Civil Rights Training for Recipients of Federal Financial Assistance

DARYL FOX: Good afternoon, everyone, and welcome to today's webinar, “Civil Rights Training for Recipients of Federal Financial Assistance,” hosted by the Office for Victims of Crime and the Office for Civil Rights within the Office of Justice Programs, U.S. Department of Justice. At this time, it's my pleasure to introduce Mona Mafi, Attorney with the Office for Civil Rights within the Office of Justice Programs, for some welcome remarks and to begin the presentation.

MONA MAFI: Good afternoon. It's a pleasure to be here with all of you today. Thank you for your time and attention and thank you for the wonderful work that you're doing out in your communities. Whether this is your first time receiving a federal grant or whether you have experience doing this, we hope that today will be very helpful information for you as you go about your work. My name is Mona Mafi. And I'm here with my wonderful colleague. I'll let her introduce herself.

ZORAYDA MOREIRA-SMITH: Hey, everyone. My name is Zorayda Moreira-Smith.

MONA MAFI: Thanks, Zorayda. Just to go over the format of our presentation today, I will take roughly the first half of the presentation. We probably won't go more than 45 minutes doing that before we give everyone a 10-minute break. And then Zorayda will pick up where I left off, to run us through the rest of the presentation. As you know, in the Q&A, you're able to input questions at any point, whenever you would like. Because we may answer some questions that people have during the presentation, Zorayda and I will address questions at the end. So we will reserve some time for that at the end, but feel free to input your questions as we go, if you'd prefer. We're going to cover a lot of information today but copies of the PowerPoint that have links to various resources that are particularly helpful will be given to you. You'll have copies of the PowerPoint. And, also, we are always available to assist. And really the goal of the presentation today is not for you to be able to solve every legal problem but more to just become familiar with the issues that might come up as you do your work so that you know when to reach out to us and dig in to see whether there actually may be a legal issue. So, again, this is just to familiarize yourself with what we do and what you're now expected to be aware of as a recipient of federal financial assistance. And with that, we can begin.

Of course, you know, as lawyers, we have to give you our little legal disclaimer here at the beginning that what we're doing is for informational purposes. It is not actually legal advice. So if there are particular legal questions that you have, we are happy to look into them further. That would be technical assistance, which is part of our work. We've got all of our contact info here for you and how to reach out to us. Another way to get in touch with us, if you were to, you know, lose all of our information, you could still reach out to your own grant manager. So the individual in OVC who's responsible for managing your grant, that's also someone you could reach out to, to get to us. And likely, that person has experience reaching out to us anyway, but that's just one more avenue.

And a little bit about us. We are part of the United States Department of Justice and we--our office, the Office of Civil Rights, falls under the umbrella of the Office of Justice Programs. The Office of Justice Programs is made up of several components. The Office for Victims of Crime, that you all are familiar with, is part of OJP, the Office of Justice Programs. Our office, OCR, is another part of OJP. You know, the essential thing about OJP is that it does--it provides grants. So it gives out funding. What our office, OCR, specifically does is that we look--we are directly connected to the funding components of the DOJ and we want to ensure that all federal civil rights are being followed and that there is compliance among all recipients of federal funds.

To understand a little bit more about what the Office for Civil Rights does and where we get our authority, it's helpful to remember that when there is federal money being given out, there are civil rights obligations that come with that money. So another way to think about that is, you know, that we--our office essentially serves as a civil right string to the money that's given out. However, the goal of that is not to take money away as soon as there may be an issue or a question, but rather to work with recipients of funds so that we have compliance.

It makes sense to cover a definition here for two different terms. The first is recipient. So a recipient is an organization or agency that receives federal financial assistance. That's you all. That's the recipient.

Then the second important term that's related is beneficiary. The beneficiary is the individual who ultimately participates in the program and receives the benefit from the program or service that you, the recipient, are providing.

So our goal in the Office for Civil Rights is to help you, the recipient, be in compliance with federal civil rights laws, so that your wonderful programs can continue and that all of the beneficiaries of your programs can continue to benefit from the programs and services that you provide. Another thing that can be helpful to understand in terms of why civil rights obligations exist is that the funding, those dollar signs you see on that slide there, they are from taxpayer funds. So all of us pay taxes. Every group pays taxes. So when the money is collected from everybody, it's unfair for that money to be used in a way that discriminates against one of those groups. So that's, sort of, the underlying philosophy behind why we want to make sure that taxpayer funds are used in a fair way that complies with civil rights laws.

Looking at the specific laws that our office enforces, the first few--the majority of the bullets here are what we call crosscutting statutes, and they actually apply to recipients of funds from any federal agency. That's Title VI, Section 504, Title II of the ADA, the Age Discrimination Act, and Title IX. We'll cover those a little bit more briefly right now and then we'll go into them in depth so that you have more of an understanding of them. But those are--they apply to any entity receiving any federal funds. So to walk through those quickly, Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color, and national origin in the delivery of services or benefits. Section 504 prohibits discrimination based on disability in employment and the delivery of services or benefits. Title II of the Americans with Disabilities Act, also known as the ADA, prohibits discrimination based on disability and services and employment programs and activities by state and local government. The Age Discrimination Act prohibits discrimination based on age in services or benefits. So this is something that we'll explain later in the presentation, but the important thing to note here is that this does not include employment. That's a different statute. And, also, Title IX of the Education Amendments of 1972, it prohibits sex discrimination in educational programs or activities. You may have--be aware of this related to opportunities in women's sports that have come about as a result of the law. This last bullet here that is listed as Program Statutes is unique to the Department of Justice. So examples of that are VOCA, the Victims of Crime Act, which is relevant for all of you today; the Safe Streets Act, full name of which is the Omnibus Crime Control and Safe Streets Act; the JJDPA related to juvenile justice; and VAWA related to Violence Against Women Act. And so we will go over them in detail as well, but, again, the program statutes are unique to DOJ and only apply to the Department of Justice.

