Sub-RecipientSub-Recipient Title VI and Title VI and NondiscriminationNondiscrimination

ProgrammingProgramming Presenters: Presenters:

Charlotte Thomas, FDOT and Carey Shepherd, Charlotte Thomas, FDOT and Carey Shepherd, FHWAFHWA

ObjectivesObjectives

Provide an overview of Provide an overview of nondiscrimination programs and nondiscrimination programs and their requirements, including their requirements, including Title Title VI, EJ, LEP and DBEVI, EJ, LEP and DBE..

Help identify strong Help identify strong nondiscrimination initiatives.nondiscrimination initiatives.

Discuss questions and concerns with Discuss questions and concerns with a focus on strategizing solutions.a focus on strategizing solutions.

Major Titles of the Civil Rights Major Titles of the Civil Rights Act of 1964Act of 1964

Title I-Voting RightsTitle I-Voting Rights

Title II-Public Accommodations Title II-Public Accommodations (hotels, restaurants, gas stations)(hotels, restaurants, gas stations)

Title III-Public FacilitiesTitle III-Public Facilities

Title IV-Public Schools (Desegregation)Title IV-Public Schools (Desegregation)

Title V-Created Commission on Civil RightsTitle V-Created Commission on Civil Rights

Title VI- Federal-aid Recipient Title VI- Federal-aid Recipient Programs & ActivitiesPrograms & Activities

Title VII-Fair EmploymentTitle VII-Fair Employment

Title VIII-Registration and VotingTitle VIII-Registration and Voting

CCivil ivil RRights ights AAct of 1964ct of 1964TTitle VIitle VI

On the basis of:On the basis of: RACERACE

COLORCOLOR NATIONAL ORIGINNATIONAL ORIGIN

No person in the United States No person in the United States shall be:shall be:

- Excluded from - Excluded from participationparticipation

- Denied benefits- Denied benefits

- Subjected to - Subjected to discriminationdiscrimination

In any Federally-funded program, service, or activity

The Title VI Program The Title VI Program UmbrellaUmbrella

SEX – Highway Act of 1973 SEX – Highway Act of 1973 (23 USC 324)(23 USC 324)

AGE – Age Discrimination AGE – Age Discrimination Act of 1975Act of 1975

DISABILITY – Section 504 of DISABILITY – Section 504 of the Rehab Act of 1973; the Rehab Act of 1973; Americans with Disabilities Americans with Disabilities Act of 1990 (ADA)Act of 1990 (ADA)

RELIGION & FAMILY STATUS RELIGION & FAMILY STATUS – State Civil Rights laws.– State Civil Rights laws.

Does your community have Does your community have ordinances that extend ordinances that extend protected classifications protected classifications (sexual orientation, (sexual orientation, identity, appearance, etc.)?identity, appearance, etc.)?

Food for ThoughtFood for Thought• Are you familiar with Are you familiar with

the ordinances of the ordinances of agencies within your agencies within your boundaries?boundaries?

• Do any of them assure Do any of them assure protection from protection from discrimination based discrimination based on other protected on other protected class membership?class membership?

• Does this mean your Does this mean your Title VI umbrella must Title VI umbrella must expand to cover those expand to cover those classes?classes?

FHWA Title VI RegulationsFHWA Title VI Regulations

{23 CFR 200}{23 CFR 200} Issued December 10, 1976Issued December 10, 1976::

Guidelines for implementing Title VI Programs and Guidelines for implementing Title VI Programs and conducting Title VI reviewsconducting Title VI reviews

Correct deficiencies discovered by FHWA within Correct deficiencies discovered by FHWA within 90 90 days.days.

Recipients must conduct Recipients must conduct annual reviewsannual reviews of their of their various programs.various programs.

Recipients must monitor their Recipients must monitor their sub-recipientssub-recipients (ie, (ie, MPOs and local agencies).MPOs and local agencies).

