Title 6 101: Nondiscrimination Why & How 4/14/2019 Title 6 101: Nondiscrimination Why & How Presented by: Erin L. Hall, Attorney & Title VI & ADA Program Manager INDOT Legal Division (317) 234-6142 Accessforall@indot.in.gov

Title VI of the Civil Rights Act of 1964 4/14/2019 “No person in the United States shall on the grounds of race, color, or national origin be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” (42 U.S.C. 2000d) What is Title VI? Title VI is a federal law that deals with nondiscrimination in federally assisted programs and activities and has broad applicability. Title VI does not cover claims of employment discrimination except in instances where the primary objective of the financial assistance is to provide employment for the service, benefit or program (42 U.S.C. 2000d-3). What Constitutes Financial Assistance Under Title VI? Financial assistance includes grants and loans of funds, donations/ grants of federal property and interests in property, detail of federal personnel, sale and lease of and permission to use (other than on a casual or transient basis) federal property or interest in such property for little or no consideration, any federal contract or agreement which has as one of its purposes, the provision of assistance. 28 CFR 42.102(c).

Nondiscrimination Requirements NOW include: Race Color National Origin Disability Sex Sexual Orientation Gender Identity Age Low Income Status Limited English Proficiency Status as a Veteran (in Indiana)

Because the Purpose of Title VI is: 4/14/2019 To eliminate discrimination in federally funded programs and activities. To ensure equitable distribution of public funds for public benefit. EVERYONE PAYS = EVERYONE PLAYS Title VI is for everyone ! Title VI creates a duty for everyone to take affirmative steps to ensure that no person is discriminated against based on their membership in a protected class.

“With Liberty & Justice For ALL” As President John F. Kennedy said in 1963: “ Simple justice requires that public funds, to which all taxpayers of all races [colors, and national origins] contribute, not be spent in any fashion which encourages, entrenches, subsidizes or results in … discrimination.” “With Liberty & Justice For ALL”

JUSTICE Determining rights according to equity Impartial adjustment of conflicting interests Right action Conformity with truth and reason Taking the merited response Correct response Objective Conscientious Honorable Exactly, precisely and just right

WHAT is your WHY? I missed the meeting. I went to the meeting… I’ve never really thought about it… It’s my job? What might happen if you truly believe you are doing the right things for the right reasons with the right people at the right time?

Know your WHY: We can show you how. We will cover the requirements for compliance; We will provide resources including templates, tools and technical training; We will connect you to a network of others responsible for doing this good work; We will monitor your efforts to make sure you are meeting minimum requirements ; BUT, only YOU can succeed in eliminating discrimination in your community.

YOU can succeed at eliminating discrimination in your community! Let me rephrase that: YOU can succeed at eliminating discrimination in your community!

How can you succeed: Become familiar with the requirements Build a team Evaluate your programs Address risks and discrimination Implement our resources Train your staff about your policies & programs Engage the community, locally and across the region Do the right thing for the right reason at the right time Inspire others Document what you do – leave a map and a compass for the next in line.

WHY? Doing the right thing is right But it will also take you places. This is opportunity work…not the short stick.

How: Know the requirements. Demonstrate Good Faith Efforts . Know the law Know the rules Demonstrate Good Faith Efforts . Identify your deficiencies Address them Set your trajectory at Justice. Meeting minimums doesn’t work At the end of the day, you are responsible for your work

Title VI of the Civil Rights Act of 1964 4/14/2019 “No person in the United States shall on the grounds of race, color, or national origin be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” (42 U.S.C. 2000d) What is Title VI? Title VI is a federal law that deals with nondiscrimination in federally assisted programs and activities and has broad applicability. Title VI does not cover claims of employment discrimination except in instances where the primary objective of the financial assistance is to provide employment for the service, benefit or program (42 U.S.C. 2000d-3). What Constitutes Financial Assistance Under Title VI? Financial assistance includes grants and loans of funds, donations/ grants of federal property and interests in property, detail of federal personnel, sale and lease of and permission to use (other than on a casual or transient basis) federal property or interest in such property for little or no consideration, any federal contract or agreement which has as one of its purposes, the provision of assistance. 28 CFR 42.102(c).

