- REVIEW OF THE OFFICE OF THE ASSISTANT SECRETARY FOR CIVIL RIGHTS

[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]

REVIEW OF THE OFFICE OF THE ASSISTANT SECRETARY FOR CIVIL RIGHTS

=======================================================================

HEARING

BEFORE THE

SUBCOMMITTEE ON NUTRITION, OVERSIGHT, AND DEPARTMENT OPERATIONS

OF THE

COMMITTEE ON AGRICULTURE
HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTEENTH CONGRESS

FIRST SESSION

__________

NOVEMBER 19, 2019

__________

Serial No. 116-25

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

Printed for the use of the Committee on Agriculture
agriculture.house.gov

______

U.S. GOVERNMENT PUBLISHING OFFICE
40-400 WASHINGTON : 2020

COMMITTEE ON AGRICULTURE

COLLIN C. PETERSON, Minnesota, Chairman

DAVID SCOTT, Georgia K. MICHAEL CONAWAY, Texas, Ranking
JIM COSTA, California Minority Member
MARCIA L. FUDGE, Ohio GLENN THOMPSON, Pennsylvania
JAMES P. McGOVERN, Massachusetts AUSTIN SCOTT, Georgia
FILEMON VELA, Texas ERIC A. ``RICK'' CRAWFORD,
STACEY E. PLASKETT, Virgin Islands Arkansas
ALMA S. ADAMS, North Carolina SCOTT DesJARLAIS, Tennessee
Vice Chair VICKY HARTZLER, Missouri
ABIGAIL DAVIS SPANBERGER, Virginia DOUG LaMALFA, California
JAHANA HAYES, Connecticut RODNEY DAVIS, Illinois
ANTONIO DELGADO, New York TED S. YOHO, Florida
TJ COX, California RICK W. ALLEN, Georgia
ANGIE CRAIG, Minnesota MIKE BOST, Illinois
ANTHONY BRINDISI, New York DAVID ROUZER, North Carolina
JEFFERSON VAN DREW, New Jersey RALPH LEE ABRAHAM, Louisiana
JOSH HARDER, California TRENT KELLY, Mississippi
KIM SCHRIER, Washington JAMES COMER, Kentucky
CHELLIE PINGREE, Maine ROGER W. MARSHALL, Kansas
CHERI BUSTOS, Illinois DON BACON, Nebraska
SEAN PATRICK MALONEY, New York NEAL P. DUNN, Florida
SALUD O. CARBAJAL, California DUSTY JOHNSON, South Dakota
AL LAWSON, Jr., Florida JAMES R. BAIRD, Indiana
TOM O'HALLERAN, Arizona JIM HAGEDORN, Minnesota
JIMMY PANETTA, California
ANN KIRKPATRICK, Arizona
CYNTHIA AXNE, Iowa

______

Anne Simmons, Staff Director

Matthew S. Schertz, Minority Staff Director

______

Subcommittee on Nutrition, Oversight, and Department Operations

MARCIA L. FUDGE, Ohio, Chair

JAMES P. McGOVERN, Massachusetts DUSTY JOHNSON, South Dakota,
ALMA S. ADAMS, North Carolina Ranking Minority Member
JAHANA HAYES, Connecticut SCOTT DesJARLAIS, Tennessee
KIM SCHRIER, Washington RODNEY DAVIS, Illinois
JEFFERSON VAN DREW, New Jersey TED S. YOHO, Florida
AL LAWSON, Jr., Florida DON BACON, Nebraska
JIMMY PANETTA, California JIM HAGEDORN, Minnesota

Jasmine Dickerson, Subcommittee Staff Director

(ii)

C O N T E N T S

----------
Page
Conaway, Hon. K. Michael, a Representative in Congress from
Texas, opening statement....................................... 4
Fudge, Hon. Marcia L., a Representative in Congress from Ohio,
opening statement.............................................. 1
Prepared statement........................................... 3
Submitted statement on behalf of Shawn S. McGruder, J.D...... 21
Johnson, Hon. Dusty, a Representative in Congress from South
Dakota, opening statement...................................... 4

Witness

Earp, Hon. Naomi C., Deputy Assistant Secretary for Civil Rights,
U.S. Department of Agriculture, Washington, D.C................ 5
Prepared statement........................................... 6
Submitted questions.......................................... 29

REVIEW OF THE OFFICE OF THE ASSISTANT SECRETARY FOR CIVIL RIGHTS

----------

TUESDAY, NOVEMBER 19, 2019

House of Representatives,
Subcommittee on Nutrition, Oversight, and Department
Operations,
Committee on Agriculture,
Washington, D.C.
The Subcommittee met, pursuant to call, at 2:14 p.m., in
Room 1300 of the Longworth House Office Building, Hon. Marcia
L. Fudge [Chair of the Subcommittee] presiding.
Members present: Representatives Fudge, Adams, Hayes,
Schrier, Van Drew, Lawson, Panetta, Plaskett, Peterson (ex
officio), Johnson, Davis, Bacon, Hagedorn, and Conaway (ex
officio).
Staff present: Kellie Adesina, Malikha Daniels, Jasmine
Dickerson, Patricia Straughn, Jennifer Tiller, Dana Sandman,
and Jennifer Yezak.

OPENING STATEMENT OF HON. MARCIA L. FUDGE, A REPRESENTATIVE IN
CONGRESS FROM OHIO

The Chair. Forgive me for being a little tardy this
afternoon.
This hearing of the Subcommittee on Nutrition, Oversight,
and Department Operations entitled, Review of the Office of the
Assistant Secretary for Civil Rights, will come to order.
I am going to start with opening statements.
Good afternoon, and thank you for joining us today. The
purpose of today's hearing is to ensure the Department of
Agriculture functions equally for everyone it serves and
employs, regardless of race, gender, ethnicity, or any other
protected class.
It is no secret that the USDA has had a controversial
history on civil rights. Stories of inconsistent access to USDA
programs for socially disadvantaged farmers and ranchers, and
unfair treatment of minority women and disabled employees at
the Department, no longer wait in the shadows to be discovered.
The Department has committed its wrongs under Democratic
and Republican Administrations alike and we can't move to a
place of progress on the issue of civil rights without
acknowledging that dual responsibility is a key factor in how
we got here.
Civil rights, the equal treatment of everyone in the
building and outside of it, is fundamentally bigger than the
blue/red lens we see things through these days. It is incumbent
on all of us to make sure past wrongs are righted.
Furthermore, the emergence of recent stories from current
and former staff within the Office of Civil Rights gives us
reason to dig deeper into your leadership and similar actions
and patterns from USDA in the past.
To do that, USDA must continue to build on the framework
designed by the Obama Administration under then-Secretary
Vilsack, to address Department-wide systemic discrimination.
That is the only way USDA can begin to make real and
fundamental changes in its approach to ensuring fair and equal
treatment of minorities, women, and protected classes, both
internal and external to the Department.
We have seen the Department pay millions in settlements to
black farmers and employees as a part of class actions, and
while this represents a much-needed closing of a chapter, it is
one chapter in a saga of wrongdoings. It does nothing to
address the root cause of the disease.
The responsibility now starts and ends with you. In
preparation for today's hearing, the Subcommittee staff
contacted USDA on November 12, to request information on the
number of vacancies in your office over the last 4 years. Staff
also requested details on any management inquiries or reports
initiated by employees during your current tenure.
To date, we have yet to receive the information we asked
for. The most recent email response from USDA received at 8:40
a.m. this morning lacks sufficient detail and failed to address
the Subcommittee's initial inquiry. I can only assume the
decision to provide such a response on the morning of today's
hearing is intentional.
However, we do know from the information you shared with my
office, is there have been significant declines in the number
of employees in the Office of Civil Rights from Fiscal Year
2016 to Fiscal Year 2019. There are also inconsistencies and
missing information in the data your office shared regarding
the number of EEO complaints across the Department. The
information only shows data for ten of the 29 USDA agencies,
and out of over 300 complaints filed by employees across the
ten agencies in Fiscal Year 2019, there were only two findings
of wrongdoing out of 300.
Given USDA's very recent history, I don't understand how
that is possible. The lack of findings raises serious questions
about the EEO process within your office. Even more troubling
is your reported history of a lack of EEO findings at your
previous places of employment.
Ms. Earp, the Secretary often says USDA's mission is to,
and I quote, ``Do right and feed everyone.'' Your charge, Ms.
Earp, is to make sure the Department doesn't just feed
everyone, it must also do right by everyone, employees and
stakeholders alike.
While this is not a confirmation hearing, we are here to
make sure that you fulfill that purpose and to make sure that
USDA is better off with your being there. That is the job you
were sent there to do. Similarly, it is my responsibility to
hold you accountable in that work. That is the job I was sent
here to do, and I intend to do it.
[The prepared statement of Ms. Fudge follows:]

Prepared Statement of Hon. Marcia L. Fudge, a Representative in
Congress from Ohio
Good afternoon, and thank you for joining us today.
The purpose of today's hearing is to ensure the Department of
Agriculture functions equally for everyone it serves and employs,
regardless of race, gender, ethnicity, or any other protected class.
It's no secret that USDA has had a controversial history on civil
rights. Stories of inconsistent access to USDA programs for socially
disadvantaged farmers and ranchers, and unfair treatment of minority,
women, and disabled employees at the Department no longer wait in the
shadows to be discovered.
The Department has committed its wrongs under Democratic and
Republican Administrations alike, and we can't move to a place of
progress on the issue of civil rights without acknowledging that dual
responsibility as a key factor in how we got here.
Civil rights--the equal treatment of everyone in the building and
outside of it--is fundamentally bigger than the blue-red lens we see
things through these days.
It is incumbent on all of us to make sure past wrongs are righted.
Furthermore, the emergence of recent stories from current and
former staff within the Office of Civil Rights gives us reason to dig
deeper into your leadership and similar actions and patterns from USDA
in the past.
To do that, USDA must continue to build on the framework designed
by the Obama Administration, under then-Secretary Vilsack to address
Department-wide, systemic discrimination.
That is the only way USDA can begin to make real and fundamental
changes in its approach to ensuring fair and equal treatment of
minorities, women, and protected-classes both internal and external to
the Department.
We've seen the Department pay millions in settlements to black
farmers and employees as part of class-action suits. And, while this
represents a much-needed closing of a chapter, it is one chapter in a
saga of wrongdoings.
It does nothing to address the root cause of the disease.
The responsibility now starts and ends with you.
Ms. Earp, in preparation for today's hearing, Subcommittee staff
contacted USDA on November 12, to request information on the number of
vacancies in your office over the last 4 years.
Staff also requested details on any management inquiries or reports
initiated by employees during your current tenure.
To date, we have yet to receive the information we asked for.
The most recent email response from USDA, received at 8:40 a.m.
this morning, lacked sufficient detail and failed to address the
Subcommittee's initial inquiry.
I can only assume the decision to provide such a response, on the
morning of today's hearing, is intentional.
However, what we do know from the information you shared with my
office, is there have been significant declines in the number of
employees in the Office of Civil Rights from Fiscal Year 2016 to Fiscal
Year 2019.
There are also inconsistencies in the number of EEO complaints
Department-wide. The figures your office shared show out of over 300
complaints filed by employees, across ten agencies in Fiscal Year 2019,
there were only two findings of wrongdoing.
Given USDA's very recent history, how is this possible?
The lack of findings raises serious questions about the EEO process
within your office. Even more troubling is your reported history of a
lack of EEO findings at your previous places of employment.
Ms. Earp, the Secretary often says USDA's mission is to ``do right
and feed everyone.''
Your charge, Ms. Earp, is to make sure the Department doesn't just
feed everyone, it must also do right by everyone--employees and
stakeholders alike.
While this is not a confirmation hearing, we are here to make sure
that you fulfill that purpose, and to make sure that USDA is better off
with you being there.
That's the job you were sent there to do.
Similarly, it's my responsibility to hold you accountable in that
work.
That's the job I was sent here to do, and I intend to do it.

The Chair. Ranking Member Johnson, you are recognized for
your opening statement.

OPENING STATEMENT OF HON. DUSTY JOHNSON, A REPRESENTATIVE IN
CONGRESS FROM SOUTH DAKOTA

Mr. Johnson. Thank you, Madam Chair, and welcome, Ms. Earp.
Thank you for taking the time to discuss with us this important
work. We can all agree it is really important work that your
office, the Office of the Assistant Secretary for Civil Rights,
or OASCR, is doing.
I want to first recognize your service to this country. We
don't often do that enough in this town, but thank you. You
have dedicated yourself to the American people, and to the
agencies that serve them and need to serve them fairly, for
decades. You have been both the Chair and the Vice Chair of the
Equal Employment Opportunity Commission. You have had to work
through a variety of circumstances in your current job and past
ones that I am sure at times brought you joy in being able to
help people, and at different times has provided lots of
personal reflection. I can't imagine your job currently or
those in the past have been very easy.
OASCR provides overall leadership, coordination, and
direction for USDA's civil rights programs, including matters
related to program delivery, compliance, and equal opportunity.
Its mission is to provide leadership and direction for the fair
and equitable treatment of all USDA customers and employees. As
the Chair said, ``those inside the building and out,'' while
ensuring the delivery of quality programs and the enforcement
of civil rights.
You, Ms. Earp, are at the helm of one of the most important
divisions of USDA. As you and I have talked in the past, you
have educated me to the extent which your team manages the
complaint processes, enforces compliance, conducts trainings,
provides technical assistance, and drafts impact analyses. That
makes it clear to me that yours is certainly not a division
without work, lots and lots of important work.
Your testimony today, I suspect, will highlight your
commitment to civil rights. I know your written testimony has
done so. Including building strategic partnerships,
accountability, and prevention.
It is evident by the reports I see from the Department that
progress is being made. Not to say that the job is done, but
progress is being made, and I hope that today's hearing permits
you to discuss accomplishments and where you see the division
going in 2020 and beyond.
Again, I just want to thank you for your service. I want to
thank you for being here, and I look forward to today's
discussion.
The Chair. Mr. Conaway, would you like to make an opening
statement?

OPENING STATEMENT OF HON. K. MICHAEL CONAWAY, A REPRESENTATIVE
IN CONGRESS FROM TEXAS

Mr. Conaway. Yes, ma'am. Thank you very much.
I join my colleagues in welcoming the Deputy Assistant
Secretary of Civil Rights, Ms. Naomi Earp, here today. My notes
say to brag on your decades-long service to our Federal
Government and our nation. I probably shouldn't use the words
decades long, because I am not making reference to anything
that might get me in trouble.
But more importantly, Ms. Earp, your personal story is
inspiring on every single level. No matter where you come from
in this nation, where you started, knowing your story, knowing
your success, knowing your path inspires all of us. Throughout
your work you have pushed the issues of affirmative action,
equal opportunity, diversity, and inclusion forward to our
nation's benefit, and so thank you for that.
I am glad you are back at USDA, because there is work to be
done, and to make certain that no customer or employee is
treated unfairly or inequitably. None of us would stand for
that if it happened to us individually, and we shouldn't stand
for it happening to somebody else, and you are at the pointy
end of the sword at USDA to make sure that folks are treated
fairly and equitably.
Thank you for coming here today. I hope we spend our time
talking about the progress you have made at the agency and
things that are under your direct control.
And again, thank you for your service to our nation, and I
am looking forward to your testimony.
And, Madam Chair, thank you for the opportunity to say a
few words. Thank you.
The Chair. Thank you. The chair requests that other Members
submit their opening statements for the record so that the
witness may begin her testimony and to ensure that there is
ample time for questions.
I would like to welcome our witness, Deputy Assistant
Secretary for Civil Rights, Naomi Earp.
Ms. Earp oversees the Office of the Assistant Secretary for
Civil Rights at the U.S. Department of Agriculture. She was
nominated by the President on January 28, 2019, and is
currently awaiting confirmation by the United States Senate.
We will now proceed to hearing your testimony. You will
have 5 minutes. When 1 minute is left, the light will turn
yellow, signaling it is time for you to begin to close.
Deputy Assistant Secretary Earp, please begin when you are
ready.

STATEMENT OF HON. NAOMI C. EARP, DEPUTY ASSISTANT SECRETARY FOR
CIVIL RIGHTS, U.S. DEPARTMENT OF
AGRICULTURE, WASHINGTON, D.C.

Ms. Earp. Thank you, Madam Chair. Good afternoon, Madam
Chair, Ranking Member Johnson, Members of the Subcommittee.
Thank you for the opportunity to provide an update on the
activities and programs of USDA's Office of the Assistant
Secretary for Civil Rights, pronounced OASCR.
I was appointed Deputy Assistant Secretary on January 29,
2019, the same day Federal employees returned to work after the
shutdown.
On my first day we had to develop a plan for addressing
thousands of emails, regular letters, and telephone messages
that backlogged during the shutdown. From that day to this one,
I have worked to strengthen the Department's emphasis on civil
rights, including strategic partnerships, accountability, and
proactive prevention of discrimination. In short, we have taken
several initiatives, but I acknowledge that more needs to be
done.
OASCR's mission is to mitigate and eliminate barriers to
equal opportunity and equal access by embedding in my mind
civil rights consciousness into all the hundreds of programs
and services delivered by USDA. We do this through outreach,
prevention strategies, effective and efficient complaint
processing, barrier and impact analysis, but most of all,
strong leadership.
I want to highlight USDA's first American Diversity Month,
ADM, held last July. The idea was to focus on being one USDA.
Several ADM activities are mentioned in my written comments.
Today I just want to reference the American Sign Language
presentation.
The ASL interpreters were also dancers and performance
artists. They use sign language, their bodies, facial
expressions, and groans to portray a song. Typically it is just
the deaf or hard of hearing employees who need a sign language
interpreter to understand, but during this presentation, we all
needed the interpreter to fully comprehend what was going on.
The performance was especially powerful because it helped to
create empathy and connection for USDA employees in an
inclusive environment. This is the kind of meaningful
experience we hope to provide as ADM becomes an annual
awareness program.
A few other successes in my time with USDA include reducing
program complaint processing time from 595 days to 420;
elevating the EEO program from 61 percent compliance to 80
percent compliance; we have held three personal meet-and-greet
accountability sessions with State Directors in Oklahoma,
Georgia, and Alabama; we followed up Oklahoma with an onsite
review; we reinstituted report filings, specifically No FEAR
and the Farm Bill Annual Report to create better transparency
for Congress; we performed the Civil Rights Impact Analysis or
provided technical assistance in 199 mission activities
including reorganizations, advisory committees, and
regulations.
Finally, I would like to say a word about my staff. OASCR's
plate is full of challenging but critical work. My staff's
commitment to USDA employees and customers is seen in our
improved performance. I thank them for the work that they do
and the way they stretch to meet challenges. I come to USDA
with a sense of urgency about what needs to be done, and I come
fully committed to the equal opportunity and civil rights of
every employee and every customer that USDA serves.
Again, Madam Chair, my thanks to you, Ranking Member
Johnson, and Members of the Subcommittee for this very
important hearing.
I look forward to answering your questions.
[The prepared statement of Ms. Earp follows:]

Prepared Statement of Hon. Naomi C. Earp, Deputy Assistant Secretary
for Civil Rights, U.S. Department of Agriculture, Washington, D.C.
Madam Chair, Ranking Member, and Members of the Subcommittee, thank
you for the opportunity to provide you an update on the activities and
programs of the United States Department of Agriculture's Office of
Civil Rights. It is an honor to sit before you today.
Almost 1 year has gone by since I shared with Congress my
commitment to advance Secretary Perdue's vision for USDA to ``Do Right
and Feed Everyone.'' My role at the Office of Civil Rights is to expand
on this vision be ensuring USDA is a department that does right by all
people, at all times, and in all locations.
Since being appointed as Deputy Assistant Secretary of Agriculture,
I have worked to enhance the Department's emphasis on civil rights
including strategic partnerships across missions, accountability, and
prevention. During my short time here, I have already undertaken
several initiatives and set many more in motion that are designed to
further weave civil rights into the fabric of the department's
activities.
The mission of the Office of the Assistant Secretary for Civil
Rights (OASCR) is to mitigate and eliminate barriers to equal
opportunity and equal access by implementing outreach and prevention
programs, processing civil rights complaints of discrimination from
employees and customers, and advising other mission areas on policies
that may have a disparate impact on certain groups. My office serves a
leadership role on civil rights at the Department, ensuring a OneUSDA
approach to managing civil rights programs throughout the USDA's
mission areas and subcomponent agencies.
Educating and highlighting civil rights topics to all USDA
employees is critical. This summer, I developed and implemented USDA's
first American Diversity Month. This was an innovative approach
highlighting the intersection between civil rights and the agricultural
mission of the Department. We held programs illustrating effective
methods for conducting outreach at the State Director-level, Native
American Influences on American Agriculture, Women in Fire, a mentoring
event, and a student intern symposium. These efforts were well received
by staff and we look forward to enhancing their impact again next year.
The Office of Civil Rights also leads USDA's consideration of
employee civil rights complaints. Less than 1 year ago today, it took
an average of 595 days to investigate a claim. This prolonged justice
and resolution created uncertainty for our customers and employees.
Since coming to USDA, I have reduced average investigations to an
average of 420 days. While our team has worked hard to achieve this 30%
reduction in processing time, clearly there is more to be done and I am
committed to achieving more moving forward. I am working with the
Office of the Chief Information Officer to improve our complaint
management system that will allow us to be more efficient and continue
to improve performance.
Further, I have also engaged and advised USDA State Directors in
complaint resolution and compliance and outreach to improve customer
service and equal access to farm programs. I completed engagements in
Alabama, Oklahoma, and Georgia that resulted in State Director
commitment to strengthening both of these areas.
Additionally, OASCR devotes significant time to conducting civil
rights impact analysis (CRIA). Congress has affirmed the importance of
this work in the 2018 Farm Bill. The CRIA process is a useful tool to
understanding, and when necessary, mitigating impact of the
organization's proposed or planned activities. I am hopeful this
process will enhance CRIA's usefulness as a tool in each Mission's
work.
Another area of work to highlight, is our strengthened partnerships
with Mission Areas through the establishment of the Mission Area
Liaison Office. Thus far, the establishment of the Mission Area Liaison
Office has led to productive collaboration across our subcomponent
organizations and resulted in streamlined efforts.
For example, the new strategic model has allowed me to work closely
and regularly with the Forest Service to address harassment allegations
in the workplace. The Forest Service Office of Work Environment and
Performance is coordinating efforts, instilling best practices for
prevention and employee support, and investigating work environment
claims. Employees are being held accountable for their actions through
removals, demotions, suspensions and other employee actions. In
prevention efforts, the Forest Service has added employee training,
banned alcohol in agency-owned employee quarters, and has added
additional safeguards to the hiring process. OASCR will continue to
work with Forest Service teams to ensure continued progress.
Finally, I would like to say a few words about my staff. Our plate
is full of challenging but critical work. Their daily commitment to our
employees and our customers is seen by our shared efforts to improve
performance and compliance. I look forward to continuing our progress.
My thanks to you Madam Chair, Ranking Member, and Members of the
Subcommittee for holding a hearing on a topic of such importance. I
look forward to answering your questions.

