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. Discrimination complaints can arise in the workplace, or in the delivery of federally-assisted programs and activities to the public.
In this article, we are going to focus on understanding the important concept of jurisdiction over complaints of discrimination in federally-assisted programs and activities. An example of a discrimination complaint in federally-assisted programs and activities is where Jane alleges she was denied admittance to a certification apprenticeship program funded by the U.S. Department of Education because of her gender. Prior to launching an investigation of Jane’s complaint, you first must have jurisdiction.
Why jurisdiction matters?
Jurisdiction to investigate a discrimination complaint means you have authority to look into the complaint and resolve it. Importantly, you will not have jurisdiction (authority) to investigate every complaint and, sometimes, “dual jurisdiction” exists; that is, you share jurisdiction over the complaint with another agency or entity.
When does jurisdiction exist?
There are certain requirements for establishing jurisdiction that apply across-the-board in all federally-assisted programs and activities. The complaint must:
• Be in writing
• Be signed by the aggrieved individual or his or her authorized representative
• Set forth sufficient contact information for the complainant to establish a line of communication, such as email, mail, or phone number
• Identify a wrong-doer, also known as a “respondent”
• Be filed within 180 days of the date of the alleged adverse action
• Allege discrimination on covered “basis,” such as race, color, national origin, disability, age, and the like
• Have “apparent merit,” which means that the complaint draws a connection between the adverse action and covered basis
Failure of the complainant to satisfy each of the foregoing requirements, after being provided notice of any deficiencies and afforded time to correct them, will result in dismissal of the complaint for lack of jurisdiction and you will not conduct an investigation. However, even where you conclude you do not have jurisdiction to investigate, you may elect to monitor a particular program or activity to ensure it is operating in compliance with the nondiscrimination requirements of applicable federal civil rights laws.
If jurisdiction exists, then you will investigate the complaint to determine whether prohibited discrimination occurred and, if so, the corrective actions or sanctions that will be imposed.
A special note about “basis”
• Certain civil rights laws apply across-the-board
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 (Title VI) provides that race, color, and national origin are illegal bases of discrimination. Disability is another prohibited basis of discrimination pursuant to Section 504 of 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.
• Additional laws may apply
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 Innovation and Opportunity Act (WIOA) of 2014 prohibits discrimination on the previously-mentioned bases of race, color, national origin, age, disability, and gender. It also contains the following additional prohibited bases of discrimination: religion, political affiliation or belief, citizenship, and WIOA-participant status.
So, when determining whether jurisdiction exists, you first must know the federal civil rights laws that apply to your programs and activities. These laws will, in turn, inform you of the “bases” of discrimination prohibited in the programs and activities. If a complaint alleges discrimination on a basis not set forth in these laws, then you will not have jurisdiction to investigate the complaint. Rather, you may find that the complaint should be referred to another agency or entity, or that a particular type of discrimination is not prohibited by applicable civil rights laws.
For example, the prohibited (covered) bases if discrimination in programs and activities funded using U.S. Department of Education (Education) dollars are race, color, national origin, disability, age, and gender. So, if Education receives a complaint in an Education-funded program alleging discrimination on the basis of political affiliation, Education will not have jurisdiction to investigate the complaint. However, if this same program was funded under WIOA Title I, then political affiliation is a prohibited basis of discrimination under WIOA and, provided all other jurisdictional requirements are met, the WIOA Equal Opportunity Officer would have jurisdiction to investigate the complaint.
What happens when there is “dual” jurisdiction?
Under certain circumstances, you may find that there is “dual jurisdiction” over a complaint. Dual jurisdiction complaints are governed by the federal regulations that apply to operation of the programs and activities at issue. Here, you will need to understand who has primary authority to investigate the complaint, which not only will save time and resources, but also will promote consistent decision-making.
For purposes of this section, we’ll use workforce development programs and activities covered by the nondiscrimination requirements of WIOA Section 188 as the source for our examples, and we’ll assume you are the WIOA Equal Opportunity Officer who receives the discrimination complaint. The regulations addressing dual jurisdiction in these complaints is found at 29 C.F.R. § 37.85.
Let’s say that, through an American Job Network center, John alleges he has been denied entry to an apprenticeship program on the basis of his age. In determining whether you have jurisdiction to investigate this complaint, you see that “age” is one of the covered bases of discrimination under WIOA Section 188. So, assuming all of the other foregoing requirements are met, you would have jurisdiction (authority) to investigate the complaint.
However, 29 C.F.R. § 37.85 requires that this complaint be processed according to the U.S. Department of Health and Human Services (HHS) regulations at 45 C.F.R. § 90.43(c)(3). This regulatory subsection, in turn, requires that you forward the matter for mediation to an agency designated by the HHS Secretary within 45 days of receipt and, if mediation is unsuccessful, then the matter would be returned to you for investigation.
