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Age Discrimination: What It Is and How to Avoid It (by Seena Foster)

Sunday, July 1st, 2018

Age discrimination is prohibited by federal civil rights laws. The Age Discrimination Act of 1975 requires nondiscrimination on the basis of any age in the delivery of federally-assisted services, aid, training, and benefits. And, the Age Discrimination in Employment Act of 1967 bars discrimination against folks who are 40 years and older in employment practices.

In this article, we’ll cover the requirements of these laws, and set forth some specific steps you can take to ensure compliance.

√ In federally-assisted programs and activities.

In federally-assisted programs and activities, age discrimination is prohibited regardless of the age at issue. Federally-assisted programs and activities cover a wide variety of areas including, but not limited to, the following:

● workforce development, such as job counseling, job referral, unemployment insurance, on-the-job-training, and other programs and activities offered through the American Job Center network and Job Corps Centers;
● educational programs and activities offered at schools, colleges, and universities that receive federal dollars;
● public transportation systems;
● public housing;
● healthcare programs and activities funded with federal dollars;
● and many others.

Denying services, aid, training, or benefits in federally-assisted programs and activities because someone is “too old” or “too young” runs afoul of the Age Discrimination Act. That is, if you limit services, provide lesser services, provide segregated services, or deny services based on a person’s age, then you have engaged in age-based discrimination.

The only exception is when the federal funding agency designates dollars for a program geared to a particular age group. For example, Job Corps offers enrollment for its federally-assisted educational programs and activities to persons who are 16 to 24 years old.  Here, one of the essential eligibility requirements for participation in this federal program is age-related.

Absent specific age criteria set by the federal agency, as in our Job Corps example, age-based discrimination is prohibited in government programs. For example, let’s say you are operating a project management training program, which is partially funded with grant money received from the U.S. Department of Labor. Through this program, participants obtain specialized certification allowing them to bid on a wider variety of contracts issued in your locality.

Joan, a 36-year old, was denied entry into the program. She files a discrimination complaint alleging you only selected folks under 30 years of age. This constitutes an age-based discrimination complaint under the Age Discrimination Act.

Now, when conducting an investigation of this complaint, you’ll want to learn whether Joan met the “essential eligibility requirements” for the training program as well as who was selected and who was not, the bases of these decisions, and so on.

If you operate a government-funded program or activity to deliver aid, training, services, or benefits to the public, then focus on the following measures to ensure compliance with the Age Discrimination Act:

● Know the “essential eligibility requirements” for the program. Are there any age requirements? If not, then the Age Discrimination Act mandates age cannot be used to deny access to a program, or to offer lesser, segregated, or different services.
● Make sure each and every member of your staff working with a program, including your front line folks who greet the public as they come through the door, treats each person with respect, and does not segregate, exclude, limit, or deny access to a program or activity because of an individual’s age.
● Conduct training so that staff understands the Age Discrimination Act, i.e. what it is, where it applies, and what it means. Everyone needs to be on the same page—you cannot offer lesser services, segregated services, different services, or no services because someone is “too old” or “too young.”
● Monitor the program. Check census and other demographic data for your service population to make sure you are reaching your target populations, regardless of their ages. Check program data for any disconnects between the ages of folks who come through your doors and those who are actually served. And, finally, track your discrimination complaint log to pinpoint and troubleshoot problem areas in your systems of delivering aid, training, benefits, or services to the public.

√ In the workplace.

Unlike the operations of government programs, in the workplace, we are concerned with the treatment of people who are 40 years of age and over. The Age Discrimination in Employment Act (ADEA) stemmed from Congress’s concerns over stereotyping of older workers as being less efficient or less productive than their younger counterparts. Congress found, based on these stereotypes, older workers were treated less favorably.

The EEOC reports that 23 percent of all discrimination charges it received in 2012 included alleged violations of the ADEA, and the “most startling” component of these age-based discrimination complaints was that 64 percent of the complaints asserted discriminatory discharge of the worker. As a result, in 2012, the EEOC announced a new strategic enforcement plan targeting age-based discrimination in the employment context, which was approved by the Commission. One of its goals under this new strategy is to prevent age-based discrimination and harassment through increased litigation and targeted outreach.

At this juncture, it is worthwhile to take a brief sidestep and note that a variety of studies have come out in recent years demonstrating that older persons exhibit sharper minds in some areas, and have more stable emotions than their younger counterparts. For example, older air traffic controllers were studied by University of Illinois researchers, and found to exhibit expert navigation abilities as well as expert abilities coordinating multiple aircraft at the same time to avoid collisions. So, it is important to instill a workplace culture that does not negatively stereotype older workers.

Less favorable treatment in employment practices includes non-selection, non-promotion, issuing adverse performance appraisals, a hostile work environment, forced retirement, and termination. It can also include transfer to a less favorable position or office location, exclusion from meetings, and other less favorable privileges, terms, or conditions of employment.

If it is determined that less favorable employment policies and practices adversely affect folks 40 years of age and over, then prohibited age-based discrimination is demonstrated, unless the employer demonstrates that “reasonable factors other than age” are at the core of the less favorable employment policy or practice.  Notably, in Gross v. FBL Financial Services, Inc., 557 U.S. 167, 176 (2009), the United States Supreme Court considered the complainant’s burden under the ADEA.  The plain language of the statute provides it “shall be unlawful for an employer . . . [t]o discriminate against any individual . . . because of such individual’s age.”  Citing this language, the Supreme Court held an employee must show that, even if age is not the only cause for the adverse action, age must be the controlling factor in the adverse employment action; that is, the adverse employment action would not have happened “but-for” the employee’s age.

