RSS Feed!

Archives

Posts Tagged ‘reasonable accommodation’

Collecting, Using, Storing, and Disclosing Medical Information: Federal Civil Rights Laws and HIPAA by Seena Foster

Saturday, December 1st, 2018

Very few of us would find it acceptable for our medical information to be shared with anyone who asks for it. In fact, most 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 us.

For purposes of this paper, we are going to take a general look at the intersection of federal civil rights laws requiring nondiscrimination on the basis of disability (along with collection of disability-related data) on the one hand, and the right to medical confidentiality and privacy under the Health Insurance Portability and Accountability Act (HIPAA) on the other hand. Although many concepts discussed here apply to our workplaces, we are going to focus on the use of medical or disability-related information in the delivery of federally-assisted programs and activities.

As the equal opportunity (EO) professional for an agency, company, or organization operating federally-assisted programs and activities, you must know when you are entitled to collect medical information, how you use this information once you have it, where you store such information, and under what circumstances you disclose the information. Although the concepts discussed in this article may be applied to federally-assisted programs and activities across-the-board, for purposes of providing examples, we are going to focus on the delivery of U.S. Department of Labor-funded workforce development programs and activities governed by Section 188 of the Workforce Investment Act.

√ Origins of data collection under federal civil rights laws

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 mandating nondiscrimination on the bases of race, color, and national origin in the delivery of federally-assisted programs and activities. And, companion legislation at Title VII of the Civil Rights Act of 1964 (Title VII) prohibited discrimination on the bases of race, color, and national origin in our employment practices. Data collection was an important component of these federal laws.

For example, U.S. Department of Labor (DOL) regulations implementing Title VI at 29 C.F.R. § 31.6(b) require, 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 is to measure a recipient’s performance and compliance with Title VI as it delivers federally-assisted training, aid, benefits, and services to its public.

For example, an American Job Network center is located in an area where 85 percent of the population is Hispanic, but the center’s data reveals that only 15 percent of persons it serves are Hispanic. This disparity may mean prohibited national origin-based discrimination has occurred at the center, thus signaling a need for the center to strengthen and expand its outreach in the community in addition to taking other actions.

As another example, data reveals that 80 percent of black persons are referred by the center to higher paying jobs with a local company, whereas only 20 percent of similarly-qualified white persons are referred to these higher paying jobs. Here, data collected indicates that the center engaged in discriminatory referral of applicants on the bases of race and/or color in violation of Title VI.

√ Disability-related civil rights laws

Federal disability-related nondiscrimination laws first surfaced in 1973 with enactment of the Rehabilitation Act. This statute prohibiting disability-related discrimination contained provisions that applied both to the delivery of federally-assisted programs and activities as well as to our employment practices. Again, certain data collection requirements were put in place. 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, expanded disability-related nondiscrimination requirements.

And, Section 188 of the Workforce Investment Act of 1998 (WIA), which applies to the delivery of a variety of workforce development programs and activities, contains enhanced protections for persons with disabilities. Specifically, this statute requires nondiscrimination and equal opportunity for persons with disabilities.

Again, collection of disability-related or medical data under these statutes is designed to gauge compliance with their nondiscrimination requirements. On the flip side, however, federal authorities do not want this information to be used to engage in the very form of discrimination prohibited by these laws. Here, we are going to focus on the important requirements for gathering, using, storing, and disclosing medical and disability-related information in the context of delivering federally-assisted workforce development programs and activities.

√ Gathering medical or disability-related information

Using federally-assisted workforce development programs and activities as the backdrop for our discussion, DOL’s regulations implementing WIA Section 188 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). The Labor Department’s Civil Rights Center emphasizes that, prior to asking any medical or disability-related questions, you must notify the individual of the following:

● providing the information is voluntary;
● the information will be kept confidential as provided by law;
● refusal to provide the information will not subject the individual to any adverse treatment; and
● the information will be used only in accordance with the law.

Keep in mind that gathering such information in connection with employment-related activities (such as referral for job training, or job placement) generally is illegal. But, for service-related activities (such as determining eligibility for unemployment insurance benefits), you have more discretion in gathering medical or disability-related information to determine whether an individual meets the “essential eligibility requirements” for your program or activity, or to determine whether the individual meets the requirements to participate in a “targeted” program or activity, or to determine the appropriate accommodation needed to allow the individual to participate in a program or activity.

√ Storing medical or disability-related information

Regardless of the circumstances under which you acquire medical or disability-related information, storing this information in an unsecured location, or sharing it without limitation, leaves the individual with a disability particularly susceptible to discrimination, and this conduct is prohibited by federal law. For example, regulations implementing WIA Section 188 provide the following:

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).

Consequently, as the EO professional for your agency, company, 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 also may seek guidance from your state EO leadership, or from the civil rights office of the federal funding agency.

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 kept confidential and secure. Look to the U.S. Equal Employment Opportunities Commission at www.eeoc.gov for additional guidance in the context of the workplace. And, for special considerations applicable to federal contractors and subcontractors, look for guidance from the Labor Department’s Office of Federal Contract Compliance Programs (OFCCP) at www.dol.gov/ofccp.

√ Using medical or disability-related information

As previously noted, for your employment-related activities, the permitted uses of this information is very narrow. For example, as a job referral counsellor, it is illegal to “steer” a person with a disability to a particular job; rather, each person with a disability is entitled to individualized treatment. For service-related activities, on the other hand, medical or disability-related information may be used to assess reasonable accommodations, or to determine whether the individual meets the “essential eligibility requirements” to participate in a particular program or activity.

√ Disclosing medical or disability-related information

Confidentiality of medical and disability-related information is of paramount importance whether in the delivery of federally-assisted programs and activities, or in the workplace. Disclosure of such information must be made under extremely limited conditions. Some examples in federally-assisted workforce development programs may include disclosure to a training provider only to explain reasonable accommodation, or disclosure to first aid or safety personnel only if the condition may require emergency treatment.

As with gathering, storing, and using medical or disability-related information, it is critical to have written policies and procedures in place addressing the limited circumstances under which such information may be disclosed. If you need assistance with the development of such procedures, you may contact us at info@titleviconsulting.com.

√ Understanding the role of HIPAA

HIPAA is not a federal 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 a scenario arising under WIA Section 188. As previously noted, WIA Section 188 prohibits discrimination in federally-funded programs and activities on a wide variety of bases, including disability. Some examples of recipients operating WIA-related programs and activities are American Job Network centers offering employment referral services, training, and unemployment insurance benefits as well as Job Corps Centers offering educational programs and activities designed to enhance employability of youth.

You are the EO Officer for a Job Corps Center. Sam asserts that he is a person with a visual impairment, and he requests reasonable accommodation by way of enhanced computer technology to enable him to participate in your educational programs. 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 will request only medical information from Sam that is necessary to make a decision on the appropriate accommodation for Sam.

Now, once Sam’s medical documentation is in your hands, the federal civil rights law, WIA Section 188, prohibits discrimination against Sam based on this information. Moreover, this statute limits your use and disclosure of this information, and it requires that you ensure confidentiality of this information; that is, you must keep this information in a file that is separate from Sam’s student or participant file. Moreover, the medical file must be kept in a secured location with limited access.

