On April 5, 2013, the U.S. Department of Labor’s Civil Rights Center (CRC) issued a 56-page Initial Determination in Miami Workers Center v. Florida Dept. of Economic Opportunity, Division of Workforce Services, CRC Complaint No. 12-FL-048, finding the State’s electronic filing system for unemployment insurance (UI) benefits had a discriminatory effect on limited English proficient (LEP) persons and persons with disabilities in violation of Title VI of the Civil Rights Act, Section 504 of the Rehabilitation Act, Title II of the Americans With Disabilities Act, and Section 188 of the Workforce Investment Act (WIA).  Based on these violations, the CRC concluded Florida must take certain corrective actions, or face a slew of sanctions, including termination of Department of Labor (DOL)-funding.

Although this determination involves a DOL-funded UI benefits program, the lessons learned are highly-instructive for Equal Opportunity (EO) professionals charged with ensuring their federally-assisted programs and activities operate in compliance with federal civil rights laws.

A copy of the CRC’s initial determination may be found through the National Employment Law Project (NELP) website at http://nelp.3cdn.net/2c0ce3c2929a0ee4e1_wim6i5ynx.pdf.  The State filed a response on June 5, 2013, which is located at http://www.floridajobs.org/news-center.  See June 2013 blog post titled, “State Challenges Investigative Techniques of Federal Civil Rights Office.”

√             Jurisdiction

Having traced funding for Florida’s UI benefits program back to a multi-million dollar grant from DOL’s Employment and Training Administration, the CRC concluded Florida was a “recipient” of DOL funding.  From this, the CRC determined it had jurisdiction to investigate the State’s policies and procedures in delivering its UI benefits program for possible violations of applicable federal civil rights laws.

In the course of this discrimination complaint investigation, a week-long onsite review of Florida’s UI claims process was conducted during which time a number of individuals were interviewed (including the State EO Officer, Florida’s Unemployment Compensation Manager, UI call center personnel, and individual complainants).  Additionally, over a period of several months, written materials and website pages were reviewed, and numerous e-mail exchanges took place between CRC investigators and State officials.

√             The issue

At the crux of the discrimination complaint was Florida’s shift from allowing claims for UI benefits to be filed by mail, telephone, and Internet, to a system that focused on filing claims by Internet only.  And, in addition to an lengthy claim form, individuals pursuing UI benefits under the new system also had to complete an online 45-question Initial Skills Review.

The conversion to an Internet filing system was mandated by Florida’s legislature, which passed a bill requiring all claims for UI benefits be filed electronically effective August 1, 2011.  Although certain limited exceptions to electronic filing were permitted, these exceptions were not widely-publicized or otherwise known to individuals filing for UI benefits.

Although Florida maintained its “modernization” efforts requiring electronic UI claims filing was designed to “improve the claims, benefits, and appeals processes and strengthen the relationship with Workforce Services for quicker reemployment,” the complaint alleged LEP persons and persons with disabilities were effectively denied access to apply for UI benefits under the new system.

√             National origin-based discrimination established

U.S. Census Bureau’s American Community Survey (ACS).  As an initial matter, the CRC accepted Florida’s use of the ACS to find “the two top languages spoken at home in Florida, following English, are Spanish (spoken by approximately 18.8% of the State population) and ‘French Creole’ (spoken by approximately 1.7% of the State population).”  The CRC agreed the Spanish and Creole languages “are used by a significant number or proportion of the State population.”

Florida’s LEP-related obligations.  The CRC explained, as a “recipient” of federal funding, Florida has two LEP-related obligations under federal civil rights laws:  (1) Florida must communicate in the language(s) used by a “significant number or proportion” of its service area population; and (2) Florida must assess “the particularized language needs” of LEP persons who “communicate in less-widely-used languages.”  Thus, even if the LEP person speaks a language that a staff person has never heard before, Florida must have a system in place to identify the language and provide interpretation and/or translation services to afford the LEP person “meaningful access” to the program.  Moreover, Florida must widely-publicize the fact that interpretation and translation services will provided at no charge to LEP persons.

No “meaningful access” provided.  Based on its investigation, the CRC found Florida did not provide “meaningful access” to the UI claims process for LEP persons.  Here, the CRC cited to several deficiencies, including the following:

●      Florida failed to translate “vital” website information in other languages.  For example, the “Instructions for Filing a Claim and Registering for the Initial Skills Review” appeared only in English on the website.

●      Updates to the website were provided regularly in English, but some updates were not provided on the Spanish or Creole versions of the website.

●      A link to Florida’s “Online Help Center” was provided only on the English version of the webpage.

●      The “Equal Opportunity is The Law” notice was translated into Spanish and Creole, but the discrimination complaint form was not available online in Creole.

●      A link to contact the UI office by e-mail appeared only on the English version of the website.

●      The State relied on LEP callers to provide their own interpreters (such as a family member or friend) to navigate the UI claims process.

And, although Florida had a telephone system in place as a secondary means for filing UI claims, the CRC found it was neither widely-publicized nor did it provide “meaningful access” to LEP persons for a number of reasons.  With regard to an LEP person speaking Spanish or Creole, the CRC noted:

[T]he deficiencies (in the telephone system) include the provision of outgoing recorded messages in English only, even on phone lines dedicated to (Spanish and Creole); callers’ inability to reach a live attendant after pressing a button for the appropriate language; undue delays waiting for interpreters; calls with Spanish (interpreters) that were dropped mid-conversation . . ..

Moreover, the CRC noted LEP persons were not informed, orally or through the posting of written notices, that they could file their UI claims and questionnaires by telephone instead of filing the claims electronically.

