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Harassment and Hostile Environment: Understanding the Basics by Seena Foster

Tuesday, May 15th, 2018

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

√ Two categories of harassment-related complaints.

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

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

√ Harassment is discrimination.

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

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

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

√ Quid pro quo harassment defined.

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

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

√ “Hostile environment” defined.

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

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

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

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

√ Retaliatory “hostile environment” is against the law.

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

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

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

√ Obligations of EO and EEO professionals.

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

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

About the author.

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

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

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

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

Religious Discrimination and Accommodation in Federally-Funded Programs and Activities: An Overview by Seena Foster

Saturday, May 5th, 2018

As the Equal Opportunity (EO) professional for an agency or organization charged with administering federally-funded programs and activities where “religion” is a prohibited basis of discrimination, you should have written policies and procedures for handling requests for religious accommodation. In this paper, we explore some basic concepts related to religious accommodation using the Workforce Innovation and Opportunity Act of 2014 (WIOA) as the context for guidance offered.

Some examples of WIOA-funded programs and activities are found at American Job Centers and their affiliates, partners, and service providers offering unemployment insurance benefits, employment referral services, and training. In addition, most Job Corps Centers offer WIOA-funded educational programs and activities designed to get young folks educated, skilled, and employed.

For WIOA-funded programs and activities, one prohibited basis of discrimination is “religion.” And, with this prohibition comes an obligation to provide reasonable religious-based accommodation when requested, if no “undue hardship” is present.

√ “Religious belief or practice” defined

Initially, it is helpful to have a common understanding of how the phrase, “religious belief or practice,” is defined. Because WIOA and its implementing regulations do not define “religious belief or practice,” we may look at how this phrase is defined under Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits religion-based discrimination in the workplace. Here, we find that a “religious belief or practice” may represent mainstream religious views, or the belief or practice may be less common, less understood, and less well-known. And, the concept of “religious belief or practice” includes persons who ascribe to no religious belief or practice at all.

Some examples of “religious belief or practice” under Title VII include, but are not limited to, the following:

● Agnostic
● Atheist
● Buddhist
● Christian
● Hindu
● Jewish
● Kemetic
● Muslim
● Native American spiritual beliefs
● Sikh
● Wicca
● and countless others.

A common thread defining any “religious belief or practice” is that it reflects a person’s views of life, purpose, and death. On the other hand, social, political, and economic philosophies as well as personal preferences do not constitute “religious beliefs or practices” protected by federal civil rights laws.

√ The “religious belief or practice” must be bona fide

Religious-based accommodation is premised on the fact that the asserted “religious belief or practice” is bona fide. Said differently, it is “sincerely held” by the requester. Generally, this requirement is met without difficulty. However, if the requester behaves in a manner that is markedly inconsistent with the professed “religious belief or practice,” then you may determine that the belief or practice is not bona fide or “sincerely held” by the requester. This, in turn, means that there is no obligation to provide accommodation.

√ Essential eligibility requirements must be met

Before entertaining a request for religious accommodation, the requester must meet the “essential eligibility requirements” for the WIOA-funded aid, benefit, service, or training at issue. If a person does not meet the “essential eligibility requirements” for the program or activity, then there is no obligation to provide accommodation.

√ Common religious-based accommodation requests

In federally-funded programs and activities, some common religious-based accommodation requests include:

● Changes in scheduling of programs and activities;
● Modification of testing and selection procedures;
● Modification of dress and/or grooming requirements; and
● Permitting forms of religious expression.

In the workplace, religious-based accommodation requests may take similar forms of:

● Changes in scheduling of work shifts;
● Modification of testing and selection procedures;
● Modification of dress and/or grooming requirements; and
● Permitting forms of religious expression.

Generally, a religious-based accommodation request is made to address conflicts between a federally-funded program or activity and a person’s religious belief or practice. For example, your American Job Center receives a request that orientations for the Center’s programs and activities be scheduled any day of the week except Friday because Friday is considered a “holy day” by the requester. This is an example of a religious-based accommodation request.

In the workplace, the case of Sanchez-Rodriguez v. AT&T Mobility Puerto Rico, Inc., issued by the First Circuit Court of Appeals on March 8, 2012, is illustrative of the types of religious-based accommodation requests an employer may receive. Here, an employee, who was a Seventh Day Adventist, requested Saturdays off from work. AT&T stated that providing the employee with every Saturday off as a matter of course would constitute an undue hardship; rather, as a “reasonable accommodation,” AT&T offered that the employee could: (1) take another position in the company that did not require working on Saturdays; or (2) arrange voluntary “swapping” of shifts with co-workers on his own. The court held that these offered accommodations (even though they differed from the accommodation requested by the employee) were sufficient such that the employee did not demonstrate religious-based discrimination.

√ Communication is a must

If a person seeks accommodation based on his/her religious belief or practice, then the accommodation request must be made known to the recipient delivering the federally-funded programs and activities (such as the American Job Center or Job Corps Center). Magic words are not required, but the requester must convey enough information for the recipient to understand that accommodation is sought pursuant to the requester’s religious beliefs or practices. A recipient cannot be held liable for failure to provide accommodation if it was unaware of the need in the first place.

Information-sharing between the requester and the EO Officer is critical as determinations of accommodation are made on a case-by-case basis after consideration of the particular facts.

√ Avoid discriminatory consideration of requests

If a person meets the essential eligibility requirements for a federally-funded program or activity, and the person requests accommodation based on a bona fide religious belief or practice, then the EO Officer is obliged to avoid consideration of discriminatory criteria when rendering a determination on the accommodation request. Examples of discriminatory criteria are as follows:

● “The person looks like a terrorist”;
● “The person’s beliefs are illogical, inconceivable, or incorrect”;
● “I disagree with the person’s beliefs”;
● “The person’s name is associated with a particular religion”;
● “The person’s name is associated with terrorism”;
● “The person’s religious belief or practice is offensive”;
● “The person’s religious belief or practice is immoral”;
● “I am uncomfortable with the religious belief or practice”; or
● “The person’s religious belief or practice is in the minority.”