The Chair. Thank you very much.
Now, we may have votes called within the next half an hour.
Depending upon how many votes there are, we will make a
decision as to whether we should adjourn or whether we are
going to be able to come back, because if there are a lot of
them we may be gone a long time. We don't want to put you
through that.
I would now recognize Ms. Adams, from North Carolina, for 5
minutes.
Ms. Adams. Thank you, Chair Fudge and Ranking Member
Johnson for hosting today's hearing, and to our witness, Deputy
Assistant Secretary for Civil Rights. Ms. Earp, thank you so
much for being here.
I am very invested in the work of the Civil Rights Office
at USDA, and deeply concerned with the state of black farmers
across our country. Black farmers have lost 80 percent of their
farmland over the last century and dropped from 14 percent to
less than two percent of farmers. And while the number of black
farmers increased slightly in the latest Census of Agriculture,
black farm ownership is declining faster for black farmers than
for other farmers.
The work of your office is vital to ensuring that these
devastating trends and the discrimination that has caused them
is addressed.
Ms. Earp, North Carolina is the third largest poultry
producing state in the U.S. with more than 3,000 poultry farms,
and in a state where the population is 22 percent black, only
54 of those farms have an African American as its principle
producer. That is only 1.8 percent.
And my state is doing better than others. Nationally,
African Americans make up only one percent of poultry
producers. I have heard concerns in other parts of the country
regarding black farmers being discriminated against through
livestock contract grower relationships, and I want to be sure
that those concerns are being taken seriously.
My question is, what work have you and your office done to
look into this issue, and when can we expect to see a farmer
fair practice final rule released?
Ms. Earp. Thank you for the question.
As has been stated, the Office of Civil Rights has no
direct responsibility over any of the mission areas, especially
not those that give loans or those that are involved with
direct farming. What our responsibility is, is outreach to the
community and work with employees and management to ensure that
civil rights is a part of decisions made.
I know that there is litigation currently involving chicken
farms and whether or not there is discrimination in the way
contract decisions are made, so I don't know that I can talk
specifically about that. But what I can say is that we partner
every day with FSA to make sure that small and under-resourced
farmers have access.
We spend time in outreach. I personally am reaching out to
State Directors because small farmers tell me that the biggest
barrier to them is what happens at the local level. We are
putting strategies in place to try to address exactly what goes
on in the field.
Ms. Adams. Okay. So you don't have any connection at all in
terms of the farmer fair practice rule? Your office doesn't do
anything with that? Is that what you are saying?
Ms. Earp. Our office adjudicates the 1964 Civil Rights Act.
Ms. Adams. Okay. So let me just stop you for a moment and
ask. Are you able to get for me or this Committee the rule and
when it is going to be released? Can we get a copy of that? Are
you able to access that?
Ms. Earp. Yes, ma'am, I would be happy to.
Ms. Adams. If you would, okay, thank you. So, let me ask
you. Recently, records were obtained through an FOIA request
which show that USDA has foreclosed on black-owned farms at a
higher rate than other racial groups. Our farmers, black
farmers, make up less than three percent of USDA direct loan
recipients. They make up more than 13 percent of farms that
were foreclosed.
Can you speak to how your office is working to help address
this disparity and to increase fair lending practices for these
farmers?
Ms. Earp. When we have been notified that a farmer is in
danger of acceleration or foreclosure, we have immediately
reached out to the Civil Rights Office at FSA.
Recently, I met with the Deputy Secretary of USDA to talk
about trends that we see with foreclosures. I have a follow-up
meeting that will be scheduled sometime in the next few weeks
to talk about what USDA may be able to do to stem the what
appears to be rising number of foreclosures.
Ms. Adams. You don't have any real ideas about how you
might help with that? Are you all still having discussions?
Ms. Earp. If a farmer believes that the foreclosure is
discriminatory and they file a complaint with the Office of
Civil Rights, the first thing that we would do is get that
foreclosure to be held in abeyance while we process the
complaint.
Ms. Adams. Thank you very much. I am out of time.
The Chair. Thank you very much.
The Chair of the full Committee has joined us. Would you
like to make a comment? If not, I would recognize the Ranking
Member, Mr. Johnson, for 5 minutes.
Mr. Johnson. I would defer my time to one of my colleagues.
I will pick it up toward the end, if that is okay, Madam Chair?
Mr. Bacon. Thank you, Madam Chair. Thank you, Ranking
Member.
I want to second Mr. Conaway's comments, Mrs. Earp, on your
extraordinary career. You were hired as a GS-9, you have been
climbing the ladder and promoted to the very top, so we
appreciate you being here and we appreciate your leadership.
Ms. Earp, the Department of Agriculture is a complex
agency, we get that. There are over 300 programs, 110,000
employees. As Mr. Johnson noted in his opening comments, and
you also touched on it, there is a downward trend in complaints
resulting in less than \1/2\ of 1 percent of employees at the
agency filing complaints, and we hope this trend continues. And
you noted yourself that you are not satisfied with that. You
want to get even better, and we appreciate that attitude and
that spirit.
Can you discuss how you work to improve and increase
collaboration among divisions, programs, employees, and
customers? All these different organizations, is it hard to
weave them together with what you are working on. How do you do
that?
Ms. Earp. The main thing we have been working on in the 9
months that I have been there is to operationalize exactly what
One USDA means. We spend considerable time with the mission
area civil rights directors. We also spend time in program
areas.
The fact is, the complexity of USDA means that we can't
just come to the table with civil rights experience. We need to
understand how loans are put together and what makes for a
solid financial plan versus one that does not.
From an operational level, I am working to get civil rights
directors to see a picture larger than their mission area. As
the Chair has noted, civil rights work is critically important,
so it can't be done just based on loans or processing chickens.
It has to be as big as the people whose shoulders we stand on
and the work that has been done leading us to this point.
Collaboration is essential to partnerships. Civil rights can do
nothing without the active partnership of mission areas.
Mr. Bacon. I can associate and relate to what you are
saying. I was 30 years in the Air Force. We have a very diverse
command. We have had to do the same things and build this
program and every organization, many of them so diverse, 20
different missions, and it takes a different outlook in each
one to get it right.
A follow up: Your testimony highlights the enactment of the
USDA's first American Diversity Month. Can you expand upon your
written comments as to its success and your plans for 2020?
Ms. Earp. American Diversity Month is based on the idea of
One USDA. It is also based on preventive steps being taken.
Last summer's program included not just the reasonable
accommodation with sign language interpretation, but there was
a session on mentoring. There was a session on how State
Directors, specifically in FSA, can outreach to communities
that have been under-served previously.
The State Director that we brought to town changed his
outreach numbers, he is brand new, from three the prior year to
90 this year, reaching out to Native American and African
American communities.
We also did a presentation on just building one single
philosophy around civil rights. We hope to institutionalize
American Diversity Month and make it an annual program,
substantive seminars the entire way.
Mr. Bacon. Thank you, Mrs. Earp, or Ms. Earp. I appreciate
your input. I echo, too, your comments on mentoring. We found
that with promotion disparity rates in the Air Force,
mentorship was the key to try to close that gap.
With that I yield back and I thank you for your time and
your expertise.
The Chair. Thank you. They have called votes, but we do
have time to hear from Mrs. Hayes of Connecticut. We will then
take a recess. We have two votes, so it shouldn't be too long.
Mrs. Hayes, you are recognized for 5 minutes.
Mrs. Hayes. Thank you. Hello, Deputy Assistant Secretary.
First, I would like to thank you for appearing before our
Committee today.
According to your Department, the average age of all
American farmers is 58 years old. To ensure the future success
of the agriculture industry it is vital that we begin infusing
the pipeline with new and young farmers, giving them the tools
that they need to succeed.
In my State of Connecticut, we have a program called the
UConn Extension Program, and it is working with the Connecticut
Department of Agriculture and the Connecticut Farmland Trust to
provide resources to new farmers, like education, access to
farmland, and ensure that their future agricultural workforce
is set up for success.
Just this week my office joined with the Housatonic Valley
Chapter of the Future Farmers of America Club to honor young
people who were already excelling in the field of agriculture,
specifically women. The USDA should be doing all they can to
support programs such as these.
What role do you believe the Office of Civil Rights has in
ensuring that programs administered by the USDA provide
outreach to communities historically underrepresented in the
agricultural industry, like young people, veterans, urban
communities, women, minority communities, or any
underrepresented group you can think of?
Ms. Earp. Thank you for the question. I do believe that
USDA is obligated and committed to have outreach programs that
reach into the demographics that you mentioned.
One thing that I would like to note about the older
farmers, especially African American and under-resourced
farmers, I was recently introduced to the Chairman of a group
called The Black Growers' Council. The President is 40-ish,
college educated. The group that he chairs, all African
American farmers from Texas to Virginia, farm 500 acres to
15,000 acres, all African American.
I think that so much of the emphasis has been put on under-
resourced farmers, that perhaps we missed the opportunity to
have dual outreach programs. This Black Growers' Council, they
don't borrow from USDA. They use USDA for technical assistance.
I think that we need to, given the youth and their investment
in technology, that they too are the future of farming.
Last summer I met with MANRRS (Minorities in Agriculture,
Natural Resources and Related Sciences). I have an intern.
MANRRS is the African American equivalent of FHA.
Mrs. Hayes. Yes.
Ms. Earp. I have a current intern, Doctoral student, who is
working remotely. I agree that there is much that we can do in
the way of outreach to bring in these groups that have been
underrepresented, but to also start looking at them with a
slightly different lens.
I am preparing to reach out to minority producers and
growers that are one step economically above what we normally
describe as under-resourced.
Mrs. Hayes. In that same vein, I know that under the Obama
Administration, the USDA implemented a range of programs that
were meant to address longstanding problems both internally and
with programmatic discrimination. These reforms included
development of intern-to-career programs, partnerships with
land-grant universities, and minority-serving institutions. Can
you tell me if your office has done anything under your
leadership to continue to expand those internship programs or
programs like those?
Ms. Earp. We have worked with the Office of Public
Partnership and Engagement for interns, specifically from
HBCUs, from organizations like MANRRS that I mentioned, and
Hispanic-serving institutions. We are working strategically to
increase the number of young people that are interested in
agriculture, and looking for opportunities including the summer
interns that I mentioned.
Mrs. Hayes. Thank you. And just for my own understanding,
the program that you are referring to is----
Ms. Earp. MANRRS?
Mrs. Hayes. Yes.
Ms. Earp. MANRRS is Minority, Agriculture--I will get you--
--
Mrs. Hayes. I could--would you?
Ms. Earp. Yes.
Mrs. Hayes. I would appreciate just having the information
for myself.
Ms. Earp. Yes, I will----
Mrs. Hayes. Thank you. Jahana Hayes from Connecticut.
Thank you so much. That is all I have. I yield back.
The Chair. Thank you. The Committee stands in recess to
reconvene immediately following the conclusion of this vote
series. Only two votes, so it should be fairly quick.
Thank you very much.
[Recess.]
The Chair. The Ranking Member is on his way, and I
understand that Mr. Davis is as well.
Since it really was going to be Mr. Johnson, I will ask my
questions at this time.
First, let me just say that I have in front of me a
personal statement from a Ms. Shawn S. McGruder that I would
like to enter into the record without objection. It is her
personal statement as to what she experienced as a member of
your staff.
[The information appears at the conclusion of the hearing:]
The Chair. Just a couple of questions. One, is I was
reviewing your hearing before the Senate Committee for your
confirmation, and I just want to be clear. Did you say that
sexual harassment was silliness?
Ms. Earp. I want to be clear. I absolutely did not, and
Senator Stabenow indicated during that hearing that she
understood what I meant. I was simply trying to say that
workplace behavior has a continuum. Some of it is incredibly,
incredibly serious and some of it is serious, but can be
addressed with, ``knock it off'' or ``stop.'' I want to be
clear also and lay to rest, I do not, have never considered
sexual harassment to be silly.
The Chair. Okay. I just want to be clear, because that is
what the record says.
Who did you bring with you today from your staff?
Ms. Earp. I brought my Chief of Staff, Lorena McElwain and
representatives from our Congressional Legislative Office. Do
you want them introduced?
The Chair. Show me who you are?
Yes. Okay, welcome.
To the response of, it was my colleague from Connecticut,
you talked about looking at farmers--thank you, Mr. Davis--
looking at minority farmers from a different lens.
All of us represent different types of people. I represent
very, very wealthy people and very, very poor people, and those
in the middle. I find that most of the time that I spend is on
those who have the most needs, which are the very poor or the
ones in between, and spend a lot less time on those who don't
need as much help.
Do you find that to be the case as well?
Ms. Earp. I find that I spend the majority of my time with
under-resourced farmers, and unfortunately it is in the process
of addressing their complaints.
The Chair. Okay. Since the beginning of your role, and I am
just going to be very honest, there are many of us who believe
that the Secretary appointed you after your confirmation
hearing just in an effort to really circumvent what the Senate
was going to do, so certainly some of us have some concern.
But let me just ask you, what steps have you taken to
continue to move the ball forward on how USDA addresses civil
rights? We know there is a history with this organization
before you got there. There has been a recorded history, not a
history that anyone has even decided was anything but what it
is, a history of discrimination. What have you done to try to
ease that or to try to make it better?
Ms. Earp. Let me just say I grew up in Newport News,
Virginia. I know exactly what segregation and discrimination
looks like. I started out as a social worker and went to law
school because I believed that I could make a greater impact
for my people, for my community, through the law rather than
through social work.
In terms of what I have done in the last 9 months, which is
just a beginning, is establish three basic priorities: farm
programs, retaliation, and sexual harassment. I thought that I
would be able to come in and immediately start working on farm
programs, but I found some deficiencies such as: reports of
discrimination that were poorly done, an attempt by staff to do
civil rights impact analysis without fully understanding the
difference between disproportionate impact, adverse impact, and
the need for baseline data before you can do either.
There is a lot of work that needs to be done in OASCR.
Every Assistant Secretary, Deputy Assistant Secretary, comes
with their own priorities. My predecessor had his, but it left
a lot of housekeeping things to do.
The Chair. I will come back in my closing remarks to a
couple of other things.
We have been joined by the Ranking Member, Mr. Johnson. You
are recognized for 5 minutes.
Mr. Johnson. I defer to the gentleman from Illinois, if it
is all right, if you are ready to go, sir?
The Chair. That is fine.
Mr. Davis. Sure. Thank you, Madam Chair, and Ranking
Member. And Ms. Earp, thank you, Madam Secretary, for being
here.
Your testimony states that the mission of the Office of
Assistant Secretary for Civil Rights is to mitigate and
eliminate barriers to equal opportunity and equal access by
implementing outreach and prevention programs, processing civil
rights complaints of discrimination from employees and
customers, and advising other mission areas on policies that
may have an unequal impact on certain groups.
As it relates to outreach and advocacy, I want to drill it
down a little bit. The Office of Advocacy and Outreach has four
main principles: improving the viability and profitability of
small and beginning farmers and ranchers, improving access to
USDA programs for historically under-served communities,
improving agricultural opportunities for farmworkers, and
closing the professional achievement gap by providing
opportunities to talented and diverse young people to support
the agricultural industry in the 21st century.
My question is, since your start with this Administration,
what have you done to enforce the principles of the Office of
Advocacy and Outreach?
Ms. Earp. May I start by saying the Office of Advocacy and
Outreach, per se, no longer exists. It has evolved into the
Office of Public Partnerships and Engagement, OPPE.
Mr. Davis. So, let me rephrase that. Since your start with
this Administration, what have you done to enforce the
principles of OPPE?
Ms. Earp. We worked with OPPE very closely on two of their
four outreach summits in 2019, Fiscal Year 2019. We plan to
have a similar collaboration with them in 2020, and we plan to
use OPPE's focus on prosperity to address some of the
fundamental issues with under-resourced farmers regarding
financial literacy.
Mr. Davis. Okay. The 2018 Farm Bill made many positive
strides relating to the mission of OPPE, including bolstering
the Beginning Farmer and Rancher Development Program by
specifically extending eligibility to our veterans and
connecting them with easy access to information, training,
education, apprenticeships, and hopefully ultimately good
careers in agriculture.
Building on these successes, are there other ways in which
we can work legislatively, and again, on a bipartisan basis, to
engage with new farmers and ranchers in a way that furthers the
work that OPPE does?
Ms. Earp. One of the things that my colleague from OPPE
would agree to, it would help his office and OASCR, we need
better data. USDA really doesn't have data on veterans. We have
to crosswalk data for who is an under-resourced farmer or
rancher. Sometimes the terminology that the farm bill uses,
especially for data collection, doesn't quite track with what
we do day to day or even the way the data is collected. Usually
the data is collected by race, sex, national origin, those
basic demographics.
Mr. Davis. Does NASS collect any data?
Ms. Earp. NASS collects a lot of data.
Mr. Davis. On these particular issues?
Ms. Earp. NASS can crosswalk under-resourced farmers with
race, ethnicity. I am not sure about whether or not they
collect data on veterans. That is such a new demographic and
constituency for USDA.
Mr. Davis. Okay. Well, I would be happy to, if you have
suggestions of how we can work better with NASS and other data
collection agencies, and maybe cross-referencing to other
Federal agencies.
Ms. Earp. Yes, sir.
Mr. Davis. If they have that data.
Ms. Earp. We would be happy to work with your staff. I
think better data will allow us to evaluate and measure
progress more effectively.
Mr. Davis. Oh, I completely agree, and you know, and that
is something, when we sit here in this room and we can work
together on bipartisan issues, and, like the farm bill, we have
goals in mind, and a lot of times we don't take into
consideration the implementation problems. Sometimes I would
argue the implementation problems are caused purposefully by
multiple Administrations of both parties, but in the end our
job is oversight.
And you do not get much more bipartisan in this Committee
than holding USDA accountable for what we all helped write
together. If there are things we can do to improve the ability
to get the resources and the dollars to the under-served areas,
to our under-served minority communities, to our veterans, to
our beginning farmer and rancher program that I want to see
explode with those who are under-served to be able to get those
funds and begin a career in agriculture, so help us help you.
I yield back.
Ms. Earp. Thank you.
The Chair. Mr. Panetta, you are recognized for 5 minutes.
Mr. Panetta. Great. Thank you, Madam Chair. I appreciate
this opportunity. And thank you, Ms. Earp, for what you are
doing and what you have been doing.
I want to kind of direct you to an area that we in
California have been concerned with, and that is dealing with
the USDA's proposed rules that would change SNAP eligibility
that happened earlier this year.
It is estimated that those changes, those proposals, will
obviously negatively impact over a million people, and I can
tell you a lot more people around the Central Coast of
California as well, unfortunately, especially Hispanic families
that call the Central Coast their home and are families that
have come to work in our number one industry in agriculture.
I was so concerned that I led, this year, a letter to the
USDA and the Secretary, from the California Members, asking
about the proposal, and the response that I got was sort of a,
we believe this rule ensures that those who need benefits are
receiving benefits.
Now, with those rules, though, it included the civil rights
impact analysis, which I am sure you are aware of, and each of
those analyses found that the proposed rule will disparately
affect certain groups, including minorities. And so I am
obviously concerned for my Hispanic communities there on the
Central Coast, my constituents, in that these proposals are not
just kicking people off the program, they are scaring people
away from participating in SNAP, including legal permanent
residents. And these are individuals who have lived in this
country legally for at 5 years before becoming eligible for the
program.
If I could, do you think you could at least outline your
office's role in SNAP rulemaking, particularly the rule to
eliminate broad-based categorical eligibility?
Ms. Earp. The Office of the Assistant Secretary for Civil
Rights has no role in rulemaking.
Mr. Panetta. But are you familiar with this type of
proposal that was done by the USDA at all in regards to SNAP?
Ms. Earp. I am familiar but cannot speak to the details.
Mr. Panetta. Okay. All right. In regards to the civil
rights impact analysis that was attached to this rulemaking,
are you familiar with that at all?
Ms. Earp. There are normally two.
Mr. Panetta. Okay. Can you explain that, please, and how
that works?
Ms. Earp. The initial review is conducted by the mission
area, in this case Food and Nutrition Service, and then
typically OASCR would review that.
Mr. Panetta. Okay.
Ms. Earp. I will note, however, that the civil rights
impact analysis is a tool that just looks at the facts, the
data. It is neutral. It does not signal a go or stay to the
agency. We advise them on what we find and then the agency, in
this case Food and Nutrition Service, makes a decision.
Mr. Panetta. Understood. Understood. Well, I appreciate
your role in that.
Moving on, in regards to the relocation, I am sure this has
been brought up, the relocation of the Economic Research
Service, ERS, and the National Institute of Food and
Agriculture, NIFA, to Kansas City, did you have any concerns
about the impact of that relocation on the timely dispersal of
resources and information to minority and beginning farmers?
Ms. Earp. OASCR was consulting with NIFA from the moment we
first learned that a relocation was possible. We worked very
closely with them. I can't say that there were specific
reasons.
Mr. Panetta. Okay. Nothing in particular stood out in
regards to that move in regards to your role as Deputy
Secretary?
Ms. Earp. Our role focused primarily on employees and the
impact it would have on the relocation of employees.
Mr. Panetta. Understood. Understood. Okay, thank you.
Are you familiar with the Market Facilitation Program?
Ms. Earp. Only that we have one.
Mr. Panetta. Okay. All right. Well, thank you very much for
being here, and I appreciate your participation, not only in
this hearing, but also your service. Thank you very much,
ma'am.
I yield back.
The Chair. Mr. Hagedorn, you are recognized for 5 minutes.
Mr. Hagedorn. Madam Chair, thank you for recognizing me,
and Ranking Member, Johnson, it is good to be here.
Deputy Assistant Secretary, a pleasure meeting you. Thanks
for your work and your devotion and the way that you have taken
on the job in trying to continue some of the progress that was
made in the previous Administration and continue to go through
here with the Trump Administration on some of these key issues.
Just for the record, I will give you the other side on the
SNAP rules so you can take this back to the Agriculture
Department. I think that the work that the Secretary and others
are doing in the food stamp program to tighten up some of the
rules to make sure that the benefits only go to those who are
deserving, and that we promote the concept of work for welfare,
are good, because the best thing we can do, the most
compassionate thing we can do, is push people to be self-
sufficient and to work. And so that is where I am on those
issues, and I support. You can take that back.
The Forest Service, which a lot of people don't even
realize is part of the Agriculture Department, you said in your
opening statement that there is some strategic models, other
things that you are doing in order to move things forward and
have a better rapport there. Can you maybe dive into that a
little bit and explain to us exactly what you are up to?
Ms. Earp. Yes, sir. In terms of sexual harassment, I
believe that Forest Service serves as a model. They have had
some issues. They are a very ```get it right, get it done''
organization and they are doing that.
From OASCR's perspective, there are two things they are
doing that are cutting-edge. One is a victim-centered approach,
so they are very focused on the trauma that the victim goes
through and they have put multiple avenues in place for victims
to take their concern. The other cutting-edge strategy that
they are employing is called Bystander Intervention Training.
That supposes that the responsibility to stop, prevent sexual
harassment is global. It is everyone who happens to be in the
workplace. It is almost as ubiquitous as security. If you see
something, see [sic] something, but bystanders have to be
trained how to intervene, what to say. And both of those
initiatives sanctioned by the Equal Employment Opportunity
Commission are best practices.
Mr. Hagedorn. Sure. That kind of awareness, you are trying
to prevent it on the front-end and so you don't have to deal
with complaints. But a couple of years ago there were quite a
few cases still pending, over 2,000. A lot of those cases have
been resolved one way or another. Is that where we are and what
do you attribute the big reduction to?
Ms. Earp. Forest Service has been very successful in
reducing the number of active complaints, and one of the
reasons is again, they have multiple venues. A complainant can
come to OASCR, which is a formal EEO complaint. It is laborious
and it is not very efficient. A Forest Service person can also
go to the Anti-Harassment Center which is very quick. They can
also have their trauma addressed specifically in trauma-focused
resources.
Mr. Hagedorn. And so when you resolve these complaints and
there are certain actions taken against people that don't do
the right thing, some of it could be demotions, reprimands, I
guess on occasion you could try to fire an employee. That is a
pretty difficult process. I used to manage people in the
Federal Government myself, and maybe we need to open up some of
those rules in order to make that better when people make
mistakes, but, so how do you determine exactly what action to
take? Are there certain regulations or is it up to you and a
panel, or how does that work?
Ms. Earp. Well, again, Forest Service is setting a model
for the rest of the Department. They have held more managers
and supervisors accountable as a result of the sexual
harassment issues. It has raised other kinds of harassment:
bullying, racial harassment.
To discipline a Federal employee, as you know, is a very
focused, methodical process. Generally we want to make sure
that the punishment fits the offense and that it is applied in
a standard, even-handed way. Most of the time OPM, the Office
of Personnel Management, provides guidance on the type of
offense and the level of appropriate punishment.
Mr. Hagedorn. Very good. Thank you for your answers.
Madam Chair, I yield back.
The Chair. Thank you.
Mr. Johnson, you are recognized for 5 minutes.
Mr. Johnson. Thank you, ma'am.
Thank for being here again, Ms. Earp. And the Equal
Employment Opportunity data that has been filed pursuant to
USDA's No FEAR Act looks promising. I think the data I have
seen shows a downward trend since 2017 or so. The Department
went from 561 complaints in 2017 to 436, now that is year-to-
date so that number will likely go up, but in 2019.
I am asking you to guess a little bit here, but what do you
attribute that decline, which may end up being ten or 15
percent this year, to?
Ms. Earp. I think the decline is primarily because of
training at multiple levels across USDA. It is also alternative
dispute resolution, providing other forums for employees to
take their concerns. It is holding managers and supervisors in
particular accountable. When managers understand that they are
responsible for the tone in their workplaces, things start to
happen.
And then ultimately because Forest Service is such a large
portion of USDA, when they reduce their complaints, it has a
ripple effect across the Department.
Mr. Johnson. Is that the case for the Forest Service
numbers? And of course, Mr. Hagedorn asked about that. As those
numbers have come down, that makes up a bulk of the overall
USDA reduction it sounds like?
Ms. Earp. Yes.
Mr. Johnson. Okay, very good.
Now, it seems like in any given year there are a dozen or
more repeat filers. What causes the repeat filing? I mean, is
it dissatisfaction with the process, they are not sure they
have been heard, is it dissatisfaction with the outcome? Kind
of walk me through what might cause that frustration?
Ms. Earp. We believe frequent filers file for all the
reasons that you mentioned. They also often file because they
can. In the Federal system an employee has an absolute right to
complain. There is no threshold requirement. They don't have to
think that their complaint is serious.
Finally, I think that some frequent filers use EEO
complaints to punish managers and supervisors. It is a pretty
effective tool.
Mr. Johnson. You talked just a minute ago about managers
being a critically important part of changing this culture and
driving down complaints, and more importantly than driving down
complaints, driving down problems, right? I mean, we want
people to be treated fairly and equally in this workplace. When
you all onboard people onto USDA, I mean, is there sufficient
training and education, number one, about people's rights, but
also about the responsibilities, whether it is managers or
whether it is line-level staff to if they see something, to say
something?
Ms. Earp. I think that we are just beginning to make the
shift beyond the basic training of what your roles and
responsibilities are, what your rights are. But let me just
share an anecdote about EEO complaints.
I reviewed a report of investigation that was insufficient.
It was remanded back to the Department of Agriculture because
it did not contain sufficient facts to make a decision. When I
questioned the manager, she said it is the employee's
responsibility to satisfy his prima facie case. When I
disagreed on that, especially when an employee is representing
him or herself, it is OASCR's responsibility to layout a
roadmap of facts that makes it easy for an Administrative Judge
to make a decision, discrimination, no discrimination. When I
challenged her on that, she filed an EEO complaint.
Mr. Johnson. An EEO complaint against whom?
Ms. Earp. Naming me as the alleged discriminating official.
Mr. Johnson. Has that complaint worked its way through the
process?
Ms. Earp. It is working its way through the process, and
that is fine, because employees have an absolute right to do
it.
I merely share it as one example of how the complaint can
be used against management, and that is a very difficult thing
to train new managers on.
Mr. Johnson. Well, in closing I would just say, I mean, I
want to thank you for making it clear that this is a global
obligation we have, to try to make sure that our workplaces,
and frankly our program delivery, are fair. I think we are
called to do that, and thank you for your efforts in that
regard.
Ms. Earp. Thank you.
Mr. Johnson. The Chair has invited me to make a brief
closing statement, which I am happy to do. And thank you, Chair
Fudge, for calling this together.
Ms. Earp, I need to think at the end of every day or during
the course of the day what I am going to tell my sons about my
day. It is kind of fun. I mean, it is too bad we are apart, but
that is the nature of the life we have chosen. And today I am
going to talk to them about your testimony, because you are a
remarkable person who has had remarkable service to this
country.
And the first time we met, I asked you why you do this,
because service to this country as a member of the bureaucracy
is not always easy. And you said that you have a passion for
fairness, and you seemed almost emotional, and I will be honest
with you, ma'am, I was almost emotional with the gravity and
the weight and the dignity with which you delivered that
answer. And then earlier today you talked about growing up, and
you said that you know what discrimination looks like. And if I
am being honest with myself and with my sons, of course they
never think life is fair because that is the nature of
children, but you have certainly battled against, ma'am, forces
that they will never have to.
And the fact that you chose those difficult experiences
growing up, used that as fuel and as energy and as righteous
passion to try to make lives better for others, to find that
fairness that you seek and to push down the discrimination that
you and that your mother, you so eloquently talked about your
mother during your confirmation hearing, to me is, you are the
kind of person that my sons should hear about.
Thank you for being here today.
Ms. Earp. Thank you.
The Chair. Thank you very much. I would like to make some
closing remarks as well. Again, I thank you for being here. Let
me just say a few things.
First, I am extremely concerned about the lack of urgency
that your Department put forth to provide information that we
requested, timely. For me to receive something at 8:40 a.m.
this morning either says to me that it was deliberate, that it
was disrespectful, or it was incompetent. I am not sure which,
but I would like to get the information that we requested and I
would like to get it timely, because it is what provides for me
a clear picture of what the Department is.
I further asked you the question about who was with you
today. Most of the complaints I have received have been from
African Americans in the Department. Most of them high-ranking.
And as I look, you have no African Americans here with you, and
they have historically, I asked her to tell me who was with
her. She didn't mention you, so you must not be part of the big
team. Historically, African Americans have had high-ranking
positions in OASCR, and I see none here today, which just goes
to the visual that supports their position that there has been
a deliberate attempt to have them removed from their positions.
There has been a deliberate attempt to make the environment
uncomfortable for them. And so the information I requested can
support your position if you just give it to me.
It is just difficult for me to believe that there is no
culture of favoritism based upon what I see. But I further find
it just incredulous to believe that 300 people from ten
departments have filed some kind of a complaint, employees, and
only two of them have had merit. It is just almost impossible.
It is unheard of. I would like to see that information.
The Office of the Assistant Secretary for Civil Rights is
there to enforce the civil rights of people. You might have a
lot of really good programs, but your number one job is to
enforce the civil rights of protected classes, and there is
nothing in what you have said to me today that leads me to
believe that that is in fact what your number one priority is.
Now, I am going to just ask. When am I going to get the
data that I requested?
Ms. Earp. As soon as possible.
The Chair. But we knew there was a hearing today. Could you
not at least have been concerned enough to say, ``We are
working on it and don't have it?'' Don't just not give it to me
and we show up.
But last, and I am going to say this. We do have often
disagreements. I hope that we are not necessarily disagreeable,
but we do have disagreements on this Committee.
And to Mr. Hagedorn, let me tell you what they can take
back for me, the fact that most people who are on SNAP who can
work, do work. You can take that back, too. And the rules that
are being promulgated by USDA are punitive and hurt the very
people we are here to serve.
And with that, this hearing is adjourned.
[Whereupon, at 3:35 p.m., the Subcommittee was adjourned.]
[Material submitted for inclusion in the record follows:]
Submitted Statement by Hon. Marcia L. Fudge, a Representative in
Congress from Ohio; on Behalf of Shawn S. McGruder, J.D.
To: The Honorable Marcia Fudge, Chairman, and Committee Members:

Between September 3, 2017, and May 20, 2019, I was USDA's Senior
Executive Service (SES) Executive Director for Civil Rights
Enforcement, Office of the Assistant Secretary for Civil Rights
(OASCR), where I provided executive leadership to 75 Federal and
contract staff in processing formal EEO and program discrimination
complaints. Since January 29, 2019, after an unsuccessful performance
before the Senate Agriculture Committee, during which she referenced
harassment as ``silliness,'' Naomi Earp has run OASCR from the
``Deputy'' Assistant Secretary for Civil Rights position. On May 2,
2019, after enduring 3 months of her harassment, for my health and
well-being, I tendered my resignation from the most rewarding job of my
28 year Federal career, but several years short of retirement
eligibility. On May 20, 2019, I started a new job as a Senior Associate
General Counsel in the private-sector.
But, agriculture remains in my blood. I am the product of a
marriage between (1) a mother who was the first in her immediate family
from Anderson, SC, to attend college (paid for with the earnings of her
sharecropper parents and siblings); and (2) a father whose proud
McGruder family had amassed over 300 acres of land in rural Hale
County, AL, which was no easy feat for Black men in the late 1800s. So,
I care earnestly about USDA's civil rights work in agrarian
communities. During FY18, I presided over unprecedented case processing
times in EEO cases and improved productivity in program cases; and I
earned an Outstanding SES Performance Rating, sustained through three
levels of review, including the Secretary of Agriculture.
In January 2019, I warmly received Ms. Earp but soon discovered
that, though also Black, she harbors a peculiar bias against Black
employees. She stereotypically branded Black staff as incompetent,
lazy, and shiftless, and she habitually lodged baseless allegations of
impropriety against us. Yet, she readily believed any flimsy assertions
from a White/Hispanic Chief of Staff who traversed the Department
communicating flawed data analysis; and a White/Caucasian GS-15 Budget
Director, whom she elevated as an ``overseer'' of Black SES officials
and who mismanaged the reimbursable budget.
Ms. Earp immediately began disparaging, undermining, and targeting
OASCR's Black SES staff. Within her first 2 weeks, unbeknownst to us at
the time, she requested to move the Associate Assistant Secretary and
me from our jobs. On February 21, 2019, for non-merit reasons, Ms. Earp
expressed her plans to get rid of my counterpart, the Executive
Director for Civil Rights Operations. On February 25, 2019, Ms. Earp
voiced intent to hasten the retirement of the Deputy Executive Director
for Civil Rights Operations by placing her on an arduous performance
plan. On February 28, 2019, also for non-merit reasons, Ms. Earp
demonstrated a similar interest in the Associate Assistant Secretary's
earlier separation.
In addition to directly opposing many of Ms. Earp's unlawful
actions in real-time, on March 14, 2019, I escalated concerns about her
abuse to USDA's General Counsel. On March 16, 2019, the Associate
Assistant Secretary and I reported our concerns to Senate Agriculture
Committee staff. Between March 24 and April 23, 2019, I applied for 40
Federal and private-sector jobs, one of which I accepted on May 2,
2019. In tendering my resignation, I requested of the Secretary an Exit
Interview and an Internal Inquiry into OASCR's hostile work environment
during Ms. Earp's tenure. During a subsequent meeting with the General
Counsel and Deputy Secretary, I renewed my request for an Internal
Inquiry into OASCR and invited them to investigate me as well.
On July 18 and August 5, 2019, I submitted for two interviews with
Attorney Rock Rockenbach, whom USDA finally contracted to conduct the
Internal Inquiry I had requested in early May. On November 1, 2019, a
former colleague advised me that when she recently sought to share new
concerns, Mr. Rockenbach said he had just completed his work and
already submitted his Report. On equal date, I emailed the Secretary,
cc General Counsel, to request a copy of the Report initiated at my
request, but received no response.
Meanwhile, OASCR continues struggling under Ms. Earp's malicious
rule. Information suggests that in July 2019, she used spurious claims
to thwart my former deputy's job opportunity after he had emerged from
two successful interviews and three stellar reference checks as the
Finalist for a job at NASA. On July 31, 2019, the GS-15 Director of the
Employment Investigations Division retired with less than 2 weeks'
notice, due to harassment over time she needed to recover after a
recent heart attack. On November 1, 2019, that division's GS-14 Team
Lead also retired with less than 2 weeks' notice, declining a request
even to remain and train a successor. Over the past week or so, pending
another specious inquiry, Ms. Earp arranged the unceremonious moves of
the GS-15 Director and GS-14 Team Lead of the Conflict Complaints
Division, which handles complaints against Ms. Earp.
I urge the Committee to subpoena copies of all EEO complaints filed
by OASCR employees since January 29, 2019, to develop further
background about continuing concerns with the OASCR environment.
I urge the Committee to subpoena Rock Rockenbach and the Report he
produced concerning OASCR's environment. In so doing, it would also be
well to subpoena the witnesses who provided testimony and their
underlying interview transcripts.
Finally, I urge this Committee to continue conducting full and open
oversight into Naomi Earp's mismanagement of OASCR. Sadly, despite the
passage of time, her conduct remains consistent with the behavior that
the NAACP previously described. See Attached, NAACP Federal Sector Task
Force Special Report and Critique of Naomi Churchill-Earp (March 20,
2002). She is creating an unhealthy work environment, emboldening poor
performers, discriminatorily favoring White staff, driving talented
Black leaders from the organization, and systematically destroying
USDA's Civil Rights program.
attachment
March 20, 2002
NAACP Federal Sector Task Force

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A Special Report and Critique of Naomi Churchill-Earp, Esq.: Nominee
for the Position of U.S. Equal Employment Opportunity
Commission (EEOC) Commissioner
Leroy W. Warren, Jr., Chairman, NAACP Federal Sector Task Force,
Washington, D.C.

