As the designated Equal Opportunity (EO) professional for your agency, company, or organization, you have key responsibilities for ensuring the nondiscriminatory delivery of federally-funded aid, training, benefits, and services. Building a good resource library is a proven way to manage these responsibilities efficiently and successfully.

This paper directs you to some important issues that arise in discrimination complaint investigations. Gathering the policies and procedures of your agency, company, or organization on these issues in advance will undoubtedly save you time and resources down the road. And, if you find that there are no policies or procedures for a particular issue, you can follow-up with the civil rights office of your federal funding agency and EO leadership to develop sound policies and procedures for handling the issue.

√ Where do you fit in the overall process?

Make sure that you know the source potential discrimination complaints that may be filed with you. This will include beneficiaries and potential beneficiaries of the aid, training, benefits, and services you offer. Is there a web site for potential complainants to find complaint forms and other information? If a complainant asks for sources of legal representation, do you have the number of the local bar association or other legal entity to provide? If you have investigated a complaint, and one of the parties disagrees with your determination, 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 union representative, 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?

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

This most often occurs in the context of providing educational and/or training programs and services. For example, in a Job Corps program, a discrimination complaint may arise between a teacher or school official and a minor student, between two minor students, or any number of other variations. Can a minor file a discrimination complaint alone, or must a legal guardian also sign the complaint? What is the age for a person to be deemed a “minor”? How do you handle confidentiality and privacy of the minor? How do you handle witnesses who are minors?

√ How do you process anonymous complaints?

Anonymous complaints present special concerns to the EO professional. Possibly the complainant is afraid of retaliation for filing the complaint 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 through the discrimination complaint process. Either way, you should know the policies and procedures of your agency, company, or organization for handling these complaints. Some policies may be to proceed with the investigation. Other policies may provide that such complaints be handled as subjects for monitoring or compliance reviews by EO leadership.

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

It would not be uncommon for you to receive discrimination complaints directed against private employers. What is the policy for handling such complaints? Do you have the contact information for the EEOC and/or state agencies with authority to handle such complaints? Will you forward the complaint directly to the other agency and notify the complainant, return the complaint to the complainant with instructions to file with the other agency, or will you 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 PII (personally identifiable information) such as Social Security numbers, birth dates, addresses, and the like?

√ What if the complainant dies or cannot be located?

You have received a discrimination complaint from the complainant and then learn that the complainant has died, or that you can no longer 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 is the policy 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 policy or 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?

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

You must have a full understanding of the sexual harassment policies of your agency, company, or organization. Make sure the policies are well-known at all levels. Conduct periodic training to minimize the potential for a discrimination complaint based on sexual harassment to be filed. Convey a “no tolerance” position on the subject. If your review of the sexual harassment policies reveals the need for correction or clarification, pursue this with your EO leadership. The more comprehensive and more effective the sexual harassment policies, the less likely you will face this type of complaint.

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

Knowing the policies for handling disability-based or 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 are highly interactive and having a well-trained staff goes far in alleviating these types of complaints.

√ How do you handle persons with Limited English Proficiency (LEP)?

As our communities benefit from the skills, knowledge, and experiences of increasingly diverse peoples, some of whom are not proficient in the English language, we must afford them access to, and the benefit of, all aid, training, benefits, or services for which they meet the essential eligibility requirements. What are the procedures you have in place for handling 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 handle LEP-persons from the moment they come through your doors? If you are part of the One Stop delivery system, how do you handle translation of orientation materials, unemployment insurance forms, and the like?

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

Mediation can be useful in resolving discrimination complaints, particularly when used early in the process. Often, issues involving denial of access to aid, training, benefits, or services are suitable for mediation. Do you know the policies for use of mediation? What are the resources available to you at the federal, state, and local levels?

√ 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?

What are the policies and procedures for exhaustion of remedies? If so, what are the types of complaints covered by these policies? 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 you allowed or prohibited from recording interviews? 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 the statement for purposes of ensuring accuracy and completeness? Does the interviewee need to sign the statement?

Seena Foster is an attorney and author of “Civil Rights Investigations Under the Workforce Investment Act and Other Title VI-Related Laws: From Intake to Final Determination. She is also a Partner with Title VI Consulting in Alexandria, Virginia. You may visit her website at www.titleviconsulting.com.