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Suggested Citation:"Part I - Research Report." National Academies of Sciences, Engineering, and Medicine. 2021. Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/26230.
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Suggested Citation:"Part I - Research Report." National Academies of Sciences, Engineering, and Medicine. 2021. Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/26230.
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Suggested Citation:"Part I - Research Report." National Academies of Sciences, Engineering, and Medicine. 2021. Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/26230.
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Suggested Citation:"Part I - Research Report." National Academies of Sciences, Engineering, and Medicine. 2021. Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/26230.
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Suggested Citation:"Part I - Research Report." National Academies of Sciences, Engineering, and Medicine. 2021. Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/26230.
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Suggested Citation:"Part I - Research Report." National Academies of Sciences, Engineering, and Medicine. 2021. Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/26230.
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Suggested Citation:"Part I - Research Report." National Academies of Sciences, Engineering, and Medicine. 2021. Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/26230.
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Suggested Citation:"Part I - Research Report." National Academies of Sciences, Engineering, and Medicine. 2021. Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/26230.
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Suggested Citation:"Part I - Research Report." National Academies of Sciences, Engineering, and Medicine. 2021. Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/26230.
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Suggested Citation:"Part I - Research Report." National Academies of Sciences, Engineering, and Medicine. 2021. Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/26230.
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Suggested Citation:"Part I - Research Report." National Academies of Sciences, Engineering, and Medicine. 2021. Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/26230.
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Suggested Citation:"Part I - Research Report." National Academies of Sciences, Engineering, and Medicine. 2021. Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/26230.
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Suggested Citation:"Part I - Research Report." National Academies of Sciences, Engineering, and Medicine. 2021. Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/26230.
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Suggested Citation:"Part I - Research Report." National Academies of Sciences, Engineering, and Medicine. 2021. Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/26230.
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Suggested Citation:"Part I - Research Report." National Academies of Sciences, Engineering, and Medicine. 2021. Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/26230.
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Suggested Citation:"Part I - Research Report." National Academies of Sciences, Engineering, and Medicine. 2021. Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/26230.
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Suggested Citation:"Part I - Research Report." National Academies of Sciences, Engineering, and Medicine. 2021. Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/26230.
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Suggested Citation:"Part I - Research Report." National Academies of Sciences, Engineering, and Medicine. 2021. Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/26230.
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Suggested Citation:"Part I - Research Report." National Academies of Sciences, Engineering, and Medicine. 2021. Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/26230.
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Suggested Citation:"Part I - Research Report." National Academies of Sciences, Engineering, and Medicine. 2021. Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/26230.
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Suggested Citation:"Part I - Research Report." National Academies of Sciences, Engineering, and Medicine. 2021. Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/26230.
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Suggested Citation:"Part I - Research Report." National Academies of Sciences, Engineering, and Medicine. 2021. Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/26230.
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Suggested Citation:"Part I - Research Report." National Academies of Sciences, Engineering, and Medicine. 2021. Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/26230.
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Suggested Citation:"Part I - Research Report." National Academies of Sciences, Engineering, and Medicine. 2021. Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/26230.
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Suggested Citation:"Part I - Research Report." National Academies of Sciences, Engineering, and Medicine. 2021. Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/26230.
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Suggested Citation:"Part I - Research Report." National Academies of Sciences, Engineering, and Medicine. 2021. Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/26230.
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Suggested Citation:"Part I - Research Report." National Academies of Sciences, Engineering, and Medicine. 2021. Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/26230.
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Suggested Citation:"Part I - Research Report." National Academies of Sciences, Engineering, and Medicine. 2021. Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/26230.
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Suggested Citation:"Part I - Research Report." National Academies of Sciences, Engineering, and Medicine. 2021. Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/26230.
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Suggested Citation:"Part I - Research Report." National Academies of Sciences, Engineering, and Medicine. 2021. Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/26230.
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Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

Research Report P A R T I

7   Laws and Requirements Federal, state, and local law places requirements on public agencies providing public trans- portation and constrains the actions of those agencies. Requirements and limitations pertain to equity and inclusion in • Employment, • Contracting, • Service provision, and • Other aspects of operations. Some of the requirements and limitations pertain to any public entity, and others specifically apply to recipients of U.S. DOT or Federal Transit Administration (FTA) funds. There are many resources pertaining to these topics, including, for example, NCHRP Legal Research Digest 77: Update of Selected Studies in Transportation Law, Vol. 8, Section 1: Civil Rights and Transportation Agencies (Thomas 2019). Federal Requirements Federal requirements apply to different aspects of equity and inclusion in employment, contracting, service provision, and other aspects of transit agency operations. Employment Transit agencies are prohibited from discriminating against certain groups of individuals in employment. As FTA grantees, agencies must comply with equal employment opportunity (EEO) provisions of federal law, including • Americans with Disabilities Act of 1990 (ADA); • Title VI of the Civil Rights Act of 1964 (Title VI); • Title VII of the Civil Rights Act of 1964 (Title VII); • Section 504 of the Rehabilitation Act of 1973, which prohibits employment discrimination on the basis of disability for activities that receive federal funding; • Uniformed Services Employment and Reemployment Rights Act of 1994; and • Other EEO provisions of federal law, including the Equal Pay Act of 1963, the Age Discrimi- nation in Employment Act of 1967, Title II of the Genetic Information Nondiscrimination Act of 2008, U.S. DOT EEO implementing regulations [49 Code of Federal Regulations (CFR) Part 21], and the FTA Master Agreement. Groups Considered in the Requirements Different federal laws prohibit employment discrimination for different groups. For example, Title VI prohibits discrimination based on race, color, and national origin for organizations C H A P T E R 1

8 Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry receiving federal funds [e.g., see regulations at 49 CFR Section 21.5(c)]. Title VII includes these same prohibitions for employers with 15 or more employees and adds prohibition of discrimi- nation on the basis of religion or sex. Federal Transit Laws [49 United States Code (U.S.C.) Section 5332] protect each of the above groups from employment discrimination and prohibit discrimination based on disability and age. FTA Circular C 4704.1A explains that protections on the basis of “sex” under Federal Transit Laws include pregnancy and childbirth, gender identity, and sexual orientation (FTA 2016a). Title II of the Genetic Information Nondiscrimination Act of 2008 also applies to employers with at least 15 employees and prohibits employment discrimination based on genetic informa- tion, including family medical history. Even if a public transportation provider receives its U.S. DOT funds indirectly through its state DOT, it must comply with federal regulations in its employment. Certain regulations extend to companies working on federally funded contracts awarded by public transportation providers. Some of the above requirements have been in place for more than 50 years, and as federal law has evolved, so has FTA guidance to transit agencies regarding compliance. FTA Circular C 4704.1A summarizes requirements for FTA grantees and subgrantees regarding these and other aspects of federal law that prohibits employment discrimination (FTA 2016a). Employment Goals and Affirmative Action Programs Title VII also requires virtually all state and local governments to comply with certain employment reporting requirements and to develop affirmative action plans that include goals and timetables to achieve a representative workforce. Contracting Nondiscrimination in contracting is another requirement pertaining to transit agencies when they award contracts using U.S. DOT funds. The federal government requires state and local agencies to operate the U.S. DOT’s Disadvantaged Business Enterprise (DBE) Program if they use U.S. DOT funds for transportation projects. Federal regulations governing the DBE Program are provided in 49 CFR Part 26. There is also Official U.S. DOT Guidance to state and local agencies operating the program. Some form of these requirements regarding non- discrimination in contracting have been in place since the 1970s. Groups Considered in the Requirements The federal DBE Program applies to socially and economically disadvantaged businesses. Under the program, the following racial, ethnic, and gender groups can be presumed to be socially disadvantaged: • Black Americans, • Hispanic Americans, • Native Americans, • Asian Pacific Americans, • Subcontinent Asian Americans, and • Women of any race or ethnicity. To be economically disadvantaged, a company must be below an overall revenue limit and an industry-specific limit, and the firm owner(s) must be below personal net worth limits [49 CFR Section 26(d)].

