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On-Demand Civil Rights Webcasts Available: Delivering Public-Facing Programs and Activities in Compliance with Federal Law

Monday, February 5th, 2018

Delivered by Civil Rights Expert and Author Seena Foster

In 2017, State and local government officials are applauding the webcasts, stating they are “outstanding,” “very informative,” and “extremely useful.” Each webcast is only $29.00.

Available Selection

Compliance with Title VI of the Civil Rights Act: An Overview

Compliance with the Nondiscrimination and Equal Opportunity Provisions of the Workforce Innovation and Opportunity Act: A Comprehensive Overview

Discrimination Complaint Investigations under the Workforce Innovation and Opportunity Act:  Proper Process and Technique

State and local government officials responsible for the delivery of, or monitoring the delivery of, services, aid, training, or benefits to the public must comply with Federal civil rights laws. These laws also apply to service providers, on-the-job trainers, contractors, and partners that assist in delivering public-facing programs and activities. Our webcasts provide practical training for new and experienced professionals working in the area of equal opportunity.

Because the webcasts are on-demand and certificate-based, they provide a convenient and inexpensive way to acquire and document training of staff, contractors, service providers, and partners.

How to register:
To register, simply click on the “Webcast Registration” icon on the left side of this blog. Or, go to https://engage.vevent.com/rt/titleviconsulting.

Cost-effective.  Only $29.00 each. No travel costs.  No lost time from work. These webcasts are absolutely the best value for your dollar!

Content-rich.  Each webcast is packed with useful information, guidance, and helpful tips. Each participant receives a copy of the detailed PowerPoint presentation for the webcast, which may be used as a checklist going forward.

Certificate-based.  Within three to five weeks, each participant who registers and attends the webcast will receive a personalized, signed “Certificate of Completion” to document the training.  

Title: Compliance with Title VI of the Civil Rights Act: An Overview
Description:
This popular webcast provides an informative overview of how to comply with the nondiscrimination mandates of Title VI of the Civil Rights Act of 1964. Title VI applies to the administration, oversight, and delivery process of all state and local programs and activities that are federally-assisted. In this webcast, we’ll focus on the scope and meaning of Title VI of the Civil Rights Act, and we will touch on a variety of compliance-related issues, including environmental justice, serving limited English proficient populations, contracting and procurement, discrimination complaints, harassment and hostile environment, training, monitoring, and data collection. Participants will understand the meaning of race, color, and national origin-based discrimination through Ms. Foster’s use of a variety of easy-to-understand examples. And, participants will learn about surprising federal enforcement policies to include certain types of religious-based discrimination as prohibited under Title VI. A detailed PowerPoint is available for download to viewers of this webcast.

Title: Compliance with the Nondiscrimination and Equal Opportunity Provisions of the Workforce Innovation and Opportunity Act: A Comprehensive Overview
Description: 
This webcast provides a wealth of information, guidance, and tips to help you ensure compliance with the nondiscrimination and equal opportunity provisions of Section 188 of the Workforce Innovation and Opportunity Act (WIOA), and related Federal civil rights laws that apply to the administration, oversight, and delivery process for WIOA Title I-financially assisted programs and activities. In this webcast, we’ll cover a broad range of compliance issues, including taglines, assurances, Equal Opportunity officers (their selection and duties, and the recipients’ obligations in support of EO officers), serving persons with disabilities, serving LEP populations, differences between program complaints and discrimination complaints, harassment and hostile environment, and data collection, including requirements for the discrimination complaint log and storage of medical information. A detailed PowerPoint, updated after promulgation of the final version of the WIOA regulations at 29 C.F.R. Part 38, is available for download to viewers of the webcast.

Title: Discrimination Complaint Investigations under the Workforce Investment Act:  Proper Process and Technique
Description:
This webcast covers the discrimination complaint investigation process from start to finish, including determining jurisdiction, developing a complaint investigation plan, framing the issue of an investigation, developing interrogatories, preparing a letter of acceptance, gathering and analyzing information, interviewing the parties and witnesses, and writing the notice of final action.  Each participant of this webcast will receive a set of templates that they may customize and use for their investigations, including a jurisdiction checklist, sample complaint investigation plans, sample notices rejecting a complaint, a sample letter of acceptance, and a sample notice of final action. Complaint investigation templates and a detailed PowerPoint are available for download to viewers of the webcast. Complaint processing templates and a detailed PowerPoint are available for download to viewers of the webcast.

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 compliance and civil rights investigations to state and local governments, colleges and universities, private companies, and non-profit organizations. To that end, she offers one-hour on-demand webcasts, full-day and half-day in-person training sessions, discrimination complaint investigation assistance, and mediation services addressing a variety of types of discrimination such as racial discrimination, sex discrimination, disability discrimination, age discrimination, and religious discrimination. Federal non-discrimination laws are complex, and they affect our workplaces as well as the delivery of our Federally-funded programs and activities. Her book, Civil Rights Investigations under the Workforce Investment Act and Other Title VI Related Laws: From Intake to Final Determination, has been described as an “eye-opening” reading experience and a “stand-alone” training resource. Ms. Foster’s resources and materials are designed to support the work of civil rights and discrimination professionals in the public and private sectors.

Her background includes 24 years as Senior Legal Advisor to the U.S. 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.

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 CRC Director Annabelle Lockhart, 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 Section 188 disability checklist, conducting discrimination complaint investigations and writing final determinations, and conducting investigations of allegations involving harassment and hostile environment.

Ms. Foster is a graduate of the George Washington University Law School, and she carries certification in federal workplace mediation from the Northern Virginia Mediation Service as well as mediation certification from the Defense Equal Opportunity Management Institute (DEOMI). Ms. Foster also is a member of the Human Rights and Discrimination Law committees of the International Bar Association. You may contact her at seena@titleviconsulting.com.

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.

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.

EEOC Issues New Publications on Religious Garb and Grooming in the Workplace Practical Guides Will Assist Employers and Employees (March 6, 2014)

Tuesday, March 11th, 2014

This publication by the U.S. Equal Employment Opportunity Commission (EEOC) answers questions about how federal employment discrimination law applies to religious dress and grooming practices, and what steps employers can take to meet their legal responsibilities in this area.

Examples of religious dress and grooming practices include wearing religious clothing or articles (e.g., a Muslim hijab (headscarf), a Sikh turban, or a Christian cross); observing a religious prohibition against wearing certain garments (e.g., a Muslim, Pentecostal Christian, or Orthodox Jewish woman’s practice 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)).

In most instances, employers are required by federal law to make exceptions to their usual rules or preferences to permit applicants and employees to observe religious dress and grooming practices.

1. What is the federal law relating to religious dress and grooming in the workplace?

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as amended (“Title VII”),prohibits employers with at least 15 employees (including private sector, state, and local government employers), as well as employment agencies, unions, and federal government agencies, from discriminating in employment based on race, color, religion, sex, or national origin. It also prohibits retaliation against persons who complain of discrimination or participate in an EEO investigation. With respect to religion, Title VII prohibits among other things:

disparate treatment based on religion in recruitment, hiring, promotion, benefits, training, job duties, termination, or any other aspect of employment (except that “religious organizations” as defined under Title VII are permitted to prefer members of their own religion in deciding whom to employ);
denial of reasonable accommodation for sincerely held religious practices, unless the accommodation would cause an undue hardship for the employer;
workplace or job segregation based on religion;
workplace harassment based on religion;
retaliation for requesting an accommodation (whether or not granted), for filing a discrimination charge with the EEOC, for testifying, assisting, or participating in any manner in an EEOC investigation or EEO proceeding, or for opposing discrimination.

