110. Non-discrimination in employment and in the right to form and join trade unions. The right to form and join trade unions is guaranteed under federal laws to persons in the United States without regard to race, ethnicity or national origin. Similar protections are contained in some state constitutions and statutes. In addition, it is an unfair immigration-related employment practice to discriminate against certain work-authorized individuals, including some noncitizens, on the basis of national origin or citizenship status with respect to hiring, firing, or recruitment for a fee, 8 U.S.C. 1324b. According to Bureau of Labor Statistics (BLS) data, in 2012 the percentage of wage and salary workers who were union members was 11.3%, down from 11.8% in 2011 and down from 20.1% in 1983 – the first year for which comparable data were available. In 2012, the rate of union membership for public sector workers (35.9%) was substantially higher than the rate for the private sector (6.6%). In the public sector, local government workers had the highest membership rate at 41.7%, including highly unionized occupations such as teachers, police officers, and fire fighters. The private sector industries with the highest unionization rates were transportation and utilities (20.6%) and construction (13.2%). The lowest private sector unionization rates were in agriculture and related industries (1.4%) and financial activities (1.9%). Black/African American workers (13.4%) were more likely to be members of unions than White workers (11.1%), Asian workers (9.6%), or Hispanic/Latino workers (9.8%), http://www.bls.gov/news.release/pdf/union2.pdf. Data on rates of participation in the labor force, occupational breakdowns, and unemployment by race, ethnicity, and in some cases sex, are set forth in the Common Core Document.
111. The United States has strong legal protections safeguarding free choice of, and just and fair conditions in, employment. DOJ and the EEOC have reinvigorated efforts to enforce Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based, inter alia, on race, color, and national origin, and also prohibits retaliation against employees who bring charges or otherwise oppose discrimination.
112. Workplace discrimination charges filed with the EEOC against private employers and state or local governments declined slightly in FY 2012 to a total of 99,412.13 In addition, state and local fair employment practice agencies received 43,467 charges of employment discrimination on behalf of the EEOC in FY 2012.14 Nonetheless, it is notable that the total number of charges alleging race or national origin-based employment discrimination declined in 2012, now accounting for 33.7% (race) and 10.9% (national origin) of all charges filed, compared to 35.4% and 11.8% in FY 2011, respectively.15 The EEOC filed 122 new lawsuits, including 15 alleging race and/or national origin discrimination in employment in FY 2012.
113. During FY 2012, the EEOC resolved a total of 254 of its employment discrimination lawsuits against private sector employers, 57 of which involved allegations of race and/or national origin discrimination. The EEOC also resolved a total of 111,139 private sector charges, 38,426 of which alleged race discrimination and 12,364 of which alleged national origin discrimination. Through its combined administrative enforcement, mediation and litigation programs, the EEOC secured more than $409 million in monetary benefits from employers. Of the total recovery, an unprecedented $100.9 million was obtained through administrative enforcement of race discrimination claims, and $37 million, the most since 2001, for national origin discrimination claims. Through litigation, the EEOC recovered more than $22 million for victims of race or national origin discrimination. With respect to complaints filed by employees and applicants against federal government employers, the EEOC resolved 7,538 requests for hearings, securing more than $61.9 million in relief. In contrast to private sector charges, race and national origin comprised very small percentages (9.5% and 1.5%, respectively) of discrimination findings against the federal government, with the bulk of federal sector discrimination findings (33.3%) concerning retaliation for asserting workplace rights.
114. The EEOC has continued its commitment to mediation and outreach. In FY 2012, the EEOC’s mediation program obtained 8,714 resolutions with more than $153.2 million in monetary benefits for complainants. Of these resolutions, 3,379 involved claims alleging race or national origin discrimination, with almost $48 million obtained for these claimants. The EEOC expanded its reach to underserved communities, providing education, training, and public outreach to approximately 318,000 persons. The EEOC’s systemic program is discussed below.
115. DOL also enforces non-discrimination laws, including Titles VI and VII of the Civil Rights Act of 1964, Executive Order 11246 (federal contractors and subcontractors), and Section 188 of the Workforce Investment Act of 1998 (WIA) covering programs that are part of the American Jobs Center system. DOL has expanded its enforcement focus through regulatory changes, training, partnerships, and outreach. Through DOL and other agencies, the federal government requires private companies with which it conducts significant business to take proactive steps to increase the participation of members of minorities in the workplace, when they are underrepresented, and to ensure fairness in recruiting, hiring, promotion, and compensation.
116. Protection of U.S. citizens, nationals, and legal immigrants from employment discrimination on the basis of national origin. DOJ’s Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) enforces certain anti-discrimination provisions of the INA, see 8 U.S.C. 1324b. Under section 1324b, it is an unfair immigration-related employment practice to discriminate against certain work authorized individuals, including some noncitizens, on the basis of national origin or citizenship status with respect to hiring, firing, or recruitment for a fee. Employment discrimination claims based on national origin also may be raised with the EEOC under Title VII.16
117. With regard to paragraph 28 of the Committee’s Concluding Observations, the United States recognizes that, despite almost fifty years of intense federal efforts at fighting employment discrimination and a general increase in workplace diversity, members of minorities, including women and migrant workers, nonetheless are more likely than others to be found in low paying and dangerous jobs. The Obama Administration is working hard to eradicate employment discrimination, as evidenced by increased enforcement by the agencies involved.
