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Saunders testifies for Office of Human Rights
COUNCILMEMBER VINCENT ORANGE, CHAIR
COMMITTEE ON GOVERNMENT OPERATIONS
COUNCIL OF THE DISTRICT OF COLUMBIA
WASHINGTON, D.C. 20004
PUBLIC OVERSIGHT HEARING
FEBRUARY 25, 2005
RE: "Performance of the Office of Human Rights for FY 2004 and FY 2005"
Chairperson Orange and members of the Committee on Government Operations. I am Kenneth L. Saunders, Director of the Office of Human Rights, and I am here today to present testimony on the performance of the Office of Human Rights for fiscal years 2004 and 2005.
As you know, since June 16, 2003, I have served as Director of OHR. FY2004 was the first full fiscal year of my tenure. Before I begin, I would like to take this opportunity to congratulate the new Chair under whom the Office of Human Rights now serves, and I would like to thank the former Chair, Councilmember Graham, for the dedication, commitment and support he gave the OHR during his term as Chair of our committee. I know that Councilmember Orange is equally committed in his service to the residents of this great city and we look forward to a long and fruitful relationship under his leadership.
Before I address the performance of the Office of Human Rights for fiscal years 2004 and 2005, I would first like to give you an overview of the respective units within OHR and how it relates to and interfaces with the Commission on Human Rights. I will then address the specific aspects of our performance.
Shortly after my arrival, I restructured the Office by combining the Intake and Investigation units; this enhanced the processing of cases to achieve swifter results. We now begin the mediation process simultaneously while we initiate the investigative process. We also have a Compliance Unit, a Mediation Unit, a Fair Housing Unit and a Legal Division.
Intake and Investigations Unit
This is the first step in the process. Within 72 hours of receipt of a complaint, an EEO Supervisor, an attorney and I examine the elements contained in the complaint to determine whether a prima facie case has been established. In other words, if we assume that all of the allegations are true, do the allegations constitute discrimination under the DC Human Rights Act? If so, the case is then formally docketed and assigned to an Investigator. If a prima facie case has not been established, the case is not docketed. We have 5 days from the date of docketing to assign the case to an Investigator. The Investigator then begins the process by making contact with the Respondent. He or she provides a copy of the complaint to the Respondent, issues OHR's first set of Interrogatories, requests documents that are relevant to the complaint and seeks a signed and notarized Position Statement from the Respondent. The Investigator also gives a copy of the Complaint to the Mediation Unit, which has 15 days from the date the case was docketed to schedule a mandatory mediation session. At this point, the Investigator continues to administer the case concurrently with the Mediation Unit. If it appears that mediation will be successful, the Investigator officially transfers the case to the Mediation Unit for handling. If the mediation is not successful, the Investigator continues the full investigation by interviewing witnesses, conducting site visits and inspecting all records relevant to the case. During this stage, the Investigator may seek additional documents; issue additional Interrogatories or request additional statements from witnesses. At the conclusion of the Investigation, a Summary of Findings is prepared for submission to the EEO Supervisor and then on to the Legal Unit.
The Mediation Unit
Once a complaint is received in the Mediation Unit, it is reviewed by the Supervisor and assigned to one of our volunteer or staff mediators who have expertise with the particular elements of the complaint. As I stated earlier, we have 15 days from the date of docketing to schedule a mandatory mediation conference. The Complainant, Respondent, and their legal representatives, if any, are contacted to schedule the mediation conference. The Mediator chairs the conference and each party is notified of their rights and responsibilities as well as the process that will be followed. Upon conclusion, if the parties agree on an outcome, a Settlement Agreement and an enforceable Order are both signed by all parties, including the Mediator, the Supervisor of the Mediation Unit and myself. In many instances, settlements may also include monetary awards to the complainant. I will give you some statistics on monetary awards later in this testimony. A successful mediation also results in an administrative closure of the case. In the event that mediation is unsuccessful, the full investigative process continues up to the issuance of a Probable Cause finding, subsequent settlement, or dismissal of the case if the alleged charges are not substantiated. When Probable Cause is found, I sign a Letter of Determination and the case is then certified to the Commission on Human Rights or to a Hearings Officer for damages.