There may be state or local laws in your jurisdiction that have protections that are parallel to or broader than those in Title VII.

2. Does Title VII apply to all aspects of religious practice or belief?

Yes. Title VII protects all aspects of religious observance, practice, and belief, and defines religion very broadly to include not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, Buddhism, and Sikhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or may seem illogical or unreasonable to others.

Religious practices may be based on theistic beliefs or non-theistic moral or ethical beliefs as to what is right or wrong that are sincerely held with the strength of traditional religious views. Religious observances or practices include, for example, attending worship services, praying, wearing religious garb or symbols, displaying religious objects, adhering to certain dietary rules, proselytizing or other forms of religious expression, or refraining from certain activities. Moreover, an employee’s belief or practice can be “religious” under Title VII even if it is not followed by others in the same religious sect, denomination, or congregation, or even if the employee is unaffiliated with a formal religious organization.

The law’s protections also extend to those who are discriminated against or need accommodation because they profess no religious beliefs. For example, an employer that is not a religious organization (as legally defined under Title VII) cannot make employees wear religious garb or articles (such as a cross) if they object on grounds of non-belief.

Because this definition is so broad, whether or not a practice or belief is religious typically is not disputed in Title VII religious discrimination cases.

3. Does the law apply to dress or grooming practices that are religious for an applicant or employee, even if other people engage in the same practice for non-religious reasons?

Yes. Title VII applies to any practice that is motivated by a religious belief, even if other people may engage in the same practice for secular reasons. However, if a dress or grooming practice is a personal preference, for example, where it is worn for fashion rather than for religious reasons, it does not come under Title VII’s religion protections.

4. What if an employer questions whether the applicant’s or employee’s asserted religious practice is sincerely held?

Title VII’s accommodation requirement only applies to religious beliefs that are “sincerely held.” However, just because an individual’s religious practices may deviate from commonly-followed tenets of the religion, the employer should not automatically assume that his or her religious observance is not sincere. Moreover, an individual’s religious beliefs – or degree of adherence – may change over time, yet may nevertheless be sincerely held. Therefore, like the “religious” nature of a belief or practice, the “sincerity” of an employee’s stated religious belief is usually not in dispute in religious discrimination cases. However, if an employer has a legitimate reason for questioning the sincerity or even the religious nature of a particular belief or practice for which accommodation has been requested, it may ask an applicant or employee for information reasonably needed to evaluate the request.

EXAMPLE 1
New Observance

Eli has been working at the Burger Hut for two years. While in the past he has always worn his hair short, he has recently let it grow longer. When his manager advises him that the company has a policy requiring male employees to wear their hair short, Eli explains that he is a newly practicing Nazirite and now adheres to religious beliefs that include not cutting his hair. Eli’s observance can be sincerely held even though it is recently adopted.

EXAMPLE 2
Observance That Only Occurs at Certain Times or Irregularly

Afizah is a Muslim woman who has been employed as a bank teller at the ABC Savings & Loan for six months. The bank has a dress code prohibiting tellers from wearing any head coverings. Although Afizah has not previously worn a religious headscarf to work at the bank, her personal religious practice has been to do so during Ramadan, the month of fasting that falls during the ninth month of the Islamic calendar. The fact that Afizah adheres to the practice only at certain times of the year does not mean that her belief is insincere.

5. Can an employer exclude someone from a position because of discriminatory customer preference?

No. If an employer takes an action based on the discriminatory religious preferences of others, including customers, clients, or co-workers, the employer is unlawfully discriminating in employment based on religion. Customer preference is not a defense to a claim of discrimination.

EXAMPLE 3
Employment Decision Based on Customer Preference

Adarsh, who wears a turban as part of his Sikh religion, is hired to work at the counter in a coffee shop. A few weeks after Adarsh begins working, the manager notices that the work crew from the construction site near the shop no longer comes in for coffee in the mornings. When the manager makes inquiries, the crew complains that Adarsh, whom they mistakenly believe is Muslim, makes them uncomfortable in light of the anniversary of the September 11th attacks. The manager tells Adarsh that he will be terminated because the coffee shop is losing the construction crew’s business. The manager has subjected Adarsh to unlawful religious discrimination by taking an adverse action based on customer preference not to have a cashier of Adarsh’s perceived religion. Adarsh’s termination based on customer preference would violate Title VII regardless of whether he was correctly or incorrectly perceived as Muslim, Sikh, or any other religion.

Employers may be able to prevent this type of religious discrimination from occurring by taking steps such as training managers to rely on specific experience, qualifications, and other objective, non-discriminatory factors when making employment decisions. Employers should also communicate clearly to managers that customer preference about religious beliefs and practices is not a lawful basis for employment decisions.

6. May an employer automatically refuse to accommodate an applicant’s or employee’s religious garb or grooming practice if it would violate the employer’s policy or preference regarding how employees should look?

No. Title VII requires an employer, once it is aware that a religious accommodation is needed, to accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. Therefore, when an employer’s dress and grooming policy or preference conflicts with an employee’s known religious beliefs or practices, the employer must make an exception to allow the religious practice unless that would be an undue hardship on the operation of the employer’s business. Fact patterns illustrating whether or not an employer is aware of the need for accommodation appear below at examples 4-7.

For purposes of religious accommodation, undue hardship is defined by courts as a “more than de minimis” cost or burden on the operation of the employer’s business. For example, if a religious accommodation would impose more than ordinary administrative costs, it would pose an undue hardship. This is a lower standard than the Americans with Disabilities Act (ADA) undue hardship defense to disability accommodation.

When an exception is made as a religious accommodation, the employer may nevertheless retain its usual dress and grooming expectations for other employees, even if they want an exception for secular reasons. Co-workers’ disgruntlement or jealousy about the religious accommodation is not considered undue hardship, nor is customer preference.

EXAMPLE 4
Exception to Uniform Policy as a Religious Accommodation

Based on her religious beliefs, Ruth adheres to modest dress. She is hired as a front desk attendant at a sports club, where her duties consist of checking members’ identification badges as they enter the facility. The club manager advises Ruth that the club has a dress code requiring all employees to wear white tennis shorts and a polo shirt with the facility logo. Ruth requests permission as a religious accommodation to wear a long white skirt with the required shirt, instead of wearing shorts. The club grants her request, because Ruth’s sincerely held religious belief conflicts with the workplace dress code, and accommodating her would not pose an undue hardship. If other employees seek exceptions to the dress code for non-religious reasons such as personal preference, the employer is permitted to deny their requests, even though it granted Ruth a religious accommodation.

7. How will an employer know when it must consider making an exception to its dress and grooming policies or preferences to accommodate the religious practices of an applicant or employee?

Typically, the employer will advise the applicant or employee of its dress code or grooming policy, and subsequently the applicant or employee will indicate that an exception is needed for religious reasons. Applicants and employees will not know to ask for an accommodation until the employer makes them aware of a workplace requirement that conflicts with their religious practice. The applicant or employee need not use any “magic words” to make the request, such as “accommodation” or “Title VII.” If the employer reasonably needs more information, however, the employer and the employee should discuss the request. In some instances, even absent a request, it will be obvious that the practice is religious and conflicts with a work policy, and therefore that accommodation is needed.

EXAMPLE 5
Employer Knowledge Insufficient

James’s employer requires all of its employees to be clean-shaven. James is a newly hired employee, and was hired based on an online application and a telephone interview. When he arrives the first day with an unshorn beard, his supervisor informs him that he must comply with the “clean-shaven” policy or be terminated. James refuses to comply, but fails to inform his supervisor that he wears his beard for religious reasons. James should have explained to his supervisor that he wears the beard pursuant to a religious observance. The employer did not have to consider accommodation because it did not know that James wore his beard for religious reasons.

