Drafting Discrimination Complaint Determinations

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Drafting Discrimination Complaint Determinations

• Presenter Seena Foster (foster.seena_at_dol.gov)

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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 Partys (CPs) 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 meriti.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 letterNo 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 CPs 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 Respondents 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

• CPs position statement/affidavit/com-plaint
• Supporting documentation provided by the CP
• Witnesses identified by the CP and their
  knowledge of events

• Respondents position statement/affidavits
• Respondents written/actual policies and
  procedures
• Respondents 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 CPs 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 CPs 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 Respondents
  position statement.
• Set forth a specific due date for the CP to
  respond to the Respondents 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
  thingsthat will come with the investigation as
  it unfolds.

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Qualified individual with a disability

• How do we write this issue?
• Rememberwho, 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 CPs 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 Labors 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
  issuethis 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 objectiveprejudging 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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Analysiswhat 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 CPs 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.