[Federal Register Volume 81, Number 16 (Tuesday, January 26, 2016)]
[Proposed Rules]
[Pages 4494-4571]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-01213]
[[Page 4493]]
Vol. 81
Tuesday,
No. 16
January 26, 2016
Part IV
Department of Labor
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Office of the Secretary
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29 CFR Part 38
Implementation of the Nondiscrimination and Equal Opportunity
Provisions of the Workforce Innovation and Opportunity Act; Proposed
Rule
Federal Register / Vol. 81 , No. 16 / Tuesday, January 26, 2016 /
Proposed Rules
[[Page 4494]]
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DEPARTMENT OF LABOR
Office of the Secretary
29 CFR Part 38
RIN 1291-AA36
Implementation of the Nondiscrimination and Equal Opportunity
Provisions of the Workforce Innovation and Opportunity Act
AGENCY: Office of the Secretary, Labor.
ACTION: Notice of Proposed Rulemaking.
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SUMMARY: The U.S. Department of Labor (Department) is proposing to
issue nondiscrimination and equal opportunity regulations replacing its
regulation which implemented Section 188 of the Workforce Innovation
and Opportunity Act (WIOA). Signed by President Obama on July 22, 2014,
WIOA supersedes the Workforce Investment Act of 1998 (WIA) as the
Department's primary mechanism for providing financial assistance for a
comprehensive system of job training and placement services for adults
and eligible youth. Section 188 of WIOA prohibits the exclusion of an
individual from participation in, denial of the benefits of,
discrimination in, or denial of employment in the administration of or
in connection with, any programs and activities funded or otherwise
financially assisted in whole or in part under Title I of WIOA because
of race, color, religion, sex, national origin, age, disability,
political affiliation or belief, and for beneficiaries only,
citizenship status, or participation in a program or activity that
receives financial assistance under Title I of WIOA. These proposed
regulations would update the nondiscrimination and equal opportunity
regulation consistent with current law and address its application to
current workforce development and workplace practices and issues.
Most of the provisions of WIOA took effect on July 1, 2015, except
where otherwise specified in the law. WIOA contains the identical
provisions of Section 188 as appeared in WIA, and these WIOA provisions
took effect on July 1, 2015. To ensure no regulatory gap while this
proposed rulemaking progresses toward a final rule, the Department
issued a final rule implementing Section 188 of WIOA, which applies
until issuance of the final rule based on this NPRM. The final rule
issued separately in July 2015 retains the provisions in part 37 but
substitutes all references to WIA with WIOA to reflect the proper
statutory authority. This NPRM revises the final rule issued in July
2015. This NPRM generally carries over the policies and procedures
found in Department regulations, which implement the equal opportunity
and nondiscrimination provisions of WIA and WIOA. Like the final rule
issued separately in July 2015, this rule is organized by the same
subparts A through E, and refers to ``changes'' or ``revisions'' made
to the final rule. Certain sections in each subpart have significant
revisions.
DATES: To be assured of consideration, comments must be received on or
before March 28, 2016.
ADDRESSES: Comments may be submitted, identified by Regulatory
Information Number (RIN) 1291-AA36, by any one of the following
methods:
Federal e-Rulemaking Portal www.regulations.gov. Follow
the instructions for submitting comments.
Fax: (202) 693-6505 (for comments of six pages or less).
Mail or Hand Delivery/Courier: Naomi Barry-Perez,
Director, Civil Rights Center (CRC), U.S. Department of Labor, 200
Constitution Avenue NW., Room N-4123, Washington, DC 20210.
Email at [email protected].
Please submit comments by only one method. Receipt of comments will
not be acknowledged; however, the Department will post all comments
received on http://www.regulations.gov without making any change to the
comments, including any personal information provided. The http://www.regulations.gov Web site is the Federal e-rulemaking portal, and
all comments posted there are available and accessible to the public.
The Department cautions commenters not to include personal
information, such as Social Security Numbers, personal addresses,
telephone numbers and email addresses, in comments, as such submitted
information will become viewable by the public via http://www.regulations.gov. It is the responsibility of the commenter to
safeguard personal information. Comments submitted through http://www.regulations.gov will not include the commenter's email address
unless the commenter chooses to include that information as a part of a
comment.
Postal delivery in Washington, DC, may be delayed due to security
concerns. Therefore, the Department encourages the public to submit
comments via the Web site indicated above.
The Department will also make all the comments it receives
available for public inspection during normal business hours at the
Civil Rights Center at the above address. If you need assistance to
review the comments, the Department will provide you with appropriate
aids such as readers or print magnifiers. The Department will make
copies of this NPRM available, upon request, in large print and as an
electronic file on computer disk. The Department will consider
providing the proposed rule in other formats upon request. To schedule
an appointment to review the comments and/or obtain the rule in an
alternate format, contact CRC at (202) 693-6500 (VOICE) or (202) 877-
8339 (TTY).
FOR FURTHER INFORMATION CONTACT: Naomi Barry-Perez, Director, Civil
Rights Center, U.S. Department of Labor, 200 Constitution Avenue NW.,
Room N-4123, Washington, DC 20210. [email protected], telephone (202)
693-6500 (VOICE) or (202) 877-8339 (Federal Relay Service--for TTY).
SUPPLEMENTARY INFORMATION:
Executive Summary
Purpose of the Regulatory Action
The Civil Rights Center (CRC) of the Department is charged with
enforcing Section 188 of WIA and, successively, WIOA, which prohibits
exclusion of an individual from participation in, denial of the
benefits of, discrimination in, or denial of employment in the
administration of or in connection with, any programs and activities
funded or otherwise financially assisted in whole or in part under
Title I of WIOA because of race, color, religion, sex, national origin,
age, disability, political affiliation or belief, and for
beneficiaries, applicants, and participants only, citizenship status,
or participation in a program or activity that receives financial
assistance under Title I of WIOA. Section 188 of WIOA incorporates the
prohibitions against discrimination in programs and activities that
receive Federal financial assistance under certain civil rights laws
including Title VI of the Civil Rights Act of 1964 (prohibiting
discrimination based on race, color, and national origin in programs
and activities receiving federal financial assistance),\1\ Title IX of
the Education Amendments of 1972 (prohibiting discrimination based on
sex in education and training programs receiving federal financial
assistance),\2\ Age Discrimination Act of 1975 (prohibiting
discrimination based on age),\3\ and Section 504 of the Rehabilitation
Act (prohibiting discrimination based on disability).\4\
[[Page 4495]]
CRC interprets the nondiscrimination provisions of WIOA consistent with
the principles of Title VII of the Civil Rights Act (Title VII),\5\ the
Americans with Disabilities Act (ADA),\6\ as amended by the Americans
with Disabilities Act Amendments Act (ADAAA),\7\ and Section 501 of the
Rehabilitation Act, as amended,\8\ which are enforced by the Equal
Employment Opportunity Commission (EEOC); Executive Order 11246, as
amended,\9\ and Section 503 of the Rehabilitation Act, as amended,\10\
which are enforced by the Department's Office of Federal Contract
Compliance Programs (OFCCP); Title VI of the Civil Rights Act (Title
VI), the Age Discrimination Act of 1975, and Section 504 of the
Rehabilitation Act, which are enforced by each Federal funding agency;
and Title IX of the Education Amendments of 1972 (Title IX), which is
enforced by each Federal funding agency that assists an education or
training program.
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\1\ 42 U.S.C. 2000d et seq.
\2\ 20 U.S.C. 1681 et seq.
\3\ 42 U.S.C. 6101 et seq.
\4\ 29 U.S.C. 794.
\5\ 42 U.S.C. 2000e et seq.
\6\ 42 U.S.C. 12101 et seq.
\7\ 42 U.S.C. 12101 et seq., Public Law 110-325, Sec. 2(b)(1),
122 Stat. 3553 (2008).
\8\ 29 U.S.C. 791.
\9\ Executive Order 11246 (30 FR 12319), as amended by Executive
Order 11375 (32 FR 14303), Executive Order 12086 (43 FR 46501),
Executive Order 13279 (67 FR 77141), Executive Order 13665 (79 FR
20749) and Executive Order 13672 (79 FR 42971).
\10\ 29 U.S.C. 793.
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The regulations at 29 CFR part 38 set forth the equal opportunity
and nondiscrimination requirements and obligations for recipients of
financial assistance under Title I of WIOA and the enforcement
procedures for implementing the nondiscrimination and equal opportunity
provisions of WIOA. As set forth in the Part 38 final rule, WIOA did
not change the nondiscrimination and equal opportunity provisions in
Section 188, but Congress mandated that the Department issue
regulations to implement the section not later than one year after the
date of enactment of WIOA.\11\ The regulations must contain standards
for determining discrimination and enforcement procedures, including
complaint processes for Section 188 of WIOA.\12\
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\11\ 29 U.S.C. 3248(e).
\12\ Id.
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Since their promulgation in 1999, the regulations implementing
Section 188 of WIA at part 37 have only been amended once, in 2004,
specifically to revise Sec. 37.6 to provide that faith-based and
community organizations are able to participate in the Department's
social service programs without regard to their religious character or
affiliation.\13\ Because the part 38 regulations made only technical
revisions from the part 37 rule, changing references from ``WIA'' to
``WIOA,'' the current rule does not reflect recent developments in
equal opportunity and nondiscrimination jurisprudence. Moreover,
procedures and processes for enforcement of the nondiscrimination and
equal opportunity provisions of Section 188 have not been revised to
reflect changes in the practices of recipients since 1999, including
the use of computer-based and Internet-based systems to provide aid,
benefit, service, and training through WIOA Title I-financially
assisted programs and activities.
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\13\ 69 FR 41894, July 12, 2004.
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For the reasons stated above, the Department proposes to revise the
regulations at part 38 to set forth recipients' nondiscrimination and
equal opportunity obligations under WIOA Section 188 in accordance with
existing law and policy. This NPRM proposes to update the regulations
to address current compliance issues in the workforce system, and to
reflect existing law under Title VI and Title VII of the Civil Rights
Act of 1964, Title IX of the Education Amendments of 1972, the ADA and
the Rehabilitation Act as related to WIOA Title I-financially assisted
programs and activities. This NPRM also incorporates developments and
interpretations of existing law by the Department of Justice (DOJ), the
EEOC, the Department of Education, and this Department's corresponding
interpretation of Title VII and the Rehabilitation Act, as amended,
into the workforce development system. The proposed rule is intended to
reflect current law and legal principles applicable to a recipient's
obligation to refrain from discrimination and to ensure equal
opportunity.
The first category of proposed updates to the part 38 regulations
in this NPRM improves the overall readability of the regulations
through revisions, limited reorganization of sections and more explicit
descriptions of recipient obligations. The NPRM revises the current
question and answer format in the title of each section to make it more
straightforward and to more closely mirror other nondiscrimination and
equal opportunity regulations issued by the Department. This NPRM also
replaces ``he or she'' with ``the individual,'' ``person,'' or other
appropriate identifier wherever possible to avoid the gender binary.
The plain language of the regulations is retained for ease of
comprehension and application.
The second category of proposed changes in this NPRM updates the
nondiscrimination and equal opportunity provisions to align them with
current law and legal principles. As discussed above, in enforcing the
nondiscrimination obligations of recipients set forth in this part, CRC
follows the case law principles developed under, among other statutes,
Title VI and Title VII of the Civil Rights Act of 1964, Title IX of the
Education Amendments of 1972, Section 504 of the Rehabilitation Act of
1973, and the Americans with Disabilities Act, as amended by the ADAAA.
Since the issuance of the WIA Section 188 regulations in 1999, the
principles of nondiscrimination and equal opportunity law under these
statutes have evolved significantly and the ADA has been amended.
Agencies enforcing these statutes have issued regulations and guidance
impacting WIOA Title I-financially assisted programs and activities to
reflect these legal developments.\14\ During that time, the Department
has issued final rules under Section 503 of the Rehabilitation Act and
Executive Order 13672, which amended Executive Order 11246.\15\
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\14\ See 29 CFR part 1630, 76 FR 16978, March 25, 2011 (EEOC
regulations implementing ADA Title I); 79 FR 4839, January 30, 2014
(DOJ NPRM amending ADA Title II and III regulations).
\15\ 41 CFR part 60-741, 78 FR 58862, Sept. 24, 2013 (OFCCP
final rule implementing Section 503); 41 CFR parts 60-1 through 60-
50, 79 FR 72985, Dec. 9, 2014 (OFCCP final rule implementing E.O.
13672).
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The third category of proposed changes in this NPRM improves the
effectiveness of the Department's enforcement program to support
compliance with this rule. The compliance review and complaint
procedures sections have been updated based on the Department's
experience enforcing 29 CFR part 37. The proposed changes also reflect
feedback received from stakeholders such as recipients and their Equal
Opportunity Officers (EO Officers) and are intended to increase
compliance through clearer descriptions of recipient responsibilities,
more effective EO, enhanced data collection, and consistent monitoring
and oversight by Governors. The Department maintains regular contact
with the regulated community, and this contact has informed certain
proposed revisions to the provisions in the part 38 rule. For example,
proposed Sec. 38.35 provides that recipients must include in their
equal opportunity notice or poster a parenthetical noting that sex, as
a prohibited basis for discrimination, includes pregnancy, childbirth
and related medical conditions, sex stereotyping, transgender status,
and gender identity. Similarly, the notice or
[[Page 4496]]
poster would be modified to note in another parenthetical that includes
limited English proficiency (LEP) as a form of national origin
discrimination. These changes, although slight, identify the scope of
the nondiscrimination obligation with more specificity and inform those
who may not otherwise be aware of the developments in law.
The Department has participated in annual training conferences,
including national conferences on equal opportunity attended by
officials and staff of the State and local agencies that are
responsible for ensuring nondiscrimination in the programs receiving
financial assistance under WIA and/or WIOA Title I. The Department's
participation in conferences offered leaders of State and other local
agencies the opportunity to exchange--with each other and with the
CRC--tips, tools, and practices, and to discuss more efficient and
effective means of supporting compliance with this rule. Those
exchanges have informed this NPRM. For example, to assist with
compliance, the NPRM includes an Appendix that lists best practices for
a recipient to consider when developing a written LEP plan. By
including this information, recipients may be better prepared to meet
their obligations.
The Department also received feedback from EO Officers at trainings
and listening sessions conducted by the CRC and through technical
assistance calls. EO Officers, designated by the recipients, are
responsible for carrying out the recipients' obligations under Section
188 and its implementing regulations. Their feedback reflects a shared
concern among EO Officers that the regulations at 29 CFR part 38
applicable to the role of the EO Officers do not sufficiently reflect
the responsibilities of the role. For example, EO Officers have advised
that the part 37 rule did not provide them with sufficient authority or
require the recipients to provide EO Officers with sufficient resources
to enable them to effectively meet their obligations. Many of the
changes, both substantive and stylistic, that are proposed in this rule
reflect their input. Specifically, proposed Sec. 38.28 would require
that the Governor designate a State level EO Officer who reports
directly to the Governor, and that this EO Officer be given staff and
resources sufficient to carry out the required responsibilities. These
requirements are designed to provide the EO Officer with sufficient
authority to fulfill the obligation to coordinate statewide compliance
with the nondiscrimination and equal opportunity provisions in WIOA;
current part 38 does not similarly support the work of the EO Officer.
Statement of Legal Authority
Statutory Authority
The statutory authorities for this NPRM are: Section 134(b),
116(d)(2)(F), 116(e), 169(a), 183(c), 185(c)(2), 185(d)(1)(E), 186, 187
and 188 of WIOA. Public Law 113-128, 128 Stat. 1429; Title VI of the
Civil Rights Act of 1964, as amended. Public Law 88-352, 78 Stat. 252
(42 U.S.C. 2000d, et seq.); Section 504 of the Rehabilitation Act of
1973, as amended, Public Law 93-112, 87 Stat. 390 (29 U.S.C. 794); the
Age Discrimination Act of 1975, as amended, Public Law 94-135; 89 Stat.
728 (42 U.S.C. 6101); and Title IX of the Education Amendments of 1972,
as amended, Public Law 92-318, 86 Stat. 373 (20 U.S.C. 1681).
Departmental Authorization
Secretary's Order 04-2000 delegated to CRC responsibility for
developing, implementing and monitoring the Department's civil rights
enforcement program under all equal opportunity and nondiscrimination
requirements applicable to programs or activities financially assisted
or conducted by the Department, including Section 188 of WIA. Section 5
of the Secretary's Order also authorized the Assistant Secretary for
Administration and Management, working through the CRC Director, to
establish and formulate all policies, standards, and procedures for, as
well as to issue rules and regulations governing, the enforcement of
statutes applying nondiscrimination and equal opportunity requirements
to programs and activities receiving financial assistance from the
Department.\16\ Section 5(j) of the Order also delegates authority and
assigns responsibility to CRC for ``other similarly related laws,
executive orders and statutes.'' Thus, this delegation also covers
CRC's enforcement of Section 188 of WIOA, and no new delegation is
necessary.
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\16\ 65 FR 69184, Nov. 15, 2000.
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Interagency Coordination
The DOJ, under Section 1-201 of Executive Order 12250, 45 FR 72995
(November 4, 1980), is responsible for coordinating Federal enforcement
of most nondiscrimination laws that apply to federally-assisted
programs and activities. Executive Order 12067, 43 FR 28967 (July 5,
1978) requires Federal departments and agencies to consult with the
EEOC about regulations involving equal employment opportunity. Pursuant
to Executive Order 12067, the EEOC is the lead federal agency
responsible for defining the nature of employment discrimination on the
basis of race, color, religion, sex, national origin, age, or
disability under all Federal statutes, Executive orders, regulations,
and policies which require equal employment opportunity. The Age
Discrimination Act of 1975, as amended, assigns the Secretary of Health
and Human Services the responsibility for coordinating the federal
enforcement effort of that Act. Accordingly, this NPRM has been
coordinated with the DOJ and the EEOC as well as the Department of
Health and Human Services.
In addition, this NPRM has been coordinated with other appropriate
Federal grant-making agencies, including the Departments of Education
and Housing and Urban Development.
I. Overview of the Rule
This rule retains the organization of 29 CFR part 38 as well as the
majority of the provisions in part 38.
Subpart A--General Provisions. This subpart outlines the purpose
and application of part 38, provides definitions, outlines prohibited
grounds for and forms of discrimination, and establishes CRC's
enforcement authority and recipients' nondiscrimination obligations.
Subpart B--Recordkeeping and Other Affirmative Obligations of
Recipients. This subpart sets forth the affirmative obligations of
recipients of, and grant applicants for, financial assistance under
WIOA Title I, including the role of EO Officers, notice and
communication requirements, and the data and information collection and
maintenance obligations of recipients.
Subpart C--Governor's Responsibilities to Implement the
Nondiscrimination and Equal Opportunity Requirements of WIOA. This
subpart describes a Governor's responsibilities to implement the
nondiscrimination and equal opportunity provisions of WIOA and this
part, including oversight and monitoring of WIOA Title I-financially
assisted State Programs, and development of a Nondiscrimination Plan.
Subpart D--Compliance Procedures. This subpart describes procedures
for compliance reviews, complaint processing, issuing determinations,
and procedures for breaches of conciliation agreements.
Subpart E--Federal Procedures For Effecting Compliance. This
subpart describes the procedures for effecting compliance, including
actions the Department is authorized to take upon
[[Page 4497]]
finding noncompliance when voluntary compliance cannot be achieved, the
rights of parties upon such a finding, and hearing procedures,
sanctions, and post-termination procedures.
Reasons for Proposed Revisions Generally
These revisions incorporate current jurisprudence under Title VII
and EEOC Guidance interpreting the nondiscrimination obligation in the
employment context, because WIOA Section 188 also applies to employment
in the administration of or in connection with Title I-financially
assisted programs and activities. Pursuant to Executive Order 12067,
because the EEOC is the lead federal agency responsible for defining
the nature of employment discrimination on the basis of race, color,
religion, sex, national origin, age, or disability under all Federal
statutes, Executive orders, regulations, and policies which require
equal employment opportunity, the Department generally defers to the
EEOC's interpretations of Title VII law as it applies to applicants and
employees of employers receiving WIOA Title I financial assistance.
Pursuant to Executive Order 12250 \17\ and Title VI, the DOJ is the
lead federal agency responsible for defining the nature and scope of
the nondiscrimination prohibition based on, among other things, race,
color and national origin in programs and activities receiving Federal
financial assistance. Thus, CRC generally defers to the DOJ's
interpretations of Title VI regarding discrimination based on race,
color and national origin in programs and activities receiving Federal
financial assistance. Further, pursuant to ADA Title II, DOJ is the
lead federal agency responsible for defining the parameters of the
nondiscrimination and equal opportunity provisions of Title II of the
ADA.
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\17\ 45 FR 72995, November 2, 1980.
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Developments in National Origin and Language Access Jurisprudence
Consistent with Title VI case law and the DOJ's guidance on
ensuring equal opportunity and nondiscrimination for individuals who
are limited English proficient (LEP),\18\ this rule proposes to create
a provision stating that discrimination against individuals based on
their limited English proficiency may be unlawful national origin
discrimination.
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\18\ Guidance to Federal Financial Assistance Recipients
Regarding Title VI Prohibition Against National Origin
Discrimination Affecting Limited English Proficient Persons, 67 FR
41455, June 18, 2002.
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Title VI provides that ``[n]o person in the United States shall, on
the ground of race, color, or national origin, be excluded from
participating in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving [f]ederal
financial assistance.'' \19\ Prohibited discrimination under Title VI
and its implementing regulations includes: (1) Intentional acts; and
(2) unintentional acts that result in an unjustified disparate impact
on the basis of race, color, or national origin. 29 CFR 31.3 (DOL Title
VI regulations). Indeed, the Supreme Court in Lau v. Nichols, 414 U.S.
563 (1974), held that excluding LEP children from effective
participation in an educational program because of their inability to
speak and understand English constitutes national origin discrimination
prohibited by Title VI. Courts have consistently found that a
recipient's failure to provide meaningful access to LEP individuals can
violate Title VI's prohibition of national origin discrimination. See,
e.g., Colwell v. Dep't of Health & Human Servs., 558 F.3d 1112, 1116-17
(9th Cir. 2009) (noting that Lau concluded ``discrimination against LEP
individuals was discrimination based on national origin in violation of
Title VI''); United States v. Maricopa Cnty., 915 F. Supp. 2d 1073,
1079 (D. Ariz. 2012) (citing Lau); Faith Action for Cmty. Equity v.
Hawaii, No. 13-00450 SOM, 2014 WL 1691622 at *14 (D. Haw. Apr. 28,
2014) (Title VI intent claim was properly alleged by LEP plaintiffs
when it was based on the ``foreseeable disparate impact of the English-
only policy,'' a pretextual justification for the policy, and
potentially derogatory comments by a state agency). As a result, the
proposed rule indicates that the definition of national origin
discrimination includes discrimination based on limited English
proficiency. Accordingly, the proposed rule sets forth the
responsibilities of recipients to meet their compliance obligations for
ensuring that LEP individuals have meaningful access to WIOA programs
and services.
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\19\ 42 U.S.C. 2000d.
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This proposal is also generally consistent with guidance issued by
the Department in 2003,\20\ advising Federal financial assistance
recipients of the Title VI prohibition against national origin
discrimination affecting LEP individuals. This 2003 DOL Recipient LEP
Guidance was issued pursuant to Executive Order 13166, which directed
each federal agency that extends assistance subject to the requirements
of Title VI to publish guidance for its respective recipients
clarifying that obligation.\21\ Executive Order 13166 further directs
that all such guidance documents be consistent with the compliance
standards and framework detailed in the Department of Justice (DOJ)
Policy Guidance entitled ``Enforcement of Title VI of the Civil Rights
Act of 1964--National Origin Discrimination Against Persons with
Limited English Proficiency.'' \22\ The LEP provisions of this NPRM are
drawn from, and thus are consistent with, the DOJ Title VI LEP
Guidance.
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\20\ Civil Rights Center; Enforcement of Title VI of the Civil
Rights Act of 1964; Policy Guidance to Federal Financial Assistance
Recipients Regarding the Title VI Prohibition Against National
Origin Discrimination Affecting Limited English Proficient Persons;
Notice, 68 FR 32290, May 29, 2003 [hereinafter DOL LEP Guidance].
\21\ 65 FR 50121, August 16, 2000.
\22\ 65 FR 50123, August 16, 2000.
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Developments in ADA Jurisprudence
Congress passed the Americans with Disabilities Act Amendments Act
of 2008 (ADAAA), amending the ADA and the Rehabilitation Act, both of
which apply, in distinct ways, to different groups of recipients of
WIOA Title I-financial assistance. Consistent with Executive Order
13563's instruction to Federal agencies to coordinate rules across
agencies and harmonize regulatory requirements where appropriate, this
rule proposes, where appropriate, to adopt regulatory language that is
consistent with the ADAAA and corresponding revisions to the EEOC
regulations implementing Title I \23\ of the ADA and the NPRM issued by
the DOJ implementing Title II and Title III of the ADA.\24\ This
proposal will promote consistent application of nondiscrimination
obligations across Federal enforcement programs and accordingly enhance
compliance among entities subject to WIOA Section 188 and the various
titles of the ADA. If the DOJ changes its proposal in its final rule
implementing ADA Titles II and III, the Department will review those
changes to determine their impact on this proposal and take appropriate
action.
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\23\ See 76 FR 16978, Mar. 25, 2011.
\24\ See 79 FR 4839, Jan. 30, 3014.
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Title I of the ADA prohibits private employers, State and local
governments, employment agencies and labor unions with 15 or more
employees from discriminating in employment against qualified
individuals with disabilities in job application procedures, hiring,
firing, advancement, compensation, job training, and other terms,
conditions,
[[Page 4498]]
and privileges of employment.\25\ Title I applies to WIOA Title I-
financially assisted programs and activities because WIOA Section 188
prohibits discrimination in employment in the administration of or in
connection with WIOA Title I financially-assisted programs and
activities. The EEOC issued final regulations implementing the
amendments to Title I of the ADA in March 2011.\26\
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\25\ 29 CFR 1630.2(e).
\26\ See 76 FR 16978, March 25, 2011.
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Title II of the ADA applies to State and local government entities,
many of which may also be recipients of WIOA Title I financial
assistance, and, in subtitle A, protects qualified individuals with
disabilities from discrimination on the basis of disability in
services, programs, and activities provided by State and local
government entities.\27\ Title II extends the prohibition against
discrimination established by Section 504 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. 794, to all activities of State and local
governments regardless of whether these entities receive financial
assistance \28\ and requires compliance with the ADA Standards of
Accessible Design.\29\ The Department is responsible for implementing
the compliance procedures of Title II for components of State and local
governments that exercise responsibilities, regulate, or administer
services, programs, or activities in ``relating to labor and the work
force.'' \30\
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\27\ See 42 U.S.C. 12131-12165.
\28\ 42 U.S.C. 12132.
\29\ 28 CFR part 35 (Title II); 28 CFR part 36 (Title III).
\30\ 28 CFR 35.190(b)(7).
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Title III, enforced by the DOJ, prohibits discrimination on the
basis of disability in the full enjoyment of the goods, services,
facilities, privileges or advantages, or accommodations of any place of
public accommodation by a person who owns, leases, or operates that
place of public accommodation.\31\ Title III applies to businesses that
are generally open to the public and that fall into one of 12
categories listed in the ADA, such as restaurants, day care facilities,
and doctor's offices,\32\ and requires newly constructed or altered
places of public accommodation--as well as commercial facilities
(privately owned, nonresidential facilities such as factories,
warehouses, or office buildings)--to comply with the ADA Standards for
Accessible Design.\33\ Many recipients of WIOA Title I financial
assistance are places of public accommodation and thus are subject to
Title III of the ADA and its accessible design standards. The DOJ
issued an NPRM in January 2014 that would implement amendments to Title
II and Title III of the ADAAA.\34\ The DOJ is responsible for handling
complaints of noncompliance with Title III.
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\31\ 42 U.S.C. 12182.
\32\ 42 U.S.C. 12181.
\33\ 28 CFR part 35 (Title II); 28 CFR part 36 (Title III).
\34\ See 76 FR 16978, March 25, 2011; 79 FR 4839, January 30,
3014.
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This rule proposes making revisions to part 38 consistent with the
ADA Amendments Act of 2008 (ADAAA) and the implementing regulations
issued by the EEOC and the proposed regulations issued by the DOJ. The
ADAAA and implementing regulations made it easier for an individual
seeking protection under the ADA to establish that the individual has a
disability within the meaning of the statute.\35\ This NPRM proposes to
incorporate the rules of construction set out in the ADAAA that specify
that the definition of ``disability'' is to be interpreted broadly,
that the primary inquiry should be whether covered entities have
complied with their statutory obligations and that the question of
whether an individual's impairment is a disability under the ADA should
not demand extensive analysis. This NPRM also proposes revisions to the
definition of ``disability'' and its component parts, including
``qualified individual,'' ``reasonable accommodation,'' ``major life
activity,'' ``regarded as having a disability,'' and ``physical or
mental impairment'' based on specific provisions in the ADAAA, as well
as the EEOC's final and the DOJ's proposed implementing regulations.
For example, the proposed revisions expand the definition of ``major
life activities'' by providing a non-exhaustive list of major life
activities, which specifically includes the operation of major bodily
functions. The revisions also add rules of construction that should be
applied when determining whether an impairment substantially limits a
major life activity. If the DOJ changes its proposal in its final rule
implementing ADA Titles II and III, the Department will review those
changes to determine their impact on this proposal and take appropriate
action.
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\35\ See 42 U.S.C. 12102(1)(A)-(C).