Next, we're going to take a look at the protected classes. To understand how civil rights work, it's important to understand the concept of a protected class. So when we say protected class, we're talking about a group of people who are benefiting from protection by law. So when an individual brings a discrimination claim under federal civil rights law, even though it's about how that person was treated as an individual, it's not related to them as an individual, but rather the claim relates to how the individual has been denied certain rights based on being a member of a group. So here we see race. The second is color, which can include intra-racial discrimination. So, for example, if everyone is the same race but people with a lighter skin color or darker skin color are treated differently, that's where color would come into play as distinct from race. There's national origin. And national origin is the protected class related to limited English proficiency, which we'll go into more detail about later. There is religion. There is sex, which includes sexual harassment and is being interpreted a little bit differently nowadays. We'll go into that later as well. There's disability. And there is age. Now, sexual orientation and gender identity, the reason why it says here VAWA only, we're talking about these protected classes being explicitly mentioned in the statute itself, but as we'll--as you'll see in a few minutes, these are now actually classes that have been interpreted to fall under the class of sex. We'll get to that momentarily.

So discrimination on the basis of sex, as I mentioned, because--it has been interpreted differently fairly recently. So the Supreme Court had the Bostock v. Clayton County case that held that the prohibition on discrimination because of sex in Title VI, the statute we discussed, does cover discrimination on the basis of gender identity and sexual orientation. So what the Supreme Court ruling did was to expand the definition of sex as a protected class.

And then we also had the President's Executive Order coming out to further explain this. And he said that the reasoning applies with equal force to other laws that prohibit sex discrimination. The quote here, "so long as the laws do not contain sufficient indications to the contrary." That mostly being the case, we know that this expanded view of sex does now apply to other statutes.

And the DOJ specifically issued a notice of interpretation. And so it said that, this expanded definition of the protected class of sex applies to the nondiscrimination provisions of DOJ's program funding statutes. So that includes VOCA, relevant for our group today; VAWA; the JJDPA; and the Safe Streets Act. And DOJ had already previously determined that Bostock applied to Title IX, which has to do with women in educational programs, women and girls in educational programs. And DOJ concluded that the protected class of sex discrimination, as prohibited in these DOJ funding statutes and in Title IX includes discrimination on the basis of sexual orientation, gender identity, and intersex traits. So they expanded it a little further even. For those not familiar with intersex traits, it has to do with an aspect of the physical body of an individual at birth. So it might be organs that are external to the body or it could be something internal to the body, such as chromosomes that are not readily visible at birth but it--essentially, intersex traits refer to something that exists at the time of birth related to the person's physical body.

Another thing that is important to note about the work that we do in OCR is that in addition to discrimination on the protected classes, we also look at retaliation, which is a thing in and of itself. So, for example, if there is an allegation that there was some kind of discrimination and we are unable to prove the discrimination, we may still be able to prove retaliation and we have the authority to do that. So, for example, if someone alleges anything. Let's say they--they're alleging race discrimination and they say that, you know, "I filed a complaint based on alleging that I was racially discriminated against on March 1st. And then on March 5th, I was moved out of my office to the basement.

And then on March 10th, I had three of my best projects taken away from me. And on March 20th, I received a termination notice." This is an example to show you, even if we could never prove that that person was actually discriminated against, we could still prove retaliation based on the actions taken by their employer in this example. So retaliation could include harassment, demotion, discharge, or denial of services. So it's worth noting that retaliation is a separate thing that we also have jurisdiction over.

Looking at who is subject to these laws, the language of the statute is any program or activity. And we have some examples to help clarify the scope of that term, program or activity. Let's take a look at these together. So if the state Department of Public Safety receives federal funding and subawards the funding to local community-based organizations, all of the operations of that Department of Public Safety are covered, along with the operations of the local community-based organization. So that authority runs essentially through the grantee to the subgrantees. The second example here, if a rape crisis center receives federal funds and uses the funds to operate particular programs, all of the activities of the center are covered, not just the federally funded programs. And our last example here, 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.

Our next slide here, how does the OCR enforce civil rights laws? What do we actually do when there's a complaint or when we're asked to look at a situation? So a few different things. The first is technical assistance, which I mentioned at the beginning. We are always happy to work with grantees. That can be anything from talking through a potential issue or giving feedback on a policy or procedure that the grantee or organization has--is thinking about implementing or has been implementing and, you know, wants to check on. We're there to actually help ensure that the practical day-to- day things our grantees are doing are in compliance with federal civil rights laws. The second thing that's listed here, administrative complaint investigations. We receive complaints from members of the public. If the entity that they're complaining about is a recipient of federal funds, then we do conduct an investigation. That is the largest chunk of what we do. Our office is also responsible for reviewing Equal Employment Opportunity Plans, known as EEOPs. We will go into that in more detail later and have a few resources for you on that. And, lastly, we also do compliance reviews, which are broader in scope than investigations. It's helpful to think of a compliance review as a civil rights audit. They are usually broader in scope. We may open them because we have a series of complaints about the same entity or about the same ongoing issue.

Filing a complaint with us, which can be done through sending us information--we cite our website in this presentation. On there, it has all of the information for how something can be mailed to us, or emailed to us, or called in. And in the future, we're looking at the possibility of an online way for individuals to submit complaints. And when we look at who can file the complaint, it can be a client or, as we discussed, a beneficiary of the program; potentially an employee, or an applicant for employment; or it can be a third party. So we do accept complaints on behalf of other people, particularly for incarcerated individuals. When we look at the Department of Corrections across the country, we often get submissions from family members or loved ones who are writing to tell us about the situation that somebody is in. We accept those as well.

Our complaint review process involves jurisdiction, looking at whether or not we have the authority to follow-up on a complaint, conducting an investigation, making findings, and then almost always, the entity will come into voluntary compliance. When there's an organization that's a recipient of federal funds, we find that, by and large, the organizations want to keep their funding and want to be eligible for funding in the future. So we have a very high level of cooperation, and as I mentioned early on in the presentation, that's something that we all want. We want for the organizations doing great work to continue to do great work and for people to benefit from that. What's listed here is suspending--suspension or termination of funding is not something that is common. It's certainly not something that we expect to see or that we see often. Once every few decades, there may be an organization that gives back money. Typically, you know, a very small amount of money. They'll say, “you know, keep your money and keep, you know, your requirements,” but we don't often see that we won't get compliance and it's something we'll have to go to litigation or that they will actually have to be a suspension or termination. So it is very rare. And, as I said, we're happy to work with organizations to help them do what needs to be done to come into compliance.

