.

Under a consent decree settling the suit, entered by the court on May 24, St. Vincent will pay Moore $15,000 in lost wages and compensatory damages. In the future, the hospital will be required to notify employees whose disabilities prevent them from performing the essential functions of their existing positions that reassignment to a vacant position for which they are qualified is a reasonable accommodation under the ADA. St. Vincent will also be required to provide training on the ADA’s requirements to appropriate personnel, and submit annual compliance reports to the EEOC during the decree’s two-year term.

“This lawsuit demonstrates that employers should be aware of their obligation to provide a transfer as a reasonable accommodation for employees who are qualified individuals with disabilities,” said EEOC Regional Attorney Kenneth Bird.

The EEOC’s Indianapolis District Office is responsible for processing discrimination charges, administrative enforcement, and the conduct of agency litigation in Indiana, Kentucky, Michigan and western Ohio, with field offices in Louisville, Cincinnati, and Detroit.

Federal Commission on School Safety’s First Field Visit Focuses on School Climate (May 31, 2018)

Friday, June 1st, 2018

HANOVER, Md. – The Federal Commission on School Safety (FCSS) today held its first field visit at Frank Hebron-Harman Elementary School in Hanover, Maryland, to focus on school climate and prevention efforts implemented by local schools. The Commission heard from administrators, principals, teachers, students and a national expert about Positive Behavioral Interventions and Supports (PBIS), a framework designed to improve social, emotional and academic outcomes for all students.

The Commission was represented by FCSS Chair U.S. Secretary of Education Betsy DeVos; Beth Williams, Assistant Attorney General for Legal Policy at the Department of Justice; Dr. Elinore McCance-Katz, Assistant Secretary for Mental Health and Substance Abuse at the Department of Health and Human Services; and Christopher Krebs, performing the duties of Under Secretary for the National Protection and Programs Directorate at the Department of Homeland Security.

The field visit began with a tour of several first grade classrooms. The Commission participated in Angela Snyder’s morning community circle activity where everyone welcomed their neighbor with a greeting and fist-bump, followed by several discussion questions to promote kindness. The group then visited Alexandra Lyons’ class to take part in a reading activity and finished the tour with a visit to Kimberly Chicca’s class where they worked with students on writing prompts for a book they were reading.

Following the tour, the Commission first heard from national PBIS expert Dr. George Sugai of the University of Connecticut, who gave an overview of how PBIS links school climate, social emotional development and character development and emphasizes a systems-based approach to organizing practices. Next, Kathy Lane, Dr. Virginia Dolan and Kathy Rockefeller presented on Anne Arundel County Public Schools’ implementation of PBIS within Hebron-Harman and throughout the school district.

After a lunch provided by the school cafeteria, there were three panels led by principals and administrators, teachers and a student. Participants of each panel are listed below.

Principal and administrator panel:

Rebecca Blasingame-White, Frank Hebron-Harman Elementary School
Paul DeRoo, Bates Middle School
Jason Williams, Northeast High School
Stacey Smith, Old Mill High School

Teacher panel:

Alicia Schnitzler, Frank Hebron-Harman Elementary School
Casey Hunt, Bates Middle School
Chessil Johnson, Northeast High School
Angela Bernholz, Old Mill High School

Student presentation:

Briah Barksdale, Glen Burnie High School

The field visit concluded with a question and answer session between the Commission and panelists. Secretary DeVos asked panelists how educators could ensure their PBIS practices remain fresh and flexible based upon students’ varying needs, and how administrators could best ensure effective implementation of the program in schools over time.

Secretary DeVos offered the following comments:

“Today’s field visit was a very useful look at how schools can take deliberate steps to help make students feel included and valued. Tools like PBIS can help improve school climate and, in turn, safety. We also benefited greatly from the presentations of the experts, educators and students. As the Commission’s work proceeds, we will continue to visit places where concrete steps have been taken to help keep our students safe.”

Video of the event can be found here.