Investigation Procedures Manual Investigative Resolution of Complaints

The following manual is designed to provide guidance on the investigation of complaints of discrimination against recipients of Federal financial assistance. It has been prepared by the Coordination and Review Section (COR), Civil Rights Division, of the U.S. Department of Justice (DOJ). It is DOJ's responsibility under Executive Order 12250 to coordinate and ensure the enforcement of Title VI and similar nondiscrimination statutes by Federal agencies that provide Federal financial assistance. Many agencies have asked that we prepare guidance on the investigative techniques used in enforcement of Title VI and other nondiscrimination statutes. In this manual, we hope to provide that assistance.

This manual should be used in conjunction with the companion Legal Manual, which provides legal guidance on many of the questions and issues faced in ensuring civil rights compliance by recipients.

You will find the term "investigator" used throughout this manual. By "investigator," we mean the person(s) responsible for conducting the investigation of the complaint -- he or she may be an Equal Opportunity Specialist, an Attorney, a Program Analyst, an Intern, or have some other job title. Investigation of the complaint may be part of his or her primary job duties, or a duty assigned only occasionally. Regardless of the situation, the consistent adherence to sound investigative techniques is important to ensure a thorough and legally sufficient investigation.

We would especially like to recognize and thank the U.S. Department of Education's Office for Civil Rights and the U.S. Department of Labor for the extensive and helpful information we used from their investigation manuals and other training documents. We also wish to thank DOJ's Office of Justice Programs' Office for Civil Rights, the U.S. Equal Employment Opportunity Commission, and the U.S. Department of Housing and Urban Development's Office of Fair Housing and Equal Opportunity for valuable investigative procedures materials, findings, and agreements used in developing this manual.

This manual is designed primarily for investigating complaints of violations of Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, and national origin. However, its general investigative guidance may be applied to investigate complaints of discrimination under other statutes as well, including Title IX of the Education Amendments of 1972 (which prohibits sex discrimination in education programs).

This manual contains detailed discussions of the various aspects of complaint processing and resolution. We have suggested timeframes for completion of various tasks in the investigative process. These are only suggestions, and any timeframe contained in a program-specific statute or implementing regulation for your agency would be controlling. We have included a section on the "approach to complaint resolution" (Section IV), which emphasizes that there are many ways you can get to where you want to end up: the resolution of the complaint and the compliance of the recipient with the nondiscrimination statutes. The decision as to the best manner in which to approach a complaint will be based upon the specific allegations and issues raised in the complaint, whether it is an individual problem or one of general policy that will affect others in addition to the complainant, and whether you are dealing with a cooperative recipient.

Many investigative agencies have, in the past, followed procedures for their complaint investigations that required that the same process be followed for each case. In this period of Federal budget constraints, many agencies have found that they can accomplish more by varying the approach to each case, depending upon the specifics of the case and the recipient. One case may be appropriate for a full investigation, requiring a detailed investigative plan, a violation Letter of Findings, and a formal conciliation agreement, while another may be appropriate for resolution based upon notifying the recipient by telephone of the complaint and obtaining written confirmation from the recipient that the appropriate remedy has been provided.

This manual addresses many of the different approaches you can take; you will not use all of the approaches for every case. However, you should keep in mind that, regardless of the strategy used to resolve a complaint, you will need to document in the file the basis on which the case was closed. Your agency's ultimate responsibility with respect to complaint processing is to ensure that recipients of the financial assistance your agency provides do not discriminate.

II. RECEIVE AND REVIEW THE COMPLAINT

A. Initial Receipt

A complaint should always be date stamped by the receiving agency immediately upon receipt. This is important because the date your agency receives the complaint may be what ultimately determines the complainant's ability to seek redress of alleged discrimination, even if your agency is not the appropriate agency to investigate the complaint. The receipt date by a Federal agency becomes the receipt date for other Federal agencies.(1)

ASK YOURSELF: Is this piece of correspondence a complaint?

A complaint asks a Federal agency to take action concerning an allegation of discrimination. The correspondence need not be directed to the correct agency or part of an agency in order for it to be a complaint under Title VI.

The following are examples of items that should not be considered a complaint, unless the item contains a signed cover letter specifically asking that the Federal agency take action concerning the allegations:

an anonymous complaint;
inquiries seeking advice or information;
courtesy copies of court pleadings;
courtesy copies of complaints addressed to other local, State, or Federal agencies;
newspaper articles;
courtesy copies of internal grievances; or
oral complaints.

Your agency may wish to take action in response to notification of alleged discrimination based on any of these. However, technically these are not complaints. For example, you may decide to use the information to schedule a preaward or postaward compliance review, or you may make inquiries to local organizations (e.g., National Association for the Advancement of Colored People, Mexican American Legal Defense and Education Fund, Urban League, National Organization for Women, etc.) to explore whether further action is warranted. You may also decide to call or write the person sending the correspondence and ask him or her to file a complaint formally with your agency.

ASK YOURSELF: Should my agency keep this correspondence or complaint, or should it be referred to another agency?

If you can tell from the information provided that your agency has no jurisdiction over the respondent alleged to have discriminated (see Section III), you should attempt to refer it to the appropriate agency. (See TAB 1, sample referral letter.)

If the correspondence is a complaint and it appears your agency may retain it, we recommend that it be assigned a case number at this point -- even if it does not contain enough information to clearly explain the discrimination that is alleged. (See "Incomplete Complaints" below.) Some agencies choose to assign a complaint a case number even if they know it will be referred immediately to another agency. A separate case number should be assigned to each named recipient in the complaint. In addition, complaints from more than one person against the same recipient should generally be assigned separate case numbers to help your agency comply with the requirements of the Privacy Act and the Freedom of Information Act. (See TAB 2 for a discussion of these statutes.) In some cases, complaints from more than one person raising the same allegations may be combined into one complaint, although we recommend that this not be done if the investigation will result in the inclusion in the case file of personally identifiable information about any of the complainants.

For example, several complaints that Hispanics as a class are not provided notice about public meetings of a town council can be combined into one case. On the other hand, complaints that several Hispanic parents were denied the opportunity to speak at a school board meeting about specific problems their children were encountering in the schools should be assigned separate case numbers. In the latter case, your investigation may address not only the failure of the school board to let the parents speak, but the parents' specific problems they wish to raise about their children, as well. As soon as it becomes clear that you will need to investigate the complaints about the services to or treatment of specific students, separate complaint numbers should be assigned to protect the personal information about each specific student.

Additional allegations from the same complainant against the same recipient after the investigative process has begun can be reviewed on a case-by-case basis to determine whether the allegations should be added to the open complaint or treated as a new complaint. We recommend that retaliation complaints received after investigation has begun be assigned a new complaint number.(2)

A person may file a third party complaint, i.e., a complaint that is filed on behalf of another named individual(s).(3) You must contact that individual (or, where the victim is a minor child or incompetent adult, contact the victim's parent or guardian) on whose behalf the complaint is filed to ensure that the named victim wishes to pursue the allegations raised on his/her behalf. If the person (or his parent or guardian) declines to pursue the complaint, you should close the complaint and inform the third-party complainant of the reason for the closure. You should also put a memo in the file explaining the steps you took and the reasons that the alleged victim (parent or guardian) did not wish to pursue the complaint. If the person, parent, or guardian does want to pursue the complaint, you will need to have him or her sign a Privacy Act Release Form. (See discussion of Privacy Act Release at TAB 3.)

B. Acknowledge the Complaint

We suggest that you acknowledge the complaint within 15 days of receipt with a simple letter stating that the correspondence has been received and is being reviewed for jurisdiction. (See sample letter, TAB 4.) Your letter need not state a deadline by which the decision will be made, unless a particular statute or regulation provides otherwise. The letter is simply to let the complainant know that you have the correspondence and are working on it. This is especially helpful if your office has a large caseload and you will not be able to actually work on the case for a while. It helps reduce the number of calls and congressional requests you will receive from upset complainants who don't even know if you have their correspondence. If you will be able to complete your initial review of the complaint for jurisdiction and completeness (see below) within 30 days of receipt, you may want to wait to acknowledge the complaint at that time.

C. Determine Whether the Complaint is Complete

Once you have determined that the correspondence you have received is a complaint and it has been assigned a docket number, you should

ASK YOURSELF: Is this complaint "complete"?

In order for a complaint to be "complete," the information you will need includes at least the following:(4)

1. a signed, written explanation of what has happened;

2. a way to contact the complainant;

3. the basis of the complaint, i.e., identification of the person or group, including the race, sex, or other appropriate identification, injured by the alleged discrimination;

4. the respondent - identification of the person or agency/organization alleged to have discriminated; and

5. sufficient information to understand the facts that led the complainant to believe that discrimination has occurred and when the discrimination took place.