Civil Rights Restoration Act of 1987 4/14/2019 Clarified and restored the intent of Title VI. The scope of Title VI includes ALL programs and activities of Federal-aid recipients and contractors regardless if the programs are federally funded or not. What Part of A Recipient’s Activities Are Covered by Title VI? Reversed the US Supreme Court decision in Grove City College v. Bell, 465 U.S. 555 (1984)-which narrowed the scope of Title VI and limited the reach of federal agency nondiscrimination requirements to those parts of a recipient’s operations which directly benefited from federal assistance.

FHWA Title VI Program 4/14/2019 Includes other civil rights provisions of federal statutes and related authorities that prohibit discrimination in programs receiving federal financial assistance. (23 CFR 200.5(p)) Prohibits discrimination based on race, color, national origin, disability, sex, age, low income status or limited English proficiency in programs and activities receiving federal financial assistance regardless of whether those programs and activities are FHWA funded or not. In accordance with Title VI, the Federal Highway Administration and US DOT have regulations and policy guidelines that state transportation agencies, such as INDOT, must follow in implementing the nondiscrimination policies of Title VI and its related statues. The Federal Highway Administration regulations are found at 23 CFR 200. The US DOT regulations are found at 49 CFR 21. Not limited to prohibitions of Title VI of the Civil Rights Act of 1964; Includes other civil rights provisions of Federal statutes and related authorities that prohibit discrimination in programs and activities receiving Federal financial assistance (23 CFR 200.5(p)); Other Nondiscrimination & Cross Cutting authorities include: The 1970 Uniform Act (42 USC 4601) Persons displaced/Property acquired Section 504 of the 1973 Rehabilitation Act (29 USC 790) Handicap/Disability The 1973 Federal-aid Highway Act (23 USC 324) Sex The 1975 Age Discrimination Act (42 USC 6101) Age Implementing Regulations (49 CFR 21 & 23 CFR 200) Executive Order 12898 on Environmental Justice (EJ) Low Income & Minorities Executive Order 13166 on Limited English Proficiency (LEP) Linguistic Minorities

INDOT’s Title VI Mission Statement 4/14/2019 The Indiana Department of Transportation will implement compliance with Title VI of the Civil Rights Act of 1964 (Title VI); 49 CFR § 26; and related statutes and regulations to ensure that no person is excluded from participation in, denied the benefits of, or subjected to discrimination under any program or activity receiving federal financial assistance from the U.S. Department of Transportation (DOT) on the grounds of religion, race, color, national origin, disability, sex, sexual orientation, gender identity, age, low income status or limited English proficiency . INDOT’s program scope mimics the FHWA Title VI program, but complies with the April 8, 2015 effective executive order.

Assurances of Nondiscrimination: 4/14/2019 As a condition of receiving Federal Funds, INDOT (and ALL recipients & subrecipients of those funds) must sign Assurances of Nondiscrimination. Create a contractual obligation Require programmatic compliance: DO’s & Dont’s Contain appendices that MUST be included in certain kids of agreements so that the contractual obligation follows the money to further subrecipients. INDOT’s Title VI Assurances: http://www.in.gov/indot/files/DBWI_TitleVIAssurances.pdf http://www.in.gov/indot/files/DBWI_TitleVIAssurances.pdf

Understand your Title VI Responsibilities: FIRST STEPS: Designate a Title VI Manager Develop, Post & Implement a Title VI policy Implement a Complaint Policy Adhere to the signed Assurances of Nondiscrimination & include the appropriate appendices in your agreements where applicable Identify your team Section 504 applies to “15 to 50 employees”, to “anyone receiving financial assistance” while Title II of the ADA applies to all public entities with 50 or more employees.

Understand your Title VI Responsibilities: ONGOING: Evaluate the following for discrimination: Programs / facilities Activities Ensure Programmatic Implementation throughout your agency Disseminate Title VI information to beneficiaries & stakeholders: Include Title VI in your Public Involvement Plan Monitor Subrecipients for Compliance – if applicable Develop, Post & Implement your annual program documents: Title VI Implementation Plan, and Annual Goals & Accomplishments Report Section 504 applies to “15 to 50 employees”, to “anyone receiving financial assistance” while Title II of the ADA applies to all public entities with 50 or more employees.

