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 Assisted--Assistance hosted by the Office for Victims of Crime and OJP's Office for Civil Rights. At this time, it's my pleasure to introduce Mona Mafi, attorney with OJP's Office for Civil Rights, to begin the presentation. Mona?

MONA MAFI: Thanks, Daryl. Good afternoon or good morning depending on where you are. It's a pleasure to be here with you today. My name is Mona Mafi and I'll let my colleague introduce himself.

SEBASTIAN AMAR: Hi, good afternoon for those of you on the East Coast. I'm Sebastian Amar.

MONA MAFI: Thank you all for the wonderful work that you're doing out in your communities and congratulations on being a recipient of federal funds, whether this is your first time or whether you've done this before. You're doing really important work and that's why the government has decided to fund your activities. And we are here to help you to do your jobs in the best possible way and to maintain compliance with civil rights laws.

Today, I'm going to run us through about half--roughly halfway through our presentation, and then we'll take a brief break, and then my colleague, Sebastian, will take us through to the end. We do ask that--we will address questions at the end of the presentation just because when we go over the content, there are a lot of topics that we're going to mention briefly before we get into them in greater detail. But you can feel free to type your questions into the Q&A portion of the presentation at any point, and we'll make sure to address them at the end.

There's a lot of information that we're going to cover today in the PowerPoint. You will be receiving a copy of this presentation. Some of the slides are very dense with information. You'll have all of that, all of the resources in them, and all of the content, so there's no need to take notes on that. In addition, we're going to give you ways to contact our office directly should you have any questions in the future. And Sebastian and I will provide our own personal work information for you to reach out to us. We are here as a resource for you.

And with that--I'm just going to also explain that when you send us a question in Q&A, if that's confidential for any reason, please let us know in the question itself, and if that's the case, we'll make sure to not respond in a way that everyone will view. Otherwise, our default will be to respond to questions and address them to the group at large. Thanks so much. And with that, we will jump right into the slides.

Starting off here, because we're lawyers here, we have to give you a little legal disclaimer, a little bit of a legal housekeeping, if you will, that the content we're covering today is not legal advice. So this is for informational purposes. And as I mentioned, we are going to cover a great deal of information. We're not expecting you to memorize it or be able to solve every legal problem, but the purpose is for you to become familiar with the things we're going to raise today so that you're aware when you're going out and doing your work, that these are issues you need to be aware of, and that if you come across any hurdles or speed bumps to please reach out to us. And part of our job is to ensure that you have your work smoothly facilitated so that you can be in compliance with federal civil rights laws.

A little bit about our office, and to explain who we are within the U.S. Department of Justice. We're part of the Office of Justice Programs known as OJP. Essentially, the grant-giving arm of DOJ, and the Office of Civil Rights within that ensures that the recipients of that financial assistance, whether that financial assistance comes from OJP or from the COPS Office [The Office of Community Oriented Policing Services] or from OVW [The Office on Violence Against Women], that these recipients comply with federal laws that prohibit discrimination in employment and the delivery of services or benefits. A note here, because our office is often confused with the Civil Rights Division in the Department of Justice, but they're a different entity than us. Our authority comes from the receipt of federal funds, and that is the main way that we differ from them.

The main thing to note at the outset of this training is that whenever there is federal funding involved, there are always civil rights requirements that accompany this funding. So some people find it helpful to think of us--or the--what we're gonna cover today as sort of civil rights strings to the money that's handed out. But essentially, because that money is given and used, these civil rights obligations come into play. The underlying principle behind this is that all of the money that is given out through these federal funds comes from taxpayer dollars that we all pay. And so, because every group pays taxes, it's not fair for any one of those groups to be discriminated against using those same funds. So that's sort of the underlying principle there.

Another thing for us--that's helpful for us to cover at the outset here is that we're going to use two key terms, “recipient” and “beneficiary.” When we use the term recipient, we're talking about the organization or agency that receives the federal financial assistance. That's you all. It can be nonprofits, state administering agencies, or lots of different entities that receive federal funds; that is termed a recipient. And the second term, beneficiary, refers to the person who ultimately receives the services or benefits of the federally-funded program.