√ About Seena Foster

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

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

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

In her local community of Alexandria, Virginia, Ms. Foster volunteers at Carpenter’s Shelter, and serves on its Development Committee and Major Donors and Partners Subcommittee. In addition, Ms. Foster serves on Alexandria’s Economic Opportunities Commission, which addresses availability of housing and jobs for economically-disadvantaged persons. In 2013, Ms. Foster received the City of Alexandria’s “Joan White Grass Roots Service Award” for her commitment of time and effort “working to improve the lives of the homeless as well as advocating their needs and the mission of Carpenter’s Shelter in the community.”

Ms. Foster is a member of the Discrimination Law and Human Rights Law Committees of the International Bar Association. Finally, in November 2011, Ms. Foster was selected as a lifetime member of the Cambridge Who’s Who among Executives, Professionals, and Entrepreneurs based on her “accomplishments, talents, and knowledge in the area of civil rights.”

Ms. Foster received her undergraduate degree from Michigan State University, and she has a Juris Doctorate from The George Washington University Law School.

Criminal Background Checks and Employment: A Guide for Equal Opportunity Professionals

Thursday, November 15th, 2018

Over the past year, four major federal agencies issued significant guidance related to the use of criminal background checks in delivering employment-related services by state and local governments as well as in employment practices of private sector employers. The highlights are:

√ Don’t use arrest and/or conviction records in your decision-making.

√ If you feel you must conduct a criminal background check, then:

● Do it after you’ve determined the person meets either: (1) the essential eligibility requirements for selection and/or referral to a job or training program; or (2) the bona fide occupational qualifications (BFOQ) for the position at issue.
● Give notice to the individual that you need to conduct a criminal background check, and get the individual’s permission to do so.
● Give the individual the results of the criminal background check, and afford the individual an opportunity to explain or dispute the contents.
● Before taking an adverse action based on an individual’s arrest and/or conviction record, make sure your inquiry is “narrowly tailored to identify criminal conduct with a demonstrably tight nexus” to the position or training in question. And, you must demonstrate that you’ve considered the following factors: (1) the date of the criminal conviction (newer versus older); (2) what specific offenses demonstrate unfitness for performing a specific job or undergoing specific training; and (3) the essential requirements for the job or training, and the actual circumstances (at a home, outdoors, at a warehouse, at an office) under which the job or training will be performed.

√ Document everything you do. If your decision is challenged by a federal agency, you’ll need to demonstrate that you did not violate federal civil rights laws.

√ Keep the individual’s criminal background information confidential. Only use this information for the purpose for which it is intended.

I. Background

The federal guidance discussed in this paper stems from commonly-recited disparities in the arrest and conviction records of minorities as compared to non-minorities and how, as a result, these disparities result in disparate treatment of ex-offenders in the employment arena. The following is an example of the background cited in these documents:

In recent decades, the number of Americans who have had contact with the criminal justice system has increased exponentially. It is estimated that about one in three adults now has a criminal history record – which often consists of an arrest that did not lead to a conviction, a conviction for which the person was not sentenced to a term of incarceration, or a conviction for a non-violent crime. On any given day, about 2.3 million people are incarcerated and each year 700,000 people are released from prison and almost 13 million are admitted to – and released from – local jails.

Racial and ethnic disparities are reflected in incarceration rates. According to the Pew Center on the States, one in 106 white men, one in 36 Hispanic men, and one in 15 African American men are incarcerated. Additionally, on average, one in 31 adults is under correctional control (i.e. probation, parole, or incarceration), including one in 45 white adults, one in 27 Hispanic adults and one in 11 African American adults. Racial and ethnic disparities may also be reflected in other criminal history records. For example, although African Americans constitute approximately 13 percent of the overall population, they account for 28 percent of those arrested and almost 40 percent of the incarcerated population.

Title VI (addressing federally-assisted programs and activities) and Title VII (addressing employment practices) of the Civil Rights Act of 1964 prohibit discrimination based on race, color, and national origin. These titles prohibit both “disparate treatment” (treating members of protected groups differently based on their protected status), and “disparate impact” (the use of policies or practices that are neutral on their face, but have a disproportionate impact on members of protected groups, and are not job-related and consistent with business necessity).

The guidance documents issued by EEOC, ETA, OFCCP, and CRC make clear that individuals with criminal history records are not a protected group under the applicable civil rights laws, but these laws may be implicated with criminal records are being considered. For example, it constitutes illegal discrimination to treat whites with a criminal record more favorably than similarly-situated African Americans with the same or similar criminal record. This constitutes “disparate treatment.” And, as another examples, job announcements that categorically exclude people who have any kind of conviction or arrest, or which specify that only those individuals with “clean” criminal records need apply, will likely constitute illegal “disparate impact” because of the above-referenced racial and ethnic disparities reflected in the criminal justice system.

II. Citations and scope of applicability

As can be seen below, the guidance documents have wide-reaching implications in the area of employment services and employment practices:

U.S. Equal Employment Opportunity Commission (EEOC)

    Guidance reference:

EEOC Enforcement Guidance, Number 915.002 (Apr. 25, 2012)

    Applies to:

All private sector employers with 15 or more employees

U.S. Department of Labor’s Office of Contract Compliance Programs (OFCCP)

    Guidance reference:

OFCCP Directive No. 306 (Jan. 29, 2013)

    Applies to:

Federal contractors and subcontractors and federally-assisted construction contractors and subcontractors

U.S. Department of Labor’s Employment and Training Administration (ETA) and Civil Rights Center (CRC)

    Guidance reference:

Training and Employment Guidance Letter (TEGL) No. 31-11 (May 25, 2012)

    Applies to:

Public workforce system and other entities that receive federal financial assistance to operate Job Banks, to provide assistance to job seekers in locating and obtaining employment, and to assist employers by screening and referring qualified applicants for employment and/or training (includes programs and activities covered by the Workforce Investment Act and the Wagner-Peyser Act)

III. Policies of the agencies

    EEOC

The Commission, which has enforced Title VII since it became effective in 1965, has well-established guidance applying Title VII principles to employers’ use of criminal records to screen for employment. This Enforcement Guidance builds on longstanding court decisions and policy documents that were issued over twenty years ago. In light of employers’ increased access to criminal history information, case law analyzing Title VII requirements for criminal record exclusions, and other developments, the Commission has decided to update and consolidate in this document all of its prior policy statements about Title VII and the use of criminal records in employment decisions.

The Commission intends this document for use by employers considering the use of criminal records in their selection and retention processes; by individuals who suspect that they have been denied jobs or promotions, or have been discharged because of their criminal records; and by EEOC staff who are investigating discrimination charges involving the use of criminal records in employment decisions.

National data supports a finding that criminal record exclusions have a disparate impact on race and national origin. The national data provides a basis for the Commission to further investigate such Title VII disparate treatment charges. During an EEOC investigation, the employer also has an opportunity to show, with relevant evidence, that its employment policy or practice does not cause a disparate impact on the protected group(s).