One example of application of the “but for” standard is found in the Eleventh Circuit’s 2013 opinion in Cobb v. City of Roswell, Georgia.  The court noted, in order to meet this burden, the employee initially must demonstrate a prima facie case that s/he was:  (1) at least 40 years old; (2) subjected to an adverse employment action; (3) replaced by a younger person; and (4) qualified for the job at issue.  The court stated an employer’s expressed need for “fresh” leadership, standing alone, will not carry the day in establishing age discrimination; rather, there must be a basis in the record to demonstrate that “fresh” meant “young” or “younger.”  If a prima facie case is made, then the burden shifts to the employer to present legitimate, nondiscriminatory reasons for its conduct.  And, finally, the employee is afforded the opportunity to demonstrate that the employer’s proffered reasons are mere pretext, or are not true.  Here, the Cobb court held the employee “must meet each proffered reason head on and rebut it, and he cannot succeed by simply disputing the wisdom of the employer’s proffered reasons.”

Keep in mind, it is not illegal under the ADEA to favor an older worker over a younger worker, even if both employees are over 40 years of age. Rather, as stated earlier, the ADEA was enacted to protect older workers against discrimination in favor of younger workers.

The ADEA applies to your workplace as well as to apprenticeship programs, job notices and advertisements, and pre-employment inquiries. While there is no specific prohibition to asking the age, the date of birth, or the date of high school graduation of an applicant for employment, such pre-employment questions will be closely scrutinized in any discrimination complaint investigation to determine whether the information was obtained for a lawful purpose.

There is no upper age limit under the ADEA, which means that employers must be careful when imposing mandatory retirement policies. Specifically, if an employer seeks to impose mandatory age retirement, it must demonstrate that such a requirement constitutes a bona fide occupational requirement for the position.

And, sometimes, job requirements will have a disproportionately adverse impact on folks who are 40 years of age and over. For example, a job may require consistent lifting of 50 pounds during the workday and this, in turn, may disproportionately affect some older workers. Such job requirements are permissible so long as they relate to the essential functions of the job.

For purposes of illustration, we’ll use two court opinions to help us better understand the concept of age-based hostile work environment—when it is established and when it is not. Keep in mind, that discrimination complaints are very fact intensive. There are very few bright line rules, and these complaints are resolved on a case-by-case basis.

The two cases that we are going to look at are the 2011 New Jersey Supreme Court opinion, Saffros v. Anaya, Inc., where age discrimination was established, and the 2012 Third Circuit opinion of Vashinder v. Sec’y. Dep’t. of Veterans Affairs, where age discrimination was not established.

The plaintiffs in each of these cases alleged that derogatory age-related remarks were directed at them in the workplace. The Vashinder court found evidence of one “stray remark” about the plaintiff’s age, but concluded that this did not rise to a “severe and pervasive” level so as to create an age-based hostile work environment.

In Saffros, on the other hand, the court found evidence that company managers and supervisors continually made degrading age-related comments directed at, or about, older workers, including the plaintiff. Indeed, the court found that these comments were “severe and pervasive” enough to create a hostile work environment based on age, which constituted age-based discrimination.

So, where the Vasbinder court concluded a stray age-related remark did not rise to the level of hostile work environment, the Saffros court found a culture of the company’s leadership making derogatory age-based remarks was sufficient to create a hostile work environment in violation of the ADEA.

Next, in Vasbinder, the plaintiff, who was over 40 years of age, was demoted from Boiler Plant Operator Leader to Maintenance Worker. Although the plaintiff asserted that the demotion stemmed from the fact that he was over 40 years of age, the court found sufficient evidence presented by the employer to demonstrate that he was demoted because he was caught sleeping during his shift. Here, the court noted, “Sleeping while responsible for the boiler plant was a serious offense because of the potential consequences of an equipment malfunction.” Although the plaintiff challenged the employer’s investigation of a report that he was sleeping on duty, the court held that the employer followed its procedures, investigated the report, and took disciplinary action.

On the other hand, in Saffros, the court cited to multiple factors demonstrating age-based discrimination had occurred against employees aged 40 years and older. The court cited to one employee over 40 years of age, who had a history of exceptional work performance, but was terminated under a Forced Management Plan. The employer argued that the plan served a purpose of eliminating positions “to create cost savings.” The plaintiff requested a transfer to another geographical location with the company, but this was denied on the basis that there was “no money for moving.” It was problematic to the court, however, when the company turned around and hired a 33 year old to fill the same position as was held by the terminated plaintiff and the moving costs for the new hire were paid by the company. Based on the facts before it, the court concluded that age-based discrimination was established.