Programmatic Implementation: Identify areas with potential for discrimination Determine what data collection and analysis is necessary to look for discriminatory practices & impacts Select subject matter experts who can obtain, gather & assist in analyzing this data Train these individuals and any other program area representatives who will interact with the data / information being analyzed in Title VI requirements Work as a team to set goals and develop a plan for Title VI analysis in that program area This is not separated in the toolkit from the designating a manager, but it is an important part of establishing a foundation that will make the Title VI Plan and the Goals & Accomplishments “Work” in the real world.

Program Evaluation: Develop and implement procedures for the collection of statistical data (race, color, national origin, sex, disability, and age) of participants in and beneficiaries of your agency’s programs. Work with your liaisons, Program Area Representatives, or other Title VI team members to analyze data and information collected and Make adjustments to programs as necessary to reduce discriminatory impacts, Document your efforts.

Analyzing your programs for discrimination: Is there Potential for Discrimination or the appearance thereof?

Limited English Proficiency (LEP) 4/14/2019 Executive Order 13166 requires federal-aid recipients to take reasonable steps to ensure meaningful access to their services to Limited English Proficiency persons. Safe Harbor: 5% or 1000 people & 4 factor analysis: > number LEP persons encountered, > need for assistance Frequency of contact with LEP persons Importance of program or service provided (warning signs) Available resources (reasonable test) Under Executive Order 13166, there are no hard and fast rules regarding LEP. The goal is to remove artificial barriers to federally assisted programs and activities. Programs and activities normally provided in English must be accessible to LEP persons. An LEP person is a person who does not speak English or has a limited ability to read, speak, write or understand English. LEP is closely tied to ethnicity/national origin and the failure to provide language services may constitute discrimination based on national origin/ethnicity in some situations.

What are Language Services? 4/14/2019 Oral interpretation Bilingual staff Telephone interpreters Written language services Use of community volunteers Language cards Use of universal signs, symbols and pictures

Environmental Justice 4/14/2019 Executive Order 12898 Requires all federal agencies to make Environmental Justice (“EJ”) part of their mission by identifying and addressing the effects of all programs, policies, and activities on minority and low-income populations. The Civil Rights Act of 1964 and the Stafford Act of 1974 are two laws that dealt with the EJ types of issues that Executive order 12898 reinforces. Fundamental Principals of EJ: To avoid, minimize, or mitigate disproportionately high and adverse human health and environmental effects, including social and economic effects, on minority populations and low-income populations. To ensure the full and fair participation by all potentially affected communities in the transportation decision-making process. To prevent the denial of, reduction in, or significant delay in the receipt of benefits by minority and low-income populations. The following groups are considered minorities: Alaskan Natives, American Indians, Asian Americans, Blacks, Hispanics, Native Hawaiians or other Pacific Islanders. Low Income includes individuals whose household income is at or below the Department of Health and Human Services Poverty Guidelines

Environmental Justice 4/14/2019 EJ applies to all transportation decisions, including: Policy making System planning MPO and statewide planning Preliminary review under NEPA Preliminary design Final design engineering Right-of-way Construction Operations and maintenance INDOT Responsibilities: Develop appropriate procedures, goals, and performance measure to implement and assess compliance. Enhance public involvement activities to ensure meaningful participation of minority and low income populations. MPOs: Ensure that long range transportation plans and transportation improvement programs comply with Title VI. Identify residential, employment and transportation patterns of minority and low income populations so that their needs can be identified and addressed. Improve public involvement process

EJ Requirements 4/14/2019 Make a meaningful effort to involve minorities and low income populations in the decision making process. Evaluate the nature, extent and incidence of probable, favorable and adverse human health or environmental impacts on protected populations. Incorporate EJ considerations throughout the project development process. Tips: Identify EJ issues early. Know your client, project managers and other key personnel. Focus on the issues important to the community. Look for solutions. Be creative.

