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Shantray Dickens, Title VI Specialist NCDOT, Office of Civil Rights (OCR) December 11, 2013

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Nondiscrimination in the Federal- aid Program Nondiscrimination denotes the absence of disparate treatment or impact in Federally-assisted programs and activities. The Nondiscrimination Program is governed by: Title VI of the Civil Rights Act of 1964 (42 United States Code (U.S.C.) 2000d) The 1987 Civil Rights Restoration Act and Other related Nondiscrimination authorities (23 Code of Federal Regulations (C.F.R.) 200.5(p)) 2

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Federal Authorities Title VI of the Civil Rights Act of 1964 is federal law: No person in the United States shall on the ground of race, color, or national origin be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. The 1987 Civil Rights Restoration Act Direct response to Grove City College vs. Bell (465 U.S. 555 (1984)) Restored the original intent of Title VI to include all programs and activities of Federal-aid recipients and contractors whether federally funded or not Locally-funded, state- or federally-assisted activities of MPOs 3

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Federal Authorities cont. Related Nondiscrimination Authorities include: 1973 Federal-aid Highway Act (sex) 1975 Age Discrimination Act (age) Section 504 of the 1973 Rehabilitation Act and Americans with Disabilities Act (ADA) of 1990 (disability) Uniform Act of 1970 (persons displaced or property acquired) Executive Order 12898 on Environmental Justice (EJ) Executive Order 13166 on Limited English Proficiency (LEP) Title VI Implementing Directives 49 C.F.R. 21 US Department of Transportation (DOT) Title VI Regulations US DOT Order 1000.12 Title VI Program 23 C.F.R. 200 FHWA Title VI Regulations C 4702.1B and C 4703.1 FTA Circulars US DOT Order 5610.2a and FHWA Order 6640.23A US DOT LEP Guidance US Department of Justice (DOJ) Title VI Legal Manual 4

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What is Discrimination? Federal Highway Administration (FHWA): That act (action or inaction), whether intentional or unintentional, through which a person in the United States solely because of race, color, national origin, sex, age, or disability is subjected to disparate treatment or impact, in any program or activity receiving Federal financial assistance from FHWA under 23 U.S.C.. Federal Transit Administration (FTA): Any action or inaction, whether intentional or unintentional, in any program or activity of a Federal aid recipient, subrecipient, or contractor that results in disparate treatment, disparate impact, or perpetuating the effects of prior discrimination based on race, color, or national origin. 5

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Title VI Program Administration Documents and Dissemination Sub-recipients and Contractors Program Monitoring and Reporting Title VI Coordinator Training Public Involvement and Outreach Data Collection Discrimination Complaints Compliance Review Process Sanctions for Noncompliance ADA/Section 504 Limited English Proficiency Environmental Justice 6

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Documents and Dissemination Program Documents Title VI Assurances and Policy Statements NCDOT Nondiscrimination Agreements Title VI Program Plan (Implementation Plan) Accomplishments Report Complaint Log Brochures, policies, public notices Records of activities (e.g., meeting minutes, trainings) Member Agency Documents All documents are public record and can be made available, where necessary and appropriate 7

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Documents & Dissemination cont. Title VI Assurances Must be signed (49 C.F.R. 21.7) Update if Chief Administrative Officer (CAO) changes, or as instructed by NCDOT Failure or refusal to furnish required assurance is grounds for termination, refusal to grant or continue Federal financial assistance (49 C.F.R. 21.13(b)&(c)) Appendices A E attached to contracts and agreements, as appropriate A & E attached to all Post-Award Phase Federal update forthcoming (1050.2A) 8

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Documents & Dissemination cont. Title VI Assurances cont. #2 of the Assurances goes in solicitations, Requests for Proposals, etc.: The (Recipient), in accordance with Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C 2000d to 2000d-4 and Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office the Secretary, Part 21, Nondiscrimination in Federally assisted programs of the Department of Transportation issued pursuant to such Act, hereby notifies all bidden that it will affirmatively insure that in any contact entered into pursuant to this advertisement, minority business enterprises will be afforded full opportunity to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, or national origin in consideration for an award. Pre-award Phase Nondiscrimination Agreements between State DOTs and sub- recipients are recognized by FHWA Headquarters Civil Rights (HCR) as a good practice Executed by Transportation Planning Branch (TPB), or Public Transportation Division (PTD), etc. Managed by NCDOT, OCR, External Services Section (ESS) 9

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Documents & Dissemination cont. Title VI Program Plan (Implementation Plan) Signed Title VI Policy Statement & Assurances Title VI Overview (Introduction) MPO Responsibilities Organizational & Voting Structure Member Agencies / Technical Coordinating Committee (TCC) / Transportation Advisory Committee (TAC) / Staffing / Title VI Coordinator duties Funding Sources/Tables Sub-allocations (giving funds directly to member agencies) Approval process and timelines (boards and committees) MPO MOU, Prospectus and Work Plan as sources Strategic Transportation Investment (giving points to projects) 10

