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Collecting, Using, Storing, and Disclosing Medical Information: Federal Civil Rights Laws and HIPAA by Seena Foster

Saturday, December 1st, 2018

Very few of us would find it acceptable for our medical information to be shared with anyone who asks for it. In fact, most of us prefer that such information remain private and confidential. We are not interested in other people assessing our mental and/or physical health, nor do we want to be the victims of discrimination based on what others think they know about us.

For purposes of this paper, we are going to take a general look at the intersection of federal civil rights laws requiring nondiscrimination on the basis of disability (along with collection of disability-related data) on the one hand, and the right to medical confidentiality and privacy under the Health Insurance Portability and Accountability Act (HIPAA) on the other hand. Although many concepts discussed here apply to our workplaces, we are going to focus on the use of medical or disability-related information in the delivery of federally-assisted programs and activities.

As the equal opportunity (EO) professional for an agency, company, or organization operating federally-assisted programs and activities, you must know when you are entitled to collect medical information, how you use this information once you have it, where you store such information, and under what circumstances you disclose the information. Although the concepts discussed in this article may be applied to federally-assisted programs and activities across-the-board, for purposes of providing examples, we are going to focus on the delivery of U.S. Department of Labor-funded workforce development programs and activities governed by Section 188 of the Workforce Investment Act.

√ Origins of data collection under federal civil rights laws

To set the stage for data collection under federal civil rights laws, we’ll start with Title VI of the Civil Rights Act of 1964 (Title VI). This was an impressive piece of legislation mandating nondiscrimination on the bases of race, color, and national origin in the delivery of federally-assisted programs and activities. And, companion legislation at Title VII of the Civil Rights Act of 1964 (Title VII) prohibited discrimination on the bases of race, color, and national origin in our employment practices. Data collection was an important component of these federal laws.

For example, U.S. Department of Labor (DOL) regulations implementing Title VI at 29 C.F.R. § 31.6(b) require, in part, the following:

In general, recipients should have available for the department racial and ethnic data showing the extent to which members of minority groups are beneficiaries of federally assisted programs.

29 C.F.R. § 31.6(b). The main purpose for this data collection is to measure a recipient’s performance and compliance with Title VI as it delivers federally-assisted training, aid, benefits, and services to its public.

For example, an American Job Network center is located in an area where 85 percent of the population is Hispanic, but the center’s data reveals that only 15 percent of persons it serves are Hispanic. This disparity may mean prohibited national origin-based discrimination has occurred at the center, thus signaling a need for the center to strengthen and expand its outreach in the community in addition to taking other actions.

As another example, data reveals that 80 percent of black persons are referred by the center to higher paying jobs with a local company, whereas only 20 percent of similarly-qualified white persons are referred to these higher paying jobs. Here, data collected indicates that the center engaged in discriminatory referral of applicants on the bases of race and/or color in violation of Title VI.

√ Disability-related civil rights laws

Federal disability-related nondiscrimination laws first surfaced in 1973 with enactment of the Rehabilitation Act. This statute prohibiting disability-related discrimination contained provisions that applied both to the delivery of federally-assisted programs and activities as well as to our employment practices. Again, certain data collection requirements were put in place. For example, in DOL-funded programs, 29 C.F.R. § 32.44(b) requires:

. . . recipients should have available for the Department data showing the extent to which known handicapped individuals are beneficiaries and participants in federally assisted programs or activities.

29 C.F.R. § 32.44(b). Likewise, the ADA and ADAAA, enacted in 1990 and 2008, respectively, expanded disability-related nondiscrimination requirements.

And, Section 188 of the Workforce Investment Act of 1998 (WIA), which applies to the delivery of a variety of workforce development programs and activities, contains enhanced protections for persons with disabilities. Specifically, this statute requires nondiscrimination and equal opportunity for persons with disabilities.

Again, collection of disability-related or medical data under these statutes is designed to gauge compliance with their nondiscrimination requirements. On the flip side, however, federal authorities do not want this information to be used to engage in the very form of discrimination prohibited by these laws. Here, we are going to focus on the important requirements for gathering, using, storing, and disclosing medical and disability-related information in the context of delivering federally-assisted workforce development programs and activities.

√ Gathering medical or disability-related information

Using federally-assisted workforce development programs and activities as the backdrop for our discussion, DOL’s regulations implementing WIA Section 188 set forth certain data collection and reporting requirements as follows:

Each recipient must record the race/ethnicity, sex, age, and where known, disability status of every applicant, registrant, eligible applicant/registrant, participant, terminee, applicant for employment, and employee.

29 C.F.R. § 37.37(b)(2). The Labor Department’s Civil Rights Center emphasizes that, prior to asking any medical or disability-related questions, you must notify the individual of the following:

● providing the information is voluntary;
● the information will be kept confidential as provided by law;
● refusal to provide the information will not subject the individual to any adverse treatment; and
● the information will be used only in accordance with the law.

Keep in mind that gathering such information in connection with employment-related activities (such as referral for job training, or job placement) generally is illegal. But, for service-related activities (such as determining eligibility for unemployment insurance benefits), you have more discretion in gathering medical or disability-related information to determine whether an individual meets the “essential eligibility requirements” for your program or activity, or to determine whether the individual meets the requirements to participate in a “targeted” program or activity, or to determine the appropriate accommodation needed to allow the individual to participate in a program or activity.

√ Storing medical or disability-related information

Regardless of the circumstances under which you acquire medical or disability-related information, storing this information in an unsecured location, or sharing it without limitation, leaves the individual with a disability particularly susceptible to discrimination, and this conduct is prohibited by federal law. For example, regulations implementing WIA Section 188 provide the following:

Such information must be stored in a manner that ensures confidentiality and must be used only for the purposes of recordkeeping and reporting; determining eligibility, where appropriate, for WIA Title I-financially assisted programs or activities; determining the extent to which the recipient is operating its WIA Title I-financially assisted program or activity in a nondiscriminatory manner, or other use authorized by law.

29 C.F.R. § 37.37(b)(2).

Consequently, as the EO professional for your agency, company, or organization, it is highly-recommended that you keep all medical information obtained in conjunction with a reasonable accommodation request, or in conjunction with determining whether an individual meets the essential eligibility requirements for a particular service, aid, training, or benefit, in a folder that is completely separate from your program file on the individual. Moreover, the separate folder containing medical information should be in a secure location. This means that paper medical records would be kept in a locked drawer or locked filing cabinet with very limited access. Electronic medical information should be password protected and/or encrypted and, again, with very limited access. Any employee of the recipient with access to these records must understand that s/he is strictly bound to adhere to confidentiality requirements pertaining to the records. Finally, you should review your agency’s or organization’s policies for time limits on storing such information—you will not keep an individual’s medical information indefinitely.

Look at the Methods of Administration for your state or territory to determine how you should handle confidential medical information. You also may seek guidance from your state EO leadership, or from the civil rights office of the federal funding agency.

Keep in mind that the same confidentiality requirements are imposed on employers with regard to their employees. Namely, EEO/AA/HR professionals must ensure that all medical information pertaining to an employee is kept in a folder that is separate from the employee’s personnel record. And, the medical information folder must be kept confidential and secure. Look to the U.S. Equal Employment Opportunities Commission at www.eeoc.gov for additional guidance in the context of the workplace. And, for special considerations applicable to federal contractors and subcontractors, look for guidance from the Labor Department’s Office of Federal Contract Compliance Programs (OFCCP) at www.dol.gov/ofccp.