EXAMPLE 6
Employer Knowledge Sufficient

Same facts as above but, instead, when James’s supervisor informs him that he must comply with the “clean-shaven” policy or be terminated, James explains that he wears the beard for religious reasons, as he is a Messianic Christian. This is sufficient to request accommodation. The employer is permitted to obtain the limited additional information needed to determine whether James’s beard is worn due to a sincerely held religious practice and, if so, must accommodate by making an exception to its “clean-shaven” policy unless doing so would be an undue hardship.

EXAMPLE 7
Employer Believes Practice Is Religious and Conflicts with Work Policy

Aatma, an applicant for a rental car sales position who is an observant Sikh, wears a chunni (religious headscarf) to her job interview. The interviewer does not advise her that there is a dress code prohibiting head coverings, and Aatma does not ask whether she would be permitted to wear the headscarf if she were hired. There is evidence that the manager believes that the headscarf is a religious garment, presumed it would be worn at work, and refused to hire her because the company requires sales agents to wear a uniform with no additions or exceptions. This refusal to hire violates Title VII, even though Aatma did not make a request for accommodation at the interview, because the employer believed her practice was religious and that she would need accommodation, and did not hire her for that reason. Moreover, if Aatma were hired but then instructed to remove the headscarf, she could at that time request religious accommodation.

8. May an employer assign an employee to a non-customer contact position because of customer preference?

No. Assigning applicants or employees to a non-customer contact position because of actual or feared customer preference violates Title VII’s prohibition on limiting, segregating, or classifying employees based on religion. Even if the employer is following its uniformly applied employee policy or practice, it is not permitted to segregate an employee due to fear that customers will have a biased response to religious garb or grooming. The law requires the employer to make an exception to its policy or practice as a religious accommodation, because customer preference is not undue hardship.

EXAMPLE 8
Assigning Employee to “Back Room” Because of Religious Garb

Nasreen, a Muslim applicant for an airport ticket counter position, wears a headscarf, or hijab, pursuant to her religious beliefs. Although Nasreen is qualified, the manager fears that customers may think an airport employee who is identifiably Muslim is sympathetic to terrorist hijackers. The manager, therefore, offers her a position in the airline’s call center where she will only interact with customers by phone. This is religious segregation and violates Title VII.

As a best practice, managers and employees should be trained that the law may require making a religious exception to an employer’s otherwise uniformly applied dress or grooming rules, practices, or preferences. They should also be trained not to engage in stereotyping about work qualifications or availability based on religious dress and grooming practices. Many EEOC settlements of religious accommodation cases provide for the employer to adopt formal religious accommodation procedures to guide management and employees in handling these requests, as well as annual training on this topic.

9. May an employer accommodate an employee’s religious dress or grooming practice by offering to have the employee cover the religious attire or item while at work?

Yes, if the employee’s religious beliefs permit covering the attire or item. However, 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.

EXAMPLE 9
Covering Religious Symbol Contrary to Individual’s Religious Beliefs

Edward practices the Kemetic religion, an ancient Egyptian faith, and affiliates himself with a tribe numbering fewer than ten members. He states that he believes in various deities and follows the faith’s concept of Ma’at, a guiding principle regarding truth and order that represents physical and moral balance in the universe. During a religious ceremony he received small tattoos encircling his wrist, written in the Coptic language, which express his servitude to Ra, the Egyptian god of the sun. When his employer asks him to cover the tattoos, he explains that it is a sin to cover them intentionally because doing so would signify a rejection of Ra. Therefore, covering the tattoos is not a reasonable accommodation, and the employer cannot require it absent undue hardship.

10. May an employer deny accommodation of an employee’s religious dress or grooming practice based on the “image” that it seeks to convey to its customers?

An employer’s reliance on the broad rubric of “image” or marketing strategy to deny a requested religious accommodation may amount to relying on customer preference in violation of Title VII, or otherwise be insufficient to demonstrate that making an exception would cause an undue hardship on the operation of the business.

EXAMPLE 10
“Image”

Jon, a clerical worker who is an observant Jew, wears tzitzit (ritual knotted garment fringes at the four corners of his shirt) and a yarmulke (or skull cap) in conformance with his Jewish beliefs. XYZ Temps places Jon in a long-term assignment with one of its client companies. The client asks XYZ to notify Jon that he must remove his yarmulke and his tzitzit while working at the front desk, or assign another person to Jon’s position. According to the client, Jon’s religious attire presents the “wrong image” and also violates its dress code prohibiting any headgear and requiring “appropriate business attire.” XYZ Temps may not comply with this client request without violating Title VII.

The client also would violate Title VII if it changed Jon’s duties to keep him out of public view, or if it required him not to wear his yarmulke or his tzitzit when interacting with customers. Assigning Jon to a position out of public view is segregation in violation of Title VII. Moreover, because notions about customer preference (real or perceived) do not establish undue hardship, the client must make an exception to its dress code to let Jon wear his religious garb during front desk duty as a religious accommodation. XYZ should strongly advise its client that the EEO laws require allowing Jon to wear this religious garb at work and that, if the client does not withdraw its request, XYZ will place Jon in another assignment at the same rate of pay and decline to assign another worker to the client.

EXAMPLE 11
“Image”

Tahera, an applicant for a retail sales position at a national clothing company that carries current fashions for teens, wears a headscarf in accordance with her Muslim religious beliefs. Based on its marketing strategy, the company requires sales personnel to wear only clothing sold in its stores, and no headgear, so that they will look like the clothing models in the company’s sales catalogues. Although the company believes that Tajera wears a headscarf for religious reasons, the company does not hire her because it does not want to make an exception. While the company may maintain its dress and grooming rule for other sales personnel, it must make an exception for Tahera as a religious accommodation in the absence of employer evidence of undue hardship.

In many jobs for which employers require employees to wear uniforms (e.g., certain food service jobs or service industry jobs), the employee’s beliefs may permit accommodation by, for example, wearing the item in the company uniform color(s). Employers should ensure that front-line managers and supervisors understand that if an employee’s proposed accommodation would pose an undue hardship, the employer should explore alternative accommodations.

11. Do government agencies whose employees work with the public have to make exceptions to uniform policies or otherwise allow religious dress and grooming practices if doing so would not cause an undue hardship?

Yes. Government agency employers, like private employers, must generally allow exceptions to dress and grooming codes as a religious accommodation, although there may be limited situations in which the need for uniformity of appearance is so important that modifying the dress or grooming code would pose an undue hardship. Therefore, it is advisable in all instances for employers to make a case-by-case determination of any needed religious exceptions.

EXAMPLE 12
Public Employee

Elizabeth, a librarian at a public library, wears a cross as part of her Catholic religious beliefs. In addition, after church services she attends on Ash Wednesday each year, Elizabeth arrives at work with a black ash mark on her forehead in the shape of a cross, which she leaves on until it wears off. Her new supervisor directs her not to wear the cross in the future while on duty, and to wash off the ash mark before reporting to work. Because Elizabeth’s duties require her to interact with the public as a government employee, the supervisor fears that her cross and ash mark could be mistaken as government endorsement of religion in violation of the Establishment Clause of the First Amendment to the U.S. Constitution. He cites the need to avoid any appearance of religious favoritism by government employees interacting with the public, and emphasizes that librarians must be viewed as impartial with respect to any information requests from library patrons. However, because the librarian’s cross and ash mark are clearly personal in this situation, they would not cause a perception of government endorsement of religion. Accordingly, accommodating Elizabeth’s religious practice is not an undue hardship under Title VII.