Taking a look at what our office enforces, the first five things you see listed on this slide are referred to as federal crosscutting civil rights statutes. So those first five things up here, and we're going to go through all of this in great detail, but the first five things here apply to recipients of federal financial assistance regardless of the agency. So everyone here today has received money from DOJ, but even if some--an entity were to receive funds from a different federal agency, all of these federal civil rights statutes would still apply. We're aware that some of you have received funds through VOCA and others through TVPA, and we will be getting into detail about all of that to make it very clear where there are distinctions. But the thing to note at this point is that these first things, the first five things here are applicable to all recipients of federal financial assistance. And the last program statutes that we'll also go into detail are specific to grantees, recipients who received funding through those specific statutes.

So Title VI of the Civil Rights Act prohibits discrimination based on race, color, and national origin in the delivery of services or benefits. And then the next two relate to discrimination on the basis of disability. The first, Section 504 prohibits discrimination based on disability and employment in the delivery of services or benefits. And Title II of the Americans with Disabilities Act prohibits discrimination based on disability in services and employment programs and activities by state and local government. The Age Discrimination Act covers discrimination based on age in services or benefits only. So it’s important to note that this does not include employment. That is a different statute that does not fall under the jurisdiction of our office. Title IX of the Education Amendments prohibits sex discrimination in educational programs and activities. And many of you may be aware of Title IX through enhancement of opportunities in women’s sports that have resulted from the law, so that’s Title IX. It applies only to educational programs or activities.

And then this last part, the program statutes are what OCR enforces, our office, OCR enforces with--and they have their own non-discrimination provisions. So these are applied in addition to all of the federal civil rights statutes that we said applies to everyone receiving funds, whether it’s DOJ or not. But these are going to have their own--sometimes they add additional layers of civil rights protections. And we’ll be going through all of this. There's the Victims of Crime Act known as VOCA, the Violence Against Women Act, known as VAWA, the Omnibus Crime Control and Safe Streets Act that's referred to as the Safe Streets Act, and the Juvenile Justice and Delinquency Prevention Act, which is the--referred to as the JJDPA. And again, we’ll be covering all of this in great detail.

To understand the way that civil rights protections work, it's important to note the concept of a protected class. So a protected class is a group of people who benefit from protection by law. When an individual person brings a discrimination claim, that person is not actually pursuing that claim under the law based on how that person has been treated 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 that is why the concept of a protected class is important. As you'll note here, the protected classes are race, color--and the reason why color is separate than race is because people can be members of one race, but have different colors and be treated differently because of that. So we have race, we have color. We have national origin, which is the protected class related to limited English proficiency that we'll get into later. We have religion. We have sex, that includes sexual harassment, and that will--we'll talk about some recent changes regarding unprotected class of sex in just a moment. We have disability. We have age. And then sexual orientation and gender identity only come up in VAWA in the text, but we'll look at why it's significant because of some recent interpretations that we'll cover.

So recently, the Supreme Court--fairly recently came out with a case that interpreted the definition of sex as a protected class, and they ruled that gender identity and sexual orientation are also part of that. So although VAWA is the only program statute that mentions gender identity and sexual orientation explicitly, given the new changes that we have in interpretation of the law, it's safe for us to include gender identity and sexual orientation within the definition of sex itself as a protected class. This is just the executive order that President Biden issued in relation to that. And also, that DOJ has issued a notice that makes--clarifies that for the program statutes, this broadened interpretation of sex will be used. So that's why it's significant for grantees of VOCA. And sorry, just really quickly, that sexual orientation, gender identity, and it also includes intersex traits which relates to the--an individual’s physical body at the time of birth.

The other thing to note here is that when we talk about unlawful discrimination, we include discrimination, all of the protected classes we discussed, and there's also retaliation. And a retaliation claim may stand on its own regardless of the merits of the underlying discrimination. So for example, someone can say that they filed a discrimination claim, let's say, on the basis of race, and then, you know, 5 days later they were pulled off of a prestigious project they were working on, 10 days later they were--their desk was moved to the basement, and three weeks later, they were fired. In a case like that, even if we could never actually prove the underlying allegations about race discrimination there, if we could tie the actions of the employer to the action of the complaint, we might still be able to pursue retaliation in and of itself. So to reiterate, retaliation is itself unlawful discrimination.

Looking at the technical side of who's subject to these laws, we're going to go into more detail about programs and activities, but we have a few examples to help us at this point. As you can see on the slide, the first is if the state Department of Public Safety receives federal funding and subawards the funding to a local community-based organization or 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's essentially a way that the money is followed through the path that it is doled out, even if it's subawarded. The second example here that if a race--rape crisis center receives federal funds and uses them to operate particular programs, all of the funds of the center are covered, not just the federally-funded ones. And lastly, 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. So we’ll get into more detail about that, but this is just to introduce us to the idea of what it means to say program or activity.