The issue is whether the policy or practice deprives a disproportionate number of Title VII-protected individuals of employment opportunities. The Commission with closely consider whether an employer has a reputation in the community for excluding individuals with criminal records. In light of these racial and ethnic disparities, contractors should be mindful of federal antidiscrimination laws if they choose to rely on job applicants’ criminal history records for purposes of employment decisions. Hiring policies and practices that exclude workers with criminal records may run afoul of such laws, which prohibit intentional discrimination on the basis of race, national origin, or other protected bases, and policies or practices that have a disparate treatment on these protected groups and cannot be justified as job related and consistent with business necessity. Policies that exclude people from employment based on the mere existence of a criminal history record and that do not take into account the age and nature of the offense, for example, are likely to unjustifiably restrict the employment opportunities of individuals with conviction histories. Due to racial and ethnic disparities in the criminal justice system, such policies are likely to violate federal antidiscrimination law. Accordingly, contractors should carefully consider their legal obligations before adopting such policies.

This guidance consolidates and updates EEOC’s prior guidance regarding the use of criminal records in employment decisions. EEOC is the lead agency for interpreting Title VII, and OFFCP follows Title VII principles in interpreting Executive Order 11246, as amended. Therefore, EEOC’s guidance will assist contractors in implementing and reviewing their employment practices in compliance with the Executive Order. EEOC’s guidance applies to all employers that have 15 or more employees.

    OFCCP

In light of these racial and ethnic disparities, contractors should be mindful of federal antidiscrimination laws if they choose to rely on job applicants’ criminal history records for purposes of employment decisions. Hiring policies and practices that exclude workers with criminal records may run afoul of such laws, which prohibit intentional discrimination on the basis of race, national origin, or other protected bases, and policies or practices that have a disparate treatment on these protected groups and cannot be justified as job related and consistent with business necessity. Policies that exclude people from employment based on the mere existence of a criminal history record and that do not take into account the age and nature of the offense, for example, are likely to unjustifiably restrict the employment opportunities of individuals with conviction histories. Due to racial and ethnic disparities in the criminal justice system, such policies are likely to violate federal antidiscrimination law. Accordingly, contractors should carefully consider their legal obligations before adopting such policies.

This guidance consolidates and updates EEOC’s prior guidance regarding the use of criminal records in employment decisions. EEOC is the lead agency for interpreting Title VII, and OFFCP follows Title VII principles in interpreting Executive Order 11246, as amended. Therefore, EEOC’s guidance will assist contractors in implementing and reviewing their employment practices in compliance with the Executive Order. EEOC’s guidance applies to all employers that have 15 or more employees.

The guidance cites to the EEOC’s Enforcement Guidance to assist in determining the proper consideration of criminal records.

    ETA and CRC

As recognized by the federally-assisted workforce system, which is already engaged in promoting job opportunities for people with criminal records through various reentry grants and programs, obtaining employment is critical in reducing recidivism and easing the reintegration of persons returning from incarceration. Secretary of Labor Hilda Solis recently observed that the public workforce system’s mix of strategies, interventions and service partnerships must be designed and executed with the goal of helping people with criminal records obtain employment that can support them and their families. These efforts are consistent with the Federal Interagency Reentry Council’s mission to make communities safer by reducing recidivism, assist those returning from prison and jail in becoming productive citizens, and save taxpayer dollars by lowering the direct and collateral costs of incarceration. As Secretary Solis stated recently: “When someone serves time in our penal system, they shouldn’t face a lifetime sentence of unemployment when they are released. Those who want to make amends must be given the opportunity to make an honest living.”

This TEGL is intended to help covered entities (and their employer customers) comply with their nondiscrimination obligations when serving the population of individuals with criminal records, and to ensure that exclusionary policies are not at cross-purposes with the public workforce system’s efforts to promote employment opportunities for such workers. This TEGL applies to all jobs available through a covered entity’s job bank without regard to whether the job is in the government or the private sector, including federal contractors and subcontractors.

This guidance cites to the EEOC’s Enforcement Guidance to assist in determining the proper consideration of criminal records.

IV. “Illegal” practices

Each of the guidance papers sets forth practices that may constitute illegal discrimination in violation of applicable civil rights laws. These practices are set forth as follows:

    EEOC

● Evidence supporting discrimination. The EEOC cites to several kinds of evidence that may be used to demonstrate discrimination in violation of Title VII: (1) biased statements, such as derogatory statements by the employer or decision-maker towards a protected group, or that express group-related stereotypes about criminality; (2) inconsistent hiring practices, such as requesting criminal history information more often for individuals with certain racial or ethnic backgrounds, or giving white individuals but not racial minorities the opportunity to explain their criminal history; (3) different treatment of similarly-situated individuals, such as a racial or ethnic minority being subjected to more or different background checks or to different standards for evaluating criminal history; and (4) statistical evidence derived from the employer’s applicant data, workforce data, and/or third party criminal background history data.

● No job-relatedness, illegal. If criminal background records are utilized in employment decisions, the employer should be prepared to demonstrate that this policy or practice is “job related for the position in question and consistent with business necessity.”

● Arrest records. The fact of an arrest does not establish that criminal conduct has occurred. Arrests are not proof of criminal conduct. Many arrests do not result in criminal charges, or the charges are dismissed. An exclusion based on an arrest, in itself, is not job related and consistent with business necessity. The Commission further notes arrest records also may include inaccuracies or may continue to be reported even if expunged or sealed. The Commission mandates that an arrest record cannot be grounds for exclusion, but an employer may, under certain circumstances, inquire into the conduct underlying the arrest.

● Conviction records. Unlike an arrest record, a conviction usually is sufficient evidence that a person engaged in certain conduct. However, it is important to keep in mind that (1) there may be error in the record, or (2) the record may be outdated. Thus, a policy or practice requiring an automatic, across-the-board exclusion from all employment opportunities because of any criminal conduct is not tailored to a particular job, or consistent with business necessity.

    OFCCP

● Blanket exclusions are illegal. OFCCP is aware of job announcements that categorically exclude people who have any kind of conviction or arrest and of contractors that screen out job seekers with criminal records by stating that they will only accept applicants with so-called “clean” criminal records. Due to racial and ethnic disparities reflected in the criminal justice system, these policies or practices will likely have a disparate impact on certain protected groups, in violation of federal law.

● Failure to consider circumstances. Policies that exclude people from employment based on the mere existence of a criminal history record and that do not take into account the age and nature of an offense, for example, are likely to unjustifiably restrict the employment opportunities of individuals with conviction histories. Due to racial and ethnic disparities in the criminal justice system, such policies are likely to violate federal antidiscrimination law. Accordingly, contractors should carefully consider their legal obligations before adopting such policies.

● Adopting EEOC guidance. OFCCP further cites to EEOC’s Enforcement Guidance and the ETA/CRC TEGL document for further examples of discrimination in violation of federal civil rights laws.

    ETA and CRC

● Printing and publishing. Cannot “print or publish or cause to be printed” any job announcement that discriminates based on race, color, religion, sex, or national origin unless there is a bona fide occupational qualification for a preference based on religion, sex, or national origin.

● Use of discriminatory criteria prohibited. Use of any “criteria or methods of administration which have the effect of subjecting individuals to discrimination because of race, color, or national origin” is illegal.

● Nondiscriminatory selection and referral. “Selection and referral of individuals for job openings or training opportunities and all other activities performed by or through employment service offices” must be done without regard to race, color, or national origin. Conduct to the contrary violates civil rights laws.