EXAMPLE 13
Public Employee

Gloria, a newly hired municipal bus driver, was terminated when she advised her supervisor during new-employee orientation that due to the tenets of her faith (Apostolic Pentecostal), she needs to wear a skirt rather than the pants required by the transit agency dress code. Absent evidence that the type of skirt Gloria must wear would pose an actual safety hazard, no undue hardship would have been posed by allowing this dress code exception, and Gloria’s termination would violate Title VII.

12. May an employer bar an employee’s religious dress or grooming practice based on workplace safety, security, or health concerns?

Yes, but only if the practice actually poses an undue hardship on the operation of the business. The employer should not assume that the accommodation would pose an undue hardship. While safety, security, or health may justify denying accommodation in a given situation, the employer may do so only if the accommodation would actually pose an undue hardship. In many instances, there may be an available accommodation that will permit the employee to adhere to religious practices and will permit the employer to avoid undue hardship.

EXAMPLE 14
Long Hair

David wears long hair pursuant to his Native American religious beliefs. He applies for a job as a server at a restaurant that requires its male employees to wear their hair “short and neat.” When the restaurant manager informs David that if offered the position he will have to cut his hair, David explains that he keeps his hair long based on his religious beliefs and offers to wear it in a ponytail or held up with a clip. The manager refuses this accommodation and denies David the position because he has long hair. Since David could have been accommodated without undue hardship by wearing his hair in a ponytail or held up neatly with a clip, the employer violated Title VII.

EXAMPLE 15
Facial Hair

Prakash, who works for CutX, a surgical instrument manufacturer, does not shave or trim his facial hair because of his Sikh religious observance. When he seeks a promotion to manage the division responsible for sterilizing instruments, his employer tells him that he must shave or trim his beard because it may contaminate the sterile field. All division employees are required to be clean shaven and wear a face mask. When Prakash explains that he does not trim his beard for religious reasons, the employer offers to allow Prakash to wear two face masks instead of trimming his beard. Prakash thinks that wearing two masks is unreasonable and files a Title VII charge. CutX will prevail because it offered a reasonable accommodation that would eliminate Prakash’s religious conflict with the hygiene rule.

EXAMPLE 16
Facial Hair

Raj, a Sikh, interviews for an office job. At the end of the interview, he receives a job offer but is told he will have to shave his beard because all office staff are required to be “clean shaven” to promote discipline. Raj advises the hiring manager that he wears his beard unshorn because of his Sikh religious practice. Since no undue hardship is posed by allowing Raj to wear his beard, the employer must make an exception as an accommodation.

EXAMPLE 17
Clothing Requirements Near Machinery

Mirna alleges she was terminated from her job in a factory because of her religion (Pentecostal) after she told her supervisor that her faith prohibits her from wearing pants as required by the company’s new dress code. Mirna requested as an accommodation to be permitted to continue wearing a long but close-fitting skirt. Her manager replies that the dress code is essential to safe and efficient operations on the factory floor, but there is no evidence regarding operation of the machinery at issue to show that close-fitting clothing like that worn by Mirna poses a safety risk. Because the evidence does not establish that wearing pants is truly necessary for safety, the accommodation requested by Mirna does not pose an undue hardship.

EXAMPLE 18
Head Coverings That Pose Security Concerns

A private company contracts to provide guards, administrative and medical personnel, and other staff for state and local correctional facilities. The company adopts a new, inflexible policy barring any headgear, including religious head coverings, in all areas of the facility, citing security concerns about the potential for smuggling contraband, interfering with identification, or use of the headgear as a weapon. To comply with Title VII, the employer should consider requests to wear religious headgear on a case-by-case basis to determine whether the identified risks actually exist in that situation and pose an undue hardship. Relevant facts may include the individual’s job, the particular garb at issue, and the available accommodations. For example, if an individual’s religious headgear is or can be worn in a manner that does not inhibit visual identification of the employee, and if temporary removal may be accomplished for security screens and to address smuggling concerns without undue hardship, the individual can be accommodated.

EXAMPLE 19
Kirpan

Harvinder, a Sikh who works in a hospital, wears a small (4-inch), dull, and sheathed kirpan (symbolic miniature sword) strapped and hidden underneath her clothing, as a symbol of her religious commitment to defend truth and moral values. When Harvinder’s supervisor, Bill, learned about her kirpan from a co-worker, he instructed Harvinder not to wear it at work because it violated the hospital policy against weapons in the workplace. Harvinder explained to Bill that her faith requires her to wear a kirpan in order to comply with the Sikh code of conduct, and gave him literature explaining that the kirpan is a religious artifact, not a weapon. She also showed him the kirpan, allowing him to see that it was no sharper than the butter knives found in the hospital cafeteria. Nevertheless, Bill told her that her employment at the hospital would be terminated if she continued to wear the kirpan at work. Absent any evidence that allowing Harvinder to wear the kirpan would pose an undue hardship in the factual circumstances of this case, the hospital is liable for denial of accommodation.

13. Are applicants and employees who request religious accommodation protected from retaliation?

Yes. 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.

EXAMPLE 20
Retaliation for Requesting Accommodation

Salma, a retail employee, requests that she be permitted to wear her religious headscarf as an exception to her store’s new uniform policy. Joe, the store manager, refuses. Salma contacts the human resources department at the corporate headquarters. Despite Joe’s objections, the human resources department instructs him that in the circumstances there is no undue hardship and that he must grant the request. Motivated by reprisal, Joe shortly thereafter gives Salma an unjustified poor performance rating and denies her request to attend training that he approves for her co-workers. This violates Title VII.

14. What constitutes religious harassment under Title VII, and what obligation does an employer have to stop it?

Religious harassment under Title VII may occur when an employee is required or coerced to abandon, alter, or adopt a religious practice as a condition of employment. Religious harassment may also occur when an employee is subjected to unwelcome statements or conduct based on religion. Harassment may include offensive remarks about a person’s religious beliefs or practices, or verbal or physical mistreatment that is motivated by the victim’s religious beliefs or practices. Although the law does not prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, such conduct rises to the level of illegal harassment when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment action (such as the victim being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or even a third party who is not an employee of the employer, such as a client or customer.

An employer is liable for harassment by co-workers and third parties where it knew or should have known about the harassment and failed to take prompt and appropriate corrective action. An employer is always liable for harassment by a supervisor if it results in a tangible employment action, such as the harassment victim being fired or demoted.[18] Even if the supervisor’s harassment does not result in a tangible employment action, the employer will still be liable unless it exercised reasonable care to prevent and correct promptly any harassing behavior (such as having an effective complaint procedure) and the harassed employee unreasonably failed to take advantage of opportunities to prevent or correct it (such as failing to use the complaint procedure).

EXAMPLE 21
Co-Worker Harassment

XYZ Motors, a large used car business, has several employees who are observant Sikhs or Muslims and wear religious head coverings. A manager becomes aware that an employee named Bill regularly calls these co-workers names like “diaper head,” “bag head,” and “the local terrorists,” and that he has intentionally embarrassed them in front of customers by claiming that they are incompetent. Managers and supervisors who learn about objectionable workplace conduct based on religion or national origin are responsible for taking steps to stop the conduct by anyone under their control.