Looking at our office, the Office for Civil Rights and what we do, there's four components to what we do. A lot of our work is technical assistance, which can be done by email, phone, or onsite training programs. What we're doing today with you all is consider technical assistance, but essentially we're there to help recipients of federal funds to get the information they need, work through any issues they might have. Our goal is always to help recipients keep their funds, because ultimately we all want for the beneficiaries of these funds, individuals benefiting from these programs, to be able to have access to these programs and reap those benefits. So our goal is to figure out together how to do--get the work done in a way that complies with civil rights laws.

Administrative complaint investigations is a large part of what we do, probably the largest, where we have complaints from either individuals or even third parties sometimes that come in and will lodge a complaint against an entity that receives federal funds.

We also do compliance reviews. They are larger in scope than a single complaint, which generally focuses on one individual or one particular instance. A compliance review is helpful to think of in terms of a civil rights audit, so it can often be larger in scope. And there are different reasons why we may open one, but for example, if we get multiple complaints from a--about a single entity in a short amount of time, we may choose to open a compliance review.

And Equal Employment Opportunity Plans, EEOPs, are also part of what we do. There are a couple of staff in our office that do an amazing job with just that, and there are some--we're going to explain all of that further. There's some slides in there that give you direct access to the people in our office who take care of the EEOP portion.

Looking specifically at the complaint process with our office, as I mentioned, an individual person can file a complaint with us. So, for example, a client of an organization or an employee or someone who applied for employment, and also a third party. So we do get a great deal of complaints from incarcerated individuals and in that case, we’ll often see family members write in or someone writing on behalf of someone else. We can accept all of that.

Our process is that we first check to make sure that we have jurisdiction. So we have to confirm that the entity that's complained against does receive federal funds, and then we do an investigation. So although lawyers typically advocate for one side or the other, that's not really what we do. Our job is more like a judge in the sense that we are looking objectively at what took place and making a fair assessment of both sides and trying to gather as much information as possible. If we find that there's an issue, our goal is always voluntary compliance. So as I mentioned, we want for everyone receiving funds to be able to continue their important work that everyone's doing out in their communities. We don't want that money to be taken away, suspended, or terminated. So although that's listed on this slide, that's just for your general awareness. The goal is always for there to be voluntary compliance.

A note on Tribes, there are obligations of federally funded Tribes and they do have some ways that they're different from other recipients. So Tribes may be eligible for federal grants as a unit of local government. And the ways that things are a little bit different for them are first, that they are not bound by DOJ program statutes regarding employment discrimination. So, if a Tribe chooses to hire based on people who are members of that Tribe, that's okay, that doesn't violate federal civil rights laws and so that is a distinction that sets Tribes apart from other recipients. And then secondly, that Tribes are exempt from the requirement under the Safe Streets Act to prepare or submit an EEOP. So they just have to file a certification, in case that applies to any of our grantees today. And also noting that, again regarding Tribes that the basis--the protected class basis is race or national origin, but sometimes religion does get added in as well. So if there's something related to religious practice then we can rely on the religion protected class. And something else to note is that the legal definition of American Indian for civil rights protection is not the same as other programs, so just something to note there.

And we're going to look at Title VI of the Civil Rights Act. So this is a big one. As many of you are aware from our history in the '60s, this is a very significant piece of legislation. So let's jump right in. Looking at the language here, what Title VI protection provides is--on the ground of race, color, or national origin and related to any program or activity. So what--some examples of what Title VI prohibits are listed here and that's there for you. Essentially, any discrimination based on race, color, or national origin. Regarding selecting a site or location with a purpose or effect of discriminating, that last bullet there, we'll just mention that an example of that can be--there's an area with a large East Asian population and a drop-in shelter is built in a neighborhood far away from any neighborhood with a high concentration of East Asian residents. So that's an example of the site selection that can be discriminatory.

Moving on to Limited English Proficiency, that's defined as--we refer to it as LEP and an LEP individual is defined as someone who does not speak English as their primary language and who has a limited ability to read, write, speak, or understand English. And again, this relates to the national origin category, the national origin protected class. So to prevent LEP discrimination, there are a few things that recipients have to keep in mind. Reasonable steps to ensure meaningful access. Those are sort of the key phrases, reasonable steps and meaningful access to program, services, and information free of charge. And establishing an LEP implementation plan to address identified language assistance needs of the LEP population, DOJ uses a four factor analysis. We look at the number or proportion of people, the frequency that they come into contact with the program, the nature and importance of the program, and the resources available to them. And there is a great deal of content out there that’s helpful for those who need to look into LEP regulations and LEP compliance further.