Laws and Requirements 9   Requirements FTA recipients must have a DBE program if they receive planning, capital, or operating assistance from FTA and award prime contracts using more than $250,000 in FTA funds in a federal fiscal year. (This total does not include transit vehicle purchases with FTA funds.) To comply with the federal DBE Program, a transit agency must • Every 3 years, develop an overall annual goal for DBE participation in its FTA-funded contracts and establish the portion of its overall goal to be met through race-neutral means (such as small business programs) and race-conscious measures (such as DBE contract goals); • Determine whether all racial/ethnic/gender groups will be eligible for any race- or gender- conscious elements of the program; • Implement its neutral measures and, if needed, DBE contract goals; and • Report DBE participation to FTA every 6 months. Court Challenges Since the 1980s, there have been lawsuits challenging the constitutionality of the federal DBE Program and individual state and local agency implementation of the program. The federal DBE Program has been upheld as valid and constitutional. For the most part, state and local agencies have also been successful in defending against legal challenges to their imple- mentation of the program. The Western States Paving Company, however, was successful in challenging the Washington State DOT’s implementation of the federal DBE Program. Many state and local agencies, especially those in the West (i.e., states within the U.S. Court of Appeals for the Ninth Circuit), made adjustments in their implementation of the federal DBE Program to comply with the Ninth Circuit decision in the Western States Paving case and in accordance with the Official U.S. DOT Guidance issued after the decision. Groups have also challenged the constitutionality of state or local government minority business enterprise and women’s business enterprise programs related to non-federally-funded contracts (discussed in Appendix A). Nondiscrimination Provisions and Prohibitions on Adverse Effects in Transit Activities Federal regulations pertaining to Title VI and Environmental Justice require certain actions regarding nondiscrimination and avoiding adverse effects on certain groups across all transit agency activities. Section 601 of Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, or national origin under any program or activity receiving federal financial assis- tance. It also prohibits exclusion from participation in or being denied the benefits of any such program or activity based on these personal characteristics. Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” was signed in 1994. U.S. DOT Order 5610.2(a) “Actions to Address Environmental Justice in Minority Populations and Low-Income Popula- tions” outlines how it applies environmental justice principles [77 FR 27534 (May 10, 2012)]. Any transit agency receiving FTA funds must incorporate environmental justice principles into its transportation decision-making and environmental review. Groups Considered in the Requirements As summarized above, Title VI focuses on nondiscrimination based on race, color, and national origin (the nation where a person was born or where the person’s parents or ancestors were born). It also pertains to denial of meaningful access for limited English proficient (LEP) persons.

10 Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry Environmental justice regulations pertain to actions that will have a disproportionately high and adverse effect on minority populations or low-income populations. The definition of “minority persons” in FTA Circular C 4703.1 (FTA 2012a) is as follows: • American Indian and Alaska Native, • Asian, • Black or African American, • Hispanic or Latino, and • Native Hawaiian or Other Pacific Islander. FTA Circular C 4703.1 explains that “low-income populations” generally means a group of low-income persons who live in geographic proximity. “Low-income” is defined as median household income at or below the U.S. Department of Health and Human Services poverty guidelines (FTA 2012a). Prohibited Actions Beyond the differences in groups included in the regulations, Title VI and environmental justice regulations have a somewhat different focus. Title VI prohibits practices that have discriminatory effects. FTA Circular C 4702.1B (FTA 2012b, p. 8) includes the following definition of discrimination: Any action or inaction, whether intentional or unintentional, in any program or activity of a Federal aid recipient, subrecipient, or contract that results in disparate treatment, disparate impact, or perpetuat- ing the effects of prior discrimination based on race, color, or national origin. Under Title VI, intentional discrimination based on race, color, or national origin is prohibited. Unintentional actions that result in discrimination on the basis of race, color, or national origin also violate U.S. DOT regulations “unless the recipient can show the policies or practices are substantially justified and there is no less discriminatory alternative” (FTA 2012b, p. 6). Environmental justice regulations only allow U.S. DOT programs, policies, or activities that have a disproportionately high and adverse effect on targeted groups if “further mitigation measures or alternatives that would reduce the disproportionately high and adverse effects are not practicable” (FTA 2012a, p. 5). The regulations go on to state that “social, economic (including costs) and environmental effects of avoiding or mitigating the adverse effects will be taken into account” in the determination of whether mitigation or an alternative is “practicable.” FTA Circular C 4703.1 (FTA 2012a) defines “disproportionately high and adverse effect” as an effect on a minority population or low-income population that • Is predominantly borne by that population or • Will be suffered by that population and is appreciably more severe or greater in magnitude than the adverse effect that will be suffered by the nonminority population and/or non- low-income population. In sum, federal Title VI and environmental justice regulations overlap but are still distinct, as they apply to different groups and different types of impacts. FTA Circulars C 4702.1B and C 4703.1 explain the commonalities and differences in how transit agencies need to respond to these regulations. Service and Fare Equity Analysis Title VI and environmental justice regulations affect many areas of transit agency opera- tions, and not all are discussed here. One aspect of these regulations merits further explanation: requirements regarding equity in services and fares for fixed-route transit providers.

Laws and Requirements 11   Regulations in Section (3)(iii) Appendix C to 49 CFR Part 21 provide that [n]o person or group of persons shall be discriminated against with regard to the routing, scheduling, or quality of service of transportation service furnished as a part of the project on the basis of race, color, or national origin. Frequency of service, age and quality of vehicles assigned to routes, quality of stations servicing different routes, and location of routes may not be determined on the basis of race, color, or national origin. To comply, FTA Circular C 4702.1B explains that all fixed-route transit providers must set service standards and policies for each mode of service that identify how “service is distributed across the transit system, and must ensure that the manner of the distribution affords users access to these assets” (FTA 2012b). This requirement extends to service policies “to ensure service design and operations practices do not result in discrimination on the basis of race, color, or national origin.” FTA Circular C 4702.1B places requirements on transit providers that operate fixed-route service (FTA 2012b). Although these requirements do not apply, there are other requirements (including ADA) for providers that (a) only operate demand response services and (b) non- profits that only serve their own riders and not the general public. Basic requirements pertain to any fixed-route service transit provider. All fixed-route providers must develop quantitative standards for service for each fixed-route mode regarding vehicle load, headway, on-time performance, and services availability (e.g., the percentage of all residents in the service who are within a certain distance of the transit service). They must also develop a policy for distribution of transit amenities for each mode (e.g., seating at stops/stations) and vehicle assignment for each mode (age and type of vehicle or type of service provided). All fixed-route operators must develop Title VI programs that outline systemwide service standards and policies. Additional data collection and monitoring requirements apply to transit providers that operate 50 or more fixed-route vehicles in peak services and are located in an urbanized area with a population of 200,000 or more. These additional requirements also include • Description of the public engagement process for setting the major service change policy and disparate impact policy, • Results of equity analyses that examine effects of major service changes and/or fare changes, and • Documentation of their board’s awareness and approval of related policies and equity analyses. Although low-income populations are not included under Title VI, FTA Circular C 4702.1B requires transit providers to evaluate service equity for low-income populations, including whether they will bear a disproportionate burden of service or fare changes (FTA 2012b). Incorporating Environmental Justice Principles into the NEPA Process The National Environmental Policy Act (NEPA) requires consideration of environmental and other impacts in decision-making regarding major federal actions (42 U.S.C. Section 4321 et seq.). Federal regulations direct agencies to take certain actions, including examining ways to “avoid, minimize, or mitigate adverse effects of these actions upon the quality of the human environment” (40 CFR Section 1500.s); consider the “social, economic, and environmental impacts of the proposed transportation improvement” (23 CFR Section 771); and encourage public involvement in these decisions (40 CFR Section 1500.2). Executive Order 12898 directs agencies to ensure that environmental reviews under NEPA address disproportionately high and adverse effects on minority populations and low-income populations.

