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Investigating Pregnancy-Related Discrimination Complaints by Seena Foster

Friday, November 2nd, 2018

This is an informational paper to assist equal opportunity professionals, and human resource professionals, better understand the differences in disability-based and gender-based discrimination complaints. Given the length of the paper, you may find it useful to download and save in your resource library.

TABLE OF CONTENTS:

An overview

I. Federal laws and pregnancy

A. Disability-related laws

1. In federally-assisted programs and in the workplace

2. Additional considerations in the workplace: The FMLA and an employer’s leave policies

B. Gender-related laws

1. In federally-assisted programs

2. In the workplace

II. When to apply disability laws

A. In federally-assisted programs

B. In the workplace

III. When to apply gender laws

A. In federally-assisted programs

B. In the workplace

IV. About Seena Foster

________________________________________________________________

An overview

As the HR/EEO professional for your organization, you receive a complaint from an employee alleging that she was denied access to a workplace training program because she took sick leave, and requested leave under the Family Medical Leave Act (FMLA), for pregnancy-related complications. Or, she was denied access to the training program because her supervisor overheard her say she wanted to “start a family soon.”

Or, you serve as the EO professional for an organization operating federally-assisted programs and activities, and a woman files a discrimination complaint alleging that her application to enroll in an educational program was wrongfully denied because she has medical complications from her pregnancy. Or, she alleges her enrollment application was denied because she’s been pregnant twice over the past three years.

How do you investigate these complaints? Depending on the circumstances giving rise to the adverse action at issue, you’ll investigate the complaint as either a disability-based discrimination complaint, or as a gender-based complaint. How you decide this will, in turn, dictate the information you gather and the remedies (if any) you offer.

This paper is designed to help you understand how to identify the type of complaint you have, and what information you’ll need to gather during the investigation.

I. Federal laws and pregnancy

A. Disability-related rights laws

1. In federally-assisted programs and in the workplace

When we talk about disability-related civil rights laws, we are referring to the Rehabilitation Act of 1973, the Americans With Disabilities Act of 1990 (ADA), and the Americans With Disabilities Act Amendments Act of 2008 (ADAAA). Importantly, these laws apply both to workplace discrimination complaints as well as to discrimination complaints arising in federally-assisted programs and activities.

Generally speaking, under these laws, “disability” is defined as a mental or physical condition that “substantially limits” one or more major life activities. Disabilities that are both (1) minor, and (2) transient or temporary (such as having a cold), do not meet the definition of “disability” for purposes of the Rehabilitation Act, ADA, and ADAAA.

2. Additional considerations in the workplace: The FMLA and an employer’s leave policies

In addition to the Rehabilitation Act, and the ADA, the Family and Medical Leave Act applies to the workplace. Often, this law is mistakenly thought of as a civil rights law. The FMLA is not a civil rights law, but it was enacted in response to civil rights concerns in the workplace.

Generally speaking, the FMLA provides that, for certain family or medical reasons, an employee of at least one years’ duration may take up to 12 weeks of unpaid, job-protected leave in a 12 month period. These reasons include birth and care of a newborn child, absence due to pregnancy complications, adopting a child or becoming a foster care parent, caring for an immediate family member with a serious health condition, or taking medical leave due to the employee’s inability to work because of a serious health condition.

As noted by the United States Supreme Court in Coleman v. Court of Appeals of Maryland (Mar. 20, 2012):

In enacting the FMLA, Congress relied on evidence of a well-documented pattern of sex-based discrimination in family-leave policies that granted longer periods of leave to women than to men.

Therefore, the FMLA is designed to provide a consistent set of unpaid leave policies to be applied to employees across the board, regardless of gender.

And, the Equal Economic Opportunities Commission offers the following guidance:

An employer may not single out pregnancy-related conditions for special procedures to determine an employee’s ability to work. However, if an employer requires its employees to submit a doctor’s statement concerning their ability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy-related conditions to submit such statements.

Further, under the Family and Medical Leave Act (FMLA) of 1993, a new parent (including foster and adoptive parents) may be eligible for 12 weeks of leave (unpaid or paid if the employee has earned or accrued it) that may be used for care of the new child. To be eligible, the employee must have worked for the employer for 12 months prior to taking the leave and the employer must have a specified number of employees.

Turning to your organization’s leave policies and procedures, it is important to understand these policies are in place for a reason.

As we see from the history behind Congress’ enactments of the FMLA and the PDA, employers must establish leave policies and procedures (sick, annual, FMLA, and so on) that apply to employees across the board, and managers and supervisors must be consistent in their application of these policies and procedures. So, while these policies are not civil rights laws, deviation from established policies and procedures, or discriminatory policies and procedures established by the employer, renders an organization vulnerable to civil rights discrimination complaints on any covered basis (race, color, national origin, gender, religion, disability, age).

B. Gender-related laws

Sometimes, a pregnancy-related discrimination complaint does not involve disabling physical complications or medical restrictions related to the pregnancy. These complaints would be investigated as gender-based discrimination complaints. Why?

The answer is only women are capable of pregnancy and childbirth. So, let’s take a look at the gender-based civil rights laws that may apply to the complaint filed with you.

