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Criminal Background Checks and Employment: A Guide for Equal Opportunity Professionals

Thursday, November 15th, 2018

Over the past year, four major federal agencies issued significant guidance related to the use of criminal background checks in delivering employment-related services by state and local governments as well as in employment practices of private sector employers. The highlights are:

√ Don’t use arrest and/or conviction records in your decision-making.

√ If you feel you must conduct a criminal background check, then:

● Do it after you’ve determined the person meets either: (1) the essential eligibility requirements for selection and/or referral to a job or training program; or (2) the bona fide occupational qualifications (BFOQ) for the position at issue.
● Give notice to the individual that you need to conduct a criminal background check, and get the individual’s permission to do so.
● Give the individual the results of the criminal background check, and afford the individual an opportunity to explain or dispute the contents.
● Before taking an adverse action based on an individual’s arrest and/or conviction record, make sure your inquiry is “narrowly tailored to identify criminal conduct with a demonstrably tight nexus” to the position or training in question. And, you must demonstrate that you’ve considered the following factors: (1) the date of the criminal conviction (newer versus older); (2) what specific offenses demonstrate unfitness for performing a specific job or undergoing specific training; and (3) the essential requirements for the job or training, and the actual circumstances (at a home, outdoors, at a warehouse, at an office) under which the job or training will be performed.

√ Document everything you do. If your decision is challenged by a federal agency, you’ll need to demonstrate that you did not violate federal civil rights laws.

√ Keep the individual’s criminal background information confidential. Only use this information for the purpose for which it is intended.

I. Background

The federal guidance discussed in this paper stems from commonly-recited disparities in the arrest and conviction records of minorities as compared to non-minorities and how, as a result, these disparities result in disparate treatment of ex-offenders in the employment arena. The following is an example of the background cited in these documents:

In recent decades, the number of Americans who have had contact with the criminal justice system has increased exponentially. It is estimated that about one in three adults now has a criminal history record – which often consists of an arrest that did not lead to a conviction, a conviction for which the person was not sentenced to a term of incarceration, or a conviction for a non-violent crime. On any given day, about 2.3 million people are incarcerated and each year 700,000 people are released from prison and almost 13 million are admitted to – and released from – local jails.

Racial and ethnic disparities are reflected in incarceration rates. According to the Pew Center on the States, one in 106 white men, one in 36 Hispanic men, and one in 15 African American men are incarcerated. Additionally, on average, one in 31 adults is under correctional control (i.e. probation, parole, or incarceration), including one in 45 white adults, one in 27 Hispanic adults and one in 11 African American adults. Racial and ethnic disparities may also be reflected in other criminal history records. For example, although African Americans constitute approximately 13 percent of the overall population, they account for 28 percent of those arrested and almost 40 percent of the incarcerated population.

Title VI (addressing federally-assisted programs and activities) and Title VII (addressing employment practices) of the Civil Rights Act of 1964 prohibit discrimination based on race, color, and national origin. These titles prohibit both “disparate treatment” (treating members of protected groups differently based on their protected status), and “disparate impact” (the use of policies or practices that are neutral on their face, but have a disproportionate impact on members of protected groups, and are not job-related and consistent with business necessity).

The guidance documents issued by EEOC, ETA, OFCCP, and CRC make clear that individuals with criminal history records are not a protected group under the applicable civil rights laws, but these laws may be implicated with criminal records are being considered. For example, it constitutes illegal discrimination to treat whites with a criminal record more favorably than similarly-situated African Americans with the same or similar criminal record. This constitutes “disparate treatment.” And, as another examples, job announcements that categorically exclude people who have any kind of conviction or arrest, or which specify that only those individuals with “clean” criminal records need apply, will likely constitute illegal “disparate impact” because of the above-referenced racial and ethnic disparities reflected in the criminal justice system.

II. Citations and scope of applicability

As can be seen below, the guidance documents have wide-reaching implications in the area of employment services and employment practices:

U.S. Equal Employment Opportunity Commission (EEOC)

    Guidance reference:

EEOC Enforcement Guidance, Number 915.002 (Apr. 25, 2012)

    Applies to:

All private sector employers with 15 or more employees

U.S. Department of Labor’s Office of Contract Compliance Programs (OFCCP)

    Guidance reference:

OFCCP Directive No. 306 (Jan. 29, 2013)

    Applies to:

Federal contractors and subcontractors and federally-assisted construction contractors and subcontractors

U.S. Department of Labor’s Employment and Training Administration (ETA) and Civil Rights Center (CRC)

    Guidance reference:

Training and Employment Guidance Letter (TEGL) No. 31-11 (May 25, 2012)

    Applies to:

Public workforce system and other entities that receive federal financial assistance to operate Job Banks, to provide assistance to job seekers in locating and obtaining employment, and to assist employers by screening and referring qualified applicants for employment and/or training (includes programs and activities covered by the Workforce Investment Act and the Wagner-Peyser Act)

III. Policies of the agencies

    EEOC

The Commission, which has enforced Title VII since it became effective in 1965, has well-established guidance applying Title VII principles to employers’ use of criminal records to screen for employment. This Enforcement Guidance builds on longstanding court decisions and policy documents that were issued over twenty years ago. In light of employers’ increased access to criminal history information, case law analyzing Title VII requirements for criminal record exclusions, and other developments, the Commission has decided to update and consolidate in this document all of its prior policy statements about Title VII and the use of criminal records in employment decisions.

The Commission intends this document for use by employers considering the use of criminal records in their selection and retention processes; by individuals who suspect that they have been denied jobs or promotions, or have been discharged because of their criminal records; and by EEOC staff who are investigating discrimination charges involving the use of criminal records in employment decisions.

National data supports a finding that criminal record exclusions have a disparate impact on race and national origin. The national data provides a basis for the Commission to further investigate such Title VII disparate treatment charges. During an EEOC investigation, the employer also has an opportunity to show, with relevant evidence, that its employment policy or practice does not cause a disparate impact on the protected group(s).

The issue is whether the policy or practice deprives a disproportionate number of Title VII-protected individuals of employment opportunities. The Commission with closely consider whether an employer has a reputation in the community for excluding individuals with criminal records. In light of these racial and ethnic disparities, contractors should be mindful of federal antidiscrimination laws if they choose to rely on job applicants’ criminal history records for purposes of employment decisions. Hiring policies and practices that exclude workers with criminal records may run afoul of such laws, which prohibit intentional discrimination on the basis of race, national origin, or other protected bases, and policies or practices that have a disparate treatment on these protected groups and cannot be justified as job related and consistent with business necessity. Policies that exclude people from employment based on the mere existence of a criminal history record and that do not take into account the age and nature of the offense, for example, are likely to unjustifiably restrict the employment opportunities of individuals with conviction histories. Due to racial and ethnic disparities in the criminal justice system, such policies are likely to violate federal antidiscrimination law. Accordingly, contractors should carefully consider their legal obligations before adopting such policies.

This guidance consolidates and updates EEOC’s prior guidance regarding the use of criminal records in employment decisions. EEOC is the lead agency for interpreting Title VII, and OFFCP follows Title VII principles in interpreting Executive Order 11246, as amended. Therefore, EEOC’s guidance will assist contractors in implementing and reviewing their employment practices in compliance with the Executive Order. EEOC’s guidance applies to all employers that have 15 or more employees.