It bears repeating that it is discriminatory to employ any of the foregoing criteria, or similar criteria, when considering an accommodation request. Sincerely held religious beliefs and practices are intensely personal, and they must be accepted “as is” for purposes of addressing a religious accommodation request under federal civil rights laws.

√ “Undue hardship”

● Defined

A recipient offering federally-funded programs and activities is obliged to provide reasonable religious-based accommodation unless it can demonstrate “undue hardship”. For example, the regulations implementing WIOA at 29 C.F.R. § 37.4 define “undue hardship” as follows:

For purposes of religious accommodation only, “undue hardship” means any additional, unusual costs, other than de minimis costs, that a particular accommodation would impose upon a recipient. See Trans World Airlines, Inc.v. Hardison, 432 U.S. 63, 81, 84 (1977).

It is the recipient’s burden to demonstrate “undue hardship.”

● Not established, examples of

Asserting speculative, or showing only de minimus costs associated with providing accommodation does not give rise to a finding of “undue hardship.” And, “undue hardship” is not established by a recipient’s mere assertion that providing accommodation for one person will lead to an incoming tide of other requests.

● Factors to consider

As we noted earlier, “undue hardship” must be determined on a case-by-case basis after consideration of all the facts. The following factors may be relevant and are properly considered:

▪ Costs associated with providing the accommodation are identifiable and more than de minimus” in relation to the recipient’s size and operating costs;
▪ Providing the requested accommodation would diminish the efficiency of recipient’s federally-funded programs and activities;
▪ Safety would be impaired by allowing the accommodation;
▪ The requested accommodation would conflict with another civil rights law; or
▪ In the employment context, the requested accommodation violates of the terms of a collective bargaining agreement, or violates seniority rights of other employees.

In assessing whether a requested accommodation would conflict with another law, it is important to keep in mind that federally-funded programs and activities operate using taxpayer dollars, and there are taxpayers of all races, colors, national origins, genders, disabilities, and religions. These funds, in turn, are used to provide aid, benefits, services, and training to any member of the public meeting certain essential eligibility requirements. Attached to this federal funding are obligations imposed on the WIOA recipient to ensure nondiscrimination on a variety of bases, including religion, sex, race, national origin, color, disability, and age among others.

So, let’s assume that you are the EO Officer for a Job Corps Center, which provides educational programs and activities. Your Center is located in an area that is largely comprised of persons of a particular religion requiring separation of men and women in educational programs and activities. You receive a request for accommodation by persons of this religious belief asking that you provide separate classes for men and women at your Center. What should you do?

We start with the law. The regulations implementing WIOA bar discrimination on certain “prohibited grounds” as follows:

(a) For the purposes of this section, “prohibited ground” means race, color, religion, sex, national origin, age, political affiliation or belief, and for beneficiaries only, citizenship or participation in any WIOA Title I—financially assisted program or activity.

29 C.F.R. § 37.6(a).

And, the regulations further provide that offering segregated or separate programs and activities is a form of discrimination:

(b) A recipient must not, directly or through contractual, licensing, or other arrangements, on a prohibited ground:

. . .

(3) Subject an individual to segregation or separate treatment in any matter related to his or her receipt of any aid, benefits, services, or training under a WIOA Title I—funded program or activity; . . ..

29 C.F.R. § 37.6(b)(3).

In our example, the requested accommodation (segregation of men and women in educational programs) would lead your Center to engage in gender-based discrimination in violation of federal law. As previously noted, the law prohibits “segregation or separate treatment” on any “prohibited ground”, which includes sex.

Keep in mind that the same would hold true if you received a religious-based accommodation request seeking segregation based on race, color, national origin, age, or the like. It is not reasonable to discriminate against participants on one of these prohibited bases in order to accommodate a religious belief or practice.

√ Religious accommodation in the workplace; some considerations

If you do not have dress and grooming policies for your workplace, then it would constitute a form of religious-based discrimination to prohibit forms of religious garb or grooming on an ad hoc basis. And, if you do have dress and grooming policies in your workplace then, according to the EEOC, religious accommodation requires making exceptions to those codes to accommodate bona fide religious beliefs and practices. With or without grooming codes in place, it is incumbent on an employer to allow dress and grooming practices of sincerely-held religious beliefs, unless it would create “undue hardship.”

The standard for “undue hardship” is different for religious-based accommodation requests than for disability-based accommodation requests. Notably, in the case of a disability-related accommodation request, the employer must provide accommodation unless the accommodation will create significant difficulty or expense to the employer’s operations. On the other hand, undue hardship in the context of religious accommodation is a hardship that will create more than a de minimus cost on the employer’s operation.

Even in light of the lesser “undue hardship” standard, the EEOC has ramped-up its pursuit of religious-based discrimination in the workplace, and the EEOC rarely accepts arguments that a dress code constitutes “business necessity” for an employer (i.e. an employer’s argument that it needs to convey an uniform image of all of its workers). Most notably, lawsuits and charges have been filed where workers have been penalized for particular religious grooming, or donning religious garb. Some examples include Muslim head scarves, Sikh turbans, yarmulkes, and the presence of religious tattoos. In 2015, the United States Supreme Court affirmed the EEOC’s position in EEOC v. Abercrombie & Fitch Stores, Inc., and concluded the employer engaged in religious-based discrimination against a Muslim employee. The employer raised unsubstantiated assertions that it need not accommodate the employee’s request to wear a headscarf on grounds that the employee’s use of a headscarf constituted an “undue hardship.” The employer maintained that use of the headscarf departed from the company’s “look policy” and “corporate brand.” As noted by the EEOC, the employee had the headscarf on when interviewed, and had worked with the headscarf on for four months before being terminated. The employer failed to present evidence to show its sales had dropped in that four month period of time.

However, for both disability and religious-based accommodation requests, “undue hardship” may be demonstrated if safety concerns are raised. As an example, an employer may ban a Muslim employee’s use of a head scarf in a job where the scarf could get caught in machinery.

Sometimes, the lack of understanding regarding a particular religion’s practices is at the root of discrimination. For example, in EEOC v. Fries Rest. Mgt., LLC, Case No. 12-03169 (Tex. Aug. 22, 2012), religious-based discrimination occurred where the manager of a Burger King restaurant fired a Christian Pentecostal female cashier on grounds that she would not wear the standard uniform (including pants). Instead, because of her religious beliefs, she insisted on wearing a skirt.