√ Using medical or disability-related information

As previously noted, for your employment-related activities, the permitted uses of this information is very narrow. For example, as a job referral counsellor, it is illegal to “steer” a person with a disability to a particular job; rather, each person with a disability is entitled to individualized treatment. For service-related activities, on the other hand, medical or disability-related information may be used to assess reasonable accommodations, or to determine whether the individual meets the “essential eligibility requirements” to participate in a particular program or activity.

√ Disclosing medical or disability-related information

Confidentiality of medical and disability-related information is of paramount importance whether in the delivery of federally-assisted programs and activities, or in the workplace. Disclosure of such information must be made under extremely limited conditions. Some examples in federally-assisted workforce development programs may include disclosure to a training provider only to explain reasonable accommodation, or disclosure to first aid or safety personnel only if the condition may require emergency treatment.

As with gathering, storing, and using medical or disability-related information, it is critical to have written policies and procedures in place addressing the limited circumstances under which such information may be disclosed. If you need assistance with the development of such procedures, you may contact us at info@titleviconsulting.com.

√ Understanding the role of HIPAA

HIPAA is not a federal civil rights law; rather, it is a health information privacy law. This law gives the individual control over who may review or receive his or her mental and/or physical health information, and it gives the individual certain rights over this information.

The interplay between a privacy law, like HIPAA, and a civil rights law is best demonstrated by example. For this purpose, we’ll look at a scenario arising under WIA Section 188. As previously noted, WIA Section 188 prohibits discrimination in federally-funded programs and activities on a wide variety of bases, including disability. Some examples of recipients operating WIA-related programs and activities are American Job Network centers offering employment referral services, training, and unemployment insurance benefits as well as Job Corps Centers offering educational programs and activities designed to enhance employability of youth.

You are the EO Officer for a Job Corps Center. Sam asserts that he is a person with a visual impairment, and he requests reasonable accommodation by way of enhanced computer technology to enable him to participate in your educational programs. Sam wears glasses and sometimes uses a stick when he walks. In order to determine the appropriate accommodation, you request medical documentation.

HIPAA prohibits you from accessing Sam’s medical documentation directly from his health care providers. Rather, Sam must authorize the providers to release whatever medical information he desires for you to review. For your part, you will request only medical information from Sam that is necessary to make a decision on the appropriate accommodation for Sam.

Now, once Sam’s medical documentation is in your hands, the federal civil rights law, WIA Section 188, prohibits discrimination against Sam based on this information. Moreover, this statute limits your use and disclosure of this information, and it requires that you ensure confidentiality of this information; that is, you must keep this information in a file that is separate from Sam’s student or participant file. Moreover, the medical file must be kept in a secured location with limited access.

√ 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 seena@titleviconsulting.com, or visit her web site at www.titleviconsulting.com for additional information regarding the services and resources she offers.

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

With a passion for ensuring nondiscrimination and equal opportunity in the delivery of federally-assisted programs and activities, Ms. Foster remains highly active in the field through her series of on-demand webcasts for equal opportunity professionals as well as through her mediation services, training, and assistance developing policies and procedures designed to ensure compliance with applicable federal civil rights laws. Her training in the areas of compliance and complaint investigations has been described as “dynamic,” “hitting the nail on the head,” “well-organized,” and “informative.” And, her award-winning book on conducting discrimination complaint investigations is viewed as “eye-opening” and “the best on the market.” 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 of Alexandria, Virginia, Ms. Foster volunteers at Carpenter’s Shelter, and serves on its Development Committee and Major Donors and Partners Subcommittee. In addition, Ms. Foster serves on Alexandria’s Economic Opportunities Commission, 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.”

Ms. Foster is a member of the Discrimination Law and Human Rights Law Committees of the International Bar Association. Finally, 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.

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

Thursday, November 15th, 2018

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

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

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

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

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

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

I. Background

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

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

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

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

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

II. Citations and scope of applicability

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

U.S. Equal Employment Opportunity Commission (EEOC)

    Guidance reference:

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

    Applies to:

All private sector employers with 15 or more employees

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

    Guidance reference:

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

    Applies to:

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

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

    Guidance reference:

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

    Applies to:

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

III. Policies of the agencies

    EEOC

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

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

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

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

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

    OFCCP

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

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

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

    ETA and CRC

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

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

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

IV. “Illegal” practices

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

    EEOC

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

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

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

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

    OFCCP

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

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

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

    ETA and CRC

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

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

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

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

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

V. “Best practices”

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

    EEOC

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

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

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

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

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

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

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

    OFCCP

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

    ETA and CRC

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

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

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

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

● Confidentiality is important. Same as the EEOC.

About the author.

Seena Foster, award-winning civil rights author and Partner of the discrimination consulting firm, Title VI Consulting, LLP in Alexandria, Virginia, provides expertise and guidance in the areas of compliance and civil rights investigations to state and local governments, colleges and universities, private companies, and non-profit organizations. To that end, she offers one hour Webinars, full-day and half-day in-person training sessions, and mediation services addressing a variety of types of discrimination such as racial discrimination, sex discrimination, disability discrimination, age discrimination, and religious discrimination. Ms. Foster also offers highly-popular procedures-writing services, such as assisting you in developing discrimination complaint procedures, procedures for serving limited English proficient individuals, procedures for serving persons with disabilities, and procedures for gathering, handling, and storing medical information to name a few. The federal law on discrimination is complex and affects our workplaces as well as the delivery of our federally-assisted programs and activities. Her book, Civil Rights Investigations Under the Workforce Investment Act and Other Title VI Related Laws: From Intake to Final Determination, has been described as an “eye-opening” reading experience and a “stand-alone” training resource. Ms. Foster’s resources and materials are designed to support the work of civil rights and discrimination professionals in the public and private sectors. You may contact her through www.titleviconsulting.com.

Investigating Pregnancy-Related Discrimination Complaints by Seena Foster

Friday, November 2nd, 2018

This is an informational paper to assist equal opportunity professionals, and human resource professionals, better understand the differences in disability-based and gender-based discrimination complaints. Given the length of the paper, you may find it useful to download and save in your resource library.

TABLE OF CONTENTS:

An overview

I. Federal laws and pregnancy

A. Disability-related laws

1. In federally-assisted programs and in the workplace

2. Additional considerations in the workplace: The FMLA and an employer’s leave policies

B. Gender-related laws

1. In federally-assisted programs

2. In the workplace

II. When to apply disability laws

A. In federally-assisted programs

B. In the workplace

III. When to apply gender laws

A. In federally-assisted programs

B. In the workplace

IV. About Seena Foster

________________________________________________________________

An overview

As the HR/EEO professional for your organization, you receive a complaint from an employee alleging that she was denied access to a workplace training program because she took sick leave, and requested leave under the Family Medical Leave Act (FMLA), for pregnancy-related complications. Or, she was denied access to the training program because her supervisor overheard her say she wanted to “start a family soon.”