The Compliance Unit
This unit is responsible for the handling of all conciliations, training, EEO matters, outreach and education to all District agencies as well as other private and public entities (universities, law firms, embassies, etc.). The Unit also ensures compliance on matters relating to human rights in the District of Columbia. From time to time, this Unit also conducts research of various issues as they relate to the District's human rights laws.
With respect to conciliation, upon issuance of a Probable Cause finding, the parties are advised of their right to participate in a conciliation process, as opposed to a full hearing before the Hearing Examiner at the Commission on Human Rights. The goal of the conciliation process is to provide equitable relief to the complainant and ensure that the respondent discontinues the discriminatory practices that led to this case. Depending upon the elements included in the case, the respondent may also be required to:
- Discontinue from engaging in the type of unlawful discrimination that was found or conciliated in this case.
- Unconditionally offer placement to the position the person would have occupied, but for the discrimination suffered by that person.
- Make the Complainant whole for any loss of earnings he or she may have suffered as a result of the discrimination.
- Notify all employees in the affected facility that they have the right to be free from any and all unlawful discrimination.
- Implement measures that will correct, cure or prevent the type or types of discrimination found.
Upon the conclusion of a successful conciliation, a Settlement Agreement along with an enforceable Order are signed by all parties, including me, and the case is administratively closed. In the event that the parties decline conciliation or fail to reach an agreement, the case is certified by the Office and sent to the Commission for a full hearing. I will address the monetary awards made through the conciliation process later in my testimony.
The Legal Unit
Our 2 attorneys are primarily engaged in preparing Letters of Determination (LOD) that are legally sufficient and able to withstand the scrutiny of the DC Superior Court. Our attorneys also handle all Freedom of Information Act (FOIA) requests; assist with administrative matters that have a legal effect, such as employee grievances; work closely with the Attorney General's Office to enforce Orders that have been executed; provide advice relating to compliance matters and respond to inquiries that pertain to the District's human rights laws. Regarding the preparation of the Letter of Determination, the attorneys review the Summary of Findings prepared by the Investigator as well as all documents contained in the file, prior to actually writing the LOD. Moreover, they conduct legal research on the case law relative to the elements contained in the case before them, and extract appropriate citations for inclusion in the final LOD. Whenever a Letter of Determination results in a Probable Cause finding, the case is either certified to the Commission for a hearing, a final Summary Determination is issued, or the case is heard before a Hearing Officer for damages.
The Fair Housing Unit
This Unit has a Manager and 3 caseworkers who handle all discrimination complaints that are housing-based. They also attend community forums and neighborhood meetings to provide literature and share information on both landlord and tenants rights and obligations under the Federal and District's housing and human rights laws. This Unit also coordinates the citywide annual Fair Housing Symposium that is scheduled each year. This year, it is scheduled for April 19th. & 20th. This is a citywide symposium jointly sponsored by the Office of Human Rights, the DC Dept of Housing and Community Development and the Equal Rights Center.
Like in all cities across the nation, housing discrimination is a serious issue in the District as well. For example, we have seen cases where landlords have failed to provide reasonable accommodations to persons who are disabled; we have seen cases where applicants have been denied approval to rent apartments or purchase condominiums because of their race, national origin or sexual orientation; and we have seen cases where lenders have actually charged higher interest rates to minorities or foreign-born residents. For these cases, the process is the same as any other, that is, the investigative process simultaneously takes place while we attempt to reach a settlement through mediation. If mediation is successful, all parties sign a Settlement Agreement and an enforceable Order. If mediation is unsuccessful and the investigation concludes in a finding of Probable Cause, the case is certified to the Commission for a hearing.
The Commission on Human Rights
The Commission on Human Rights only has jurisdiction over private parties, not District of Columbia cases. Its procedure is as follows: Within 5 days of receipt of the Letter Of Determination from the Office of Human Rights, the Commission notifies the Complainant, Respondent and attorneys of record that the case has been certified to it. The parties are also informed that the Commission has legal jurisdiction and the case now becomes a public matter. The parties are then required to submit information and documents in accordance with the Automatic Disclosure Rule and a status conference is scheduled.