√ Conclusion

In the end, religious-based accommodation requests are fact-intensive, and must be handled on a case-by-case basis. To the extent that “undue hardship” is not present, you are obliged under federal law to provide reasonable religious-based accommodation, if requested, to persons who meet the essential eligibility requirements for the program or activity. And, you must accept the requester’s bona fide religious belief or practice “as is.” For complicated accommodation requests, including any requests that may conflict with other federal civil rights laws, you should consult with the EO leadership of your state or territory for guidance, or consult the civil rights office of your federal funding agency.

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, colleges and universities, private companies, private counsel, and non-profit organizations. You may contact her at seena@titleviconsulting.com, or visit her web site at www.titleviconsulting.com for additional information regarding the services and resources she offers.

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

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

She is a member of the Human Rights Institute and 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.

“Adverse Actions” in Federal Civil Rights Discrimination Complaints by Seena Foster

Saturday, March 10th, 2018

Federal civil rights laws prohibit discrimination on a wide variety of bases, including race, color, national origin, religion, disability, age, gender, and so on.  But, what types of conduct constitute “adverse actions” that may give rise to a complaint of discrimination? 

In federally-funded programs and activities

“Adverse actions” in violation of federal civil rights laws can occur in the delivery of federally-funded programs and activities.  This is a less understood area of civil rights, yet the reach of federally- funded programs and activities is far and wide and includes public education, transportation, small business development, fair lending, fair housing, unemployment insurance, workforce development, Medicare, environmental justice, employment referral services, and many others.  Here, federally-funded services, benefits, aid, and training must be delivered to members of the public in compliance with nondiscrimination and equal opportunity mandates of applicable civil rights laws.

There are a variety of “adverse actions” that may occur in the delivery of federally-funded programs and activities.  Some “adverse actions” are similar to those found in workplace discrimination complaints such as harassment and hostile environment, or refusal to provide religious-based or disability-based reasonable accommodation.  We’ll illustrate some  “adverse actions” unique to federally-funded programs and activities through use of examples related to Section 188 of the Workforce Innovation and Opportunity Act (WIOA), which governs the delivery of state and local workforce development programs and activities.

WIOA Section 188 mandates nondiscrimination and equal opportunity in the delivery of WIOA Title I-financially assisted aid, training, benefits and services on the bases of race, color, national origin, religion, disability, gender, age, political affiliation or belief, and citizenship among others.  For purposes of these examples, we’ll assume that you are the Equal Opportunity Officer for a American Job Network center or a Job Corps Center and, in this capacity, you investigate complaints of discrimination.

√     Denying aid, training, benefits, or services

Steven tells you that he was denied enrollment in an on-the-job training program.  At this point, Steven has not alleged a violation of any civil rights laws.  However, if Steven says he was denied enrollment in an on-the-job training program because he is black, then he has alleged a violation of civil rights laws.  Specifically, Steven asserts an “adverse action” (denial of enrollment in an on-the-job training program) on a prohibited basis (color).

√     Denying access to apply for aid, training, benefits, or services

Maria alleges she was laid-off from her job.  She tells you that, when she walked into the American Job Network center, she was not able to apply for unemployment insurance (UI) benefits.  So far, Maria has asserted an “adverse action” (denial of access to apply for UI benefits), but she hasn’t asserted a violation of any federal civil rights law.  But, if Maria tells you that she is limited English proficient (LEP), and the packet of UI forms were available in English only, then she has alleged a violation of federal civil rights laws.  Notably, Maria alleges an “adverse action” (denial of access to apply for UI benefits) on a prohibited basis (national origin-LEP).

√     Providing one person different aid, training, benefits, or services than is provided others

Here, we look at the conduct of an employment referral counselor at your American Job Network center.  Widget Company has numerous job openings, and the counselor is referring people to fill these openings.  Janet complains that she was referred to a lower-paying position with Widget.  Thus, Janet has alleged an “adverse action” (referral to a lower paying job), but she has not alleged a violation of civil rights laws.  However, if Janet alleges that she was referred to a lower-paying position with Widget, but men with the same credentials were referred to higher-paying positions, then she has presented an alleged violation of civil rights laws.  Namely, Janet asserts an “adverse action” (referral to a lower paying position) on a prohibited basis (gender).

√     Segregating a person, or treating the person separately, with regard to his or her receipt of aid, training, benefits, or services

An example of segregation is where your Job Corps Center offers a computer science course, but requires that “persons with disabilities” attend the course at one classroom location, whereas all other students must attend the course at another classroom location.  Thus, there is an “adverse action” (segregation of classes) on a prohibited basis (disability).  To the extent feasible, you must provide integrated services, aid, training, and benefits allowing persons with disabilities to participate alongside persons without disabilities.

√     Restricting a person’s enjoyment of any advantage or privilege enjoyed by others receiving any aid, training, benefits, or services

Hostile environment offers an example of restricting a person’s enjoyment of federally-funded programs and activities.  Let’s assume that Borek is one of your Job Corps Center students, and he has immigrated to the United States with his family from Iraq.  He files a complaint with you alleging that other students call him a “terrorist” in class and in the hallways, they post derogatory material about him on Facebook, and they repeatedly tell him he should “go back to Iraq where he came from.”  Here, Borek alleges an “adverse action” (being subjected to a hostile environment) on a prohibited basis (national origin).

√      Treating one person differently from others in determining whether s/he satisfies any admission requirement or condition for aid, training, benefits, or services

Here, let’s assume that Marsha informs you that her application for on-the-job training has been denied by Carol, who works at your American Job Network center.  By itself, this denial is an “adverse action,” but it is not a violation of civil rights laws.  However, Marsha further tells you that she met the essential eligibility requirements for referral to on-the-job-training, but Carol told Marsha she was concerned about referring her because Marsha had been pregnant five times within the past seven years.  Now, a civil rights violation has been alleged.  Notably, Marsha asserts an “adverse action” (denial of referral to on-the-job-training) on a prohibited basis (gender-prior pregnancies).

