Everything You Wanted to Know About Federal Funding and Civil Rights

Transcription

1 Florida Department of Juvenile Justice (Adapted from the Office of Justice Programs) Everything You Wanted to Know About Federal Funding and Civil Rights

2 The Office of Justice Programs (OJP) is the grant making arm of the Justice Department. The Office for Civil Rights (OCR) is responsible for enforcing civil rights laws connected to OJP financial assistance. When federal financial assistance is provided, in any way, the recipients and sub-recipients must be aware of and comply with civil rights requirements.

3 $ Civil Rights Obligations

4 This presentation provides a great deal of useful information about civil rights laws and their application to Federal grantees. However, when all is said and done, if nothing else, everyone should learn this one simple concept: whenever Federal funds are involved, there are civil rights requirements that recipients have to follow.

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6 When we think of Federal financial assistance, we often think just about dollars-grants that various organizations receive - in this case, from the Department of Justice. However, Federal financial assistance can include things other than money. Asking a Federal agency for technical assistance is also Federal financial assistance (e.g., when a mental health professional from a Federal agency provides services in a state or local juvenile facility). Financial Assistance can include training or education programs that the Federal government supplies (e.g., training for Juvenile Justice Officers in academies). Financial assistance may take the form of facilities purchased or used with Federal funds (e.g., a new halfway house constructed for juveniles with Federal funds continues to be Federal financial assistance during all the years it is used for that purpose).

7 Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000d et seq. (prohibiting discrimination in programs or activities on the basis of race, color, and national origin) Omnibus Crime Control and Safe Streets Act of 1968, as amended, 42 U.S.C. 3789d(c)(1) (prohibiting discrimination in employment practices or in programs and activities on the basis of race, color, religion, national origin, and sex) Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794 et seq. (prohibiting discrimination in employment practices or in programs and activities on the basis of disability)

8 Title II of the Americans with Disabilities Act of 1990, 421 U.S.C (prohibiting discrimination in services, programs, and activities on the basis of disability) Age Discrimination Act of 1975, 42 U.S.C (prohibiting discrimination in programs and activities on the basis of age) Title IX of the Education Amendments of 1972, 20 U.S.C et seq. (prohibiting discrimination in educational programs or activities on the basis of sex)

9 Protected Classes Race Color National Origin Religion Sex Disability Age

10 1) Federal civil rights laws apply to all protected classes. 2) There are some important, but often overlooked types of discrimination. a) Color discrimination can occur intra-racially. b) National origin discrimination may include barriers that prevent limited English proficient (LEP) persons from accessing funded programs. c) Sex discrimination includes protection against sexual harassment.

11 3) Note that Sexual orientation or preference is in itself not a Federally protected class, although some states and local governments in the United States have included PROTECTION FOR Gay, Lesbian, Bisexual or Transgendered persons in this category. a) Additionally, the Supreme Court has recognized that gay people can be protected under certain employment contexts (i.e., workplace harassment based on the perception of being gay or a gay employee being the target of same sex harassment.): therefore, such complaints would fall within Federal non-discrimination prohibitions and would therefore be protected by Federal civil rights laws.

12 All aspects of religious practice as well as belief 42 USC 2000e(j) Includes sincerely held moral or ethical beliefs 29 CFR

13 These statues are a few of the Federal laws that apply to religion. What are we talking about when we say RELIGION? The definition is broader than what we might initially think when we think of religious affiliation (e.g., Roman Catholic, Southern Baptist, or Islam). To understand the protection against religious discrimination, one needs to understand the history. Courts expanded the definition of religion during the Vietnam War era. Courts first recognized that draftees could qualify for conscientious objector status by virtue of their membership in traditional Peace churches (e.g., Society of Friends, Church of the Brethren).

14 Others, who were not members of the traditional peace churches, asked for similar treatment based on their own deeply held pacifist convictions. Courts recognized this claim, granting conscientious objector status based on SINCERELY HELD MORAL OR ETHICAL BELIEFS. Congress and Federal agencies borrowed this broad definition of religion in drafting and interpreting Federal nondiscrimination laws that apply to religion.

15 EXAMPLE: A College Program completely funded by DOJ disqualified job applicants based on their views on abortion. The applicants complained of religious discrimination to DOJ. The College responded that it was not discriminating because it hired Baptists, Jews, Catholics, and even atheists. DOJ found that the College was discriminating based on religion, because it was excluding job applicants based on sincerely held moral or ethical beliefs.