Or, you serve as the EO professional for an organization operating federally-assisted programs and activities, and a woman files a discrimination complaint alleging that her application to enroll in an educational program was wrongfully denied because she has medical complications from her pregnancy. Or, she alleges her enrollment application was denied because she’s been pregnant twice over the past three years.

How do you investigate these complaints? Depending on the circumstances giving rise to the adverse action at issue, you’ll investigate the complaint as either a disability-based discrimination complaint, or as a gender-based complaint. How you decide this will, in turn, dictate the information you gather and the remedies (if any) you offer.

This paper is designed to help you understand how to identify the type of complaint you have, and what information you’ll need to gather during the investigation.

I. Federal laws and pregnancy

A. Disability-related rights laws

1. In federally-assisted programs and in the workplace

When we talk about disability-related civil rights laws, we are referring to the Rehabilitation Act of 1973, the Americans With Disabilities Act of 1990 (ADA), and the Americans With Disabilities Act Amendments Act of 2008 (ADAAA). Importantly, these laws apply both to workplace discrimination complaints as well as to discrimination complaints arising in federally-assisted programs and activities.

Generally speaking, under these laws, “disability” is defined as a mental or physical condition that “substantially limits” one or more major life activities. Disabilities that are both (1) minor, and (2) transient or temporary (such as having a cold), do not meet the definition of “disability” for purposes of the Rehabilitation Act, ADA, and ADAAA.

2. Additional considerations in the workplace: The FMLA and an employer’s leave policies

In addition to the Rehabilitation Act, and the ADA, the Family and Medical Leave Act applies to the workplace. Often, this law is mistakenly thought of as a civil rights law. The FMLA is not a civil rights law, but it was enacted in response to civil rights concerns in the workplace.

Generally speaking, the FMLA provides that, for certain family or medical reasons, an employee of at least one years’ duration may take up to 12 weeks of unpaid, job-protected leave in a 12 month period. These reasons include birth and care of a newborn child, absence due to pregnancy complications, adopting a child or becoming a foster care parent, caring for an immediate family member with a serious health condition, or taking medical leave due to the employee’s inability to work because of a serious health condition.

As noted by the United States Supreme Court in Coleman v. Court of Appeals of Maryland (Mar. 20, 2012):

In enacting the FMLA, Congress relied on evidence of a well-documented pattern of sex-based discrimination in family-leave policies that granted longer periods of leave to women than to men.

Therefore, the FMLA is designed to provide a consistent set of unpaid leave policies to be applied to employees across the board, regardless of gender.

And, the Equal Economic Opportunities Commission offers the following guidance:

An employer may not single out pregnancy-related conditions for special procedures to determine an employee’s ability to work. However, if an employer requires its employees to submit a doctor’s statement concerning their ability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy-related conditions to submit such statements.

Further, under the Family and Medical Leave Act (FMLA) of 1993, a new parent (including foster and adoptive parents) may be eligible for 12 weeks of leave (unpaid or paid if the employee has earned or accrued it) that may be used for care of the new child. To be eligible, the employee must have worked for the employer for 12 months prior to taking the leave and the employer must have a specified number of employees.

Turning to your organization’s leave policies and procedures, it is important to understand these policies are in place for a reason.

As we see from the history behind Congress’ enactments of the FMLA and the PDA, employers must establish leave policies and procedures (sick, annual, FMLA, and so on) that apply to employees across the board, and managers and supervisors must be consistent in their application of these policies and procedures. So, while these policies are not civil rights laws, deviation from established policies and procedures, or discriminatory policies and procedures established by the employer, renders an organization vulnerable to civil rights discrimination complaints on any covered basis (race, color, national origin, gender, religion, disability, age).

B. Gender-related laws

Sometimes, a pregnancy-related discrimination complaint does not involve disabling physical complications or medical restrictions related to the pregnancy. These complaints would be investigated as gender-based discrimination complaints. Why?

The answer is only women are capable of pregnancy and childbirth. So, let’s take a look at the gender-based civil rights laws that may apply to the complaint filed with you.

1. In federally-assisted programs and activities

There are a number of federal laws that prohibit gender-based discrimination in the delivery of federally-assisted aid, training, benefits, and services. As an example, Section 188 of the Workforce Investment Act prohibits discrimination on the basis of gender in federally-assisted operations, such as job referral activities at our Nation’s job banks, delivery of unemployment insurance benefits, and selection of individuals for training, apprenticeship, and certification programs.

As another example, Title IX of the Education Amendments Act (Title IX) prohibits gender-based discrimination in educational programs and activities, regardless of which federal agency provides the funding. And, the U.S. Department of Education (Education) provides excellent guidance for handling pregnancy-related discrimination issues under Title IX. Notably, unless a complaint alleges discrimination based on disabling medical or physical complications, a pregnancy-related discrimination complaint is a complaint alleging discrimination on the basis of gender. Education’s guidance states the following:

[T]he Title IX regulation at 34 C.F.R. § 106.40(a) prohibits recipients from applying ‘any rule concerning a student’s actual or potential parental, family or marital status which treats students differently on the basis of sex.’ The regulation also states, in part, the following:

A recipient shall not discriminate against any student, or exclude any student from its education program or activity, including any class or extracurricular activity, on the basis of such student’s pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery therefrom, unless the student requests voluntarily to participate in a separate portion of the program or activity of the recipient. 34 C.F.R. § 106.40(b)(l).
In addition, the Title IX regulation states that, in providing financial assistance to any of its students, a recipient shall not ‘apply any rule or assist in application of any rule concerning eligibility for such assistance which treats persons of one sex differently from persons of the other sex with regard to marital or parental status.’ (See 34 C.F.R. § 106.37(a)(3)).

This differs from Education’s disability-related guidance:

Although pregnant students may be required to obtain a physician’s certification of fitness to continue in the regular education program or activity, a recipient may do so only if it requires such a certification from all students for other physical or emotional conditions requiring the attention of a physician. (See 34 C.F.R. § 106.40(b)(2)). In fact, the Title IX regulation instructs recipients to treat pregnancy or childbirth in the same manner and under the same policies as any temporary disability. (See 34 C.F.R. § 106.40(b)(4)).

This is consistent with how pregnancy-related complaints should be approached in other federally-assisted programs and activities. So, unless the complaint alleges discrimination based on disabling medical complications or restrictions, the pregnancy-related complaint is investigated as alleged gender-based discrimination.

2. In the workplace

Title VII of the Civil Rights Act of 1964 (Title VII) prohibits gender-based discrimination. However, confusion arose regarding how to process pregnancy-related complaints. As a result, Congress sought to clarify that pregnancy-related discrimination complaints in the workplace generally are investigated as alleging discrimination on the basis of gender. To that end, the Pregnancy Discrimination Act (PDA) amended Title VII of the Civil Rights Act to include pregnancy-related complaints under the penumbra of gender-based discrimination.

As noted by the United States Supreme Court in California Federal Savings and Loan Assoc. v. Guerra, 479 U.S. 272, 107 S. Ct. 683, 692 (1987), leading up to enactment of the PDA, “Congress had before it extensive evidence of discrimination against pregnancy,” particularly in the administration of leave policies and procedures by employers. To see the text of the PDA, to go 42 U.S.C. § 2000e.