√     Denying or limiting a person with a disability the opportunity to participate in a program or activity

Your American Job Network center offers weekly orientations for any interested members of the public to learn about the services, aid, benefits, and training opportunities offered through the Center.  Jake, who is in a wheelchair, tells you that he was unable to attend the orientation earlier this week because it was offered on the second floor of your building and your building does not have an elevator.  Here, Jake alleged an “adverse action” (denial of access to the orientation) on a prohibited basis (disability).

√     Determining the site or location of a facility that has the purpose or effect of discriminating on a prohibited basis

State and local officials are in the process of determining where to establish a American Job Network center in a particular city, and decide to place the facility near an affluent neighborhood in one suburb of the city.  However, a majority of the city’s population is located on the other, more densely populated side of town.  And, the majority of the population is comprised of Hispanics and African-Americans.  The minorities in this city generally use public transportation, which is widely-available on the densely populated side of town.  The center’s location in the affluent neighborhood is, however, sixteen blocks from the nearest bus stop.  Thus, by locating the center in the affluent neighborhood away from public transportation, the center is not readily-accessible by a majority of the city’s population, most of whom are minorities.  Here, there are allegations of an “adverse action” (location of the facility in a less populated neighborhood that is not readily-accessible by public transportation) on prohibited bases (national origin and race).

√     Imposing different eligibility criteria on a prohibited basis in the delivery of services, aid, benefits, or training

An example here is James alleges his bid for a contract to provide workforce development services for your city has been denied. This constitutes an “adverse action,” but it does not rise to the level of alleged discrimination. However, if James further asserts that his company was required to secure a higher amount of insurance coverage in order to be awarded the contract because he is Hispanic, and that non-Hispanic-owned bidders were required to demonstrate a lower amount of coverage, then discrimination on a prohibited basis is alleged. James alleges an “adverse action” (imposition of different eligibility criteria in requiring higher coverage) on a prohibited basis (national origin).

In this paper, we’ve discussed only a few types of “adverse actions” that may occur in federally-funded programs and activities.  Again, a mere allegation by an individual that s/he suffered an “adverse action” is not sufficient to support a discrimination complaint.  But, allegations by an individual that s/he has suffered an “adverse action” on a prohibited basis do support an allegation of civil rights violations.

As the Equal Opportunity professional for your agency or organization, you should make sure staff at the agency or organization understand federal nondiscrimination and equal opportunity laws applicable to your programs and activities as well as the types of “adverse actions” that may lead to a violation of those laws.  Moreover, you are obliged to notify beneficiaries and potential beneficiaries of their rights under these laws.  It is important to have policies and procedures in place, and to conduct periodic training, so that each person in your agency or organization understands his or her role in the mission of delivering services, aid, benefits, and training to the public without imposing discriminatory criteria.  Keep in mind that these nondiscrimination laws cover all aspects of your operations, including outreach and recruitment, registration, counseling and guidance, testing, selection, placement, appointment, referral, training, and promotion and retention.

In the workplace

There are certain “adverse actions” that we typically see in discrimination complaints involving the workplace.  These “adverse actions” include the following:

●  Termination;

●  Non-selection;

●  Non-promotion;

●  Refusal to provide accommodation or modification;

●  Harassment or hostile environment; or

●  Receipt of an adverse performance appraisal.

There are countless other types of “adverse actions” that may occur in the workplace:

●  Relocation to a smaller and/or less desirable office location;

●  Refusal to provide training;

●  Denial of access to equipment and/or resources;

●  Denial of a security clearance;

●  Denial of paid and/or unpaid leave;

●  Exclusion from certain meetings; or

●  Imposition of dress and/or grooming requirements.

This list is not exhaustive; rather, it is designed to give you an idea of what constitutes an employment-related “adverse action.”

Just as with the delivery of government programs and activities, in the workplace, it is important to remember that an “adverse action,” standing alone, does not give rise to a discrimination complaint under federal civil rights laws.  On the other hand, an “adverse action” taken on the basis of race, gender, disability, or the like, does allege a violation of federal civil rights laws.

For example, Michael is blind, and he alleges that his company fired him after he asked for specialized voice-recognition software to assist him in performing certain job duties.  Here, Michael has alleged an “adverse action” (termination) on a prohibited basis (disability).

Another example is where Cheri alleges she was denied a security clearance because her supervisor “doesn’t like her.”  Here, the “adverse action” is denial of a security clearance, but no civil rights violation has been alleged by Cheri; that is, the fact that her supervisor does not like her is not a prohibited basis of discrimination under federal civil rights laws.  On the other hand, if Cheri alleges she was denied a security clearance because she is Hispanic, now she has asserted a violation of civil rights laws; that is, she alleges an “adverse action” (denial of a security clearance) on a prohibited basis (national origin).

If you are an EEO/AA/HR professional for your agency or organization, it is important that you train supervisors and managers regarding their obligations under various federal civil rights laws.  And, you will want to convey any additional requirements imposed by state and local human rights laws.  Taking an “adverse action” against an employee does not, in and of itself, constitute illegal discrimination.  For example, disciplining an employee based on poor work performance or shoddy attendance does not violate civil rights laws.  But, a violation of civil rights laws does exist if the “adverse action” is premised on how an employee looks, what religious beliefs s/he holds (or doesn’t hold), the fact that s/he is over 40 years of age, whether the employee comes to work in a wheelchair, or the like.

About Seena Foster

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

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

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

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

Elements of an Inclusive Workforce Development System

Thursday, February 15th, 2018

The following excerpt is from remarks delivered by Ms. Foster at a national Equal Opportunity Conference in Washington, DC:

It is a privilege for me to be here today, and this has been such an impressive line-up of civil rights experts.

The importance of you and the equal opportunity work you perform in the field of workforce development at this pivotal time in our country’s history cannot be overstated. If we hope to have a stronger, more stable economy at the national level, it must start with you at the local level.

Underlying everything we do in the field of equal opportunity is the concept that we don’t leave segments of our population behind to dead end. We want to help folks in our communities get jobs, or get better jobs. We want to find a way for all members of our community to engage and be productive, contributing citizens.