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Developments in Sex Discrimination Jurisprudence
Pregnancy
The proposed rule also includes a new section to provide direction
regarding an existing obligation of recipients of WIOA Title I-
financially assisted programs and activities to refrain from
discrimination based on pregnancy, childbirth or related medical
conditions as a form of sex discrimination. Although the Pregnancy
Discrimination Act (PDA) was enacted in 1978,\36\ the WIA Section 188
regulations, and the part 38 final rule implementing WIOA, do not refer
specifically to pregnancy discrimination as a form of sex
discrimination. This NPRM corrects that omission and sets out the
standards that CRC would apply in enforcing the prohibition against
pregnancy discrimination, consistent with the PDA, Title IX, and Title
VII, in WIOA Title I-financially assisted programs, activities,
training, and services.
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\36\ 42 U.S.C. 2000e(k).
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Because the PDA amended Title VII, it does not directly govern the
nondiscrimination obligations of a program or activity receiving
Federal financial assistance outside of the employment context. The
principles underlying the PDA, however, rest on Title IX's prohibitions
against discrimination on the basis of pregnancy and actual or
potential parental status and thus are applicable to WIOA Title I
recipients.\37\
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\37\ See infra Section by Section Sec. 38.8 discussing the
intersection of both the PDA and Title IX.
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Pregnancy discrimination remains a significant issue. Between
fiscal year 2001 and fiscal year 2013, charges of pregnancy
discrimination filed with the EEOC and state and local agencies
increased from 4,287 to 5,342.\38\ In addition, a 2011 review of
reported ``family responsibility discrimination'' cases (brought by men
as well as women) found that low-income workers face ``extreme
hostility to pregnancy.'' \39\ The EEOC's findings and related research
are relevant to this NPRM because the workforce development system is
the pipeline through which many women find employment opportunities,
and thus these programs must operate free of pregnancy discrimination.
In other words, the discrimination that pregnant women experience in
the private sector is
[[Page 4499]]
relevant to federally financially assisted programs and activities.
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\38\ U.S. Equal Employment Opportunity Commission, Pregnancy
Discrimination Charges, EEOC & FEPAs Combined: FY 1997-FY 2011,
available at http://www.eeoc.gov/eeoc/statistics/enforcement/pregnancy.cfm (last accessed Oct. 6, 2014); U.S. Equal Employment
Opportunity Commission, Enforcement Guidance: Pregnancy
Discrimination and Related Issues, (July 14, 2014), available at
http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm (last
accessed Oct. 6, 2014).
\39\ Stephanie Bornstein, Center for WorkLifeLaw, UC Hastings
College of the Law, Poor, Pregnant and Fired: Caregiver
Discrimination Against Low-Wage Workers 2 (2011), available at
http://worklifelaw.org/pubs/PoorPregnantAndFired.pdf (last accessed
Oct. 3, 2014).
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Sex Stereotyping
One of the most significant barriers for women in access to
services, benefits, training, programs and employment in and through
the workforce development system is sex stereotyping. Decades of social
science research has documented the extent to which sex stereotypes
about the roles of women and men and their respective capabilities in
the workplace can influence decisions about hiring, training,
promotions, pay raises, and other conditions of employment.\40\ The
NPRM adopts the well-recognized principle that employment decisions
made on the basis of stereotypes about how males and/or females are
expected to look, speak, or act are forms of sex-based employment
discrimination and applies that principle to the provisions of aid,
benefit, service, and training through WIOA Title I programs and
activities. The Supreme Court recognized in 1989 that an employer
violates Title VII if its employees' chances of promotion depend on
whether they fit their managers' preconceived notions of how men or
women should dress and act.\41\ As the Supreme Court stated in Price
Waterhouse v. Hopkins, ``we are beyond the day when an employer can
evaluate employees by assuming or insisting that they match the
stereotype associated with their . . . [sex].'' \42\ In Price
Waterhouse, the Court held that an employer's failure to promote a
female senior manager to partner because of the decision-maker's sex-
stereotyped perceptions that she was too aggressive and did not ``walk
more femininely, talk more femininely, dress more femininely, wear
make-up, have her hair styled, and wear jewelry'' was unlawful sex-
based employment discrimination.\43\ The principle that sex
stereotyping is a form of sex discrimination has been applied
consistently in subsequent Supreme Court and lower-court decisions.
See, e.g., Nevada Dep't of Human Res. v. Hibbs, 538 U.S. 721 (2003)
(stereotype-based beliefs about the allocation of family duties on
which state employers relied in establishing discriminatory leave
policies held to be sex discrimination under the Constitution);
Chadwick v. Wellpoint, Inc., 561 F.3d 38 (1st Cir. 2009) (making
employment decision based on the belief that women with young children
neglect their job responsibilities is unlawful sex discrimination);
Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285 (3d Cir. 2009)
(harassment based on a man's effeminacy); Terveer v. Billington, Civil
Action No. 12-1290, 2014 WL 1280301 (D. D.C. March 31, 2014) (hostile
work environment based on stereotyped beliefs about the appropriate
gender with which an individual should form an intimate relationship).
Cf. U.S. v. Virginia, 518 U.S. 515, 533 (1996) (in making
classifications based on sex, state governments ``must not rely on
overbroad generalizations about the different talents, capacities, or
preferences of males and females'').
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\40\ See, e.g., Susan Fiske et al., Controlling Other People:
The Impact of Power on Stereotyping, 48 Am. Psychol. 621 (1993);
Marzarin Banaji, Implicit Social Cognition: Attitudes, Self-Esteem
and Stereotypes, 102 Psychol. Rev. 4 (1995); Brian Welle & Madeline
Heilman, Formal and Informal Discrimination Against Women at Work in
Managing Social and Ethical Issues in Organizations 23 (Stephen
Gilliland, Dirk Douglas Steiner & Daniel Skarlicki eds., 2007);
Susan Bruckm[uuml]ller et al., Beyond the Glass Ceiling: The Glass
Cliff and Its Lessons for Organizational Policy, 8 Soc. Issues &
Pol. Rev. 202 (2014) (describing the role of sex stereotypes in the
workplace).
\41\ Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
\42\ Id. at 251.
\43\ Id. at 235.
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Research demonstrates that widely held social attitudes and biases
can lead to discriminatory decisions, even where there is no formal
sex-based (or race-based) policy or practice in place.\44\ Sex
stereotyping may have even more severe consequences for transgender
applicants and employees, the vast majority of whom report that they
have experienced discrimination in the workplace.\45\
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\44\ See, e.g., Kevin Lang & Jee-Yeon K. Lehmann, Racial
Discrimination in the Labor Market: Theory and Empirics (NBER
Working Paper No. 17450, 2010), available at http://www.nber.org/papers/w17450 (last accessed March 19, 2015); Marianne Bertrand &
Sendhil Mullainathan, Are Emily and Brendan More Employable Than
Lakisha and Jamal? A Field Experiment on Labor Market
Discrimination, 94(4) American Econ. Rev. 991 (2004); Ian Ayres &
Peter Siegelman, Race and Gender Discrimination in Bargaining for a
New Car, 85(3) Am. Econ. Rev. 304 (1995); Marc Bendick, Charles
Jackson & Victor Reinoso, Measuring Employment Discrimination
Through Controlled Experiments, 23 Rev. of Black Pol. Econ. 25
(1994).
\45\ Jaime M. Grant, Lisa M. Mottet, & Justin Tanis, National
Center for Transgender Equality & National Gay and Lesbian Task
Force, Injustice at Every Turn: A Report of the National Transgender
Discrimination Survey, (2011), available at http://transequality.org/issues/resources/national-transgender-discrimination-survey-full-report (last accessed March 19, 2015).
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As the EEOC has recognized, claims of gender identity
discrimination, including discrimination grounded in stereotypes about
how persons express their gender, are claims of sex discrimination
under Title VII. See Macy v. Dep't of Justice, E.E.O.C. Appeal No.
0120120821, 2012 WL 1435995 (April 20, 2012).\46\ The Commission also
has found that ``discrimination against lesbian, gay, and bisexual
individuals based on sex-stereotypes is discrimination on the basis of
sex under Title VII.'' \47\ See e.g., Veretto v. United States Postal
Service, E.E.O.C. Appeal No. 0120110873, 2011 WL 2663401 (July 1,
2011)) (finding allegation of sexual orientation discrimination was a
claim of sex discrimination because it was based on the sex stereotype
that marrying a woman is an essential part of being a man); Castello v.
United States Postal Service, E.E.O.C. Request No. 0520110649, 2011 WL
6960810 (Dec. 20, 2011) (finding allegation of sexual orientation
discrimination was a claim of sex discrimination because it was based
on the sex stereotype that having relationships with men is an
essential part of being a woman); Complainant v. Dep't of Homeland
Sec., E.E.O.C. Appeal No. 0120110576, 2014 WL 4407422 (Aug. 20, 2014)
(finding that sex discrimination claims intersect with sexual
orientation discrimination claims such that allegations of
discrimination on the basis of sexual orientation can be construed as
claims of discrimination on the basis of sex); Baldwin v. Dep't of
Transp., E.E.O.C. Appeal No. 012013080, 2015 WL 4397641 (July 15,
2015).
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\46\ The EEOC also has concluded that discrimination on the
basis of gender identity is inherently discrimination on the basis
of sex and that a transgender plaintiff can prove sex discrimination
without tying the discrimination to a sex stereotype. See Macy,
E.E.O.C. Appeal No. 0120120821, 2012 WL 1435995 at *10 (``While
evidence that an employer has acted based on stereotypes about how
men or women should act is certainly one means of demonstrating
disparate treatment based on sex, ``sex stereotyping'' is not itself
an independent cause of action . . . [I[f Complainant can prove that
the reason that she did not get the job is [because the employer]
was willing to hire her when he thought she was a man, but was not
willing to hire her once he found out that she was now a woman--she
will have proven that the [employer] discriminated on the basis of
sex.'').
\47\ In the Baldwin decision, the EEOC stated that sexual
orientation discrimination is inherently discrimination on the basis
of sex because it involves treatment that would not have occurred
but for the sex of the employee; because it takes the employee's sex
into account by treating him or her differently due to the sex of
the person he or she associates with; and because it is premised on
fundamental sex stereotypes, norms, or expectations. Baldwin v.
Dep't of Transp., E.E.O.C. Appeal No. 0120133080, 2015 WL
4397641,*10 (July 15, 2015).
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The Department of Education has interpreted Title IX's prohibition
against discrimination on the basis of sex in federally-funded
education programs and activities as including claims of sex
discrimination related to a person's failure to conform to
stereotypical
[[Page 4500]]
norms of masculinity and femininity.\48\ A Department of Education
guidance document states: ``Title IX's sex discrimination prohibition
extends to claims of discrimination based on gender identity or failure
to conform to stereotypical notions of masculinity or femininity and
[the Department of Education's Office for Civil Rights] accepts such
complaints for investigation.'' \49\
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\48\ See Questions and Answers on Title IX and Sexual Violence
B-2 at 5 (available at http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf (last accessed March 19, 2015) (stating
that Title IX's sex discrimination prohibition extends to claims of
discrimination based on gender identity or failure to conform to
stereotypical notions of masculinity or femininity) (April 29,
2014); Revised Sexual Harassment Guidance: Harassment of Students by
School Employees, Other Students, or Third Parties, 66 FR 5512,
January 19, 2001 (available at http://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf).
\49\ See Questions and Answers on Title IX and Sexual Violence
B-2 at 5 (available at http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf (last accessed March 19, 2015).
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These agency interpretations are consistent with court opinions
holding that disparate treatment of a transgender employee may
constitute discrimination because of the individual's non-conformity to
sex stereotypes. Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir.
2005) (holding that transgender woman was a member of a protected class
based on her failure to conform to sex stereotypes and thus her title
VII claim was actionable); Smith v. City of Salem, 378 F.3d 566, 574
(6th Cir. 2004) (``discrimination against a plaintiff who is a
transsexual [sic]--and therefore fails to act and/or identify with his
or her gender--is no different from the discrimination directed against
[the plaintiff] in Price Waterhouse who, in sex-stereotypical terms,
did not act like a woman''). See also Glenn v. Brumby, 663 F.3d 1312
(11th Cir. 2011) (termination of a transgender employee constituted
discrimination on the basis of gender non-conformity and sex-
stereotyping discrimination under Equal Protection Clause). Cf. Oncale
v. Sundowner Offshore Servs., 523 U.S. 75, 78 (1998) (same-sex
harassment may be sex discrimination under Title VII).
In addition to these cases, ``[t]here has likewise been a steady
stream of district court decisions recognizing that discrimination
against transgender individuals on the basis of sex-based stereotyping
constitutes discrimination because of sex.'' Macy, 2012 WL 1435995. See
also Schroer, 577 F. Supp. 2d at 305-06 (withdrawal of a job offer from
a transgender applicant constituted sex-stereotyping discrimination in
violation of title VII).\50\ There are also a growing number of courts
recognizing that sexual orientation discrimination constitutes
discrimination on the basis of sex when the discrimination is rooted in
fundamental sex-based norms and stereotypes. See, e.g., Centola v.
Potter, 183 F. Supp. 2d 403, 410 (D. Mass. 2002); Heller v. Columbia
Edgewater, 195 F. Supp. 2d 1212, 1224 (D. Or. 2002); Koren v. Ohio
Bell, 894 F. Supp. 2d 1032, 1038 (N.D. Ohio 2012); Terveer v.
Billington, 34 F. Supp. 3d 100, 116, 2014 WL 1280301 (D.D.C. 2014);
Isaacs v. Felder Servs., 2015 WL 6560655, *3-4 (M.D. Ala. 2015) (slip
op.); Videckis v. Pepperdine Univ., 2014 WL 8916764 (C.D. Cal. 2015)
(slip op); cf. Latta v. Otter, 771 F.3d 456, 495 (9th Cir. 2014)
(Berzon, J. concurring).
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\50\ See also id. at 306-07 (analogizing to cases involving
discrimination based on an employee's religious conversion, which
undeniably constitutes discrimination ``because of . . . religion''
under Title VII). See also Michaels v. Akal Security, Inc., No. 09-
cv-1300, 2010 WL 2573988, at * 4 (D. Colo. June 24, 2010); Lopez v.
River Oaks Imaging & Diag. Group, Inc., 542 F. Supp. 2d 653, 660
(S.D. Tex. 2008); Mitchell v. Axcan Scandipharm, Inc., No. Vic. A.
05-243, 2006 WL 456173 (W.D. Pa. Feb. 17, 2006); Tronetti v. TLC
HealthNet Lakeshore Hosp., No. 03-CV-0375E(SC), 2003 WL 22757935
(W.D.N.Y. Sept. 26, 2003); Doe v. United Consumer Fin. Servs., No.
1:01 CV 111, 2001 WL 34350174 (N.D. Ohio Nov. 9, 2001).
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Furthermore, Federal contractors that operate Job Corps Centers,
who are covered by Section 188 and this part,\51\ may also be covered
by the requirements of Executive Order 11246, which requires that
contractors meeting certain dollar threshold requirements refrain from
discrimination in employment based on race, color, religion, national
origin, sex, sexual orientation, and gender identity and take
affirmative action to ensure equal employment opportunity. Executive
Order 13672, issued on July 21, 2014, amended Executive Order 11246 to
add sexual orientation and gender identity as protected bases, and
applies to government contracts entered into or modified on or after
April 8, 2015, the effective date of OFCCP's implementing regulations
promulgated thereunder.\52\
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\51\ See 29 CFR 38.2(b)(4).
\52\ 79 FR 72985, December 9, 2014.
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Consistent with the above jurisprudence and agency interpretations,
the Department proposes that complaints of discrimination based on
transgender status and gender identity be treated as complaints of sex
discrimination. The Department also proposes that for purposes of this
rule, complaints of discrimination based on sex stereotyping be treated
as complaints of sex discrimination.
Harassment
This rule also proposes a new section to provide direction as to a
recipient's existing obligation regarding unlawful harassment. Courts
have recognized for many years that harassment on the basis of a
protected category may give rise to a violation of Title VI and Title
VII of the Civil Rights Act, Section 504, and Title IX and that
unlawful harassment may take many forms.\53\ The NPRM adds a section
that sets out the prohibition against these various forms of unlawful
harassment.
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\53\ See, e.g., Harris v. Forklift Sys., 510 U.S. 17 (1993)
(harassment based on sex); Meritor Savings Bank v. Vinson, 477 U.S.
57 (1986) (sex); Daniels v. Essex Group, Inc., 937 F.2d 1264, 1274
(7th Cir. 1991) (race); Rogers v. Western-Southern Life Ins. Co.,
792 F. Supp. 628 (E.D.Wis.1992) (race); Gebser v. LagoVista
Independent School District, 524 U.S. 274 (1998) (school can be held
liable if a teacher sexually harasses a student); Davis v. Monroe
County Board of Education, 526 U.S. 629 (1999) (holding a school
liable when one student sexually harasses another student; Zeno v.
Pine Plains Center School District, 702 F.3d 655 (2nd Cir. 2011)
(racial harassment under Title VI); Booth v. Houston, 2014 WL
5590822 (M.D. Alabama 2014) (disability harassment); See Revised
Sexual Harassment Guidance: Harassment of Students by School
Employees, Other Students, or Third Parties, 66 FR 5512, January 19,
2001 (available at http://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf); Dear Colleague letter concerning recipients'
obligations to protect students from student-on-student harassment
on the basis of sex, race, national origin, and disability (October
26, 2010), available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.html (last accessed March 13, 2015).
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In 2001, 2011, and 2014, the Department of Education issued
guidance documents interpreting the scope of prohibitions against
sexual harassment including acts of sexual violence, under Title IX
that apply to WIOA Title I-financially assisted educational and
training programs.\54\ Title IX protects individuals from
discrimination based on sex in education programs or activities that
receive Federal financial assistance, including WIOA Title I programs
and activities that are education and training programs.\55\ The
proposed rule incorporates language in Subpart A that reflects the
current Department of Education interpretation of the scope of Title
IX's prohibition against harassment based on sex. In doing so, this
rule makes the Department's enforcement of current legal standards
[[Page 4501]]
consistent with those of one of the agencies that also regulate the
same recipient community.
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\54\ See Revised Sexual Harassment Guidance: Harassment of
Students by School Employees, Other Students, or Third Parties, 66
FR 5512, January 19, 2001 (available at http://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf); April 4, 2011 Dear Colleague
letter on Sexual Violence, available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf; April 29, 2014
Questions and Answers on Title IX and Sexual Violence, available at
http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf.
\55\ 20 U.S.C. 1681 et seq.
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Increased Provision of Services Using Technology, Including the
Internet
The increased turn toward the integration of, and in some instances
complete shift to, online service delivery models in the public
workforce development system since 1999 requires that the part 38
regulations be updated to address the nondiscrimination and equal
opportunity implications raised by these changes. As of 2011, one in
five American adults did not use the Internet.\56\ In particular,
research suggests that a larger percentage of older individuals may not
possess sufficient knowledge and understanding of computers and web-
based programs to be able to access information via a Web site or file
for benefits through an online system.\57\ Additionally, as of 2011,
32% of Hispanic individuals (including those who are proficient in
English) and 29% of Black, non-Hispanic individuals, respectively, were
not using the Internet.\58\ Similarly, adults with disabilities were
significantly less likely to use the Internet than adults without a
disability.\59\
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\56\ Digital differences: While increased Internet adoption and
the rise of mobile connectivity have reduced many gaps in technology
access over the past decade, for some groups, digital disparities
still remain at 5, Pew Internet & American Life Project, Pew
Research Center (April 2013) available at http://pewinternet.org/~/
media//Files/Reports/2012/PIP_Digital_differences_041312.pdf. (last
accessed March 19, 2015).
\57\ Id.
\58\ Id.
\59\ Id.
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Revisions to Subparts B Through E
Subpart B, Recordkeeping and Other Affirmative Obligations,
includes revisions to written assurance language that grant applicants
are required to include in their grant applications, as well as
revisions to the sections regarding the role of Equal Opportunity
Officers, and recipient's responsibilities to ensure that they
designate EO Officers with sufficient expertise, authority, staff and
resources to carry out their responsibilities. The NPRM also proposes
revised requirements regarding data and information collection and
maintenance and revises the section on outreach responsibilities of
recipients.
Proposed changes to Subpart C, regarding the Governor's
responsibilities to implement the nondiscrimination and equal
opportunity requirements of WIOA, include changing the title of the
Methods of Administration, the tool used by Governors to implement
their monitoring and oversight responsibilities, to ``Nondiscrimination
Plan.'' In addition, the proposal provides more direction as to the
Governor's responsibilities and the CRC's procedures for enforcing
those responsibilities, thus addressing an inadvertent gap in the
existing regulations.
Proposed changes to Subpart D regarding compliance procedures
includes language to strengthen the preapproval compliance review
process by requiring Departmental grant-making agencies to consult with
the Director of the CRC to review whether CRC has issued a Notice to
Show Cause or a Final Determination against an applicant that has been
identified as a probable awardee. This rule also proposes to expand the
situations under which CRC may issue a Notice to Show Cause, merges
some of the existing sections about the complaint processing procedures
for better readability, and adds some language to clarify that any
person or their representative may file a complaint based on
discrimination and retaliation under WIOA and this part. The NPRM
proposes that complainants and recipients may use a form of alternative
dispute resolution, rather than mediation alone, to resolve complaints
so as to expand the options available to recipients and complainants to
use to achieve resolution of complaints.
Subpart E, Federal Procedures for Effecting Compliance, substitutes
the Administrative Review Board for the Secretary as the entity that
issues final agency decisions, and makes several other technical
revisions.
Benefits of the Proposed Rule
The proposed rule would benefit both recipients of financial
assistance under Title I of WIOA and the beneficiaries of that
assistance in several ways. First, by updating and clearly and
accurately stating the existing principles of applicable law, the
proposed rule will facilitate recipient understanding and compliance,
thereby reducing costs incurred when noncompliant. The NPRM would also
benefit recipients' beneficiaries, employees, and job applicants by
allowing them to participate in programs and activities or work free
from discrimination. Importantly, recipients are already subject to the
nondiscrimination federal laws that these updated regulations
incorporate, so many of the new substantive nondiscrimination
provisions do not impose new obligations.
This regulation would increase equality of opportunity for the
thousands of applicants, participants, beneficiaries and employees of
recipients. It would clarify that adverse treatment of applicants,
beneficiaries, or participants of recipients' WIOA Title I programs and
activities and their employees or applicants for employment, because of
gender-based assumptions constitutes sex discrimination. By stating
that discrimination against an individual because of their gender
identity or transgender status is unlawful sex discrimination, the NPRM
would provide much-needed regulatory protection to transgender
individuals, the majority of whom report they have experienced
discrimination in the workplace.\60\ In addition, by providing that
pregnant employees or applicants may be entitled to accommodations when
such accommodations or modification are provided to other participants
not so affected but similar in their ability or inability to work, this
NPRM will protect pregnant individuals who work for recipients, and
applicants for job training programs and similar activities from losing
jobs or access to educational and training opportunities.
---------------------------------------------------------------------------
\60\ Jaime M. Grant, Lisa M. Mottet, & Justin Tanis, National
Center for Transgender Equality and National Gay and Lesbian Task
Force, Injustice at Every Turn: A Report of the National Transgender
Discrimination Survey (2011), available at http://transequality.org/PDFs/Executive_Summary.pdf (last accessed March 19, 2015).
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Finally, the NPRM would benefit public understanding of the law.
This public interest is reflected in Section 6 of Executive Order
13563, which requires agencies to engage in retrospective analyses of
their rules ``and to modify, streamline, expand, or repeal [such rules]
in accordance with what has been learned.''
The detailed Section-by-Section Analysis below identifies and
discusses all proposed changes in each section. The Department welcomes
comments on all of the provisions discussed below.
II. Section-By-Section Analysis
As explained above, the Department is proposing a revised part 38
and in doing so has adopted much of the language of current part 38.
Therefore, this NPRM refers to the changes made to the existing part 38
rule to highlight differences. The Department proposes several global
changes to the current part 38 rule.
First, this NPRM removes the question and answer format of the
section titles and replaces each title with statements or phrases to
make them easier to understand.
[[Page 4502]]
Second, this NPRM makes technical revisions to ensure that the
regulations are consistent with terms used in WIOA and the proposed
regulations published by the Department to implement the program
obligations under Title I of WIOA.
Third, the proposed rule removes and replaces the term ``on the
grounds of'' with ``on the basis of'' throughout the regulatory text
for purposes of consistency with other nondiscrimination regulations
and Federal statutes.
Fourth, it replaces the terms ``her'' and ``him'' with
``individual'' wherever possible.
Fifth, the proposed rule also includes substantive revisions
related to the nondiscrimination obligation to reflect changes in the
law since publication of part 37 in 1999.
Sixth, this proposal contains changes to certain enforcement
procedures that will enhance their effectiveness and provide clearer
direction to the recipient community as to the scope of their
obligations under this part. Each of these revisions is explained
below.
Subpart A--General Provisions
Purpose Sec. 38.1
Proposed Sec. 38.1 makes minor revisions to the language that is
used in Sec. 38.1. First, the title of proposed Sec. 38.1 is revised
to read: ``Purpose.'' The NPRM replaces the term ``on the grounds of''
with ``on the basis of'' to be consistent with nondiscrimination
language in other Department civil rights regulations.
Applicability Sec. 38.2
This NPRM makes minor revisions to the language that is used in
Sec. 38.2. First, the title of this section is changed to
``Applicability.'' Reference to the Job Training Partnership Act of
1982, ``JTPA,'' \61\ is replaced with reference to ``WIA'' in paragraph
(b)(1) to reflect the ongoing applicability of the nondiscrimination
and equal opportunity regulations at 29 CFR part 37 to WIA Title I-
financially assisted programs and activities after the effective date
of WIOA. Subpart (a)(3) is revised to explain that the scope of this
rule regarding employment practices is limited to any program or
activity that is operated by a recipient and/or a One-Stop \62\
partner, to the extent that the employment is in the administration of
or in connection with programs and activities that are being conducted
as a part of WIOA Title I or the One-Stop delivery system. This
limitation tracks the statutory provision in Section 188(a)(2) of
WIOA.\63\ Finally, the proposed rule deletes subsection (b)(5), which
under Sec. 38.2 excludes Federally-operated Job Corps Centers from
application of the provisions of part 38. The Department's Employment
and Training Administration (ETA), which has responsibility for
administering WIOA generally, proposes new language in its WIOA NPRM at
20 CFR 686.350, stating that nondiscrimination requirements,
procedures, complaint processing, and compliance reviews applicable to
Federally-operated Job Corps Centers would be governed by provisions of
Department of Labor regulations, as applicable.\64\ This provision is
consistent with the language of WIOA Section 188(d), which does not
distinguish between Federally- and privately-operated Job Corps
Centers. ``For purposes of this section, Job Corps members shall be
considered to be the ultimate beneficiaries of Federal financial
assistance.'' \65\ Moreover, based on complaints arising in Federally-
operated Job Corps Centers, it has become apparent to CRC that uniform
complaint handling processes need to apply throughout the Job Corps
system. Additionally, this section is consistent with the Job Corps'
Policy and Requirements Handbook (PRH), particularly Section 6.8, R5,
Appendix 602 and Exhibit 6-11, which makes no distinction between
Federally- and privately-operated centers with regard to student
complaints. Moreover, this revised section memorializes the current
practice used by federally-operated Job Corps Centers.\66\
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\61\ 29 U.S.C. 1501 et seq.
\62\ One-Stop Career Centers are designed to provide a full
range of assistance to job seekers under one roof. The centers offer
training referrals, career counseling, job listings, and similar
employment-related services.
\63\ 29 U.S.C. 3248(a)(2).
\64\ See 20 CFR 686.985.
\65\ 29 U.S.C. 3248(d).
\66\ Reference Guide, Key EEO and Civil Rights Laws, Statutes,
and Regulations, USDA Forest Service WO/Civil Rights Staff (April
2010).
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Effect on Other Obligations Sec. 38.3
The title of Sec. 38.3 is revised to read: ``Effect on other
obligations.'' Proposed Sec. 38.3 retains the majority of the language
in this section from Sec. 38.3. To establish parity with parallel
provisions in other federal nondiscrimination regulations,\67\ proposed
Sec. 38.3 also includes paragraph (c) explaining that ``This part does
not invalidate or limit the remedies, rights and procedures under any
Federal law, or the law of any State or political subdivision, that
provides equal or greater protection for the rights of persons as
compared to this part.'' This addition replaces Sec. 38.3(f) of this
subsection which states, ``This rule does not preempt consistent State
and local requirements.'' The NPRM also adds Executive Order 13160 \68\
to the provision that states that compliance with this part does not
affect additional obligations under the listed laws. Executive Order
13160 prohibits discrimination on the basis of race, sex, color,
national origin, disability, religion, age, sexual orientation, and
status as a parent in federally conducted education and training
programs and activities. This Executive Order is added because of its
application to the Job Corps program which, as a Federally-conducted
education and training program, is covered by this part.
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\67\ 41 CFR 60-741.1(c)(3); 41 CFR 60-300.1(c)(3).
\68\ 65 FR 39775, June 27, 2000.
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Definitions Sec. 38.4
This NPRM revises the title of Sec. 38.4 to read: ``Definitions.''
The proposed rule retains the majority of the definitions contained in
Sec. 38.4. Revisions in proposed Sec. 38.4 include updating existing
definitions consistent with applicable law, such as the definition of
``disability'' and its component definitions. This section also adds
new definitions, which are discussed below. These changes also include
edits to update existing definitions, based on developments in the law,
as well as feedback from stakeholders and the CRC's investigative and
enforcement experiences over the past fifteen years. This NPRM retains
the alphabetical order of the definitions. This ordering makes it
easier to locate specific terms within the section. However, the
proposed rule incorporates a letter designation before each definition
to make it easier to find definitions when they are referenced. The
headings that appear in this preamble to guide the reader do not appear
as headings in the regulatory text. The discussion below addresses
revisions to the definitions section in the part 38 rule.