12 Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry FTA Circular C 4703.1 describes how environmental justice should be addressed in all NEPA decision-making for projects involving federal funding (FTA 2012a). FTA has issued regulations in 23 CFR Part 771 that address review under NEPA. A review can take the form of an environmental impact statement, environmental assessment, or a categorical exclusion, which describes actions that do not have a significant environmental effect. FTA Circular C 4703.1 (FTA 2012a) summarizes the steps that an agency should take as follows: • Define the project area and identify environmental justice populations. • Identify adverse environmental effects on environmental justice populations (examples include health and environmental risks, effects on aesthetic values, disruption of community cohesion or economic vitality, displacement of people or businesses, and increased isolation of minority or low-income individuals within a community or from the broader community). Nondiscrimination in Service Provision for Persons with Disabilities In addition to prohibiting discrimination against persons with disabilities in employment, providers of transportation services must ensure their services, vehicles, and facilities are accessible to persons with disabilities. Unlike for environmental justice, all types and sizes of providers of transit services must comply. Certain requirements extend to a private entity for fixed-route or demand response service that enters an agreement to provide those services for a public transit agency (49 CFR Section 37.23). FTA Circular C 4710.1 explains requirements for transit agencies from the Americans with Disabilities Act (ADA) of 1990 and Section 504 of the Rehabilitation Act of 1973 (FTA 2015). Federal regulations are set forth in 49 CFR Parts 27, 37, 38, and 39. Groups Considered in the Requirements Disability is defined as a physical or mental impairment that substantially limits one or more of the major life activities of an individual. Further “physical or mental impairment” includes a physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting the body as well as any mental or psychological disorder. The definitions specifically include emotional illness, drug addiction, and alcoholism (49 CFR Section 37.3). Requirements and Prohibited Actions In addition to providing services, there are requirements for a transit provider regarding • Use and maintenance of accessibility-related equipment or features (such as lifts, ramps, lighting, elevators, platforms, and signage), • Allowing service animals to accompany individuals with disabilities (“service animal” is defined as an animal individually trained to work or perform tasks), • Allowing an individual with a disability to travel with a respirator or portable oxygen supply (with certain restrictions), • Providing information to individuals with disabilities through accessible formats and technology, • Providing training to transit personnel about proper assistance for persons with disabilities, and • Making reasonable modifications in policies and practices to avoid discrimination on the basis of disability (with certain exceptions). There are certain situations when a transit provider can deny service, such as when “the indi- vidual engages in violent, seriously disruptive, or illegal conduct, or represents a direct threat to the health or safety of others” [49 CFR Section 37.5(h)].

Laws and Requirements 13   FTA Circular C 4710.1 (FTA 2015) also provides information specific to • New construction of transportation facilities and alterations of existing facilities; • Design of new, used, and remanufactured transit vehicles; • Service provision on fixed routes (such as priority seating and stop announcements); • Provision of demand response services and paratransit services; • Services provided by passenger ferries; • Transit services provided by monorails, trams, and other less-common vehicles; and • Processes for tracking and resolving complaints from persons with disabilities. Federal, State, and Local Limitations Regarding Race and Gender Preferences in Employment and Contracting Public-sector decision-making that considers factors such as race or gender can also be subject to legal challenge in federal or state court. These legal constraints differ by group (e.g., race com- pared with gender or physical ability) and by state. For example, states such as Arizona, California, Louisiana, and Washington prohibit or limit a state or local government’s use of preferences based on race in employment and contracting (unless required to receive federal funds). These issues are extensive and merit consideration in their own study, and they are only summarized here (see also Appendix A). Title VII Although Title VII prohibits discrimination in employment based on race and gender, a voluntary race- or gender-conscious program is permissible if (a) there is a showing of a “manifest imbalance” in the work force, (b) the plan does not “unnecessarily trammel” the rights of members of the nonpreferred class or “create an absolute bar to their advancement,” and (c) the plan does no more than is necessary to attain a balance. This analysis is the same for distinctions based on race or gender. (See Appendix A for a discussion of relevant cases and their consideration of the issues identified above.) Constitutional Standards for Affirmative Action Programs Race and Gender Preferences The Equal Protection Clause of the 14th Amendment to the U.S. Constitution also affects the ability of any government entity to use race as a factor in its decision-making. For public transit agencies, this limits voluntary affirmative action programs for employment and minority business enterprise programs related to their non-U.S. DOT-funded contracts. In City of Richmond v. J. A. Croson Co., 488 U.S. at 469 (1989), the U.S. Supreme Court held that local governments may utilize racial classifications only to serve a compelling state interest, and then the method chosen must be narrowly tailored to serve that interest. Thus, the constitutional standard applicable to federal, state, or local governmental programs creating preferences based on race and ethnicity is the strict scrutiny test. Appendix A discusses how courts have applied this legal standard. Programs for women’s business enterprises can be challenged as well (see Appendix A). Preferences for Other Groups A preference program for public agency employment or contracting can be legally challenged even if the program does not consider race, ethnicity, or gender. However, such programs are

14 Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry much more easily defended. The public entity generally need only show that it has a “rational basis” for such a program, depending upon its components and how it is implemented. Needing only to meet the rational basis test makes it easier to defend public-sector employment preferences for persons with disabilities, veterans, or other groups not defined on the basis of race, ethnicity, or gender. Contracting programs that give preferences or set goals for compa- nies owned by groups such as persons with disabilities, veterans, or service-disabled veterans would be more easily defended than programs that provide preferences to minority- or women- owned businesses. It is important to note that legal restrictions can apply to preferences based on geographic location of the individual or business. Some types of geographic preferences are prohibited when federal funds are being used.

15   Literature on Diversity and Inclusion Internal and external members of the public transportation industry have conducted con- siderable research that examines equity, diversity, and inclusion issues pertaining to workforce, procurement, hiring and retention, and other aspects of transit operations, including environ- mental justice, fare setting, and transit network design. This chapter reviews key literature that guided the objectives and questions of this research. Appendix B provides a more extensive review of the literature. Workforce Literature The research team examined the following TRB research on workforce diversity for transit agencies published since 2000. TCRP Synthesis 46 TCRP Synthesis 46: Diversity Training Initiatives represents the most recent comprehensive TCRP review of diversity programs for transit agencies (Simpson 2003). It examines diversity training initiatives in transit agencies through a literature review, a survey, and case examples. The current research team contacted the agencies that participated in the survey for TCRP Synthesis 46, and the results are discussed in the next chapter of the report. The author of the 2003 study reported that participating transit agencies indicated that diversity initiatives successfully increased the recruitment, retention, and promotion of women and minorities in the transit industry. Additionally, these diversity efforts were correlated with improved customer satisfaction. Overall, respondents to surveys in the 2003 study indicated a commitment to diversity throughout the public transit organization, including management, operations, and service provision. Although the 2003 project found that most diversity initiatives were driven by the human resources department, there was also strong commitment to diversity among transit agency leadership, including board members, executives, and general managers. This synthesis report also found that diversity initiatives within the transit industry varied. The author cites variation within policy development and a lack of standardization with regard to diversity programs and notes that diversity trainings, “have moved beyond race and sex to incorporate cultural, religious, geographic, economic, socioeconomic, and political differences, as well as consideration of people with varying abilities and disabilities.” TCRP Synthesis 46 also notes that many transit agencies have diversity plans, committees, task forces, or staffed positions to focus on the implementation of diversity initiatives within their organization. C H A P T E R 2