It's helpful for us to think about what needs to be provided here. So there's free oral language services and free translation of vital documents. So regarding the language services, it's important to note here that family members, friends, anyone uncertified, or even Google Translate are not appropriate. For people familiar with language lines and other telephonic ways of having translation that usually is sufficient, so that's usually okay. And then when we look at the free translation of vital documents, there is a safe harbor provision. So there's a threshold to be met here in order for the translation of vital documents for free to be necessitated. And that is if five percent of the service population or one thousand, whichever is less, is LEP, then the vital documents do have to be translated. But if you don't hit that threshold, if it's 5 percent is fewer than 50, then a written notice of free written translation upon request has to be provided. So it does depend on the numbers. And when we talk about an LEP population, we are not looking at everyone who's LEP as one large group. We are looking at people who speak a particular language. So if the Spanish-speaking population would be considered a separate population than the Vietnamese-speaking population, and you would look at those numbers according to each specific population.

Taking a closer look at what is meaningful access. We talked about that being an important phrase, your meaningful access. We'll look at a couple of examples that will help us flesh out this idea a little more. So for example, if there's a victim services program, and it's the intake process and an employee interviews a Spanish-speaking LEP victim of abuse, using hand gestures and having the individual speak in whatever English they can, but broken English and without interpretation. That's our first example here. The second example is a police officer attempts to question a victim of domestic violence by using the alleged abuser as an interpreter. So the question here is, “Have these individuals been afforded meaningful access?” So hopefully this is an easy question to answer. The answer is, “No,” and that they were not afforded meaningful access. And it is something that can be fact-specific. But these are examples of where they definitely did not meet the threshold for meaningful access.

There are five elements for what we're looking for in a written LEP policy. And the first is a process for identifying those people who need that language assistance. The second is information about the available language assistance measures. Third is training for staff of the organization. Fourth is notice to the LEP individuals themselves. And the fifth is that the LEP policy is monitored and updated over time. And this is a very brief overview of LEP protections, but there are a wealth of resources on this topic. We cite the LEP.gov website in our slides later in our resources section, and there's a great deal of information there for you as well. But this, again, is just to familiarize yourselves with the LEP issues that exist.

And we're going to shift the gears here and move on to disability related protections. We've got Section 504, Title II of ADA [Americans with Disabilities Act], and then the Americans with Disabilities Act Amendment Act. So to take a look at what the discrimination laws state, Section 504 prohibits discrimination on the basis of disability by recipients of federal funding. Title II of the ADA prohibits discrimination on the basis of disability, and it applies to public entities whether or not they receive federal funding. So obviously when--in our context, we're looking at recipients of federal funds, but the Title II actually goes even beyond that and it's not restricted to those that receive funding. And then looking at the ADA Amendment Act, that was put into--as--essentially as a corrective, so to restore the intent and protections of the ADA of 1990. This is because Congress found that the definition of quote unquote here "handicapped person" had not been interpreted consistently with Section 504. So that was to correct and ensure that the laws were being applied correctly moving forward.

504 specifically what it provides is that a--otherwise--no otherwise qualified individual with a disability, solely by reason of her or his disability, can be excluded. That's the-what the actual language of the statute provides. And a person with a disability or disabilities is a person who—we’re looking for one of three prongs here, that they—that person has a physical or mental impairment, which substantially limits one or more major life activities; the person has a record of such an impairment; or the person is regarded as having an impairment.

The 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 a mobility, hearing, or vision impairment, but some physical impairments may not be readily apparent to an outside observer. For example, a person with disabilities could have a mental or psychological disorder, including certain learning disabilities that might not be apparent without testing or disclosure.

The term “substantially limits,” when we're saying substantially limits one or more major life activities, is a somewhat vague concept. And factors to consider are the duration of the impairment, impact of the impairment, and the nature and severity of the impairment. So that the technical range here that we're looking for substantially limits is less than significantly restricted, but more than materially restricts. So, an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when it is active.

And when we think of what constitutes a major life activity, statutory law now gives a list of examples. So we know that major life activities include caring for oneself, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, among other things that include functions of systems such as the immune system, the digestive system, and operation of a major bodily function also includes normal cell growth. So cancer is an example of substantially limited normal cell growth.

