Investigation Procedures for Ensuring Nondiscrimination in Federally Assisted Programs

A complaint asks a Federal agency to take action concerning an allegation of discrimination. A complaint is NOT: anonymous correspondence; a courtesy copy of court pleadings or internal grievances; newspaper articles; inquiries seeking advice. So just what is a COMPLAINT???

We must always…… Remember to DATE STAMP each piece of correspondence immediately upon receipt to protect Title VII and other rights Refer a complaint to the correct Federal agency if you dont have jurisdiction to investigate it If youll keep it for investigation, determine whether its COMPLETE

What is a COMPLETE complaint? A complete complaint is: Signed Contains a way to contact the complainant Identifies the respondent Includes the basis for the alleged discrimination Contains sufficient information to let you understand the alleged facts and actions that led the complainant to believe discrimination occurred and when they occurred.

Federal agencies are required to… Provide appropriate assistance to complainants in completing their complaints, including persons who are Limited English Proficient (LEP) and those with disabilities. You want to know what? So whats a basis???

If the complainant: Is a minor… Is represented by an attorney… Wont sign the required Consent Form, doesnt provide the information you requested, or wont cooperate…. Youll need approval of the parent or guardian Youll need to work with the attorney You may close those allegations that are incomplete and for which you must have a signed Consent Form to proceed with an investigation. If there are class allegations raised you can proceed on, you should perhaps do so.

Determine Jurisdiction and Identify Issues Does your agency have jurisdiction over the organization alleged to have discriminated? Does your agency have jurisdiction over the organization alleged to have discriminated? If not, refer the complaint to the appropriate agency. If not, refer the complaint to the appropriate agency. Does your agency have jurisdiction over the issues, or subject matter, raised by the complaint? Does your agency have jurisdiction over the issues, or subject matter, raised by the complaint? The issue is the practice or service involved in the alleged harm. For example: denial of services, unequal services, retaliation for filing a complaint.

Confirm that you have Jurisdiction Does your agency provide Federal financial assistance to the respondent? Does your agency provide Federal financial assistance to the respondent? Does your agency enforce a statute that covers each basis? Does your agency enforce a statute that covers each basis? Does your agency cover the issues raised, e.g., acceptance to or participation in a soccer class? Does your agency cover the issues raised, e.g., acceptance to or participation in a soccer class? Is the complaint timely filed? If not, is a waiver appropriate? Is the complaint timely filed? If not, is a waiver appropriate?

This is George….. This is George….. He sent you a letter that said: 1) His wife was denied services at the local hospital because of her national origin. 2) He called the local police for help but nobody could understand him – he speaks very little English. 3) His sister was fired because of her sex and national origin by the states forest service – she was a teacher in the training program for student rangers.

Determining Timeliness Title VI complaints must generally be filed within 180 days of the last date of alleged discrimination. Use: the postmark date or the date it was received by a Federal, State or local agency. If it alleges a continuing pattern, use the most recent date. If it alleges a discriminatory policy, it need not identify specific victims with dates of discrimination; also, a Consent Form can not be required.

Decision Point: Is this complaint appropriate for investigation/resolution, or should it be closed? You need not proceed with an investigation if: The complaint, on its face, has no merit. The complaint, on its face, has no merit. The complaint is moot. The complaint is moot. The same allegations and issues have already been addressed in a recent investigation or by a previous Federal court decision. The same allegations and issues have already been addressed in a recent investigation or by a previous Federal court decision.

Approaches to Complaint Resolution: What to Consider How complicated is this case? Who is alleged to have been harmed? Does it allege that the recipient maintains a policy that has a discriminatory effect on a protected class? Is this case a good candidate for early settlement negotiations (ADR) or is a thorough investigation, with an onsite visit, necessary to identify violations, victims, and appropriate relief?

Remember!!! 1) A Federal agencys ultimate responsibility is to ensure nondiscrimination in the programs to which it provides Federal financial assistance. 2) Even if an individual complaint is resolved, information concerning potential class discrimination (e.g., policies) should not be overlooked. This can be addressed as part of the complaint or as a separate compliance review. 3) You should never enter into Alternative Dispute Resolution (ADR) before you are actually ready to do so or ignore relief that would be appropriate if you conducted a full investigation.

