RSS Feed!

Archives

Posts Tagged ‘hostile environment’

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.

Attorney Seena Foster, Award Winning Author Of ‘Civil Rights Investigations’, Announces New Sexual Harassment Webinar For Personnel At Educational Institutions

Monday, October 8th, 2012

photo of Seena Foster

The recurring training webinar titled ‘Sexual Harassment at Educational Institutions: An Overview of Policies and Preventive Measures’, provides information for equal opportunity, human resource, and affirmative action personnel at colleges and universities as well as the leadership, policy-makers, faculty, staff, and students

[Washington DC October 8, 2012] Seena Foster, attorney and award winning author of ‘Civil Rights Investigations Under The Workforce Investment Act And Other Title VI-Related Laws’, recently announced the next date for ‘Sexual Harassment at Educational Institutions: An Overview of Policies and Preventive Measures’, an online webinar that provides information on developing policies and implementing preventative measures to prevent sexual harassment at educational institutions. The webinar will be presented on Thursday, October 25, 2012 at 1pm EST.

In the course of this webinar, Ms. Foster will use the sexual harassment case involving Jerry Sandusky and Penn State as an example of some concrete steps any educational institution can take in developing policies and implementing specific measures to address and prevent sexual harassment. The events leading up to the conviction of Mr. Sandusky involved use of university facilities to engage in sexual behavior with minors. The scope of this webinar, however, will be broader. Title IX of the Education Amendments Act (Title IX) prohibits gender-based discrimination in federally assisted educational programs and activities. Quid pro quo sexual harassment and hostile sexual environment (including bullying) constitute forms of gender-based discrimination, and a college or university that fails to properly and adequately respond to such allegations violates Title IX 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, Ms. Foster will help participants better understand the concepts of quid pro quo sexual harassment and hostile sexual environment, and will cover some nuts-and-bolts policies, procedures, and preventative measures any college or university can develop to properly address allegations of sexual harassment and minimize its occurrence.

“Sexual harassment,” stated Ms. Foster, “at colleges and universities is a very real concern. It affects every campus, small or large, across the country and the advent of technologies such as YouTube, Twitter, and Facebook have only compounded the challenges faced by leadership at these institutions in navigating the handling of sexual harassment complaints. In fact, many campus professionals are at a loss as to how to properly recognize and resolve sexual harassment complaints and, often, they don’t have measures in place to prevent harassment from occurring in the first place. The nationally-recognized trial involving Jerry Sandusky and Penn State’s response to allegations of sexual harassment shed light on how critical this complex issue has become. That is why we developed this webinar. Keeping leadership, policymakers, faculty, and staff up-to-date in this area of the law is critical to the health of any institution of higher learning. Our training has been described as “top-of-the-line” and that is what we deliver the participants of this Webinar.”

Participants can get more information and register for the webinar by visiting http://www.titleviconsulting.com and clicking on the ‘Webinar’ tab.
Ms. Foster is available for media interviews and can be reached using the information below or by email at seena@titleviconsulting.com. ‘Civil Rights Investigations Under The Workforce Investment Act And Other Title VI-Related Laws’ is available at Amazon and Barnes & Noble throughhttp://www.outskirtspress.com/civilrights. More information is available at Seena Foster’s website.

Profile:

Seena Foster, award winning 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.

Contact:

Seena Foster
www.titleviconsulting.com
seena@titleviconsulting.com