Aid, Benefit, Service, or Training Sec. 38.4(b)
In the definition for ``Aid, benefit, service, or training,'' the
proposed rule replaces ``core and intensive services'' with ``career
services'' in Sec. 38.4(b)(1) to be consistent with the text of Title
I of WIOA \69\ and the proposed ETA regulations implementing Title I of
WIOA,\70\ which made the same replacement.
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\69\ 29 U.S.C. 3303(a)(1)(A).
\70\ 80 FR 20690, April 16, 2015.
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[[Page 4503]]
Auxiliary Aids or Services Sec. 38.4(h)
This NPRM revises the definition of ``Auxiliary aids or services''
to include new technology alternatives that have become available since
the current regulations were drafted in 1999, such as video remote
interpreting services and real-time computer-aided transcription
services. This provision mirrors the language in the DOJ regulations
implementing Title II of the ADA, which prohibits discrimination on the
basis of disability by public entities,\71\ some of which are also
recipients of WIOA Title I financial assistance.
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\71\ See 28 CFR 35.104.
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Babel Notice Sec. 38.4(i)
This NPRM adds a definition for ``Babel Notice.'' A Babel Notice is
a short notice in multiple languages informing the reader that the
document or electronic media (e.g., Web site, ``app,'' email) contain
vital information, and explaining how to access language services to
have the contents of the document or electronic media provided in other
languages. The Department proposes adding this definition because Babel
Notices are an integral tool for ensuring that recipients meet their
nondiscrimination and equal opportunity obligations under WIOA and this
part regarding LEP individuals. The Department welcomes comments on
this definition.
Direct Threat Sec. 38.4(p)
This NPRM adds a definition for ``direct threat.'' This term is
used in the context of determining whether the employment of or program
participation by an individual with a disability poses a health or
safety risk such that the employer or recipient can lawfully exclude
the individual from employment or participation. A ``direct threat'' is
``a significant risk of substantial harm to the health or safety of
others that cannot be eliminated or reduced by auxiliary aids and
services, reasonable accommodations, or reasonable modifications in
policies, practices, or procedures.'' The definition describes the four
factors that a recipient must consider when making a direct threat
determination: The duration of the risk, the nature and severity of the
potential harm, the likelihood that the potential harm will occur, and
the imminence of the potential harm. This proposed definition tracks
the definition of direct threat contained in the Americans with
Disabilities Act and used by DOJ \72\ in interpreting Title II of the
ADA. This proposed definition ensures consistency with current law. To
reflect the specific context of federal financially-assisted programs
and activities, the proposed definition includes considering whether
provision of auxiliary aids or services or reasonable modifications to
policies, practices, or procedures, in addition to reasonable
accommodations, will mitigate risk.
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\72\ 28 CFR 35.139.
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Disability Sec. 38.4(q)
The rule proposes a definition of ``disability'' that is updated to
reflect the current status of the law. As under the current part 38,
the overall definition is: ``with respect to an individual: (1) A
physical or mental impairment that substantially limits one or more of
the major life activities of such individual; (2) A record of such an
impairment; or (3) Being regarded as having such an impairment.'' The
proposed definition of ``disability'' integrates updated definitions of
terms that are components of this definition, including ``major life
activities,'' ``physical or mental impairment,'' ``record of,''
``regarded as,'' and ``substantially limits.'' As is explained below,
these revised definitions are taken directly from the ADA Amendments
Act,\73\ regulations promulgated by the EEOC to implement the ADA
Amendments Act,\74\ and the DOJ's Notice of Proposed Rulemaking to
amend Title II regulations to implement the ADA Amendments Act.\75\ If
the DOJ changes its proposal in its final rule implementing ADA Titles
II and III, the Department will review those changes to determine their
impact on this proposal and take appropriate action.
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\73\ Public Law 110-325 (2008).
\74\ 29 CFR part 1630.
\75\ 79 FR 4839, January 30, 2014. See also 28 CFR 35.104 (DOJ's
current Title II regulations).
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Definition of Disability, Rules of Construction Sec. 38.4(q)(1)
Consistent with the ADAAA, the EEOC regulations implementing the
ADAAA and DOJ's NPRM to amend the ADA Title II regulations in
conformance with the ADAAA,\76\ this section sets forth rules of
construction that provide the standards for application of the
definition of disability.
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\76\ See Introduction to the Final Rule ``The primary purpose of
the ADAAA is to make it easier for people with disabilities to
obtain protection under the ADA. Consistent with the Amendment Act's
purpose of reinstating a broad scope of protection under the ADA,
the definition of ``disability'' in this part shall be construed
broadly in favor of expansive coverage to the maximum extent
permitted by the terms of the ADA.'' 29 CFR 1630.1(c) (citing 42
U.S.C. 12102(4)(A)).
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Proposed Sec. 38.4(q)(1)(ii) provides that an individual may
establish coverage under any one or more of the prongs in the
definition of disability. To be covered under the ADA, however, an
individual is only required to satisfy one prong. The term ``actual
disability'' is used in these rules of construction as short-hand
terminology to refer to an impairment that substantially limits a major
life activity within the meaning of the first prong of the definition
of disability. The terminology selected is for ease of reference. It is
not intended to suggest that an individual with a disability who is
covered under the first prong has any greater rights under the ADA than
an individual who is covered under the ``record of'' or ``regarded as''
prongs, with the exception that the ADA, as amended, expressly states
that an individual who meets the definition of disability solely under
the ``regarded as'' prong is not entitled to reasonable accommodations,
auxiliary aids or services, or reasonable modifications of policies,
practices, or procedures.\77\
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\77\ See 42 U.S.C. 1. See Introduction to the Final Rule, ``The
primary purpose of the ADAAA is to make it easier for people with
disabilities to obtain protection under the ADA, Consistent with the
Amendment Act's purpose of reinstating a broad scope of protection
under the ADA, the definition of ``disability'' in this part shall
be construed broadly in favor of expansive coverage to the maximum
extent permitted by the terms of the ADA.'' 29 CFR 1630.
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This section also amends the definition of ``disability'' to
incorporate Congress's expectation that consideration of coverage under
the first and second prongs of the definition of ``disability'' will
generally not be necessary except in cases involving requests for
reasonable accommodations and reasonable modifications.\78\ See Sec.
38.4(q)(1)(ii)(B).
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\78\ 154 Cong. Rec. S8840 (daily ed. Sept. 16, 2008) (Statement
of Managers).
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Physical or Mental Impairment Sec. 38.4(q)(3)
This rule revises the definition of ``physical or mental
impairment,'' in the definition of disability, to include ``immune and
circulatory illnesses'' as well as ``pregnancy-related medical
conditions'' and states that the definition of ``mental and
psychological disorder'' includes ``intellectual disability (formerly
termed ``mental retardation'') and specific learning disabilities
(including but not limited to dyslexia).'' This update to the
definition conforms to the same definition proposed by the DOJ in their
NPRM implementing Title II of the ADA \79\ and in OFCCP's final rule
implementing Section 503,\80\ apart from the inclusion of pregnancy-
related medical conditions. This term is added here to
[[Page 4504]]
recognize that, under the ADA as amended by the ADAAA, Section 504 and
this part, pregnancy itself is not a disability, but pregnancy-related
medical conditions may meet the ADA definition of a physical or mental
impairment; for example, preeclampsia (pregnancy-induced high blood
pressure), placenta previa, and gestational diabetes, disorders of the
uterus and cervix, or other medical conditions; symptoms such as back
pain; complications requiring bed rest; and the after-effects of a
delivery may be a disability.
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\79\ 79 FR 4839, 4844, January 30, 2014.
\80\ 78 FR 58682, 58735, September 24, 2013.
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Major Life Activities Sec. 38.4(q)(4)
The proposed rule adds to the definition of disability a new
definition for ``major life activities'' that is consistent with the
definitions in the ADA, as amended,\81\ and regulations promulgated by
the EEOC \82\ and the DOJ \83\ implementing the ADA. Prior to the
ADAAA, the ADA did not define ``major life activities,'' leaving
delineation of illustrative examples to agency regulations.
Subparagraph (2) of the definition of ``disability'' in the
Department's current part 38 rule states that ``[t]he phrase major life
activities means functions such as caring for one's self, performing
manual tasks, walking, seeing, hearing, speaking, breathing, learning,
and working.'' \84\ The ADAAA incorporates into the statutory language
a non-exhaustive list of major life activities that includes, but is
not limited to, ``caring for oneself, performing manual tasks, seeing,
hearing, eating, sleeping, walking, standing, lifting, bending,
speaking, breathing, learning, reading, concentrating, thinking,
communicating, and working.'' \85\ This list reflects Congress's
concern that courts were interpreting the term ``disability,'' which
includes ``major life activities,'' more narrowly than Congress
intended.\86\ For the same reason, the ADA as amended also explicitly
defines ``major life activities'' to include the operation of ``major
bodily functions.'' Examples in the amended statute or the EEOC's
amended regulations include functions of the immune system, special
sense organs and skin; normal cell growth; and digestive,
genitourinary, bowel, bladder, neurological, brain, respiratory,
circulatory, cardiovascular, endocrine, hemic, lymphatic,
musculoskeletal, and reproductive functions. The operation of a major
bodily function includes the operation of an individual organ within a
body system. In Sec. 38.4(q)(4), the Department proposes to revise its
part 38 definitions of disability to incorporate the statutory examples
as well as to provide additional examples of major life activities
included in the EEOC Title I final regulation--reaching, sitting, and
interacting with others, and the examples of major bodily
functions.\87\
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\81\ 42 U.S.C. 12102(2).
\82\ 29 CFR 1630.2(i).
\83\ 79 FR 4839, 4844, January 30, 2014.
\84\ 29 CFR 38.4(q)(4).
\85\ 42 U.S.C. 12102(2)(a).
\86\ See Congressional Record--Senate S8840, S8841 (September
16, 2008).
\87\ 29 CFR 1630.2(i)(1).
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The Department cautions that both the lists of major life
activities and major bodily functions are illustrative. The absence of
a particular life activity or bodily function from the list should not
create a negative implication as to whether such activity or function
constitutes a major life activity or major bodily function under the
statute or the implementing regulation.\88\
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\88\ 29 CFR 1630, App, Section 1630.2(i). Major Life Activities
(EEOC Title I).
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Consistent with the ADAAA, proposed Sec. 38.4(q)(4)(iii) also
states that ``[i]n determining other examples of major life activities,
the term `major' must not be interpreted strictly to create a demanding
standard for disability.'' \89\ Further, consistent with the ADAAA, the
proposed regulations provide that ``[w]hether an activity is a `major
life activity' is not determined by reference to whether the activity
is of `central importance to daily life.' '' \90\
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\89\ 42 U.S.C. 12101(b)(4).
\90\ 29 CFR 1630.2(i)(2).
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Substantially Limits--Rules of Construction Sec. 38.4(q)(5)
The revisions also add rules of construction to be applied when
determining whether an impairment substantially limits a major life
activity, including that the term ``substantially limits'' is not meant
to be a demanding standard, and should be construed broadly in favor of
expansive coverage. In addition, consistent with the ADAAA, the
determination of whether an impairment substantially limits a major
life activity must be made without regard to the ameliorative effects
of mitigating measures.\91\
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\91\ 42 U.S.C. 12102(4)(E).
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The determination of whether an impairment substantially limits a
major life activity requires an individualized assessment.\92\ Section
38.4(q)(5)(i)(D) applies the principles set forth in the rules of
construction in order to provide examples of the types of impairments
that will virtually always be found to substantially limit a major life
activity.
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\92\ 29 CFR 1630.2(j)(1)(v).
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A Record of an Impairment Sec. 38.4(q)(6)
This proposed rule updates the definition to state that an
individual has ``a record of such an impairment,'' ``if the individual
has a history of, or has been misclassified as having, a mental or
physical impairment that substantially limits one or more major life
activities.'' This is the same language used by the EEOC in their
implementing regulations.\93\ The DOJ NPRM has identical language.\94\
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\93\ 29 CFR 1630.2(k)(1).
\94\ 79 FR 4839, 4848, Jan. 30, 2014.
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In addition, the rule proposes adding a new paragraph at Sec.
38.4(q)(6)(ii), which states that ``[w]hether an individual has a
record of an impairment that substantially limited a major life
activity must be construed broadly to the maximum extent permitted by
Federal disability nondiscrimination law and this part and should not
demand extensive analysis.'' An individual will be considered to fall
within this definitional prong if the individual has a history of an
impairment that substantially limited a major life activity, in
comparison to most people in the general population, or was
misclassified as having such an impairment. Moreover, an individual
under this definitional prong may be entitled to a reasonable
accommodation or a reasonable modification if needed, and related to
the past disability. This provision is consistent with the DOJ NPRM
implementing Title II of the ADA, as amended.\95\ If the DOJ changes
its proposal in its final rule implementing ADA Titles II and III, the
Department will review those changes to determine their impact on this
proposal and take appropriate action.
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\95\ 70 FR 4839, 4859, Jan. 30, 2014.
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Is Regarded as Having Such an Impairment Sec. 38.4(q)(7)
This rule revises the term ``regarded as having an impairment'' to
conform to the ADAAA.\96\ This updated language provides that an
individual meets the definition if it is established that the
individual is subject to an action prohibited by WIOA Section 188 and
this part, because of an actual or perceived physical or mental
impairment, whether or not that impairment substantially limits, or is
perceived to substantially limit, a major life activity. However,
impairments that are transitory and minor cannot form
[[Page 4505]]
the basis of a finding that an ``individual is regarded as having a
disability.''
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\96\ 42 U.S.C.12102(3).
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Employment Practices Sec. 38.4(s)
A minor revision to the definition of ``Employment practices'' has
been made to read: ``Employment Practices of a recipient include, but
are not limited to'' to make it easier to read and understand. The
enumerated examples in the part 38 definition have not changed.
Employment-Related Training Sec. 38.4(t)
The definition of ``Employment-related training'' has been revised
to make the definition less circular. The new definition is ``training
that allows or enables an individual to obtain skills, abilities and/or
knowledge that are designed to lead to employment.''
Individual With a Disability Sec. 38.4(ff)
The rule revises the definition of ``individual with a disability''
to be consistent with the ADAAA and implementing regulations issued by
the EEOC \97\ and proposed by the DOJ.\98\ The majority of the text
lists conditions that are not included in the definition of an
individual with a disability.
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\97\ 29 CFR 1630.3.
\98\ 70 FR 4839, 4859-60, Jan. 30, 2014.
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The proposed rule separates ``transvestism, transsexualism, and
gender dysphoria not resulting from physical impartments'' from
``pedophilia, exhibitionism, voyeurism and other sexual behavior
disorders.'' Previously, these terms were listed together and are
listed together in the same definition in the ADA \99\ and in the EEOC
\100\ regulations and the DOJ \101\ proposed regulations implementing
the ADA. The terms remain but have been separated into two groups. This
change is intended to highlight the distinction between the first three
terms (transvestism, transsexualism, or gender dysphoria not resulting
from physical impairment) from those in the second group (pedophilia,
exhibitionism, voyeurism, or other sexual behavior disorders) which
carry distinctly negative connotations.
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\99\ 42 U.S.C. 12211(b).
\100\ 29 CFR 1630.3(d).
\101\ 70 FR 4839, 4859-60, January 30, 2014.
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In this regard, CRC notes that Section 504 specifically excludes
from the definition of disability, among other conditions, gender
identity disorders that are not the result of physical
impairments.\102\
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\102\ 29 U.S.C. 705(20)(F)(i).
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Finally, subparagraph (2)(i) of this definition has been changed so
that it states that an individual who has successfully completed a
supervised drug rehabilitation program and is no longer engaging in the
illegal use of drugs or has otherwise been rehabilitated successfully
and is no longer engaging in the illegal use of drugs is not excluded
from the definition of an individual with a disability. By adding the
characterization of ``illegal drugs'' to the last part of this
subparagraph, it is easier to read and understand such use.
Limited English Proficient (LEP) Individual Sec. 38.4(hh)
This rule proposes a new definition for ``limited English
proficient (LEP) individual.'' The proposed definition of ``limited
English proficient individual'' is ``an individual whose primary
language for communication is not English and who has a limited ability
to read, speak, write and/or understand English. LEP individuals may be
competent in English for certain types of communication (e.g., speaking
or understanding), but still be LEP for other purposes (e.g., reading
or writing).'' Similarly, LEP designations are context specific. For
example, an individual may possess sufficient English language skills
to function in one setting (e.g., reading a recipient's hours of
operation or greeting an individual), but the individual's skills may
be insufficient in other settings (e.g., completing a legal document or
discussing eligibility requirements). This definition is added because
discrimination based on limited English proficiency may be a form of
unlawful national origin discrimination.\103\ The term is used
elsewhere in this proposed rule, in Sec. 38.9 defining national origin
discrimination as including discrimination based on limited English
proficiency. This definition is consistent with decisions interpreting
the scope of national origin discrimination under Title VI \104\ and
regulations interpreting national origin-based discrimination,\105\ and
has been adopted from those DOJ regulations implementing Title VI to
ensure consistency. Finally, this term is being added to provide
direction to the regulated recipient community because the population
attempting to apply for, participate in, and benefit from WIOA Title I-
financially assisted programs and activities is increasingly diverse,
speaking many languages in addition to and sometimes instead of
English. According to a report issued by the U.S. Census Bureau in
2013, as of 2011, 21 percent of people aged 5 and over living in the
U.S. spoke a language other than English at home, 22.4 percent of whom
either spoke English not well or not at all.\106\ As a result, WIOA
Title I-financially assisted programs and activities have increasingly
interacted with and provided services to individuals who are limited
English proficient. Since fiscal year 2013, of the compliance reviews
of state programs that CRC has conducted, six have revealed significant
language access violations. Thus, there is a need for increased
direction for recipients regarding their obligations to meet the needs
of these LEP applicants, participants, and beneficiaries.
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\103\ Lau v. Nichols, 414 U.S. 563 (1974) (federal fund
recipient's denial of an education to a group of non-English
speakers was national origin discrimination in violation of Title
VI).
\104\ Sandoval v. Hagan, 197 F.3d 484, 510-11 (11th Cir. 1999)
(holding that English-only policy for driver's license applications
constituted national origin discrimination under Title VI), rev'd on
other grounds, 532 U.S. 275 (2001); Almendares v. Palmer, 284 F.
Supp. 2d 799, 808 (N.D. Ohio 2003) (holding that allegations of
failure to ensure bilingual services in a food stamp program could
constitute a violation of Title VI).
\105\ 28 CFR 42.104.
\106\ American Community Survey Reports, Language Use in the
United States: 2011 (August 2013).
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National Programs Sec. 38.4(ii)
This proposed rule includes the National Dislocated Worker Grant
Programs and YouthBuild programs in the definition of ``National
Programs.'' This change reflects the language in WIOA Title I Subpart
D, Section 170 and Sec. 171\107\ and ETA's proposed implementing
regulations.\108\
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\107\ 29 U.S.C. 3225-3226.
\108\ 80 FR 20690, April 16, 2015.
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Nondiscrimination Plan Sec. 38.4(ll)
This proposed rule changes the name ``Methods of Administration''
for the document described in Sec. 38.54 to ``Nondiscrimination
Plan,'' but retains the definition of the document. This change more
clearly represents the contents and purpose of this document, which is
created, maintained, and implemented by the Governor to ensure
compliance on the part of state programs with WIOA's nondiscrimination
and equal opportunity obligations and this part.
Other Power-Driven Mobility Device Sec. 38.4(nn)
This rule adds a definition for ``other power-driven mobility
device.'' The term is used in the proposed rule in Sec. 38.17, setting
out the programmatic and physical accessibility requirements applicable
to individuals with disabilities. This definition mirrors the
definition in the DOJ ADA Title II regulations.\109\ This definition is
[[Page 4506]]
updated because, as the technology available for mobility devices
advances, devices with new capabilities, such as the Segway(copyright),
are increasingly used by individuals with mobility impairments.
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\109\ 28 CFR 35.104.
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Programmatic Accessibility Sec. 38.4(tt)
The rule adds a definition for ``programmatic accessibility.'' WIOA
states in no fewer than ten places in Title I that recipients will
comply with section 188, if applicable, and applicable provisions of
the Americans with Disabilities Act of 1990, regarding the physical and
programmatic accessibility of facilities, programs, services,
technology, and materials, for individuals with disabilities.\110\
However, WIOA does not define programmatic accessibility for this
purpose. The Department's proposed definition, ``policies, practices,
and procedures providing effective and meaningful opportunity for
persons with disabilities to participate in or benefit from aid,
benefit, service and training,'' provides needed direction for
recipients and beneficiaries. It is important to note that the term
``programmatic accessibility'' in this context has a different meaning
than the similar term ``program accessibility'' that is used in Title
II of the ADA.
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\110\ See, e.g., 29 U.S.C. 102(b)(2)(c)(vii); 29 U.S.C.
102(b)(2)(e)(vi).
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Qualified Individual With a Disability Sec. 38.4(ww)
This rule revises the title of the definition of ``qualified
individual with a disability'' to match the definition of ``qualified''
in the EEOC regulations \111\ implementing Title I of the ADAAA.
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\111\ 29 CFR 1630.2(m).
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Qualified Interpreter Sec. 38.4(xx)
This NPRM amends the existing definition of ``qualified
interpreter'' to reflect the existence of new technologies used by
interpreters. The revised language states that interpreting services
may be provided ``either in-person, through a telephone, a video remote
interpreting (VRI) service or via internet, video, or other
technological methods.\112\ This revision is also intended to delineate
the skills and abilities that an individual must possess in order to
provide interpretation services. This change to the definition is
intended to assist recipients who are seeking to meet their
nondiscrimination and equal opportunity responsibilities as defined in
this part. This change is also intended to benefit applicants,
participants, and beneficiaries.
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\112\ See 28 CFR 35.104, definition of ``auxiliary aids and
services'' (paragraph 1) and definition of ``qualified
interpreter.''
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The rule adds two new subdefinitions to further explain the
different meanings of ``qualified interpreter'' when working with
individuals with disabilities and with individuals who are limited
English proficient. The first new definition specifies that ``qualified
interpreter for an individual with a disability'' includes sign
language interpreters, oral transliterators, and cued-language
transliterators, and describes the essential functions required to be
performed by a qualified interpreter for a deaf or hard of hearing
individual. This language is taken from the ADA Best Practices Tool Kit
for State and Local Governments.\113\
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\113\ ADA Best Practices Tool Kit for State and Local
Governments, General Effective Communication Requirements Under
Title II of the ADA, Chapter 3, available at: http://www.ada.gov/pcatoolkit/chap3toolkit.htm (last accessed March 19, 2015).
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The second subdefinition is for ``qualified interpreter for an
individual who is limited English proficient.'' This new subdefinition
is taken from the DOL LEP guidance and refers to an individual who
demonstrates expertise in and ability to communicate information
accurately in both English and in the other language and to identify
and employ the appropriate mode of interpreting, such as consecutive,
simultaneous, or sight translation.\114\ Recipients are strongly
encouraged to use certified interpreters where individual rights depend
on precise, complete and accurate translations. Such situations may
include, e.g., a hearing on eligibility for unemployment insurance
benefits or a test for obtaining certification or credentials. A
certified interpreter may be someone who has been certified by the
federal courts to be a qualified interpreter for legal purposes, or
someone who has been certified by a national interpreter association.
Certification indicates a particular level of expertise in the specific
skill of interpretation, which is distinct from being bilingual.
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\114\ DOL LEP Guidance, supra note 24 at 32296.
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Reasonable Accommodation Sec. 38.4(yy)
This NPRM revises the definition of ``reasonable accommodation'' to
add a new paragraph (4), which reads as follows: ``A covered entity is
required, absent undue hardship, to provide a reasonable accommodation
to an otherwise qualified individual who has an `actual disability' or
`record of' a disability, but is not required to provide a reasonable
accommodation to an individual who is only `regarded as' having a
disability.'' This change to the definition of reasonable accommodation
makes it consistent with the ADAAA \115\ and regulations issued by the
EEOC \116\ and proposed by the DOJ \117\ interpreting the ADA.
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\115\ 42 U.S.C. 12101 et seq.
\116\ 29 CFR 1630.9(e).
\117\ 70 FR 4839, January 30, 2014.
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Recipient Sec. 38.4(zz)
This NPRM revises the definition of ``recipient.'' The definition
retains most of the language contained in the Sec. 38.4 definition
except that the rule removes the language excluding the operators of
federally-operated Job Corps Centers from the definition of recipient.
As described above, WIOA Title I \118\ and ETA's proposed implementing
regulations \119\ set forth CRC's jurisdiction to enforce the WIOA
nondiscrimination and equal opportunity provisions as to Federally-
operated Job Corps Centers. Thus, this NPRM revises the definition to
include as recipients all Job Corps contractors and Center operators.
This proposed addition to the existing definition is intended to
provide consistency by placing all Job Corps Centers under CRC's
jurisdiction to ensure that participants in all Job Corps Centers have
the identical enforcement mechanism.
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\118\ 29 U.S.C. 3248(d).
\119\ 80 FR 20690, April 16, 2015.
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Service Animal Sec. 38.4(fff)
This NPRM adds a definition for ``service animal.'' The proposed
rule refers to the term ``service animal'' in Sec. 38.16; therefore,
the term has been defined in this section. This provision is drawn from
the DOJ ADA Title II regulations at 28 CFR 35.104 and is intended to
provide uniformity.\120\
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\120\ The EEOC has not addressed whether or not this definition
would apply to employers and employment agencies covered under Title
I of the ADA or Section 501 of the Rehabilitation Act.
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State Workforce Agency Sec. 38.4(lll)
This NPRM proposes to change the term ``State Employment Service
Agencies'' to ``State Workforce Agencies'' to be consistent with the
change to this term contained in WIOA Title I \121\ and the proposed
ETA regulations implementing Title I.\122\
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\121\ 80 FR 20690, April 16, 2015.
\122\ Id.
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Undue Burden or Hardship Sec. 38.4(rrr)
This NPRM amends the definition of ``undue hardship'' in the
context of religious accommodation to read as follows: ``For the
purposes of religious accommodation only, `undue hardship'
[[Page 4507]]
means anything more than a de minimis cost or operational burden that a
particular accommodation would impose on a recipient.'' This minor
change to the current rule's definition removes the reference to case
law and makes it consistent with EEOC's interpretation of Title
VII.\123\
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\123\ 29 CFR 1605.2(e).
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Video Remote Interpreting (VRI) Service Sec. 38.4(sss)
This NPRM adds the definition of ``video remote interpreting (VRI)
service'' because it is an interpreting service that is increasingly
integrated into services provided to individuals with disabilities and
LEP individuals. The definition of ``video remote interpreting
service'' means an interpreting service that uses video conference
technology over dedicated lines or wireless technology offering high-
speed, wide-bandwidth video connection that delivers high-quality video
images, as provided in Sec. 38.15. This definition mirrors the term
used by the DOJ regulations implementing Title II of the ADA.\124\
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\124\ See 28 CFR 35.104.
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Vital Information Sec. 38.4(ttt)
This NPRM adds a new definition for ``vital information.'' The
proposed rule uses the term ``vital information'' in setting forth a
recipient's responsibility to meet its language access requirements.
The proposed definition reads as follows: ``information, whether
written, oral or electronic, that is necessary for an individual to
understand how to obtain any aid, benefit, service and/or training;
necessary for an individual to obtain any aid, benefit, service, and/or
training; or required by law. Examples of documents containing vital
information include, but are not limited to, applications, consent, and
complaint forms; notices of rights and responsibilities; notices
advising LEP individuals of their rights under this part, including the
availability of free language assistance; rulebooks; written tests that
do not assess English language competency, but rather assess competency
for a particular license, job, or skill for which English proficiency
is not required; and letters or notices that require a response from
the beneficiary or applicant, participants, or employee.
This definition is intended to provide clear direction for
recipients so that they can determine what information is necessary to
be translated or interpreted for limited English proficient individuals
in order for recipients to meet their obligations under this part and
WIOA Section 188. The definition builds upon and is consistent with the
discussion of vital written materials and documents contained in the
DOL LEP Guidance.\125\ The guidance does not define ``vital documents''
or ``vital information'' and CRC has received feedback from Equal
Opportunity Officers that this omission has caused some confusion on
the part of recipients. The DOL LEP Guidance uses the term ``vital
documents'' when discussing written language services and which
documents should be translated. It explains that an effective LEP plan
for a particular program or activity includes the translation of vital
written materials into the languages of each frequently-encountered LEP
group eligible to be served and/or likely to be affected by the
recipient's program. The Guidance then provides a non-exhaustive list
of examples of documents that would qualify as vital written materials,
including letters containing important information regarding
participation in a program or activity and notices that require a
response from beneficiaries. When the LEP Guidance was issued in 2003,
recipients still provided a significant percentage of aid, service,
benefit, and training in person. Since then, many recipients, including
unemployment insurance programs, moved to a phone-based system and then
to a Web site- and Internet-based system of provision of services.
Today, many WIOA Title I-financially assisted programs and activities,
including unemployment insurance programs, are made available to the
public largely through a Web site and the internet. While web-based
services and programs offered by recipients provide beneficiaries the
convenience of accessing resources remotely at almost any time,
ineffectually designed or implemented Web sites may create barriers
that prevent or limit access for some LEP individuals. As a result, it
has become necessary to define vital information to include information
delivered orally, such as in a telephone recording or phone
conversation with a recipient's staff member, as well as
electronically, such as contained in a recipient's Web page or email.
The Department welcomes comments on this new definition.
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\125\ DOL LEP Guidance, supra note 24 at 32298.