Looking at that second prong there, a record of an impairment. This applies to someone who, for example, may have had an impairment and no longer does. If an individual had ADHD in the past and doesn't have it at the moment, but then for example, is not hired based on that, then we would say that person was discriminated against because of that person's record of such an impairment.

And then that last prong “regarded as,” what we mean by that is when someone is discriminated against because of a perceived impairment, whether or not it actually does impair and limit a major life activity. So those are the things to consider there. And ADA.gov is a website that has a great deal of information and we also include it--sorry, in our resources list that is there for more information. We do have some examples of prohibited disability discrimination here that you can read. Essentially, denial or different or separate treatment or ineffective communication.

In the disability discrimination analysis, funding recipients such as yourself must provide reasonable accommodation. That's the key here, reasonable accommodation. Unless you can demonstrate that it would be an undue hardship or would fundamentally alter the service or activity. But reasonable accommodations are always the standard, “unless” is that--one of those exceptions. And again, the thing to note here is that every case requires an individualized analysis. And this is partly because individuals with disabilities are not a homogenous group, even when they have the same disability, because it could manifest differently for different people.

So we're going to take a look at this hypothetical here that a shelter for victims of violence receives federal funds. And they have a blanket policy, as in bold there as a hint, that residents cannot take any prescribed psychotropic medications while staying at the shelter. Is this policy acceptable under federal discrimination--disability discrimination laws? The answer is no. And this example is here to reinforce the fact that having a blanket exclusionary policy is generally discriminatory, because for example, there--in this particular example, there may be someone who has a mental health disability that's controlled by medication. So for the purposes of your own work, you'll want to know that you always want to perform individualized assessments. And in that way, there won't be this presumption of discrimination.

Another thing to note about Section 504 is that it applies to recipients with 50 or more employees and receiving $25,000 or more. So some small entities that receive federal funds don't meet this threshold, but if you do have 50 or more employees and you're receiving more than $25,000, then the three things that need to be done are adopting-I'm sorry, designating a Section 504 compliance coordinator, adopting grievance procedures, and notification. And these--the resources are listed here, ADA.gov and excellent resources also appears again at our--on our resources slide. And again, everyone will receive all of this information.

And now that we've gone through the disability section, this is time for a short break. I'm seeing that it's 2:34. So maybe if it makes sense to come back at--I think if we can come back at maybe 2:40, if Sebastian and Daryl, you can let me know if you think 2:40 is a good time or if…

DARYL FOX: Yea I think that’s fine.

MONA MAFI: Okay. Great. So, I’ll just throw a note in the chat here that we will take a short break, give everyone a chance to regroup, and then we’ll start with the rest of the presentation with Sebastian at 2:40 p.m., eastern time. Thank you.

[Short break in the presentation]

SEBASTIAN AMAR: All right, everybody. Welcome back. Hope everybody got stretched their legs a little bit. We’re going to get started here in a second. Daryl, do you want to pass over the thumbnail view to me? All right. So we’re going to shift gears a little bit here and touch on some of the other civil rights laws, which are a little bit 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 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 steps. First, they have to appoint a Title IX coordinator. They must also implement grievance procedures for filing Title IX complaints. And they must notify interested parties that the recipient agency does not discriminate based on sex.

We're going to shift now to the Age Discrimination Act of 1975. As Mona mentioned, there's another law, the Age Discrimination in Employment Act or ADEA, which OCR does not enforce. And that deals with employment discrimination for folks who are age 40 or older. When referring to age as a protected class in the context of the laws that OCR enforces, it's important to understand that the protection only applies to the delivery of benefits or services and not to employment.

So the Age Discrimination Act states that a federally funded organization cannot discriminate in the delivery of services regardless of age. And so what that means is that it's any age whether the beneficiary is eight years old or eighty years old. It's also important to note that when it comes to age, the standard that courts use for assessing whether discrimination occurred is what we call a rational basis standard. And what that means is that 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. So, for example, programs funded by the DOJ that focus on the needs of juveniles are not discriminatory based on age, if the programs can provide a reason for limiting services to a particular age group. So some of these reasons might include that state laws consider age and criminal sentencing or that a program is geared towards young people at a particular stage of educational or psychological development.

I want to take a second here just to note, as Mona had mentioned earlier, that with the Trafficking Victims Protection Act, you know, those grantees that come--have funds that come through the TVPA are still required to comply with all the federal civil rights statutes. The difference here is that while VOCA and VAWA might require additional civil rights protections, those organizations or programs and services funded through TVPA do not have those same additional civil rights requirements.

