Earlier this month, I posted an article titled “Federal Agency Finds State Violated Civil Rights Laws.” In it, I discussed certain findings in the 56-page Initial Determination issued on April 5, 2013, by the U.S. Department of Labor’s Civil Rights Center (CRC). Specifically, the CRC concluded Florida’s way of operating its unemployment insurance program discriminated against limited English proficient persons and persons with disabilities in violation of the nondiscrimination and equal opportunity mandates of Section 188 of the Workforce Investment Act and related laws.
On June 5, 2013, the Florida Department of Economic Opportunity sent two letters in response. The first letter is addressed to United States Representative John Kline, who is the Chair of the Committee on Education and the Workforce, and it requests “Congressional Oversight of the Conduct of the United States Department of Labor Civil Rights Center.” A second letter is addressed to the Labor Department’s Acting Inspector General, and it requests “Investigation of the United States Department of Labor’s Civil Rights Center.” Both letters assert “the Initial Determination is seriously flawed, resulting from a questionable investigatory process that appears calculated to have reached a predetermined and highly politicized result.” Together, these letters allege improper investigative conduct such as:
● “rather than neutrally enforcing the law and acting as an impartial arbiter of complaints— [USDOL] collaborates with political advocacy groups to initiate complaints and allegations of noncompliance with USDOL laws and regulations”;
● “the Initial Determination relies on test calls that were orchestrated by MWC [Miami Workers Center] attorneys, not by the USDOL; yet USDOL accepted them at face value, without further inquiry”;
● “USDOL[s] CRC’s Acting Chief of External Enforcement has publicly stated or endorsed the notion that she brings a political and ideological agenda to her civil-rights enforcement role in the federal government”;
● “had USDOL neutrally reviewed readily accessible data, it would have found that the languages in which DEO’s online claims are successfully filed accurately represent Florida’s population”;
● “leaping from a single allegation to conclusions about other hypothetical instances and then about the entire system—would not pass muster in a first-year college statistics class, much less in a supposedly impartial and careful federal investigation”;
● “USDOL’s willful disregard of statistically significant evidence, in favor of unsworn anecdotal evidence, suggests that political and ideological bias has manifested itself in USDOL’s investigation”;
● “USDOL has refused to act in a cooperative manner. It has repeatedly withheld documents,…”;
● “[USDOL] advised DEO attorneys to consider the public-relations implications of USDOL issuing a final determination in this matter and threatened to publicize such an action based on USDOL’s “new policy” to make public all final determinations.”
And, the State also stated that it was attempting to take corrective actions in response to some of the CRC’s findings, but requests for time extensions to complete the corrective actions were summarily denied by the CRC. The text of these letters may be found online at www.floridajobs.org/news-center/news-feed.
The foregoing allegations have not yet been investigated, but they serve to remind all equal opportunity professionals who conduct discrimination complaint investigations of the importance of adhering to proper investigative methods.
In this post, although we’ll discuss proper techniques for conducting discrimination complaint investigations by State and local equal opportunity (EO) professionals in the context of federally-assisted programs and activities, these techniques also are useful for conducting discrimination complaint investigations in the workplace. If you do not have written discrimination complaint investigation procedures, or written corrective actions and sanctions procedures, contact us at www.titleviconsulting.com, and we will assist you in developing these critical documents.
√ Discrimination complaint investigations
Discrimination complaint investigations are about proper process. No complainant or respondent likes being on the losing end of a discrimination complaint investigation, and it is inevitable that one party or the other will disagree with the outcome. The key is how the investigator gets to that outcome—specifically, it is the process. Properly conducting a discrimination complaint investigation requires that each party be afforded notice of what issues are being investigated, and have an opportunity to be heard on those issues.
● Avoid conflicts of interest
If there is an actual or apparent conflict of interest between the equal opportunity professional conducting the investigation and one or both parties involved in the investigation, then an independent investigator should be retained to conduct the investigation. There are a number of circumstances where a conflict of interest may arise, such as the where the investigator is a witness to the events at issue, the investigator is friends with one party or the other, or the investigator assumes a role as “advocate” for one side or the other. These are just a few examples of instances where an investigator should not proceed; rather, an independent investigator should be appointed to conduct the investigation.
● Beware of your use of social media
Facebook, uTube, LinkedIn, and any myriad of other social Internet sites are commonplace these days. Be careful of what you post on these sites. If you are an EO professional for a State or local government agency, or for an entity that is part of a system of delivering federally-assisted programs and activities, your credibility hinges on the confidence of those who come to you—namely, confidence in your ability to conduct a neutral discrimination complaint investigation.
EO professionals are charged with ensuring compliance with the nondiscrimination mandates of civil rights laws. In the matter involving Miami Workers Center, those civil rights laws included Section 188 of the Workforce Investment Act (WIA), which prohibits discrimination on the bases of race, color, national origin, age, gender, religion, citizenship, political affiliation, and WIA-Title I participant status. Thus, if the EO professional conducting a discrimination complaint investigation under WIA expresses discriminatory views, positions, or attitudes on the Internet that actually (or appear to) contradict WIA Section 188, the investigative process may be tainted, and the EO professional’s credibility with one or both parties as a neutral investigator may be compromised.
● Incoming complaint
A complaint may come from an individual who alleges s/he suffered discrimination in the delivery of services, aid, training, or benefits. This is known as an “individual” complaint. If a group of individuals files a complaint alleging the same harm on the same prohibited basis (i.e. race, gender, age, and the like), then you have a “class action” complaint.
Finally, a third-party complaint may be filed. This is the type of complaint that was filed with the CRC by the Miami Workers Center. Third-party complaints generally are filed by advocacy groups that focus on particular interests. For example, the Miami Workers Center states that its purpose is “to create a progressive political and social environment in South Florida.”