16 Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry This synthesis report includes a review of various definitions of diversity utilized by scholars as well as private and public agencies. Many definitions of diversity include a broad range of group or individual differences and differences in identity and “otherness.” Some include different dimensions of diversity, with the “primary characteristics” including age, gender, race/ethnicity, physical and mental ability, and sexual orientation, while the “secondary char- acteristics” include aspects that may change, such as education, income, religious beliefs, and work experience. The author conducted a survey of transit agencies. These agencies were asked about the definition of diversity within their organization, diversity initiatives within their transit agency, how diversity is managed, organizational barriers to diversity, and an overall rating of diversity efforts within the agency. Defining Diversity Answers relating to definitions of diversity identified who was held accountable for ensuring diversity in the transit agency. • Survey respondents reported that diversity was included in a variety of places within the organization and the managerial hierarchy, including in policies and procedures, mission statements, goals and objectives, employee recruitment and training plans. • Accountability for diversity initiatives was primarily the responsibility of the human resources department, although some agencies included affirmative action, civil rights, equal opportu- nity, and other departments that were charged with overseeing the overall implementation of diversity initiatives. • The survey also asked respondents to identify diversity within the transit agency hierarchy. Respondents indicated diversity within many aspects of transit agencies, including with executive, senior, and middle management; first-line supervisors; technical and professional positions; and driver and mechanic positions. • Respondents reported that diversity within the transit agency was associated with different resource allocation. For example, these agencies linked diversity to investment in the federal DBE Program, incentives to increase the recruitment of diverse employees, providing intern- ships to women and minorities, and funding diversity training and staff to manage the implementation of diversity efforts. Diversity Initiatives The survey also addressed types of diversity initiatives within transit agencies. • The vast majority of respondents reported programs to increase diversity awareness, such as seminars and workshops, cultural awareness sensitivity training, and diversity orientation programs. Others reported that diversity initiatives took the form of diversity councils or task forces, diversity plans, diversity vision statements, and diversity as a core business strategy. • Some transit agencies cited mentoring networks, programs to improve work–life balance, cultural celebrations, diversity poster programs, and other initiatives to enhance diversity. • Others noted that they utilized organizational assessments, staff retreats, and employee satisfaction and climate surveys to identify the need for further diversity initiatives. When asked how transit agencies measured the success of these diversity initiatives, respon- dents cited the following common measures of success: (a) meeting affirmative action goals and (b) reducing the number of charges of discrimination and employee and Equal Employment Opportunity Commission (EEOC) complaints, grievances, and employee–management conflicts. Some respondents noted that diversity efforts were measured by how closely the makeup of transit agency employees matched the demographics of the community.

Literature on Diversity and Inclusion 17   More broadly, however, some transit agencies responded that they measured the success of initiatives by the number of employees trained in diversity awareness, the number of women and minorities promoted, the number of participants in a particular cultural event, or the number of networking channels available for the promotion of internal staff. Managing Diversity Included in the survey were questions relating to managerial methods of diversity within the transit agency. In this section, respondents listed specific programs and activities that promoted diversity within the transit agency. Initiatives in the following agencies are summarized: • Hillsborough Area Regional Transit Authority (HART), • Los Angeles County Metropolitan Transit Authority [now the Los Angeles County Metro- politan Transportation Authority (LACMTA)], • ATC-Phoenix (now Valley Metro Transit System), • Alameda–Contra Costa Transit District (AC Transit), • Greater Cleveland Regional Transportation Authority [now the Greater Cleveland Regional Transit Authority (GCRTA)], • Port Authority of Allegheny County (PAAC), • Metropolitan Transit Authority of Harris County (Houston Metro), • Massachusetts Bay Transit Authority [now the Massachusetts Bay Transportation Authority (MBTA)], • Bay Area Rapid Transit (BART), and • Pierce Transit. Many of these transit agencies reported training programs, events and celebrations, committees and task forces, and recruitment efforts that emphasize diversity. Communicating Diversity The survey instrument included information about how diversity initiatives and goals are communicated within the agency. Common responses included • New hire orientation programs; • Employee participation in community-based events; • Professional associations [including the American Public Transportation Association (APTA) and the Conference of Minority Transportation Officials (COMTO)]; • On-site speakers and facilitators; • All-staff meetings; • In-service training, seminars, and workshops; • Newsletters, magazines, pamphlets, and other printed materials; • Focus groups and video trainings; and • Counseling and employee assistance programs in the case of workplace conflict. Additionally, some transit agencies included diversity initiatives in their strategic opera- tional goals. For example, transit agencies provided technical assistance for diverse vendors (such as disadvantaged business enterprises) who worked for the agency. Some transit agencies also reported strategic operational goals aimed at ensuring diversity within work teams, task forces, committees, and other groups of employees. Other respondents cited strategic opera- tional goals that established performance measures of diversity initiatives. Organizational Barriers to Diversity Survey respondents were also asked to identify barriers within the organization that limited diversity initiatives. Although some agencies reported no barriers, others responded that infor- mal communication networks were the most significant barrier in their agency.

18 Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry On a related note, some referenced informal rules, socialization protocols, and expected managerial style as things that acted as barriers to diversity initiatives. When asked about any personal barriers that limited the success of diversity programs, respondents cited mode of communication, along with age, race, perceived personal style, perceived socioeconomic status, perceived level of education, and perceived potential for leadership. Rating of Diversity Initiatives Finally, respondents were asked to rate their transit agency’s efforts to implement diversity initiatives. Many respondents rated their agency’s efforts as “very aggressive.” Additionally, many reported that their agency had diversity goals in place and included diversity as part of the overall strategic plan and mission statement, and many noted that diversity was a core value of their agency. Respondents reported that diversity goals were in place and must be met by management. No transit agency reported that it did not value diversity. Overall, few respondents reported the need for increased coordination of diversity initiatives. Case Studies The research also explored differences in the workplace that could have an impact on the success of diversity initiatives. The case studies included four agencies—HART, BART, PAAC, and the Washington Metropolitan Area Transit Authority (WMATA)—and examined committees or task forces designed to assist with diversity initiatives. The author noted the following activities as vital to the committees or task forces: • Governance or authority, • Leadership, • Developing diverse teams within the agency, • Training and staff development, • Planning diversity initiatives, and • Communicating diversity initiatives. The case studies identified similar barriers to diversity implementation as those identified by the survey. Other TRB Reports Regarding Diversity in Employment The following TRB reports are also reviewed in Appendix B: • TCRP Report 77: Managing Transit’s Workforce in the New Millennium (McGlothin Davis, Inc. 2002); • Special Report 275: The Workforce Challenge: Recruiting, Training, and Retaining Qualified Workers for Transportation and Transit Agencies (TRB 2003); • TCRP Report 120/NCHRP Report 585: Racial and Gender Diversity in State DOTs and Transit Agencies: A Benchmark Scoping (Hubert H. Humphrey Institute of Public Affairs 2007); • TCRP Report 148: Practical Resources for Recruiting Minorities for Chief Executive Officers at Public Transportation Agencies (Washington et al. 2011); • TCRP Research Report 214: Equity Analysis in Regional Transportation Planning Processes, Volume 1: Guide, and Volume 2: Research Overview (Twaddell and Zgoda 2020); • TCRP Synthesis 147: Attracting, Retaining, and Advancing Women in Transit (Alexander 2020); and • ACRP Research Report 217: Guidance for Diversity in Airport Business Contracting and Workforce Programs (Krop et al. 2020).