    OFCCP

In light of these racial and ethnic disparities, contractors should be mindful of federal antidiscrimination laws if they choose to rely on job applicants’ criminal history records for purposes of employment decisions. Hiring policies and practices that exclude workers with criminal records may run afoul of such laws, which prohibit intentional discrimination on the basis of race, national origin, or other protected bases, and policies or practices that have a disparate treatment on these protected groups and cannot be justified as job related and consistent with business necessity. Policies that exclude people from employment based on the mere existence of a criminal history record and that do not take into account the age and nature of the offense, for example, are likely to unjustifiably restrict the employment opportunities of individuals with conviction histories. Due to racial and ethnic disparities in the criminal justice system, such policies are likely to violate federal antidiscrimination law. Accordingly, contractors should carefully consider their legal obligations before adopting such policies.

This guidance consolidates and updates EEOC’s prior guidance regarding the use of criminal records in employment decisions. EEOC is the lead agency for interpreting Title VII, and OFFCP follows Title VII principles in interpreting Executive Order 11246, as amended. Therefore, EEOC’s guidance will assist contractors in implementing and reviewing their employment practices in compliance with the Executive Order. EEOC’s guidance applies to all employers that have 15 or more employees.

The guidance cites to the EEOC’s Enforcement Guidance to assist in determining the proper consideration of criminal records.

    ETA and CRC

As recognized by the federally-assisted workforce system, which is already engaged in promoting job opportunities for people with criminal records through various reentry grants and programs, obtaining employment is critical in reducing recidivism and easing the reintegration of persons returning from incarceration. Secretary of Labor Hilda Solis recently observed that the public workforce system’s mix of strategies, interventions and service partnerships must be designed and executed with the goal of helping people with criminal records obtain employment that can support them and their families. These efforts are consistent with the Federal Interagency Reentry Council’s mission to make communities safer by reducing recidivism, assist those returning from prison and jail in becoming productive citizens, and save taxpayer dollars by lowering the direct and collateral costs of incarceration. As Secretary Solis stated recently: “When someone serves time in our penal system, they shouldn’t face a lifetime sentence of unemployment when they are released. Those who want to make amends must be given the opportunity to make an honest living.”

This TEGL is intended to help covered entities (and their employer customers) comply with their nondiscrimination obligations when serving the population of individuals with criminal records, and to ensure that exclusionary policies are not at cross-purposes with the public workforce system’s efforts to promote employment opportunities for such workers. This TEGL applies to all jobs available through a covered entity’s job bank without regard to whether the job is in the government or the private sector, including federal contractors and subcontractors.

This guidance cites to the EEOC’s Enforcement Guidance to assist in determining the proper consideration of criminal records.

IV. “Illegal” practices

Each of the guidance papers sets forth practices that may constitute illegal discrimination in violation of applicable civil rights laws. These practices are set forth as follows:

    EEOC

● Evidence supporting discrimination. The EEOC cites to several kinds of evidence that may be used to demonstrate discrimination in violation of Title VII: (1) biased statements, such as derogatory statements by the employer or decision-maker towards a protected group, or that express group-related stereotypes about criminality; (2) inconsistent hiring practices, such as requesting criminal history information more often for individuals with certain racial or ethnic backgrounds, or giving white individuals but not racial minorities the opportunity to explain their criminal history; (3) different treatment of similarly-situated individuals, such as a racial or ethnic minority being subjected to more or different background checks or to different standards for evaluating criminal history; and (4) statistical evidence derived from the employer’s applicant data, workforce data, and/or third party criminal background history data.

● No job-relatedness, illegal. If criminal background records are utilized in employment decisions, the employer should be prepared to demonstrate that this policy or practice is “job related for the position in question and consistent with business necessity.”

● Arrest records. The fact of an arrest does not establish that criminal conduct has occurred. Arrests are not proof of criminal conduct. Many arrests do not result in criminal charges, or the charges are dismissed. An exclusion based on an arrest, in itself, is not job related and consistent with business necessity. The Commission further notes arrest records also may include inaccuracies or may continue to be reported even if expunged or sealed. The Commission mandates that an arrest record cannot be grounds for exclusion, but an employer may, under certain circumstances, inquire into the conduct underlying the arrest.

● Conviction records. Unlike an arrest record, a conviction usually is sufficient evidence that a person engaged in certain conduct. However, it is important to keep in mind that (1) there may be error in the record, or (2) the record may be outdated. Thus, a policy or practice requiring an automatic, across-the-board exclusion from all employment opportunities because of any criminal conduct is not tailored to a particular job, or consistent with business necessity.

    OFCCP

● Blanket exclusions are illegal. OFCCP is aware of job announcements that categorically exclude people who have any kind of conviction or arrest and of contractors that screen out job seekers with criminal records by stating that they will only accept applicants with so-called “clean” criminal records. Due to racial and ethnic disparities reflected in the criminal justice system, these policies or practices will likely have a disparate impact on certain protected groups, in violation of federal law.

● Failure to consider circumstances. Policies that exclude people from employment based on the mere existence of a criminal history record and that do not take into account the age and nature of an offense, for example, are likely to unjustifiably restrict the employment opportunities of individuals with conviction histories. Due to racial and ethnic disparities in the criminal justice system, such policies are likely to violate federal antidiscrimination law. Accordingly, contractors should carefully consider their legal obligations before adopting such policies.

● Adopting EEOC guidance. OFCCP further cites to EEOC’s Enforcement Guidance and the ETA/CRC TEGL document for further examples of discrimination in violation of federal civil rights laws.

    ETA and CRC

● Printing and publishing. Cannot “print or publish or cause to be printed” any job announcement that discriminates based on race, color, religion, sex, or national origin unless there is a bona fide occupational qualification for a preference based on religion, sex, or national origin.

● Use of discriminatory criteria prohibited. Use of any “criteria or methods of administration which have the effect of subjecting individuals to discrimination because of race, color, or national origin” is illegal.

● Nondiscriminatory selection and referral. “Selection and referral of individuals for job openings or training opportunities and all other activities performed by or through employment service offices” must be done without regard to race, color, or national origin. Conduct to the contrary violates civil rights laws.

● Posting job announcements in Job Banks. Employers must be placed on notice that federal civil rights laws “generally prohibit categorical exclusions of individuals based solely on an arrest or conviction history.” To this end, the TEGL requires that “Notice #1 for Employers Regarding Job Bank Nondiscrimination and Criminal Record Exclusions” be given to employers that register to use a Job Bank. Failure to place the employer on notice constitutes noncompliance by the Job Bank.

● WIA and Wagner-Peysner. The guidance notes the Workforce Investment Act at 29 U.S.C. § 2938 and Title VI of the Civil Rights Act of 1964 at 42 U.S.C. § 2000d require nondiscrimination by recipients of federal financial assistance, including non-discrimination in employment practices and in selection and referral for employment or training. The Wagner-Peyser Act at 20 C.F.R. § 652.8 similarly requires nondiscrimination and states must assure that discriminatory job orders will not be accepted except where there is a bona fide occupational qualification (BFOQ). Failure to consider the BFOQ of a position is illegal.

V. “Best practices”

Each guidance paper also sets forth certain “best” practices. These practices are similar among the agencies as follows:

    EEOC

● Don’t ask. The Commission recommends that employers not ask about convictions on the job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion is related to the position in question and consistent with business necessity.

● How to demonstrate business necessity. The Commission finds there are two ways in which criminal conduct exclusion will be job-related and consistent with business necessity: (1) the employer validates the criminal conduct screen for the position in question per the Uniform Guidelines on Employee Selection Procedures (Uniform Guidelines) standards (if data about criminal conduct as related to subsequent work performance is available and such validation is possible); or (2) the employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job, and then provides an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity.