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17 In employment, the Safe Streets Act, following the standards of Title VII of the Civil Rights Act of 1964, provides protection against retaliation for opposing discriminatory practices. Because the Department is committed to equal employment opportunity, any form of employment discrimination, including retaliation, is strictly prohibited. No employee may be subjected to retaliation for filing a complaint; testifying, assisting, or participating in an investigation, proceeding, or hearing with regard to discrimination; or otherwise opposing any unlawful discriminatory practice prohibited by the Department's policy and related State and Federal laws.

18 No person in the United States shall, on the ground 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.

19 1) Title VI provides the basis for civil rights protections in Federally assisted programs. Other statutes, following this language, have expanded the protected classes. 2) The term program or activity is a term of art, meaning that it applies to all of the operations of an organization that receives Federal funding. Generally, the entire funded department or office within a State or local government is the program or activity.

20 3) Examples: a)if a state receives funding that is designated for a particular state DJJ facility, the entire State Department of Juvenile Justice is considered the covered program or activity, but not, however the entire State. b)if a project of a county Sheriff s department receives Federal funds, the entire Sheriff s department is covered, but not the other departments in the county. c)if the office of the Secretary receives Federal financial assistance, e.g. JABG, and distributes it to different branches or offices, all of the operations of the Department are covered. d)if one school in a post-secondary educational institution receives Federal financial assistance, then the whole school system is subject to Title VI.

21 Title VI Prohibits: Providing different services to individuals based on race, color, or national origin Denying the opportunity to participate as a member of a planning or advisory body Selecting the location of a facility with the purpose or effect of excluding individuals

22 Title VI Department of Justice regulations outline specific discriminatory actions that are prohibited (28 C.F.R ). A recipient may not Directly or through contractual or other arrangements discriminate on the basis of race, color, or national origin; Deny an individual any disposition, service, financial aid, or benefit; Subject an individual to segregation or separate treatment; Treat an individual differently from others in determining whether he or she satisfies any admission, enrollment, or eligibility requirement or condition which individuals must meet to receive the funded service.

23 Deny an individual an opportunity to participate or afford him or her services that are different from those provided to others; Deny a person the opportunity to participate as members of a planning or advisory body which is an integral part of the program; In determining the type of service or class of individuals served, may not discriminate on the basis or race, color, or national origin; In determining the site or location of facilities, may not make selections that have the purpose or effect of discriminating. (E.g. location of a correctional facility distant from Indian Country).

24 No person in any State shall on the ground of race, color, religion, national origin, or sex be excluded from participation in, be denied the benefits of, or be subjected to discrimination under or denied employment in connection with any programs or activity funded in whole or in part with funds made available under this chapter.

25 1) The Safe Streets Act tracks Title VI, adding other protected categories: religion and sex. 2) The Safe Streets Act, unlike Title VI, applies to both benefits and employment.

26 No person shall on the ground of race, color, religion, national origin, handicap, or sex be excluded from participation in, denied the benefits of, subjected to discrimination under, or denied employment in connection with, any undertaking funded in whole or in part with sums made available under this chapter.

27 1) The VOCA tracks the Safe Streets Act, but adds another protected category, disability (the statute uses the old, less preferred word, handicap). 2) The VOCA, unlike Title VI, but like the Safe Streets Act, applies to both benefits and employment. 3) The unusual word undertaking in the VOCA has the same meaning as program or activity in Title VI; so the civil rights protections apply to all of the operations of a funded organization.

28 A person with a disability is anyone who has a physical or mental impairment which substantially limits one or more major life activities, has a record of such an impairment, OR is regarded as having such an impairment.

29 According to 28 C.F.R ,a recipient with 50 or more employees and receiving Federal financial assistance from the Justice Department of $25,000 or more must designate a Section 504 compliance coordinator; adopt grievance procedures; and notify program participants, beneficiaries, applicants, employees, and unions or organizations with collective bargaining agreements that the recipient does not discriminate on the basis of disability.

30 The ADA Technical Assistance Program provides direct, free information and technical assistance Comprehensive Website ( Toll-Free Information Line Voice ; TTY Outreach Initiatives Technical Assistance Resources

31 Government agencies must remove barriers for FBOs applying for aid. Government agencies providing financial assistance must not discriminate either in favor of or against FBOs.

32 1) Executive Order of January 2001 states that programmatic obstacles to inclusion on FBOs in Federal Funding programs must be eliminated. 2) Executive Order of December 2002 charges Federal agencies to treat FBOs the same as other agencies applying for financial assistance consistent with the First Amendment.

33 FBOs must not use Federal funding to advance inherently religious activities. FBOs may not discriminate against beneficiaries based on religion or religious belief. FBO Regulations do not alter existing statutory nondiscrimination provisions against employment discrimination.