II. When to apply disability laws

A. In federally-assisted programs and activities

Jane seeks to participate in an on-the-job training program funded by the U.S. Department of Labor. The program begins in 30 days and requires that participants be able to bend, lift, and stand for most of an eight hour day, five days a week. Jane wants to participate in the program, but provides medical documentation from her physician stating, for the next three months, she will be unable to stand for more than ten minutes, and will be unable to bend or lift anything at all. Her application to participate in the program is denied because her pregnancy-related complications prevent her from being able to start the program in 30 days. She files a complaint with you.

You will process Jane’s complaint as a disability-based discrimination complaint. Here, Jane is unable to bend or lift anything for the next three months, and can stand for only ten minutes at a time, due to her pregnancy. She has a “disability” in that her condition “substantially limits” the major life activities of bending, lifting, and standing. To that end, you will determine whether Jane meets the essential eligibility requirements to participate in the program, and whether any accommodations may be offered to Jane to allow her to participate. With regard to accommodations, you would look at the accommodations available for similarly-situated program applicants with temporary disabilities (such as a broken foot, or temporary back condition). The questions you will ask during your investigation would include:

● What are the essential eligibility requirements for participation in the program?

● Assuming, for purposes of this exercise, you find that the essential eligibility requirements include starting the program in 30 days and being able to lift, bend, and stand, you’ll need to ask, “Was Jane treated differently than anyone else (man or woman) with similar temporary limitations, such as a broken leg or the flu, seeking to participate in the training program?”

For questions in a particular complaint involving allegations of pregnancy-related discrimination, you should check with your EO leadership, or with the civil rights office of your federal funding agency for guidance.

    Tell-tale signs.

So, when reviewing a pregnancy-related discrimination complaint under disability-based nondiscrimination laws, ask yourself: Does this complaint allege denial of a federally-assisted service, aid, benefit, or training because of actual or perceived physical limitations or restrictions leading to the view that the person is disabled because of a previous, current, or potential pregnancy?

    Some examples.

Under the disability-related civil rights laws, “disability” is defined as a condition that “substantially limits and major life activity,” and there is no requirement that an impairment last a particular length of time to be considered substantially limiting (i.e. temporary disabilities may be covered). Think twice if you seek to deny services, aid, training or benefits because the applicant/participant:

● develops a disabling condition as the result of pregnancy or childbirth (such as preeclampsia requiring bed rest)
● has a record of a pregnancy-related or childbirth-related disability (such as developing gestational diabetes during a prior pregnancy)
● is regarded as having a disabling condition (such as limiting an applicant’s training or apprenticeship opportunities because you believe these positions could result in a miscarriage)

Focus on the essential eligibility requirements for the program or activity at issue, and ensure that the applicant/participant is not denied access to these programs if she meets the essential eligibility requirements. Look for accommodations that may be provided to allow participation where the applicant/participant has a temporary disability.

B. In the workplace

In the workplace, figuring out the proper way to investigate discrimination complaints often is complicated by allegations that leave requests (such as sick leave or FMLA leave) were improperly denied, or that these requests adversely affected an employment decision related to the employee. So, let’s sort out these issues in the context of pregnancy-related complaints.

The U.S. Equal Employment Opportunities Commission (EEOC) provides the following guidance:

If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer or other covered entity must treat her in the same way as it treats any other temporarily disabled employee. For example, the employer may have to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees if it does so for other temporarily disabled employees.

Additionally, impairments resulting from pregnancy (for example, gestational diabetes or preeclampsia, a condition characterized by pregnancy-induced hypertension and protein in the urine) may be disabilities under the Americans with Disabilities Act (ADA). An employer may have to provide a reasonable accommodation (such as leave or modifications that enable an employee to perform her job) for a disability related to pregnancy, absent undue hardship (significant difficulty or expense). The ADA Amendments Act of 2008 makes it much easier to show that a medical condition is a covered disability.

We’ll illustrate this point with Joan. Joan suffers from “morning sickness,” and has asked for permission to take sick leave or FMLA leave on days she feels particularly bad. Her supervisor denies both of her requests, and she files a complaint with you.

Joan has asked for sick leave or FMLA leave, and she has let you know she suffers from “morning sickness,” you will investigate this as a disabiity-based discrimination complaint. You will look at the policies and procedures pertaining to employees’ requests for the types of leave at issue here, sick and FMLA. You will ask how those policies and procedures have been applied to other employees with temporary disabilities, and whether Joan is being treated differently from any other employee in your organization, male or female, with similar temporary or transient limitations.

Let’s say that Joan directs your attention to one of her co-workers, Jane who requested, and received approval for, sick leave and FMLA leave when she broke her arm last year. Here, you are looking to see whether Joan and Jane, and any other similarly-situated co-workers with transient or temporary limitations, were treated differently with regard to consideration of their leave requests.

Determinations as to whether folks are “similarly-situated” are made on a case-by-case basis; there are no “bright line” rules. In making such determinations, you want to ensure that your leave policies and procedures are not discriminatory either in favor of, or against, pregnancy-related limitations, and that these policies and procedures are being applied consistently to all employees.

    Tell-tale signs.

So, when reviewing a pregnancy-related discrimination complaint under disability-based nondiscrimination laws, ask yourself: Does this complaint allege an adverse employment action because of actual or perceived physical limitations or restrictions leading to the view that the employee is disabled because of a previous, current, or potential pregnancy?

    Some examples.

Under the disability-related civil rights laws, “disability” is defined as a condition that “substantially limits and major life activity,” and there is no requirement that an impairment last a particular length of time to be considered substantially limiting (i.e. temporary disabilities may be covered). Think twice before you engage in an adverse employment action because the employee:

● develops a disabling condition as the result of pregnancy or childbirth (such as preeclampsia requiring bed rest)
● has a record of a pregnancy-related or childbirth-related disability (such as developing gestational diabetes during a prior pregnancy)
● is regarded as having a disabling condition (such as limiting an employee’s promotion opportunity because you believe the duties required in the position could result in a miscarriage)

Focus on the bona fide occupational requirements, and the essential job duties, and allow the employee to participate if she meets these requirements. Look for accommodations where the employee has a temporary disability due to childbirth or pregnancy, as you would for someone with a broken foot or the like.

III. When to apply gender-based laws

A. In federally-assisted programs and activities

Denial of a service, aid, benefit, or training on the basis of prior pregnancies is a violation of federal civil rights laws. For example, the case of Pegues et al. v. Mississippi State Employment Service et al., 699 F.2d 760 (5th Cir. 1983) involved denial of an employment referral in a federally-assisted workforce development program. The Mississippi State Employment Service (MSES) reviewed applications of individuals who sought employment referrals to available, higher paying jobs at a local factory. One of the female applicants (Plaintiff) alleged disparate treatment in MSES’ classification, and referral, of her and other women to lower paying positions at the local factory as compared to similarly qualified male applicants.

The court stated, to demonstrate disparate treatment in employment referral, the Plaintiff must prove: (1) she is a member of a protected group; (2) she applied for an occupation for which MSES was making referrals; (3) she failed to secure a referral; and (4) MSES later referred a non-member of the protected group.