Your agency should work with each complainant to ensure that you have sufficient information to properly evaluate the complaint. You must provide appropriate assistance to complainants, including persons with disabilities and individuals who speak a language other than English, who may need help in providing the information you will need to properly assess jurisdiction and investigate the complaint.

Please note that, while the list above indicates a complaint must be in writing, you must accept complaints filed in alternate formats from persons with disabilities. For example, the complaint may be filed on a computer disk, by audio tape, or in Braille. If the complainant is unable to write and cannot have someone write out the complaint or cannot tape it, you may need to write out the allegations provided over the telephone by the complainant and send the complaint to him or her for signature. You should ask the complainant in what format s/he would like written documents you send; generally, they should be sent in the format in which you received the complaint from the complainant. In those cases in which complaints are filed in formats such as audio tape or computer disk, you will need to ask that the complainant sign the Privacy Act Release Form before you can proceed with the investigation. (See discussion of Privacy Act Release at TAB 3.)

Complaints in languages other than English should be translated and responded to in the language in which they were sent, to the greatest extent possible. In addition the Privacy Act Release Form should also be translated or other steps taken to ensure that the complainant understands what is contained in it and the legal implications of signing the form.

1. Contact the Complainant, if Necessary

It is often most helpful to contact the complainant by telephone, if you can reach him or her, to discuss the information you need. In instances in which you will need further information in writing, especially when you cannot reach the complainant by telephone, you may wish to send the complainant a Complaint Form. (See sample form, TAB 5.) However, you should always be certain to advise the complainant that he or she is not required to use the Complaint Form to submit the complaint or additional information, but rather may choose to simply provide the information it asks for in some other format.(5) You may explain that, without the information requested in the items marked with a star (*), you will be unable to process the complaint further.

2. If the Complainant is represented by an Attorney

It is important to note here that, if the complaint is submitted on behalf of a complainant by an attorney, you should call the attorney for the additional information you need. You may ask the attorney if you can contact the complainant directly to discuss the information you need; this will often be acceptable to the attorney. In addition, if it appears from the information you receive that the complainant is represented by an attorney (especially if the complaint states that the matter raised has been or soon will be filed in court), you should ask the complainant whether he or she is represented by an attorney concerning this complaint. If this is the case, contact the attorney to request the information you need or to request permission to contact the complainant directly. If the complainant is represented by an attorney, and you have made good faith efforts to contact the attorney (always make notes of your attempts to contact the attorney) by telephone with no success, put your request in writing to the attorney and send a copy to the complainant. If you are still unsuccessful, send a letter to the complainant notifying him/her that the complaint will be closed if the information you need is not received by a date that you specify; be sure to send a copy of your letter to the complainant's attorney.

3. Set a Deadline for the Complainant to Provide Information

You should give the complainant a specific deadline by which the requested information should be submitted, generally 30 days from the date of your written request, to complete a complaint. Explain in your letter that failure to provide the requested information by that date will result in closure of the complaint. If the information has not been received by that date, you may close the complaint and inform the complainant. Please note that if you have or receive enough information to complete some allegations in a complaint but not others, you may only close those allegations that remain incomplete and should proceed with the analysis and investigation process (if appropriate) of the others.

In addition, if you have made appropriate attempts to clarify a complaint and the issues it raises, and the complaint is patently frivolous, it may be closed and the complainant notified.(6) "Patently frivolous" generally means: (1) a complaint that is so attenuated and unsubstantiated as to be absolutely devoid of merit, or (2) previous decisions of courts, your agency, or another investigative agency foreclose the subject and leave no room for inference that the question sought to be raised can be the subject of controversy.

D. Create the Investigative Case File

The Investigative Case File is a structured compilation and repository of all documents and information, within your agency's possession, pertaining to the case. An Investigative Case File should be established for each complaint which your agency accepts for investigation.

A six-section folder is useful for this purpose. Complaints that are administratively closed for lack of jurisdiction, because they are untimely filed, for failure to exhaust local remedies, or for failure to state a claim over which your office has jurisdiction do not require an Investigative Case File.

The purpose of the Investigative Case File is to establish a methodology for the systematic compilation and structured storage of all documents, records, and information associated with the case. This is done in such a manner that the Case File (a) provides the basis and supporting documentation for the Investigators' Draft Report, and (b) allows a reader of that report to easily verify the facts upon which it is based.

1. Format for the Investigative Case File

Although individual agencies may have their own set format for the Investigative Case File, generally the Case File includes the following:

Section I - Contents/Log - This section has two types of entries, and is attached to the inside left-hand of the file folder.

Table of Contents. This entry describes each section in the Case File and identifies each entry under that section. The Table of Contents is attached as the top page of Section I.
Case File Log. The purpose of the Case File Log is to record all contacts and activities relevant to processing the complaint for which there is no paper trail. The log is to be as a reference of the actions taken by the investigator on the case. Space should be provided to record the date, summary of actions, and the name of the individual annotating the actions. Under "Action," enter a brief description of the activity, including any outcome and future action required.

For example:

DATE:	SUMMARY OF ACTION TAKEN:	BY:
4/6/95	Telephone conversation with _______ to find out if the ACLU is representing him in complaint against police department. He indicated that the ACLU was not representing him, although he did ask the organization to send in a complaint on his behalf.

Section II - External Correspondence - All external correspondence is included under this section, and is attached immediately opposite Section I on the first page of the file folder. Enter external correspondence chronologically (i.e., most recent first), assigning sequential letters of the alphabet, i.e., A, B, C, D,....) to identify each exhibit, if desired.

Section III - Determination/Settlement Agreement - This section contains copies of the civil rights office's determination and, where appropriate, a conciliation agreement.

Section IV - Investigator's Documents - This section contains copies of all documents generated by and pertinent to the investigator's handling of the complaint. Analyzes made by the investigator (e.g., statistical tabulations, application of statistical techniques to a body of data, etc.) which later become a part of his or her investigative report, should be included. You may wish to use a formal analysis form for this purpose.

Section V - Evidence - This section contains all documentary evidence relating to the case -- records, interview statements, etc. Where the recipient or complainant submitted a document being used as an exhibit, the letter transmitting the document would be filed in Section II - External Correspondence; but the document itself (with a copy of the cover letter), and its accompanying Analysis Form, would be filed in this section.(7) It will be most helpful if every exhibit in this section has an Analysis Form.

For example:

A	Witness Statement: Jackie Jones
B	Interview with Recipient Official: Michael Tucker, Chief of Police
C	Police Records
D	Recipient's Position Statement
E	Witness Statement: Brian Jackson

Section VI - Internal Correspondence Exhibits - All internal correspondence should be included under this section. Enter internal correspondence exhibits chronologically so that the most current exhibit is on top, assigning sequential letters of the alphabet to identify each exhibit.

For example:

A	Memo to attorney requesting leal opinion concerning jurisdiction
B	Memo to attorney requesting legal review of proposed violation LOF
C	Memorandum to File Outlining Conciliation/Settlement Attempts (top)

III. DETERMINE JURISDICTION AND IDENTIFY ISSUES

Once you have determined that correspondence you have received is a complaint, you must determine whether your agency is responsible for investigating all or some of the allegations it raises. This means that you must confirm that your agency has jurisdiction over both (1) the organization or agency that is alleged to have discriminated, and (2) the subject matter of the issues the complaint addresses.

A. Jurisdiction

In order to determine whether your agency has jurisdiction to investigate a complaint, the complaint should meet certain basic criteria:

It must allege discrimination on a basis prohibited by one of the statutes that you are responsible for enforcing.
It must allege that discrimination is occurring in a program or activity that receives Federal financial assistance from your agency.
The subject matter (i.e., issues) addressed by the complaint must be covered by one or more of the statutes that you are responsible for enforcing.
It must be timely filed, unless the requirement is waived.

If the complaint meets all four of these criteria and is not affected by any regulatory exemptions or exceptions, your agency most likely has jurisdiction to investigate the complaint. If there is insufficient information to determine whether it meets these four criteria, you will need to contact the complainant to get this information. (See discussion of complete and incomplete complaints in Section II.) (See TAB 28 for a "Title VI Coverage Checklist.")

1. Immediate Referral to Another Agency

If you can tell at this point that you do not have jurisdiction over the complaint (or a portion of it), you should

ASK YOURSELF: To what other Federal agency should I refer this complaint?

Your agency has the responsibility to make a good faith effort to refer the complaint (or those allegations for which you do not have jurisdiction) to the appropriate agency that can handle the case. We have included a chart at TAB 7 that lists a variety of types of programs funded by various Federal agencies. You may call an agency to determine whether it covers the type of case you wish to refer. (See TAB 8 for a list of Civil Rights Directors at various Federal agencies. TAB 8 also contains lists of regional and field offices for a number of Federal agencies.) If, after trying to find the appropriate agency to which to refer a discrimination complaint, you are unsuccessful, you may call the Coordination and Review Section for guidance, or refer the complaint (or appropriate part of it) to the Coordination and Review Section and we will attempt to make an appropriate referral.