In the end, it is important to ensure that your employment practices comply with the ADEA. Some suggestions include:

● Focus on the bona fide occupational requirements and essential duties of a job, not the age of the applicant or employee.
● Avoid gathering age-related information, such as date of birth, date of graduation from high school, and the like, during the pre-employment phase of the hiring process.
● Do not include age preferences in job notices and advertisements.
● While stray age-related remarks in the workplace may not rise to the level of “severe and pervasive” conduct to create a hostile work environment, any such remarks should be discouraged. And, managers and supervisors must refrain from making such remarks, encouraging others to make them, or ignoring complaints by subordinates regarding such remarks. There is a point at which stray remarks evolve into more intense conduct that violates federal civil rights laws.
● Reductions in force and other “cost saving” measures implemented by an employer should not have a disproportionate affect on older workers. It will be particularly problematic for your organization if terminated older workers are replaced with younger ones.
● Monitor what is happening on the ground. Keep your eyes and ears open. Acts of discrimination may start small, but they can quickly build and create a drain on company resources to correct. It is best to encourage a respectful work environment, top to bottom, from the start.

About Seena Foster

Seena Foster, Principal of Title VI Consulting, assists administrators and equal opportunity professionals understand the civil rights laws that apply to their federally-assisted programs and activities. Her background includes 24 years as Senior Legal Advisor to the Labor Department’s Office of Administrative Law Judges, where she drafted decisions and orders and developed resources and aids promoting consistency and efficiency in several national adjudication programs. In 2012, Ms. Foster received the U.S. Secretary of Labor’s Exceptional Achievement Award “for outstanding leadership and legal guidance in helping the Office of Administrative Law Judges address the major changes in law” stemming from enactment of the Patient Protection and Affordable Care Act.

Ms. Foster also served on detail as a Senior Policy Analyst to the Labor Department’s Civil Rights Center (CRC) and, in 2003, she led a team of specialists to conduct disability-based technical assistance reviews, prepared materials for limited English proficiency compliance reviews, prepared determinations issued by Director Annabelle Lockhart resolving numerous discrimination complaints, and presented at the CRC/NASWA national equal opportunity forum on the Workforce Investment Act Section 188 Disability Checklist. In 2006, Ms. Foster received the Secretary of Labor’s Equal Employment Opportunity Award for her work at the CRC, and, on request by the CRC, Ms. Foster continued to serve as a workshop presenter at subsequent CRC/NASWA equal opportunity conferences conducting workshops on conducting discrimination complaint investigations and writing determinations, and addressing harassment and hostile environment complaints in educational programs and activities.

Currently, Ms. Foster offers consultation services, assists in the development of policies and procedures, and conducts onsite civil rights training for state and local governments, focusing on the delivery of federally-assisted programs and activities in the areas of workforce development and education. Her award-winning book, Civil Rights Investigations under the Workforce Investment Act and other Title VI-Related Laws: From Intake to Final Determination, and her highly popular on-demand webcasts covering compliance and discrimination complaints investigations have been applauded by equal opportunity and compliance professionals for their clarity and content. Ms. Foster has a Juris Doctorate from The George Washington University Law School, and she carries certification in federal workplace mediation from the Northern Virginia Mediation Service. Ms. Foster also is a member of the Human Rights and Discrimination Law committees of the International Bar Association.

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.”

Cost: $19.99 per copy

Go to; or

Email the author at, 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

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!

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 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 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.


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.

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, or visit her Web site at 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

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: and the Employer Information page at:

Office of Disability Employment Policy Newsletter (March 14, 2014)

Friday, March 14th, 2014

For more information on any of these articles, go to

Planning for a Year of Disability Employment Action – Assistant Secretary Martinez’s Blog

In a blog that looks ahead to the FY 2015 budget year, Assistant Secretary of Labor for Disability Employment Policy Kathy Martinez outlines some of the priorities for the Office of Disability Employment Policy. Among them are a focus on community colleges in the transition of youth with disabilities to the workplace, a commitment to providing technical assistance to employers regarding the new Section 503 of the Rehabilitation Act regulations, and a continued collaboration with the Employment and Training Administration on the Disability Employment Initiative.

Join the National Online Conversation for Change on Social Media Accessibility – March 17 – April 4

Members of the public are invited to participate in a national online dialogue, “Advancing Accessibility and Inclusion in Social Media – The User Experience,” to examine the accessibility barriers of social media tools faced by individuals with disabilities, including job seekers and workers. Co-hosted by the Office of Disability Employment Policy (ODEP) and the National Council on Disability (NCD), this event aims to explore the value of social media in the lives of people with disabilities, particularly around work, and to identify accessibility issues and creative approaches to making social media tools more accessible and usable for everyone. The information gathered from this dialogue will then help NCD and ODEP further collaborate with the social media industry to implement solutions and improve the accessibility of these online tools. The dialogue, to be held March 17 to April 4, 2014, will be the first in a series of three social media accessibility online events to take place over the next three months.

ODEP Info-Comic Illustrates the Benefits of Individualized Learning Plans for Youth

An Individualized Learning Plan (ILP) is a set of activities that helps youth take charge of their future. It does this by connecting what youth do in high school with college, job and career goals. ODEP and its research partners have found that ILPs positively impact all youth’s self-determination, leadership abilities, and awareness of career opportunities. As an example of the process, ODEP created an info-comic in which high school senior Shelly learns how to take charge of her future by using an ILP. ODEP also has a “Kickstart Your ILP” toolkit available on its website.

