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

Friday, April 20th, 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!

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

Saturday, March 10th, 2018

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

In federally-funded programs and activities

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

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

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

√     Denying aid, training, benefits, or services

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In the workplace

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

●  Termination;

●  Non-selection;

●  Non-promotion;

●  Refusal to provide accommodation or modification;

●  Harassment or hostile environment; or

●  Receipt of an adverse performance appraisal.

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

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

●  Refusal to provide training;

●  Denial of access to equipment and/or resources;

●  Denial of a security clearance;

●  Denial of paid and/or unpaid leave;

●  Exclusion from certain meetings; or

●  Imposition of dress and/or grooming requirements.

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

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

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

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

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

About Seena Foster

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

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

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

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

Elements of an Inclusive Workforce Development System

Thursday, February 15th, 2018

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

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

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

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

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

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

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

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

Communication

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

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

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

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

Access

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

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

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

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

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

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

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

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

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

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

Integration

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

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

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

I’ll give you an example.

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

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

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

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

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

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

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

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

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

Individualized treatment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, February 1st, 2018

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

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

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

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

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

    The “Equal Opportunity Is the Law” notice

Equal Opportunity Is the Law

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

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

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

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

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

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

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

 What to Do If You Believe You Have Experienced Discrimination

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

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

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

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

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

√    Initial and continuing notice required

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

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

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

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

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

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

●     recruitment brochures;

●    orientation materials and presentations;

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

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

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

    The “EEO Is the Law” notice

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

Equal Employment Opportunity is THE LAW

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

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

RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN

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

DISABILITY

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

AGE

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

SEX (WAGES)

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

GENETICS

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

RETALIATION

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

WHAT TO DO IF YOU BELIEVE DISCRIMINATION HAS OCCURRED

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

Employers Holding Federal Contracts or Subcontracts

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

RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN

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

INDIVIDUALS WITH DISABILITIES

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

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

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

RETALIATION

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

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

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

√    Comparing the notices

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

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

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

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

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

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

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

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

√    Conclusion

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

About Seena Foster

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

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

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

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

Discrimination Complaint Investigations: Focus on Controlling the Process, Not the Parties by Seena Foster

Thursday, January 25th, 2018

When a discrimination complaint is filed in a government program, or in the workplace, there are concerns regarding confidentiality, retaliation, and the threat of harm to public or professional reputations. The advent of electronic mail and a myriad of social media sites compound the complexity of these concerns. The bottom line is, you will not be able to control the actions of the parties to a discrimination complaint but, as an investigator, you can control your own actions as well as the investigative process. In this paper, we’ll discuss when and to whom you give notice of a discrimination complaint and how to maintain control over the investigative process.

For federally funded programs or activities, a discrimination complaint is filed by a Charging Party alleging denial of benefits, services, aid, or training by the Respondent on a prohibited basis (i.e. race, color, national origin, age, gender, disability, and so on). The Charging Party (CP) is a beneficiary, or potential beneficiary, of a federally funded program. The Respondents are the (1) agency or other entity operating the program, and (2) the employee acting on behalf of the agency or entity.

One example of discrimination in a government program is where a college professor gives one of his students a higher grade in exchange for sex. The student (CP) files a quid pro quo sexual harassment complaint against the college and its professor (Respondents). Another example is where the unemployment insurance counselor at a one stop career center refuses to assist persons with hearing impairments because it takes too much time. Here, the persons with hearing impairments (CPs) file a disability-based discrimination complaint against the unemployment insurance counselor and the one stop career center (Respondents).

An example of a workplace discrimination complaint is where a supervisor gives a black subordinate an adverse performance appraisal. The employee (Complainant) would file a color-based discrimination complaint against the supervisor (Respondent).

√ Determining jurisdiction

The first step for any investigator when s/he receives a discrimination complaint is determining jurisdiction. Is there authority to investigate a particular complaint? Here, the investigator is looking at things such as timeliness, apparent merit, protected class characteristics, and so on.

