Today we are going to provide a great deal of useful information about civil rights laws and their application to Federal grantees. However, when all is said and done, if nothing else, everyone will have one simple concept: whenever Federal funds are involved, there are civil rights requirements that follow.

When we think of Federal financial assistance, we often think just about dollars–grants that various organizations receive, in this case, from the Department of Justice. However, Federal financial assistance can include things other than money. Asking a Federal agency for technical assistance is also Federal financial assistance (e.g., when a local police department asks the FBI lab for analysis of crime evidence). Financial Assistance can include training or education programs that the Federal government supplies (e.g., training to police administrators at the Quantico FBI academy). Financial assistance may take the form of facilities purchased or used with Federal funds (e.g., a prison constructed with Federal funds continues to be Federal financial assistance during all the years it is used for that purpose).

• Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000d et seq. (prohibiting discrimination i programs or activities on the basis of race, color, and national origin)
•  Omnibus Crime Control and Safe Streets Act of 1968, as amended, 42 U.S.C. § 3789d(c)(1) (prohibiting discrimination in employment practices or in programs and activities on the basis of race, color, religion, national origin, and sex)
•  Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq. (prohibiting discrimination in employment practices or in programs and activities on the basis of disability)
•  Title II of the Americans with Disabilities Act of 1990, 421 U.S.C. § 12131 (prohibiting discrimination in services, programs, and activities on the basis of disability)
•  Age Discrimination Act of 1975, 42 U.S.C. § 6101-07 (prohibiting discrimination in programs and activities on the basis of age)
•  Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (prohibiting discrimination in educational programs or activities on the basis of sex)

(1)    Federal civil rights laws apply to all “protected classes.”

(2) NOTE that color  discrimination can occur intra-racially.

(3) Note, one type of National origin discrimination are barriers to accessing a program by LEP persons.

(4) Note that Religion is protected under the SSA and some of the other program statutes we enforce.   These statutes are a few of the federal statutes that apply to religion.  What are we talking about when we say “RELIGION”?:  It does NOT mean that one has to belong to a certain traditional, doctrinal religion such as Baptist , Islam or Catholic.  To understand the protection against Religious discrimination, one needs to understand the history.  The term religion was expanded by courts during the Vietnam War era when people who were considered conscientious objectors wanted the status of religious beliefs to protect their stance.  So, if you were a member of a traditional PEACE church such as Quakers, or Church of the Brethren, courts would recognize those positions and provide protection.  Then the next step began when people said, “I have the same conviction, but I don’t belong to one of the churches”.  Courts said YES, people could have religious beliefs protection if the matter in question is  a SINCERELY HELD MORAL OR ETHICAL BELIEF.  So then law was developed around this concept and the protection was taken into the employment context.  EXAMPLES: PRISION CASES,  ALSO we had a case where a College Program was completely funded by DOJ, but chose employees on the basis of their views on abortion.  ALTHOUGH, the program was on the campus of a religious college, because the program in question was completely funded by DOJ, the program administrators had to change this practice on the basis that it was a religious discrimination.

(5) Note that protection against sexual harassment is one part of sex discrimination.

(6) Note that sexual orientation or preference is in itself not a Federally protected class, although some states and local governments in the United States have included PROTECTION FOR Gay Lesbian, Bisexual or Transgendered persons in this category.  However, the Supreme Court has recognized that gay people can be protected under certain employment contexts (i.e., workplace harassment based on the perception of being gay or a gay employee being the target of same sex harassment; Therefore, such complaints would fall within Federal non- discrimination prohibitions and would therefore be protected by Federal civil rights laws.

The Safe Streets Act, following the standards of Title VII of the Civil Rights Act of 1964, provides protection against being retaliated for opposing discriminatory practices. That is, if a person files an employment discrimination complaint, regardless of its merits, an employer cannot retaliate against the employee who filed the complaint. The same protections are available for service discrimination complaints under Title VI (28 C.F.R. 42.107(e)). Retaliation claims are often easier to prove than the underlying discrimination claims.