1. In federally-assisted programs and activities

There are a number of federal laws that prohibit gender-based discrimination in the delivery of federally-assisted aid, training, benefits, and services. As an example, Section 188 of the Workforce Investment Act prohibits discrimination on the basis of gender in federally-assisted operations, such as job referral activities at our Nation’s job banks, delivery of unemployment insurance benefits, and selection of individuals for training, apprenticeship, and certification programs.

As another example, Title IX of the Education Amendments Act (Title IX) prohibits gender-based discrimination in educational programs and activities, regardless of which federal agency provides the funding. And, the U.S. Department of Education (Education) provides excellent guidance for handling pregnancy-related discrimination issues under Title IX. Notably, unless a complaint alleges discrimination based on disabling medical or physical complications, a pregnancy-related discrimination complaint is a complaint alleging discrimination on the basis of gender. Education’s guidance states the following:

[T]he Title IX regulation at 34 C.F.R. § 106.40(a) prohibits recipients from applying ‘any rule concerning a student’s actual or potential parental, family or marital status which treats students differently on the basis of sex.’ The regulation also states, in part, the following:

A recipient shall not discriminate against any student, or exclude any student from its education program or activity, including any class or extracurricular activity, on the basis of such student’s pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery therefrom, unless the student requests voluntarily to participate in a separate portion of the program or activity of the recipient. 34 C.F.R. § 106.40(b)(l).
In addition, the Title IX regulation states that, in providing financial assistance to any of its students, a recipient shall not ‘apply any rule or assist in application of any rule concerning eligibility for such assistance which treats persons of one sex differently from persons of the other sex with regard to marital or parental status.’ (See 34 C.F.R. § 106.37(a)(3)).

This differs from Education’s disability-related guidance:

Although pregnant students may be required to obtain a physician’s certification of fitness to continue in the regular education program or activity, a recipient may do so only if it requires such a certification from all students for other physical or emotional conditions requiring the attention of a physician. (See 34 C.F.R. § 106.40(b)(2)). In fact, the Title IX regulation instructs recipients to treat pregnancy or childbirth in the same manner and under the same policies as any temporary disability. (See 34 C.F.R. § 106.40(b)(4)).

This is consistent with how pregnancy-related complaints should be approached in other federally-assisted programs and activities. So, unless the complaint alleges discrimination based on disabling medical complications or restrictions, the pregnancy-related complaint is investigated as alleged gender-based discrimination.

2. In the workplace

Title VII of the Civil Rights Act of 1964 (Title VII) prohibits gender-based discrimination. However, confusion arose regarding how to process pregnancy-related complaints. As a result, Congress sought to clarify that pregnancy-related discrimination complaints in the workplace generally are investigated as alleging discrimination on the basis of gender. To that end, the Pregnancy Discrimination Act (PDA) amended Title VII of the Civil Rights Act to include pregnancy-related complaints under the penumbra of gender-based discrimination.

As noted by the United States Supreme Court in California Federal Savings and Loan Assoc. v. Guerra, 479 U.S. 272, 107 S. Ct. 683, 692 (1987), leading up to enactment of the PDA, “Congress had before it extensive evidence of discrimination against pregnancy,” particularly in the administration of leave policies and procedures by employers. To see the text of the PDA, to go 42 U.S.C. § 2000e.

II. When to apply disability laws

A. In federally-assisted programs and activities

Jane seeks to participate in an on-the-job training program funded by the U.S. Department of Labor. The program begins in 30 days and requires that participants be able to bend, lift, and stand for most of an eight hour day, five days a week. Jane wants to participate in the program, but provides medical documentation from her physician stating, for the next three months, she will be unable to stand for more than ten minutes, and will be unable to bend or lift anything at all. Her application to participate in the program is denied because her pregnancy-related complications prevent her from being able to start the program in 30 days. She files a complaint with you.

You will process Jane’s complaint as a disability-based discrimination complaint. Here, Jane is unable to bend or lift anything for the next three months, and can stand for only ten minutes at a time, due to her pregnancy. She has a “disability” in that her condition “substantially limits” the major life activities of bending, lifting, and standing. To that end, you will determine whether Jane meets the essential eligibility requirements to participate in the program, and whether any accommodations may be offered to Jane to allow her to participate. With regard to accommodations, you would look at the accommodations available for similarly-situated program applicants with temporary disabilities (such as a broken foot, or temporary back condition). The questions you will ask during your investigation would include:

● What are the essential eligibility requirements for participation in the program?

● Assuming, for purposes of this exercise, you find that the essential eligibility requirements include starting the program in 30 days and being able to lift, bend, and stand, you’ll need to ask, “Was Jane treated differently than anyone else (man or woman) with similar temporary limitations, such as a broken leg or the flu, seeking to participate in the training program?”

For questions in a particular complaint involving allegations of pregnancy-related discrimination, you should check with your EO leadership, or with the civil rights office of your federal funding agency for guidance.

    Tell-tale signs.

So, when reviewing a pregnancy-related discrimination complaint under disability-based nondiscrimination laws, ask yourself: Does this complaint allege denial of a federally-assisted service, aid, benefit, or training because of actual or perceived physical limitations or restrictions leading to the view that the person is disabled because of a previous, current, or potential pregnancy?

    Some examples.

