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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

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.