The Commission states that the “individualized assessment” component consists of the following: (1) notice to the individual screened out because of a criminal conviction; (2) an opportunity for the individual to demonstrate the exclusion should not be applied under the particular circumstances, and (3) consideration by the employer as to whether the additional information provided by the individual warrants an exception to the exclusion and shows that the policy as applied is not job related and consistent with business necessity.

● Narrowly tailored. If an employer employs a criminal record screen, it must be “narrowly tailored to identify criminal conduct with a demonstrably tight nexus to the position in question.” The employer must identify essential job requirements and the actual circumstances under which the jobs are performed. Moreover, the employer must determine the specific offenses that may demonstrate unfitness for performing such jobs. And, the employer must determine the duration of exclusions for criminal conduct (older versus newer convictions). Finally, the employer should keep a record of consultations, research, and justifications considered in developing the policies and procedures. Managers, hiring officials, and decision-makers should be trained regarding how to properly implement the policies.

● Factors for consideration. Absent validation meeting the Uniform Guidelines’ standards, the employer must consider the following factors: (1) the nature and gravity of the offense or conduct; (2) the time that has passed since the offense, conduct and/or completion of the sentence; and (3) the nature of the job held or sought (identifying the job title, essential functions of the job, circumstances under which the job is performed, such as level of supervision and oversight, and the environment in which the job duties are performed, such as a warehouse, private home, outdoors.

● Training is important. Train managers, hiring officials, and decision-makers about Title VII and its prohibition on employment discrimination.

● Confidentiality is important. Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.

    OFCCP

● OFCCP cites to EEOC’s Enforcement Guidance, and the ETA/CRC TEGL for examples of “best practices.” This includes providing Notices 1-3 to job seekers and/or employers, as described in the ETA/CRC’s TEGL document.

    ETA and CRC

● Seeking a background check. If an employer seeks to conduct a criminal background check based on a bona fide requirement for the job, it must: (1) obtain the applicant’s permission before asking a background screening company for a criminal history report; (2) provide the applicant a copy of the report; and (3) provide the applicant a summary of his or her rights before taking any adverse action.

● Restrictive vacancy announce-ments. Covered entities should use a system (automated or otherwise) to identify vacancy announcements that include hiring restrictions based on arrest and/or conviction records. For each such vacancy announcement located, and to ensure the employer’s and covered entity’s compliance with federal civil rights laws, the employer must be given the opportunity to remove or otherwise edit the vacancy announcement. Here, the TEGL directs that “Notice #2 for Employers Regarding Job Postings Containing Criminal Record Exclusions” be provided to the employer.

If the employer continues to keep the hiring restriction in the announcement, the announcement must include a notice that the exclusions in the posting may have an adverse impact on protected groups, and individuals with criminal history records are not prohibited from applying for the posted position (referred to as “Notice #3 For Job Seekers to be Attached to Job Postings With Criminal Record Exclusions” in the TEGL document).

● Screening and referral based on criminal record restrictions. Criminal record histories may be taken into account for purposes of referring an individual to employment-related services or programs designed to aid individuals with arrest or conviction histories. However, covered entity staff should refrain from screening and refusing to refer applicants with criminal history records. Here, the guidance suggests, if an applicant’s arrest and conviction history is taken into account for purposes of excluding the individual from training programs or other employment-related services, then the EEOC’s arrest and conviction guidance should be followed.

● Confidentiality is important. Same as the EEOC.

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. Ms. Foster also offers highly-popular procedures-writing services, such as assisting you in developing discrimination complaint procedures, procedures for serving limited English proficient individuals, procedures for serving persons with disabilities, and procedures for gathering, handling, and storing medical information to name a few. 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.

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

Thursday, June 28th, 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.

Religious Discrimination and Accommodation in Federally-Funded Programs and Activities: An Overview by Seena Foster

Saturday, May 5th, 2018

As the Equal Opportunity (EO) professional for an agency or organization charged with administering federally-funded programs and activities where “religion” is a prohibited basis of discrimination, you should have written policies and procedures for handling requests for religious accommodation. In this paper, we explore some basic concepts related to religious accommodation using the Workforce Innovation and Opportunity Act of 2014 (WIOA) as the context for guidance offered.

Some examples of WIOA-funded programs and activities are found at American Job Centers and their affiliates, partners, and service providers offering unemployment insurance benefits, employment referral services, and training. In addition, most Job Corps Centers offer WIOA-funded educational programs and activities designed to get young folks educated, skilled, and employed.

For WIOA-funded programs and activities, one prohibited basis of discrimination is “religion.” And, with this prohibition comes an obligation to provide reasonable religious-based accommodation when requested, if no “undue hardship” is present.

√ “Religious belief or practice” defined

Initially, it is helpful to have a common understanding of how the phrase, “religious belief or practice,” is defined. Because WIOA and its implementing regulations do not define “religious belief or practice,” we may look at how this phrase is defined under Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits religion-based discrimination in the workplace. Here, we find that a “religious belief or practice” may represent mainstream religious views, or the belief or practice may be less common, less understood, and less well-known. And, the concept of “religious belief or practice” includes persons who ascribe to no religious belief or practice at all.

Some examples of “religious belief or practice” under Title VII include, but are not limited to, the following:

● Agnostic
● Atheist
● Buddhist
● Christian
● Hindu
● Jewish
● Kemetic
● Muslim
● Native American spiritual beliefs
● Sikh
● Wicca
● and countless others.

A common thread defining any “religious belief or practice” is that it reflects a person’s views of life, purpose, and death. On the other hand, social, political, and economic philosophies as well as personal preferences do not constitute “religious beliefs or practices” protected by federal civil rights laws.

√ The “religious belief or practice” must be bona fide

Religious-based accommodation is premised on the fact that the asserted “religious belief or practice” is bona fide. Said differently, it is “sincerely held” by the requester. Generally, this requirement is met without difficulty. However, if the requester behaves in a manner that is markedly inconsistent with the professed “religious belief or practice,” then you may determine that the belief or practice is not bona fide or “sincerely held” by the requester. This, in turn, means that there is no obligation to provide accommodation.

√ Essential eligibility requirements must be met

Before entertaining a request for religious accommodation, the requester must meet the “essential eligibility requirements” for the WIOA-funded aid, benefit, service, or training at issue. If a person does not meet the “essential eligibility requirements” for the program or activity, then there is no obligation to provide accommodation.

√ Common religious-based accommodation requests

In federally-funded programs and activities, some common religious-based accommodation requests include:

● Changes in scheduling of programs and activities;
● Modification of testing and selection procedures;
● Modification of dress and/or grooming requirements; and
● Permitting forms of religious expression.

In the workplace, religious-based accommodation requests may take similar forms of:

● Changes in scheduling of work shifts;
● Modification of testing and selection procedures;
● Modification of dress and/or grooming requirements; and
● Permitting forms of religious expression.

Generally, a religious-based accommodation request is made to address conflicts between a federally-funded program or activity and a person’s religious belief or practice. For example, your American Job Center receives a request that orientations for the Center’s programs and activities be scheduled any day of the week except Friday because Friday is considered a “holy day” by the requester. This is an example of a religious-based accommodation request.

