Civil Rights Laws and Welfare

With sections on:
Federal Civil Rights Laws / Title VII of the Civil Rights Act of 1964 / Title IX of the Education Amendments of 1972 / Title VI of the Civil Rights Statutes of 1964

FEDERAL CIVIL RIGHTS LAWS

What are the Federal Civil Rights Laws that protect against racial and gender discrimination?

The main Federal anti-discrimination statutes are: Titles VI and VII of the Civil Rights Act of 1964, and Title IX of the Education Amendments of 1972. Title VI protects against discrimination on the basis of race, color, or national origin in federally-funded programs and has been interpreted to prohibit discrimination on the basis of language. 42 U.S.C. 2000d et.seq. Title VII protects against discrimination on the basis of race, color, religion, sex or national origin in employment. 42 U.S.C. 2000e et.seq. Title IX protects against sex discrimination in federally funded educational programs. 20 U.S.C. 1681 et.seq. In addition, the Equal Protection clause of the Fourteenth Amendment protects against intentional racial and gender discrimination by a governmental employee or other state actor. This Fact Sheet summarizes the basic protections offered by each statute. Welfare recipients facing discrimination may have potential claims under one or more of these laws.

Do these civil rights laws apply to welfare recipients?

The Department of Health and Human Services ("HHS") recently clarified that the federal nondiscrimination laws apply to TANF recipients in work placements or training programs. See 45 CFR § 260.35 (1999); 64 Fed. Reg. 17881 (Apr. 12, 1999). TANF itself explicitly states that Title VI applies to beneficiaries. 42 U.S.C. § 608(c); 45 CFR § 260.35(a)(4). But the regulations go beyond the language of TANF and ensure that other "nondiscrimination laws ... apply to TANF beneficiaries in the same manner as they apply to other workers." 45 CFR § 260.35(b). This means that TANF beneficiaries in work placements and training programs are protected by Title VII and Title IX, as well as by Title VI. The regulations codify earlier statements by the White House, the Department of Labor, the Equal Employment Opportunity Commission, and the U.S. Commission on Civil Rights, that federal civil rights laws prohibit racial and gender discrimination against welfare recipients in work or training placements. Indeed, the sweeping language and broad remedial purpose of Titles VI, VII, and IX have led courts to assume they apply unless there is a specific provision of law that indicates otherwise. The civil rights statutes contain no exceptions for welfare workers, welfare work placements, or welfare training programs, and thus should apply. These new regulations will help ensure that welfare workers and trainees receive the protection of federal nondiscrimination laws.

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964

What is Title VII?

Title VII prohibits discrimination in employment, stating that [i]t shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. at 2000e-2(a)(1) (emphasis added). Title VII coverage is not limited to employees in the traditional sense of the word, and thus should apply to welfare recipients in work training programs. Not only does the main provision quoted above apply to "any individual," but the provision providing for a private right of action speaks of "person[s] aggrieved." Id. at 2000e-5(e), (f)(1), and (f)(3).

What employers are covered by Title VII?

Title VII applies to private employers, labor organizations, employment agencies or other job referral agencies, and public employers with 15 or more employees during 20 weeks per year. These entities and their "agents," typically interpreted as high level supervisors, are subject to suit under Title VII. Co-workers are not subject to suit under Title VII unless they are highly placed enough to be considered "agents" of the employer. 42 U.S.C. 2000e-3(b).

Who is liable for discrimination in welfare work placements under Title VII?

Once the jurisdictional requirement of 15 or more employees is met, liability depends both on control over the worker and responsibility for or knowledge of the discrimination. Because work assignments in welfare are combinations of control and direction by the welfare agency and the work placement, either or both may be responsible under Title VII in any given case.

What types of discrimination are prohibited by Title VII?

Title VII prohibits discrimination in hiring, firing, work assignments, promotions, benefits, and wages. Title VII covers facially discriminatory treatment or "disparate treatment" which is intentional differential treatment of a person or persons due to their race, gender, religion, or national origin. McDonnell Douglas v. Green, 411 U.S. 792 (1973). In addition, Title VII prohibits discrimination resulting from facially neutral policies that have a disparate impact on individuals in protected groups. See Griggs v. Duke Power Co., 401 U.S. 424 (1971); Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). Title VII also prohibits pregnancy discrimination; it requires employers to treat pregnant women who can work like other able workers, and to treat women disabled by pregnancy, childbirth, or related medical conditions like other disabled workers. 42 U.S.C. 2000e-(k).

Title VII prohibits sexual and racial harassment. There are two forms of sexual harassment under Title VII: quid pro quo harassment which involves a supervisor demanding sexual favors in exchange for favorable treatment at work; and hostile environment sexual harassment, which involves unwelcome sexual comments or conduct by a superior, co-worker, or third party that is so severe or pervasive that it creates a hostile work environment. See Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986). These concepts also apply to racial harassment. In cases where both sex and race may be a factor, e.g., harassment of a black woman, Title VII prohibits that compound discrimination. Jefferies v. Harris County Community Action Association, 615 F.2d 1025 (5th Cir. 1980).