HUD Announces $120 Million for Housing for People with Disabilities

To help prevent thousands of people with disabilities from experiencing homelessness or unnecessary institutionalization, the U.S. Department of Housing and Urban Development announced about $120 million in funding for state housing agencies to provide long-term rental assistance. Developed in partnership with the U.S. Department of Health and Human Services, the Section 811 Project Rental Assistance (PRA) enables persons with disabilities who earn less than 30 percent of their area’s median income to live in integrated mainstream settings. The program reinforces the guiding principles of the Americans with Disabilities Act and the landmark 1999 Supreme Court ruling in Olmstead v. L.C., which require state and local governments to provide services in the most integrated settings appropriate to meet the needs of individuals with disabilities. Application deadline is May 5, 2014.

Maintaining Employment through Economic Advancement Strategies – LEAD Center Webinar – March 26, 3:00-4:30 PM EDT

This webinar, as part of LEAD Center’s Employment mini-series, will provide information on strategies for enhancing employment stability and improving time on the job through the use of economic advancement strategies. Participants will learn how to integrate these strategies into their return to work services and hear stories about on the ground implementation. The webinar will be held March 26, 3:00-4:30 PM EDT. All LEAD Center webinars are captioned and presentation materials are sent to participants in advance of the webinar. For any other reasonable accommodation requests, please contact Brittany Taylor at

Disability Status Report Webinar – April 1, 1:00-2:00 PM EDT

Cornell University’s Employment and Disability Institute (EDI) will host a free online webinar on April 1 from 1:00-2:00 p.m. EDT to present the findings of the 2012 Disability Status Report. This presentation will explore the Census Bureau’s December 2013 release of data from the 2012 American Community Survey (ACS) related to disability and employment, education, poverty, household income and labor earnings.
Cornell University researchers will present the latest information and issues associated with disability statistics and the circumstances that people with disabilities face. The webinar will be captioned.

Recent Federal Court Decision Emphasizes State and Local Government Agencies and their Contractors Must Comply with Title VI of the Civil Rights Act

Monday, March 10th, 2014

As a state or local government official, or as the contractor for a state or local government, you must know, and comply with, applicable federal civil rights laws. Notably, Title VI of the Civil Rights Act of 1964 (Title VI) applies to the delivery of all federally-assisted programs and activities, and it prohibits discrimination on the bases of race, color, and national origin.

Where a state or local government receives federal financial assistance either directly or indirectly for the purpose of operating a program or activity for the benefit of its public, then the nondiscrimination mandates of Title VI will apply to all aspects of the operation of the program or activity. Some examples of federally-assisted programs and activities in a locality include public housing, American Job Network centers providing job training, apprenticeship opportunities, and other workforce development programs and activities, public educational institutions including colleges and universities accepting students using federal financial aid, Medicare and Medicaid programs, environmental protection programs, emergency preparedness programs, and many others. The concept underlying Title VI is that no person shall be excluded from participating in, or benefitting from, the federally-assisted services, aid, training, or benefits on the bases of race, color, or national origin.

Often, a state or local government will contract with a private company to help them deliver a federally-assisted program or activity. An example of this is presented in the case of Carnell Construction Corp. v. Danville Redevelopment and Housing Authority, ___ F.3d ___, Case Nos. 13-1143, 13-1129, and 13-1239 (4th Cir. Mar. 6, 2014). Here, a public housing authority entered into a contract with Carnell Construction to clear a construction site for building public housing. The contractor also was responsible for grading the land, and installing drainage and erosion controls. As this case illustrates, not only must a state or local government agency offer public housing to members of its public in compliance with Title VI, but it also must ensure that the contracting and procurement practices related to development of this housing comply with Title VI.

In Carnell Construction, a Title VI race-based disparate treatment lawsuit was filed by a minority-owned business against the Danville Redevelopment and Housing Authority (Housing Authority). The court held the minority-owned corporation “can acquire a racial identity and establish standing to seek a remedy for alleged race discrimination under Title VI.” Thus, the corporation was entitled to file a lawsuit against the Housing Authority alleging race-based discrimination and retaliation under Title VI with regard to the Housing Authority’s contracting and procurement practices.

Under the facts of the case, the minority-owned business alleged the Program Director and the Contracting Officer of the Housing Authority made racially-discriminatory statements, and the Housing Authority engaged in “disparate treatment with respect to contracting practices such as ‘prepayment’ for materials, ‘retainage’ of process payments, and approval of change order requests.” The court stated:

We hold that a corporation that is minority-owned and has been properly certified as such under applicable law can be the direct object of discriminatory action and establish standing to bring an action based on such discrimination. Accordingly, we agree with the conclusions reached by our sister circuits that prudential considerations should not bar review of a claim of race discrimination suffered by such a corporation during its participation in a program that has received federal funding assistance.

Slip op. at p. 6.

Here, the president and sole shareholder of Carnell Construction was African-American, and he “publicly represented that (his business) was eligible for consideration as a minority business enterprise when it contracted with the Housing Authority on a public project receiving federal funding assistance.” Because the corporation alleged the Housing Authority “discriminated against (it) during its performance on the (public housing) contract based on the minority status of the owner, and that (the corporation) suffered direct injury as a result of that racial discrimination,” the court determined Carnell Construction had standing to sue under Title VI.