The vast majority of us and vast majority of the citizens in our communities are not independently wealthy. So, if we aren’t working, we aren’t earning money. And, if we aren’t earning money, we aren’t able to put a roof over our heads, food on the table, or clothes on our backs. And, where does that lead? Logically, it leads to increased demand on our safety net programs—homeless shelters or public housing, food stamps, free medical care, the list goes on.

No one has ever been able to explain to me how a stronger, more stable economy is built on leaving segments of a community behind in our workforce development programs whether it is women, minorities, limited English proficient persons, persons with disabilities, folks of a certain age, Veterans, or folks of certain religious beliefs.

Getting systems in place to move all of our populations forward, and training staff on the use of these systems, is where we need to spend a little time and thought as equal opportunity professionals. Not every customer is going to move along the same track, or at the same pace. The point is to get them moving as opposed to setting them off to the side.

As you work to develop inclusive workforce development systems, keep in mind these four core elements—communication, access, integration, and individualized treatment—must be front and center in your planning. Every speaker here today has addressed one or more of these elements. And, I am going to briefly describe each of these elements, and why they are important.

Communication

Communication takes two forms. First, is the one most of us think of immediately; that is, being able to understand what a customer is saying, and ensuring the customer understands us. So, if establishing that baseline communication with our customer means using a sign language interpreter, captioning, or a language line, than that is what needs to happen.

Now, the next level of communication involves “notice.” Notice to the public of what programs we have to offer, notice about how to access our programs, and notice that we operate these programs in compliance with the nondiscrimination and equal opportunity mandates of WIOA Section 188. Providing notice includes prominently displaying that “Equal Opportunity Is the Law” notice wherever we do business, and publishing our discrimination complaint procedures and forms.

On the other end of things, notice also includes making sure employers, to the extent they use screening tools like e-Verify or criminal background checks, give notice of any disqualifying adverse information to the potential applicant and allow the applicant an opportunity to explain or dispute it.

So, an inclusive workforce development program means we are able to communicate with our customers, and we convey important notices to them about their rights and our obligations under the nondiscrimination and equal opportunity provisions of WIOA Section 188.

Access

Access is another core element of an inclusive program. Access means folks have access to apply for, or participate in, our programs or activities. And, denial of access can take a variety of shapes.

One example is holding a training course on the first floor of a building, but folks have to get up the two steps at the entrance to the building. Without a ramp, some folks with mobility disabilities, who qualify to take this course, would be denied access to participate.

Another example of denial of access is one that I came across when I visited a particular locality to conduct training. The job referral counselor at the center would not even consider women for construction-related training or apprenticeship programs in welding, carpentry, masonry, and so on. Here, women who met the essential eligibility requirements for such training were denied access to even to apply for these programs.

And, access is a rising issue as we move forward with more internet-based application and enrollment processes. We are at the very beginning of what I describe as the incoming technology tsunami. The harnessing and use of various technologies on the market will undoubtedly strengthen many aspects of our workforce development programs and activities by building in efficiencies at a greater savings of staffing and money resources.

We’ve already seen the use of technology increase exponentially in the processing of unemployment insurance claims. And, the use of technology is growing in other areas such as computerized matching of a customer’s skills to available jobs in the market.

While these advances work for the vast majority of our populations, certain segments of our community’s population will be left behind. Persons with certain disabilities, and folks who are not able to read or write English very well could be denied access to programs for which they would otherwise be qualified.

I’ve heard some folks ask, why should we build systems around the exceptions? These folks need to come into the 21st Century.

Keep in mind, there is room in this country for all of us. Not every job out there requires an IT background, or access to the Internet. Not every job requires the ability to read, write, or speak English. Landscapers, cleaners, movers, certain construction trades, and caregivers are some examples of occupations that may not require IT savvy, access to the internet, or the ability to speak or understand English.

And, you’ve got some folks who are IT-savvy and understand English but, for example, they have a disability and need some type of auxiliary aid or service to navigate the internet application process.

The key here is to figure out what safety valves can be put in place in your particular community to ensure these populations aren’t left out. And, I think this is an excellent opportunity for the kinds of civil rights experts we’ve heard from today to establish a working group that includes folks like you and other interested stakeholders to work collaboratively to come up with some “best practices,” develop low or no cost resources, and generate ideas for resource-sharing and partnerships in our communities, to get these safety valves in place.

Integration

Beyond communication and access, we have the element of integration.

Decades ago, “Separate but Equal” was considered an acceptable way of doing business—whites could go to certain schools, blacks could go to other schools. Wisdom prevailed and we learned as a society that it is not healthy to divide ourselves by the color of our skin. Each of us has value beyond these surface qualities.

Unfortunately, the “Separate but Equal” concept is still with us, but it has morphed into other areas.

I’ll give you an example.

Too often, our workforce development programs are designed to channel persons with disabilities into separate tracks out of the gate. Regardless of the disability, or what the customer would like to do, we channel the customer to a single person at the center, or to rehabilitative services.

Earlier this year, I was asked to conduct training at a particular locality and visited one of its centers to gather a better understanding of how that locality operated its workforce development programs. The center had four job referral counselors. However, any person with a disability, regardless of the disability, would be referred to the one counselor designated as the “disability job referral counselor.” And, if that counselor was in a meeting, out of the office, or otherwise unavailable, the person with a disability had to make an appointment to come back another day.

On this particular day, a customer who was deaf came in and handed the greeter a resume and a card asking for sign language interpreter services so he could meet with a job referral counselor.

The “disability job referral counselor” at the center was out on vacation, one other counselor had a customer in her office, and two counselors were available.

At first, the center manager was going to ask the gentleman to reschedule a time the following week when the disability job referral counselor returned from vacation.

But, after a little discussion, the center manager called for a sign language interpreter who would arrive in the next 30 to 40 minutes. And, the manager had one of the available counselors at the center call the relay line in the meantime to get the process started.

As an aside, I’ll tell you that the customer on this particular day was a CPA and had advanced degrees in accounting as well as executive level accounting experience for a large company. He had relocated because of his wife’s change of jobs, and wanted assistance finding a job in his new community.

Here, the center provided assistance to him on the day he came, and did not ask that he make an appointment to come back in one or two weeks when the “disability job referral counselor” returned from vacation.