Literature on Diversity and Inclusion 19   Procurement TRB studies have also examined the federal DBE Program and other means of ensuring equity in procurement. These studies have focused on state DOTs and airports. The following studies are reviewed in Appendix B: • NCHRP Research Report 913: Compendium of Successful Practices, Strategies, and Resources in the U.S. DOT Disadvantaged Business Enterprise Program (Keen et al. 2019); • NCHRP Synthesis 481: Current Practices to Set and Monitor DBE Goals on Design–Build Projects and Other Alternative Project Delivery Methods (Keen et al. 2015); • ACRP Report 126: A Guidebook for Increasing Diverse and Small Business Participation in Airport Business Opportunities (Exstare Federal Services Group et al. 2015). Other Research Regarding Employment The research team also examined other studies related to equity, diversity, and inclusion issues in employment that are relevant to transit agencies. Appendix B summarizes commonly used approaches to increasing organizational diversity and inclusion, including • Required initiatives, • Human resources strategies, • Initiatives that impact the work environment, • Initiatives that establish responsibility or accountability, and • Initiatives that leverage external relationships. Research Concerning Equity and Inclusion in Other Aspects of Transit Operations The research team also reviewed research on • Equity and environmental justice, • Fare setting, and • Transit network design. Equity and Environmental Justice Environmental justice includes efforts to achieve equitable protection from environmental harm and equitable access to benefits across demographic groups. Researchers have found that communities of color and low-income communities are exposed to greater harm and receive fewer benefits from transportation systems as compared with the general population. Transportation-related environmental justice can be understood through costs (including air pollution and noise) and benefits (such as increased accessibility). Although transportation planning agencies are required to analyze the impacts of their plans for inequity, these reports rarely find that projects could result in disproportionate impacts (Rowangould et al. 2016). Some research has evaluated job accessibility impacts of transit improvements among low- income individuals. The researchers found that a new light rail line in Minneapolis–Saint Paul has generated significant job accessibility benefits for all workers. In some, but not all, areas, low-wage workers benefited more than medium- and high-wage workers (Fan et al. 2012).

20 Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry Other research has focused on the causal relationships that trace why low-income individuals and people of color are disproportionately exposed to pollution. In addition, gentrification prompted by transit system improvements can lead to displacement and further inequity (Banzhaf et al. 2019; Rodier et al. 2015). Researchers explain that two dimensions can be used to understand transportation equity— horizontal equity and vertical equity: • “Horizontal equity” refers to the distribution of impacts (i.e., costs and benefits) across groups that are considered equal in ability and need. This type of equity may include spatial and generational equity. • “Vertical equity” refers to the distribution of transportation impacts across groups that differ in ability and needs, such as persons with disabilities or special needs and groups across different social and income classes (Bills and Walker 2017). Another author explains that while vertical equity requires that different groups receive different amounts of a benefit, horizontal equity requires that within each group of similar individuals, a similar benefit is received. The two types of equity together imply that transit- dependent groups should have access to equal amounts of quality transit, and those most dependent on transit should receive more access to transit service (Welch 2013). Appendix B reviews these and other studies. Fare Pricing Researchers have also explored equity in public transit fare pricing. There are a variety of types of transit fare structures, including flat fees, distance-based fares, zone-based fares, pricing based on service type, time-of-day pricing, and concession fares (i.e., fares sold by different agencies to different groups at various discount levels, for example, student passes and senior passes). Some agencies use a combination of pricing strategies, and prices may also vary depending on the method of payment [e.g., transit cards versus payment in cash (Ma et al. 2017; Lipscombe 2016)]. Horizontal equity in terms of pricing can be described as equal distribution among equal members of society. In the context of transit pricing, horizontal equity is achieved when passen- gers pay as much as they use. Vertical equity in transit pricing requires that the costs and benefits are distributed according to the users’ need for the service or their capability for payment. Dis- parities between the benefit a passenger receives (trip length) and cost (fare) imply inequality. In the social equity literature, researchers note that pricing structures are efficient when riders contribute to the costs of their services in line with the benefits they receive (as reflected by the marginal costs of their trips). However, fares are considered equitable when they take into account the income capacities of riders (Bandegani and Akbarzadeh 2016). Transit Network Design Researchers have also examined equity (the promotion of fair practices, impartiality, and justice), in transportation network design and in the ways in which transit routes are determined. There are many ways to design a transit network in a community, each with different equity outcomes. For example, one report presented a set of 69 approaches (and combinations of approaches) to dealing with network design, frequency setting, and timetabling (Guihaire and Hao 2008). Some researchers who have analyzed transit networks use horizontal equity criteria (i.e., the distribution of impacts across groups equal in ability and need) to divide equity into modal and spatial equity:

Literature on Diversity and Inclusion 21   • “Modal equity” includes the travel time between the origin and destination of each mode, where modes are divided into passenger car and transit, and the travel time of each mode is the total travel time from the origin to the destination. Modal equity is achieved when the difference between transit travel time and passenger cars travel time is negligible because of the transit network (Kim et al. 2019; Ferguson et al. 2012). • “Spatial equity” is achieved when the difference in modal equity between regions is negli- gible because priority is given to transit improvements in regions with lower modal equity (Kim et al. 2019). Some of the literature concerning transit network design places this issue in the larger context of racial discrimination in the built environment. One author explains that the built environment, characterized by the man-made physical features that make it difficult for certain individuals to access certain places, can be used as a mechanism of exclusion (Schindler 2015). There is considerable literature on spatial mismatch, where African Americans have worse employment outcomes because of job inaccessibility, have lower rates of residential mobility, and experience housing and labor market discrimination. Studies have found a connection between increasing concentrations of minorities and decreasing accessibility and lower levels of transit service (Karner and Niemeier 2013).

22 Results of Interviews and Case Studies The research team conducted in-depth interviews with 37 transit agency leaders, human resources professionals and others with diversity and inclusion responsibilities from 12 of the 13 transit agencies included in the 2003 TCRP study (Simpson 2003). Following interviews, the research team completed case studies of each transit agency. Table 3-1 lists the agencies that participated in the 2003 study and the present study. Approach to Interviews The research team prepared an interview guide (Table 3-2) and a plan for identifying and contacting interviewees. Interviewees were contacted on the basis of a tiered structure, beginning with leadership, then human resources representatives, and finally with others having diversity and inclusion responsibilities (regarding procurement, transit customers, community interface, and other aspects of operations and governance), for a cross section of large and small public- sector transit organizations. An online search was done to obtain contact information, including email addresses and phone numbers, which were used to reach leadership or their representa- tives at each of the participating transit agencies. Initial communications, which included a letter from the Transportation Research Board (TRB), were sent via email. The research team conducted interviews with 37 individuals. Appendix C provides an in-depth discussion of the approach and the input collected. Results from Interviews Appendix C provides detailed results from the 37 interviews. Results can be grouped into the eight themes listed below. 1. The concepts of diversity and inclusion include a broad range of different ideas (see Chapter 4 for more details). 2. Organizations may originally have developed diversity initiatives to comply with federal requirements, but many agencies have moved beyond a “check-the-box” mentality. They now incorporate diversity and inclusion into their organizational culture. For some orga- nizations, this shift occurred in just the past 3 to 4 years but predated the national focus on racial equity in summer 2020. 3. Transit agencies expressed diversity and inclusion concerns as going beyond characteris- tics such as race, national origin, and gender. Examples of additional characteristics include sexual orientation, different mental and physical abilities, young adults, and ex-offenders. 4. The combined effect of Points 1, 2 and 3 is that diversity and inclusion (for many organi- zations) have moved beyond “putting people in buckets.” Agencies are focused on building C H A P T E R 3

Results of Interviews and Case Studies 23   Agency Location Participated in 2003 Study Participated in 2021 Study Alameda–Contra Costa Transit District CA ü ü Bay Area Rapid Transit CA ü ü Massachusetts Bay Transportation Authority MA ü Greater Cleveland Regional Transit Authority OH ü ü Hillsborough Area Regional Transit Authority FL ü ü Houston Metro TX ü ü Los Angeles County Metropolitan Transportation Authority CA ü ü Metropolitan Transportation Authority, NYC Transit NY ü ü Pierce Transit WA ü ü Port Authority of Allegheny County PA ü ü Trinity Metro TX ü ü Valley Metro Transit System AZ ü ü Washington Metropolitan Area Transit Authority DC ü ü Note: Via Transportation, New York, New York, was also invited to participate in the 2021 research project but chose not to. Table 3-1. Participating transit agencies. 9. As your organization has implemented or refined diversity and inclusion practices, where do you go for advice or other information on best practices? What resources do you tap? What, if anything, would you like to know that isn’t readily available? 10. What should I have asked about that I didn’t? 1. What does diversity and inclusion mean to you? How is it defined within your agency? 2. Why is diversity and inclusion important to your organization? Is it more important for specific agency functions? If so, what functions? 3. [If implemented] How is diversity and inclusion put into practice in various functions of your agency? [If not mentioned, ask about personnel, procurement, service provision, public engagement, other.] 4. Which staff positions are responsible for different aspects of diversity and inclusion within the organization? How could these positions receive more support? (What would the “org chart” for different aspects of diversity and inclusion look like?) 5. Briefly describe the history of diversity and inclusion practices within your organization. How long have different practices been in place? What prompted their initiation? In-depth interview instrument 6. What measures are used to gauge success of these practices or initiatives? 7. Are diversity and inclusion measures at your transit agency improving, getting worse or staying the same? Why? 8. Are there gaps in the diversity and inclusion efforts at your agency? If so, are they being addressed? How? Table 3-2. Structured interview guide.