Under the disability-related civil rights laws, “disability” is defined as a condition that “substantially limits and major life activity,” and there is no requirement that an impairment last a particular length of time to be considered substantially limiting (i.e. temporary disabilities may be covered). Think twice if you seek to deny services, aid, training or benefits because the applicant/participant:

● develops a disabling condition as the result of pregnancy or childbirth (such as preeclampsia requiring bed rest)
● has a record of a pregnancy-related or childbirth-related disability (such as developing gestational diabetes during a prior pregnancy)
● is regarded as having a disabling condition (such as limiting an applicant’s training or apprenticeship opportunities because you believe these positions could result in a miscarriage)

Focus on the essential eligibility requirements for the program or activity at issue, and ensure that the applicant/participant is not denied access to these programs if she meets the essential eligibility requirements. Look for accommodations that may be provided to allow participation where the applicant/participant has a temporary disability.

B. In the workplace

In the workplace, figuring out the proper way to investigate discrimination complaints often is complicated by allegations that leave requests (such as sick leave or FMLA leave) were improperly denied, or that these requests adversely affected an employment decision related to the employee. So, let’s sort out these issues in the context of pregnancy-related complaints.

The U.S. Equal Employment Opportunities Commission (EEOC) provides the following guidance:

If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer or other covered entity must treat her in the same way as it treats any other temporarily disabled employee. For example, the employer may have to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees if it does so for other temporarily disabled employees.

Additionally, impairments resulting from pregnancy (for example, gestational diabetes or preeclampsia, a condition characterized by pregnancy-induced hypertension and protein in the urine) may be disabilities under the Americans with Disabilities Act (ADA). An employer may have to provide a reasonable accommodation (such as leave or modifications that enable an employee to perform her job) for a disability related to pregnancy, absent undue hardship (significant difficulty or expense). The ADA Amendments Act of 2008 makes it much easier to show that a medical condition is a covered disability.

We’ll illustrate this point with Joan. Joan suffers from “morning sickness,” and has asked for permission to take sick leave or FMLA leave on days she feels particularly bad. Her supervisor denies both of her requests, and she files a complaint with you.

Joan has asked for sick leave or FMLA leave, and she has let you know she suffers from “morning sickness,” you will investigate this as a disabiity-based discrimination complaint. You will look at the policies and procedures pertaining to employees’ requests for the types of leave at issue here, sick and FMLA. You will ask how those policies and procedures have been applied to other employees with temporary disabilities, and whether Joan is being treated differently from any other employee in your organization, male or female, with similar temporary or transient limitations.

Let’s say that Joan directs your attention to one of her co-workers, Jane who requested, and received approval for, sick leave and FMLA leave when she broke her arm last year. Here, you are looking to see whether Joan and Jane, and any other similarly-situated co-workers with transient or temporary limitations, were treated differently with regard to consideration of their leave requests.

Determinations as to whether folks are “similarly-situated” are made on a case-by-case basis; there are no “bright line” rules. In making such determinations, you want to ensure that your leave policies and procedures are not discriminatory either in favor of, or against, pregnancy-related limitations, and that these policies and procedures are being applied consistently to all employees.

    Tell-tale signs.

So, when reviewing a pregnancy-related discrimination complaint under disability-based nondiscrimination laws, ask yourself: Does this complaint allege an adverse employment action because of actual or perceived physical limitations or restrictions leading to the view that the employee is disabled because of a previous, current, or potential pregnancy?

    Some examples.

Under the disability-related civil rights laws, “disability” is defined as a condition that “substantially limits and major life activity,” and there is no requirement that an impairment last a particular length of time to be considered substantially limiting (i.e. temporary disabilities may be covered). Think twice before you engage in an adverse employment action because the employee:

● develops a disabling condition as the result of pregnancy or childbirth (such as preeclampsia requiring bed rest)
● has a record of a pregnancy-related or childbirth-related disability (such as developing gestational diabetes during a prior pregnancy)
● is regarded as having a disabling condition (such as limiting an employee’s promotion opportunity because you believe the duties required in the position could result in a miscarriage)

Focus on the bona fide occupational requirements, and the essential job duties, and allow the employee to participate if she meets these requirements. Look for accommodations where the employee has a temporary disability due to childbirth or pregnancy, as you would for someone with a broken foot or the like.

III. When to apply gender-based laws

A. In federally-assisted programs and activities

Denial of a service, aid, benefit, or training on the basis of prior pregnancies is a violation of federal civil rights laws. For example, the case of Pegues et al. v. Mississippi State Employment Service et al., 699 F.2d 760 (5th Cir. 1983) involved denial of an employment referral in a federally-assisted workforce development program. The Mississippi State Employment Service (MSES) reviewed applications of individuals who sought employment referrals to available, higher paying jobs at a local factory. One of the female applicants (Plaintiff) alleged disparate treatment in MSES’ classification, and referral, of her and other women to lower paying positions at the local factory as compared to similarly qualified male applicants.

The court stated, to demonstrate disparate treatment in employment referral, the Plaintiff must prove: (1) she is a member of a protected group; (2) she applied for an occupation for which MSES was making referrals; (3) she failed to secure a referral; and (4) MSES later referred a non-member of the protected group.