At the status conference, deadlines are set for discovery, dispositive motions and responses, which generally takes approximately 4 months. Dates are also established for the filing of pre-hearing statements, the pre-hearing conference, and the official hearing. It also allows the parties to entertain any motions and address any questions. At the end of the discovery period, the Respondent may request dismissal of the case, or part of it, if it is believed that a prima facie case was not supported by factual evidence. The pre-hearing conference generally addresses which witnesses and documents may be admitted into evidence, elicits any stipulations agreed upon by the parties, narrows the issues where possible, and entertains any motions.
The official hearing is conducted similarly to a court trial, where the Hearing Examiner acts as the presiding judge. There is testimony and cross-examination of witnesses on both sides and documents are entered into evidence. In instances where the Complainant is unable to obtain private counsel, the government obtains and pays for an attorney (unless one volunteers), as well as for interpretation, translation and transcription services relating to the proceedings. Following the hearing and after the transcripts are received by the parties, post-hearing briefs may be filed. These briefs include each party's Findings of Fact that they believe have been proven, as well as the conclusion of law derived from those findings.
The Hearing Examiner then issues a Proposed Decision and Order that includes the Findings of Fact and the conclusions of law. If it is determined that the DC Human Rights Act was violated, the Order will include a remedy provision. At this stage, since the hearing was conducted by a Hearing Examiner, the Proposed Decision and Order is only a recommendation to the Commission. A closed tribunal meeting then takes place where at least 3 Commissioners read the entire record, examine the documents contained in the file, and make a determination whether to accept, reject or modify the Proposed Decision and Order. The Commissioners' decisions are final and enforceable, however, there are provisions for reconsiderations and appeals. Parties also have a right to appeal the Commissioners' decisions directly to the DC Court of Appeals. The DC Court of Appeals may either accept the case or remand it to the Commission for further proceedings.
Now I would now like to address our fiscal years 2004 and 2005 performance. OHR exceeded expectations on 6 and met expectations on 3 of its 9 performance goals. Based on the weights assigned to the agency goals, OHR scored 127.8 of its agency's strategic result goals and special initiatives.
First, let me begin by addressing our cases:
- Aged Cases
These are cases that have been in the OHR inventory for more than 270 days and they are defined by OHR as "Aged Cases". When I arrived at OHR in June 2003, the number of aged cases in the OHR inventory was 341. In my first 2 ½ months, we reduced this number to 299 and by September 30th, 2004 the Agency met its scorecard goal of having no more than 300 cases in its aged inventory. In fiscal year 2004, the Scorecard goal was set at 240 cases and at the end of FY04, we achieved a number of 190 cases, thereby surpassing the Scorecard goal again. Therefore, in 15 months, we have successfully reduced the number of backlogged cases by more than 44 %. At the end of January, 2005, we stood at 205 cases.
- Pending Cases
This is the total number of cases, including aged cases. When I arrived at OHR, the number of pending cases was 482, and by September 30, 2003, it was 411. At the end of FY2004, our total Pending Cases inventory was 432. As of January 2005, this number stood at 392 cases. We have now reduced the total number of cases by almost 19%.
- Monetary Awards
Regarding the dollar value of benefits awarded to complainants, in fiscal year 2003, we awarded a total of $ 933,068.00, in FY2004 we awarded a total of $1,355,454.16 and in FY 2005 to date, we have awarded a total of $217,353.57. We are very pleased with the progress made in negotiating settlements and awards for Complainants and I believe that we have certainly sent the message that we take the business of ensuring the protection of one's human rights very seriously. We have been vigorous in making sure that Complainants receive just compensation for discriminatory acts taken against them.
- Outreach and Education
The Office of Human Rights conducts training, outreach and education targeting residents, industry workers, and government and private sector employees to increase awareness of unlawful discriminatory practices under the DC Human Rights Act as well as other federal statutes. In addition, the Housing Unit conducts specific training, outreach and education seminars geared towards the housing, banking and real estate professions, and to minority and immigrant groups where there appears to be a prevalence of discrimination in housing matters. For fiscal year 2004, we reached a total of 3,549 individuals and in FY 2005 to date, we have already reached 480 individuals. OHR also provides Diversity training to District agencies and conducts a 32-hour EEO training session to all EEO counselors throughout the D.C. government.
