Non-Discrimination Complaint Procedure - Office of Fair Practices
.01 PURPOSE
A. The Maryland Department of Labor recognizes that legitimate problems, differences of opinion, complaints and grievances will exist in the daily relationship between the Maryland Department of Labor as an employer and its employees or applicants for employment and beneficiaries of departmental services. It is the responsibility of administrators, supervisors, program directors, appointing authorities and employees to establish and maintain a climate conducive to equal opportunity and within which employee problems or complaints are promptly identified, discussed and given fair and timely consideration. This directive applies to complaints relating to or arising out of discrimination in employment or in the delivery of services on the basis of age, ancestry, color, creed, citizenship (where applicable), genetic information/testing, marital status, mental or physical disability, political affiliation, belief or opinion (where applicable), national origin, race, religious affiliation, belief or opinion, sex (except where age, sex, or disability involves a bona fide occupational qualification), sexual orientation (where applicable) or status as a participant in Workforce Innovation Opportunity Act (WIOA) funded programs (where applicable).
B. This directive provides standardized procedures for the filing and processing of complaints against an employee, policy of or program operated by, through, or funded by Maryland Department of Labor alleging discrimination in employment or in the delivery of services.
.02 REFERENCES
A. Civil Rights Act of 1964, Titles VI and VII, as amended, Pub. Law 88-352, 78 Stat. 252 (42 U.S.C., §2000)
B. Maryland Code of Fair Employment Practices Act (Article 49B the Annotated Code of Maryland)
C. Governor's Code of Fair Employment Practices, Executive Order 01.01.2007.19
D. Age Discrimination In Employment Act of 1967, as amended, Pub. Law 90-202, (29 U.S.C, §621 et seq.)
E. Age Discrimination Act of 1975, as amended, Pub. Law 94-135, 89 Stat. 728 (42 U.S.C., §6101)
F. Rehabilitation Act of 1973, as amended, Section 504, Pub. Law 93-112, 87 Stat. 390 (29 U.S.C 794)
G. §5-211 of the State Personnel and Pensions Article
H. Workforce Innovation Opportunity Act of 1998, Section 188, Pub. Law 105-220, 12 Stat. 936 (29 U.S.C 2801 et seq.)
I. 29 CFR §30, §31, §32, and §37
J. Title IX of the Education Amendments of 1972, as amended, Pub. Law 92-318, 86 Stat. 373 (20 U.S.C. §1681, et seq.)
K. Civil Rights Act of 1991, P.L. 102-166
L. Americans With Disabilities Act of 1990, as amended, Pub. Law 101-336, 104 Stat. 337 (42 U.S.C. §12101 et seq.)
M. Maryland Department of Labor Non-Discrimination Policies
.03 POLICY
A. It is the policy of Maryland Department of Labor not to discriminate in its employment practices or in the delivery of services provided by or through any program or activity under its authority.
B. Through this complaint process, any Maryland Department of Labor employee, applicant, client, claimant or other beneficiary may file a complaint against Maryland Department of Labor or a Maryland Department of Labor activity or program alleging discrimination in employment or in the delivery of services.
C. Any employee, applicant for employment, client, claimant or beneficiary seeking service(s) has the right to present his or her complaint through this procedure free from interference, coercion, restraint, discrimination or retaliation.
D. The complainant has the right to representation at any stage in the consideration of the complaint.
E. Where appropriate, the individual assigned the complaint shall make every effort to resolve the complaint at the lowest possible level.
F. All Department employees involved in the processing, investigation and/or resolution of the complaint shall treat confidentially (except to the extent necessary to carry out the provisions of this procedure) all phases of the complaint process, including the identity of the complainant and respondent.
G. Program directors and administrators shall make all appropriate records, files and Department employees available to the appropriate enforcement agency, the Maryland Department of Labor Office of Fair Practices (OFP) or appropriate EO/504 Designee or Liaison during the course of investigating or attempting to resolve a complaint.
H. Any Maryland Department of Labor employee who interferes with the implementation of this directive shall be appropriately disciplined.
.04 DEFINITIONS
A. As used in this directive, the following terms are defined as indicated.
B. Terms Defined
(1) Complaint means a written statement that alleges a violation of the nondiscrimination provisions of those mandates that govern the activities of Maryland Department of Labor.
