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

Friday, April 20th, 2018

Delivered by Civil Rights Expert and Author Seena Foster

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

Available Selection

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

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

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

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

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

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

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

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

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

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

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

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

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

Her background includes 24 years as Senior Legal Advisor to the U.S. Labor Department’s Office of Administrative Law Judges, where she drafted decisions and orders and developed resources and aids promoting consistency and efficiency in several national adjudication programs. In 2012, Ms. Foster received the U.S. Secretary of Labor’s Exceptional Achievement Award “for outstanding leadership and legal guidance in helping the Office of Administrative Law Judges address the major changes in law” stemming from enactment of the Patient Protection and Affordable Care Act.

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

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

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

EEOC’s Fact Sheet on Religious Garb and Grooming in the Workplace: Rights and Responsibilities (March 6, 2014)

Tuesday, March 11th, 2014

This fact sheet provides basic information about how federal employment discrimination law applies to religious dress and grooming practices. A full-length question-and-answer guide is available at http://www.eeoc.gov/eeoc/publications/qa_religious_garb_grooming.cfm.

In most instances, employers covered by Title VII of the Civil Rights Act of 1964 must make exceptions to their usual rules or preferences to permit applicants and employees to follow religious dress and grooming practices. Examples of religious dress and grooming practices may include: wearing religious clothing or articles (e.g., a Christian cross, a Muslim hijab (headscarf), a Sikh turban, a Sikh kirpan (symbolic miniature sword)); observing a religious prohibition against wearing certain garments (e.g., a Muslim, Pentecostal Christian, or Orthodox Jewish woman’s practice of wearing modest clothing, and of not wearing pants or short skirts); or adhering to shaving or hair length observances (e.g., Sikh uncut hair and beard, Rastafarian dreadlocks, or Jewish peyes (sidelocks)).

Title VII prohibits disparate treatment based on religious belief or practice, or lack thereof. With the exception of employers that are religious organizations as defined under Title VII, an employer must not exclude someone from a job based on discriminatory religious preferences, whether its own or those of customers, clients, or co-workers. Title VII also prohibits discrimination against people because they have no religious beliefs. Customer preference is not a defense to a claim of discrimination.

Title VII also prohibits workplace or job segregation based on religion (including religious garb and grooming practices), such as assigning an employee to a non-customer contact position because of actual or assumed customer preference.

Title VII requires an employer, once on notice that a religious accommodation is needed for sincerely held religious beliefs or practices, to make an exception to dress and grooming requirements or preferences, unless it would pose an undue hardship.

Requiring an employee’s religious garb, marking, or article of faith to be covered is not a reasonable accommodation if that would violate the employee’s religious beliefs.

An employer may bar an employee’s religious dress or grooming practice based on workplace safety, security, or health concerns only if the circumstances actually pose an undue hardship on the operation of the business, and not because the employer simply assumes that the accommodation would pose an undue hardship.

When an exception is made as a religious accommodation, the employer may still refuse to allow exceptions sought by other employees for secular reasons.
Neither co-worker disgruntlement nor customer preference constitutes undue hardship.

It is advisable in all instances for employers to make a case-by-case determination of any requested religious exceptions, and to train managers accordingly.

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

Title VII prohibits workplace harassment based on religion, which may occur when an employee is required or coerced to abandon, alter, or adopt a religious practice as a condition of employment, or for example, when an employee is subjected to unwelcome remarks or conduct based on religion.
To locate the EEOC office in your area regarding questions or to file a charge of discrimination within applicable time deadlines, call toll free 1-800-669-4000 or 1-800-669-6820 (TTY) for more information. Federal sector applicants and employees should contact the EEO office of the agency responsible for the alleged discrimination to initiate EEO counseling. For more details, see “How to File a Charge of Employment Discrimination,” http://www.eeoc.gov/employees/charge.cfm.

In addition to Title VII’s prohibitions on religious, race, color, national origin, and sex discrimination, the EEOC enforces federal statutes that prohibit employment discrimination based on age, disability, or genetic information of applicants or employees. You may contact the EEOC with questions about effective workplace policies that can help prevent discrimination, or with more specialized questions, by calling 1-800-669-4000 (TTY 1-800-669-6820), or sending written inquiries to: Equal Employment Opportunity Commission, Office of Legal Counsel, 131 M Street, NE, Washington, D.C. 20507.