118. Since 2009, DOJ/CRT has worked to reinvigorate its pattern or practice enforcement program to combat de facto discrimination in the workplace. Between 2009 and 2012 DOJ filed 32 lawsuits under Title VII to address cases where there is a pattern or practice of employment discrimination, and it has obtained substantial relief for victims in cases brought by DOJ as well as cases referred by the EEOC. For example, DOJ/CRT challenged New York City Fire Department’s (FDNY’s) use of written firefighter examinations, which disproportionately screened out qualified African American and Latino applicants without enabling FDNY to predict job performance. In July 2009, a federal court ruled that New York City’s use of the examinations constituted a pattern or practice of discrimination. The court ultimately ordered New York City to pay up to $128 million in back pay damages to those unfairly rejected from jobs – DOJ’s largest-ever damages award in an employment discrimination case – as well as to provide priority job offers for 293 victims of the city’s discrimination. The court also ordered the city to develop and implement new hiring practices at the FDNY, including a new written examination, which, unlike the challenged exams, actually tests for the skills and abilities that are important to the firefighter position. DOJ/CRT also successfully challenged the state of New Jersey’s use of a written examination to decide who to promote to police sergeant, on the basis that the test disproportionately excluded African American and Hispanic police officers from promotions and did not test for the skills necessary to do the job. An agreement reached with New Jersey requires the state to use a new procedure to promote police officers based on merit, not race or national origin, and also to provide up to $1 million in back pay and priority promotions to qualified officers who were denied promotions on a discriminatory basis.
119. In recent years, the EEOC has also significantly increased its “Systemic Initiative,” which targets pattern and practice or class action employment discrimination that has a broad impact on an industry, profession, company, or geographic location. In 2012, EEOC resolved 430 systemic employment discrimination charges that concerned race or national origin, recovering more than $22 million for victims of such employment discrimination. As of September 30, 2012, 886 charges of race or national origin discrimination were pending in the Systemic Initiative. The EEOC filed 10 systemic lawsuits, 2 of which concerned race or national origin; it also resolved 9 race or national origin systemic lawsuits in FY 2012. These included a $3.13 million settlement for a class of over 300 African Americans disproportionately affected by soft drink maker Pepsi Beverages’ policy of excluding applicants with criminal records, which excluded those arrested but never convicted of any crime; this settlement also requires Pepsi to offer jobs to class members who qualify under a new set of policies. Systemic claims now comprise 20 percent of all active EEOC litigation. Working with the EEOC, DOL has increased the scope and effectiveness of its enforcement against systemic discrimination, including enterprise-wide reviews of multiple offices within a single large corporation to evaluate compliance and correct deficiencies throughout the corporation instead of addressing only one facility at a time.
120. The U.S. government also addresses discrimination in the workplace with job training and education efforts. The EEOC conducted “technical assistance” training in FY 2012 for more than 5,000 Human Resources professionals and lawyers on how to comply with federal employment anti-discrimination laws. DOL provides funding for more than 3,000 local American Job Centers nationwide, offering access to employment assistance, labor market information, job training and income support services. These services are particularly critical for disadvantaged populations.
121. Regarding the Committee’s concerns about undocumented migrant workers, all workers in the United States, regardless of immigration status, are entitled to the protections of U.S. labor and employment laws, including those related to minimum wage, overtime, child labor, workplace health and safety, compensation for work-related injuries, freedom from unlawful discrimination, and freedom from retaliation. Federal agencies charged with enforcing worker protection laws understand that effective enforcement of labor law is essential to ensure proper wages and working conditions for all workers. When investigating potential violations of labor or employment laws, DOL and EEOC do not inquire into the immigration status of the workers involved. In litigation, EEOC actively attempts to keep information about citizenship out of trials, and it uses injunctions and other devices to stop employer threats of violence or deportation against workers who complain. Employers are held accountable without regard to the legal status of workers, although limited remedies may not be available to undocumented workers.17
122. DOL has also initiated a Migrant Worker Partnership Program with the embassies and consulates of ten countries, designed to assist DOL in the protection of migrant workers employed in the United States and to help communicate with workers whom the Department might not otherwise be able to reach. The Secretary of Labor has established formal partnerships with the embassies of Costa Rica, the Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Peru and the Philippines; and the Department is currently working to expand these partnerships to other countries. The EEOC has also partnered with embassies and consulates to protect the rights of their citizens to be free from employment discrimination while working in the United States.