(2) Complainant means the person(s) filing a complaint of alleged discrimination or on whose behalf a complaint is filed.
(3) Department means the Maryland Department of Labor, its subdivisions and programs.
(4) Discrimination in employment means any action in hiring, promotion, reclassification, discharge, suspension or any other personnel action with this Department that limits, segregates or otherwise adversely affects an employee's or applicant's status, financial compensation, benefits or dignity on the basis of ancestry, race, color, creed, sex, sexual orientation, national origin, age, political affiliation, religion, marital status, citizenship, or mental or physical disability or because of other non-merit factors except where such factors can be proven to be bona fide occupational qualifications.
(5) Discrimination in service means any action in providing service to a claimant, client or other beneficiary of this Department (individual or corporation) that limits, segregates or otherwise adversely affects the service or benefits received or the dignity of the individual on the basis of race, color, sex, national origin, age, religion, political affiliation, citizenship, mental or physical disability or status as a WIOA participant (where applicable) except where such factors are bona fide eligibility criteria for that particular service.
(6) Fair Practices Officer means the individual appointed by the Maryland Department of Labor Secretary who is charged with the implementation of Maryland Department of Labor's Affirmative Action Program and the promotion of nondiscrimination within Maryland Department of Labor as specified in the Governor's Code of Fair Employment Practices and §5-207 of the State Personnel and Pensions Article.
(7) No Probable Cause means that based on a review of the evidence, there is no reason to believe that the respondent was engaged in the alleged discriminatory act(s).
(8) Probable Cause means that based on a preponderance of the evidence, there is reason to believe that the respondent was engaged in the particular alleged discriminatory act(s).
(9) Respondent means the individual, program or activity against whom a complaint of discrimination is filed.
(10) WIOA means the Workforce Innovation Opportunity Act of 1998 and any entity to which WIOA funds are extended either directly or indirectly including State Employment Security Agencies.
.05 SCOPE
A. The jurisdiction of this Department extends to any complaint in which an act of discrimination is alleged to have been committed by an employee or agent of this Department in the course of that individual's duties with the Department or when discrimination has allegedly occurred as a result of a policy or procedure of this Department.
B. The individual receiving a complaint that is not within the jurisdiction of this Department shall refer the complaint in accordance with the Directive - Jurisdiction of Agencies.
C. The individual receiving a complaint in writing that is not within the jurisdiction of this Department shall notify the complainant in writing that Maryland Department of Labor has no jurisdiction and shall make the appropriate referral(s).
.06 RESPONSIBILITIES
A. Fair Practices Officer
The Fair Practices Officer has the overall responsibility for the implementation of and compliance with this procedure within Maryland Department of Labor and, where specified, makes recommendations to the Secretary with regard to the final departmental resolution and disposition of complaints of alleged discrimination.
B. Director Office of Fair Practices
The OFP Director is responsible for overseeing the application of this directive and for providing related consultation, technical assistance and training to other appropriate Maryland Department of Labor personnel in carrying out their responsibilities under this directive. The OFP Director is responsible for the receipt, processing and coordination of all complaints and for monitoring the implementation of appropriate settlement agreements.
C. Maryland Department of Labor Administrators
All administrators and supervisors are responsible for advising employees under their supervision and applicants for service of the existence of this directive and for assuring cooperation in the implementation of this directive.
D. Maryland Department of Labor Principal Counsel
The Principal Counsel for the Department interprets relevant legal principles and represents the Department before enforcement agencies receiving complaints of discrimination filed against the Department, for example - the federal Equal Employment Opportunity Commission (EEOC) or the Maryland Commission on Human Relations (MCHR). The Principal Counsel may also assist in the preparation of settlement agreements.
E. Director of the Maryland Department of Labor Office of Human Resources
The Director of the Office of Human Resources carries out relevant merit system provisions; assists in the preparation and implementation of settlement agreements; and compiles requested personnel related data with regard to the complaints filed with EEOC, MCHR or other fair employment agencies.
F. Local Office EO/504 Designees
In local offices, EO/504 Designees are responsible for processing complaints of alleged discrimination that are received by and are within the jurisdiction of their Maryland Department of Labor office (except sexual harassment complaints filed by Maryland Department of Labor employees) and for appropriately referring those that are outside of the Department's jurisdiction.
