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 differing treatment, yet only certain reasons are prohibited by federal civil rights laws. The reason for alleged differing treatment constitutes the complaint’s “basis” or, “bases,” in the case of multiple reasons of discrimination.
Why is the “basis” 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 applicable 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.
Federally-assisted programs and activities
Prohibited bases of discrimination in federally-assisted 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-assisted 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-assisted 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 college, which receives WIA-related funding. The admissions officer of the college does not permit Michelle to complete the enrollment form because Michelle has been pregnant five times in the past seven years. Michelle files a complaint. Here, Michelle has filed a complaint alleging gender-based discrimination; that is, Michelle alleges that she is subjected to discrimination (not allowed to enroll) because of her history of pregnancies and, since pregnancy is unique to women, she alleges gender-based discrimination. Since the college operates federally-assisted 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 WIA-funded on-the-job-training 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 applicable 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-assisted 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.
In the workplace
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-assisted programs and activities, civil rights laws governing the workplace will delineate certain prohibited “bases” of discrimination. These workplace “bases” include age (over 40 years old), disability, equal compensation, genetic information, national origin, sex (including pregnancy and sexual harassment), race, color, and religion.
As an example, 46-year-old Mario alleges he was transferred to a less desirable office location and, recently, has been excluded from monthly management meetings as compared to a 28-year-old colleague who continues to attend the meetings and occupies highly, sought-after office location in the company. Here, Mario has filed an age-based discrimination complaint, and you would have authority to investigate that complaint under the Age Discrimination in Employment Act.
On the other hand, Joan files a discrimination complaint alleging that her supervisor does not like her because she is vocal in her disagreement with the supervisor’s policies. This complaint does not allege any “basis” of discrimination prohibited by federal or state civil rights laws. Notably, “personality conflicts,” “policy differences,” or “disagreements” are not among the prohibited bases of discrimination in the workplace. As a result, you would not have authority to investigate Joan’s complaint.
It will save you time to make a list of the prohibited “bases” of discrimination under the civil rights laws applicable to your federally-assisted programs and activities, and/or to your workplace. This, in turn, will help you quickly assess whether a complaint alleges illegal discrimination.
About the author
Seena Foster, award-winning civil rights author and Principal of the discrimination consulting firm, Title VI Consulting, LLP in Alexandria, Virginia, provides expertise and guidance in the areas of civil rights compliance and discrimination complaint investigations related to the delivery of federally-assisted programs and activities. Her customers include state and local governments, colleges and universities, private companies, private counsel, and non-profit organizations. You may contact her at firstname.lastname@example.org, or visit her web site at www.titleviconsulting.com for additional information regarding the services and resources she offers.
By way of background in this area, in 2003, Ms. Foster served as a Senior Policy Analyst to the U.S. Department of Labor’s Civil Rights Center (CRC). In that capacity, she led a team of equal opportunity specialists to conduct disability-based technical assistance reviews of One-Stop centers, and she assisted the CRC’s leadership in preparing for limited English proficiency-based compliance reviews. Ms. Foster also analyzed and weighed witness statements and documents to prepare numerous final determinations for signature by the CRC Director, which resolved discrimination complaints under a variety of federal civil rights laws such as Title VI of the Civil Rights Act, the Age Discrimination Act, the Rehabilitation Act, the Americans with Disabilities Act, and Section 188 of the Workforce Investment Act. In 2006, Ms. Foster received the Secretary of Labor’s Equal Employment Opportunity Award in recognition of “exceptional efforts to ensure that individuals with disabilities have full access to employment and related services and benefits at the Nation’s One-Stop Career Centers.” And, at the request of the CRC, Ms. Foster served as a popular workshop speaker at national equal opportunity forums co-sponsored by the CRC and the National Association of State Workforce Agencies. Her presentations covered topics such as the WIA Section 188 disability checklist, conducting discrimination complaint investigations and writing final determinations, and conducting investigations of allegations involving harassment and hostile environment.
With a passion for ensuring nondiscrimination and equal opportunity in the delivery of federally-assisted programs and activities, Ms. Foster remains highly active in the field through her series of on-demand webcasts for equal opportunity professionals as well as through her mediation services, training, and assistance developing policies and procedures designed to ensure compliance with applicable federal civil rights laws. Her training in the areas of compliance and complaint investigations has been described as “dynamic,” “hitting the nail on the head,” “well-organized,” and “informative.” And, her award-winning book on conducting discrimination complaint investigations is viewed as “eye-opening” and “the best on the market.” In 2007, Ms. Foster was certified as a mediator by the Virginia Supreme Court, and later obtained “Federal Workplace Mediation” certification through the Northern Virginia Mediation Service.
In her local community, she volunteers at Carpenter’s Shelter in Alexandria, Virginia, and serves on its Development Committee and Major Donors and Partners Subcommittee. In addition, Ms. Foster serves on the Economic Opportunities Commission for Alexandria, Virginia, which addresses availability of housing and jobs for economically-disadvantaged persons. In 2013, Ms. Foster received the City of Alexandria’s “Joan White Grass Roots Service Award” for her commitment of time and effort “working to improve the lives of the homeless as well as advocating their needs and the mission of Carpenter’s Shelter in the community.” She is a member of the Discrimination Law and Human Rights Law Committees of the International Bar Association. And, in November 2011, Ms. Foster was selected as a lifetime member of the Cambridge Who’s Who among Executives, Professionals, and Entrepreneurs based on her “accomplishments, talents, and knowledge in the area of civil rights.”
Ms. Foster received her undergraduate degree from Michigan State University, and she has a Juris Doctorate from The George Washington University Law School.