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Wheelchair Sec. 38.4(uuu)
The proposed rule adds a definition for ``wheelchair'' to read as
follows: ``A manually-operated or power-driven device designed
primarily for use by an individual with a mobility disability for the
main purpose of indoor or of both indoor and outdoor locomotion.'' This
definition mirrors the definition in the DOJ ADA Title II regulations
at 28 CFR 35.104. CRC has proposed a separate definition for wheelchair
to distinguish it from other power driven mobility devices.
General Prohibitions on Discrimination Sec. 38.5
The title of proposed Sec. 38.5 revises the part 37 title to read
as follows: ``General Prohibitions on Discrimination.''
Specific Discriminatory Actions Prohibited on Bases Other Than
Disability Sec. 38.6
The title of proposed Sec. 38.6 revises the part 37 title to:
``Specific discriminatory actions prohibited on bases other than
disability.'' In addition, this section replaces the term ``ground''
with the term ``basis.''
Discrimination Prohibited Based on Sex Sec. 38.7
The proposed rule incorporates a new section, Sec. 38.7, titled
``Discrimination prohibited based on sex.'' This proposed section
incorporates certain obligations already set forth in the current part
37 rule. This new section in paragraph (a) states that discrimination
in WIOA Title I-financially assisted programs and activities based on
pregnancy, childbirth, or related medical conditions is sex
discrimination. This principle has been the law since Congress enacted
the Pregnancy Discrimination Act (PDA) to amend Title VII in 1978 and
is now being incorporated into the WIOA regulations consistent with
current law interpreting the PDA.\126\ Pregnancy discrimination is also
addressed separately in proposed Sec. 38.8.
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\126\ 42 U.S.C. 2000e(k).
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In addition, paragraph (a) states that discrimination based on
gender identity or transgender status is also a form of unlawful sex
discrimination. As described above, the Department follows the
jurisprudence developed under Title VII cases brought by the EEOC and
the Department of Justice. In the EEOC's decision in Macy v. Holder,
the EEOC concluded that discrimination because of gender identity or
transgender status is sex discrimination in violation of Title VII, by
definition, because the discriminatory act is ``related to the sex of
the victim.'' \127\ The EEOC cited both the text of Title VII and the
reasoning in Schroer v.
[[Page 4508]]
Billington, supra, for its conclusion.\128\ See also Memorandum from
Attorney General Eric Holder to United States Attorneys and Heads of
Department Components (Dec. 15, 2014) (citing EEOC's decision in Macy
v. Holder as support for DOJ's position that ``[t]he most
straightforward reading of Title VII is that discrimination `because of
. . . sex' includes discrimination because an employee's gender
identification is as a member of a particular sex, or because the
employee is transitioning, or has transitioned, to another sex''). Note
that discrimination on the basis of gender identity or transgender
status can arise regardless of whether a transgender individual has
undergone, is undergoing, or plans to undergo sex-reassignment surgery
or other processes or procedures designed to facilitate the adoption of
a sex or gender other than the individual's assigned sex at birth.\129\
---------------------------------------------------------------------------
\127\ Macy, 2012 WL 1435995 at *7. Macy also held that
discrimination on the basis of transgender status could be unlawful
under Title VII as sex stereotyping. Id.
\128\ Consistent with Macy, this NPRM defines discrimination on
the basis of gender identity or transgender status as a form of sex
discrimination. Gender identity is also a stand-alone protected
category (as is sexual orientation) under Executive Order 13672.
Executive Order 13672 amended Executive Order 11246 to add sexual
orientation and gender identity as protected bases, and applies to
certain government contracts entered into or modified on or after
April 8, 2015, the effective date of OFCCP's implementing
regulations promulgated thereunder. Section 188 of WIOA and this
part apply to Federal contracts to operate Job Corps Centers (see
Sec. 38.2(b)(4)), so persons that hold such contracts may be
subject to Executive Order 11246, as amended, including the
obligation not to discriminate in employment based on gender
identity and sexual orientation.
\129\ See Macy v. Holder, 2012 WL 1435995 (discrimination
against a transgender individual is discrimination related to the
sex of the victim including when the employer is uncomfortable with
the fact that the person has transitioned or is in the process of
transitioning from the person's sex assigned at birth to another
sex)); Shroer v. Billington, 577 F. Supp. at 293 (discrimination
against a transgender individual on the basis of an intended,
ongoing, or completed gender transition is discrimination because of
sex).
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Subsection (b) provides a nonexhaustive list of distinctions based
on sex that are unlawful. The nonexhaustive list of examples included
in this proposed section are intended to assist recipients in meeting
their nondiscrimination and equal opportunity responsibilities under
this section. The examples include: Making a distinction between
married and unmarried persons that is not applied equally to
individuals of both sexes as an example of a sex-based discriminatory
practice (proposed paragraph 38.7(b)(1)); denying individuals of one
sex who have children access to aid, benefit, service, or training
opportunities that is available to individuals of another sex who have
children is an unlawful sex-based discriminatory practice (proposed
paragraph 38.7(b)(2)); adversely treating unmarried parents of one sex,
but not unmarried parents of another sex (proposed paragraph
38.7(b)(3)); distinguishing on the basis of sex in formal or informal
job training and/or educational programs, or other opportunities
(proposed paragraph 38.7(b)(4)); posting job announcements that recruit
or advertise for individuals for certain jobs on the basis of sex,
including through the use of gender-specific terms (proposed paragraph
38.7(b)(5)); treating an individual adversely because the individual
identifies with a gender different from that individual's sex assigned
at birth or the individual has undergone, is undergoing, or is planning
to undergo, processes or procedures designed to facilitate the adoption
of a sex or gender other than the individual's assigned sex at birth
(proposed paragraph 38.7(b)(6)); denying individuals who are pregnant,
who become pregnant, or who plan to become pregnant opportunities for
or access to aid, benefit, service, or training on the basis of
pregnancy (proposed paragraph 38.7(b)(7)); making any facilities
associated with WIOA Title I-financially assisted program or activities
available only to members of one sex, except that if the recipient
provides restrooms or changing facilities, the recipient must provide
separate or single-user restrooms or changing facilities to assure
privacy (proposed paragraph 38.7(b)(8)); and denying employees access
to the bathrooms used by the gender with which they identify (proposed
paragraph 38.7(b)(9)).\130\
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\130\ Office of Personnel Management (OPM) Guidance Regarding
the Employment of Transgender Individuals in the Federal Workplace,
available at http://www.opm.gov/policy-data-oversight/diversity-and-inclusion/reference-materials/gender-identity-guidance/ (last
accessed March 20, 2015), citing DOL Occupational Safety and Health
Administration (OSHA) Interpretations, Interpretation of 29 CFR
1910.141(c)(1)(i): Toilet Facilities (April 6, 1998), available at
http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=22932 (last
accessed March 20, 2015); Letter from Thomas Galassi to Maine Human
Rights Comm'n (April 16, 2013), available at http://www.dol.gov/oasam/programs/crc/23603JohnP.GauseLetter.pdf (last accessed March
20, 2015); see also Lusardi v. Dep't of the Army, EEOC Appeal No.
0120133395, 2015 WL 1607756 (April 1, 2015) (denying employees use
of a restroom consistent with their gender identity and subjecting
them to intentional use of the wrong gender pronouns constitutes
discrimination because of sex, and violates Title VII); Statement of
Interest of the United States in G.G. v. Gloucester County School
Board, No. 15-2056 (4th Cir.) (arguing that the Gloucester County
School Board violated Title IX when it denied a transgender male
access to the restroom consistent with his gender identity).
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Proposed paragraph 38.7(c) provides that a recipient's policies or
practices that have an adverse impact on the basis of sex and are not
program-related and consistent with program necessity, constitute sex
discrimination in violation of WIOA. Traditionally, disparate impact
claims have involved selection criteria that are not necessary to the
performance of the job, but which instead reflect stereotypical notions
about the skills required for the position in question. Mehus v.
Emporia State Univ., 295 F. Supp. 2d 1258, 1271 (D. Kan. 2004)
(``Plaintiff is not required to allege discriminatory intent.'');
Sharif by Sala-huddin v. N.Y. State Educ. Dep't., 709 F. Supp. 345
(S.D.N.Y. 1989) (disparate impact theory to challenge use of Scholastic
Aptitude Test to allocate state merit scholarships was appropriate
under Title IX). See also Blake v. City of Los Angeles, 595 F.2d 1367
(9th Cir. 1979) (striking down height requirements by the Los Angeles
police department because they were not job related and had a disparate
impact on women, who in general are shorter than men); EEOC v. Dial
Corp., 469 F.3d 735 (8th Cir. 2006) (striking down a strength test used
in a sausage factory because the test was more physically demanding
than the job in question and had a significant disparate impact on
women). This sex discrimination analysis may also apply to policies or
practices that are unrelated to selection procedures. For instance, an
employer policy requiring crane operators to urinate off the back of
the crane instead of using a restroom was held to be a neutral
employment policy that was not job-related and that produced an adverse
effect on women, who, the court found, have ``obvious anatomical and
biological differences'' that require the use of bathrooms. Johnson v.
AK Steel Corp., 1:07-cv-291, 2008 WL 2184230, *8 (S.D. Ohio May 23,
2008).
Proposed paragraph 38.7(d) clarifies that discrimination based on
sex stereotypes, such as stereotypes about how persons of a particular
sex are expected to look, speak, or act, is a form of unlawful sex
discrimination. The proposed rule states the well-recognized principle
that employment-related decisions made on the basis of stereotypes
about how males and/or females are expected to look, speak, or act are
a form of sex-based employment discrimination. As the Supreme Court
stated in Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989), ``we
are beyond the day when an employer can evaluate employees by assuming
or insisting that they match the stereotype associated with their . . .
[sex].'' In Price Waterhouse, the Court held that an
[[Page 4509]]
employer's failure to promote a female senior manager to partner
because of the sex-stereotyped perceptions that she was too aggressive
and did not ``walk more femininely, talk more femininely, dress more
femininely, wear make-up, have her hair styled, and wear jewelry'' was
unlawful sex-based employment discrimination.\131\ The principle that
sex stereotyping is a form of sex discrimination has been applied
consistently in Supreme Court and lower-court decisions. See, e.g.,
Nevada Dep't of Human Res. v. Hibbs, 538 U.S. 721 (2003) (stereotype-
based beliefs about the allocation of family duties on which state
employers relied in establishing discriminatory leave policies held to
be sex discrimination under the Equal Protection Clause of the
Constitution); Chadwick v. Wellpoint, Inc., 561 F.3d 38 (1st Cir. 2009)
(making employment decision based on the belief that women with young
children neglect their job responsibilities is unlawful sex
discrimination under Title VII); Prowel v. Wise Bus. Forms, Inc., 579
F.3d 285 (3d Cir. 2009) (harassment based on a man's so-called
effeminacy is a form of sex discrimination under Title VII); Terveer v.
Billington, Civil Action No. 12-1290, 2014 WL 1280301 (D.D.C. Mar. 31,
2014) (hostile work environment based on stereotyped beliefs about the
appropriateness of same-sex relationships is a form of sex
discrimination under Title VII).\132\ Cf. U.S. v. Virginia, 518 U.S.
515, 533 (1996) (in making classifications based on sex, state
governments ``must not rely on overbroad generalizations about the
different talents, capacities, or preferences of males and
females'').\133\
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\131\ Price Waterhouse, 490 U.S. at 235.
\132\ See also Centola, 183 F. Supp. 2d at 410 (``Sexual
orientation harassment is often, if not always, motivated by a
desire to enforce heterosexually defined gender norms. In fact,
stereotypes about homosexuality are directly related to our
stereotype about the proper roles of men and women.''); Heller v.
Columbia Edgewater Country Club, 195 F. Supp. 2d 1212 (D. Or. 2002)
(``[A] jury could find that Cagle repeatedly harassed (and
ultimately discharged) Heller because Heller did not conform to
Cagle's stereotype of how a woman ought to behave. Heller is
attracted to and dates other women, whereas Cagle believes that a
woman should be attracted to and date only men.''); Videckis v.
Pepperdine Univ., 2015 WL 8916764 (C.D. Cal. 2015) (slip op) (``The
type of sexual orientation discrimination Plaintiffs allege falls
under the broader umbrella of gender stereotype discrimination.
Stereotypes about lesbianism, and sexuality in general, stem from a
person's views about the proper roles of men and women--and the
relationships between them.''). The EEOC has recognized in a number
of federal sector decisions that adverse actions taken on the basis
of sex stereotypes related to sexual orientation, such as the
stereotype that men should only date women, violate Title VII.
Castello v. U.S. Postal Service, EEOC Request No. 0520110649, 2011
WL 6960810 (Dec. 20, 2011) (sex-stereotyping evidence entailed
offensive comment by manager about female subordinate's
relationships with women); Veretto v. U.S. Postal Service, EEOC
Appeal No. 0120110873, 2011 WL 2663401 (July 1, 2011) (complainant
stated plausible sex-stereotyping claim alleging harassment because
he married a man); Culp v. Dep't of Homeland Security, EEOC Appeal
0720130012, 2013 WL 2146756 (May 7, 2013) (Title VII covers
discrimination based on associating with lesbian colleague); Couch
v. Dep't of Energy, EEOC Appeal No. 0120131136, 2013 WL 4499198, at
*8 (Aug. 13, 2013) (complainant's claim of harassment based on his
``perceived sexual orientation''); Complainant v. Dep't of Homeland
Security, EEOC Appeal No. 0120110576, 2014 WL 4407422 (Aug. 20,
2014) (``While Title VII's prohibition of discrimination does not
explicitly include sexual orientation as a basis, Title VII
prohibits sex discrimination, including sex-stereotyping
discrimination and gender discrimination'' and ``sex discrimination
claims may intersect with claims of sexual orientation
discrimination.''); Baldwin, EEOC Appeal No. 0120133080, 2015 WL
4397641 at *7 (``Sexual orientation discrimination is also sex
discrimination because it necessarily involves discrimination based
on gender stereotypes.'').
\133\ The Seventh Circuit articulated this principle as early as
1971. Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (7th
Cir. 1971) (``In forbidding employers to discriminate against
individuals because of their sex, Congress intended to strike at the
entire spectrum of disparate treatment of men and women resulting
from sex stereotypes.'') (emphasis added).
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As a matter of policy, we support banning discrimination on the
basis of sexual orientation in the administration of, or in connection
with, any programs and activities funded or otherwise financially
assisted in whole or in part under Title I of WIOA. Current law is
mixed on whether existing Federal nondiscrimination laws prohibit
discrimination on the basis of sexual orientation as a part of their
prohibitions on sex discrimination. To date, no Federal appellate court
has concluded that Title VII's prohibition on discrimination ``on the
basis of sex''--or Federal laws prohibiting sex discrimination more
generally--prohibits discrimination on the basis of sexual orientation,
and some appellate courts previously reached the opposite
conclusion.\134\
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\134\ See, e.g,, Kiley v. Am. Soc'y for Prevention of Cruelty to
Animals, 296 Fed. App'x 107, 109 (2d Cir. 2008); Vickers v.
Fairfield Med. Ctr., 453 F.3d 757, 759 (6th Cir. 2006); Bibby v.
Philadelphia Coca Cola Bottling Co., 260 F.3d 257, 260 (3d Cir.
2001); but cf. Latta v. Otter, 771 F.3d 456 (9th Cir. 2014) (Berzon,
J., concurring) (in striking down State law prohibition on same sex
marriage, observing that ``the same sex marriage laws treat the
subgroup of men who wish to marry men less favorably than the
otherwise similarly situated subgroup of women who want to marry
men'' and therefore constitute sex discrimination); see also
Muhammad v. Caterpillar, 767 F.3d 694 (7th Cir. 2014), 2014 WL
4418649 (7th Cir. Sept. 9, 2014, as Amended on Denial of Rehearing,
Oct. 16, 2014) (removing statements from previously issued panel
decision that relied on outdated precedents about coverage of sexual
orientation discrimination under Title VII as requested in EEOC
Amicus Brief).
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However, a recent EEOC decision concluded that Title VII's
prohibition of discrimination ``on the basis of sex'' precludes sexual
orientation discrimination because discrimination on the basis of
sexual orientation necessarily involves sex-based considerations. The
EEOC relied on several theories to reach this conclusion: A plain
interpretation of the term ``sex'' in the statutory language, an
associational theory of discrimination based on ``sex,'' and the
gender-stereotype theory announced in Price Waterhouse.\135\ The EEOC's
decision cited several district court decisions that similarly
concluded that sex discrimination includes sexual orientation
discrimination, using these theories.\136\ The EEOC also analyzed and
called into question the appellate decisions that have concluded that
sexual orientation discrimination is not covered under Title VII.\137\
The EEOC decision applies to workplace conditions, as well as hiring,
firing, and promotion decisions, and is one of several recent
developments in the law that have resulted in additional protections
for individuals against discrimination based on sexual
orientation.\138\ Two federal district courts have since concurred with
the EEOC's legal analysis in Baldwin.\139\
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\135\ Baldwin v. Foxx, EEOC Appeal No. 0120133080, Agency No.
2012-24738-FAA-03, at 5-6 (July 15, 2015) (finding that sexual
orientation is inseparable from and inescapably linked to sex and
thus that an allegation of discrimination based on sexual
orientation is necessarily an allegation of sex discrimination).
\136\ See id. at *4-*8.
\137\ See id. at *9-*10.
\138\ For example, just this year, the Supreme Court ruled that
States may not prohibit same-sex couples from marrying and must
recognize the validity of same-sex couples' marriages. Obergefell v.
Hodges, 135 S. Ct. 2071 (2015).
\139\ Isaacs, 2015 WL 6560655 at *3-4 (``This court agrees
instead with the view of the Equal Employment Opportunity Commission
that claims of sexual orientation discrimination are cognizable
under Title VII. In [Baldwin], the Commission explains persuasively
why an allegation of discrimination based on sexual orientation is
necessarily an allegation of sex discrimination under Title VII.'')
(internal citations and quotations omitted); Videckis, 2015 8916764
at *8 (``This Court's conclusion [that sexual orientation
discrimination is necessarily sex discrimination] is in line with a
recent Equal Employment Opportunity Commission decision (`EEOC')
holding that sexual orientation discrimination is covered under
Title VII, and therefore that the EEOC will treat sexual orientation
discrimination claims the same as other sex discrimination claims
under Title VII.''); Cf. Roberts v. United Parcel Serv., 2015 WL
4509994, *14-18 (E.D. N.Y. 2015) (referring to Baldwin as a
``landmark ruling,'' noting its criticism of federal courts for
citing to dated rulings without additional analysis in the sexual
orientation context, and quoting favorably from the decision at
length).
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The final rule should reflect the current state of
nondiscrimination law, including with respect to prohibited bases of
discrimination. We seek comment on the best way of ensuring
[[Page 4510]]
that this rule includes the most robust set of protections supported by
the courts on an ongoing basis.
Paragraph (d) provides examples of sex stereotyping to assist
recipients in preventing, identifying, and remedying such examples of
sex discrimination in their programs. Examples of practices that
constitute sex stereotyping include: Denying an individual access to,
or otherwise subjecting an individual to adverse treatment in accessing
aid, benefit, service, and training (proposed paragraph 38.7(d)(1));
harassment or adverse treatment of a male because he is considered
effeminate or insufficiently masculine (proposed paragraph 38.7(d)(2));
adverse treatment of an applicant, participant, or beneficiary of a
WIOA Title I-financially-assisted program or activity because of the
individual's actual or perceived gender identity (proposed paragraph
38.7(d)(3)); adverse treatment of an applicant to, participant in, or
beneficiary of, a WIOA Title I-financially assisted program or activity
based on sex stereotypes about caregiver responsibilities such as
assuming that a female applicant has (or will have) family caretaking
responsibilities, and that those responsibilities will interfere with
her ability to access aid, benefit, service, or training (proposed
paragraph 38.7(d)(4)); adverse treatment of a male applicant to, or
beneficiary of, a WIOA Title I-financially assisted program or activity
because he has taken, or is planning to take care of, his newborn or
recently adopted or fostered child, based on the sex-stereotyped belief
that women, and not men, should care for children (proposed paragraph
38.7(d)(5)); denying a woman access to, or otherwise subjecting her to
adverse treatment in accessing aid, benefit, service, or training,
under a WIOA Title I-financially assisted program or activity based on
the sex-stereotyped belief that women with children should not work
long hours, regardless of whether the recipient is acting out of
hostility or belief that it is acting in her or her children's best
interest (proposed paragraph 38.7(d)(6)); denying an individual access
to, or otherwise subjecting the individual to adverse treatment in
accessing aid, benefit, service, or training under a WIOA Title I-
financially assisted program or activity based on sex stereotyping
including the belief that a victim of domestic violence would disrupt
the program or activity and/or may be unable to access aid, benefits,
services, or training (proposed paragraph 38.7(d)(7)). Proposed
paragraph 38.7(d)(7) is based upon the technical assistance document
issued by the EEOC interpreting Title VII's prohibition against sex
discrimination in employment to include an individual's status as a
victim of domestic violence.\140\ The technical assistance publication
states: ``Title VII prohibits disparate treatment based on sex, which
may include treatment based on sex-based stereotypes. For example: An
employer terminates an employee after learning that she has been a
subjected to domestic violence, saying he fears the potential drama
battered women bring to the workplace.'' The EEOC publication refers to
the DOJ definition of domestic violence, which defines the term as: ``a
pattern of abusive behavior in any relationship that is used by one
partner to gain or maintain power and control over another intimate
partner. Domestic violence can be physical, sexual, emotional,
economic, or psychological actions or threats of actions that influence
another person. This includes any behaviors that intimidate,
manipulate, humiliate, isolate, frighten, terrorize, coerce, threaten,
blame, hurt, injure, or wound someone.'' \141\ CRC has drawn from this
existing EEOC interpretation in this proposed rule.
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\140\ ``Questions and Answers,'' The Application of Title VII
and the ADA to Applicants or Employees Who Experience Domestic or
Dating Violence, Sexual Assault or Stalking,'' available at: http://www.eeoc.gov/eeoc/publications/qa_domestic_violence.cfm (issued in
2013) (last accessed Feb. 2, 2015).
\141\ See DOJ Office on Violence Against Women/Domestic Violence
available at http://www.justice.gov/ovw/domestic-violence (last
accessed March 19, 2015).
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Proposed Sec. 38.7(d)(8) addresses stereotyping based on an
applicant's, participant's, or beneficiary's nonconformity with norms
about how people with the applicant's, participant's, or beneficiary's
assigned sex at birth should look, speak, and act. Proposed Sec.
38.7(d)(8) states adverse treatment of a woman applicant, participant,
or beneficiary of a WIOA Title I-financially assisted program or
activity because she does not dress or talk in a feminine manner is an
example of discrimination based on sex.
The final example in this non-exhaustive list addresses adverse
treatment that occurs because of an applicant's, participant's, or
beneficiary's nonconformity with stereotypes about a certain sex not
working in a particular job, sector, or industry.
Discrimination Prohibited Based on Pregnancy Sec. 38.8
The rule proposes a new Sec. 38.8 entitled, ``Discrimination
prohibited based on pregnancy.'' This section is intended to
incorporate an existing obligation into the current rule, i.e., that
the prohibition against sex discrimination includes discrimination
based on pregnancy, childbirth, and related medical conditions. This
new section explains that limiting or denying access to any aid,
benefit, service, or training under a WIOA Title I-financially assisted
program or activity based on an individual's pregnancy, childbirth, or
related medical conditions is sex discrimination and is thus
prohibited.
Title IX of the Education Amendments of 1972 \142\ prohibits sex
discrimination in any educational program or activity receiving federal
financial assistance, including those that are financially assisted by
WIOA Title I.\143\ Specifically, Title IX provides in part: ``No person
in the United States shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving
Federal financial assistance.'' \144\ When it enacted Title IX,
Congress was concerned with ending the ``persistent, pernicious
discrimination which [was] serving to perpetuate second-class
citizenship for American women.'' \145\ Congress wanted to provide
equal opportunity in education as a way to provide greater access to
jobs, employment security, financial security, and ending the far-
reaching effects of educational discrimination for women.\146\
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\142\ 20 U.S.C. 1681 et seq.
\143\ 20 U.S.C. 1687 (Title IX provision applicable to
vocational education and training programs).
\144\ 20 U.S.C. 1681(a).
\145\ 118 Cong. Rec. 5804 (1972) (statement of Sen. Bayh).
\146\ Emily McNee, Pregnancy Discrimination in Higher Education:
Accommodating Student Pregnancy, 20 Cardozo J. L & Gender 63 (2013).
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As far back as 1974, federal agency regulations, promulgated under
Title IX, have included pregnancy as a basis of prohibited
discrimination in programs and activities receiving Federal financial
assistance.\147\ The Department of Education's regulations
unequivocally apply Title IX's prohibition against sex discrimination
to discrimination on the basis of pregnancy and parental status,
stating: ``A recipient shall not apply any rule concerning a student's
actual or potential parental, family, or marital status which treats
students differently
[[Page 4511]]
on the basis of sex.'' \148\ Section 106.40(b) specifically provides
that a recipient must not ``discriminate against any student, or
exclude any student from its education program or activity, including
any class or extracurricular activity, on the basis of such student's
pregnancy, childbirth, false pregnancy, termination of pregnancy, or
recovery therefrom.'' The substantive provisions of DOL's Title IX
regulations at 29 CFR part 36, like those of approximately twenty other
federal agencies, were modeled on and are essentially identical to the
Department of Education's regulations.\149\ Thus, DOL's regulations
likewise prohibit discrimination based on pregnancy, childbirth, false
pregnancy, termination of pregnancy, or recovery therefrom.
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\147\ The Department of Health Education and Welfare's (HEW)
Title IX regulations at 45 FR 24128 included pregnancy as a
protected basis. HEW's regulations were adopted by the Department of
Education in 1980. 34 CFR 106.40.
\148\ 34 CFR 106.40(a).
\149\ 65 FR 52858 at 52859.
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When Congress amended Title VII in 1978 by enacting the Pregnancy
Discrimination Act (PDA), the protections against sex discrimination in
the context of employment were expanded to include protections against
discrimination based on pregnancy, childbirth, and related medical
conditions. While the PDA does not directly govern the
nondiscrimination obligations of a program or activity receiving
Federal financial assistance, the principles underlying the PDA were
built on Title IX's prohibitions against discrimination on the basis of
pregnancy and actual or potential parental status.\150\ Section 38.8
relies on both the PDA and Title IX. It is not uncommon for courts to
do so as well.\151\ Further, because there is significantly more
available jurisprudence under Title VII,\152\ courts apply the Title
VII burdens of proof to allegations of pregnancy discrimination under
Title IX.\153\
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\150\ See 123 Cong. Rec. 29662 (1977) (statement of Sen.
Cranston (D--CA)), reprinted in Legis. History of the Pregnancy
Discrimination Act of 1978, at 128 (1980).
\151\ See Chipman v. Grant County School Dist., 30 F.Supp.2d 975
(E.D. Ky. 1998) (``Although [the] language [of Title IX] is somewhat
different, its purpose is generally the same as the Pregnancy
Discrimination Act.''), citing Pfeiffer v. Marion Ctr. Area Sch.
Dist., 917 F.2d 779, 784 (3d Cir. 1990) (``regulations promulgated
pursuant to Title IX specifically apply its prohibition against
gender discrimination to discrimination on the basis of
pregnancy''); Cooper v. Rogers, Case No. 2:11-CV-964-MEF, 2012 WL
2050577, *8 (M.D. Ala. June 06, 2012).
\152\ Since the passage of Title IX, there have been fewer than
fifteen reported cases where a federal court has heard a claim of
pregnancy discrimination under Title IX. Kendra Fershee, An Act For
All Contexts: Incorporating The Pregnancy Discrimination Act Into
Title IX To Help Pregnant Students Gain And Retain Access To
Education, 39 Hofstra L. Rev. 281 (2010) citing Michelle Gough,
Parenting and Pregnant Students: An Evaluation of the Implementation
of the ``Other'' Title IX, 17 Mich. J. Gender & L. 211, 220-47
(2011).
\153\ Darien v. University of Massachusetts, 980 F. Supp. 77, 92
(D. Mass. 1997), citing Lipsett v. University of Puerto Rico, 864
F.2d 881, 897 (1st Cir. 1988) (holding claims under Title IX will be
analyzed using the Title VII burden shifting analysis in the
employment context).
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Proposed paragraph (a) of Sec. 38.8 adopts the principle set forth
in Title IX and the PDA \154\ that discrimination on the basis of sex
includes ``because of or on the basis of pregnancy, childbirth, or
related medical conditions.'' \155\ It requires that employers treat
employees and job applicants of childbearing capacity and those
affected by pregnancy, childbirth or related medical conditions the
same for all employment-related purposes as other persons not so
affected but similar in their ability or inability to work and defines
the term ``related medical conditions.'' Proposed paragraphs 38.8(a-d)
provide the following examples that may be prohibited pregnancy
discrimination: Refusing to provide aid, benefit, service, training or
employment under a WIOA Title I-financially assisted program or
activity to a pregnant individual or an individual of childbearing
capacity, or otherwise subjecting such individuals to adverse treatment
on the basis of pregnancy, related medical conditions, or childbearing
capacity; limiting an individual's access to any aid, benefit, service,
or training under a WIOA Title I-financially assisted program or
activity based on that individual's pregnancy, or requiring a doctor's
note in order for a pregnant individual to continue participation while
pregnant; and denying accommodations or modifications to a pregnant
applicant or participant who is temporarily unable to participate in a
program or activity because of pregnancy, childbirth, and/or related
medical conditions, when such accommodations or modifications are
provided to other participants who are similarly affected.\156\ Without
such accommodations, many pregnant individuals are unable to
participate in job training programs or activities. Consequently, some
pregnant individuals who need reasonable accommodations lose
opportunities to receive job training and other WIOA Title I-
financially assisted aid, benefits, services, or training to assist
them in obtaining employment.
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\154\ 42 U.S.C. 2000e(k).
\155\ The statutory term ``related medical conditions'' appears
in the PDA only.