2. Complaint Basis

The complaint must allege that race, color, or national origin (sex, disability, age, etc. -- the bases that are covered by your agency) discrimination is wholly or at least in part responsible for the alleged harm.(8) Other reasons for the harm may also be alleged, but at least some portion of the case must involve one of the discriminatory bases you cover.

3. Federal Financial Assistance

It is important to remember that Federal financial assistance does not only include grants of money. It can also include the provision of surplus property, asset forfeiture funds, training, etc. (See the Legal Manual for a more detailed discussion of jurisdiction.)

In addition, it may not always be clear immediately whether an institution or organization is receiving assistance under the purview of the civil rights statutes. For example, some institutions may be receiving funds from a State under block grant programs but, in fact, those funds originated with the Federal government. It is, therefore, helpful for the investigator to be familiar with how and to whom your agency provides funds, either directly or through primary recipients to subrecipients.

The Civil Rights Restoration Act of 1987, provides very broad jurisdiction for investigative purposes when Federal financial assistance goes to any part of a program or activity. (See the Legal Manual for more information about the Restoration Act.) It is not uncommon for a number of components within a Federal agency to provide funding or other assistance; you should not close a complaint until you have checked all possible funding sources. Your work to verify funding may require that you contact State coordinators within the appropriate State and/or city/county governments to track your agency's funds and other assistance.

We have discussed how to address complaints that are "incomplete" (in which you do not have sufficient information to actually investigate the allegations) in detail in Section II, above, but it is important to note that your determination of jurisdiction and the question of "completeness" are two quite different questions. If you have answered "yes" to the initial jurisdiction questions above, you will likely continue on with the complaint analysis process.

4. Issues/Subject Matter

Identify the specific practice or service involved in the alleged discrimination, e.g., denial of services or access to a covered program, harassment by the program's employees, unequal services in a program, etc. Even if discriminatory intent cannot be ascertained, identify the practice, procedure, policy, or service that is alleged to have a disparate effect on one or more members of a certain protected class.

Generally speaking, in identifying the subject matter, you are looking for allegations of one or more of the following on a covered basis or bases; i.e., race, color, sex, disability, etc:

Any difference in the quality, quantity, or manner in which a service or benefit is provided;
Segregation in any part of a program or separate treatment in any manner;
Restriction in the enjoyment of any advantages, privileges, or other benefits that are provided by the program;
Different standards or requirements for participation or entry;
Separate treatment in any manner related to receipt of services or benefits;
Restriction of the membership of advisory or planning councils that are an integral part of Federally-funded programs;
Failure to provide information or services in languages other than English where a significant number or proportion of potential beneficiaries are of limited English-speaking ability;
Failure to adequately advise person(s) in the eligible population of the existence of services or benefits;
Use of criteria or methods of administration that would defeat or substantially impair the accomplishment of program objectives or would impact more heavily on members of a protected group; or
Discrimination in any aspect of employment when a primary purpose of the Federal funds is to provide employment, or where the employment discrimination results in discrimination against beneficiaries (for Title VI), or when an agency's program statute prohibits employment discrimination.(9) Employment discrimination is covered without limitations on the basis of sex, under Title IX, and on the basis of disability, under Section 504.(10) Employment discrimination complaints on the basis of age are not covered and must be referred to the EEOC.

5. Timeliness

In most instances, Title VI complaints must be filed within 180 calendar days of the last date of the alleged discrimination. However, some agencies have Title VI or other program-specific regulations with different filing time limitations. The filing date is generally the earlier of:

the postmark of the complaint; or
the date the complaint is received by any Federal, State, or local agency.(11)

In a case in which the complaint alleges a continuing pattern of discrimination, the date of discrimination for timeliness purposes is the most recent date the discrimination occurred (not when it began). If a complaint alleges the maintenance of a discriminatory policy by a recipient, the complainant need not identify victims who were discriminated against within the filing period; the alleged maintenance of the policy is sufficient to consider the complaint to be timely for investigative purposes.

Waiver of the Timeliness Requirement

Most agencies have the authority to waive the timeliness requirement for certain specific reasons. If a complaint is not filed in a timely manner, you may notify the complainant of the opportunity to request a waiver if, based on information you have, it is warranted. Your agency's designated official may grant a waiver of the filing requirement under any of the following circumstances:

1) The complainant could not reasonably be expected to know the act was discriminatory within the respective filing period, and the complaint was filed within 60 days(12) after the complainant became aware of the alleged discrimination;

2) The complainant was unable to file a complaint because of illness or other incapacitating circumstances during the filing period, and the complaint was filed within 60 days after the period of illness or incapacitation ended;

3) The complainant filed a complaint alleging the same discriminatory conduct within the filing period with another Federal, State, or local civil rights enforcement agency, and filed a complaint with your agency within 60 days after the other agency completed its investigation or notified the complainant that it would take no further action;

4) The complainant filed, within the filing period, an internal grievance alleging the same discriminatory conduct that is the subject of this complaint, and the complaint is filed no later than 60 days after the internal grievance is concluded; and,

5) Unique circumstances generated by agency action have adversely affected the complainant;

6) Such a waiver would not prejudice the respondent's ability to respond to the allegations.

Once you receive the complainant's request, the investigator should formalize the request for the approval or disapproval of the official with the authority to grant a waiver. The memo will generally summarize the justification provided by the complainant, include any additional explanation or pertinent documents the investigator has (such as a telephone memorandum of a conversation with a State or local agency explaining why the complaint investigation had been delayed), and a recommendation that the waiver be granted or denied. (See TAB 9 for a sample letter to the complainant asking if s/he wishes to request a waiver and an example of the memorandum requesting and approving a waiver.)

If a waiver is not requested, or is requested but is denied, the case should be closed and the complainant informed of the decision. Your letter should explain the basis for the denial of the waiver request, if appropriate.

In some instances, your agency will know by looking at the complaint that you want to waive the timeliness filing requirement and will decide you do not need to require the complainant to formally request a waiver. In this situation, you should be certain to include the formal written internal recommendation or request in the case file along with the signature of the appropriate agency official approving the waiver.

B. Pre-Investigative Administrative Closures

Once you have all of the necessary information, the complaint is found to be timely or a waiver has been granted, and other aspects of jurisdiction have been established, the investigator should determine whether to proceed to the resolution process.

ASK YOURSELF: Is this complaint appropriate for investigation/resolution or should it be closed?

Most agencies have regulations implementing Title VI that require a prompt investigation whenever a complaint or other information indicates a possible failure to comply with the regulation. However, an agency generally need not proceed with or continue a complaint investigation and attempts at resolution of an allegation under certain circumstances, which include(13):

1) The complaint is so weak, attenuated, or insubstantial that it is facially without merit, or so replete with incoherent statements that the complaint, as a whole, cannot be considered to be grounded in fact.

2) The complaint is a continuation of a pattern of previously filed complaints involving the same or similar allegations against the same recipient or other recipients that repeatedly have been found factually or legally insubstantial by your agency.

3) The same allegations and issues of the complaint have been addressed in a recently closed complaint or compliance review you have conducted.

4) The complaint allegations are foreclosed by previous decisions by Federal courts, the Department of Justice, or agency policy determinations.

5) Litigation has been filed raising the same allegations. Such cases may be refiled within 60 days following termination of the proceeding if there has been no decision on the merits or settlement of the complaint allegations.(14) (Dismissal with prejudice is considered a decision on the merits.) As an alternative, your agency may wish to investigate the complaint if the trial will not begin for an extended period of time or if your agency believes that the case raises important legal or policy issues it wishes to pursue.(15) You may also consider suspending investigation of the complaint (rather than closing it) and monitoring the court action.

6) The same complaint allegations have been filed with another Federal, State, or local agency, or through a recipient's internal grievance procedures, including due process proceedings, and you anticipate that the agency will provide the complainant with a comparable resolution process. The complainant should be advised that she or he may re-file within 60 days of the completion of the other agency's action. (Generally, your agency's consideration of such a complaint will not involve a reinvestigation of the case.)

7) Your agency obtains information that the complaint allegation is moot and there are no class allegations. This includes instances in which the recipient has offered the complainant full relief and the complainant has refused to accept full relief.(16)

8) The information received from the complainant does not provide sufficient detail to proceed with complaint resolution. Where appropriate, your agency may use the information as the basis for targeting future compliance reviews or technical assistance activities.