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

Tuesday, March 11th, 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

EXAMPLE 1
New Observance

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

EXAMPLE 2
Observance That Only Occurs at Certain Times or Irregularly

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

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

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

EXAMPLE 3
Employment Decision Based on Customer Preference

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

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

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

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

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

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

EXAMPLE 4
Exception to Uniform Policy as a Religious Accommodation

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

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

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

EXAMPLE 5
Employer Knowledge Insufficient

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

EXAMPLE 6
Employer Knowledge Sufficient

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

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

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

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

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

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

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

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

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

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

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

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

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

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

EXAMPLE 10
“Image”

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

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

EXAMPLE 11
“Image”

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

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

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

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

EXAMPLE 12
Public Employee

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

EXAMPLE 13
Public Employee

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

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

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

EXAMPLE 14
Long Hair

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

EXAMPLE 15
Facial Hair

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

EXAMPLE 16
Facial Hair

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

EXAMPLE 17
Clothing Requirements Near Machinery

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

EXAMPLE 18
Head Coverings That Pose Security Concerns

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

EXAMPLE 19
Kirpan

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

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

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

EXAMPLE 20
Retaliation for Requesting Accommodation

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

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

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

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

EXAMPLE 21
Co-Worker Harassment

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

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

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

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

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

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

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

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

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

16. Where can employers and employees obtain more information?

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

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

Friday, March 7th, 2014

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

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

● Discrimination complaint procedures
● Procedures for assessing corrective actions and sanctions
● Procedures for serving limited English proficient (LEP) populations
● Procedures for serving persons with disabilities and handling accommodation requests
● Procedures for handling religious-based accommodation requests
● Procedures for gathering, handling, and storing medical information
● Procedures for including required assurances on all agreements as well as the use of taglines, posting the “Equal Opportunity Is the Law” posters, and data collection

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

You’ll find more information about our services at www.titleviconsulting.com. Our customers appreciate the thoroughness and timeliness of our work. As an example, one senior county executive commented, “Your procedures document is very comprehensive and inclusive of all that I am aware that we need and beyond . . . it is a pleasure working with you.”

About Seena Foster.

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

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

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

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

Justice Department Reaches Settlement with the City to Improve Law Enforcement Communications with People Who Are Deaf or Hard of Hearing

Tuesday, August 6th, 2013

U.S. Department of Justice press release dated August 6, 2013:

The Justice Department announced today that it has reached a cooperative settlement agreement with the city of Henderson, Nev. under the Americans with Disabilities Act (ADA).

The Justice Department received complaints by individuals who are deaf that officers for the city of Henderson did not provide them with qualified sign language interpreters and other auxiliary aids and services when needed for effective communication. One of the complainants had been arrested and detained for two days in the Henderson detention facility, while the other was an alleged crime victim.

During the course of its investigation into the allegations, the department inquired whether the city of Henderson would be interested in resolving the matter voluntarily. The city expressed its full commitment to ensure compliance with the ADA.

The resulting settlement agreement includes some model ways to ensure people who are deaf or hard of hearing are able to communicate effectively with law enforcement. For instance, officers for Henderson will use a pictogram to ask whether a deaf or hard of hearing person requests a sign language interpreter: www.justice.gov/opa/images/sign-lang-small.gif .

Once the person expresses a need for a sign language interpreter, Henderson has agreed to provide one under most circumstances, usually within an hour of the request.

“People who are deaf or hard of hearing must be able to communicate clearly with law enforcement, whether they are crime victims, witnesses, arrestees, detainees or just members of the public,” said Jocelyn Samuels, Acting Assistant Attorney General for the Civil Rights Division.

“This agreement provides an effective model for Nevada’s – and the nation’s – law enforcement communities to work with deaf and hard of hearing citizens. The people of Henderson should be proud of their city’s leadership, including Mayor Andy A. Hafen and Police Chief Patrick Moers,” said U.S. Attorney for the District of Nevada Daniel G. Bogden. “The commitments made by Henderson are simple and cost-effective; the city will be better able to protect public safety while complying with the Americans with Disabilities Act.”

Under the settlement, the city of Henderson will pay a total of $35,000 to the complainants. In addition, it will renew contracts with qualified sign language interpreters to ensure ready availability, train law enforcement officers, staff members, and volunteers on the ADA, take additional steps to notify the public of the city’s ADA Coordinator, post signs indicating the availability of sign language interpreters and other auxiliary aids and services for people who are deaf or hard of hearing, provide text telephones and volume control telephones, modify its handcuffing policies for people who use sign language or hand writing to communicate, stock and provide hearing aid and cochlear implant processor batteries in the detention facility, and adopt other policies consistent with the ADA.

For more information on the ADA and law enforcement, visit www.ada.gov. Those interested in finding out more about this settlement or the obligations of law enforcement under the ADA may also call the Justice Department’s toll-free ADA information line at 800-514-0301 or 800-514-0383 (TDD), or access its ADA website at www.ada.gov . ADA complaints may be filed by email to ada.complaint@usdoj.gov .