Standing alone, a third-party complaint generally does not give rise to a discrimination complaint investigation; rather, it would be utilized to conduct monitoring of the respondent’s operations, or to provide technical assistance to the respondent. However, if the third-party complainant also has individuals file discrimination complaints, then discrimination complaint investigations may proceed with regard to each of those complainants (either as an individual discrimination complaint investigation, or a class action discrimination complaint investigation, as appropriate).
● Filling out the complaint form
The investigator may assist an individual complainant in completing a discrimination complaint form. This would include providing interpretation and/or translation services for limited English proficient persons as well as auxiliary aids and services as requested by persons with disabilities.
If a complainant needs assistance in understanding and/or completing the discrimination complaint form, it is acceptable to explain what is required for various components of the form and, if needed, help the individual complete the form. Importantly, however, you are not the complainant’s advocate; you are merely assisting him or her in completing the required information on the form.
Once the form is completed and signed, you should inform the complainant that the information provided will be reviewed to determine whether there is authority to proceed with the complaint. Do not place yourself in a position where you are advising the complainant, or suggesting a certain course of action to the complainant.
If you determine a complaint cannot be accepted for investigation, you must notify the complainant in writing of this denial and provide supporting rationale. The complainant also must be notified of any further rights s/he may have (i.e. for WIA Title I-financially assisted programs and activities, the complainant would have a right to file a discrimination complaint with the CRC).
● Accepting a complaint for investigation
If you find you have authority to investigate a complaint, i.e. all of the jurisdictional requirements such as timeliness, apparent merit, and the like are met, then you notify the parties (complainant and named respondent) in writing of the following:
The issue(s) accepted for investigation
Each party has a right to representation in the course of the discrimination complaint investigation
The parties may elect to participate in mediation of the complaint
A notice of the complainant’s rights
● Conducting the investigation—an overview
Once the parties are notified of the specific issue(s) under investigation, it is time to conduct the investigation. Discrimination complaint investigations are multi-faceted—you will interview individuals, review documents, and take a look at procedures, practices, and policies related to matters under investigation. In the delivery of federally-assisted programs and activities, you also will conduct statistical analyses to determine whether there are any significant discrepancies between the composition of your service area population, and the composition of the folks coming through your doors and being served.
● Order of interviews
In any discrimination complaint investigation, interviews should be conducted in the following order:
1. Interview the complainant first.
2. Interview the named respondent(s).
3. Interview first-hand witnesses, as needed, to resolve areas of factual conflict.
4. Interview the complainant last.
Because the complainant carries the burden of demonstrating it is more likely than not discrimination occurred, the investigator should begin and end with interviews of the complainant. In the beginning, you are trying to determine what happened, when it happened, who was involved, and what was said from the complainant’s perspective. At the end, you will ask the complainant to address areas of factual disagreement presented by the respondent as well as the reasons put forth by the respondent for the conduct at issue.
When interviewing the respondent, you will gather the policies, practices, and procedures utilized for the specific program or activity at issue. And, you will gather information regarding what happened, when it happened, who was involved, and what was said from the respondent’s perspective. When analyzing the witness statements and documentation gathered during the investigation of a federally-assisted program or activity, two things you will determine are: (1) whether the policies, practices and procedures were followed for the particular complainant (disparate treatment), and (2) looking at the bigger picture, whether the policies, practices, and procedures at issue discriminate against certain populations (disparate impact).
Finally, first-hand witnesses should be interviewed only if necessary. Namely, if there is a conflict regarding one or more facts that would be critical to resolving the complaint, then it is appropriate to interview these witnesses. Witnesses with second or third-hand information (i.e. they heard what happened through the “grapevine”) are less reliable and, most likely, they would not be interviewed.
● Interviewing rules
There are some basic protocols that you should follow for each interviewee (complainant, respondent, and witness):
1. If the interviewee requested representation, then make sure the representative is present for the interview as well as any follow-up interviews. Any e-mail exchanges with the interviewee also should include the representative.
2. Do not agree or disagree with what the interviewee tells you; rather, you should take notes and periodically summarize what the interviewee tells you to make sure you understand the interviewee’s version of the facts. Ask neutral, fact-specific questions designed to help you understand what happened, when it happened, where it happened, who was involved, and what was said from the witness’s perspectives.
Only after you have analyzed all of the materials gathered during the investigation will you determine why it happened, and whether prohibited discrimination occurred.
3. Prepare a written statement for review and signature of the interviewee. Let the interviewee make any changes to the statement.
As you interview each party and/or witness, you will do so without the other parties and/or witnesses in the room. This enables the interviewee to speak freely. For this reason, it is important that notes be taken, which will then be put in writing for review and signature of each interviewee. At the end of the day, signed statements will constitute some of the documentation used to support findings of fact in your determination.
√ Settling the complaint
Settling a discrimination complaint is desirable for both parties if the settlement is voluntary, and if it ensures compliance with applicable civil rights laws. The ultimate goal of the EO professional conducting a discrimination complaint investigation is not limited to determining whether prohibited discrimination occurred with regard to a particular individual or group of individuals; rather, it is one means by which civil rights compliance may be achieved in the federally-assisted program or activity, or in the workplace, going forward. Certainly, it is preferred to have measures in place to prevent discrimination from occurring in the first place, but resolution of a discrimination complaint on the back end also serves to achieve compliance.
Keep in mind that parties should not be forced into a settlement or conciliation agreement through the use of coercion, veiled threats, or the like. If an agreement simply cannot be reached, then the EO professional must follow his or her procedures for instituting corrective actions and sanctions with regard to federally-assisted programs and activities. In the workplace, established disciplinary procedures would be followed.
√ 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 funded 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.