So what we just summarized are what we call the crosscutting statutes that apply to recipients of federal financial assistance. 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, as Mona had mentioned earlier in the presentation, contain specific nondiscrimination provisions, some of which overlap and are duplicative of other protections that already exist in federal statutes and some which carry additional protections. These are applicable if your organization receives grants through these statutes. And these program statutes are, again, the Omnibus Crime Control and Safe Streets Act, the Juvenile Justice and Delinquency Prevention Act, the Victims of Crime Act, and the Violence Against Women Act and its reauthorization.

So the Safe Streets Act is the principle program statute that OCR enforces. And it tracks Title VI adding other protective categories that are noted here in red. In addition to race, color, and national origin, the Safe Streets Act protects against discrimination based on religion or sex. Unlike Title VI, the Safe Streets Act applies to both employment and benefits. However, along 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 prohibitions against discrimination. The Safe Streets Act covers programs or activities whether they're funded in whole or in part even if the funding amounts to $1. It doesn't matter how much federal funding you get, even if it's a small portion of your budget, as long as an organization receives any federal financial assistance, it must comply with the nondiscrimination provisions in the law.

Many of the OJP awards are made under the authority of the Victims of Crime Act of 1984. A nondiscrimination provision in VOCA which prohibits discrimination based on race, color, religion, national origin, disability, or sex applies to each of these awards. Two examples of OJP grant programs that are encompassed by this nondiscrimination provision are VOCA compensation formula grants and VOCA assistance formula grants. I want to note quickly here that VOCA's nondiscrimination provision is similar to Title VI and the Safe Streets Act with two differences. The first, is that it expands the protective classes so that the statute not only prohibits discrimination based on race, color, national origin, sex, and religion, but it also includes the additional protected class of disability. And second, VOCA uses the word undertaking, which means the same as our current understanding of program or activity. And so, that's to say that the nondiscrimination provision of VOCA applies to all of a recipient’s operations, not just the particular program.

I want to just look at this particular slide for a second, and folks should note this when you're going back through the presentation. Especially those of you who are funded through TVPA, it's a good way to visualize the differences between what's required under TVPA and what's required under VOCA. The main takeaway from this chart is that everyone is subject to the federal civil rights requirements which are bold and underlined, but if you are funded by TVPA, you don't have any sex-based discrimination provisions beyond what is required by Title IX. So the VOCA and VAWA requirements that are in this presentation and the factors to consider don't apply in those instances where a program is funded by TVPA, because they are not requirements that are enclosed by Title IX.

The Violence Against Women Reauthorization Act of 2013 was signed or March 7th, 2013 and 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, including for example the Stop Violence Against Women and Sexual Assault Services formula grant programs. The act provides that 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 or denied the benefits of, or be subjected to discrimination under any program or activity funded in a 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, or other assistance administered by the OVW.

The VAWA nondiscrimination grant condition provides a caveat provision on discriminating on the basis of sex. You may not discriminate based on sex, but there may be situations where you may segregate one or more of your services based on sex or situations where you may be able to tailor a particular service based on sex. VAWA allows for sex-segregation or sex-specific programing if it's necessary to the essential operation of a program. And in those situations, recipients may meet the VAWA nondiscrimination grant confirm by providing comfortable services to individuals who cannot be provided with the sex-segregated or sex-specific programing.

I just want to note here that sex is the only basis on which you may segregate beneficiaries. And also want to underscore that 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 the title.

So what grants are covered by the grant condition? The--it took effect on October 1st, 2013. And the big thing to note here is that any grants awarded on or after October 1st, 2013 will be covered by this VAWA nondiscrimination grant condition. It applies to all recipients, including funded state administering agencies, faith-based organizations, and law enforcement agencies.

So this is just a reminder of something that we touched upon when we were reviewing the statutory language in an earlier slide. 

The idea here that sex-segregated or sex-specific services are allowed when they're necessary to the essential operation of the program. Think of things like emergency shelters for domestic violence victims as an example of a service that victim service providers historically have segregated by sex. An example of a sex-specific program for example would be the bystander intervention component of some educational programs on college campuses. Oftentimes these campus programs teach different violence prevention skills to male and female students.

If DOJ receives a complaint of sex discrimination based on a recipient sex-segregated or sex-specific services, the onus will always be on the recipient to clearly articulate why sex-segregation or sex-specific programing was necessary to the essential operations of the program. What we'll expect of recipients is that they support their justifications with an assessment of the facts and circumstances surrounding this specific program and take into account any established best practices and research findings that might be applicable. The justification can't rely just on an unsupported assumption or overly broad sex-based generalization.