The court concluded that the minority-owned business had standing to sue even though it was not the intended beneficiary of the public housing funding (i.e. seeking to reside in public housing). Citing to 40 U.S.C. § 2000d, the court explained that Title VI requires no person “shall be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance” on the basis of race. While Title VI applies to the intended beneficiaries of the program or activity (i.e. the Housing Authority cannot discriminate against applicants for public housing on the bases of race, color, or national origin), the court made clear that Title VI also applies to the contracting and procurement process related to the public housing program; that is, it was illegal for the Housing Authority to discriminate against Carnell Construction on the basis of race because the corporation was participating, or seeking to participate, as a contractor for the Housing Authority in the delivery of its public housing program.

√ Lessons learned

Although this case involved a federally-assisted public housing program, its holding applies to the delivery of any federally-assisted program or activity for the benefit of the public including, but not limited to, programs related to employment or workforce development, transportation, education, environmental protection, emergency preparedness, and health and human services among many others. Often, state and local government agencies, or instrumentalities of these agencies, such as the Housing Authority involved in Carnell Construction, will utilize the services of independent contractors to assist in the delivery of federally-assisted programs (i.e. in this case, the Housing Authority contracted with the minority-owned business to prepare a site for public housing construction).

From the point of soliciting bids or proposals to selecting a contractor to overseeing the contractor’s performance of work related to the delivery of a federally-assisted program or activity, the nondiscrimination mandates of Title VI of the Civil Rights Act of 1964 apply. This means the state or local government agency, or an instrumentality of the agency, cannot treat one contractor differently from another contractor in this process (solicitation, selection, payment, performance oversight) based on race, color, or national origin.
Examples of disparate treatment include requiring more or different documentation from one contractor as compared to another contractor. One example here is a contracting officer that requires a Hispanic-owned contractor provide documentation proving eligibility to work, but non-Hispanic-owned contractors are not required to provide such documentation. This is a form of national origin-based discrimination.

Another example of disparate treatment is delayed or different payment for contract performance. For example, the contracting officer denies prepayment of certain funds to cover the costs of job site materials for a black-owned contractor, whereas non-black-owned contractors do receive prepayment of certain funds to cover the costs of job site materials. This is a form of race and/or color-based discrimination.

Another important facet of the Carnell Construction case is the court’s conclusion that a minority-owned corporation with an established racial identity may sue a state or local government agency, or an instrumentality of the agency like the Housing Authority, for damages under Title VI. So, the nondiscrimination requirements of Title VI apply not only to members of the public who may ultimately benefit from the federally-assisted program or activity, but also to a corporation with an established identity that is protected by the statute (i.e. race, color, and/or national origin) where the corporation seeks to participate in the federally-assisted program.

Therefore, all contracting and procurement functions of a state or local government agency, or its instrumentality, must be performed in compliance with applicable federal civil rights laws. In Carnell Construction, Title VI was implicated. But, keep in mind, other federal civil rights laws may apply to a program or activity, such as Section 504 of the Rehabilitation Act (prohibiting disability-based discrimination), or the Age Discrimination Act (prohibiting age-based discrimination), and it would be illegal to discriminate against contractors as well as beneficiaries seeking to participate in a program on these bases as well.

An example where additional federal civil rights laws would apply is in the area of workforce development. For purposes here, let’s assume a state or local workforce development agency (such as an American Job Network center) contracts with a language line provider to provide translation assistance for its limited English proficient customers. The agency’s process and practices for soliciting, selecting, and overseeing the language line provider/contractor must comply with the nondiscrimination requirements of Section 188 of the Workforce Investment Act (WIA), which, in addition to prohibiting discrimination on the bases of race, color, national origin, disability, and age, also requires nondiscrimination on the bases of gender, political affiliation, and religion. Moreover, the contractor, while engaged in providing translation assistance for the workforce development agency, also must comply with WIA Section 188 as it interacts with members of the public.

So, if the workforce development agency requested additional insurance coverage from a woman-owned language line provider as opposed to non-woman-owned providers, then it has engaged in prohibited gender-based discrimination in the contracting process in violation of WIA Section 188.

Turning to performance of the contract, if the workforce development agency’s language line provider/contractor refuses to provide Arabic translation services to members of the public seeking to participate one of the agency’s workforce development programs on grounds that Arabic-speaking persons are Muslim, then the provider/contractor has engaged in religious-based discrimination in violation of WIA Section 188.

At the end of the day, your contracting process along with your delivery of federally-assisted programs and activities to your public must comply with applicable federal civil rights laws.

√ 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 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, or visit her web site at 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.” In 2007, Ms. Foster was certified as a mediator by the Virginia Supreme Court, and later obtained “Federal Workplace Mediation” certification through the Northern Virginia Mediation Service.

In her local community, she volunteers at Carpenter’s Shelter in Alexandria, Virginia, and serves on its Development Committee and Major Donors and Partners Subcommittee. In addition, Ms. Foster serves on the Economic Opportunities Commission for Alexandria, Virginia, which addresses availability of housing and jobs for economically-disadvantaged persons. In 2013, Ms. Foster received the City of Alexandria’s “Joan White Grass Roots Service Award” for her commitment of time and effort “working to improve the lives of the homeless as well as advocating their needs and the mission of Carpenter’s Shelter in the community.” She is a member of the Discrimination Law and Human Rights Law Committees of the International Bar Association. And, in November 2011, Ms. Foster was selected as a lifetime member of the Cambridge Who’s Who among Executives, Professionals, and Entrepreneurs based on her “accomplishments, talents, and knowledge in the area of civil rights.”
Ms. Foster received her undergraduate degree from Michigan State University, and she has a Juris Doctorate from The George Washington University Law School.