On examination of the evidence of record, the court found: (1) the Plaintiff was a member of a protected group (women), (2) she applied for a higher paying position with the local factory, (3) her application was denied, and, (4) based on her education and experience, she “was passed over in favor of other, similarly qualified (male) applicants.” Id. at 775. The court then noted:

By way of rebuttal, Defendants elicited testimony from (Plaintiff) as to her five full term pregnancies between 1970 and 1975, and various benefits in the form of training and referral that Defendants had conferred upon her between 1968 and 1970.
Id. at 775 (emphasis added). The court rejected Defendants’ proffer of rebuttal:
Given her factory experience and enhanced education, we do not believe the reasons articulated constitute a legitimate rationale for Defendants’ failure to reconsider her service classification and provide an opportunity for employment at Travenol. She is entitled to relief.

Id. at 775. The court concluded that Plaintiff successfully established gender-based discrimination.

    Tell-tale signs.

So, when reviewing a pregnancy-related discrimination complaint under gender-based nondiscrimination laws, ask yourself: Does this complaint allege denial of a federally-assisted service, aid, benefit, or training because of the views of the agency, organization, or company involved regarding prior, current, or potential pregnancies?

    Some examples.

The following list contains pregnancy-related examples of views that may lead to gender-based discrimination in the delivery of federally-assisted programs and activities. Think twice if you seek to deny services, aid, training or benefits because the applicant/participant:

● expresses an intention to become pregnant
● is undergoing fertility treatment
● is pregnant
● has been pregnant in the past
● may become pregnant in the future
● uses contraception
● is lactating or breastfeeding
● develops a non-disabling medical condition related to pregnancy or childbirth
● has an abortion
● requests light duty work, modified tasks, or alternative assignments on a temporary basis (if available to other applicants/participants with similar temporary limitations)

B. In the workplace

An example of gender-based discrimination in the workplace is found in International Union, et al v. Johnson Controls, Inc., 499 U.S. 187, 111 S.Ct. 1196 (1991). Here, the employer had a policy that excluded women of “childbearing capacity” from holding certain “lead-exposed jobs.” Specifically at issue were certain jobs making batteries. Among the class action plaintiffs were (1) a woman “who had chosen to be sterilized in order to avoid losing her job,” and (2) a woman “who had suffered loss in compensation when she was transferred out of her job where she was exposed to lead.”

Concluding that the employer’s policy was “facially discriminatory” in violation of Title VII’s ban on gender-based discrimination, the Court noted the policy improperly “requires only a female employee to produce proof that she is not capable of reproducing.” As a result, the Court noted that the burden shifted to the employer to demonstrate that this discriminatory requirement constituted a bona fide occupational qualification (BFOQ), which the Court found was not present in the case.

Citing to the PDA, the Court stated, “Unless pregnant employees differ from others in their ability to work, they must be treated the same as other employees for all employment-related purposes.” Said differently, women who are as capable of doing their jobs as their male counterparts may not be forced “to choose between having a child and having a job.” Based on the record before it, the Supreme Court in Johnson Controls found that “[f]ertile women . . . participate in the manufacture of batteries as efficiently as anyone else” such that the employer’s policy violated Title VII’s ban on sex discrimination.

The Court made a point of stating that sex discrimination in the workplace has been allowed only under very narrow circumstances, such as definitive danger to others. The Court stressed, under these circumstances, “the safety exception is limited to instances in which sex or pregnancy actually interferes with the employee’s ability to perform the job.”

    The “safety exception” explained.

The Johnson Controls Court cited its prior opinion in Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720 (1977) to illustrate the “safety exception” to gender-based discrimination. In Dothard, it was the employer’s policy to hire only male guards at a maximum-security male penitentiary. The Court held this was permissible as “employment of a female guard would create real risks of safety to others if violence broke out because the guard was a woman.” Under the facts of that case, the Court found that “sex was related to the guard’s ability to do the job-maintaining prison security.” In Johnson Controls, the Court emphasized, “in order to qualify as a BFOQ, a job qualification must relate to the ‘essence’ . . . or to the ‘central mission of the employer’s business.’”

    Tell-tale signs.

So, when reviewing a pregnancy-related discrimination complaint under gender-based nondiscrimination laws, ask yourself: Does this complaint allege an adverse employment action because of the views of the supervisor, agency, organization, or company regarding prior, current, or potential pregnancies, and the “safety exception” does not apply?

    Some examples.

The following list contains pregnancy-related examples of views that may lead to based discrimination in the workplace in violation of Title VII. Think twice if you seek to engage in an adverse employment action because the employee:

● expresses an intention to become pregnant
● is undergoing fertility treatment
● is pregnant
● has been pregnant in the past
● is taking pregnancy or parental leave
● may become pregnant in the future
● uses contraception
● is lactating or breastfeeding
● develops a non-disabling medical condition related to pregnancy or childbirth
● has an abortion
● requests light duty work, modified tasks, or alternative assignments on a temporary basis (if available to other employees with similar temporary limitations)

IV. About Seena Foster

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

By way of background, in 2003, Ms. Foster served as a Senior Policy Analyst to the U.S. Department of Labor’s Civil Rights Center (CRC). In that capacity, she led a team of equal opportunity specialists to conduct disability-based technical assistance reviews of One-Stop centers, and she assisted the CRC’s leadership in preparing for limited English proficiency-based compliance reviews.