34 1) An FBO may retain its religious icons in the room where it serves beneficiaries with Federal funds, however, funds may not be used for conversion efforts or proselytizing. 2) An FBO may not deny services to a person who is either of a different belief or has no religious beliefs.

35 Funded FBOs do not forfeit Title VII s exemption from the prohibition against religious discrimination in employment. Some Department programs [such as those funded by the Safe Streets Act], however, contain independent statutory provisions requiring that all grantees agree not to discriminate in employment on the basis of religion. Accordingly, grantees should consult with the appropriate Department program office to determine the scope of any applicable requirements. 28 CFR 38.1(f) & 38.2(f)

36 The Justice Department s current interpretation of the Religious Freedom Restoration Act (RFRA) allows for recipient FBOs to request an exemption from the prohibition against employment discrimination based on religion in the Safe Streets Act, the Juvenile Justice and Delinquency Prevention Act (JJDPA), and the Victims of Crime Act (VOCA). FBOs seeking a waiver should apply to the Office for Civil Rights (OCR), Office of Justice Programs, U.S. Department of Justice. The OCR will consider each request on a case-by-case basis

37 Answer: NO* *However, nonprofits funded under the Juvenile Justice and Delinquency Prevention Act do need 501(c)(3) tax status to receive funding.

38 IRS recognizes as 501(c)(3) Statement from State taxing body or State Secretary of State certifying: Organization is nonprofit operating within State; and No part of the organization s net earnings may lawfully benefit any private shareholder or individual Certified copy of certificate of incorporation or similar document establishing nonprofit status Any of the above, if it applies to a State or national parent organization, with a statement by the State or parent organization that the applicant is a local nonprofit affiliate

39 L imited E nglish P roficiency

40 Includes discrimination on the basis of Limited English Proficiency (LEP). A Limited English Proficient (LEP) person has a first language other than English and a limited ability to read, write, speak, or understand English.

41 As noted earlier, both Title VI and the Safe Streets Act prohibit discrimination on the basis of national origin, including discrimination based on limited English proficiency (LEP). An LEP person is one whose first language is not English and who has limited ability to read, write, speak, or understand English. LEP individuals may have some English skills, but in some circumstances (e.g., dealing with police), they may have difficulty understanding and communicating in English. Title VI was intended to eliminate barriers based on national origin in Federally funded programs. Recipients have an obligation to remove language barriers that prevent LEP persons from exercising important rights and accessing needed services.

42 Take reasonable steps to ensure meaningful access to the programs, services, and information the recipients provide, free of charge. Establish and implement policies and procedures for language assistance services that provide LEP persons with meaningful access.

43 Each federal agency that provides financial assistance must develop guidance for its recipients on the obligation to provide meaningful access to limited English proficient persons. Meaningful access -- The key to providing meaningful access is accurate and effective communication between the DOJ recipient and the LEP individual. Was the LEP person given adequate information? Is the LEP person able to understand the services and benefits that are available? Is the LEP person able to receive the services and benefits for which he or she is eligible? Can the LEP person effectively communicate the relevant circumstances of his or her situation? There is considerable flexibility in determining how to comply with the meaningful access requirement.

44 Four Factor Analysis: The number or proportion of LEP persons served or encountered in the eligible service population. The frequency with which LEP individuals come in contact with the program. The nature and importance of the program, activity, or service provided by the program. The resources available to the recipient.

45 Recipients of federal funds should apply these four factors to decide what reasonable steps they need to take to ensure meaningful access for LEP persons. In other words, the four factors are a tool to help a recipient decide what language services it has an obligation to provide.

46 Example for first and second factors (number and proportion or frequency of contacts): If the eligible service population includes a large number of Spanish-speaking LEP persons, then a recipient may have a greater obligation to provide services in Spanish than a service provider with few Spanish-speaking beneficiaries.

47 Example for the third factor (importance of service): Recipients should take an inventory of their services, noting which services are of highest importance and which ones are less significant. For a funded court, providing an interpreter to an LEP person during a court proceeding is obviously much more important than providing an interpreter to LEP visitors who want a tour of an historic courthouse. Providing a service in an LEP person s primary language may be so important that it can trump consideration of any of the other four factors (e.g., Miranda warnings).

48 Example for fourth factor (resources): Recipients may take resources into account in determining what is reasonable in providing language services. But resource considerations are not just limited to money. Recipients should determine whether they have access to bilingual staff, bilingual community volunteers, language faculties at local colleges, and other groups that could provide language services for no or minimal cost. To deny language services based on money concerns may not be reasonable when other language resources are readily available.

