Overview of Nondiscrimination & Accessibility Requirements 4/23/2019 Overview of Nondiscrimination & Accessibility Requirements Presented by: Erin L. Hall, Attorney & Title VI & ADA Program Manager INDOT Legal Division (317) 234-6142 Ehall2@Indot.in.gov

This presentation is to provide technical assistance for informational purposes only. It is not intended to constitute legal advice. Compliance with the civil rights laws is an ongoing responsibility. The laws and regulations may change. INDOT makes no warranties regarding the accuracy, completeness or adequacy of the information.

Overview In this module you will learn: 4/23/2019 In this module you will learn: Which laws & regulations govern Accessibility & Nondiscrimination To whom these regulations and apply The scope of these regulations, and How they are enforced 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).

The Take Aways: 4/23/2019 Recipients of Federal Funds have both a contractual and legal obligation to comply with Title VI, including: LEP, EJ, Disability. Recipients of Federal Funds must comply with Section 504 & not discrimination on the basis of disability while Public Entities must comply with the ADA. Once you are a recipient of federal funds, you must comply with Title VI regardless of whether or not federal funds are used. Assurances must be included in every subcontract and appropriate appendices included in deeds, leases, etc. Noncompliance may result in loss of funding and legal action. We will discuss these

Title VI of the Civil Rights Act of 1964 4/23/2019 “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).

Purpose of Title VI 4/23/2019 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.

Civil Rights Restoration Act of 1987 4/23/2019 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 4/23/2019 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 4/23/2019 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.

INDOT’s Title VI Policy Statement 4/23/2019 The Indiana Department of Transportation (INDOT) values each individual’s civil rights and wishes to provide equal opportunity and equitable service for the citizens of this state.

INDOT’s Title VI Policy Statement 4/23/2019 As a recipient of federal funds, INDOT is required to conform to Title VI of the Civil Rights Act of 1964 (Title VI) and all related statutes, regulations, and directives; which provide that no person shall be excluded from participation in, denied 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.

Assurances of Nondiscrimination: 4/23/2019 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

Limited English Proficiency (LEP) 4/23/2019 Executive Order 13166 requires federal-aid recipients to take reasonable steps to ensure meaningful access to their services to Limited English Proficiency persons. 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? 4/23/2019 Oral interpretation Bilingual staff Telephone interpreters Written language services Use of community volunteers Language cards Use of universal signs, symbols and pictures

Environmental Justice 4/23/2019 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 4/23/2019 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 4/23/2019 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.

Americans with Disabilities Act 4/23/2019 Applies to all public entities Requires provision of program access and effective communication Includes public transportation Enforced by U.S. Dept. of Justice ADA applies regardless of the size of the community.

Goals of the ADA Equal opportunity Full participation Independence Economic self-sufficiency

Section 504 of the Rehabilitation Act of 1973: 4/23/2019 Section 504 of the Rehabilitation Act of 1973: “No qualified handicapped person shall, solely, by reason of his handicap, be excluded from participating in, be denied the benefits of, or be subjected to discrimination under any program or activities that receives or benefits from Federal financial assistance.” Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 790). The ADA applies to public entities regardless if money is involved. However, Section 504 applies because federal money is used. Both have the same standards, just different enforcement. The DOJ is lead authority for the ADA. DOT has compliance responsibility for pedestrian facilities. DOT has compliance responsibility for Section 504 of the Rehabilitation Act of 1973. Requires that recipients ensure that all pedestrian facilities meet the minimum accessibility design requirements set forth by law.

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:

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.

Things to Remember: 4/23/2019 Recipients of Federal Funds have both a contractual and legal obligation to comply with Title VI, including: LEP, EJ, Disability. Recipients of Federal Funds must comply with Section 504 & not discrimination on the basis of disability while Public Entities must comply with the ADA. Once you are a recipient of federal funds, you must comply with Title VI regardless of whether or not federal funds are used. Assurances must be included in every subcontract and appropriate appendices included in deeds, leases, etc. Noncompliance may result in loss of funding and legal action.