On examination of the evidence of record, the court found: (1) the Plaintiff was a member of a protected group (women), (2) she applied for a higher paying position with the local factory, (3) her application was denied, and, (4) based on her education and experience, she “was passed over in favor of other, similarly qualified (male) applicants.” Id. at 775. The court then noted:

By way of rebuttal, Defendants elicited testimony from (Plaintiff) as to her five full term pregnancies between 1970 and 1975, and various benefits in the form of training and referral that Defendants had conferred upon her between 1968 and 1970.
Id. at 775 (emphasis added). The court rejected Defendants’ proffer of rebuttal:
Given her factory experience and enhanced education, we do not believe the reasons articulated constitute a legitimate rationale for Defendants’ failure to reconsider her service classification and provide an opportunity for employment at Travenol. She is entitled to relief.

Id. at 775. The court concluded that Plaintiff successfully established gender-based discrimination.

    Tell-tale signs.

So, when reviewing a pregnancy-related discrimination complaint under gender-based nondiscrimination laws, ask yourself: Does this complaint allege denial of a federally-assisted service, aid, benefit, or training because of the views of the agency, organization, or company involved regarding prior, current, or potential pregnancies?

    Some examples.

The following list contains pregnancy-related examples of views that may lead to gender-based discrimination in the delivery of federally-assisted programs and activities. Think twice if you seek to deny services, aid, training or benefits because the applicant/participant:

● expresses an intention to become pregnant
● is undergoing fertility treatment
● is pregnant
● has been pregnant in the past
● may become pregnant in the future
● uses contraception
● is lactating or breastfeeding
● develops a non-disabling medical condition related to pregnancy or childbirth
● has an abortion
● requests light duty work, modified tasks, or alternative assignments on a temporary basis (if available to other applicants/participants with similar temporary limitations)

B. In the workplace

An example of gender-based discrimination in the workplace is found in International Union, et al v. Johnson Controls, Inc., 499 U.S. 187, 111 S.Ct. 1196 (1991). Here, the employer had a policy that excluded women of “childbearing capacity” from holding certain “lead-exposed jobs.” Specifically at issue were certain jobs making batteries. Among the class action plaintiffs were (1) a woman “who had chosen to be sterilized in order to avoid losing her job,” and (2) a woman “who had suffered loss in compensation when she was transferred out of her job where she was exposed to lead.”

Concluding that the employer’s policy was “facially discriminatory” in violation of Title VII’s ban on gender-based discrimination, the Court noted the policy improperly “requires only a female employee to produce proof that she is not capable of reproducing.” As a result, the Court noted that the burden shifted to the employer to demonstrate that this discriminatory requirement constituted a bona fide occupational qualification (BFOQ), which the Court found was not present in the case.

Citing to the PDA, the Court stated, “Unless pregnant employees differ from others in their ability to work, they must be treated the same as other employees for all employment-related purposes.” Said differently, women who are as capable of doing their jobs as their male counterparts may not be forced “to choose between having a child and having a job.” Based on the record before it, the Supreme Court in Johnson Controls found that “[f]ertile women . . . participate in the manufacture of batteries as efficiently as anyone else” such that the employer’s policy violated Title VII’s ban on sex discrimination.

The Court made a point of stating that sex discrimination in the workplace has been allowed only under very narrow circumstances, such as definitive danger to others. The Court stressed, under these circumstances, “the safety exception is limited to instances in which sex or pregnancy actually interferes with the employee’s ability to perform the job.”

    The “safety exception” explained.

The Johnson Controls Court cited its prior opinion in Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720 (1977) to illustrate the “safety exception” to gender-based discrimination. In Dothard, it was the employer’s policy to hire only male guards at a maximum-security male penitentiary. The Court held this was permissible as “employment of a female guard would create real risks of safety to others if violence broke out because the guard was a woman.” Under the facts of that case, the Court found that “sex was related to the guard’s ability to do the job-maintaining prison security.” In Johnson Controls, the Court emphasized, “in order to qualify as a BFOQ, a job qualification must relate to the ‘essence’ . . . or to the ‘central mission of the employer’s business.’”

    Tell-tale signs.

So, when reviewing a pregnancy-related discrimination complaint under gender-based nondiscrimination laws, ask yourself: Does this complaint allege an adverse employment action because of the views of the supervisor, agency, organization, or company regarding prior, current, or potential pregnancies, and the “safety exception” does not apply?

    Some examples.

The following list contains pregnancy-related examples of views that may lead to based discrimination in the workplace in violation of Title VII. Think twice if you seek to engage in an adverse employment action because the employee:

● expresses an intention to become pregnant
● is undergoing fertility treatment
● is pregnant
● has been pregnant in the past
● is taking pregnancy or parental leave
● may become pregnant in the future
● uses contraception
● is lactating or breastfeeding
● develops a non-disabling medical condition related to pregnancy or childbirth
● has an abortion
● requests light duty work, modified tasks, or alternative assignments on a temporary basis (if available to other employees with similar temporary limitations)

IV. 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 and educational programs and activities. Her customers include state and local governments, colleges and universities, private companies, private counsel, and non-profit organizations. You may contact her at seena@titleviconsulting.com, or visit her Web site at www.titleviconsulting.com for additional information regarding the services and resources she offers.

By way of background, in 2003, Ms. Foster served as a Senior Policy Analyst to the U.S. Department of Labor’s Civil Rights Center (CRC). In that capacity, she led a team of equal opportunity specialists to conduct disability-based technical assistance reviews of One-Stop centers, and she assisted the CRC’s leadership in preparing for limited English proficiency-based compliance reviews.

Ms. Foster also analyzed and weighed witness statements and documents to prepare numerous final determinations for signature by the CRC Director, which resolved discrimination complaints under a variety of federal civil rights laws such as Title VI of the Civil Rights Act, the Age Discrimination Act, the Rehabilitation Act, the Americans with Disabilities Act, and Section 188 of the Workforce Investment Act. In 2006, Ms. Foster received the Secretary of Labor’s Equal Employment Opportunity Award in recognition of “exceptional efforts to ensure that individuals with disabilities have full access to employment and related services and benefits at the Nation’s One-Stop Career Centers.”

And, at the request of the CRC, Ms. Foster served as a popular workshop speaker at national equal opportunity forums co-sponsored by the CRC and the National Association of State Workforce Agencies. Her presentations covered topics such as the WIA Section 188 disability checklist, conducting discrimination complaint investigations and writing final determinations, and conducting investigations of allegations involving harassment and hostile environment.

With a passion for ensuring nondiscrimination and equal opportunity in the delivery of federally-assisted programs and activities, Ms. Foster’s series of on-demand webcasts for equal opportunity professionals has received rave reviews, and she offers 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,” “very relevant,” “well-organized,” and “informative.” And, her award-winning book on conducting discrimination complaint investigations is viewed as “eye-opening” and “the best on the market.” Ms. Foster is certified in “Federal Workplace Mediation” 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.

NOTICE: This paper is for informational purposes only. We do not offer legal advice. Specific questions should be directed to your legal counsel, or to the civil rights experts within your organization, agency, or company.

“Auxiliary Aids and Services Available on Request to Persons With Disabilities”

Saturday, September 15th, 2018

If you operate or administer federally funded programs and activities, or if you are a state or local government agency, federal civil rights laws require that you include the foregoing notice on all publications, broadcasts, and other communications. These federal laws are the Rehabilitation Act of 1973, the Americans With Disabilities Act of 1990, and the Americans With Disabilities Act Amendments Act of 2008. The idea here is that persons with sensory, manual, or speaking disabilities are entitled to nondiscrimination and an equal opportunity to participate in, and enjoy the benefits of, programs or activities funded by the United States government.

