Achieving Title VI Compliance NC Association of Metropolitan Planning Organizations
NCAMPO 2013 Conference
Winston-Salem, N.C.
May 15, 2013
Presenter: Shantray D. Dickens NCDOT Office of Civil Rights, Title VI Compliance [email protected]
Training Objectives
Module 1 • Define the Title VI Nondiscrimination Program • Impart a basic understanding of ADA/Section 504 • Clarify MPO/RPO and LGA roles and
responsibilities
Module 2 • Outline NCDOT’s nondiscrimination expectations
for subrecipients and consequences of noncompliance
• Preview upcoming compliance activities
2
Nondiscrimination in the Federal-aid
Program • Nondiscrimination denotes the absence of
disparate treatment or impact in Federally-assisted programs and activities.
• The Nondiscrimination Program is governed by:
▫ Title VI of the Civil Rights Act of 1964
▫ The 1987 Restoration Act and
▫ Other related Nondiscrimination authorities (23 CFR
§200.5(p))
3
Title VI of the Civil Rights Act of 1964
• Federal law that prohibits discrimination on the basis of race, color or national origin in Federal programs and activities
• The law specifically states:
“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.” (42 U.S.C. §2000d)
4
Civil Rights Restoration Act of 1987
• Direct response to the 1984 Supreme Court decision in the Grove City College vs. Bell case (465 U.S. 555)
• Restored the original intent of Title VI to include all programs and activities of Federal-aid recipients and contractors whether federally funded or not
• Amended Title VI – "Program
or activity" and "program" defined (42 U.S.C. §2000d-4a)
Federal agency nondiscrimination requirements limited to just those areas of the recipient’s operation that directly benefited from Federal assistance
5
FHWA’s Title VI Nondiscrimination
Program • Other related nondiscrimination & cross-cutting
authorities include:
▫ Uniform Act of 1970 (persons displaced or property
acquired)
▫ Section 504 of the 1973 Rehabilitation Act and Americans with Disabilities Act of 1990 (disability)
▫ The 1973 Federal-aid Highway Act (gender)
▫ The 1975 Age Discrimination Act (age)
▫ Executive Order 12898 on Environmental Justice (EJ)
▫ Executive Order 13166 on Limited English Proficiency (LEP)
6
What is Discrimination?
• That act (action or inaction), whether intentional or unintentional, through which a person in the United States solely because of race, color, national origin, sex, age, or disability is subjected to disparate treatment or impact, in any program or activity receiving Federal financial assistance from FHWA under 23 USC.
7
ADA/Section 504
• Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. §794)
▫ “No otherwise qualified individual with a disability in the United States…shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance…”
• Title II of the Americans with Disabilities Act of 1990, as amended (42 U.S.C. §§12131-12164)
▫ FHWA promotes the Americans with Disabilities Act (ADA) to ensure that persons with disabilities have the opportunity to use the transportation system in an accessible and safe manner.
8
ADA/Section 504 cont.
• Discrimination includes denying persons with disabilities the opportunity to participate in or benefit from any program or activity (28 CFR §35.149)
▫ Intentional or unintentional
• Any construction or alteration project that provides access to pedestrians must be made accessible to persons with disabilities (28
CFR §§35.150, 35.151)
• Questions and Answers About ADA/Section 504 http://www.fhwa.dot.gov/civilrights/programs/ada_sect504qa.cfm
9
ADA Transition Plan
• The Transition Plan: ▫ Assesses the needs of persons with disabilities ▫ Schedules the required pedestrian accessibility
upgrades ▫ Be updated periodically to develop the STIP and
MPO programs ▫ Be defensible ▫ Is required for agencies with 50+ employees
• Self evaluations need to include what’s in the public right-of-way
10
Limited English Proficiency (LEP)
• Considerations for individuals who do not speak, read, write or understand English very well
• Four factor analysis
• Safe Harbor Thresholds for written translation or oral interpretation
Program Focus Areas
Environmental Justice (EJ)
• Considerations for minority and/or low-income populations
• Disproportionately high and adverse effects
• Three USDOT EJ principles
11
What is Environmental Justice?
