Federal civil rights laws mandate nondiscrimination and equal opportunity in federally-assisted programs and activities and in the workplace. Often, however, achieving the goal of nondiscrimination is easier said than done.
The fact is, we tend to gravitate to people who look, think, and speak like we do. It’s difficult to step outside our zone of comfort to interact with folks who look or speak differently, or who hold “disagreeable” beliefs, views, or thoughts. And, even when we do venture outside our zone of comfort, it is a struggle to consider the other person and the person’s views without trying to mold him or her to conform to our way of thinking, speaking, or looking.
So, in this paper, we’re going to focus our attention on one way we can promote nondiscrimination and equal opportunity. We’ll assume that you are the Equal Opportunity (EO) professional for your organization, and one of your job duties is ensuring nondiscrimination and equal opportunity in your federally-assisted programs and activities, and in your employment practices.
Essential eligibility requirements
Let’s start with federally-assisted programs and activities. Every federally-assisted program and activity has a set of criteria, known as the “essential eligibility requirements,” which must be satisfied by any person seeking to take advantage of the service, aid, training, or benefit offered. This holds true for unemployment insurance, financial aid for college, rental housing assistance, Medicare, or any one of a myriad of other federally-assisted programs and activities.
Keeping a list of these “essential eligibility requirements” in front of you as you process an individual’s application or enrollment, as opposed to focusing on how the person looks, speaks, or thinks, will help ensure that decisions are based on nondiscriminatory criteria. To illustrate this point, let’s say that you are offering a federally-assisted financial aid program, and the essential eligibility requirements for this program are: (1) the applicant must have a household income of $24,500.00 per year or less in the 12 months preceding the date of the application; and (2) the applicant must establish that s/he has been a resident of your state or territory for at least 12 months prior to the date of the application.
For purposes of the exercises that follow, we are not concerned with the amount of the financial aid offered or its purpose—it could be emergency financial assistance for living expenses, or to pursue an education at a college or university, or as down payment assistance for a home or rental unit, or to offset the costs of health care expenses, or any number of other possibilities. Take a look at each of the following scenarios, and make a determination regarding whether the applicant would be entitled to the aid.
● Applicant Marsha Taylor is a middle-aged black woman with four children who has lived in your state for seven years and is trying to provide a better life for her children. She works two jobs and her household income is $25,200.00. She desperately needs the financial aid you offer. What do you do?
Answer: Ms. Taylor does not qualify for this aid. Although she has been a resident of your state for seven years, her household income exceeds the $24,500.00 limit. You may empathize with her difficult circumstances; you are not able to deviate from the “essential eligibility requirements” for this program.
● Applicant Steve Smith is a 28-year-old white male who has been a resident of your state for 13 months. He lives with his mother and their annual household income is $24,400.00. He states he does not believe in the “capitalist way of life.” He has a religious belief that you find objectionable, and you cannot stand his abrasive personality, especially because he talks constantly about how Americans are stupid. What do you do?
Answer: Mr. Smith qualifies for this aid. His household income is less than the $24,500.00 limit, and he has been a resident of your state for 13 months. Even though you find certain aspects of Mr. Smith’s beliefs or lifestyle offensive, he meets the “essential eligibility requirements” for this program.
● Applicant Jose Vargas is a 24-year-old person who is limited English proficient (LEP). Using a language line, you learn that he came to the United States 15 years ago with his parents, is a citizen of the United States, and has lived in your state for two years. He lost his job two months ago and his household income in the year preceding his application was $24,750.00. What do you do?
Answer: Mr. Vargas does not qualify for the aid. Here, Mr. Vargas meets the residency requirement for this program, but his household income exceeds the program’s income limits of $24,500.00. Even though he is unemployed, the “essential eligibility requirements” require that you look at the household income in the immediately preceding 12 month period of time. During that period of time, Mr. Vargas’ household income was $24,750.00.
● Marion Turnball comes to you to apply for financial aid. She has a visual disability, and requests that you assist her in completing her application. You do so and learn that she has lived in your state for three years and her household income is $24,600.00. What do you do?
Answer: In this example, Ms. Turnball meets the residency requirement since she has lived in your state for three years. On the other hand, her household income in the 12 months preceding the date of her application is $24,600.00, which exceeds the program’s limits of $24,500.00. Therefore, she does not meet the “essential eligibility requirements” for this program.
Bona fide occupational requirements
Federal civil rights laws also mandate nondiscrimination in your employment practices. As we’ve already learned, focusing on the “essential eligibility requirements” in federally-assisted programs and activities is one way of ensuring nondiscrimination. In your employment practices, there are similar concepts known as the “bona fide occupational requirements” and “essential job duties.” For the workplace, you’ll keep this list of actual, business-related requirements and job duties in front of you as you make decisions in your hiring, recruitment, termination, promotion, selection, and other practices.
It is illegal to pass over an individual who meets the “bona fide occupational requirements” for a job, promotion, or the like, because the person has a prosthetic limb, or because you don’t like the color of the person’s skin, how the person speaks or dresses, or the religious beliefs held by the person. To the contrary, employment decisions should be based on whether a person meets your list of bona fide occupational requirements and can perform the essential duties of the job. And, for each person who does meet these requirements, or who cannot perform the duties, your ultimate decision should be based on a legitimate comparison of his or her credentials with the credentials of other persons.