Some factors that may be relevant to a recipient's evaluation of whether sex-segregated or sex-specific programing is necessary to the essential operations of the program include the nature of the service, the anticipated positive and negative consequences to all eligible beneficiaries of not providing the program in a sex-segregated or sex-specific manner, literature on the efficacy of the service being sex-segregated or sex-specific, the impact on transgender individuals seeking services, and whether similarly-situated recipients providing the same services have been successful in providing those services effectively in a manner that does not segregate based on sex or it does not make a program sex-specific. A recipient may not provide sex-segregated or sex-specific services for reasons that are trivial or based solely on the recipient's convenience. Recipients also should not assume that because services have been sex-segregated or sex-specific in the past, continued sex-segregation or sex-specificity is necessary to its programming.

Very quickly here, one of the requirements under VAWA is that if you are going to have sex-segregation or sex-specific programing, you have to provide what they call comparable services. A comparable service is one that is designed to confer a substantially equal benefit. So factors that DOJ will consider either individually or in the aggregate if it's appropriate to do so, and determining whether services are comparable, include the nature and quality of the services provide, the relative benefits of different therapeutic modalities or interventions, geographic location, or other aspects of accessibility, the characteristics of the facilities where the services are provided, and the characteristics of the individuals who provide the services. Now, it's important to note that services don't have to be identical to be comparable, but they must be of the same or similar quality and duration.

Just as a brief refresher here. When we talk about gender identity, we are talking about a person's internal view of their own gender which may or may not correspond to their sex assigned at birth. Again here, when talking about serving transgender clients in sex-segregated settings, always important to make sure that you're assigning clients to services that correspond to the gender with which they identify, so ask your clients. The other big takeaway here is that you should not isolate or segregate transgender clients and you should not make burdensome demands for identity documents or inquire as to whether they've had any particular surgeries or medical interventions, you shouldn't ask questions about their anatomy, things like that.

I want to shift now a little bit to the funded faith-based organizations. Federal law ensures 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 the participation of faith-based organizations, as well as other community organizations. The executive order defines religion as all aspects of religious practice as well as belief, which includes sincerely held moral or ethical beliefs. Now, these provisions are all in the executive order but are also fleshed out in the associated regulations. An FBO [faith-based organization] may retain its religious icons in the room where it serves beneficiaries with federal funds. However, those funds may not be used for proselytizing or conversion efforts. An FBO may not deny services to a person who is either of a different belief or someone who has no religious beliefs.

Funded FBOs do not forfeit Title VII's exemption from religious discrimination in employment. DOJ has determined that on a case-by-case basis, the Religious Freedom Restoration Act may allow grantee FBOs to hire based on religion. In order to do that, an FBO has to certify that it will offer all federally-funded services to all qualified beneficiaries; explicitly religious activities will be voluntary and kept separate from federally-funded activities; and it is a religious organization that sincerely believes that abandoning its religious hiring practice in order to receive federal funding would substantially burden its religious exercise. Funded FBOs subject to the VAWA nondiscrimination grant condition that seek an exemption to the prohibition against religion discrimination and employment must complete and retain an original signed document for their records certifying to these three provisions, and they have to submit a copy of the signed certificate of exemption to DOJ after receipt of an award.

What I want to just take a second here to underscore is that if you are an FBO and you're struggling with this idea of, you know, sort of having programs or services, or maybe you want to have prayer before the program begins or before the service is provided, the easiest way to cover both your organization's needs, as well as any DOJ or other federal civil rights requirements is to just separate in time. And you can separate in location as well but time is always the easiest thing to do. So for example, if you have a program that starts at 9:00 and you're looking to have prayer before that, schedule the prayer for 8:30, make sure people know that prayer will start at 8:30 and the program will start promptly at 9:00, that way clients who don't want to come for the prayer portion of the event but do want to take part in the service or the program that follows can do that, and know when to show up.

So FBOs have a written notice requirement, they must give written notice to beneficiaries and prospective beneficiaries that the FBO will not discriminate on the basis of religion, of religious belief or refusal to hold a religious belief. The FBO will not require beneficiaries to participate in explicitly religious activities. 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.