Ms. Foster also analyzed and weighed witness statements and documents to prepare numerous final determinations for signature by the CRC Director, which resolved discrimination complaints under a variety of federal civil rights laws such as Title VI of the Civil Rights Act, the Age Discrimination Act, the Rehabilitation Act, the Americans with Disabilities Act, and Section 188 of the Workforce Investment Act. In 2006, Ms. Foster received the Secretary of Labor’s Equal Employment Opportunity Award in recognition of “exceptional efforts to ensure that individuals with disabilities have full access to employment and related services and benefits at the Nation’s One-Stop Career Centers.”

And, at the request of the CRC, Ms. Foster served as a popular workshop speaker at national equal opportunity forums co-sponsored by the CRC and the National Association of State Workforce Agencies. Her presentations covered topics such as the WIA Section 188 disability checklist, conducting discrimination complaint investigations and writing final determinations, and conducting investigations of allegations involving harassment and hostile environment.

With a passion for ensuring nondiscrimination and equal opportunity in the delivery of federally-assisted programs and activities, Ms. Foster’s series of on-demand webcasts for equal opportunity professionals has received rave reviews, and she offers training, and assistance developing policies and procedures designed to ensure compliance with applicable federal civil rights laws.

Her training in the areas of compliance and complaint investigations has been described as “dynamic,” “hitting the nail on the head,” “very relevant,” “well-organized,” and “informative.” And, her award-winning book on conducting discrimination complaint investigations is viewed as “eye-opening” and “the best on the market.” Ms. Foster is certified in “Federal Workplace Mediation” through the Northern Virginia Mediation Service.

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

NOTICE: This paper is for informational purposes only. We do not offer legal advice. Specific questions should be directed to your legal counsel, or to the civil rights experts within your organization, agency, or company.

Harassment and Hostile Environment: Understanding the Basics by Seena Foster

Tuesday, May 15th, 2018

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

√ Two categories of harassment-related complaints.

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

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

√ Harassment is discrimination.

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

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

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

√ Quid pro quo harassment defined.

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

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

√ “Hostile environment” defined.

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

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

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

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

√ Retaliatory “hostile environment” is against the law.

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

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

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

√ Obligations of EO and EEO professionals.

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

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

About the author.

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

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

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

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

Discrimination Complaint Investigations: Focus on Controlling the Process, Not the Parties by Seena Foster

Thursday, January 25th, 2018

When a discrimination complaint is filed in a government program, or in the workplace, there are concerns regarding confidentiality, retaliation, and the threat of harm to public or professional reputations. The advent of electronic mail and a myriad of social media sites compound the complexity of these concerns. The bottom line is, you will not be able to control the actions of the parties to a discrimination complaint but, as an investigator, you can control your own actions as well as the investigative process. In this paper, we’ll discuss when and to whom you give notice of a discrimination complaint and how to maintain control over the investigative process.

For federally funded programs or activities, a discrimination complaint is filed by a Charging Party alleging denial of benefits, services, aid, or training by the Respondent on a prohibited basis (i.e. race, color, national origin, age, gender, disability, and so on). The Charging Party (CP) is a beneficiary, or potential beneficiary, of a federally funded program. The Respondents are the (1) agency or other entity operating the program, and (2) the employee acting on behalf of the agency or entity.

One example of discrimination in a government program is where a college professor gives one of his students a higher grade in exchange for sex. The student (CP) files a quid pro quo sexual harassment complaint against the college and its professor (Respondents). Another example is where the unemployment insurance counselor at a one stop career center refuses to assist persons with hearing impairments because it takes too much time. Here, the persons with hearing impairments (CPs) file a disability-based discrimination complaint against the unemployment insurance counselor and the one stop career center (Respondents).

An example of a workplace discrimination complaint is where a supervisor gives a black subordinate an adverse performance appraisal. The employee (Complainant) would file a color-based discrimination complaint against the supervisor (Respondent).

√ Determining jurisdiction

The first step for any investigator when s/he receives a discrimination complaint is determining jurisdiction. Is there authority to investigate a particular complaint? Here, the investigator is looking at things such as timeliness, apparent merit, protected class characteristics, and so on.

At this initial stage, the investigator is not determining whether the allegations are true; rather, s/he is merely figuring out whether the complaint meets certain basic jurisdictional requirements. Most often, this stage of the investigation involves communicating only with the CP or Complainant. Because the complaint has not officially been accepted for investigation, there is no need to notify the named Respondents of the complaint at this time.

Moreover, generally, if the investigator finds that s/he is without jurisdiction to investigate a complaint (i.e. it is untimely, lacks apparent merit, and the like), then written notice of that fact must be provided to the CP or Complainant, but it may not be necessary to provide the named Respondents with such notice. Check with the civil rights office of your federal funding agency for requirements applicable to you.

√ Accepting the complaint

If the investigator concludes that s/he has jurisdiction over the complaint and will accept it for investigation, then all parties to the complaint must receive notice of what is being investigated and must have an opportunity to respond to the notice.

For a complaint involving a federally funded program or activity, this notice generally is provided to the CP, and the named Respondents. Some federal funding agencies also may request notice that you’ve accepted a complaint. In a workplace complaint, the Complainant is provided notice as well as the Respondent, who may be a supervisor, manager, co-worker, contractor, or the like.