March 20, 2002

Hon. George W. Bush,
President,
United States of America
Washington, D.C.;

Hon. Edward M. Kennedy,
Chairman,
Senate Health, Education, Labor and Pensions Committee
Washington, D.C.;

Hon. Judd Greg,
Ranking Member,
Senate Health, Education, Labor and Pensions Committee
Washington, D.C.

Subject: Opposition to Naomi Churchill-Earp EEOC Nomination

This report is to provide for your consideration our thoughts,
facts, and information, regarding the nomination of Naomi Churchill-
Earp for a position of Commissioner, on the U.S. Equal Employment
Opportunity Commission (EEOC). The documentation provided herein leads
us to recommend that she should voluntarily withdraw or her nomination
should be involuntarily withdrawn.
On February 16, 2002, the NAACP National Board of Directors, at its
annual meeting, unanimously passed the following resolution, opposing
Ms. Churchill-Earp's nomination as an EEOC Commissioner.

``The NAACP Board of Directors officially goes on record as
opposing the nomination of Naomi Churchill-Earp as an EEOC
Commissioner, based upon what has been described as a track
record of actions and activities that are basically in
opposition to NAACP policies, goals and objectives.''

The NAACP Federal Sector Task Force is concerned about anyone,
regardless of race or sex, being nominated to such a critical, high-
level civil rights/equal employment opportunity position, who has been
intricately and frequently linked to situations involving patterns and
practices of disparate treatment against minorities and others within
the Federal Government.
This report offers compelling evidence that Naomi Churchill-Earp,
based on her previous record, is not an ideal or the best-qualified
candidate to serve as an EEOC Commissioner.

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Leroy W. Warren, Jr., Chairman, NAACP Federal Sector Task Force.
Executive Summary
The Federal Sector Task Force has not been able to find valid
reasons and/or justifications to support the nomination of Naomi
Churchill-Earp as a U.S. Equal Employment Opportunity Commission (EEOC)
Commissioner. Based on reports from numerous sources that have
contacted us, on Ms. Churchill-Earp's watch and during her stewardship
and leadership, the National Institute[s] of Health (NIH) Office of
Equal Opportunity (OEO) and other Federal EEO offices that Ms.
Churchill-Earp managed including the U.S. Department of Agriculture
were all basically characterized as places of discontent, low morale,
high senior staff turnover, with allegations of ongoing abuses,
favoritism, and basically failed and troubled leadership. Ms.
Churchill-Earp's tenure at NIH was from approximately September 1994 to
July 2000. According to knowledgeable sources, Ms. Churchill-Earp has
been on some type of detail to the National Institute of Science &
Technology (NIST) since July 2000. Also, according to reliable sources
at both NIH and NIST, Ms. Churchill-Earp's departure from the NIH was
under less than ideal circumstances.
The Task Force is very pained and distraught over the fact that we
are arrayed with the forces in opposition to a highly educated Afro-
American female who is being considered for this critically important
job. However, we must be very clear that the issue is not one of race
or sex, but rather questionable commitment to EEO laws and court
decisions, as well as, questionable overall fitness, temperament,
personal style, and mercurial personal behavior that may prove harmful
to the office and its trust. On February 16, 2002, the NAACP National
Board of Directors, at its annual meeting, unanimously passed the
following resolution, opposing the nomination of Ms. Churchill-Earp as
an EEOC Commissioner.

The NAACP is concerned about anyone, regardless of race or sex,
being nominated to such a critical high-level civil rights/equal
employment opportunity position, who has been intricately linked to
situations involving patterns and practices of disparate treatment
against minorities and others within the Federal Government Due to
privacy issues and other related factors, the Task Force was unable to
determine the exact amount the U.S. taxpayers have paid to settle EEO,
disability, and related complaints filed against Ms. Churchill-Earp
directly and/or employees under her supervision. However, we do know
that any/all monetary settlements paid in the large number of EEO
complaints against Ms. Churchill-Earp have been paid by us, the U.S.
taxpayers. The Task Force has been provided with estimated settlement
figures which leads us to believe that U.S. taxpayers paid EEO related
settlement costs in the $500,000+ range, plus attorney fees for the
plaintiffs, plus the agency in house legal and EEO staff salaries.
Presently, there are two EEO complaints before the EEOC, involving
allegations of discrimination against Ms. Churchill-Earp. The following
is a synopsis of some of the EEO settlements that occurred during Ms.
Churchill-Earp's stewardship of the NIH EEO of the OEO) office:

1. Black female GS-7, an estimated $25,000 plus attorney fees

2. Black female, GS-15 or GS-15, an estimated $70,000 plus attorney
fees

3. Black female, GS-13, an estimated $25,000

4. Black female, GS-12, an estimated $25,000

5. Black male, GS-13, an estimated $25,000

6. Black male, GS-13, an estimated $55,000

7. Hispanic male estimated $170,000 ($70,000 before death and
$100,000 after his death)

8. White male, GS-13, an estimated $25,000

The total payment in these known cases was an estimated $390,000,
plus attorney fees for the plaintiffs and the NIH and U.S. Department
of Justice attorneys. Sources at other agencies have indicated
awareness of additional cases.
The following data profiles the variation in salaries within the
NIH OEO office during the period FY 1993 to FY 1999, according to
official NIH documents submitted via a legal discovery.

E Hispanic average salaries increased 39.9% from $59,099 to $82,660.

E Asian average salaries increased 45.6% from $31,688 to $46,142.

E White average salaries increased 62.3% from $45,015 to $73,044.

E African American average salaries decreased (^32.8%) from $67,965
to $45,696.

An unofficial Affirmative Action plan for higher-level White males
is illegal, but based on the information provided to the Task Force, it
was a high priority and standard practice during Ms. Churchill-Earp's
tenure at NIH OEO office. We want to make it very clear that we are not
anti-White male. Numerous White males are part of the Task Force, are
NAACP members, and are staunch supporters of equal rights for all.
However, we are vehemently opposed to any senior level executive who
supports the hiring, promotion and advancement of one race of
individuals (White males), while allowing harassment and disparate
treatment towards another group. This is particularity egregious when
the senior level executive holds a civil rights position and has sworn
to protect the rights of all employees regardless of their race, sex,
national origin, religion, etc.
A Profile of NIH's Adverse Actions
According to official NIH internal data, a total of 224 (38 in FY
1990, 45 in FY 1995, 91 in FY 2000, and 50 in FY 2001) EEO complaints
were filed in the listed fiscal years (FYs). During the four listed
FYs, a total of `` `one finding of discrimination was made' and it
occurred in FY 2001.'' It is a well-known fact among the leaders of the
Montgomery County, MD, NAACP leadership, based upon complaints received
from employees, that there were serious claims and allegations of
problems at NIH, especially within the administration of the NIH's OEO
office.
It is absolutely mind-boggling that out of the total of 174
complaints that were filed in FY90, FY95, and FY 2000, that ``ZERO (0)
FINDINGS OF DISCRIMI[N]ATION WERE MADE at NIH.'' The lack of
discrimination findings in and of itself raises some very serious
questions as to the effectiveness of the EEO program at NIH. It is the
opinion of many highly qualified and knowledgeable EEO professionals
that the total lack of discrimination findings in FY 1995 and FY 2000
should have raised serious questions as to the depth of the EEO
problems within NIH.
According to official EEO data viewed by the Task Force, eight (8)
African Americans, two (2) Asians, one (1) Hispanic, and one (1) White
filed the 38 EEO complaints within NIH during FY 1990 [NIH management
stated that the same data is not available for FYs 1995, 2000, and
2001].
Adverse Actions at NIH During Recent Years
During FY 2001, a total of 24 adverse actions occurred at NIH, of
which 18 or 75% were African Americans (5 Afro-American females and 13
Afro-American males) although African Americans composed just under 24%
of the total NIH employees. Of the 24 adverse actions, 23 resulted in
removals, 18 (78%) of which were African Americans (5 Afro-American
females and 13 Afro-American males). This reflects a removal rate that
is in excess of 200% higher than the African American population at
NIH, which is under 25% of the total employee.
African-American's Percent of Total Adverse Actions

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Report on Naomi Churchill-Earp, Esq. Nominee for EEOC Commissioner
The following is a short synopsis of the actions and activities of
Naomi Churchill-Earp, a nominee for the position of Commissioner, U.S.
Equal Employment Opportunity Commission (EEOC). The information
delineated within this document was compiled from a variety of sources
including the media, former co-workers/employees, acquaintances, and
associates of the nominee.
According to various sources who are current or former
subordinates, a serious question exists as to the rationale and
justification for the nomination of Ms. Churchill-Earp for a vacant
EEOC Commissioner slot. Many sources would like to know who (or what
group) is actually sponsoring Ms. Churchill-Earp's nomination for this
civil rights/equal employment opportunity position and the actual
agenda behind her nomination. Her dismal EEO track record is basically
an anathema to the EEOC charter and the spirit and intent of EEO laws
and regulations.
Background Information
The purpose of this document is to highlight, profile and offer
some compelling documentation, reasons, and rationale to support the
NAACP's decision to urge the U.S. Senate to reject the nomination of
Naomi Churchill-Earp to serve as a U.S. Equal Employment Opportunity
Commission (EEOC) Commissioner.
Ms. Churchill-Earp is a graduate of the Catholic University Law
School and earned an undergraduate degree in social work and a master's
degree in social studies education. Our sources indicate that Ms.
Churchill-Earp entered the Federal Government as a GS-9 Civil Rights
Specialist at the Economic Development Administration, Department of
Commerce, in Chicago. From there, she went to work at the EEOC where
she served as a staff assistant to former EEOC Chair, now Supreme Court
Justice Clarence Thomas.
According to a September 21, 1987, Washington Post article, when
Associate U.S. Supreme Court Justice, Clarence Thomas left the EEOC to
become a Federal judge, he helped Ms. Churchill-Earp get an SES
position at the U.S. Department of Agriculture (USDA) (although she had
no record of prior management experience). Ms. Churchill-Earp was
appointed as Director of the Office of Civil Rights at the USDA where
she served until 1989. According to reliable sources, Ms. Churchill-
Earp left USDA due, in large part, to the ongoing tension and confusion
caused by her mercurial management style, plus some internal personal
problems with her superiors.
After leaving USDA, Ms. Churchill-Earp then became a contractor
providing training, EEO investigative services, and other functions for
several Federal agencies. According to various sources, Ms. Churchill-
Earp later returned to Federal service and worked for the Naval
Research Laboratory and the Federal Deposit Insurance Corporation
(FDIC) (5 months). In September 1994, Ms. Churchill-Earp became
Director of the Office of Equal Opportunity (OEO) at the National
Institutes of Health (NIH) with a staff of approximately 30 employees.
Ms. Churchill-Earp is currently on the NIH payroll, although she has
been detailed to the National Institute of Science and Technology,
Department of Commerce since July 2000. According to various sources,
the current detail resulted from Ms. Churchill-Earp's abusive
management style and her failure to comply with a direct order from one
or more high level NIH official to provide suitable reasonable
accommodations for two OEO employees. According to knowledgeable
sources, both were GS-13, Afro-American males: one suffered from
diabetes and required insulin shots and some privacy. The other was an
amputee, who needed the privacy of an office to change his prothesis.
Creating an Affirmative Action Program for Higher Level White Males
Various reports that we have received state that Ms. Churchill-
Earp, via her actions, created unneeded and unjustified affirmative
action programs for White males, at the expense of Federally protected
groups and racial minorities. This unwarranted and illegal practice
appears to reflect and showcase a loyalty to the ultra conservative and
extreme right-wing elements of the political establishment and American
public. Some of Ms. Churchill-Earp's actions and activities are totally
inconsistent with U.S. laws and regulations that fair-minded Americans
would expect and demand from their government leaders.
A review of the information and interviews with various sources
leads the Task Force to conclude that dismantling and nullifying
federally mandated EEO programs has been the outcome in most or all
Federal agencies where Ms. Churchill-Earp has worked as the senior
higher-level EEO executive. A synopsis of some of the programs
negatively impacted by Ms. Churchill-Earp's actions include the EEOC's
Affirmative Action Planning Process, the Federal Equal Opportunity
Recruitment Program, the Hispanic Employment Program, and the Federal
Women's Program.
Eight Compelling Reasons Ms. Churchill-Earp Should Not Be Confirmed To
Serve As An EEOC Commissioner
The following summary supports the fact that Ms. Churchill-Earp is
basically unsuited for confirmation as an EEOC Commissioner.

1. Ms. Churchill-Earp has a history and track record of retaliation,
reprisal, and acting in an unprofessional manner against a
number of Federal employees.

2. Ms. Churchill-Earp, via her actions, has shown a philosophical
predisposition to reward White males while showing disdain
and contempt for many highly qualified African-American
employees.

3. Ms. Churchill-Earp has a history and long-standing track record
of dismantling or negatively undermining the effectiveness
of Federal EEO programs.

4. Ms. Churchill-Earp, by her actions, has shown disrespect for EEO
laws by allowing NIH's OEO to permit mistreatment and
intolerance of some employees with disabilities.

5. Ms. Churchill-Earp via her actions and inaction has a history of
allowing the creation of a hostile environment for many
African-American employees and other racial minorities.

6. Ms. Churchill-Earp, via her actions, inactions, and activities,
unofficially allowed the creation of an affirmative action
program for White males at the National Institute[s] of
Health (NIH).

7. Ms. Churchill-Earp has frequently acted unprofessionally,
exhibiting personal traits and values that make her unfit
to serve as an EEOC Commissioner.

8. The U.S. taxpayers have spent hundreds of thousands of dollars in
legal fees, compensation, and internal staff salaries to
fight and pay for EEO complaints against Ms. Churchill-Earp
and or the EEO organization(s) she supervised.
Examples of Ms. Churchill-Earp's Unacceptable Behavior
The following are some crude and real examples of the unacceptable
behavior of Ms. Churchill-Earp as delineated to the Task Force by a
number of credible sources.

Ms. Churchill-Earp's Reprisals and Retaliations

One of Churchill-Earp's former staff assistants, an African-
American female, provided testimony against Ms. Churchill-Earp
at a June 2001 EEOC hearing in which Ms. Churchill-Earp was the
named responsible official. Over the years the staff assistant
sent numerous packages to Ms. Churchill-Earp. After the June
2001 hearing, Ms. Churchill-Earp returned some or possibly all
of the returnable gifts the staff assistant gave her.
Unbeknownst to the NIH OEO staff, the staff assistant and Ms.
Churchill-Earp had been collage roommates--a fact revealed at
the hearing.
Two of the packages returned to the former staff assistant were
of an intimidating nature. On one of the packages, Ms.
Churchill-Earp wrote in her distinctive handwriting, a bogus
return address: #1 Betrayal, Forestville, MD (Forestville being
where the staff assistant lives--Ms. Churchill-Earp was
believed to be a resident of Damascus, MD, at that time).
The other package contained photographs in which Ms. Churchill-
Earp and the staff assistant appeared together, except that Ms.
Churchill-Earp was cut out of the pictures. This behavior is
unbecoming of a senior Federal manager and a White House
nominee.

Ms. Churchill-Earp's stated philosophy on the importance of
having White males relate important, particularly disdainful,
information to one another

Ms. Churchill Earp directly or indirectly hired and/or approved
the hiring of two training consultants at a 1999 retreat to
relate a specific philosophy to her staff. The word around the
office was that, one trainer, a White male who had trained Ms.
Churchill-Earp at the Federal Executive Institute (FEI) engaged
the staff in an Antigone exercise that demonstrated the
importance of having ``messengers who are like the king deliver
messages to the king.'' When an OEO staffer asked if the
trainer was telling the OEO staff that White males carry
messages better to White males, the trainer said yes. According
to reliable sources, Ms. Churchill-Earp also expressed this or
a very similar philosophy to an African-American female OEO
staffer in 1995, shortly before Ms. Churchill-Earp attempted to
replace that staffer with a White male. Note: Using this
philosophy, racial minorities are virtually excluded from being
involved in higher-level decision-making positions. This
thinking in itself should automatically eliminate Ms.
Churchill-Earp from consideration as an EEOC Commissioner.
The second retreat consultant, a White female with whom Ms.
Churchill-Earp evidently had worked or become acquainted with
at/or prior to the retreat, gave the staff basically the same
message and stated that if they did not believe it, ``they
needed to get another job.''

Ms. Churchill-Earp Actions Effectively Dismantled the NIH
EEO Program

The Montgomery County Maryland NAACP received a number of
complaints in the mid to late 1990s regarding the inept and
basically inoperative EEO and Diversity program at the NIH.
Most of the complaints revolved around the issue of overall
management of the EEO program. Many of these claims and
allegations involved an inept and malfunctioning EEO program.
Ms. Churchill-Earp was manager of the NIH EEO program at the
time complaints were received.
Under Ms. Churchill-Earp's leadership, the NIH's EEO complaint
process system was decentralized, which had a chilling effect
on NIH complaint processing. Until 1995, employees filed their
precomplaints with the Office of Equal Opportunity. This
decentralization process reactivated the previously failed
system, which forced many employees to go to their own
organizations to file their complaints. Many reputable current
and former EEO/Diversity employees alleged that. ``NIH
complaints have artificially denied because many employees were
afraid to file new complaints against officials within their
own organizations.''
A number of knowledgeable employees strongly blame Ms. Churchill-
Earp for actions and activities that resulted in the de-
emphasis and devaluation of the NIH Special Emphasis programs.
She allegedly reorganized the OEO budget that had separate
allocations for each special emphasis group by lumping all the
funding together as funding for a diversity program. For
tracking and monitoring purposes, it would have been better to
budget and track each program separately.
Under Ms. Churchill-Earp's leadership, it is alleged that NIH has
basically been unilaterally relieved of its responsibility for
complying with the Federal Equal Opportunity Recruitment
Program.

Ms. Churchill-Earp's Treatment of Employees With
Disabilities at NIH

While employed at the NIH, Ms. Churchill-Earp had a record of
encountering problems with some employees suffering from
disabilities. While an African-American at the FDIC was
recuperating from breast cancer surgery, Ms. Churchill-Earp
played a role in her forced disability retirement.
Ms. Churchill-Earp ended the detail of a White female deaf
employee who was detailed to the OEO indefinitely and did not
wish to return to her former organization.
Ms. Churchill-Earp is alleged to have okayed the termination, or
played a leading role in the termination of an African-American
male paraplegic stay-in-school employee via non-renewal of his
appointment Some employees stated that he was a good worker.
NIH's OEO under Ms. Churchill-Earp refused to take a White male
deaf employee when his detail to the Public Health Service
ended due to streamlining at Health & Human Services (HHS). The
committee for employees with disabilities wrote a letter to
former HHS Secretary Donna Shalala complaining about Ms.
Churchill-Earp's management style and her role in basically
dismantling the disability program.

NIH's EEO Office. A Hostile Environment for African-
Americans

The following examples, as told to the Task Force, raise some
compelling and serious questions as to the fitness, ability,
and temperament of Ms. Churchill-Earp to serve as an effective
and fair EEOC Commissioner based upon her action as the top EEO
officer at NIH:

A. Under Ms. Churchill-Earp's leadership, the OEO office was
basically a hos-
tile work environment for an excessive number of its
African-American em
ployees.

B. A minimum of four senior African-American OEO employees were
pres-
sured and finally retired because of unjustifiable mind-
boggling pressure
and abuse they suffered at the hands of OEO management at
NIH.

C. On Ms. Churchill-Earp's watch and during her stewardship of the
NIH
OEO office, an unsuccessful attempt was made to label two
employees as
incompetent, with the bottom-line goal being their
eventual termination or
reassignment.

D. On Ms. Churchill-Earp's watch and during her stewardship of the
NIH
OEO office an excessively high number of African-
Americans left because
of racism, sexism, abuse of authority and other EEO-
related problems. Ac-
cording to very knowledgeable sources, a minimum of 13
African-Americans
left the NIH OEO during Ms. Churchill-Earp's tenure as
director; a number
of whom were at the GS-12 or higher grade levels.

E. According to current and former OEO employees, during staff
meetings, Ms.
Churchill-Earp made comments such as, ``African Americans
have
never been as successful as other immigrant groups
because they do not use
English as their first language.''

F. Current and former OEO staffers claim that Ms. Churchill-Earp
told Afri-
can American staffers, in more than one staff meeting
with other groups
present, that they are too sensitive about the use of the
``N'' word (nigger).

G. According to official NIH data, during Ms. Churchill-Earp's
tenure, the av-
erage salary for African Americans decreased from
approximately $68,000
to approximately $48,000 while the salaries of Asians,
Hispanics, and
Whites rose substantially.

Ms. Churchill-Earp's Affirmative Action program for White
males in the OEO

According to knowledgeable sources, in one of her annual
(believed to be FY 1995) performance evaluations, Ms.
Churchill-Earp stated, ``White males are underrepresented in
the OEO.'' She used this premise to show favoritism towards
White males in hiring, promotions, and training. She reassigned
a GS-13 White male Personnel Specialist who was attending law
school (with Agency support) to the OEO. Six months later the
African-American female GS-14 EEO Complaints manager was
removed from her job.
According to knowledgeable sources, in one of her annual
performance accomplishments (believed to be FY 1999), Ms.
Churchill-Earp prides herself on decreasing the percentage of
African-American and female employees in the OEO from 75% and
72% respectively; also, when she arrived in 1994 to 64.3% and
50%. Ms. Churchill-Earp created positions for White males and
every White male in the OEO was promoted. Ms. Churchill-Earp
brought in one White male law student for the summer of 1996,
kept him on the payroll while he returned to law school in
Chicago, and hired him in 1997. She gave him a promotion in
1998 so that he could qualify for a Congressional training
program. NIH's OEO office paid part or all of his salary for
the year of training. At the end the training, he left to
become a lobbyist. Ms. Churchill-Earp denied training to one
African-American female employee and told her that she would
never get any training while she was the NIH OEO Director.
In contrast, NIH's OEO office, under Ms. Churchill-Earp's
leadership, terminated an African-American 3rd year male law
student stay-in school employee when his supervisor, the
African-American female whose complaint was the subject of the
June 2001 hearing, opposed Ms. Churchill-Earp's return as the
Director, OEO, from a detail (that was supposed to be a
permanent reassignment) to another NIH organization.

Ms. Churchill-Earp's personal values seem to dictate her
professional actions

During the June 2001 hearing previously referenced, one of the
declarations from an African-American female witness for the
complainant stated that Ms. Churchill-Earp told this female
that she (Ms. Churchill-Earp) did not like the complainant
because she had a child out of wedlock. There are many single
mothers in the work place who deserve to have someone setting
policy on the commission with an open mind and someone who has
not admittedly engaged in sex/gender discrimination.
Suicide of a White Female Doctor
In December 1998, a respected White female Doctor, Health
Scientist Administrator at NIH committed suicide in the NIH's
parking lot after being terminated. According to those with
knowledge of the case, she was pursuing an EEO complaint
against the NIH, which she felt was not being handled in a
fair, timely, and equitable manner. It is obvious that she felt
the same pressure, hopelessness, and isolation other NIH
employees frequently encountered when filing an EEO complaint.
Closing Comments and Request
It is very important that the U.S. Senate Health, Education, Labor,
and Pension Committee conduct a thorough investigation of the Federal
career and track record of Ms. Churchill-Earp. Based on numerous
reports, Ms. Churchill-Earp's track record appears to be one of anti-
EEOC, anti-Affirmative Action, and basically out of sync with
mainstream thinking in the EEO and Diversity arena. There are thousands
of qualified candidates who have a proven track record of supporting
civil rights and upholding EEO laws and regulations.
If you need additional information or please feel free to contact
the Federal Sector Task Force, at your convenience. We are willing to
provide any assistance that we can.
We strongly suggest that Ms. Churchill-Earp's name be withdrawn or
her nomination rejected and that a more suitable nominee be submitted
to the U.S. Senate for confirmation.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

Leroy W. Warren, Jr., Chairman, NAACP Federal Sector Task Force.
______

Submitted Questions
Response from Office of the Assistant Secretary for Civil Rights, U.S.
Department of Agriculture
Questions Submitted by Hon. Marcia L. Fudge, a Representative in
Congress from Ohio
Question 1. On Tuesday, November 19, 2019, I made the following
request for information.

Subcommittee staff contacted USDA on November 12 to request
information (see below) on the number of vacancies in your
office over the last 4 years. Staff also requested details on
any management inquiries or reports initiated by employees
during your current tenure.
To date, we have yet to receive the information we asked for.
The most recent email response from USDA received at 8:40 a.m.
this morning lacks sufficient detail and failed to address the
Subcommittee's initial inquiry. I can only assume the decision
to provide such a response on the morning of today's hearing is
intentional.
However, we do know from the information you shared with my
office, is there has been significant declines in the number of
employees in the Office of Civil Rights from Fiscal Year 2016
to Fiscal Year 2019. There are also inconsistencies and missing
information in the data your office shared regarding the number
of EEO complaints across the Department. The information only
shows data for ten of the 29 USDA agencies, and out of over 300
complaints filed by employees across the ten agencies in Fiscal
Year 2019, there were only two findings of wrongdoing out of
300.

The following information is requested:
All Equal Employment Opportunity complaints filed within each
agency over the last 12 years at the Department, including types of
complaints, dispositions, average processing time, and whether any
findings were made.
Answer. Fiscal Year 2010 through Fiscal Year 2019 data is publicly
available on the USDA website at https://www.usda.gov/nofear/agencies.
Because the reports include 5 previous years of comparative data, the
Fiscal Year 2010 agency reports includes information back to Fiscal
Year 2005. The detailed data includes the volume of complaints,
complaints by issue, processing time, findings data, and status of
complaints pending.

Question 2. We would like any management inquiry reports that have
been filed by an employee at the Department.
Answer. To clarify the nature of these reports management inquiries
are initiated by the Department, not filed by an employee, when there
are allegations of misconduct. USDA takes the concerns of employee
misconduct seriously; as such, agencies are authorized to conduct
investigations of possible misconduct by agency employees involving
violations of rules, regulations, or law. Your request for all
management inquiry reports within the Department may include reports
pertaining to an ongoing USDA inquiry/investigation. Disclosing
responsive information may interfere with and harm the integrity of any
investigation/inquiry. Therefore, the Department would welcome the
opportunity to meet with your staff so that we may better understand
how we can best respond to your request.

Question 3. Please provide the Subcommittee with the number of
employees and vacant positions in the Office of the Assistant Secretary
for Civil Rights over the last 4 years at the Department.
Answer. The Department previously provided the following staffing
levels: 140 in FY 2016, 137 in FY 2017, 129 in FY 2018, and 118 in FY
2019. While our Human Resources systems do not track historical
vacancies, USDA seeks to hire to the appropriate levels so we may
fulfill the important missions of each agency and staff offices
including, but not limited to, the Office of the Assistant Secretary.
Question Submitted by Hon. Alma S. Adams, a Representative in Congress
from North Carolina
Question. During the hearing, Ms. Naomi Earp committed to providing
any and all information on the Farmer Fair Practice Rule and an
explanation on the Office of the Assistant Secretary involvement in the
process. I look forward to hearing her response.
Answer. On June 26, 2019, the Office of Assistant Secretary for
Civil Rights (OASCR) reviewed and cleared the proposed rule, Undue and
Unreasonable Preferences and Advantages Under the Packers and
Stockyards Act (P&[S] Act). OASCR moved the proposed rule forward but
retained the right to conduct a compliance review and request evidence
of any outreach activity resulting from this regulation.
Additionally, OASCR recommended Agricultural Marketing Service
(AMS) conduct proactive mitigation strategies to ensure that minority
and under-resourced packers, swine contractors, livestock producers and
poultry growers have the same opportunity for preferences and
advantages as similarly situated non-minority farmers, producers and
growers. OASCR further recommended AMS increase its outreach
activities, as appropriate, to ensure protected groups are aware of the
new guidance.
The proposed rule was published January 13, 2020, in the Federal
Register.
Questions Submitted by Hon. Jimmy Panetta, a Representative in Congress
from California
SNAP
Question 1. Can you please elaborate on your office's involvement
in USDA rulemaking related to the Supplemental Nutrition Assistance
Program (SNAP)? Specifically, can you elaborate on the process of
preparing and writing the Civil Rights Impact Analysis (CRIA)
associated with each of these rulemakings?

a. Final Rule: SNAP Requirements for Able-Bodied Adults Without
Dependents

b. Proposed Rule: Revision of Categorical Eligibility in SNAP

c. Proposed Rule: SNAP Standardization of State Heating and Cooling
Standard Utility Allowances
Answer. A civil rights impact analysis (CRIA) is a proactive
prevention tool through which civil rights offices advise programs from
a neutral perspective on ways to mitigate potential disproportionate or
adverse impacts. Understanding any change impacts customers, a CRIA is
used to determine whether measurable, anticipated impacts (1)
disproportionately impact protected classes, or (2) meet the
quantitative condition for adverse impact. When results suggest
potential disproportionate or adverse impacts, the civil rights office
recommends strategies to program officials to eliminate or mitigate
those potential impacts. Program officials decide which strategies to
implement.
The Civil Rights Division (CRD) in the Food and Nutrition Service
(FNS) prepared a CRIA for each of the rules listed above. The FNS CRD
worked in collaboration with FNS program officials to measure whether
these rules were likely to result in disproportionate impact or adverse
impact to protected groups. Based on the results of this analysis, FNS
CRD proposed strategies to mitigate and/or prevent potential
disproportionate or adverse impacts. The Office of the Assistant
Secretary for Civil Rights reviewed each of these three FNS CRIA's and
determined the FNS conducted a sound analysis and made appropriate
recommendations.