In the workplace, the case of Sanchez-Rodriguez v. AT&T Mobility Puerto Rico, Inc., issued by the First Circuit Court of Appeals on March 8, 2012, is illustrative of the types of religious-based accommodation requests an employer may receive. Here, an employee, who was a Seventh Day Adventist, requested Saturdays off from work. AT&T stated that providing the employee with every Saturday off as a matter of course would constitute an undue hardship; rather, as a “reasonable accommodation,” AT&T offered that the employee could: (1) take another position in the company that did not require working on Saturdays; or (2) arrange voluntary “swapping” of shifts with co-workers on his own. The court held that these offered accommodations (even though they differed from the accommodation requested by the employee) were sufficient such that the employee did not demonstrate religious-based discrimination.

√ Communication is a must

If a person seeks accommodation based on his/her religious belief or practice, then the accommodation request must be made known to the recipient delivering the federally-funded programs and activities (such as the American Job Center or Job Corps Center). Magic words are not required, but the requester must convey enough information for the recipient to understand that accommodation is sought pursuant to the requester’s religious beliefs or practices. A recipient cannot be held liable for failure to provide accommodation if it was unaware of the need in the first place.

Information-sharing between the requester and the EO Officer is critical as determinations of accommodation are made on a case-by-case basis after consideration of the particular facts.

√ Avoid discriminatory consideration of requests

If a person meets the essential eligibility requirements for a federally-funded program or activity, and the person requests accommodation based on a bona fide religious belief or practice, then the EO Officer is obliged to avoid consideration of discriminatory criteria when rendering a determination on the accommodation request. Examples of discriminatory criteria are as follows:

● “The person looks like a terrorist”;
● “The person’s beliefs are illogical, inconceivable, or incorrect”;
● “I disagree with the person’s beliefs”;
● “The person’s name is associated with a particular religion”;
● “The person’s name is associated with terrorism”;
● “The person’s religious belief or practice is offensive”;
● “The person’s religious belief or practice is immoral”;
● “I am uncomfortable with the religious belief or practice”; or
● “The person’s religious belief or practice is in the minority.”

It bears repeating that it is discriminatory to employ any of the foregoing criteria, or similar criteria, when considering an accommodation request. Sincerely held religious beliefs and practices are intensely personal, and they must be accepted “as is” for purposes of addressing a religious accommodation request under federal civil rights laws.

√ “Undue hardship”

● Defined

A recipient offering federally-funded programs and activities is obliged to provide reasonable religious-based accommodation unless it can demonstrate “undue hardship”. For example, the regulations implementing WIOA at 29 C.F.R. § 37.4 define “undue hardship” as follows:

For purposes of religious accommodation only, “undue hardship” means any additional, unusual costs, other than de minimis costs, that a particular accommodation would impose upon a recipient. See Trans World Airlines, Inc.v. Hardison, 432 U.S. 63, 81, 84 (1977).

It is the recipient’s burden to demonstrate “undue hardship.”

● Not established, examples of

Asserting speculative, or showing only de minimus costs associated with providing accommodation does not give rise to a finding of “undue hardship.” And, “undue hardship” is not established by a recipient’s mere assertion that providing accommodation for one person will lead to an incoming tide of other requests.

● Factors to consider

As we noted earlier, “undue hardship” must be determined on a case-by-case basis after consideration of all the facts. The following factors may be relevant and are properly considered:

▪ Costs associated with providing the accommodation are identifiable and more than de minimus” in relation to the recipient’s size and operating costs;
▪ Providing the requested accommodation would diminish the efficiency of recipient’s federally-funded programs and activities;
▪ Safety would be impaired by allowing the accommodation;
▪ The requested accommodation would conflict with another civil rights law; or
▪ In the employment context, the requested accommodation violates of the terms of a collective bargaining agreement, or violates seniority rights of other employees.

In assessing whether a requested accommodation would conflict with another law, it is important to keep in mind that federally-funded programs and activities operate using taxpayer dollars, and there are taxpayers of all races, colors, national origins, genders, disabilities, and religions. These funds, in turn, are used to provide aid, benefits, services, and training to any member of the public meeting certain essential eligibility requirements. Attached to this federal funding are obligations imposed on the WIOA recipient to ensure nondiscrimination on a variety of bases, including religion, sex, race, national origin, color, disability, and age among others.

So, let’s assume that you are the EO Officer for a Job Corps Center, which provides educational programs and activities. Your Center is located in an area that is largely comprised of persons of a particular religion requiring separation of men and women in educational programs and activities. You receive a request for accommodation by persons of this religious belief asking that you provide separate classes for men and women at your Center. What should you do?

We start with the law. The regulations implementing WIOA bar discrimination on certain “prohibited grounds” as follows:

(a) For the purposes of this section, “prohibited ground” means race, color, religion, sex, national origin, age, political affiliation or belief, and for beneficiaries only, citizenship or participation in any WIOA Title I—financially assisted program or activity.

29 C.F.R. § 37.6(a).

And, the regulations further provide that offering segregated or separate programs and activities is a form of discrimination:

(b) A recipient must not, directly or through contractual, licensing, or other arrangements, on a prohibited ground:

. . .

(3) Subject an individual to segregation or separate treatment in any matter related to his or her receipt of any aid, benefits, services, or training under a WIOA Title I—funded program or activity; . . ..

29 C.F.R. § 37.6(b)(3).

In our example, the requested accommodation (segregation of men and women in educational programs) would lead your Center to engage in gender-based discrimination in violation of federal law. As previously noted, the law prohibits “segregation or separate treatment” on any “prohibited ground”, which includes sex.

Keep in mind that the same would hold true if you received a religious-based accommodation request seeking segregation based on race, color, national origin, age, or the like. It is not reasonable to discriminate against participants on one of these prohibited bases in order to accommodate a religious belief or practice.

√ Religious accommodation in the workplace; some considerations

If you do not have dress and grooming policies for your workplace, then it would constitute a form of religious-based discrimination to prohibit forms of religious garb or grooming on an ad hoc basis. And, if you do have dress and grooming policies in your workplace then, according to the EEOC, religious accommodation requires making exceptions to those codes to accommodate bona fide religious beliefs and practices. With or without grooming codes in place, it is incumbent on an employer to allow dress and grooming practices of sincerely-held religious beliefs, unless it would create “undue hardship.”

The standard for “undue hardship” is different for religious-based accommodation requests than for disability-based accommodation requests. Notably, in the case of a disability-related accommodation request, the employer must provide accommodation unless the accommodation will create significant difficulty or expense to the employer’s operations. On the other hand, undue hardship in the context of religious accommodation is a hardship that will create more than a de minimus cost on the employer’s operation.

Even in light of the lesser “undue hardship” standard, the EEOC has ramped-up its pursuit of religious-based discrimination in the workplace, and the EEOC rarely accepts arguments that a dress code constitutes “business necessity” for an employer (i.e. an employer’s argument that it needs to convey an uniform image of all of its workers). Most notably, lawsuits and charges have been filed where workers have been penalized for particular religious grooming, or donning religious garb. Some examples include Muslim head scarves, Sikh turbans, yarmulkes, and the presence of religious tattoos. In 2015, the United States Supreme Court affirmed the EEOC’s position in EEOC v. Abercrombie & Fitch Stores, Inc., and concluded the employer engaged in religious-based discrimination against a Muslim employee. The employer raised unsubstantiated assertions that it need not accommodate the employee’s request to wear a headscarf on grounds that the employee’s use of a headscarf constituted an “undue hardship.” The employer maintained that use of the headscarf departed from the company’s “look policy” and “corporate brand.” As noted by the EEOC, the employee had the headscarf on when interviewed, and had worked with the headscarf on for four months before being terminated. The employer failed to present evidence to show its sales had dropped in that four month period of time.

