[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 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 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:

                                  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 such as an advisory committee 
                                that has no minority members.

                          (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.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

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
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        [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.