Question 2. Could you please elaborate on your statement that your
office has ``no role in rulemaking''? How is it that your office has no
role in rulemaking, given that your office is responsible for the CRIA
that accompanies all USDA proposed and final rules?
Answer. OASCR has no policy decision-making role in the rulemaking
process. A CRIA is a proactive prevention tool through which we advise
program officials from a neutral perspective on potential
disproportionate or adverse impacts, and ways to mitigate or eliminate
those impacts.

Question 3. Could you please provide answers to the following
questions about USDA's proposed rule to revise categorical eligibility
for SNAP? Specifically:
When did your office find out about this rule?
Answer. OASCR received the proposed rule, Revision of Categorical
Eligibility in SNAP, on October 29, 2018.

Question 3a. At what point did USDA's Food and Nutrition Service
request a CRIA for this rule?
Answer. The Food and Nutrition Service (FNS) requested the CRIA on
October 29, 2018.

Question 3b. How long did your office have to complete the CRIA?
Answer. The OASCR cleared the proposed rule on October 31, 2018.

Question 3c. How long after your office completed the CRIA was the
proposed rule published on the Federal Register?
Answer. The rule cleared OMB on July 11, 2019 and was published in
the Federal Register on July 24, 2019.

Question 4. Could you elaborate on the process for researching and
writing the CRIA?
When your office determines that a proposed rule will have an
adverse impact on certain minority populations, what do you do?
Answer. USDA follows its Departmental Regulation when preparing
CRIAs and communicating with agencies. See the Roles and
Responsibilities section of attached DR 4300-004, attached (see
Attachment 1, p. 34). When a CRIA reveals potential disproportionate or
adverse impacts on protected groups, OASCR recommends strategies from a
neutral perspective to eliminate or mitigate those potential impacts.
OASCR also reserves the right to recommend additional mitigating
strategies based on our review of complaint trends and compliance
review results.

Question 4a. Do you have authority to halt or alter the rule in
accordance with your findings?
Answer. OASCR recommends strategies from a neutral perspective to
eliminate or mitigate potential negative civil rights potential
impacts. As provided in Departmental Regulation 4300-004, OASCR may
issue a Concurrence, Contingent Concurrence, or Non-Concurrence prior
to the implementation of a proposed action. See pp. 8-9 of attached DR
4300-004. However, OASCR does not have the independent authority to
halt or alter the rule.

Question 5. Could you elaborate on the impact of all three SNAP
rules on legal permanent residents who participate in the program?
Specifically:
Did you assess the impact of the SNAP rules on legal permanent
residents who may be afraid to seek benefits given this
Administration's broader anti-immigration agenda?
Answer. OASCR's scope is limited to groups protected by civil
rights laws and regulations. OASCR followed Departmental Regulation
4300-004 when reviewing this CRIA. When a CRIA reveals potential
disproportionate or adverse impacts on protected groups, OASCR
recommends strategies from a neutral perspective to eliminate or
mitigate those potential impacts. OASCR also reserves the right to
recommend additional mitigating strategies based on our review of
complaint trends and compliance review results. USDA does not have any
direct role in immigration policy but supports our Federal partners
when their initiatives involve USDA equities.

Question 5a. Given USDA's three proposals to cut SNAP benefits, do
you predict a decline in SNAP applications from legal permanent
residents?
Answer. Residency status is outside the purview of OASCR's mission.
The Food & Nutrition Service (FNS) analyzes program participation rates
for the SNAP program. For further information on SNAP participation
rates, please see FNS data compilations at https://www.fns.usda.gov/pd/
supplemental-nutrition-assistance-program-snap.
ERS/NIFA
Question 6. Can you please elaborate on your role in assessing the
civil rights impact of the relocation of the Economic Research Service
(ERS) and the National Institute of Food and Agriculture (NIFA) to
Kansas City?
Answer. OASCR collaborated with the Research, Education, and
Economics (REE) mission area in the analysis of demographic data to
determine whether impacts to protected classes were disproportionate to
their representation in the ERS and NIFA workforce. OASCR determined
impacts were not disproportionate. The mitigating strategies proposed
and implemented by ERS and NIFA were appropriate as proactive
prevention measures. OASCR will continue to monitor employment
complaint and compliance review trends to determine whether any
additional mitigating strategies should be considered.

Question 7. Do you have concerns about the impact of this
relocation on the timely dispersal of resources and information to
minority and beginning farmers and ranchers?
Answer. No. On October 16, 2019, NIFA announced the FY19 awards for
the BFRDP. NIFA made grants to 32 institutions totaling $14.3 million.
NIFA's target is to have all FY 2019 annual funding released by March
2020.
Market Facilitation Program (MFP) Payments
Question 7. You indicated that you were not aware of any details
related to the Market Facilitation Program, which is now the single
largest source of farm subsidies in operation. At the same time, an
analysis conducted by the Farm Bill Law Enterprise showed that 99.4% of
Market Facilitation Program funds have gone to non-Hispanic white
farmers.
Given this troubling statistic, did you conduct a CRIA prior to
USDA releasing the latest tranche of Market Facilitation Program
payments?
Answer. OASCR reviewed and cleared the Farm Service Agency's (FSA)
Market Facilitation Program on July 26, 2018.

Question 7a. If not, do you now plan to conduct a CRIA focused on
the Market Facilitation Program?
Answer. See answer to Question 7.
Questions Submitted by Hon. Dusty Johnson, a Representative in Congress
from South Dakota
Question 1. Ms. Earp, it was reported that you stated, ``frequent
filers use EEO complaints to punish managers and supervisors,'' and
that you believe the practice is ``a pretty effective tool.'' In
reviewing your verbal testimony, you state--verbatim--that ``some
frequent filers use EEO complaints to punish managers and supervisors;
it's a pretty effective tool.'' I see what was reported (and how it was
reported) versus what was said to mean two very different things.
Can you please provide clarification of your verbal statement for
the record?
Answer. Ms. Earp is no longer with the Department and therefore the
Department cannot comment.

Question 2. Ms. Earp, it was reported that your ``comments
perpetuate the conspiracy theory that accusations are fake and
enables[sic] a culture of victim blaming at USDA.'' And that ``this
rhetoric seeks to preemptively absolve bad actors at the Department of
the role they may play in these cases.''
For the record, please respond to these claims.
Answer. Ms. Earp is no longer with the Department and therefore the
Department cannot comment.

Question 3. Ms. Earp, it was reported that an attitude is being
bred where employees are less likely to report discrimination and
harassment in fear of reprisal or that complaints will not be taken
seriously. Your written and verbal testimony contradict such a
statement. Additionally, you have said in previous instances that you
will devote your energy to building a ``culture of civility'' based on
respect for the customers and employees of USDA. That your priority
would be every person's right to respect and dignity in every encounter
between employees and those USDA serves. That your goals included to
target harassment and retaliation issues with new approaches to
training designed to address behavior and not just raise awareness and
sensitivity. That eradicating harassment and retaliation would be the
centerpiece of your tenure to permanently change the very culture and
atmosphere of USDA.
Can you outline what you and your team have done to initiate these
goals? How are you working to address the behaviors that lead to
discrimination, harassment, and/or retaliation? What did you find the
environment to be like when you arrived at OASCR? Were there issues
that needed your immediate attention prior to fulfilling your
priorities? Also, how do you think your footprint will pave the way for
future Administrations and leadership?
Answer. Ms. Earp is no longer with the Department and therefore the
Department cannot comment.
Strengthening civil rights in agriculture programs is a top
customer service priority for OASCR. In FY 2019, the OASCR Call Center
processed 35,296 telephone and written inquiries, of which 69% referred
to food programs, and 13% were in Spanish. The number of program
complaints decreased from 405 to 355 (12%) between FY 2018 and FY 2019,
while the number of days to investigate program complaints decreased
from 594 to 420 (29%) during this timeframe. OASCR is implementing a
pilot program to attempt early resolution of program complaints,
considering procurement options to support this function, and acquiring
a more effective complaint system to manage and track program
complaints in FY 2020.
OASCR is implementing an aggressive approach in proactive
prevention, both to prevent complaints and increase compliance. These
efforts include the development of the USDA Diversity Strategic Plan,
the USDA Affirmative Employment Plan, the Innovative American Diversity
Month, and several training sessions aimed at enhancing the analytic
and evaluation skills of civil rights professionals in the USDA and its
subcomponents.
In FY 2019, OCR oversaw 19 subcomponent compliance reviews and
completed 4 compliance reviews, providing mission areas with
recommendations to strengthen their EEO and civil rights programs. OCR
standardized the methodology for conducting barrier analyses and CRIA,
conducted analytic training for USDA OCR and subcomponent staff,
resulting in process improvements that reduced CRIA review time from 3
weeks to 3 days. OCR established Departmental Regulation 4120-001,
Annual Department Civil Rights Training and completed a draft
Departmental Regulation 4300-008, Reasonable Accommodation and Personal
Assistance Services. OCR also established a committee to assess gaps
and strengthen operations in EEO complaint processing, program
complaint processing, CRIAs, use of demographic data to evaluate equal
access to farm programs, proactive prevention, and the impact of the
2018 realignment on OCR's ability to effectively execute its mission.

Question 4. Ms. Earp, on May 09, 2017 Secretary Perdue issued a
policy statement (https://www.usda.gov/sites/default/files/documents/
5817-Policy-Statement.pdf) (see Attachment 2, p. 47) on the First
Amendment, reestablishing the Department's commitment to safeguarding
every American's First Amendment rights. The Secretary goes on to
discuss how the freedom of expression flourishes in a climate of mutual
respect and tolerance, and that USDA will continue to uproot and
eliminate discrimination, harassment, and retaliation, ensuring
customers and employees work in an atmosphere of dignity and equality.
Ms. Earp, how have you worked to achieve what the Secretary
outlines here? Please be as specific as possible.
Answer. Ms. Earp is no longer with the Department and therefore the
Department cannot comment.
On January 16, 2020, USDA issued a proposed rule that would
implement President Trump's Executive Order No. 13831 (May 3, 2018),
remove regulatory burdens on religious organizations, and ensure that
religious and non-religious organizations are treated equally in USDA
supported programs. The proposed rule ensures that USDA-supported
social service programs are implemented in a manner consistent with the
Constitution and other applicable Federal law, and it also builds on
Secretary Perdue's 2017 Policy Statement on First Amendment (https://
www.usda.gov/media/press-releases/2017/05/09/secretary-perdue-issues-
policy-memo-religious-liberty-and-freedom) (see Attachment 3, p. 48)
that reestablished USDA's commitment to safeguarding every American's
First amendment rights. The proposed rule incorporates the Attorney
General's 2017 Memorandum for All Executive Departments and Agencies,
Federal Law Protections for Religious Liberty (https://www.justice.gov/
opa/press-release/file/1001891/download) (see Attachment 4, p. 49).
That memorandum was issued pursuant to President Trump's Executive
Order No. 13798 (May 4, 2017), and it guides all Federal administrative
agencies and executive departments in complying with Federal law.

Question 5. Ms. Earp, on October 29, 2019, the Assistant Inspector
General for Audit sent notification of a final action verification of
nine recommendations related to an audit report entitled Review of
Expenditures Made by the Office of the Assistant Secretary for Civil
Rights (https://www.usda.gov/oig/webdocs/60026-0001-21.pdf) (see
Attachment 5, p. 66). I am pleased to see that OASCR and the Office of
Procurement and Property Management worked so diligently to close the
audit report recommendations. I did notice however, that one
recommendation had to be reopened, with a corrective action to be
completed on November 09.
What is the status of Recommendation 1, the training of OASCR staff
on Federal legal authorities and Departmental policies and procedures
regarding proper practices for obligating funds? Have the three
remaining SES and GS-15 staff been provided training?
Answer. OASCR certified during the first quarter of FY20 the
language required by the IG has been incorporated into the performance
standards of the SES and GS-15 supervisors, and OASCR plans to provide
this training during the second quarter of FY20.
Attachment 1
U.S. Department Of Agriculture
Washington, D.C. 20250
Departmental Regulation
Number: 4300-004
Date: October 17, 2016
Subject: Civil Rights Impact Analysis
OPI: Office of Assistant Secretary for Civil Rights

1. Purpose
2. Special Instructions/Cancellation
3. Scope
4. Policy
5. Definitions
6. Objectives
7. Actions Requiring CRIAs
8. Roles and Responsibilities
9. CRIA Analysis Elements
10. Mitigation
11. Outreach Strategies
12. Monitoring and Evaluation
13. Conclusion
14. Retention of CRIA Records
15. Expedited Clearance for Regulatory Action Only
16. Waivers
17. CRIA Technical Assistance Request
Appendix A
Attachment A: Sample: Current and Proposed
Organizational Changes
Appendix B Sample--CRIA Certification
Appendix C Authorities and References
1. Purpose
This Departmental Regulation (DR) establishes the Civil Rights
Impact Analysis (CRIA) policy and procedures for the U.S. Department of
Agriculture's (USDA or the Department) employment, federally conducted
and federally assisted programs and activities.
The regulation also provides guidance to the agencies, Departmental
Management (DM), National Appeals Division (NAD), Office of the
Inspector General (OIG), and staff offices of the Department on how to
prepare and meet all CRIA obligations as set forth in this regulation.
2. Special Instructions/Cancellation
This regulation replaces DR 4300-004, Civil Rights Impact Analysis,
dated May 30, 2003.
Agencies must update their processes and procedures in accordance
with this DR within 120 calendar days of the effective date.
3. Scope
This regulation applies to all USDA agencies, DM, staff offices,
NAD and OIG.
4. Policy
It is USDA's policy to treat customers and employees fairly and
equitably, with dignity and respect, regardless of race, color,
national origin, disability, sex, gender identity (which includes
gender expression), political beliefs, age, marital, family/parental
status, religion, sexual orientation, reprisal, or because all or a
part of an individual's income is derived from any public assistance
program.
Essentially, agencies, DM, staff offices, NAD and OIG are required
to analyze the civil rights impact(s) of policies, actions, or
decisions that will affect the USDA workforce or its federally
conducted or federally assisted programs and activities.
5. Definitions
Within the context of this regulation, the following definitions
apply:a. Agency. For purposes of this directive, agency is defined as a
major program organizational unit of the Department with delegated
authorities to deliver programs, activities, benefits, or services. The
term ``agency'' does not include DM, OIG, NAD or staff offices.
b. Agency Head. The Administrator, Chief or Director or an office
or agency who is the official named or designated to have primary
responsibility for the management of the Agency as delegated under 7
CFR 2, (https://www.govinfo.gov/app/details/CFR-2006-title7-vol1/CFR-
2006-title7-vol1-part2), Delegations of Authority by the Secretary of
Agriculture and General Officers of the Department.
c. Agency Head Assessment. The annual assessment of Agency Heads
and applicable Staff Office Directors by the Office of the Assistant
Secretary for Civil Rights (OASCR), utilizing the Civil Rights
Performance Plan and Accomplishment Report (the Plan), to evaluate and
rate each Agency and applicable Staff Office for effectiveness and
compliance with the Department's civil rights policies and regulations.
The Plan requires agencies and applicable staff offices to annually
assess their civil rights activities and accomplishments and submit a
report to OASCR to ensure civil rights accountability throughout USDA.
The civil rights accomplishment rating issued by OASCR serves as a
representative rating of the Agency Heads and applicable Staff Office
Directors.
d. Assistant Secretary for Civil Rights (ASCR). The civil rights
official for USDA with authority pursuant to 7 CFR 2.25 (https://
www.gpo.gov/fdsys/pkg/CFR-2005-title7-vol1/pdf/CFR-2005-title7-vol1-
sec2-25.pdf) for the performance and oversight of civil rights
functions within USDA, including the authority and discretion to
delegate civil rights functions to Agency Heads and Offices.
e. Assisted Programs and Activities. Program services, benefits or
resources delivered through a recipient of USDA funding to assist an
ultimate beneficiary.
f. Civil Rights Director. An individual appointed by the Agency
Head, who is responsible for the implementation of an equal employment
program and for federally assisted and federally conducted programs, to
promote equal employment opportunity, and to identify and eliminate
discriminatory practices and policies. Civil Rights Directors report
directly to their Agency Heads and for the purposes of this regulation,
the Civil Rights Director will also serve as an EEO Director as set
forth at 29 CFR 1614.102(b)(4) (http://www.ecfr.gov/cgi-bin/text-
idx?SID=c72459d7d08958d9bc0ed6bbebc4d448&mc=true&node=se29.4.1614_1102&
rgn=div8).
g. Civil Rights Impact. The consequences of policies, actions, and
decisions which impact the civil rights and opportunities of protected
groups or classes of persons who are USDA employees or program
beneficiaries.
h. Civil Rights Impact Analysis (CRIA). An analytical process used
to determine the scope, intensity, direction, duration, and
significance of the effects of an Agency's proposed employment and
program policies, actions, and decisions. A CRIA identifies the effects
of: (1) proposed employment actions; (2) eligibility criteria for USDA
benefits; (3) methods of implementation, (4) under-representation or
lack of diversity within its programs; or (5) any other Agency-imposed
requirements that may adversely and disproportionately impact employees
or program beneficiaries based on their membership in a protected
group. Proper follow-up actions based on CRIA findings can lessen,
eliminate or substantially alleviate these adverse impacts on protected
groups.
i. Civil Rights Implication. Information or data that suggest, or
from which one may infer, that a policy, action, or decision will
affect groups or classes of persons, or any given individual,
positively or negatively.
j. Concurrence. OASCR approval of the proposed action, policy or
decision that will affect the USDA workforce or its federally conducted
or assisted programs or activities based on the requirements of current
civil rights laws.
k. Conducted Programs and Activities. Program services, benefits or
resources delivered directly to the public by USDA.
l. Contingent Concurrence. OASCR concurrence dependent upon
specific actions required to be taken by the agency, staff office, DM,
NAD or OIG or the submission of additional information requested to
complete the assessment as to whether a proposed action, policy or
decision will affect the USDA workforce or its federally conducted or
its assisted programs and activities.
m. Departmental Management. USDA's central administrative
management organization that provides support to policy officials of
the Department and overall direction and coordination for the
administrative programs and services of USDA under the direction and
supervision of USDA's Assistant Secretary for Administration (ASA) with
authority pursuant to 7 CFR 2.24 (https://www.gpo.gov/fdsys/granule/
CFR-2011-title7-vol1/CFR-2011-title7-vol1-sec2-24).
n. Disparate Treatment. The less favorable treatment of a person or
persons by reason of one or more prohibited bases when compared with/
contrasted to another group(s) or class(es) of persons that is
similarly situated.
o. Disparate Impact (Adverse Impact). Neutral employment or program
policies, practices, actions, or decisions which are applied
evenhandedly (are of ``general applicability''), but have the effect of
excluding or otherwise adversely affecting groups or classes of persons
by reason of one or more prohibited bases.
p. Disproportionate Impact. A theory of liability which prohibits
an employer or program from using a facially neutral employment
practice that has a greater adverse impact on members of a protected
class. A facially neutral employment practice or program that does not
appear to be discriminatory on its face; rather it is discriminatory in
its application or effect.
q. Eligibility Criteria. Summary criteria for participant selection
based on requirements mandated by Congress or internal Agency
recommendations and regulations.
r. Employee. An individual employed in any position within USDA.
Contractors, interns, and volunteers may be included under this
definition; however, specific criteria must be met in order for them to
be classified an ``employee'' for EEO purposes.
s. Expedited Clearance. The process set forth in Section 15 of this
regulation.
t. Group or Class. Multiples of similarly situated persons who may
be distinguished by their common race, color, national origin, age,
disability, and where applicable, sex, gender identity (includes gender
expression), marital status, familial status, parental status,
religion, sexual orientation, genetics, political beliefs, or receipt
of income from any public assistance program.
u. Methods of Implementation. The full range of practices,
management prerogatives, application criteria, participation
requirements, processes, and procedures used by management to
administer federally assisted or federally conducted programs and
activities within USDA.
v. Non-concurrence. OASCR decision to not concur with a proposed
action, policy or decision that will affect the USDA workforce or its
federally conducted or assisted programs or activities based on the
requirements as set forth in this regulation and current civil rights
laws.
w. Policies, Actions, or Decisions. All those prerogatives
exercised by USDA as set forth in Section 7 below.
x. Prohibited Bases. Discrimination that is prohibited in
employment and program activities based on race, color, national
origin, age, disability, sex, gender identity (including gender
expression), genetic information, political beliefs, sexual
orientation, marital status, familial status, parental status, veteran
status, religion, reprisal and/or resulting from all or a part of an
individual's income being derived from any public assistance program.
y. Protected Groups. Any person, group, or class of persons
protected under Federal regulations and/or any Executive Orders from
discrimination based on a prohibited basis.
z. Recipient. A person or group of persons with an entitlement to
receive or enjoy the benefits, services, resources, or information from
USDA, or to participate in activities and programs conducted or funded
in whole or part by USDA.
aa. Reorganization. The planned elimination, addition,
redistribution of functions or duties, or movement of employees in an
organization or the movement of a function within a competitive area.
For the purposes of this regulation, reorganizations also include
office closures, relocations, abolishment, consolidations, reductions-
in-force, Transfer of Functions, realignments, and reassignments.
bb. Staff Office. An administrative office with a specialized
support function as defined by 7 CFR 2.4 (https://www.gpo.gov/fdsys/
granule/CFR-2010-title7-vol1/CFR-2010-title7-vol1-sec2-4/content-
detail.html). All staff offices, with the exception of NAD and OIG,
report directly to the Secretary of Agriculture. NAD and OIG are in the
Secretary's reporting chain, but have independent authority and
reporting responsibilities.
cc. Significant Regulatory Action. Proposed, interim, or final
rules that are likely to result in a rule that may: (1) have an annual
effect on the economy of $100 million or more; (2) create a serious
inconsistency or otherwise interfere with an action taken or planned by
another Agency; (3) materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs; or (4) raise novel
legal or policy issues arising out of legal mandates.
dd. Transfer of Function. Occurs when a function will cease in one
competitive area and move to another competitive area that does not
perform that function at the time of the transfer or the movement of a
competitive area in which the function is performed to a different
local commuting area.
6. Objectives
The objectives of this regulation are to:

a. Establish procedures for the review and analysis of
policies, regulations, reorganizations, advisory committee
establishments and renewals, or decisions whose implementation
may have potential adverse impacts based on civil rights laws,
regulations and/or USDA's policy on nondiscrimination;
b. Ensure that the issuance of policies, regulations,
reorganizations, advisory committee establishments and renewals
or decisions may not adversely and/or disproportionately impact
employees and/or program beneficiaries and recipients because
of their membership in a protected group;
c. Utilize CRIAs as a management tool to assess the proposed
action to determine the potential impacts on employees and/or
program participants;
d. Reinforce the requirement to collect demographic data in
accordance with current Federal civil rights laws and
regulations and USDA DRs and policies;
e. Require outreach strategies, as outlined in CRIA outreach
plans, to be implemented and monitored to ensure that protected
groups are informed of the benefits, requirements, etc., of
specific policies and/or regulations;
f. Establish mitigation strategies to lesson any adverse
impact; and
g. Provide oversight and monitoring of the proposed action in
order to measure the extent of any adverse impact(s) and the
effectiveness of the mitigation strategy in lessening the
impact and results of the outreach strategy.
7. Actions Requiring CRIAs
a. The following actions require the preparation of a CRIA and must
be submitted to OASCR for determination of CRIA sufficiency and final
clearance:

(1) Significant regulatory actions and notices to be
published in the Federal Register and the Code of Federal
Regulations;
(2) Charters and charter renewals for advisory committees,
councils, or boards managed on behalf of the Department or
Secretary;
(3) Departmental regulations, manuals, and notices that
require Departmental approval;
(4) Proposed reorganizations requiring Departmental approval
as prescribed in DR 1010-001 (https://www.ocio.usda.gov/
document/departmental-regulation-1010-001), Organization (see
definition of reorganization for additional employment
actions); and
(5) At the discretion of the ASCR, other policy, program,
action, or activity, or the implementation which may have
potentially adverse civil rights impacts.

b. The following actions that do not meet the criteria in Section
7(a) above, require a CRIA to be conducted and implemented, but does
not have to be submitted to OASCR for determination of CRIA
sufficiency:

(1) New and revised agency-specific instructions, procedures,
manuals, and other guidance published in agency directives
systems;
(2) Advisory boards and committees that are established at
the discretion of the agency and are not mandated by statute,
rule, or USDA regulation;
(3) Budget proposals;
(4) Grants and contracts;
(5) Organizational changes not requiring Departmental
notification as prescribed in DR 1010-001; and
(6) National, regional, and local special projects affecting
program beneficiaries.
8. Roles and Responsibilities
a. OASCR
OASCR provides the overall leadership, coordination, direction,
evaluation and clearance of USDA's programs, activities and impact
statements for civil rights concerns, including:

(1) Consulting, advising, and providing technical assistance
to agencies, DM, NAD, OIG, and staff offices;
(2) Identifying civil rights implications and impacts of
proposed policies, significant regulations, programs, advisory
committees, and employment actions;
(3) Approving proposed policies, significant regulations,
programs, advisory committees, and employment actions by the
designated time from the Office of Budget and Program Analysis
(OBPA), the Office of Human Resources (OHRM), or the White
House Liaison Office.
(4) Analyzing and evaluating program participation data and
equal employment opportunity data, and make its analyses
available to Agencies, DM, NAD, OIG, and Staff Offices;
(5) Providing an assessment of an agency, DM, and applicable
staff offices' compliance with CRIAs and this regulation
through the Agency Head assessment process;
(6) Provide a Concurrence, Non-concurrence or Contingent
Concurrence on the proposed action submitted by the agency,
NAD, OIG, and staff office CRIA submissions based on the
provisions of this regulation;
(7) May issue a Non-concurrence if agencies have not met
requirements of the Contingent Concurrence within 60 days of
the requested deadline in the CRIA or the package has been
received incomplete and an analysis cannot be completed in time
for deadlines requested by OBPA, OHRM, or White House Liaison
to be met;
(8) If there is a non-concurrence, may view that as a factor
when determining Final Agency Decision (FAD) pursuant to the
Department's Equal Employment Opportunity DR; and
(9) Hold agencies, DM, NAD, OIG, and staff offices
accountable for actions required as a result of a Contingent
Concurrence or a Non-Concurrence.
b. Agencies
All agencies must develop a CRIA when proposing policies, actions,
or decisions that affect their workforce or their federally conducted
or federally assisted programs and activities. Each Agency Head will
take the following actions when developing CRIAs and implementing civil
rights strategies related to regulations, reorganizations, and advisory
committees:

(1) Analyze the civil rights impact(s) of policies, actions,
or decisions that affect their workforce or its federally
conducted or federally assisted programs and activities;
(2) Identify the effects of proposed employment actions,
eligibility criteria for USDA benefits, methods of
implementation, under-representation or lack of diversity
within its programs that may adversely and disproportionately
impact its employees or program beneficiaries based on their
membership in a protected group;
(3) Involve subject matter experts from the appropriate
disciplines (e.g., economists, statisticians, budget analysts,
civil rights analysts, program management analysts, human
resources analysts, etc.);
(4) Comply with all components of a Contingent Concurrence in
accordance with the terms and conditions of the contingent
concurrence and the provisions of this regulation;
(5) Consult with stakeholders, minority groups, disability
organizations, educational institutions, and customers, as
appropriate, to obtain input prior to decision-making;
(6) Analyze program participation data by race, ethnicity,
gender, and disability to identify any adverse impacts (See
Section 9, CRIA Analysis Elements for further information);
(7) Analyze impacts of proposed employment actions on
protected groups by race, sex, national origin, disability, and
age (40 and over). (See Section 9 (b) Reorganizations for
further information);
(8) Identify and analyze the civil rights implications and
impacts of eligibility criteria, methods of implementation, and
other requirements associated with policies, regulations,
programs, reorganizations, advisory committees and activities
on employees, recipients, and beneficiaries;
(9) Develop mitigation and outreach strategies to eliminate,
alleviate, or lessen such impacts (See Sections 10 and 11 for
further information);
(10) Refer problematic aspects that cannot be resolved at the
agency level to OASCR for review and guidance with supporting
documentation on any potential civil rights implications or
impacts;
(11) Hold supervisors and managers accountable through their
performance review appraisal for:

(a) ensuring that their CRIAs are implemented and
effectively eliminate or mitigate any adverse impact on
protected groups; and
(b) carrying out all of the responsibilities as
required in this regulation;

(12) Submit a CRIA to OASCR, including a Civil Rights
Certification signed by the Civil Rights Director on the
proposed policy, program, employment action or activity, for
review with a determination of CRIA sufficiency;
(13) Obtain either a Concurrence or a Contingent Concurrence
prior to implementing any proposed action; and
(14) Failure to comply with the requirements of a Contingent
Concurrence will: (1) negatively impact a supervisor's end of
year civil rights performance element performance; and (2) the
supervisor will be required to conduct another CRIA that
complies with the requirements of this regulation.
c. DM, Staff Offices, NAD, and OIG
DM, staff offices, NAD, and OIG must, in collaboration with OASCR,
develop a CRIA when proposing policies, actions, or decisions that
affect their workforce and take the following actions when developing
CRIAs and implementing civil rights strategies related to regulations,
reorganizations, and advisory committees:

(1) Analyze the civil rights impact(s) of policies, actions,
or decisions that affect their workforce or its federally
conducted or federally assisted programs and activities;
(2) Identify the effects of proposed employment actions,
eligibility criteria for USDA benefits, methods of
implementation, under-representation or lack of diversity
within its programs that may adversely and disproportionately
impact its employees or program beneficiaries based on their
membership in a protected group;
(3) Involve subject matter experts from the appropriate
disciplines (e.g., economists, statisticians, budget analysts,
human resources analysts, etc.);
(4) Consult with stakeholders, minority groups, disability
organizations, and customers, as appropriate, to obtain input
prior to decision-making;
(5) Analyze impacts of proposed employment actions on
protected groups by race, sex, national origin, disability, and
age (40 and over). (See Section 9 (b) Reorganizations for
further information);
(6) Identify and analyze the civil rights implications and
impacts of proposed eligibility criteria, methods of
implementation, and other requirements associated with
policies, regulations, programs, reorganizations, advisory
committees and activities on employees;
(7) Develop mitigation and outreach strategies to eliminate,
alleviate, or lessen such impacts (See Sections 10 and 11 for
further information);
(8) Refer problematic aspects that cannot be resolved at the
Agency level to OASCR for review and guidance with supporting
documentation on any potential civil rights implications or
impacts;
(9) Hold supervisors and managers accountable through their
performance review appraisal for:

(a) Ensuring that their CRIAs are implemented and
effectively eliminate or mitigate any adverse impact on
protected groups; and
(b) Carrying out all of the responsibilities as
required in this regulation; and

10) Finalize the CRIA with OASCR and obtain certification for
the CRIA from the ASA or, if designated by the ASA, the Staff
Office Administrator, or appropriate Agency Head for NAD and
OIG on the proposed policy, employment action, or activity for
review and a determination of CRIA sufficiency.
9. CRIA Analysis Elements
This section outlines the minimum elements necessary for preparing
a CRIA on the following:

a. Significant Rules, Non-Significant Rules, Notices, and
Departmental Regulations

(1) Background

The Background narrative must:

(a) Indicate whether the rule is proposed,
interim or final;
(b) Describe the objective and purpose of the
rule;
(c) Identify the beneficiaries and
recipients;
(d) Cite the authority(ies) for the rule
which would include both programmatic and civil
rights authorities;
(e) List any changes proposed; and
(f) Identify results, if any, from comments
received from Federal Register notifications.