24 Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry a culture in which everyone is appreciated for who they are and encouraged to bring “their whole selves” to work. This is seen as a “less exclusionary” approach that includes all employees, which may contribute to long-term success. 5. Diversity policies are used to hold transit agency leaders accountable for inclusive practices. “Obviously, we would hope that people would follow it because it’s the ‘right thing to do,’ but if, for whatever reason, they have difficulty understanding that, there are policies in place that make them comply.” 6. Building diverse leadership teams and ensuring equitable advancement within organi- zations were top of mind for many transit agencies. 7. When gauging progress regarding diversity and inclusion, headcount numbers for employment and share of contract dollars for procurement are still used as key metrics. Some agencies are measuring employee satisfaction to track progress on diversity and inclusion. 8. This work is difficult and sometimes unsuccessful. There are some types of public transpor- tation jobs for which it is very difficult to obtain representation of diverse groups, especially women. Some transit agency representatives reported that diversity and inclusion initiatives can lose traction or be conflicting, or that some diversity and inclusion programs can have the reverse effect. Training people and developing an inclusive corporate culture is especially difficult when many types of jobs in the field are relatively isolated. Transit agency leaders often lean on resources such as APTA and the Society for Human Resource Management and try to learn from peer organizations to improve their practices. Approach to Case Studies After conducting interviews, the literature review, and additional background research, the research team prepared two analytical instruments for performing case studies of the 12 transit agencies that participated in interviews. The case study instruments evaluated two broad prac- tice areas of diversity and inclusion: staff management programs and procurement practices. Table 3-3 and Table 3-4 display the case study instruments. Results from Case Studies Appendix D provides detailed results from the 12 case studies. Results can be grouped into five themes: 1. Most case study agencies have developed programs that address every recruitment and employment practice audited in the staff management instrument. Such uniform obser- vation indicates that diversity and inclusion are at the forefront of the minds of executive and human resources leadership. 2. Agencies included in this study utilize many innovative hiring, recruitment, and work- force efforts that were not discussed in the case study instrument to encourage diversity and inclusion. Some examples include pipeline development through targeted internships and apprenticeships and the utilization of non-English job announcements in minority communities. 3. Regulations governing operations of the federal DBE Program allow for transit agencies to operate programs without any use of race- or gender-based measures such as DBE contract goals. Many case study agencies use a combination of neutral and race- and gender- conscious means to meet their overall DBE goals for FTA-funded contracts. DBE certification is encouraged by transit agencies. Roughly half of the case study organizations act as a certify- ing body for DBEs.

Pre-recruitment Recruitment Accountability Training Retention of diverse talent Cultural norming Additional efforts Is the agency going above and beyond? How? Are employees trained on issues regarding civil rights and Equal Employment Opportunity? Are employee resource groups encouraged and available to employees? Does the agency hold employee diversity awareness workshops and training? Does the agency have and use diversity and inclusion committees? Has the agency created or designated facilities (e.g., restrooms) for all gender identities (including gender-neutral facilities)? Does the agency celebrate diverse cultures? Does the agency recognize diverse holidays and provide employees with discretionary holidays? Does the agency use workforce analysis to determine underutilized groups? Do interview panels include diverse people? Are minority groups targeted for recruitment? Are there job placement opportunities for persons with disabilities? Do performance evaluations incorporate Equal Employment Opportunity policy goals? Are candidate interview and selection processes monitored for implicit and explicit biases by agency leadership? Staff management instrument Employee recruitment practices Practices for current employees Table 3-3. Staff management case study instrument. DBE goal Prompt payment Contract compliance Mentorship programs and other business assistance DBE certification Additional efforts Procurement instrument What is the current DBE goal? What portion of the overall DBE goal is met through neutral means? Does the agency explicitly state prompt payment requirements in policies? Do policies extend to prime contractors' payment to subcontractors? Is there contract compliance oversight of federally funded contracts? Does the agency assign a specific contract administrator for oversight tasks? Does the agency act as mentor to local businesses? Are small business assistance programs provided to the community? Are vendors encouraged to obtain certification? Does the agency provide DBE certification? Is the agency going above and beyond? How? Table 3-4. Procurement case study instrument.

26 Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry 4. Some transit agencies have enacted their own contracting equity programs for non- federally-funded contracts. For example, five agencies implement practices designed to assist micro, small, and medium-sized businesses, and three agencies have programs for minority-owned, women-owned, and other disadvantaged businesses. There are legal risks to these programs, as they can be challenged in court. 5. Many case study agencies extend their diversity and inclusion efforts past staff management and procurement to their communities and customers. Mobility, environmental justice, transportation planning, fare pricing, language inclusion, and transit policing are some of the areas where leaders of public transportation organizations are applying a diversity, equity, and inclusion lens to decision-making.

27   Definitions of Diversity and Inclusion It is difficult to assess or strive for diversity and inclusion without sound definitions for both terms. This chapter presents transit-specific definitions of diversity and inclusion developed by using information from the in-depth interviews, the case studies, review of transit agency regu- lations, and examinations of relevant existing research. These definitions, like all, are imperfect. However, they are meant (a) to act as a starting point for transit leaders to develop their own organizational definitions and (b) to stimulate conversations about what diversity and inclusion truly mean to readers. Broad Definitions of Diversity and Inclusion A review of existing literature, including past TRB publications, found that definitions of diversity and inclusion in the public sector vary. The majority of these publications define diversity as the variation of a workforce on the basis of demographic traits, such as race/ethnicity, gender identity/expression, age/life stage, nationality, veteran status, language, religious affiliation, sexual orientation, and disability. Some researchers assert that diversity and inclusion should not be tied solely to demographic characteristics in a “check-the-box” manner. For example, in TCRP Synthesis 46: Diversity Training Initiatives (the report that examined the same agencies interviewed in this report) the author argues that, in addition to demographics, “diversity encompasses an infinite range of individuals’ unique characteristics and experiences, including communication styles, physical characteristics such as height and weight, and speed of learning and comprehension” (Simpson 2003, p. 5). TRB’s “Inclusion and Diversity Strategic Plan” defines diversity similarly, including “variety of experiences,” “socioeconomic status,” “perspective,” and “physical attributes” along with standard characteristics (TRB n.d.), as these factors influence the way individuals think and behave in social situations, including the workplace. Definitions of inclusion are typically derived from those of diversity. In general, inclusion is the creation of “an environment where all individuals and groups are valued, respected, and supported as they contribute to the mission and success of a community” (TRB n.d.). As the author of TCRP Synthesis 46 explains, “diversity describes the make-up of a group, whereas inclusion describes which individuals are allowed to participate and are able to contribute fully to the group” (Simpson 2003, p. 6). FTA does not have formal definitions for either “diversity” or “inclusion.” However, the U.S. Office of Personnel Management (OPM) Office of Diversity and Inclusion (ODI) provides definitions for both terms: • Diversity is “a collection of individual attributes that together help agencies pursue organiza- tional objectives efficiently and effectively. These include, but are not limited to, characteristics C H A P T E R 4