• Environmental Justice is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.
- Environmental Protection Agency (EPA)
12
Environmental Justice (EJ)
• Executive Order 12898
▫ “…each Federal agency shall make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations…”
• DOT Order 5610.2a ▫ Final DOT Environmental Justice (EJ) Order
• FHWA Order 6640.23A ▫ FHWA Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations
13
Guiding USDOT EJ Principles
• 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.
14
EJ in Planning Considerations
• EJ applies to all recipient projects because Title VI applies:
▫ “Because the nondiscrimination requirements of Title VI extend to all programs and activities of State DOTs and their respective subrecipients and contractors, the concepts of Environmental Justice apply to all State projects, including those which do not involve Federal-aid funds, whether Advance Construction, Design Build, or not.” – FHWA
• Implementing Title VI Requirements in Metropolitan and Statewide Planning, October 7, 1999
15
EJ in Planning Considerations cont. Implementing Title VI Requirements… http://www.fhwa.dot.gov/environment/environmental_justice/facts/ej-10-7.cfm
• Does the planning process seek to identify the needs of low-income and minority populations? Does the planning process seek to utilize demographic information to examine the distributions across these groups of the benefits and burdens of the transportation investments included in the plan and TIP (or STIP)? What methods are used to identify imbalances?
• Does the planning process have an analytical process in place for assessing the regional benefits and burdens of transportation system investments for different socio-economic groups? Does it have a data collection process to support the analysis effort? Does this analytical process seek to assess the benefit and impact distributions of the investments included in the plan and TIP (or STIP)? ▫ How does the planning process respond to the analyses produced? Imbalances
identified?
• What mechanisms are in place to ensure that issues and concerns raised by low-income
and minority populations are appropriately considered in the decision-making process? Is there evidence that these concerns have been appropriately considered? Has the metropolitan planning organization (MPO) or State DOT made funds available to local organizations that represent low-income and minority populations to enable their participation in planning processes?
16
Limited English Proficiency (LEP)
• Executive Order 13166 ▫ Improve language accessibility to federally conducted
and assisted program, activities and services • DOT Policy Guidance Concerning Recipients’
Responsibilities to LEP Persons ▫ Guidance concerning services and policies by
USDOT recipients ▫ http://www.lep.gov
• Lau v. Nichols ▫ The United States Supreme Court stated … “national
origin discrimination ... can be based on a person's inability to speak, read, write, or understand English.” (414 U.S. 563 (1974))
17
North Carolina LEP Populations
• NC had 2nd fastest LEP growth (395%) from 1990-2010 (Migration Policy Institute, Dec. 2011)
• Top 5 Languages Spoken by LEP Groups ▫ Spanish, Vietnamese, Chinese, Korean, Arabic
• Speaks English “less than very well” ▫ Accepted practice ▫ Census-based
Table B16004: Age by Language Spoken at Home by Ability to Speak English for the Population 5 Years and Over Speak English “very well” Speak English “well” Speak English “not well” Speak English “not at all”
Table B16001: Language Spoken at Home by Ability to Speak English for the Population 5 Years and Over
18
LEP Four Factor Analysis
1. The number or proportion of LEP persons eligible to be served or likely to be encountered by the program or grantee/recipient
2. The frequency with which LEP individuals come in contact with the program
3. The nature and importance of the program, activity, or service provided by the program to people's lives
4. The resources available to the grantee/ recipient and costs
19
LEP Four Factor Analysis cont.
• Reasonable steps to ensure meaningful access
• Program-wide and project-specific analyses
• Periodically update
20
LEP Safe Harbor Thresholds
• For 5% or 1000 (whichever is less) of each LEP population to be served or encountered translate vital documents
• When 5% of the population yields fewer than 50 persons, advertise (and provide) access to competent oral interpretation of all requested documents free of charge to the LEP person or group • Carolina Association of Translators and
Interpreters (http://www.catiweb.org)
21
LEP Safe Harbor Thresholds cont.