A note about tribes. Tribes can be eligible for federal grants as a unit of local government. So they do incur civil rights obligations as a condition of accepting federal aid. So they can't discriminate based on the protected classes we discussed, race, color, national origin, sex, religion, disability, or age, but there are some distinctions. Tribes are not bound by DOJ program statutes. So that means that they do not violate civil rights laws, if they have a preference to hire American Indians in their employment practices. The second distinction is that they are exempt from the requirement to submit EEOPs, and we'll get into that later, but all funded tribes need to do is file a certification with us that they are exempt.

Last note about tribes here, just to better understand how civil rights laws apply to American Indians and Alaska Natives. It is under the protected classes based on race or national origin, but we also see that oftentimes, we rely on the protected class of religion, particularly when discrimination is based on religious practice. And the last thing to note here is that the legal definition of American Indian for civil rights protections is not the same as the legal definition of American Indian for some federal entitlement programs. And our example here is that if an American Indian brings an employment discrimination claim against a funded employer, the American Indian would not need to show a percentage of ancestry or prove bloodlines or be an enrolled member of the tribe. The person complaining would be covered as long as the employer reasonably believed that the employee was a member of the protected class based on some objective evidence, which may consist of physical appearance, language, cultural activities, or association.

Moving on to Title VI itself.

This here is the language from the actual statute. And we see here, as we discussed, that Title VI prevents discrimination on the basis of race, color, or national origin. Those three protected classes. And that it references that this is applicable to any program or activity that's receiving federal financial assistance.

So some examples of what's prohibited. Denying an individual a disposition, service, or benefit; subjecting someone to segregation or separate treatment; applying different admissions, enrollment, or eligibility standards or requirements; denying participation as a member of a planning or advisory body; or selecting a site or location with the purpose or effect of discriminating. So there's a variety of ways that we could look at that.

Moving on to limited English proficiency. This is one area that we tend to get more questions and we think we have a lot of guidance. So what we'll do in the next few slides is give a sort of general overview, but there are lots of resources out there related to limited English proficiency. As I mentioned, this follows from the national origin protected class. So if someone who's a national origin--is something other than--is a country where--which affects their English speaking abilities, that's where this comes to play.

The actual definition of limited English proficiency, that we refer to as LEP, is individuals who do not speak English as their primary language and who have a limited ability to read, speak, or understand English. So if that's the case, this person may be considered Limited English Proficient or LEP, and then is legally entitled to language assistance. So to prevent LEP discrimination, recipients, that's all of you, must do the following. The main thing to consider is that your organization wants to take reasonable steps to ensure meaningful access, that's the key phrase, to programs, services, and information and it must be free of charge. To establish an LEP implementation plan, there are four-- there's a four-factor analysis that DOJ uses. The first thing to consider is the number or proportion of LEP persons served or encountered in the eligible service population. So it has to do with who may actually come to use the services of your organization. The second thing is the frequency with which they come into contact with the program. The third is the nature and importance of the program, activity, or service. So, for example, 911 services versus a community picnic. And, lastly, the resources available to the recipient.

So if we look at what are language assistance services, there are two main things. The first is providing oral language services and the second is providing translation of written materials. The main thing to remember for oral language services is ensuring interpreter competency. The main takeaway here is that you want, typically, a family member or a friend or someone who essentially is not certified is not an appropriate interpreter. And the second, we look at the written materials. The thing to keep in mind here is that we have what's known as the Safe Harbor Provisions. Excuse me. If five percent of the population or 1,000 is LEP, vital documents have to be translated. However, if five percent is less than 50, then written notice of the free written translation has to be provided.

What does meaningful access mean? We have a couple of examples here. The first is during the intake of a victim services program, an employee interviews a Spanish- speaking LEP victim of abuse using hand gestures and having the individual speak in broken English without interpretation. The second is a police officer attempts to question a victim of domestic violence by using the alleged abuser as an interpreter. Hopefully, the answer here is obvious. The question is have these individuals been afforded meaningful access? The answer is, no, they have not. So these are just examples of things you definitely want to avoid. Meaningful access is definitely not these things.

When we look at what a written LEP policy should have, there are five elements we're looking for. The first is a process for identifying LEP persons who need language assistance. The second is information about the available language assistance measures. We want training for staff of the organization, notice to the persons themselves, and lastly, monitoring and updating the LEP policy. So we want this to be something that is dynamic and fits the needs of the community. Because we look at the community members in determining what needs to exist in the LEP that can change over time. And when we look at LEP populations, we're talking about distinct language groups. We don't lump everyone into one big group. So, for example, a recipient might have a large Spanish-speaking population and a large German-speaking population but a very small Mandarin-speaking population. We would assess the needs of each language group, which may vary and which may change over time.

Moving on to disability as a protected class. And our statutes here, section 504, as we mentioned, Title II of the ADA, and the ADA Amendment.

This is a recap here on this slide and a way to distinguish between the three. Section 504 prohibits discrimination on the basis of disability by recipients of federal funding. Title II of the ADA, however, prohibits discrimination on the basis of disability and applies to public entities, regardless of whether or not they receive federal funding. And then the ADA's Amendment Act was to clarify, because Congress found that the definition of handicapped person was not being interpreted consistently, so that was a correction.

When we look at Section 504 Protection, what the statute actually says here, the things to know are, we're looking at a qualified individual with a disability. And we'll look at what that--how that's defined. And the other thing to note here is that we're looking at this discrimination being solely by reason of his or her disability. So that is the issue in the discriminatory actions.

So looking at the definition, how do we define who has a disability? One thing that's important to note here is that whether a person meets this definition is a highly individualized and fact-specific inquiry. So physical impairments may be easy to think of, like mobility, hearing, or vision impairment, but some physical impairments might not be readily apparent to an outside observer. Also, a person with disabilities could have a mental or psychological disorder, including certain learning disabilities, which may not be apparent without testing or disclosure. And when we look at the physical or mental impairment to qualify, it needs to be something that substantially limits one or more major life activities. When we say substantially limits, although that is somewhat vague conceptually, some things to consider are the duration of the impairment, the impact of it, the nature and severity of the impairment, and if it's episodic or in remission, if it would substantially limit the major life activity when it's active.