At this initial stage, the investigator is not determining whether the allegations are true; rather, s/he is merely figuring out whether the complaint meets certain basic jurisdictional requirements. Most often, this stage of the investigation involves communicating only with the CP or Complainant. Because the complaint has not officially been accepted for investigation, there is no need to notify the named Respondents of the complaint at this time.

Moreover, generally, if the investigator finds that s/he is without jurisdiction to investigate a complaint (i.e. it is untimely, lacks apparent merit, and the like), then written notice of that fact must be provided to the CP or Complainant, but it may not be necessary to provide the named Respondents with such notice. Check with the civil rights office of your federal funding agency for requirements applicable to you.

√ Accepting the complaint

If the investigator concludes that s/he has jurisdiction over the complaint and will accept it for investigation, then all parties to the complaint must receive notice of what is being investigated and must have an opportunity to respond to the notice.

For a complaint involving a federally funded program or activity, this notice generally is provided to the CP, and the named Respondents. Some federal funding agencies also may request notice that you’ve accepted a complaint. In a workplace complaint, the Complainant is provided notice as well as the Respondent, who may be a supervisor, manager, co-worker, contractor, or the like.

And, in complaints involving harassment or hostile environment, higher-ranking officials in the chain of command may need to be served with the notice.

√ Why do both parties need to know?

Providing notice to both parties that you have accepted a discrimination complaint for investigation is required because each party needs to be allowed to present evidence. Most discrimination complaints arise under the disparate treatment legal theory. Here, the CP or Complainant must demonstrate a prima facie case that discrimination occurred by a preponderance of the evidence; that is, it is more likely than not that prohibited discrimination occurred. Then the burden shifts to the Respondents to present legitimate, nondiscriminatory reasons for their conduct. Finally, the burden shifts back to the CP or Complainant to demonstrate that the Respondents proffered reasons are pretextual.

Therefore, both sides of the dispute will need to participate in the investigative process.

√ The conduct of the investigation

At this point, both sides of the dispute are aware of the investigation. You will not have control over whether a party or witness talks, e-mails, or tweets about the complaint. And, an investigator is cautioned against seeking to impose “gag” orders on anyone involved. Nor should an investigator threaten disciplinary action or other sanctions against any party or witness discussing the matter. These are not useful tactics and they may constitute a violation of certain federal laws. Indeed, certain private employers must be mindful of the recent decision of the National Labor Relations Board in Banner Health System and Navarro, 358 NLRB 93 (July 30, 2012) (an employer may not apply a rule prohibiting employees from discussing ongoing investigations of employee insubordination as this violates the National Labor Relations Act).

Some investigators may want to “expedite” matters by conducting an “informal” investigation without written notice to either party. This is problematic. In order for your investigation to be fair to both parties, the parties must know the issue that you are looking into for purposes of the complaint, and they must have an opportunity to be heard on the issue.

Some investigators in educational programs and activities may be hesitant to issue written notices out of concern that students may disseminate the notices via e-mail, Facebook, or the like, thus hindering the ability to conduct a fair investigation.

In such situations, there are a couple of things to keep in mind. First, the Respondent educational institution will (or should) have privacy and confidentiality policies related to these discrimination complaint investigations, and these policies should be widely-published. Although the policies bind the investigator and his or her organizations in respecting the privacy of parties and confidentiality of the investigative process, it may be useful to provide a copy of these policies to the CP or Complainant and the alleged wrongdoer(s). Here, you do not seek to control the actions of the parties (as this a losing battle); rather, you seek to increase their awareness of the importance of confidentiality and privacy in these investigations.

Although “gag” orders and disciplinary threats are not recommended ways to curb open discussions of an ongoing discrimination investigation, the following points can be made verbally and in writing to the parties:

● Acceptance of the complaint of discrimination does not mean that discrimination has occurred. It only means that there is authority to start the investigation of the complaint (i.e. the complaint was timely filed and so on). At this point, information will be gathered from both sides to determine whether each of the allegations in the complaint is proven or not proven. If the allegations are not proven, then a written finding that discrimination is not proven will be issued. If the allegations are proven by a preponderance of the evidence, then a written finding of discrimination will issue.