123. DHS programs that help employers comply with the INA’s prohibition against the knowing hiring or employment of unauthorized workers, such as the DHS E-Verify program (offering employers an electronic method of verifying whether their employees are eligible to work in the United States) and the ICE Mutual Agreement between Government and Employers (IMAGE) program (assisting employers in voluntary compliance with this prohibition), include prohibitions against selective or discriminatory use as well as provisions for outreach to employers on worker rights and non-discrimination. In 2011, DOL and DHS entered into a revised Memorandum of Understanding (MOU) to ensure that immigration enforcement does not inadvertently interfere with the protection of the rights of workers.
124. Non-discrimination with regard to housing. The Fair Housing Act of 1968 (Title VIII of the Civil Rights Act of 1968, as amended) prohibits discrimination in housing, including on the basis of race, color, and national origin. Public and private housing providers, as well as other entities such as municipalities, banks, and homeowners’ insurance companies, are covered by the Act. The Equal Credit Opportunity Act of 1974 also prohibits discrimination on these same grounds in the extension of credit.
125. In enforcing the Fair Housing Act, Title VI of the Civil Rights Act of 1964, Section 109 of the Housing and Community Development Act of 1974, and Section 3 of the Housing and Urban Development Act of 1968, the HUD Office of Fair Housing and Equal Opportunity (HUD/FHEO) receives complaints, investigates cases, and engages in active outreach to lenders, housing providers, home-seekers, landlords, tenants, and others concerning their rights and obligations. In many regions, FHEO also authorizes and provides funding for state or local fair housing enforcement agencies to receive and investigate complaints, as long as the state or local government can show that its fair housing law provides protections substantially equivalent to those of the Fair Housing Act. At the end of 2012, there were 96 Fair Housing Assistance Program (FHAP) agencies in 38 states and the District of Columbia, three of which enforced fair housing laws for both city and county jurisdictions. In 2012, HUD made about $7.5 million available to FHAP agencies nationwide to partner with local entities in additional fair housing enforcement and outreach beyond their normal FHAP enforcement work, such as more effective testing, outreach to address housing segregation, and efforts to diminish LEP barriers.
126. During FY 2012, HUD and the FHAP agencies received 8,802 complaints alleging violations of the Fair Housing Act. The most common basis of complaints was disability (50%), followed by race (29%), familial status (14%), national origin (12%), and sex discrimination (12%). The most common complaint involved discrimination in the terms or conditions of the sale or rental of property (62%), followed by failure to make a reasonable accommodation (28%) and refusal to rent (26%). Through enforcement, in 2012 HUD and FHAP agencies obtained more than $9.6 million in monetary relief, plus other types of relief, including changes in policies and procedures and training for staff. HUD also engages in active education and outreach; its National Fair Housing Training Academy conducts multilingual training for housing counselors and consumers, and HUD has translated several hundred HUD documents into 20 languages.
127. In the wake of the nationwide housing and foreclosure crisis, DOJ/CRT realized the critical need for increased enforcement of the nation’s fair lending laws. While many communities nationwide were devastated during the housing and foreclosure crises, African-American and Hispanic/Latino families were hit especially hard. Across the country CRT found cases where qualified Black/African American and Hispanic/Latino families paid more for loans because of their race or national origin, or were steered to more expensive and risky subprime loans. CRT also found some lenders who failed to offer credit in African American and Hispanic communities on an equal basis with White communities.
128. The creation of DOJ/CRT’s Fair Lending Unit in early 2010 bolstered collaboration with federal agencies that regulate banks and the housing market. Federal bank regulators, HUD, the newly created Consumer Financial Protection Bureau, and the Federal Trade Commission referred 109 matters to DOJ between 2009 and 2011, nearly half of which (53) involved race or national origin discrimination, almost double the 30 referrals received in the previous eight years combined. Between early 2010 and 2012, DOJ/CRT filed or resolved 22 lending matters, providing more than $575 million in monetary relief for more than 300,000 individual borrowers and affected communities, including the large Countrywide settlement referenced above .
129. Regarding paragraph 31 of the Committee’s Concluding Observations, federal and state governments have worked diligently with affected communities to ensure availability of affordable housing to persons displaced by Hurricanes Katrina and Rita. The DHS Federal Emergency Management Agency (FEMA) provided more than $7.8 billion in housing and other assistance (e.g., transportation, clothing, furniture) to roughly 2.2 million individuals and households affected by the hurricanes. FEMA conducted the largest temporary housing operation in the history of the United States, providing temporary housing units to 143,123 households across the Gulf Coast. As of January 7, 2013, only one household remained in a temporary housing unit. FEMA also funded a Disaster Case Management Program that connected survivors to disaster assistance, including affordable rental housing, and the Gulf states themselves produced more than 8,700 affordable rental units. More federally assisted housing exists in New Orleans today than existed before the hurricane, and hundreds of families have returned home.