So the next question is, well, what is a major life activity? Well, that's a basic activity that the average individual and the general population can perform with little or no difficulty. So statutory law now gives us a list of examples. We know that major life activities can include caring for one's self, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, communicating, and the operation of a major bodily function. So that includes functions of the immune, digestive, bowel, bladder, and neurological symptoms--systems. Excuse me. Neurological systems.

Operation of a major bodily function also includes normal cell growth. So cancer is an example of substantially limited normal cell growth.

Looking next at what constitutes someone having a record of such an impairment? A person may have had a physical or mental impairment that substantially limits a major life activity in the past but then they no longer do. So, for example, someone may have received treatment for a mental illness in the past and that is no longer applicable to them, and then they're denied services because of that. So, in that case, that recipient would have been discriminated against because of their record of having a disability. So that's included in the law.

And then, finally, here this last bullet we see is regarded as having such an impairment. What that refers to is when a person is regarded as having a disability when they don't have an actual impairment or if there is an--if there's an actual or perceived impairment, whether or not the impairment limits or is perceived to limit a major life activity. So someone may have an impairment, but if it doesn't limit a major life activity, then it's not a disability. But if they are perceived that way, then they could still use this law to have the adverse actions taken against them qualify as discrimination.

Some examples of prohibited disability discrimination we can see on the slide here include denial of participation in a program or activity, denial of an opportunity for the same benefit, different or separate services, denial of participation in a planning or advisory body, and ineffective communication. So one thing for organizations to consider here is when there are meetings, what is the accessibility? Is the meeting location accessible to everybody? If there are any participants that need an American Sign Language interpreter, has that been provided? Those are the things to keep in mind.

So for our disability discrimination analysis, what has to be provided are--the key term here is reasonable accommodations. Reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability, unless--and this is a caveat. Unless the recipient can demonstrate that it would be an undue hardship or would fundamentally alter the service or activity. The thing worth noting again here is what we see in the second bullet, that, again, every case, when we're looking at disability discrimination, requires individualized analysis. Important to note, the individuals with disabilities are not a homogenous group, even those with the same disability; because two different people with the same disability might have the disability manifested differently for them and may have different things that they need for reasonable accommodation.

So we're going to have this hypothetical to drive the point home. A shelter for victims of violence receives federal funds. So this is a recipient that falls under the authority of OCR. This shelter has a blanket policy. So the--red flags should be going off here for everybody. Blanket policy that residents cannot take any prescribed psychotropic medication while staying at the shelter. Is this policy acceptable under federal disability discrimination laws? Hopefully, this is something that is not difficult, given what we just discussed about individualized assessments.

The answer is no. So why? Why is that? Well, by having a blanket exclusionary policy, the shelter has discriminated against individuals who may have a mental health disability that is controlled by medication. So, again, we're driving this point home. The shelter must perform individualized assessments. If the individual does not pose a threat to him or herself or others, then the facility has an obligation to accommodate their needs, so that they can access the benefits of this federally funded program.

What Section 504 states, which is relevant for you all to know in terms of your obligations, if the recipient organization has 50 or more employees and receives $25,000 or more in financial assistance, then there are three things that must be done. The first is to designate a Section 504 compliance coordinator. It doesn’t mean that there has to be someone whose only job is to be the 504 coordinator, but that there must be someone who is charged with this responsibility. The second thing is to adopt grievance procedures. And, lastly, to notify the program participants, beneficiaries, applicants, employees, unions, and organizations with collective bargaining agreements, that the recipient does not discriminate on the basis of disability. So these are the three things we're looking for, if you have 50 or more employees and received 25,000 or more dollars.

There are a lot of great resources regarding disability discrimination. And the Disability Rights Section, which is part of the Civil Rights Division--just a point of classification here. The Civil Rights Division is sometimes confused with our office, the Office for Civil Rights. Our office is part of OJP and we only have authority over funded recipients. The Civil Rights Division is a different part of DOJ and they have different sections, but we do sometimes work together. The Disability Rights Section focuses exclusively on disability discrimination. They have a toll-free information line that's listed here. As I mentioned, you're getting all of this information, so you'll have these resources. And the www.ada.gov website is an excellent website. Something I realized now I may have forgotten to mention earlier when we're talking about LEP, the limited English proficiency, there's also a wonderful website for--with LEP resources. Both that website and this ada.gov website appear in one of our last slides in this presentation, so you do have those resources for you. But both LEP and ADA have a rich bank of resources for you to draw on, in addition to, of course, reaching out to us at any time.

And I see here we're now at our break mark. Thank you so much for giving me 40 minutes of your attention. We'll give everyone a 10-minute break. I'm seeing the time as about 3:40--or 3:41, so we could resume again at 3:51. Thanks so much.

ZORAYDA MOREIRA-SMITH: Welcome back, everyone. I hope everyone had a good break. You were able to go outside and stretch a little bit. So now we're going to shift gears to briefly touch upon some other civil rights laws, which are less commonly invoked by employees and beneficiaries of OJP, OVW, and COPS Office financial assistance recipients, starting with Title IX of the Education Amendments of 1972.

Under Title IX, recipients of federal financial assistance from the DOJ cannot discriminate based in--on sex in educational programs. The implementing regulations of Title IX, like the implementing regulations for Section 504, also require recipients to take the following three steps. One, appointing a Title IX Coordinator; two, implement grievance procedures for filing Title IX complaints; and three, notifying interested parties that the recipient agency does not discriminate based on sex.

Next we're moving on to the Age Discrimination Act of 1975.

When referring to age as a protected class in the context of the laws that the OCR enforces, it is very important to understand that the protection only applies to the delivery of benefits or services, and not to employment. There's a separate federal law that protects people age 40 or older from employment discrimination based on age, and that's called the Age Discrimination and Employment Act. So OCR however, does not enforce the Age Discrimination and Employment Act. Instead, the OCR enforces the Age Discrimination Act of 1975, which applies only to beneficiaries of federally funded services.