(2) Analysis

The analysis narrative must:

(a) Identify the appropriate theory(ies) of
discrimination that will be used to analyze the
policy, significant regulation, program, or
activity, i.e., disparate treatment, disparate
impact;
(b) Identify whether or not it contains any
requirement related to eligibility, benefits,
and/or services, that may have the purpose or
effect of excluding, limiting, or otherwise
disadvantaging any group or class of persons on
one or more prohibited bases;
(c) Describe the civil rights impacts to
determine whether:

1 They are likely to be beneficial;
such as increased participation,
additional program benefits, less
requirements for eligibility;
2 They are likely to maintain the
status quo; or
3 They are likely to have an adverse
impact;

(d) Determine whether or not the civil rights
impacts will adversely affect one or more
groups or classes of persons, specifically:

1 Whether or not the impacts will be
disproportionate; and
2 How the disproportionate impacts
will be manifested;

(e) Identify whether and the extent to which
each group or class of persons may be
potentially affected, positively or negatively;
(f) Analyze the regulatory action's
objective, implementation, relevant numerical
data, and information to determine if there are
significant differences in potential civil
rights impacts among groups or classes of
persons;
(g) Analyze current race, ethnicity, gender
(REG), and if applicable disability data
collection of program participants from various
sources (i.e., U.S. Census, Census of
Agriculture, agency internal databases, etc.)
to determine if implementation will result in
under-representation or will disproportionately
impact protected groups;
(h) Determine whether action or
implementation will have an adverse or
disproportionate (impact ratios amongst
impacted groups by REG impact(s) on protected
groups;
(i) Identify Tribal implications--any actions
that may impose an adverse impact on Indian
Tribal Governments that are not required by
statute;
(j) Identify positive impacts on protected
groups;
(k) Determine any barriers which exist that
prevent the increase of minority, women, or
persons with disabilities' participation.
(l) Identify civil rights monitoring and
evaluation processes; and
(m) Address all OASCR recommendations from
prior CRIA response, if applicable (for interim
and final rules).

(3) Mitigation

Agencies, DM, NAD, OIG, and staff offices must
develop and implement a mitigation strategy that will
eliminate, alleviate, or lessen any adverse impact(s)
as a result of a policy, action or decision.

(4) Outreach Strategy

Agencies, DM, NAD, OIG, and staff offices must
develop and implement an outreach strategy to ensure
customers, who are members of protected groups, receive
timely notification of any changes to a program or
procedure per the regulatory action(s). (See Section
11)

b. Reorganizations

(1) Background

The Background narrative must include:

(a) Proposed activity;
(b) Reason for the proposed activity
(budgetary constraints, functional changes,
etc.);
(c) Effective date of proposed activity; and
(d) Current and proposed organizational
structure.

(2) Analysis

The following methods must be included when
preparing an analysis of the proposed action(s):

(a) Analyze how the implementation of the
proposed action will or may impact employees
(i.e., relocation, change in reporting
structure, change in unit name, reassignment,
loss of supervisory authority and change in any
title, series, grade, duties).
(b) Identify the:

1 Total number of full-time
equivalent (FTE) (including encumbered
and vacant);
2 Total number of FTEs impacted;
3 Number of impacted encumbered
FTEs; and
4 Number of impacted vacant
positions.

(c) Utilize the prescribed OASCR chart (see
Appendix A) to capture the specific impacts on
each employee by name and their current and
proposed title (indicate if supervisory),
series, grade, duty station, race, sex,
national origin, disability, and age.
(d) Summarize the number and percentage of
impacted employees by race, sex, national
origin, disability, and age (RSNODA) data.
(e) Summarize the impacts on protected groups
based on the RSNODA data.
(f) Outline the criteria used to determine
the action(s) (relocation, reassignment, loss
of supervisory authority and change in any
title, series, grade, duties) impacting each
affected employee(s).
(g) Identify any impacts to customer's access
to services (positive or negative):

1 Address whether any disruption in
service for the customer will occur;
2 Identify if additional commuting
will be required to obtain services;
and
3 Address if one protected group is
impacted more than another.

(3) Mitigation

Agencies, DM, NAD, OIG, and staff offices must
develop and implement a mitigation strategy that will
eliminate, alleviate, or lessen any adverse impact(s),
i.e., loss of supervisory authority, relocation, change
in title, series, grade, as a result of the employment
action(s).

(a) Mitigation must be tailored to the
adverse or disproportionate impact(s). Type of
mitigation should include:

1 Training of employees with a
change in title, series, grade and
duties;
2 Relocation expenses for employees
required to move more than 50 miles;
3 Detail opportunity for employees
losing supervisory responsibilities;
4 Timely communication (w/union,
public, customers, employees);
5 Involvement of employees in
decision making process;
6 Maintain reasonable
accommodation(s) for persons with a
disability;
7 Provide assistance with new job
search, resume writing, interviewing
techniques and administrative time;
8 Allow telework and flextime
schedules;
9 Research shared office space with
another USDA agency; and
10 Cross training of employees, so
they do not have to relocate.

(4) Outreach Strategy

Agencies, DM, NAD, OIG, and staff offices must
develop and implement an outreach strategy to ensure
customers who are members of protected groups receive
timely notification of any proposed employment
action(s) i.e., office closure. (See Section 11)

c. Advisory Committees

(1) Background

The background narrative must include:

(a) Name of authority that establishes
Committee and Council;
(b) Appointment term for each member;
(c) Length of the Charter;
(d) Summary of Committee's function(s); and
(e) Expiration date.

(2) Analysis

The following methods must be included when
preparing an analysis of the proposed action(s):

(a) Describe the civil rights impacts to
determine whether:

(b) Determine whether or not the civil rights
impacts will adversely affect one or more
groups or classes of persons, specifically:

1 Whether or not the impacts will be
disproportionate; and
2 How the disproportionate impacts
will be manifested.

(c) Identify the appropriate theory(ies) of
discrimination that will be used to analyze the
program, advisory committee, or activity, i.e.,
disparate treatment, disparate impact.
(d) Identify whether or not it contains any
requirement related to eligibility, benefits,
and/or services, that may have the purpose or
effect of excluding, limiting, or otherwise
disadvantaging any group or class of persons on
one or more prohibited bases.
(e) Identify whether and the extent to which
each group or class of persons may be
potentially affected, positively or negatively.
(f) Identify current and proposed memberships
by race, sex, national origin and disability.
(g) Identify projected vacancies based on
current membership's end of appointment.
(h) Prepare a trend analysis of increase or
decrease in diversity based on past 2 to 3 year
membership data.
(i) Determine any barriers which exist that
prevent the increase of membership diversity.

(3) Outreach Strategy

Agencies, DM, NAD, OIG, and staff offices must
develop and implement an outreach strategy to ensure
applicants and nominees, who are members of protected
groups, receive timely notification of any advisory
committee vacancies. (See Section 11)
10. Mitigation
If an adverse or disproportionate impact is projected the following
methods for lessening the adverse or disproportionate impact will be
identified and implemented:

a. Mitigation must be tailored to the adverse or
disproportionate impact(s) found in the analysis. Examples of
mitigation include:

(1) Staggering implementation dates;
(2) Delaying or establishing incremental cost
increases to lesson financial burdens;
(3) Providing adequate time to meet the required
timeframes and initial startup times;
(4) Incorporating language that will address small
businesses and socially disadvantaged beginning and
limited resource farmers and ranchers needs (i.e., set
aside a percentage of program funding);
(5) Giving priority funding projects that provide a
benefit to under-served communities, which include
urban and Indian Tribal communities; and
(6) Addressing eligibility and criteria revisions
that ultimately have a disproportionate impact.

b. Providing guidance and technical assistance to customers
to assist them with meeting the established requirements.
c. Conducting a barrier analysis which includes:

(1) Identifying any barriers preventing effective
implementation and outreach;
(2) Developing a strategy for eliminating those
barriers; and
(3) Identifying and selecting feasible strategies and
actions for implementation that the Agency could
utilize to offset adverse and disproportionate civil
rights impacts (short-term and/or long-term).
11. Outreach Strategies
The CRIAs will contain an outreach plan that includes the
following:

a. Communicating with the following protected groups:

(1) Minorities;
(2) Women;
(3) Persons with disabilities--accessible electronic
documents and alternative communication methods (ex.,
TDD, Braille, if applicable);
(4) Persons with limited English proficiency (LEP)--
translation of vital documents and oral interpretation
services;
(5) Veterans (if applicable);
(6) Indian Tribal Governments (if applicable); and
(7) Lesbian, Gay, Bisexual, and Transgender (LGBT)
community.

b. Outlining methods the Agency will utilize to ensure the
aforementioned protected groups are aware of the proposed
actions by contacting affected organizations, institutions, and
groups by the following means:

(1) Face-to-face meetings;
(2) Emails;
(3) Postings, newspaper publications;
(4) Telephonic, television and radio announcements;
and
(5) Website and other social media.

c. Identify an outreach strategy that will eliminate, or
alleviate, adverse and disproportionate civil rights impacts
for the affected groups or classes of persons. The outreach
strategy should include the following:

(1) Specific methods(s) by which the agency will
monitor its outreach efforts to protected groups and
organizations (See Section 12);
(2) Lists of minority organizations, radio and
television stations, community based organizations,
advocacy groups, disability organizations, colleges and
universities, Indian Tribal Governments, Tribal
officials, other Federal agencies, and other entities
the Agency will contact to ensure protected groups are
aware of the benefits of the program;
(3) Notices posted or advertised;
(4) Methods of outreach conducted to individuals,
organizations, schools, or universities;
(5) Communication with individuals with disabilities,
persons age 40 and above, and LEP customers, and what
alternative methods were used to make the contacts,
i.e., TTD, Braille; Spanish, etc.;
(6) The outcome of the contacts, and method(s) used
to monitor and evaluate contact; and
(7) The Tribal Governments contacted and the date
meetings were held to discuss the program or activity.
12. Monitoring and Evaluation
Each agency, DM, NAD, OIG and staff office, in collaboration with
its civil rights office, will monitor and evaluate the results of
strategies and/or actions it implements to address adverse and
disproportionate civil rights impacts of its programs and employment
activities as follows:

a. Monitoring and evaluation responsibilities should be
coordinated with or integrated into annual business plans,
civil rights strategic plans, Affirmative Employment Program
Plans, Civil Rights Implementation Plans, Outreach Plans, etc.;
b. Supervisors and managers will be held accountable for
implementing strategies and actions to eliminate, alleviate, or
mitigate adverse and disproportionate civil rights impacts via
annual performance plans;
c. Monitor and evaluate the effectiveness of the outreach and
mitigation strategies utilized; and
d. Monitor complaints and compliance reviews resulting from
the actions taken and institute any corrective actions
necessary to resolve the issues raised.
13. Conclusion
The CRIAs will contain a Conclusion section that will include the
following:

a. A summary statement indicating whether the proposed
action, its objective, and/or implementation will have an
adverse or disproportionate impact on protected groups; and
b. A certification signed by the current Civil Rights
Director or ASA (for DM and Staff Offices only) (See Appendix B
for example CRIA Certification).
14. Retention of CRIA Records
Agencies, DM, NAD, OIG and staff offices will retain all CRIA
documents for a minimum of three years and make them available to
OASCR, OGC, OIG, and other USDA agencies, DM and staff offices upon
request, and third parties as prescribed by law.
15. Expedited Clearance for Regulatory Actions Only
a. Agencies are required to complete CRIAs in accordance with
Section 9. However, OASCR may agree to expedite the clearance of
certain rules, notices, or other regulatory actions Prior to submission
of a CRIA if an Agency Head submits a final, draft or advance copy of
the rule, notice, or other regulatory action, along with a written
request. Such a request must include:

(1) The purpose of the rule, notice, or proposed action;
(2) Information on who will benefit from issuance of the
rule, notice, or proposed action and the manner in which they
will benefit;
(3) The reason or rationale justifying the request for
expedited clearance;
(4) The consequences of denial of a request to expedite the
rule, notice, or proposed action; and
(5) A proposed deadline for completing the CRIA.

b. If the request for expedited clearance is approved, OASCR will
either confirm the deadline submitted for completing the CRIA or
negotiate a new one. It is likely that a request for expedited
clearance will be approved if:

(1) Expedited clearance will facilitate publication of a rule
or notice that must be immediately implemented to protect the
health and safety of the public or to prevent or mitigate
catastrophic across-the-board economic harm to domestic
producers; or
(2) The rule or notice must be promulgated within 30 days or
less by order of the President of the United States or the
Secretary; and
(3) The request for expedited clearance is timely received.

c. A request for expedited clearance may not be approved if the
rule, notice, or other regulatory action is:

(1) Identified in an agency's planned rulemaking work plan
that is required by OBPA;
(2) Scheduled to be published more than 30 days after the
date of the request for expedited clearance; or
(3) Promulgated at the discretion of the Agency Head.

d. In situations where OASCR agrees to expedite the clearance of a
rule, notice, or other regulatory action, the agency must submit the
CRIA in accordance with an agreed upon deadline. The agency will be
held accountable for:

(1) Meeting the CRIA deadline agreed upon; and
(2) Implementing recommendations from OASCR designed to
eliminate, alleviate, or mitigate potential adverse and
disproportionate civil rights impacts.
16. Waivers (For Regulations Only)
a. An agency may request a waiver from the CRIA approval process if
the subject matters, is being implemented in accordance with the
requirements of a statute or treaty, and has no foreseeable adverse
civil rights impacts. To request a waiver, an Agency Head must submit
the final, draft, or advance copy of the rule, notice, or other
regulatory action, along with the written request that includes the
following information:

(1) Purpose of the rule, notice, or other regulatory action;
(2) Information on who will benefit from issuance of the
rule, notice, or other regulatory action and the manner in
which they will benefit; and
(3) Justification for the waiver request.

b. A waiver will be granted on a case-by-case basis, for:

(1) Final rules previously reviewed and concurred on by OASCR
as proposed or interim rules, if no substantive modifications
or additions were made in the provisions;
(2) Rules, notices, or other regulatory actions that deal
with strictly scientific or administrative matters that clearly
have no civil rights implications; or
(3) Rules, notices, or other regulatory actions that are
outside the jurisdictional control of the program Agency
issuing the rule, notice, or other regulatory action.
17. CRIA Technical Assistance Requests
a. Each agency, DM, NAD, OIG, and staff office will submit a
written request for technical assistance to the OASCR's Office of
Compliance, Policy, Training and Cultural Transformation's Policy
Division 45 working days prior to initiating the USDA clearance process
for the following documents:

(1) Reorganizations;
(2) Advisory Committees; and
(3) Significant regulatory actions.

4b. The document and the CRIA, as well as, any other supporting
documentation, i.e., the final, draft or advance copy of the
significant rule, notice(s), reorganization proposals, advisory
committee renewals or establishments or other regulatory action,
should:

(1) Identify civil rights issues, implications, and impacts,
for the proposed action;
(2) Identify the determination made as to whether the
proposed action will have an adverse or disproportionate impact
on protected populations and reasons for the conclusion;
(3) Identify Tribal implications or any actions that impose
substantial direct compliance costs on Indian Tribal
Governments, and that is not required by statue (if
applicable);
(4) Identify all mitigation that will be conducted to lessen
any adverse impact on women, minorities, age 40 and over (where
applicable) and/or persons with disabilities;
(5) Identify the race, sex, national origin, age (where
applicable) and disability data of impacted population as
required in Section 9 of this regulation;
(6) Establish effective outreach strategy for ensuring that
women, minorities, persons age 40 and over (where applicable)
and/or persons with disabilities are aware of the proposed
action in accordance with Section 11; and
(7) Ensure all Limited English Proficiency (LEP) activities
will be conducted for the proposed action in accordance with
USDA's DR 4330-005 (https://www.ocio.usda.gov/document/
departmental-regulation-4330-005), Prohibition Against National
Origin Discrimination Affecting Persons with Limited English
Proficiency in Programs and Activities Conducted by USDA and/or
USDA's 7 CFR 15 (https://www.gpo.gov/fdsys/pkg/FR-2014-11-28/
pdf/2014-27960.pdf), Guidance to Federal Financial Assistance
Recipients Regarding the Title VI Prohibition Against National
Origin Discrimination Affecting Persons with Limited English
Proficiency.
Appendix A
Attachment A

Sample: Current and Proposed Organizational Changes
----------------------------------------------------------------------------------------------------------------
Status/Duty
Current Station
Position Proposed Current/
Title Grade/ Org. Org. Position proposed
Name Series Moved Moved To title Grade/ Miles Sex Race Age Disability
(indicate if From Series difference
supervisory) between the
offices
----------------------------------------------------------------------------------------------------------------

----------------------------------------------------------------------------------------------------------------

Appendix B
Sample--CRIA Certification
Certification:

Office and Division or Location: XXXXXX
Proposed Action: XXXX

I certify I have reviewed and analyzed the appropriate
documentation and determined that:

No major civil rights impact is likely to result if
the proposed action is implemented.
A major civil rights impact, as described below, is
likely to result if the proposed action is implemented.

-------------------- --------------------
Administrator Date

Appendix C
Authorities and References
a. Statutory Authorities
(1) Age Discrimination Act of 1975 (https://www.govinfo.gov/app/
details/USCODE-2010-title42/USCODE-2010-title42-chap76-sec6101), as
amended
(2) Age Discrimination in Employment Act of 1967 (https://
www.eeoc.gov/laws/statutes/adea.cfm), as amended
(3) Alternative Dispute Resolution Act of 1996 (https://
www.adr.gov/pdf/adra.pdf), as amended
(4) Americans with Disabilities Amendments Act of 2008 (https://
www.ada.gov/pubs/adastatute08.htm), as amended
(5) Government Organization and Employees: Departmental
Regulations, 5 U.S.C. 301 (https://www.govinfo.gov/app/details/USCODE-
2011-title5/USCODE-2011-title5-partI-chap3-sec301), January 3, 2012
(6) Equal Pay Act of 1963 (https://www.eeoc.gov/laws/statutes/
epa.cfm), as amended
(7) Food Stamp Improvements Act of 1994 P.L. 103-225 (https://
www.gpo.gov/fdsys/pkg/STATUTE-108/pdf/STATUTE-108-Pg106.pdf), March 25,
1994
(8) Genetic Information Nondiscrimination Act of 2008 (https://
www.eeoc.gov/laws/statutes/gina.cfm)
(9) Notification and Federal Employee Antidiscrimination and
Retaliation (No FEAR) Act of 2002 (https://www.eeoc.gov/eeoc/history/
50th/thelaw/nofear.cfm)
(10) Rehabilitation Act of 1973 (https://www.eeoc.gov/laws/
statutes/rehab.cfm), as amended
(11) Section 503 (http://www.ecfr.gov/cgi-bin/text-
idx?SID=b5f7affb3658d6bb059
e4e5ce54976e3&mc=true&node=sp41.1.60_6741.a&rgn=div6) of the Vietnam
Era Veterans Readjustment Assistance Act of 1974
(12) Section 307 (https://archive.opm.gov/biographyofanideal/
PU_CSreform.htm) of the Civil Service Reform Act of 1978, as amended
(13) Title VI (https://www.gpo.gov/fdsys/pkg/USCODE-2008-title42/
html/USCODE-2008-title42-chap21-subchapV.htm) of the Civil Rights Act
of 1964, 42 U.S.C. 2000d, as amended
(14) Title VII (https://www.eeoc.gov/laws/statutes/titlevii.cfm) of
the Civil Rights Act of 1964, as amended
(15) Title IX (https://www.justice.gov/crt/title-ix-education-
amendments-1972) of the Education Amendments of 1972
b. Regulatory and Executive Orders
(1) Affirmative Employment Programs 5 CFR 720 (http://www.ecfr.gov/
cgi-bin/text-idx?tpl=/ecfrbrowse/Title05/5cfr720_main_02.tpl)
(2) Guidance to Federal Financial Assistance Recipients regarding
the Title VII Prohibition Against National Origin Discrimination
Affecting Persons with Limited English Proficiency, 7 CFR 15 (https://
www.gpo.gov/fdsys/pkg/FR-2014-11-28/pdf/2014-27960.pdf), November 28,
2014.
(3) Department of Justice, Guidelines for Coordination of
Enforcement of Nondiscrimination in Federally Assisted Programs, 28 CFR
42.401 (https://www.gpo.gov/fdsys/granule/CFR-2010-title28-vol1/CFR-
2010-title28-vol1-sec42-401) et seq.
(4) Equal Credit Opportunity Act of 1977 (Regulation B), 12 CFR 202
(http://www.ecfr.gov/cgi-bin/text-
idx?SID=72e428d45765d5a512ec05ff19f7c38d&mc=true&
node=pt12.2.202&rgn=div5#se12.2.202_11)
(5) Equal Employment Opportunity Commission (EEOC) Management
Directive_110 (https://www.eeoc.gov/federal/directives/md110.cfm),
Federal Sector Complaints Processing Manual, August 5, 2015
(6) EEOC Management Directive_715 (https://www.eeoc.gov/federal/
directives/md715.cfm), EEO Reporting Requirements for Federal Agencies,
October 1, 2003
(7) Equal Opportunity to Religious Organizations, 7 CFR 16 (http://
www.ecfr.gov/cgi-bin/text-
idx?SID=060bb7e8ca790eb2a18ca1f8f2d24b3f&mc=true&
node=pt7.1.16&rgn=div5)
(8) Executive Order 13087 (https://www.gpo.gov/fdsys/pkg/CFR-1999-
title3-vol1/pdf/CFR-1999-title3-vol1-eo13087.pdf), Further Amendment to
Executive Order 11478, Equal Employment Opportunity in the Federal
Government, May 28, 1998
(9) Executive Order 13145 (https://www.gpo.gov/fdsys/pkg/WCPD-2000-
02-14/pdf/WCPD-2000-02-14-Pg244.pdf), To Prohibit Discrimination in
Federal Employment Based on Genetic Information, February 8, 2000
(10) Executive Order 13152 (https://www.gpo.gov/fdsys/pkg/WCPD-
2000-05-08/pdf/WCPD-2000-05-08-Pg977.pdf), Further Amendment to
Executive Order 11478, Equal Employment Opportunity in the Federal
Government, May 2000
(11) Executive Order 13166 (https://www.gpo.gov/fdsys/pkg/FR-2000-
08-16/pdf/00-20938.pdf), Improving Access to Services for Persons with
Limited English Proficiency (LEP), August 11, 2000
(12) Executive Order 13672 (https://www.whitehouse.gov/the-press-
office/2014/07/21/executive-order-further-amendments-executive-order-
11478-equal-employmen), Further Amendment to Executive Order 11478,
Equal Employment Opportunity in the Federal Government, and Executive
Order 11246, Equal Employment Opportunity, July 21, 2014
(13) Federal Sector Equal Employment Opportunity, 29 CFR 1614
(https://www.ecfr.gov/cgi-bin/text-idx?tpl=/ecfrbrowse/Title29/
29cfr1614_main_02.tpl)
c. Departmental Regulations and Guidance
(1) DM 4300-001 (https://www.ocio.usda.gov/document/departmental-
manual-4300-001), EEO Complaint Processing Procedures, July 20, 2001
(2) DR 1512-001 (https://www.ocio.usda.gov/document/departmental-
regulation-1512-001), Regulatory Decision-making Requirements, March
14, 1997
(3) DR 4300-005 (https://www.ocio.usda.gov/document/departmental-
regulation-4300-005), Agency Civil Rights Programs, January 14, 1998
(4) DR 4330-003 (https://www.ocio.usda.gov/document/departmental-
regulation-4330-003), Nondiscrimination in USDA-Conducted Programs and
Activities, October 5, 2015
(5) DR 4330-005 (https://www.ocio.usda.gov/document/departmental-
regulation-4330-005), Prohibition Against National Origin
Discrimination Affecting Persons with Limited English Proficiency in
Programs and Activities Conducted by USDA, June 4, 2013
(6) Annual Civil Rights Policy Statement issued by the Secretary of
Agriculture
(7) Any other published regulations, policies, staff instructions,
or directives related to non-discrimination
Attachment 2
United States Department of Agriculture
Office of the Secretary
May 8, 2017
Policy Statement on First Amendment
As your Secretary, it is my privilege to lead the Department of
Agriculture (USDA). But make no mistake, it is USDA's career
employees--the food inspectors, the forest rangers, the farm loan
officers, the research scientists, and all the varied and dedicated
USDA employees--who carry out the important responsibilities that
Congress has entrusted to us. America eats safely because USDA works.
Today, I want to reestablish this Department's commitment to
safeguarding every American's First Amendment rights, particularly the
right to free speech and the right to free religious exercise. USDA is
committed to protecting both. I expect each and every USDA employee to
uphold their fellow Americans' First Amendment freedoms. Whether we are
inspecting private businesses for compliance with food safety laws or
protecting our public lands for recreation, cultivation, and
preservation, we must set the example of our nation's highest ideals.
Doing so is not optional, and it is not discretionary: It is one of the
crucial reasons why we exist.
Freedom of expression flourishes in a climate of mutual respect and
tolerance. To that end, USDA will continue to uproot and eliminate
discrimination, harassment, and retaliation and ensure our employees
and customers work in an atmosphere of dignity and equality--a place
where the rules are known, respected, and fair to all. This is one of
my primary goals as Secretary.
I intend to evaluate USDA's record on a variety of issues that are
vital to our operations and, with your help, chart a course that
respects the principles enshrined in our Constitution. And I intend to
work hard by your side so that all Americans know that our Department
embodies all that is diverse, exceptional, and great about our nation.