\156\ This Pregnancy Discrimination Act obligation applies even
though ``pregnancy itself is not an impairment within the meaning of
the [Americans with Disabilities Act of 1990, 42 U.S.C. 12101 et
seq., as amended], and thus is never on its own a disability.''
EEOC, Enforcement Guidance: Pregnancy Discrimination and Related
Issues, sec. II.A (July 14, 2014) (footnote omitted), available at
http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm (last
accessed March 19, 2015). Under the ADA, accommodation is required
for qualified individuals absent undue hardship when a physical or
mental impairment (including one caused by pregnancy) substantially
limits a major life activity.
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The range of accommodations to address the temporary limitations of
a pregnant applicant, participant, or beneficiary in a WIOA Title I-
financially assisted program or activity may include simple things that
involve little or no cost, such as permitting more frequent bathroom
breaks and allowing the pregnant individual to sit down during a
training program or applications or interview process.\157\ Other
temporary limitations, however, may require a temporary light-duty
assignment to accommodate lifting or bending restrictions that a
pregnant participant or trainee may have.
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\157\ In addition, the Fair Labor Standards Act, 29 U.S.C.
Section 207(r), requires FLSA-covered employers to provide
reasonable break time for an employee to express breast milk for her
nursing child for one year after the child's birth, each time such
employee has need to express the milk. Employers are also required
to provide a place, other than a bathroom, that is shielded from
view and free from intrusion from coworkers and the public, which
may be used by an employee to express breast milk. FLSA-covered
employers with fewer than 50 employees are not subject to the FLSA
break time requirement if compliance with this provision would
impose an undue hardship by causing the employer significant
difficulty or expense when considered in relation to the size,
financial resources, nature, or structure of the employer's
business.
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Denying an alternative assignment, modified duties, or other
accommodations to a pregnant applicant, participant, or beneficiary who
is temporarily unable to perform some program or activity duties
because of pregnancy, childbirth, or a related medical condition may be
sex discrimination when such assignments, modifications, or other
accommodations are provided, or are required to be provided, by a
recipient's policy or other relevant laws, to other individuals whose
abilities to perform some of their program or activity duties are
similarly affected (proposed Sec. 38.7). Thus, for example, a recipient
that permits light-duty assignments for individuals who are unable to
perform their regular assignments due to on-the-job injuries or
disabilities may also be required to permit light-duty assignments for
individuals who are unable to perform their regular assignments due to
pregnancy. The approach set forth in the proposed rule with respect to
pregnancy accommodation is intended to align with the U.S. Supreme
Court's decision in Young v. United Parcel Serv., Inc., 135 S. Ct. 1338
(2015). Thus, in analyzing pregnancy-based sex
[[Page 4512]]
discrimination allegations that seek to show disparate treatment
related to accommodation requests by using indirect evidence, CRC will
apply the three-part analytical framework set forth by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805
(1973). Specifically with respect to demonstrating pretext, CRC will
follow the analysis described in Young, supra at 1354-55.\158\ CRC
solicits comments from the public on how best to operationalize
application of the Court's pretext analysis.
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\158\ The EEOC has issued guidance in the employment context.
See U.S. Equal Employment Opportunity Commission, Enforcement
Guidance: Pregnancy Discrimination and Related Issues (July 25,
2015), available at http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm (last accessed Sept. 24, 2015).
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Discrimination Prohibited Based on National Origin, Including Limited
English Proficiency Sec. 38.9
In an effort to facilitate consistent Federal enforcement, the NPRM
proposes adding a new section on national origin discrimination.
Proposed paragraph (a) states the existing obligation that a recipient
must not discriminate on the basis of national origin in providing any
aid, benefit, service, or training under any WIOA Title I-financially
assisted program or activity. It also explains that national origin
discrimination includes ``treating individual beneficiaries,
participants, or applicants for aid, benefit, service or training
adversely because they (or their ancestors) are from a particular
country or part of the world, because of ethnicity or accent (including
adverse treatment because they have the physical, linguistic, and
cultural characteristics closely associated with a national origin
group).''
Proposed paragraph (b) adopts the well-established principle under
Title VI of the Civil Rights Act of 1964, as amended,\159\ that
recipients of Federal financial assistance must take reasonable steps
to provide meaningful access to each LEP individual whom they serve or
encounter. This same principle has applied to recipients in their WIA
Title I-financially assisted programs and activities and likewise
applies to all recipients in their WIOA Title I financially-assisted
programs or activities. This provision reflects the fundamental
obligation of recipients to provide meaningful access to LEP
individuals, e.g., to effectively understand communications and to make
themselves understood. This paragraph provides examples of reasonable
steps: ``Reasonable steps generally may include, but are not limited
to, an assessment of an LEP individual to determine language assistance
needs; providing oral interpretation and written translation of both
hard-copy and electronic materials, in the appropriate non-English
languages to LEP individuals; or outreach to limited English proficient
communities to improve service delivery in needed languages.'' The
Department intends this to be a flexible standard that evaluates the
level, type, and manner of language services required in light of the
particular facts, such as the nature of the communication, the language
of the LEP individual, and the recipient involved.\160\ The proposed
section further provides direction regarding the application of the
term ``reasonable steps'' in the context of training programs.
``Reasonable steps to provide meaningful access to training programs
may include, but are not limited to providing: (1) Written training
materials in appropriate non-English languages by written translation
or by oral interpretation or summarization; and (2) Oral training
content in appropriate non-English languages through in-person
interpretation or telephone interpretation.''
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\159\ 42 U.S.C. 2000d et seq.
\160\ DOL LEP Guidance, 68 FR 32293-32295 (describing the
factors recipients should consider, and the factors that CRC will
consider, in determining the extent of recipients' obligations to
LEP individuals).
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The proposed language provides familiarity and consistency for
recipients about the scope of their obligations. It is particularly
critical that LEP individuals be provided meaningful access to
information in the context of access to any aid, benefit, service, and/
or training, because that information--including, for example, how to
apply for unemployment insurance benefits, how to appeal a denial of
benefits, how to apply for and participate in job training and
employment opportunities--is often essential to ensure beneficiaries'
access to necessary employment-related opportunities.
Additionally, the NPRM proposes adding paragraphs (c) through (i),
which specify the actions recipients must take to ensure language
access. Proposed paragraph (c) makes clear that a recipient should
ensure that every program delivery avenue, including electronic, in
person, and/or telephonic communication, conveys in the appropriate
languages how an individual can effectively learn about, participate
in, and/or access any aid, benefit service or training that the
recipient provides. This provision would ensure that, as recipients
convert to on-line delivery systems, language access is not lost in the
transition.
Paragraph (d) specifies that any language assistance services
whether oral interpretation or written translation, must be provided
free of charge and in a timely manner.\161\ Consistent with the
approach in the Department's LEP Guidance that there is no one
definition for ``timely'' that applies to every type of interaction
with every type of recipient at all times, CRC declines to define
``timely'' for the purposes of this section. A determination of whether
language assistance services are timely will depend on the specific
circumstances of each case. However, CRC echoes the LEP Guidance's
recognition that language assistance is timely when it is provided at a
time and place that avoids the effective denial of or imposition of an
undue burden on or delay in important aid, benefits, services, or
training to LEP individuals.\162\
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\161\ This principle is consistent with long-standing concepts
reflected in the DOL LEP Guidance. See 68 FR at 32297 (with respect
to privacy), 32296 (with respect to timeliness), and 32300 (with
respect to services free of charge).
\162\ Id. at 47316.
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Paragraph (e) states that a recipient must provide adequate notice
to LEP individuals of the existence of interpretation and translation
services and that they are free of charge. The provision would ensure
that LEP individuals are aware that they do not have to navigate the
workforce system unassisted.
Paragraph (f) identifies restrictions on the use of certain persons
to provide language assistance services for an LEP individual. This
paragraph applies regardless of the appropriate level, type, or manner
of language assistance services a recipient is required to provide.
Based upon the CRC's experience, the use of incompetent or ad hoc
interpreters, such as family members, including children, and friends,
is not uncommon and can have negative consequences if the
interpretation is not accurate. Thus, proposed paragraph (f) prohibits
a recipient from requiring an LEP individual to provide his/her own
interpreter. Proposed paragraphs (f)(1)-(2), however, identify narrow
and finite situations in which a recipient may rely on an adult
accompanying an LEP individual to interpret. Proposed paragraph
(f)(2)(i) provides that an LEP individual's minor child or adult family
or friend(s) may interpret or facilitate communication in emergency
situations while awaiting a qualified interpreter. Proposed paragraph
(f)(2)(ii) states that an accompanying adult may interpret or
[[Page 4513]]
facilitate communication when the information conveyed is of minimal
importance to the services to be provided or when the LEP individual
requests that the accompanying adult provide language assistance, the
adult agrees, and reliance on that adult is appropriate. If the LEP
individual voluntarily chooses to provide their own interpreter, a
recipient must make and retain a record of the individual's decision to
use their own interpreter. This provision allows the LEP individual to
rely on an adult of their own choosing, but requires that the recipient
document that choice so that there can be no question regarding the
voluntariness of the choice of interpreter. Proposed paragraph (f)(3)
outlines that when precise, complete, and accurate interpretations or
translation of information and/or testimony are critical for
adjudicatory or legal reasons, or where the competency of the LEP
person's interpreter is not established, a recipient may decide to
provide its own, independent interpreter, even if an LEP individual
wants to use their own interpreter as well.
Paragraph (g) addresses recipients' LEP requirements as to vital
information. Paragraph (g)(1) provides that, for languages spoken by a
significant number or portion of the population eligible to be served
or likely to be encountered, recipients must translate vital
information in written materials into these languages and make the
translations readily available in hard copy, upon request, or
electronically such as on a Web site. Written training materials
offered or used within employment-related training programs as defined
under Sec. 38.4(t) are excluded from these translation requirements.
The Department is cognizant of the challenge posed by translating the
variety of training materials into so many languages as may be
necessary in an employment-related training program. The vital
information these materials contain can be provided to LEP participants
by oral interpretation or summarization during the training program
itself. However, recipients must still take reasonable steps to ensure
meaningful access to training programs as stated in (b) of this
section. Reasonable steps to ensure meaningful access for LEP
individuals to employment-related training programs may include
offering courses such as English as a Second Language (ESL) to the
individual concurrent with the training program, or enrollment in such
a program to attain a sufficient level of English proficiency to become
eligible for a specific job or training program. Importantly, whenever
possible, the LEP individual's access to the training program, and thus
any resulting employment opportunity, should not be delayed by
enrollment in an ESL course.
Paragraph (g)(2) states: ``For languages not spoken by a
significant number or portion of the population eligible to be served,
or likely to be encountered, a recipient must make reasonable steps to
meet the particularized language needs of LEP individuals who seek to
learn about, participate in, and/or access the aid, benefit, service or
training that the recipient provides. Vital information may be conveyed
orally if not translated.'' For these languages, recipients are not
obligated to provide written translations of vital information in
advance of a request by an LEP individual. Recipients are, however,
required to take reasonable steps, including oral translation, to
provide access to vital information. Paragraph (g)(3) states that
recipients must include a ``Babel notice'' indicating that language
assistance is available, in all communications of vital information,
such as hard-copy letters or decisions or those communications posted
on Web sites. This requirement would ensure that LEP individuals know
how to obtain language assistance for vital information that has not
been translated into the LEP individual's preferred, non-English
language.
Paragraph (h) addresses the situation in which a recipient becomes
aware of the particularized language needs of an individual. The
proposed provision states: ``To the extent otherwise required by this
part, once a recipient becomes aware of the non-English preferred
language of an LEP beneficiary, participant, or applicant for aid,
benefit, service or training, the recipient must convey vital
information in that language.'' This obligation to provide meaningful
access as soon as the entity becomes aware that the individual is LEP
exists regardless of whether the LEP individual's language is spoken by
a significant number or portion of the population to be served.
Paragraph (i) provides that recipients should develop a written
language access plan to ensure LEP individuals have meaningful access
to their programs and activities and references Appendix A of this part
where the Department has provided guidance to recipients on developing
a language access plan.
In evaluating the scope of a recipient's obligations to provide
meaningful access, recipients should, and CRC proposes to, give
substantial weight to the nature and importance of the program or
activity, including the particular communication at issue, in
determining the appropriate level, type and manner of language
assistance services to be provided. At the same time, CRC recognizes
that a recipient's operations and capacity may be relevant in
evaluating the level, type, and manner of language assistance services
it is required to provide. Thus, recipients may also consider the
proportion of LEP individuals of a particular language group eligible
to be served or likely to be encountered by the recipient; the
frequency of contacts between LEP individuals who speak that language
and the recipient's program or activity; \163\ and the resources
available to the recipient and the costs of language assistance
services. Importantly, while these criteria may be used in an
assessment of how, and at what level, language assistance services must
be provided, they are not intended to relieve a recipient of its core
obligation to take reasonable steps to enable LEP individuals to gain
meaningful access to its programs and activities.
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\163\ As described in the DOL LEP Guidance, the first and second
factors evaluate the proportion of LEP individuals in the relevant
area and the frequency of the recipient's contact with those
individuals. Further explanatory material in the Guidance makes
clear, however, that the focus of the inquiry should be on the
proportion of individuals in, and frequency of contact with,
speakers of a particular language group, not all LEP individuals.
CRC intends for recipients to apply the criteria to this narrower
group of LEP individuals.
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For instance, a recipient may choose to consider whether the
preferred language of an LEP individual is one that is frequently
spoken or one that the recipient only rarely encounters. In the latter
circumstance, and depending on the importance of the communication at
issue, the recipient might satisfy the requirements of Section 188 and
this proposed part by providing an oral summary of the information
rather than a written translation. Given the widespread commercial
availability of relatively low-cost language assistance services such
as remote oral interpretation, as well as the nature and importance of
covered entities' employment-related programs or activities, CRC
expects that most recipients will, at a minimum, have the capacity to
provide LEP individuals with remote oral interpretation via telephone.
Recipients may not use their analysis of these various factors as a
defense or excuse for providing language assistance services in an
untimely manner. CRC recognizes that a recipient may wish to conduct
thorough assessments of its language assistance needs and
[[Page 4514]]
comprehensively create the operational infrastructure to execute a
variety of high quality language assistance services. CRC urges
recipients to pursue such high standards and to create language access
plans that will identify in advance the types and levels of services
that will be provided in each of the contexts in which the recipient
entity encounters LEP individuals. At the same time, the pursuit of
such goals cannot come at the expense of failing to provide language
assistance services at all or in an untimely manner if such services
are reasonable steps to provide meaningful access. Recipients should
consider how they can ensure that language assistance services are
available in their programs and activities as they simultaneously
conduct further language needs assessments or improve their operational
capacities to provide effective language assistance services.
The Department acknowledges that its LEP guidance long has employed
``four factors'' when assessing a recipient's compliance with its
obligation to provide meaningful access.\164\ This proposal does not
include them in the regulatory text because the obligation of a
recipient is to provide meaningful access in the form of language
assistance of some type. Recipients should, and CRC will, review each
situation based on the facts presented. Thus, the Department does not
want to impose a formulaic analysis that would detract from the primary
weight to be placed on the nature and importance of the program or
activity. The Department seeks comment on this approach, particularly
whether the four factors should instead be incorporated into the
regulatory text, whether the weight to be accorded the ``nature and
importance'' factor is appropriate, and whether there are additional
factors that should be part of the analysis.
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\164\ See 68 FR 32293-32295.
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The DOL LEP Guidance issued in 2003 did not specifically define
what constitutes a ``significant number or proportion of the eligible
service population.'' To provide the regulated community with more
direction, the Department is considering a regulatory scheme requiring
recipients to provide a range of language assistance services in the
non-English languages spoken by state-wide populations with limited
English proficiency that meet defined thresholds. Such thresholds would
address the requirements for written translation of vital documents and
Web site content. For instance, CRC is considering thresholds
triggering a requirement to translate standardized vital documents
based upon the number of languages (e.g., top ten languages spoken by
LEP individuals); percentage of language speakers (e.g., languages
spoken by at least 5% of LEP individuals); the number of language
speakers (e.g., languages spoken by at least 1,000 LEP individuals);
and composite thresholds combining these approaches, e.g., language
spoken by at least 5% of LEP individuals or 1,000 LEP individuals,
whichever is lower.
The Department seeks comment on what thresholds, if any, should be
required, and to what geographic areas or service areas, State-level or
lower, the threshold should apply. If thresholds should be required,
CRC seeks comment on the time that should be allowed for recipients to
come into compliance with the threshold, including whether this
regulation should permit recipients to implement their obligations with
a phased-in approach. CRC is also seeking comment on other
methodologies for formulating language access thresholds regarding
written materials containing vital information that would result in
meaningful access for individuals regardless of national origin, while
being mindful of the potential burden on recipients.
These concepts are broadly recognized as essential components of an
effective language assistance plan for LEP individuals. Recipients
should be familiar with these concepts, as they are contained in the
DOL LEP Guidance that was issued in 2003 and various guidance documents
issued by the Department of Justice.\165\
Although the requirement that recipients take reasonable steps to
provide meaningful access for LEP individuals to access and participate
in WIOA Title I-financially assisted programs and activities is not
new, the CRC has received feedback from EO Officers and others that
achieving compliance with these requirements has been difficult in part
because of the resources necessary and the need for guidance about
implementation. Thus, the Department recognizes that there is a need
for additional technical assistance to assist recipients in achieving
compliance with their language access requirements. The CRC, along with
the Employment and Training Administration, is committed to providing
the necessary technical assistance and guidance to the field in the
years immediately following the effective date of the final rule
containing these provisions.
Harassment Prohibited Sec. 38.10
This rule proposes a new Sec. 38.10 to provide additional
direction for an existing obligation. Harassment is a form of
discrimination that currently is prohibited under WIA and Section 188.
Courts have recognized for many years that harassment on the basis of
race, color, religion, sex, or national origin, including the existence
of a work environment that is hostile to members of one race, color,
religion, sex, or national origin, may give rise to a violation of
Title VII.\166\ Despite this longstanding precedent, current part 38
does not include any references to harassment. Proposed Sec. 38.10
remedies this omission.
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\166\ Harris v. Forklift Sys., 510 U.S. 17 (1993) (harassment
based on sex); Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)
(sex); Daniels v. Essex Group, Inc., 937 F.2d 1264, 1274 (7th Cir.
1991) (race); Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977) (sex);
Rogers v. Western-Southern Life Ins. Co., 792 F. Supp. 628 (E.D.
Wis. 1992) (race); Moore v. Secretary of Defense, Army and Air Force
Exchange, E.E.O.C. Appeal No. 01933575, 1994 WL 1754483 at *1 (Mar.
16 1994) (religion). See also U.S. Equal Employment Opportunity
Commission Guidelines on Discrimination Because of Sex, 41 CFR
1604.11 (1980) (provision on harassment).
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Harassment on the basis of race, color, religion, sex, national
origin, age, disability, political affiliation or belief, and for
beneficiaries, applicants, and participants only, citizenship status or
participation, that occurs in WIOA Title I-financially assisted
programs and activities may give rise to a violation of WIOA Section
188 and this part. This new section provides recipients with direction
concerning the conduct that may constitute unlawful harassment so that
they may better prevent, identify, and remedy it.
Proposed paragraphs 38.10(a)(1)-(3) describe situations in which
unlawful harassment may exist under WIOA and this part. Unwelcome
sexual advances, requests for sexual favors, or offensive remarks may
constitute unlawful harassment when: Submission to such conduct is made
explicitly or implicitly a term or condition of accessing the aid,
benefits, services, training or employment (proposed paragraph
38.10(a)(1)); submission to or rejection of such conduct is used as the
basis for limiting that person's access to any aid, benefits, services,
training or employment (proposed paragraph 38.10(a)(2)); or such
conduct has the purpose or effect of unreasonably interfering with an
individual's participation in a WIOA Title I-financially assisted
program or activity, creating an intimidating, hostile or offensive
program or activity environment (proposed paragraph 38.10(a)(3)). This
language mirrors provisions of EEOC's Guidelines on Discrimination
Because of Sex \167\ and
[[Page 4515]]
OFCCP's proposed rule addressing Discrimination Based on Sex \168\
relating to sexual harassment, but also addresses harassment based on
any of the other protected bases covered by this part. These provisions
are also consistent with established case law holding that isolated or
stray remarks generally cannot form the basis of a harassment claim.
The harassment, to be unlawful, must create a hostile or offensive
program environment.\169\
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\167\ See 29 CFR 1604.11(a).
\168\ See 80 FR 5279, January 30, 2015.
\169\ See Price Waterhouse v. Hopkins, 490 U.S. 228, 277-78
(1989); Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998);
Caver v. City of Trenton, 420 F.3d 243 (3d Cir. 2005); Jordan v.
Alternative Res. Corp., 458 F.3d 332, 340-44 (4th Cir. 2006);
Herrera v. Lufkin Indus., Inc., 474 F.3d 675, 680 (10th Cir. 2007);
Morales-Cruz v. Univ. of Puerto Rico, 676 F.3d 220, 226 (1st Cir.
2012).
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Proposed paragraph Sec. 38.10(b) defines harassment because of sex
under WIOA broadly to include sexual harassment (including harassment
based on gender identity and failure to comport with sex stereotypes),
harassment based on pregnancy, childbirth, or related medical
conditions, and harassment that is not sexual in nature but is because
of sex (including harassment based on gender identity or failure to
comport with sex stereotypes), or where one sex is targeted for the
harassment. This aligns the meaning of ``because of sex'' for purposes
of sexual harassment with its meaning under current Title VII law.
Discrimination Prohibited Based on Citizenship Status Sec. 38.11
This NPRM adds a new Sec. 38.11 titled ``Discrimination prohibited
based on citizenship status'' to provide additional direction to
recipients regarding the protections certain noncitizens have from
discrimination based on their citizenship status. Please note that
other statutes and regulations may define citizenship discrimination
differently than it is defined for the purposes of this NPRM.
The new language assists recipients in identifying citizenship-
based discrimination as treating individual beneficiaries, applicants,
and participants, adversely because of their status as U.S. citizens or
nationals of the U.S., lawful permanent residents, refugees, asylees,
and parolees or other immigrants authorized by the Secretary of
Homeland Security or his or her designee to work in the U.S. Although
Section 188(a)(5) refers to immigrants authorized ``by the Attorney
General'' to work in the U.S., Congress transferred that authority from
the Attorney General to the Secretary of Homeland Security in the
Homeland Security Act of 2002.\170\ The new text regarding Section
188(a)(5) reflects the transfer of noncitizen work authorization
authority to the Secretary of Homeland Security and specifies that a
recipient's maintenance or use of policies or procedures that have the
effect of discriminating on the basis of citizenship status is also
prohibited by Section 188 and this part.
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\170\ See Homeland Security Act of 2002, Public Law 107-296, 8
U.S.C. 1103(a)(1). Section 1517 of the Homeland Security Act
(codified at 6 U.S.C. 557) provides that a reference in any other
Federal law to any function transferred by the Act ``and exercised
on or after the effective date of the Act'' shall refer to the
Secretary of Homeland Security or other official or component of DHS
to whom that function is transferred. See also Clark v. Martinez,
543 U.S. 371, 374 n.1 (2005) (noting that, with limited exception,
the immigration authorities previously exercised by the Attorney
General and the former Immigration and Naturalization Service ``now
reside in the Secretary of Homeland Security'' and the Department of
Homeland Security).
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Discrimination Prohibited Based on Disability Sec. 38.12
This NPRM revises the title of Sec. 38.7 to ``Discrimination
prohibited based on disability'' and makes minor changes to this
section. This rule retains much of the language from the current part
38 section and proposes adding paragraph Sec. 38.12(p) to address
claims of no disability. The proposed paragraph states that nothing in
this part provides the basis for a claim that an individual without a
disability was subject to discrimination because of a lack of
disability, including a claim that an individual with a disability was
granted auxiliary aids or services, reasonable modifications, or
reasonable accommodations that were denied to an individual without a
disability. This new subsection incorporates the ADAAA's prohibition on
claims of discrimination because of an individual's lack of disability.
The ADAAA expressly prohibits claims that ``an individual without a
disability was subject to discrimination because of the lack of
disability.'' \171\
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\171\ 42 U.S.C.12201(g).
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Accessibility Requirements Sec. 38.13
This rule adds a new Sec. 38.13 titled ``Physical and programmatic
accessibility requirements'' to address the new emphasis Congress has
placed on ensuring programmatic and physical accessibility to WIOA
Title I-financially assisted service, program or activity. In no less
than ten provisions of Title I of WIOA, Congress referred to
recipients' obligation to make WIOA Title I-financially assisted
programs and activities accessible.\172\
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\172\ Id.
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Proposed paragraph (a) addresses physical accessibility
requirements and proposed paragraph (b) addresses programmatic
accessibility requirements. Proposed paragraph (a) states the physical
accessibility requirements for existing facilities, as well as those
for new construction or alterations under Title II of the ADA.
Recipients that receive federal financial assistance are also
responsible for meeting their accessibility obligations under Section
504. Proposed paragraph (b) describes the obligations of recipients to
ensure programmatic accessibility to WIOA Title I-financially assisted
programs and activities for individuals with disabilities. Congress
included this description of how to achieve programmatic accessibility
in 2005 in the context of considering amendments to WIA in an effort to
improve accessibility to the workforce development system for
individuals with disabilities.\173\ Therefore, the Department proposes
to include it here. The Department welcomes comments on this section.
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\173\ Sen Rep. 109-134 109th Congress, 1st Section, Workforce
Investment Act Amendments of 2005 (September 7, 2005) p. 11, 2005 WL
2250857 at *11.
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Reasonable Accommodations and Reasonable Modifications for Individuals
With Disabilities Sec. 38.14
The title of Sec. 38.14 is revised to ``Reasonable accommodations
and reasonable modifications for individuals with disabilities.'' The
section retains the existing text from Sec. 38.8.
Communications With Individuals With Disabilities Sec. 38.15
The title of proposed Sec. 38.15 revises the Sec. 38.9 title to
read as follows, ``Communications with individuals with disabilities''
and proposes revised text for paragraph (a) and (b) of Sec. 38.15 to
be consistent with DOJ's ADA Title II proposed regulations, which have
been updated since the current WIA regulations were promulgated in
1999. These changes provide that the communication requirements apply
to beneficiaries, registrants, applicants, participants, members of the
public and companions with disabilities. If the DOJ changes its
proposal in its final rule implementing ADA Titles II and III, the
Department will review those changes to determine their impact on this
proposal and take appropriate action.
This rule proposes a new subparagraph (a)(5) addressing the
obligation that recipients currently have, under Sec. 38.9 and this
proposed section, as well as the ADA, to take appropriate steps to
ensure that
[[Page 4516]]
communications with individuals with disabilities are as effective as
communications with others. This responsibility includes, for example,
the provision of auxiliary aids and services to afford an individual
with a disability an equal opportunity to participate in, and enjoy the
benefits of, a service, program or activity.\174\ Thus, the proposed
language states that when developing, procuring, maintaining, or using
electronic and information technology, a recipient must utilize
electronic and information technologies, applications, or adaptations
which incorporate accessibility features for individuals with
disabilities in order to achieve the goal of equally effective
communication.
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\174\ 28 CFR 35.160(b)(1).
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The section defines the term ``companion'' for the purposes of this
part and provides detailed descriptions of requirements for
telecommunications in subpart (b) and communications of information and
signage in subpart (c). It also explains the limitations of fundamental
alterations in subpart (d), i.e., that a recipient is not required to
take action that it can demonstrate would result in a fundamental
alteration in the nature of a service, program or activity. CRC has
drawn these provisions from the ADA Title II regulations to ensure that
recipients' responsibilities under this part are consistent with those
under the ADA.
Service Animals Sec. 38.16
This NPRM adds a new Sec. 38.16 entitled ``Service animals'' to
provide direction to recipients regarding their obligation to modify
their policies, practices or procedures to permit the use of a service
animal by an individual with a disability. This proposed section tracks
the ADA Title II regulations issued by the DOJ found at 28 CFR part
35.136 because applicants, beneficiaries of and participants in WIOA
Title I financially-assisted programs include individuals with
disabilities with service animals. The Department's discussions with
recipients' EO Officers demonstrate that there has been some confusion
on the part of recipients as to what constitutes a service animal and
what constitutes a pet. This section is intended to resolve that
confusion. This provision as to service animals is also in direct
response to the inclusion of disability accessibility obligations
throughout Title I of WIOA.\175\
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\175\ See, e.g., WIOA sections 102(b)(2)(C)(vii);
102(b)(2)(E)(vi); 107(b)(4)(iii). The EEOC has not addressed whether
or not this definition would apply to employers and employment
agencies covered under Title I of the ADA or Section 501 of the
Rehabilitation Act.
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Mobility Aids and Devices Sec. 38.17
This NPRM adds a new Sec. 38.17 entitled ``Mobility aids and
devices'' to provide direction to recipients regarding the use of
wheelchairs and manually-powered mobility aids by program participants
and employees. This language is taken from the DOJ ADA Title II
regulations at 28 CFR 35.137. This new section is being added in direct
response to the inclusion of disability accessibility obligations
throughout Title I of WIOA.\176\
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\176\ See, e.g., WIOA sections 102(b)(2)(C)(vii);
102(b)(2)(E)(vi); 107(b)(4)(iii).
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Employment Practices Covered Sec. 38.18
The NPRM proposes to change the title of Sec. 38.10 to
``Employment practices covered'' and makes minor changes to section (a)
that only restructures the introductory language to read ``It is an
unlawful employment practice to discriminate on the basis of race,
color, religion, sex (including pregnancy, childbirth, and related
medical conditions, transgender status, and gender identity), national
origin, age, disability, or political affiliation or belief in the
administration of, or in connection with. . . .'' The word ``basis'' is
included instead of ``ground.'' Consistent with existing law, the
Department proposes to add a parenthetical to define the scope of the
sex discrimination prohibition to include: Pregnancy, child birth,
related medical conditions, transgender status, and gender identity.