Workplace harassment and its costs are often preventable. Clear and effective policies prohibiting ethnic and religious slurs and related offensive conduct are essential. Confidential complaint mechanisms for promptly reporting harassment are critical, and these policies should encourage both victims and witnesses to come forward. When harassment is reported, the focus should be on action to end the harassment and correct its effects on the complaining employee. Employers should have a well-publicized and consistently applied anti-harassment policy that clearly explains what is prohibited, provides multiple avenues for complaints to management, and ensures prompt, thorough, and impartial investigations and appropriate corrective action.

The policy should also assure complainants that they are protected against retaliation.

Employees who are harassed based on religious belief or practice should report the harassment to their supervisor or other appropriate company official in accordance with the procedures established in the company’s anti-harassment policy.

Once an employer is on notice of potential religious harassment, the employer should take steps to stop the conduct. To prevent conflicts from escalating to the level of a Title VII violation, employers should immediately intervene when they become aware of abusive or insulting conduct, even absent a complaint.

15. What should an applicant or employee do if he believes he has experienced religious discrimination?

Employees or job applicants should attempt to address concerns with management. They should keep records documenting what they experienced or witnessed and any complaints they have made about the discrimination, as well as witness names, telephone numbers, and addresses. If the matter is not resolved, private sector and state and local government applicants and employees may file a charge of discrimination with the EEOC.

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.

16. Where can employers and employees obtain more information?

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. The EEOC conducts various types of training and can help you find a format that is right for you. More information about outreach and training programs is available at http://www.eeoc.gov/eeoc/outreach/index.cfm. You should also feel free to contact the EEOC with questions about effective workplace policies that can help prevent discrimination, or for 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.

Congressional Letter to Labor Secretary Perez Seeking LGBT Protections by Job Corps, One Stop Career Centers, Federal Contractors, and in Veterans’ Programs

Monday, March 10th, 2014

By letter dated March 5, 2014, to Secretary of Labor Thomas Perez, several Democratic members of Congress promoted the need for improvements in the inclusion of lesbian, gay, bisexual, and transgender (LGBT) individuals in the Labor Department’s programs and activities. The Members of Congress assert:

[T]here is more that the Department (of Labor) can do to alleviate the high rates of unemployment and discrimination faced by LGBT workers around the country. The Department has tools at its disposal to address these barriers impacting the ability of LGBT people to thrive in the American economy.

These congressional representatives specifically stated they “would like to know more about what the Department is doing for LGBT workers generally” and in certain program areas, including the Office of Federal Contract Compliance Programs’ (OFCCP’s) enforcement of existing Executive Orders and how LGBT people can be better covered as OFCCP’s implementation of the 2012 ruling of the U.S. Equal Employment Opportunity Commission (EEOC) in Macy v. Holder, wherein the Commission held “gender identity is a protected category under existing federal civil rights protections covering sex.” Moreover, the representatives seek information regarding the Employment and Training Administration’s “inclusion of, and guidance on, LGBT and gender non-conforming youth” in Job Corps programs and One Stop Center programs as well as Veterans Employment Training Services’ inclusion of LGBt veterans in its programs and policies. The Members of Congress note:

Due in large part to systemic discrimination in education, housing, and employment, LGBT people are at increased risk for poverty throughout the lifetime. Employment protections are a vital step towards ending this discrimination and increasing economic opportunity and stability for LGBT workers and their families.

The Congress Members concluded by stating, “[W]are aware of the need for better inclusion of LGBT individuals . . . and we are eager to hear from you on where these changes stand.”

Social Media and The Importance of Good Judgment: Employers, Employees, and Job Seekers

Thursday, August 1st, 2013

Facebook, uTube, Twitter, and LinkedIn are well-known.  Most of us use these forms of social media to connect with family and friends, and to network with other professionals.  We share photos, ideas, and what is happening in our lives.

Too much information, or the wrong kind of information, on these platforms can yield unexpected, often bad, consequences—both in the short-term and long-term.  In this paper, we’ll cover some sound practices for productive use of social media, and suggest some steps you can take to ensure a positive social media experience.

√       Employees and job-seekers

By June 2013, 11 states enacted various social media laws in an attempt to protect employees and/or job-seekers from being subjected to adverse employment actions based on the content of their social media.  Former, current, and prospective employers are starting to make more use of Internet searches to check out what individuals are doing.  We’ve all heard stories of the employee who called in sick only to be terminated after the employer saw “vacation” photos posted to the Internet by the employee for that same time period.

And, keep in mind, regardless of your age (junior high, high school, college, vocational school), what you post today can have consequences with your peers in the short-term, and with employers in the long-term.  You should be aware that police departments and school administrators have intensified their searches of social media sites. According to a 2013 survey, the three top reasons job applicants were turned down for positions were because they posted (1) provocative or inappropriate photographs or information, (2) information about the applicant drinking or using drugs, or (3) disparaging remarks about previous employers.

●      “My life is an open book” or “Don’t be so serious”

Some folks post to the Internet with the mindset, “My life is an open book. People can take it or leave it.  I am who I am.  They are just too serious.”

Here, it is important to realize a couple of things.  First, while you may be an “open” person—you are just venting your feelings, exhibiting who you are as a person, or exercising your right to speak freely—don’t assume others will agree with you, appreciate your “openness,” or not use what you have posted in a manner that will hurt you down the road professionally or personally.

Second, although your feelings or opinions may change over time, what you post at a particular point in time on the Internet will remain somewhere on the Internet . . . forever.  There is no “delete” button.

It is better to think through what you are posting regardless of whether it is a questionable photo of yourself, or writing something personal and putting it out there for the world to see.  The only person you can fully control is yourself—you will never be able to control what other people do or say about the information you have posted, or whether they use that information to your detriment today, a year from now, or ten years from now.

●      “You’ve made me angry—I’ll show you”

This group of folks uses the Internet to lash out at others.  Some people in this category post slurs or discriminatory views attacking others because of how they look or where they come from.  Others view the Internet as an outlet to harass people—poking fun at them, spreading gossip or malicious rumors, or trying to otherwise damage their reputations or cause them harm.

Starting with discrimination, each of us holds opinions on any number of issues important to us.  These range from a favorite sports team, restaurant, or beach to opinions related to marriage, the environment, religion, politics, race, immigration, and so on.  Each of us is entitled to hold our opinions, whatever they are.  And, we are entitled to express them.  However, there is a difference in expressing an opinion on an issue, and maliciously attacking others who disagree.  Using the Internet for the later will never work in your favor.  Holding the view that you are “right” and everyone else is “wrong” doesn’t make it so.

Under other circumstances, where you’ve had a falling out with a boss, co-worker, friend, acquaintance, family member, peer at school, or neighbor, posting threatening, harmful, or otherwise inappropriate comments on the Internet is never a good idea.  The fact that you don’t like someone, or what someone has done, is your prerogative, but it is not your prerogative to actively engage in malicious conduct through the Internet designed to harm that person.

If you’ve got a problem at work or school, talk to a counselor or trusted mentor to see how things can be amicably resolved.  Resolution of more serious workplace issues is achieved through your company’s grievance procedures or, if perceived discrimination is at issue, through filing a complaint with the U.S. Equal Employment Opportunities Commission.  Similarly, every school will have counselors and procedures for addressing conflicts between students, or between teachers and students.  And, if you feel discriminated against at school, you also may file a complaint with the Office of Civil Rights at the U.S. Department of Education.

If you’ve got a problem with someone outside of work or school, there are alternatives to mindless ranting on the Internet.  If you feel physically threatened by the person, or if you’ve suffered damage to your property because of the person, go to the police and file a report.