So a couple of hypotheticals here. The first is an atheist participant in a human trafficking support group run by a funded faith-based organization is required to participate in an opening prayer session before the group begins. Second is a woman seeking services at a local nonprofit shelter for human trafficking survivors who is told not to use her prayer rug in her room while she is a resident of the shelter. Hope everybody could guess that those are not acceptable. A funded FBO cannot require a beneficiary to participate in religious exercises or programs with faith content, and an FBO also cannot deny a beneficiary access to religious services, pastoral counselor, special dietary needs, or items of a particular beneficiary's faith.

All right. So we've got a few slides here that talk about all of the ins and outs of the Equal Employment Opportunity Plan, all the requirements for the utilization report. I'm going to scroll through these and what I'm just going to say is, if you have any questions about how to file what you need to file, how to submit what you think you need to submit, whether you are exempt or whether your organization or program needs to file something with OCR, please, please, please contact the individuals whose email we're going to include here in the slides in a moment. And contact them early. They're never going to feel annoyed or like this is a problem that you should have figured out on your own, don't try to guess your way through it. If there's something you're unsure about, just reach out, they're extremely competent folks who've been doing this for a very, very long time, and would love nothing more than to get these questions on the front end, than in the last few moments when everyone is scrambling trying to get things submitted.

So just very quickly in terms of exemptions, recipients with less than 50 employees whose largest single DOJ award is less than $25,000, health care or educational institutions, or federally recognized Indian Tribes are all exempt from the EEOP requirements. That said, even exempt recipients of DOJ funding must prepare and submit an online certification form. So like I said, any questions at all with what you're supposed to submit, anything like that, please, please, please do reach out.

This slide, I would just note the submission deadlines and again, if you're not sure when something is due or if you're not sure if you've already missed a particular due date, please reach out, we've got all the information that you could possibly need and probably more than that available to you.

So these are the two individuals, Tiffany Harding and Denise Viera, these are their phone numbers and email addresses. I would—I mean you're going to get a copy of this entire slide deck, so you will have these, no need to type them all out now. But these are the two people that you should contact and, again, contact them the minute you think you have a question or you might have a question. Really, there's no wrong time to reach out and the earlier is always the better.

Some of the resources that Mona talked about early on, OCR online trainings, disability information, and LEP information at the websites that are linked here. And this is OCR's main email address, website, phone number. Mona and I are going to drop our personal contact information, our email addresses in the chat so that everybody can reach out to us. If you try the OCR main email first and you don't get a response and you're needing an answer quickly, feel free to give one of us or both of us a shout and we'll try to get an answer for you as quickly as we can. And with that, I will turn it back over to Mona, and we will take any questions.

MONA MAFI: Thanks, Sebastian. Thanks, everyone for your time and attention, I know we're a couple minutes over here. I did address the questions that were already sent in the Q&A. As a reminder, everyone's going to be getting a copy of the presentation, there are lots of resources in there including the LEP and ADA website. And there was a question specifically about--excuse me, an LEP plan, I answered that, hopefully everyone could see the answer that in establishing an LEP plan, there’s lots of guidance and information both on our website and on the LEP.gov website, and of course we are here to assist with that. I did put Sebastian's and my email in the chat for you, it's just first name dot last name @ usdoj.gov. If there are any lingering questions or if you ever want to reach out to OCR, and like Sebastian said, if there--it's always good to have a way to contact our office regardless of who may be working there at the moment. We have the general OCR information but Sebastian and I are also happy to address your questions.

If there aren't any--okay. I do see there's a new question now. "How do these guidelines apply when it comes to proper facilities, for example, all-gender bathrooms for nonbinary and trans clients and/or employees?" I would recommend following up with us specifically on that given our timeframe but there are several people in our office that are very skilled in that area specifically, so if you can go ahead and email, Sebastian and I will make sure to get a specific answer to you. It sounds like something that we'll need to see more fact than the general question can provide.

And the last question, I'm not sure what was intended by that. Burning sequence? I'm not sure. So, Sebastian, feel free to jump in if you think you know what that last question is getting at.

SEBASTIAN AMAR: I'm stumped on the last one.

MONA MAFI: Okay. Okay. Thanks. We appreciate everyone's time and attention. We know it's a lot of information but again, you're not expected to have it all memorized or all figured out but just to be aware that these are things you need to consider as you go about doing your work, and to know that there are plenty of resources out there listed on the slides, which you will have after the presentation, and that we are here in OCR to help you and walk you through, to assist you with being in compliance with federal civil rights laws, and making the most of those federal funds for the important work you're doing. Thanks for your time and attention.