130. HUD also implemented three major programs following Hurricane Katrina: the Katrina Disaster Housing Assistance Program (KDHAP), which provided rental assistance to approximately 10,000 displaced HUD-assisted and homeless households from October 2005 to January 2006; the $390 million Disaster Voucher Program (DVP), which assisted more than 36,000 previously-assisted HUD families; and the Disaster Housing Assistance Program (DHAP), which provided both housing rental assistance and case management services enabling more than 50,000 families to transition to available rental housing in the market of their choice. Upon conclusion of DHAP in 2009, Congress provided further assistance that was eventually available to all families displaced by Hurricanes Katrina and Rita. All of HUD’s programs include strong civil rights requirements and protections and involve consultation with affected communities; each state must follow a detailed citizen participation plan and ensure that grants are administered in conformity with Title VI of the Civil Rights Act of 1964 and the Fair Housing Act. In addition to the FEMA and HUD programs noted above, the Small Business Administration (SBA) offered loans and grants to assist homeowners, renters, businesses of all sizes, and private, nonprofit organizations repair or replace real estate, personal property, and other assets.
131. With regard to outreach and community involvement, FEMA and the State of Louisiana sponsored “Louisiana Speaks” to involve survivors in the disaster recovery planning process. A national Louisiana Planning Day invited displaced people from across the country to provide thoughts on recovery priorities for their communities. Engaging and consulting with communities continues to be important in ensuring non-discrimination in preparedness, response, and recovery following disasters. For example, community involvement in developing post-Katrina evacuation plans helped facilitate evacuations for Hurricane Gustav in 2008. After the Deepwater Horizon oil spill in April 2010, which devastated the livelihoods of many minority communities, DHS established the Deepwater Integrated Services Team, consisting of DHS and 17 other federal agencies, to engage with affected communities. FEMA also deployed Community Relations Outreach Teams, and FEMA and DHS/CRCL created a new Standard Operating Procedure for outreach to populations with limited English proficiency or with additional communication needs, including low literacy levels. More recently, during Hurricanes Isaac and Sandy in 2012, the federal government engaged with diverse communities and, considering the potential impact of these storms on many immigrant communities, issued a statement in several languages on cessation of immigration enforcement activities associated with officially-ordered evacuations or an emergency government response. During Hurricane Sandy, DHS also issued a reminder to states, localities, and other recipients of federal financial assistance concerning their obligations under federal non-discrimination laws.
132. In September 2011, the federal government published a National Disaster Recovery Framework (NDRF), which emphasizes inclusiveness in the recovery process, including giving a voice to underserved populations in recovery, and sensitivity and respect for social and cultural diversity. Aware of the concerns that have been expressed with regard to the timeliness and availability of assistance to the persons most in need, the Administration has worked forthrightly to address problems and to ensure that assistance is available expeditiously, is targeted for those who need it most, and is appropriately designed for transition to a sustainable future.
133. Non-discrimination regarding public health, medical care, social security and social services. Disparities in access and treatment. With regard to Article 5 and paragraph 32 of the Committee’s Concluding Observations, under Title VI of the Civil Rights Act of 1964, discrimination on the basis of race, color or national origin, including action that has a disparate impact on members of minorities, has long been prohibited in all federally funded hospitals and health care facilities. HHS and DOJ vigorously enforce these laws, and HHS collects and analyzes statistics on health care disparities. Every year since 2003, HHS has produced the National Healthcare Quality Report (NHQR) and the National Healthcare Disparities Report (NHDR), which track the level of health care quality, access, and disparities for the nation. Data are based on more than 200 health care measures categorized in areas such as access to care, efficiency of care, effectiveness of care, and health system infrastructure for racial and ethnic minority and low income groups and other priority populations, such as residents of rural areas and persons with disabilities. These analyses indicate that, in many cases, health care quality in America could be improved. The gap between best possible care and that which is routinely delivered remains substantial. The analyses also indicate that, despite substantial efforts to improve health care for all, disparities based on race and ethnicity, socioeconomic status and other factors persist at unacceptably high levels.
134. According to the 2011 reports, improvements in health care quality continue to progress at a slow rate – about 2.5% a year. Few disparities in quality of care are narrowing, and almost no disparities in access to care are getting smaller. Overall, Blacks/African Americans and Hispanics/Latinos received worse care than Whites for about 40% of measures, and Asian Americans and American Indians and Alaska Natives received worse care than Whites for about 30% of measures. Poor people received worse care than high-income people for about 50% of measures. (For related charts and additional statistical data, see the NHDR Chapter 10 “Priority Populations,” pp. 233-247,available at http://www.ahrq.gov/qual/qrdr11.htm.)
135. Some minor improvements in health disparities have occurred. For example, since 1990, the gap in life expectancy between White males and Black/African American males narrowed from eight years to five years, and the gap in life expectancy between White females and Black/African American females decreased from six years to four years. (Health, United States, 2011, HHS Centers for Disease Control and Prevention (CDC), National Center for Health Statistics, available at http://www.cdc.gov/nchs/hus.htm.)