More Obligations of More Obligations of ALLALL RecipientsRecipients

Develop a policy and complaint processing procedureDevelop a policy and complaint processing procedure

Broadly post/disseminate policy and proceduresBroadly post/disseminate policy and procedures

Name a Title VI Coordinator who has ‘easy access to the head of the Name a Title VI Coordinator who has ‘easy access to the head of the agency’ agency’

Collect and analyze data about beneficiaries affected by agency Collect and analyze data about beneficiaries affected by agency decisionsdecisions

Minimize, mitigate or avoid disparate impacts on low income and Minimize, mitigate or avoid disparate impacts on low income and minority populationsminority populations

Execute a nondiscrimination agreement (assurance) and provide it Execute a nondiscrimination agreement (assurance) and provide it to FDOTto FDOT

Eliminate discrimination when it is foundEliminate discrimination when it is found

Take affirmative measures to ensure nondiscrimination Take affirmative measures to ensure nondiscrimination

Develop a plan for providing meaningful access to programs, Develop a plan for providing meaningful access to programs, services in languages other than Englishservices in languages other than English

Civil Rights Civil Rights Restoration Act Of 1987Restoration Act Of 1987

Applies to Title IX Education Amendments of Applies to Title IX Education Amendments of 1972, 1972, Title VITitle VI, and Section 504 of the , and Section 504 of the Rehabilitation ActRehabilitation Act

Enacted to specifically reject Supreme Court’s Enacted to specifically reject Supreme Court’s decision in decision in Bell v. Grove City College Bell v. Grove City College

Restored broad scope of coverageRestored broad scope of coverage All programs and activities means All programs and activities means all the all the

operationsoperations of a department, state or local of a department, state or local government agency, corporation, private government agency, corporation, private entityentity

ADA enacted covering all public entities, so ADA enacted covering all public entities, so CRRA coverage is extraneous CRRA coverage is extraneous

EEnvironmental nvironmental JJusticeustice NEPA NEPA (National Environmental Policy Act – 1970), agencies (National Environmental Policy Act – 1970), agencies

must consider environmental impacts of significant or major must consider environmental impacts of significant or major decisions. NEPA placed a strong emphasis not just on decisions. NEPA placed a strong emphasis not just on environment, but on achieving “a balance between population environment, but on achieving “a balance between population and resource use which will permit high standards of living and and resource use which will permit high standards of living and a wide sharing of life’s amenities . . .”a wide sharing of life’s amenities . . .”

US Highway Act of 1973US Highway Act of 1973 (23 USC 109(h)), recipients must (23 USC 109(h)), recipients must consider social, economic and environmental effects of FHWA-consider social, economic and environmental effects of FHWA-aid projects.aid projects.

Warren CountyWarren County, , North Carolina decided to build a toxic waste North Carolina decided to build a toxic waste landfill in a low income, largely black community. Public outcry landfill in a low income, largely black community. Public outcry gave rise to the modern EJ movement.gave rise to the modern EJ movement.

Executive Order 12898Executive Order 12898 (signed by President Clinton on (signed by President Clinton on February 11, 1994) – Federal Actions to Address Environmental February 11, 1994) – Federal Actions to Address Environmental Justice in Minority (protected class) and Low-Income ($22,050 Justice in Minority (protected class) and Low-Income ($22,050 as of 06/09) Populations.as of 06/09) Populations. Order 5680.1Order 5680.1, Released April 15, 1997, incorporated EJ into all , Released April 15, 1997, incorporated EJ into all

DOT programs (Applies to ALL 12 agencies)DOT programs (Applies to ALL 12 agencies) FHWA Order 6640.23FHWA Order 6640.23,, December 2, 1998, policy and procedures December 2, 1998, policy and procedures

(Refines definitions to fit FHWA programs)(Refines definitions to fit FHWA programs)

DOT EJ ORDER Establishes DOT EJ ORDER Establishes Standard for AddressingStandard for Addressing “Disproportionately High and Adverse “Disproportionately High and Adverse

Effects”Effects”Carry Out Activities Only If:Carry Out Activities Only If:

A substantial need exists based on the overall A substantial need exists based on the overall public interest.public interest.