The Age Discrimination Act states that a federally funded organization cannot discriminate in the delivery of services regardless of age, and that can mean any age, whether the beneficiary is 80 or 80. It's important to know that when it comes to age, the standard that courts use for assessing whether discrimination occurred is a rational basis standard. As long as a federally assisted program can provide a rationale for distinguishing the delivery of services based on age, the federally assisted program complies with federal law. An example, programs funded by the DOJ that focus on the needs of juveniles are not discriminatory based on age, if the program can provide a reason for limiting services to a particular age group. Reasons might include that state law consider age in criminal sentencing, or that a program is geared toward young people at a particular stage of educational or psychological development. Unlike the category of race where a federally funded program must show a compelling government interest for considering race in the design of a program, federally assisted programs need only provide a rational basis for designing a program that serves a particular age group.

So far, Mona and I have just summarized the crosscutting factors that apply to recipients of federal financial assistance from the OJP, OVW, and the COPS Office. Again, these statutes are Title VI, Section 504, Title II of the ADA, Title IX, and the Age Act of 1975. Additionally, some DOJ funding statutes contain specific nondiscrimination provisions, some of which are duplicative of other protections and some of which carry additional protections. These are applicable if your organization receives grants from these statutes. These programs statutes are the following, The Omnibus Crime Control and Safe Streets Act of 1968, the Juvenile Justice and Delinquency Prevention Act of 1974, the Victims of Crime Act of 1984, and the Violence Against Women Act, and its reauthorization.

The principal program statute that the OCR enforces is the Safe Streets Act. The Safe Streets Act tracks the Title VI, adding other protected categories. In addition to race, color, and national origin, the Safe Streets Act protects against discrimination based on religion or sex. Additionally, unlike Title VI, the Safe Streets Act applies to both employment and benefits. However, just as with Title VI, the Safe Streets Act uses the language of program or activity to indicate that all of the operations of a funded organization must abide by the prohibition against discrimination. The Safe Streets Act covers programs or activities whether they are funded in whole or in part, even if it's just $1. Five OVW grant programs are codified by the Safe Streets Act. One, STOP Violence Against Women Formula Grants; two, State Domestic Violence and Sexual Assault Coalitions; three, Tribal Domestic Violence and Sexual Assault Coalitions Grant Program; four, Grants to Encourage Arrest Policies and Enforcement of Protection Orders Program; and five, Violence Against Women Discretionary Grants for Indian Tribal Governments. All of these programs must comply with the Safe Streets Act Nondiscrimination Provision and are covered by the Equal Employment Opportunity Program requirement of the Safe Streets Act Regulation, which I will discuss further in the later slides.

Before moving on, I also want to note that just like Title I of the Safe Streets Act, a nondiscrimination provision that prohibits discrimination on the basis of race, color, religion, national origin, or sex, applies to each OJP award made under the Juvenile Justice and Delinquency Prevention Act of 1974. Two examples of OJP grant programs that are encompassed by this nondiscrimination provision are the Edward Byrne Justice Assistance Grant, and Title II Juvenile Justice Formula Grants.

All right. So we have--now we're on the slide Victims of Crime Act of 1984. The nondiscrimination provision is on the slide. Many other OJP awards are made under the authority of VOCA. A nondiscrimination provision of VOCA, which prohibits discrimination based on race, color, religion, national origin, disability, or sex, applies to such award. Two examples of OJP grant programs that are encompassed by this nondiscrimination provision are, VOCA Compensation Formula Grant and VOCA Assistance Formula Grant. Notice that VOCA's nondiscrimination provision is similar to Title VI in the Safe Streets Act, but there's two differences. One, it expands the protected class to include disability. And then two, VOCA used the word undertaking, which means the same as our current understanding of program or activity. That is, the nondiscrimination provision of VOCA applies to all of a recipient’s operations, not just the particular program.

Now we’re in the slide--we have a few slides that would discuss Equal Employment Opportunity Plan Programs Overview. Some organizations must complete a workforce report called an Equal Employment Opportunity Plan Utilization report as a condition for receiving money authorized by the Safe Streets Act, JJDPA, or VOCA, pursuant to the applicable federal implementing regulations. An EEOP is a report detailing a recipient's workforce cross-classified by race, sex, and national origin, in eight major job categories. This report compares the demographics of the recipient's workforce in each of these major job categories, to the demographics of qualified employees in the relevant labor market. And then the report also identifies any underutilization.

Whether a funded agency has to produce and submit an EEOP to the OCR for review, depends on a number of factors, including the type of organization the recipient is, the number of employees the recipient has, and the amount of the award the recipient receives.

Please be mindful that recipients must complete an EEOP certification form, no matter what your obligations are. That is, even if you are not obligated to complete an EEOP utilization report.

This slide is probably the most important slide regarding this subject. The key thing here to remember is for technical assistance, please contact our EEOP contacts, Tiffany Harding and Denise Viera. If you have any questions, their email address is on the slide and their phone numbers on the slide, which will also be available in the chat, and I believe on the slides that you will get later on. One thing that they do--have told us to make sure that all of you understand is to feel free to reach out to them as early as possible in the process. They are here to help you. They are here to answer questions. They are here to provide you information. So at any point in time in the process, please reach out to them. And if you have any questions, even if you're just starting off, reach out to them early versus later.

All right. Now we're going to VAWA, WOMAN: That would be good.

ZORAYDA MOREIRA-SMITH: The Violence Against Women Reauthorization Act of 2013. The Violence Against Women Reauthorization Act of 2013, which former President Obama signed on March 7, 2013, amends the Violence Against Women Act of 1994, by adding a grant condition that prohibits discrimination by recipients of certain DOJ funds. The VAWA nondiscrimination grant condition applies to all grant programs currently administered by OVW. Examples of formula grants include the STOP Violence Against Women and Sexual Assault Service Formula Grant Programs. The Act provides, as noted on the slide, no person shall on the basis of actual or perceived race, color, religion, national origin, sex, gender identity, sexual orientation, or disability be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity funded in whole or in part with funds made available under VAWA, and any other program or activity funded in whole or in part with funds appropriated for grants, cooperative agreements, and other assistance administered by the OVW. That was a mouthful. But good thing we have a slide for you to review and keep for your own notes.