How Do E-Verify Mandates Affect Unauthorized Immigrant Workers? (March 2014)

Tuesday, March 4th, 2014

This working paper by Pia M. Orrenius and Madeline Zavodny, which was released by the Federal Reserve Bank of Dallas this month at, contains analysis of data from the U.S. Census Bureau’s Current Population Survey. The abstract to the paper provides the following:

A number of states have adopted laws that require employers to use the federal government’s E-Verify program to check workers’ eligibility to work legally in the United States. Using data from the Current Population Survey, this study examines whether such laws affect labor market outcomes among Mexican immigrants who are likely to be unauthorized. We find evidence that E-Verify mandates reduce average hourly earnings among likely unauthorized male Mexican immigrants while increasing labor force participation and employment among likely unauthorized female Mexican immigrants. In contrast, the mandates appear to lead to better labor market outcomes among workers likely to compete with unauthorized immigrants. Employment and earnings rise among male Mexican immigrants who are naturalized citizens in states that adopt E-Verify mandates, and earnings rise among U.S.-born Hispanic men.

And, in the conclusion, the authors state the following:

A growing number of states require employers to verify workers’ employment eligibility. Using data from 2002-2012, we find that universal E-Verify mandates appear to reduce hourly earnings by about 8 percent among male Mexican immigrants who are likely to be unauthorized, and this effect is concentrated among long-term U.S. residents. We do not find evidence that E-Verify mandates reduce employment among likely unauthorized Mexican immigrants. On the contrary, women’s employment increases in states that adopt E-Verify mandates. Lower earnings among men may induce some women to enter the labor market, while men may move away from states that adopt E-Verify mandates, cushioning the disemployment impact. Taken as a whole, the results indicate that E-Verify mandates to date are largely successful in achieving the goal of worsening labor market outcomes among unauthorized immigrants.

Another goal of E-Verify mandates is to improve labor market outcomes for U.S. natives who may compete with unauthorized immigrants. We find some evidence that the laws achieve this objective, although positive effects are more prominent for Mexican immigrants who are naturalized U.S. citizens than for U.S.-born Hispanics. The adoption of E-Verify mandates does not appear to affect labor market outcomes among non-Hispanic whites either positively or negatively.

There are several caveats to our results. Migration to other states may reduce the impact of E-Verify mandates. In addition, there are a number of shortcomings with regard to what we know about employment eligibility verification mandates. We are unable to identify mandates that are strictly enforced from those that are merely “on the books.” We do not know the extent of federal audits and other enforcement activities, which may be correlated with state mandates. We also are unable to examine the extent of E-Verify use in states that have not adopted mandates. Corporations with nationwide operations that implement E-Verify in one state may decide to extend that corporate policy to other states.

Despite these limitations, this study offers new evidence on the effects of E-Verify mandates. In particular, we fail to find evidence of significant negative employment effects among likely unauthorized Mexican immigrants, although we do find evidence of sizable negative earnings effects among men. If more states implement employment verification, unauthorized workers will likely have even lower wages and may not be able to avoid disemployment effects by moving to a state that does not have a mandate in place. This suggests E-Verify can be a powerful interior enforcement tool but could also lead to higher poverty and more social assistance needs among the unauthorized immigrant population. E-Verify mandates might be used more effectively and with fewer unintended consequences as part of a comprehensive immigration reform where they would be a deterrent to future unauthorized immigration.

U. S. Commission on Civil Rights: A Briefing Paper on Assessing the Impact of Criminal Background Checks and the Equal Employment Opportunity Commission’s Conviction Records Policy (December 2013)

Friday, February 28th, 2014

The following are excerpts of the “Summary” and “Introduction and Background” sections of a briefing paper from the U.S. Commission on Civil Rights. For the complete text of the briefing paper, go to


On December 7, 2012 the United States Commission on Civil Rights held a briefing to examine the disparate impact provisions of the Equal Employment Opportunity Commission’s (EEOC) April 2012 guidance concerning the use of criminal background histories (2012 Guidance or “new guidance”). The Commission wished to learn about the effects of the EEOC’s revised policy on employers and on black and Hispanic applicants with or without a criminal record.

The briefing’s seventeen speakers included a high-ranking EEOC official, scholars, attorneys, social scientists, personnel executives, a former offender now policy director of an advocacy and job placement service, a family member of a victim slain by an unscreened exconvict sent to the victim’s home as a contractor six months earlier, ex-felon advocacy groups, business associations representing home care, small business and retail, and a security company currently under investigation by the EEOC.