However, for both disability and religious-based accommodation requests, “undue hardship” may be demonstrated if safety concerns are raised. As an example, an employer may ban a Muslim employee’s use of a head scarf in a job where the scarf could get caught in machinery.

Sometimes, the lack of understanding regarding a particular religion’s practices is at the root of discrimination. For example, in EEOC v. Fries Rest. Mgt., LLC, Case No. 12-03169 (Tex. Aug. 22, 2012), religious-based discrimination occurred where the manager of a Burger King restaurant fired a Christian Pentecostal female cashier on grounds that she would not wear the standard uniform (including pants). Instead, because of her religious beliefs, she insisted on wearing a skirt.

√ Conclusion

In the end, religious-based accommodation requests are fact-intensive, and must be handled on a case-by-case basis. To the extent that “undue hardship” is not present, you are obliged under federal law to provide reasonable religious-based accommodation, if requested, to persons who meet the essential eligibility requirements for the program or activity. And, you must accept the requester’s bona fide religious belief or practice “as is.” For complicated accommodation requests, including any requests that may conflict with other federal civil rights laws, you should consult with the EO leadership of your state or territory for guidance, or consult the civil rights office of your federal funding agency.

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

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

She is a member of the Human Rights Institute and Discrimination Law and Human Rights Law Committees of the International Bar Association. Ms. Foster received her undergraduate degree from Michigan State University, and she has a Juris Doctorate from The George Washington University Law School.

“Adverse Actions” in Federal Civil Rights Discrimination Complaints by Seena Foster

Saturday, March 10th, 2018

Federal civil rights laws prohibit discrimination on a wide variety of bases, including race, color, national origin, religion, disability, age, gender, and so on.  But, what types of conduct constitute “adverse actions” that may give rise to a complaint of discrimination? 

In federally-funded programs and activities

“Adverse actions” in violation of federal civil rights laws can occur in the delivery of federally-funded programs and activities.  This is a less understood area of civil rights, yet the reach of federally- funded programs and activities is far and wide and includes public education, transportation, small business development, fair lending, fair housing, unemployment insurance, workforce development, Medicare, environmental justice, employment referral services, and many others.  Here, federally-funded services, benefits, aid, and training must be delivered to members of the public in compliance with nondiscrimination and equal opportunity mandates of applicable civil rights laws.

There are a variety of “adverse actions” that may occur in the delivery of federally-funded programs and activities.  Some “adverse actions” are similar to those found in workplace discrimination complaints such as harassment and hostile environment, or refusal to provide religious-based or disability-based reasonable accommodation.  We’ll illustrate some  “adverse actions” unique to federally-funded programs and activities through use of examples related to Section 188 of the Workforce Innovation and Opportunity Act (WIOA), which governs the delivery of state and local workforce development programs and activities.

WIOA Section 188 mandates nondiscrimination and equal opportunity in the delivery of WIOA Title I-financially assisted aid, training, benefits and services on the bases of race, color, national origin, religion, disability, gender, age, political affiliation or belief, and citizenship among others.  For purposes of these examples, we’ll assume that you are the Equal Opportunity Officer for a American Job Network center or a Job Corps Center and, in this capacity, you investigate complaints of discrimination.

√     Denying aid, training, benefits, or services

Steven tells you that he was denied enrollment in an on-the-job training program.  At this point, Steven has not alleged a violation of any civil rights laws.  However, if Steven says he was denied enrollment in an on-the-job training program because he is black, then he has alleged a violation of civil rights laws.  Specifically, Steven asserts an “adverse action” (denial of enrollment in an on-the-job training program) on a prohibited basis (color).

√     Denying access to apply for aid, training, benefits, or services

Maria alleges she was laid-off from her job.  She tells you that, when she walked into the American Job Network center, she was not able to apply for unemployment insurance (UI) benefits.  So far, Maria has asserted an “adverse action” (denial of access to apply for UI benefits), but she hasn’t asserted a violation of any federal civil rights law.  But, if Maria tells you that she is limited English proficient (LEP), and the packet of UI forms were available in English only, then she has alleged a violation of federal civil rights laws.  Notably, Maria alleges an “adverse action” (denial of access to apply for UI benefits) on a prohibited basis (national origin-LEP).

√     Providing one person different aid, training, benefits, or services than is provided others

Here, we look at the conduct of an employment referral counselor at your American Job Network center.  Widget Company has numerous job openings, and the counselor is referring people to fill these openings.  Janet complains that she was referred to a lower-paying position with Widget.  Thus, Janet has alleged an “adverse action” (referral to a lower paying job), but she has not alleged a violation of civil rights laws.  However, if Janet alleges that she was referred to a lower-paying position with Widget, but men with the same credentials were referred to higher-paying positions, then she has presented an alleged violation of civil rights laws.  Namely, Janet asserts an “adverse action” (referral to a lower paying position) on a prohibited basis (gender).

√     Segregating a person, or treating the person separately, with regard to his or her receipt of aid, training, benefits, or services

An example of segregation is where your Job Corps Center offers a computer science course, but requires that “persons with disabilities” attend the course at one classroom location, whereas all other students must attend the course at another classroom location.  Thus, there is an “adverse action” (segregation of classes) on a prohibited basis (disability).  To the extent feasible, you must provide integrated services, aid, training, and benefits allowing persons with disabilities to participate alongside persons without disabilities.

√     Restricting a person’s enjoyment of any advantage or privilege enjoyed by others receiving any aid, training, benefits, or services

Hostile environment offers an example of restricting a person’s enjoyment of federally-funded programs and activities.  Let’s assume that Borek is one of your Job Corps Center students, and he has immigrated to the United States with his family from Iraq.  He files a complaint with you alleging that other students call him a “terrorist” in class and in the hallways, they post derogatory material about him on Facebook, and they repeatedly tell him he should “go back to Iraq where he came from.”  Here, Borek alleges an “adverse action” (being subjected to a hostile environment) on a prohibited basis (national origin).

√      Treating one person differently from others in determining whether s/he satisfies any admission requirement or condition for aid, training, benefits, or services

Here, let’s assume that Marsha informs you that her application for on-the-job training has been denied by Carol, who works at your American Job Network center.  By itself, this denial is an “adverse action,” but it is not a violation of civil rights laws.  However, Marsha further tells you that she met the essential eligibility requirements for referral to on-the-job-training, but Carol told Marsha she was concerned about referring her because Marsha had been pregnant five times within the past seven years.  Now, a civil rights violation has been alleged.  Notably, Marsha asserts an “adverse action” (denial of referral to on-the-job-training) on a prohibited basis (gender-prior pregnancies).

√     Denying or limiting a person with a disability the opportunity to participate in a program or activity

Your American Job Network center offers weekly orientations for any interested members of the public to learn about the services, aid, benefits, and training opportunities offered through the Center.  Jake, who is in a wheelchair, tells you that he was unable to attend the orientation earlier this week because it was offered on the second floor of your building and your building does not have an elevator.  Here, Jake alleged an “adverse action” (denial of access to the orientation) on a prohibited basis (disability).

