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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.

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

Thursday, February 1st, 2018

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

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

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

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

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

    The “Equal Opportunity Is the Law” notice

Equal Opportunity Is the Law

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

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

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

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

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

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

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

 What to Do If You Believe You Have Experienced Discrimination

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

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

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

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

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

√    Initial and continuing notice required

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

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

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

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

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

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

●     recruitment brochures;

●    orientation materials and presentations;

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

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

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

    The “EEO Is the Law” notice

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

Equal Employment Opportunity is THE LAW

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

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

RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN

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

DISABILITY

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

AGE

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

SEX (WAGES)

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

GENETICS

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

RETALIATION

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

WHAT TO DO IF YOU BELIEVE DISCRIMINATION HAS OCCURRED

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

Employers Holding Federal Contracts or Subcontracts

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

RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN

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

INDIVIDUALS WITH DISABILITIES

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

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

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

RETALIATION

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

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

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

√    Comparing the notices

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

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

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

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

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

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

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

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

√    Conclusion

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

About Seena Foster

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

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

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

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

Office of Disability Employment Policy Offers Resources for Veterans with Disabilities

Friday, November 22nd, 2013

Next week, many people across America will celebrate Thanksgiving by taking stock of their blessings — friends, family and the freedom to pursue their life and career goals. Fittingly, the holiday takes place during Military Family Month, a time when we express appreciation for the men and women who work to protect that freedom and the many spouses, parents, children and siblings who support them.

One of the best ways to express appreciation for military families is to ensure that uniformed service members — including those who have acquired disabilities — have the opportunity to put their hard-earned skills and real-world experience to work when they transition to civilian life.

In fact, many of the qualities businesses, both large and small, seek in employees — the ability to adapt, learn quickly and get the job done — exemplify veterans, including those with visible or non-visible disabilities. Yet, like people with disabilities overall, veterans with disabilities are often overlooked for jobs, despite many employers’ expressed desire to hire them.

Employers can access a variety of local services to identify qualified veterans, including veterans with disabilities. Of course, it’s also important to support veterans once on the job. To help, the Office of Disability Employment Policy’s Job Accommodation Network (JAN) offers a variety of materials, including information about accommodations that can enhance productivity for veterans with particular conditions.

Useful for businesses of all sizes in all industries, these resources can help foster a veteran-friendly workplace and offer a way to express gratitude — this month and every month — to those who have sacrificed in service in the name of freedom, and to their families.

For additional news and resources, go to www.dol.gov/odep.

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.

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

$3.5 Million in Punitive Damages: Hostile Work Environment Based on Race, Religion, and National Origin

Saturday, August 25th, 2012

On August 23, 2012, in May v. Chysler Group, LLC, Case No. 11-3000, the Seventh Circuit Court of Appeals upheld awards of $300,000 in compensatory damages and $3.5 million in punitive damages stemming from an employer’s insufficient actions to address Mr. May’s allegations of a hostile work environment based on race, religion, and national origin. As set forth by the court, to prevail in a hostile work environment claim, Mr. May must demonstrate that (1) he was subjected to unwelcome conduct based on his race, religion, or national origin, (2) it was sufficiently “severe and pervasive” to create a hostile or abusive work environment, and (3) there was a basis for employer liability. The court noted that Mr. May, a Cuban Jewish pipefitter, was subjected to 70 incidents of hostility over more than two years that included repeated punctures of the tires on his car and bike, derogatory graffiti in the company elevator, and written death threats in his tool among a number of other such incidents. While stating that an employer is not required to know exactly how to stop the harassing conduct at the time it is occurring, it must demonstrate that it took steps to put an end to the conduct and, when initial steps proved insufficient, it must demonstrate that it ramped up its efforts to stop the harassing conduct. To that end, the court observed that there was “scant” evidence that the company engaged in remedial efforts during this time period, such as possibly installing a camera near Mr. May’s tool chest or interviewing suspected employees. The court stated that the employer’s “response was shockingly thin as measured against the gravity of May’s harassment.” As a result, the court upheld the significant compensatory and punitive damage awards.

By contrast, the First Circuit Court of Appeals denied a race-based hostile work environment claim in Espinal v. National Grid NE Holdings, LLC, ___ F.3d ___, Case No. 11-1682 (1st Cir. Aug. 23, 2012). The court stated that, to impose liability on an employer in a hostile work environment claim, the plaintiff must demonstrate: (1) his co-workers’ harassment was sufficiently “severe or pervasive”; and (2) despite having notice of the harassment, the employer failed to take “prompt and appropriate remedial action.” In denying Mr. Espinal’s claim, the court held it was “clear” that the employer “took reasonable steps to address the alleged co-workers harassment based on the limited information Espinal was willing to provide.” Specifically, the court found:

The November 2006 incident occurred off-site and after company hours, and there were no National manager in attendance. Espinal’s direct supervisor only learned of the ‘rough night’ through Plaintiff’s co-workers, and he met with Plaintiff immediately after he learned of it. Plaintiff refused to disclose any details of the incident. Espinal’s direct supervisor then contacted his superiors, who scheduled and held a meeting at which two National managers, two union officials, and plaintiff were in attendance. This meeting ended when Plaintiff walked out, after refusing to disclose the names of his harassers. At the meeting following the December 2006 vandalism, a National manager of industrial relations provided Espinal with his personal cell phone number in case any other incidents occurred. Espinal never called, reported any additional incidents, or disclosed the names of any responsible parties. He also declined to meet with National following the filing of his harassment charge in January 2007.