(1) Title VI provides the basis for civil rights protections in Federally assisted programs.  Other statutes, following this language, have expanded the protected classes.

(2) A Program or activity is a term of art, meaning that it applies to a whole organization that receives Federal funding.  Generally, the entire department or office within a state or local government is identified as the “program or activity.”

(3) Examples:

(a) If a state receives funding that is designated for a particular state prison, the entire state department of corrections is considered the covered program or activity, but not, however the entire state.

(b) If a project of a county fire department receives Federal funds, the entire fire department is covered, but not the other departments in the county.

(c) If the office of a mayor receives Federal financial assistance and distributes it to departments or agencies, all of the operations of the mayor’s office are covered along with the departments or agencies which actually receive the aid from the mayor’s office.

(d) If one school in a post-secondary educational institution receives Federal financial assistance, then the whole school system is subject to Title VI.

Title VI Department of Justice Regulations outline specific discriminatory actions that are prohibited (28 C.F.R. 42.104).  A recipient may not

• Directly or through contractual or other arrangements discriminate on the basis of race, color, or national origin;
• Deny an individual any disposition, service, financial aid, or benefit;

Subject an individual to segregation or separate treatment;

• Treat an individual differently from others in determining whether he or she satisfies any admission, enrollment or eligibility requirement or condition which individuals must meet to be provided the funded service;
• Deny an individual an opportunity to participate or afford him or her services     that are different from those provided to others;
• Deny a person the opportunity to participate as a member of a planning or advisory body which is an integral part of the program;
• In determining the type of service or class of individuals served, may not discriminate on the basis or race, color, or national origin;
• In determining the site or location of facilities, may not make selections that have the purpose or effect of discriminating.  (E.g., location of a correctional facility distant from Indian Country).

(1) The Safe Streets Act tracks Title VI, adding other protected categories (noted in red).  Other statutes that we have already discussed add other protected classes.  What are they? (Answer: disability and age).

(2) Although it’s unlikely, just for the sake of argument, what if a particular program receives just $1.00 in Federal financial assistance–is it still covered?  Yes.  Note the language in the statute states “funded in whole or in part.”  So, it doesn’t matter the level of funding–any Federal financial assistance brings with it civil rights obligations.

(3) The Safe Streets Act, unlike Title VI, applies to both benefits and employment (in green).

(1) The VOCA tracks SSA, by adding other protected categories (noted in red) to Title VI.  Other statutes that we have already discussed add other protected classes.  What are they? (Answer: disability and age).

(2) Although it’s unlikely, just for the sake of argument, what if a particular program receives just $1.00 in Federal financial assistance–is it still covered?  Yes.  Note the language in the statute states “funded in whole or in part.”  So, it doesn’t matter the level of funding–any Federal financial assistance brings with it civil rights obligations.

(3) The VOCA, unlike Title VI, applies to both benefits and employment (in green).

(4) VOCA’s language of “undertaking” tracks the Title VI language of Program and Activity and is a term of art, which therefore applies to the entire organization that receives funding, not just the particular program.

See 28 C.F.R. 42.505.

(c) Self-evaluation plan

(d) Designation of responsible employee

(e) Adoption of Grievance Procedures

(f) Notice  “. . . The notification shall state where appropriate, that the recipient does not discriminate in its programs with respect to access, treatment or employment.  The notification shall also include identification of the person responsible for coordinating compliance with this subpart and where to file section 504 complaints with the Department and, where applicable, with the recipient.”

(2) Recruitment materials or publications containing general information that a recipient makes available to participants, beneficiaries, applicants, or employees shall include a policy statement of nondiscrimination the basis of handicap.

(g) The Department may require any recipient with fewer than fifty employees and receiving less than $25,000 in Federal financial assistance to comply with paragraphs (c)(2) and (d) through (f) of this section.

See 28 C.F.R. 42.505.

(c) Self-evaluation plan

(d) Designation of responsible employee

(e) Adoption of Grievance Procedures

(f) Notice  “. . . The notification shall state where appropriate, that the recipient does not discriminate in its programs with respect to access, treatment or employment.  The notification shall also include identification of the person responsible for coordinating compliance with this subpart and where to file section 504 complaints with the Department and, where applicable, with the recipient.”