9) Your agency determines that its ability to complete the investigation is being substantially impaired by the complainant's or injured party's refusal to cooperate. In such a case, the complainant or injured party should be contacted as soon as possible to discuss the problem. If this does not resolve the matter, a letter should be sent to the complainant or injured party explaining why the failure to cooperate (including refusal to give permission to disclose his or her identity) has made it impossible to investigate further. The letter should inform the complainant or injured party that refusal to cooperate within a time certain will result in the closure of the case; and if the required information is not received within a specified time, the case will be closed. We recommend sending these types of letters by certified mail, return receipt requested.

10) A complaint over which your agency otherwise has jurisdiction may be closed when your agency transfers or refers the complaint to another agency for investigation.

11) The death of the complainant or injured party makes it impossible to investigate the allegations fully, or the death of the complainant or injured party forecloses the possibility of relief because the complaint involved potential relief solely for the complainant or injured party.

12) A complaint involving a priority issue, because of its scope, may require a massive amount of agency investigative resources. In such instances, the agency may consider treating such a complaint as a compliance review, after determining that it is a "complete complaint" and the information provided. (See Chapter X for more information concerning compliance reviews.)

13) If your agency determines that a compliance review is the most effective means of addressing multiple individual complaints against the same recipient, you should discuss the decision with the complainants, assign a review number, and initiate a review as soon as possible. You may close the individual complaints at that time if your agency wants to, but you must ensure that all appropriate individual relief for the complaint(s) is included. Any outstanding individual allegations that cannot be promptly resolved should be incorporated into the review. The results of the review will be shared with the complainants upon completion.

Notification of Closure

Notify the complainant (and the recipient if it had notice of the complaint) if you will not proceed further with the complaint. The letter to the complainant (and recipient, if appropriate) should state that the complaint is being closed and explain the reason(s) for the decision. The closure letter should also include the reminder of the retaliation prohibitions and the Freedom of Information Act notice (see TAB 10 for retaliation and FOIA paragraphs).

IV. APPROACHES TO COMPLAINT RESOLUTION

Now that you have completed the initial "intake" analysis of a complaint, determined that the complaint is complete, and decided that your agency will retain it for investigation/resolution, you should consider how to approach the case.

ASK YOURSELF: How complicated is this case?

Does it allege that only the complainant has been harmed in an isolated incident, or that the recipient maintains a policy that has a discriminatory effect on a large class of people? Is this case a good candidate for early settlement negotiations or is a thorough investigation, with an onsite visit, necessary to identify violations, victims, and relief?

A Federal agency's ultimate responsibility is to ensure nondiscrimination in the programs to which it provides financial assistance. This section discusses a number of approaches to resolving complaints. In the past, many agencies investigated complaints by following procedures that required a full investigation, violation Letter of Findings, and formal compliance agreement for every case in which a violation existed. Recently, many agencies have found that they can process their cases more efficiently by varying the approaches they take to complaint resolution based upon the nature of each case.

This section suggests a number of alternatives for resolving complaints of discrimination, including the use of alternative dispute resolution (ADR) techniques. As used here, ADR refers to settlement negotiations to resolve a complaint at any stage prior to the issuance of a formal violation Letter of Findings (LOF). Recipients are frequently very positive about resolving complaints in a manner that does not result in the issuance of a violation LOF.(17)

The decision concerning which approach to use is sometimes a difficult one; often, an appropriate resolution is not clear until at least some of the investigation has been completed. You should never feel that you should initiate ADR before you are actually ready to do so.

Investigators should also remember that, even if an individual complaint is resolved, information concerning potential class discrimination identified during the investigation or negotiations should not be overlooked.

For example, during the investigation of an individual complaint from an African-American applicant about a training program, the investigator learns that the recipient maintains a policy that has the result of excluding African-Americans and Hispanics. While the agency may decide to close the initial complaint once the complainant has been admitted to the program (and provided other appropriate remedial relief), it should still address the discriminatory policy and attempt to identify any other victims. This may well include additional remedial relief for identified African-American and Hispanic victims, injunctive relief to change the policy, and training to staff to advise them of the changes.

In the example above, the class allegations may be handled as part of the individual complaint or may be assigned a new complaint number and investigated separately. Alternatively, the class allegations might be opened up as a separate compliance review. The individual case may be handled through alternative dispute resolution (ADR) methods, while the class issues are fully investigated.

A. Alternative Dispute Resolution (ADR/Settlement)

ADR can consist of anything from the use of a neutral third party or mediator to informally resolving a matter without completing a full investigation. Each agency should decide what methods it will utilize in investigating and resolving its complaints. Agencies are strongly encouraged to make use of ADR, whenever appropriate. Both the President and the Attorney General have encouraged the use of ADR in matters that are the subject of civil litigation.(18) The Administrative Dispute Resolution Act of 1966, Public Law 104-320, authorizes the use of ADR to resolve administrative disputes.(19) The opportunity for the recipient and Federal agency to negotiate a resolution for violations found in an investigation and resolve matters by voluntary means is required by all Title VI regulations. In fact, under Title VI an agency must make a determination that voluntary compliance cannot be achieved before taking formal enforcement action.

Your agency may wish to consider the following pre-finding settlement approaches as alternatives to a full investigation when determining how to resolve a complaint:

1) Expedited processing of complaints alleging imminent harm to the complainant or some other person protected by statute, generally conducted by telephone. This will frequently involve provision of technical assistance to the recipient or a modified mediation process between the parties.

Once the case is resolved, a letter of resolution is sent to the recipient/complainant stating that the appropriate action has been taken and the case is closed.

Especially helpful if:

You have a heavy caseload, would normally only investigate complaints in the order received, and a delay could result in serious financial or other harm to the alleged victim(s).(20)

The complaint involves only the complainant or a few victims.

The complaint involves a policy or procedure, the remedy for which will only require changes to the policy and not a thorough investigation to identify victims and appropriate remedial relief.

The complaint alleges both imminent harm to an individual along with class allegations that would require extensive investigation. The case can be bifurcated, the individual issue resolved, and the rest of the case handled at a later time.

2) Formal offer of settlement negotiations at the point of notification and data request to an entity alleged to have violated the law, thereby allowing the recipient to avoid the burden of a full investigation.

With this approach, your notification/data request letter should state that you believe the case may be amenable to ADR and that you are willing to enter into settlement negotiations. Ask the recipient to notify you within a time certain if it is interested in entering into negotiations. As encouragement to use ADR, we suggest that you indicate that response to the entire data request may not be necessary if the recipient agrees to enter into settlement negotiations. (You will likely need the response to some of the questions in order to develop the proposed Settlement Agreement.)

Especially helpful if:

The data request is lengthy in order to address all of the allegations and issues raised.

The recipient will need to participate with your agency in active negotiations to discuss the issues, to identify what modifications in policies and procedures would be necessary, and to identify victims and relief.

3) Informal process whereby the recipient is contacted by telephone, notified of the allegations, and (if appropriate) is provided technical assistance in resolving the complaint.(21) The recipient then submits a letter explaining the steps it has taken to resolve the problem, or making a written commitment to take corrective action. The case is closed based upon the completed action or commitment, with a letter of resolution notifying the recipient/complainant the case will be reopened if the action is not taken as promised.

Especially helpful if:

You are confident that the corrective action has been or will be taken. In this case, you may close the complaint based upon the commitment. However, you may request that their commitment include submission of some monitoring reports for a given time period.

The recipient was unaware of the problem and needed your assistance in coming into compliance.

The complaint does not raise complex allegations requiring investigation to identify victims and determine appropriate relief.

4) The informal process, discussed in #3 above, but in which you discuss the allegations and offer to provide the recipient with a draft Settlement Agreement. If the recipient agrees, and the Settlement Agreement is subsequently finalized, the case is closed based upon the signing of the Settlement Agreement.

Especially helpful if:

The complaint involves changes to a policy or procedure, and that extensive investigation to identify victims and determine appropriate relief in not required.

You have other similar agreements that you can send to the recipient as a sample to show how previous cases have been resolved. You may suggest that the recipient contact the other recipient(s) that have faced the same problem, if the other(s) recipients agree.

5) Formal Mediation - Formal mediation is an approach to resolution that may be considered in a variety of circumstances, both prior to or following the issuance of findings. In mediation, the mediator attempts to assist the parties in working out a resolution to their dispute that is acceptable to both sides. This does not mean that your agency will lose its ability (or its responsibility) to reach an agreement that is legally sufficient. Rather, you have a non-partisan third party who is assisting you and the recipient in reaching a resolution of your "dispute." A mediator will attempt to develop a relationship of trust between the parties that could be important to your agency in its future dealings with the recipient. Your office may consult with your agency's ADR office for additional information as to how ADR is applied by that agency and whether the use of a mediator may be appropriate. For information on who your agency ADR contact is, you may contact the Department of Justice's ADR office at (202) 616-9471. In addition you may contact the ADR Services, which is part of the Special Programs Office of the Federal Mediation and Conciliation Service at (202) 606-5445.