√     Determining the site or location of a facility that has the purpose or effect of discriminating on a prohibited basis

State and local officials are in the process of determining where to establish a American Job Network center in a particular city, and decide to place the facility near an affluent neighborhood in one suburb of the city.  However, a majority of the city’s population is located on the other, more densely populated side of town.  And, the majority of the population is comprised of Hispanics and African-Americans.  The minorities in this city generally use public transportation, which is widely-available on the densely populated side of town.  The center’s location in the affluent neighborhood is, however, sixteen blocks from the nearest bus stop.  Thus, by locating the center in the affluent neighborhood away from public transportation, the center is not readily-accessible by a majority of the city’s population, most of whom are minorities.  Here, there are allegations of an “adverse action” (location of the facility in a less populated neighborhood that is not readily-accessible by public transportation) on prohibited bases (national origin and race).

√     Imposing different eligibility criteria on a prohibited basis in the delivery of services, aid, benefits, or training

An example here is James alleges his bid for a contract to provide workforce development services for your city has been denied. This constitutes an “adverse action,” but it does not rise to the level of alleged discrimination. However, if James further asserts that his company was required to secure a higher amount of insurance coverage in order to be awarded the contract because he is Hispanic, and that non-Hispanic-owned bidders were required to demonstrate a lower amount of coverage, then discrimination on a prohibited basis is alleged. James alleges an “adverse action” (imposition of different eligibility criteria in requiring higher coverage) on a prohibited basis (national origin).

In this paper, we’ve discussed only a few types of “adverse actions” that may occur in federally-funded programs and activities.  Again, a mere allegation by an individual that s/he suffered an “adverse action” is not sufficient to support a discrimination complaint.  But, allegations by an individual that s/he has suffered an “adverse action” on a prohibited basis do support an allegation of civil rights violations.

As the Equal Opportunity professional for your agency or organization, you should make sure staff at the agency or organization understand federal nondiscrimination and equal opportunity laws applicable to your programs and activities as well as the types of “adverse actions” that may lead to a violation of those laws.  Moreover, you are obliged to notify beneficiaries and potential beneficiaries of their rights under these laws.  It is important to have policies and procedures in place, and to conduct periodic training, so that each person in your agency or organization understands his or her role in the mission of delivering services, aid, benefits, and training to the public without imposing discriminatory criteria.  Keep in mind that these nondiscrimination laws cover all aspects of your operations, including outreach and recruitment, registration, counseling and guidance, testing, selection, placement, appointment, referral, training, and promotion and retention.

In the workplace

There are certain “adverse actions” that we typically see in discrimination complaints involving the workplace.  These “adverse actions” include the following:

●  Termination;

●  Non-selection;

●  Non-promotion;

●  Refusal to provide accommodation or modification;

●  Harassment or hostile environment; or

●  Receipt of an adverse performance appraisal.

There are countless other types of “adverse actions” that may occur in the workplace:

●  Relocation to a smaller and/or less desirable office location;

●  Refusal to provide training;

●  Denial of access to equipment and/or resources;

●  Denial of a security clearance;

●  Denial of paid and/or unpaid leave;

●  Exclusion from certain meetings; or

●  Imposition of dress and/or grooming requirements.

This list is not exhaustive; rather, it is designed to give you an idea of what constitutes an employment-related “adverse action.”

Just as with the delivery of government programs and activities, in the workplace, it is important to remember that an “adverse action,” standing alone, does not give rise to a discrimination complaint under federal civil rights laws.  On the other hand, an “adverse action” taken on the basis of race, gender, disability, or the like, does allege a violation of federal civil rights laws.

For example, Michael is blind, and he alleges that his company fired him after he asked for specialized voice-recognition software to assist him in performing certain job duties.  Here, Michael has alleged an “adverse action” (termination) on a prohibited basis (disability).

Another example is where Cheri alleges she was denied a security clearance because her supervisor “doesn’t like her.”  Here, the “adverse action” is denial of a security clearance, but no civil rights violation has been alleged by Cheri; that is, the fact that her supervisor does not like her is not a prohibited basis of discrimination under federal civil rights laws.  On the other hand, if Cheri alleges she was denied a security clearance because she is Hispanic, now she has asserted a violation of civil rights laws; that is, she alleges an “adverse action” (denial of a security clearance) on a prohibited basis (national origin).

If you are an EEO/AA/HR professional for your agency or organization, it is important that you train supervisors and managers regarding their obligations under various federal civil rights laws.  And, you will want to convey any additional requirements imposed by state and local human rights laws.  Taking an “adverse action” against an employee does not, in and of itself, constitute illegal discrimination.  For example, disciplining an employee based on poor work performance or shoddy attendance does not violate civil rights laws.  But, a violation of civil rights laws does exist if the “adverse action” is premised on how an employee looks, what religious beliefs s/he holds (or doesn’t hold), the fact that s/he is over 40 years of age, whether the employee comes to work in a wheelchair, or the like.

About Seena Foster

Seena Foster, award-winning civil rights author and Principal of the discrimination consulting firm, Title VI Consulting in Alexandria, Virginia, provides expertise and guidance in the areas of civil rights compliance and discrimination complaint investigations related to the delivery of federally-assisted programs and activities. Her customers include state and local governments, colleges and universities, private companies, private counsel, and non-profit organizations. You may contact her at seena@titleviconsulting.com, or visit her web site at www.titleviconsulting.com for additional information regarding the services and resources she offers.

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

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

Ms. Foster received her undergraduate degree from Michigan State University, and she has a Juris Doctorate from The George Washington University Law School. She is a member of the Human Rights Institute and Discrimination Law and Human Rights Law Committees of the International Bar Association.

Elements of an Inclusive Workforce Development System

Thursday, February 15th, 2018

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

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

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

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

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

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

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

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

Communication

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

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

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

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

Access

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

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

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

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

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

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

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

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

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

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

Integration

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

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

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

I’ll give you an example.

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

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

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

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

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

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

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

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

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

Individualized treatment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“EO Is the Law” and “EEO is THE LAW”: Understanding Some of The Distinctions by Seena Foster

Thursday, February 1st, 2018

Depending on your source(s) of federal funding, there are certain required notices and posters that must be displayed prominently throughout areas where you meet, greet, and work with members of your public.  For example, if you receive funding from the U.S. Department of Housing and Urban Development for public housing, you are required to place “Fair Housing is The Law” posters throughout the areas where you interact with the public. For entities that receive funding from the U.S. Department of Health and Human Services, you are required to post the “Non-Discrimination Notice and Non-Discrimination Statement.” Recipients of funding by the U.S. Department of Education also must post a nondiscrimination notice.

These notices and posters are intended to promote compliance with federal civil rights laws by notifying members of (1) the public of their right to nondiscrimination, and (2) your staff of their obligations to conduct programs and activities in compliance with applicable civil rights laws.

Knowing what federal posters to display in the area of equal opportunity often can be confusing.  And, this is particularly true for Equal Opportunity (EO) Officers of agencies, organizations, and other entities that deliver services, aid, training, and benefits funded under Title I of the Workforce Innovation and Opportunity Act (WIOA), amending the Workforce Investment Act (WIA).  For WIOA-funded programs and activities, the “Equal Opportunity is The Law” (referred to as “EO Is the Law”) poster must be prominently displayed throughout all public areas.  Recipients of WIOA Title I-financial assistance include state and local governments, American Job Network centers, Job Corps centers, local Workforce Investment Boards, Unemployment Insurance call centers, colleges, universities, and many other providers involved in the system of delivering WIOA Title I-related aid, benefits, services, and training.

The “EO Is the Law” poster, however, is often confused with the Equal Employment Opportunity Commission’s “Equal Employment Opportunity is The Law” (referred to as the “EEO Is the Law”) poster.  Similarities in the titles of these notices often lead to confusion in understanding some of their differences.

