Drafting Discrimination Complaint Determinations Presenter: Seena Foster ([email protected])

Drafting Discrimination Complaint Determinations

Presenter: Seena Foster ([email protected])

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Building blocks

• How to determine the presence of “jurisdiction” to consider a discrimination complaint;

• If jurisdiction is present, how to properly frame the issues for investigation and resolution; and

• How to write a well-reasoned, well-documented final determination resolving the complaint of discrimination.

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What we want to achieve

• Consistency

• Efficiency

• Accuracy

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Tools

• The July 2007 Desk Reference for Conducting Discrimination Complaint Investigations; and

• Templates– No jurisdiction on all grounds except untimeliness;– No jurisdiction because complaint untimely;– Letter of acceptance; and– Final determination.

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Complaints

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Types of complaints

Three main categories:

– Individual;– Class action (must be accompanied by written

consent of individuals); and– Third party (must be accompanied by written

consent of individuals).

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Basic federal requirements

• The technical component:– 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.

• The jurisdictional component--the complaint must contain allegations that sufficiently describe:– coverage (“basis”) under the applicable law;– timeliness; and– “apparent” merit.

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Basic federal requirements continued--

Jurisdictional component

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Our initial review

• The complaint comports with the technical component of the basic federal requirements.

• Jurisdiction is established if:– 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.

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Complaint “untimely”-- waiver

• 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.

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Jurisdiction-not established

• There is no further investigation. You have determined, after providing the CP an opportunity to clarify, that:

– The complaint was NOT timely filed (and a waiver for the late filing is not granted by the Director of the CRC; or

– The Respondent is NOT a “recipient” under the applicable laws; or

– The complaint does not have “apparent merit.”

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Determination letter—No jurisdiction

• The CP must be informed in writing.• What is the basis for your decision?

– 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.

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Lack of jurisdiction-referral

The CP alleges that her private employer, Liberty Tax Service, terminated only women 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.”

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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.

Suggested language: 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.

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Jurisdiction established

• Technical component of federal requirements for the complaint are met; AND

• Jurisdictional component of federal requirements are met.

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The investigation

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Starting the investigation

• A Complaint Investigation Plan (CIP) must be developed; and

• A written notice of acceptance of the complaint (along with interrogatories where appropriate) must be sent to all parties requiring notification.

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Complaint Investigation Plan (CIP)

• Central to a sound investigation and well-reasoned decision

• Your roadmap during the investigation to make sure that you are thorough

• 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.

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Issues

• Identify the “issues” of discrimination set forth in the complaint.

• Some examples are:– Denial of enrollment;– Testing;– Training;– Hiring;– Denial of promotion;– Termination; or– Denial of access/accommodation.

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Basis

• Under this section of the CIP, you identify the “basis” of alleged discrimination.

• “Basis” under the federal statutes are as follows:– 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— disability; – Section 188 of the Workforce Investment Act— race, color,

national origin, sex, religion, disability, political affiliation or belief, citizenship, age, WIA participant status; and

– Title IX— sex, sexual harassment.

• There is a “basis” under all of the foregoing statutes if the CP alleges retaliation or intimidation.

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Legal Theory

• We have identified the “issues” (denial of access to apply for UI benefits) and “basis” (disability) for the complaint.

• What is the “legal theory” under which the complaint will be investigated?

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Three types of legal theories

• Disparate treatment– Treating one person differently because of his/her race, sex, age, religion, etc…– Course of investigation: compare treatment of CP against treatment of other

similarly situated individuals.

• Disparate impact– A “decision-making process” that is neutral on its face, but has an adverse

impact on a particular group of individuals– Course of investigation: use statistical evidence to make comparisons in

treatment between groups.

• Failure to provide reasonable accommodation– Applies when there is a “legal obligation” to provide a qualified individual (based

on disability or religion) with a reasonable accommodation– Course of investigation: review of legal obligations of Respondent and whether

CP is a “qualified individual with a disability” or has a bona fide restriction based on religion. Failure to accommodate a qualified individual with a disability or bona fide religious restriction results in finding of disability-based discrimination.

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Elements of proof

• We have identified issues, basis, and legal theory. What are the elements of proof?