If any of you are State Administering Agencies, which we referred to SAAs that receive formula grants under VAWA and subaward those funds as subrecipients throughout your state, you may ask yourself, "How does VAWA's nondiscrimination grant condition apply to me?" SAAs must comply with the VAWA nondiscrimination grant condition. Its obligation extends to all of the operations of the SAA and will extend to the operations of other units of state government, if those units receive federal financial assistance under VAWA or are subawarded VAWA funds from the SAA. SAAs must also ensure that subrecipients comply with all applicable civil rights obligations. SAAs should provide training for subrecipients about their civil rights obligations and they should also monitor their subrecipient's compliance with the VAWA nondiscrimination grant condition.

The VAWA nondiscrimination grant condition provides a caveat to the prohibition on discrimination on the basis of sex. You may not--You may not discriminate based on sex, but there may be situations where you may segregate one or more of your services based upon sex or situations where you may be able to tailor a particular service based on sex. We will cover this in more details in a few--in a few slides, but as an introduction to the topic, VAWA allows for sex segregation or sex-specific programing, if it is necessary to the essential operation of a program. In such circumstances, recipients may meet the VAWA nondiscrimination grant condition by providing comparable services to individuals who cannot be provided with a sex-segregated or sex-specific programing.

Note here that sex is the only basis on which you may segregate beneficiaries. Additionally, the law specifically states that nothing in this title shall be construed to prohibit male victims of domestic violence, dating violence, sexual assault, and stalking from receiving benefits and services under this title.

So here's a recap of the VAWA protected classes, which we discussed pretty thoroughly between Mona and I. We've seen many of these throughout these slides. But there are two new ones that we haven't seen as much, which are gender identity and sexual orientation. So that we're clear on the definition of these terms, what does gender identity mean? The VAWA nondiscrimination grant condition borrows this definition of gender identity from the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act. So gender identity means actual or perceived gender-related characteristics.

Gender identity is a person's internal view of their gender. Transgender can be used to describe a person whose gender identity is different from the individual's assigned sex at birth. Male, female, two-spirit, and transgender are all examples of gender identities for purposes of the nondiscrimination grant condition.

Next, what does sexual orientation mean? The VAWA nondiscrimination grant condition does not define this term. Heterosexual, homosexual, and bisexual are all sexual orientations.

So VAWA took effect on October 1, 2013, and the associated nondiscrimination grant condition applies to all awards made under covered grants on or after this date. The VAWA nondiscrimination grant condition prohibits those employment practices made unlawful by the Safe Streets Act, Title VII [VI] of the Civil Rights Act of 1964, and their implementing regulations. The newer nondiscrimination grant condition also prohibits recipients under covered grants from discriminating in any program or activity, irrespective of the amount of federal financial assistance the recipient receives.

As previously mentioned, but can--but we cannot emphasize enough, the term program or activity refers to all of the operations of a recipient. Even if non-covered funds support a particular operation. An example, if a law enforcement agency receives an award under a covered grant to fund a victim witness coordinator, then that law enforcement agency must not--must not discriminate against a person on the basis of actual or perceived race, color, religion, national origin, sex, gender identity, sexual orientation, or disability in all of its operations. Thus, a recipient that operates a program funded partially by a covered grant, impartially by other sources, may not discriminate in any of its operations. Now you may wonder what constitutes discrimination based on actual or perceived race, color, religion, national origin, sex, gender identity, sexual orientation, or

disability. Discrimination against an individual based on their protected status violates the VAWA nondiscrimination grant condition even if that perception is wrong, which means that taking an adverse action against an individual because of a mistaken belief that the individual belongs to one of the protected classes, violates the VAWA nondiscrimination grant condition.

So this slide, we're going to cover a lot of information that's actually not on the slide. I will make sure to slow down to make sure that all of you have the information. Again, if you have any questions about the information I provide, just add it in the chat or we can discuss that at the end of the presentation.

VAWA 2013 allows for sex-segregated or sex-specific services when it is necessary to the essential operation of the program. Emergency shelter for domestic violence victims is an example of a service that victim service providers historically have segregated by sex. An example of sex-specific programing is the bystander intervention component of some educational programs on college campuses. Often, these campus educational programs teach different violence prevention skills to male and female students.

How does a recipient, like you all, determine whether a sex-specific or sex-segregated program is necessary to the essential operation of the program? If the DOJ receives a complaint of sex discrimination based upon a recipient sex-segregated or sex-specific services, the onus will be on you, the recipient, to clearly articulate why sex segregation or sex-specific program was necessary to the essential operations of the program. DOJ expects the recipient, you, to support its justification with an assessment of the facts and circumstances surrounding the specific program, and to take into account established best practices and research findings, as applicable. The justification cannot rely on unsupported assumptions or overly broad sex-based generalizations.

Some factors that may be relevant to a recipient's evaluation of whether sex-segregated or sex-specific programing is necessary to the central operations of the programs include the following, one, the nature of the service; two, the anticipated positive and negative consequences to all eligible beneficiaries of not providing the program any

sex-segregated or sex-specific manner; three, the literature on the efficacy of the service being sex-segregated or sex-specific; four, the impact on transgender individuals seeking services, and finally five, whether similarly situated recipients providing the same services have been successful in providing services effectively in a manner that it is not sex-segregated or sex-specific. A recipient, again, may not provide sex-segregated or sex-specific services for reasons that are trivial or based solely on the recipient's convenience.

An example, a recipient--a recipient considering whether to sex-segregate its housing should assess the type and layout of the property where the housing is provided. Where victims must share bedrooms and bathrooms, that fact may be a significant consideration supporting a determination that it is necessary for the essential operation of the program to segregate beneficiaries of the opposite sex by bedroom and bathroom. Or depending on the circumstances, even to house beneficiaries of different sexes in entirely separate physical locations. Note, a recipient should not assume that because services had been sex-segregated or sex-specific in the past, that that should continue and that it is still necessary.