U.S. Department of Justice Speaks Out Against Religious-Based Hate Crimes

Saturday, August 3rd, 2013

By Attorney General Eric Holder
August 2, 2013

This Monday, August 5th, marks the one-year anniversary of the senseless murders of six Sikh worshippers – Satwant Singh Kaleka, Paramjit Kaur, Prakash Singh, Ranjit Singh, Sita Singh and Suveg Singh – at the Sikh Temple of Wisconsin, in Oak Creek, at the hands of a lone gunman. This heinous act of hatred and terror also seriously injured several other worshippers, as well as Oak Creek Police Lieutenant Brian Murphy, who was shot 12 times at close range while attempting to save others.

In the aftermath of this terrible tragedy, individuals and communities of faith across the country were badly shaken. Millions were affected deeply – because we are a nation that has always cherished the right to worship and practice one’s faith in peace and liberty. The attack in Oak Creek was particularly jarring not only because of its scale, and the number of victims involved, but also because it occurred in a place of worship; of fellowship; and – above all – of peace.

One year ago, I traveled to Oak Creek to stand in solidarity – and to grieve – with a shattered community that had witnessed the worst of humanity. That day, I was inspired by the response of the Sikh community, by the outpouring of support from members of other faiths, and by the heroism of the Oak Creek Police Department officers who rushed to aid victims in the face of gunfire.

In the months since that shooting, many have asked how we should respond to mass casualty events like Oak Creek – which constitute both hate crimes and terrorist acts. Following any such incident, the process of healing will inevitably be lengthy and difficult, as the effects of the tragedy endure long after the event.

This is why, today, I’m pleased to announce that the Justice Department’s Office for Victims of Crime will offer an emergency assistance grant to the Wisconsin Department of Justice providing over $512,000 to help reimburse, and continue to pay for, mental health and trauma services for the victims and survivors of this horrific shooting. These funds are intended to assist all those affected – including family members, witnesses, first responders and the wider Oak Creek community – as they continue to rebuild their lives and keep displaying the extraordinary resiliency so many of us have come to admire.

More broadly, we also must engage in an inclusive dialogue about how we can prevent these tragedies in the future – including through the improved tracking of hate crimes reporting.

Now, the victims of Oak Creek must never be reduced to mere crime statistics. But, in order to honor their untimely losses by ensuring that justice can be done – they do need to be counted. Indeed, as Harpreet Singh Saini, who lost his mother during the Oak Creek attack, said at a Congressional hearing organized by U.S. Senator Dick Durbin last fall, “I came here today to ask the government to give my mother the dignity of being a statistic.” Having accurate information allows law enforcement leaders and policymakers to make informed decisions about the allocation of resources and priorities – decisions that impact real people, and affect public safety in every neighborhood and community. Today, I am proud to report that we have taken steps to collect this information.

After a nearly year-long process, in June of 2013, the Advisory Policy Board that advises the FBI on various issues, including statistical reporting under the Uniform Crime Reporting (UCR) program, recommended that the FBI Director add a number of categories in its tracking of hate crimes – including offenses committed against Sikh, Hindu, Arab, Buddhist, Mormon, Jehovah’s Witness and Orthodox Christian individuals. Director Mueller approved this recommendation. And – as we look toward the future – I’m confident that this change will help us better understand the law enforcement challenges we face. It will empower us to better enforce relevant laws to protect everyone in this country. And it is emblematic of our unwavering resolve to prevent and seek justice for acts of hate and terror.

As we speak, the Justice Department – through the FBI, our Civil Rights Division and our U.S. Attorneys’ Offices – continues to vigorously investigate and prosecute threats and violence directed at people because of their religion or ethnicity, and to prevent acts of discrimination against them in the workplace, schools and many other areas. Since the attacks of September 11th, the Department has investigated over 800 incidents involving violence, threats, assaults, vandalism and arson targeting Arabs, Muslims, Sikhs, South Asians and those perceived to be members of these groups. The Civil Rights Division and U.S. Attorneys’ Offices have brought prosecutions against 60 defendants in such cases with 50 convictions to date – including, most recently, obtaining a guilty plea from a Washington state man who attacked a Sikh man in violation of the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act. And the Community Relations Service is working to help communities prevent and respond to these crimes wherever they occur.

Protecting the safety and civil rights of every person in this country is, and must always remain, a top priority for all those who serve the American family. Through this work, my colleagues and I will continue to honor the memories of those lost at Oak Creek and all others who have become victims of terror and hate. And we will keep striving to uphold the uniquely American promise that has always united people of differing faiths, creeds, colors, races and ideologies: the promise of liberty and equality for all.