136. In 2011, HHS also released the HHS CDC Health Disparities and Inequalities Report - United States, 2011 – the first in a series of periodic assessments that highlight health disparities by various characteristics, including race and ethnicity. This report, which represents a milestone in CDC’s history of work to eliminate disparities, addresses disparities in health care access, exposure to environmental hazards, mortality, morbidity, behavioral risk factors, disability status, and social determinants of health. It finds that in recent decades the nation has made substantial progress in improving U.S. residents’ health and reducing health disparities. Yet health disparities by race and ethnicity, along with other social characteristics, still persist. For example, persons who live and work in low socioeconomic circumstances are at increased risk for premature mortality, morbidity, unhealthy behaviors, reduced access to healthcare, and inadequate quality of care. Environmental hazards, such as inadequate and unhealthy housing and unhealthy air quality, likewise affect health outcomes. The study found that the highest infant mortality was for non-Hispanic Black/African American women, with a rate 2.4 times that for non-Hispanic White women. With regard to coronary heart disease, Black/African American women and men had much higher coronary heart disease rates in the 45–74 age group than women and men of the three other races. Likewise, obesity rates were lower for Whites than for Blacks/African Americans and Hispanic/Latino Americans.
137. The report recommends that health disparities be addressed with dual intervention strategies related to health and social programs and, more broadly, access to economic, educational, employment, and housing opportunities. The dual strategy includes making national and locally determined interventions universally available as well as making targeted interventions available to populations with specific needs. To address health disparities and inequalities at the national, state, tribal, and local levels, the CDC is leading an effort to compile and publish evidence-based and promising practices and strategies used by CDC-funded programs to address some of the persistent health disparities and inequalities highlighted in the HHS CDC Health Disparities and Inequalities Report. These practices and strategies will serve as a resource for practitioners at all levels in their efforts to address health disparities and inequalities. The HHS CDC Health Disparities and Inequalities Report – United States 2013 will also provide updates on topics covered in the 2011 report and introduce new topics as well.
138. The United States is committed to improving access to quality health care for all, and to reducing and eventually eliminating these disparities. For many years the United States has provided government benefits programs to address health care, such as Medicare and Medicaid. Hundreds of hospitals that are federally funded under the Hill-Burton Act are obligated to provide free or reduced-cost health care, regardless of an individual’s ability to pay. In addition, the Emergency Medical Treatment and Labor Act requires Medicare-participating hospitals to provide, regardless of ability to pay, a medical screening examination when a request is made for emergency treatment, and also to provide the individual stabilizing treatment or an appropriate transfer if the hospital is unable to stabilize the individual within its capacity.
139. The ACA, which was upheld by the U.S. Supreme Court, National Federation of Independent Business et al. v. Sebelius, 132 S. Ct. 2566 (2012), is intended to help reduce health care disparities, inter alia, by: (1) expanding insurance coverage; (2) promoting preventive and wellness services; (3) improving chronic disease management; (4) increasing access to Community Health Centers, which provide comprehensive primary health care to patients regardless of ability to pay; (5) strengthening the cultural competency skills of health care professionals; (6) promoting implementation of HHS’s April 2011 Action Plan to Reduce Racial and Ethnic Health Disparities and; (7) increasing the diversity of the health care workforce. Under the ACA, it is estimated that as many as 5.4 million Hispanics/Latinos, 3.8 million Blacks/African Americans, and 2 million Asian Americans who would otherwise be uninsured will gain coverage by 2016 through the expansion of Medicaid eligibility and creation of Affordable Insurance Exchanges; that 1.3 million young adult members of minority groups (736,000 Hispanics/Latinos, 410,000 Blacks/African Americans, 97,000 Asian Americans, and 29,000 American Indian/Alaska Natives have gained coverage because they are now able to stay on their parents’ insurance through age 26; and that 45.1 million women can receive recommended preventive services without having to pay a co-pay or deductible. Under the ACA’s expansion of the Community Health Centers program, more than 8,500 service delivery sites provide health care to more than 20 million patients throughout the United States and its territories – approximately 35% of patients served are Hispanic/Latino and 25% are Black/African American. In May 2012 HHS announced awards of $728 million to build, expand and improve community health centers nationwide – part of a $9.5 billion five-year expansion plan under the ACA. The ACA has also helped nearly to triple the number of clinicians in the National Health Service Corps, a network of primary care providers who receive scholarships and loan repayment in exchange for working in underserved communities. Black/African American physicians make up about 17.8% of the Corps, a percentage that greatly exceeds their 6.3% share of the national physician workforce.
140. In 2011, HHS released its Action Plan to Reduce Racial and Ethnic Health Disparities, outlining the goals and actions it will take to reduce racial and ethnic health disparities, building on the ACA. At the same time, the National Partnership for Action to End Health Disparities (NPA) released its National Stakeholder Strategy for Achieving Health Equity, which complements the Action Plan by providing a roadmap for public and private sector initiatives and partnerships to address disparities. The NPA is intended to mobilize a comprehensive, community-driven, and sustained approach to combating health disparities and to move the nation toward achieving health equity, http://minorityhealth.hhs.gov/npa/. In February 2013, under the leadership of HHS/OCR, HHS released its 2013 Language Access Plan, ensuring that LEP individuals have meaningful access to HHS programs, including Medicare and those established under Title I of the ACA.