Alternatives that have fewer adverse effects and Alternatives that have fewer adverse effects and satisfy the purpose and need are unavailable.satisfy the purpose and need are unavailable.

Failure to act would have other more severe Failure to act would have other more severe adverse impacts or extraordinary magnitude of adverse impacts or extraordinary magnitude of costs.costs.

This must be well This must be well documented. documented.

Common Administrative EJ Complaints Challenging Common Administrative EJ Complaints Challenging Transportation Decisions as Disparate ImpactsTransportation Decisions as Disparate Impacts

Minority community divided by the construction Minority community divided by the construction of a highway or rail line.of a highway or rail line.

Resources used to build and operate light rail Resources used to build and operate light rail servicing suburbs at expense of bus service for servicing suburbs at expense of bus service for low income inner city communities.low income inner city communities.

““Tunneling” to mitigate effects of transportation Tunneling” to mitigate effects of transportation facilities in affluent neighborhood but not low facilities in affluent neighborhood but not low income minority neighborhood.income minority neighborhood.

Bus schedules and routes fail to provide Bus schedules and routes fail to provide adequate service or are designed to segregate adequate service or are designed to segregate minority residents.minority residents.

Sound Walls/Noise Barriers/Calming Devices, etc. Sound Walls/Noise Barriers/Calming Devices, etc.

Has your organization experienced any others? Has your organization experienced any others?

Across the TracksAcross the Tracks

Wow!Wow! The recent The recent focus on HSR focus on HSR means more transit means more transit funding, including funding, including the possibility of a the possibility of a regional light rail regional light rail system. Finally, system. Finally, universal universal popularity!popularity!

Darensburg v. Metropolitan Darensburg v. Metropolitan Transportation CommissionTransportation Commission

o Currently on appeal in the Currently on appeal in the 99thth Cr. Cr.

o Discrimination lawsuit Discrimination lawsuit alleging channeling public alleging channeling public funds to benefit affluent funds to benefit affluent nonminority riders (rail) to nonminority riders (rail) to the detriment of minority the detriment of minority riders (bus).riders (bus).

o District Court found District Court found disparate impact, though disparate impact, though possible justification.possible justification.

o MTC has lost public trust MTC has lost public trust and caused ill will among its and caused ill will among its customers; BART has lost customers; BART has lost Federal funds.Federal funds.

o No end in sight.No end in sight.

Take a minute to discuss. Can you Take a minute to discuss. Can you think of ways to avoid; minimize; think of ways to avoid; minimize;

mitigate?mitigate?

Lessons LearnedLessons Learned Early, extensive Early, extensive Public InvolvementPublic Involvement. MTC was accused of . MTC was accused of

‘hiding from its public.’ Could a marketing campaign have ‘hiding from its public.’ Could a marketing campaign have helped?helped?

Better data collection and analysis. MTC allegedly refused Better data collection and analysis. MTC allegedly refused to conduct comparatives studies of funds subsidizing rail to conduct comparatives studies of funds subsidizing rail versus bus users by race and income. versus bus users by race and income.

Better examination of the history of area bus transit. Is it Better examination of the history of area bus transit. Is it better or worse than in years past? Why?better or worse than in years past? Why?

Partnership with grassroots organizations; “Partners instead Partnership with grassroots organizations; “Partners instead of opponents.”of opponents.”

Evaluation of Alternative Dispute Resolution (ADR) to work Evaluation of Alternative Dispute Resolution (ADR) to work through conflict rather than the courts, the media.through conflict rather than the courts, the media.

Broader view of the system as a whole . . Not adding rail Broader view of the system as a whole . . Not adding rail but enhancing the entire structure for everyone (seamless but enhancing the entire structure for everyone (seamless interconnectivity; unified fares, etc.)interconnectivity; unified fares, etc.)

Another ScenarioAnother Scenario

Funding is Funding is available to available to refurbish/replace refurbish/replace all 18 bus shelters all 18 bus shelters in your county!in your county! How should the money How should the money

be apportioned?be apportioned? What questions need What questions need

answering?answering?