● Posting job announcements in Job Banks. Employers must be placed on notice that federal civil rights laws “generally prohibit categorical exclusions of individuals based solely on an arrest or conviction history.” To this end, the TEGL requires that “Notice #1 for Employers Regarding Job Bank Nondiscrimination and Criminal Record Exclusions” be given to employers that register to use a Job Bank. Failure to place the employer on notice constitutes noncompliance by the Job Bank.

● WIA and Wagner-Peysner. The guidance notes the Workforce Investment Act at 29 U.S.C. § 2938 and Title VI of the Civil Rights Act of 1964 at 42 U.S.C. § 2000d require nondiscrimination by recipients of federal financial assistance, including non-discrimination in employment practices and in selection and referral for employment or training. The Wagner-Peyser Act at 20 C.F.R. § 652.8 similarly requires nondiscrimination and states must assure that discriminatory job orders will not be accepted except where there is a bona fide occupational qualification (BFOQ). Failure to consider the BFOQ of a position is illegal.

V. “Best practices”

Each guidance paper also sets forth certain “best” practices. These practices are similar among the agencies as follows:

    EEOC

● Don’t ask. The Commission recommends that employers not ask about convictions on the job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion is related to the position in question and consistent with business necessity.

● How to demonstrate business necessity. The Commission finds there are two ways in which criminal conduct exclusion will be job-related and consistent with business necessity: (1) the employer validates the criminal conduct screen for the position in question per the Uniform Guidelines on Employee Selection Procedures (Uniform Guidelines) standards (if data about criminal conduct as related to subsequent work performance is available and such validation is possible); or (2) the employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job, and then provides an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity.

The Commission states that the “individualized assessment” component consists of the following: (1) notice to the individual screened out because of a criminal conviction; (2) an opportunity for the individual to demonstrate the exclusion should not be applied under the particular circumstances, and (3) consideration by the employer as to whether the additional information provided by the individual warrants an exception to the exclusion and shows that the policy as applied is not job related and consistent with business necessity.

● Narrowly tailored. If an employer employs a criminal record screen, it must be “narrowly tailored to identify criminal conduct with a demonstrably tight nexus to the position in question.” The employer must identify essential job requirements and the actual circumstances under which the jobs are performed. Moreover, the employer must determine the specific offenses that may demonstrate unfitness for performing such jobs. And, the employer must determine the duration of exclusions for criminal conduct (older versus newer convictions). Finally, the employer should keep a record of consultations, research, and justifications considered in developing the policies and procedures. Managers, hiring officials, and decision-makers should be trained regarding how to properly implement the policies.

● Factors for consideration. Absent validation meeting the Uniform Guidelines’ standards, the employer must consider the following factors: (1) the nature and gravity of the offense or conduct; (2) the time that has passed since the offense, conduct and/or completion of the sentence; and (3) the nature of the job held or sought (identifying the job title, essential functions of the job, circumstances under which the job is performed, such as level of supervision and oversight, and the environment in which the job duties are performed, such as a warehouse, private home, outdoors.

● Training is important. Train managers, hiring officials, and decision-makers about Title VII and its prohibition on employment discrimination.

● Confidentiality is important. Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.

    OFCCP

● OFCCP cites to EEOC’s Enforcement Guidance, and the ETA/CRC TEGL for examples of “best practices.” This includes providing Notices 1-3 to job seekers and/or employers, as described in the ETA/CRC’s TEGL document.

    ETA and CRC

● Seeking a background check. If an employer seeks to conduct a criminal background check based on a bona fide requirement for the job, it must: (1) obtain the applicant’s permission before asking a background screening company for a criminal history report; (2) provide the applicant a copy of the report; and (3) provide the applicant a summary of his or her rights before taking any adverse action.

● Restrictive vacancy announce-ments. Covered entities should use a system (automated or otherwise) to identify vacancy announcements that include hiring restrictions based on arrest and/or conviction records. For each such vacancy announcement located, and to ensure the employer’s and covered entity’s compliance with federal civil rights laws, the employer must be given the opportunity to remove or otherwise edit the vacancy announcement. Here, the TEGL directs that “Notice #2 for Employers Regarding Job Postings Containing Criminal Record Exclusions” be provided to the employer.

If the employer continues to keep the hiring restriction in the announcement, the announcement must include a notice that the exclusions in the posting may have an adverse impact on protected groups, and individuals with criminal history records are not prohibited from applying for the posted position (referred to as “Notice #3 For Job Seekers to be Attached to Job Postings With Criminal Record Exclusions” in the TEGL document).

● Screening and referral based on criminal record restrictions. Criminal record histories may be taken into account for purposes of referring an individual to employment-related services or programs designed to aid individuals with arrest or conviction histories. However, covered entity staff should refrain from screening and refusing to refer applicants with criminal history records. Here, the guidance suggests, if an applicant’s arrest and conviction history is taken into account for purposes of excluding the individual from training programs or other employment-related services, then the EEOC’s arrest and conviction guidance should be followed.

● Confidentiality is important. Same as the EEOC.

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. Ms. Foster also offers highly-popular procedures-writing services, such as assisting you in developing discrimination complaint procedures, procedures for serving limited English proficient individuals, procedures for serving persons with disabilities, and procedures for gathering, handling, and storing medical information to name a few. The federal law on discrimination is complex and affects our workplaces as well as the delivery of our federally-assisted programs and activities. Her book, Civil Rights Investigations Under the Workforce Investment Act and Other Title VI Related Laws: From Intake to Final Determination, has been described as an “eye-opening” reading experience and a “stand-alone” training resource. Ms. Foster’s resources and materials are designed to support the work of civil rights and discrimination professionals in the public and private sectors. You may contact her through www.titleviconsulting.com.

“Auxiliary Aids and Services Available on Request to Persons With Disabilities”

Saturday, September 15th, 2018

If you operate or administer federally funded programs and activities, or if you are a state or local government agency, federal civil rights laws require that you include the foregoing notice on all publications, broadcasts, and other communications. These federal laws are the Rehabilitation Act of 1973, the Americans With Disabilities Act of 1990, and the Americans With Disabilities Act Amendments Act of 2008. The idea here is that persons with sensory, manual, or speaking disabilities are entitled to nondiscrimination and an equal opportunity to participate in, and enjoy the benefits of, programs or activities funded by the United States government.

What are some examples of written communications that must include this notice?

The “auxiliary aids and services” notice must be included on a variety of written materials, including:

√ outreach materials
√ recruitment materials
√ orientation packets
√ brochures
√ written advertisements
√ application, registration, and enrollment forms
√ participant and employee manuals and handbooks

Take a look at the written and electronic materials that you distribute to staff, clients, and the public. Make sure these communications contain the “auxiliary aids and services” notice. An easy and inexpensive fix for written communications that do not currently provide the notice is to create computer-generated labels and affix these labels to the communications.

What does “auxiliary aids and services” involve?

Auxiliary aids and services encompass a wide variety of tools that you may use to assist persons with disabilities, including:

√ qualified readers
√ notetakers
√ taped texts
√ audio recordings
√ brailled materials
√ large print materials
√ equipment, devices, and software (such as assistive hearing devices, speech recognition software, and so on)
√ TDD/TTY or telephone relay service. Keep in mind here that any communication containing your telephone number must also include the TDD/TTY number or the number of the relay service you use. You must also make sure these numbers are operational and staff is trained regarding their use.
√ Qualified sign language interpreters

It is important to remember that any “auxiliary aid or service” must be provided at no charge to the individual with a disability.