The VAWA nondiscrimination grant condition provides that in circumstances where sex- segregated or sex-specific programming is necessary to the essential operation of a program, grantees may satisfy the nondiscrimination prohibition by providing comparable services to individuals who cannot be served with a sex-segregated or sex- specific programming. A comparable service is one that it is designed to confer a substantially equal benefit. Factors that the DOJ will consider, either individually or in the aggregate, as appropriate, in determining whether services are comparable include the following, the nature and quality of the services provided; the relative benefits of different therapeutic modalities or interventions; geographic location or other aspects of accessibility; the characteristics of the facilities where services are provided; and the characteristics of the individuals who provide the service. Services may not be identical to be comparable but they must be of the same or similar quality and duration.

Again, what does it mean for sex segregation to be necessary to the essential operation of your program? It's a fact-specific inquiry. First, look at each service you provide. For example, even though you may operate many services in the same building, identify the essential operation of each service separately. The essential operations of your housing may differ from the operation of legal advocacy, support groups, or parent groups.

Consider the nature of the services. Does the service carry with it a particular need for privacy such as sleeping quarters? What are the positive and negative consequences to all beneficiaries of segregating the services? Is there literature on this or evidence- based practices? How will this affect transgender, two-spirit, or gender nonconforming beneficiaries? If you operate only sex-segregated services, a beneficiary must openly declare a choice, for the women's group or a men's group. Also consider whether other recipients successfully provide same service in a non-sex-segregated way. Again, do not assume that just because you have segregated services in the past that it is still necessary.

Remember that if you are providing sex-segregated services, you must provide comparable services. Women-only services must be comparable to men-only services. And both must be comparable to integrated services. Comparable services are designed to confer a substantially equal benefit. Consider the nature and quality of services, therapeutic modality, location, characteristics of the facility, and characteristics of the service provider.

Gender identity is a person's internal view of their own gender, which may or may not correspond to sex assigned at birth, as we noted and touched on this earlier in the slide.

So how may a recipients operate sex-segregated or sex-specific services and not discriminate based on actual or perceived gender identity, you may be asking yourself. A recipient should find a beneficiary to the group or service which corresponds to the gender with which the beneficiary identifies with the following considerations. In deciding how to house a victim, a recipient that provides sex-segregated housing may consider on a case-by-case basis whether a particular housing assignment would ensure the victim's health and safety. A victim's own views with respect to personal safety deserves serious consideration. The recipient should ensure that its services do not isolate and do not segregate victims based upon actual or perceived gender identity. A recipient may not make a determination about services for one beneficiary based on the complaint of another beneficiary when those complaints are based on gender identity. For the purposes of assigning a beneficiary to sex-segregated or sex-specific services, best practices dictate that the recipient should ask the beneficiary which group or service the beneficiary wishes to join. The recipient may not however ask about the beneficiary's anatomy or medical history or make burdensome demands for identity documents.

And I know--I heard maybe one or two people tried to speak, I wasn't sure whether or not that was on purpose or if it--if it was just a mistake.

Okay. It sounds like it's probably just a mistake. I'm going to move on.

Next section, we'll be discussing faith-based organizations. So federal laws ensure that no organization will be discriminated against in a DOJ-funded program based on religion and that services are available to all regardless of religion. Executive Order 13279 ensures a level playing field for where the participation of faith-based organizations as well as other community organizations. Executive Order 13279 defines religion as all aspects of religious practice as well as beliefs, which includes sincerely held moral or ethical beliefs. These provisions are in the executive order but are fleshed out in the associated regulation. An FBO may retain its religious icons in a room where it serves beneficiaries with federal funds, however funds may not be used for a conversion efforts. An FBO may not deny services to a person who either is of a different belief or has no religious belief.

Funded FBOs do not force it. Title VII [VI] exemptions from religious discrimination and employment. So the DOJ has to determine that on a case-by-case basis, the Religious Freedom Restoration Act may allow grantee FBOs to hire based on religion. An FBO must certify that, one, it will offer all federally funded services to all qualified beneficiaries; two, explicitly religious activities will be voluntary and kept separate from federally funded activities; and three, it is a religious organization that sincerely believes that abandoning its religious hiring practice in order to receive federally funding would substantially burden its religious exercise. Funded FBOs are subject to the VAWA nondiscrimination grant conditions that seek an exemption to the prohibition against religious discrimination in employment must complete and retain an original signed document for their record, certifying to the three provisions I just mentioned. They must then, submit a copy of the signed certificate of exemption to the DOJ after receipt of an award.

FBOs must give written notice to beneficiaries and perspective beneficiaries that the FBO will not discriminate on the basis of religion, a religious belief, or a refusal to hold a religious belief. The FBO will not require beneficiaries to participate in explicitly religious activities. If the--if the beneficiary objects to the religious character of the recipient, the FBO will undertake reasonable efforts to refer the beneficiary to an alternative provider and the FBO will report violations to the OCR or the intermediary agency that awarded the funds to the organization.

If the beneficiary objects to the religious character of the FBO, the FBO will undertake reasonable effort to identify and refer the beneficiary to an alternative provider that is acceptable to the beneficiary. The alternative provider must be in a reasonable geographical proximity to the FBO and offer services comparable in substance and quality. The FBO must maintain a record of the referral. If the FBO is unable to identify an alternative provider, it shall notify the SAA or the DOJ. The FBO must provide this written notice prior to the provision of services.

All right. We have our hypotheticals for FBOs. There's two. I'll read them out and give you, you know, you can put your answer in the chat. One, an atheist participant in a human trafficking support group run by a funded FBO is required to participate in an opening prayer session before the group begins. And two, a woman seeking services at a local nonprofit shelter for human trafficking survivors is told not to use her prayer rug in her room while she is a resident of the shelter. Are these acceptable practices for a federally funded FBO?

Okay. I'm starting to see answers in the chat. If you put in the chat or if you were thinking it, “no” is the correct answer. A funded FBO cannot require beneficiaries to participate in religious exercises or programs with faith content. Furthermore, a funded FBO cannot deny beneficiary access of religious services, pastoral counselor, special dietary needs, or items of the beneficiary's faith.

So I know we, between Mona and I, have covered a lot of information today. We provide--you'll have the slides. You'll have the presentation. But if you need more information, if you have more questions, there are web resources. We have the OCR online training that you can see the web address. You have for disability information, the ADA.gov. It's a great resource. And for LEP information, LEP.gov is also great resources and information.

