A23_Attachment_1_-_Statement_of_Work.pdf

STATEMENT OF WORK

U.S. DEPARTMENT OF JUSTICE OFFICE OF JUSTICE PROGRAMS (OJP)

OFFICE FOR CIVIL RIGHTS (OCR)

EXPERT MEDICAL CONSULTANTS – DISABILITY COMPLAINT INVESTIGATIONS

1. INTRODUCTION

The Office of Justice Programs (OJP), Office for Civil Rights (OCR), United States Department of Justice (DOJ) ensures that recipients of federal financial assistance from OJP, the Office on Violence Against Women (OVW), and the Office of Oriented Policing (COPS) comply with civil rights laws that prohibit discrimination against individuals in the recipients’ delivery of services and in their employment practices. As part of its efforts to address employment discrimination, the OCR is reviewing the recruitment, hiring, retention, and promotion policies, procedures, and practices of law enforcement agencies and other recipients of federal financial assistances (“recipients”) to determine whether they adversely impact applicants and employees of certain protected classes. To assist the OCR in conducting these reviews, it needs to consult with various subject-matter experts, specifically experts skilled in exercise physiology.

2. BACKGROUND

The OCR’s enforcement authority arises from several nondiscrimination statutes and regulations that require recipients to adhere to particular civil rights requirements. The following statutes and regulations prohibit recipients from engaging in certain types of employment discrimination:

The Omnibus Crime Control and Safe Streets Act of 1968, as amended, which prohibits discrimination on the basis of race, color, national origin, religion, or sex in certain OJP-, OVW-, and COPS-funded programs or activities (42 U.S.C. § 3789d and 28 C.F.R. § 42.201 et seq.);

The Juvenile Justice and Delinquency Prevention Act of 1974, as amended, which prohibits discrimination on the basis of race, color, national origin, religion, or sex in certain OJP-funded programs or activities (42 U.S.C. § 5672(b));

The Violence Against Women Act (VAWA) of 1994, as amended, which prohibits discrimination on the basis of actual or perceived race, color, religion, national origin, sex, gender identity, sexual orientation, or disability in programs authorized under VAWA (42 U.S.C. § 13925(b)(13));

Section 1407 of the Victims of Crime Act (VOCA) of 1984, as amended, which prohibits discrimination on the basis of race, color, national origin, religion, sex, or disability in VOCA-funded programs or activities (42 U.S.C. § 10604);

Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, or national origin in OJP-, OVW-, and COPS-funded programs or activities (42 U.S.C. § 2000d and 28 C.F.R. § 42.101 et seq.);

Section 504 of the Rehabilitation Act, as amended, which prohibits discrimination on the basis of disability in OJP- and COPS-funded programs or activities (29 U.S.C. § 794 and 28 C.F.R. § 42.501 et seq.);

Title II of the Americans with Disabilities Act of 1990, as it relates to discrimination on the basis of disability in OJP-, OVW- , or COPS-funded programs or activities (42 U.S.C. § 12132 and 28 C.F.R. pt. 35); and

Title IX of the Education Amendments of 1972, as amended, as it relates to discrimination on the basis of sex in OJP-, OVW- , and COPS-funded training or education programs (20 U.S.C. § 1681 and 28 C.F.R. pt. 54).

3. APPLICABLE DOCUMENTS

The above-referenced statutes and regulations; the Uniform Guidelines on Employee Selection Procedures (28 C.F.R. § 50.14;

Title VII of the Civil Rights Act (Title VII) of 1964, as amended, which prohibits employment discrimination on the basis of race, color, national origin, religion, or sex (42 U.S.C. § 2000e-2); Consent Decree, United States v. City of Austin, No. 14-cv-00533 (W.D. Tex. June 9, 2014), ECF No. 3-4, available at http://go.usa.gov/eXDW; and Second Am. Consent Decree, United States v.

City of Corpus Christi, No. 12-cv-00217 (S.D. Tex. May 16, 2013), ECF No. 57, available at http://go.usa.gov/eXDR.

Written Reports – For each agency review, the final product will be detailed written report, including tables, by the expert consultant. The report will detail instances of adverse impact discovered during the expert’s analysis, possible steps for remedying the adverse impact, and procedures for monitoring compliance with the recommended remedies.

4. SCOPE

As part of this initiative, the OCR is in the process of retaining an exercise physiologist consultant. This consultant will assist the OCR in evaluating whether recipients utilize employment policies, procedures, and practices that adversely impact applicants for entry-level sworn officer positions or incumbent sworn personnel based on their race, color, national origin, or sex. In particular, this consultant will (1) review physical fitness assessments for disparate impact; (2) evaluate information about physical fitness assessments; (3) recommend revisions to physical fitness assessments; and (4) present analysis and opinions to the OCR. The OCR anticipates that it will rely on this consultant to assist with compliance reviews that it will conduct over the next eighteen months, and possibly over an additional fifty-four months. The expert consultant will also assist the OCR as it prepares written reports to the recipients regarding its analysis of and conclusions regarding the policies, procedures, and practices it reviewed. As part of each OCR review, the expert consultant will also assist the OCR in developing appropriate remedies and monitoring the agencies’ implementation of those measures.

5. TASKS

The OCR anticipates requiring the services of a consultant with expertise in the following areas: exercise physiology.