If you’re mad at someone, and the person is not important in your life or a required part of your life, then don’t have anything further to do with the person.  If this person is important to you, or is a continuing part of your life, talk to a trusted friend or family member who is not involved in the dispute to explore solutions to the distress you are experiencing.  In the grander scheme of things, the vast majority of disputes between people can be resolved simply by speaking to each other in person and sharing how they feel.

In the end, it is important to consider that lambasting an individual on the Internet does nothing to resolve a problem and, in serious cases, it will lead to the imposition of serious criminal penalties (fines and/or imprisonment) and civil money damages against you.

√       Employers

Often, employers research a job applicant’s (or employee’s) social media information because they want to know as much about him or her as possible. This is problematic for a variety of reasons.  First, this social media trolling can lead to an employer having access to discriminatory information.  The employer can determine (or assume) certain things about the employee or job seeker, such as race, gender, pregnancy, medical information, genetic information, disability, age, religion, and national origin based on the candidate’s social media postings.  This, in turn, can lead to adverse employment actions, i.e. non-selection, non-promotion, and/or termination, of an individual for illegal reasons.

For example, an employer may say, “He is in a wheelchair and we don’t have the resources to deal with that,” or “I commend the fact that she participates in Running for the Cure for Breast Cancer, but we don’t want to incur extra medical expenses.”  It is highly-problematic for employers to make assumptions about a job candidate or employee, his or her lifestyle, family, or friends, based on information gathered from social media sites.  Indeed, these assumptions may lead an employer to engage in prohibited discrimination.

In some instances, employers may see malicious postings by third parties to someone else’s pages.  This is a very serious problem.  Hacking Facebook, LinkedIn, and other social media pages is not unheard of, and it can have terrible consequences for the victim as well as for the employer that uses the misinformation from these malicious postings to make employment decisions affecting the victim.

Employers must be aware of state laws pertaining to their use of social media in conducting background checks, and of the potential pitfalls when an employer’s adverse employment decisions are based on material gleaned from social media.

As permitted by state law, if an employer insists on using social media to inform its decisions regarding a job candidate (selection) or employee (promotion, termination, and the like), then it should take the following steps to ensure proper use of social media information:

●      Written policies and procedures should be in place addressing when, what, how, and by whom social media information is reviewed.  Employers must be consistent about what information is gathered from social media sites.

●      Employers must document what social media information is considered and what prohibited information is not gathered and considered (i.e. information pertaining to an individual’s sexual orientation, age, disability, religion, and the like).

●      Employers should verify the information gathered from social media is necessary, and that the information is not the product of malicious postings.

√             About the author

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

 

 

U.S. Department of Labor’s Civil Rights Center Finds State Violated Federal Nondiscrimination Laws

Saturday, June 1st, 2013

On April 5, 2013, the U.S. Department of Labor’s Civil Rights Center (CRC) issued a 56-page Initial Determination in Miami Workers Center v. Florida Dept. of Economic Opportunity, Division of Workforce Services, CRC Complaint No. 12-FL-048, finding the State’s electronic filing system for unemployment insurance (UI) benefits had a discriminatory effect on limited English proficient (LEP) persons and persons with disabilities in violation of Title VI of the Civil Rights Act, Section 504 of the Rehabilitation Act, Title II of the Americans With Disabilities Act, and Section 188 of the Workforce Investment Act (WIA).  Based on these violations, the CRC concluded Florida must take certain corrective actions, or face a slew of sanctions, including termination of Department of Labor (DOL)-funding.

Although this determination involves a DOL-funded UI benefits program, the lessons learned are highly-instructive for Equal Opportunity (EO) professionals charged with ensuring their federally-assisted programs and activities operate in compliance with federal civil rights laws.

A copy of the CRC’s initial determination may be found through the National Employment Law Project (NELP) website at http://nelp.3cdn.net/2c0ce3c2929a0ee4e1_wim6i5ynx.pdf.  The State filed a response on June 5, 2013, which is located at http://www.floridajobs.org/news-center.  See June 2013 blog post titled, “State Challenges Investigative Techniques of Federal Civil Rights Office.”

√             Jurisdiction

Having traced funding for Florida’s UI benefits program back to a multi-million dollar grant from DOL’s Employment and Training Administration, the CRC concluded Florida was a “recipient” of DOL funding.  From this, the CRC determined it had jurisdiction to investigate the State’s policies and procedures in delivering its UI benefits program for possible violations of applicable federal civil rights laws.

In the course of this discrimination complaint investigation, a week-long onsite review of Florida’s UI claims process was conducted during which time a number of individuals were interviewed (including the State EO Officer, Florida’s Unemployment Compensation Manager, UI call center personnel, and individual complainants).  Additionally, over a period of several months, written materials and website pages were reviewed, and numerous e-mail exchanges took place between CRC investigators and State officials.

√             The issue

At the crux of the discrimination complaint was Florida’s shift from allowing claims for UI benefits to be filed by mail, telephone, and Internet, to a system that focused on filing claims by Internet only.  And, in addition to an lengthy claim form, individuals pursuing UI benefits under the new system also had to complete an online 45-question Initial Skills Review.

The conversion to an Internet filing system was mandated by Florida’s legislature, which passed a bill requiring all claims for UI benefits be filed electronically effective August 1, 2011.  Although certain limited exceptions to electronic filing were permitted, these exceptions were not widely-publicized or otherwise known to individuals filing for UI benefits.

Although Florida maintained its “modernization” efforts requiring electronic UI claims filing was designed to “improve the claims, benefits, and appeals processes and strengthen the relationship with Workforce Services for quicker reemployment,” the complaint alleged LEP persons and persons with disabilities were effectively denied access to apply for UI benefits under the new system.

√             National origin-based discrimination established

U.S. Census Bureau’s American Community Survey (ACS).  As an initial matter, the CRC accepted Florida’s use of the ACS to find “the two top languages spoken at home in Florida, following English, are Spanish (spoken by approximately 18.8% of the State population) and ‘French Creole’ (spoken by approximately 1.7% of the State population).”  The CRC agreed the Spanish and Creole languages “are used by a significant number or proportion of the State population.”

Florida’s LEP-related obligations.  The CRC explained, as a “recipient” of federal funding, Florida has two LEP-related obligations under federal civil rights laws:  (1) Florida must communicate in the language(s) used by a “significant number or proportion” of its service area population; and (2) Florida must assess “the particularized language needs” of LEP persons who “communicate in less-widely-used languages.”  Thus, even if the LEP person speaks a language that a staff person has never heard before, Florida must have a system in place to identify the language and provide interpretation and/or translation services to afford the LEP person “meaningful access” to the program.  Moreover, Florida must widely-publicize the fact that interpretation and translation services will provided at no charge to LEP persons.

No “meaningful access” provided.  Based on its investigation, the CRC found Florida did not provide “meaningful access” to the UI claims process for LEP persons.  Here, the CRC cited to several deficiencies, including the following:

●      Florida failed to translate “vital” website information in other languages.  For example, the “Instructions for Filing a Claim and Registering for the Initial Skills Review” appeared only in English on the website.

●      Updates to the website were provided regularly in English, but some updates were not provided on the Spanish or Creole versions of the website.

●      A link to Florida’s “Online Help Center” was provided only on the English version of the webpage.

●      The “Equal Opportunity is The Law” notice was translated into Spanish and Creole, but the discrimination complaint form was not available online in Creole.

●      A link to contact the UI office by e-mail appeared only on the English version of the website.

●      The State relied on LEP callers to provide their own interpreters (such as a family member or friend) to navigate the UI claims process.