The speakers gave views on the effects of the 2012 Guidance, its legal complexities, the sufficiency of its evidentiary basis, and on whether the 2012 Guidance would result in a negative disparate impact on the very groups the agency intends to protect. Former-offender advocacy groups welcomed the 2012 Guidance for its virtual prohibition on blanket exclusionary policies and its strongly suggested consideration of applicants and employees with criminal records of many kinds on a narrowly drawn or case-by-case basis. These records included arrest records only, criminal citations, misdemeanor convictions, expungements, and felony convictions, among others. Speakers representing employers discussed whether the majority of employers, who for legal, statutory mandate, business and/or safety reasons must exclude applicants with particular criminal convictions, might as a result reduce hiring overall, increase automation, or move some jobs overseas. Some thought that such reduction in hiring of entry-level workers would likely have the unfortunate effect of disproportionately lowering job opportunities and reducing employment among blacks and Hispanics.


Disparate impact theory posits that any use of a selection method that is facially nondiscriminatory may still be held discriminatory if it affects proportionally more of one protected group than of another, and the selecting entity, in this case an employer, cannot show that the selection criteria are job-related and consistent with business necessity.

Disparate impact theory is invoked by plaintiffs in private discrimination suits and by various
enforcement agencies. In addition to the EEOC, examples of such enforcement agencies are the U.S. Department of Justice’s Civil Rights Division, the U.S. Department of Housing and Urban Development, the Consumer Financial Protection Bureau, and the U.S. Department of Education, among others.

The EEOC’s mission is enforcement of anti-discrimination and other federal equal employment opportunity laws as authorized under Title VII of the Civil Rights Act of 1964 (the Act). Since the statute does not authorize the agency to issue regulations on this subject, the agency makes known its interpretation of the statute by issuing guidance and policy statements. Employers excluded by statute from its jurisdiction are those with fewer than 15 employees and American Indian tribes. The U.S. Department of Justice litigates Title VII against States and municipalities.

The Civil Rights Act as passed in 1964 did not address disparate impact, although the Supreme Court accepted disparate impact theory with regard to intelligence tests and high school graduation requirements in the 1971 case Griggs v. Duke Power Company. Twenty-five years after the Act’s passage, Congress amended the Act’s Title VII to include disparate impact discrimination as a statutory basis for suits against employers as part of the Civil Rights Act of 19916 after a series of Supreme Court decisions that weakened the reach of disparate impact theory. The amended law did not address criminal histories, and the EEOC’s 2012 Guidance acknowledges that “having a criminal record is not listed as a protected basis in Title VII.” Since at least 1972,9 however, the EEOC has asserted that disparate impact theory drawn from the Griggs decision forbids the blanket exclusion by an employer of all applicants with criminal histories. The EEOC does not prohibit or restrict employers from asking for or obtaining background histories, although eliminating the question from the face of an application is identified as a “best practice” and some members of the public who submitted comments appear to believe that it is still considering the elimination of the question. Many of the public comments sent to the EEOC concerning its new guidance mistakenly objected to the perceived restriction or prohibition against obtaining background checks.

To pursue a claim under Title VII in federal or state court, an aggrieved applicant or employee must first file a charge with EEOC or with a state or local fair employment practices agency authorized to accept charges on the EEOC’s behalf. If the EEOC investigates and does not find reasonable cause to believe that discrimination occurred, it will automatically send the charging party a “Notice of Right to Sue,” after which the charging party will have 90 days to file a lawsuit.

If EEOC investigates and finds reasonable cause to believe that discrimination occurred, the agency will attempt to resolve the charge informally through conciliation. If the attempt to conciliate the charge is unsuccessful, the EEOC will decide whether to file suit. If EEOC decides not to file suit, it will send the charging party a Notice of Right to Sue, and the same 90-day suit-filing period will apply. Once a Notice of Right to Sue has been issued, the agency usually takes no further action on the charge. If EEOC does file suit, the charging party may intervene in that lawsuit but generally may not sue separately. In any lawsuit the EEOC’s policies and guidance statements remain important but not necessarily dispositive considerations for a court in deciding the outcome.

The EEOC’s 2012 Guidance is the most recent policy statement conscribing employee selection. It supersedes all earlier criminal history policies. Because the 2012 Guidance is so recent, Commission briefing speakers based their comments on its expected effects, in addition to the EEOC’s enforcement policy and actions under prior guidances issued in 1987 and 1990.

Still in force are the 1978 Uniform Guidelines on Employee Selection Procedures (1978 Selection Guidelines) on allowable methods of selection. The 1978 Selection Guidelines, issued 35 years ago and not updated since, are in use by various federal agencies. Critics of the 1978 Selection Guidelines allege that accepted standards incorporating advances in validity generalization are not available to employers under these guidelines. Validity generalization would allow employers to develop employee qualification standards that would be applicable to a class of jobs, not just one job. Although the 2012 Guidance acknowledges as a legitimate selection concern the physical or other security risks to customers or other employees inherent in hiring any employee, it leaves employers exposed to the discretionary judgment of the EEOC as to individual hiring decisions.

Among those policies apparently superseded is the 1987 policy distinguishing between crime-specific and non-crime-specific data to control employers’ use of statistical data in excluding former offenders (1987 Statistics Policy). This policy allowed employers where the policy was crime-specific to present data showing that their practices would not adversely affect blacks and Hispanics in the employer’s actual pool as to that particular crime; the new guidance also allows employers to make this showing. Also superseded is the 1990 policy guidance restricting employers’ use of arrest records (1990 Arrest Records Policy); the policy limiting but not eliminating use of arrest records is now included in the new guidance.