What are some examples of written communications that must include this notice?

The “auxiliary aids and services” notice must be included on a variety of written materials, including:

√ outreach materials
√ recruitment materials
√ orientation packets
√ brochures
√ written advertisements
√ application, registration, and enrollment forms
√ participant and employee manuals and handbooks

Take a look at the written and electronic materials that you distribute to staff, clients, and the public. Make sure these communications contain the “auxiliary aids and services” notice. An easy and inexpensive fix for written communications that do not currently provide the notice is to create computer-generated labels and affix these labels to the communications.

What does “auxiliary aids and services” involve?

Auxiliary aids and services encompass a wide variety of tools that you may use to assist persons with disabilities, including:

√ qualified readers
√ notetakers
√ taped texts
√ audio recordings
√ brailled materials
√ large print materials
√ equipment, devices, and software (such as assistive hearing devices, speech recognition software, and so on)
√ TDD/TTY or telephone relay service. Keep in mind here that any communication containing your telephone number must also include the TDD/TTY number or the number of the relay service you use. You must also make sure these numbers are operational and staff is trained regarding their use.
√ Qualified sign language interpreters

It is important to remember that any “auxiliary aid or service” must be provided at no charge to the individual with a disability.

What are your obligations to communicate to individuals with disabilities?

You have the obligation to “effectively” communicate with persons who have mobility, hearing, and visual impairments. “Effective” communication means it gets the job done. Often, this may be accomplished through use of auxiliary aids and services. And, keep in mind that:

√ You must provide persons with disabilities information as to the existence and location of accessible services, activities, and facilities; and

√ You must post the international symbol for accessibility at each primary entrance to an accessible facility. For inaccessible facilities, you must provide signage at the primary entrances, which directs folks to a location where they may obtain information about accessible facilities. See 41 C.F.R. § 101-19.6.

To whom do you have these obligations?

You are obliged to offer “auxiliary aids and services” to a variety of categories of persons with disabilities, including:

√ beneficiaries
√ registrants
√ applicants
√ eligible applicants and eligible registrants
√ participants
√ applicants for employment (for example, you may
need to provide accommodation for the interview
process, such as a qualified interpreter when
interviewing persons with hearing impairments)
√ members of the public

In determining the type of auxiliary aid or service to provide, you must give primary consideration to the request of the individual with a disability. A request for an “auxiliary aid or service” constitutes a request for reasonable accommodation or reasonable modification. Such a request must be reviewed and considered on a case-by-case basis; you cannot impose “blanket” policies or procedures. And, while you may consider “undue hardship” in providing accommodation, the process for considering a reasonable accommodation request is an interactive one and, in the end, you are obliged to provide an accommodation that is “effective.”

What are the obligations of private employers?

So far, we have focused on the obligations of entities that administer and/or operate federally funded programs and activities as well as the obligations of state and local governments with regard to persons with disabilities. Turning to private employers, the U.S. Department of Justice and the U.S. Equal Employment Opportunity Commission (EEOC) provide guidance for employers of 15 or more employees.

While private employers are not required to have the “auxiliary aids and services” notice on all their communications, these employers are prohibited by federal civil rights laws from discriminating against “qualified individuals with disabilities” with respect to the terms, conditions, and privileges of their employment. Discrimination may occur in a variety of employment practices, such as:

√ hiring and firing
√ job application procedures
√ job assignment
√ training
√ promotions
√ wages
√ benefits (including health insurance)
√ leave

A “qualified individual with a disability” is an individual who: (1) meets the bona fide occupational requirements (i.e., legitimate skill, education, and experience requirements for the job); and (2) can perform the “essential functions” of the job (otherwise defined as the core duties that are the reason for existence of the job position). The person with a disability must meet these two criteria even without accommodation to be deemed “qualified.” On the other hand, a private employer is prohibited from disqualifying this person on grounds that s/he is unable to perform marginal or incidental job functions. See also prior paper titled, “The Meaning of Disability.”

If a “qualified individual with a disability” requests accommodation, the private employer must consider the accommodation request. Accommodation requests may take the form of:

√ requesting an auxiliary aid or service as described above
√ restructuring a job
√ modifying or adjusting the work environment
√ making existing facilities accessible to, and useable by, persons with disabilities
√ modifying work schedules
√ reassigning a current employee to a vacant position for which the employee is qualified

The purpose of providing reasonable accommodation is to allow the qualified individual with a disability the opportunity to contribute fully in the workplace and enjoy the benefits and privileges of employment.

A private employer should give consideration to a person’s accommodation request, but the employer is not required to provide accommodation if it would create “undue hardship.” Under hardship is an action that constitutes “significant difficulty or expense” in relation to the size of the employer, the employer’s resources, and the nature of the employer’s operation. This may also involve health and safety concerns; specifically, the individual poses a “direct threat” to self and/or others. Accommodation requests and considerations of undue hardship must be made on a case-by-case basis.

Seena Foster is an attorney and award-winning author of “Civil Rights Investigations Under the Workforce Investment Act and Other Title VI-Related Laws: From Intake to Final Determination.” She is also a Partner with Title VI Consulting in Alexandria, VA. You may visit her website at www.titleviconsulting.com.

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

Thursday, June 28th, 2018

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

Paperback:
Cost: $19.99 per copy

Go to www.outskirtspress.com/civilrights; or

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

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

Electronic book:
Cost: $9.99 per electronic copy

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

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

About the Book

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

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

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

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

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

Reviews of the Book

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

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

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

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

Readers Favorite (5 out of 5 star ratings):

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

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

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

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

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

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

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

Elements of an Inclusive Workforce Development System

Thursday, February 15th, 2018

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

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

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

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

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

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

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

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

Communication

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

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

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

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

Access

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

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

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

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

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

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

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

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

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

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

Integration

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

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

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

I’ll give you an example.

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

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

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

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

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

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

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

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

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

Individualized treatment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Your Discrimination Complaint Log by Seena Foster

Friday, January 5th, 2018

As the Equal Opportunity professional for an agency or entity administering federally funded programs and activities, you must develop and publish discrimination complaint policies and procedures. And, as part of those procedures, you must maintain a discrimination complaint log.

In this paper, we will discuss what is included in the log (including how to distinguish between discrimination complaints and program complaints), why the log is important, whether you include complaints that are settled, dismissed, or withdrawn, and how you properly classify (and investigate) pregnancy-related complaints as well as complaints involving harassment and hostile environment.

What do I include in the log?

The U.S. Department of Justice, which oversees compliance with, and enforcement of, Title VI of the Civil Rights Act of 1964 (Title VI) and related laws, states the following:

Each federal agency shall maintain a log of Title VI complaints filed with it, and with its recipients, identifying each complainant by race, color, or national origin; the recipient; the nature of the complaint; the dates the complaint was filed and the investigation completed; the disposition; the date of disposition; and other pertinent information.

. . .

Federal agencies shall report to the Assistant Attorney General on January 1, 1977, and each six months thereafter, the receipt, nature and disposition of all such Title VI complaints.