What are your obligations to communicate to individuals with disabilities?

You have the obligation to “effectively” communicate with persons who have mobility, hearing, and visual impairments. “Effective” communication means it gets the job done. Often, this may be accomplished through use of auxiliary aids and services. And, keep in mind that:

√ You must provide persons with disabilities information as to the existence and location of accessible services, activities, and facilities; and

√ You must post the international symbol for accessibility at each primary entrance to an accessible facility. For inaccessible facilities, you must provide signage at the primary entrances, which directs folks to a location where they may obtain information about accessible facilities. See 41 C.F.R. § 101-19.6.

To whom do you have these obligations?

You are obliged to offer “auxiliary aids and services” to a variety of categories of persons with disabilities, including:

√ beneficiaries
√ registrants
√ applicants
√ eligible applicants and eligible registrants
√ participants
√ applicants for employment (for example, you may
need to provide accommodation for the interview
process, such as a qualified interpreter when
interviewing persons with hearing impairments)
√ members of the public

In determining the type of auxiliary aid or service to provide, you must give primary consideration to the request of the individual with a disability. A request for an “auxiliary aid or service” constitutes a request for reasonable accommodation or reasonable modification. Such a request must be reviewed and considered on a case-by-case basis; you cannot impose “blanket” policies or procedures. And, while you may consider “undue hardship” in providing accommodation, the process for considering a reasonable accommodation request is an interactive one and, in the end, you are obliged to provide an accommodation that is “effective.”

What are the obligations of private employers?

So far, we have focused on the obligations of entities that administer and/or operate federally funded programs and activities as well as the obligations of state and local governments with regard to persons with disabilities. Turning to private employers, the U.S. Department of Justice and the U.S. Equal Employment Opportunity Commission (EEOC) provide guidance for employers of 15 or more employees.

While private employers are not required to have the “auxiliary aids and services” notice on all their communications, these employers are prohibited by federal civil rights laws from discriminating against “qualified individuals with disabilities” with respect to the terms, conditions, and privileges of their employment. Discrimination may occur in a variety of employment practices, such as:

√ hiring and firing
√ job application procedures
√ job assignment
√ training
√ promotions
√ wages
√ benefits (including health insurance)
√ leave

A “qualified individual with a disability” is an individual who: (1) meets the bona fide occupational requirements (i.e., legitimate skill, education, and experience requirements for the job); and (2) can perform the “essential functions” of the job (otherwise defined as the core duties that are the reason for existence of the job position). The person with a disability must meet these two criteria even without accommodation to be deemed “qualified.” On the other hand, a private employer is prohibited from disqualifying this person on grounds that s/he is unable to perform marginal or incidental job functions. See also prior paper titled, “The Meaning of Disability.”

If a “qualified individual with a disability” requests accommodation, the private employer must consider the accommodation request. Accommodation requests may take the form of:

√ requesting an auxiliary aid or service as described above
√ restructuring a job
√ modifying or adjusting the work environment
√ making existing facilities accessible to, and useable by, persons with disabilities
√ modifying work schedules
√ reassigning a current employee to a vacant position for which the employee is qualified

The purpose of providing reasonable accommodation is to allow the qualified individual with a disability the opportunity to contribute fully in the workplace and enjoy the benefits and privileges of employment.

A private employer should give consideration to a person’s accommodation request, but the employer is not required to provide accommodation if it would create “undue hardship.” Under hardship is an action that constitutes “significant difficulty or expense” in relation to the size of the employer, the employer’s resources, and the nature of the employer’s operation. This may also involve health and safety concerns; specifically, the individual poses a “direct threat” to self and/or others. Accommodation requests and considerations of undue hardship must be made on a case-by-case basis.

Seena Foster is an attorney and award-winning 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.

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

Thursday, June 28th, 2018

This is the only book on the market that focuses on discrimination complaint investigations in a wide range of Federally-assisted, public-facing programs and activities! Reviews by State and local equal opportunity officials in 2017 include “I love your book,” and the book is “outstanding,” “easy to follow,” and “extremely useful.”

Paperback:
Cost: $19.99 per copy

Go to www.outskirtspress.com/civilrights; or

Email the author at seena@titleviconsulting.com, and you will receive an invoice by PayPal; or

Mail a check for $19.99 per book (plus $3.00 per book for shipping and handling in the United States) payable to Title VI Consulting at 107 S. West St., PMB 713, Alexandria, VA 22314.

Electronic book:
Cost: $9.99 per electronic copy

Available through Nook, or Kindle. For iPad and iTunes, you’ll find the book in the “Law Library.” Access the e-book through the publisher at http://www.outskirtspress.com/civilrights.

Reviewers describe the book as “the most thorough and the best product on the market,” “an eye-opening experience,” “an excellent reference book,” and “an invaluable resource for its target audience of professionals who must respond to complaints of discrimination.”

About the Book

In Civil Rights Investigations, Ms. Foster assembles a tremendous amount of information, presents it in an organized and easy-to-understand format, and delivers it to you along with practical and useful guidance. Whether you are a novice or expert, this book is a truly exceptional resource that takes you step-by-step through the investigative process. And, the teachings offered are applicable to any discrimination complaint investigation.

Starting with the basics of knowing whether you have a complaint and authority to investigate it, to navigating more in-depth concepts such as understanding the burdens of the parties, properly framing the issues of an investigation, interviewing witnesses, analyzing conflicting evidence, and writing final determinations, Civil Rights Investigations is with you each step of the way, providing insights, tips, and examples.

A wide array of discriminatory bases is explored, including race, color, national origin, gender, sexual harassment, religion, disability, political affiliation, citizenship, and age. And, the book contains sample interrogatories covering numerous adverse actions in government programs such as denial of access, denial of training, denial of services, denial of benefits, and denial of proposals or bids. Other sample interrogatories address adverse actions in the workplace, such as sexual harassment, reasonable accommodation, reasonable modification, retaliation, termination, non-selection, non-promotion, adverse performance appraisals, and damages. Finally, the book contains a jurisdiction checklist as well as templates for every stage of the investigation–from notifying the parties that you do not have jurisdiction to investigate a complaint or notifying the parties you have accepted a complaint for investigation to sample complaint investigation plans and a sample final determination on the merits of a complaint.

Civil Rights Investigations is packed with useful information, and it serves as a top-of-the-line resource for any public or private sector equal opportunity professional.

Civil Rights Investigations addresses several Federal civil rights statutes, including Titles VI and VII of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, the Americans With Disabilities Act of 1990 and the Americans With Disabilities Act Amendments of 2008, Title IX of the Education Amendments Act of 1972, and the Age Discrimination Act of 1975. Its guidance, however, is useful in any civil rights discrimination investigation, and in developing and implementing preventative measures.

Reviews of the Book

Get this one-of-a-kind book judged by a panel of industry experts as a Finalist in the Business Reference category of The USA “Best Books 2011” Awards, sponsored by USA Book News. The book also received a Bronze Medal in the Government/Politics category (top 5% of over 3,000 entries) for the 2012 International Readers Favorite Book Awards. And, in October 2012, Ms. Foster was announced as a “Finalist of 50 Great Writers You Should Be Reading,” presented by The Authors Show. In October 2013, Civil Rights Investigations was Amazon’s Featured Title of the Week.