And, in complaints involving harassment or hostile environment, higher-ranking officials in the chain of command may need to be served with the notice.

√ Why do both parties need to know?

Providing notice to both parties that you have accepted a discrimination complaint for investigation is required because each party needs to be allowed to present evidence. Most discrimination complaints arise under the disparate treatment legal theory. Here, the CP or Complainant must demonstrate a prima facie case that discrimination occurred by a preponderance of the evidence; that is, it is more likely than not that prohibited discrimination occurred. Then the burden shifts to the Respondents to present legitimate, nondiscriminatory reasons for their conduct. Finally, the burden shifts back to the CP or Complainant to demonstrate that the Respondents proffered reasons are pretextual.

Therefore, both sides of the dispute will need to participate in the investigative process.

√ The conduct of the investigation

At this point, both sides of the dispute are aware of the investigation. You will not have control over whether a party or witness talks, e-mails, or tweets about the complaint. And, an investigator is cautioned against seeking to impose “gag” orders on anyone involved. Nor should an investigator threaten disciplinary action or other sanctions against any party or witness discussing the matter. These are not useful tactics and they may constitute a violation of certain federal laws. Indeed, certain private employers must be mindful of the recent decision of the National Labor Relations Board in Banner Health System and Navarro, 358 NLRB 93 (July 30, 2012) (an employer may not apply a rule prohibiting employees from discussing ongoing investigations of employee insubordination as this violates the National Labor Relations Act).

Some investigators may want to “expedite” matters by conducting an “informal” investigation without written notice to either party. This is problematic. In order for your investigation to be fair to both parties, the parties must know the issue that you are looking into for purposes of the complaint, and they must have an opportunity to be heard on the issue.

Some investigators in educational programs and activities may be hesitant to issue written notices out of concern that students may disseminate the notices via e-mail, Facebook, or the like, thus hindering the ability to conduct a fair investigation.

In such situations, there are a couple of things to keep in mind. First, the Respondent educational institution will (or should) have privacy and confidentiality policies related to these discrimination complaint investigations, and these policies should be widely-published. Although the policies bind the investigator and his or her organizations in respecting the privacy of parties and confidentiality of the investigative process, it may be useful to provide a copy of these policies to the CP or Complainant and the alleged wrongdoer(s). Here, you do not seek to control the actions of the parties (as this a losing battle); rather, you seek to increase their awareness of the importance of confidentiality and privacy in these investigations.

Although “gag” orders and disciplinary threats are not recommended ways to curb open discussions of an ongoing discrimination investigation, the following points can be made verbally and in writing to the parties:

● Acceptance of the complaint of discrimination does not mean that discrimination has occurred. It only means that there is authority to start the investigation of the complaint (i.e. the complaint was timely filed and so on). At this point, information will be gathered from both sides to determine whether each of the allegations in the complaint is proven or not proven. If the allegations are not proven, then a written finding that discrimination is not proven will be issued. If the allegations are proven by a preponderance of the evidence, then a written finding of discrimination will issue.

When issuing a written notice accepting a discrimination complaint for investigation, the investigator may decide to include the following language at the beginning of the written notice:

THIS NOTICE DOES NOT CONSTITUTE A FINDING THAT ANY DISCRIMINATION HAS OCCURRED. THE SOLE PURPOSE OF THIS NOTICE IS TO INFORM THE PARTIES THAT I HAVE RECEIVED A DISCRIMINATION COMPLAINT AND I HAVE AUTHORITY TO INVESTIGATE IT.

An investigator can reinforce his or her expectations that the parties should focus their energies on aiding with the investigation. The investigator, in turn, will focus on getting to the bottom of the allegations made to determine whether prohibited discrimination took place.

● An investigator should make clear that the conduct of the CP or Complainant and the Respondents during the investigation will be considered in determining whether the investigative process is being improperly utilized to harass a party, retaliate against a party, or the like. And, any written communications of the parties at the time of the incident at issue, including e-mail exchanges and postings on social media may be gathered and analyzed to determine the motives of the parties.

● The parties should be reminded that the purpose of the investigative process is not to threaten, intimidate, retaliate against, or humiliate either party. They should understand that it is the investigator’s job to develop the evidence and determine what happened.

● The one person whose conduct can be controlled in this entire process is that of the investigator. To maintain credibility, an investigator must be discrete, non-judgmental with both parties, and confidential in his or her words (written and verbal) and actions. An investigator should not discuss the investigation with co-workers, friends, or family. There should be no interference from outside sources seeking to dictate the course and/or outcome of the investigation. And, the investigator must have authority to report directly to the highest-ranking official of the agency, company, or organization. The parties have come to the investigator because they need to have a problem solved. The investigator should be part of the solution to the problem as opposed to being part of its continuation or escalation.

● It is important for an investigator to be organized and to resolve the complaint as soon as practicable. Whether the discrimination complaint stems from the operation of a government program or conduct in the workplace, efforts at counseling and/or mediation early in the process can be very helpful.