141. Healthy People 2020 is an ambitious, yet achievable, disease prevention/health promotion agenda to improve the health of all Americans throughout the decade ending in 2020 and to achieve health equity, eliminate disparities, and improve the health of the Nation during that period. HHS grants more than $14.2 million to universities and medical schools to study and implement more effective health strategies among racial and ethnic minority populations. It also has programs to improve the cultural and linguistic competency of health care providers, such as the HHS/OCR Medical Schools National Initiative, which has worked with 18 medical schools to develop the flagship course, “Stopping Discrimination Before It Starts: The Impact of Civil Rights Laws on Healthcare Disparities – A Medical School Curriculum,” https://www.mededportal.org/publication/7740.
142. With regard to Native American health disparities, the Obama Administration understands and seeks to support the priority tribal leaders place on improving the delivery of health care services in their communities. The Indian Health Service (IHS) has engaged for many years with federally recognized tribes. The Obama Administration achieved a 29% increase in funding for the IHS during the last 4 years, in addition to $500 million provided to the IHS under the Recovery Act. Under the Indian Health Care Improvement Act, which was made permanent by the ACA, IHS is addressing priorities identified by tribes, including long-term care, behavioral health, diabetes/dialysis, and improving the collaboration and coordination of services for veterans eligible for services of both the Department of Veterans Affairs (VA) and IHS. In consultation with tribal leaders, HHS and DOI are also working together to combat a full range of social issues affecting health in Indian Country.
143. Non-discrimination with regard to Social Security. Social Security retirement benefits are available without regard to race, color, or national origin to all eligible persons who have worked at least 10 years. Age 65 is the full retirement age for those born between 1938 and 1943, as is age 66 for those born between 1943 and 1959, although benefits may begin as early as age 62. Social Security disability coverage is likewise available to all eligible persons without regard to race, color or national origin. Medicare, a health insurance program for people age 65 or older (or under age 65 with certain disabilities), is also available without regard to race, color or national origin. Medicaid provides health insurance to low-income individuals and families of any age, also without discrimination.
144. Environmental justice. Recognizing that low income and minority communities often are exposed to an unacceptable amount of pollution, the Obama Administration is committed to making environmental justice a central part of the everyday decision-making process. The Administration has re-energized the Federal Interagency Working Group on Environmental Justice (EJ IWG), founded in 1994 under Executive Order 12898. In addition, the White House Forum on Environmental Justice, held in December 2010, focused on addressing environment and health disparities and on how low income and minority communities can prepare for the environmental and health impacts of climate change. Administration initiatives include: issuing final environmental justice strategies, implementation plans and/or progress reports for 15 agencies, including Plan Environmental Justice (“EJ”) 2014, which is EPA’s strategy to develop stronger community relationships and increase agency efforts to improve environmental and health conditions in overburdened communities; and increasing collaboration between the EJ IWG and other federal partnerships, such as the Partnership for Sustainable Communities and the Action Plan to Reduce Racial Ethnic Asthma Disparities. The Asthma Action Plan recognizes that poor and minority children suffer a greater burden of the disease, and focuses on ensuring that the populations most severely affected receive evidence-based comprehensive care.
145. Non-discrimination with regard to education and training.De jure racial segregation in education has been illegal in the United States since the landmark decision in Brown v. Board of Education, 347 U.S. 483 (1954). As discussed above under Article 2, DOJ/CRT and ED/OCR work actively to ensure non-discrimination in education. DOJ/CRT monitors compliance of school districts with U.S. civil rights laws and initiates case reviews to ensure that school districts operating under court orders as a result of former de jure segregation live up to the requirements of those orders; relief has been secured in 43 desegregation cases in the last four years. DOJ/CRT and ED/OCR also enforce laws prohibiting discrimination in schools, colleges, and universities on the basis of factors that include race, color, and national origin, such as Titles IV (non-discrimination by public school districts, colleges, and universities on the basis of race, color or national origin) and VI of the Civil Rights Act of 1964 (non-discrimination by recipients of federal financial assistance), and the EEOA of 1974 (prohibiting discrimination by public schools based on race, color, or national origin, including failing to help ELL students overcome language barriers, enforced by DOJ). Between FY 2009 and FY 2012, ED/OCR received 28,971 complaints and resolved 28,577 complaints under Title VI. The two agencies have conducted joint investigations and compliance reviews under these statutes in the last four years. Cases have included two comprehensive EEOA/Title VI settlements with the Boston Public Schools to resolve findings that roughly 8,500 ELL students had been without services to help them acquire proficiency in English. As noted above, the two agencies have also provided guidance reminding school districts of the obligation under federal law to provide equal educational opportunities regardless of actual or perceived immigration status, and also guidance for K-12 school districts and college and universities on the voluntary use of race to achieve diversity or avoid racial isolation.