Nonetheless, National managers did respond to plaintiff’s allegations. They met with union members and officials to discuss these incidents and reiterate National’s zero tolerance policy. National warned that any employee caught engaging in harassment would be terminated. The meeting was a prompt and appropriate response.

Thus, in both cases discussed in this paper, the employer held a meeting—National’s meeting constituted “prompt and appropriate” action because (1) Mr. Espinal would not divulge the names anyone allegedly harassing him, and (2) at a meeting, the employer emphasized its “zero tolerance” policy regarding harassment in the workplace and it notified employees that any person caught harassing Mr. Espinal would be terminated. On the other hand, in the meeting held by Chrysler’s management, there was no notification of a “zero tolerance” policy against harassment in the workplace, nor did the company lay out specific disciplinary steps it would take if an employee was caught harassing another employee. Moreover, unlike Mr. Espinal who refused to provide the names of alleged harassers, Mr. May did provide names of alleged harassers to Chrysler, but the employer never followed-up to interview the named individuals. Finally, National’s manager of industrial relations provided Mr. Espinal with his personal cell number in case any other incidents occurred. The management at Chrysler, on the other hand, did not present evidence of similar conduct with regard to Mr. May.

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. You may contact her through www.titleviconsulting.com.

EEOC Hiring Practices Subject to Discovery in Litigation

Saturday, August 18th, 2012

In EEOC v. Freeman, Case No. 09-2573, the federal district court of Maryland denied EEOC’s motion for a protective order on August 14, 2012 to hold that a defendant-employer being sued by the EEOC may depose EEOC officials regarding the agency’s use of criminal background checks and credit histories in its hiring practices. The court stated that, because the EEOC was suing the employer under Title VII of the Civil Rights Act of 1964 for alleged discriminatory use of criminal background checks and credit histories in its hiring practices, the employer was entitled to find out whether the EEOC utilized similar hiring criteria in filling jobs. In its defense, employer argued that use of criminal background checks and credit histories in its hiring practices was consistent with business necessity, and the United States Magistrate Judge agreed with the employer that it was entitled to learn whether the EEOC utilized similar hiring practices because, if so, “this fact may show the appropriateness of those practices.” The court found that, based on discovery obtained thus far, the employer and the EEOC appear to utilize similar considerations; to wit, with regard to job applicants with criminal backgrounds, both employer and the EEOC appear to consider the nature of the offense, its seriousness, and the requirements of the job to be filled.

Collecting and Storing Medical Information: Federal Civil Rights Laws and HIPAA

Wednesday, October 19th, 2011

Very few of us would find it acceptable for our medical information to be shared with anyone who asks for it. In fact, a majority of us prefer that such information remain private and confidential. We are not interested in other people assessing our mental and/or physical health, nor do we want to be the victims of discrimination based on what others think they know about our medical condition.

For purposes of this paper, we are going to take a general look at the intersection of federal civil rights laws requiring nondiscrimination and equal opportunity, and the right to medical confidentiality and privacy under the Health Insurance Portability and Accountability Act (HIPAA). Notably, federal civil rights laws require data collection and, under certain circumstances, collection of a person’s medical information. As the Equal Opportunity (EO) professional for an agency or organization operating federally funded programs and activities, you must know when you are entitled to request medical information, how you get this information, and what you do with it once you have it.

To set the stage for data collection under federal civil rights laws, we’ll start with Title VI of the Civil Rights Act of 1964 (Title VI). This was an impressive piece of legislation that, for the first time, mandated nondiscrimination and equal opportunity based on race, color, and national origin in federally funded programs and activities. Data collection was part of this law. For example, DOL regulations implementing Title VI at 29 C.F.R. § 31.6(b) requires, in part, the following:

In general, recipients should have available for the department racial and ethnic data showing the extent to which members of minority groups are beneficiaries of federally assisted programs.

29 C.F.R. § 31.6(b). The main purpose for this data collection was to measure a recipient’s performance and compliance with Title VI.

For example, a One Stop Career Center is located in an area where 85 percent of the population is Hispanic, but the Center’s data reveals that 15 percent of the persons they serve are Hispanic. This disparity may signal a need for the Center to strengthen and expand its outreach in the community among other actions. As another example, data reveals that 80 percent of black persons are being referred to higher paying jobs with a local company, whereas only 20 percent of white persons with the same credentials are being referred to these higher paying jobs. Here, data collected supports a finding that the recipient engaged in discriminatory referral of applicants in violation of Title VI.