(2) Recruitment materials or publications containing general information that a recipient makes available to participants, beneficiaries, applicants, or employees shall include a policy statement of nondiscrimination the basis of handicap.

(g) The Department may require any recipient with fewer than fifty employees and receiving less than $25,000 in Federal financial assistance to comply with paragraphs (c)(2) and (d) through (f) of this section.

(1) Discuss employment discrimination.  Most people are familiar with Federal protections when it comes to employment (e.g., an employer cannot refuse to hire or promote someone based on race or sex, etc.).

(2) Note that employment discrimination protections in the Safe Streets Act apply to American Indians that work for a non-Triabal organization receiving DOJ funds.

(3) Services Discrimination prohibitions also applies to Tribes under SSA since Tribes are particularly mentioned in the definition in the SSA.  However, under other civil rights laws, it is not clear that service discrimination prohibitions would also apply to tribes.

4) Discuss services discrimination.  Examples:

(a) A funded county sheriff’s department stops all Hispanic motorists traveling through the county on a particular county road.

(b) A funded victim’s assistance hotline does not provide an alternative telephone service for hearing impaired people (e.g., TTY).

(c) A state planning agency, in a state with a large Native American population, convenes an advisory committee to assist in the process of identifying high priority programs within the state that would benefit from  Federal resources.  The committee has no Native Americans.

(d) Male guards at a funded female prison sexually harass the inmates.

(e) A funded police department consistently responds a half hour slower to an apartment building that houses senior citizens than it does to a apartment building across the street with residents of a variety of ages.

(f) A funded police department concentrates its traffic enforcement solely in predominantly African American neighborhoods.

(1) We have discussed Federal statutes that apply to recipients of Financial assistance from OJP and COPS.  However, there is also a separate contractual basis for civil rights obligations.  These are contained in Certified Assurances that an applicant submits with a request for funding.

Now that we have discussed the civil rights requirements that accompany Federal financial assistance.  How do we enforce them?  OCR has four mechanisms for enforcement.  Discuss each in turn.

(1) EEOPs — An EEOP is: a statistical analyst of a grantee’s workforce in comparison to it service population by job category and race, sex, and national origin.

(2) Complaints –The complaint process from beginning to end: individual files a complaint with our office, we check jurisdiction, we notify the funded entity, we gather information, we may make an on-site investigation, we then issue finding of compliance or non-compliance.  If we issue a finding of non-compliance we work with the funded organization to reach compliance.  Ordinarily we are successful in negotiating voluntary compliance.  Cite examples without using names (e.g., MPD known as “a large metropolitan police department on the East Coast” and other cases).  On the rare occasion of continued non-compliance, a funded entity may face suspension or termination of funding.

(2) Findings of Discrimination–explain what these are.  Note that Colorado has come up with an extensive system for tracking findings and reporting them to our office.

(4) Compliance Reviews–: beginning with the bases for selecting a grantee for a compliance review–covering both employment and/or services–and tracking the process through completion with issuance of a finding.  Note that OCR may also issue recommendations.

a) MPD- ALLEGATIONS involved discrimination against Hispanic officers in all areas, hiring, promotion, on the job harassment.  RESOLUTION: Complaint process instituted for complaints filings, outreach to Hispanic community, diversity training for the entire Police Force.  We monitored implementation for a number of years.

b) Jersey City PD, –

c) Hawthorne PD,-

d) Montgomery Co. PD (TX) -(ALLEGATIONS INVOLVED EMPLOYMENT PRACTICES, hiring, promotion assignments.  Record keeping was problematic, so part of resolution was requirement to keep documents so OCR would have requisite access; promotional board established. ).

1. Note that President issued EO 13198 in January 2001 indicating that programmatic obstacles to inclusion on FBOs in F. Funding programs must be eliminated
2.  President issued EO 13279 in December 2002 charging Fed agencies with giving equal treatment to FBOs as it does with other agencies applying for assistance consistent with the First amendment.