For purposes of this paper, we will assume you serve as the EO Officer for an entity offering WIOA-funded workforce development programs and activities.  By law, the “EO Is the Law” notice must be prominently displayed throughout your public areas.  29 C.F.R. § 37.30 (WIA); 29 C.F.R. § 38.34, 38.36, and 38.39 (WIOA).

    The “Equal Opportunity Is the Law” notice

Equal Opportunity Is the Law

It is against the law for this recipient of Federal financial assistance to discriminate on the following bases:

Against any individual in the United States, on the basis of race, color, religion, sex (including pregnancy, childbirth, and related medical conditions, sex stereotyping, transgender status, and gender identity), national origin (including limited English proficiency), age, disability, political affiliation or belief, or, against any beneficiary of programs financially assisted under Title I of the Workforce Innovation and Opportunity Act, on the basis of the individual’s citizenship status, or participation in any WIOA Title I-financially assisted program or activity.

The recipient must not discriminate in any of the following areas:

Deciding who will be admitted, or have access, to any WIOA-Title I financially assisted program or activity;

Providing opportunities in, or treating any person with regard to, such a program or activity; or

Making employment decisions in the administration of, or in connection with, such a program or activity.

Recipients of federal financial assistance must take reasonable steps to ensure that communications with individuals with disabilities are as effective as communications with others. This means that, upon request and at no cost to the individual, recipients are required to provide appropriate auxiliary aids and services to qualified individuals with disabilities.

 What to Do If You Believe You Have Experienced Discrimination

 If you think that you have been subjected to discrimination under a WIOA Title I-financially assisted program or activity, you may file a complaint within 180 days from the date of the alleged violation with either:

The recipient’s Equal Opportunity Officer (or the person whom the recipient has designated for this purpose); or
The Director, Civil Rights Center (CRC), U.S. Department of Labor, 200 Constitution Avenue NW, Room N-4123, Washington, DC 20210.

If you file your complaint with the recipient, you must wait either until the recipient issues a written Notice of Final Action, or until 90 days have passed (whichever is sooner), before filing with the Civil Rights Center (see address above).

If the recipient does not give you a written Notice of Final Action within 90 days of the day on which you filed your complaint, you do not have to wait for the recipient to issue that Notice before filing a complaint with CRC. However, you must file your CRC complaint within 30 days of the 90-day deadline (in other words, within 120 days after the day on which you filed your complaint with the recipient).

If the recipient does give you a written Notice of Final Action on your complaint, but you are dissatisfied with the decision or resolution, you may file a complaint with CRC. You must file your CRC complaint within 30 days of the date on which you received the Notice of Final Action.

√    Initial and continuing notice required

As the EO professional for a recipient of WIOA-Title I financial assistance, you must ensure that “initial and continuing notice” is provided.  29 C.F.R. § 37.29 (WIA); 29 C.F.R. § 38.34, 38.36, and 38.39 (WIOA).  What does this mean?

This means the “EO Is the Law” notice must be “prominently” posted in a variety of places at your center, agency, facility, office headquarters, and any other location open to the public.  And, it must be available in an alternative formats for persons with disabilities, and in other languages for individuals who are limited English proficient.

You must document initial and continuing notice to a beneficiary or potential beneficiary.  For this reason, you must ensure there is “a record that such notice has been given” in “the participant’s file.”

Persons who are limited English proficient (LEP) also must receive notice.  Consequently, the “EO Is the Law” notice should be available in appropriate languages.  Check with your state EO leadership, or with the U.S. Department of Labor’s Civil Rights Center, for LEP-related materials, including versions of the “EO Is the Law” notice in other languages.  The U.S. Department of Justice Web site, at www.lep.gov, also offers valuable guidance.  

Providing notice on a “continuing basis” means, in addition to prominently-placed posters, the notice must be communicated through internal memoranda and other written or electronic communications.  It must be included in your handbooks and materials.

Continuing notice extends to including taglines that the recipient is an “equal opportunity employer/program,” and “auxiliary aids and services are available upon request to persons with disabilities” in your:

●     recruitment brochures;

●    orientation materials and presentations;

●    written and oral communications to staff, clients, or the public regarding WIOA-Title I programs and activities; and

●    publications and broadcasts regarding the WIOA-Title I programs and activities.

Moreover, during each orientation session, you must include a discussion of rights under WIOA’s nondiscrimination and equal opportunity provisions at Section 188, including the right to file a complaint of discrimination with the Director of the U.S. Department of Labor’s Civil Rights Center.

    The “EEO Is the Law” notice

The “EEO Is the Law” notice was developed by the U.S. Equal Employment Opportunities Commission (EEOC).  The EEOC’s “EEO Is the Law” notice reads, in part, as follows:

Equal Employment Opportunity is THE LAW

 Private Employers, State and Local Governments, Educational Institutions, Employment Agencies and Labor Organizations

Applicants to and employees of most private employers, state and local governments, educational institutions, employment agencies and labor organizations are protected under Federal law from discrimination on the following bases:

RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN

Title VII of the Civil Rights Act of 1964, as amended, protects applicants and employees from discrimination in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment, on the basis of race, color, religion, sex (including pregnancy), or national origin. Religious discrimination includes failing to reasonably accommodate an employee’s religious practices where the accommodation does not impose undue hardship.

DISABILITY

Title I and Title V of the Americans with Disabilities Act of 1990, as amended, protect qualified individuals from discrimination on the basis of disability in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment. Disability discrimination includes not making reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, barring undue hardship.

AGE

The Age Discrimination in Employment Act of 1967, as amended, protects applicants and employees 40 years of age or older from discrimination based on age in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment.

SEX (WAGES)

In addition to sex discrimination prohibited by Title VII of the Civil Rights Act, as amended, the Equal Pay Act of 1963, as amended, prohibits sex discrimination in the payment of wages to women and men performing substantially equal work, in jobs that require equal skill, effort, and responsibility, under similar working conditions, in the same establishment.

GENETICS

Title II of the Genetic Information Nondiscrimination Act of 2008 protects applicants and employees from discrimination based on genetic information in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment. GINA also restricts employers’ acquisition of genetic information and strictly limits disclosure of genetic information. Genetic information includes information about genetic tests of applicants, employees, or their family members; the manifestation of diseases or disorders in family members (family medical history); and requests for or receipt of genetic services by applicants, employees, or their family members.

RETALIATION

All of these Federal laws prohibit covered entities from retaliating against a person who files a charge of discrimination, participates in a discrimination proceeding, or otherwise opposes an unlawful employment practice.

WHAT TO DO IF YOU BELIEVE DISCRIMINATION HAS OCCURRED

There are strict time limits for filing charges of employment discrimination. To preserve the ability of EEOC to act on your behalf and to protect your right to file a private lawsuit, should you ultimately need to, you should contact EEOC promptly when discrimination is suspected: The U.S. Equal Employment Opportunity Commission (EEOC), 1-800-669-4000 (toll-free) or 1-800-669-6820 (toll-free TTY number for individuals with hearing impairments). EEOC field office information is available at www.eeoc.gov or in most telephone directories in the U.S. Government or Federal Government section. Additional information about EEOC, including information about charge filing, is available at www.eeoc.gov.