Potential violations of Title VII in the welfare context include: sexual or racial harassment; steering women into typically "female" work; steering blacks or Latinos into outdoor work, while steering whites into office jobs; and not giving pregnant women the same opportunities as other disabled workers.

What are the remedies for a Title VII violation?

• Administrative remedies: The Equal Employment Opportunity Commission ("EEOC") enforces Title VII. Employees must file a complaint with the EEOC within 180 days of the alleged discrimination (if there is a state deferral agency with which a charge is filed as well, the period is extended to 300 days (240 days in some states)). 42 U.S.C. 2000e-5. Federal employees must file with the designated EEO contact within 30 days of the alleged discrimination. 42 U.S.C. 2000e-16. In most states, filing a complaint with the state or local agency will result in an automatic filing with the federal EEOC. After receiving the complaint, the EEOC will notify the employer named in the complaint, investigate the complaint and attempt to resolve the problem. If it cannot be resolved, within 180 days, the EEOC is supposed to issue a "right to sue" letter, which allows the complainant to file a Title VII claim in court. 42 U.S.C. 2000e-5. If the case has been pending for more than 180 days, a complainant can request the right to sue letter. The letter will have findings and will indicate whether the EEOC believes that discrimination took place. However, whether or not the EEOC finds discrimination, a complainant can file a judicial action once she has the right to sue letter. In rare instances, the EEOC will file a lawsuit on behalf of the complainant.
• Judicial remedies: Title VII litigants must file with the EEOC before filing a lawsuit. Upon receipt of the "right to sue" letter, a potential litigant has 90 days within which to file suit in federal court. Title VII remedies include declaratory and injunctive relief, back pay, front pay, and, under the Civil Rights Act of 1991, compensatory damages (such as pain and suffering) and punitive damages for disparate treatment cases, including sexual and racial harassment. Punitive damages are not available in disparate impact cases. Compensatory and punitive damages are capped under Title VII. Litigation of discrimination claims in a state forum will often preclude bringing a Title VII action in Federal court.
• Defense to a sanction: If a client's reason for failing to cooperate with a work or training assignment had to do with discrimination she was experiencing, including sexual or racial harassment, that should provide a defense to any sanction threatened or imposed by the welfare department. Appropriate statutory and regulatory language under the civil rights statutes should be cited to show that the rights of the recipient were violated by placement at a discriminatory site. It is also important, particularly in cases of sexual harassment, that the victim notify his or her caseworker and supervisor. Although this may be very difficult, notice is an important aspect of liability.

TITLE IX OF THE EDUCATION AMENDMENTS OF 1972

What is Title IX?

Title IX of the Education Amendments of 1972, 29 U.S.C. 1681, prohibits sex discrimination in "any education program or activity receiving Federal financial assistance." Title IX covers educational institutions that receive federal financial assistance, as well as federally-funded educational programs in non-educational institutions. It is a broad statute with narrow and specific exemptions for such things as military schools and fraternities and sororities.

Does Title IX apply to welfare work training programs?

Title IX applies to any education program receiving Federal funds. In order to be covered, therefore, the program must (1) be an educational program and (2) receive Federal funds.

• (1) Are welfare work training programs "educational programs" within the meaning of Title IX? Title IX states that it applies to vocational education. 20 U.S.C. 1681(a)(1). The regulations state that Title IX covers programs that offer occupational or vocational training, and defines such an institution or program as one "which has as its primary purpose preparation of students to pursue a technical, skilled or semiskilled occupation or trade or to pursue study in a technical field, whether or not the school or institution offers certificates, diplomas, or degrees and whether or not it offers fulltime study." 45 C.F.R. 86.2(n). This definition would cover most welfare training programs and even some on the job placements since the question is whether the primary purpose is preparation for an occupation, not whether there is any specific degree conferred.
• (2) Are welfare training programs under TANF programs or activities "receiving Federal financial assistance" within the meaning of Title IX? Federal regulations define "recipients" of federal assistance to include programs that receive federal money directly or "through another recipient and which operates an education program or activity which receives or benefits from such assistance." 45 C.F.R. 86.2(h). Under this definition, any state or locality which receives TANF funds and runs any sort of job training or placement program would be covered by Title IX as would any program, institution or entity the state or locality funds to provide such training.

Additionally, Title IX regulations prohibit placement of students in any program that discriminates, regardless of whether that program receives Federal funds. If a state agency requires participation in any program it doesn't operate itself, it must have a procedure to insure that the operator or sponsor of the program does not discriminate. If there is any evidence of discrimination, the state agency cannot require anyone to participate. 45 CFR 86.31(d). Thus, any placements the welfare agency makes with respect to work/training programs would be covered by Title IX and recipients have the right to refuse placements where gender discrimination exists.

What kind of discrimination does Title IX prohibit?

Title IX protects women from a broad range of sex discrimination in work/training programs. The regulations specifically prohibit discrimination in the provision of aid, benefits or services; they specifically preclude different rules or rules applied differently based on sex; they prohibit application of sanctions differentially based on sex. 45 C.F.R. 86.31. Sex discrimination under Title IX includes gender discrimination in admission to programs, access to courses and other educational activities and access to counseling, health and insurance benefits. 45 C.F.R. Subparts C. and D. The courts have held that sexual harassment is prohibited under Title IX.