1. An FBO may retain its religious icons in the room where it serves beneficiaries with Federal funds, however, funds may not be used for proselytizing or conversion efforts.
2. An FBO may not deny services to a person who is either of a different belief or has no religious beliefs.
3. FBOs do not lose Title VII exemption, however, program statutes nondiscrimination provision still apply.  Therefore, to find out what that means to them, the must contact Program Staff –OGC
4. FBOs who receive exemptions under RFRA, still retain the RFRA exemption. Therefore, if they have a RFRA exemption and get money for a program under SSA, VOCA, JJDPDA, not clear how this plays out.  MAYBE RFRA exemption takes precedence?  NOT CLEAR.  MUST DISCUSS this in house.  BEST PLACE FOR answers would be Program office OGC.

Tell them why we are providing them with this information:

This portion of the presentation will provide some specific information related to providing services to LEP persons.

Background:

Since 1976, DOJ’s regulation has included requirements regarding the provision of written language assistance for LEP persons.  In January, DOJ  published a document for recipients of DOJ funds that clarifies the responsibilities of recipients to LEP persons.

As noted earlier, both Title VI and the Safe Streets Act prohibit discrimination on the basis of national origin.  This includes discrimination on the basis of limited English proficiency.

Provide definition of LEP:

Someone whose first or primary language is not English and who has limited ability to read, speak or understand English.  These folks may have some English ability, but they are not able to communicate effectively in English.  That limited English ability may act as a barrier to accessing benefits or services, understanding and exercising important rights, or understanding other information provided by Federally funded programs or activities.

Title VI was intended to eliminate barriers based on national origin etc. in Federally funded programs.

DOJ’s Guidance document reiterates DOJ’s longstanding position that to avoid discrimination against LEP persons on the basis of national origin, recipients must [READ FROM SLIDE]

Meaningful access — The key to providing meaningful access is accurate and effective communication between the DOJ recipient and the LEP individual.

• Was the LEP person given adequate information?
• Is he able to understand the services and benefits that are available?
• Is she able to receive the services and benefits for which she is eligible?
• Can the LEP person effectively communicate the relevant circumstances of his or her situation?

MUST** — These POINTS REGARDING MEANINGFUL ACCESS are not OPTIONAL.  However, recipients are not required to use the methods and options listed in the Guidance.  There is considerable flexibility in determining how to comply with the meaningful access requirement.

This analysis is included in the guidance — Recipients should apply these four factors to decide what reasonable steps they need to take to ensure meaningful access for LEP persons.

In other words, this is a tool to help recipients decide what documents to translate, when oral translation is necessary and whether language services must be made immediately available.  A recipient may find that different language services are needed for different types of programs and services — some activities are more important OR have greater impact on OR contact with LEP persons SO they require more language assistance services.

REVIEW THE FACTORS

Think of these factors as operating along a continuum — the greater each one is, the greater the obligation to provide language assistance services

After applying the Four Factor Analysis, you discover that there are LEP persons in the service population and that they do come in contact with the program.  The program is important and you have some resources available to provide some language assistance services.

The next step is deciding what language assistance services you will use.

Two options:

Oral language services (or interpreters) AND translation of written materials. The Guidance includes detailed information about both options starting at p. 3846.

Two things that need to be emphasized:

Recipients should ensure that Interpreters are competent.  In most cases, use of family members (especially juveniles) or friends will not be appropriate.  This is also true for using inmates to other detainees to interpret.

There is a “safe harbor” provision in the guidance for translation of written documents ONLY (p. 3837)  — these are based on the number of LEP persons in the service population.

Now that you have completed the Four Factor analysis and selected language assistance services, you should write an LEP policy so that everyone knows what is required and where to go to get assistance.

Effective programs usually have these five elements (on the slide). [Briefly discuss each element]

Mention Appendix A — there is additional information specific to different types of recipients (law enforcement, corrections, courts, juvenile justice, domestic violence, and treatment programs).

Also has a framework for creating a model plan (p. 3845).

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