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Political Affiliation Discrimination by Seena Foster

Wednesday, September 5th, 2018

Political affiliation discrimination occurs when an adverse action is taken against a person based on the person’s political affiliation or beliefs. Political affiliation discrimination may arise in federally-assisted programs and activities as well as in the workplace. As the equal opportunity professional for your agency or organization, you must know the federal civil rights laws that apply to your agency or organization, and whether those laws prohibit discrimination on the basis of political affiliation.

We are going to explore two areas where political affiliation discrimination is prohibited by federal civil rights laws—one example involves federally-assisted programs and activities under the Workforce Innovation and Opportunity Act (WIOA), and the second example involves employment decisions of public employers.

Federally-assisted programs and activities

Starting with federally-assisted programs and activities, Section 188 of WIOA prohibits discrimination in certain workforce development programs on a variety of bases, including political affiliation or belief. Unemployment insurance benefits, employment referral services, on-the-job training, resume writing, and interview skill development are some examples of the aid, training, services, and benefits funded by the federal government through WIOA. American Job Network centers, Job Corps centers, and certain community colleges are prime examples of WIOA-Title I funded recipients and sub-recipients that are prohibited from engaging in political affiliation discrimination in delivering aid, benefits, services, and training to the public. And, any state, U.S. territory, or other recipient receiving WIOA-Title I funds also must comply with WIOA’s prohibition on political affiliation discrimination.

To provide an example of political affiliation discrimination prohibited by WIOA Section 188, let’s say that a new political party received the majority of votes in your state or U.S. territory. Members of the new party take office and they issue a Request for Proposals (RFP) for organizations and companies to apply for WIOA grant monies to deliver training to unemployed persons. Reviewers of the 100 proposals select 25 organizations and companies for the WIOA grants. Of these 25 entities, a total of 24 entities are owned by persons whose known political affiliations are aligned with those of the new party in office. Only one entity has a known political affiliation with the former party in power. Of the 75 entities not selected for the grants, 55 have known political affiliations with the former party, 5 have unknown political affiliations, and 15 have known affiliations with the new party. If the new party has, in fact, considered an entity’s political affiliation in determining whether the entity would receive a WIOA-funded grant, then the new party has engaged in political affiliation-based discrimination in violation of the nondiscrimination mandates of WIOA Section 188. As a result, the RFP process would be null and void.

So, if you administer or operate WIOA-Title I programs or activities, you are prohibited from basing your decisions regarding delivery of aid, benefits, services, or training on an applicant’s, participant’s, or beneficiary’s political affiliation or belief. As the equal professional for an agency or organization operating these programs, you must train staff and decision-makers that aid, benefits, training, and services cannot be doled out based on political affiliation. Monitor your systems of delivery to ensure continued adherence to this nondiscrimination mandate.

Public employers

Turning to the workplace, the Civil Rights Act of 1871, which applies to public employers and is codified at 42 U.S.C. § 1983, prohibits political affiliation discrimination. Public employers include state and local governments as well as other entities like publicly-funded colleges and universities, the police, and so on. This federal civil rights law requires that employment decisions, such as selection, promotion, and termination cannot be based on consideration of the employee’s or potential employee’s political affiliation or belief.

Take, for example, the case of Wagner v. Jones, 664 F.3d 259 (8th Cir. 2011), where the Dean of a publicly-funded college of law denied a legal writing teaching position to an applicant because of the applicant’s political affiliation. Notably, the applicant’s conservative political affiliations and beliefs were apparent from her resume, which reflected a background with certain conservative educational institutions and employers. Evidence of record demonstrated that one out of 50 law school faculty members at the college was a registered Republican. And, the court noted that two, less experienced applicants were later hired for the position at issue. In the end, the court concluded that the Dean presented insufficient evidence to demonstrate that the applicant’s political affiliation was not a factor in the employment decision.

So, if you are the HR/EEO professional for a public employer, engage in training and outreach to managers and supervisors, including political appointees at the highest levels of your agency or organization, and inform them of them of their obligations and responsibilities of nondiscrimination based on political affiliation. Help them understand that political affiliation discrimination can take many forms from the more commonplace acts of non-selection, non-promotion, and termination to other acts such as engaging in hostile environment based on political affiliation, providing an adverse performance appraisal, relocating a worker to a less desirable office, and so on. Managers and supervisors should base employment-related decisions on the knowledge, skills, and abilities evident from an applicant’s educational background and experience, not the applicant’s political affiliation or belief.