G. EO/504 Liaisons
EO/504 Liaisons for administrative units perform the same function as described in F. above for their respective programs.
07. FILING A COMPLAINT OF DISCRIMINATION
A. Who may file
(1) Any employee of Maryland Department of Labor who feels that he or she has been subjected to unlawful discrimination in any term, or condition or privilege of that individual's employment;
(2) Any applicant for employment with Maryland Department of Labor,
(3) Any applicant for, client, claimant or other beneficiary of or participant in any program or service provided or funded by or through Maryland Department of Labor, or
(4) Any individual or group/class of individuals who believes that the individual or the group/class has been subjected to discrimination prohibited by those nondiscrimination mandates governing Maryland Department of Labor's operation.
B. Right To File
(1) No employee, applicant for employment, claimant or client (individual or organization) seeking service or assistance from Maryland Department of Labor or any participant in any Maryland Department of Labor program may be subjected to threat, abuse, restraint, intimidation, harassment, interference, coercion, discrimination or retaliation for filing a complaint of alleged discrimination or for participating in a complaint investigation.
(2) Any alleged violation of B(1) shall be investigated and handled in accordance with this procedure.
C. How To File
(1) The complaint should be filed promptly but not later than one (1) year of the alleged discriminatory act, within one (1) year of the complainant's knowledge of the act, or in the case of a continuing pattern of discrimination, within one (1) year of the most recent act that appears to perpetuate the alleged pattern, and one (1) year if filed under §5-211 of the State Personnel and Pensions Article.
(2) The complaint shall be in writing and contain: the complainant's name and address, the name and address of the person (or other means of contacting the complainant), office, agency or program against whom/which the complaint is filed, a clear concise description of the act(s) considered to be a violation and must be signed by the complainant or the complainant's authorized representative.
(3) The complaint may be filed with the Fair Practices Officer, the OFP Director, the Human Resources Director, the appropriate EO/504 Designee or Liaison.
(4) The Department shall not deny the complainant an investigation if it can be shown that an administrative procedure or circumstance(s) beyond the complainant's control prevented the filing of the complaint within the time limitation as stated in this directive.
D. Right To File With Enforcement Agencies
(1) By filing a complaint alleging discrimination with the Department, the complainant in no way relinquishes the right to seek redress through the Maryland Commission on Human Relations, the federal Equal Employment Opportunity Commission, the U.S. Department of Labor's (DOL) Civil Rights Center (CRC), local fair employment agencies or take action through the courts or other appropriate State and federal enforcement agencies.
(2) The individual assigned the complaint shall advise the complainant of the right to file with other appropriate enforcement agencies.
E. Withdrawal of Complaint
(1) The complainant may request to withdraw the complaint of discrimination at any time during the process by submitting a written request to the Fair Practices Officer or the OFP Director or the individual assigned the complaint.
(2) The complainant must certify that this withdrawal is not made as a result of threat, abuse, restraint, intimidation, harassment, interference, coercion, discrimination or retaliation.
(3) As appropriate, the Fair Practices Officer or the OFP Director shall notify other enforcement agency(s) of the withdrawal of the complaint.
(4) If the Fair Practices Officer or the Equal Opportunity Director has reason to believe that the complaint is being withdrawn for any of the reasons stated in E(2) above, the Director or Fair Practices Officer may elect to continue the investigation.
(5) If the Fair Practices Officer or the Equal Opportunity Director has reason to believe that it would be inappropriate or inadvisable to discontinue the investigation, Director or Fair Practices Officer may elect to continue the investigation.
(6) The Director or the Fair Practices Officer shall document the reasons why it has been determined that the investigation should be continued - that threat, abuse, restraint, intimidation, harassment, interference, coercion, discrimination or retaliation caused the complainant to withdraw the complaint; or other compelling reasons.
.08 PROCESSING A COMPLAINT OF DISCRIMINATION
This section describes appropriate steps for the receipt, assignment, investigation and resolution of a complaint alleging discrimination against a Maryland Department of Labor employee or a Maryland Department of Labor program or activity.