• Allocation of burdens:– CP must demonstrate a prima facie case of discrimination;– If the CP’s prima facie case is established, then the burden shifts

to the Respondent to articulate legitimate, non-discriminatory reasons for its conduct; and

– We must determine whether the CP has demonstrated that the Respondent’s proffered reasons are pretextual; and

– If pretext is demonstrated, then the CP prevails. If there is no pretext, the CP loses.

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Reasonable accommodation(burden of the CP)

• Is the CP an “individual with a disability”?

• Is the CP a “qualified” individual with a disability?

• 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?

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Comparison of positions

• CP’s position statement/affidavit/com-plaint

• Supporting documentation provided by the CP

• Witnesses identified by the CP and their knowledge of events

• Respondent’s position statement/affidavits

• Respondent’s written/actual policies and procedures

• Respondent’s written/actual criteria

• Witnesses identified by the Respondent and their knowledge of events

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Letter of acceptance

• Again, we have found that the CP’s complaint complies with federal requirements and that we have jurisdiction.

• We have prepared a CIP for the matter.

• The “letter of acceptance” must be prepared and issued.

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The acceptance 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 CIP.

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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 respond to the Respondent’s position statement.

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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.

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How to frame the issue

• Focus on who, what, when, and where.

• We are not yet concerned with the how and why of things—that will come with the investigation as it unfolds.

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“Qualified individual with a disability”

How do we write this issue?

Remember—who, what, when, and where.

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Issue 1

Whether the CP (who) was a “qualified

individual with a disability” (what) when she

sought to apply for UI benefits at the City of

W One Stop Center (where) on July 3, 2007

(when).

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Reasonable accommodation

How do we write this issue?

Again, who, what, when, and where.

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Issue 2

Whether the Respondent (who) refused or failed to provide reasonable accommodation (what) in response to the CP’s written request for such accommodation to apply for UI benefits at the City of W One Stop Center (where) on July 3, 2007 (when).

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The Final Determination

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Elements

Write in a manner that is clear, concise, and easily understandable:

• Statement of jurisdiction;• Issues accepted;• Findings of fact• Legal standard;• Application of legal standard to facts;• Conclusions with regard to issues accepted for

investigation; and• Notice of right to file a complaint with the U.S.

Department of Labor’s Civil Rights Center.

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Statement of jurisdiction

• First paragraph of the Final Determination. Lets the parties know the source of your authority to investigate and decide the matter.

• Statement of the case (preferably brief). Said differently, what does the complaint allege?

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Issues Accepted

• Should be clearly stated and should reflect the same exact issues set forth in your acceptance letter.

• There should be a separate statement for each “issue”—this is less confusing than trying to merge multiple issues into one sentence.

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Findings of fact

• Discuss the evidence submitted to you (documentation, policies/procedures/criteria, and witness statements).

• Specifically state which evidence is the most probative and why.

• Make credibility determinations.

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Be impartial

In making these difficult determinations, it is critical that the investigator represent neither the CP nor the Respondent. The investigator must be objective—prejudging either party is prejudicial to the outcome of the investigation.

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Legal Standard

• From your CIP:– Set forth the legal theory; and– State the elements of proof for that theory.

• Lay out the “preponderance of the evidence” standard of proof, i.e. whether the evidence presented is sufficient to convince a reasonable person that it is more probable than not that discrimination occurred.– This refers to quality and reliability of the evidence as

well as witness credibility.

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Analysis

• Other than properly framing the issues of the investigation, this stage requires the most thought.

• Take your time and do the job well.

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Analysis—what is involved

• Look at your findings of fact;• Review the elements of proof; and • Analyze the factual findings under each element of proof:

– Using the CIP, note what happened to the CP at each step;– Determine whether the CP met each of the criteria used by the

Respondent to determine qualification/eligibility; and– Disparate treatment: determine the foregoing for similarly situated

individuals of the CP’s group as well as of the group the CP alleges was treated more favorably

– Reasonable accommodation: determine whether Respondent was legally obliged to provide accommodation, whether accommodation requested by CP in writing, and whether Respondent failed to provide reasonable accommodation.

• Immediately obtain any required information or clarification if needed (hopefully, you will have all the information you need at this point).

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Conclusion

• Should logically flow from your findings of fact and legal discussion;

• Should answer each issue you set forth to the parties; and

• Should be clear, concise, and reasoned.

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Right to File Complaintbefore the Civil Rights Center

• Must be included in every final action (i.e. final determinations or determination letters of “no jurisdiction”) you issue.

• Suggested language: 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.