However, for public employers, there is an exception to this rule that merits comment. Notably, employment decisions related to “confidential” employees and senior “policy-makers” may be based on the employee’s or potential employee’s political affiliation or belief without running afoul of federal civil rights laws. Keep in mind that this exception will apply to a very narrow category of folks working for, or seeking to work for, a public employer.

Here, we’ll take a look at another circuit court case that is illustrative. In Soderbeck v. Burnett County, Wisconsin, 752 F.2d 285 (7th Cir. 1985), the circuit court was confronted with a newly-elected sheriff’s decision to terminate an office employee because the employee was the wife of the former sheriff who lost the election. The Seventh Circuit provides a helpful discussion on the issue of “confidential” employees and “policy-makers” in the context of political affiliation discrimination:

A public agency that fires an employee because of his political beliefs or political affiliations infringes his freedom of speech, see Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), but there are exceptions to this principle, carved out to minimize its adverse impact on the effective functioning of government. For example, employees at the policy-making level of government can be fired on political grounds. Id. at 367-68 (plurality opinion); Shakman v. Democratic Organization of Cook County, 722 F.2d 1307, 1309-10 (7th Cir.1983) (per curiam). Mrs. Soderbeck was not a policy maker; but if, as the defendants argue, she was the sheriff’s confidential secretary, then Kellberg could fire her without violating the Constitution. See Stegmaier v. Trammell, 597 F.2d 1027, 1038 (5th Cir.1979) (dictum). You cannot run a government with officials who are forced to keep political enemies as their confidential secretaries, and Mrs. Soderbeck was the political enemy of her husband’s political enemy, Kellberg. Any implication of the plurality opinion in Elrod v. Burns that only a policy maker is unprotected by the principle announced in that case was superseded by the broader formulation in the majority opinion in Branti v. Finkel, which allows an employee to be fired if ‘the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.’ 445 U.S. at 518, 100 S.Ct. at 1294. See also Livas v. Petka, 711 F.2d 798, 800-01 (7th Cir.1983). It need not be a policy-making office. If Rosalynn Carter had been President Carter’s secretary, President Reagan would not have had to keep her on as his secretary.

Mrs. Soderbeck, however, had been trained as a bookkeeper and her title was bookkeeper, not secretary or confidential secretary; and though she did do most of the typing in the sheriff’s office, there was evidence that if the sheriff needed something typed he would hand his handwritten draft to whoever in the office was handy. Burnett County has a population of only 12,000 and a tiny sheriff’s office whose six employees at the time of Mrs. Soderbeck’s termination did not have sharply differentiated tasks; it was only after she was fired that a position of “confidential secretary” was created with a different job description from that of the bookkeeper’s position that Mrs. Soderbeck had occupied. So while she did typing and handled legal papers, such as summonses and warrants, the other employees did these things too. She also did janitorial work, and performed domestic chores for the prisoners in the county jail (which is in the same building as the sheriff’s office and home) as jail matron and laundress–not the usual functions of a confidential secretary. And she did not take dictation–no one in the office did. If she could be fired as a confidential employee, so could anyone else employed in the office, on the theory that if an office is small enough the tasks usually performed by the boss’s personal secretary may be parceled out among all the employees.

This is not to say that Mrs. Soderbeck was, as a matter of law, an employee who could not be fired because of her political affiliation. It is to say merely that the question was sufficiently uncertain to be one for the jury to decide. The defendants argue that whether or not an employee exercises a policy-making role or is a repository of confidences that make loyalty an essential part of his job description should always be a question of law, but we cannot agree with this point, for which no authority is offered, and which has been rejected in previous cases in this and other circuits. See, e.g., Nekolny v. Painter, 653 F.2d 1164, 1169 (7th Cir.1981); Stegmaier v. Trammell, supra, 597 F.2d at 1034 n. 8, and cases cited there.

If you are the HR/EEO professional for a public employer seeking to terminate, or take some other adverse action, against an employee because of the employee’s political affiliation, make sure the employee falls in the category of a “policy-maker” or “confidential employee.” While job titles and job descriptions may assist in this determination but, standing alone, job titles do not determine the outcome. You’ll need to get into the weeds of the employee’s actual day-to-day job duties and functions. Concluding that an employee is, or is not, a “policy-maker” or a “confidential employee” involves very fact specific findings that must be made on a case-by-case basis.