146. ED also administers the Elementary and Secondary Education Act of 1965 (ESEA), which, as amended, provides a framework for improving performance for all students. This law and the Obama Administration’s actions to re-tool it more effectively to prepare students to succeed in college and the workplace, while at the same time giving states greater flexibility in addressing achievement gaps, are described in detail in paragraphs 59 and 60 of the 2011 U.S. ICCPR Report. In 2011, ED announced a flexibility opportunity under the ESEA to set aside barriers unintentionally inhibiting reforms in exchange for rigorous and comprehensive state-developed plans designed to improve educational outcomes for all students, close achievement gaps, increase equity, and improve the quality of instruction. Currently, 34 states and the District of Columbia have been approved for ESEA flexibility, and requests from a number of additional states are under review. Under the ESEA, states administer state-developed assessments in reading/language arts and mathematics in grades 3 through 8 and once in high school, and in science in three grade spans (3-5, 6-9, 10-12). States must disaggregate data from these assessments by gender, major racial/ethnic groups, poverty, migrant status, students with disabilities, and ELLs) to highlight achievement gaps among these groups. In addition, ED administers assessments for students in the 4th and 8th grades every two years, with an additional test in the 12th grade. These tests, called the National Assessment of Educational Progress (NAEP) and published as the “Nation’s Report Card,” show modest progress in reducing achievement gaps in some areas, although significant gaps continue to exist between White and other racial groups except the combined group consisting of Asians and Pacific Islanders (who sometimes score above White students on average). Native Hawaiians and other Pacific Islanders, reported separately for the first time in 2011, scored below White students in both reading and mathematics. Statistics regarding educational attainment can be found in paragraphs 11 to 13 of the Common Core Document and at www.nces.ed.gov/nationsreportcard/.
147. The ESEA, as amended, requires states to develop and implement English language proficiency standards and to carry out annual assessments of ELL students. The National Center for Education Statistics reports that between the 2000-01 and 2009-10 school years, the number of school age children (ages 5–17) being served in appropriate programs of language assistance (e.g., English as a Second Language, High Intensity Language Training, bilingual education) increased from 3.7 million to 4.7 million – from 8% to 10% of the population in this age range. Under Title VI of the Civil Rights Act of 1964, ELL students must receive from their states and local educational agencies instructional services appropriate to their level of English proficiency. In addition, Title III of the ESEA provides formula grants to states for supplementary services to ELLs to increase their English proficiency.
148. ED also provides formula grant funds to school districts to meet the culturally related academic needs of AI/AN students, and also provides funding to tribes, school districts, and other entities under several discretionary grant programs to improve educational opportunities. Under a new pilot program, ED is funding tribal educational agencies that have entered agreements with their state educational agencies to provide services to public schools located on Indian reservations. In addition, based on consultations with tribal officials concerning the importance of preserving Native languages, the Administration has proposed changes to the ESEA that support, inter alia, flexibility in the use of federal education funds for Native language immersion and Native language restoration programs. Advancement of native languages is also a recognized factor in other programs as indicated in the White House report, Continuing the Progress in Tribal Indian Communities, http://www.whitehouse.gov/sites/default/files/wh_tnc_accomplishments_report_final.pdf.pdf.
149. With regard to paragraph 34 of the Committee’s Concluding Observations concerning the achievement gap, in the 48 years since enactment of the Civil Rights Act of 1964, access to quality academic programs has increased tremendously among minority students and ELL students. While progress has been made in reducing the achievement gaps in some areas, as noted above, the data indicate that significant gaps continue to exist. The Obama Administration is committed to working to eliminate these gaps.
150. The Administration’s work to address the achievement gap includes the following ED programs, among others: (1) the Race to the Top program, which has inspired many forward-thinking state reforms in education (in 2010 nearly $4.3 billion was awarded to 11 states and the District of Columbia, assisting 13.6 million students and 980,000 teachers, and an additional $700 million was made available in 2011 for the RTT program and the Race to the Top-Early Learning Challenge program, a state grant to promote high quality early childhood education and close the achievement gap for children with high needs); (2) programs that are part of the Investing in Innovation Initiative (“i3”), Promise Neighborhoods, and School Improvement Grants, which are intended to foster innovation, reform the lowest performing schools, and provide support for effective school reform (e.g., for “i3,” $650 million was made available in 49 grants in 2010, $148 million in 23 grants in 2011, and $142 million in 20 grants in 2012; and for Promise Neighborhoods, $10 million was awarded in 21 grants in 2010, $30 million in 20 grants in 2011, and $60 million, including 17 new grants, in 2012), and; (3) continued implementation of other federal programs focused on reducing achievement gaps (e.g., Title I, Part A of the ESEA, which provides more than $14.5 billion annually to local educational agencies (LEAs) to improve achievement of low-achieving students in high poverty schools; and Title III of the ESEA, which provides grants to LEAs to increase the English proficiency of ELLs). For additional information on measures to address the achievement gap, see the discussion above under paragraphs 16 and 17 of the Committee’s Concluding Observations.