- Fair Housing Initiatives
The Housing Unit is specifically designed to address discrimination matters in the housing industry. OHR has a grant from HUD in the amount of $145,000 which supports a staff of three and provides for the publication and distribution of brochures and other types of literature pertaining to an individual's rights as well as the responsibilities of landlords, lending institutions and property managers. Additionally, the Housing Unit also conducts an annual Fair Housing symposium, which I referred to earlier. At the end of FY2004, the Housing Unit had a pending inventory of 59 cases and closed a total of 30 cases during that year. In FY 2005 to date, the pending inventory stood at 46 cases and we have already closed 27 cases this year.
Let me now address the new initiatives we started in Fiscal year 2004 and are now fully operational.
- Language Access
In fiscal year 2004, the Council passed legislation enacting the Language Access Act of 2004, to provide greater access and participation in public services, programs and activities for residents of the District of Columbia with limited or no English proficiency. The Act established the Office of Human Rights as the agency responsible for implementing its requirements and to oversee all District agencies in their participation and fulfillment of these requirements. The funding was established at $300,000 for the recruitment of a Language Access Director and a Staff Assistant, and for assisting other agencies in translating documents that are disseminated to the public. Eight (8) agencies were identified in the Act as agencies that must by in compliance by the end of FY2004, 6 more are identified in FY2005 and 8 for FY2006. In FY 2004, we funded the translation of 255 documents at a cost of $190,629.00. Language Access Coordinators have been identified in each agency; and there is a partnership between OHR, OLA and OAPIA regarding each agency's respective role under the Act. We meet monthly with the Language Access Coalition for their input and consultation. We continue to make progress in communicating the benefits of this Act to the general public and in holding agencies accountable for fulfilling their requirements under it. Agencies have been extremely supportive and we have already seen the overall benefits this Act brings to the District of Columbia.
- The National Fair Housing Training Academy
In April 2004, we signed an MOU with the HUD Office of Fair Housing and Equal opportunity, to establish a National Fair Housing Training Academy in Washington, DC. This is a training institute located at Howard University, and representatives from all states attend this Academy to learn of the various fair housing laws and how to apply them consistently. HUD also provides training dollars to all states to attend this Academy. In terms of its funding, $1 million was awarded in FY2004, $2m is the amount of the FY2005 allocation, and we expect between $2m and $2.5m in FY2006. OHR receives approximately 15% of each award for the administrative support we provide to the Academy.
Finally, I would like to address the OHR FY 2004 Performance Evaluation and our overall budget picture. I am especially proud to report that the Office of Human Rights Significantly Exceeded or Exceeded all of its Scorecard goals for fiscal year 2004. Our goals, established for Equal Justice and Agency Management, primarily focus on docketing and investigating cases and issuing LOD's; providing training to District agencies; and managing the Office effectively and efficiently. I submitted a copy of this evaluation earlier to your office.
Regarding our overall budget, other than the increases for Language Access and the HUD Training Academy, OHR's budget has essentially remained constant. Our position ceiling remains at 28 positions, down from the 33 that were authorized in FY2003. We lost a total of 7 positions because they were unfunded, and we added 2 positions for Language Access implementation. There was also a slight increase for central support charges from the Office of Property Management for utilities, rent, communications, etc.
Since my arrival, I have identified several deficiencies at the Office of Human Rights and have taken concrete steps to alleviate many of them. I strongly believe that we are on the right track in that we have addressed many of the operational problems that existed when I arrived. We have been vigorous in our efforts to reduce the number of Aged cases; we have implemented productivity standards for our Investigators and are closely monitoring performance; we have reached out to a significantly greater number of individuals, both internally and externally with our Training, Outreach and Education efforts as well as our Diversity, Awareness and EEO efforts; and we have established better working relationships with other District agencies. I am extremely pleased with the progress we have made and continue to work each day, to improve our services to the residents of the District and to make the Office of Human Rights a responsive agency.
In closing, I once again thank each and every member of this Committee for the opportunity to testify before you today. At this time I am prepared to answer any questions that you may have.