28 C.F.R. § 42.408(d). And, directly related to your work, these regulations further provide:

Each recipient processing Title VI complaints shall be required to maintain a similar log.

28 C.F.R. § 42.408(d).

In developing and maintaining a discrimination complaint log, one of the key things to keep in mind is that not all types of complaints are recorded in this log. In particular, only those complaints alleging discrimination on a prohibited “basis” are included in this log. These are known as “discrimination complaints.” Here, you must know the civil rights laws enforced by your federal funding agency and the bases of discrimination prohibited by those laws.

On the other hand, if you receive a complaint that does not allege discrimination on a prohibited basis, you will not have jurisdiction to investigate this complaint under federal civil rights laws and the complaint would not be noted in your log. These types of complaints are known as “program complaints.”

As an example, Jane Doe files a complaint with you alleging that she was denied federally funded rental housing assistance because her income level is too high. She states that the income level requirements for the program should be lowered. Here, Jane has not alleged denial of the assistance because of race, color, national origin, gender, age, disability, or the like. Rather, she seeks adjustment of the program’s income level requirements. This is a “program complaint” and would be processed under the federal funding agency’s regulations for operating the program.

If Jane Doe alleges, however, that the black housing counselor denied Jane’s application for federally funded rental housing assistance because Jane is white, then you have a “discrimination complaint” that would be included in your log. Namely, Jane alleges denial of rental housing assistance on the basis of race/color.

Why is the complaint log important?

The complaint log is a valuable asset to you in monitoring your programs and activities to ensure compliance with Title VI and related laws. Preferably, you want to identify and resolve discrimination-related problems at your level as opposed to allowing these problems to draw the interest of your federal funding agency.

Using your complaint log, you will be able to identify instances of alleged discrimination by (1) program or activity, and (2) basis. For example, let’s say you notice an increase in complaints alleging discrimination on the basis of disability in a computer skills training program. Review of your complaint log leads you to notice that nearly all of the complaints involve denial of access to the training facility, which is located on the second floor of a building without an elevator. At this point, you have pinpointed the program or activity (computer skills training) and the basis (disability) of a trend of complaints. With this knowledge, you can approach your training folks to bring the operation of this program into compliance with federal civil rights laws, such as relocating the computer skills training program to the first floor of the building, or moving it to another building that has an elevator.

Properly maintaining your complaint log also will enable you to respond to requests for this data from your federal funding agency, Governor’s office, or the like. And, at times, federal agencies will conduct compliance reviews or desk audits to check compliance with Title VI and related laws and your organization may be selected. Inevitably, one of the key records you will be asked to produce during the review or audit is your discrimination complaint log.

Determine your federal funding agency’s requirements

Because you operate federally assisted programs and activities, you must ensure nondiscrimination and equal opportunity on the basis of race, color, and national origin in compliance with Title VI. The same holds true for the basis of disability under the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, and the Americans With Disabilities Act Amendments Act of 2008. Finally, you also must ensure nondiscrimination and equal opportunity on the basis of age under the Age Discrimination Act of 1975.

Beyond these statutes, however, many federal funding agencies will enforce additional civil rights laws. To properly develop a discrimination complaint log for your programs and activities, you must know the civil rights laws enforced by your federal funding agency.

With regard to the laws it enforces, a federal agency will have regulations located in the Code of Federal Regulations addressing requirements for developing and maintaining your discrimination complaint log. For example, if you receive Workforce Innovation and Opportunity Act (WIOA) Title I funding, regulations implemented by the U.S. Department of Labor (DOL) require that you maintain a log of complaints alleging discrimination on any one or more of the following bases:

● race
● color
● national origin
● religion
● sex
● disability
● age
● political affiliation or belief
● citizenship
● participation in a WIOA-financially assisted program or activity

Moreover, the complaint log must include:

● name and address of the complainant
● the basis of the complaint
● the date the complaint was filed
● the disposition and date disposition was issued
● “other pertinent information”

Finally, DOL regulations require that all records regarding complaints and actions taken on complaints must be maintained for a period of not less than three years from the date of resolution of the complaint. Indeed, DOL’s Civil Rights Center has developed a standardized format that it requires you to use. This standardized complaint log is found at https://www.dol.gov/oasam/programs/crc/Discrimination3.htm.

Check with the civil rights office of your federal funding agency for similar regulations and standardized complaint log information.

What if I settle the complaint informally?

You are required to enter information pertaining to any discrimination complaint filed, regardless of whether the complaint is decided on the merits, dismissed for lack of probable cause, settled (even settled “informally” or early in the process), or withdrawn.

What types of complaints must be included in the log?

All types of discrimination complaints must be included in your log. This will include individual, class action, and third party complaints. As you are aware, an individual complaint is where an individual comes to you and alleges that s/he has been discriminated against in one of your programs or activities. For example, Josh files a complaint alleging that his bid for a federally funded transportation contract was rejected because he is from Israel. This is an individual complaint alleging national origin-based discrimination.

A class action involves a group of individuals alleging similar acts of discrimination on the same basis (e.g., race, color, national origin, and so on). One example of a class action is where a group of individuals allege that they were denied entry into a federally funded apprenticeship program for welders because they are women.

Finally, there is the third party complaint. As an example, La RAZA complains that your agency only provides unemployment insurance forms in English. La RAZA states that its members cannot complete the application process because they are limited English proficient (LEP) and their native language is Spanish. So, La RAZA has not been injured directly, but is alleging that your unemployment insurance process has a discriminatory impact on an entire class of potential beneficiaries (LEP persons). While you may utilize this type of complaint to conduct monitoring or a compliance review of your the program as opposed to processing the complaint through your traditional discrimination complaint process, it is important to include it in your complaint log.

How do I classify harassment and hostile environment complaints?

When we talk about harassment or hostile environment, most of us think of sexual harassment or hostile sexual environment. However, harassment or hostile environment may occur on any prohibited basis (race, color, national origin, age, disability, and so on). As an example, one student uses Facebook to repeatedly post derogatory remarks about another student from Morocco repeatedly calling the student “terrorist” and the like. The Facebook posts have “gone viral”, and the targeted student subsequently was attacked at your school. You receive a complaint from him. This is a national origin-based hostile environment complaint and would be recorded as such in your complaint log.

And, keep in mind that hostile environment complaints usually involve a series of adverse actions alleged to have occurred because of a person’s race, color, national origin, disability, or the like. So long as a hostile environment complaint is filed within 180 days of the last adverse act, then it is timely and you may consider the entire series of adverse acts to determine whether prohibited hostile environment discrimination occurred.

How do I classify pregnancy-related complaints?

Pregnancy-related complaints often create confusion for the investigator. It is common for these types of complaints to be viewed as disability-related, but most of them are not. Complaints alleging discrimination on the basis of past, present, or the possibility of future pregnancy should be logged (and investigated) as gender-based complaints. Only if the complainant alleges discrimination based on a medical condition or disability resulting from the pregnancy would you investigate this complaint as a disability-based complaint. Pregnancy, standing alone, is not disability.

About Seena Foster

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

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

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

Ms. Foster has a “Federal Workplace Mediation” certification through the Northern Virginia Mediation Service. She is a member of the Human Rights Institute and Discrimination Law and Human Rights Law Committees of the International Bar Association. Ms. Foster received her undergraduate degree from Michigan State University, and she has a Juris Doctorate from The George Washington University Law School.