Lisa Connor states: “You obviously have a passion for your subject matter–you present your findings in a very well-researched, thorough manner. … I have to say that you have put together an excellent piece”

Omoye Cooper of Albany, New York states: “I have worked in the field of Equal Opportunity for over 30 years and have attended numerous trainings on EO investigations. After attending Seena Foster’s Civil Rights Investigations workshop, I can say without a doubt that it is the most thorough and the best product on the market. Ms. Foster not only gives the technical information, but she also provides step by step guidelines and tools for effective implementation.”

“Ms. Foster’s workshops and book, “Civil Rights Investigations,” are professional resources that are highly recommended for all new and seasoned AA and EEO practitioners. Utilization of her materials will help new EEO professionals build a solid knowledge base that will make it possible to conduct defendable investigations; and for the veteran practitioners, it will take you to another level. Outstanding!”

Readers Favorite (5 out of 5 star ratings):

Brenda Ballard states: Discrimination is a very real problem in the work place but what can a person do? Seena K. Foster, author of “Civil Rights Investigations Under the Workforce Investment Act” leads the reader through the law, the process and the various scenarios of the subject. Citing law and providing examples of letters and check lists, information is outlined in concise and understandable terms. The subject matter is broken down into the simplest legal language possible considering the depth and complexity. Believable examples make sense of it all, guiding the reader step by step.

As anybody knows, legal reading can be dry and confusing. Admittedly, there were a few places I personally had to re-read but that would be attributed to my own lack of experience with the subject. I found the examples very useful and was able to utilize the bullet points and checklists to realize the meaning of it all. It was an eye-opening learning experience to read this book! I never realized how much is involved in filing such a suit, getting an investigation underway, working with both parties, and finding resolution. Businesses should consider having this book in their own library as a reference guide in their personnel department. This work could be used as a stand-alone in training sessions for employees and managements. The tremendous effort the author has put into “Civil Rights Investigations Under the Workforce Investment Act” is immediately evident. Nothing is left to question and, should there be any residual wonder, references can be looked up. Highly recommended! 5 out of 5 stars!

Lori M. states: Because I am currently taking a graduate-level Human Resources class in Employment Law, this book about civil rights investigations by Seena K. Foster interested me very much. This would make an excellent reference book for HR managers, lawyers, and anyone involved in employee or labor issues. It is very well-organized and provides just the right amount of information that you need on a number of different topics. Foster, who has a law degree, does a good job making the contents interesting, understandable, and easy to follow.

There are specific sections defining race, color, national origin, gender, religion, age, citizenship, and disability issues in depth so that any reader can understand what constitutes the definition of discrimination against each. Additionally, she takes you through the steps of how to determine whether or not you have a discrimination complaint, a glossary of terms, jurisdiction, and filing the complaint. I like how Foster included easy-to-use checklists throughout the book to graphically depict what she has already told you in the text. It is a good way to help the reader grasp the information provided and double-check the details. This book talks about statutes of limitations and time frames within which a party has to file a complaint, notifying the parties of a complaint, jurisdictional issues, and even alternative dispute resolution topics such as arbitration or mediation. This book is a great toolkit for those interested in employment law matters dealing with civil rights investigations under the workforce investment act and Title VI-related laws. 5 out of 5 stars!

Alice D. states: “Civil Rights Investigations Under the Workforce Investment Act and Other Title VI Related Laws” is a book that really needed to be written and now it has been, thank goodness! Author Seena Foster has created a book that focuses on the treatment of individual and class action complaints. From the beginning where she asks the readers to decide whether they have a complaint and whether there is jurisdiction to investigate the complaint, Foster clearly establishes that those pursuing an issue such as discrimination must have merit; in other words, they must have a covered basis such as race, gender and nationality. She is quite clear in insisting that the person charged with the complaint must receive federal funds, and the CP, the charging party, must know how to organize a complaint, how to fill it with statistics and witness information. Then she shows the reader how exactly the CP and the respondent must reply in cases involving such things as employment, hostile work environ ment, and disability. She discusses sexual harassment, especially in the school environment, and writes about the use of mediation in helping parties come to a mutually acceptable solution. Do you think your civil rights have been violated at work? This is the book for you.

“Civil Rights Investigations” is not the type of book that people will grab off bookstore shelves, but they should. Author Seena Foster discusses, clearly and concisely, how the charging party and the respondent should respond in a variety of cases. Chapter after chapter deals with how to handle potential civil rights violations in the workplace and in federally funded programs and activities that have an impact on all of us. The author states that those filing the complaint must give details like why they were not hired, etc., and those who answer the claim must show the same clarity in their response. Specific and easy to read, this book should be in readers’ hands everywhere. 5 out of 5 stars!

Laurie Gray states: “Civil Rights Investigations under the Workforce Investment Act and Other Title VI-Related Laws from Intake to Final Determination” by Seena K. Foster offers guidance to professionals handling discrimination complaints for governmental agencies and employers that receive federal funding covered by the Workforce Investment Act of 1964. The book focuses on individual and class actions as opposed to third-party complaints, identifying and devoting a chapter to each protected class: race, color, national origin, sex, religion, disability, citizenship, age, political affiliation and belief. The chapters on sexual harassment, religion, and disability are most comprehensive. Foster provides specific examples, sample notices, and clear explanations on how to assess the merit of each complaint, properly frame the issues, develop a Complaint Investigation Plan, and investigate complaints without violating confidentiality policies. She further outlines the relevant burdens of proof and reliability of direct, circumstantial and comparative evidence. Though not for the average lay person, this book is an invaluable resource for its target audience of professionals who must respond to complaints of discrimination in a timely and consistent manner or risk losing their agencies’ federal funding. Ms. Foster clearly understands complex federal laws and regulations and concisely organizes the information in a user-friendly way, highlighting important deadlines, providing detailed questions to ask complaining parties and respondents, and encouraging professionals to seek competent legal advice when necessary. An introduction, conclusion and biography outlining the author’s credentials would be helpful additions to the next edition of the book. I do hope that Ms. Foster will update this informative guide as the laws continue to evolve. 5 out of 5 stars!

OFCCP Updates its Disability and Veterans Community Resources Database for Contractors

Friday, April 4th, 2014

On April 4, 2014, the Office of Federal Contract Compliance Programs (OFCCP) added 24 new resources to its Disability and Veterans Community Resources Directory. This database was launched in March 2014 to help contractors find qualified workers with disabilities and veterans, and to assist contractors with establishing relationships with national organizations and local community groups that have access to these workers.

Contractors, as well as others, can visit OFCCP’s updated Disability and Veterans Community Resources Directory on the OFCCP Web site at http://www.dol-esa.gov/errd/resources.html. OFCCP will add more resources to this database in the coming weeks.

Office of Disability Employment Policy Newsletter (April 4, 2014)

Friday, April 4th, 2014

For more information on any of the following articles, go to www.dol.gov/odep.

The Changing Workforce – Assistant Secretary Martinez Addresses DMEC Conference

Speaking to an audience of disability management professionals, insurance vendors and HR practitioners at the Disability Management Employer Coalition’s FMLA/ADAAA Employer Compliance Conference in Washington, DC on April 1, Assistant Secretary of Labor for Disability Employment Policy Kathy Martinez discussed disability employment and our rapidly “graying” workforce. The conference also highlighted workplace flexibility and return-to-work programs as exemplary practices that benefit workers and employers alike.