Marias Complaint You have just received a complaint from Maria, who is Hispanic. She alleges that she has been trying for the past three years to have a birthday party in the picnic area of the OhSoLovely Park. She states that, when she called the City eight months ago to reserve a spot for this past weekend, they asked where she lived. When she told them her address, she was told that the spots were all taken, just as in the two previous years. Is Marias complaint timely? You have just received a complaint from Maria, who is Hispanic. She alleges that she has been trying for the past three years to have a birthday party in the picnic area of the OhSoLovely Park. She states that, when she called the City eight months ago to reserve a spot for this past weekend, they asked where she lived. When she told them her address, she was told that the spots were all taken, just as in the two previous years. Is Marias complaint timely?

What if…? Maria went to the park last weekend and found spaces available. She asked a white woman, who was having a party, how long ago she reserved the picnic space – the woman said she called and reserved it two weeks ago. Does this affect timeliness? Maria went to the park last weekend and found spaces available. She asked a white woman, who was having a party, how long ago she reserved the picnic space – the woman said she called and reserved it two weeks ago. Does this affect timeliness?

Planning for a Complaint Investigation Alas, good legally sufficient complaint investigations (and compliance reviews) dont just happen by magic – they require serious thought and planning!! Alas, good legally sufficient complaint investigations (and compliance reviews) dont just happen by magic – they require serious thought and planning!!

Standard of Proof The standard of proof in administrative investigations under Title VI and similar nondiscrimination statutes is: preponderance of the evidence. preponderance of the evidence.

Investigative Plan 1) Jurisdictional information 2) Issues and bases 3) Applicable legal theories (intent, effects); note that retaliation is always intent 4) Conclusions drawn from evidence already gathered 5) Evidence needed and where/from whom to get it 6) Likely or enunciated recipient defenses and the evidence needed to test their validity 7) Sequence of investigation activities and timeframes, including onsite visits, etc.

Legal Theories Intent/disparate treatment Intent/disparate treatment Similarly situated persons are treated differently that others based, at least in part, on their race, sex, etc. Can involve an individual victim or a class of victims (or both), one instance or pattern of discriminatory treatment. Intent can be based upon direct evidence or can be inferred based on circumstantial evidence. Retaliation is always investigated using the intent theory.

Legal Theories, contd. Effects/disparate impact Effects/disparate impact Focuses on the consequences of the recipients practices and does not require proof of discriminatory intent. The recipient uses a neutral policy or practice that has the effect of disproportionately excluding or adversely affecting protected individuals and the recipient does not have a substantial legitimate justification for its practice. LEP complaints are generally investigated using this legal theory. The Title VI statute prohibits intentional discrimination, while the implementing regulations issued by federal agencies also include effects.

Direct Evidence Evidence of the actual, subjective intent of the persons charged with discrimination. Evidence of the actual, subjective intent of the persons charged with discrimination. Comes from: Comes from: Statements during interviews or reported by witnesses (women dont really like those kinds of jobs) Statements during interviews or reported by witnesses (women dont really like those kinds of jobs) Board or hearing minutes, administrative records, complaint files, speeches Board or hearing minutes, administrative records, complaint files, speeches

Circumstantial Evidence Constitutes the bulk of findings in intent cases Includes facts from which one may infer intent/discriminatory motive Comparative evidence, identifies different treatment of similarly situated individuals or groups Statistical evidence generalizes about the experience of a class of people, but cant be used alone to prove an individual case

Recipient Defenses The Burden of Proof is on YOU (not the complainant) to establish a prima facie (on its face) case through the preponderance of the evidence. Once you have done so, the burden shifts to the recipient to provide a reasonable, nondiscriminatory justification for its actions. The burden then shifts back to YOU to show that the justification is a pretext, or excuse, to disguise discrimination.