Intimidation and Retaliation Prohibited Sec. 38.19; Administration of
This Part Sec. 38.20; Interpretations of This Part Sec. 38.21;
Delegation of Administration and Interpretation This Part Sec. 38.22
This rule proposes revising only the titles and section numbers of
the following sections: Sec. 38.11 to Sec. 38.19, ``Intimidation and
retaliation prohibited;'' Sec. 38.12 to Sec. 38.20, ``Administration
of this part,'' Sec. 38.21, ``Interpretations of this part,'' and
Sec. 38.22, Delegation of the administration and interpretation of
this part.''
Coordination With Other Agencies Sec. 38.23
This rule revises the title and number for Sec. 38.15,
``Coordination with other agencies.''
Effect on Other Laws and Policies Sec. 38.24
The proposed rule includes a new title and section number for Sec.
38.16, of Sec. 38.23, ``Effect on other laws and policies'' and one
minor change. In paragraph (a), CRC proposes to change ``ground'' to
``basis.''
Subpart B--Recordkeeping and Other Affirmative Obligations of
Recipients
In describing the recordkeeping and other affirmative obligations
that recipients must meet in order to comply with the nondiscrimination
and equal opportunity provisions of WIOA and this part, the Department
proposes to set forth several changes to the role of the Equal
Opportunity Officer and the responsibilities of recipients previously
set forth in the counterpart provisions of WIA and current part 38.
A Grant Applicant's Obligation To Provide a Written Assurance Sec.
38.25
Proposed Sec. 38.25 generally contains the same requirements as
Sec. 38.20 with some revisions and new requirements for grant
applicants. This rule proposes revising the title for this section to,
``A grant applicant's obligation to provide a written assurance.''
Proposed Sec. 38.25(a)(1) emphasizes an existing obligation that, as a
condition of an award of financial assistance under Title I of WIOA, a
grant applicant assures that it ``has the ability to comply with the
nondiscrimination and equal opportunity provisions of the following
laws and will remain in compliance for the duration of the award of
federal financial assistance.'' The existing part 38 rule does not
explain that this requirement applies for the duration of the award.
This new language makes explicit the existing continuing obligation for
grant applicants and is intended to better effectuate compliance. The
Department's experience is that when a grant applicant fully
understands its legal obligations at the outset of the grant
application process, there is greater compliance and greater
transparency between the Department and grant applicants that become
recipients.
Duration and Scope of Assurance Sec. 38.26 and Covenants Sec. 38.27
Proposed Sec. 38.26 and Sec. 38.27 retain the exact language of
Sec. 38.21 and Sec. 38.22, respectively, with the exception of
section headings. This rule proposes as the heading for Sec. 38.21,
``Duration and scope of the assurance,'' rather than the current
heading of Sec. 38.21. This rule also proposes as the heading for
Sec. 38.26, ``Covenants,'' rather than the heading of Sec. 38.22.
Designation of Equal Opportunity Officer Sec. 38.28
Proposed Sec. 38.28 makes significant changes to current Sec.
38.23. This rule proposes changing the title of Sec. 38.23 to,
[[Page 4517]]
``Designation of Equal Opportunity Officer.'' All states currently have
at least one EO Officer who coordinates the Governor's equal
opportunity and nondiscrimination requirements, so this provision
formalizes an existing practice. This change is intended to address
feedback from EO Officers at the State level that they lack sufficient
authority to carry out their responsibilities. The rule also proposes
that the Governor is responsible for making that designation, to avoid
confusion about who is authorized to designate the EO Officer for the
Governor at the State level and in the Governor's role as a recipient.
Under the current rule at Sec. 38.27, every recipient, including
Governors in their capacity as recipients, is required to designate an
EO Officer. Proposed paragraph (a) requires the Governor to designate a
State level EO Officer who reports directly to the Governor. Proposed
Sec. 38.27(a) would also require that the State level EO Officer have
sufficient staff and resources to carry out the requirements of this
section. Within each state, the Governor is a unique recipient because
the State is responsible for disseminating WIOA Title I funds. As a
recipient, the Governor must designate an EO Officer like all other
recipients; however, the State level EO Officer has distinct
responsibilities for coordinating compliance with the nondiscrimination
and equal opportunity provisions in WIOA and this part, throughout the
State, as described in the Nondiscrimination Plan, formerly the Methods
of Administration. Requiring the Governor to designate a State level EO
Officer and imbuing that Officer with the requisite authority is
intended to address the concerns raised to the Department by the EO
Officers.
EO Officers at the recipient level also have reported to CRC staff
that they have neither the staff nor the resources to carry out their
responsibilities, including investigating complaints, and conducting
necessary monitoring of nondiscrimination policies as required in their
Nondiscrimination Plans. Thus, proposed Sec. 38.28(b) provides that EO
Officers at the recipient level be provided with resources sufficient
to carry out the requirements of this part. The changes made to this
section are intended to ensure that the EO officers at all levels are
able to fulfill their responsibilities.
Recipient Obligations Regarding Its Equal Opportunity Officer Sec.
38.29
The NPRM proposes moving existing Sec. 38.26 to proposed Sec.
38.29. The rule proposes as a new title, ``Recipient obligations
regarding its Equal Opportunity Officer.'' This section is moved up in
the subpart to elevate the importance of the recipient's
responsibilities regarding its EO Officer. This section, together with
Sec. Sec. 38.29 and 38.30, describes the obligations of all recipients
as to their EO Officers. Thus, these provisions also apply to the EO
Officers designated by the Governors in their role as recipients, as
well as to the State level EO Officer that the Governor must designate
to coordinate statewide compliance pursuant to proposed Sec. 38.27(a).
In addition, proposed Sec. 38.29 adds a new paragraph (a)
retaining the existing obligation in Sec. 38.29, consistent with the
language about the EO Officer in Sec. 38.28, that the EO Officer of
recipients be a senior level employee. The rule proposes a new
provision requiring the recipient's EO Officer to report directly to
the Chief Executive Officer, Chief Operating Officer, or equivalent
top-level official. In response to the feedback from EO Officers
described above, the rule proposes this change to ensure that EO
Officers have the authority they need to complete their
responsibilities. Proposed paragraph (b) of this section adds a
requirement that the recipient designate an EO Officer who can fulfill
the responsibilities of an EO Officer as described in Sec. 38.29. This
provision was added to ensure that recipients' designated EO Officers
have the knowledge, skills and abilities to comply with their
obligations under this part.
Requisite Skill and Authority of Equal Opportunity Officer Sec. 38.30
This rule proposes a new title for Sec. 38.24 to ``Requisite skill
and authority of Equal Opportunity Officer'' and a new paragraph
section number 38.30. This proposed rule adds language to the existing
provisions in this section that is consistent with the other sections
in this subpart addressing the EO Officer's skills and authority. The
proposed provision explains that the EO Officer must be a senior level
employee of the recipient who possesses the knowledge, skills, and
abilities necessary to carry out the responsibilities of the role as
described in this subpart. This provision is intended to emphasize the
level of authority that recipients must give to the Equal Opportunity
Officer and the importance that the recipient places on the role of the
EO officer in effecting compliance with Section 188 and this part. Much
(though by no means all) of the responsibility for a recipient's
nondiscrimination and equal opportunity program rests on the shoulders
of the EO Officer. While the proposed regulatory text is new, the
Department recognized the importance of the EO Officer role when it
issued the WIA Section 188 regulations in 1999. As stated in that
preamble:
CRC's experience has demonstrated that in order for such
programs to function fairly and effectively, the EO Officer must be
a senior-level employee whose responsibilities in the position
present no conflicts of interest with his or her other
responsibilities. In addition, the recipient must establish clear
lines of authority and accountability for the program, and must
provide the EO Officer with appropriate levels of support.\177\
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\177\ Implementation of the Nondiscrimination and Equal
Opportunity Provisions of the Workforce Investment Act of 1998
(WIA), 64 FR 61692 at 61702 (November 12, 1999), Section-by-Section
Analysis, discussion of Sec. Sec. 37.24-25.
Equal Opportunity Officer Responsibilities Sec. 38.31
The proposed rule has a new title and section number for current
Sec. 38.25, ``Equal Opportunity Officer responsibilities.'' Section
38.31 proposes new language in paragraph (d) specifying that the EO
Officer's obligation to develop and publish the recipient's procedures
for processing discrimination complaints includes development of
procedures for investigating, resolving, and tracking complaints filed
against the recipient and making available to the public, in
appropriate languages and formats, the procedures for filing a
complaint. These additions are intended to provide consistency in the
processing of complaints and increase efficiency through the use of
standardized procedures for processing discrimination complaints. The
provision also reiterates existing responsibilities of recipients,
including Governors, in this part of this section.
Proposed paragraph (e) adds to the EO Officer's responsibilities an
outreach and education requirement, which recipients are already
required to undertake pursuant to Sec. 38.40. This proposal is
intended to ensure that specific individuals are charged with carrying
out this mandate. Further, as the recipient's employee who is most
familiar with equal opportunity and nondiscrimination requirements, the
EO Officer is likely to be best suited to conduct such outreach. The
required outreach and education includes activities such as community
presentations to groups who may benefit from the recipient's covered
programs, and outreach to advise current and potential beneficiaries of
their rights and recipient obligations under this part. CRC believes
that the EO Officers, who serve in the recipient's
[[Page 4518]]
communities, will be in the best position to identify and implement the
most effective means of outreach and education for their community. In
addition, the rule proposes deleting Sec. 38.25(e), which addresses
reporting lines of authority for the Equal Opportunity Officer, because
it is addressed in Sec. 38.29(a).
Finally, this rule proposes language in paragraph (f) clarifying
that the existing training obligation for the EO Officer includes EO
Officer staff training. EO Officers report that they are unable to
attend trainings for budgetary reasons. This rule adds the reference to
staff training to put recipients on notice that they must permit their
EO Officers and staff to participate in such training.
Small Recipient Equal Opportunity Officer Obligations Sec. 38.32
The NPRM proposes changing the title of Sec. 38.27 to ``Small
recipient Equal Opportunity Obligations'' and the section number to
38.32. It also replaces the word ``developing'' with ``adopting''
because small recipients may not be required to develop complaint
procedures and process complaints. Governors have the discretion to
prescribe the complaint processing procedures applicable to small
recipients pursuant to Sec. 38.73.
Service Provider Equal Opportunity Officer Obligations Sec. 38.33
The NPRM changes the title of Sec. 38.28 to ``Service provider
Equal Opportunity Officer obligations,'' and renumbers it as Sec.
38.33.
Notice and Communication
Recipients' Obligations To Disseminate Equal Opportunity Notice Sec.
38.34
Proposed Sec. 38.34 retains the language from current Sec. 38.29
and makes clear in minor revisions to subparagraphs (a)(6) and (b) that
recipients have an existing obligation to take appropriate steps to
ensure that communications with individuals with disabilities are as
effective as communications with others and that the Equal Opportunity
notice is provided in appropriate languages to ensure meaningful access
for LEP individuals. This proposed section contains appropriate cross-
references to Sec. 38.9, that addresses recipients' obligation to
provide translations for LEP populations.
Equal Opportunity Notice/Poster Sec. 38.35
The proposed new title for Sec. 38.30 is ``Equal opportunity
notice/poster'' and the new section number is 38.35. The title change
in this section is important because the rule adds ``poster,'' an
explicit requirement of this section. The rule also proposes language
that ``sex'' as a prohibited basis for discrimination includes
pregnancy, child birth, or related medical conditions, sex
stereotyping, transgender status, and gender identity and ``national
origin'' includes LEP to be consistent with current law and serves to
remind beneficiaries that discrimination based on these subcategories
is prohibited. The NPRM also proposes language in the poster stating
that the CRC will accept complaints via U.S. Mail and email at an
address provided on the CRC's Web site.\178\
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\178\ http://www.dol.gov/crc.
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Recipients' Obligations To Publish Equal Opportunity Notice Sec. 38.36
The NPRM proposes revising the title of Sec. 38.31 to
``Recipients' obligations to publish equal opportunity notice'' and the
section number to 38.36. The proposal retains the language in paragraph
(a)(1) of this section that the Equal Opportunity Notice be posted
prominently in reasonable numbers and places, and adds that the notice
must also be posted in available and conspicuous physical locations as
well as the recipient's Web site pages. These additions reflect the
current widespread use of Web site pages to convey program and
employment information. The reference to available and conspicuous
places is intended to ensure that the notice will be posted in places
to which employees, beneficiaries and program participants have access
and in places where the notice is easily visible. Similarly, the
proposal retains language in paragraph (a)(3) stating that the notice
must be included in employee and participant handbooks, and includes a
new reference to electronic forms to account for their current
widespread use. Proposed paragraph (a)(4) is updated so that the notice
must be made a part of each participant's and employee's electronic and
paper file, if one of each is kept.
The above-proposed changes provide that these notice obligations
apply to both employees and participants because employees of
recipients are also protected under this part. Previously, this section
only applied the notice requirement to participants.
Similarly, proposed changes to paragraph (b) of Sec. 38.36 require
that this notice must be provided in appropriate formats for
registrants, applicants, eligible applicants/registrants, applicants
for employment and employees and participants with visual impairments.
The prior rule at Sec. 37.31(b), due to oversight or error, only
required that notice in an accessible format be provided to
participants. This rule expands the categories of individuals for whom
notice must be provided in alternate formats because each category of
individuals listed above is protected under the WIOA nondiscrimination
obligation.
Paragraph (c) of Sec. 38.36 states that the notice must be
provided to participants in appropriate languages other than English as
required in this part. This provision was added because recipients have
an existing obligation under Sec. 38.35 to provide limited English
proficient individuals with meaningful access to this notice, as set
out in proposed Sec. 38.9. As discussed in the preamble, the
population served by WIOA Title I-financially assisted programs and
activities has grown increasingly diverse, as the overall population in
the U.S. has become more diverse, including a higher percentage of
individuals who are not proficient in English. This requirement ensures
that LEP individuals will receive the notice in a language they can
understand.
Paragraph (d) of Sec. 38.36 states that the notice required by
Sec. Sec. 38.34 and 38.35 must be initially published and provided
within 90 days of the effective date of this part, or of the date this
part first applies to the recipient, whichever comes later.
Notice Requirement for Service Providers Sec. 38.37
Proposed Sec. 38.37 contains the same requirements as current
Sec. 38.32. This rule proposes revising the heading to, ``Notice
requirement for service providers,'' rather than the heading of current
Sec. 38.32.
Publications, Broadcasts, and Other Communications Sec. 38.38
Proposed Sec. 38.38 generally contains the same requirements as
current Sec. 38.34. This rule proposes revising the title to,
``Publications, broadcasts, and other communications.'' Proposed Sec.
38.38(a) also provides that, where materials indicate that the
recipient may be reached by voice telephone, the materials must also
prominently provide the telephone number of the text telephone (TTY) or
equally effective telecommunication system such as a relay service used
by the recipient. This proposal updates this section to reflect current
technology used by individuals with hearing impairments. Proposed
paragraph (c) of this section replaces ``prohibited ground'' with
``prohibited basis'' for consistency with this part.
[[Page 4519]]
Communication of Notice in Orientations Sec. 38.39
Proposed Sec. 38.39 generally contains the same requirements as
current Sec. 38.36. This rule proposes a revised title,
``Communication of notice in orientations.'' The proposed rule adds
language stating that orientations provided not just in person but also
remotely over the internet or using other technology are subject to
these notice requirements. Proposed Sec. 38.39 also revises this
section consistent with current law to ensure equal opportunity for
individuals with disabilities and meaningful access for individuals who
are LEP. This rule proposes language stating that the information
contained in the notice must be communicated in appropriate languages
to ensure language access as required in Sec. 38.9 of this part and in
accessible formats as required in Sec. 38.15 of this part. These
requirements are consistent with the recipient's obligation to provide
meaningful access to LEP individuals as discussed in Sec. 38.9 of the
preamble, and the recipient's obligation to provide accessible
communications to individuals with disabilities under the ADA as
provided in Sec. 38.15 of this part.
Affirmative Outreach Sec. 38.40
Proposed Sec. 38.40 generally contains the same requirements as
current Sec. 38.42. The rule proposes changing the title to
``Affirmative outreach'' rather than the heading of current Sec. 38.42
which is in question format and refers to a recipient's
responsibilities to provide ``universal access.'' The title change in
this section is important because the Department removes the term
``universal access'' from the rule entirely. The use of ``universal
access'' in the current rule has caused confusion because the provision
was intended to require recipients to perform affirmative outreach in
order to ensure broad access to WIA Title I financially assisted
programs; however, ``universal access'' is a term of art with a
different meaning in the disability context.\179\ Moreover,
``affirmative outreach'' is more descriptive of the requirements
contained in this section. This rule proposes some limited updates to
this section to state that the required affirmative outreach steps
should involve reasonable efforts to include more complete categories
of the various groups protected under this part, including persons of
different sexes, to replace ``both'' sexes and avoid binary terminology
and be inclusive of individuals who may not identify as male or female,
as well as various racial and ethnic/national origin groups, various
religions, individuals with limited English proficiency, individuals
with disabilities and individuals in different age groups.
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\179\ ``Universal access,'' also known as ``universal design,''
is a strategy for making products, environments, operational
systems, and services welcoming and usable to the most diverse range
of people possible. Disability Employment Policy Resources by Topic/
Universal Design http://www.dol.gov/odep/topics/UniversalDesign.htm
(last accessed March 19, 2015).
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Data and Information Collection and Maintenance
This rule proposes limited changes and additions to the sections
covering data and information collection and maintenance to provide
additional direction to recipients regarding the already existing
obligations related to data and information collection, and
maintenance. The Department welcomes comments on these changes.
Collection and Maintenance of Equal Opportunity Data and Other
Information Sec. 38.41
Proposed Sec. 38.41 generally contains the same requirements as
current Sec. 38.37. This rule proposes changing the title to,
``Collection and maintenance of equal opportunity data and other
information.'' Proposed paragraph (a) retains the same language as the
current Sec. 38.37(a).
Proposed paragraph (b)(2) adds ``limited English proficiency and
preferred language'' to the list of categories of information that each
recipient must record about each applicant, registrant, eligible
applicant/registrant, participant, and terminee. The proposal does not
apply this data collection obligation to applicants for employment and
employees because the obligation as to LEP individuals does not apply
to those categories of individuals. This change is intended to ensure
that recipients collect information related to serving limited English
proficient individuals. The Department believes that the term
``preferred language'' best attempts to capture this information as to
LEP individuals and is also used by many states with language access
laws.\180\ Limited English proficiency data is already being collected
by recipients that offer core, intensive and training services and is
reported to the Employment and Training Administration of the
Department. Thus, use of some of the same terminology is intended to
minimize any burden on recipients.\181\ In addition, the Department
proposes to delay enforcement regarding collection of these two new
data points for two years from the effective date of the final rule to
allow recipients adequate time to update their data collection and
maintenance systems. The Department seeks comments on the use of these
terms as proposed in Sec. 38.41.
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\180\ For example, pursuant to the D.C. Language Access Act, the
D.C. Office of Human Rights requires covered entities to collect
data on the number of LEP individuals served in an annual report.
See Final rulemaking at 55 DCR 6348 (June 8, 2008), as amended by
Final Rulemaking published at 61 DCR 9836 (September 26, 2014). The
question on the D.C. Office of Human Right Complaint Form for the
purposes of capturing this information is ``What language do you
prefer to communicate in? '' D.C. Government Employment Intake
Questionnaire Form, Available at http://dcforms.dc.gov/webform/employment-intake-questionnaire-form (last accessed March 19, 2015).
Hawaii passed their language access law in 2006. See Hawaii Rev.
Stat. Sec. Sec. 371-31 to 37. In California, the Dymally-Alatorre
Bilingual Services Act requires local agencies to provide language
access to limited English-proficient speakers. Ca. Govt. Code Sec.
7290-7299.8. The Bilingual Services Program at the California
Department of Human Resources provides oversight, including
conducting language surveys on implementation. California Department
of Human Resources, Bilingual Services program, available at http://www.calhr.ca.gov/state-hr-professionals/Pages/Bilingual-Services.aspx (last accessed (March 19, 2015).
\181\ See, e.g., FY 2012 WIASRD Data Book at 23, Social Policy
Research Associates for Office of Performance and Technology,
Employment and Training Administration, U.S. Department of Labor at
(December 2, 2013).
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This NPRM proposes new language in paragraph (b)(3) specifically
explaining a recipient's responsibilities to keep the medical or
disability-related information it collects about a particular
individual on a separate form, and in separate files. The paragraph
also lists the range of persons who may have access to such files.
Similarly, new language in paragraph (b)(3) of this section contains
information about the persons who may be informed that a particular
individual is an individual with a disability, and the circumstances
under which this information may be shared. These requirements have
been separated to emphasize that the range of persons who may be
permitted to have access to files containing medical and disability-
related information about a particular individual is narrower than the
range of persons who may be permitted to know generally that an
individual has a disability. These changes make the regulations
consistent with DOL's regulations implementing Sec. 504 of the
Rehabilitation Act, and with the EEOC's regulations implementing Title
I of the ADA.\182\ The change is also intended to provide recipients
with information necessary to enable them to develop protocols that are
consistent with these requirements.
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\182\ See 29 CFR 1630.14(b)(1)(i)-(iii).
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[[Page 4520]]
Information To Be Provided to CRC by Grant Applicants and Recipients
Sec. 38.42
The NPRM proposes a new title for Sec. 38.38, ``Information to be
provided to CRC by grant applicants and recipients'' and the new
section number is 38.42. Subsection (a) requires recipients to notify
the Director when administrative enforcement actions or lawsuits are
filed against them on any basis prohibited under Section 188 and this
part. Proposed Sec. 38.42(a) adds pregnancy, child birth or related
medical conditions, transgender status, and gender identity in
parentheses as forms of sex discrimination prohibited under this part
and ``limited English proficiency'' in parentheticals as a form of
national origin discrimination prohibited by this part. Pregnancy and
gender identity have been listed as bases of sex discrimination on
CRC's complaint form since 2014, and limited English proficiency has
been listed on the complaint form as a form of national origin based
discrimination since 2011. These additions are designed to make the
information provision requirement consistent with the protected bases
on the complaint form. In addition, the NPRM proposes removing the
reference to grant applicants from Sec. 38.42(b). Removal of this
reference will sharpen the focus of Sec. 38.42 on the information
needed for compliance reviews and monitoring activities, as required
under Sec. Sec. 38.63 and 38.65.
Finally, the proposed rule includes the phrase ``that the Director
considers'' in front of the word ``necessary'' in paragraph (c) and (e)
of this section to inform recipients that the Director of CRC
determines the information that is necessary for CRC to investigate
complaints and conduct compliance reviews as well as to determine
whether the grant applicant would be able to comply with the
nondiscrimination and equal opportunity provisions of WIOA or this
part. Proposed Sec. 38.42(e) confirms the CRC's ability to engage in
pre-award reviews of grant applicants but does not contemplate the
delay or denial of an award. Processes that may result in the delay or
denial of an award to a grant applicant are addressed in Sec. 38.62.
Required Maintenance of Records by Recipients Sec. 38.43
The NPRM proposes a new title for current Sec. 38.39, ``Required
maintenance of records by recipients,'' and a new section number 38.43.
Grant applicants and recipients are already required to maintain
records under current Sec. 38.39. Proposed Sec. 38.43 adds the
preservation of ``electronic records'' to this existing requirement.
The rule proposes that recipients that maintain electronic records, in
addition to hard copies, keep the electronic records for the same
three-year period. Finally, the NPRM proposes revisions to paragraph
(b) of this section to require preservation of records once a
discrimination complaint or compliance review is initiated.
In this regard, CRC interprets ``relevant'' or ``relevance''
broadly and expects recipients to similarly interpret relevance broadly
when determining the documents that must be preserved. The Department
has heard from recipients that their obligations to retain compliance
review records were uncertain. The Department proposes including
compliance reviews in this retention section because the same
preservation of records is necessary for the duration of a compliance
review as for a complaint investigation--to provide CRC with access to
all records relevant to compliance and to ensure that recipients do not
dispose of records to avoid a finding of noncompliance. CRC believes
this may have been an oversight in the part 37 regulations. The
Department welcomes comments on these proposed changes.
CRC Access to Information and Information Sources Sec. 38.44
Proposed Sec. 38.44 generally contains the same requirements as
current Sec. 38.40. The NPRM proposes revising the title to ``CRC
access to information and information sources.'' In addition, it
proposes revising paragraph (a) to require that each grant applicant
and recipient must permit access by the Director ``or the Director's
designee'' to premises, employees, and participants for the purpose of
conducting investigations, compliance review, monitoring activities, or
other similar activities outlined in this section. This change
acknowledges that it is the Director's staff who ordinarily conducts
these procedures on behalf of the Director.
Confidentiality Responsibilities of Grant Applicants, Recipients, and
the Department Sec. 38.45
Proposed Sec. 38.45 generally contains the same requirements as
current Sec. 38.41. This rule proposes revising the title of this
section to, ``Confidentiality responsibilities of grant applicants,
recipients, and the Department.'' In addition, this section begins:
``Grant applicants, recipients, and the Department must keep
confidential to the extent possible . . . consistent with a fair
determination of the issues.'' This small reorganization is intended to
make this easier to read and incorporate the language at the beginning
of this section.
Subpart C--Governor's Responsibilities To Implement the
Nondiscrimination and Equal Opportunity Requirements of WIOA
Subpart Application to State Programs Sec. 38.50
The NPRM proposes a new title for Sec. 38.50, ``Subpart
application to State Programs.'' This NPRM also updates the term
``State Employment Security Agencies'' to ``State Workforce Agencies''
which is used in WIOA and the proposed ETA regulations implementing
Title I of WIOA.\183\
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\183\ See 80 FR 20690 (April 16, 2015).
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Governor's Oversight and Monitoring Responsibilities for State Programs
Sec. 38.51
The NPRM proposes a new title for Sec. 38.51, ``Governor's
oversight and monitoring responsibilities for State Programs.''
Proposed Sec. 38.51 generally retains the requirements of current
Sec. 38.51 but incorporates several subparagraphs found at current
Sec. 38.54(d)(2)(ii)(A-C) and thus does not impose altogether new
responsibilities.
Proposed Sec. 38.51(a) incorporates the Governor's oversight
responsibilities set out in current Sec. 38.51, which include ensuring
compliance with the nondiscrimination and equal opportunity provisions
of WIOA and this part, and negotiating, where appropriate, with a
recipient to secure voluntary compliance when noncompliance is found
under Sec. 38.94(b).
Proposed Sec. 38.51(b) requires the Governor to monitor on an
annual basis the compliance of State Programs with WIOA Section 188 and
this part. Under current Sec. 38.54(d)(2)(ii), the requirement to
``periodically'' monitor was ambiguous and led to infrequent
monitoring. The Department's experience with State-conducted monitoring
reveals inconsistent and infrequent monitoring--some States monitor the
compliance of State Programs as infrequently as every five years. The
proposed annual monitoring requirement is intended to: (1) Enable the
timely identification and elimination of discriminatory policies and
practices, thereby reducing the number of individuals impacted by
discrimination; (2) be consistent with ETA proposed regulations
requiring annual oversight of One-Stop Career Centers; \184\ and (3)
establish a
[[Page 4521]]
consistent State-level practice nationwide.
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\184\ Id. at 20752.
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Proposed Sec. 38.51(b) incorporates the Governor's monitoring
responsibilities currently required by Sec. 38.54(d)(2). Moving the
monitoring obligations from the Methods of Administration section at
Sec. 38.54(d)(2) to this section does not change the Governor's
oversight responsibilities but underscores the importance of the
Governor's monitoring responsibilities and highlights that monitoring
is more than just a paper responsibility. By this minor reorganization,
the Department intends to distinguish the required components of a
Nondiscrimination Plan from the Governor's requirements for
implementing the Nondiscrimination Plan. Section 38.51 is now the
section that sets forth all of the Governor's monitoring and oversight
responsibilities, which include implementation of the Nondiscrimination
Plan. As discussed below, Sec. 38.54 sets forth all the required
components of the Nondiscrimination Plan.
Proposed Sec. 38.51(b) brings in three requirements that were
previously incorporated into the Governor's Method of Administration
required by Sec. 38.54. First, at a minimum, each monitoring review
must include a statistical or other quantifiable analysis of records
and data kept by the recipient under Sec. 38.41, including analysis by
race/ethnicity, sex, limited English proficiency, age, and disability
status. Governors are already required under Sec. 38.54(d)(2)(ii)(A)
(Methods of Administration) to conduct this analysis during their
monitoring reviews. Second, monitoring must also include an
investigation of any significant differences identified in paragraph
(b)(1) of this section in participation in the programs, activities, or
employment provided by the recipient to determine whether these
differences may be caused by discrimination prohibited by this part.
This investigation must be conducted through review of the recipient's
records and any other appropriate means, which may include interviewing
staff, participants and beneficiaries, reviewing documents, and on-site
review of the facility and other investigative methods. Again, this
requirement is not new; it is set out in Sec. 38.54(d)(2)(ii)(B).
Third, the monitoring review must include an assessment to determine
whether the recipient has fulfilled its administrative obligations
under Section 188 of WIOA or this part (for example, recordkeeping,
notice and communication) and any duties assigned to it under the
Nondiscrimination Plan. This requirement is set out in Sec.
38.54(d)(2)(ii)(C).
Proposed Sec. 38.51(b)(1) adds ``limited English proficiency'' to
the list of categories of records and data that must be analyzed. This
addition is consistent with the recipients' need to collect data to
enable them to serve limited English proficient individuals in
accordance with the nondiscrimination and equal opportunity provisions
of WIOA and this part. CRC invites comment on the addition of ``primary
language'' to the list of categories of records and data that must be
analyzed, including whether there is a more effective method or term to
use to determine or measure the relevant population of limited English
proficient individuals and the language services to be provided.