For more information on the Office for Victims of Crime’s grant to support victims of the Sikh temple attack in Oak Creek please visit: http://www.ojp.gov/newsroom/pressreleases/ovc080213.pdf.

Federal Agencies Announce Significant Nondiscrimination and Equal Opportunity Rulemaking

Wednesday, July 10th, 2013

The U.S. Department of Justice, the U.S. Department of Labor’s Office of Contract Compliance Programs, and the U.S. Equal Employment Opportunity Commission have issued notices in the Federal Register of significant regulatory changes in the area of equal opportunity, nondiscrimination, and affirmative action.  These regulations cover a wide spectrum of activities related to recipients of federal financial assistance, private sector employers of 15 or more employees, and government contractors and subcontractors.  To obtain additional information regarding these and other pending regulatory changes, you may go to www.regulations.gov.

√       Joint Regulation:  EEOC, OFCCP, the U.S. Department of Justice and Disability-Based Discrimination Complaint Procedures

Title: Revisions to Procedures for Complaints or Charges of Employment Discrimination Based on Disability Subject to the Americans With Disabilities Act and Section 504 of the Rehabilitation Act of 1973

The proposed regulation will be issued in March 2014 in the Federal Register. CFR Citation: 29 CFR 1640 (To search for a specific CFR, visit the Code of Federal Regulations )

Abstract: The EEOC has a joint regulation with the Department of Justice (DOJ) to explain how Federal agencies that provide financial assistance should process disability-based employment discrimination complaints/charges against entities subject to both title I of the Americans with Disabilities Act, as amended (ADA) (prohibiting disability-based employment discrimination by employers with 15 or more employees), and section 504 of the Rehabilitation Act (Section 504) (prohibiting disability-based discrimination in programs or activities receiving Federal financial assistance).  This proposed rule would amend this joint regulation to revise the definitions of certain terms and clarify the procedures for referring these complaints/charges between agencies with responsibility for enforcing title I of the ADA and section 504.  In drafting this regulation, EEOC will explore ways to make it more consistent with two other coordination regulations (29 CFR part 1641 and 29 CFR part 1691), as well as with the recently revised Memorandum of Understanding (MOU) between the EEOC and the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP).  This MOU addresses the investigation and processing of complaints or charges alleging employment discrimination that may fall within the jurisdiction of title VII of the Civil Rights Act of 1964, as amended, and/or Executive Order 11246.  The proposed rule would also incorporate provisions established by the DOJ’s rule on title II of the ADA (which prohibits discrimination on the basis of disability in all programs and activities of State and local government entities) for coordinating the processing of discrimination complaints that: (1) Fall within the jurisdiction of title II and title I (but are not covered by section 504); and (2) fall within the jurisdiction of title II, but not title I (whether or not they are covered by section 504). See 28 CFR 35.171(b)(2) and (3).  The revisions described above would not impact the portions of the regulation addressing title II.

 

√       Joint Regulation:  EEOC, OFCCP, and Disability-Based Discrimination Complaints Against Government Contractors or Subcontractors

Title: Revisions to Procedures for Complaints/Charges of Employment Discrimination Based on Disability Filed Against Employers Holding Government Contracts or Subcontracts

The proposed regulation will be issued in March 2014 in the Federal Register. CFR Citation: 29 CFR 1641 (To search for a specific CFR, visit the Code of Federal Regulations )

Abstract: The EEOC has a joint regulation with the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) to coordinate the processing of disability-based employment discrimination complaints/charges filed against employers holding Government contracts or subcontracts, where the complaints/charges appear to state a claim under both section 503 of the Rehabilitation Act (Section 503) (requiring affirmative action and prohibiting disability-based employment discrimination by Federal Government contractors and subcontractors), and title I of the ADA (prohibiting disability-based employment discrimination by employers with 15 or more employees).  This proposed rule would amend this joint regulation to revise the definition of certain terms and clarify the procedures for referring these complaints/charges between the agencies with responsibility for enforcing section 503 and title I of the ADA. In drafting this regulation, EEOC will explore ways to make it more consistent with two other coordination regulations (29 CFR part 1640 and 29 CFR part 1691), as well as the recently revised Memorandum of Understanding between EEOC and OFCCP.  This MOU addresses the investigation and processing of complaints or charges alleging employment discrimination that may fall within the jurisdiction of title VII of the Civil Rights Act of 1964, as amended and/or Executive Order 11246.