So, offering integrated services means here that each counselor should be able to take each customer in order, without regard to whether the person has a disability, is limited English proficient, is a Veteran, is a woman, and so on.

Individualized treatment

Finally, in addition to communication, access, and integration, our systems need to be designed provide individualized treatment.

The purpose of our workforce development programs is to move folks from unemployment to employment, or to transition folks from certain jobs to better jobs.

If someone comes to one of your centers directly, or comes through the unemployment insurance portal, individualized treatment requires that we start with that individual’s baseline.

What does this mean? It means we take an individual as we find him or her and work from there. We ask the customer, what skills, education, interests, and talents do you bring to the table?

At the other end of the spectrum, we take a look around to see what jobs are in our community and the skills and education required for those jobs. If we find a match, we make a referral.

If we don’t find a match, we look to bridge the gap. The first step across the bridge for some customers may be the local community college to obtain a certification, diploma, or degree. For others, the first step may be attending English as a Second Language classes.

But, keep in mind that not everyone is cut out for these types of educational pursuits. We don’t have to force all of our customers into the school or college pipeline for workforce development.

We’ve got other pipelines. Apprenticeships to learn a trade, on-the-job training, and licensing programs are some examples.

Keep in mind, folks don’t come to us out of nowhere—they have histories, they have skills, they have interests. Our job is to figure out what they bring to the table in terms of skills, education, and experience, and what workforce development pipelines would be suitable given their background and interests. And, if figuring out what someone brings to the table requires the use of a language line, captioning, or sign language interpreter services, then make sure that happens.

At the end of the day, our systems should be inclusive.

Inclusive systems will afford women access to opportunities in nontraditional fields. Inclusive systems mean we won’t skip over persons with disabilities, or persons who are limited English proficient, because we don’t know what to do with them, or because it takes a little extra time to get a sign language interpreter or connect to the language line.

Inclusive systems mean we’ll encourage employers focus first and foremost on an applicant’s qualifications, push the use of screening tools like criminal background checks and e-Verify, for example, as far back in the process as possible. And, we’ll stress the importance of employers giving an applicant the opportunity to explain, challenge, or clear-up any adverse results that surface through the use of these screening tools.

In the delivery of inclusive workforce development activities and programs, the elements of communication, access, integration, and individualized treatment are present.

From unemployment insurance to on-the-job training to resume writing assistance to job referrals to referrals for an apprenticeship program to counseling and many others, the key is to ensure all members of our population know about the programs, and have access to the programs. Make sure we are serving folks in as integrated a setting as possible, not placing folks off to the side because we don’t know what to do with them. And, we give folks individualized treatment to ensure their success.

At the end of the day, if a customer meets the essential eligibility requirements for a workforce development program or activity, then the customer must be allowed to enroll, apply, and participate.

Thank you for your time, and I wish you every success in the important work you do.

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.

The Importance of “The Script” by Seena Foster

Saturday, January 20th, 2018

In this article, we look at the importance of having sound policies and procedures in place for ensuring the nondiscriminatory delivery of aid, training, benefits, and services to the public and the importance of sticking to these policies and procedures. For purposes here, we will call the policies and procedures, the “script.”

Successful discrimination complaints stem from one of three problems: (1) no script; (2) a bad script; or (3) deviation from a good script.

Let’s start with “no script.” No script means that you do not have any policies or procedures in place for handling a particular situation. In these circumstances, too much discretion is left with staff members and this, in turn, leads to inconsistent (and perhaps discriminatory) handling of issues. For example, Jane Doe comes to an American Job Network Center seeking assistance with her resume. She is deaf and requests the assistance of a sign-language interpreter. Without policies and procedures in place for handling this request, how does a staff member know what to do? Indeed, there may be disagreement among staff regarding a proper response to the request. In the meantime, time is ticking and Ms. Doe becomes increasingly frustrated with her lack of access to your services and files a complaint with you. The importance of having a script cannot be overstated.

Next, we’ll move to the bad script. Here, you have policies and procedures in place, but they are either incomplete, or result in a disparate impact on a class of beneficiaries or potential beneficiaries. One example of a bad script is in the area of unemployment insurance (UI) benefits. Mr. Sanchez, whose native language is Spanish, comes to your American Job Network Center seeking to apply for UI benefits. Your policies and procedures provide that you hand him a packet of forms. This is the same packet of forms you hand to anyone seeking UI benefits. The forms are written in English. Mr. Sanchez cannot understand the forms because he is limited English proficient (LEP). On its face, you have a neutral policy and procedure in place for your staff to follow–everyone seeking UI benefits gets the same set of forms. However, the policy has a disparate impact on LEP persons like Mr. Sanchez. Your script does not address this situation and Mr. Sanchez is effectively denied access to apply for the UI benefits.

Finally, let’s look at the good script that is not followed. In this scenario, you have policies and procedures in place that are sound, but staff is not following them. Deviation from established policies and procedures may be intentional or unintentional, but the result is the same—the process is left open to discriminatory treatment of beneficiaries or potential beneficiaries. Sometimes, policies and procedures are not followed because staff is simply unaware that they exist or they do not know how to properly implement them. This is generally the product of inadequate training. Other times, the staff member will be aware of the script, but chooses to deviate from it. This, too, presents problems.

For example, Mr. Doe serves as an employment referral counselor at an American Job Network Center. Widget Manufacturing Company states that it would like referral of five applicants to fill an accountant position. The company specifies that a bachelor’s degree is required along with one year of relevant experience. The script provides that Mr. Doe is to refer only those applicants who meet an employer’s stated requirements.

Mr. Doe has four applicants that he refers, and these applicants meet the company’s stated requirements. However, Mr. Doe also refers a fifth applicant, who has the bachelor’s degree with only six months of relevant experience. Mr. Doe explains that he referred the fifth applicant because he has worked with the applicant for several months and he knows what a “great person” the applicant is. You receive a discrimination complaint from a non-referred applicant who alleges he had the same qualifications as the fifth referred applicant (a bachelor’s degree and six months of experience).

In this example, Mr. Doe had “good intentions” when referring the fifth applicant who did not meet the company’s stated requirements, but he exposed the Center to a discrimination complaint because he deviated from the script.