Moving to collection of medical information, disability-related nondiscrimination laws first surfaced in 1973 with enactment of the Rehabilitation Act. Again, certain data collection requirements are imposed on recipients of these federal funds to gauge compliance with the law. For example, in DOL-funded programs, 29 C.F.R. § 32.44(b) requires:

. . . recipients should have available for the Department data showing the extent to which known handicapped individuals are beneficiaries and participants in federally assisted programs or activities.

29 C.F.R. § 32.44(b). Likewise, the ADA and ADAAA, enacted in 1990 and 2008, respectively, place similar disability-related nondiscrimination and equal opportunity requirements on recipients operating federally funded programs and activities.

Let’s take a closer look at circumstances where a recipient offering federally funded programs and activities must collect medical-related data on an individual. One example would be to determine whether the person meets the “essential eligibility requirements” for the federally funded service, aid, training, or benefit at issue. Another example is where the person requests accommodation. In such a situation, medical documentation may be requested to satisfy the requirements for providing such accommodation, or to determine what accommodation would be reasonable.

As the Equal Opportunity (EO) professional for a recipient of federal funds, storing this data in an unsecured location, or sharing it without limitation, leaves the individual with a disability particularly susceptible to discrimination, and it would leave the recipient operating federally funded programs and activities open to liability and/or sanctions.

Here is where it is useful to understand the purpose of HIPAA. HIPAA is not a civil rights law; rather, it is a health information privacy law. This law gives the individual control over who may review or receive his or her mental and/or physical health information and it gives the individual certain rights over this information.

The interplay between a privacy law, like HIPAA, and a civil rights law is best demonstrated by example. For this purpose, we’ll look at the Workforce Investment Act of 1998 (WIA). WIA prohibits discrimination in federally-funded programs and activities on a wide variety of bases, including disability. Some examples of WIA-funded recipients operating programs and activities are One Stop Career Centers offering employment referral services, training, and unemployment insurance benefits as well as Job Corps Centers offering educational programs and activities designed to enhance a person’s employability.

As with civil rights laws coming before it, DOL’s regulations for WIA set forth certain data collection and reporting requirements as follows:

Each recipient must record the race/ethnicity, sex, age, and where known, disability status of every applicant, registrant, eligible applicant/registrant, participant, terminee, applicant for employment, and employee.

29 C.F.R. § 37.37(b)(2). Importantly, however, this law further requires:

Such information must be stored in a manner that ensures confidentiality and must be used only for the purposes of recordkeeping and reporting; determining eligibility, where appropriate, for WIA Title I-financially assisted programs or activities; determining the extent to which the recipient is operating its WIA Title I-financially assisted program or activity in a nondiscriminatory manner, or other use authorized by law.

29 C.F.R. § 37.37(b)(2).

You are the EO Officer for a Job Corps Center offering federally funded educational programs and activities. Sam asserts that he is a person with a visual impairment and he requests reasonable accommodation by way of enhanced computer technology. Sam wears glasses and sometimes uses a stick when he walks. In order to determine the appropriate accommodation, you request medical documentation.

HIPAA prohibits you from accessing Sam’s medical documentation directly from his health care providers. Rather, Sam must authorize the providers to release whatever medical information he desires for you to review. For your part, you should request only that medical information, which is necessary to make a decision.

Now, once Sam’s medical documentation is in your hands, WIA limits its use and requires confidentiality. Notably, you must use the information solely for purposes of determining a reasonable accommodation for Sam and the information must be kept confidential.

Consequently, as the EO professional for your agency or organization, it is highly-recommended that you keep all medical information obtained in conjunction with a reasonable accommodation request, or in conjunction with determining whether an individual meets the essential eligibility requirements for a particular service, aid, training, or benefit, in a folder that is completely separate from your program file on the individual. Moreover, the separate folder containing medical information should be in a secure location. This means that paper medical records would be kept in a locked drawer or locked filing cabinet with very limited access. Electronic medical information should be password protected and/or encrypted and, again, with very limited access. Any employee of the recipient with access to these records must understand that s/he is strictly bound to adhere to confidentiality requirements pertaining to the records. Finally, you should review your agency’s or organization’s policies for time limits on storing such information—you will not keep an individual’s medical information indefinitely.

Look at the Methods of Administration for your state or territory to determine how you should handle confidential medical information. You may also seek guidance from your state EO leadership, or from the civil rights office of the federal funding agency.

Also, keep in mind that the same confidentiality requirements are imposed on employers with regard to their employees. Namely, EEO/AA/HR professionals must ensure that all medical information pertaining to an employee is kept in a folder that is separate from the employee’s personnel record. And, the medical information folder must be confidential and secure. Look to the U.S. Equal Employment Opportunities Commission for additional guidance in the context of the workplace.

Seena Foster is an attorney and author of “Civil Rights Investigations under the Workforce Investment Act and Other Title VI-Related Laws: From Intake to Final Determination.” She is also a Partner with Title VI Consulting in Alexandria, VA. You may visit her website at www.titleviconsulting.com. The opinions expressed in this paper are attributable to Ms. Foster.