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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.

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

Sunday, July 1st, 2018

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

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

√ In federally-assisted programs and activities.

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

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

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

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

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

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

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

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

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

√ In the workplace.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

About Seena Foster

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

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

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

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

Thursday, June 28th, 2018

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

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!

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

Saturday, May 5th, 2018

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

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

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

√ “Religious belief or practice” defined

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

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

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

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

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

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

√ Essential eligibility requirements must be met

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

√ Common religious-based accommodation requests

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

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

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

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

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

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

√ Communication is a must

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

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

√ Avoid discriminatory consideration of requests

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

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

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

√ “Undue hardship”

● Defined

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

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

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

● Not established, examples of

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

● Factors to consider

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

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

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

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

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

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

29 C.F.R. § 37.6(a).

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

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

. . .

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

29 C.F.R. § 37.6(b)(3).

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

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

√ Religious accommodation in the workplace; some considerations

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

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

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

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

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

√ Conclusion

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

About Seena Foster

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

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

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

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

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.

OFCCP Posts VEVRAA Benchmark Database and User Instructions

Friday, March 21st, 2014

OFCCP posted the Benchmark Database required by the new regulations implementing the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA). Federal contractors use the VEVRAA Benchmark Database when establishing a hiring benchmark for protected veterans as required by 41 CFR 60-300.45 of the new regulations. The database includes the annual national percentage of veterans in the civilian labor force for contractors that choose to use this number as their benchmark. It also includes data on the percentage of veterans in the labor force in each State and the number of veterans who participate in each State’s employment service, for use by those contractors choosing to develop an individualized benchmark.

To help contractors use this database, OFCCP provides detailed user instructions and examples illustrating how a contractor could use the database to set an individualized VEVRAA benchmark.

You can access the VEVRAA Benchmark Database through OFCCP’s Web site at http://www.dol-esa.gov/errd/VEVRAA.jsp.

Civil Rights News From Secretary Duncan and the U.S. Department of Education

Friday, March 21st, 2014

Friend,

Equity – the push to ensure strong educational opportunity for every student – drives everything we do at the U.S. Department of Education, and particularly in the Office for Civil Rights. From preschool enrollment to college attendance and completion, our office’s work is grounded in the belief that all students, regardless of race, gender, disability, or age, need a high-quality education to be successful.

Yet despite the gains we’ve made as a country, too many students are not receiving the education they deserve, and it is our collective duty to change that. Data is crucial to this work and helps us understand the extent of educational inequity throughout the U.S. and make informed decisions for action.

Since 1968, the Civil Rights Data Collection (CRDC), formerly the Elementary and Secondary School Survey, has collected data on key education and civil rights issues in our nation’s public schools. Our office uses this data to focus our equity efforts and monitor the effectiveness of our programs. Earlier today we released new data from the 2011-12 collection, and for the first time since 2000, we collected data from every public school in the nation. This newest collection also includes data on preschool suspensions and expulsions for the first time as well.

Below are five striking new facts from the 2011-12 CRDC collection:

Access to preschool is not a reality for much of the country. About 40 percent of public school districts do not offer preschool, and where it is available, it is mostly part-day only. Of the school districts that operate public preschool programs, barely half are available to all students within the district.

Suspension of preschool children. Black students represent 18 percent of preschool enrollment but 42 percent of preschool students suspended once, and 48 percent of the preschool students suspended more than once.

Access to courses necessary for college is inequitably distributed. Eighty-one percent of Asian-American high school students and 71 percent of white high school students attend high schools where the full range of math and science courses are offered (Algebra I, geometry, Algebra II, calculus, biology, chemistry, physics). However, fewer than half of American Indian and Native-Alaskan high school students have access to the full range of math and science courses in their high schools. Black students (57 percent), Latino students (67 percent), students with disabilities (63 percent), and English learner students (65 percent) also have diminished access to the full range of courses.

Access to college counselors is uneven. Nationwide, one in five high schools lacks a school counselor.

Disparities in high school retention. Twelve percent of black students are retained in grade nine – about double the rate that all students are retained (six percent). Additionally, students with disabilities served by IDEA and English learners make up 12 percent and five percent of high school enrollment, respectively, but 19 percent and 11 percent of students held back or retained a year, respectively.

Learn more about the CRDC at ocrdata.ed.gov.

Colorado Department of Labor & Employment signs agreement with US Labor Department to improve services to persons with disabilities

Monday, March 17th, 2014

The following U.S. Department of Labor news release was issued on March 11, 2014. For more information, go to http://www.dol.gov/opa/media/press/oasam/OASAM20132494.htm.

WASHINGTON — The U.S. Department of Labor announced today that it has entered into a conciliation agreement to address allegations of disability discrimination by a person with hearing impairments against the Colorado Department of Labor & Employment. The U.S. Labor Department’s Civil Rights Center investigated allegations that a complainant with a profound hearing loss was denied communication services by Colorado’s unemployment insurance program by not providing a qualified American Sign Language interpreter. Based on a review of state processes, CRC determined that the program violated Section 188 of the Workforce Investment Act of 1998 and Title II of the Americans with Disabilities Act. The conciliation agreement covers the findings in CRC’s determination, as well as a later allegation by the same individual that CDLE’s workers’ compensation program had also not provided a qualified American Sign Language interpreter. By entering into the conciliation agreement, CDLE demonstrates its commitment to equal opportunity for persons with disabilities.