 

√       Joint Regulation:  EEOC, U.S. Department of Justice and Employment Discrimination Complaints Against Recipients of Federal Financial Assistance

Title: Revisions to Procedures for Complaints of Employment Discrimination Filed Against Recipients of Federal Financial Assistance

The proposed regulation will be issued in March 2014 in the Federal Register. CFR Citation: 29 CFR 1691 (To search for a specific CFR, visit the Code of Federal Regulations )

Abstract: The EEOC has a joint regulation with the Department of Justice (DOJ) to explain how Federal agencies that grant financial assistance or revenue sharing funds should process complaints of employment discrimination subject to various EEO statutes if the complaints allege discrimination that is also prohibited by title VII of the Civil Rights Act of 1964, as amended (Title VII), or the Equal Pay Act of 1963 (EPA).  This proposed rule would amend this joint regulation to revise the definitions of certain terms and clarify the procedures for handling these complaints. In drafting this regulation, EEOC will explore ways to make it more consistent with two other coordination regulations (29 CFR part 1640 and 29 CFR part 1641), as well as the recently revised Memorandum of Understanding between EEOC and the Department of Labor’s Office Federal Contract Compliance Programs. This MOU addresses the investigation and processing of complaints or charges alleging employment discrimination that may fall within the jurisdiction of title VII and/or Executive Order 11246.  The relevant EEO statutes are: Title VI of the Civil Rights Act of 1964, title IX of 1972, the State and Local Fiscal Assistance Act of 1972, as amended (the revenue sharing act), and provisions similar to title VI and title IX in Federal grant statutes to the extent they prohibit discrimination on the basis of race, color, religion, sex, or national origin.

 

√       OFCCP To Propose Regulations to Improve Affirmative Action for Women and Minorities in the Construction Industry

Title: Construction Contractors’ Affirmative Action Requirements

The proposed regulation will be issued in October 2013 in the Federal Register.

CFR Citation: 41 CFR 60-1; 41 CFR 60-4 (To search for a specific CFR, visit the Code of Federal Regulations )

Abstract: The regulations implementing the affirmative action obligations of construction contractors under Executive Order 11246, as amended, were last revised in 1980. Recent data show that disparities in the representation of women and racial minorities continue to exist in on-site construction occupations in the construction industry. This Notice of Proposed Rulemaking (NPRM) would revise 41 CFR part 60-1 and 60-4 by removing outdated regulatory provisions, proposing a new method for establishing affirmative action goals, and proposing other revisions to the affirmative action requirements that reflect the realities of the labor market and employment practices in the construction industry today.

 

√       OFCCP To Propose Regulations to Eliminate Sex- and Race-Based Compensation Discrimination

Title: Nondiscrimination in Compensation: Compensation Data Collection Tool

The proposed regulation will be issued in October 2013 in the Federal Register.

CFR Citation: 41 CFR 60-2 (To search for a specific CFR, visit the Code of Federal Regulations )

Abstract: Compensation discrimination is one form of discrimination that Executive Order 11246 prohibits. Eliminating sex- and race-based compensation discrimination continues to be a priority for OFCCP. To this end, OFCCP will develop a new compensation data collection tool to identify contractors likely to violate the Executive Order. In addition, the data collection tool could play a key role in OFCCP’s establishment-specific, contractor-wide, and industry-wide analyses. Through publication of Notice of Proposed Rulemaking (NPRM), OFCCP will seek to develop an effective and efficient data collection instrument.

 

√       OFCCP To Propose Regulations to Eliminate Sex- and Race-Based Compensation Discrimination

Title: Sex Discrimination Guidelines

The proposed regulation will be issued in November 2013 in the Federal Register.

CFR Citation: 41 CFR 60 (To search for a specific CFR, visit the Code of Federal Regulations )

Abstract: The Office of Federal Contract Compliance Programs (OFCCP) is charged with enforcing Executive Order 11246, as amended, which prohibits Federal Government contractors and subcontractors from discriminating against individuals in employment on the basis of race, color, sex, religion, or national origin, and requires them to take affirmative action. OFCCP regulations at 41 CFR part 60-20 set forth the interpretations and guidelines for implementing Executive Order 11246, as amended, in regard to promoting and ensuring equal opportunities for all persons employed or seeking employment with Government contractors and subcontractors without regard to sex. This nondiscrimination requirement also applies to contractors and subcontractors performing under federally assisted construction contracts. The guidance in part 60-20 is more than 30 years old and warrants a regulatory lookback.  OFCCP will issue a Notice of Proposed Rulemaking to create sex discrimination regulations that reflect the current state of the law in this area.

 

√       OFCCP To Issue Final Regulations to Addressing Affirmative Action and Nondiscrimination Obligations of Government Contractors and Subcontractors With Regard to Protected Veterans

Title: Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors Regarding Protected Veterans

The final regulations will be issued in July 2013 in the Federal Register.