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Documents & Dissemination cont. Title VI Program Plan cont. Program Administration (Title VI/Nondiscrimination) Customized to what the program does Data Collection Public Involvement Planning (e.g., Metropolitan Transportation Plan (MTP), Comprehensive Transportation Plan (CTP), Metropolitan Transportation Improvement Program (MTIP), PTD programs) Title VI expectations for MPO staff and members Guidance for members Reporting requirements Documentation requirements Contract Provisions Appendices and Regulations 11

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Sub-recipients and Contractors Sub-recipients (Recipients) Signed Assurance and Title VI Program Ensure compliance of contractors May not absolve itself of Title VI obligations by hiring a contractor to deliver assistance to beneficiaries (DOJ Title VI Legal Manual) Contractors Not required to have a signed Assurance or Title VI Program Signs a contract with contract provisions Responsible for complying with Title VI Program of recipient with whom they are contracting (FTA C 4702.1B) 12

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Sub-recipients & Contractors cont. Pre-award Reviews Sub-recipients (member agencies) Signed assurances (at a minimum) Contractors Acknowledge receipt & understanding of nondiscrimination terms in contracts Post-award Reviews Sub-recipients Reporting mechanism Contractors Compliance Checklist prior to final payment 13

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Program Monitoring and Reporting Internal assessments (evaluations) Decision-making, public involvement, etc. Quality Assurance Progress Reports Quarterly TPB Reports Accomplishments Report (template) Annually to NCDOT ESS Program Challenges and Observations Accomplishments Discrimination Complaints Log Program Work Plan (Title VI/Nondiscrimination) 14

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Title VI Coordinator Authority to administer program Member of the Lead Planning Agency (LPA) Integrated into MPO decision-making processes Coordinator (roles & responsibilities) documented in MPO operating procedures and documents Trained to implement the program Contact information and duties disseminated Identify member agency Title VI contacts Some Local Government Agencies (LGAs) should also have Title VI Coordinators Can serve as MPO Title VI Liaisons 15

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Title VI Coordinator cont. Responsibilities include: Communicating and coordinating with member agencies, the NCDOT and FHWA/FTA on Title VI matters Developing Implementation Plan (Program Plan) Developing Title VI/Nondiscrimination policies and procedures with input from member agency officials Reviewing and updating program directives to reflect policy or implementation changes, as appropriate Disseminating Title VI information and reports 16

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Title VI Coordinator cont. Responsibilities also include: Providing information to NCDOT and FHWA/FTA during investigations or reviews, as necessary Working with member agency officials to correct Title VI issues or discriminatory practices or policies Integrating Title VI into day-to-day program operations, effectively and continually Administer (or have a role in) discrimination complaints process Documenting Title VI-related activities 17

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Training Determine training needs of MPO staff, member agencies, and contractors Seek or request outside training for MPO officials Provide training to TCC/TAC, as appropriate MPOs Title VI Coordinator State and federal agencies Document training efforts Calendars and attendance records, certificates, etc. Communications and contacts 18

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Public Involvement and Outreach Ensure publics understanding of its rights Notice to Public Know Your Rights promotions Outreach strategies in Public Involvement Plan EJ/LEP populations and contacts identified Best mediums determined for reaching each community Adequate Representation on Committees Citizen Advisory Committees (CACs), minority CACs, planning commissions, Bike/Ped, Sidewalks/Greenways, TCC/TACs, etc. Process to ensure representative participation 19

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Data Collection Participant Data (Public Involvement) Public volunteers demographic information at meetings Voluntary Public Involvement Form GIS (Geographic Information Systems) maps delineating participant addresses/areas to identify disparities in participation Board/committee members self-ID race and gender Visual Observation permissible if member declines self-ID Demographic Profiles Map Title VI, EJ and LEP groups (identify concentrations) Surveys and needs assessments that capture: http://www.fhwa.dot.gov/environment/environmental_justice/facts/ej-10-7.cfm http://www.fhwa.dot.gov/environment/environmental_justice/facts/ej-10-7.cfm Overlay project/changes on maps to assess potential effects Comparative Analysis (benefits and burdens) Document if outcomes appear disparate or disproportionate 20

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Discrimination Complaints Consult with NCDOT ESS to determine jurisdiction Investigate or forward to NCDOT, as directed Cannot investigate complaints filed against: The MPO (as a whole) Lead Planning Agency Member Agencies NCDOT concurrence on decision Investigative Report Supporting documentation (if needed) 21

