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Departmental Office of Civil Rights Programmatic Authorities

ENFORCEMENT OF TITLE VI

ISSUE: 

Consistent with the Department's Ladders of Opportunity Initiative, DOCR launched a robust program for the affirmative enforcement of Title VI of the Civil Rights Act of 1964. 

ACTION NEEDED: 

The Department's reinvigorated Title VI enforcement and compliance program will require continued support from the Department's leadership to ensure its continued viability and effectiveness. The Department has made progress in integrating civil rights principles across our programming areas. DOT officials and recipients are encouraged and trained to consider issues of opportunity and equity early in the decision-making process. Prioritizing civil rights issues in the beginning stages of projects helps to ensure compliance with civil rights laws and prevents costly and time-consuming objections, which can delay successful completion of projects. At the same time, communities impacted by the decisions have been encouraged and trained to meaningfully participate in the process to ensure the most equitable outcomes.   

The Department will continue to:

  • Implement Title VI to ensure full and consistent compliance by recipients of federal financial assistance.
  • Identify and redress intentional discrimination or discrimination that causes a disparate impact on particular communities. 
  • Increase education, training, and technical assistance provided to recipients of federal financial assistance.
  • Promote community engagement practices to ensure that all communities have input in the transportation decision-making process.
  • Timely investigate and issue findings in connection with complaints submitted under Title VI.

BACKGROUND: 

Title VI of the Civil Rights Act of 1964 provides: No person in the United States shall, on the ground 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.  

DOT has an obligation to ensure that its recipients of federal funds are not using those funds to discriminate against persons or communities protected by Title VI. It is important to ensure that new applicants for federal funds can demonstrate compliance with Title VI and that ongoing funding is not used to discriminate, either in treatment or effect. 

DOCR's efforts to strengthen Title VI compliance have not only helped the Department take concrete steps towards an affirmative enforcement model, but have also been vital in advancing the Department's Ladders of Opportunity Initiative to ensure all communities have equitable access to transportation resources and opportunity for social mobility and an improved quality of life.

Recently, DOCR has taken steps to advance an affirmative Title VI enforcement and compliance strategy, which includes:

  • Providing technical assistance and investigative support to OA Civil Rights Offices, including developing investigative plans, providing statistical research and analysis on Title VI-related matters, and assisting OA staff with capacity building for Title VI enforcement.
  • Advancing efforts to expand community engagement with communities of color affected by DOT-funded transportation projects and programs, including assisting in content development for the Department's new "Every Place Counts: Leadership Academy."

 

REINVIGORATING THE DISADVANTAGED BUSINESS ENTERPRISE (DBE) PROGRAM

ISSUE: 

The Disadvantaged Business Enterprise (DBE) Program is the Department's most effective tool for remedying ongoing discrimination and the continuing effects of past discrimination against women and minorities in federally-assisted highway, transit, airport, and highway safety financial assistance transportation contracting markets nationwide. DOCR is the lead within the Office of the Secretary for the DBE program and coordinates the Department's oversight of the DBE program. 

ACTION NEEDED: 

In recent years, the DBE program was the subject of an audit by the Office of Inspector General that identified several problem areas in the administration and implementation of the program. These recommendations have all been closed. Moving forward, DOCR is now engaged in an affirmative effort to support and advance the longstanding goals and benefits of this program and ensure maximum participation by those businesses eligible to be served. At the same time, constant vigilance is required to ensure that the program is successfully defended in Congress and in the courts. DOCR will continue to explore ways to enhance participation in the DBE program while maintaining the integrity of the program, through the following means:

  • Engage with the DBE community stakeholders and with federal funding recipients through networking, conference presentations, and on-site interaction.
  • Identify and address certification challenges for DBEs, with the recipients making the decisions and the DBE stakeholders affected. 
  • Continue to develop a more robust compliance/oversight program regarding the roles of, and expectations for, the OAs in the DBE program. 
  • Develop and implement training programs to enable Departmental staff to provide appropriate, consistent, and uniform technical assistance and guidance to their recipients of federal financial assistance on all aspects of the DBE program.
  • Utilize innovative technology to obtain data and increase our understanding of small business growth and opportunity.

BACKGROUND:

DOT's DBE program was established in 1980, under the authority of Title VI of the Civil Rights Act of 1964 and other nondiscrimination statutes that apply to DOT financial assistance programs.  Congress has reauthorized the DBE program several times, most recently in the 2015 Fixing America's Surface Transportation (FAST) Act. The program has withstood several legal challenges and amendments by Congress since its inception.

In addition to DOCR, the other offices in the Department responsible for supporting the implementation of the DBE program are the Office of the General Counsel (OGC), the Office of Small and Disadvantaged Business Utilization (OSDBU), the Federal Aviation Administration (FAA), the Federal Highway Administration (FHWA), and the Federal Transit Administration (FTA).