CFR Citation: 41 CFR 60-250; 41 CFR 60-300 (To search for a specific CFR, visit the Code of Federal Regulations )

Abstract: This Rulemaking would revise the regulations in 41 CFR parts 60-250 and 60-300 implementing the nondiscrimination and affirmative action provisions of the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA). This Rulemaking would strengthen the affirmative action requirements for Federal contractors and subcontractors. The rule would amend the regulations to require that Federal contractors and subcontractors conduct more substantive analyses of recruitment and placement actions taken under VEVRAA and would require the use of benchmarks to measure the effectiveness of affirmative action efforts. The rule would also make revisions to recordkeeping requirements.

 

√             About Seena Foster

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

 

 

State Challenges Investigation by the U.S. Department of Labor’s Civil Rights Center

Sunday, June 9th, 2013

Earlier this month, I posted an article titled “Federal Agency Finds State Violated Civil Rights Laws.” In it, I discussed certain findings in the 56-page Initial Determination issued on April 5, 2013, by the U.S. Department of Labor’s Civil Rights Center (CRC).  Specifically, the CRC concluded Florida’s way of operating its unemployment insurance program discriminated against limited English proficient persons and persons with disabilities in violation of the nondiscrimination and equal opportunity mandates of Section 188 of the Workforce Investment Act and related laws.

On June 5, 2013, the Florida Department of Economic Opportunity sent two letters in response.  The first letter is addressed to United States Representative John Kline, who is the Chair of the Committee on Education and the Workforce, and it requests “Congressional Oversight of the Conduct of the United States Department of Labor Civil Rights Center.”  A second letter is addressed to the Labor Department’s Acting Inspector General, and it requests “Investigation of the United States Department of Labor’s Civil Rights Center.”  Both letters assert “the Initial Determination is seriously flawed, resulting from a questionable investigatory process that appears calculated to have reached a predetermined and highly politicized result.”  Together, these letters allege improper investigative conduct such as:

●        “rather than neutrally enforcing the law and acting as an impartial arbiter of complaints— [USDOL] collaborates with political advocacy groups to initiate complaints and allegations of noncompliance with USDOL laws and regulations”;

●        “the Initial Determination relies on test calls that were orchestrated by MWC [Miami Workers Center] attorneys, not by the USDOL; yet USDOL accepted them at face value, without further inquiry”;

●        “USDOL[s] CRC’s Acting Chief of External Enforcement has publicly stated or endorsed the notion that she brings a political and ideological agenda to her civil-rights enforcement role in the federal government”;

●        “had USDOL neutrally reviewed readily accessible data, it would have found that the languages in which DEO’s online claims are successfully filed accurately represent Florida’s population”;

●        “leaping from a single allegation to conclusions about other hypothetical instances and then about the entire system—would not pass muster in a first-year college statistics class, much less in a supposedly impartial and careful federal investigation”;

●        “USDOL’s willful disregard of statistically significant evidence, in favor of unsworn anecdotal evidence, suggests that political and ideological bias has manifested itself in USDOL’s investigation”;

●        “USDOL has refused to act in a cooperative manner. It has repeatedly withheld documents,…”;

●        “[USDOL] advised DEO attorneys to consider the public-relations implications of USDOL issuing a final determination in this matter and threatened to publicize such an action based on USDOL’s “new policy” to make public all final determinations.”

And, the State also stated that it was attempting to take corrective actions in response to some of the CRC’s findings, but requests for time extensions to complete the corrective actions were summarily denied by the CRC.  The text of these letters may be found online at www.floridajobs.org/news-center/news-feed.

The foregoing allegations have not yet been investigated, but they serve to remind all equal opportunity professionals who conduct discrimination complaint investigations of the importance of adhering to proper investigative methods.

In this post, although we’ll discuss proper techniques for conducting discrimination complaint investigations by State and local equal opportunity (EO) professionals in the context of federally-assisted programs and activities, these techniques also are useful for conducting discrimination complaint investigations in the workplace.  If you do not have written discrimination complaint investigation procedures, or written corrective actions and sanctions procedures, contact us at www.titleviconsulting.com, and we will assist you in developing these critical documents.

√       Discrimination complaint investigations

Discrimination complaint investigations are about proper process.  No complainant or respondent likes being on the losing end of a discrimination complaint investigation, and it is inevitable that one party or the other will disagree with the outcome.  The key is how the investigator gets to that outcome—specifically, it is the process.  Properly conducting a discrimination complaint investigation requires that each party be afforded notice of what issues are being investigated, and have an opportunity to be heard on those issues.