151. Zero tolerance policies. Crime in schools has decreased significantly since the mid- 1990s.18 However, in response to public perception that U.S. public schools were becoming increasingly violent, many schools revised their discipline practices, policies, and procedures, including policies mandating suspension or expulsion, or permitting or requiring referrals to juvenile justice authorities after specific disciplinary offenses or specific numbers of offenses have been committed. Such student discipline policies can interrupt a student’s education and diminish that student’s chances for success, and for too many students these school-imposed sanctions lead to students being placed in (or drawn into) the criminal justice system through a pathway commonly referred to as the “school-to-prison pipeline.” The federal government is keenly aware that some of these policies and practices have had a disproportionate impact on minority students, in particular on Black/African American boys.
152. DOJ and ED are committed to addressing racial disparities in discipline as well as the resulting “school-to-prison pipeline.” For example, in 2011, the two agencies announced a collaborative initiative to improve school discipline practice and reduce disparities in discipline, http://www.ed.gov/news/press-releases/secretary-duncan-attorney-general-holder-announce-effort-respond-school-prison-p. Examples of cases are found above in the discussion of education as it relates to Article 2 and paragraph 21 of the Committee’s Concluding Observations. ED/OCR is collecting data on a number of students receiving expulsions under zero tolerance policies, suspensions, referrals to law enforcement and corporal punishment. ED’s Office of Safe and Healthy Students has forged links between school police chiefs and juvenile and family court judges and is circulating information on best practices to prevent, mitigate, and deal with crime and violence in schools, and as noted above, ED and DOJ hosted a first-ever conference on this issue in 2010. ED/OCR has recently resolved three compliance reviews addressing discriminatory discipline in school districts in California and Delaware. DOJ recently reached comprehensive settlement agreements addressing discriminatory discipline based on race and national origin with school districts in Mississippi and Florida.
153. As discussed above with respect to paragraphs 16 and 17 of the Committee’s Concluding Observations, the Administration is committed to addressing harassment and bullying in schools. It has formed the Interagency-6-Bullying Working Group, a coordinated effort to develop a national strategy to end bullying in schools. School districts have a responsibility to stop bullying and harassment whenever it happens, and when harassment occurs because of a student’s race, color, national origin, or other protected ground, DOJ/CRT and ED/OCR have the legal enforcement authority to take action under the Equal Protection Clause of the U.S. Constitution and federal laws such as Titles IV and VI of the Civil Rights Act of 1964. In 2010, ED/OCR issued guidance on school responsibilities to address harassment and bullying under the civil rights laws. In addition to DOJ/CRT’s settlement resolving the severe harassment of Asian-American students at South Philadelphia High School referenced above, DOJ/CRT and ED/OCR resolved a case of harassment and disproportionate discipline of Somali-American students at Owatonna High School in Minnesota in which the district had meted out disproportionate discipline for students involved in a fight and the district’s policies, procedures, and trainings were not adequately addressing harassment against Somali-American students. DOJ/CRT also recently reached settlements to resolve investigations of alleged racial harassment at schools in Ohio and Indiana. These settlements require changes to policies and training to ensure schools are safe and inclusive places for learning for all students.
154. President Obama has made clear his commitment to protecting children from bullying and harassment of all kinds; he and First Lady Michelle Obama convened a conference at the White House in March 2011 to bring students, parents, educators and other stakeholders together to discuss bullying prevention. Federal officials have also met with advocates from Arab and South Asian communities and other advocacy organizations, and have spoken to schools and other groups concerning this issue.
155. Non-discrimination with regard to participation in cultural activities and access to places or services intended for use by the general public. The rich and diverse cultural heritage of the United States grows even richer and more diverse as the United States becomes increasingly multi-racial and multi-ethnic. The long tradition of cultural expression in the United States continues to be evidenced in the thousands of ethnic heritage events, clubs, and theatrical, artistic, sports, and musical events that celebrate cultural affiliation and diversity nationwide. Equal participation in cultural activities and access to places and services intended for use by the general public, such as transportation, hotels, restaurants, theaters and parks, are protected primarily through the First, Fifth, and Fourteenth Amendments of the Constitution, supplemented by U.S. laws, including Title II of the Civil Rights Act of 1964, as amended, which makes it unlawful for certain places of public accommodation, such as hotels, restaurants and places of entertainment, to discriminate on the basis of, inter alia, race, color or national origin. For example, in 2012 CRT partnered with the Pennsylvania Human Relations Commission to resolve allegations that a swim club in Philadelphia discriminated on the basis of race, http://www.justice.gov/opa/pr/2012/August/12-crt-1017.html. A declining proportion of public accommodations cases in recent years has involved race and ethnicity, with an increasing proportion now based on disability. DOJ may bring lawsuits for injunctive relief under Title II when there is reason to believe that a person has engaged in a pattern or practice of discrimination. Individuals may also file suit to enforce their rights under Title II and other federal and state statutes. Title III of the Civil Rights Act of 1964 likewise prohibits discrimination by public facilities, such as public museums or centers. See Annex A to the Common Core Document for a discussion of state laws and enforcement efforts.