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Discrimination Complaints cont. External Complaint Process Worksheet: Complaint filed no later than 180 days after the alleged act? Is it in writing and signed? Written by complainant, Title VI Coordinator or designee Are you trained in conducting discrimination investigations? Was the complaint logged with the requisite info? Complaint basis: Race, color, national origin, sex, age, disability 22

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Compliance Review Process Preliminary Analysis Nondiscrimination Agreement Questionnaires and Requested Items Lists On-site Verification Staff/MPO Liaison Interviews Coordinator ensures availability Documentary Evidence Compliance Determination Compliance Review Report Summary of Findings Corrective Actions Deficiencies (90 days) Advisory Comments (before next review, or as directed) Conciliation Agreement 23

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Noncompliance Sanctions Nonresponsive or Uncooperative Regulated sanctions for noncompliant recipients Suspension or termination of Federal financial assistance Refusal to grant or continue Federal financial assistance Any other means authorized by law (49 C.F.R. 21.13) Standard TPB and Division processes for MPOs Contact NCDOT about uncooperative member agencies and consultant contractors Lead federal agency must concur (49 C.F.R. 21.13(d)) 24

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ADA/Section 504 Discrimination includes denying persons with disabilities the opportunity to participate in or benefit from any program or activity (28 C.F.R. 35.149) Any construction or alteration project that provides access to pedestrians must be made accessible to persons with disabilities (28 C.F.R. 35.150, 35.151) Accessibility Guidelines http://www.access-board.gov/guidelines-and- standards/buildings-and-sites/about-the-ada-standards/background/adaag http://www.access-board.gov/guidelines-and- standards/buildings-and-sites/about-the-ada-standards/background/adaag Review link and determine parts applicable to your program Questions and Answers About ADA/Section 504 http://www.fhwa.dot.gov/civilrights/programs/ada_sect504qa.cfm http://www.fhwa.dot.gov/civilrights/programs/ada_sect504qa.cfm 25

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ADA/Section 504 cont. ADA Transition Plan: Assesses the needs of persons with disabilities Schedules the required pedestrian accessibility upgrades Update periodically to develop MPO plans & programs Be defensible Is required for agencies with 50+ employees Make available for public comment Self evaluations need to include whats in the public right-of-way 26

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ADA/Section 504 cont. ADA Transition Plan Facilities (buildings and pedestrian accommodations) Identify member agencies that should have a Plan Complete self-evaluations Pedestrian facilities added to MTP (and later MTIP) Bike/Pedestrian Plan Building upgrades in individual members responsibility Program Accommodations Advertisements, meeting locations, auxiliary aids, sign language, braille, large print, teletypewriter (TTY), etc. 27

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Limited English Proficiency (LEP) Safe Harbor Thresholds (written translation) 5% or 1,000, whichever is less Speaks English less than very well Census Tables B16004 & B16001 Demographic Tool (developed by NCDOT Human Environ. Sect.) Four Factor Analysis (reasonable steps) Number or proportion eligible to be served or likely to be encountered by the program Frequency of contact with the program Nature and importance of the program, activity, or service provided by the program to people's lives Resources available and costs 28

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Limited English Proficiency cont. Language Assistance Plan Covers entire MPO area including member agencies Must be approved NCDOT Civil Rights Governing/Advisory body Four Factor Analysis Conduct one for the entire MPO area Identify all LEP language groups within the entire MPO Apply the four factors to each language group Utilize member Title VI contacts Consider four factors on individual projects/plans 29

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Environmental Justice Because the nondiscrimination requirements of Title VI extend to all programs and activities of State DOTs and their respective sub-recipients and contractors, the concepts of EJ apply to all State projects, including those which do not involve Federal-aid funds, whether Advance Construction, Design Build, or not. Disproportionately high and adverse effect means an adverse effect that: (1) is predominately borne by a minority population and/or a low- income population, or (2) will be suffered by the minority population and/or low-income population and is appreciably more severe or greater in magnitude than the adverse effect that will be suffered by the non-minority population and/or non-low-income population. 30

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Environmental Justice cont. Develop procedures to identify and address disproportionately high and adverse effects to minority and low-income groups Review MPO policies, plans and studies to determine if anticipated outcomes are disproportionate Assist member agencies in identifying EJ communities and impacts Assist NCDOT (TPB, Project Development & Environmental Analysis (PDEA), etc.) if contacted about environmental features for projects or plans Locations of populations (Is this where these people are located?) Community leaders Detailed maps Local plans and data 31

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NCDOT Title VI Staff Sharon M. Lipscomb, Manager, External Services Section slipscomb@ncdot.gov 919-508-1830 Shantray D. Dickens, Title VI Specialist sddickens@ncdot.gov 919-508-1896 32