“We acknowledge the Colorado Department of Labor & Employment’s commitment to nondiscrimination and its willingness to address these allegations affirmatively and cooperatively,” said CRC Director Naomi M. Barry-Pérez. “CDLE began reviewing its procedures in 2011 following the individual’s complaint and recently has expanded its review to all of its divisions as a demonstration of its commitment to equal opportunity for customers with disabilities. CRC will continue to actively investigate complaints and resolve allegations of discrimination, ensuring there is equal opportunity for all people in programs that fall under our authority.”

Under the agreement, CDLE will:

establish policies for responding to requests for communication services and reasonable accommodations/modifications from people with disabilities;
formally evaluate the policies, practices and procedures of its unemployment insurance and workers’ compensation programs, and eliminate any barriers for people with disabilities that the evaluation identifies;
train CDLE staff about disability-related obligations and issues; and
conduct outreach to disability advocacy groups.

CRC enforces nondiscrimination laws that apply to recipients of financial assistance from the US Labor Department and, in some circumstances, from other federal departments and agencies. It also enforces ADA Title II as that law applies to state and local governments and other public entities that operate programs and activities related to labor and the workforce. For more information about CRC, call 202-693-6500 (voice) or 800-877-8339 (relay), or visit CRC’s website. Additional information about disability-related issues is available at http://www.disability.gov.

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

Friday, March 14th, 2014

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

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

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

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

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

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

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

HUD Announces $120 Million for Housing for People with Disabilities

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

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

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

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

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

EEOC’s Fact Sheet on Religious Garb and Grooming in the Workplace: Rights and Responsibilities (March 6, 2014)

Tuesday, March 11th, 2014

This fact sheet provides basic information about how federal employment discrimination law applies to religious dress and grooming practices. A full-length question-and-answer guide is available at http://www.eeoc.gov/eeoc/publications/qa_religious_garb_grooming.cfm.

In most instances, employers covered by Title VII of the Civil Rights Act of 1964 must make exceptions to their usual rules or preferences to permit applicants and employees to follow religious dress and grooming practices. Examples of religious dress and grooming practices may include: wearing religious clothing or articles (e.g., a Christian cross, a Muslim hijab (headscarf), a Sikh turban, a Sikh kirpan (symbolic miniature sword)); observing a religious prohibition against wearing certain garments (e.g., a Muslim, Pentecostal Christian, or Orthodox Jewish woman’s practice of wearing modest clothing, and of not wearing pants or short skirts); or adhering to shaving or hair length observances (e.g., Sikh uncut hair and beard, Rastafarian dreadlocks, or Jewish peyes (sidelocks)).

Title VII prohibits disparate treatment based on religious belief or practice, or lack thereof. With the exception of employers that are religious organizations as defined under Title VII, an employer must not exclude someone from a job based on discriminatory religious preferences, whether its own or those of customers, clients, or co-workers. Title VII also prohibits discrimination against people because they have no religious beliefs. Customer preference is not a defense to a claim of discrimination.

Title VII also prohibits workplace or job segregation based on religion (including religious garb and grooming practices), such as assigning an employee to a non-customer contact position because of actual or assumed customer preference.

Title VII requires an employer, once on notice that a religious accommodation is needed for sincerely held religious beliefs or practices, to make an exception to dress and grooming requirements or preferences, unless it would pose an undue hardship.

Requiring an employee’s religious garb, marking, or article of faith to be covered is not a reasonable accommodation if that would violate the employee’s religious beliefs.

An employer may bar an employee’s religious dress or grooming practice based on workplace safety, security, or health concerns only if the circumstances actually pose an undue hardship on the operation of the business, and not because the employer simply assumes that the accommodation would pose an undue hardship.

When an exception is made as a religious accommodation, the employer may still refuse to allow exceptions sought by other employees for secular reasons.
Neither co-worker disgruntlement nor customer preference constitutes undue hardship.

It is advisable in all instances for employers to make a case-by-case determination of any requested religious exceptions, and to train managers accordingly.

Title VII prohibits retaliation by an employer because an individual has engaged in protected activity under the statute, which includes requesting religious accommodation. Protected activity may also include opposing a practice the employee reasonably believes is made unlawful by one of the employment discrimination statutes, or filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the statute.

Title VII prohibits workplace harassment based on religion, which may occur when an employee is required or coerced to abandon, alter, or adopt a religious practice as a condition of employment, or for example, when an employee is subjected to unwelcome remarks or conduct based on religion.
To locate the EEOC office in your area regarding questions or to file a charge of discrimination within applicable time deadlines, call toll free 1-800-669-4000 or 1-800-669-6820 (TTY) for more information. Federal sector applicants and employees should contact the EEO office of the agency responsible for the alleged discrimination to initiate EEO counseling. For more details, see “How to File a Charge of Employment Discrimination,” http://www.eeoc.gov/employees/charge.cfm.

In addition to Title VII’s prohibitions on religious, race, color, national origin, and sex discrimination, the EEOC enforces federal statutes that prohibit employment discrimination based on age, disability, or genetic information of applicants or employees. You may contact the EEOC with questions about effective workplace policies that can help prevent discrimination, or with more specialized questions, by calling 1-800-669-4000 (TTY 1-800-669-6820), or sending written inquiries to: Equal Employment Opportunity Commission, Office of Legal Counsel, 131 M Street, NE, Washington, D.C. 20507.