When issuing a written notice accepting a discrimination complaint for investigation, the investigator may decide to include the following language at the beginning of the written notice:

THIS NOTICE DOES NOT CONSTITUTE A FINDING THAT ANY DISCRIMINATION HAS OCCURRED. THE SOLE PURPOSE OF THIS NOTICE IS TO INFORM THE PARTIES THAT I HAVE RECEIVED A DISCRIMINATION COMPLAINT AND I HAVE AUTHORITY TO INVESTIGATE IT.

An investigator can reinforce his or her expectations that the parties should focus their energies on aiding with the investigation. The investigator, in turn, will focus on getting to the bottom of the allegations made to determine whether prohibited discrimination took place.

● An investigator should make clear that the conduct of the CP or Complainant and the Respondents during the investigation will be considered in determining whether the investigative process is being improperly utilized to harass a party, retaliate against a party, or the like. And, any written communications of the parties at the time of the incident at issue, including e-mail exchanges and postings on social media may be gathered and analyzed to determine the motives of the parties.

● The parties should be reminded that the purpose of the investigative process is not to threaten, intimidate, retaliate against, or humiliate either party. They should understand that it is the investigator’s job to develop the evidence and determine what happened.

● The one person whose conduct can be controlled in this entire process is that of the investigator. To maintain credibility, an investigator must be discrete, non-judgmental with both parties, and confidential in his or her words (written and verbal) and actions. An investigator should not discuss the investigation with co-workers, friends, or family. There should be no interference from outside sources seeking to dictate the course and/or outcome of the investigation. And, the investigator must have authority to report directly to the highest-ranking official of the agency, company, or organization. The parties have come to the investigator because they need to have a problem solved. The investigator should be part of the solution to the problem as opposed to being part of its continuation or escalation.

● It is important for an investigator to be organized and to resolve the complaint as soon as practicable. Whether the discrimination complaint stems from the operation of a government program or conduct in the workplace, efforts at counseling and/or mediation early in the process can be very helpful.

● Finally, complaints of harassment and hostile environment present some additional challenges for the investigator. Prior to the filing of any such complaint, leadership at an agency, company, educational institution, or other organization must make sure it has specific written steps in place for separating the individuals involved. Although an investigator must gather evidence and statements to determine whether the allegations of harassment and hostile environment are proven by a preponderance of the evidence, steps must be taken in the interim to provide relief and protection for the CP or Complainant from the alleged wrongdoer(s). And, for such complaints arising in the workplace, the EEOC encourages the investigator to keep the identity of the Complainant, and the information collected, as confidential as possible. There is a reality that the investigator needs to be able to collect evidence and question witnesses about the event at issue. The idea, however, is that the investigator should exercise diligence and caution, and should refrain from openly discussing the investigation in the workplace.

√ The final determination

Once the investigation is completed, a written determination of findings and conclusions must be sent to the parties. In complaints involving federally funded programs and activities, the federal funding agency also may require that you submit a copy to it. And, some federal funding agencies require that the written determination be sent to the state Governor’s office. The determination should provide the parties with a notice of any appeal rights available to them should they wish to challenge the determination. Similarly, final agency actions issued after investigation of workplace disputes must comply with EEOC requirements. For a description of those requirements, go to www.eeoc.gov.

Again, the investigator should not offer side comments or other statements to anyone. The determination will speak for itself and it should be only in the hands of the persons who are required to be notified. Otherwise, the investigative file containing notes, evidence, witness statements, notices, and determinations must be kept confidential, and secured in a location with limited (“need to know”) 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 workforce development programs and activities. Her customers include state and local governments, K-12 public school systems, 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 on-site 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.

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.

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 (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.

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

Saturday, March 22nd, 2014

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

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.

OFCCP Launches a New Outreach and Recruitment Database for Contractors

Friday, March 21st, 2014

On March 13, 2014, the Office of Federal Contract Compliance Programs (OFCCP) launched a new 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 Web site at http://www.dol-esa.gov/errd/resources.html. This new resource supplements the agency’s existing Employment Resources Referral Directory (ERRD).