Civil Rights Programs Promote Civil Rights Programs Promote EJ through:EJ through:

Early, extensive and sustained Early, extensive and sustained public public involvementinvolvement..

Bringing activities Bringing activities to the publicto the public rather rather than vice versa.than vice versa.

Active solicitationActive solicitation of opposition opinions of opposition opinions turning potential litigants into partners.turning potential litigants into partners.

Strong policiesStrong policies of equal opportunity, of equal opportunity, inclusion and nondiscrimination.inclusion and nondiscrimination.

Broadly distributed proceduresBroadly distributed procedures for for accepting and resolving complaints.accepting and resolving complaints.

Your LRTP meeting for Your LRTP meeting for a rural county is poorly a rural county is poorly attended.attended.

In fact, you are the In fact, you are the only attendee. only attendee.

A kind librarian A kind librarian informs you that the informs you that the address of the building address of the building published in the paper published in the paper burned down three burned down three years ago. years ago.

OOPS!OOPS!

What do you do?What do you do?

Does your answer change if you learn Does your answer change if you learn the county is 60% black and 80% below the county is 60% black and 80% below the poverty line? Should that matter?the poverty line? Should that matter?

What are some possible consequences?What are some possible consequences? What steps can be taken to avoid this in What steps can be taken to avoid this in

the future? the future? Any possible positive consequences?Any possible positive consequences?

LLimited imited EEnglish nglish PProficiencyroficiency

Providing meaningful access to programs, Providing meaningful access to programs, services and activities to those with services and activities to those with Limited Limited

English ProficiencyEnglish Proficiency

• Executive Order 13166 Executive Order 13166 (President George (President George Bush on August 11, 2000)Bush on August 11, 2000)

• Embodiment of 14Embodiment of 14thth Amendment Amendment• Title VI Title VI (National Origin)(National Origin)

Who is your service Who is your service population?population?

It does NOT require that the US become It does NOT require that the US become a a bilingual countrybilingual country

It DOES require recipients to take It DOES require recipients to take reasonable steps for providing reasonable steps for providing meaningful accessmeaningful access

It DOES require a written plan for It DOES require a written plan for providing this access.providing this access.

Four Factors Four Factors to consider for LEP Plansto consider for LEP Plans

The The numbernumber or proportion of LEP persons or proportion of LEP persons eligible to be served or likely to be eligible to be served or likely to be encountered by programs, services or encountered by programs, services or activities.activities.

The The frequencyfrequency with which LEP individuals with which LEP individuals come in contact with these programs, come in contact with these programs, services or activities.services or activities.

The The naturenature or importance of the program. or importance of the program. The The resourcesresources available to the recipient available to the recipient

and costs. and costs.

The Basics of an LEP PlanThe Basics of an LEP Plan

Sufficient data collection Sufficient data collection (is census data (is census data enough?)enough?)

Sound analysis to identify populations and Sound analysis to identify populations and impacts impacts

Active InvolvementActive Involvement and and RepresentationRepresentation of of low income and minorities throughout the low income and minorities throughout the entire transportation process, especially in entire transportation process, especially in planningplanning

Adequately DOCUMENT that involvement Adequately DOCUMENT that involvement

OUTREACHOUTREACH

Faith based and community organizationsFaith based and community organizations

Newspaper, radio, internet and other mediaNewspaper, radio, internet and other media

Civic, homeowners, tenants’ groups and associationsCivic, homeowners, tenants’ groups and associations

Grassroots, civil rights, and senior citizens organizationsGrassroots, civil rights, and senior citizens organizations

Hospitals; clinics and other health care providersHospitals; clinics and other health care providers

Shopping malls; stores; restaurantsShopping malls; stores; restaurants

Fairs, festivals and flea marketsFairs, festivals and flea markets

Government, especially service providers (police, fire rescue, Government, especially service providers (police, fire rescue, social services)social services)