28 Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry such as national origin, language, race, color, disability, ethnicity, gender, age, religion, sexual orientation, gender identity, socioeconomic status, veteran status, and family structures. The concept also encompasses differences among people concerning where they are from and where they have lived and their differences of thought and life experiences” (OPM 2011, p. 5). • Inclusion is “a culture that connects each employee to the organization; encourages collabo- ration, flexibility, and fairness; and leverages diversity throughout the organization so that all individuals are able to participate and contribute to their full potential” (OPM 2011, p. 5). OPM’s definitions contain two elements: (a) a description of the term and (b) the impact of the term on an organization. OPM’s definitions also encapsulate the range of experiential differences highlighted in TCRP Synthesis 46 (Simpson 2003). Definitions of Diversity and Inclusion in This Research Results from in-depth interviews with transit agency leadership and case studies revealed that definitions of these concepts vary from agency to agency and from individual to individual. For example, when leadership in transit agencies was asked what diversity meant to them, their responses ranged from a workforce that “is a reflection of the local marketplace in every respect” to employees that resemble a “rainbow or kaleidoscope.” Analysis of transit agency policy and public platforms (e.g., websites, brochures, and social media) also found that the majority of the transit agencies included in this research do not publish formal definitions of diversity or inclusion. Defining Diversity Research findings show that transit agencies, in general, approach diversity in two ways: (a) administrative compliance and (b) workplace culture. • Administrative compliance relates to when agencies make calculated efforts to meet federal or state standards for diversity, equity, and inclusion, such as quantifying workforce demo- graphics, setting goals for targeted recruitment, and operating the federal DBE Program for FTA-funded contracts. • The latter arises in efforts to cultivate a diverse workforce that encourages and celebrates all employees. This can be seen in the recognition of holidays, support of the use of languages other than English, and provision of assistance to minority and women business owners across a transit agency’s contracts, whether or not these involve FTA funds. Compliance and culture are linked and influence strategies utilized by agencies. Research findings also show that when agencies define diversity in employment and opera- tions, they tend to utilize legally protected groups designated by federal, state, and local laws as a framework (as noted in Chapter 1 and Appendix A). However, some transit agencies included in this research exceed federal standards and advance notions of diversity beyond the legally protected categories, recognizing the benefits of other forms of diversity. For example, one in-depth interviewee reported that his agency viewed (and evaluated) diversity in terms of two categories: • Diversity of thought: The variation among individuals in skill, knowledge, and work experi- ence that shapes the way an individual perceives, behaves, and innovates in the workplace. • Diversity of experience: The variation among individuals with regard to lived experience. Demographic background (e.g., race/ethnicity, age, gender identity/expression, veteran status, and more) is included in this category of diversity, as one’s characteristics shape the way one is treated in life by others and the situations one is exposed to.

Definitions of Diversity and Inclusion 29   With consideration of research information and additional research, the research team defines diversity in transit as a workforce, collection of vendors, and served groups with unique characteristics, thoughts and experi- ences who reflect their communities. Characteristics, thoughts, and experiences include categories dictated by law as well as family structure, life experience, communication style, and learning style. Defining Inclusion Inclusion is seen by most transit agency leaders interviewed for this research as a component of diversity. The two are mutually inclusive and influence the outcomes of one another. Literature and best practices support this conceptualization, which is exemplified in the common group- ing of diversity and inclusion efforts as “diversity, equity, and inclusion efforts.” For reference, equity is the fair treatment of all individuals in a space (e.g., a community, workplace, or organi- zation), including with regard to access to opportunities and resources. Therefore, for inclusion to occur in an organization, diversity and equity need to be present and emphasized. Where definitions of inclusion differ between transit agencies is in the incorporation of customers in calculations of inclusion. For example, the Department of Equal Employment Opportunity and Diversity of the New York City Metropolitan Transportation Authority (MTA) defines an inclusive workplace as one “that embraces and fosters innovation, acknowledges all unique human characteristics, and provides tools for empowerment, increased opportunity, and unity among employees and the customers we serve” (MTA 2021). From this standpoint, inclusion is an active process that includes all individuals—served and serving—within an organization. With consideration of background research findings as well as an understanding that a trans- portation organization’s inclusivity must address a broad audience (i.e., staff, customers, the community, and businesses) the research team defines inclusion in transit agencies as an active cultivation of an organizational culture that promotes a sense of belonging, equity, and collaboration among all employees, vendors, and communities served, and the utilization of these unique differences to the benefit of the agency and all individuals involved. It is important to note that equity is a major consideration when definitions of diversity and inclusion are being constructed and in the success of diversity and inclusion programs. Equity is the action that drives an organization forward in its diversity and inclusion efforts. It is also the underlying factor in federal, state, and local regulations, particularly Title VI and environmental justice programs. Therefore, transit agency leaders must integrate equity into all programs.

30 Summary of Gaps and Constraints Affecting Implementation of Diversity and Inclusion The effective implementation of public-sector diversity and inclusion efforts can be affected by many forces, from public-sector hiring rules to workforce and vendor availability. There can also be gaps in what is typically included in these efforts. This chapter examines gaps and constraints on the basis of information gained from interviews, case studies, and existing literature. Interviews and background research found several barriers and constraints in the imple- mentation of diversity and inclusion efforts in public transit agencies. This chapter discusses the most prominent and common issues emphasized by study interviewees, with additional information from the existing literature. These issues are organized into (a) practical constraints and (b) intraorganizational barriers. (For a more detailed description of the themes discussed in this chapter, see Appendix C.) Practical Constraints Limited Skilled Labor and Diverse Vendors in Certain Fields Several transit agency leaders reported that their diversity efforts were restricted by a limited pool of skilled labor containing both diverse and nondiverse candidates. As one interviewee reported, “The biggest gap right now . . . is a shortage of skilled laborers such as mechanics, collision repair, A/C and heat—all those skills that are very shorthanded right now.” One way transit agencies have addressed this issue is to build their own pipelines for certain trades through apprenticeships and internships. With targeted recruitment, these training programs have successfully included people of color, women, persons with disabilities, and other diverse workers. For example, LACMTA administers the Women Build Metro Los Angeles (WBMLA) apprenticeship program. Despite these efforts, the limited pool of qualified candidates constrains the types and quality of workers hired by a transit agency as well as the effectiveness of targeted diversity recruitment efforts. This issue is at the forefront of the minds of many transit agency leaders. As an interviewee remarked, “As a public agency, something needs to be done to get that turned around.” Some transit agencies are also affected by the limited availability of diverse vendors in certain fields. As a result, organizations may find it difficult to meet overall DBE goals for their FTA-funded contracts. Transit agencies may need to assist in the identification and development of emerging diverse businesses in fields where they are underrepresented in agency contracts. C H A P T E R 5

