A discrimination complaint is filed when someone feels that s/he has been unfairly or unjustly treated as compared to someone else. Sometimes, the person believes that a process or criteria has been inefficiently or inconsistently applied to him or her as compared to another person.
There may be any number of reasons for the alleged discrimination, yet only certain reasons are prohibited by law. The reason for alleged discrimination constitutes the complaint’s “basis” or, in the case of multiple reasons, the “bases” of discrimination.
Why is the “basis” or “bases” of a discrimination complaint important to the Equal Opportunity (EO) professional? It is one of the critical factors used in determining whether a violation of federal civil rights laws has been alleged. While it is true that any form of discriminatory conduct or preferential treatment is offensive and unfair, not all conduct is illegal.
Prohibited bases of discrimination in federally-funded programs and activities are established by statute. For example, Title VI of the Civil Rights Act of 1964 provides that race, color, and national origin are illegal bases of discrimination. Disability is another prohibited basis of discrimination pursuant to the Rehabilitation Act of 1973, the Americans With Disabilities Act of 1990, and the Americans With Disabilities Act Amendments Act of 2008. The Age Discrimination Act of 1975 prohibits discrimination on the basis of age—any age.
While the foregoing statutes set forth prohibited bases of discrimination across the board in federally-funded programs and activities, there are certain statutes delineating additional prohibited bases of discrimination, which are applicable to specific types of programs and activities. For instance, Title IX of the Education Amendments Act of 1972 (Title IX) prohibits discrimination on the basis of sex or gender in federally-funded educational programs and activities. And, one of the most expansive civil rights laws applies to certain workforce development programs and activities. Notably, the Workforce Investment Act (WIA) of 1998 prohibits discrimination on the previously-mentioned bases of race, color, national origin, age, disability, and gender. And, it contains the following additional prohibited bases of discrimination: religion, political affiliation or belief, citizenship, and WIA-participant status.
To illustrate the concept of basis and its importance, we’ll look at a couple of examples. First, let’s assume that Michelle wants to enroll in a GED program at a nearby Job Corps Center, which receives WIA-related funding. The admissions officer of the Center does not permit Michelle to complete the enrollment form because she has been pregnant five times in the past seven years. Michelle files a complaint. Here, the basis of Michelle’s complaint is gender discrimination; that is, Michelle alleges that she is subjected to discrimination because of her history of pregnancies and, since pregnancy is unique to women, she alleges gender-based discrimination. Since the Job Corps Center operates federally-funded educational programs and activities, it is governed by Title IX, which prohibits gender-based discrimination. Moreover, gender-based discrimination is prohibited under WIA as well.
Now, let’s turn to Joe, who alleges that he is being denied on-the-job-training through a WIA-funded One Stop Career Center because he is homeless. Take another look at the prohibited “bases” set forth in the civil rights laws we have reviewed, including WIA. You will note that “homelessness” is not listed. Undoubtedly, discrimination against a person because s/he is homeless is offensive and unfair, but the EO professional does not have authority to investigate Joe’s complaint under federal civil rights laws because his complaint does not allege a basis of discrimination prohibited by those laws.
If you are an EO professional, then you should know the federal civil rights laws that apply to your federally-funded programs and activities. Review these laws to determine the prohibited “bases” of discrimination. If you receive a discrimination complaint, you will need to ensure that the alleged basis of discrimination is, in fact, prohibited by one or more civil rights laws governing your programs and activities.
If you are an EEO/AA/HR professional in the workplace, you will need to know the federal, state, and local civil rights laws applicable to workplace discrimination. As with laws governing federally-funded programs and activities, civil rights laws governing the workplace discrimination will delineate certain prohibited “bases” of discrimination. These workplace “bases” include age (40 years old and over), disability, equal compensation, genetic information, national origin, sex (including pregnancy and sexual harassment), race, color, and religion.
It will save you time to make a list of the prohibited “bases” of discrimination under the civil rights laws applicable to your federally-funded programs and activities, and/or to your workplace. This, in turn, will help you quickly assess whether a complaint alleges illegal discrimination.
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, VA. You may visit her website at www.titleviconsulting.com.