Drafting Discrimination Complaint Determinations: Understanding the Basics (Basic Track—Parts I and II)

1. Drafting Discrimination Complaint Determinations:Understanding the Basics(Basic Track—Parts I and II) 2011 Seena Foster, JD seenafoster@aol.com

2. Building blocks • Step 1: Determining the presence of “jurisdiction” to consider a discrimination complaint; • Step 2: Developing a complaint investigation plan (CIP); • Step 3: Framing the issues and issuing the letter of acceptance; • Step 4: Developing interrogatories; • Step 5: Gathering and analyzing information; and • Step 6: Writing the notice of final action. Each step in this process depends on the correctness of the preceding step.

3. What we want to achieve • Consistency • Efficiency • Accuracy

4. Tools • References • Statutes and regulations; • Slide presentation; and • Workshop exercises. • Templates • Jurisdiction checklist; • Sample complaint investigation plans; • “No jurisdiction” templates; • “Notice of Acceptance” template; and • A “Notice of Final Action” template.

5. Complaints

6. Three types of complaints • Individual; or • Class action (must be accompanied by written consent of individuals); or • Third party (must be accompanied by written consent of individuals).

7. Step 1: Establishing Jurisdiction

8. “Technical” requirements • Each technical requirement must be met: • The complaint must be in writing; • The Charging Party’s (CP’s) name, address, or other contact information must be stated; • The Respondent must be identified; and • The complaint must be signed by the CP or his/her representative. • Failure to establish any one of these requirements, even after giving the CP an opportunity to do so, compels a finding of no jurisdiction.

9. “Substantive” requirements • You have established that each of the “technical” requirements were met. • Each of the following “substantive” requirements must also be met: • The Respondent is a “recipient” under the applicable laws, i.e. a recipient of federal funds or operating programs, services or training under WIA, etc…; • The complaint has “apparent merit”—i.e., alleges an “adverse action” stemming from a covered “basis” of discrimination, i.e. race, gender, religion . . .; and • The complaint is filed within 180 days of the date of the discriminatory act (timeliness).

10. Jane Doe Problem Using the “jurisdiction” checklist

11. Your options • If you do not find that you have jurisdiction to investigate a discrimination complaint, then you notify the parties: • Untimeliness; and • All grounds except untimeliness. • If you find that you do have jurisdiction to investigate the complaint, you will issue a “Notice of Acceptance.”

12. No jurisdiction:What does this mean? • There is no further investigation of the complaint. • You have determined, after providing the CP an opportunity to clarify, that: • One of the “technical” requirements was not met; or • One of the “substantive” requirements was not met: • The complaint was NOT timely filed; or • The Respondent is NOT a “recipient” under the applicable laws; or • The complaint does not have “apparent merit.”

13. The “no jurisdiction” determination • The CP must be informed in writing. • What is the basis for your decision? • A “technical” requirement was not met. • Respondent not a recipient? • No “apparent merit”? • Complaint not timely? • Use clear, concise language. • Advise the CP of any further rights. • If appropriate, direct the CP to another agency for assistance.

14. Referral to another agency-an example You allege that a private employer, Liberty Tax Service, terminated only women, including you, when it downsized. Your allegations of gender-based discrimination have been forwarded to the U.S. Equal Employment Opportunity Commission, which investigates matters of alleged discrimination against private employers. Our office does not have authority to investigate this matter because this company is not a U.S. Department of Labor “recipient” as defined by the regulations at 20 C.F.R. Part 37.

15. Review rights Any notice of final action, including the rejection of a complaint for lack of jurisdiction, must contain a notice to the CP of his or her right to file a complaint with the Director of the Civil Rights Center. Sample notice: If you are dissatisfied with this Notice of Final Action, you may file a complaint with the Civil Rights Center, U.S. Department of Labor, 200 Constitution Avenue, Washington, DC 20210. The complaint must be filed within 30 days of the date on which you received this Notice.

16. Complaint “untimely”-Special notice to the parties • Importantly, if you find that a complaint of discrimination is untimely, you must advise the CP that s/he may obtain a waiver from the Director of the Civil Rights Center. • Sample notice: Your complaint has been found untimely because it was not filed within 180 days of the alleged act of discrimination. However, you may request a waiver of the 180 day time limit for filing a complaint by demonstrating “good cause.” Any request for waiver must be submitted in writing to the Director of the Civil Rights Center, U.S. Department of Labor, 200 Constitution Avenue, Washington, DC 20210. The Director of the Civil Rights Center has the sole discretion to grant or deny a request for waiver.

17. Jurisdiction established • Technical component of federal requirements for the complaint are met; AND • Substantive component of federal requirements are met.

18. The investigation begins

19. Starting the investigation • A complaint investigation plan (CIP) must be developed; • Issues must be carefully framed for the parties; • Interrogatories must be developed; and • A written notice of acceptance of the complaint must be sent to all parties.

20. Step 2: The Complaint Investigation Plan (CIP)

21. Sample Templates In your packet of templates, you will find sample complaint investigation plans for each of the following legal theories: • Disparate treatment; • Reasonable accommodation; and • Reasonable modification.

22. Importance of the Complaint Investigation Plan • Central to a sound investigation and well-reasoned decision • Your roadmap during the investigation to make sure that you are thorough and remain focused on the issues • Requires identification and development of the following: • “Issues” and “basis” of the complaint; • Legal theory; • Elements of proof; • Information/data on file; and • Whether further information is needed and the source(s) of that information.

23. Main Components Knowing the following will enable you to determine the parties burdens in a particular complaint: • Basis; • Issue; and • Legal theory. Failure to correctly determine these components of the discrimination complaint will hinder your investigation.

24. Basis • Under this section of the complaint investigation plan (CIP), you identify the “basis” of alleged discrimination. • “Basis” under the federal statutes include: • Title VI of the Civil Rights Act of 1964 — race, color, national origin; • Section 504 of the Rehabilitation Act and the Americans with Disabilities Act (as amended by the American With Disabilities Act Amendments of 2011 or “ADAA”)— disability; • the Workforce Investment Act — race, color, national origin, sex, religion, disability, political affiliation or belief, citizenship, age, WIA participant status; • The Age Discrimination Act of 1975 – age; and • Title IX — sex, sexual harassment. • There is a “basis” under any of the foregoing statutes if the CP alleges retaliation or intimidation.

25. Issue • Identify the “issue” of discrimination set forth in the complaint. • Some examples are: • Denial of enrollment; • Denial of testing; • Denial of training; • Denial of access; • Denial of promotion; • Termination; or • Denial of accommodation.

26. Legal Theory • What is the “legal theory” under which the complaint will be investigated? • This determines the course of the investigation, including how you frame the issues and what questions you ask of the parties • It is very important that you get this right.

27. Three types of legal theories • Disparate treatment; • Disparate impact; • Reasonable accommodation or reasonable modification.

28. Elements of proof:Disparate Treatment • Is the CP is a member of a protected group (i.e. race, national origin, gender, and the like)? • Was the CP qualified for the job at issue, or did the CP meet the essential eligibility requirements for the benefits, services, aid, or training at issue? • Did the CP suffer an “adverse action” by the Respondent (i.e. denial of enrollment in a training program, or termination from employment)? • Was an individual, or group of individuals not of the CP’s protected group granted the job/benefits/training/services/ aid that the CP was denied? • Did the Respondent offer legitimate, nondiscriminatory reasons for the “adverse action”? • If reasons were offered by the Respondent, did the CP demonstrate that these reasons were pre-textual (i.e. false, inaccurate, or the like)?

29. Elements of Proof forReasonable Accommodation/Modification • Is the CP an “individual with a disability”? Here you look at whether the disability limits the CP in performing a “major life activity.” Or, in the case of reasonable modification, does the CP have a bona fide religious belief or practice? • Is the CP a “qualified” individual with a disability? In other words, does the CP meet the job qualifications or the essential eligibility requirements for the benefits, services, aid, or training regardless of the disability? Or, in the case of reasonable modification for religious practice, does the CP meet the qualifications or essential eligibility requirements regardless of his/her religion? • Did the CP request accommodation/modification in writing? • Did the Respondent fail/refuse to provide “reasonable” accommodation/modification despite a legal obligation to provide same, or did the Respondent offer accommodation that was refused by the CP?

30. Elements of Prooffor Disparate Impact • A policy, practice, or procedure utilized by Respondent appears neutral on its face, but, in actuality, it has an adverse impact on persons of the CP’s protected class. • The burden shifts to Respondent to demonstrate “business necessity” for the practice or policy. • The CP has an opportunity to rebut Respondent’s proffer of “business necessity” by demonstrating other means available to achieve the same objective with less discriminatory impact.

31. Practice exerciseson determining the proper issue, basis, and legal theory

32. Step 3: Framing the issues for the parties

33. Framing the issues:Key crossroadsin the investigation • If the issues are framed incorrectly at this stage, the investigation will be taken off course and be a complete waste of time. • FOCUSED, TIGHT, SPECIFIC.

34. How to frame the issue:Learning the formula • Focus on who, what, when, and where. • We are not yet concerned with the howand why of things—that will come with the investigation as it unfolds.

35. Formula for Disparate Treatment • Whether, on (date of alleged adverse act), the CP’s (request/application/bid/proposal/ access) for (specific service/aid/training/ benefits/job) was denied by Respondent on the basis of the CP’s (identify the basis) (i.e.identify the specific basis). • Example: Whether, on August 20, 2011, the CP’s application for unemployment insurance benefits was denied by Respondent on the basis of the CP’s race (i.e. black).

36. Formula for Reasonable Accommodation/Modification • Whether, on (date of alleged adverse act), the CP was denied “reasonable (accommodation/modification)” by Respondent to (provide/allow) the CP (to/access to) (identify specific issue) on the basis of the CP’s (disability/religion) (i.e.identify the specific basis). • Example 1 (disability-based): Whether, on August 20, 2011, the CP was denied “reasonable accommodation” by Respondent to allow the CP access to apply for unemployment insurance benefits on the basis of the CP’s disability (i.e. hearing impairment); or • Example 2 (religion-based): Whether, on August 20, 2011, the CP was denied “reasonable modification” by Respondent to work a compressed schedule each week of ten hours a day from Monday through Thursday on the basis of the CP’s religion (i.e. Islam).

37. Practice exercises on how to properly frame issues

38. Step 4: Drafting interrogatories

39. Visualize information needed • Using the CIP, you will develop interrogatories for each of the parties. • Your interrogatories will depend on the “legal theory” of the complaint. • Think about the CP’s allegations and what initial information you will need from both parties to discern what happened.

40. Step 5: Letter of Acceptance

41. Overview • At this point you have: (1) jurisdiction to investigate this complaint; (2) developed a complaint investigation plan based on the legal theory of the complaint; (3) framed the issues for the parties; and (4) developed a set of interrogatories for each party. • Now, you must prepare the letter of acceptance. Look at the template for suggested structure.

42. Purpose of the letter • Notification must be sent to all entities that may be found jointly and severally liable; • The letter must set forth the CP’s due process rights; and • Interrogatories (seeking additional information) may be attached to the letter. These questions should be developed based on information identified as needed in your complaint investigation plan (CIP).

43. Content of the letter • Include a statement of the allegations: • Be specific regarding the alleged actions; • Include the time period involved; and • State the specific organizational unit and/or position title of the individual alleged to have discriminated against the CP. • Provide a specific due date of Respondent’s position statement. • Set forth a specific due date for the CP to reply to the Respondent’s position statement.

44. Mediation • Let the parties know about this opportunity in the letter of acceptance. • If the allegation is a denial of access to apply for a service, benefit, aid, training, or job, then mediation may be very useful. “Access” is not always related to disability. For example, a person with LEP cannot read the form that must be completed for UI benefits. This is a disparate treatment complaint based on national origin, not disability.

45. Step 5: Gathering and analyzing the information

46. Basic burdens of the parties in a “disparate treatment” complaint • The CP must demonstrate a prima facie case of discrimination: (1) the CP is a member of a protected class; (2) the CP either sought to enroll/apply (or enrolled/applied) for a service, benefit, aid, training, or job; and (3) Respondent denied the CP access to enroll/apply, or denied the enrollment/application. • The burden shifts to Respondent to present legitimate, nondiscriminatory reasons for its conduct such as demonstrating that the CP was not qualified or did not meet the essential eligibility requirements for the service, benefit, aid, training, or job at issue. • The burden shifts back to the CP to demonstrate that the Respondent’s proffered reasons are pretextual and that the actual reason for Respondent’s conduct stemmed from discrimination on a prohibited basis.

47. Interviewing the parties • Listen actively and without agreeing or disagreeing with what is said. • Do not prejudge the complaint either way during this stage of the investigation. • Just take notes, gather any relevant documentation and names of witnesses, get clarification of the person’s version of the events.

48. Start with the CP • The first interview should be with the CP—s/he filed the complaint and carries the burden of persuading you that prohibited discrimination took place. • Start with an open, non-judging question like, “Explain to me in detail what occurred on January 3.”

49. Take notes • Take notes as the CP explains his/her version of events including the names of all people directly involved and the names of any witnesses. • With a list of “essential eligibility requirements” or job requirements in hand, ask the CP to describe how s/he meets the requirements or is qualified. Again, DO NOT offer any judgment in the form of agreement or disagreement; merely take notes. • Ask the CP how s/he would like the complaint resolved. • At no point during this interview, should you tell the CP that s/he does or does not have a case. This type of determination must be made in writing after completion of the entire investigation.

50. Move to the Respondent and witnesses • To keep the investigation focused, start the interview with something like, “As you may be aware, I received a complaint from Jane Smith alleging gender-based discrimination in the employment referral process. Would you describe in detail what occurred with regard to providing an employment referral for Ms. Smith on January 3?” • Ask Respondent to explain its employment referral process in general. Collect any written policies, procedures, or other criteria used by Respondent in processing applications for employment referrals. • To the extent the policies/procedures/criteria were not followed with regard to Ms. Smith, ask Respondent to explain why.