Especially helpful if:

Your agency appears to be approaching or has reached an impasse with the recipient, i.e., negotiations are breaking down, but you believe it may not be in your best interests or that you are prepared to issue formal findings or proceed to enforcement.

It is important to develop and/or maintain a constructive working relationship with the recipient for the future, but this is unlikely without the intervention of a skilled third party to move beyond the impasse you have reached.

The "aggressive" use of ADR as an approach to processing complaints can result in an extensive saving of staff time and, perhaps more importantly, in a good working relationship with your recipients. The fact that you are saving your staff time probably also means that you are requiring that less staff time be expended by the recipient. It allows your agency to appear less confrontational and to provide technical assistance up front, where it may be most helpful.(22)

However, we recommend that agencies only use ADR if they have staff who are experienced in doing complaint investigations, as the ability to "jump" from the initial allegations to an appropriate resolution requires a thorough understanding of the issues, legal concepts, and scope of the relief that would be involved.

A disadvantage of using ADR to resolve a case through a Settlement Agreement prior to issuing findings is that, if the recipient fails to meet the terms of the Settlement Agreement, DOJ can only sue the recipient based on its failure to comply with the terms of the Agreement, and not based on an actual violation of Title VI. In order to sue for a violation of Title VI, a formal violation Letter of Findings must have been issued, the recipient must have been given an opportunity to come into compliance, and a determination must have been made that voluntary compliance cannot be achieved. Also, your agency may prefer, for policy or programmatic reasons, to issue a violation Letter of Findings rather than to resolve the complaint through ADR.

For example, the complainant and other victims have faced discrimination for an extended period of time with this recipient and specifically request that a violation Letter of Findings be issued to make clear the recipient's obligations under Title VI; even without the complainants' request, you may believe a violation LOF is appropriate. Or, the case raises important policy issues that your agency wants to address and clarify in formal findings, both for this recipient and as a way of clarifying your position for other recipients that may have the same problems.

In the types of situations described above, you would not discuss settlement with the recipient until after the findings have been issued. Likewise, a recipient who has cooperated in an investigation may wish a formal compliance Letter of Findings to "clear its name."

If your agency determines that it will use ADR methods to resolve complaints, it may find that it will rarely issue Letters of Findings, which are written after investigations are completed. This is, of course, dependent upon the nature of the complaints you receive and the cooperation of the recipients with which you are dealing. For a more thorough discussion of the provisions that should be included in Settlement Agreements, see Section VIII.

You should keep in mind that the use of ADR does not mean that you can ignore the relief that would be appropriate if you conducted a full investigation. Rather, ADR is a means of resolving cases with basically the same relief you would get after a full investigation, while avoiding the expenditure of staff time the full investigation requires. Remember the following when considering whether to use ADR at any point during your case processing:

you can/should be open to negotiate a resolution to a case at any point during the processing of a complaint;
the type of ADR (your "settlement approach") should be selected carefully, based upon the allegations, number of persons affected, type and extent of relief involved, cooperation of the recipient, and other factors;
the case file should include an explanation of how the resolution was determined to constitute adequate relief;
the resolution should provide for monitoring whenever appropriate; and,
you may always reopen a complaint if you learn that the recipient has not complied with its commitments.

If the Complainant does not Agree to Settlement

In some cases, investigators are concerned that the complainant will not agree with the resolution of their complaint through ADR. Unless there are factors necessitating that the complainant be a party to the resolution (e.g., in a case in which the recipient wants the complainant to agree not to sue for additional relief), it is your agency's responsibility to determine what constitutes "full relief." Your agency does not represent the complainant, but rather the interests of the Federal government in ensuring nondiscrimination by its recipients. Therefore, the relief you seek is dictated by the facts of the case and not by the complainant.

If the recipient has agreed to provide what you have determined would constitute full relief (in changes to policies/procedures, relief to the complainant and other victims, etc.) and the complainant disagrees with the policy changes or refuses to accept individual relief, you may complete the agreement with the recipient and close the complaint on that basis. If the recipient has already offered full relief to the complainant and no other relief is appropriate (e.g., change in policies or practices, or relief for other victims), and the complainant refuses to accept it, you may administratively close the complaint for "failure to accept full relief."

B. Pre- Investigation Case Closure through ADR

If a complaint is resolved without an investigation, the complaint resolution letter to the complainant and recipient should contain:

1) the basis for the complaint (race, color, national origin, sex, disability, religion, and/or age);

2) a brief statement of the allegations over which your agency has jurisdiction;

3) a brief statement of your agency's jurisdiction over the recipient;

4) an explanation of the basis for your agency's determination that the complaint has been resolved;

5) the protection from retaliation and the Freedom of Information Act/Privacy Act paragraphs;

6) a copy of any written agreement should be attached;

7) a notation for the recipient as to when the first monitoring report will be due, if applicable; and,

8) if appropriate, that the complainant has the right to file his/her own private lawsuit in Federal District Court.(23)

C. Full Investigation Approach

Those cases that do not appear to be appropriate for early ADR processing should be handled according to the more standard investigative procedures. As indicated above, you may still be able to resolve the complaint successfully prior to issuance of formal findings. This will become evident as you proceed with the investigation. The following section discusses the steps involved in a full investigation of a complaint of discrimination.

V. COMPLAINT INVESTIGATION

This section discusses the steps involved in a complete investigation of a complaint of discrimination. These steps would also occur when you conduct a compliance review (see Chapter X for a discussion of Compliance Reviews). As discussed in the previous section, Approaches to Complaint Resolution, you may decide that it is appropriate to initiate settlement negotiations at any time during an investigation. However, you should ensure that you have enough information when you do discuss settlement to be certain that the relief you are agreeing to is sufficient for the case at hand.

In cases where a full investigation is needed to make legally sufficient findings, identify all aggrieved victims, and determine appropriate relief, you will be the most efficient if you have carefully planned your investigation in advance. Identify the legal approach you will take up front to the extent possible, determine what kind and how much evidence will be needed, and remember that you will need to meet your burden of proof.

The standard of proof applied in making a determination of noncompliance, absent contrary statutory command, should be one of "preponderance of the evidence."(24) The primary reason for this is because a formal noncompliance finding may be challenged at an administrative hearing, and the evidentiary standard that will be applied by the hearing examiner will be a preponderance of the evidence.(25) Thus, formal findings of noncompliance should not be issued unless the preponderance standard is met.

A. Complainant and Recipient Notification

If you decide to proceed with investigation of the complaint, you should notify the complainant and the recipient that you have accepted the complaint for investigation. (See TAB 12 for Letter to Recipient and TAB 13 for Letter to Complainant.) Your notification letter to the complainant and recipient should contain:

1) the basis for the complaint;

2) a brief statement of the allegations over which your agency has jurisdiction;

3) a brief statement of your agency's jurisdiction over the recipient to investigate the complaint; and

4) an indication of when the parties will be contacted.(26)

If you are prepared to do so at this point, you can consider the following two options in complaints that raise limited (usually individual) allegations:

1) Request a position statement from the recipient in response to the allegations. You would ask the recipient to include with its response all appropriate policies, procedures, and documents relating to the complaint.

2) Include in your notification an offer to engage in ADR (settlement negotiations) to resolve the complaint. This should only be done if you believe you have a good idea of the nature of the relief you are seeking and you already have some of the information you need to determine relief.

Again, these options would not be appropriate if the complaint includes class or complex allegations that must be fully investigated and that could require extensive relief. However, the request for an initial position statement can help you determine how you should approach a complaint because it gives you information about the recipient's defense. If you determine it is not appropriate to call or write a recipient and ask it to enter into settlement negotiations, in most

cases you should be open to settlement at any point during the investigative process.

B. Planning for the Investigation

Complaint investigation and resolution should be preceded by planning, and the approach should be developed based on the nature and complexity of the issues involved. Whether or not an Investigative Plan (IP) is prepared, all case files should set out the specific allegations to be resolved and, if appropriate, the expected internal time frames to be adhered to by the investigator or investigative team.(27)

The extensiveness of an IP depends on the complexity of the issues involved. Some investigations may require revisions to the IP, or a supplemental IP, after receipt of information from the recipient or after an onsite investigation is conducted.

The basic IP will help the investigator focus on the principle issues to be explored in the course of the investigation, as well as the sources of evidence available to resolve them. An IP should include at least the following:

1) Jurisdictional information;

2) Identification of bases and issues;

3) Identification of the applicable legal theories;

4) Conclusions drawn from the analysis of the data or other evidence already gathered;

5) Description of the documentary, testimonial, and statistical evidence required to complete the investigation and the best sources and means of obtaining each type of evidence;

6) Anticipated sequence of case activities, including onsite visits if needed;

7) Anticipated timeframes for obtaining and analyzing evidence (if appropriate); and,

8) Statement of likely or enunciated recipient defenses and a description of the evidence required to test their validity.