OFCCP Updates its Disability and Veterans Community Resources Database for Contractors

Friday, April 4th, 2014

On April 4, 2014, the Office of Federal Contract Compliance Programs (OFCCP) added 24 new resources to its Disability and Veterans Community Resources Directory. This database was launched in March 2014 to help contractors find qualified workers with disabilities and veterans, and to assist contractors with establishing relationships with national organizations and local community groups that have access to these workers.

Contractors, as well as others, can visit OFCCP’s updated Disability and Veterans Community Resources Directory on the OFCCP Web site at http://www.dol-esa.gov/errd/resources.html. OFCCP will add more resources to this database in the coming weeks.

Office of Disability Employment Policy Newsletter (April 4, 2014)

Friday, April 4th, 2014

For more information on any of the following articles, go to www.dol.gov/odep.

The Changing Workforce – Assistant Secretary Martinez Addresses DMEC Conference

Speaking to an audience of disability management professionals, insurance vendors and HR practitioners at the Disability Management Employer Coalition’s FMLA/ADAAA Employer Compliance Conference in Washington, DC on April 1, Assistant Secretary of Labor for Disability Employment Policy Kathy Martinez discussed disability employment and our rapidly “graying” workforce. The conference also highlighted workplace flexibility and return-to-work programs as exemplary practices that benefit workers and employers alike.

Shelly Saves the Future – The Importance of Individualized Learning Plans

The Office of Disability Employment Policy (ODEP) has created an info-comic that illustrates the benefits of having an Individualized Learning Plan (ILP) for high school students like Shelly, the star of the comic. ILPs are tools that help students explore their strengths and interests, learn how their interests are related to career options, and connect what they do in high school with college, job and career goals. In an April 2 posting on the Department of Labor’s blog site, Maria Town, policy adviser in ODEP, introduces Shelly’s story of career development.

Opening the Doors of Small Business to People with Disabilities: Moving Up the Ramp – Webinar – April 11, 11:00 AM – 12:00 PM EDT

This webinar, presented by the Employer Assistance and Resource Network, will help small businesses learn about employing people with disabilities. Topics include the lower than anticipated costs of workers’ compensation, health care and accommodations; the benefits of employing people with disabilities, including retention, productivity, attendance, safety, team performance and financial incentives; and best practices and employment strategies. The webinar will take place April 11, 11:00 AM – 12:00 PM EDT.

LEAD Center Publishes Its Quarterly “LEAD On!” E-Newsletter

LEAD On!, the LEAD Center’s quarterly e-newsletter, highlights news and innovations in employment, policy and economic advancement for adults with disabilities. The current edition features stories on the new LEAD Center/National Council for Independent Living community of practice to promote employment and economic advancement; the recently released LEAD Center Policy Roundtable report; the new Section 503 regulations that took effect March 24, and more.

What’s New with Disability.gov?

Disability.gov, the federal government website for information on disability programs and services nationwide, now offers nine “Guides to Information” to help users quickly find a variety of resources on a single topic. The subjects covered include employment, federal government grants, self-employment, housing, transportation and other topics.

Bureau of Labor Statistics Releases Youth Employment Rate Numbers for March 2014

Employment data for youth with and without disabilities is obtained from the Current Population Survey (CPS), a monthly survey of households conducted by the U.S. Census Bureau for the Bureau of Labor Statistics.

Office of Disability Employment Policy Newsletter (March 28, 2014)

Saturday, March 29th, 2014

In Pursuit of Inclusive Technology — Assistant Secretary Martinez at CSUN Conference

Hundreds of attendees at the International Technology and Persons with Disabilities Conference sponsored annually by California State University of Northridge (CSUN) gathered last week to explore the vital importance of ensuring technology is accessible to people with disabilities. Assistant Secretary of Labor for Disability Employment Policy Kathy Martinez delivered the event’s keynote address on March 20, during which she talked about the U.S. Department of Labor’s efforts to promote the development and adoption of accessible workplace technology by America’s employers, as well as the government’s use of new technologies to advance collaborative policymaking and outreach. “While I’ve certainly experienced the frustration of workplace technology that is not accessible,” said Martinez, “I’ve also seen the promise of universally designed technology that can empower all of us to excel and fully participate — at work, and in life.”

National Online Conversation for Change on Social Media Accessibility Open through April 4

Through 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 is the first in a series of three social media accessibility online events to take place over the next three months.

Online Dialogue to Help Shape the 2014 NDEAM Theme Closes March 31

The national online dialogue to share ideas for this year’s National Disability Employment Awareness Month (NDEAM) theme is coming to a close on March 31. There is still time to submit your suggestions for a theme that reminds everyone of the valuable skills and talents that people with disabilities bring to the workplace. Don’t miss your chance to contribute to the conversation!

WRP.jobs Online Job Board Open to Private Sector Employers

Private sector employers can now use WRP.jobs, a free online job board, to find pre-screened college students and recent graduates with disabilities looking for internships and permanent positions through the Workforce Recruitment Program (WRP). WRP candidates represent all majors and include graduate and law students, as well as veterans. The WRP is a government-wide program co-sponsored by the Department of Defense and the Department of Labor to increase employment of people with disabilities in the federal workforce. Through WRP.jobs, interested non-federal employers can post permanent and temporary positions and WRP students can search and apply for these positions using employers’ standard application processes. WRP.jobs is a pilot project developed through a collaboration between the Employer Assistance and Resource Network (EARN), the organization that administers the WRP program for non-federal employers, and DirectEmployers, a non-profit consortium of global employers.

OFCCP Launches New Outreach and Recruitment Database for Contractors

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) recently launched a database to help contractors find qualified workers with disabilities and veterans, and to assist contractors with establishing relationships with national organizations and local community groups that have access to these workers. Contractors, as well as others, can visit OFCCP’s Disability and Veterans Community Resources Directory on the OFCCP website. This new resource supplements the agency’s existing Employment Resources Referral Directory.

LEAD Center Releases March Policy Update — Employment, Health Care and Disability

The March 2014 issue of the LEAD Center’s Policy Update — Employment, Health Care and Disability is now available. This monthly update, created in collaboration with the Autistic Self Advocacy Network, provides policymakers, disability service professionals, individuals with disabilities and their families with information about relevant policy developments regarding Medicaid, the Affordable Care Act and related topics, with a focus on improving employment outcomes for individuals with disabilities. The March edition features stories on the President’s proposed 2015 budget, a recent webinar series hosted by ODEP, CMS and the LEAD Center, states considering private health coverage to low-income adults, a study on the benefits of Medicaid expansion for uninsured people with mental illness and Pennsylvania’s proposed Medicaid expansion.

Fall White House Internship Program — Applications Due April 13

The White House Internship Program provides a unique opportunity to gain valuable professional experience and build leadership skills. This hands-on program is designed to mentor and cultivate today’s young leaders, strengthen their understanding of the Executive Office and prepare them for future public service opportunities. The White House Internship Program’s mission is to make the “People’s House” accessible to future leaders from around the nation. The application for the Fall 2014 White House Internship Program is now open and the deadline is April 13, 2014.