●      Avoid conflicts of interest

If there is an actual or apparent conflict of interest between the equal opportunity professional conducting the investigation and one or both parties involved in the investigation, then an independent investigator should be retained to conduct the investigation.  There are a number of circumstances where a conflict of interest may arise, such as the where the investigator is a witness to the events at issue, the investigator is friends with one party or the other, or the investigator assumes a role as “advocate” for one side or the other.  These are just a few examples of instances where an investigator should not proceed; rather, an independent investigator should be appointed to conduct the investigation.

●      Beware of your use of social media

Facebook, uTube, LinkedIn, and any myriad of other social Internet sites are commonplace these days.  Be careful of what you post on these sites.  If you are an EO professional for a State or local government agency, or for an entity that is part of a system of delivering federally-assisted programs and activities, your credibility hinges on the confidence of those who come to you—namely, confidence in your ability to conduct a neutral discrimination complaint investigation.

EO professionals are charged with ensuring compliance with the nondiscrimination mandates of civil rights laws.  In the matter involving Miami Workers Center, those civil rights laws included Section 188 of the Workforce Investment Act (WIA), which prohibits discrimination on the bases of race, color, national origin, age, gender, religion, citizenship, political affiliation, and WIA-Title I participant status.  Thus, if the EO professional conducting a discrimination complaint investigation under WIA expresses discriminatory views, positions, or attitudes on the Internet that actually (or appear to) contradict WIA Section 188, the investigative process may be tainted, and the EO professional’s credibility with one or both parties as a neutral investigator may be compromised.

●      Incoming complaint

A complaint may come from an individual who alleges s/he suffered discrimination in the delivery of services, aid, training, or benefits.  This is known as an “individual” complaint.  If a group of individuals files a complaint alleging the same harm on the same prohibited basis (i.e. race, gender, age, and the like), then you have a “class action” complaint.

Finally, a third-party complaint may be filed.  This is the type of complaint that was filed with the CRC by the Miami Workers Center.  Third-party complaints generally are filed by advocacy groups that focus on particular interests.  For example, the Miami Workers Center states that its purpose is “to create a progressive political and social environment in South Florida.”

Standing alone, a third-party complaint generally does not give rise to a discrimination complaint investigation; rather, it would be utilized to conduct monitoring of the respondent’s operations, or to provide technical assistance to the respondent.  However, if the third-party complainant also has individuals file discrimination complaints, then discrimination complaint investigations may proceed with regard to each of those complainants (either as an individual discrimination complaint investigation, or a class action discrimination complaint investigation, as appropriate).

●      Filling out the complaint form

The investigator may assist an individual complainant in completing a discrimination complaint form.  This would include providing interpretation and/or translation services for limited English proficient persons as well as auxiliary aids and services as requested by persons with disabilities.

If a complainant needs assistance in understanding and/or completing the discrimination complaint form, it is acceptable to explain what is required for various components of the form and, if needed, help the individual complete the form. Importantly, however, you are not the complainant’s advocate; you are merely assisting him or her in completing the required information on the form.

Once the form is completed and signed, you should inform the complainant that the information provided will be reviewed to determine whether there is authority to proceed with the complaint.  Do not place yourself in a position where you are advising the complainant, or suggesting a certain course of action to the complainant.

If you determine a complaint cannot be accepted for investigation, you must notify the complainant in writing of this denial and provide supporting rationale.  The complainant also must be notified of any further rights s/he may have (i.e. for WIA Title I-financially assisted programs and activities, the complainant would have a right to file a discrimination complaint with the CRC).

●      Accepting a complaint for investigation

If you find you have authority to investigate a complaint, i.e. all of the jurisdictional requirements such as timeliness, apparent merit, and the like are met, then you notify the parties (complainant and named respondent) in writing of the following:

The issue(s) accepted for investigation

Each party has a right to representation in the course of the discrimination complaint investigation

The parties may elect to participate in mediation of the complaint

A notice of the complainant’s rights

●      Conducting the investigation—an overview

Once the parties are notified of the specific issue(s) under investigation, it is time to conduct the investigation.  Discrimination complaint investigations are multi-faceted—you will interview individuals, review documents, and take a look at procedures, practices, and policies related to matters under investigation.  In the delivery of federally-assisted programs and activities, you also will conduct statistical analyses to determine whether there are any significant discrepancies between the composition of your service area population, and the composition of the folks coming through your doors and being served.

●      Order of interviews

In any discrimination complaint investigation, interviews should be conducted in the following order:

1.     Interview the complainant first.

2.     Interview the named respondent(s).

3.     Interview first-hand witnesses, as needed, to resolve areas of factual conflict.

4.     Interview the complainant last.

Because the complainant carries the burden of demonstrating it is more likely than not discrimination occurred, the investigator should begin and end with interviews of the complainant.  In the beginning, you are trying to determine what happened, when it happened, who was involved, and what was said from the complainant’s perspective.  At the end, you will ask the complainant to address areas of factual disagreement presented by the respondent as well as the reasons put forth by the respondent for the conduct at issue.