And, although Florida had a telephone system in place as a secondary means for filing UI claims, the CRC found it was neither widely-publicized nor did it provide “meaningful access” to LEP persons for a number of reasons.  With regard to an LEP person speaking Spanish or Creole, the CRC noted:

[T]he deficiencies (in the telephone system) include the provision of outgoing recorded messages in English only, even on phone lines dedicated to (Spanish and Creole); callers’ inability to reach a live attendant after pressing a button for the appropriate language; undue delays waiting for interpreters; calls with Spanish (interpreters) that were dropped mid-conversation . . ..

Moreover, the CRC noted LEP persons were not informed, orally or through the posting of written notices, that they could file their UI claims and questionnaires by telephone instead of filing the claims electronically.

With regard to Florida’s ability to serve LEP persons who did not speak Spanish or Creole, the CRC found the State failed to have a system in place to “meet (their) particularized language needs.”  Notably, the CRC found Florida’s UI program personnel operated based on “ill-advised and inaccurate assumptions”; that is, personnel assumed LEP persons:

●      “can understand some English, if you’re speaking slowly”; and

●      LEP persons are able to recognize the English word “language,” and can then identify the language in which they communicate.

In support of its finding of violations, the CRC cited to the logs of various language “testers” utilized during the investigation (the testers spoke languages such as Portuguese, Hindi-Punjabi, Polish, and Russian), which revealed a lack of “meaningful access” to the UI benefits program.  Indeed, the CRC noted, at times, the testers were subjected to abusive language by call center operators.  In one case, the call center attendant stated, “I only speak English.  Speak English.”  During another call, the tester was told, “I don’t speak jibberish so call when you know English.”

Further, the call center attendants failed to identify the correct language of the testers, and the testers experienced undue delays in reaching a live attendant, or were never connected to a live attendant.  Additionally, when a tester was connected to a live attendant, the tester was misinformed about the UI claims process, or the call was dropped in mid-conversation.

Overall, the CRC concluded Florida’s system of delivering UI benefits failed “to provide meaningful access to accurate information” for LEP persons.

√             Disability-based discrimination established

Likewise, Florida’s UI benefits system violated WIA’s equal opportunity mandates when serving persons with disabilities.  Specifically, the CRC noted the system “deprive(s) persons with disabilities of equal opportunity.”  The CRC explained Florida is obliged to ensure its system of communicating with persons with disabilities is as effective as its system of communicating with others.  Moreover, Florida cannot segregate persons with disabilities, or use criteria or methods of operation that tend to screen them out of the claims process, or deny them access to the program.

In the course of its investigation, the CRC noted Florida’s Division of Workforce Services Director acknowledged the State took “no steps to make the on-line filing system accessible to persons with disabilities.”  The CRC found persons with visual or hearing impairments were denied effective means of communications during the UI claims process.  One example cited by the CRC involved persons with hearing impairments and their experiences at Florida’s American Job Centers:

Attorneys for the Complainant provided declarations from two claimants who were born deaf, communicated most effectively in American Sign Language (ASL), and do not understand complex written English.  Both claimants attempted to file for (UI) benefits . . . by going to WorkSource Career Centers and asking for help to file their claims.

In one case, a member of the Center’s staff attempted to help a hearing impaired individual file his claim online without the assistance of an ASL interpreter and, as a result, incorrect information was included in the claim.  A second hearing-impaired person stated the following about his experience at an American Job Center:

The representative didn’t understand what I was saying.  I told them they were required to provide an interpreter; I showed them a card that stated so.  They made excuses and said they were too busy and I would have to wait.  They then kept me waiting for about two-three hours.  I needed to get home and couldn’t wait any longer, so I left.

In the end, the CRC found Florida engaged in disability-based discrimination in its system of delivering UI benefits.

√             Remedies

The CRC’s proposed remedies in this determination are quite sweeping.  In directing that Florida take certain corrective steps, the CRC stated:

[T]hese steps must include actions to end and/or redress the above-described deficiencies; make-whole relief for individual victims of discrimination; and other remedial or affirmative relief.

Failure to achieve voluntary compliance with applicable civil rights laws could, according to the CRC, result in the ultimate termination of DOL funding to Florida:

 . . . DOL will take appropriate enforcement actions as authorized by the applicable laws and their implementing regulations.  Such actions may include, but are not limited to, referral of the matter to the Attorney General with a recommendation that an appropriate civil action be instituted; issuance of a Final Determination, which initiates administrative procedures to suspend, terminate, deny, or discontinue Federal financial assistance from DOL; or such other action as may be provided by law.

Some examples of the corrective steps put forth by the CRC to ensure nondiscrimination for LEP persons in Florida’s system of delivering UI benefits are as follows:

●      providing written translation of all “vital” website and written materials related to the UI benefits program into Spanish and Creole;

●      immediately ceasing any requirement that LEP persons provide their own interpreters;

●      training staff at American Job Centers and call centers to understand their obligations to provide interpreters for LEP persons as well as how such interpreters will be provided;

●      training call center staff regarding how to properly respond to LEP callers, including callers who speak no English at all;

●      widely-publicizing (in written form and through broadcast media) options to the online UI filing system for LEP persons, such as “informing (LEP) claimants that they may file by telephone”; and

●      monitoring the telephone system “to ensure that (UI)-related services and benefits for LEP persons are neither denied nor delayed because of problems” with the system.

With regard to serving persons with disabilities, the CRC suggested Florida either make the online filing system “fully accessible for persons with varying types of disabilities, or provide an alternative method of filing claims that provides an equal degree of access as is provided for persons without disabilities.”  Moreover, the CRC directed that Florida develop, implement, and widely-publicize “detailed procedures” for handing requests for communication assistance, including interpreting services such as ASL or Spanish Sign Language, and providing Communications Access Real Time (CART) transcriptions.

Finally, as previously noted, the Initial Determination calls for Florida to provide “make-whole” relief to LEP individuals and individuals with disabilities who “were denied any (UI) benefits to which they would have been entitled but for (Florida’s) unlawful actions . . ..”

√             About the author

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

 

Help Writing Policies and Procedures to Implement Civil Rights Laws

Tuesday, January 1st, 2013

Often, you know the civil rights laws that apply to your federally assisted programs and activities (such as Title VI of the Civil Rights Act, the Rehabilitation Act, the Age Discrimination Act, the Workforce Investment Act, Title IX of the Education Amendments Act, and so on), but you get stuck trying to figure out how to implement these laws on the ground. We can help.

For a one-time cost, we will work with you to develop policies and procedures tailored to the structure of your organization, and the nature of the federally assisted programs and activities you offer. There are a variety of procedures required to document your compliance with civil rights laws, including:

● Discrimination complaint procedures
● Procedures for serving limited English proficient (LEP) populations
● Procedures for serving persons with disabilities and handling accommodation requests
● Procedures for handling religious-based accommodation requests
● Procedures for gathering, handling, and storing medical information
● Procedures for including required assurances language on all agreements

We also offer a variety of consultation services from on-site consultation and training to off-site desk audits of your website and other written materials. We work hard to provide the most cost-effective recommendations for you to ensure compliance with federal nondiscrimination and equal opportunity mandates. Failure to comply with federal civil rights laws in delivering aid, services, training, or benefits to the public may result in the loss of funding.

You’ll find more information about our services at www.titleviconsulting.com.

About Seena Foster.

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

The WIA Equal Opportunity Officer: Who Are You? To What Are You Entitled? What Are You (supposed) To Do?

Tuesday, January 1st, 2013

Who are you?