• Employment-related discrimination
Here, let’s say a staff member in a WIOA-funded position files an employment-related discrimination complaint with you. If all other jurisdictional requirements are met, you would have jurisdiction to investigate the complaint alongside the U.S. Equal Employment Opportunity Commission (EEOC). For this dual jurisdiction complaint, under 29 C.F.R. § 37.85, you refer the complaint to the EEOC if: (1) the only allegation in the complaint involves individual employment discrimination; and (2) the basis of the complaint (i.e. race, color, national origin, and the like) is covered by laws enforced by the EEOC. Currently, laws enforced by the EEOC are as follows:
Title VII of the Civil Rights Act of 1964 (Title VII), which makes it illegal to discriminate against a person on the basis of race, color, religion, sex, or national origin
The Pregnancy Discrimination Act, which amended Title VII to make it illegal to discriminate against a woman because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth
The Equal Pay Act of 1963, which makes it illegal to pay different wages to men and women if they perform equal work in the same workplace
Title I of the Americans with Disabilities Act of 1990 (ADA), which makes it illegal to discriminate against a person with a disability in private companies and state and local governments
The Age Discrimination in Employment Act of 1967 (ADEA), which protects people who are age 40 or older from discrimination because of age
Title II of The Genetic Information Nondiscrimination Act of 2008 (GINA), which makes it illegal to discriminate against employees or applicants because of genetic information
If your complaint alleges more than employment discrimination, or the basis of the alleged discrimination is not covered by the EEOC, you would keep jurisdiction of the complaint and conduct the investigation.
• Partners in the one-stop delivery system
Dual jurisdiction also may exist where a complainant alleges discrimination in the delivery of a program or activity that is financially-assisted by a Federal grant-making agency other than the Department of Labor, but which participates as a partner in the one-stop delivery system.
Where the alleged basis of discrimination is prohibited both by WIOA Section 188 and by the other Federal grant-making agency, then dual jurisdiction exists. Here, under 29 C.F.R. § 37.85, you refer the complaint to the Federal grant-making agency for investigation and resolution. Both the complainant and respondent must be notified in writing of the referral.
An example would be allegations that a one-stop career center counsellor denied referral of the complainant to an Education-funded program on the basis of complainant’s gender. Because gender is a prohibited basis of discrimination under WIOA Section 188 as well as by Title IX, which is enforced by Education, there would be dual jurisdiction of the complaint, and it would be referred to Education for investigation and resolution since the program is funded by Education.
On the other hand, if one of the bases of discrimination is prohibited solely by WIOA Section 188, then you have sole jurisdiction (authority) to investigate the complaint, and no referral would be made. The most common bases where you likely would have sole jurisdiction to investigate a complaint are religion, political affiliation, citizenship, or WIOA-participant status.
So, using our previous example, let’s say that the one-stop career center counsellor denied referral of the complainant to an Education-funded program on the basis of complainant’s citizenship. Because citizenship is a prohibited basis of discrimination under WIOA Section 188, but is not a covered basis of discrimination enforced by Education, there is no dual jurisdiction of the complaint, and you would retain the complaint for investigation and resolution.
About Seena Foster
Seena Foster, Principal of Title VI Consulting, assists administrators, equal opportunity professionals, and private sector businesses understand the civil rights laws that apply to their programs, activities, and operations. Her background includes 24 years as Senior Legal Advisor to the Labor Department’s Office of Administrative Law Judges, where she drafted decisions and orders and developed resources and aids promoting consistency and efficiency in several national adjudication programs. In 2012, Ms. Foster received the U.S. Secretary of Labor’s Exceptional Achievement Award “for outstanding leadership and legal guidance in helping the Office of Administrative Law Judges address the major changes in law” stemming from enactment of the Patient Protection and Affordable Care Act.
Ms. Foster also served as a Senior Policy Analyst to the Labor Department’s Civil Rights Center (CRC) where, in 2003, she led a team of specialists to conduct disability-based technical assistance reviews, prepared materials for limited English proficiency compliance reviews, prepared determinations issued by CRC Director Annabelle Lockhart resolving numerous discrimination complaints, and presented at the CRC/NASWA national equal opportunity forum on the Workforce Investment Act Section 188 Disability Checklist. In 2006, Ms. Foster received the Secretary of Labor’s Equal Employment Opportunity Award for her work at the CRC, and, on request by the CRC, Ms. Foster continued to serve as a workshop presenter at subsequent CRC/NASWA equal opportunity conferences conducting workshops on conducting discrimination complaint investigations and writing determinations, and addressing harassment and hostile environment complaints in educational programs and activities.
Currently, Ms. Foster conducts onsite civil rights training for state and local governments as well as private companies focusing on the nondiscriminatory delivery of their programs and activities to the public. Her award-winning book, Civil Rights Investigations under the Workforce Investment Act and other Title VI-Related Laws: From Intake to Final Determination, and her highly popular on-demand webcasts covering compliance and discrimination complaints investigations have been applauded by equal opportunity and compliance professionals for their clarity and content. In addition to multiple state and local training engagements conducted across the country, Ms. Foster also has conducted national level civil rights training for the American Association for Affirmative Action, the U.S. Department of Labor, the National Association of State Workforce Agencies, and at the U.S. Institute for Peace as a panelist at the National Civil Rights Conference hosted by numerous federal civil rights departments and agencies, including the U.S. Department of Justice.
Ms. Foster has a Juris Doctorate from The George Washington University Law School, and she is certified as a mediator through the Defense Equal Opportunity Management Institute. Ms. Foster also is a member of the Human Rights and Discrimination Law committees of the International Bar Association.