Furthermore, Title IX specifically prohibits application of any rule concerning a student's actual or potential parental, family or marital status which treats them differently based on gender. 45 C.F.R. 86.40(a). It also prohibits discrimination on the basis of pregnancy. 45 C.F.R. 86.40(a). Clearly, the state cannot restrict access to educational programs due to the fact that a recipient is pregnant, unmarried or has children if those denials fall disproportionately on women. In addition, Title IX might also be violated if the state imposes sanctions related to education or job training programs that involve parental or marital status or pregnancy and fall disproportionately on women. For example, sanctioning of women with children for not participating in work training programs because of child care problems or sanctioning of parents because their children do not attend school might run afoul of this regulation.

Which agency is responsible for administering Title IX as it applies to welfare programs?

Although the Department of Education ("DOE") has primary responsibility for administering Title IX, the Department of Health and Human Services ("HHS") also has jurisdiction over Title IX with respect to programs under its jurisdiction. HHS and DOE have promulgated identical regulations interpreting Title IX. See 34 C.F.R. 106 (1992)(DOE Regulations) and 45 C.F.R. 86 (1992)(HHS Regulations). Both agencies maintain an Office for Civil Rights ("OCR") which enforces Title IX.

What are the remedies under Title IX if there is gender discrimination in a job training program?

• Administrative remedies. If someone has suffered discrimination that she thinks violates Title IX, she can either (a) file a complaint with the Office of Civil Rights ("OCR") at the Department of Health and Human Services or (b) sue in court for violations of Title IX. A lawsuit subjects the welfare department and any training program in which the recipient was placed to monetary damages or injunctive remedies. If a complaint is filed with OCR, the Federal agency has the authority to withdraw federal funding. Title IX covers all parts and programs of covered institutions, and not just specific programs that receive federal funding. Thus, if OCR finds that a program is discriminatory, it can take away full federal funding.
• Judicial remedies. A welfare recipient also has the option to sue in court for violations of Title IX. A Title IX plaintiff is not required to exhaust her administrative remedies before filing suit. A lawsuit subjects the welfare department and any training program in which the recipient was placed to monetary damages or injunctive remedies. However, monetary damages are available only for disparate treatment claims, including sexual harassment. Successful litigants are entitled to attorney's fees and costs.
• Defense to sanction. With respect to referrals to off site job placements or training programs, the regulations clearly provide that recipients have the right to refuse placements where there is gender discrimination at the placements. Thus, welfare recipients would have the right to refuse a discriminatory placement without the threat of sanction. 45 C.F.R. 86.31(d)(2)(ii). If sanctioned, the recipient should be able to use Title IX as a defense in any appeals of the sanction.

TITLE VI OF THE CIVIL RIGHTS STATUTES OF 1964

What is Title VI?

Title VI prohibits discrimination on the basis of race, color, or national origin in "any program or activity receiving Federal financial assistance." 42 U.S.C. 2000d et seq. Title VI covers a broad range of programs that receive Federal funds. As under Title IX, TANF funding meets Title VI's Federal funding requirement, and Title VI applies to any programs that are funded by TANF dollars. Since the TANF statute specifically provides that Title VI applies, there is no question that welfare recipients can rely on Title VI to fight racial or ethnic discrimination by the state or local agency that administers TANF and in any program that receives TANF money for job placement, training, or provision of jobs.

What kinds of discrimination are prohibited by Title VI?

Each Federal agency that provides Title VI funding is responsible for investigating complaints of Title VI violations by its grantee or by programs within its jurisdiction. Each agency's Title VI regulations provide an administrative complaint process. Generally, most Title VI claims that arise in the context of welfare programs should be filed with HHS or DOL if the money for the work program comes through DOL. HHS regulations allow any person who believes she or any specific class of individuals has suffered discrimination violating Title VI to file a written complaint with OCR within 180 days of the alleged discrimination. 45 C.F.R. Part 80. Unfortunately, agencies are not required to act on the complaint within a specified time frame. Like Title IX, Title VI authorizes Federal agencies to withhold Federal funds as the ultimate remedy for violating the statute. Rather than imposing that remedy, however, most federal agencies enforce Title VI by negotiating a compliance agreement with the offending program.

A welfare recipient also has the option to sue in court for violations of Title VI. Like Title IX plaintiffs but unlike Title VII plaintiffs, a Title VI plaintiff is not required to exhaust her administrative remedies before filing suit. While the Title VI statute itself only prohibits "intentional discrimination," i.e., disparate treatment discrimination, most federal agencies have issued Title VI regulations that prohibit conduct with a racially disparate effect. Monetary damages are available for disparate treatment claims only, including racial or ethnic harassment cases, while declaratory or injunctive relief is available for disparate treatment and impact claims. Successful litigants are entitled to attorney's fees and costs. Although Title VI is an under-used statute, relative to Title VII and Title IX, it could be a powerful legal tool for welfare advocates to use in fighting civil rights violations.