Governor's Liability for Actions of Recipients the Governor Has
Financially Assisted Under Title I of WIOA Sec. 38.52
The NPRM proposes a new title for Sec. 38.52, ``Governor's
liability for actions of recipients the Governor has financially
assisted under Title I of WIOA.'' This section changes the word
``adhered to'' to ``implemented'' in paragraph (a)(1) because it more
accurately describes the responsibility of the Governor. In addition,
proposed Sec. 38.52 (a)(1) changes, in title only, the term ``Methods
of Administration'' to ``Nondiscrimination Plan.'' The new title for
this document is more descriptive of its purpose.
Governor's Oversight Responsibility Regarding Recipients' Recordkeeping
Sec. 38.53
Proposed Sec. 38.53 generally retains the language of current
Sec. 38.53. The NPRM proposes a new title for Sec. 38.53,
``Governor's oversight responsibility regarding recipients'
recordkeeping.''
Governor's Obligations To Develop and Implement a Nondiscrimination
Plan Sec. 38.54
Proposed Sec. 38.54 generally retains the language of current
Sec. 38.54 other than the sections moved to Sec. 38.51, already
discussed. The NPRM proposes a new title for Sec. 38.54, ``Governor's
obligations to develop and implement a Nondiscrimination Plan.''
Proposed Sec. 38.54(a) requires Governors to ``establish and
implement,'' rather than ``establish and adhere to'' a
Nondiscrimination Plan for State programs. This section proposes to
replace ``should'' with ``must'' in the second sentence in paragraph
(a)(1) to require that, in states in which one agency contains both a
State Workforce Agency (formerly a SESA) or unemployment insurance and
WIOA Title I-financially assisted programs, the Governor must develop a
combined Nondiscrimination Plan. The Governor is responsible for
completion of the Nondiscrimination Plan in both instances. This change
formalizes current practice in that every state submits one WIA Methods
of Administration. This proposal would also eliminate unnecessary
duplication in that most components of the Plan would be the same for
both types of entities, and both plans would be overseen by the State
Level EO Officer.
The proposed rule has one minor change to paragraph (c)(1)(v) of
this section: Changing reference to an existing section of 29 CFR part
38 titled ``Universal Access'' to reflect its new title in this rule,
``Affirmative Outreach.'' The NPRM adds a new paragraph (c)(2)(iv) to
include procedures for compliance in the Nondiscrimination Plan for
protected categories other than disability, which is addressed in Sec.
38.54(c)(2)(iv), and was addressed in current Sec. 37.54(d)(2)(v). The
part 38 rule did not require the Governor to include procedures to
ensure compliance as to these protected categories. This proposal
corrects that oversight. Proposed Sec. 38.54(c)(2)(v) adds a provision
requiring the procedures discussed in this subsection to ensure that
recipients comply not just with Section 504 and WIOA Section 188 and
this part, but also with Title II of the ADA, as amended, if applicable
to that recipient. Title II of the ADA applies only to ``public
entities,'' which include State or local governments and any of their
departments, agencies, or other instrumentalities.\185\
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\185\ 42 U.S.C. 12131.
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Schedule of the Governor's Obligations Regarding the Nondiscrimination
Plan Sec. 38.55
The NPRM proposes a new title to Sec. 38.55, ``Schedule of the
Governor's obligations regarding the Nondiscrimination Plan.'' Proposed
Sec. 38.55 generally retains the existing schedule that Governors
follow for their WIA Methods of Administration in current Sec. 38.55.
This section is intended to minimize the Governor's burden by allowing
sufficient time to update the existing WIA Methods of Administration to
comply with requirements for the WIOA Nondiscrimination Plan under this
part. Therefore, proposed Sec. 38.55 changes paragraph (a) to require
Governors to develop and implement a Nondiscrimination Plan consistent
with the requirements of this part either within 180 days of the date
on which
[[Page 4522]]
this final rule is effective or by the date determined by current Sec.
38.55, whichever is later.
As in current Sec. 38.55(b), proposed Sec. 38.55(b) requires the
Governor to promptly update the Nondiscrimination Plan whenever
necessary and submit the changes made to the Director in writing at the
time the updates are made. This requirement ensures that the Director
will continue to have current versions of each Governor's Plan, rather
than notification of changes without the actual revisions, as is
permitted under current part 38. Under both the current part 38 rule
and proposed Sec. 38.55(a)(2), the Governor is required to submit the
initial plan to the Director. Pursuant to proposed Sec. 38.55(c) and
current Sec. 38.55(c), the Governor must review its plan every two
years, determine whether changes are necessary, and, if so, make the
changes and submit them to the Director.
Subpart D--Compliance Procedures
Evaluation of Compliance Sec. 38.60
Proposed Sec. 38.60 retains the same language of current Sec.
38.60, with the exception of the title and a minor technical edit. The
NPRM proposes to change the title of Sec. 38.60 to ``Evaluation of
compliance.'' The rule also proposes to add ``the ability to comply
or,'' in the first sentence to explain that the goal of the pre-
approval compliance reviews of grant applicants for, and post-approval
compliance reviews of recipients of WIOA Title I financial assistance
is to determine ability to comply, for applicants, or compliance with,
for recipients, with the nondiscrimination and equal opportunity
provisions of WIOA and this part. This language is parallel to the
language proposed in Sec. 38.25.
Authority To Issue Subpoenas Sec. 38.61
The NPRM proposes changing the title of Sec. 38.61 to ``Authority
to issue subpoenas,'' rather than the title of Sec. 37.61. The
paragraph also cites to Section 183(c), the WIOA provision that
authorizes the issuance of subpoenas, 29 U.S.C. 3243(c).
Compliance Reviews
Authority and Procedures for Pre-Approval Compliance Reviews Sec.
38.62
The NPRM makes several changes to the existing language of current
Sec. 38.62 in proposed Sec. 38.62. First, the NPRM revises the title
of Sec. 38.62 to ``Authority and procedures for pre-approval
compliance reviews.''
Second, the NPRM adds a new provision as paragraph (b) requiring
that Departmental grantmaking agencies consult with the Director to
review whether the CRC has issued a Notice to Show Cause under Sec.
38.66(b) or a Final Determination for violating the nondiscrimination
and equal opportunity provisions of WIOA and this part against an
applicant that has been identified as a probable awardee. The provision
requires that this consultation include the grantmaker's consideration
of the current compliance status of the grant applicant if such
applicant was already subject to the laws enforced by CRC through
existing financial assistance. The Department has selected the Notice
to Show Cause and Final Determination because those documents represent
steps in the enforcement process after CRC has issued findings based on
its investigation, the recipient has had the opportunity to submit
information to rebut the adverse findings, and CRC has concluded after
review of the recipient's submission that a violation exists. This
consultation and review of compliance status is necessary for effective
enforcement because it ensures that Department financial assistance
will not go to grant applicants that are not in compliance, and have
made insufficient attempts to come into compliance, with the laws that
DOL enforces.
Third, the NPRM adds a new paragraph (c) to Sec. 38.62 providing
that the grantmaking agency will consider, in consultation with the
Director, the information obtained through the consultation described
in subsection (b), as well as any other information provided by the
Director in determining whether to award a grant or grants.
Departmental grantmaking agencies must consider refraining from
awarding new grants to applicants or must consider including special
terms in the grant agreement for entities named by the Director as
described in subsection (b). Special terms will not be lifted until a
compliance review has been conducted by the Director, and the Director
has approved a determination that the applicant is likely to comply
with the nondiscrimination and equal opportunity requirements of WIOA
and this part.
CRC has received feedback from recipients and advocacy
organizations asking for clarity regarding the possible ramifications
of the preaward review. This addition provides transparency about the
possible consequences if an applicant or recipient is found to be
unlikely to comply with the nondiscrimination and equal opportunity
requirements of this part and Section 188 of WIOA.
Authority and Procedures for Conducting Post-Approval Compliance
Reviews Sec. 38.63 and Procedures for Concluding Post-Approval
Compliance Reviews Sec. 38.64
Proposed Sec. 38.63 and Sec. 38.64 retain the exact same language
of current Sec. 38.60 and Sec. 38.61, with the exception of the
titles. The NPRM proposes a new title for Sec. 38.63 of ``Authority
and procedures for conducting post-approval compliance reviews.'' The
NPRM proposes as a new title for Sec. 38.64, ``Procedures for
concluding post-approval compliance reviews.''
Authority To Monitor the Activities of a Governor Sec. 38.65
The NPRM retains the language in paragraphs (a) and (b) of current
Sec. 38.65. The NPRM proposes a new paragraph (c) for Sec. 38.65 that
specifies the ways in which the Director may enforce the
nondiscrimination and equal opportunity provisions of WIOA and this
part regarding Governors' obligations for monitoring and oversight.
Specifically, if the Director determines that the Governor has not
complied with this part and Section 188 of WIOA, the Director may issue
a Letter of Findings. The Letter must advise the Governor of the
preliminary findings, the proposed remedial or corrective action and
the timeframe for that action, whether it will be necessary for the
Governor to enter into a conciliation agreement, and the opportunity to
conciliate. If the Governor fails to take remedial or corrective
actions or to enter into a conciliation agreement, the Director may
follow the procedures in Sec. Sec. 38.95 and 38.96. These additional
provisions are intended to respond to questions that the Department has
received from stakeholders (EO Officers and other State officials)
regarding the possible ramifications if the Governor refuses to
participate in efforts to come into voluntary compliance or if the
Governor fails to enter into a conciliation agreement.
These provisions are also intended to address a gap in the existing
regulations which did not establish enforcement procedures related to
the Governors' monitoring obligations under the Nondiscrimination Plan,
thus leading to the Department's inability to enforce these provisions
when Governors do not come into compliance voluntarily. This additional
language allows the Department to hold the Governors accountable if
they fail to comply with their monitoring obligations. Since 2010, CRC
has found during compliance reviews that no State has complied fully
with its monitoring and oversight
[[Page 4523]]
responsibilities. For example, States have not conducted the data
analysis, set forth in existing Sec. 38.54(d)(2)(ii)(A)(C), to
determine if there is systemic discrimination. The new provisions of
this section provide the Department with the enforcement tools to
secure the Governors' compliance with these and similar monitoring
obligations. We welcome comments on these proposed changes.
Notice To Show Cause Issued to a Recipient Sec. 38.66
The NPRM proposes a new title for Sec. 38.66, ``Notice to show
cause issued to a recipient.'' It also proposes merging existing Sec.
38.66 and Sec. 38.67, the latter of which previously outlined the
contents of a notice to show cause. Although the two sections were
previously adjacent, by combining in one section when a notice to show
cause may be issued by the Director to a recipient with the required
contents of such a notice, the Department intends to make the show
cause provision more comprehensive.
The NPRM retains in proposed Sec. 38.66 most of the language in
current Sec. 38.66 and all of the language in current Sec. 38.67.
Paragraph (a), consistent with current Sec. 38.66, provides that the
Director may issue a Notice to Show Cause when a recipient's failure to
comply with the requirements of this part results in the inability of
the Director to make a finding. This paragraph retains the three
examples from current Sec. 38.66(a)-(c). The proposal revises the
example in current Sec. 38.66(a), now proposed 38.66(a)(1) to state,
``Submit requested information, records, and/or data within the
timeframe specified in a Notification Letter issued pursuant to Sec.
38.63,'' rather than ``within 30 days of receiving a Notification
Letter.'' CRC has proposed this change because the Notification Letter
contains a timeframe for response. Thus, setting out the timeframe in
the regulations is redundant. This revision is also consistent with
Sec. 38.63(b)(3) which permits the Director to modify the timeframe
for response in the notification letter.
The new language in Sec. 38.66(b) states that the Director may
issue a Notice to Show Cause to a recipient when the Director has
reasonable cause to believe that a recipient is failing to comply with
the requirements of this part, after the Director has issued a Letter
of Findings and/or an Initial Determination, and after a reasonable
period of time has passed within which the recipient refuses to enter
into a conciliation agreement to resolve the identified violations. The
Department proposes this change to expand the circumstances in which
the Director may issue a Notice to Show Cause. Under the existing
regulations in Sec. 38.66(a), the Director could only issue a Notice
to Show Cause when the Director had insufficient information to make a
determination on a recipient's compliance because the recipient failed
or refused to submit information, records and/or data in response to a
Notification letter or during a compliance review or complaint
investigation. This limitation meant that the Director could not use
this tool effectively at other points in the process, after finding
reasonable cause to believe that a violation occurred. The proposal
seeks to use the Notice to Show Cause at this later stage because it
has been the Department`s experience that, after issuing a letter of
findings, the Governor or other recipients agree in principle to enter
into a conciliation agreement that resolves the identified violations,
but then frequently fail to respond to correspondence from the CRC
regarding finalizing and signing the agreement. With proposed Sec.
38.66(b), the Director could issue a Notice to Show Cause prior to
issuing a Final Determination, providing Governors and other recipients
another opportunity to take the corrective or remedial actions required
by the Director to bring the recipient into compliance before
enforcement proceedings are initiated. In this way, Sec. 38.66
provides the States with another notice and opportunity to resolve
violations and avoid the issuance of a Final Determination.
Methods by Which a Recipient May Show Cause Why Enforcement Proceedings
Should Not Be Instituted Sec. 38.67
The NPRM retains all of the existing language of current Sec.
38.68 in Sec. 38.67 except that it proposes changing the title to
``Methods by which a recipient may show cause why enforcement
proceedings should not be instituted'' and removes reference to the
letter of assurance since the Department has proposed to discontinue
its use of this letter. See discussion below regarding the proposed
revision of Sec. 38.96, which addresses letters of assurance.
Failing To Show Cause Sec. 38.68
The NPRM retains almost all the language of current Sec. 38.69 in
proposed Sec. 38.68 except that it proposes changing the title to
``Failing to show cause.'' The NPRM also proposes to change the
provision to state that the Director ``may,'' not ``must,'' follow the
enforcement procedures contained in Sec. Sec. 38.94 and 38.95 if a
recipient fails to show cause why enforcement proceedings should not be
initiated. This revision is intended to more accurately reflect the
Director's prosecutorial discretion in bringing matters to enforcement.
Nothing in Section 188 compels the Director to refer for enforcement
every violation of Section 188 or this part.
Complaint Processing Procedures
Complaint Filing Sec. 38.69
The NPRM combines existing Sec. Sec. 38.70, 38.71 and 38.72 into
proposed Sec. 38.69 titled ``Complaint filing,'' with revisions to the
text. The Department proposes merging these sections to improve
readability.
Proposed Sec. 38.69(a) retains the language from current Sec.
38.70 which explains that a complaint may be filed by any person or the
person's representative, if that person believes that the complainant
or class of persons has been discriminated against as prohibited by
this part. Proposed subparagraph (a)(1) adds a list of the bases upon
which a complaint may be filed--race, color, religion, sex (including
pregnancy, child birth or related medical conditions, gender identity
and transgender status), national origin (including limited English
proficiency), age, disability, political affiliation or belief,
citizenship status, or participation in any WIOA Title I-financially
assisted program or activity. Proposed subparagraph (a)(2) adds
retaliation as a basis for filing a complaint, consistent with the
existing non-retaliation provision at current Sec. 38.11 and proposed
Sec. 38.11. Proposed subparagraph (b) also includes the option of
filing a complaint electronically in addition to U.S. Mail. Proposed
subparagraph (c) removes reference to the Director and states that a
complaint must be filed within 180 days. This language was removed
because subparagraph (b) already states with whom the complaint must be
filed.
Required Contents of Complaint Sec. 38.70
The NPRM proposes merging current Sec. Sec. 38.73 and 38.74 into
Sec. 38.70 titled ``Required contents of complaint'' and retains
almost all of the language in these existing sections. The proposed
changes in this section provide complainants the choice between filing
complaints electronically or by hard copy, request that complainants
provide in the complaint their email address, where available, in
addition to their mailing address, and state that complaint forms are
available on the Department's Web site at http://
[[Page 4524]]
www.dol.gov/oasam/programs/crc/external-enforc-complaints.htm.
Right to Representation Sec. 38.71
The NPRM proposes to change the title of Sec. 38.75 to ``Right to
Representation'' and renumber it as Sec. 38.71. Otherwise, it retains
the existing language of this section.
Required Elements of a Recipient's Complaint Processing Procedures
Sec. 38.72
The NPRM proposes minimal additions to the language of current
Sec. 38.76, including renumbering it as Sec. 38.72 and changing the
title to ``Required elements of a recipient's complaint processing
procedures.'' The proposed language retains the requirement in current
Sec. 38.76 that recipients adopt procedures specifically to process
complaints. The NPRM proposes adding to the procedures that the
recipient must adopt and publish the requirement that recipients
provide complainants a copy of the notice of rights contained in Sec.
38.35, along with the already-required initial written acknowledgement
of receipt of the complaint and notice of the complainant's right to
representation. This requirement is designed to ensure that
complainants are aware of their rights, including that they have the
option of filing with the recipient or with CRC, and that they are
aware of the deadlines applicable to filing a subsequent complaint with
CRC once they file initially with the recipient. This notice is the
same notice that the recipient is already required to post and
disseminate pursuant to Sec. 38.35, and this change ensures that the
notice is included in the documents provided to the complainant at this
critical juncture. The NPRM also proposes requiring inclusion of notice
that the complainant has the right to request and receive, at no cost,
auxiliary aids and services, language assistance services, and that
this notice will be translated into the non-English languages of the
recipient's service area; this is similar to the accessibility
requirements found at Sec. 38.34 and Sec. 38.36.
The NPRM proposes to remove reference to ``he or she'' in this
section as is consistent throughout the part and replace them with
``complainant.'' The NPRM also proposes adding a new subparagraph
(c)(1), affirmatively stating that ADR may be attempted any time after
a written complaint has been filed with the recipient. This language
advises complainants and recipients that ADR may be initiated very
early on to resolve the complaint. This requirement is intended to
encourage prompt resolution of complaints at the earliest possible
stage of the process.
This rule proposes changing the language in the last sentence in
subparagraph (c)(3)(ii) to state, ``If the Director determines that the
agreement has been breached, the complaint will be reinstated and
processed in accordance with the recipient's procedures.'' This change
from the language in current Sec. 38.76(c)(3)(ii) which stated: ``If
he or she determines that the agreement has been breached, the
complainant may file a complaint with the CRC based upon his/her
original allegation(s), and the Director will waive the time deadline
for filing such a complaint.'' This language change is proposed because
the proper procedure, if the agreement reached under ADR is breached,
is for the recipient and the complainant to return to the original
complaint processing procedures.
Responsibility for Developing and Publishing Complaint Processing
Procedures for Service Providers Sec. 38.73
The NPRM proposes to retain the language from current Sec. 38.77,
changing the title to ``Responsibility for developing and publishing
complaint processing procedures for service providers'' for proposed
Sec. 38.73.
Recipient's Obligations When It Determines That It Has No Jurisdiction
Over a Complaint Sec. 38.74
The NPRM essentially retains the language of existing Sec. 38.79
in Sec. 38.74, but changes the title to ``Recipient's obligations when
it determines that it has no jurisdiction over a complaint'' and
replaces the term ``immediate'' with ``within five business days of
making such determination'' as the time frame in which a recipient must
notify the complainant in writing that it does not have jurisdiction.
This change reduces ambiguity by providing a defined timeframe within
which the recipient must notify a complainant about the recipient's
lack of jurisdiction so that the complainant may timely pursue the
allegations in an appropriate forum.
If the Complainant Is Dissatisfied After Receiving a Notice of Final
Action Sec. 38.75
Proposed Sec. 38.75 retains the language of existing Sec. 38.79,
with the exception of the title and two minor revisions. The NPRM
changes the title of current Sec. 38.79 to ``If the complainant is
dissatisfied after receiving a Notice of Final Action.'' In addition,
the Department proposes changing the first sentence from ``If, during
the 90-day period'' to ``If the recipient issues its Notice of Final
Action before the end of the 90-day period.'' This change states more
clearly that this section addresses the situation where the recipient
issues its Notice before the 90-day period ends. The Department also
proposes changing ``his or her'' to ``the complainant's''
representative consistent with the changes to this part.
If a Recipient Fails To Issue a Notice of Final Action Within 90 Days
After the Complaint Was Filed Sec. 38.76
Proposed Sec. 38.76 retains all of the language in existing Sec.
38.80, with the exception of the title that states ``If a recipient
fails to issue a Notice of Final Action within 90 days after the
complaint was filed.''
Extension of Deadline To File Complaint Sec. 38.77
The NPRM retains current Sec. 37.81 in its entirety in proposed
Sec. 38.77, and changes the title to ``Extension of deadline to file
complaint.''
Determinations Regarding Acceptance of Complaints Sec. 38.78
The NPRM retains all of the language in existing Sec. 38.82,
except the title and two words. The proposed title of Sec. 38.78 is
``Determinations regarding acceptance of complaints.'' The Department
proposes to delete ``No'' at the beginning of the section in response
to the question in the heading, because the new heading is no longer in
question format. The Department proposes changing the word
``determine'' to ``decide'' to distinguish the Director's decision
whether to accept a complaint from the Director's Initial and Final
Determinations.
When a Complaint Contains Insufficient Information Sec. 38.79
The NPRM retains all of the language in existing Sec. 38.83,
except for removing and replacing gender-specific pronouns and the
title of Sec. 38.79 to ``When a complaint contains insufficient
information.'' It also proposes adding a provision to subparagraph (a)
stating that, if the complaint does not contain enough information ``to
identify the respondent or the basis of the alleged discrimination, the
timeliness of the complaint, or the apparent merit of the complaint,''
the Director must try to get the needed information from the
complainant. This proposed new language specifies the circumstances
under which the Director must try to get information from the
complainant. In subparagraph (c) the NPRM proposes that, when the
Director closes the complainant's file, the Director must send a
written notice to the
[[Page 4525]]
complainant's last known address, ``email address (or other known
method of contacting the complainant in writing.'' This change
recognizes that there are more methods of written communication than
mail now available.
The NPRM makes no changes to the language of existing Sec. Sec.
38.84-38.88 besides revising the titles and section numbers to
Sec. Sec. 38.80-38.84. The new headings are, respectively, ``Lack of
jurisdiction,'' ``Complaint referral,'' ``Notice that complaint will
not be accepted,'' ``Notice of complaint acceptance,'' and ``Contacting
CRC about a complaint.''
Alternative Dispute Resolution Sec. 38.85
The NPRM makes some changes to existing Sec. 38.89, including
changing it to Sec. 38.85 with the title ``Alternative dispute
resolution.'' The Department proposes replacing reference to mediation
with alternative dispute resolution (ADR) to encompass a broader array
of procedures that may be used. ``The term ADR means any procedure,
agreed to by the parties of a dispute, in which they use the services
of a neutral party to assist them in reaching agreement and avoiding
litigation. Types of ADR include arbitration, mediation, negotiated
rulemaking, neutral fact-finding, and mini-trials. With the exception
of binding arbitration, the goal of ADR is to provide a forum for the
parties to work toward a voluntary, consensual agreement, as opposed to
having a judge, or other authority, decide the case.'' \186\ CRC also
notes that current Sec. 38.76, which sets out the required elements of
a recipient's discrimination complaint processing procedures, already
refers to ADR, not mediation, at Sec. 38.76(c).
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\186\ Department of Labor/Labor Relations/Alternative Dispute
Resolution, available at http://www.dol.gov/dol/topic/labor-relations/adr.htm (accessed March 19, 2015).
---------------------------------------------------------------------------
In addition, the NPRM proposes removing the references to ``the
parties'' in this section, and replacing them with references to ``the
complainant and the respondent.'' This change has been made for legal
accuracy: the real parties in interest to a complaint alleging
violations of WIOA Section 188 or this part by a recipient are the
recipient/respondent alleged to have committed the violation and CRC.
There is no private right of action under WIOA Section 188; the
complainant stands in the position of a witness who has notified CRC of
the existence of a potential violation.
Proposed paragraph (b) removes the word ``issued'' from the
sentence in current Sec. 38.89(b), ``The mediation will be conducted
under guidance issued by the Director'' because the guidance from the
Director on ADR may be provided informally. In addition, the NPRM
revises paragraph (c) to state that ADR may take place at any time
after a complaint has been filed to maximize the opportunity for
resolution of complaints through the ADR process. Finally, the NPRM
proposes revising paragraph (d) to state that ADR does not suspend
investigation and complaint processes so that it is clear, that while
ADR is taking place, CRC will continue complaint processing and
investigation so that the complaint and evidence will not become stale
while the complainant and recipient attempt informal resolution. CRC's
continuing investigative activity will preclude recipients from using
ADR as a vehicle to preclude CRC from reaching timely findings.
Complaint Determinations
Notice at Conclusion of Complaint Investigation Sec. 38.86
The NPRM changes the title to ``Notice of conclusion of complaint
investigation'' and the section number to 38.86. The NPRM adds a
reference at the end of paragraph (b) to the sections of this part that
describe the notification process described in Sec. Sec. 38.34 and
38.36, so that the recipient, complainant and grantmaking agency are
aware of the procedural steps that CRC will follow.
Director's Initial Determination That Reasonable Cause Exists To
Believe That a Violation Has Taken Place Sec. 38.87
The NPRM proposes to retain all of the existing language in Sec.
38.91, and changes the title of Sec. 38.87 to ``Director's Initial
Determination that reasonable cause to believe that a violation has
taken place.''
Director's Final Determination Finding That No Reasonable Cause Exists
To Believe That a Violation Has Taken Place Sec. 38.88
The NPRM proposes to retain all of the existing language in Sec.
38.92, changing the title of Sec. 38.88 to ``Director's Final
Determination that no reasonable cause exists to believe that a
violation has taken place.''
When the Recipient Fails or Refuses To Take Corrective Action Listed in
the Initial Determination Sec. 38.89
The NPRM proposes retaining the language from current Sec. 38.93
for Sec. 38.89, changing the title to ``When the recipient fails or
refuses to take corrective action listed in the Initial
Determination.'' Section 38.93 states that if the recipient failed or
refused to take the corrective action listed in the Initial
Determination, the Department must take corrective action, which
included referring the matter to the Attorney General, or taking such
other action as provided by law. This proposal has been made because
the Department has prosecutorial discretion to pursue or not pursue
further enforcement action after issuing an Initial Determination.\187\
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\187\ 29 U.S.C. 3248(b)(1).
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Corrective or Remedial Action That May Be Imposed When the Director
Finds a Violation Sec. 38.90
The NPRM proposes retaining the language from current Sec. 38.94
for Sec. 38.90, changing the title to ``Corrective or remedial action
that may be imposed when the Director finds a violation.''
Post-Violation Procedures Sec. 38.91
The NPRM proposes retaining all of the existing language in the
Sec. 38.95, but changes the title. The Department proposes, ``Post
violation procedures'' as the title for Sec. 38.91. Because the
circumstances under which a written assurance will be used has been
revised, as discussed in Sec. 38.92, this section deletes paragraphs
(b)(1)(iii)(C) and paragraph (b)(3)(iii), which referred to using
``both'' a written assurance and a conciliation agreement as closing
documents for the same set of violations. The Department proposes to
remove the inadvertent reference to a nonexistent paragraph (d) at the
end of paragraph (a).
Written Assurance Sec. 38.92
The NPRM proposes revising current Sec. 38.96 to explain the
circumstances in which a written assurance will be used as a resolution
document. The Department proposes retaining the title from current
Sec. 38.96 for Sec. 38.92. Current Section 38.96 required that ``a
written assurance must provide documentation that violations listed in
the Letter of Findings, Notice to Show Cause or Initial Determination,
as applicable, have been corrected.'' That provision did not adequately
explain when a written assurance rather than a conciliation agreement
would be the appropriate resolution document and this confusion has
caused delay in bringing recipients into compliance. The proposed rule
states, ``A written assurance is the resolution document used when the
Director determines that a recipient has taken all corrective actions
to remedy the violations specified in the Letter of Findings or
[[Page 4526]]
Initial Determination identifying the violations within fifteen
business days after receipt of the Letter or Determination.'' This
proposed revision is intended to reduce the protracted negotiations
over the form of the final resolution document that have become
commonplace over recent years.
Required Elements of a Conciliation Agreement Sec. 38.93
The NPRM proposes to retain the language in current Sec. 38.97 for
proposed Sec. 38.93 titled ``Required elements of a conciliation
agreement.'' It retains current paragraph (a) and adds a new paragraph
(b) ``Address the legal and contractual obligations of the recipient.''
It re-numbers current paragraph (b) as new paragraph (c), current
paragraph (c) as paragraph (d), current paragraph (d) as paragraph (e)
and current paragraph (f) as new paragraph (i). The NPRM proposes a new
paragraph (g) to require that a conciliation agreement provide that
nothing in the agreement prohibits CRC from sending it to the
complainant, making it available to the public, or posting it on the
CRC or the recipient's Web site. The NPRM also proposes a new paragraph
(h) to require that a conciliation agreement provide that in any
proceeding involving an alleged violation of the conciliation
agreement, CRC may seek enforcement of the agreement itself and shall
not be required to present proof of the underlying violations resolved
by the agreement. This change brings the regulations in line with
current practice and with other nondiscrimination enforcement agencies
in DOL. For example, OFCCP has incorporated similar language into their
conciliation agreements pursuant to their regulations at 41 CFR 60-
1.34(d).