Let’s put these concepts into practice. Assume that there are certain positions in your company that require a high-level security clearance. You accept applications for the security clearance only when there is an opening in one of these positions. The person selected for the security clearance will get a significant bonus, and will be promoted in rank at the company. Let’s say, prior to applying to obtain the security clearance, the employee must demonstrate that s/he: (1) has a credit rating of 750 or higher with no history of bankruptcies, (2) has been employed with your company for at least 10 years at the time of application for the security clearance, and (3) has received outstanding job performance appraisals for each of the last ten years. Four employees express an interest in applying for the security clearance:
● Amanda Wilson has a reputation as one of the most devoted and hardest workers at your company. Her credit rating is 810 and, within the next two months, she will have 10 years of service with your company. She has never filed for bankruptcy. She has consistently received outstanding job performance appraisals for each of the past nine years, and is expected to receive an outstanding appraisal after completion of her 10th year in the next two months. In fact, her supervisors have praised her ability to go above and beyond that expected of her to offer innovative and effective solutions to problems. What do you do?
Answer: With a score of 810, Ms. Wilson clearly exceeds your requirement of a credit score of 750. Moreover, Ms. Wilson has never filed for bankruptcy. The problem is, however, Ms. Wilson does not have 10 years of employment with your company. You know that she has received outstanding performance appraisals for each of the past nine years with your company and her supervisor assures you that she will receive an outstanding performance appraisal in her 10th year with the company, which occurs at the end of only two more months. Nonetheless, at the time her application was filed, Ms. Wilson did not meet the 10 years of service requirement such that you cannot permit her to apply for the security clearance at this time.
● Khalid Al-Sharawah has worked for your company for 15 years. He came from Iraq, and he obtained his U.S. citizenship two years ago. He has received outstanding job performance appraisals for each of the last ten years. He practices a certain religious faith and, in the beginning of his employment with the company, you received complaints that he made derogatory comments about women and people of other religious faiths at work. You counseled him that this is unacceptable behavior and, in the past several years, you stopped receiving complaints. His credit score is 752, and he has not filed for bankruptcy in the past. What do you do?
Answer: Mr. Al-Sharawah meets the years of service requirement and has received outstanding performance appraisals for each of the past ten years. He has never filed for bankruptcy, and his credit score of 752 exceeds the required score of 750. Although you may disagree with Mr. Al-Sharawah’s beliefs and views, he is entitled to apply for the security clearance.
● Joe Thompson has been with your company for 13 years. His credit score is 812. He tells you that he did file for bankruptcy when he was younger (six years ago) because of unexpected medical expenses incurred by his daughter who suffered from cancer. He is known in your company as being very loyal and a hard worker. He has received outstanding performance appraisals for each of the past ten years. What do you do?
Answer: Mr. Thompson is one of the most pleasant people you have encountered. He meets the service requirements, and has received outstanding performance appraisals for each of the past ten years. His credit score is the highest of any of the applicants at 812. However, he has filed bankruptcy in the past. Under these circumstances, Mr. Thompson would not be permitted to apply for the security clearance.
● Tamara Wake has been with your company for 10 years. Her credit score is 801. She has never declared bankruptcy. In the first year of her employment with your company, she received a rating of “incompetent” by her supervisor. She filed a discrimination complaint and, on investigation, it was determined that the supervisor gave Ms. Wake the adverse appraisal because she is black and he did not agree with hiring “coloreds.” The performance appraisal was revised to reflect “outstanding” job performance. And, in the nine years since that time, Ms. Wake received outstanding performance appraisals by a different supervisor. What do you do?
Answer: Here, Ms. Wake meets the 10 year service requirement and she has an excellent credit score of 801. Moreover, she has never filed for bankruptcy. Turning to the performance appraisals, you note that, because her first performance appraisal was amended to reflect an outstanding rating, she meets the requirement of receiving outstanding performance appraisals for each of the past ten years. As a result, Ms. Wake is permitted to apply for the security clearance.
In the end, we see how important the stated requirements for employment practices, such as applying for a security clearance, are in an organization’s decision-making process. Focusing on these requirements as opposed to personal, subjective criteria will enable you to avoid engaging in discriminatory conduct. Indeed, these requirements offer the objective measure of an applicant’s ability, or inability, to qualify for whatever you are offering. It is important to have established policies and procedures that you apply evenly to all individuals.
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 workforce development 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 email@example.com, or visit her web site at www.titleviconsulting.com for additional information regarding the services and resources she offers.
By way of background, 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 (WIA)(amended by the Workforce Innovation and Opportunity 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.” Ms. Foster has a “Federal Workplace Mediation” certification through the Northern Virginia Mediation Service.
She is a member of the Human Rights Institute and Discrimination Law and Human Rights Law Committees of the International Bar Association. Ms. Foster received her undergraduate degree from Michigan State University, and she has a Juris Doctorate from The George Washington University Law School.