Universities, colleges, vocational and Local schools and Universities, colleges, vocational and Local schools and libraries libraries

Statistics Never Lie?Statistics Never Lie?The Charlie Crist Golden Age The Charlie Crist Golden Age Parkway (called by some Parkway (called by some cynics, ‘the devil’s highway’) is cynics, ‘the devil’s highway’) is planned through a rural area planned through a rural area and should make reaching the and should make reaching the coast a snap!coast a snap! Data layers Data layers show little population; mostly show little population; mostly large farms, now for sale and large farms, now for sale and huge empty tracts of forest. huge empty tracts of forest. No No anticipation of problems with anticipation of problems with the environmental analyses. the environmental analyses. Early LRTP meetings garnered Early LRTP meetings garnered positive feedback, especially positive feedback, especially from farm owners. BUT . . . from farm owners. BUT . . .

Your Public Involvement Your Public Involvement Coordinator has noticed Coordinator has noticed an increasing an increasing population of Mexicans . population of Mexicans . . flags of Mexico abound . flags of Mexico abound as do mobile taco as do mobile taco vendors and stores with vendors and stores with Hispanic names. She Hispanic names. She remembers seeing more remembers seeing more Hispanics in the wake of Hispanics in the wake of some large hurricanes some large hurricanes two years before. two years before. Migrant workers came Migrant workers came for clean up work, but for clean up work, but apparently many never apparently many never left. left.

HowHow toto Proceed?Proceed? What are some important questions:What are some important questions:

Does Title VI cover these populations? They aren’t even Does Title VI cover these populations? They aren’t even legal!legal!

Does the project have to be scrapped?Does the project have to be scrapped? What are some ways of reaching out to these What are some ways of reaching out to these

communities?communities? Why don’t these communities attend transportation Why don’t these communities attend transportation

meetings or serve on committees?meetings or serve on committees? Is an LEP plan needed to address their need for critical Is an LEP plan needed to address their need for critical

information?information? How is the census data balanced with the reality?How is the census data balanced with the reality? What are some other questions?What are some other questions?

Is this even realistic?Is this even realistic? How would you handle it?How would you handle it?

DDisadvantaged isadvantaged BBusiness usiness EEnterprisenterprise

All State DOTs; cities; counties; All State DOTs; cities; counties; MPOs that receive Federal MPOs that receive Federal financial assistance must have financial assistance must have DBE programsDBE programs

FHWA-assisted agencies must FHWA-assisted agencies must adopt the FDOT’s DBE programadopt the FDOT’s DBE program

49 CFR Part 26 regulates the 49 CFR Part 26 regulates the programprogram

The DBE program and MBE The DBE program and MBE program are not the sameprogram are not the same

Confused? The DBE Confused? The DBE Program:Program:

Federal (& State) RegsFederal (& State) Regs USDOT/FHWAUSDOT/FHWA NationwideNationwide SBA Size Standards based SBA Size Standards based

upon gross receipts & PNWupon gross receipts & PNW Remedy past Remedy past

discrimination, level discrimination, level playing field & provide for playing field & provide for equal opportunityequal opportunity

The MBE Program:The MBE Program:

State StatuteState Statute DMS & Office of DMS & Office of

Supplier DiversitySupplier Diversity Florida onlyFlorida only 200 or fewer 200 or fewer

employeesemployees 5 million net worth cap5 million net worth cap

To be a DBE . . . To be a DBE . . .

Member of a Member of a presumed disadvantaged presumed disadvantaged groupgroup (women, Black, Hispanic, Asian, Native (women, Black, Hispanic, Asian, Native American).American).

If not presumed, can If not presumed, can documentdocument disadvantage.disadvantage.

Must show 51% Must show 51% ‘real and substantial’‘real and substantial’ ownership (not just paper) through capital ownership (not just paper) through capital contribution or expertise.contribution or expertise.

Must Must control businesscontrol business, making daily and , making daily and long term decisions; not relying on others to long term decisions; not relying on others to do so.do so.