Employers Holding Federal Contracts or Subcontracts

Applicants to and employees of companies with a Federal government contract or subcontract are protected under Federal law from discrimination on the following bases:

RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN

Executive Order 11246, as amended, prohibits job discrimination on the basis of race, color, religion, sex or national origin, and requires affirmative action to ensure equality of opportunity in all aspects of employment.

INDIVIDUALS WITH DISABILITIES

Section 503 of the Rehabilitation Act of 1973, as amended, protects qualified individuals from discrimination on the basis of disability in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment. Disability discrimination includes not making reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, barring undue hardship. Section 503 also requires that Federal contractors take affirmative action to employ and advance in employment qualified individuals with disabilities at all levels of employment, including the executive level.

DISABLED, RECENTLY SEPARATED, OTHER PROTECTED, AND ARMED FORCES SERVICE MEDAL VETERANS

The Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended, 38 U.S.C. 4212, prohibits job discrimination and requires affirmative action to employ and advance in employment disabled veterans, recently separated veterans (within three years of discharge or release from active duty), other protected veterans (veterans who served during a war or in a campaign or expedition for which a campaign badge has been authorized), and Armed Forces service medal veterans (veterans who, while on active duty, participated in a U.S. military operation for which an Armed Forces service medal was awarded).

RETALIATION

Retaliation is prohibited against a person who files a complaint of discrimination, participates in an OFCCP proceeding, or otherwise opposes discrimination under these Federal laws.

Any person who believes a contractor has violated its nondiscrimination or affirmative action obligations under the authorities above should contact immediately:

The Office of Federal Contract Compliance Programs (OFCCP), U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, D.C. 20210, 1-800-397-6251 (toll-free) or (202) 693-1337 (TTY). OFCCP may also be contacted by e-mail at OFCCP-Public@dol.gov, or by calling an OFCCP regional or district office, listed in most telephone directories under U.S. Government, Department of Labor.

√    Comparing the notices

Comparing the “EO Is the Law” notice with the “EEO is THE LAW” notice, we see both notices set forth nondiscrimination requirements, and inform us regarding where to file a discrimination complaint.  However, the “EEO is THE LAW” notice is limited to addressing nondiscrimination with regard to employment practices, whereas the “EO Is the Law” notice is much broader—it applies to employment practices of WIOA-Title I funded recipients and sub-recipients as well as the entire system of delivering WIOA-Title I funded aid, training, benefits, and services to the public.

Moreover, while some “bases” of prohibited discrimination are the same in the two notices (race, color, national origin, religion, disability, gender), there also are important differences.  For example, the WIOA-related “EO Is the Law” notice also prohibits discrimination on the bases of citizenship, WIOA participant status, and political affiliation.  And, the “EEO is THE LAW” notice prohibits discrimination in employment practices on the basis of genetics.

Additionally, although both notices prohibit discrimination on the basis of age, the “EEO is THE LAW” nondiscrimination provisions apply to persons over 40 years of age in the workplace.  But, the age-based nondiscrimination provisions of the “EO Is the Law” notice prohibit discrimination on the basis of any age in WIOA-Title I-related employment practices as well as in the delivery of WIOA-Title I funded programs and activities.

Finally, both notices provide instructions for filing discrimination complaints, but we see the complaints are filed at different locations.  The WIOA-related “EO Is the Law” notice provides that complaints may be filed within 180 days of the date of the adverse action with:

√  the recipient’s Equal Opportunity Officer (or the person whom the recipient has designated for this purpose); or

√ the Director, Civil Rights Center (CRC), U.S. Department of Labor, 200 Constitution Avenue NW, Room N-4123, Washington, DC 20210.

This is compared to the discrimination complaint process set forth in the “EEO is THE LAW” notice, which provides:

There are strict time limits for filing charges of employment discrimination. To preserve the ability of EEOC to act on your behalf and to protect your right to file a private lawsuit, should you ultimately need to, you should contact EEOC promptly when discrimination is suspected: The U.S. Equal Employment Opportunity Commission (EEOC), 1-800-669-4000 (toll-free) or 1-800-669-6820 (toll-free TTY number for individuals with hearing impairments). EEOC field office information is available at www.eeoc.gov or in most telephone directories in the U.S. Government or Federal Government section. Additional information about EEOC, including information about charge filing, is available at www.eeoc.gov.

√    Conclusion

If you operate WIOA-Title I financially assisted programs and activities, you must prominently display, and provide initial and ongoing notice of, the U.S. Department of Labor’s “Equal Opportunity Is The Law” notice at your agency, American Job Network Centers (also known as “One Stops”), Local Workforce Investment Board offices, Unemployment Insurance call centers, Job Corps Centers, operator offices, service provider locations, and the like.  You cannot rely solely on the “EEO is THE LAW” notice to meet this requirement.  And, this notice must be provided to each participant of your WIOA-Title I financially assisted programs and activities, and this must be documented in each participant’s file (usually this is accomplished by placing a copy of the notice with the participant’s signature on it in the participant’s file).

About Seena Foster

Seena Foster, award-winning civil rights author and Principal of the discrimination consulting firm, Title VI Consulting in Alexandria, Virginia, provides expertise and guidance in the areas of civil rights compliance and discrimination complaint investigations related to the delivery of federally-assisted workforce development programs and activities. Her customers include state and local governments, colleges and universities, private companies, private counsel, and non-profit organizations. You may contact her at seena@titleviconsulting.com, or visit her web site at www.titleviconsulting.com for additional information regarding the services and resources she offers.

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

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

Ms. Foster has a “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.

The Importance of “The Script” by Seena Foster

Saturday, January 20th, 2018

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

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

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

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

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

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

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

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

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

About Seena Foster.

Seena Foster, award-winning civil rights author and Principal of the discrimination consulting firm, Title VI Consulting, LLP in Alexandria, Virginia, provides expertise and guidance in the areas of civil rights compliance and discrimination complaint investigations related to the delivery of federally-assisted workforce development programs and activities. Her customers include state and local governments, colleges and universities, private companies, private counsel, and non-profit organizations. You may contact her at seena@titleviconsulting.com, or visit her Web site at www.titleviconsulting.com for additional information regarding the services and resources she offers.

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

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

She is a member of the Discrimination Law and Human Rights Law Committees of the International Bar Association. Ms. Foster received her undergraduate degree from Michigan State University, and she has a Juris Doctorate from The George Washington University Law School.

Immigration-Related Unfair Labor Practices: Justice Department’s Office of Special Counsel and HHS’s Office of Refugee Resettlement Offer Guidance

Friday, April 4th, 2014

OSC is pleased to announce the issuance of a joint letter with the Office of Refugee Resettlement (ORR) within the Department of Health and Human Services focused on employment eligibility requirements for asylees, refugees, and other populations served by ORR.

To view the joint letter in its entirety, go to http://www.justice.gov/crt/about/osc/pdf/stateletter4.14.pdf.

The letter is very informative, and it will serve as a useful resource when employing asylees, refugees, and other similar populations.

Immigration-Related Unfair Labor Practices: New Anti-Discrimination Posters in Multiple Languages from the Justice Department’s Office of Special Counsel

Saturday, March 22nd, 2014

OSC is pleased to announce that its anti-discrimination poster is now available in additional languages. OSC has published translations of its poster in Arabic, Chinese, French, Haitian Creole, Korean, Russian, Spanish, Tagalog, and Vietnamese. These translations are available on OSC’s website located on the Worker Information page at: http://www.justice.gov/crt/about/osc/htm/worker.php and the Employer Information page at: http://www.justice.gov/crt/about/osc/htm/employer.php.