Summary of Gaps and Constraints Affecting Implementation of Diversity and Inclusion 31   Effectiveness of Diversity and Inclusion Training A number of agency leaders reported that they had employee training on diversity, equity, and inclusion, but that it was implemented at their organization in an irregular manner. There were two primary reasons: • Funding: Transit agency training continues to be affected by the Great Recession of 2008, when funding to public transit was reduced. Diversity and inclusion initiatives were one casualty of this financial loss. To combat this, some agencies resorted to implementing training online because of cost effectiveness, and this change remains today. The COVID-19 pandemic has had a similar devastating impact on transit agency funds (a topic explored in Appendix B) (Welle and Avelleda 2020; De La Garza 2020; Davis 2020; Puentes 2020; and Comfort 2020). Whether and how this event influences diversity and inclusion training are yet to be determined. • Transit agency organization: One interviewee reported her transit agency had “gone too long [without] training” as a result of sporadic scheduling and a lack of prioritization. Inter- mittent training can create a perception among employees that leadership is not fully com- mitted to diversity and inclusion efforts and can result in negative responses. Irregularity in schedule and training style can ultimately affect the effectiveness of training. There is also a question of whether diversity training has a positive impact on diversity and inclusion in workplace culture. Researchers have not reached a consensus on this issue. For example, Kalinoski et al. (2013) found that training improves diversity-related cognitive- and skill-based outcomes. However, other studies have found that while training does improve the immediate diversity and inclusion testing scores of employees, it does not result in long-term knowledge retention (Dobbin and Kalev 2016; Paluck and Green 2009). Additionally, required training that utilizes “negative messag[ing]” and threatening language (e.g., lawsuits and firing) to dissuade discriminatory behaviors has been found to affect workforces negatively (Dobbin and Kalev 2016). Notably, voluntary training results in the opposite. Dobbin and Kalev (2016) found voluntary training results in positive employee reactions and a rise in African American, Hispanic, and Asian individuals in management positions. Therefore, training itself can become a barrier to diversity and inclusion efforts if conducted in a negative manner and does not guarantee long-term knowledge retention. Logistical Barriers to Participation in Training and Activities Transit agencies contain workforces that operate in a host of environments, from traditional offices to mechanic shops to behind the wheel of a bus. With many workspaces, it can be difficult for agencies to address the logistical barriers that prevent employees from participating in diversity and inclusion activities and training. These barriers include the following: • Access to technology: Employees who work in the field, such as bus drivers, do not have access to the same technology available to administrative or managerial staff (e.g., computers and Internet access). This can impede information about diversity and inclusion activities as well as web-based training. • Access to time: Staff eager to participate in activities, committees, or training may be dis- couraged by transit agency regulations that do not provide paid time off for these engagements. Trade union agreements may further complicate matters. • Access to clear communication: Lack of clear communication regarding diversity and inclusion—particularly informal communication—has a negative impact on efforts (Simpson 2003). Items such as logistical information about upcoming activities, the importance

32 Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry of diversity and inclusion to leadership, and training on equitable behavior can be mis- communicated and/or misinterpreted in obscured channels, which can hurt agency efforts. Barriers to participation extend to vendors and contractors. Some disadvantaged business owners have difficulty finding information about transit agency contracts, generating com- petitive bids, and obtaining the necessary DBE certification to be included on vendor lists. They may not know about a transit agency’s efforts to assist small businesses and include DBEs in its contracts. Inconsistent Data Collection To address diversity and inclusion, an agency must consistently evaluate and benchmark progress. This can be done by measuring outcomes such as the demographic makeup of the work- force, the percentage of contracting dollars paid to minority- and women-owned businesses and DBEs, characteristics of riders, and more. If collected regularly and consistently, these types of data can be used to assess some dimensions of agency progress. However, past research has found discrepancies in the consistency of data reported by transit agencies as well as in how regularly such data are collected (Hubert H. Humphrey Institute of Public Affairs 2007). Following are some possible reasons behind data discrepancies: • Lack of adequate staff and resources to conduct robust and regular evaluations; • Lack of knowledge on how to meaningfully analyze data and translate findings into actionable efforts (Twaddell and Zgoda 2020a); • Difficulty in defining measurements of inclusion; and • Lack of retaining detailed documentation of past assessments, efforts, and more (Twaddell and Zgoda 2020a). A lack of data or inconsistent data negatively affects diversity and inclusion programs. [For guidance on how to properly maintain data collection and documentation regarding diversity and inclusion, see TCRP Research Report 214, Volume 1 (Twaddell and Zgoda 2020a)]. Intraorganizational Barriers Diversity Without Inclusion Some transit agency leaders felt their agency lacked a well-rounded approach to diversity and inclusion efforts, with one aspect outweighing the other. For example, one interviewee reported that her transit agency focused too much on compliance and was “not doing the work” to instill true diversity and inclusion at the agency. She further explained that “doing the work” entailed, “having the conversations, creating these committees, truly doing celebrations for the diverse workforce and the community we’re serving.” Another transit agency leader remarked that his agency focused on diversity more than inclusion, reporting that not enough opportunities were made to help diverse employees understand that “their voices are heard and we’re listen- ing to them.” He indicated that his transit agency was currently trying to address inclusion via increased outreach efforts. Diversity without inclusion (or inclusion without diversity) has been found to have a negative impact on equity efforts and can lead to a diversity backlash—the attrition of diverse employees and disparate rates of promotion among people of color and women. For example, a study by Sherbin and Rashid (2017) found that without proper inclusion efforts, diverse employees “feel obligated” to become mentors to junior colleagues with similar backgrounds, which can lead to hesitation, burden, and unwillingness to participate in efforts. Lacking mentorship, diverse junior employees in these noninclusive environments were then less likely than their white counterparts to be sponsored for promotion, as they remained overlooked in new opportunities (Sherbin and Rashid 2017).

Summary of Gaps and Constraints Affecting Implementation of Diversity and Inclusion 33   Employee and Vendor Cynicism Interviewees reported worry over “skeptical observers”: those who do not believe diversity and inclusion initiatives are created or instituted in good faith. This culture of mistrust in orga- nizational intentions is common and has been found to occur in organizations that enact initia- tives defensively after a legal action is made (Newkirk 2019), or when actions appear to have ulterior motives. Such efforts may lack the buy-in (from employees and leadership) needed to be effective and/or cause more resistance among skeptical observers. A related concern of interviewees that was perceived to drive cynicism were false-front groups: committees created to address diversity and inclusion compliance but that do so in name only. One interviewee reported that diversity committees at her transit agency were honorary spaces that became unproductive, as they were not held accountable. Unnecessary Minimum Qualifications Institutional barriers arise in many forms. One can be in the initial requirements and quali- fications posed in job descriptions. One interviewee reported that her transit agency was reassessing the minimum qualifications of all job positions, as some of these requirements were no longer appropriate or were outdated. This effort included reevaluating the need for testing, because, she reported, “not all groups do testing well.” This transit agency leader’s state- ments are supported by past studies that have found racial/ethnic and socioeconomic bias in standardized tests such as the College Board’s SAT exam and the ACT exam (Jaschik 2010). Therefore, minimum qualifications and testing may have a disproportionate impact on certain groups of job applicants and produce inaccurate estimations of hireability. Lack of Support from Executive Leadership Some interviewees reported an absence of support from executive leadership in initiatives. They saw this as a detriment to efforts, as leadership has the ability to set the tone and expecta- tions for diversity and inclusion throughout the organization and can underscore the transit agency’s commitment to these initiatives. Effectiveness of Equal Employment Opportunity Programs and Grievance System The efficacy of EEO programs in increasing workplace diversity is a regularly questioned topic among diversity, equity, and inclusion researchers, particularly with regard to compliance- based passive activities and the complaints process. EEO programs tend to be framed upon com- pliance with regulations rather than proactive approaches to improving diversity and inclusion. Some consequently see EEO programs as “only the first step” in the process (Kossek and Pichler 2008, p. 3) and perceive them as enacting minimal change in organizations. This has led many to question the effectiveness of EEO programs. Another issue affecting perceptions of EEO programs is the grievance process. EEO programs include a formal grievance process in which employees can file a complaint with the EEOC if they experience discrimination at work on the basis of their race, color, religion, sex, national origin, age, disability, or genetic information. One study analyzed almost 90,000 discrimination complaints filed with the federal EEOC in 2015 and found that 45% of those complaints resulted in retaliation (Dobbin and Kalev 2016). When employees see that the grievance procedure is ineffective, they are more likely to avoid reporting incidents of discrimination. As a result of few complaints, some organizations conclude that they do not have problems with discrimination. Additionally, studies have found that protective measures such as grievance systems may lead people to let bias affect their decisions more, as they believe that organizational policies guarantee fairness (Dobbin and Kalev 2016).

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Many transit agencies are striving to improve diversity and inclusion. They continue to initiate and sustain programs and develop more innovative strategies.

The TRB Transit Cooperative Research Program's TCRP Research Report 228: Resource Guide for Improving Diversity and Inclusion Programs for the Public Transportation Industry builds on the snapshot of transit agency diversity initiatives provided nearly 20 years ago in TCRP Synthesis 46: Diversity Training Initiatives to understand how diversity programs at transit agencies have evolved, how inclusion has been incorporated, and what policies, plans, and practices have been successfully implemented within the industry.

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