Thus, as the Equal Opportunity professional for your agency, company, or organization, you should conduct periodic reviews of the policies and procedures for your federally-funded programs and activities, tweak them as needed to correct problems, and ensure staff is trained on the policies and procedures as well as the importance of adhering to them.

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

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

Library Essentials for Equal Opportunity Professionals

Sunday, August 2nd, 2015

The responsibility of investigating and deciding discrimination complaints generally lies with equal opportunity (EO) professionals.  Discrimination complaints may arise in the workplace, or in the delivery of federally-funded and federally-assisted programs and activities.  Indeed, with regard to the delivery of federally-assisted aid, training, services, or benefits, addressing discrimination complaints is one of the key responsibilities of the EO professional at the agency, service provider, vender, or operator.  EO professionals have a variety of titles, i.e. the Workforce Innovation and Opportunity Act (WIOA) EO Officer, Title VI Coordinator, ADA Coordinator, Title IX Coordinator, and so on.

This paper directs EO professionals in federally-assisted programs and activities to some important issues that arise in discrimination complaint investigations.  Developing policies and procedures addressing these issues in advance of receiving a discrimination complaint will yield significant time savings down the road.

√       Where do you fit in the overall process?

Make sure you know the source(s) of potential discrimination complaints, which may be filed with you.  For federally-assisted programs, beneficiaries and potential beneficiaries of the aid, training, benefits, and services you offer may file discrimination complaints.  For that reason, you’ll need to know what federally-assisted services, aid, training, and benefits your agency, organization, or company offers.

Is there a Web site where complaint forms and other information may be found?  Once you render a decision on a complaint, and one of the parties disagrees with your decision, what are the party’s rights?

√       How to you handle issues of representation?

What are the policies and procedures related to representation of a party to a discrimination complaint?  Is a lay representative or attorney representative allowed?  If so, at what point in the process may the representative enter an appearance?  How much involvement may the representative have with non-party witnesses?  What do you do if a complainant asks for legal representation?  For example, do you have contact information for entities like the local bar association or legal aid services available?

√       How do you process a discrimination complaint involving a minor?

This issue most often arises in the context of federally-assisted educational, apprenticeship, and/or training programs involving high school age or early college age students.  For example, in a Job Corps program, discrimination complaints may arise between a teacher or school official and a minor student, between two students, or any number of other variations.  In your jurisdiction, what is the age of a minor?  Can a minor file a discrimination complaint, or must a parent or legal guardian sign the complaint also?  How do you handle confidentiality and privacy of the minor?  How do you handle witnesses who are minors? What happens to the complaint if a parent or guardian will not sign with the minor?

√       How do you process anonymous complaints?

Anonymous complaints present special concerns to the EO professional.  Possibly the complainant is afraid of retaliation, and seeks to protect his/her identity.  On the other hand, a complainant may harbor a grudge against the respondent, and seek to harass the respondent by invoking a discrimination complaint investigation.  Either way, you should know the policies and procedures of your agency, company, or organization for handling these complaints.  Do you proceed with the investigation, or do you conduct monitoring or a compliance review?

√       What if a complaint should be directed to another agency?

When you receive a complaint, but find another agency or entity has jurisdiction to investigate it (such as the EEOC), what is the procedure for referring the complaint?  Will you (1) forward the complaint directly to the other entity and notify the complainant, (2) return the complaint to the complainant with instructions to file with another entity, or (3) handle the complaint another way?

√       How do you handle issues of privacy and confidentiality?

We covered these issues in conjunction with handling complaints involving minors, but issues of privacy and confidentiality are present in every discrimination complaint investigation.  What are the policies pertaining to privacy and confidentiality?  Who has access to the investigative file?  If you get a request for documents from the file from a non-party, what do you do?  If a party wants copies of all witness statements, do you provide those?  How do you handle a complainant’s medical information that may be the investigative file?  If a party or non-party wants your investigative notes, do you provide those?  If you get advice from your EO leadership or legal staff and a party or non-party requests that information, do you provide it?  What do you do with personally identifiable information, such as Social Security numbers, birth dates, addresses, and the like? And, finally, what are your policies and procedures for collecting, using, storing, and disclosing medical information?

√       What if the complainant dies or cannot be located?

You receive a discrimination complaint, and then learn the complainant died, or you cannot make contact with the complainant.  What do you do with the complaint?  Does it make a difference if the complainant filed the complaint alone, or as part of a class action?

√       How do you handle a complainant’s request to withdraw a complaint?

If a complainant seeks to withdraw his or her discrimination complaint, what do you do?  What are the complainant’s rights should s/he choose to re-file the complaint?

√       What are your procedures for reducing witness statements to writing?

Once you have completed interviews of the parties to a complaint as well as any witnesses, what is the procedure for reducing the statements of the parties and witnesses to writing?  Who writes the statements?  Do the statements need to be signed?  Must they be notarized?  What if an interviewee is limited English proficient, or has a disability and needs auxiliary aids and services during the discrimination complaint investigation process?

√       What is the policy on harassment and is it publicized?

You must understand the harassment policies of your agency, company, or organization.  Make sure the policies are well-known at all levels or your agency, organization, or company, and are well-known to the members of the public who come to you for aid, services, training, or benefits.  Conduct periodic training to minimize the potential for the filing of a harassment-based discrimination complaint.  Convey a “no tolerance” position on the subject.  The more comprehensive and publicized your harassment policies are, the less likely you will face this type of complaint.

Keep in mind that engaging in harassment or hostile environment on any prohibited basis (i.e. race, color, national origin, and so on), not just sexual harassment, constitutes discrimination in violation of federal civil rights laws.

√       What are your policies for handling accommodation and modification requests?

Knowing the policies for handling disability-based and religious-based requests for accommodation or modification is central to effectively and successfully resolving these issues.  Staff must be trained regularly on these policies, and how to implement them from the moment a beneficiary or potential beneficiary makes that initial request.  Reasonable accommodation and modification processes require engaging in a highly interactive dialogue where both sides explore possible accommodations or modifications. Having a well-trained staff goes far in alleviating failure to accommodate complaints.

