Federal civil rights laws prohibit discrimination on a wide variety of bases, including race, color, national origin, religion, disability, age, gender, and so on. But, what types of conduct constitute “adverse actions” that may give rise to a complaint of discrimination?
In federally-funded programs and activities
“Adverse actions” in violation of federal civil rights laws can occur in the delivery of federally-funded programs and activities. This is a less understood area of civil rights, yet the reach of federally- funded programs and activities is far and wide and includes public education, transportation, small business development, fair lending, fair housing, unemployment insurance, workforce development, Medicare, environmental justice, employment referral services, and many others. Here, federally-funded services, benefits, aid, and training must be delivered to members of the public in compliance with nondiscrimination and equal opportunity mandates of applicable civil rights laws.
There are a variety of “adverse actions” that may occur in the delivery of federally-funded programs and activities. Some “adverse actions” are similar to those found in workplace discrimination complaints such as harassment and hostile environment, or refusal to provide religious-based or disability-based reasonable accommodation. We’ll illustrate some “adverse actions” unique to federally-funded programs and activities through use of examples related to Section 188 of the Workforce Innovation and Opportunity Act (WIOA), which governs the delivery of state and local workforce development programs and activities.
WIOA Section 188 mandates nondiscrimination and equal opportunity in the delivery of WIOA Title I-financially assisted aid, training, benefits and services on the bases of race, color, national origin, religion, disability, gender, age, political affiliation or belief, and citizenship among others. For purposes of these examples, we’ll assume that you are the Equal Opportunity Officer for a American Job Network center or a Job Corps Center and, in this capacity, you investigate complaints of discrimination.
√ Denying aid, training, benefits, or services
Steven tells you that he was denied enrollment in an on-the-job training program. At this point, Steven has not alleged a violation of any civil rights laws. However, if Steven says he was denied enrollment in an on-the-job training program because he is black, then he has alleged a violation of civil rights laws. Specifically, Steven asserts an “adverse action” (denial of enrollment in an on-the-job training program) on a prohibited basis (color).
√ Denying access to apply for aid, training, benefits, or services
Maria alleges she was laid-off from her job. She tells you that, when she walked into the American Job Network center, she was not able to apply for unemployment insurance (UI) benefits. So far, Maria has asserted an “adverse action” (denial of access to apply for UI benefits), but she hasn’t asserted a violation of any federal civil rights law. But, if Maria tells you that she is limited English proficient (LEP), and the packet of UI forms were available in English only, then she has alleged a violation of federal civil rights laws. Notably, Maria alleges an “adverse action” (denial of access to apply for UI benefits) on a prohibited basis (national origin-LEP).
√ Providing one person different aid, training, benefits, or services than is provided others
Here, we look at the conduct of an employment referral counselor at your American Job Network center. Widget Company has numerous job openings, and the counselor is referring people to fill these openings. Janet complains that she was referred to a lower-paying position with Widget. Thus, Janet has alleged an “adverse action” (referral to a lower paying job), but she has not alleged a violation of civil rights laws. However, if Janet alleges that she was referred to a lower-paying position with Widget, but men with the same credentials were referred to higher-paying positions, then she has presented an alleged violation of civil rights laws. Namely, Janet asserts an “adverse action” (referral to a lower paying position) on a prohibited basis (gender).
√ Segregating a person, or treating the person separately, with regard to his or her receipt of aid, training, benefits, or services
An example of segregation is where your Job Corps Center offers a computer science course, but requires that “persons with disabilities” attend the course at one classroom location, whereas all other students must attend the course at another classroom location. Thus, there is an “adverse action” (segregation of classes) on a prohibited basis (disability). To the extent feasible, you must provide integrated services, aid, training, and benefits allowing persons with disabilities to participate alongside persons without disabilities.
√ Restricting a person’s enjoyment of any advantage or privilege enjoyed by others receiving any aid, training, benefits, or services
Hostile environment offers an example of restricting a person’s enjoyment of federally-funded programs and activities. Let’s assume that Borek is one of your Job Corps Center students, and he has immigrated to the United States with his family from Iraq. He files a complaint with you alleging that other students call him a “terrorist” in class and in the hallways, they post derogatory material about him on Facebook, and they repeatedly tell him he should “go back to Iraq where he came from.” Here, Borek alleges an “adverse action” (being subjected to a hostile environment) on a prohibited basis (national origin).
√ Treating one person differently from others in determining whether s/he satisfies any admission requirement or condition for aid, training, benefits, or services
Here, let’s assume that Marsha informs you that her application for on-the-job training has been denied by Carol, who works at your American Job Network center. By itself, this denial is an “adverse action,” but it is not a violation of civil rights laws. However, Marsha further tells you that she met the essential eligibility requirements for referral to on-the-job-training, but Carol told Marsha she was concerned about referring her because Marsha had been pregnant five times within the past seven years. Now, a civil rights violation has been alleged. Notably, Marsha asserts an “adverse action” (denial of referral to on-the-job-training) on a prohibited basis (gender-prior pregnancies).
√ Denying or limiting a person with a disability the opportunity to participate in a program or activity
Your American Job Network center offers weekly orientations for any interested members of the public to learn about the services, aid, benefits, and training opportunities offered through the Center. Jake, who is in a wheelchair, tells you that he was unable to attend the orientation earlier this week because it was offered on the second floor of your building and your building does not have an elevator. Here, Jake alleged an “adverse action” (denial of access to the orientation) on a prohibited basis (disability).