About Seena Foster

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

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

With a passion for ensuring nondiscrimination and equal opportunity in the delivery of federally-assisted programs and activities, Ms. Foster remains highly active in the field through her series of on-demand webcasts for equal opportunity professionals as well as through her mediation services, training, and assistance developing policies and procedures designed to ensure compliance with applicable federal civil rights laws. Her training in the areas of compliance and complaint investigations has been described as “dynamic,” “hitting the nail on the head,” “well-organized,” and “informative.” And, her award-winning book on conducting discrimination complaint investigations is viewed as “eye-opening” and “the best on the market.” In 2007, Ms. Foster was certified as a mediator by the Virginia Supreme Court, and later obtained “Federal Workplace Mediation” certification through the Northern Virginia Mediation Service.

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

Harassment and Hostile Environment: Understanding the Basics by Seena Foster

Tuesday, May 15th, 2018

If you are the Equal Opportunity (EO) professional charged with ensuring nondiscrimination in the delivery of federally-funded programs and activities, or you serve as the Equal Employment Opportunity/Affirmative Action/Human Resources (EEO/AA/HR) professional charged with ensuring nondiscrimination in the workplace, you must have a working knowledge of “harassment” and “hostile environment.”

√ Two categories of harassment-related complaints.

Let’s start with an understanding that complaints of harassment-related discrimination fall into one of two categories: (1) quid pro quo harassment; or (2) hostile environment harassment.

Whether a complaint involves allegations of quid pro quo harassment or hostile environment, the conduct must be “unwelcome.” And, who defines whether conduct is “unwelcome”? Harassment is defined “through the eyes of the beholder”; namely, the person subjected to the harassing conduct defines whether the conduct is offensive and unwelcome.

√ Harassment is discrimination.

“Harassment” and “hostile environment” constitute forms of discrimination, regardless of whether the “harassment” or “hostile environment” occurs in federally-funded programs and activities, or in the workplace.

When we hear the word “harassment,” many of us first think of “sexual” harassment. To be sure, harassment on the basis of “sex” is a form of sex discrimination that is barred by federal law in the workplace, and in the delivery of federally-funded services, aid, training, and benefits.

That being said, it is equally important to keep in mind that harassment or hostile environment may occur on any prohibited basis of discrimination, including race, national origin, color, disability, age, and others. For example, you may see a complaint of race-based hostile environment, or a religion-based quid pro quo harassment complaint.

√ Quid pro quo harassment defined.

In the simplest of terms, quid pro quo harassment takes the form of bartering—“you give me this, and I’ll give you that.” A workplace example occurs where Jane, a supervisor, offers her assistant, Jason, a bonus in exchange for sexual favors. Jane has engaged in prohibited quid pro quo sexual harassment. Notably, Jane’s decision-making regarding whether to give Jason a bonus should be based on bona fide work-related criteria, not through bartering to get Jason to have sex with her.

Similarly, an example in the arena of federally-funded programs and activities is where Scott, the employment-referral counselor at a job bank, refuses to refer Khalid to available security guard positions unless Khalid renounces his Islamic faith. Here, Scott has engaged in quid pro quo religious-based harassment—Khalid must give up his Islamic faith in exchange for referral to the security guard positions. This discrimination is illegal because Scott is obligated to base his decision to refer Khalid to security guard positions on whether Khalid meets the essential eligibility requirements for the referral, not Khalid’s religious beliefs or practices.

√ “Hostile environment” defined.

Turning to “hostile environment,” this type of discrimination does not involve the bartering of “you give me this and I’ll give you that.” Rather, a hostile environment is created where one person, or a group of people, engages in offensive conduct that is “so severe and pervasive” that it adversely alters another person’s workplace environment, or the person’s enjoyment of, and participation in, federally-funded programs and activities.

In determining whether conduct is “severe and pervasive,” the following factors should be considered: (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with an employee’s job performance, or with a person’s participation in, or enjoyment of, a federally-funded program or activity.

An example of “hostile environment” in the workplace is where Kristen works as a welder alongside eight co-workers, all of whom are men. Two of these co-workers are constantly telling sexist jokes, posting naked photos of women in the work area, and whistling at Kristen when she is working. Kristen is offended by the conduct, and she lets her co-workers know that it is unwelcome. When the conduct does not stop, Kristen files a complaint. Kristen’s complaint involves allegations of a “hostile sexual environment,” which adversely altered her working conditions.

In federally-funded programs and activities, an example of hostile environment occurs where a group of students at a public school posts derogatory remarks on Facebook about Josh, a student with a mobility disability. Moreover, they call him “crippled” and “stupid” in the hallways of the school, and deliberately place obstacles in front of his power chair. Josh files a disability-based hostile environment complaint. Here, the offending group of students created a “disability-based hostile environment” that, in turn, adversely altered Josh’s ability to enjoy, and participate in, the educational programs and activities offered at the school.