The Title VII statute does not distinguish between intentional and inadvertent actions, meaning that an employer may make good-faith efforts to adhere to the guidance and still be in violation of the law. The EEOC has the authority to bring a systemic investigation against several employers alleging a pattern or practice of discrimination and add additional affected employees and/or bases such as national origin.

Some years ago, the EEOC began an initiative called “E-RACE” that adds greater scrutiny to employer practices such as making hiring selections based on “names, arrest and conviction records, employment and personality tests, and credit scores.” The 2012 Guidance does not discuss the relation of E-RACE to the Guidance.

The 2012 Guidance states categorically that any employer policy disfavoring persons with criminal records disproportionally affects racial and ethnic minorities, particularly black or Hispanic with criminal records nationwide. It bases this declaration on data from the U.S. Department of Justice’s Bureau of Justice Statistics showing nationwide conviction rates of blacks and Hispanics disproportionately higher than their representation in the general population of the United States. The EEOC cautions employers against drawing conclusions driven by racial or ethnic animosity, as well as decisions infected by stereotyped thinking which might lead an employer to reject a black or Hispanic applicant based on a higher than average likelihood of a criminal history.

Based on its statistical information, the EEOC regards as likely disparate impact any exclusion of a black or Hispanic job applicant or employee with a criminal record. This would hold true regardless of the type of crime, the type of job, the location, or the nature of the employer’s business, unless the employer uses what the EEOC considers a narrowly drawn or “targeted” screen that does not exclude all persons with criminal records, or enquires into the details of each applicant’s history to determine suitability and establishes a rationale that is consistent with business necessity. The EEOC defines “targeted exclusions” as “an employer policy or practice of excluding individuals from particular positions for specified criminal conduct with a defined time period, as guided by the Green factors.”

The “Green” factors were set out in 1977 in a three-judge panel decision of the Eighth Circuit Court of Appeals, Green v. Missouri Pacific Railroad. The Green factors are 1) the nature and gravity of the offense; 2) the time passed since the offense and/or completion of the sentence; and 3) the nature of the job held or sought.

The EEOC, as is true of many other federal agencies, has broad investigative powers. The EEOC’s 2012 Guidance states that the agency may investigate a charge in light of its national data on disparate impact and consider contrary data provided by employers. In the context of litigation, however, existing disparate impact case law requires a plaintiff to bear the initial burden of proof.

The EEOC held two public meetings prior to the publication of the 2012 Guidance. At the public meeting in November 2008 the EEOC invited eight speakers–six in favor of its views and two opposed. In July 2011, the EEOC held another public meeting to which ten speakers were invited, eight generally supporting the EEOC’s stated views,37 and two possibly somewhat equivocal.38 The law does not require, and the EEOC did not provide, a draft of the new guidance to meeting speakers or the public on either occasion, nor did it provide a draft at any time before the guidance was issued. The EEOC received approximately 300 written public comments for the 2011 meeting, many from ex-offenders and advocacy organizations supporting limits on using criminal histories, many from individuals, groups and businesses opposing restrictions on use or the elimination of background checks. The EEOC did not respond publicly to comments or speaker testimony but says it considered them in its deliberations, and in fact, the new guidance does not forbid or restrict employers from obtaining background checks.

The 2012 Guidance is couched largely in a series of factual examples followed by “best practices,” rather than commands. In the briefing, EEOC speaker Carol Miaskoff stated categorically that it does not require individualized consideration, although the 2012 Guidance could reasonably be read as strongly recommending this approach. The text states that Title VII “does not necessarily require individualized assessment in all circumstances …the use of a screen that does not include individualized assessment is more likely to violate Title VII … [and] the use of individualized assessments can help employers avoid Title VII liability…” Employer counsel at the briefing clearly viewed this warning to mean that any use of criminal history for a protected class member without individual assessment was presumptively illegal and in fact they would be highly vulnerable to suit, an impression contrary to what the EEOC says it intended.

Once a claim is brought against an employer, the 2012 Guidance provides that the employer may defend against the charge by showing that its policy does not cause a disparate impact, using local conviction rates for blacks or Hispanics and/or its own job application data. The Guidance allows the EEOC to reject the showing, however, if it concludes that some applicants who might be in the applicant pool have been discouraged from applying because of the employer’s reputation in the community. The Guidance does not indicate the method of assessment, which potentially complicates the employer’s efforts to comply.

The employer may also defend against the charge by demonstrating that its policy or practice is job-related for the position in question and consistent with business necessity. The EEOC believes there are two established legal or evidentiary criteria for successfully making such demonstration. One is the formal validation for each specific job under the rarely used 1978 Uniform Guidelines on Employee Selection Procedures mentioned above and the other is the creation and use of a specific analysis for each job description that considers the “Green” factors and an individualized assessment. The 2012 Guidance does not address or acknowledge the practical difficulties of performing individualized assessments in largescale hiring by an employer.

The new guidance emphasizes individualized assessment in part because it asserts that former offenders pose risks that are overestimated by employers, particularly as the years pass with no further convictions. Speakers and advocacy groups at the briefing who work with former offenders supported this view, and gave examples of States in agreement that have passed laws restricting the use of criminal histories after a certain number of years without recidivism, and the groups’ own successes placing ex-offenders they screen who become valued employees.