A discussion of each of these aspects of the investigation follows. As a method of setting out information that is already known and that which is needed, you may wish to use a "chart" format. (See TAB 14 for sample IP charts for hypothetical complaint(s).)

1. Jurisdictional Information

Any jurisdictional questions should be resolved at the outset, prior to investigating the allegations. Basically, this means determining that a covered basis of discrimination (e.g., race, sex, national origin) has been alleged in a timely fashion against an agency's recipient, giving the agency jurisdiction to investigate. (See discussion of jurisdiction in Section III.A.)

2. Identification of Bases and Issues

The investigator should determine if the complainant alleges that discrimination against one or more members of a protected class -- because of race, color, national origin, sex, religion, disability or age -- is wholly, or at least in part, responsible for the complaint: this is the basis for the complaint.(28)

The investigator should also identify the specific action, policy, or practice responsible for the alleged discrimination (e.g., denial of educational or health services, harassment, retaliation for filing a complaint or giving testimony in an investigation, provision of unequal services, etc.). Even if intentional discriminatory treatment cannot be ascertained, does the practice, procedure, or service identified have a disparate effect on a certain protected class?

3. Identification of the Applicable Legal Theories

Regardless of whether you develop a formal Investigative Plan or not, you must know what theory or theories of discrimination you are using in your investigation in order to understand the standards of proof needed to establish a violation. Two primary legal theories are used to establish a case of prohibited discrimination: intentional discrimination/disparate treatment and disparate impact/effects.(29) In thinking about the potential legal theories raised by a complaint, it is important to remember two things: (1) intentional discrimination may take many forms (some of the most common of which are discussed below), and (2) the complaint may raise allegations based on more than one legal theory, especially if it involves allegations that an applicant or potential participant did not meet entry or participation requirements for a federally assisted program.

a. Intentional Discrimination/Disparate Treatment

As noted above, intentional discrimination may take many forms. One of the most common forms of intentional discrimination is disparate treatment. Simply put, disparate treatment means that similarly situated persons are treated differently (i.e., less favorably) than others because of their race, color, national origin, sex, etc. Disparate treatment cases can involve either "individual" or "class"(30) discrimination (or both). For example, if two individuals apply to participate in a federally funded program and one is rejected because the interviewer dislikes members of the rejected applicant's race, this constitutes disparate treatment. If the interviewer repeatedly rejects members of a particular race, this may indicate class discrimination or a "pattern and practice" of discriminatory conduct by the recipient.

Another type of intentional discrimination involves the use of policies or practices that explicitly classify individuals on the basis of their membership in a particular group. Such "classifications" may constitute unlawful discrimination if they are based on characteristics such as race, color, sex, etc. For example, the Supreme Court has held in a Title VII case that a policy which required female employees to make larger contributions to the pension fund than male employees created an unlawful classification based on sex. See City of Los Angeles, Department of Water and Power v. Manhart, 435 U.S. 702 (1978).

The analysis of intentional discrimination under Title VI is equivalent to the analysis of disparate treatment under the Equal Protection Clause of the Fourteenth Amendment. To prove intentional discrimination under Title VI you must show that "a challenged action was motivated by an intent to discriminate." Elston v. Talladega County Board of Education, 997 F.2d 1394 (11th Cir. 1993). This requires a showing that the recipient was not only aware of the complainant's race, color, or national origin, but that the recipient acted, at least in part, because of the complainant's race, color, or national origin.

However, it is important to remember that the record need not contain evidence of "bad faith, ill will or any evil motive on the part of the [recipient]." Elston, 997 F.2d at 1406 (quoting Williams v. City of Dothan, Alabama, 745 F.2d 1406, 1414 (11th Cir. 1984)). For example:

A recipient official denies a woman's application to participate in a training program for construction workers. He does not select her because he thinks that it's not safe for women to do this type of work and he's concerned for her safety. Although this official did not act with any ill will toward this woman or women in general, he has considered this female applicant differently than male applicants and denied her admission to the training program because of her sex.

Evidence of discriminatory intent may take many forms and may be found in various sources, including statements by decisionmakers, the historical background of the events at issue, the sequence of events leading to the decision at issue, a departure from standard procedure (e.g., failure to consider factors normally considered), legislative or administrative history (e.g., minutes of meetings), a past history of discriminatory or segregated conduct, and evidence of a substantial disparate impact on a protected group.

In some cases, you will find that there is direct evidence of discrimination. For example, the facts may show that a member of the recipient's management staff was overheard commenting that the complainant was not selected for a particular program because of his or her race. More frequently, however, the investigation will be based on circumstantial or indirect evidence. In such cases, the analytic framework used by courts evaluating Title VII claims may provide a useful guide. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Applying this framework to a Title VI claim, you must first determine whether the complainant can raise an inference of discrimination by establishing a prima facie case. The elements of a prima facie case may vary depending on the facts of the complaint, but such elements often include the following:

1. that the aggrieved person was a member of a protected class;

2. that this person applied for, and was eligible for, a federally assisted program that was accepting applicants:

3. that despite the person's eligibility, he or she was rejected; and,

4. that the recipient selected applicants of a different race, color, or national origin than the complainant -- or that the program remained open and the recipient continued to accept applications from applicants of a different race, color, or national origin than the complainant.

If the record contains sufficient evidence to establish a prima facie case of discrimination, you must then determine whether the recipient can articulate a "legitimate, nondiscriminatory reason" for the challenged action. See McDonnell Douglas, 411 U.S. at 802. If the recipient can articulate a nondiscriminatory explanation, you must determine whether the record contains sufficient evidence to establish that the recipient's stated reason was a pretext (i.e., an excuse) for discrimination. Id. In other words, the evidence must support a finding that the reason articulated by the recipient was not the true reason for the challenged action, and that the real reason was discrimination based on race, color, or national origin.

Similar principles may be used to analyze claims that a recipient has engaged in a "pattern or practice" of unlawful discrimination. Such claims may be proven by a showing of "more than the mere occurrence of isolated or 'accidental' or sporadic discriminatory acts." See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 336 (1977). The evidence must establish that a pattern of discrimination based on race, color, or national origin was the recipient's "standard operating procedure the regular rather than the unusual practice." Id. Once the existence of such a discriminatory pattern has been proven, you may assume that every disadvantaged member of the protected class was a victim of the discriminatory policy, unless the recipient can show that its action was not based on its discriminatory policy. Id. at 362.

Finally, you should also remember that some cases of intentional discrimination may involve the use of "classifications" based on race, sex, or some other prohibited characteristic. If the facts of a case reveal that the recipient utilizes a policy or practice that explicitly treats members of a protected group differently from others, your investigation should focus on the recipient's reasons for utilizing the challenged classification policies. Most such policies will be deemed to violate Title VI, unless the recipient can articulate a lawful justification for classifying people on the basis of race, color, or national origin.

b. Disparate Impact/Effects

The second primary theory for proving a Title VI violation is based on Title VI regulations and is known as the discriminatory "effects" or disparate impact theory. In contrast to disparate treatment, the disparate impact/effects theory does not require proof of discriminatory intent. Rather, disparate impact cases involve claims that a recipient is violating Title VI regulations by utilizing a neutral policy or practice that has the effect of disproportionately excluding or adversely affecting members of a protected group, and the recipient's policy or practice lacks a "substantial legitimate justification."

The Supreme Court has held that Title VI regulations may validly prohibit practices having a disparate impact on protected groups, even if the actions or practices are not intentionally discriminatory (Guardians, supra; Alexander v. Choate, supra.), and many subsequent cases have also recognized the validity of Title VI disparate impact claims. See Villanueva v. Carere, 85 F.3d 481 (10th Cir. 1996); Chicago v. Lindley, 66 F.3d 819 (7th Cir. 1995); Georgia State Conf. v. Georgia, 775 F.2d 1403 (11th Cir. 1985); Larry P. v. Riles, 793 F.2d 969 (9th Cir. 1984). In addition, by memorandum dated July 14, 1994, the Attorney General directed the Heads of Departments and Agencies to "ensure that the disparate impact provisions in your regulations are fully utilized so that all persons may enjoy equally the benefits of Federally financed programs." (See TAB 15 for a copy of the Attorney General's memorandum.)

Pursuant to Title VI regulations, all entities that receive Federal funding enter into standard agreements or provide assurances that require certification that the recipient will comply with the implementing regulations under Title VI. Guardians, 463 U.S. 582, 642 n. 13. You should carefully examine the assurances signed by the recipient in question when investigating any claim.

The principles used to analyze a Title VI disparate impact claim are similar to those used to analyze a Title VII disparate impact claim. New York Urban League, Inc. v. State of New York, 71 F.3d 1031, 1036 (2nd Cir. 1995). In a disparate impact case, the focus of your investigation will center on the consequences of the recipient's practices, rather than the recipient's intent.