Let’s start with who you are. Most likely, you have been appointed the Equal Opportunity (EO) officer for your organization in addition to your “day job.” Yet, as the EO officer, you perform critical duties. You’ve joined the ranks of EO professionals across the country and the U.S. territories.

As a Workforce Investment Act (WIA) EO officer, you work for an organization that administers, or is financed by, WIA Title I funds. Most likely, the U.S. Department of Labor is your federal funding agency. Your organization may be a state or local government agency, an unemployment insurance call center, a workforce investment board, a LWIA grant recipient, the operator of a One-Stop, a service provider or eligible training provider, an on-the-job-training employer, a Job Corps operator or contractor, or a placement agency.

You are a “senior-level” employee within your organization and you have direct access to top management for purposes of reporting on EO matters.

And, while most of you have duties associated with your “day jobs”, these duties do not create a conflict, or the appearance of a conflict, of interest with your EO duties. Here it is important to recognize that conflicts of interest may arise if you are part of your organization’s human resources (HR) or legal departments, or if you report EO matters to someone in your organization’s HR or legal departments. If you are unsure whether a conflict of interest, or the appearance thereof, exists between the duties of your “day job” and your EO duties, then you should consult with your state-level EO leadership, or the civil rights office of your federal funding agency.

To what are you entitled?

The organization you serve has certain responsibilities which are designed, by law, to enable you to properly perform your EO duties.

The organization is obliged to make your name, position title, and telephone number (voice and TDD/TTY) available to the public and it must ensure that this information appears on all communications pertaining to its nondiscrimination and equal opportunity programs. It is reasonable that this would include communications distributed through outreach, during orientation, on your organization’s website, and the like.

Moreover, the organization is obliged to:

● assign sufficient staff and resources to enable you to do
your job;
● provide you and your assigned staff the opportunity to receive training to maintain your competency; and
● provide you with the necessary support of “top management” to ensure compliance with WIA’s nondiscriminatory and equal opportunity provisions.

And, it is worth repeating, that the law requires that you have access to report EO matters directly to an appropriate high-ranking official, such as your state-level WIA director, the Governor’s WIA liaison, a Mayor’s WIA liaison, Job Corps Center director, SESA Administrator, or LWIA grant recipient, and the like.

What are you (supposed) to do?

As a WIA EO officer, we know that your organization receives federal taxpayer dollars (WIA Title I funds) to administer programs and activities for the benefit of the public you serve. With these taxpayer dollars comes a legal obligation to provide benefits, aid, services, and training in compliance with WIA’s nondiscrimination and equal opportunity mandates.

Noncompliance can lead to reduction, or elimination, of federal funding. Thus, the importance of your role as the EO officer cannot be overstated. You are the person who is designated to coordinate your organization’s compliance with these nondiscrimination and equal opportunity laws.

You should know that your state or U.S. territory must submit a document called the Methods of Administration for approval by the U.S. Department of Labor’s Civil Rights Center every two years. This resource is generally developed by your state-level EO leadership and is signed by your governor. It contains the policies and procedures your state or U.S. territory has determined will be used to ensure compliance with WIA’s nondiscrimination and equal opportunity laws. It is worthwhile for you to be generally familiar with the location and contents of this resource.

As a WIA EO officer, you serve as your organization’s liaison with the Civil Rights Center (CRC). Any EO officer should be familiar with the location of, and contact information for, his or her organization’s federal funding agency. For WIA EO officers, the phone number for the CRC’s enforcement office is (202) 693-6502 (voice). The TTY is (202) 693-6516. The e-mail address is: CRCExternalComplaints@dol.gov. The physical address for the CRC is: U.S. Department of Labor, Civil Rights Center, 200 Constitution Ave., NW, Room N-4123, Washington, DC 20210. The CRC’s Office of Compliance and Planning, which may be able to offer technical and compliance assistance, is reached at (202) 693-6501 (voice).

In addition to serving as a liaison to the CRC, monitoring and investigating your organization’s activities to ensure compliance with nondiscrimination and equal opportunity laws are part of your duties as an EO officer. Here, you must have an understanding of how your organization operates each of its federally-funded programs and activities, and make sure that staff knows and understands the policies and procedures in place to prevent violations of the nondiscrimination and equal opportunity laws.

Speaking of written policies and procedures, as the EO officer, you are also responsible for reviewing these written documents to ensure that they are nondiscriminatory (see my prior blog titled, “The Importance of ‘The Script’”). To meet this obligation, you must have a complete collection of your organization’s policies and procedures pertaining to delivery of each of your federally-funded services, aid, benefits, and training. If you have questions regarding the propriety of any particular policies and procedures, contact your state EO leadership, or the civil rights office of your federal funding agency for guidance. You may also take a look at the policies and procedures set forth in your state’s or territory’s MOA.

Investigating discrimination complaints is another responsibility of the EO officer. For this, you must familiarize yourself with your organization’s discrimination complaint procedures. If no procedures are in place, you are responsible for developing and publishing such procedures. For this, you may seek guidance from your state EO leadership, the MOA, or the civil rights office of your federal funding agency. Moreover, our publication, Civil Rights Investigations Under the Workforce Investment Act and Other Title VI-Related Laws: From Intake to Final Determination, is highly-recommended as a comprehensive, detailed, easy-to-follow resource. You may order a copy by visiting our website at www.titleviconsulting.com.

Finally, you are obliged to report EO matters to top management officials in your organization. Moreover, if directed by top management, you are compelled to attend training, paid by your organization, to maintain your competency in EO matters.

In sum, you are the eyes, ears, and voice on the front lines. You serve as liaison, monitor, investigator, policy developer, reviewer, and coordinator of critical, legally-mandated functions designed to ensure the nondiscriminatory delivery of federally-funded programs and activities to the public.

For regulations applicable to WIA EO officers, see 29 C.F.R. Part 37.

About the author.

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

Harassment at Colleges and Universities: An Overview of Policies and Preventative Measures

Tuesday, January 1st, 2013

One of the most productive ways to prevent harassment and hostile environment on your campus is developing and (regularly) publishing policies and procedures related to handling these types of complaints. Ms. Foster offers a one-hour webinar designed to help you navigate the process of developing effective methods of operating.

Date: Thursday, January 17, 2013

Time: 1:00 pm Eastern Standard Time

Cost: $34.95

Description:

In the course of this webinar, we will define quid pro quo harassment and hostile environment and explore the policies and preventative measures colleges and universities can develop and implement to curb these forms of discrimination. Numerous federal civil rights laws are at issue, including (1) Title IX of the Education Amendments Act (Title IX), which prohibits gender-based discrimination in educational programs and activities, (2) Title VI of the Civil Rights Act, which prohibits discrimination on the bases of race, color, and national origin, (3) the Rehabilitation Act and the Americans With Disabilities Act and their amendments, which prohibit discrimination on the basis of disability, and (4) the Age Discrimination Act, which prohibits discrimination on the basis of any age. Quid pro quo harassment and hostile environment (including bullying) constitute forms of discrimination, and a college or university that fails to properly and adequately respond to such allegations violates federal civil rights law, and is at risk of losing its federal assistance. This federal assistance includes grants, loans, and tuition payments made with federal funds, to name a few examples. Through the webinar, we’ll cover some nuts-and-bolts policies, procedures, and preventative measures any college or university can develop to properly address allegations of harassment and minimize its occurrence.

Developed for:

This webinar is designed for equal opportunity, human resource, and affirmative action personnel at educational institutions as well as the leadership, policy-makers, legal advisors, faculty, staff, and students at these institutions.

About Seena Foster.

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