• Apply to translation of written documents only
• Will be considered strong evidence of compliance with the recipient’s written translation obligations
• Do not affect the requirement to provide meaningful access to LEP individuals through competent oral interpreters where oral language services are needed and reasonable
22
LEP Vital Documents
• What are vital documents? ▫ Advertised Notices in Newspapers ▫ Press Releases ▫ Newsletters and Direct Mailings ▫ Public Meeting and Hearing Handouts ▫ Surveys and Comment Forms ▫ Flyers ▫ Web sites
• Expand list, as necessary and appropriate • Translate vital information from lengthy vital
documents
23
Title VI of Civil Rights Act of 1964 Coverage
FHWA Title VI Nondiscrimination Program Coverage
Race Race
Color Color
National Origin (LEP) National Origin (LEP)
Handicap/Disability
Sex (Gender)
Age
Low Income & Minorities
Title VI the Law vs. the Program
24
Primary Recipients vs. Subrecipients
• Primary Recipient (23 CFR §200.5(n))
▫ NCDOT is the primary recipient of USDOT funding in N.C.
▫ Oversees and monitors subrecipient programs and compliance
• Subrecipient (23 CFR §200.9(b)(7))
▫ Receives federal funding through the primary recipient ▫ Must cooperate with the primary recipient in
compliance matters ▫ MPO/RPOs, local govts, universities, transit providers,
etc. • Does not include any ultimate beneficiary under
any such assistance program
25
• A contractor/subcontractor/consultant ▫ “..any person, corporation, partnership, or
unincorporated association that holds a direct or federally assisted contract or subcontract regardless of tier” (23 CFR §230.407(i))
▫ “One who participates, through a contract or
subcontract (at any tier), in a DOT-assisted highway, transit, or airport”
(49 CFR §26.5)
Who is a Contractor?
26
Recipients vs. Contractors
Recipient/Subrecipient Contractor/Subcontractor, Consultant, Vendor
Provides services Sells deliverables (goods & services)
Signs an Assurance
Implements a federal program
(Usually a public entity)
Signs a Contract with contract provisions
In business (buy & sell) to make profit
(Operates in a competitive environment)
Receives Federal financial assistance (FFA) to deliver a program
Is paid for a specific deliverable or product
*Receipt of payment does not establish a
recipient/subrecipient relationship
Designs a program to meet a broader goal Provides specific product or service ancillary to a Federal program
Is receiving FFA Could become a recipient with provision of
[Federal financial] assistance.
27
Final Word on Contractors
• Responsible for complying with the Title VI Program of the recipient with whom they are contracting (FTA C 4702.1B)
▫ Not required to have a standalone Title VI Program
• Recipients responsible for ensuring compliance
▫ A recipient may not absolve itself of its Title VI obligations by hiring a contractor or agent to perform or deliver assistance to beneficiaries (DOJ
Title VI Legal Manual)
28
Let’s Review…
29
Module 1 Review
• Nondiscrimination denotes the _______ of disparate _______ or _______ in Federally-assisted programs and activities ▫ absence ▫ treatment ▫ impact
• Title VI prohibits _______ on the basis of _______ in programs and activities of Federal-aid recipients ▫ discrimination ▫ race, color or national origin
30
Module 1 Review
• Title VI specifically states that “No person in the United States shall on the ground of race, color, or national origin be _______, be _______, or be _______ under any program or activity receiving Federal financial assistance.” ▫ excluded from participation in ▫ denied the benefits of ▫ subjected to discrimination
• Why are other cross-cutting nondiscrimination authorities also called “related”? ▫ See above!
31
Module 1 Review
• What are the six protected classes under FHWA’s Title VI Nondiscrimination Program? ▫ race, color, national origin ▫ age ▫ sex ▫ disability
• The 1987 Civil Rights Restoration Act clarified that our focus should be on _______ instead of _______. ▫ status as a recipient ▫ specifically where the federal funds went
32
Module 1 Review
• What two specific statutes govern accessibility for persons with disabilities under highway programs?