To establish liability under a disparate impact scheme, you must first ascertain whether the recipient utilized a facially neutral practice that had a disproportionate impact on a group protected by Title VI.(31) Larry P. v. Riles, 793 F.2d 969, 982; Elston, 997 F.2d at 1407 (citing Georgia State Conference, 775 F.2d 1403, 1417 (11th Cir. 1985)). This showing requires a comparison of the effects of the policy or practice on members within the protected class relative to the effect on persons outside the protected class. For example, if a recipient has a policy that applicants for its entry-level vocational training program for plumbers must have a high school diploma, and you show that this policy results in the elimination of 90 percent of the Hispanic applicants but only 15 percent of the white applicants, then the recipient's policy has an adverse impact on Hispanics.

If your investigation proves that there is a statistically significant adverse impact on members of a protected class, you must then determine whether the recipient can articulate a "substantial legitimate justification" for the challenged practice.Georgia State Conference, 775 F.2d at 1417. "Substantial legitimate justification" is similar to the Title VII concept of "business necessity," which involves showing that the policy or practice in question is related to performance on the job. Griggs v. Duke Power, 401 U.S. 424 (1971).

To prove a "substantial legitimate justification," the recipient must show that the challenged policy was "necessary to meeting a goal that was legitimate, important, and integral to the [recipient's] institutional mission." Sandoval, supra, 1998 WL 295891, at *36 (M.D.Ala.), F.Supp. , (quoting Elston, 997 F.2d at 1413). The justification must bear a "manifest demonstrable relationship" to the challenged policy or program. Georgia State Conference, 775 F.2d. At 1418. See, e.g., Elston v. Talladega County Board of Education, 997 F.2d 1394 (11th Cir.), reh'g denied, 7 F.3d 242 (11th Cir. 1993). In an education context, the practice must be demonstrably necessary to meeting an important educational goal, i.e., there must be an "educational necessity" for the practice. See Larry P., supra.

If the recipient articulates a "substantial legitimate justification" for the challenged policy, you must carefully examine that justification in order to determine whether it is a pretext for discrimination. You must also consider whether there are any less discriminatory alternatives that would still accomplish the recipient's program objectives. If you find that the "substantial legitimate justification" is a pretext for discrimination, or if there are any less discriminatory alternatives, the evidence will support a finding of a violation.

In the example given above, you would critically evaluate the recipient's asserted "substantial legitimate justification" for its policy of requiring a high school diploma. The burden is now on you to either show that the claimed need for the diploma is merely a pretext for discrimination (e.g., by showing that it is not related to the training program at all, for example, because many plumbers in that State or county never finish high school) or that there are other less discriminatory alternatives to attaining the level of education needed to participate in the program (e.g., by earning a G.E.D., through experience in internship programs, or by performing certain types of work in a related field, etc.).(32)

Courts have often found Title VI disparate impact violations in cases where recipients utilize policies or practices that result in the provision of fewer services or benefits, or inferior services or benefits, to members of a protected group. Larry P. v. Riles, 793 F.2d 969, 983 (9th Cir. 1984) (Use of IQ tests for placing school children in special classes had discriminatory effect); Sandoval, 1998 WL 295891, *46 (M.D.Ala.) (Discrimination on the basis of language, in the form of an English-only policy, had an unjustified disparate impact on the basis of national origin); Meek v. Martinez, 724 F.Supp. 888 (S.D.Fla. 1987) (Florida's use of funding formula in distributing aid resulted in a substantially adverse disparate impact on minorities and the elderly); Campaign for Fiscal Equity, Inc. v. State of New York, 86 N.Y.2d 307, 1995 N.Y. Lexis 1145 (New York. Ct. App. June 15, 1995) (Allocation of educational aid had a racially disparate impact).

Other examples of the types of policies/standards that might result in a disparate impact on protected groups include:

imposing financial or other requirements (e.g., home ownership, residence at one address or in a certain city for a specified time period, ability to read and write English, ownership of a car, education credentials) for which there are no legitimate program justifications;
insisting on experience or training of a certain type when experience or training in a related field would be equally useful; or
using personal information (e.g., number of children, marital status, potential lack of child care, arrest records) as a basis for making decisions on who can participate in a program, when these factors have not been shown to have any relevance to the program requirements or are not required by the program statute or regulations.

The most important thing to remember when investigating a disparate impact claim is that the primary focus of the analysis will be on the results of the policy or practice as opposed to the intent of the decisionmaker.

c. Retaliation)

A complainant may bring a retaliation claim under Title VI or under a Title VI regulation that prohibits retaliation. For example, most agency Title VI regulations provide that "[n]o recipient or other person shall intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by [Title VI], or because he has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this subpart." 28 C.F.R. � 42.108(e) (Department of Justice Regulation).

To establish a case based upon a claim of retaliation, the elements of proof utilized in a Title VII retaliation complaint again provide a useful guide:

1) that the person allegedly retaliated against engaged in a protected activity (i.e., filed a complaint, participated in an investigation, testified in a hearing, etc.);

2) that the person retaliating was aware of the protected activity;

3) that the party alleging the violation suffered adverse treatment after engaging in the protected activity; and

4) that there was a causal connection between the protected activity and the adverse action.

See Grant v. Bethlehem Steel Corp., 622 F.2d 43, 46 (2nd Cir. 1980). See also Davis v. Halpern, 768 F.Supp. 968, 985 (E.D.N.Y. 1991) (Defendant's summary judgment motion to dismiss Title VI retaliation claim was denied because plaintiff established evidence of prima facie case). It is important to remember that it is not necessary that any underlying discrimination complaint be proven in order to make a prima facie case, and ultimately prove, a subsequent retaliation complaint. DeCintio v. Westchester County Medical Ctr., 821 F.2d 111, 116, n. 8 (2d Cir.1987), cert. denied, 484 U.S. 965 (1987).

4. Conclusions Drawn From the Analysis of the Data or Other Evidence Already Gathered

You should carefully analyze what you have received from the complainant and from the recipient (if, for example, you have received a position statement or the complainant has provided you with letters written to him/her by the recipient). This information will be important in deciding how much and what kind of additional information you will need to request and which theory of discrimination may apply. You may also wish to conduct some preliminary interviews with the complainant's witnesses and include this information in your analysis of how to proceed.

5. Description of the Evidence Required to Complete the Investigation and the Best Sources and Means of Obtaining Each Type of Evidence

Documentary evidence is in written form, and may consist of business records, memoranda, letters , applications, charts , logs, handwritten notes, etc; virtually any material or format. You should also include computerized data within the general category of documentary evidence, and consider whether data should be requested in computerized form and "hard copy." If voluminous records are needed from the recipient, it will be useful and timesaving to obtain data in computer form in order that assessments and calculations can be made more readily. Documentary evidence is essential from the recipient, and in many cases from the complainant, in order to fully investigate a complaint of discrimination.

Testimonial evidence refers to oral evidence. To obtain testimonial evidence, you should develop interview questions based on oral and written information and any other available data, and conduct interviews with the complainant, recipient's staff, and witnesses, as appropriate. Remember that, in gathering evidence to investigate and prove your case, you should not only look for evidence to support a prima facie case, but also to test the validity or truthfulness of any stated or anticipated defenses that the recipient has or may assert in your case. Therefore, you will want to include a statement of the likely or enunciated defenses of the recipient and describe the evidence you will need to test their validity. By addressing asserted or anticipated defenses "up front" when you plan your investigation and identify the evidence you will want to obtain, you will save yourself (and the recipient) a lot of time and the possible aggravation of additional requests for data and interviews.

a. Types of Evidence

It is important that, during the planning and investigation/resolution process, you keep in mind the types of evidence you will need and how each type of evidence relates to the theory or theories of discrimination that apply to your case. Evidentiary proof is an inductive process where demonstrable facts (e.g., items of evidence) serve as building blocks to structure a determination of compliance or noncompliance. This "structure" can only be as sound as the evidence that is its foundation. You must keep in mind that different types of evidence can contribute in different ways to the proof for your findings; a little of one kind of evidence may be just as good or better than a lot of another type of evidence, if the latter is weak and unreliable.

(1) Direct Evidence

Direct evidence is evidence of the actual, subjective intent of the person(s) charged with discrimination. It may take the form of an admission of discriminatory purpose, although this will rarely occur. You will most often find such admissions during an interview, when a person is explaining or justifying his or her actions (e.g., "... but you know that women don't really want that kind of work, so why train them for it?").(33)

Direct evidence encompasses more than just admissions; it includes any facts tending to establish the subjective motives of persons involved in the alleged discrimination. This might include any of the following:

public statements or speeches
minutes of hearings
facially discriminatory actions/legislation; and
contemporaneous statements (e.g., attributed by third parties).