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Hon. Sonny Perdue,
Secretary.
attachment 3
(https://www.usda.gov/media/press-releases/2017/05/09/secretary-perdue-
issues-policy-memo-religious-liberty-and-freedom)

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

Secretary Perdue Issues Policy Memo on Religious Liberty and Freedom of
Speech
Release & Contact Info
Press Release
Release No. 0036.17
Contact: USDA Press
Phone: (202) 720-4623
Email: [email protected]

(Washington, D.C., May 9, 2017)--U.S. Secretary of Agriculture
Sonny Perdue today affirmed the U.S. Department of Agriculture's
renewed dedication to religious liberty and freedom of speech. In a
policy statement released to all USDA employees, Secretary Perdue said,
``Today, I want to reestablish this Department's commitment to
safeguarding every American's First Amendment rights, particularly the
right to free speech and the right to religious free exercise. USDA is
committed to protecting both.''
Highlighting the need for a climate of mutual respect and
tolerance, Perdue added, ``I expect each and every USDA employee to
uphold their fellow Americans' First Amendment freedoms. Whether we are
inspecting private businesses for compliance with food safety laws or
protecting our public lands for recreation, cultivation, and
preservation, we must set the example of our nation's highest ideals.
These are lessons we learned as children--that we should be kind to
others and treat them with respect. Doing so is not optional, and it is
not discretionary.''
The policy memo comes on the heels of President Donald J. Trump
issuing the Executive Order on Promoting Free Speech and Religious
Liberty (https://www.whitehouse.gov/presidential-actions/presidential-
executive-order-promoting-free-speech-religious-liberty/) last week.
To read the policy memo in its entirety, please visit the Policy
Statement on First Amendment memo (https://www.usda.gov/sites/default/
files/documents/5817-Policy-Statement.pdf) (PDF, 25.7 KB).
#
USDA is an equal opportunity provider, employer and lender.
Attachment 4

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

October 6, 2017
Memorandum for All Executive Departments and Agencies

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

From: The Attorney General

Subject: Federal Law Protections for Religious Liberty

The President has instructed me to issue guidance interpreting
religious liberty protections in Federal law, as appropriate. Exec.
Order No. 13798 4, 82 Fed. Reg. 21675 (May 4, 2017). Consistent with
that instruction, I am issuing this memorandum and appendix to guide
all administrative agencies and Executive departments in the execution
of Federal law.
Principles of Religious Liberty
Religious liberty is a foundational principle of enduring
importance in America, enshrined in our Constitution and other sources
of Federal law. As James Madison explained in his Memorial and
Remonstrance Against Religious Assessments, the free exercise of
religion ``is in its nature an unalienable right'' because the duty
owed to one's Creator ``is precedent, both in order of time and in
degree of obligation, to the claims of Civil Society.'' \1\ Religious
liberty is not merely a right to personal religious beliefs or even to
worship in a sacred place. It also encompasses religious observance and
practice. Except in the narrowest circumstances, no one should be
forced to choose between living out his or her faith and complying with
the law. Therefore, to the greatest extent practicable and permitted by
law, religious observance and practice should be reasonably
accommodated in all government activity, including employment,
contracting, and programming. The following twenty principles should
guide administrative agencies and Executive departments in carrying out
this task. These principles should be understood and interpreted in
light of the legal analysis set forth in the appendix to this
memorandum.
---------------------------------------------------------------------------
\1\ James Madison, Memorial and Remonstrance Against Religious
Assessments (June 20, 1785), in 5 The Founders' Constitution 82 (Philip
B. Kurland & Ralph Lerner eds., 1987).
---------------------------------------------------------------------------
1. The freedom of religion is a fundamental right of paramount
importance, expressly protected by Federal law.
Religious liberty is enshrined in the text of our Constitution and
in numerous Federal statutes. It encompasses the right of all Americans
to exercise their religion freely, without being coerced to join an
established church or to satisfy a religious test as a qualification
for public office. It also encompasses the right of all Americans to
express their religious beliefs, subject to the same narrow limits that
apply to all forms of speech. In the United States, the free exercise
of religion is not a mere policy preference to be traded against other
policy preferences. It is a fundamental right.
2. The free exercise of religion includes the right to act or abstain
from action in accordance with one's religious beliefs.
The Free Exercise Clause protects not just the right to believe or
the right to worship; it protects the right to perform or abstain from
performing certain physical acts in accordance with one's beliefs.
Federal statutes, including the Religious Freedom Restoration Act of
1993 (``RFRA''), support that protection, broadly defining the exercise
of religion to encompass all aspects of observance and practice,
whether or not central to, or required by, a particular religious
faith.
3. The freedom of religion extends to persons and organizations.
The Free Exercise Clause protects not just persons, but persons
collectively exercising their religion through churches or other
religious denominations, religious organizations, schools, private
associations, and even businesses.
4. Americans do not give up their freedom of religion by participating
in the marketplace, partaking of the public square, or
interacting with government.
Constitutional protections for religious liberty are not
conditioned upon the willingness of a religious person or organization
to remain separate from civil society. Although the application of the
relevant protections may differ in different contexts, individuals and
organizations do not give up their religious-liberty protections by
providing or receiving social services, education, or healthcare; by
seeking to earn or earning a living; by employing others to do the
same; by receiving government grants or contracts; or by otherwise
interacting with Federal, state, or local governments.
5. Government may not restrict acts or abstentions because of the
beliefs they display.
To avoid the very sort of religious persecution and intolerance
that led to the founding of the United States, the Free Exercise Clause
of the Constitution protects against. government actions that target
religious conduct. Except in rare circumstances, government may not
treat the same conduct as lawful when undertaken for secular reasons
but unlawful when undertaken for religious reasons. For example,
government may not attempt to target religious persons or conduct by
allowing the distribution of political leaflets in a park but
forbidding the distribution of religious leaflets in the same park.
6. Government may not target religious individuals or entities for
special disabilities based on their religion.
Much as government may not restrict actions only because of
religious belief, government may not target persons or individuals
because of their religion. Government may not exclude religious
organizations as such from secular aid programs, at least when the aid
is not being used for explicitly religious activities such as worship
or proselytization. For example, the Supreme Court has held that if
government provides reimbursement for scrap tires to replace child
playground surfaces, it may not deny participation in that program to
religious schools. Nor may government deny religious schools--including
schools whose curricula and activities include religious elements--the
right to participate in a voucher program, so long as the aid reaches
the schools through independent decisions of parents.
7. Government may not target religious individuals or entities through
discriminatory enforcement of neutral, generally applicable
laws.
Although government generally may subject religious persons and
organizations to neutral, generally applicable laws--e.g., across-the-
board criminal prohibitions or certain time, place, and manner
restrictions on speech--government may not apply such laws in a
discriminatory way. For instance, the Internal Revenue Service may not
enforce the Johnson Amendment--which prohibits 501(c)(3) nonprofit
organizations from intervening in a political campaign on behalf of a
candidate--against a religious nonprofit organization under
circumstances in which it would not enforce the amendment against a
secular nonprofit organization. Likewise, the National Park Service may
not require religious groups to obtain permits to hand out fliers in a
park if it does not require similarly situated secular groups to do so,
and no Federal agency tasked with issuing permits for land use may deny
a permit to an Islamic Center seeking to build a mosque when the agency
has granted, or would grant, a permit to similarly situated secular
organizations or religious groups.
8. Government may not officially favor or disfavor particular religious
groups.
Together, the Free Exercise Clause and the Establishment Clause
prohibit government from officially preferring one religious group to
another. This principle of denominational neutrality means, for
example, that government cannot selectively impose regulatory burdens
on some denominations but not others. It likewise cannot favor some
religious groups for participation in the Combined Federal Campaign
over others based on the groups' religious beliefs.
9. Government may not interfere with the autonomy of a religious
organization.
Together, the Free Exercise Clause and the Establishment Clause
also restrict governmental interference in intra-denominational
disputes about doctrine, discipline, or qualifications for ministry or
membership. For example, government may not impose its
nondiscrimination rules to require Catholic seminaries or Orthodox
Jewish yeshivas to accept female priests or rabbis.
10. The Religious Freedom Restoration Act of 1993 prohibits the Federal
Government from substantially burdening any aspect of religious
observance or practice, unless imposition of that burden on a
particular religious adherent satisfies strict scrutiny.
RFRA prohibits the Federal Government from substantially burdening
a person's exercise of religion, unless the Federal Government
demonstrates that application of such burden to the religious adherent
is the least restrictive means of achieving a compelling governmental
interest. RFRA applies to all actions by Federal administrative
agencies, including rulemaking, adjudication or other enforcement
actions, and grant or contract distribution and administration.
11. RFRA's protection extends not just to individuals, but also to
organizations, associations, and at least some for-profit
corporations.
RFRA protects the exercise of religion by individuals and by
corporations, companies, associations, firms, partnerships, societies,
and joint stock companies. For example, the Supreme Court has held that
Hobby Lobby, a closely held, for-profit corporation with more than 500
stores and 13,000 employees, is protected by RFRA.
12. RFRA does not permit the Federal Government to second-guess the
reasonableness of a religious belief.
RFRA applies to all sincerely held religious beliefs, whether or
not central to, or mandated by, a particular religious organization or
tradition. Religious adherents will often be required to draw lines in
the application of their religious beliefs, and government is not
competent to assess the reasonableness of such lines drawn, nor would
it be appropriate for government to do so. Thus, for example, a
government agency may not second-guess the determination of a factory
worker that, consistent with his religious precepts, he can work on a
line producing steel that might someday make its way into armaments but
cannot work on a line producing the armaments themselves. Nor may the
Department of Health and Human Services second-guess the determination
of a religious employer that providing contraceptive coverage to its
employees would make the employer complicit in wrongdoing in violation
of the organization's religious precepts.
13. A governmental action substantially burdens an exercise of religion
under RFRA if it bans an aspect of an adherent's religious
observance or practice, compels an act inconsistent with that
observance or practice, or substantially pressures the adherent
to modify such observance or practice.
Because the government cannot second-guess the reasonableness of a
religious belief or the adherent's assessment of the religious
connection between the government mandate and the underlying religious
belief, the substantial burden test focuses on the extent of
governmental compulsion involved. In general, a government action that
bans an aspect of an adherent's religious observance or practice,
compels an act inconsistent with that observance or practice, or
substantially pressures the adherent to modify such observance or
practice, will qualify as a substantial burden on the exercise of
religion. For example, a Bureau of Prisons regulation that bans a
devout Muslim from growing even \1/2\" beard in accordance with his
religious beliefs substantially burdens his religious practice.
Likewise, a Department of Health and Human Services regulation
requiring employers to provide insurance coverage for contraceptive
drugs in violation of their religious beliefs or face significant fines
substantially burdens their religious practice, and a law that
conditions receipt of significant government benefits on willingness to
work on Saturday substantially burdens the religious practice of those
who, as a matter of religious observance or practice, do not work on
that day. But a law that infringes, even severely, an aspect of an
adherent's religious observance or practice that the adherent himself
regards as unimportant or inconsequential imposes no substantial burden
on that adherent. And a law that regulates only the government's
internal affairs and does not involve any governmental compulsion on
the religious adherent likewise imposes no substantial burden.
14. The strict scrutiny standard applicable to RFRA is exceptionally
demanding.
Once a religious adherent has identified a substantial burden on
his or her religious belief, the Federal Government can impose that
burden on the adherent only if it is the least restrictive means of
achieving a compelling governmental interest. Only those interests of
the highest order can outweigh legitimate claims to the free exercise
of religion, and such interests must be evaluated not in broad
generalities but as applied to the particular adherent. Even if the
Federal Government could show the necessary interest, it would also
have to show that its chosen restriction on free exercise is the least
restrictive means of achieving that interest. That analysis requires
the government to show that it cannot accommodate the religious
adherent while achieving its interest through a viable alternative,
which may include, in certain circumstances, expenditure of additional
funds, modification of existing exemptions, or creation of a new
program.
15. RFRA applies even where a religious adherent seeks an exemption
from a legal obligation requiring the adherent to confer
benefits on third parties.
Although burdens imposed on third parties are relevant to RFRA
analysis, the fact that an exemption would deprive a third party of a
benefit does not categorically render an exemption unavailable. Once an
adherent identifies a substantial burden on his or her religious
exercise, RFRA requires the Federal Government to establish that denial
of an accommodation or exemption to that adherent is the least
restrictive means of achieving a compelling governmental interest.
16. Title VII of the Civil Rights Act of 1964, as amended, prohibits
covered employers from discriminating against individuals on
the basis of their religion.
Employers covered by Title VII may not fail or refuse to hire,
discharge, or discriminate against any individual with respect to
compensation, terms, conditions, or privileges of employment because of
that individual's religion. Such employers also may not classify their
employees or applicants in a way that would deprive or tend to deprive
any individual of employment opportunities because of the individual's
religion. This protection applies regardless of whether the individual
is a member of a religious majority or minority. But the protection
does not apply in the same way to religious employers, who have certain
constitutional and statutory protections for religious hiring
decisions.
17. Title VII's protection extends to discrimination on the basis of
religious observance or practice as well as belief, unless the
employer cannot reasonably accommodate such observance or
practice without undue hardship on the business.
Title VII defines ``religion'' broadly to include all aspects of
religious observance or practice, except when an employer can establish
that a particular aspect of such observance or practice cannot
reasonably be accommodated without undue hardship to the business. For
example, covered employers are required to adjust employee work
schedules for Sabbath observance, religious holidays, and other
religious observances, unless doing so would create an undue hardship,
such as materially compromising operations or violating a collective
bargaining agreement. Title VII might also require an employer to
modify a no-head-coverings policy to allow a Jewish employee to wear a
yarmulke or a Muslim employee to wear a headscarf. An employer who
contends that it cannot reasonably accommodate a religious observance
or practice must establish undue hardship on its business with
specificity; it cannot rely on assumptions about hardships that might
result from an accommodation.
18. The Clinton Guidelines on Religious Exercise and Religious
Expression in the Federal Workplace provide useful examples for
private employers of reasonable accommodations for religious
observance and practice in the workplace.
President Clinton issued Guidelines on Religious Exercise and
Religious Expression in the Federal Workplace (``Clinton Guidelines'')
explaining that Federal employees may keep religious materials on their
private desks and read them during breaks; discuss their religious
views with other employees, subject to the same limitations as other
forms of employee expression; display religious messages on clothing or
wear religious medallions; and invite others to attend worship services
at their churches, except to the extent that such speech becomes
excessive or harassing. The Clinton Guidelines have the force of an
Executive Order, and they also provide useful guidance to private
employers about ways in which religious observance and practice can
reasonably be accommodated in the workplace.
19. Religious employers are entitled to employ only persons whose
beliefs and conduct are consistent with the employers'
religious precepts.
Constitutional and statutory protections apply to certain religious
hiring decisions. Religious corporations, associations, educational
institutions, and societies--that is, entities that are organized for
religious purposes and engage in activity consistent with, and in
furtherance of, such purposes--have an express statutory exemption from
Title VII's prohibition on religious discrimination in employment.
Under that exemption, religious organizations may choose to employ only
persons whose beliefs and conduct are consistent with the
organizations' religious precepts. For example, a Lutheran secondary
school may choose to employ only practicing Lutherans, only practicing
Christians, or only those willing to adhere to a code of conduct
consistent with the precepts of the Lutheran community sponsoring the
school. Indeed, even in the absence of the Title VII exemption,
religious employers might be able to claim a similar right under RFRA
or the Religion Clauses of the Constitution.
20. As a general matter, the Federal Government may not condition
receipt of a Federal grant or contract on the effective
relinquishment of a religious organization's hiring exemptions
or attributes of its religious character.
Religious organizations are entitled to compete on equal footing
for Federal financial assistance used to support government programs.
Such organizations generally may not be required to alter their
religious character to participate in a government program, nor to
cease engaging in explicitly religious activities outside the program,
nor effectively to relinquish their Federal statutory protections for
religious hiring decisions.
Guidance for Implementing Religious Liberty--Principles
Agencies must pay keen attention, in everything they do, to the
foregoing principles of religious liberty.
Agencies As Employers
Administrative agencies should review their current policies and
practices to ensure that they comply with all applicable Federal laws
and policies regarding accommodation for religious observance and
practice in the Federal workplace, and all agencies must observe such
laws going forward. In particular, all agencies should review the
Guidelines on Religious Exercise and Religious Expression in the
Federal Workplace, which President Clinton issued on August 14, 1997,
to ensure that they are following those Guidelines. All agencies should
also consider practical steps to improve safeguards for religious
liberty in the Federal workplace, including through subject-matter
experts who can answer questions about religious nondiscrimination
rules, information websites that employees may access to learn more
about their religious accommodation rights, and training for all
employees about Federal protections for religious observance and
practice in the workplace.
Agencies Engaged in Rulemaking
In formulating rules, regulations, and policies, administrative
agencies should also proactively consider potential burdens on the
exercise of religion and possible accommodations of those burdens.
Agencies should consider designating an officer to review proposed
rules with religious accommodation in mind or developing some other
process to do so. In developing that process, agencies should consider
drawing upon the expertise of the White House Office of Faith-Based and
Neighborhood Partnerships to identify concerns about the effect of
potential agency action on religious exercise. Regardless of the
process chosen, agencies should ensure that they review all proposed
rules, regulations, and policies that have the potential to have an
effect on religious liberty for compliance with the principles of
religious liberty outlined in this memorandum and appendix before
finalizing those rules, regulations, or policies. The Office of Legal
Policy will also review any proposed agency or executive action upon
which the Department's comments, opinion, or concurrence are sought,
see, e.g., Exec. Order 12250 1-2, 45 Fed. Reg. 72995 (Nov. 2, 1980),
to ensure that such action complies with the principles of religious
liberty outlined in this memorandum and appendix. The Department will
not concur in any proposed action that does not comply with Federal law
protections for religious liberty as interpreted in this memorandum and
appendix, and it will transmit any concerns it has about the proposed
action to the agency or the Office of Management and Budget as
appropriate. If, despite these internal reviews, a member of the public
identifies a significant concern about a prospective rule's compliance
with Federal protections governing religious liberty during a period
for public comment on the rule, the agency should carefully consider
and respond to that request in its decision. See Perez v. Mortgage
Bankers Ass'n, 135 S. Ct. 1199, 1203 (2015). In appropriate
circumstances, an agency might explain that it will consider requests
for accommodations on a case-by-case basis rather than in the rule
itself, but the agency should provide a reasoned basis for that
approach.
Agencies Engaged in Enforcement Actions
Much like administrative agencies engaged in rulemaking, agencies
considering potential enforcement actions should consider whether such
actions are consistent with Federal protections for religious liberty.
In particular, agencies should remember that RFRA applies to agency
enforcement just as it applies to every other governmental action. An
agency should consider RFRA when setting agency-wide enforcement rules
and priorities, as well as when making decisions to pursue or continue
any particular enforcement action, and when formulating any generally
applicable rules announced in an agency adjudication.
Agencies should remember that discriminatory enforcement of an
otherwise nondiscriminatory law can also violate the Constitution.
Thus, agencies may not target or single out religious organizations or
religious conduct for disadvantageous treatment in enforcement
priorities or actions. The President identified one area where this
could be a problem in Executive Order 13798, when he directed the
Secretary of the Treasury, to the extent permitted by law, not to take
any ``adverse action against any individual, house of worship, or other
religious organization on the basis that such individual or
organization speaks or has spoken about moral or political issues from
a religious perspective, where speech of similar character'' from a
nonreligious perspective has not been treated as participation or
intervention in a political campaign. Exec. Order No. 13798, 2, 82
Fed. Reg. at 21675. But the requirement of nondiscrimination toward
religious organizations and conduct applies across the enforcement
activities of the Executive Branch, including within the enforcement
components of the Department of Justice.
Agencies Engaged in Contracting and Distribution of Grants
Agencies also must not discriminate against religious organizations
in their contracting or grant-making activities. Religious
organizations should be given the opportunity to compete for government
grants or contracts and participate in government programs on an equal
basis with nonreligious organizations. Absent unusual circumstances,
agencies should not condition receipt of a government contract or grant
on the effective relinquishment of a religious organization's Section
702 exemption for religious hiring practices, or any other
constitutional or statutory protection for religious organizations. In
particular, agencies should not attempt through conditions on grants or
contracts to meddle in the internal governance affairs of religious
organizations or to limit those organizations' otherwise protected
activities.
* * * * *
Any questions about this memorandum or the appendix should be
addressed to the Office of Legal Policy, U.S. Department of Justice,
950 Pennsylvania Avenue N.W., Washington, D.C. 20530, phone (202) 514-
4601.
Appendix
Although not an exhaustive treatment of all Federal protections for
religious liberty, this appendix summarizes the key constitutional and
Federal statutory protections for religious liberty and sets forth the
legal basis for the religious liberty principles described in the
foregoing memorandum.
Constitutional Protections
The people, acting through their Constitution, have singled out
religious liberty as deserving of unique protection. In the original
version of the Constitution, the people agreed that ``no religious Test
shall ever be required as a Qualification to any Office or public Trust
under the United States.'' U.S. Const., art. VI, cl. 3. The people then
amended the Constitution during the First Congress to clarify that
``Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof.'' U.S. Const. amend. I, cl.
1. Those protections have been incorporated against the States. Everson
v. Bd. of Educ. of Ewing, 330 U.S. 1, 15 (1947) (Establishment Clause);
Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (Free Exercise
Clause).
A. Free Exercise Clause
The Free Exercise Clause recognizes and guarantees Americans the
``right to believe and profess whatever religious doctrine [they]
desire[].'' Empl't Div. v. Smith, 494 U.S. 872, 877 (1990). Government
may not attempt to regulate religious beliefs, compel religious
beliefs, or punish religious beliefs. See id.; see also Sherbert v.
Verner, 374 U.S. 398, 402 (1963); Torcaso v. Watkins, 367 U.S. 488,
492-93, 495 (1961); United States v. Ballard, 322 U.S. 78, 86 (1944).
It may not lend its power to one side in intra-denominational disputes
about dogma, authority, discipline, or qualifications for ministry or
membership. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC,
565 U.S. 171, 185 (2012); Smith, 494 U.S. at 877; Serbian Eastern
Orthodox Diocese v. Milivojevich, 426 U.S. 696, 724-25 (1976);
Presbyterian Church v. Mary Elizabeth Blue Hull Mem'l Presbyterian
Church, 393 U.S. 440, 451 (1969); Kedroff v. St. Nicholas Cathedral of
the Russian Orthodox Church, 344 U.S. 94, 116, 120-21 (1952). It may
not discriminate against or impose special burdens upon individuals
because of their religious beliefs or status. Smith, 494 U.S. at 877;
McDaniel v. Paty, 435 U.S. 618, 627 (1978). And with the exception of
certain historical limits on the freedom of speech, government may not
punish or otherwise harass churches, church officials, or religious
adherents for speaking on religious topics or sharing their religious
beliefs. See Widmar v. Vincent, 454 U.S. 263, 269 (1981); see also U.S.
Const., amend. I, cl. 3. The Constitution's protection against
government regulation of religious belief is absolute; it is not
subject to limitation or balancing against the interests of the
government. Smith, 494 U.S. at 877; Sherbert, 374 U.S. at 402; see also
West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943)
(``If there is any fixed star in our constitutional constellation, it
is that no official, high or petty, can prescribe what shall be
orthodox in politics, nationalism, religion, or other matters of
opinion or force citizens to confess by word or act their faith
therein.'').
The Free Exercise Clause protects beliefs rooted in religion, even
if such beliefs are not mandated by a particular religious organization
or shared among adherents of a particular religious tradition. Frazee
v. Illinois Dept. of Emp't Sec., 489 U.S. 829, 833-34 (1989). As the
Supreme Court has repeatedly counseled, ``religious beliefs need not be
acceptable, logical, consistent, or comprehensible to others in order
to merit First Amendment protection.'' Church of the Lukumi Babalu Aye
v. Hialeah, 508 U.S. 520, 531 (1993) (internal quotation marks
omitted). They must merely be ``sincerely held.'' Frazee, 489 U.S. at
834.
Importantly, the protection of the Free Exercise Clause also
extends to acts undertaken in accordance with such sincerely-held
beliefs. That conclusion flows from the plain text of the First
Amendment, which guarantees the freedom to ``exercise'' religion, not
just the freedom to ``believe'' in religion. See Smith, 494 U.S. at
877; see also Thomas, 450 U.S. at 716; Paty, 435 U.S. at 627; Sherbert,
374 U.S. at 403-04; Wisconsin v. Yoder, 406 U.S. 205, 219-20 (1972).
Moreover, no other interpretation would actually guarantee the freedom
of belief that Americans have so long regarded as central to individual
liberty. Many, if not most, religious beliefs require external
observance and practice through physical acts or abstention from acts.
The tie between physical acts and religious beliefs may be readily
apparent (e.g., attendance at a worship service) or not (e.g., service
to one's community at a soup kitchen or a decision to close one's
business on a particular day of the week). The ``exercise of religion''
encompasses all aspects of religious observance and practice. And
because individuals may act collectively through associations and
organizations, it encompasses the exercise of religion by such entities
as well. See, e.g., Hosanna-Tabor, 565 U.S. at 199; Church of the
Lukumi Babalu Aye, 508 U.S. at 525-26, 547; see also Burwell v. Hobby
Lobby Stores, Inc., 134 S. Ct. 2751, 2770, 2772-73 (2014) (even a
closely held for-profit corporation may exercise religion if operated
in accordance with asserted religious principles).
As with most constitutional protections, however, the protection
afforded to Americans by the Free Exercise Clause for physical acts is
not absolute, Smith, 491 U.S. at 878-79, and the Supreme Court has
identified certain principles to guide the analysis of the scope of
that protection. First, government may not restrict ``acts or
abstentions only when they are engaged in for religious reasons, or
only because of the religious belief that they display,'' id. at 877,
nor ``target the religious for special disabilities based on their
religious status,'' Trinity Lutheran Church of Columbia, Inc. v. Comer,
582 U.S. ___, ___ (2017) (slip op. at 6) (internal quotation marks
omitted), for it was precisely such ``historical instances of religious
persecution and intolerance that gave concern to those who drafted the
Free Exercise Clause.'' Church of the Lukumi Babalu Aye, 508 U.S. at
532 (internal quotation marks omitted). The Free Exercise Clause
protects against ``indirect coercion or penalties on the free exercise
of religion'' just as surely as it protects against ``outright
prohibitions'' on religious exercise. Trinity Lutheran, 582 U.S. at ___
(slip op. at 11) (internal quotation marks omitted). ``It is too late
in the day to doubt that the liberties of religion and expression may
be infringed by the denial of or placing of conditions upon a benefit
or privilege.'' Id. (quoting Sherbert, 374 U.S. at 404).
Because a law cannot have as its official ``object or purpose . . .
the suppression of religion or religious conduct,'' courts must
``survey meticulously'' the text and operation of a law to ensure that
it is actually neutral and of general applicability. Church of the
Lukumi Babalu Aye, 508 U.S. at 533-34 (internal quotation marks
omitted). A law is not neutral if it singles out particular religious
conduct for adverse treatment; treats the same conduct as lawful when
undertaken for secular reasons but unlawful when undertaken for
religious reasons; visits ``gratuitous restrictions on religious
conduct''; or ``accomplishes . . . `religious gerrymander,' an
impermissible attempt to target [certain individuals] and their
religious practices.'' Id. at 533-35, 538 (internal quotation marks
omitted). A law is not generally applicable if ``in a selective manner
[it] impose[s] burdens only on conduct motivated by religious belief,''
id at 543, including by ``fail[ing] to prohibit nonreligious conduct
that endangers [its] interests in a similar or greater degree than . .
. does'' the prohibited conduct, id, or enables, expressly or de facto,
``a system of individualized exemptions,'' as discussed in Smith, 494
U.S. at 884; see also Church of the Lukumi Babalu Aye, 508 U.S. at 537.
``Neutrality and general applicability are interrelated, . . .
[and] failure to satisfy one requirement is a likely indication that
the other has not been satisfied.'' Id. at 531. For example, a law that
disqualifies a religious person or organization from a right to compete
for a public benefit--including a grant or contract--because of the
person's religious character is neither neutral nor generally
applicable. See Trinity Lutheran, 582 U.S. at ___-___ (slip op. at 9-
11). Likewise, a law that selectively prohibits the killing of animals
for religious reasons and fails to prohibit the killing of animals for
many nonreligious reasons, or that selectively prohibits a business
from refusing to stock a product for religious reasons but fails to
prohibit such refusal for myriad commercial reasons, is neither
neutral, nor generally applicable. See Church of the Lukumi Babalu Aye,
508 U.S. at 533-36, 542-45. Nonetheless, the requirements of neutral
and general applicability are separate, and any law burdening religious
practice that fails one or both must be subjected to strict scrutiny,
id. at 546.
Second, even a neutral, generally applicable law is subject to
strict scrutiny under this Clause if it restricts the free exercise of
religion and another constitutionally protected liberty, such as the
freedom of speech or association, or the right to control the
upbringing of one's children. See Smith, 494 U.S. at 881-82; Axson-
Flynn v. Johnson, 356 F.3d 1277, 1295-97 (10th Cir. 2004). Many Free
Exercise cases fall in this category. For example, a law that seeks to
compel a private person's speech or expression contrary to his or her
religious beliefs implicates both the freedoms of speech and free
exercise. See, e.g., Wooley v. Maynard, 430 U.S. 705, 707-08 (1977)
(challenge by Jehovah's Witnesses to requirement that state license
plates display the motto ``Live Free or Die''); Axson-Flynn, 356 F.3d
at 1280 (challenge by Mormon student to University requirement that
student actors use profanity and take God's name in vain during
classroom acting exercises). A law taxing or prohibiting door-to-door
solicitation, at least as applied to individuals distributing religious
literature and seeking contributions, likewise implicates the freedoms
of speech and free exercise. Murdock v. Pennsylvania, 319 U.S. 105,
108-09 (1943) (challenge by Jehovah's Witnesses to tax on canvassing or
soliciting); Cantwell, 310 U.S. at 307 (same). A law requiring children
to receive certain education, contrary to the religious beliefs of
their parents, implicates both the parents' right to the care, custody,
and control of their children and to free exercise. Yoder, 406 U.S. at
227-29 (challenge by Amish parents to law requiring high school
attendance).
Strict scrutiny is the ``most rigorous'' form of scrutiny
identified by the Supreme Court. Church of the Lukumi Babalu Aye, 508
U.S. at 546; see also City of Boerne v. Flores, 521 U.S. 507, 534
(1997) (``Requiring a State to demonstrate a compelling interest and
show that it has adopted the least restrictive means of achieving that
interest is the most demanding test known to constitutional law.''). It
is the same standard applied to governmental classifications based on
race, Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551
U.S. 701, 720 (2007), and restrictions on the freedom of speech, Reed
v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2228 (2015). See Church of
the Lukumi Babalu Aye, 508 U.S. at 546-47. Under this level of
scrutiny, government must establish that a challenged law ``advance[s]
interests of the highest order'' and is ``narrowly tailored in pursuit
of those interests.'' Id. at 546 (internal quotation marks omitted).
``[O]nly in rare cases'' will a law survive this level of scrutiny. Id.
Of course, even when a law is neutral and generally applicable,
government may run afoul of the Free Exercise Clause if it interprets
or applies the law in a manner that discriminates against religious
observance and practice. See, e.g., Church of the Lukumi Babalu Aye,
508 U.S. at 537 (government discriminatorily interpreted an ordinance
prohibiting the unnecessary killing of animals as prohibiting only
killing of animals for religious reasons); Fowler v. Rhode Island, 345
U.S. 67, 69-70 (1953) (government discriminatorily enforced ordinance
prohibiting meetings in public parks against only certain religious
groups). The Free Exercise Clause, much like the Free Speech Clause,
requires equal treatment of religious adherents. See Trinity Lutheran,
582 U.S. at ___ (slip op. at 6); cf Good News Club v. Milford Central
Sch., 533 U.S. 98, 114 (2001) (recognizing that Establishment Clause
does not justify discrimination against religious clubs seeking use of
public meeting spaces); Rosenberger v. Rector & Visitors of Univ. of
Va., 515 U.S. 819, 837, 841 (1995) (recognizing that Establishment
Clause does not justify discrimination against religious student
newspaper's participation in neutral reimbursement program). That is
true regardless of whether the discriminatory application is initiated
by the government itself or by private requests or complaints. See,
e.g., Fowler, 345 U.S. at 69; Niemotko v. Maryland, 340 U.S. 268, 272
(1951).
B. Establishment Clause
The Establishment Clause, too, protects religious liberty. It
prohibits government from establishing a religion and coercing
Americans to follow it. See Town of Greece, NY v. Galloway, 134 S. Ct.
1811, 1819-20 (2014); Good News Club, 533 U.S. at 115. It restricts
government from interfering in the internal governance or
ecclesiastical decisions of a religious organization. Hosanna-Tabor,
565 U.S. at 188-89. And it prohibits government from officially
favoring or disfavoring particular religious groups as such or
officially advocating particular religious points of view. See
Galloway, 134 S. Ct. at 1824; Larson v. Valente, 456 U.S. 228, 244-46
(1982). Indeed, ``a significant factor in upholding governmental
programs in the face of Establishment Clause attack is their neutrality
towards religion.'' Rosenberger, 515 U.S. at 839 (emphasis added). That
``guarantee of neutrality is respected, not offended, when the
government, following neutral criteria and evenhanded policies, extends
benefits to recipients whose ideologies and viewpoints, including
religious ones, are broad and diverse.'' Id. Thus, religious adherents
and organizations may, like nonreligious adherents and organizations,
receive indirect financial aid through independent choice, or, in
certain circumstances, direct financial aid through a secular-aid
program. See, e.g., Trinity Lutheran, 582 U.S. at ___ (slip. op. at 6)
(scrap tire program); Zelman v. Simmons-Harris, 536 U.S. 639, 652
(2002) (voucher program).
C. Religious Test Clause
Finally, the Religious Test Clause, though rarely invoked, provides
a critical guarantee to religious adherents that they may serve in
American public life. The Clause reflects the judgment of the Framers
that a diversity of religious viewpoints in government would enhance
the liberty of all Americans. And after the Religion Clauses were
incorporated against the States, the Supreme Court shared this view,
rejecting a Tennessee law that ``establishe[d] as a condition of office
the willingness to eschew certain protected religious practices.''
Paty, 435 U.S. at 632 (Brennan, J., and Marshall, J., concurring in
judgment); see also id. at 629 (plurality op.) (``[T]he American
experience provides no persuasive support for the fear that clergymen
in public office will be less careful of anti-establishment interests
or less faithful to their oaths of civil office than their unordained
counterparts.'').
Statutory Protections
Recognizing the centrality of religious liberty to our nation,
Congress has buttressed these constitutional rights with statutory
protections for religious observance and practice. These protections
can be found in, among other statutes, the Religious Freedom
Restoration Act of 1993, 42 U.S.C. 2000bb et seq.; the Religious
Land Use and Institutionalized Persons Act, 42 U.S.C. 2000cc et
seq.; Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et
seq.; and the American Indian Religious Freedom Act, 42 U.S.C. 1996.
Such protections ensure not only that government tolerates religious
observance and practice, but that it embraces religious adherents as
full members of society, able to contribute through employment, use of
public accommodations, and participation in government programs. The
considered judgment of the United States is that we are stronger
through accommodation of religion than segregation or isolation of it.
A. Religious Freedom Restoration Act of 1993 (RFRA)
The Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C.
2000bb et seq., prohibits the Federal Government from ``substantially
burden[ing] a person's exercise of religion'' unless ``it demonstrates
that application of the burden to the person (1) is in furtherance of a
compelling governmental interest; and (2) is the least restrictive
means of furthering that compelling governmental interest.'' Id.
2000bb-1(a), (b). The Act applies even where the burden arises out of a
``rule of general applicability'' passed without animus or
discriminatory intent. See id. 2000bb-1(a). It applies to ``any
exercise of religion, whether or not compelled by, or central to, a
system of religious belief,'' see 2000bb-2(4), 2000cc-5(7), and
covers ``individuals'' as well as ``corporations, companies,
associations, firms, partnerships, societies, and joint stock
companies,'' 1 U.S.C. 1, including for-profit, closely-held
corporations like those involved in Hobby Lobby, 134 S. Ct. at 2768.
Subject to the exceptions identified below, a law ``substantially
burden[s] a person's exercise of religion,'' 42 U.S.C. 2000bb-1, if
it bans an aspect of the adherent's religious observance or practice,
compels an act inconsistent with that observance or practice, or
substantially pressures the adherent to modify such observance or
practice, see Sherbert, 374 U.S. at 405-06. The ``threat of criminal
sanction'' will satisfy these principles, even when, as in Yoder, the
prospective punishment is a mere $5 fine. 406 U.S. at 208, 218. And the
denial of, or condition on the receipt of, government benefits may
substantially burden the exercise of religion under these principles.
Sherbert, 374 U.S. at 405-06; see also Hobbie v. Unemployment Appeals
Comm'n of Fla., 480 U.S. 136, 141 (1987); Thomas, 450 U.S. at 717-18.
But a law that infringes, even severely, an aspect of an adherent's
religious observance or practice that the adherent himself regards as
unimportant or inconsequential imposes no substantial burden on that
adherent. And a law that regulates only the government's internal
affairs and does not involve any governmental compulsion on the
religious adherent likewise imposes no substantial burden. See, e.g.,
Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 448-49
(1988); Bowen v. Roy, 476 U.S. 693, 699-700 (1986).
As with claims under the Free Exercise Clause, RFRA does not permit
a court to inquire into the reasonableness of a religious belief,
including into the adherent's assessment of the religious connection
between a belief asserted and what the government forbids, requires, or
prevents. Hobby Lobby, 134 S. Ct. at 2778. If the proffered belief is
sincere, it is not the place of the government or a court to second-
guess it. Id. A good illustration of the point is Thomas v. Review
Board of Indiana Employment Security Division--one of the Sherbert line
of cases, whose analytical test Congress sought, through RFRA, to
restore, 42 U.S.C. 2000bb. There, the Supreme Court concluded that
the denial of unemployment benefits was a substantial burden on the
sincerely held religious beliefs of a Jehovah's Witness who had quit
his job after he was transferred from a department producing sheet
steel that could be used for military armaments to a department
producing turrets for military tanks. Thomas, 450 U.S. at 716-18. In
doing so, the Court rejected the lower court's inquiry into ``what [the
claimant's] belief was and what the religious basis of his belief
was,'' noting that no one had challenged the sincerity of the
claimant's religious beliefs and that ``[c]ourts should not undertake
to dissect religious beliefs because the believer admits that he is
struggling with his position or because his beliefs are not articulated
with the clarity and precision that a more sophisticated person might
employ.'' Id. at 714-15 (internal quotation marks omitted). The Court
likewise rejected the lower court's comparison of the claimant's views
to those of other Jehovah's Witnesses, noting that ``[i]ntrafaith
differences of that kind are not uncommon among followers of a
particular creed, and the judicial process is singularly ill equipped
to resolve such differences.'' Id. at 715. The Supreme Court reinforced
this reasoning in Hobby Lobby, rejecting the argument that ``the
connection between what the objecting parties [were required to] do
(provide health-insurance coverage for four methods of contraception
that may operate after the fertilization of an egg) and the end that
they [found] to be morally wrong (destruction of an embryo) [wa]s
simply too attenuated.'' 134 S. Ct. at 2777. The Court explained that
the plaintiff corporations had a sincerely-held religious belief that
provision of the coverage was morally wrong, and it was ``not for us to
say that their religious beliefs are mistaken or insubstantial.'' Id.
at 2779.
Government bears a heavy burden to justify a substantial burden on
the exercise of religion. ``[O]nly those interests of the highest order
. . . can overbalance legitimate claims to the free exercise of
religion.'' Thomas, 450 U.S. at 718 (quoting Yoder, 406 U.S. at 215).
Such interests include, for example, the ``fundamental, overriding
interest in eradicating racial discrimination in education--
discrimination that prevailed, with official approval, for the first
165 years of this Nation's history,'' Bob Jones Univ. v. United States,
461 U.S. 574, 604 (1983), and the interest in ensuring the ``mandatory
and continuous participation'' that is ``indispensable to the fiscal
vitality of the social security system,'' United States v. Lee, 455
U.S. 252, 258-59 (1982). But ``broadly formulated interests justifying
the general applicability of government mandates'' are insufficient.
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S.
418, 431 (2006). The government must establish a compelling interest to
deny an accommodation to the particular claimant. Id. at 430, 435-38.
For example, the military may have a compelling interest in its uniform
and grooming policy to ensure military readiness and protect our
national security, but it does not necessarily follow that those
interests would justify denying a particular soldier's request for an
accommodation from the uniform and grooming policy. See, e.g.,
Secretary of the Army, Army Directive 2017-03, Policy for Brigade-Level
Approval of Certain Requests for Religious Accommodation (2017)
(recognizing the ``successful examples of Soldiers currently serving
with'' an accommodation for ``the wear of a hijab; the wear of a beard;
and the wear of a turban or underturban/patka, with uncut beard and
uncut hair'' and providing for a reasonable accommodation of these
practices in the Army). The military would have to show that it has a
compelling interest in denying that particular accommodation. An
asserted compelling interest in denying an accommodation to a
particular claimant is undermined by evidence that exemptions or
accommodations have been granted for other interests. See O Centro, 546
U.S. at 433, 436-37; see also Hobby Lobby, 134 S. Ct. at 2780.
The compelling-interest requirement applies even where the
accommodation sought is ``an exemption from a legal obligation
requiring [the claimant] to confer benefits on third parties.'' Hobby
Lobby, 134 S. Ct. at 2781 n. 37. Although ``in applying RFRA `courts
must take adequate account of the burdens a requested accommodation may
impose on nonbeneficiaries,' '' the Supreme Court has explained that
almost any governmental regulation could be reframed as a legal
obligation requiring a claimant to confer benefits on third parties.
Id. (quoting Cutter v. Wilkinson, 544 U.S. 709, 720 (2005)). As nothing
in the text of RFRA admits of an exception for laws requiring a
claimant to confer benefits on third parties, 42 U.S.C. 2000bb-1, and
such an exception would have the potential to swallow the rule, the
Supreme Court has rejected the proposition that RFRA accommodations are
categorically unavailable for laws requiring claimants to confer
benefits on third parties. Hobby Lobby, 134 S. Ct. at 2781 n. 37.
Even if the government can identify a compelling interest, the
government must also show that denial of an accommodation is the least
restrictive means of serving that compelling governmental interest.
This standard is ``exceptionally demanding.'' Hobby Lobby, 134 S. Ct.
at 2780. It requires the government to show that it cannot accommodate
the religious adherent while achieving its interest through a viable
alternative, which may include, in certain circumstances, expenditure
of additional funds, modification of existing exemptions, or creation
of a new program. Id. at 2781. Indeed, the existence of exemptions for
other individuals or entities that could be expanded to accommodate the
claimant, while still serving the government's stated interests, will
generally defeat a RFRA defense, as the government bears the burden to
establish that no accommodation is viable. See id. at 2781-82.
B. Religious Land Use and Institutionalized Persons Act of 2000
(RLUIPA)
Although Congress's leadership in adopting RFRA led many States to
pass analogous statutes, Congress recognized the unique threat to
religious liberty posed by certain categories of state action and
passed the Religious Land Use and Institutionalized Persons Act of 2000
(RLUIPA) to address them. RLUIPA extends a standard analogous to RFRA
to state and local government actions regulating land use and
institutionalized persons where ``the substantial burden is imposed in
a program or activity that receives Federal financial assistance'' or
``the substantial burden affects, or removal of that substantial burden
would affect, commerce with foreign nations, among the several States,
or with Indian tribes.'' 42 U.S.C. 2000cc(a)(2), 2000cc-1(b).
RLUIPA's protections must ``be construed in favor of a broad
protection of religious exercise, to the maximum extent permitted by
[RLUIPA] and the Constitution.'' Id. 2000cc3(g). RLUIPA applies to
``any exercise of religion, whether or not compelled by, or central to,
a system of religious belief,'' id. 2000cc-5(7)(A), and treats
``[t]he use, building, or conversion of real property for the purpose
of religious exercise'' as the ``religious exercise of the person or
entity that uses or intends to use the property for that purpose,'' id.
2000cc-5(7)(B). Like RFRA, RLUIPA prohibits government from
substantially burdening an exercise of religion unless imposition of
the burden on the religious adherent is the least restrictive means of
furthering a compelling governmental interest. See id. 2000cc-1(a).
That standard ``may require a government to incur expenses in its own
operations to avoid imposing a substantial burden on religious
exercise.'' Id. 2000cc-3(c); cf Holt v. Hobbs, 135 S. Ct. 853, 860,
864-65 (2015).
With respect to land use in particular, RLUIPA also requires that
government not ``treat[] a religious assembly or institution on less
than equal terms with a nonreligious assembly or institution,'' 42
U.S.C. 2000cc(b)(1), ``impose or implement a land use regulation that
discriminates against any assembly or institution on the basis of
religion or religious denomination,'' id. 2000cc(b)(2), or ``impose
or implement a land use regulation that (A) totally excludes religious
assemblies from a jurisdiction; or (B) unreasonably limits religious
assemblies, institutions, or structures within a jurisdiction,'' id.
2000cc(b)(3). A claimant need not show a substantial burden on the
exercise of religion to enforce these antidiscrimination and equal
terms provisions listed in 2000cc(b). See id. 2000cc(b); see also
Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 510 F.3d
253, 262-64 (3d Cir. 2007), cert. denied, 553 U.S. 1065 (2008).
Although most RLUIPA cases involve places of worship like churches,
mosques, synagogues, and temples, the law applies more broadly to
religious schools, religious camps, religious retreat centers, and
religious social service facilities. Letter from U.S. Dep't of Justice
Civil Rights Division to State, County, and Municipal Officials re: The
Religious Land Use and Institutionalized Persons Act (Dec. 15, 2016).
C. Other Civil Rights Laws
To incorporate religious adherents fully into society, Congress has
recognized that it is not enough to limit governmental action that
substantially burdens the exercise of religion. It must also root out
public and private discrimination based on religion. Religious
discrimination stood alongside discrimination based on race, color, and
national origin, as an evil to be addressed in the Civil Rights Act of
1964, and Congress has continued to legislate against such
discrimination over time. Today, the United States Code includes
specific prohibitions on religious discrimination in places of public
accommodation, 42 U.S.C. 2000a; in public facilities, id. 2000b; in
public education, id. 2000c-6; in employment, id. 2000e, 2000e-2,
2000e-16; in the sale or rental of housing, id. 3604; in the
provision of certain real-estate transaction or brokerage services, id.
3605, 3606; in Federal jury service, 28 U.S.C. 1862; in access to
limited open forums for speech, 20 U.S.C. 4071; and in participation
in or receipt of benefits from various federally-funded programs, 15
U.S.C. 3151; 20 U.S.C. 1066c(d), 1071(a)(2), 1087-4, 7231d(b)(2),
7914; 31 U.S.C. 671l(b)(3); 42 U.S.C. 290cc-33(a)(2), 300w-
7(a)(2), 300x-57(a)(2), 300x-65(f), 604a(g), 708(a)(2), 5057(c),
5151(a), 5309(a), 6727(a), 9858l(a)(2), 10406(2)(B), 10504(a),
10604(e), 12635(c)(1), 12832, 13791(g)(3), 13925(b)(13)(A).
Invidious religious discrimination may be directed at religion in
general, at a particular religious belief, or at particular aspects of
religious observance and practice. See, e.g., Church of the Lukumi
Babalu Aye, 508 U.S. at 532-33. A law drawn to prohibit a specific
religious practice may discriminate just as severely against a
religious group as a law drawn to prohibit the religion itself. See id.
No one would doubt that a law prohibiting the sale and consumption of
Kosher meat would discriminate against Jewish people. True equality may
also require, depending on the applicable statutes, an awareness of,
and willingness reasonably to accommodate, religious observance and
practice. Indeed, the denial of reasonable accommodations may be little
more than cover for discrimination against a particular religious
belief or religion in general and is counter to the general
determination of Congress that the United States is best served by the
participation of religious adherents in society, not their withdrawal
from it.