49 If after applying the Four Factor Analysis to your program, you discover that there are significant numbers of LEP persons in your service population, that they frequently come into contact with your program, that the program has key elements that are extremely important, and that you have available some resources for language services, then the next step is deciding the language assistance services that you will provide. Two Types of Language Services: Oral language services (or interpreters) AND Translation of written materials

50 Provide oral language services Insure Interpreter Competency: Usually family members, friends, and uncertified co-workers are not appropriate. Provide translation of written materials Safe Harbor Provision: If 5% or 1,000 (whichever is less) of population is LEP, VITAL documents must be translated However, if 5% represents fewer than 50, then written notice of free written translation upon request must be provided).

51 Two things that need to be emphasized: Recipients should ensure that Interpreters are competent. In most cases, use of family members (especially juveniles) or friends will not be appropriate. This is also true for using those in custody to interpret for new detainees. There is a safe harbor provision for translation of written documents ONLY -- based on the number of LEP persons in the service population. If there are fewer than 50 LEP persons in the population then written notice should be provided stating that a written translation is available on request.

52 Tips and Tools from the Field, a Sample Plan, and DOJ Guidance Document at DVD Breaking Down the Language Barriers and I Speak cards from OCR Technical Assistance from OCR Staff Attorneys

53 Other proactive steps include: Conduct outreach to community and faith-based organizations serving minority populations for purposes of advising them about available assistance for LEP individuals. Ensure that all programs and facilities have in place language services so that LEP persons are able to communicate their needs, apply for assistance, and receive important information. Develop standards for reminding agency components, recipients, and community organizations of the eligibility standards for obtaining benefits, so that eligible individuals can access aid without difficulty. Provide technical assistance to recipients to ensure that plans address the specific needs of minority populations, particularly those who are isolated due to LEP, immigration, or income status.

54 While there are Federal statutes that apply to recipients of Financial assistance from OJP and COPS, there is also a separate contractual basis for civil rights obligations. These are contained in the Certified Assurances that an applicant submits with a request for funding.

55 The applicant also specifically assures and certifies that It will comply (and will require any subgrantees or contractors to comply) with any applicable statutorily-imposed nondiscrimination requirements, which may include the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3789d); the Victims of Crime Act (42 U.S.C (e)) ; the Juvenile Justice and Delinquency Prevention Act of 2002 (42 U.S.C. 5672(b); the Civil Rights Act of 1964 (42 U.S.C. 2000d); the Rehabilitation Act of 1973 (29 U.S.C. 794); the Americans with Disabilities Act of 1990 (42 U.S.C ); the Education Amendments of 1972 (20 U.S.C. 1681, 1683, ); and the Age Discrimination Act of 1975 (42 U.S.C ); see Ex. Order (equal protection of the laws for faith-based and community organizations).

56 The Applicant assures and certifies that: It will comply, and assure the compliance of all its SUBGRANTEES and contractors... It will comply, and its contractors will comply, with the NONDISCRIMINATION REQUIREMENTS of the Omnibus Crime Control and Safe Streets Act of 1968 [and other Federal civil rights statutes and regulations]. In the event a Federal or State court or Federal or State administrative agency makes a FINDING OF DISCRIMINATION after a due process hearing on the ground of race, color, religion, national origin, sex or disability against a recipient of funds, the recipient will forward a copy of the finding to the Office for Civil Rights, Office of Justice Programs. It will provide an EQUAL EMPLOYMENT OPPORTUNITY PROGRAM if required to maintain one, where the application is for $500,000 or more.

57 EEOPs (Equal Employment Opportunity Plans) Complaints Findings Compliance Reviews

58 How does the Office of Civil Rights enforce the requirements that accompany Federal financial assistance? OCR has four mechanisms for enforcement. 1) Equal Employment Opportunity Plans An EEOP is a statistical analysis of a recipient s workforce in comparison to employment data in its service population by job category and race, sex, and national origin. Does the recipient s workforce resemble the people with the same job qualifications in the community it serves? 2) Complaints An individual files a complaint with OCR, which then checks jurisdiction, notifies the funded entity, gathers information (sometimes through an onsite investigation), and finally issues a finding of compliance or non-compliance. When OCR issues a non-compliance finding, it usually works with the recipient to reach voluntary compliance through negotiation. On the rare occasion of continued non-compliance, a funded entity may face suspension or termination of funding.

59 3) Findings of Discrimination when a recipient receives an adverse finding of discrimination after a due process hearing in a Federal or State court or with a Federal or State administrative agency, the recipient has an obligation to send a copy of the finding to the OCR for review. 4) Compliance Reviews the OCR may on its own initiate a civil rights audit to determine whether a recipient is in compliance with applicable federal civil rights laws. The criteria for selecting recipients for compliance reviews are objective. As with complaint investigations, the OCR will issue compliance or non-compliance findings along with recommendations. When there is a noncompliance finding, OCR tries to reach a voluntary settlement. If there is no settlement, the recipient may risk suspension or termination of funding.