Shelly Saves the Future – The Importance of Individualized Learning Plans

The Office of Disability Employment Policy (ODEP) has created an info-comic that illustrates the benefits of having an Individualized Learning Plan (ILP) for high school students like Shelly, the star of the comic. ILPs are tools that help students explore their strengths and interests, learn how their interests are related to career options, and connect what they do in high school with college, job and career goals. In an April 2 posting on the Department of Labor’s blog site, Maria Town, policy adviser in ODEP, introduces Shelly’s story of career development.

Opening the Doors of Small Business to People with Disabilities: Moving Up the Ramp – Webinar – April 11, 11:00 AM – 12:00 PM EDT

This webinar, presented by the Employer Assistance and Resource Network, will help small businesses learn about employing people with disabilities. Topics include the lower than anticipated costs of workers’ compensation, health care and accommodations; the benefits of employing people with disabilities, including retention, productivity, attendance, safety, team performance and financial incentives; and best practices and employment strategies. The webinar will take place April 11, 11:00 AM – 12:00 PM EDT.

LEAD Center Publishes Its Quarterly “LEAD On!” E-Newsletter

LEAD On!, the LEAD Center’s quarterly e-newsletter, highlights news and innovations in employment, policy and economic advancement for adults with disabilities. The current edition features stories on the new LEAD Center/National Council for Independent Living community of practice to promote employment and economic advancement; the recently released LEAD Center Policy Roundtable report; the new Section 503 regulations that took effect March 24, and more.

What’s New with Disability.gov?

Disability.gov, the federal government website for information on disability programs and services nationwide, now offers nine “Guides to Information” to help users quickly find a variety of resources on a single topic. The subjects covered include employment, federal government grants, self-employment, housing, transportation and other topics.

Bureau of Labor Statistics Releases Youth Employment Rate Numbers for March 2014

Employment data for youth with and without disabilities is obtained from the Current Population Survey (CPS), a monthly survey of households conducted by the U.S. Census Bureau for the Bureau of Labor Statistics.

Colorado Department of Labor & Employment signs agreement with US Labor Department to improve services to persons with disabilities

Monday, March 17th, 2014

The following U.S. Department of Labor news release was issued on March 11, 2014. For more information, go to http://www.dol.gov/opa/media/press/oasam/OASAM20132494.htm.

WASHINGTON — The U.S. Department of Labor announced today that it has entered into a conciliation agreement to address allegations of disability discrimination by a person with hearing impairments against the Colorado Department of Labor & Employment. The U.S. Labor Department’s Civil Rights Center investigated allegations that a complainant with a profound hearing loss was denied communication services by Colorado’s unemployment insurance program by not providing a qualified American Sign Language interpreter. Based on a review of state processes, CRC determined that the program violated Section 188 of the Workforce Investment Act of 1998 and Title II of the Americans with Disabilities Act. The conciliation agreement covers the findings in CRC’s determination, as well as a later allegation by the same individual that CDLE’s workers’ compensation program had also not provided a qualified American Sign Language interpreter. By entering into the conciliation agreement, CDLE demonstrates its commitment to equal opportunity for persons with disabilities.

“We acknowledge the Colorado Department of Labor & Employment’s commitment to nondiscrimination and its willingness to address these allegations affirmatively and cooperatively,” said CRC Director Naomi M. Barry-Pérez. “CDLE began reviewing its procedures in 2011 following the individual’s complaint and recently has expanded its review to all of its divisions as a demonstration of its commitment to equal opportunity for customers with disabilities. CRC will continue to actively investigate complaints and resolve allegations of discrimination, ensuring there is equal opportunity for all people in programs that fall under our authority.”

Under the agreement, CDLE will:

establish policies for responding to requests for communication services and reasonable accommodations/modifications from people with disabilities;
formally evaluate the policies, practices and procedures of its unemployment insurance and workers’ compensation programs, and eliminate any barriers for people with disabilities that the evaluation identifies;
train CDLE staff about disability-related obligations and issues; and
conduct outreach to disability advocacy groups.

CRC enforces nondiscrimination laws that apply to recipients of financial assistance from the US Labor Department and, in some circumstances, from other federal departments and agencies. It also enforces ADA Title II as that law applies to state and local governments and other public entities that operate programs and activities related to labor and the workforce. For more information about CRC, call 202-693-6500 (voice) or 800-877-8339 (relay), or visit CRC’s website. Additional information about disability-related issues is available at http://www.disability.gov.

Office of Disability Employment Policy Newsletter (March 14, 2014)

Friday, March 14th, 2014

For more information on any of these articles, go to www.dol.gov/odep.

Planning for a Year of Disability Employment Action – Assistant Secretary Martinez’s Blog

In a blog that looks ahead to the FY 2015 budget year, Assistant Secretary of Labor for Disability Employment Policy Kathy Martinez outlines some of the priorities for the Office of Disability Employment Policy. Among them are a focus on community colleges in the transition of youth with disabilities to the workplace, a commitment to providing technical assistance to employers regarding the new Section 503 of the Rehabilitation Act regulations, and a continued collaboration with the Employment and Training Administration on the Disability Employment Initiative.

Join the National Online Conversation for Change on Social Media Accessibility – March 17 – April 4

Members of the public are invited to participate in a national online dialogue, “Advancing Accessibility and Inclusion in Social Media – The User Experience,” to examine the accessibility barriers of social media tools faced by individuals with disabilities, including job seekers and workers. Co-hosted by the Office of Disability Employment Policy (ODEP) and the National Council on Disability (NCD), this event aims to explore the value of social media in the lives of people with disabilities, particularly around work, and to identify accessibility issues and creative approaches to making social media tools more accessible and usable for everyone. The information gathered from this dialogue will then help NCD and ODEP further collaborate with the social media industry to implement solutions and improve the accessibility of these online tools. The dialogue, to be held March 17 to April 4, 2014, will be the first in a series of three social media accessibility online events to take place over the next three months.

ODEP Info-Comic Illustrates the Benefits of Individualized Learning Plans for Youth

An Individualized Learning Plan (ILP) is a set of activities that helps youth take charge of their future. It does this by connecting what youth do in high school with college, job and career goals. ODEP and its research partners have found that ILPs positively impact all youth’s self-determination, leadership abilities, and awareness of career opportunities. As an example of the process, ODEP created an info-comic in which high school senior Shelly learns how to take charge of her future by using an ILP. ODEP also has a “Kickstart Your ILP” toolkit available on its website.

HUD Announces $120 Million for Housing for People with Disabilities

To help prevent thousands of people with disabilities from experiencing homelessness or unnecessary institutionalization, the U.S. Department of Housing and Urban Development announced about $120 million in funding for state housing agencies to provide long-term rental assistance. Developed in partnership with the U.S. Department of Health and Human Services, the Section 811 Project Rental Assistance (PRA) enables persons with disabilities who earn less than 30 percent of their area’s median income to live in integrated mainstream settings. The program reinforces the guiding principles of the Americans with Disabilities Act and the landmark 1999 Supreme Court ruling in Olmstead v. L.C., which require state and local governments to provide services in the most integrated settings appropriate to meet the needs of individuals with disabilities. Application deadline is May 5, 2014.