Requesting Data from the Recipient You can consider: You can consider: Sending a comprehensive data request; Requesting a position statement with supporting documentation; Offering settlement discussions (ADR) and/or technical assistance to bring the recipient into compliance and to resolve the complaint; or A combination of the above. But … But … Dont resolve a complaint if you dont have enough information to know what relief is appropriate, and Dont resolve an individual complaint and overlook existing discriminatory policies and other victims.

Remember our complaint from Maria? What do you expect the Recipient will say in its defense? What do you expect the Recipient will say in its defense? What legal theory or theories would you use to investigate this complaint? What legal theory or theories would you use to investigate this complaint? What information would you want to request from the Recipient? What information would you want to request from the Recipient? Does this information test the Recipients anticipated defenses? Does this information test the Recipients anticipated defenses?

Why Go Onsite???? Personal contact with complainant(s) and recipient Examine documents Interview witnesses More accurate impression of setting and recipient in action

Should you go onsite to investigate Marias complaint? Why or why not? Interview Recipient staff to determine credibility. Review records, rather than letting the Recipient select them for you. Interview other people who tried to use the picnic areas at the OhSoLovely Park to find out what they were asked/told. Interview people who were allowed to reserve spaces at the park to see what they were asked.

Before going Onsite Request a liaison be designated by the recipient. Be sure you have reviewed as many of the written policies/procedures/documents as possible Schedule interviews in advance and in a sequence that will let you test information provided earlier Interview people first who have first-hand knowledge (who were directly involved) Interview people with second-hand knowledge later, if you determine you need to Know what you want to accomplish in each interview prior to conducting it

During the Onsite… Properly document all interviews Properly label all documents obtained Update IP to identify additional evidence/testimony needed Recipients attorney may be present during interviews of management employees only Advise recipient during exit interview that investigation is not complete Provide technical assistance and/or discuss settlement with the recipient, but only if you are authorized to do so

Investigative Report An investigative report (IR): An investigative report (IR): Sets forth all pertinent facts Sets forth all pertinent facts Analyzes those facts in light of the complainants allegations Analyzes those facts in light of the complainants allegations Recommends a determination of the validity of the allegations based on that analysis Recommends a determination of the validity of the allegations based on that analysis An IR should be prepared for all cases in which: An IR should be prepared for all cases in which: a letter of findings (LOF) will not stand on its own; a letter of findings (LOF) will not stand on its own; complex or class issues/relief are involved; complex or class issues/relief are involved; rebuttal evidence from either party must be thoroughly addressed to support the findings; and/or rebuttal evidence from either party must be thoroughly addressed to support the findings; and/or a violation LOF will be issued. a violation LOF will be issued.

Letters of Findings and Resolutions To complete a complaint investigation or compliance review, you may use one of the following: 1) Letter of Resolution, which can include a formal settlement agreement or set out corrective action the recipient has taken; 2) No Violation LOF; 3) Letter of Concerns; or 4) Violation LOF, which should include a settlement proposal.

Settlement /Compliance Agreements Should… Address each potential violation (pre-LOF) or each identified violation (post-violation LOF) Address each potential violation (pre-LOF) or each identified violation (post-violation LOF) Specify remedial relief and corrective action to be taken to bring the recipient into compliance: Specify remedial relief and corrective action to be taken to bring the recipient into compliance: specific steps to be taken, e.g., new policies, LEP Plan, complaint procedures, training of management and staff, notification to the public of the changes specific steps to be taken, e.g., new policies, LEP Plan, complaint procedures, training of management and staff, notification to the public of the changes timetable for implementing each step of the agreement timetable for implementing each step of the agreement description and timetable for submission of monitoring documentation to show that the steps have been taken description and timetable for submission of monitoring documentation to show that the steps have been taken Provide an assurance that discrimination will not reoccur Provide an assurance that discrimination will not reoccur Provide for enforcement by the Federal agency in Federal court and/or for conditioning the drawdown of future funds for failure to comply with the agreement Provide for enforcement by the Federal agency in Federal court and/or for conditioning the drawdown of future funds for failure to comply with the agreement

Oh thank heavens….. Its the END!!!