The proposal is consistent with the well-settled principle under
Title VII case law that a conciliation agreement entered to resolve
discrimination claims is specifically enforceable independent of a
finding that the employer did, in fact, engage in discriminatory
practices, so long as regular contract rules are satisfied and
enforcement does not conflict with the purposes of Title VII.\188\ The
courts have concluded that conciliation agreements would be rendered
worthless as a means of securing voluntary compliance with Title VII,
if a finding on the merits were required before any voluntary agreement
to resolve discrimination claims could be enforced.\189\ Likewise,
respondents that enter into conciliation agreements to resolve findings
of discrimination or other substantive violations do so voluntarily and
knowingly. Respondents are under no compulsion to execute conciliation
agreements; they are free to reject the terms of settlement and have
the matter resolved through the contested litigation. However, if a
respondent voluntarily and knowingly accepts an offer to conciliate a
matter, both parties, including the Government, are entitled to rely on
the representations contained in the conciliation agreement. The
conciliation agreement, as a contract, binds both parties and thus
inequities would result if one or the other party was allowed to ignore
its agreement and return to ``square one.'' \190\
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\188\ See, e.g., EEOC v. Safeway Stores, Inc., 714 F.2d 567 (5th
Cir. 1983), cert. denied, 467 U.S. 1204 (1984).
\189\ Eatmon v. Bristol Steel & Iron Works, Inc., 769 F.2d 1503,
1509 (11th Cir. 1985); EEOC v. Henry Beck Co., 729 F.2d 301, 305
(4th Cir. 1984); EEOC v. Safeway Stores, supra, 714 F.2d at 574.
\190\ 62 FR 44186, Aug. 19, 1997.
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When Voluntary Compliance Cannot Be Secured Sec. 38.94
The NPRM proposes retaining the language in current Sec. 38.98 in
proposed Sec. 38.94 titled ``When voluntary compliance cannot be
secured'' and adds ``the Governor'' in paragraphs (a) and (b)(1) to the
list of other entities--grant applicants and recipients--to which these
provisions apply. Although the Governor is also a recipient in certain
circumstances, these provisions add the Governor as a separate entity
to address violations that are not based on the Governor's status as a
recipient. As set forth in Subpart C, the Governor has additional
obligations to conduct oversight and monitoring of WIOA Title I-
financially assisted State programs and to develop a Nondiscrimination
Plan that are not based on the Governor's role as a recipient. The
Governor can be found in violation of this part for failure to comply
with those obligations.
Enforcement When Voluntary Compliance Cannot Be Secured Sec. 38.95
The NPRM retains the language of current Sec. 38.99 in proposed
Sec. 38.95 titled ``Enforcement when voluntary compliance cannot be
secured.''
Contents of a Final Determination of a Violation Sec. 38.96
The NPRM retains the language in current Sec. 38.100 in proposed
Sec. 38.96 titled ``Contents of a final determination of a
violation.''
Notification of Finding of Noncompliance Sec. 38.97
The NPRM proposes to retain the language in current Sec. 38.101 in
new Sec. 38.97 titled ``Notification of finding of noncompliance.''
Breaches of Conciliation Agreements
Notice of Breach of Conciliation Agreement Sec. 38.98
The NPRM proposes merging and retaining the language in current
Sec. 38.102 and Sec. 38.103 in new Sec. 38.98 titled ``Notice of
breach of conciliation agreement.''
Contents of Notice of Breach of Conciliation Agreement Sec. 38.99
The NPRM proposes retaining the language in current Sec. 38.104 in
Sec. 38.99 titled ``Contents of notice of breach of conciliation
agreement.''
Notification of an Enforcement Action Based on Breach of Conciliation
Agreement Sec. 38.100
The NPRM proposes retaining the language in current Sec. 38.105 in
Sec. 38.100 titled ``Notification of an enforcement action based on
breach of conciliation agreement.''
Subpart E--Federal Procedures for Effecting Compliance
In describing the procedures the Department will follow in
effecting compliance with the nondiscrimination and equal opportunity
provisions of WIOA and this part, the Department proposes a few minor
changes to the process it had followed in effecting compliance with the
counterpart provisions of WIA and part 37.
Enforcement Procedures Sec. 38.110
Proposed Sec. 38.110 generally contains the same requirements of
current Sec. 38.110. The Department proposes as the title for this
section, ``Enforcement Procedures,'' rather than the current heading of
Sec. 38.110, which is in question format. The proposed rule adds
language at the end of subsection (a)(3) stating that the Secretary may
take such action as may be provided by law ``which may include seeking
injunctive relief.'' This additional language is intended to provide
transparency by advising recipients that the Secretary may seek
corrective actions that go beyond make-whole relief, and provides an
example of such other actions.
Hearing Procedures Sec. 38.111
Proposed Sec. 38.111 contains the same requirements of current
Sec. 38.111. The Department proposes as the title for this section,
``Hearing Procedures,'' rather than using the current heading of Sec.
38.111, which is in question format. Proposed Sec. 38.111(b)(3)
specifies where a grant applicant or recipient must serve a copy of
their filings under this section and substitutes ``Civil Rights and
Labor-Management Division, Room N-2474''
[[Page 4527]]
for ``Civil Rights Division, Room N-2464'' to capture the current title
and location of the Office of the Solicitor Division to which filings
must be sent. Proposed Sec. 38.111(d)(2) deletes the word ``Uniform''
as used in current Sec. 38.111 (d)(2), ``Uniform Rules of Evidence
issued by the Department of Labor's Office of Administrative Law
Judges'' to reflect the current title of that rule at 29 CFR part 18.
Initial and Final Decision Procedures Sec. 38.112
Proposed Sec. 38.112 generally contains the same requirements of
current Sec. 38.112. The Department proposes as the title for this
section, ``Initial and final decision procedures,'' rather than the
heading of current Sec. 38.112, which is in question format. Proposed
Section 38.112 is composed of one paragraph that describes Initial
Decisions by an Administrative Law Judge and multiple paragraphs
concerning Final Decisions and Orders by the Secretary. Proposed Sec.
38.112 substitutes ``Administrative Review Board'' for the word
``Secretary'' where it appears in current Sec. 38.112 paragraphs
(b)(1), (b)(1)(i), (b)(1)(ii), (b)(1)(v), (b)(1)(vi), (b)(1)(vii)(A),
(b)(1)(vii)(B), (b)(1)(viii), and (b)(2)(ii). The NPRM substitutes
``Administrative Review Board'' (ARB) for the Secretary so that the
part 38 rule accurately reflects the ARB's role in issuing final agency
decisions in cases brought to enforce WIOA Section 188. In 1996, the
Secretary issued Secretary's Order 2-96 creating the ARB and delegating
to the ARB the Secretary's authority to issue final agency decisions
under 38 enumerated statutes, among them the Comprehensive Employment
and Training Act, 29 U.S.C. 801 et seq., and the Job Training
Partnership Act, 20 U.S.C. 1576, predecessor statutes to WIA and WIOA.
Secretary's Order 1-2002 included a delegation to the ARB for matters
arising under Section 188 of the Workforce Investment Act. 67 FR 64272
(October 17, 2002), as did Secretary's Order 02-2012, 77 FR 69376
(November 16, 2012). These delegation orders also contain a catch-all
provision to extend the delegation to subsequently enacted statutes or
rules, including: ``Any laws or regulation subsequently enacted or
promulgated that provide for final decisions by the Secretary of Labor
upon appeal or review of decisions, or recommended Decisions, issued by
ALJs, and any Federal law that extends or supplements unemployment
compensation and Provides for final decisions by the Secretary of
Labor.'' \191\ Thus, even absent a new delegation order, the ARB would
issue final agency decisions under Section 188 of WIOA.
---------------------------------------------------------------------------
\191\ 77 FR at 63279.
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The subparagraphs of proposed Sec. 38.112(b) set forth procedures
for filing exceptions to the Administrative Law Judge's initial
decision and order and issuance of a Final Decision and Order by the
Department. Proposed Sec. 38.112(b)(1)(iii) deletes the sentence
``[a]ny exception not specifically urged is waived'' from this
subparagraph. The Department no longer believes that this is an
accurate statement of the ARB's scope of review of initial decisions.
The Administrative Procedure Act provides that, on appeal from or
review of the initial decision, the agency has all the powers which it
would have in making the initial decision except as it may limit the
issues on notice or by rule.\192\ Where, as here, the applicable rule
does not specify the standard of review, ``the Board is not bound by
either the ALJ's findings of fact or conclusions of law, but reviews
both de novo.'' \193\
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\192\ 5 U.S.C. 557(b).
\193\ Masek v. The Cadle Co., ARB No.97-069, ALJ No. 1995-WPC-1
(ARB Apr. 25, 2000) at 7 (citations omitted). See also Jones v. U.S.
Dep't of Labor, 148 F.App'x 490, 2005 WL 2173769 (6th Cir Sept. 8,
2005) (ARB acted within its authority in drawing its own conclusions
based on its independent review of the evidence); Phillips v.
Stanley Smith Security, Inc., ARB No. 98-020, ALJ No. 1996-ERA-30
(ARB Jan. 31, 2001 (ARB reviews ALJ decisions under the ERA de novo,
but accords special weight to an ALJ's demeanor-based credibility
determinations.); Berkman v. U.S. Coast Guard Academy, ARB No. 98-
056, ALJ No. 1997-CAA-2 and 9 (ARB Feb. 29, 2000).
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Finally, proposed Sec. 38.112(b)(2)(ii) adds language providing
that, when a Final Determination or Notification of a Breach of
Conciliation Agreement becomes the Final Decision, the ARB may, within
45 days, issue an order terminating or denying the grant or
continuation of assistance or imposing appropriate sanctions not just
for failure of the grant recipient or recipient to comply with the
required corrective and/or remedial actions, but also for the
Governor's failure to comply. The NPRM inserts ``the Governor'' because
the Governor would have obligations under this part that are
independent of his or her role as a recipient. For example, Sections
38.50-55 impose on the Governor the obligation to conduct oversight,
and monitor the compliance, of WIOA title I financially assisted State
programs, and to develop and maintain a Nondiscrimination Plan for
State programs as defined in Sec. 38.4. Proposed Sec.
38.112(b)(2)(ii) retains the language in current Sec. 38.112(b)(2)(ii)
that the Secretary may refer the matter to the Attorney General for
further enforcement action. The NPRM retains the reference to the
Secretary's role here because this referral function has not been
delegated to the ARB.
Suspension, Termination, Withholding, Denial, or Discontinuation of
Financial Assistance Sec. 38.113
Proposed Sec. 38.113 contains the same requirements of current
Sec. 38.113. The Department proposes as the title for this section,
``Suspension, termination, withholding, denial or discontinuation of
financial assistance,'' rather than the heading of current Sec.
38.113, which is in question format. Consistent with the analysis set
forth in the proposed Sec. 38.112, the Department proposes in Sec.
38.113(c) to substitute ``Administrative Review Board'' for
``Secretary.''
Distribution of WIOA Title I Financial Assistance to an Alternate
Recipient Sec. 38.114
Proposed Sec. 38.114 contains the same requirements of current
Sec. 38.114. The Department proposes as the title for this section,
``Distribution of WIOA Title I financial assistance to an alternate
recipient,'' rather than the heading of current Sec. 38.114, which is
in question format.
Post-Termination Proceedings Sec. 38.115
Proposed Sec. 38.115 contains the same requirements of current
Sec. 38.115. The Department proposes as the heading for this section,
``Post-termination proceedings,'' rather than the heading of current
Sec. 38.115, which is in question format. Consistent with the
reasoning provided in proposed Sec. 38.112, and Sec. 38.113, the
Department proposes in Sec. 38.115 substituting ``Administrative
Review Board'' for ``Secretary'' throughout this section. This change
has been made in paragraphs (c)(2) and (c)(5) of this section.
Consistent with the reasoning provided in proposed Sec. 38.111, the
Department proposes in Sec. 38.115 substituting ``Civil Rights and
Labor-Management Division'' for ``Civil Rights Division'' in paragraph
(c)(3) of this section.
Appendix to Sec. 38.9
Recipient Language Assistance Plan (LEP Plan): Promising Practices
The proposed rule contains an Appendix that is intended to provide
further direction as to the obligations of recipients to take
reasonable steps to provide meaningful language access to LEP
individuals. The proposed Appendix provides a clear framework for
recipients that choose to develop a written LEP plan. The Appendix
states that, while written LEP plans are not required under Section 188
or this proposed part, development and implementation of such a plan
has the
[[Page 4528]]
benefit of providing the recipient with a roadmap for establishing and
documenting compliance with its LEP obligations.
As the proposed Appendix explains, the elements of an effective
written plan are not fixed, nor will they be the same for all
recipients. Rather, each recipient must tailor the plan to its specific
programs and activities, and should revise the plan, as appropriate, to
reflect updated government guidance, the recipients' experiences,
changes in the recipient's operations, changing demographics, and
stakeholder feedback. Based on its recent experiences in addressing
issues related to recipient compliance with LEP obligations, the
Department has set forth 14 suggested elements of a successful
recipient LEP plan.
Illustrative Applications in Recipient Programs and Activities
The proposed Appendix also contains several examples that
illustrate the types of reasonable steps that recipients may be
required to take to provide meaningful access to LEP individuals. In
the first example, an LEP individual who speaks Urdu seeks information
about unemployment insurance from a State's telephone call center.
Because of the nature and importance of unemployment insurance, the
resources of the State, and the wide availability of low-cost
commercial language services, such as telephonic oral interpretation
services, the State must, at a minimum, provide the LEP individual with
telephonic interpretation services to ensure meaningful access to the
unemployment insurance program even if Urdu is a non-frequently
encountered non-English language.
The second example illustrates that a recipient has some
flexibility as to reasonable steps that it may be required to take to
provide language assistance to LEP individuals. If an LEP individual
who speaks Tagalog requests a recipient that provides career services
to translate a brochure about an upcoming job fair, the reasonable
steps that the recipient must take will vary depending on whether
Tagalog is spoken by a significant number or proportion of the
population eligible to be served and is a language frequently
encountered in the career services program. The recipient would be
required to provide a written translation of vital information in the
brochure if the above factors were answered in the affirmative, but it
would satisfy the obligation to take reasonable steps for the recipient
to provide an oral summary of the brochure's contents if Tagalog were
not as commonly spoken in that service area.
The proposed Appendix also provides direction to recipients
regarding the provision of English language learning opportunities as
one of the possible reasonable steps a recipient may take to provide an
LEP individual meaningful access to its program or activity. The
Appendix also clarifies that taking reasonable steps may be a
collaborative process, although each recipient remains independently
obligated to take reasonable steps. The Appendix uses the example of an
LEP individual who learns through a One Stop Center of welding training
offered in English that is being provided by an eligible training
provider. In such a situation, the One Stop Center and eligible
training provider may work together to provide meaningful access. This
coordination may involve ensuring that the LEP individual receives
appropriate English learning from the One Stop or from another
organization that provides English language training at no cost to the
individual. Depending on the circumstances, the English language
training may be offered before or concurrently with enrollment in the
welding class.
III. Rulemaking Analyses and Notices
A. Executive Orders 12866 (Regulatory Planning and Review) and
Executive Order 13563 (Improving Regulation and Regulatory Review)
Executive Order (E.O.) 12866 directs agencies, in deciding whether
and how to regulate, to assess all costs and benefits of available
regulatory alternatives, including the alternative of not regulating.
E.O. 13563 is supplemental to and reaffirms E.O. 12866. It emphasizes
the importance of quantifying present and future benefits and costs;
directs that regulations be adopted with public participation; and,
where relevant and feasible, directs that regulatory approaches be
considered that reduce burdens, harmonize rules across agencies, and
maintain flexibility and freedom of choice for the public. Costs and
benefits shall be understood to include both quantifiable measures and
qualitative assessments of possible impacts that are difficult to
quantify. If regulation is necessary, agencies should select regulatory
approaches that maximize net benefits. The Office of Management and
Budget (OMB) determines whether a regulatory action is significant and,
therefore, subject to review.
Section 3(f) of E.O. 12866 defines a ``significant regulatory
action'' as any action that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising from legal mandates,
the President's priorities, or the principles set forth in E.O. 12866.
Summary of the analysis. The Department provides the following
summary of the regulatory impact analysis:
(1) The proposed rule is a ``significant regulatory action'' under
Section 3(f)(4) of E.O. 12866; therefore, OMB has reviewed the proposed
rule.
(2) The proposed rule would have a negligible net direct cost
impact on small entities beyond the baseline of the current costs
required by the Workforce Innovation and Opportunity Act (WIOA) program
as it is currently implemented in regulation.
(3) The proposed rule would not impose an unfunded mandate on
Federal, State, local, or tribal governments as defined by the Unfunded
Mandates Reform Act.
In total, the Department estimates that this NPRM would have a
first year cost of $28,250,547and second and future-year cost of $
9,487,711 as detailed in Table 3 and Table 4. The proposals in the NPRM
would not create significant new costs or burdens for Governors,
recipients, or beneficiaries. The primary administrative burden created
for recipients in the first year would be the cost of regulatory
familiarization, which the Department calculates to be just over $12
million. The primary administrative burden created for Governors in the
first year would be the cost of conducting monitoring of recipients for
compliance with the nondiscrimination and equal opportunity provisions,
which the Department calculates to be approximately $6.55 million. The
other new cost burdens created for recipients in the first year would
be: (1) The cost of pregnancy accommodations, which the Department
calculates to be just over $100,000; (2) the cost of compliance with
record keeping, translation, and interpretation obligations related to
limited English proficient beneficiaries,
[[Page 4529]]
which the Department is currently unable to calculate, and about which
the Department seeks comment; (3) the cost of updating and
disseminating equal opportunity notices and posters, which the
Department calculates to be approximately $4 million; (4) the cost of
incorporating two new categories of demographic data collection on
limited English proficiency and preferred language, which the
Department calculates to be approximately $3.75 million; and (5) the
cost of updating complaint processing procedures, which the Department
calculates to be approximately $1.5 million.
The Department was unable to quantify estimates of several
important benefits to society due to data limitations or lack of
existing data or evaluation findings on particular items. However,
overall many of the proposed revisions to 29 CFR part 38 contained in
the NPRM will improve readability and provide additional guidance to
Governors and recipients, in several instances in response to feedback
from stakeholders, to their benefit. For example, additional language
in Sec. Sec. 38.28-38.31 regarding the obligations of Equal
Opportunity Officers (EO Officers) and recipients' obligations
regarding their EO Officers provides detailed direction that benefits
recipients. Similarly, language in Sec. 38.92 provides additional
detail regarding the use of written assurances in the enforcement of
nondiscrimination and equal opportunity requirements that resolves
confusion that recipients raised about its use. In addition, by
including updates to the nondiscrimination provisions in Sec. Sec.
38.7-38.17, the NPRM makes it easier for Governors and recipients to
meet their equal opportunity and nondiscrimination obligations under
Section 188 of WIOA because the implementing regulations contain
provisions consistent with requirements with which they are already
required to comply under Federal laws such as Title VI and Title VII of
the Civil Rights Act of 1964, as amended; Title IX of the Education
Amendments of 1972; Americans with Disabilities Act of 1990, as
amended; and Section 504 of the Rehabilitation Act.
The Department requests comment on the costs and benefits of this
NPRM with the goal of ensuring a thorough consideration and discussion
at the Final Rule stage.
1. The Need for the Regulation
Signed by President Obama on July 22, 2014, the Workforce
Investment and Opportunity Act (WIOA) supersedes the Workforce
Investment Act of 1998 (WIA) as the Department's primary mechanism for
providing financial assistance for a comprehensive system of job
training and placement services for adults and eligible youth. Section
188 of WIOA contains the identical provisions of Section 188 as
appeared in WIA and prohibits the exclusion of an individual from
participation in, denial of the benefits of, discrimination in, or
denial of employment in the administration of or in connection with,
any programs and activities funded or otherwise financially assisted in
whole or in part under Title I of WIOA because of race, color,
religion, sex, national origin, age, disability, political affiliation
or belief, and for beneficiaries only, citizenship status, or
participation in a program or activity that receives financial
assistance under Title I of WIOA. Section 188(e) of WIOA requires that
the Department issue regulations implementing Section 188.
2. Technical Update of Section 188 versus publication of a simultaneous
NPRM
The Department considered two possible alternatives:
(1) To publish a Final Rule as 29 CFR part 38 implementing Section
188 of WIOA with only technical updates to the regulations at 29 CFR
part 37 which implements Section 188 of WIA; or
(2) To publish the above mentioned Final Rule followed by an NPRM.
The above mentioned Final Rule would apply until issuance of a Final
Rule based on the NPRM. The NPRM would update part 38 consistent with
current law and address its application to current workforce
development and workplace practices and issues.
The Department has considered these options in accordance with the
provisions of E.O. 12866 and has chosen to publish this NPRM soon after
a technically updated Final Rule implementing Section 188 of WIOA
(i.e., alternative 2). The Department believes that the current rule
does not reflect recent developments in equal opportunity and
nondiscrimination jurisprudence. Moreover, procedures and processes for
enforcement of the nondiscrimination and equal opportunity provisions
of Section 188 have not been revised to reflect changes in the
practices of recipients since 1999, including the use of computer-based
and internet-based systems to provide aid, benefits, services, and
training through WIOA Title I-financially assisted programs and
activities. Thus, only reissuing the existing regulations with
technical updates (i.e., alternative 1) would have the negative effect
of continuing to impose ongoing compliance costs on recipients.
3. Analysis Considerations
The Department derives its estimates by comparing the existing
program baseline, that is, the program benefits and costs estimated as
a part of the regulations implementing Section 188 of WIA, found at 29
CFR part 37.
For a proper evaluation of the benefits and costs of the NPRM, the
Department explains how the newly required actions by States and
recipients under the proposed regulations at part 38 are linked to the
expected benefits and estimated costs. The Department also considered,
when appropriate, the unintended consequences of the proposed
regulations introduced by the NPRM. The Department makes every effort,
when feasible, to quantify and monetize the benefits and costs of the
NPRM. When the Department is unable to quantify them--for example, due
to data limitations--the Department describes the benefits and costs
qualitatively.
In accordance with the regulatory analysis guidance contained in
OMB Circular A-4 and consistent with the Department's practices in
previous rulemakings, this regulatory analysis focuses on the likely
consequences (benefits and costs that accrue to citizens and residents
of the United States) of the WIOA-required NPRM.
Table 1 presents the estimated annual number of recipients expected
to experience an increase in level of effort (workload) due to the
proposed language in this NPRM. These estimates are used extensively
throughout this document to calculate the estimated costs for each
provision. Note that several recipients are likely counted more than
once under different categories because they receive more than one
source of WIOA Title I financial assistance. For example, the Texas
Workforce Commission is both a recipient of a Senior Community Service
Employment Program Grant as well as an Adult WIOA Title I grantee.
However, the Department decided to include them in both the ``States''
category of recipient and under a ``National Programs'' category to
avoid the risk of being under-inclusive in the calculations. At the
same time, there are entities that local workforce boards may include
in the One-Stop delivery system, and thus, may be recipients if they
become partners. These optional partners include the Supplemental
Nutritional Assistance Program employment and training program, Ticket-
to-Work and the Self-Sufficiency Program of the Social Security
[[Page 4530]]
Administration. Similarly, the beneficiary estimate may be over-
inclusive because several beneficiaries are likely counted more than
once under different categories because they receive aid, service,
training or benefit from more than one recipient. However, the
Department decided to include them in both the State Workforce Agencies
category of recipient and National Programs category in an effort to be
over-inclusive, rather than risking being under-inclusive in our
calculations.
Table 1--Estimated Annual Number of Recipients, Beneficiaries, and Non-Federal Full-Time Employees of Recipients
----------------------------------------------------------------------------------------------------------------
Estimated
Estimated annual number
Estimated annual number of non-federal
Recipients annual number of full-time
of recipients beneficiaries employees of
recipients
----------------------------------------------------------------------------------------------------------------
States \194\................................................... \195\ 56
Adult Program (Title I of WIOA)............................ (\195\) ............... \196\ 65,655
Dislocated Worker Program (Title I of WIOA)................ (\195\) ............... (\196\)
Youth Program (Title I of WIOA)............................ (\195\) \197\ 197,045 (\196\)
Wagner-Peyser Act Program (Wagner-Peyser Act, as amended by (\195\) \198\ (\196\)
Title III of WIOA)........................................ 16,619,943
Adult Education and Literacy Program (Title II of WIOA).... (\195\) \199\ 2,012,163 \200\ 67,293
Vocational Rehabilitation Program.......................... (\195\) \201\ 573,086 \202\ 68,000
Trade Adjustment Assistance Program........................ (\195\) \203\ 62,706 (\196\)
Unemployment Compensation Program.......................... (\195\) \204\ 2,451,464 \205\ 62,138
Local Veterans' Employment Representatives and Disabled (\195\) \206\ 450,843 \207\ 2,700
Veterans' Outreach Program................................
Career and Technical Education (Perkins)................... (\195\) \208\ (\196\)
12,052,217
Community Service Block Grants............................. (\195\) \209\ (\196\)
16,000,000
Temporary Assistance for Needy Families (TANF)............. (\195\) \210\ 4,417,000 (\196\)
State and Local Workforce Investment Boards.................... \211\ 580 ............... \212\ 9,280
Job Corps Operators (i.e. national contractors)................ \213\ 18 214 215109,627 216 2173,050
Job Corps Outreach and Admissions Operators.................... \218\ 24 (\215\) (\217\)
Job Corps national training contractors/Career Transition \219\ 21 (\215\) (\217\)
Services Operators............................................
Service providers, including eligible training providers and on- \221\ 11,400 \222\ 122,693 \223\ 439,936
the-job training employers \220\..............................
One Stop Career Centers \224\.................................. \225\ 2,481 \226\ 864,936 \227\ 2,481
National Programs Include:
Senior Community Service Employment Grants................. \228\ 71 \229\ 67,814 (\196\)
National Emergency Grants \230\............................ \231\ 125 \232\ 26,221 \233\ 9,280
Reintegration of Ex-Offenders--Adult Grants \234\.......... \235\ 28 \236\ 6,800 \237\ 555
H-1B Technical Skills Training Grants \238\................ \239\ 36 \240\ 22,543 \241\ 774
H-1B Jobs and Innovation Accelerator Challenge Grants \242\ \243\ 30 \244\ 11,200 \245\ 183
Indian and Native American Programs........................ \246\ 178 \247\ 40,102 \248\ 994
National Farmworker Jobs Program........................... \249\ 69 \250\ 35,192 \251\ 60,965
YouthBuild................................................. \252\ 82 \253\ 7,604 \254\ 2,408
Registered Apprenticeship Program.......................... \255\ 19,259 \256\ 170,500 \257\ 85,317
------------------------------------------------
Total.................................................. 34,458 56,321,699 881,009
----------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------
\194\ The 56 State entities are the recipients for the twelve
programs below.
\195\ This number includes the 50 states as well as the District
of Columbia, American Samoa, Guam, Northern Mariana Islands, Puerto
Rico, and U.S. Virgin Islands. These 56 entities are the recipients
for the following programs and are thus counted only once: Adult
Program (Title I of WIOA), Dislocated Worker Program (Title I of
WIOA), Youth Program (Title I of WIOA), Wagner-Peyser Act Program
(Wagner-Peyser Act, as amended by Title III of WIOA), Adult
Education and Literacy Program (Title II of WIOA), Vocational
Rehabilitation Program, Trade Adjustment Program, Unemployment
Compensation Program, Local Veterans' Employment Representatives and
Disabled Veterans' Outreach Program, Career and Technical Education
(Perkins), Community Service Block Grants, and Temporary Assistance
for Needy Families (TANF).
\196\ This number is an estimate based on the average number of
employees at state-level Department of Labor equivalents. These same
65,655 employees account for the non-federal full-time employees in
the following programs and are thus counted only once: Adult Program
(Title I of WIOA), Dislocated Worker Program (Title I of WIOA),
Wagner-Peyser Act Program (Wagner-Peyser Act, as amended by Title
III of WIOA), Trade Adjustment Assistance Program, Career and
Technical Education (Perkins), Community Service Block Grants,
Temporary Assistance for Needy Families (TANF), and Senior Community
Service Employment Grants.
\197\ Employment and Training Administration, Workforce System
Results: For the Quarter ending June 03, 2014, U.S. Department of
Labor 2, http://www.doleta.gov/performance/results/pdf/workforceSystemResultsJune2014.pdf [hereinafter Workforce System
Results] (last visited June 24, 2015).
\198\ National--Wagner-Peyser: Program Year 2013, U.S.
Department of Labor Employment and Training Administration 1, http://www.doleta.gov/performance/results/pdf/WagnerPeyserPY2013.pdf (last
visited June 25, 2015).
\199\ Office of Vocational and Adult Education, Adult Education
and Family Literacy Act of 1998: Annual Report to Congress Program
Year 2010-2011, U.S. Department of Education xii, http://www2.ed.gov/about/offices/list/ovae/resource/aefla-report-to-congress-2010.pdf (last visited June 24, 2015).
\200\ Adult Education Personnel, National Reporting System 1,
http://www.nrsweb.org/docs/NRS_Fast_Facts_508_rev.pdf (last visited
June 24, 2015).
\201\ Office of Special Education and Rehabilitative Services,
Annual Report Fiscal Year 2012, U.S. Department of Education 21,
http://www2.ed.gov/about/reports/annual/rsa/2012/rsa-2012-annual-report.pdf (last visited June 24, 2015).
\202\ This is an estimate based on the average number of
employees at state-level Department of Labor equivalents.
\203\ Workforce System Results, supra note 188, at 2.
\204\ Id.
\205\ This is an estimate based on the average number of
employees at state-level Department of Labor equivalents.
\206\ Veterans' Employment & Training Service, Annual Report to
Congress: Fiscal Year 2013, U.S. Department of Labor 9, http://www.dol.gov/vets/media/DOL-VETS-FY2013_ANNUAL_REPORT-OMB-CLEARED_10-16-14.pdf (last visited June 24, 2015). This number is for PY 2012.
Id.
\207\ LVER and DVOP Fact Sheet, U.S. