Nondiscrimination: Why & How

1. Title 6 101: Nondiscrimination Why & How Presented by: Erin L. Hall, Attorney & Title VI & ADA Program Manager INDOT Legal Division (317) 234-6142 Accessforall@indot.in.gov

2. “No person in the United States shall on the grounds of race, color, or national origin be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” (42 U.S.C. 2000d) Title VI of the Civil Rights Act of 1964

3. Nondiscrimination Requirements NOW include: • Race • Color • National Origin • Disability • Sex • Sexual Orientation • Gender Identity • Age • Low Income Status • Limited English Proficiency • Status as a Veteran (in Indiana)

4. To eliminate discrimination in federally funded programs and activities. To ensure equitable distribution of public funds for public benefit. EVERYONE PAYS = EVERYONE PLAYS Title VI is for everyone ! Because the Purpose of Title VI is:

5. “With Liberty & Justice For ALL” As President John F. Kennedy said in 1963: “ Simple justice requires that public funds, to which all taxpayers of all races [colors, and national origins] contribute, not be spent in any fashion which encourages, entrenches, subsidizes or results in … discrimination.”

6. JUSTICE • Determining rights according to equity • Impartial adjustment of conflicting interests • Right action • Conformity with truth and reason • Taking the merited response • Correct response • Objective • Conscientious • Honorable • Exactly, precisely and just right

7. WHAT is your WHY? I missed the meeting. I went to the meeting… I’ve never really thought about it… It’s my job? What might happen if you truly believe you are doing the right things for the right reasonswith the right people at the right time?

8. Know your WHY: We can show you how. • We will cover the requirements for compliance; • We will provide resources including templates, tools and technical training; • We will connect you to a network of others responsible for doing this good work; • We will monitor your efforts to make sure you are meeting minimum requirements ; BUT, only YOU can succeed in eliminating discrimination in your community.

9. Let me rephrase that: YOU can succeed at eliminating discrimination in your community!

10. How can you succeed: • Become familiar with the requirements • Build a team • Evaluate your programs • Address risks and discrimination • Implement our resources • Train your staff about your policies & programs • Engage the community, locally and across the region • Do the right thing for the right reason at the right time • Inspire others • Document what you do – leave a map and a compass for the next in line.

11. WHY? Doing the right thing is right But it will also take you places. This is opportunity work…not the short stick.

12. How: • Know the requirements. • Know the law • Know the rules • Demonstrate Good Faith Efforts . • Identify your deficiencies • Address them • Set your trajectory at Justice. • Meeting minimums doesn’t work • At the end of the day, you are responsible for your work

13. “No person in the United States shall on the grounds of race, color, or national origin be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” (42 U.S.C. 2000d) Title VI of the Civil Rights Act of 1964

14. Clarified and restored the intent of Title VI. The scope of Title VI includes ALL programs and activities of Federal-aid recipients and contractors regardless if the programs are federally funded or not. Civil Rights Restoration Act of 1987

15. Includes other civil rights provisions of federal statutes and related authorities that prohibit discrimination in programs receiving federal financial assistance. (23 CFR 200.5(p)) Prohibits discrimination based on race, color, national origin, disability, sex, age, low income status or limited English proficiency in programs and activities receiving federal financial assistance regardless of whether those programs and activities are FHWA funded or not. FHWA Title VI Program

16. The Indiana Department of Transportation will implement compliance with Title VI of the Civil Rights Act of 1964 (Title VI); 49 CFR § 26; and related statutes and regulations to ensure that no person is excluded from participation in, denied the benefits of, or subjected to discrimination under any program or activity receiving federal financial assistance from the U.S. Department of Transportation (DOT) on the grounds of religion, race, color, national origin, disability, sex, sexual orientation, gender identity, age, low income status or limited English proficiency . INDOT’s Title VI Mission Statement

17. As a condition of receiving Federal Funds, INDOT (and ALL recipients & subrecipients of those funds) must sign Assurances of Nondiscrimination. Create a contractual obligation Require programmatic compliance: DO’s & Dont’s Contain appendices that MUST be included in certain kids of agreements so that the contractual obligation follows the money to further subrecipients. INDOT’s Title VI Assurances: http://www.in.gov/indot/files/DBWI_TitleVIAssurances.pdf Assurances of Nondiscrimination:

18. Understand your Title VI Responsibilities: FIRST STEPS: • Designate a Title VI Manager • Develop, Post & Implement a Title VI policy • Implement a Complaint Policy • Adhere to the signed Assurances of Nondiscrimination & include the appropriate appendices in your agreements where applicable • Identify your team

19. Understand your Title VI Responsibilities: ONGOING: • Evaluate the following for discrimination: • Programs / facilities • Activities • Ensure Programmatic Implementation throughout your agency • Disseminate Title VI information to beneficiaries & stakeholders: Include Title VI in your Public Involvement Plan • Monitor Subrecipients for Compliance – if applicable • Develop, Post & Implement your annual program documents: • Title VI Implementation Plan, and • Annual Goals & Accomplishments Report

20. Programmatic Implementation: • Identify areas with potential for discrimination • Determine what data collection and analysis is necessary to look for discriminatory practices & impacts • Select subject matter experts who can obtain, gather & assist in analyzing this data • Train these individuals and any other program area representatives who will interact with the data / information being analyzed in Title VI requirements • Work as a team to set goals and develop a plan for Title VI analysis in that program area

21. Program Evaluation: • Develop and implement procedures for the collection of statistical data (race, color, national origin, sex, disability, and age) of participants in and beneficiaries of your agency’s programs. • Work with your liaisons, Program Area Representatives, or other Title VI team members to analyze data and information collected and • Make adjustments to programs as necessary to reduce discriminatory impacts, • Document your efforts.

22. Analyzing your programs for discrimination: Is there Potential for Discrimination or the appearance thereof?

23. Executive Order 13166 requires federal-aid recipients to take reasonable steps to ensure meaningful access to their services to Limited English Proficiency persons. Safe Harbor: 5% or 1000 people & 4 factor analysis: > number LEP persons encountered, > need for assistance Frequency of contact with LEP persons Importance of program or service provided (warning signs) Available resources (reasonable test) Limited English Proficiency (LEP)

24. Oral interpretation Bilingual staff Telephone interpreters Written language services Use of community volunteers Language cards Use of universal signs, symbols and pictures What are Language Services?

25. Environmental Justice Executive Order 12898 Requires all federal agencies to make Environmental Justice (“EJ”) part of their mission by identifying and addressing the effects of all programs, policies, and activities on minority and low-income populations.

26. Environmental Justice • EJ applies to all transportation decisions, including: • Policy making • System planning • MPO and statewide planning • Preliminary review under NEPA • Preliminary design • Final design engineering • Right-of-way • Construction • Operations and maintenance

27. EJ Requirements • Make a meaningful effort to involve minorities and low income populations in the decision making process. • Evaluate the nature, extent and incidence of probable, favorable and adverse human health or environmental impacts on protected populations. • Incorporate EJ considerations throughout the project development process.

28. Terms of Art • Recipient Anyone to whom federal financial assistance is extended, directly or through another recipient for any program. 23 CFR 200.5(n) Subrecipients may include Metropolitan Planning Organizations (MPOs), Local Public Agencies (LPAs), universities, contractors, consultants and any other recipients of Federal-aid highway funds. $ JUST ONE DOLLAR $ = RECIPIENT

29. Terms of Art • Beneficiary Anyone who benefits from a program or facility developed by recipients (e.g. “public”) $ TAX DOLLARS FROM EVERYONE $ = Equal Opportunity for Everyone

30. A Visual: Think of Title VI as a Large Umbrella broadly covering ALL programs:

31. Title VI planning in a Nutshell: Let’s reflect on what we’ve covered: Report: Outcomes Evaluations changes Inform & Involve Public awareness Website & publication Training staff, subrecipients Document EVERYTHING Keep INDOT informed!!! Identify • People who will work with you • Programs that have implications • Data that needs collected & analyzed • Accomplishments Develop • Policies, procedures & plans • Objectives for your Title VI plan • Specific Annual Goals Gather & Analyze • Data • information

32. Consequences of Noncompliance • Withholding of payments on the contract until the sub recipient complies, and • Cancellation, termination or suspension of the contract in whole or in part, or • Other authorized action including provisions under state and local law (e.g. referral to INDOT Prequalification Committee or the U.S. Department of Justice)

33. Where to begin?

34. Where to Begin? Start at the very beginning… 1st Title VI Implementation Plan can be a “plan for the plan”. • Who? • Title VI Coordinator • Others? • What? • Programs? • Policies? • Data? • Public Involvement? • When? • In one year, what can you REASONABLY do? • Define goals & action steps – put these in your Initial Goals & Accomplishments Report

35. Considerations: Start at the very beginning… 1st Title VI Implementation Plan can be a “plan for the plan”… BUT … • Call it your “Title VI Implementation Plan” • Include all elements, using placeholders as necessary • Where “placeholders” are used, cross reference your goals where you have a specific plan & timeframe established.

36. Managing Expectations: YEAR ONE • Designate your Title VI Coordinator BY NAME, even if it is just on an interim or initial basis • Develop & implement your nondiscrimination policy. • Attend training • Develop and implement your complaint policy & procedures

37. Managing Expectations: YEAR TWO • Identify at least one program you can evaluate for risks: • Public involvement / meetings practices? • Maintenance? • Train your employees • INDOT has a template power point! • Keep records • Begin collecting LEP data

38. Ongoing Expectations: You must demonstrate ongoing REASONABLE GOOD FAITH EFFORTS • This requires reasonable progress over time • Title VI = CIVIL RIGHTS • The work you do will mitigate risks • It is up to you to provide groundwork & records… “A recipe for success” that your successors can run with.

39. Demonstrating Good Faith Efforts: Where deficiencies remain, you must prepare an ACTION PLAN addressing each deficiency: • Acknowledge the deficiency exists • Agree to address the deficiency • Establish a plan (when, how, who, what) • Define the annual goal for the deficency: What will you do this year to address that deficiency?

40. So – To meet expectations you must: Be fully in compliance by : • meeting all the requirements and • providing your Title VI Implementation Plan and Annual Goals & Accomplishments Report to INDOT when you update it. OR • Be able to demonstrate reasonable good faith efforts toward compliance and • submit an action plan to INDOT, providing regular updates as you achieve program goals and remove deficiencies.

41. The Title VI Program Checklist: Your records can demonstrate that: • You have a Title VI Coordinator who has received training from INDOT within the past 2-3 years. • You have a Title VI Implementation Plan that includes: • A Complaint Policy, Form & Log, • A Nondiscrimination Policy, • Organizational charts that ID your program areas & relevant staff, • Signed Assurances of Nondiscrimination, • Public Involvement opportunities, • Subrecipient monitoring if applicable, or a statement of N/A • LEP & EJ considerations, and • discusses how you evaluate your programs and train your staff • You have an annual goals and accomplishments report discussing outcomes and improvements with actual data.

42. Technical Assistance INDOT has a redesigned website: • Subrecipient Technical Assistance Tool • Templates & Training Materials • Law & Policy • Training Opportunities • Regional Meetings *NEW* for 2017 • Virtual Office Hours http://www.in.gov/indot/3591.htm accessforall@indot.in.gov

43. Technical Assistance: ADA / Title VI Coordinator’s Association INDOT LPA Division: http://www.in.gov/indot/2390.htm • Community Crossings Matching Grants • Common Paths Sidewalks Program • Notice of Funding Opportunity (NOFA) Page • Stellar Communities For more information: LPAQuestions@indot.in.gov

44. We are here to help! Erin L. Hall Attorney, INDOT Title VI & ADA Program Manager (317) 234-6142 Kimberly Radcliff Subrecipient Compliance Manager (317) 232-0924 accessforall@indot.in.gov