√ Determining the site or location of a facility that has the purpose or effect of discriminating on a prohibited basis
State and local officials are in the process of determining where to establish a American Job Network center in a particular city, and decide to place the facility near an affluent neighborhood in one suburb of the city. However, a majority of the city’s population is located on the other, more densely populated side of town. And, the majority of the population is comprised of Hispanics and African-Americans. The minorities in this city generally use public transportation, which is widely-available on the densely populated side of town. The center’s location in the affluent neighborhood is, however, sixteen blocks from the nearest bus stop. Thus, by locating the center in the affluent neighborhood away from public transportation, the center is not readily-accessible by a majority of the city’s population, most of whom are minorities. Here, there are allegations of an “adverse action” (location of the facility in a less populated neighborhood that is not readily-accessible by public transportation) on prohibited bases (national origin and race).
√ Imposing different eligibility criteria on a prohibited basis in the delivery of services, aid, benefits, or training
An example here is James alleges his bid for a contract to provide workforce development services for your city has been denied. This constitutes an “adverse action,” but it does not rise to the level of alleged discrimination. However, if James further asserts that his company was required to secure a higher amount of insurance coverage in order to be awarded the contract because he is Hispanic, and that non-Hispanic-owned bidders were required to demonstrate a lower amount of coverage, then discrimination on a prohibited basis is alleged. James alleges an “adverse action” (imposition of different eligibility criteria in requiring higher coverage) on a prohibited basis (national origin).
In this paper, we’ve discussed only a few types of “adverse actions” that may occur in federally-funded programs and activities. Again, a mere allegation by an individual that s/he suffered an “adverse action” is not sufficient to support a discrimination complaint. But, allegations by an individual that s/he has suffered an “adverse action” on a prohibited basis do support an allegation of civil rights violations.
As the Equal Opportunity professional for your agency or organization, you should make sure staff at the agency or organization understand federal nondiscrimination and equal opportunity laws applicable to your programs and activities as well as the types of “adverse actions” that may lead to a violation of those laws. Moreover, you are obliged to notify beneficiaries and potential beneficiaries of their rights under these laws. It is important to have policies and procedures in place, and to conduct periodic training, so that each person in your agency or organization understands his or her role in the mission of delivering services, aid, benefits, and training to the public without imposing discriminatory criteria. Keep in mind that these nondiscrimination laws cover all aspects of your operations, including outreach and recruitment, registration, counseling and guidance, testing, selection, placement, appointment, referral, training, and promotion and retention.
In the workplace
There are certain “adverse actions” that we typically see in discrimination complaints involving the workplace. These “adverse actions” include the following:
● Termination;
● Non-selection;
● Non-promotion;
● Refusal to provide accommodation or modification;
● Harassment or hostile environment; or
● Receipt of an adverse performance appraisal.
There are countless other types of “adverse actions” that may occur in the workplace:
● Relocation to a smaller and/or less desirable office location;
● Refusal to provide training;
● Denial of access to equipment and/or resources;
● Denial of a security clearance;
● Denial of paid and/or unpaid leave;
● Exclusion from certain meetings; or
● Imposition of dress and/or grooming requirements.
This list is not exhaustive; rather, it is designed to give you an idea of what constitutes an employment-related “adverse action.”
Just as with the delivery of government programs and activities, in the workplace, it is important to remember that an “adverse action,” standing alone, does not give rise to a discrimination complaint under federal civil rights laws. On the other hand, an “adverse action” taken on the basis of race, gender, disability, or the like, does allege a violation of federal civil rights laws.
For example, Michael is blind, and he alleges that his company fired him after he asked for specialized voice-recognition software to assist him in performing certain job duties. Here, Michael has alleged an “adverse action” (termination) on a prohibited basis (disability).
Another example is where Cheri alleges she was denied a security clearance because her supervisor “doesn’t like her.” Here, the “adverse action” is denial of a security clearance, but no civil rights violation has been alleged by Cheri; that is, the fact that her supervisor does not like her is not a prohibited basis of discrimination under federal civil rights laws. On the other hand, if Cheri alleges she was denied a security clearance because she is Hispanic, now she has asserted a violation of civil rights laws; that is, she alleges an “adverse action” (denial of a security clearance) on a prohibited basis (national origin).
If you are an EEO/AA/HR professional for your agency or organization, it is important that you train supervisors and managers regarding their obligations under various federal civil rights laws. And, you will want to convey any additional requirements imposed by state and local human rights laws. Taking an “adverse action” against an employee does not, in and of itself, constitute illegal discrimination. For example, disciplining an employee based on poor work performance or shoddy attendance does not violate civil rights laws. But, a violation of civil rights laws does exist if the “adverse action” is premised on how an employee looks, what religious beliefs s/he holds (or doesn’t hold), the fact that s/he is over 40 years of age, whether the employee comes to work in a wheelchair, or the like.
About Seena Foster
Seena Foster, award-winning civil rights author and Principal of the discrimination consulting firm, Title VI Consulting 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 seena@titleviconsulting.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 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.” Ms. Foster is a mediator, and obtained “Federal Workplace Mediation” certification through the Northern Virginia Mediation Service.
Ms. Foster received her undergraduate degree from Michigan State University, and she has a Juris Doctorate from The George Washington University Law School. She is a member of the Human Rights Institute and Discrimination Law and Human Rights Law Committees of the International Bar Association.