If you have specific questions and you want to reach out to the OCR, here's our contact information. We have an email address. We have a phone number. You are always welcome to reach out to our office directly. We appreciate you and we're here to provide technical assistance and answer your questions when we're able to.

And now, this is the end of the presentation and we want to give all of you an opportunity to ask questions. I'm going to pass it over to Mona.

MONA MAFI: Thanks, Zorayda. And thank you everyone for your attention. I'm going to go ahead and address some of the questions that we've [INDISTINCT] and having access to services. I'm glad this question was asked. This is a good question. I've heard from our program offices that this question comes up often. I understand the intent here is not about, you know, a supremacist group. This is with an eye to helping remedy harm. However, the answer here is no, absolutely not. That's something that's very important as a takeaway. And there are a couple of exceptions. Now, as we discussed earlier in the presentation, American Indian, and Alaskan Native tribes have a special exception regarding hiring. So they have the special exception where they can hire keeping race into consideration. Nobody else has that ability. Also worth mentioning here, what Zorayda covered with FBOs, the faith-based organizations, they have an exception where they can consider religion, again, just in hiring, not in the delivery of services or benefits. But those are special exceptions. And back to race, you absolutely cannot post that you're looking for people of a particular race. You cannot give preference to people of a particular race. However, if it is related to experience, you can say what you're looking for in terms of experience.

So I'll give an example to clarify. So it is completely prohibited to say something like, "We prefer Vietnamese applicants," for example. That is not allowed. But you can say in a job posting, "We prefer people who have experience serving Vietnamese victims of crime." That's related to the job. That's appropriate in terms of the person's experience. It does not have to do with the individual race of the applicant. So I hope that clarifies that. Feel free to pop something else in the Q&A.

The next thing that came up, somebody mentioned, “that they had tried contacting our general email and did not have luck that way.”

Sorry to hear that. A couple things to say about that. Firstly, the email is monitored but, you know, there's lots of emails that go through. If someone happens to run into trouble, they can reach out to their grant manager to contact us. However, I will also put my individual work email in the Q&A right now so everyone has that. I would hate to see anybody have that problem. And actually, I'm not sure. It's not--it's not letting me send it. So maybe if I put it in the chat, let's see. I'm not--okay. Well, I will just state it and hopefully maybe one of the--our moderators can kindly enter it in. It's just my first name Mona, M-O-N-A, ., my last name Mafi, excuse me, M as in Mary, A, F as in Florida, I, [email protected]. Short for government. So everyone now has my individual work email, in case you were to not get through and don't know who your grant manager is, we would not want you to not be able to reach out to us.

There was also a question, somebody talked about the Honolulu Department of the Prosecuting Attorney. It says they have a language access plan with a complete procedure included. And the question was, "Does DOJ OCR require an appeal process?" And the person said, "Reading, guidance, and plan requirements, they've not seen this requirement but would like to confirm.”

This looks like--I have a couple thoughts on this. I think this question might be about two different things. So, I'll address both of them. It's--I think--I'm not sure if this person is talking about a complaint process with our office, but just to address that briefly. If someone, the beneficiary of a programing service, an individual receiving services filed a complaint with our office, the OCR, the recipient organization always provides their feedback in response to the complaint. So they do have input and we do include that in our findings before our office makes a determination. And as I mentioned previously, even if we find that there is a violation, our first goal is to work with the recipient organization to help them come into compliance. This referred to a prosecutorial agency. There are actually specific considerations for LEP regarding prosecutorial agencies, which is on LEP.gov.

But I think the other thing that this question might be about, which I think is maybe more likely, and again, please feel free to clarify this in the Q&A, if someone wants to follow- up on this. But this looks like this is specific to a locality, the Honolulu Department of Prosecuting Attorney or and maybe the State Attorney General. I'm not sure which office you're referring to. But states and localities are allowed and they often do have civil rights requirements that go above and beyond federal law. So when we talk about federal laws, you have to think of it like a floor. It's providing the minimum amount of civil rights that everyone in the country has to at least have. And in certain parts of the country, that is all they have, because the state is not interested in giving civil rights to its citizens unfortunately, and so what federal law is doing at least providing that and ensuring that people have that but we do often see most states will go on to have further requirements. So if an organization is operating within a particular state or locality, then that--they would have to follow the requirements of the state or locality, in addition to the federal laws. If they go above and beyond the federal laws, that's something that the state or locality would enforce and follow up with.

And then I see here someone, "Can you repeat the question?" So the question, it said, "The Honolulu Department of the Prosecuting Attorney has a language access plan with a complaint procedure included. Please let me know if DOJ OCR requires an appeal process? Reading, guidance, and plan requirements, I've not seen such requirement but I'd like to confirm."

I think the person is saying that on a local level, they're saying that in addition to having, you know, as part of a language access plan, there needs to be an appeal process. And I think the person asking, "Is that a federal requirement?" But what I'm saying is that, if its--the state and local entities have the ability to require beyond what we--what we actually ask for in federal law.

And I see here, there's a question, “as an FBO, faith-based organization, is there a specific form that we are to use to seek the exemption from Title VI?”

Well, it says here Title VII, I think you mean Title VI. Yes. So well, Title VI is race, color, national origin, but I think you're referring to the Safe Streets Act, which adds religion and sex. So if you refer--if the question refers to the ability to hire--consider religion when hiring, and faith-based organizations may do that, yes. Okay. So thank you for that. So yes, there is a form. We don't have a link to the form but please email me and I would be happy to provide that. Again, [email protected]. And I saw--I think that was put into the chat. So you can email me and I'd be happy to send you the form.

Once that form is submitted, as long as it's based on a sincerely held religious belief, we approve that.

I don't see other questions and I see we are up on the end of our time here. Thank you all very much for your time. We appreciate it. As I said, you know, we’ve covered a lot of information. We don’t expect anyone to become an expert, but just to be aware so that if these issues come up, we're here to get in touch with us either directly or through your grant manager and we're happy to work with you. Thank you for all the wonderful work you're doing in your communities. That's it for us at OCR. I don't know if the moderators have anything further to add.

DARYL FOX: Nope. That will be all today. And just a reminder for everybody registered and on today's call that the items--post-event items will be posted to the OVC website. You'll receive an email notice to when those are. So that will end today's presentation. Thank you.