1. Employment

i. Protections for Religious Employees

Protections for religious individuals in employment are the most
obvious example of Congress's instruction that religious observance and
practice be reasonably accommodated, not marginalized. In Title VII of
the Civil Rights Act, Congress declared it an unlawful employment
practice for a covered employer to (1) ``fail or refuse to hire or to
discharge any individual, or otherwise . . . discriminate against any
individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's . . .
religion,'' as well as (2) to ``limit, segregate, or classify his
employees or applicants for employment in any way which would deprive
or tend to deprive any individual of employment opportunities or
otherwise adversely affect his status as an employee, because of such
individual's . . . religion.'' 42 U.S.C. 2000e-2(a); see also 42
U.S.C. 2000e-16(a) (applying Title VII to certain Federal-sector
employers); 3 U.S.C. 411(a) (applying Title VII employment in the
Executive Office of the President). The protection applies ``regardless
of whether the discrimination is directed against [members of
religious] majorities or minorities.'' Trans World Airlines, Inc. v.
Hardison, 432 U.S. 63, 71-72 (1977).
After several courts had held that employers did not violate Title
VII when they discharged employees for refusing to work on their
Sabbath, Congress amended Title VII to define ``[r]eligion'' broadly to
include ``all aspects of religious observance and practice, as well as
belief, unless an employer demonstrates that he is unable to reasonably
accommodate to an employee's or prospective employee's religious
observance or practice without undue hardship on the conduct of the
employer's business.'' 42 U.S.C. 2000e(j); Hardison, 432 U.S. at 74
n. 9. Congress thus made clear that discrimination on the basis of
religion includes discrimination on the basis of any aspect of an
employee's religious observance or practice, at least where such
observance or practice can be reasonably accommodated without undue
hardship.
Title VII's reasonable accommodation requirement is meaningful. As
an initial matter, it requires an employer to consider what adjustment
or modification to its policies would effectively address the
employee's concern, for ``[a]n ineffective modification or adjustment
will not accommodate'' a person's religious observance or practice,
within the ordinary meaning of that word. See U.S. Airways, Inc. v.
Barnett, 535 U.S. 391, 400 (2002) (considering the ordinary meaning in
the context of an ADA claim). Although there is no obligation to
provide an employee with his or her preferred reasonable accommodation,
see Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 68 (1986), an
employer may justify a refusal to accommodate only by showing that ``an
undue hardship [on its business] would in fact result from each
available alternative method of accommodation.'' 29 CFR 1605.2(c)(1)
(emphasis added). ``A mere assumption that many more people, with the
same religious practices as the person being accommodated, may also
need accommodation is not evidence of undue hardship.'' Id. Likewise,
the fact that an accommodation may grant the religious employee a
preference is not evidence of undue hardship as, ``[b]y definition, any
special `accommodation' requires the employer to treat an employee . .
. differently, i.e., preferentially.'' U.S. Airways, 535 U.S. at 397;
see also E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028,
2034 (2015) (``Title VII does not demand mere neutrality with regard to
religious practices--that they may be treated no worse than other
practices. Rather, it gives them favored treatment.'').
Title VII does not, however, require accommodation at all costs. As
noted above, an employer is not required to accommodate a religious
observance or practice if it would pose an undue hardship on its
business. An accommodation might pose an ``undue hardship,'' for
example, if it would require the employer to breach an otherwise valid
collective bargaining agreement, see, e.g., Hardison, 432 U.S. at 79,
or carve out a special exception to a seniority system, id. at 83; see
also U.S. Airways, 535 U.S. at 403. Likewise, an accommodation might
pose an ``undue hardship'' if it would impose ``more than a de minimis
cost'' on the business, such as in the case of a company where weekend
work is ``essential to [the] business'' and many employees have
religious observances that would prohibit them from working on the
weekends, so that accommodations for all such employees would result in
significant overtime costs for the employer. Hardison, 432 U.S. at 80,
84 & n. 15. In general, though, Title VII expects positive results for
society from a cooperative process between an employer and its employee
``in the search for an acceptable reconciliation of the needs of the
employee's religion and the exigencies of the employer's business.''
Philbrook, 479 U.S. at 69 (internal quotations omitted).
The area of religious speech and expression is a useful example of
reasonable accommodation. Where speech or expression is part of a
person's religious observance and practice, it falls within the scope
of Title VII. See 42 U.S.C. 2000e, 2000e-2. Speech or expression
outside of the scope of an individual's employment can almost always be
accommodated without undue hardship to a business. Speech or expression
within the scope of an individual's employment, during work hours, or
in the workplace may, depending upon the facts and circumstances, be
reasonably accommodated. Cf. Abercrombie, 135 S. Ct. at 2032.
The Federal Government's approach to free exercise in the Federal
workplace provides useful guidance on such reasonable accommodations.
For example, under the Guidelines issued by President Clinton, the
Federal Government permits a Federal employee to ``keep a Bible or
Koran on her private desk and read it during breaks''; to discuss his
religious views with other employees, subject ``to the same rules of
order as apply to other employee expression''; to display religious
messages on clothing or wear religious medallions visible to others;
and to hand out religious tracts to other employees or invite them to
attend worship services at the employee's church, except to the extent
that such speech becomes excessive or harassing. Guidelines on
Religious Exercise and Religious Expression in the Federal Workplace,
1(A), Aug. 14, 1997 (hereinafter ``Clinton Guidelines''). The Clinton
Guidelines have the force of an Executive Order. See Legal
Effectiveness of a Presidential Directive, as Compared to an Executive
Order, 24 Op. O.L.C. 29, 29 (2000) (``[T]here is no substantive
difference in the legal effectiveness of an executive order and a
presidential directive that is styled other than as an executive
order.''); see also Memorandum from President William J. Clinton to the
Heads of Executive Departments and Agencies (Aug. 14, 1997) (``All
civilian executive branch agencies, officials, and employees must
follow these Guidelines carefully.''). The successful experience of the
Federal Government in applying the Clinton Guidelines over the last
twenty years is evidence that religious speech and expression can be
reasonably accommodated in the workplace without exposing an employer
to liability under workplace harassment laws.
Time off for religious holidays is also often an area of concern.
The observance of religious holidays is an ``aspect[] of religious
observance and practice'' and is therefore protected by Title VII. 42
U.S.C. 2000e, 2000e-2. Examples of reasonable accommodations for
that practice could include a change of job assignments or lateral
transfer to a position whose schedule does not conflict with the
employee's religious holidays, 29 CFR 1605.2(d)(1)(iii); a voluntary
work schedule swap with another employee, id. 1065.2(d)(1)(i); or a
flexible scheduling scheme that allows employees to arrive or leave
early, use floating or optional holidays for religious holidays, or
make up time lost on another day, id. 1065.2(d)(1)(ii). Again, the
Federal Government has demonstrated reasonable accommodation through
its own practice: Congress has created a flexible scheduling scheme for
Federal employees, which allows employees to take compensatory time off
for religious observances, 5 U.S.C. 5550a, and the Clinton Guidelines
make clear that ``[a]n agency must adjust work schedules to accommodate
an employee's religious observance--for example, Sabbath or religious
holiday observance--if an adequate substitute is available, or if the
employee's absence would not otherwise impose an undue burden on the
agency,'' Clinton Guidelines 1(C). If an employer regularly permits
accommodation in work scheduling for secular conflicts and denies such
accommodation for religious conflicts, ``such an arrangement would
display a discrimination against religious practices that is the
antithesis of reasonableness.'' Philbrook, 479 U.S. at 71.
Except for certain exceptions discussed in the next section, Title
VII's protection against disparate treatment, 42 U.S.C. 2000e-
2(a)(1), is implicated any time religious observance or practice is a
motivating factor in an employer's covered decision. Abercrombie, 135
S. Ct. at 2033. That is true even when an employer acts without actual
knowledge of the need for an accommodation from a neutral policy but
with ``an unsubstantiated suspicion'' of the same. Id. at 2034.

ii. Protections for Religious Employers

Congress has acknowledged, however, that religion sometimes is an
appropriate factor in employment decisions, and it has limited Title
VII's scope accordingly. Thus, for example, where religion ``is a bona
fide occupational qualification reasonably necessary to the normal
operation of [a] particular business or enterprise,'' employers may
hire and employ individuals based on their religion. 42 U.S.C. 2000e-
2(e)(1). Likewise, where educational institutions are ``owned,
supported, controlled or managed, [in whole or in substantial part] by
a particular religion or by a particular religious corporation,
association, or society'' or direct their curriculum ``toward the
propagation of a particular religion,'' such institutions may hire and
employ individuals of a particular religion. Id. And ``a religious
corporation, association, educational institution, or society'' may
employ ``individuals of a particular religion to perform work connected
with the carrying on by such corporation, association, educational
institution, or society of its activities.'' Id. 2000e-1(a); Corp. of
Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v.
Amos, 483 U.S. 327, 335-36 (1987).
Because Title VII defines ``religion'' broadly to include ``all
aspects of religious observance and practice, as well as belief,'' 42
U.S.C. 2000e(j), these exemptions include decisions ``to employ only
persons whose beliefs and conduct are consistent with the employer's
religious precepts.'' Little v. Wuerl, 929 F.2d 944, 951 (3d Cir.
1991); see also Killinger v. Samford Univ., 113 F.3d 196, 198-200 (11th
Cir. 1997). For example, in Little, the Third Circuit held that the
exemption applied to a Catholic school's decision to fire a divorced
Protestant teacher who, though having agreed to abide by a code of
conduct shaped by the doctrines of the Catholic Church, married a
baptized Catholic without first pursuing the official annulment process
of the Church. 929 F.2d at 946, 951.
Section 702 broadly exempts from its reach religious corporations,
associations, educational institutions, and societies. The statute's
terms do not limit this exemption to nonprofit organizations, to
organizations that carry on only religious activities, or to
organizations established by a church or formally affiliated therewith.
See Civil Rights Act of 1964, 702(a), codified at 42 U.S.C. 2000e-
1(a); see also Hobby Lobby, 134 S. Ct. at 2773-74; Corp. of Presiding
Bishop, 483 U.S. at 335-36. The exemption applies whenever the
organization is ``religious,'' which means that it is organized for
religious purposes and engages in activity consistent with, and in
furtherance of, such purposes. Br. of Amicus Curiae the U.S. Supp.
Appellee, Spencer v. World Vision, Inc., No. 08-35532 (9th Cir. 2008).
Thus, the exemption applies not just to religious denominations and
houses of worship, but to religious colleges, charitable organizations
like the Salvation Army and World Vision International, and many more.
In that way, it is consistent with other broad protections for
religious entities in Federal law, including, for example, the
exemption of religious entities from many of the requirements under the
Americans with Disabilities Act. See 28 CFR app. C; 56 Fed. Reg. 35544,
35554 (July 26, 1991) (explaining that ``[t]he ADA's exemption of
religious organizations and religious entities controlled by religious
organizations is very broad, encompassing a wide variety of
situations'').
In addition to these explicit exemptions, religious organizations
may be entitled to additional exemptions from discrimination laws. See,
e.g., Hosanna-Tabor, 565 U.S. at 180, 188-90. For example, a religious
organization might conclude that it cannot employ an individual who
fails faithfully to adhere to the organization's religious tenets,
either because doing so might itself inhibit the organization's
exercise of religion or because it might dilute an expressive message.
Cf Boy Scouts of Am. v. Dale, 530 U.S. 640, 649-55 (2000). Both
constitutional and statutory issues arise when governments seek to
regulate such decisions.
As a constitutional matter, religious organizations' decisions are
protected from governmental interference to the extent they relate to
ecclesiastical or internal governance matters. Hosanna-Tabor, 565 U.S.
at 180, 188-90. It is beyond dispute that ``it would violate the First
Amendment for courts to apply [employment discrimination] laws to
compel the ordination of women by the Catholic Church or by an Orthodox
Jewish seminary.'' Id. at 188. The same is true for other employees who
``minister to the faithful,'' including those who are not themselves
the head of the religious congregation and who are not engaged solely
in religious functions. Id. at 188, 190, 194-95; see also Br. of Amicus
Curiae the U.S. Supp. Appellee, Spencer v. World Vision, Inc., No. 08-
35532 (9th Cir. 2008) (noting that the First Amendment protects ``the
right to employ staff who share the religious organization's religious
beliefs'').
Even if a particular associational decision could be construed to
fall outside this protection, the government would likely still have to
show that any interference with the religious organization's
associational rights is justified under strict scrutiny. See Roberts v.
U.S. Jaycees, 468 U.S. 609, 623 (1984) (infringements on expressive
association are subject to strict scrutiny); Smith, 494 U.S. at 882
(``[I]t is easy to envision a case in which a challenge on freedom of
association grounds would likewise be reinforced by Free Exercise
Clause concerns.''). The government may be able to meet that standard
with respect to race discrimination, see Bob Jones Univ., 461 U.S. at
604, but may not be able to with respect to other forms of
discrimination. For example, at least one court has held that forced
inclusion of women into a mosque's religious men's meeting would
violate the freedom of expressive association. Donaldson v. Farrakhan,
762 N.E.2d 835, 840-41 (Mass. 2002). The Supreme Court has also held
that the government's interest in addressing sexual-orientation
discrimination is not sufficiently compelling to justify an
infringement on the expressive association rights of a private
organization. Boy Scouts, 530 U.S. at 659.
As a statutory matter, RFRA too might require an exemption or
accommodation for religious organizations from antidiscrimination laws.
For example, ``prohibiting religious organizations from hiring only
coreligionists can `impose a significant burden on their exercise of
religion, even as applied to employees in programs that must, by law,
refrain from specifically religious activities.' '' Application of the
Religious Freedom Restoration Act to the Award of a Grant Pursuant to
the Juvenile Justice and Delinquency Prevention Act, 31 Op. O.L.C. 162,
172 (2007) (quoting Direct Aid to Faith-Based Organizations Under the
Charitable Choice Provisions of the Community Solutions Act of 2001, 25
Op. O.L.C. 129, 132 (2001)); see also Corp. of Presiding Bishop, 483
U.S. at 336 (noting that it would be ``a significant burden on a
religious organization to require it, on pain of substantial liability,
to predict which of its activities a secular court w[ould] consider
religious'' in applying a nondiscrimination provision that applied only
to secular, but not religious, activities). If an organization
establishes the existence of such a burden, the government must
establish that imposing such burden on the organization is the least
restrictive means of achieving a compelling governmental interest. That
is a demanding standard and thus, even where Congress has not expressly
exempted religious organizations from its antidiscrimination laws--as
it has in other contexts, see, e.g., 42 U.S.C. 3607 (Fair Housing
Act), 12187 (Americans with Disabilities Act)--RFRA might require such
an exemption.