With regard to Florida’s ability to serve LEP persons who did not speak Spanish or Creole, the CRC found the State failed to have a system in place to “meet (their) particularized language needs.”  Notably, the CRC found Florida’s UI program personnel operated based on “ill-advised and inaccurate assumptions”; that is, personnel assumed LEP persons:

●      “can understand some English, if you’re speaking slowly”; and

●      LEP persons are able to recognize the English word “language,” and can then identify the language in which they communicate.

In support of its finding of violations, the CRC cited to the logs of various language “testers” utilized during the investigation (the testers spoke languages such as Portuguese, Hindi-Punjabi, Polish, and Russian), which revealed a lack of “meaningful access” to the UI benefits program.  Indeed, the CRC noted, at times, the testers were subjected to abusive language by call center operators.  In one case, the call center attendant stated, “I only speak English.  Speak English.”  During another call, the tester was told, “I don’t speak jibberish so call when you know English.”

Further, the call center attendants failed to identify the correct language of the testers, and the testers experienced undue delays in reaching a live attendant, or were never connected to a live attendant.  Additionally, when a tester was connected to a live attendant, the tester was misinformed about the UI claims process, or the call was dropped in mid-conversation.

Overall, the CRC concluded Florida’s system of delivering UI benefits failed “to provide meaningful access to accurate information” for LEP persons.

√             Disability-based discrimination established

Likewise, Florida’s UI benefits system violated WIA’s equal opportunity mandates when serving persons with disabilities.  Specifically, the CRC noted the system “deprive(s) persons with disabilities of equal opportunity.”  The CRC explained Florida is obliged to ensure its system of communicating with persons with disabilities is as effective as its system of communicating with others.  Moreover, Florida cannot segregate persons with disabilities, or use criteria or methods of operation that tend to screen them out of the claims process, or deny them access to the program.

In the course of its investigation, the CRC noted Florida’s Division of Workforce Services Director acknowledged the State took “no steps to make the on-line filing system accessible to persons with disabilities.”  The CRC found persons with visual or hearing impairments were denied effective means of communications during the UI claims process.  One example cited by the CRC involved persons with hearing impairments and their experiences at Florida’s American Job Centers:

Attorneys for the Complainant provided declarations from two claimants who were born deaf, communicated most effectively in American Sign Language (ASL), and do not understand complex written English.  Both claimants attempted to file for (UI) benefits . . . by going to WorkSource Career Centers and asking for help to file their claims.

In one case, a member of the Center’s staff attempted to help a hearing impaired individual file his claim online without the assistance of an ASL interpreter and, as a result, incorrect information was included in the claim.  A second hearing-impaired person stated the following about his experience at an American Job Center:

The representative didn’t understand what I was saying.  I told them they were required to provide an interpreter; I showed them a card that stated so.  They made excuses and said they were too busy and I would have to wait.  They then kept me waiting for about two-three hours.  I needed to get home and couldn’t wait any longer, so I left.

In the end, the CRC found Florida engaged in disability-based discrimination in its system of delivering UI benefits.

√             Remedies

The CRC’s proposed remedies in this determination are quite sweeping.  In directing that Florida take certain corrective steps, the CRC stated:

[T]hese steps must include actions to end and/or redress the above-described deficiencies; make-whole relief for individual victims of discrimination; and other remedial or affirmative relief.

Failure to achieve voluntary compliance with applicable civil rights laws could, according to the CRC, result in the ultimate termination of DOL funding to Florida:

 . . . DOL will take appropriate enforcement actions as authorized by the applicable laws and their implementing regulations.  Such actions may include, but are not limited to, referral of the matter to the Attorney General with a recommendation that an appropriate civil action be instituted; issuance of a Final Determination, which initiates administrative procedures to suspend, terminate, deny, or discontinue Federal financial assistance from DOL; or such other action as may be provided by law.

Some examples of the corrective steps put forth by the CRC to ensure nondiscrimination for LEP persons in Florida’s system of delivering UI benefits are as follows:

●      providing written translation of all “vital” website and written materials related to the UI benefits program into Spanish and Creole;

●      immediately ceasing any requirement that LEP persons provide their own interpreters;

●      training staff at American Job Centers and call centers to understand their obligations to provide interpreters for LEP persons as well as how such interpreters will be provided;

●      training call center staff regarding how to properly respond to LEP callers, including callers who speak no English at all;

●      widely-publicizing (in written form and through broadcast media) options to the online UI filing system for LEP persons, such as “informing (LEP) claimants that they may file by telephone”; and

●      monitoring the telephone system “to ensure that (UI)-related services and benefits for LEP persons are neither denied nor delayed because of problems” with the system.

With regard to serving persons with disabilities, the CRC suggested Florida either make the online filing system “fully accessible for persons with varying types of disabilities, or provide an alternative method of filing claims that provides an equal degree of access as is provided for persons without disabilities.”  Moreover, the CRC directed that Florida develop, implement, and widely-publicize “detailed procedures” for handing requests for communication assistance, including interpreting services such as ASL or Spanish Sign Language, and providing Communications Access Real Time (CART) transcriptions.

Finally, as previously noted, the Initial Determination calls for Florida to provide “make-whole” relief to LEP individuals and individuals with disabilities who “were denied any (UI) benefits to which they would have been entitled but for (Florida’s) unlawful actions . . ..”

√             About the author

Seena Foster, award-winning civil rights author and Partner of the discrimination consulting firm, Title VI Consulting, LLP in Alexandria, Virginia, provides expertise and guidance in the areas of compliance and civil rights investigations to state and local governments, colleges and universities, private companies, and non-profit organizations.  To that end, she offers one hour Webinars, full-day and half-day in-person training sessions, assistance developing 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 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.