Terms of Art Recipient Anyone to whom federal financial assistance is extended, directly or through another recipient for any program. 23 CFR 200.5(n) Subrecipients may include Metropolitan Planning Organizations (MPOs), Local Public Agencies (LPAs), universities, contractors, consultants and any other recipients of Federal-aid highway funds. $ JUST ONE DOLLAR $ = RECIPIENT

Terms of Art Beneficiary Anyone who benefits from a program or facility developed by recipients (e.g. “public”) $ TAX DOLLARS FROM EVERYONE $ = Equal Opportunity for Everyone

A Visual: Think of Title VI as a Large Umbrella broadly covering ALL programs:

Title VI planning in a Nutshell: Let’s reflect on what we’ve covered: Identify People who will work with you Programs that have implications Data that needs collected & analyzed Accomplishments Develop Policies, procedures & plans Objectives for your Title VI plan Specific Annual Goals Gather & Analyze Data information Report: Outcomes Evaluations changes Inform & Involve Public awareness Website & publication Training staff, subrecipients Document EVERYTHING Keep INDOT informed!!!

Consequences of Noncompliance Withholding of payments on the contract until the sub recipient complies, and Cancellation, termination or suspension of the contract in whole or in part, or Other authorized action including provisions under state and local law (e.g. referral to INDOT Prequalification Committee or the U.S. Department of Justice) Non-compliance is not making good faith efforts.

Where to begin?

Where to Begin? Start at the very beginning… 1st Title VI Implementation Plan can be a “plan for the plan”. Who? Title VI Coordinator Others? What? Programs? Policies? Data? Public Involvement? When? In one year, what can you REASONABLY do? Define goals & action steps – put these in your Initial Goals & Accomplishments Report

Considerations: Start at the very beginning… 1st Title VI Implementation Plan can be a “plan for the plan”… BUT … Call it your “Title VI Implementation Plan” Include all elements, using placeholders as necessary Where “placeholders” are used, cross reference your goals where you have a specific plan & timeframe established.

Managing Expectations: YEAR ONE Designate your Title VI Coordinator BY NAME, even if it is just on an interim or initial basis Develop & implement your nondiscrimination policy. Attend training Develop and implement your complaint policy & procedures

Managing Expectations: YEAR TWO Identify at least one program you can evaluate for risks: Public involvement / meetings practices? Maintenance? Train your employees INDOT has a template power point! Keep records Begin collecting LEP data

Ongoing Expectations: You must demonstrate ongoing REASONABLE GOOD FAITH EFFORTS This requires reasonable progress over time Title VI = CIVIL RIGHTS The work you do will mitigate risks It is up to you to provide groundwork & records… “A recipe for success” that your successors can run with.

Demonstrating Good Faith Efforts: Where deficiencies remain, you must prepare an ACTION PLAN addressing each deficiency: Acknowledge the deficiency exists Agree to address the deficiency Establish a plan (when, how, who, what) Define the annual goal for the deficency: What will you do this year to address that deficiency? Ou

So – To meet expectations you must: Be fully in compliance by : meeting all the requirements and providing your Title VI Implementation Plan and Annual Goals & Accomplishments Report to INDOT when you update it. OR Be able to demonstrate reasonable good faith efforts toward compliance and submit an action plan to INDOT, providing regular updates as you achieve program goals and remove deficiencies.

The Title VI Program Checklist: Your records can demonstrate that: You have a Title VI Coordinator who has received training from INDOT within the past 2-3 years. You have a Title VI Implementation Plan that includes: A Complaint Policy, Form & Log, A Nondiscrimination Policy, Organizational charts that ID your program areas & relevant staff, Signed Assurances of Nondiscrimination, Public Involvement opportunities, Subrecipient monitoring if applicable, or a statement of N/A LEP & EJ considerations, and discusses how you evaluate your programs and train your staff You have an annual goals and accomplishments report discussing outcomes and improvements with actual data.

Technical Assistance INDOT has a redesigned website: Subrecipient Technical Assistance Tool Templates & Training Materials Law & Policy Training Opportunities Regional Meetings *NEW* for 2017 Virtual Office Hours http://www.in.gov/indot/3591.htm accessforall@indot.in.gov

Technical Assistance: ADA / Title VI Coordinator’s Association INDOT LPA Division: http://www.in.gov/indot/2390.htm Community Crossings Matching Grants Common Paths Sidewalks Program Notice of Funding Opportunity (NOFA) Page Stellar Communities For more information: LPAQuestions@indot.in.gov

We are here to help! Erin L. Hall Attorney, INDOT Title VI & ADA Program Manager (317) 234-6142 Kimberly Radcliff Subrecipient Compliance Manager (317) 232-0924 accessforall@indot.in.gov