● Finally, complaints of harassment and hostile environment present some additional challenges for the investigator. Prior to the filing of any such complaint, leadership at an agency, company, educational institution, or other organization must make sure it has specific written steps in place for separating the individuals involved. Although an investigator must gather evidence and statements to determine whether the allegations of harassment and hostile environment are proven by a preponderance of the evidence, steps must be taken in the interim to provide relief and protection for the CP or Complainant from the alleged wrongdoer(s). And, for such complaints arising in the workplace, the EEOC encourages the investigator to keep the identity of the Complainant, and the information collected, as confidential as possible. There is a reality that the investigator needs to be able to collect evidence and question witnesses about the event at issue. The idea, however, is that the investigator should exercise diligence and caution, and should refrain from openly discussing the investigation in the workplace.

√ The final determination

Once the investigation is completed, a written determination of findings and conclusions must be sent to the parties. In complaints involving federally funded programs and activities, the federal funding agency also may require that you submit a copy to it. And, some federal funding agencies require that the written determination be sent to the state Governor’s office. The determination should provide the parties with a notice of any appeal rights available to them should they wish to challenge the determination. Similarly, final agency actions issued after investigation of workplace disputes must comply with EEOC requirements. For a description of those requirements, go to www.eeoc.gov.

Again, the investigator should not offer side comments or other statements to anyone. The determination will speak for itself and it should be only in the hands of the persons who are required to be notified. Otherwise, the investigative file containing notes, evidence, witness statements, notices, and determinations must be kept confidential, and secured in a location with limited (“need to know”) access.

√ About Seena Foster

Seena Foster, award-winning civil rights author and Principal of the discrimination consulting firm, Title VI Consulting, LLP in Alexandria, Virginia, provides expertise and guidance in the areas of civil rights compliance and discrimination complaint investigations related to the delivery of federally-assisted workforce development programs and activities. Her customers include state and local governments, K-12 public school systems, colleges and universities, private companies, private counsel, and non-profit organizations. You may contact her at seena@titleviconsulting.com, or visit her Web site at www.titleviconsulting.com for additional information regarding the services and resources she offers.

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

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

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

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.

Office of Disability Employment Policy Newsletter (February 21, 2014)

Friday, February 21st, 2014

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

Assistant Secretary Martinez Posts New Blogs in February

Assistant secretary of labor for disability employment policy Kathy Martinez recently contributed two posts to the Department of Labor’s blog site. In “The Benefits of Striking Out,” posted on February 15, Martinez commented on an article written by a mother in the Huffington Post, “My Child with a Disability is Not My Hero.” The article discusses the importance of letting kids with disabilities succeed and fail, just like all kids. On February 19, Martinez penned “Civil Rights in America: We Rise Together,” in which she reflected on the life of Barbara Jordan, a woman of many firsts, including her status as the first Southern African-American woman elected to the U.S. House of Representatives.

White House Office of Public Engagement Disability Community Call — February 26, 3:00-4:00 PM EST

The White House Office of Public Engagement disability community conference call featuring a senior Administration official will take place on Wednesday, February 26, 3:00-4:00 PM EST. The call will provide participants with information about various disability policy issues, introduce Administration officials who work on these issues and solicit participant input. Registration is currently open. The registration confirmation page will display dial-in numbers and a unique PIN, and an email confirmation of this information will be sent to the registrant. The call will be accessible to deaf and hard of hearing participants through live captioning via the internet. Callers are asked to dial in five minutes before the start of the call. This call is off the record and not for press purposes.

Special Olympics Releases Research on Employment and Adults with Intellectual Disabilities

Special Olympics has released a research paper representing the first-ever nationally-representative data set on the employment situation for adults with intellectual disabilities. The “National Snapshot of Adults with Intellectual Disabilities in the Labor Force” was commissioned by Special Olympics, conducted by the Center for Social Development and Education at the University of Massachusetts Boston and administered by Gallup. Findings show that unemployment among people with intellectual disabilities is more than twice as high as for the general population. However, for those who are employed, most experience job stability, want to work, and have proven that they are capable of being employed.

Think Beyond the Label Online Career Fair — March 5, 1:00-4:00 PM EST

Think Beyond the Label will hold an online career fair on March 5, 1:00-4:00 PM EST. The event will connect companies to qualified candidates with disabilities from Think Beyond the Label’s online community of candidates and its partnerships with employment services agencies and student organizations nationwide. Job seekers will have the opportunity to engage with recruiters one-on-one in this real-time forum. Registration is free for job seekers. Think Beyond the Label is a public-private partnership that delivers information, outreach and resources to businesses, job seekers and the public workforce system to ensure greater recruiting and hiring opportunities for job candidates with disabilities.

Henry Viscardi Achievement Award Nominations Due March 15

The Viscardi Center has issued a call for nominations for the Henry Viscardi Achievement Awards, which pay tribute to exemplary leaders in the disability community who have had a profound impact on shaping attitudes, raising awareness and improving the quality of life of people with disabilities. The Awards will recognize individual, academic, athletic, community, government, nonprofit, military, corporate, and business leaders who are working to improve the lives of people with disabilities. Individuals of any age, with any type of disability, are eligible. Nominations may be self-submitted or made on behalf of another individual. All nominations must meet the Awards Criteria and be submitted using the online form by no later than March 15, 2014 at 5:00 PM EST. The Award recipients will be announced on May 5, 2014.