The FAA, FHWA and FTA distribute substantial funds each year to finance transportation projects initiated by state and local governments, public transit, and airport agencies. In 2015, the three Operating Administrations awarded/committed $4.8 billion of $39 billion to DBE primes and subcontractors in federally-assisted contracts.

The DBE program provides a ladder of opportunity for the nearly 36,000 certified DBEs seeking to grow their business and increase their workforce in all aspects of transportation construction, design, and improvement.

DOCR has taken significant steps in advancing the DBE program by collaborating with the FAA, FHWA, FTA, OGC and OSDBU to enhance the Department's DBE program and ensure that firms are not disadvantaged by unlawful discrimination. This includes the following actions:

  • Developed and implemented program performance measures to regularly assess the DBE program and evaluate whether it is achieving its objectives.
  • Developed and implemented oversight and compliance plans with the FAA, FHWA and FTA to ensure that recipients of federal financial assistance comply with applicable federal civil rights requirements, including those found in the DBE program. 
  • Developed a Departmental centralized data system to collect DBE Uniform Report Information (commitments, awards, and payments to DBEs), so that the Department can measure the effectiveness of the DBE program. 
  • Collaborated in the development and dissemination of Prompt Payment and Retainage Guidance to ensure timely payment to DBEs for work performed.
  • Hosted a DBE Summit at DOT headquarters in October 2016, which provided program updates, technical assistance and networking opportunities for over 200 participants.                        

REDRESSING SEXUAL ASSAULT AND SEXUAL HARASSMENT AT THE U.S. MERCHANT MARINE ACADEMY

ISSUE: 

The Department has recently engaged in robust, affirmative efforts to combat the pervasive and persistent problems with sexual assault, sexual harassment, and related behaviors on the campus of the U.S. Merchant Marine Academy (USMMA) and during its Sea Year Program, in which midshipmen spend several months aboard ships for training. The Secretary has assigned DOCR with lead responsibility for spearheading this work on behalf of the Office of the Secretary. 

ACTION NEEDED: 

DOCR will require continued strong support from the Office of the Secretary, MARAD, and the USMMA to ensure successful outcomes in addressing these critical issues that threaten the safety and security of students in the USMMA program. In October, the Department contracted with Logistics Management Institute (LMI) to conduct a comprehensive cultural assessment of USMMA and the Sea Year program to determine the root causes of these problems and to identify possible solutions. LMI's conclusions and recommendations are due at the end of November. At that time, the Department will decide whether to adopt these recommendations and possibly other measures to address the ongoing problems and if so, will begin to implement them. There will likely be both short-term and long-term components of any remedial plan proposed. Ensuring that we are taking all appropriate action over time will require the Department's constant vigilance and sustained dedication of staff and resources to this matter.      

BACKGROUND: 

Over the past four years, USMMA has initiated actions to ensure that strong prevention programming was in place to address sexual assault and sexual harassment, including but not limited to updating and expanding relevant policies, modifying reporting procedures, increasing training on the subject, and strengthening the position of the Sexual Assault Response Coordinator on campus. Despite these recent and more robust efforts, the incidence of sexual assault and harassment has persisted to a distressing degree. The USMMA Advisory Committee report of June 2016, described the problem as follows:  "[T]here is clear evidence the Academy has deployed reasonable and customary methods used at other institutions of higher education and service academies to prevent sexual harassment and assault.  However, sexual harassment and sexual assault is still occurring at the Academy; the continued trend is alarming."  

The data collected through numerous sources confirm that not only has the problem persisted but in fact it may be worsening.  The Duncan Hunter National Defense Authorization Act requires the Academy to conduct a survey every two years to determine the effectiveness of its policies, training, and procedures with respect to sexual harassment and sexual assault prevention. The Preliminary 2014-15 Report to Congress on Sexual Assault and Sexual Harassment—containing data for the last year available—revealed that 63 percent of women and 11 percent of men experienced sexual harassment. The survey data for sexual harassment was virtually unchanged from 2012.   

The data on incidence of sexual assault are also constant over time. The 2014-15 Preliminary Report noted that 17.1 percent of women and 2.0 percent of men reported they had been sexually assaulted. The Report noted that the same numbers were reported in 2012. The assaults included those committed during Sea Year. Of the 17.1 percent of women experiencing sexual assault, one third indicated that the incident occurred off Academy grounds during the summer experience, training, or during Sea Year.  The Academic Year Biennial Survey and Report Surveys estimated that 10 women in 2012 and between 6 and 9 women in 2014 reported that they were assaulted during Sea Year training.      