A. Receipt and Assignment
(1) Local offices and administrative units receiving complaints (except complaints filed by a Maryland Department of Labor employee alleging sexual harassment) shall refer the complaint to the EO/504 Designee or Liaison.
(2) Where there is no EO/504 Designee or Liaison, the complaint shall be referred to the OFP Director.
(3) The OFP Director shall assign complaints received directly from a complainant to an OFP staff member for processing or may forward the complaint to the appropriate EO/504 Designee or Liaison.
(4) The Designee, Liaison or other EO staff member assigned the complaint shall:
(a) Determine the appropriate jurisdiction;
(b) Document the complaint on the appropriate complaint form(s) and logs;
(c) Place a copy of the complaint in the appropriate office/unit complaint file. Complaint forms and related documents are to be maintained in a separate file and are not to be filed in employee or beneficiary personnel or benefit files.
d) For complaints that are determined to be under the authority of Maryland Department of Labor, complete the appropriate Maryland Department of Labor complaint form(s) attached to this directive.
(e) Furnish a copy of the written complaint to the complainant and the respondent;
(f) Forward a copy of the complaint to the OFP Director and appropriate departmental administrators; and
(g) Acknowledge receipt and advise the complainant in writing of additional filing right(s) with other appropriate local, State or federal enforcement agencies.
In addition to other filing rights, where appropriate,
(i) Employees, beneficiaries of or participants in WIOA funded programs (including all programs of the Maryland Department of Labor Division of Workforce Development and Adult Learning) shall be advised of their right to file with the DOL Civil Rights Center (CRC) (located at 200 Constitution Avenue, N.W. Suite N4123, Washington, D.C 20210).
(ii) Complainants who elect to file a complaint relating to a DOL funded program or activity with Maryland Department of Labor shall allow the Department 90 days to process the complaint.
(iii) If by the end of the 90 days, the Department has not completed its processing of a complaint filed by an employee or beneficiary of or participant in a WIOA funded program or has failed to notify the complainant of a resolution, the complaining party or an authorized representative may file a complaint with the Directorate of Civil Rights within 30 days of the end of the 90 days.
(iv) Maryland Department of Labor beneficiaries of or participants in federally funded programs other than WIOA funded programs shall be advised of their right to file with the federal funding agency.
B. Informal Resolution and Investigation
(1) Where the complainant elects to have the complaint processed by Maryland Department of Labor, the individual assigned the complaint shall investigate the complaint in accordance with the provisions of this section.
(2) The OFP Director or the individual assigned the complaint shall first attempt an informal resolution of the allegations.
(3) The OFP Director or individual assigned the complaint shall document efforts to resolve the complaint and whether or not those efforts were successful.
(4) The local office or program and the OFP shall retain documentation in a confidential manner unless otherwise required by law.
(5) Where informal resolution attempts are successful, the OFP Director or the individual assigned the complaint may request that the complainant withdraw the complaint, and if appropriate with the concurrence of the Fair Practices Officer, the individual assigned the complaint shall notify other enforcement agency(s) regarding the withdrawal. The Department shall then administratively close the complaint.
(6) Where informal resolution attempts are unsuccessful, and where warranted, the OFP Director or the individual assigned the complaint shall initiate a formal investigation of the allegations.
(7) The OFP Director or the individual assigned the complaint shall advise the complainant and respondent of their rights under this procedure, including:
(a) That both parties have the right to an impartial investigator and decision-maker;
(b) That both parties may be represented at any point in the investigative process;
(c) That both parties have the right to have the Department produce relevant documents, witnesses and other material;
(d) That both parties may call and question witnesses and present evidence;
(e) That both parties may seek a resolution or mediation at any time during the process (the choice whether to use ADR (resolution, mediation, etc. rests with the complainant); and
(f) That the investigator shall base a decision strictly on the documented evidence.
(8) The OFP Director or the individual investigating the complaint shall render a final written decision (notice) or offer a resolution within 60 days of the date the complaint was filed (within 30 days if filed under §5-211 of the State Personnel and Pensions Article).
(9) The individual investigating the complaint shall forward a copy of her or his decision to the OFP Director. With the concurrence of the OFP Director, the final written decision shall be forwarded to the complainant, the respondent, the Fair Practices Officer and the appropriate program administrator.