When interviewing the respondent, you will gather the policies, practices, and procedures utilized for the specific program or activity at issue.  And, you will gather information regarding what happened, when it happened, who was involved, and what was said from the respondent’s perspective.  When analyzing the witness statements and documentation gathered during the investigation of a federally-assisted program or activity, two things you will determine are:  (1) whether the policies, practices and procedures were followed for the particular complainant (disparate treatment), and (2) looking at the bigger picture, whether the policies, practices, and procedures at issue discriminate against certain populations (disparate impact).

Finally, first-hand witnesses should be interviewed only if necessary.  Namely, if there is a conflict regarding one or more facts that would be critical to resolving the complaint, then it is appropriate to interview these witnesses.  Witnesses with second or third-hand information (i.e. they heard what happened through the “grapevine”) are less reliable and, most likely, they would not be interviewed.

●      Interviewing rules

There are some basic protocols that you should follow for each interviewee (complainant, respondent, and witness):

1.  If the interviewee requested representation, then make sure the representative is present for the interview as well as any follow-up interviews.  Any e-mail exchanges with the interviewee also should include the representative.

2.  Do not agree or disagree with what the interviewee tells you; rather, you should take notes and periodically summarize what the interviewee tells you to make sure you understand the interviewee’s version of the facts.  Ask neutral, fact-specific questions designed to help you understand what happened, when it happened, where it happened, who was involved, and what was said from the witness’s perspectives.

Only after you have analyzed all of the materials gathered during the investigation will you determine why it happened, and whether prohibited discrimination occurred.

3.  Prepare a written statement for review and signature of the interviewee.  Let the interviewee make any changes to the statement.

As you interview each party and/or witness, you will do so without the other parties and/or witnesses in the room.  This enables the interviewee to speak freely.  For this reason, it is important that notes be taken, which will then be put in writing for review and signature of each interviewee.  At the end of the day, signed statements will constitute some of the documentation used to support findings of fact in your determination.

√             Settling the complaint

Settling a discrimination complaint is desirable for both parties if the settlement is voluntary, and if it ensures compliance with applicable civil rights laws.  The ultimate goal of the EO professional conducting a discrimination complaint investigation is not limited to determining whether prohibited discrimination occurred with regard to a particular individual or group of individuals; rather, it is one means by which civil rights compliance may be achieved in the federally-assisted program or activity, or in the workplace, going forward.  Certainly, it is preferred to have measures in place to prevent discrimination from occurring in the first place, but resolution of a discrimination complaint on the back end also serves to achieve compliance.

Keep in mind that parties should not be forced into a settlement or conciliation agreement through the use of coercion, veiled threats, or the like.  If an agreement simply cannot be reached, then the EO professional must follow his or her procedures for instituting corrective actions and sanctions with regard to federally-assisted programs and activities.  In the workplace, established disciplinary procedures would be followed.

√             About the author

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

 

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

Saturday, August 25th, 2012

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

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

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

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

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

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

Harassment and Hostile Environment: Understanding the Basics

Wednesday, September 28th, 2011

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

√ Two categories of harassment-related complaints.

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

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

√ Harassment is discrimination.

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

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

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

√ Quid pro quo harassment defined.

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

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

√ “Hostile environment” defined.

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

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

An example of “hostile environment” in the workplace is where Kristen works as a welder alongside eight co-workers, all of whom are men. Two of these co-workers are constantly telling sexist jokes, posting naked photos of women in the work area, and whistling at Kristen when she is working. Kristen is offended by the conduct, finds it unwelcome, and files a complaint. Kristen’s complaint involves allegations of a “hostile sexual environment”, which adversely altered her working conditions.

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

√ Retaliatory “hostile environment” is against the law.

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

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

For example, in Gowski v. James Peake, MD (Sec’y., Dept. of Veterans Affairs, et al), ___ F.3d ___, No. 09-16371 (11th Cir. June 4, 2012), the circuit court noted that, after two hospital physician-employees filed EEO complaints of gender-based and religious-based discrimination, they were subjected to “severe and pervasive” retaliation at work, including the spread of demeaning rumors about the physicians by management that damaged their professional reputations, denial of hospital privileges to the physicians that could adversely affect their certifications, excluding the physicians from participating in work-related functions, and other similar acts. The court found that, taken as a whole, this conduct created a retaliatory hostile environment and damages were awarded against the hospital.

√ Obligations of EO and EEO professionals.

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

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

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.