Maintaining Employment through Economic Advancement Strategies – LEAD Center Webinar – March 26, 3:00-4:30 PM EDT

This webinar, as part of LEAD Center’s Employment mini-series, will provide information on strategies for enhancing employment stability and improving time on the job through the use of economic advancement strategies. Participants will learn how to integrate these strategies into their return to work services and hear stories about on the ground implementation. The webinar will be held March 26, 3:00-4:30 PM EDT. All LEAD Center webinars are captioned and presentation materials are sent to participants in advance of the webinar. For any other reasonable accommodation requests, please contact Brittany Taylor at btaylor@ndi-inc.org.

Disability Status Report Webinar – April 1, 1:00-2:00 PM EDT

Cornell University’s Employment and Disability Institute (EDI) will host a free online webinar on April 1 from 1:00-2:00 p.m. EDT to present the findings of the 2012 Disability Status Report. This presentation will explore the Census Bureau’s December 2013 release of data from the 2012 American Community Survey (ACS) related to disability and employment, education, poverty, household income and labor earnings.
Cornell University researchers will present the latest information and issues associated with disability statistics and the circumstances that people with disabilities face. The webinar will be captioned.

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

Tuesday, March 11th, 2014

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

Examples of religious dress and grooming practices include wearing religious clothing or articles (e.g., a Muslim hijab (headscarf), a Sikh turban, or a Christian cross); observing a religious prohibition against wearing certain garments (e.g., a Muslim, Pentecostal Christian, or Orthodox Jewish woman’s practice of not wearing pants or short skirts), or adhering to shaving or hair length observances (e.g., Sikh uncut hair and beard, Rastafarian dreadlocks, or Jewish peyes (sidelocks)).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

EXAMPLE 1
New Observance

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

EXAMPLE 2
Observance That Only Occurs at Certain Times or Irregularly

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

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

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

EXAMPLE 3
Employment Decision Based on Customer Preference

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

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

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

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

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

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

EXAMPLE 4
Exception to Uniform Policy as a Religious Accommodation

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

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

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

EXAMPLE 5
Employer Knowledge Insufficient

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

EXAMPLE 6
Employer Knowledge Sufficient

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

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

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

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

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

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

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

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

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

Yes, if the employee’s religious beliefs permit covering the attire or item. However, requiring an employee’s religious garb, marking, or article of faith to be covered is not a reasonable accommodation if that would violate the employee’s religious beliefs.

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

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

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

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

EXAMPLE 10
“Image”

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

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

EXAMPLE 11
“Image”

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

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

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

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

EXAMPLE 12
Public Employee

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

EXAMPLE 13
Public Employee

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

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

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

EXAMPLE 14
Long Hair

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

EXAMPLE 15
Facial Hair

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

EXAMPLE 16
Facial Hair

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

EXAMPLE 17
Clothing Requirements Near Machinery

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

EXAMPLE 18
Head Coverings That Pose Security Concerns

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

EXAMPLE 19
Kirpan

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

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

Yes. Title VII prohibits retaliation by an employer because an individual has engaged in protected activity under the statute, which includes requesting religious accommodation. Protected activity may also include opposing a practice the employee reasonably believes is made unlawful by one of the employment discrimination statutes, or filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the statute.

EXAMPLE 20
Retaliation for Requesting Accommodation

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

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

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

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

EXAMPLE 21
Co-Worker Harassment

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

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

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

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

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

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

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

To locate the EEOC office in your area regarding questions or to file a charge of discrimination within applicable time deadlines, call toll free 1-800-669-4000 or 1-800-669-6820 (TTY) for more information.

Federal sector applicants and employees should contact the EEO office of the agency responsible for the alleged discrimination to initiate EEO counseling. For more details, see “How to File a Charge of Employment Discrimination,” http://www.eeoc.gov/employees/charge.cfm.

16. Where can employers and employees obtain more information?

In addition to Title VII’s prohibitions on religious, race, color, national origin, and sex discrimination, the EEOC enforces federal statutes that prohibit employment discrimination based on age, disability, or genetic information of applicants or employees. The EEOC conducts various types of training and can help you find a format that is right for you. More information about outreach and training programs is available at http://www.eeoc.gov/eeoc/outreach/index.cfm. You should also feel free to contact the EEOC with questions about effective workplace policies that can help prevent discrimination, or for more specialized questions, by calling 1-800-669-4000 (TTY 1-800-669-6820), or sending written inquiries to: Equal Employment Opportunity Commission, Office of Legal Counsel, 131 M Street, NE, Washington, D.C. 20507.

Office of Disability Employment Policy Newsletter (March 7, 2014)

Friday, March 7th, 2014

For more information on any of the following articles, go to www.dol.gov/odep.

The Thrill of Being in the Game — Assistant Secretary Martinez’s Blog

In celebration of Team USA’s participation in the Paralympics, Assistant Secretary of Labor for Disability Employment Policy Kathy Martinez posted a blog on the importance of the Paralympics in promoting disability inclusion.

Assistant Secretary Martinez Addresses American Foundation for the Blind National Transition Network Summit

At the American Foundation for the Blind’s National Transition Network Summit on February 27 in Brooklyn, NY, Assistant Secretary of Labor for Disability Employment Policy Kathy Martinez addressed a group of disability and workforce service providers. She spoke about ODEP’s work to support youth with disabilities who are transitioning from school to work through strategies such as individualized learning plans, soft skills, and work-based learning experiences.

Opportunity for All: The President’s Fiscal Year 2015 Budget

The President’s FY2015 Budget was released earlier this week. The President’s Budget provides a roadmap for accelerating economic growth, expanding opportunity for all Americans, including Americans with disabilities, and ensuring fiscal responsibility. It invests in infrastructure, job training, preschool, and pro-work tax cuts, while reducing deficits through health, tax, and immigration reform. It also takes a number of steps to expand opportunities for people with disabilities.

LEAD Center Posts “In the Know: Flexible Work Arrangements” Fact Sheet

The LEAD Center has posted “In the Know: Flexible Work Arrangements” on its blog site. This fact sheet describes various best practices for employers when making job modifications to enable employees with disabilities to stay on the job or return to work. “In the Know” is a bi-monthly feature on the LEAD Center blog that highlights important resources and information about the employment, policy and economic advancement of people with disabilities.

Disability.gov PSAs Challenge Assumptions about People with Disabilities

Disability.gov recently released public service announcements (PSAs) in support of the message that people are not defined by their disabilities. Each of the eight PSAs features one of Disability.gov’s “No Boundaries” participants. For the PSAs, each participant chose several words to describe him or herself to paint a broader picture of who they are. The PSAs are downloadable from the Disability.gov site.

Telework Week 2014 Begins with a March Snowstorm — JAN Blog

As Telework Week wraps up, the Job Accommodation Network (JAN) posted a new article on its Ask JAN Blog site, “Telework Week 2014 Begins with a March Snowstorm.” The blog focuses on telework as a reasonable accommodation and provides several real life examples of the effective use of telework.

Bureau of Labor Statistics Releases Youth Employment Rate Numbers for February 2014

Employment data for youth with and without disabilities is obtained from the Current Population Survey (CPS), a monthly survey of households conducted by the U.S. Census Bureau for the Bureau of Labor Statistics.