2. Government Programs

Protections for religious organizations likewise exist in
government contracts, grants, and other programs. Recognizing that
religious organizations can make important contributions to government
programs, see, e.g., 22 U.S.C. 7601(19), Congress has expressly
permitted religious organizations to participate in numerous such
programs on an equal basis with secular organizations, see, e.g., 42
U.S.C. 290kk-1, 300x-65 604a, 629i. Where Congress has not expressly
so provided, the President has made clear that ``[t]he Nation's social
service capacity will benefit if all eligible organizations, including
faith-based and other neighborhood organizations, are able to compete
on an equal footing for Federal financial assistance used to support
social service programs.'' Exec. Order No. 13559, 1, 75 Fed. Reg.
71319, 71319 (Nov. 17, 2010) (amending Exec. Order No. 13279, 67 Fed.
Reg. 77141 (2002)). To that end, no organization may be ``discriminated
against on the basis of religion or religious belief in the
administration or distribution of Federal financial assistance under
social service programs.'' Id. ``Organizations that engage in
explicitly religious activities (including activities that involve
overt religious content such as worship, religious instruction, or
proselytization)'' are eligible to participate in such programs, so
long as they conduct such activities outside of the programs directly
funded by the Federal Government and at a separate time and location.
Id.
The President has assured religious organizations that they are
``eligible to compete for Federal financial assistance used to support
social service programs and to participate fully in the social services
programs supported with Federal financial assistance without impairing
their independence, autonomy, expression outside the programs in
question, or religious character.'' See id.; see also 42 U.S.C.
290kk-1(e) (similar statutory assurance). Religious organizations that
apply for or participate in such programs may continue to carry out
their mission, ``including the definition, development, practice, and
expression of . . . religious beliefs,'' so long as they do not use any
``direct Federal financial assistance'' received ``to support or engage
in any explicitly religious activities'' such as worship, religious
instruction, or proselytization. Exec. Order No. 13559, 1. They may
also ``use their facilities to provide social services supported with
Federal financial assistance, without removing or altering religious
art, icons, scriptures, or other symbols from these facilities,'' and
they may continue to ``retain religious terms'' in their names, select
``board members on a religious basis, and include religious references
in . . . mission statements and other chartering or governing
documents.'' Id.
With respect to government contracts in particular, Executive Order
13279, 67 Fed. Reg. 77141 (Dec. 12, 2002), confirms that the
independence and autonomy promised to religious organizations include
independence and autonomy in religious hiring. Specifically, it
provides that the employment nondiscrimination requirements in Section
202 of Executive Order 11246, which normally apply to government
contracts, do ``not apply to a Government contractor or subcontractor
that is a religious corporation, association, educational institution,
or society, with respect to the employment of individuals of a
particular religion to perform work connected with the carrying on by
such corporation, association, educational institution, or society of
its activities.'' Exec. Order No. 13279, 4, amending Exec. Order No.
11246, 204(c), 30 Fed. Reg. 12319, 12935 (Sept. 24, 1965).
Because the religious hiring protection in Executive Order 13279
parallels the Section 702 exemption in Title VII, it should be
interpreted to protect the decision ``to employ only persons whose
beliefs and conduct are consistent with the employer's religious
precepts.'' Little, 929 F.2d at 951. That parallel interpretation is
consistent with the Supreme Court's repeated counsel that the decision
to borrow statutory text in a new statute is ``strong indication that
the two statutes should be interpreted pari passu.'' Northcross v. Bd.
of Educ. of Memphis City Sch., 412 U.S. 427 (1973) (per curiam); see
also Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich L.P.A., 559
U.S. 573, 590 (2010). It is also consistent with the Executive Order's
own usage of discrimination on the basis of ``religion'' as something
distinct and more expansive than discrimination on the basis of
``religious belief.'' See, e.g., Exec. Order No. 13279, 22(c) (``No
organization should be discriminated against on the basis of religion
or religious belief . . .'' (emphasis added)); id. 22(d) (``All
organizations that receive Federal financial assistance under social
services programs should be prohibited from discriminating against
beneficiaries or potential beneficiaries of the social services
programs on the basis of religion or religious belief. Accordingly,
organizations, in providing services supported in whole or in part with
Federal financial assistance, and in their outreach activities related
to such services, should not be allowed to discriminate against current
or prospective program beneficiaries on the basis of religion, a
religious belief, a refusal to hold a religious belief, or a refusal to
actively participate in a religious practice.''). Indeed, because the
Executive Order uses ``on the basis of religion or religious belief' in
both the provision prohibiting discrimination against religious
organizations and the provision prohibiting discrimination ``against
beneficiaries or potential beneficiaries,'' a narrow interpretation of
the protection for religious organizations' hiring decisions would lead
to a narrow protection for beneficiaries of programs served by such
organizations. See id. 22(c), (d). It would also lead to
inconsistencies in the treatment of religious hiring across government
programs, as some program-specific statutes and regulations expressly
confirm that ``[a] religious organization's exemption provided under
section 2000e-1 of this title regarding employment practices shall not
be affected by its participation, or receipt of funds from, a
designated program.'' 42 U.S.C. 2290kk-1(e); see also 6 CFR 219.9
(same).
Even absent the Executive Order, however, RFRA would limit the
extent to which the government could condition participation in a
Federal grant or contract program on a religious organization's
effective relinquishment of its Section 702 exemption. RFRA applies to
all government conduct, not just to legislation or regulation, see 42
U.S.C. 2000bb-1, and the Office of Legal Counsel has determined that
application of a religious nondiscrimination law to the hiring
decisions of a religious organization can impose a substantial burden
on the exercise of religion. Application of the Religious Freedom
Restoration Act to the Award of a Grant, 31 Op. O.L.C. at 172; Direct
Aid to Faith-Based Organizations, 25 Op. O.L.C. at 132. Given
Congress's ``recognition that religious discrimination in employment is
permissible in some circumstances,'' the government will not ordinarily
be able to assert a compelling interest in prohibiting that conduct as
a general condition of a religious organization's receipt of any
particular government grant or contract. Application of the Religious
Freedom Restoration Act to the Award of a Grant, 31 Op. of O.L.C. at
186. The government will also bear a heavy burden to establish that
requiring a particular contractor or grantee effectively to relinquish
its Section 702 exemption is the least restrictive means of achieving a
compelling governmental interest. See 42 U.S.C. 2000bb-1.
The First Amendment also ``supplies a limit on Congress' ability to
place conditions on the receipt of funds.'' Agency for Int'l Dev. v.
All. for Open Soc'y Int'l, Inc., 133 S. Ct. 2321, 2328 (2013) (internal
quotation marks omitted)). Although Congress may specify the activities
that it wants to subsidize, it may not ``seek to leverage funding'' to
regulate constitutionally protected conduct ``outside the contours of
the program itself.'' See id. Thus, if a condition on participation in
a government program--including eligibility for receipt of federally
backed student loans--would interfere with a religious organization's
constitutionally protected rights, see, e.g., Hosanna-Tabor, 565 U.S.
at 188-89, that condition could raise concerns under the
``unconstitutional conditions'' doctrine, see All. for Open Soc'y
Int'l, Inc., 133 S. Ct. at 2328.
Finally, Congress has provided an additional statutory protection
for educational institutions controlled by religious organizations who
provide education programs or activities receiving Federal financial
assistance. Such institutions are exempt from Title IX's prohibition on
sex discrimination in those programs and activities where that
prohibition ``would not be consistent with the religious tenets of such
organization[s].'' 20 U.S.C. 1681(a)(3). Although eligible
institutions may ``claim the exemption'' in advance by ``submitting in
writing to the Assistant Secretary a statement by the highest ranking
official of the institution, identifying the provi-
sions . . . [that] conflict with a specific tenet of the religious
organization,'' 34 CFR 106.12(b), they are not required to do so to
have the benefit of it, see 20 U.S.C. 1681.

3. Government Mandates

Congress has undertaken many similar efforts to accommodate
religious adherents in diverse areas of Federal law. For example, it
has exempted individuals who, ``by reason of religious training and
belief,'' are conscientiously opposed to war from training and service
in the armed forces of the United States. 50 U.S.C. 3806(j). It has
exempted ``ritual slaughter and the handling or other preparation of
livestock for ritual slaughter'' from Federal regulations governing
methods of animal slaughter. 7 U.S.C. 1906. It has exempted ``private
secondary school[s] that maintain[] a religious objection to service in
the Armed Forces'' from being required to provide military recruiters
with access to student recruiting information. 20 U.S.C. 7908. It has
exempted Federal employees and contractors with religious objections to
the death penalty from being required to ``be in attendance at or to
participate in any prosecution or execution.'' 18 U.S.C. 3597(b). It
has allowed individuals with religious objections to certain forms of
medical treatment to opt out of such treatment. See, e.g., 33 U.S.C.
907(k); 42 U.S.C. 290bb-36(f). It has created tax accommodations for
members of religious faiths conscientiously opposed to acceptance of
the benefits of any private or public insurance, see, e.g., 26 U.S.C.
1402(g), 3127, and for members of religious orders required to take
a vow of poverty, see, e.g., 26 U.S.C. 3121(r).
Congress has taken special care with respect to programs touching
on abortion, sterilization, and other procedures that may raise
religious conscience objections. For example, it has prohibited
entities receiving certain Federal funds for health service programs or
research activities from requiring individuals to participate in such
program or activity contrary to their religious beliefs. 42 U.S.C.
300a-7(d), (e). It has prohibited discrimination against health care
professionals and entities that refuse to undergo, require, or provide
training in the performance of induced abortions; to provide such
abortions; or to refer for such abortions, and it will deem accredited
any health care professional or entity denied accreditation based on
such actions. Id. 238n(a), (b). It has also made clear that receipt
of certain Federal funds does not require an individual ``to perform or
assist in the performance of any sterilization procedure or abortion if
[doing so] would be contrary to his religious beliefs or moral
convictions'' nor an entity to ``make its facilities available for the
performance of'' those procedures if such performance ``is prohibited
by the entity on the basis of religious beliefs or moral convictions,''
nor an entity to ``provide any personnel for the performance or
assistance in the performance of'' such procedures if such performance
or assistance ``would be contrary to the religious beliefs or moral
convictions of such personnel.'' Id. 300a-7(b). Finally, no
``qualified health plan[s] offered through an Exchange'' may
discriminate against any health care professional or entity that
refuses to ``provide, pay for, provide coverage of, or refer for
abortions,'' 18023(b)(4); see also Consolidated Appropriations Act,
2016, Pub. L. No. 114-113, div. H, 507(d), 129 Stat. 2242, 2649 (Dec.
18, 2015).
Congress has also been particularly solicitous of the religious
freedom of American Indians. In 1978, Congress declared it the ``policy
of the United States to protect and preserve for American Indians their
inherent right of freedom to believe, express, and exercise the
traditional religions of the American Indian, Eskimo, Aleut, and Native
Hawaiians, including but not limited to access to sites, use and
possession of sacred objects, and the freedom to worship through
ceremonials and traditional rites.'' 42 U.S.C. 1996. Consistent with
that policy, it has passed numerous statutes to protect American
Indians' right of access for religious purposes to National Park lands,
Scenic Area lands, and lands held in trust by the United States. See,
e.g., 16 U.S.C. 228i(b), 410aaa-75(a), 460uu-47, 543f, 698v-
11(b)(11). It has specifically sought to preserve lands of religious
significance and has required notification to American Indians of any
possible harm to or destruction of such lands. Id. 470cc. Finally, it
has provided statutory exemptions for American Indians' use of
otherwise regulated articles such as bald eagle feathers and peyote as
part of traditional religious practice. Id. 668a, 4305(d); 42 U.S.C.
1996a.
* * * * *
The depth and breadth of constitutional and statutory protections
for religious observance and practice in America confirm the enduring
importance of religious freedom to the United States. They also provide
clear guidance for all those charged with enforcing Federal law: The
free exercise of religion is not limited to a right to hold personal
religious beliefs or even to worship in a sacred place. It encompasses
all aspects of religious observance and practice. To the greatest
extent practicable and permitted by law, such religious observance and
practice should be reasonably accommodated in all government activity,
including employment, contracting, and programming. See Zorach v.
Clauson, 343 U.S. 306, 314 (1952) (``[Government] follows the best of
our traditions . . . [when it] respects the religious nature of our
people and accommodates the public service to their spiritual
needs.'').
Attachment 5

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OASCR--Final Action Verification--Review of Expenditures Made by the
Office of the Assistant Secretary for Civil Rights--50099-0001-
12

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Collage of images in seven hexagon shapes with white borders:
firefighting airplane, scientist looking into a microscope, two
pigs, shipping containers on a river, sunflowers, a firefighter
in a forest, and a migrant harvester.

Report 60026-0001-21
October 2019
Office Of Inspector General

United States Department of Agriculture,
Office of Inspector General,
Washington, D.C. 20250

Date: October 29, 2019
FAV Number: 60026-0001-21
To: Stanley McMichael,
Associate Chief Financial Officer,
Office of the Chief Financial Officer

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

From: Gil H. Harden,
Assistant Inspector General for Audit
Subject: OASCR--Final Action Verification--Review of Expenditures
Made by the Office of the Assistant Secretary for Civil
Rights--50099-0001-12

The Office of Inspector General (OIG) completed a final action
verification of all nine recommendations in Audit Report No. 50099-
0001-12, Review of Expenditures Made by the Office of the Assistant
Secretary for Civil Rights.\1\ The purpose of our final action
verification was to determine if the Office of the Assistant Secretary
for Civil Rights (OASCR) and the Office of Procurement and Property
Management (OPPM) provided the Office of the Chief Financial Officer
(OCFO) with sufficient documentation to support that the management
decision reached with OIG was sufficient to close the audit report
recommendations.\2\
---------------------------------------------------------------------------
\1\ Audit Report 50099-0001-12, Review of Expenditures Made by the
Office of the Assistant Secretary for Civil Rights (Sept. 2015).
\2\ Final action is the completion of all actions that management
has, in its management decision, concluded are necessary with respect
to the finding and recommendations included in an audit report.
Management decision is an agreement between agency management and OIG
on the action(s) taken or to be taken to address a finding and
recommendations cited in an audit report. The management decision must
include the agreed upon dollar amount affecting the recommendations and
an estimated completion date unless all corrective action is completed
by the time agreement is reached. DR 1720-001, Section 6i, Audit
Follow-up and Management Decision (Nov. 2, 2011).
---------------------------------------------------------------------------
In a memorandum dated July 10, 2017, OCFO reported to OASCR that
final action was complete for all recommendations in the subject audit
report. Based on our review of the documentation in OCFO's files, we
concur with this decision for Recommendations 2-9, which all had
sufficient documentation to close the recommendation. Table 1
summarizes the actions OASCR and OPPM took with respect to
Recommendations 2-9. However, we do not concur with this decision for
Recommendation 1. Table 2 provides information on Recommendation 1,
including the reason why the documentation provided was not sufficient
to close the recommendation.
As noted in its response, OCFO agreed to reopen Recommendation 1 in
its Audit Follow-up Tracking and Reporting (AFTR) system. OCFO stated
that, subsequent to reopening the recommendation, an official
memorandum will be prepared and sent to OASCR. The memorandum will
explain that Recommendation 1 has been reopened and will remain open
until OCFO receives evidence that annual procurement training
requirement has been incorporated into the performance plans for the
three employees or an explanation for not including the requirement. In
addition, the memorandum will convey OCFO's intentions to conduct
periodic follow up meetings to track OASCR's progress in implementing
the recommendation.
Background
Our report, Review of Expenditures Made by the Office of the
Assistant Secretary for Civil Rights,\3\ made nine recommendations to
help improve OASCR's processes to ensure that the agency followed
established Departmental expenditure and accounting guidelines,
maintained sufficient documentation when making expenditures, and
determined if the improper payments identified need to be addressed,
where appropriate.
---------------------------------------------------------------------------
\3\ Audit Report 50099-0001-12, Review of Expenditures Made by the
Office of the Assistant Secretary for Civil Rights (Sept. 2015).
---------------------------------------------------------------------------
OIG, OASCR, and OPPM reached management decision on all nine
recommendations and documented this acceptance within two separate
memoranda: one dated September 23, 2015, and another dated November 30,
2015. In addition, the memoranda detailed corrective actions OASCR and
OPPM needed to implement in order to achieve final action for all
recommendations.
In accordance with Departmental Regulation 1720-001, OCFO has the
responsibility to determine final action for recommendations for which
OIG has agreed to management decision.\4\ As such, OCFO determines if
agency-provided documentation of implemented corrective actions meets
the intent of the recommendations and achieves final action.
---------------------------------------------------------------------------
\4\ DR 1720-001, Section 7d(1-9), Audit Follow-up and Management
Decision (Nov, 2, 2011).
---------------------------------------------------------------------------
Scope and Methodology
The scope of this final action verification was limited to
determining whether OASCR's plan of action for all recommendations in
the subject report were completed in accordance with the management
decisions reached on September 23, 2015, and November 30, 2015. To
accomplish our objective, we reviewed documentation of corrective
actions OASCR and OPPM implemented and submitted to OCFO. We did not
perform internal control testing or make site visits to determine
whether the underlying deficiencies that were initially identified had
been corrected by OASCR's plan of action. In addition, we did not
provide an opinion on the results of the implementation or
effectiveness of each recommendation. We conducted this final action
verification in accordance with our internal guidance cited in IG-7710,
Non-audit Work, and Final Action Verification Guidance and Procedures.
As a result, we did not conduct the final action verification in
accordance with the Generally Accepted Government Auditing Standards
issued by the Comptroller General of the United States or the Quality
Standards for Inspection and Evaluation issued by the Council of the
Inspectors General on Integrity and Efficiency. However, before we
performed the non-audit service, we determined that it would not impair
our independence to perform audits, inspections, attestation
engagements, or any other future or ongoing reviews of the subject.
Results of Final Action Verification
Recommendations with Sufficient Documentation
We determined that OASCR and OPPM provided sufficient documentation
to OCFO of corrective actions implemented to achieve final action for
eight recommendations in the subject report (Recommendations 2-9). We
detail the actions taken in Table 1.

Table 1. Recommendations With Sufficient Documentation to Achieve Final
Action
------------------------------------------------------------------------
Rec. No. Recommendation Action Taken
------------------------------------------------------------------------
2 OASCR needs to consult with OASCR consulted with
the Office of General OGC to determine
Counsel (OGC) and, where the legal authority
appropriate, with OPPM's and legal
Procurement Operations instrument
Division (POD),\5\ to regarding the 130
determine the appropriate improper payments.
legal authority and legal OGC issued a
instrument that should have memorandum on its
been used for the underlying review.
unauthorized commitments
resulting in 130 improper
payments, totaling over
$1.94 million, and
subsequently determine if
those transactions should be
ratified or otherwise
addressed.
------------------------------------------------------------------------
\5\ OPPM's
Procurement
Operations
Division (POD) is
OASCR's designated
contracting and
procurement
support office and
is responsible for
contracting for
goods and services
requested by
OASCR.
3 OASCR needs to coordinate OASCR established a
with OGC in future final rule in the
agreements to ensure the Federal Register
appropriate legal instrument detailing the
is used prior to obligating appropriate legal
funds. instrument to be
used when
conducting outreach
efforts.
------------------------------------------------------------------------
4 POD needs to work with the OPPM worked with the
appropriate entities to appropriate
establish a process for entities to
conducting periodic reviews establish a process
of agency procurement for conducting
activities exceeding the periodic reviews of
micro-purchase threshold, to agency procurement
ensure agencies are activities
complying with Departmental exceeding the micro-
policies. purchase threshold,
to ensure agencies
are complying with
Departmental
policies.
------------------------------------------------------------------------
5 OASCR needs to notify OCFO OASCR notified OCFO
and OGC of the potential and OGC of the
Antideficiency Act (ADA) potential ADA
violation and take violation. OGC
appropriate action based on provided a response
any determination. to OASCR stating
there was no
further action to
take.
------------------------------------------------------------------------
6 OASCR needs to establish OASCR established a
accounting internal controls document, Internal
related to general ledger (G/ Controls over
L) adjusting entries. General Ledger
Adjustments in the
Financial
Management
Modernization
Initiative (FMMI)
and provided OCFO
with a copy of the
G/L documentation
template.
------------------------------------------------------------------------
7 OASCR needs to research the OASCR provided
$834,000 in G/L adjusting documentation to
entries identified and make support that, with
any necessary corrections. the assistance of
OCFO, it researched
the $834,000 in G/L
adjusting entries.
OCFO indicated that
no corrections were
needed.
------------------------------------------------------------------------
8 POD needs to properly ratify, OPPM reviewed the
where appropriate, or documentation for
otherwise address, the nine the unauthorized
unauthorized commitments. commitments and,
where appropriate,
ensured compliance
with the
ratification
process or provided
a response to
address actions
found not proper
for the procurement
process.
------------------------------------------------------------------------
9 POD needs to revise its OPPM revised AOP
ratification acquisition Number 4,
operating procedure (AOP) to Ratification of
require the contracting Unauthorized
officer to notify the Commitment. It
appropriate supervisor states that when
regarding an unauthorized contracting
commitment and properly personnel learn
document the notification in that an
the file. unauthorized
commitment has
resulted or the
vendor is
performing services
due to the actions
of a Government
official who lacked
the authority to
bind the
Government, the
contracting officer
must immediately
notify the vendor
and the Government
employee making the
unauthorized
commitment and the
employee's director/
head of the
organization to
immediately
discontinue
performance.
------------------------------------------------------------------------

Recommendation without Sufficient Documentation
OASCR did not take proper corrective action and did not provide
sufficient documentation to OCFO for Recommendation 1. Although OCFO
closed the recommendation, we do not concur that the corrective action
implemented achieved final action for this recommendation. We detail
the reason for our determination in Table 2. We informed OASCR
officials of the results of this final action verification on July 10,
2019.

Table 2. Recommendation Without Sufficient Documentation to Achieve
Final Action
------------------------------------------------------------------------
Agreed-upon Reason Not
Rec. No. Recommendation Action to be Sufficient to
Taken Close
------------------------------------------------------------------------
1 OASCR needs to train OASCR agreed to OASCR did not
its staff, at least require incorporate the
annually, on Federal procurement annual training
legal authorities and staff to take requirement into
Departmental policies acquisition the performance
and procedures training in plans for three
regarding proper July 2016 and of the eight SES
practices for incorporate and GS-15 staff.
obligating funds. the annual
training
requirement
into SES and
GS-15 staff
performance
plans.
------------------------------------------------------------------------

OCFO should reopen Recommendation 1 and obtain the correct
documentation to support final action from OASCR. We request that you
provide us verification that corrective action was taken to
sufficiently achieve final action for this recommendation.
As noted in its response, OCFO agreed to reopen Recommendation 1 in
its AFTR system. Subsequent to reopening the recommendation in AFTR, an
official memorandum will be prepared and sent to OASCR. The memorandum
will explain that Recommendation 1 has been reopened and will remain
open until OCFO receives evidence that annual procurement training
requirement has been incorporated into the performance plans for the
three employees, or an explanation for not including the requirement.
In addition, the memorandum will convey OCFO's intentions to conduct
periodic follow-up meetings to track OASCR's progress in implementing
the recommendation. The memorandum to OASCR and the reopening of
Recommendation 1 will be completed by November 8, 2019.

cc: Winona L. Scott, Associate Assistant Secretary for Civil Rights

September 24, 2019

To: Yarisis Rivera-Rojas,
Deputy Assistant Inspector General for Audit

From: Stanley McMichael, /s/
Associate Chief Financial Officer,
Fiscal Policy and Planning

Subject: OASCR--Final Action Verification--Review of Expenditures
Made by the Office of the Assistant Secretary for Civil
Rights--Report #50099-0001-12

We have reviewed the Office of Inspector General (OIG) memorandum
dated September 9, 2019 on the subject audit. In response to the draft
report the Office of the Chief Financial Officer will reopen
Recommendation 1 in our ``Audit Follow-up, Tracking and Reporting''
system (AFTR), upon receipt of the final (OIG) report. Subsequent to
reopening the recommendation in AFTR, an official memorandum will be
prepared and sent to the Office of the Assistant Secretary for Civil
Rights. The memorandum will explain that Recommendation 1 has been
reopened and will remain open until OCFO receives evidence that annual
procurement training requirement has been incorporated into the
performance plans for the three employees or an explanation for not
including.
The memorandum to OASCR and the reopening of Recommendation 1 will
be completed by November 8, 2019.
If you have any questions or need additional information, please
have a member of your staff contact Annie Walker at (202) 720-9983 or I
can be reached at (202) 720-0564.
attachment
OASCR--Final Action Verification--Review of Expenditures Made by the
Office of the Assistant Secretary for Civil Rights--Report
#50099-0001-12
Management Response:

Reopen Recommendation 1 in AFTR, upon receipt of OIG's final
report.

Prepare an official memorandum from the Director of the
Internal Control Division to the Associate Assistant Secretary
for Civil Rights with the details for reopening Recommendation
1 and request evidence that the performance plans for the three
employees have been updated to incorporate the annual training
requirement.

Date Corrective Action will be completed: November 8, 2019
Responsible Organization: OCFO, Internal Control Division
Learn more about USDA OIG
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File complaint online: www.usda.gov/oig/hotline.htm
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Photograph of a field and a woman driving [a] tractor on the
right side.

In accordance with Federal civil rights law and U.S.
Department of Agriculture (USDA) civil rights regulations and
policies, the USDA, its Agencies, offices, and employees, and
institutions participating in or administering USDA programs
are prohibited from discriminating based on race, color,
national origin, religion, sex, gender identity (including
gender expression), sexual orientation, disability, age,
marital status, family/parental status, income derived from a
public assistance program, political beliefs, or reprisal or
retaliation for prior civil rights activity, in any program or
activity conducted or funded by USDA (not all bases apply to
all programs). Remedies and complaint filing deadlines vary by
program or incident.
Persons with disabilities who require alternative means of
communication for program information (e.g., Braille, large
print, audiotape, American Sign Language, etc.) should contact
the responsible Agency or USDA's TARGET Center at (202) 720-
2600 (voice and TTY) or contact USDA through the Federal Relay
Service at (800) 877-8339. Additionally, program information
may be made available in languages other than English.
To file a program discrimination complaint, complete the USDA
Program Discrimination Complaint Form, AD-3027, found online at
How to File a Program Discrimination Complaint and at any USDA
office or write a letter addressed to USDA and provide in the
letter all of the information requested in the form. To request
a copy of the complaint form, call (866) 632-9992. Submit your
completed form or letter to USDA by: (1) mail: U.S. Department
of Agriculture, Office of the Assistant Secretary for Civil
Rights, 1400 Independence Avenue, SW, Washington, D.C. 20250-
9410; (2) fax: (202) 690-7442; or (3) email:
[email protected].
USDA is an equal opportunity provider, employer, and lender.
All photographs on the front and back covers are from USDA's
Flickr site and are in the public domain. They do not depict
any particular audit or investigation.