Exercise Physiologist Consultant (EPC) For up to five reviews per contract period

Task 1.0 Review of physical agility/ability testing for disparate impact – For each agency review assigned by the OCR, the EPC will review materials regarding the physical agility/ability tests (PAAT) that each OCR review recipient uses in hiring entry-level sworn personnel. The EPC must be able to identify PAAT events or components that are most likely to result in disparate impact against women and describe these events or components, including the reasons why they result in disparate impact, in a written report.

Task 2.0 Evaluation of validity studies of PAATs – For each agency review assigned by the OCR, the EPC will evaluate any validation study or analysis that the recipients using the PAAT provide to the OCR and note if the validation study shows that a particular PAAT selection device is job-related and consistent with business necessity. The EPC will outline the findings in a written report.

Task 3.0 Recommend PAAT revisions - For each agency review assigned by the OCR, the EPC should also be able to identify changes that the recipients should make to their PAAT to ensure that the tests do not adversely impact women. The EPC must be familiar with (1) PAAT standards used by a wide variety of recipients and (2) examples of particular PAAT standards that are demonstrably job-related and consistent with business necessity.

Task 4.0 Presentation of analysis and findings - For each agency review assigned by the OCR, the EPC will present a summary of his/her analysis and findings via written, oral, or testimonial means to the OCR staff and potentially in administrative proceedings.

6. STAFFING

The expert consultant must possess a doctorate in exercise physiology or a related field. The expert consultant must have at least three years’ experience preparing expert reports, affidavits, or declarations that show evidence of mastery of the tasks listed in Section 5, including pertinent aspects of Title VII’s disparate impact standards.

The expert consultant must be familiar with the legal standards that apply to disparate impact claims under Title VII and have experience serving as a retained expert in litigation matters that required him/her to prepare reports, declarations, or affidavits and to defend their analyses and opinions during discovery and at trial or in administrative hearings. The consultant must have prepared a minimum of three declarations, affidavits, or reports in litigation or administrative matters.

The expert must provide examples of instances when a court or an administrative agency allowed the expert consultant to serve as an expert and (a) list the area of expertise the court or agency concluded the expert consultant was qualified to address and (b) provide examples of the court or agency’s written decisions evaluating the expert consultant’s knowledge, skills, experience, and training that qualified him/her as an expert witness.

The EPC must have experience in evaluating employers’ reliance on physical fitness assessments to screen for public safety jobs. The EPC must also be familiar with effective strategies to challenge such assessments in employment discrimination litigation. The EPC must be familiar with (1) physical fitness assessments used by recipients providing public safety services and (2) examples of particular physical fitness standards that are demonstrably job-related and consistent with business necessity.

The expert consultant must have experience in handling confidential data and in taking all necessary steps to protect personally identifiable information from disclosure.

7. DELIVERABLES AND DELIVERY SCHEDULE

The expert consultant will provide OCR with information regarding his/her analyses and opinions in oral and written form on an ongoing basis, as requested. At the conclusion of the expert consultant’s review, the OCR may ask him/her to produce a report regarding his/her performance of the above tasks (including but not limited to the items of Section 5), to contribute to a written report that the OCR will send to the recipients it reviews, and/or to execute a declaration or an affidavit. In preparing any written material, the expert consultant should, to the extent possible, explain his/her analysis and opinions in a manner that is detailed but accessible to a non-specialist. The expert consultant will provide quarterly, written status reports of his/her activities and progress in reviewing every assigned case. The expert consultant should deliver any written material to the OCR within mutually agreed-upon timeframes in both hard copy and electronic format (ideally in a Word document).

The OCR may also ask the expert consultant to provide oral testimony during administrative proceedings that arise from the OCR’s reviews of particular recipients’ employment practices. The expert consultant should be available to meet with OJP staff, either in person or via tele- or video-conference, on a schedule that comports with the OJP’s standard business hours (i.e., Monday through Friday, 8:30 a.m. to 5:00 p.m. (Eastern Time zone)).

8. GOVERNMENT FURNISHED PROPERTY (GFP)

No government furnished property shall be provided.

9. PLACE OF PERFORMANCE

The work performed under this task order will take place at the Contractor site.

10. HOURS OF OPERATION

The typical OJP Hours of Operations is between the hours of 9:00 AM Eastern Time and 5:30 PM Eastern Time, Monday through Friday. Work shall not be required on the following Federal holidays or on days observed in lieu thereof, unless emergency support is required:

New Year’s Day Birthday of Martin Luther King, Jr.

Washington’s Birthday Memorial Day Independence Day Labor Day Columbus Day Veteran’s Day Thanksgiving Day Christmas Day Inauguration Day (When Applicable)

In addition to the days designated as holidays, the Government observes the following days:

Any other day designated by Federal Statute Any other day designated by Executive Order Any other day designated by the President’s Proclamation

It is understood and agreed between the Government and the Contractor that observance of such days by Government personnel shall not be a reason for an additional period of performance, or entitlement of compensation except as set forth within the task order. In the event the Contractor’s personnel work during the holiday, they may be reimbursed by the Contractor; however, no form of holiday or other premium compensation shall be reimbursed either as a direct or indirect cost, other than their normal compensation for the time worked.