√       How do you serve persons who are limited English proficient (LEP)?

Our communities benefit from the skills, knowledge, and experiences of increasingly diverse peoples, some of whom are not fluent in English.  In federally-assisted programs and activities, we must afford LEP persons meaningful access to all aid, training, benefits, or services for which they meet the essential eligibility requirements.

What are the procedures you have in place for serving LEP persons in your community?  What if you receive an LEP person who does not speak any of the languages spoken by a majority of the population in your community?  What are the resources available to you at the federal, state, and local levels for assisting LEP persons?  Is your staff trained to serve LEP persons from the moment they come through your doors?

√       What are the policies for using mediation to resolve disputes?

Mediation can be useful in resolving discrimination complaints, particularly when it occurs early in the process.  Mediation is an integral component of resolving workplace discrimination complaints.  And, often, issues involving denial of access to aid, training, benefits, or services in federally-assisted programs and activities are suitable for mediation.  Do you have policies and procedures in place for use of mediation?  What resources are available to you (such as a list of available mediators)?

√       Are there instances where you will expedite consideration of  a complaint?

What are your policies and procedures for expedited handling of a discrimination complaint?  For example, if a complainant alleges that s/he was retaliated against because of a prior complaint filed, is there a policy to give the retaliation complaint expedited treatment?

√       Is the complainant required to exhaust administrative remedies?

Do you have policies and procedures in place related to exhaustion of remedies?  If so, what are the types of complaints covered by these policies and procedures?  For example, before you accept a discrimination complaint pertaining to the denial of unemployment insurance (UI) benefits, will you require that the complainant exhaust the UI appeals process?

√       What are the policies for audio and/or video recordings of interviews?

During your interviews of witnesses, you may seek to record the interviews by means of audio and/or video equipment.  Are recorded interviews permissible or prohibited in your state or locality?  Do you need permission from the interviewee?  Will you summarize the interview in a written statement?  What procedure will you follow to allow the interviewee to review any written statement for purposes of ensuring accuracy and completeness?  Does the interviewee need to sign the statement?

About Seena Foster

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

OFCCP Updates its Disability and Veterans Community Resources Database for Contractors

Friday, April 4th, 2014

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

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

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

Friday, April 4th, 2014

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

The Changing Workforce – Assistant Secretary Martinez Addresses DMEC Conference

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

Shelly Saves the Future – The Importance of Individualized Learning Plans

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

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

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

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

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

What’s New with Disability.gov?

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

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

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

Office of Disability Employment Policy Newsletter (March 28, 2014)

Saturday, March 29th, 2014

In Pursuit of Inclusive Technology — Assistant Secretary Martinez at CSUN Conference

Hundreds of attendees at the International Technology and Persons with Disabilities Conference sponsored annually by California State University of Northridge (CSUN) gathered last week to explore the vital importance of ensuring technology is accessible to people with disabilities. Assistant Secretary of Labor for Disability Employment Policy Kathy Martinez delivered the event’s keynote address on March 20, during which she talked about the U.S. Department of Labor’s efforts to promote the development and adoption of accessible workplace technology by America’s employers, as well as the government’s use of new technologies to advance collaborative policymaking and outreach. “While I’ve certainly experienced the frustration of workplace technology that is not accessible,” said Martinez, “I’ve also seen the promise of universally designed technology that can empower all of us to excel and fully participate — at work, and in life.”

National Online Conversation for Change on Social Media Accessibility Open through April 4

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

Online Dialogue to Help Shape the 2014 NDEAM Theme Closes March 31

The national online dialogue to share ideas for this year’s National Disability Employment Awareness Month (NDEAM) theme is coming to a close on March 31. There is still time to submit your suggestions for a theme that reminds everyone of the valuable skills and talents that people with disabilities bring to the workplace. Don’t miss your chance to contribute to the conversation!

WRP.jobs Online Job Board Open to Private Sector Employers

Private sector employers can now use WRP.jobs, a free online job board, to find pre-screened college students and recent graduates with disabilities looking for internships and permanent positions through the Workforce Recruitment Program (WRP). WRP candidates represent all majors and include graduate and law students, as well as veterans. The WRP is a government-wide program co-sponsored by the Department of Defense and the Department of Labor to increase employment of people with disabilities in the federal workforce. Through WRP.jobs, interested non-federal employers can post permanent and temporary positions and WRP students can search and apply for these positions using employers’ standard application processes. WRP.jobs is a pilot project developed through a collaboration between the Employer Assistance and Resource Network (EARN), the organization that administers the WRP program for non-federal employers, and DirectEmployers, a non-profit consortium of global employers.

OFCCP Launches New Outreach and Recruitment Database for Contractors

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) recently launched a database to help contractors find qualified workers with disabilities and veterans, and to assist contractors with establishing relationships with national organizations and local community groups that have access to these workers. Contractors, as well as others, can visit OFCCP’s Disability and Veterans Community Resources Directory on the OFCCP website. This new resource supplements the agency’s existing Employment Resources Referral Directory.

LEAD Center Releases March Policy Update — Employment, Health Care and Disability

The March 2014 issue of the LEAD Center’s Policy Update — Employment, Health Care and Disability is now available. This monthly update, created in collaboration with the Autistic Self Advocacy Network, provides policymakers, disability service professionals, individuals with disabilities and their families with information about relevant policy developments regarding Medicaid, the Affordable Care Act and related topics, with a focus on improving employment outcomes for individuals with disabilities. The March edition features stories on the President’s proposed 2015 budget, a recent webinar series hosted by ODEP, CMS and the LEAD Center, states considering private health coverage to low-income adults, a study on the benefits of Medicaid expansion for uninsured people with mental illness and Pennsylvania’s proposed Medicaid expansion.

Fall White House Internship Program — Applications Due April 13

The White House Internship Program provides a unique opportunity to gain valuable professional experience and build leadership skills. This hands-on program is designed to mentor and cultivate today’s young leaders, strengthen their understanding of the Executive Office and prepare them for future public service opportunities. The White House Internship Program’s mission is to make the “People’s House” accessible to future leaders from around the nation. The application for the Fall 2014 White House Internship Program is now open and the deadline is April 13, 2014.