60 Comprehensive document which analyzes: an agency s workforce in comparison to its relevant labor market data all agency employment practices to determine their impact on the basis of race, sex, or national origin A tool used to identify possible problem areas where discrimination may be occurring

61 The requirement to develop, maintain, and submit an Equal Employment Opportunity Plan (EEOP) applies to recipients of Federal funding under the Safe Streets Act (SSA), the Juvenile Justice and Delinquency Prevention Act (JJDPA), and the Victims of Crime Act (VOCA). Recipients of federal assistance under other federal statutes are not bound by the EEOP regulations.

62 Recipients subject to the administrative provisions of the Safe Streets Act (as well as recipients of VOCA funds) are exempt from the EEOP requirement, if they meet ANY of the following criteria: The recipient is a nonprofit organization, a medical or educational institution, or an Indian Tribe; OR The recipient has less than 50 employees; OR The recipient received a single award for less than $25,000.

63 Recipients subject to the authority of the Safe Streets Act (as well as recipients of VOCA funds) must develop an EEOP and keep it on file if they meet ALL of the following criteria: The recipient is a state or local government agency or a business; AND The recipient has 50 or more employees; AND The recipient has received a single award of $25,000 or more.

64 Recipients must submit an EEOP Short Form to OCR for review only if it meets all of the following criteria: Being a public entity or business, Having 50 or more full-time employees, and Receiving a single grant award under VOCA, SSA, or JJDPA of $500,000 or more.

65 All recipients of funding under the SSA, JJDPA, & VOCA need to Certify they are exempt from the EEOP requirement and send the form to OCR OR Prepare an EEOP Short Form and keep the document on file OR Prepare and submit an EEOP Short Form to the OCR for review. (The chart on the next slide shows the requirements.)

66 Entity Type Number of Employees Dollar Amount Submit EEOP to OCR Preparation and/or Certif. Required Assurance Required Send Findings Educational, Medical, Nonprofit, or Indian Tribe Does not matter Does not matter NO YES Certify Only YES YES State or Local Govts. & For-profit Orgs. Does not matter Less than $25,000 NO YES Certify Only YES YES State or Local Govts. & For-profit Orgs. Less than 50 Does not matter NO YES Certify Only YES YES State or Local Govts. & For-profit Orgs. 50 or more More than $25,000 & less than $500,000 NO YES Prepare & Certify EEOP on file for review YES YES State or Local Govts. & For-profit Orgs. 50 or more More than $500,000 for one grant YES SUBMIT YES PREPARE YES YES

67 Recipients that are required to complete an EEOP Short Form are also required to keep race, national origin, and sex data relating to the following employment actions: Recruitment Applicant screening Hiring Promotion Termination Transfer Discipline

68 1. An introduction stating the agency s official policy on EEO and that the plan is current. 2. A breakdown of the agency s current workforce. 3. A breakdown of the available workforce in the community. 4. A comparison of these breakdowns and identification of underutilization, if any. 5. Specific objectives to address any findings of underutilization. 6. Specific steps which will be taken to achieve the objectives. 7. A plan to disseminate the EEOP to all employees and the general public.

69 The Office of Civil Rights (OCR) at the Office of Justice Programs (OJP), U.S. Department of Justice has a comprehensive online system that guides recipients in preparing an EEOP Short Form. Go to

70 Services Discrimination Complaints Three Options (complaints from beneficiaries of SAA and subrecipients): 1. SAA investigates and simultaneously notifies the OCR of investigation and then informs the OCR of the outcome; 2. SAA refers complaint to state or federal agency and simultaneously notifies the OCR of the referral; OR 3. SAA sends complaint immediately to the OCR for investigation Employment Discrimination Complaints SAA refers complaint to appropriate state or federal agency and notifies OCR of referral

71 Mary Eubanks, Inspector General Phone: (850) Mailing Address: Department of Juvenile Justice 2737 Centerview Drive, Knight Bldg. Tallahassee, FL

72 Derrick Elias Phone: (850) Mailing address: Department of Juvenile Justice 2737 Centerview Drive, Knight Bldg. Tallahassee, FL

73 The Florida Department of Juvenile Justice (DJJ) requires employees of its providers to complete training on federal funding and civil rights. After reviewing the slides, please print this form, complete it, and turn it in to your supervisor. I acknowledge that I have completed the federal funding and civil rights training. Name: (Print) Organization/Office Signature Date