√ Retaliatory “hostile environment” is against the law.

Whether in the workplace, or in federally-funded programs and activities, creating a “hostile environment” against an individual in retaliation for filing an EEO complaint, or in retaliation for filing a discrimination complaint in a federally-funded program, also is prohibited. Every circuit court addressing this issue recognizes these complaints of “retaliatory hostile environment.”

If a person files a discrimination complaint, regardless of whether the complaint is ultimately successful or not, and then the person experiences “severe and pervasive” harassment from any member of your organization’s staff, your organization and the responsible staff members will be held liable. See Clegg v. Ark. Dep’t. of Corr., 496 F.3d 922 (8th Cir. 2007); Jordan v. City of Cleveland, 464 F.3d 584 (6th Cir. 2006); Jensen v. Potter, 435 F.3d 444 (3rd Cir. 2006), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006); Hussain v. Nicholson, 435 F.3d 359 (D.C. Cir. 2006); Noviello v. City of Boston, 398 F.3d 76 (1st Cir. 2005); Von Gunten v. Maryland, 243 F.3d 858 (4th Cir. 2001), abrogated on other grounds by Burlington N., 548 U.S. 53; Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000); Richardson v. N.Y. State Dep’t. of Corr. Serv., 180 F.3d 426 (2nd Cir. 1999), abrogated on other grounds by Burlington N., 548 U.S. 53; Gunnell v. Utah Valley State Coll., 152 F.3d 1253 (10th Cir. 1998); Knox v. Indiana, 93 F.3d 1327 (7th Cir. 1996).

For example, in Gowski v. James Peake, MD (Sec’y., Dept. of Veterans Affairs, et al), 682 F.3d 1299 (11th Cir. 2012), the circuit court noted, after two hospital physician-employees filed EEO complaints of gender-based and religious-based discrimination, they were subjected to “severe and pervasive” retaliation at work, including the spread of demeaning rumors about the physicians by management that damaged their professional reputations, denial of hospital privileges to the physicians that could adversely affect their certifications, excluding the physicians from participating in work-related functions, and other similar acts. The court found, taken as a whole, this conduct created a retaliatory hostile environment, and damages were awarded against the hospital.

√ Obligations of EO and EEO professionals.

Thus, whether you work as an EO professional in federally-funded programs and activities, or as an EEO/AA/HR professional handling workplace discrimination, you must be familiar with the policies and procedures of your agency or organization pertaining to harassment and hostile environment. If no policies or procedures are in place, you must ensure that they are developed and published. Management and employees in your workplace, as well as beneficiaries and potential beneficiaries of your federally-funded programs and activities must have notice of these policies and procedures.

If you receive a discrimination complaint based on harassment or hostile environment, you are required to take action. These complaints are fact-intensive and there may be more than one appropriate response to a particular complaint of harassment. Although only hindsight offers perfect clarity of what worked and what did not, doing nothing is never acceptable.

About the author.

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

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

With a passion for ensuring nondiscrimination and equal opportunity in the delivery of federally-assisted programs and activities, Ms. Foster remains highly active in the field through her series of on-demand webcasts for equal opportunity professionals as well as through her mediation services, training, and assistance developing policies and procedures designed to ensure compliance with applicable federal civil rights laws. Her training in the areas of compliance and complaint investigations has been described as “dynamic,” “hitting the nail on the head,” “well-organized,” and “informative.” And, her award-winning book on conducting discrimination complaint investigations is viewed as “eye-opening” and “the best on the market.” In 2007, Ms. Foster was certified as a mediator by the Virginia Supreme Court, and later obtained “Federal Workplace Mediation” certification through the Northern Virginia Mediation Service.

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

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.

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.”

WIA EO Officers and Equal Opportunity Professionals in Federally-Funded Programs: Assistance Developing Nondiscrimination Policies and Procedures

Friday, March 7th, 2014

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.

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 assessing corrective actions and sanctions
● 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 on all agreements as well as the use of taglines, posting the “Equal Opportunity Is the Law” posters, and data collection

We also offer a variety of consultation services, training, and off-site desk audits of your website and other written materials to help you ensure your organization’s compliance with federal civil rights requirements, and we work hard to provide the most cost-effective and practical recommendations for you. 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. Our customers appreciate the thoroughness and timeliness of our work. As an example, one senior county executive commented, “Your procedures document is very comprehensive and inclusive of all that I am aware that we need and beyond . . . it is a pleasure working with you.”