While the misconduct continued unabated, the number of reported sexual assaults are disturbingly low, with even a decrease in reports from three in Academic Year 2013-14 to one in Academic Year 2014-15. 

In June 2016, the USMMA Advisory Report documented additional findings that were extremely alarming to DOT. Based on interviews with Midshipmen who had participated in the Sea Year program, the Report revealed that Midshipmen called sexual harassment at sea a "common occurrence."  The report stated: "Midshipmen described severe consequences for both men and women who resisted unwanted sexual advances, objected to degrading or denigrating comments, came to a colleague's defense and/or refused to participate in hazing, drinking, bullying, or sexual promiscuity. Some Midshipmen said that information needed to complete sea projects was withheld for periods of time—or entirely. Some were prohibited from learning specific tasks that were supposed to be a part of the Sea Year experience." 

Due to the seriousness of the situation encountered by Midshipmen at sea, DOT ordered a "Stand Down" from Sea Year on June 15, 2016, until such time that the safety of Midshipmen participating in this program could be assured. DOT began to take steps to ensure that appropriate measures were instituted to protect Midshipmen at sea. However, it ultimately concluded that the institutional problems underlying that environment and that of the Academy were so pervasive that an independent, critical review of the Academy's culture was necessary. Enlisting the assistance of subject matter experts was imperative because the expertise for resolving these issues is a particular specialty.

DISCRIMINATION AGAINST INDIVIDUALS ON THE BASIS OF GENDER IDENTITY AND SEXUAL ORIENTATION 

ISSUE:  

DOCR has recently developed training and helped to implement various DOT policies and procedures to address the importance of properly handling LGBT-related discrimination claims in light of recent developments in employment discrimination policy adopted by the Equal Employment Opportunity Commission (EEOC) and rapidly developing case law in other areas. This is particularly important around the issues of sexual orientation and gender identity discrimination.

ACTION NEEDED:  

  • To continue to serve as a model for inclusiveness in the federal workforce, the Department will continue to:
  • Ensure that sexual orientation and gender identity discrimination are expressly included in policies prohibiting sex discrimination.
  • Ensure that anti-harassment policies and procedures for DOT employees and applicants, and contractor and subcontractor employees and applicants, reflect the ban of harassment on the basis of both sexual orientation and gender identity. 
  • Treat allegations of discrimination on the basis of sexual orientation or gender identity as claims of sex discrimination, instead of the former requirement to process them under separate procedures, unless the claimant requests otherwise. 
  • Ensure that DOT procurement officials and contractors and subcontractors update the EEO clause or language in all: (1) new and modified contracts, subcontracts, and purchase orders; (2) job solicitations; and (3) workplace notices to state that DOT employees and applicants, and contractor and subcontractor employees and applicants, will be treated without regard to their sexual orientation and gender identity.
  • Develop and implement training to reflect updates in the law. 

BACKGROUND:

DOT prohibits discrimination in its employment practices on the basis of race, color, national origin, sex (gender, pregnancy, sexual harassment, sexual orientation, gender identity or transgender status), religion, age (40 and over), disability (mental/physical), equal pay compensation, genetic information, and retaliation. 

In 2012, the EEOC held that discrimination against an individual because that person is transgender, also known as gender identity discrimination, is discrimination because of sex and therefore is prohibited under Title VII. Recently, the EEOC clarified its position on o sexual orientation in its July 15, 2015 decision in Baldwin v. Foxx. In Baldwin, which involved a DOT complaint, the EEOC found that a claim of employment discrimination on the basis of sexual orientation creates an actionable claim of sex discrimination under Title VII, and stated that the most appropriate method for resolving that claim would be to use the same process used for complaints on the basis of sex.   

Prior to Baldwin, DOT had established internal grievance procedures in 1998 for processing complaints of employment discrimination on the basis of sexual orientation, in accordance with Executive Order (EO) 13087. In Baldwin, the EEOC concluded that agencies may maintain their own internal grievance procedures and employees or applicants may request to use them if they wish but, going forward, claims of sexual orientation discrimination will ordinarily be processed under the EEOC's regulations unless the employee or applicant requests otherwise.

On April 8, 2015, the Department of Labor's Office of Federal Contract Compliance Programs' (OFCCP) issued its rule barring Federal contractors and subcontractors from discriminating because of sexual orientation and gender identity. The rule implements EO 13672, which was signed by President Obama in July 21, 2014, and prohibits discrimination on the basis of sexual orientation or gender identity in Federal employment and government contracting. Under this rule, DOT employees and applicants, and Federal contractors and subcontractors alleging employment discrimination on the basis of gender identity and/or sexual orientation may file complaints directly with OFCCP, which will refer the complaints to the EEOC for processing under its regulations.

Last updated: Friday, January 27, 2017