Recent Statistics (as of Recent Statistics (as of 06/2010)06/2010)

District 1District 1 8080 District 2District 2 9292

District 3District 3 8585 District 4District 4 158158 District 5District 5 218218 District 6District 6 150150 District 7District 7 132132 Out of StateOut of State 164164 TotalTotal 10901090

Black Black 266266 HispanicHispanic 265265 Native AmericanNative American 1515 AsianAsian 4545 Hawaiian/PIHawaiian/PI 5050 WomenWomen 449449

TotalTotal 10901090

Important Program Important Program ResponsibilitiesResponsibilities

You may not disparately use DBEs on the basis of You may not disparately use DBEs on the basis of protected class membershipprotected class membership

You should You should use certified DBEsuse certified DBEs whenever possible whenever possible You must check to ensure DBE is actually certifiedYou must check to ensure DBE is actually certified You should check the availability of new DBEsYou should check the availability of new DBEs You must You must mustmust must must verify that the DBE is verify that the DBE is

performing a commercially useful function (CUF)performing a commercially useful function (CUF) You must report actual payments, minority status You must report actual payments, minority status

and type of work for all DBEs, prime or sub, and type of work for all DBEs, prime or sub, construction or professional services consultantsconstruction or professional services consultants

Get in the habit of Get in the habit of documentingdocumenting all of these all of these effortsefforts

FDOT’s DBE Program Needs FDOT’s DBE Program Needs Your Your HelpHelp

Race Neutrality means the program Race Neutrality means the program is voluntary.is voluntary.

No goals are placed on projects.No goals are placed on projects. FDOT failed to make its 8.1% goal for FDOT failed to make its 8.1% goal for

FY 2008.FY 2008. Neither FDOT nor the industry wants Neither FDOT nor the industry wants

to return to race conscious goals, a to return to race conscious goals, a real possibility. real possibility.

Why is Nondiscrimination Why is Nondiscrimination Programming a Must?Programming a Must?

It’s the lawIt’s the law (and a whole bunch of them). (and a whole bunch of them). It’s the American way.It’s the American way. Equal Opportunity is Equal Opportunity is

closely aligned with equality before the law, a closely aligned with equality before the law, a constitutional guarantee.constitutional guarantee.

It’s profitable.It’s profitable. A 2007 University of Chicago A 2007 University of Chicago study of 250 businesses of all sizes found that study of 250 businesses of all sizes found that diversity was directly related to profitability. . . diversity was directly related to profitability. . . More diversity equals more customers. More diversity equals more customers.

It’s useful.It’s useful. Inclusion invites different perspectives Inclusion invites different perspectives and ideas, increasing problem solving potential.and ideas, increasing problem solving potential.

Plus, Failure Can be Plus, Failure Can be DevastatingDevastating

The regs allow for The regs allow for suspension and removal of suspension and removal of funding.funding.

The regs allow for referral to The regs allow for referral to US DOJ for litigation US DOJ for litigation consideration.consideration.

Allegations of discrimination Allegations of discrimination damage organizations’ damage organizations’ credibility and reputation, credibility and reputation, and create ill will in the and create ill will in the community.community.

Defending discrimination Defending discrimination complaints or lawsuits can complaints or lawsuits can be COSTLY, even if be COSTLY, even if unfounded.unfounded.

Good News!Good News!

Compliance is Compliance is simplesimple.. You are probably already practicing the basics.You are probably already practicing the basics. Write it down! Have written Write it down! Have written

policies/plans/procedures and document policies/plans/procedures and document activities.activities.

Actually follow your policies/plans/procedures and Actually follow your policies/plans/procedures and regularly police them. Don’t promise what you regularly police them. Don’t promise what you cannot or will not deliver. cannot or will not deliver.

Help is Help is alwaysalways available. See your Resource available. See your Resource Sheet. We love your questions, comments, input, Sheet. We love your questions, comments, input, suggestions, problems, scenarios . . call us! suggestions, problems, scenarios . . call us!

Thank you, Charlotte & Thank you, Charlotte & CareyCarey