(2) Circumstantial Evidence

Circumstantial evidence includes facts from which one may infer intent or discriminatory motive; it generally forms the bulk of investigative findings in disparate treatment cases. Circumstantial evidence proves intent by using objectively observable data (i.e., focusing on the results or effects of an action or on the action itself). It does not, however, prove anything directly about actual subjective intent (i.e., why an action was taken). Circumstantial evidence collectively leads to an inference of discriminatory motive. For example, historical information on how members of the protected group at issue have been treated by the recipient, and the extent of similar complaints (and corrective actions taken, if any) can aid in developing an inference of discriminatory intent and the context for the claim at issue.

(3) Comparative Evidence

Comparative evidence is most often thought of as that which identifies difference(s) in treatment accorded similarly situated individuals or groups based on their identification with or membership in a protected class. Comparative evidence may also focus on program or employment results. For example, this might involve comparing the quality and quantity of services provided one group with another. Properly presented, comparative evidence constructs, through rules of logic, the following rebuttable proposition:

If:	1) similarly-situated persons of different races (or sexes, colors, etc.) receive different treatment or evidence different program or employment results, and
	2) there is no adequate non-racial explanation for the differences,
Then:	3) it is reasonable to infer that race, sex, etc. was a factor in that treatment or in those results.

In order to be probative, the comparative evidence used must demonstrate two things: first, that persons who are similarly situated are being compared(34) and, second, that the comparisons being made are significant and inclusive. You must show that the sample of "similarly situated" is sufficient from which to draw a conclusion and that all or a statistically representative sample of those persons who are "similarly situated" have been included in the universe from which you selected your sample.

(4) Statistical Evidence

Statistical evidence is an important category of comparative evidence. It generalizes about the experience of a class rather than focusing on the experience of an individual member of that class. This type of evidence is important because, if the proper statistical techniques are rigorously applied, the resulting inference has a certain and predictable validity (e.g., there is a 95 percent probability that the results are not due to chance). The statistical proposition is very similar to the comparative proposition, varying only in its scope:

If:	1) evidence reveals a statistically significant difference in the treatment of similarly situated classes of different races (or sexes) in the delivery of services (or receipt of benefits, in employment levels, etc.), and
	2) there is no legitimate non-discriminatory reason for the observed pattern of disparities,
Then:	3) it is reasonable to infer that race was a factor in creating such a pattern.

It is important to note that statistics alone will not prove an individual claim of disparate treatment. Statistical evidence, however, can be helpful in proving individual cases of disparate treatment because it can be used as circumstantial evidence to establish the presence of discriminatory motive.

Statistics are most often used under the disparate impact model to demonstrate the adverse effect of a procedure, policy, rule, selection criteria, or method of administration. Where evidence of disparate impact reaches significant levels, statistics alone may establish a prima facie case of discrimination.(35) In order to do this, you must present statistical evidence that demonstrates that a rule, procedure, policy, practice, or method of administration has a substantial disparate impact and that it is statistically improbable that the observed pattern of events occurred by chance. As a rule of thumb, the investigator must show that the observed (i.e., the actual) results had a chance occurrence probability of less than five percent or were at what statisticians call the ".05 level of confidence." In such a case, your statistics will meet two tests:

1) that a substantial disparate impact exists, and

2) that the observed impact is statistically significant (i.e., not due to chance).

It is important to keep in mind that statistics are not irrefutable. Like any other kind of evidence, they may be rebutted. In addition, while statistics are the central evidence for a disparate impact case, most successful cases also include anecdotal and/or other types of evidence to support the statistics. For example, witnesses who have been denied services because of the criteria at issue bring the statistics "to life" and help establish a more compelling case.

Evidence to Prove Disparate Treatment

You must prove that the recipient had a discriminatory motive to establish a disparate treatment violation. Evidence of discriminatory intent may be shown through direct evidence, or more commonly, through circumstantial evidence.(36)

(1) Direct Evidence of Motive/Intent

Direct evidence directly establishes the recipient's discriminatory motive and is one element of a prima facie case of disparate treatment. Most often, this will be statements by recipient officials or decision-makers expressing a biased or stereotypical view. For example, "...we send most of our Black patients to the City hospital; you know, they never have health insurance...".

(2) Circumstantial Evidence of Motive/Intent

Circumstantial evidence includes facts from which one may infer intent or discriminatory motive; it generally forms the bulk of the evidence supporting investigative findings in disparate treatment cases. Circumstantial evidence can include, but is not limited to, comparative evidence regarding the treatment of similarly-situated individuals, and statistical evidence of an adverse impact on a protected group.

Direct and circumstantial evidence can be found in various sources, including:

statements by decision-makers (e.g., stereotypical or biased views towards members of the complainant's class);
statistical data;
the historical background of the events at issue;
the sequence of events leading to the decision at issue (e.g., the recipient's failure to respond to complaints of denial of services or racial harassment by members of its staff, or changes in eligibility requirements after protected class members became a significant proportion of those eligible for a program);
a departure from standard procedure (e.g., failure to consider factors normally considered);
legislative or administrative history (e.g., minutes of meetings); and,
a past history of discriminatory or segregated conduct.

See Arlington Heights v. Metropolitan Housing Authority, 429 U.S. at 266-68 (evaluation of intentional discrimination claim under the Fourteenth Amendment); Elston, supra, 997 F.2d at 1394, 1406.

(3) Recipient's Defense of a Prima Facie Intent Case

In a disparate treatment/intentional discrimination case, the recipient can rebut the prima facie case by showing that the finding is factually incorrect or demonstrating that the discrimination was required by law, for example by showing that actions were taken pursuant to a consent decree or remedial plan. The most common defense is that the treatment at issue was due to an alternative nondiscriminatory reason.(37) Defenses also may attempt to undermine the credibility of the evidence establishing intent. In addition, the defendant recipient may also present other members of the complainant's class who were not treated like the complainant or a person not of the complainant's class who was treated in the same manner as the complainant.(38)

(4) Overcoming the Recipient's Defense in an Intent Case

If the recipient's defense is not based upon a Federal requirement, the investigator may show that the rebuttal evidence presented by the recipient was merely a "pretext" for discrimination. Often the determination of whether or not the asserted nondiscriminatory "reason" provided by the recipient is pretextual is based on the investigator's judgment, rather than documentary evidence. Where facts are in dispute, the investigator should attempt to corroborate the facts independently.

Rebuttal evidence may challenge the credibility of the recipient's nondiscriminatory reasons for its actions. More often, however, rebuttal evidence may not be any different than the evidence of intent presented to establish the prima facie case. Since the ultimate evaluation in disparate treatment cases is often one of assessing witness credibility, the strength of evidence to prove discriminatory motive is critical. Types of evidence that may be helpful in proving pretext are:

the recipient failed to follow its own rules, policies, and procedures in making the decision;
the recipient acted inconsistently with its own stated legitimate nondiscriminatory reason;
testimony or documentary evidence obtained in the investigation contradicts the nondiscriminatory reasons; or
the reason offered now was not offered to support the challenged decision at the time it occurred, suggesting the reason was offered as an afterthought.

c. Evidence to Prove Disparate Impact

Rather than seeking to prove that the recipient had a discriminatory motive, you are seeking to prove that a policy or practice has an adverse impact. The evidence you will need to gather in an investigation of a case involving disparate impact will likely include both statistical and comparative evidence.(39) You will initially want to determine whether there is a disproportionate representation of protected class members participating in the program in question (e.g., four percent of participants in a housing program are African American, while 43 percent of the statutorily eligible population is African American). If this is the case, you will want to look at the application process and other aspects of program administration to determine if there is evidence that a policy or practice is causing the disparity. In complex cases, this could involve a separate analysis of each step or requirement in the process.(40)

You will need to develop evidence that will allow you to test for adverse impact by making a comparison of the effects of the policy, requirement, or practice in question on members of the complainant's protected class with persons not in the protected class. You will need to determine the representation of people within the protected class as a whole prior to the application of the policy/requirement (e.g., the number of statutorily eligible low income African Americans in a metropolitan area), as well as the proportion of protected class members who remain after you apply the policy/requirement in question (e.g., those low income African Americans who can meet a residency requirement).

Investigation Procedures Manual for the Investigation and Resolution of Complaints

FROM THE: Department of Justice Civil Rights Division Coordination and Review Section P.O. Box 66560 Washington, D.C. 20035-6560

Alleging Violations of Title VI and Other Nondiscrimination Statutes

September, 1998

Investigation Procedures Manual
for the Investigation and
Resolution of Complaints

FROM THE:
Department of Justice
Civil Rights Division
Coordination and Review Section
P.O. Box 66560
Washington, D.C. 20035-6560

Alleging
Violations of Title VI and Other
Nondiscrimination Statutes