Disability.gov Seeks Participants for “No Boundaries” Photo Project

Disability.gov is currently seeking participants for its second “No Boundaries” photo project, which will profile four individuals who embrace the theme of “living well with a disability.” Participants will be chosen to represent diversity in age, ethnicity and nature of disability. The photo shoots will take place the week of April 7 in the Washington, D.C. area. Anyone can apply, but no monetary compensation or reimbursement for travel expenses can be provided.

2014 Paul G. Hearne Leadership Award Winners Announced

The American Association of People with Disabilities (AAPD) has announced Talila Lewis and Jason DaSilva as the winners of the 2014 Paul G. Hearne Leadership Award. Lewis, founder and president of Helping Educate to Advance the Rights of the Deaf (HEARD), and DaSilva, an award winning filmmaker, will be presented with their awards, which are given to emerging leaders in the national disability rights movement, at the 2014 AAPD Leadership Gala, on March 18, 2014 in Washington, D.C. The AAPD Paul G. Hearne Leadership Award advances the work of Paul Hearne, one of the founders of AAPD and a renowned leader in the national disability community, and realizes his goal of cultivating emerging disability rights leaders. Each awardee will receive $10,000 to help them continue their progress in disability activism.

Harassment at Colleges and Universities: An Overview of Policies and Preventative Measures

Tuesday, January 1st, 2013

One of the most productive ways to prevent harassment and hostile environment on your campus is developing and (regularly) publishing policies and procedures related to handling these types of complaints. Ms. Foster offers a one-hour webinar designed to help you navigate the process of developing effective methods of operating.

Date: Thursday, January 17, 2013

Time: 1:00 pm Eastern Standard Time

Cost: $34.95

Description:

In the course of this webinar, we will define quid pro quo harassment and hostile environment and explore the policies and preventative measures colleges and universities can develop and implement to curb these forms of discrimination. Numerous federal civil rights laws are at issue, including (1) Title IX of the Education Amendments Act (Title IX), which prohibits gender-based discrimination in educational programs and activities, (2) Title VI of the Civil Rights Act, which prohibits discrimination on the bases of race, color, and national origin, (3) the Rehabilitation Act and the Americans With Disabilities Act and their amendments, which prohibit discrimination on the basis of disability, and (4) the Age Discrimination Act, which prohibits discrimination on the basis of any age. Quid pro quo harassment and hostile environment (including bullying) constitute forms of discrimination, and a college or university that fails to properly and adequately respond to such allegations violates federal civil rights law, and is at risk of losing its federal assistance. This federal assistance includes grants, loans, and tuition payments made with federal funds, to name a few examples. Through the webinar, we’ll cover some nuts-and-bolts policies, procedures, and preventative measures any college or university can develop to properly address allegations of harassment and minimize its occurrence.

Developed for:

This webinar is designed for equal opportunity, human resource, and affirmative action personnel at educational institutions as well as the leadership, policy-makers, legal advisors, faculty, staff, and students at these institutions.

About Seena Foster.

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

U.S. Census Bureau Releases Useful Workforce Data

Saturday, December 1st, 2012

Based on the American Community Survey (2006-2010), which is a census survey of approximately two million United States households each year, the U.S. Census Bureau has developed a set of 107 tables detailing the Nation’s workforce by race, Hispanic origin, sex, U.S. citizenship, occupation/industry, age, median earnings, level of education, and unemployment status. Particularly useful is the fact that the tables are searchable by a variety of criteria. From these tables, workforce development professionals and educators can assess existing levels of diversity by occupation and geographical location and can determine trends (positive and otherwise) in the workforce as we continue to move forward. The tables are due to be rolled out by the end of 2012. Go to http://www.census.gov/people/eeotabulation/data/eeoupcoming.html for more information.

About the author.

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

Formula for Success: Handling Harassment in the Workplace

Thursday, November 1st, 2012

In Harris v. PetSmart, Inc., ___ F.Supp.3d ___, Case No. 11-00094 (E.D. Ky. Oct. 23, 2012), the district court held that an employer was not liable for same-sex harassment under Title VII of the Civil Rights Act of 1964, regardless of whether the alleged harasser was a co-worker or supervisor, because:

√ The company developed and widely published a strict anti-harassment policy along with procedures for responding to complaints of harassment. The policies and procedures were part of the “Employee Handbook.”
√ The anti-harassment procedures allowed for “multiple, alternative avenues” for an employee to complain about harassing conduct, and these avenues included filing a complaint with supervisors, district and regional managers, or a Vice President. The employer also provided an anonymous, toll-free hotline for purposes of filing a complaint.
√ Plaintiff used the toll-free hotline to report harassment, and the employer responded by immediately initiating an investigation of the matter.
√ Upon completion of the investigation, the employer found that the allegations of harassment were supported.
√ Consistent with its anti-harassment policies and procedures, the employer fired the alleged harasser.

So, having clear, published anti-harassment policies and procedures in place, and following those policies and procedures in a prompt manner when a complaint is made, will enable an employer to successfully minimize the occurrence of, and resolve, complaints of harassment and hostile environment.

About the author.

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.

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

Monday, October 8th, 2012

photo of Seena Foster

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

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

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

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

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

Profile:

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

Contact:

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

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.