About Seena Foster.

Seena Foster, award-winning civil rights author and Principal of the discrimination consulting firm, Title VI Consulting, LLP in Alexandria, Virginia, provides expertise and guidance in the areas of 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, 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.

In 2003, Ms. Foster served as a Senior Policy Analyst to the U.S. Department of Labor’s Civil Rights Center (CRC). In that capacity, she led a team of equal opportunity specialists to conduct disability-based technical assistance reviews of One-Stop centers, and she assisted the CRC’s leadership in preparing for limited English proficiency-based compliance reviews. Ms. Foster also analyzed and weighed witness statements and documents to prepare numerous final determinations for signature by the CRC Director, which resolved discrimination complaints under a variety of federal civil rights laws such as Title VI of the Civil Rights Act, the Age Discrimination Act, the Rehabilitation Act, the Americans with Disabilities Act, and Section 188 of the Workforce Investment Act.

In 2006, Ms. Foster received the Secretary of Labor’s Equal Employment Opportunity Award in recognition of “exceptional efforts to ensure that individuals with disabilities have full access to employment and related services and benefits at the Nation’s One-Stop Career Centers.” And, at the request of the CRC, Ms. Foster served as a popular workshop speaker at national equal opportunity forums co-sponsored by the CRC and the National Association of State Workforce Agencies. Her presentations covered topics such as the WIA Section 188 disability checklist, conducting discrimination complaint investigations and writing final determinations, and conducting investigations of allegations involving harassment and hostile environment.

Ms. Foster is a graduate of the George Washington University Law School. You may contact her through www.titleviconsulting.com.

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.

 

 

Study Finds Negative Gender-Based Disparity in Pay and Jobs is Reinforced Through Workforce Investment Act Training Programs

Wednesday, July 3rd, 2013

In its June 27, 2013 study titled, “Workplace Investment System Reinforces Gender Segregation and the Gender Wage Gap,” the Institute for Women’s Policy Research found Workforce Investment Act (WIA)-funded training demonstrates “stark gender segregation in the jobs and careers for which women and men receive training.”  For example, over 47 percent of female WIA customers received training in the sales, clerical, and service (i.e. personal care aide) fields as compared to 14.6 percent of male WIA customers.  On the other hand, less than six percent of women received training in the fields of installation, repair, production, transportation, material moving, fishing, forestry, construction, and extraction skills as compared to more than 52 percent of men who received such WIA-funded training.

The Institute for Women’s Policy Research further found, based on economic data maintained by the U.S. Labor Department, “Women’s quarterly earnings are substantially lower than men’s once they exit federal workforce training services.”  The Institute asserts this wage gap between men and women differed by 74.6 percent in 2011.

Based on the significant disparities between men and women in training and wages, the Institute maintains “[m]ore proactive career counseling may encourage women’s entry into higher-earning, high-demand fields, and significantly enhance their chances of reaching economic self-sufficiency.”

To read this study in its entirety, go to http://www.iwpr.org/publications.

So, if you work in the area of equal opportunity, job referrals, job training, or the like at an American Job Network center or Job Corps center, you must be aware of whether these gender-based disparities in your WIA-funded programs and activities are occurring and, if so, you are required to take steps to offer training and other programs in a nondiscriminatory manner to men and women.  This means that women should not automatically be channeled to lower paying, or “traditional” fields; rather, each customer’s educational level, skills, and abilities must be reviewed and, regardless of gender, the customer should be afforded the fullest opportunity to pursue training for fields considered “non-traditional” for his or her gender.  The focus should be on whether the customer meets the “essential eligibility requirements” for a particular training program, not on the customer’s gender.

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 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.

EEOC Subpoena Authority: The Serious Consequences of an Untimely Challenge

Friday, February 1st, 2013

In EEOC v. Aerotek, Inc., Case No. 11-1349 (7th Cir. Jan. 11, 2013)(unpub.), a staffing company’s failure, within the regulatory-required five business days, to seek amendment or modification of the EEOC’s subpoena seeking certain recruitment, placement and other documents, in conjunction with a national origin-based discrimination investigation, resulted a waiver of Aerotek’s right to challenge the subpoena. This held true even though Aerotek’s challenge to the subpoena was filed within six business days, thus missing the regulatory period by only one day. So, if you receive a subpoena from the EEOC in conjunction with one of its investigations, and you seek to challenge the subpoena, you must act quickly and meet the five-day deadline set forth at 29 C.F.R. § 1601.16(b)(1).

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.

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.

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.