▫ Section 504 of the Rehabilitation Act of 1973
▫ Americans with Disabilities Act of 1990
• Each Federal agency shall make achieving _______ part of its mission by identifying and addressing disproportionately high and adverse effects on _______.
▫ environmental justice
▫ minority and low-income populations
33
Module 1 Review
• The LEP Safe Harbor Thresholds for written translation are _______ or _______, whichever is less? ▫ 5% or 1,000
• Perform the Four Factor Analysis at what levels? ▫ Program-wide ▫ Project-Specific
• Are Title VI protected populations, and LEP and EJ groups considered recipients under Title VI? ▫ No!
34
QUESTIONS…so far?
35
Time for a Break
36
Module 2
37
Program Responsibilities of Recipients
• Title VI Assurances
• Methods of Administration
• Title VI Implementation Plan
• Language Assistance Plan
• Cooperation in Compliance Issues
38
Title VI Assurances
• Recently updated
• Must be signed (and attached) (49 CFR §21.7)
• Appendices A - E attached to contracts and agreements, as appropriate
• A & E attached to all
• Failure or refusal to furnish required assurance is grounds for the termination, refusal to grant or continue Federal financial assistance (49 CFR
§21.13(b)&(c))
39
40
Methods of Administration
• “Provide…for such methods of administration…to give reasonable guarantee that the applicant and all recipients of Federal financial assistance…will comply with all requirements imposed by or pursuant to this part” (49 CFR §21.7(b))
• Minimum Requirements ▫ Procedures for processing complaints ▫ Program to assess (review) and periodically report on status of Title VI
compliance ▫ Detailed plans for bringing discriminatory programs into compliance ▫ Data collection procedures and methods ▫ Public outreach & education plan/procedures ▫ Training program for staff and others
• MOAs are contained in a Title VI Nondiscrimination Implementation Plan
41
Implementation Plan
• Three primary purposes of the Implementation Plan (23 CFR §200.9(b)(11))
▫ Assists the State in its oversight of the subrecipients’ external civil rights enforcement
▫ Functions as a management tool to help subrecipients plan their civil rights activities
▫ Serves as a resource document for general public
• Reviewed and approved by NCDOT Civil Rights
42
Implementation Plan Components
• Title VI Nondiscrimination Statement of Policy • Organization and Structure • Notice to Public
• Procedures for Assuring Compliance and Enforcement
• Nondiscrimination in employment practices
• Required Title VI Nondiscrimination Contract Provisions
• Accomplishment Report
▫ Accomplishments made since last report/update
▫ Challenges and Observations
▫ Annual Work Plan
43
Best Practices (Multidisciplinary)
• Collaboration and coordination between the Title VI Coordinator, leadership and respective program areas to address and execute Title VI obligations.
1. Secure Chief Administrative Officer’s (CAO) support
2. Team of liaisons including CAO or representative
3. Establish roles and responsibilities
4. Team establishes objectives and meets periodically
5. Identify issues/address areas of vulnerability or need
6. Assess plans from time to time, make adjustments
7. Include Title VI Coordinator in policymaking
44
Nondiscrimination Agreements
• Abbreviated Title VI Nondiscrimination Plans for LGAs serving a population less than 100,000
• Key Elements include:
▫ Assurances
▫ Title VI Coordinator
▫ Implementing Procedures
▫ Complaint Procedures
▫ Sanctions
▫ Signatures
45
Language Assistance Plan
• Commitment to provide language assistance • Includes Four Factor Analysis
▫ Numbers and Narrative ▫ Demographic Maps
• Policies for evaluating language assistance providers
• Notice to Public • Procedures for translating vital docs & info • Staff Training • Monitoring plan
46
Language Assistance Plan cont.