10) The decision shall include:
(a) A summary of each allegation (issue) and response(s);
(b) Conclusions of probable cause or no probable cause;
(c) For each allegation (issue), a of findings, determinations and facts that formed the basis of the conclusion(s); and
(d) If appropriate, a description of resolution(s);
(e) Where probable cause is concluded, recommendation(s) may be included as to action(s) appropriate to remedy the specific violation(s) found.
C. Remedies and Sanctions
(1) Where a decision is made that there is probable cause to believe that the alleged discrimination did occur, the OFP Director, the appropriate program administrator, and in some cases the Director of Human Resources and/or the Principal Counsel shall determine and recommend appropriate remedies to correct the violations found and prevent recurrence of those violations.
(2) Remedies shall be tailored to the specific circumstances and violations and may include:
(a) Provision of service, benefit or employment opportunity denied;
(b) Monetary payment for loss of employment opportunity or benefit;
(c) Appropriate disciplinary action(s), up to and including termination, against the individual(s) found to have discriminated;
(d) Training for individual(s) found to have discriminated and for other appropriate individuals;
(e) Nullification of an adverse action;
(f) Removal of adverse records or documents from personnel files; and
(g) Preparation of statement of no retaliation.
(3) Should the proposed remedies be acceptable to all parties, if appropriate, the OFP Director or the individual assigned the complaint may request that the complainant withdraw or not pursue any complaint filed with another enforcement agency.
(4) The OFP Director and, as appropriate, the Director of the Office of Human Resources, the Principal Counsel and the appropriate program administrator shall prepare a written Settlement Agreement that contains the specified remedies. Appropriate signatures will be assigned depending on the nature of the Agreement. At a minimum, the complainant and the respondent will sign.
(5) The Agreement shall include a stated time frame for implementation of the remedies.
(6) Should the complainant or respondent be dissatisfied with the recommended remedies, and no resolution appears probable, the OFP Director or the individual assigned the complainant shall inform the complainant of additional filing rights and time frames for filing as appropriate.
(a) Complaints filed under §5-211 of the State Personnel and Pensions Article, may be appealed to the Maryland Department of Budget and Management within 10 days after receiving a decision or proposed remedy.
(b) Employees and beneficiaries of or participants in WIOA funded programs (including all programs of the Maryland Department of Labor Division of Workforce Development and Adult Learning) may file a complaint with the U.S. Department of Labor's Civil Rights Center within 30 days after the Department notifies the complainant of its proposed remedies.
(c) Section .08 A(4)(f) describes additional filing rights.
(7) Where the OFP Director or the individual assigned the complaint makes a decision that there is no probable cause to believe that the alleged discrimination occurred, the individual assigned the complaint shall notify the complainant and the respondent.
(8) Where the complainant does not accept the decision of no probable cause, the OFP or the individual assigned the complaint shall proceed according to section C(6).
D. Complaints Received That are not Filed Against Maryland Department of Labor
(1) The Designee or OFP staff member shall determine the appropriate jurisdiction of the complaint.
(2) The individual assigned the complaint shall refer individuals who are not Maryland Department of Labor clients or staff and who are filing complaints against employers other than Maryland Department of Labor to the appropriate enforcement agency using the DLLR/OFP 121 Form (refer to Jurisdictions of Agencies).
(a) The individual processing the complaint shall maintain a copy of the referral form in the appropriate complaint file(s).
(b) No further action is required by Maryland Department of Labor or the administrative entity.
(3) Individuals who are Maryland Department of Labor Job Service (JS) clients and are filing complaints against employers and about positions to which JS has referred them, shall be referred to the appropriate enforcement agency using the DLLR/OFP 121 Form.
(a) The individual processing the complaint shall forward a copy of the DLLR/OFP 121 and details regarding the allegations to the OFP Director.
(b) The individual processing the complaint shall enter the details of the complaint on the appropriate log.
(c) The OFP Director shall decide if further Maryland Department of Labor follow-up action(s) are required.
Maryland Department of Labor
Office of Fair Practices (OFP)
1100 North Eutaw Street, Room 306
Baltimore, Maryland 21201
Phone: 410-230-6319
Fax: 410-225-3282
Maryland Relay 7-1-1
E-mail: dlofp-labor@maryland.gov