• Popular Implementation Strategies ▫ Multi-language phone lines ▫ Multilingual staff in information booths ▫ Publishing timetables and project/route maps in
languages other than English ▫ Multi-language announcements, including at
transit stations and on vehicles ▫ Advertising in ethnic media ▫ Pictograms ▫ Language identification using “I Speak” cards
47
Pictograms
48
I Speak Cards
49
Overview of Complaint Procedures
• Complaints must be:
▫ Filed with the appropriate entity no later than 180 days after the alleged act of discrimination occurred
▫ In writing and signed by the complainant or his/her representative
▫ Investigated by Civil Rights personnel trained in conducting discrimination investigations
50
Overview of Complaint Procedures
cont. • Maintain a log:
▫ A list of investigations, lawsuits and complaints alleging discrimination
▫ Date the complaint or lawsuit was filed and summary of the allegations
▫ Status of the investigations, lawsuits or complaints and actions taken by the subrecipient
▫ Basis of complaint
▫ Other pertinent information
51
Overview of Compliance Reviews
• NCDOT conducts:
▫ Desk Audits, Onsite, Pre-award & Post-award Reviews
• Factors to be considered:
▫ Subrecipient status
▫ Funding amounts or Annual Work Plans
▫ Incomplete desk audit submissions
▫ Discrimination allegations
▫ Annual NCDOT appropriations
▫ Applications for LGA projects
▫ ADA Transition Plans
52
NCDOT Review Procedures
Desk Audit
• Notification
• Subrecipient completes web-based Compliance Audit Tool (CAT) (30 days)
• NCDOT requests documentation (10 days)
• Intent to Comply Letter and Summary of Findings
▫ Description of Deficiencies
▫ Corrective Actions Required
53
• Subrecipient provides Remedial Action Plan (30 days)
▫ Details planned steps to achieve compliance in 90 days
• Subrecipient reports on corrective actions in accordance with established timeline
• NCDOT provides technical assistance
• NCDOT closes review and notifies subrecipient once all deficiencies adequately corrected
NCDOT Review Procedures cont.
54
NCDOT Review Procedures cont.
Onsite Review • Notification • Title VI Coordinator, CAO, pertinent officials • Review Questions
▫ Documentary Evidence • Facility Tour
▫ Notices on bulletin boards • Exit Conference • Summary of Findings
▫ Report to FHWA • Remedial Action Plan
▫ Deficiencies not corrected within 15 days
55
Compliance Determinations
• Finding of no deficiencies (In Compliance) or deficiencies (In Noncompliance)
• Pre-Award findings
▫ The applicant will probably comply…
▫ It cannot be determined without an on-site…
▫ The applicant probably will not comply…
• Voluntarily correct any deficiencies
▫ Given reasonable time after notice of deficiencies
90 days (or 60 days for Pre-Award Reviews)
56
Consequences of Noncompliance
Non-responsive or Uncooperative
• Suspension or termination of Federal financial assistance
• Refusal to grant or continue federal financial assistance
• Any other means authorized by law (49 CFR §21.13)
▫ Lead federal agency concurrence required (49 CFR
§21.13(d))
57
Most Common Deficiencies
• Failure to implement Title VI Program
• Unsigned Title VI Assurances
• Inclusive Public Involvement
• Language Assistance Procedures
• Inadequate complaint Procedures
58
Next Steps
• Update Title VI Assurances
• Prepare for Compliance Reviews
• Develop Implementation Plans/Procedures
• Maintain required records (DOT Order 1000.12, Chapter IV)
• Periodic Title VI Program Re-Approval
• Focused trainings
• ACHIEVE COMPLIANCE
59
Things to Remember…
• Compliance is not a “gotcha” program
• Your compliance equals our compliance…to a point
• NCDOT is required to assist you
• All people contribute so all should participate and benefit
60
Things to Remember…
“Simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes, or results in racial discrimination.
Direct discrimination by Federal, State, or local governments is prohibited by the Constitution. But indirect discrimination, through the use of Federal funds, is just as invidious; and it should not be necessary to resort to the courts to prevent each individual violation.”
– President John F. Kennedy
61
62
NCDOT – Office of Civil Rights
Title VI/EO Compliance Section
1511 Mail Service Center
Raleigh NC 27699-1511
Title VI Specialists
QUESTIONS?
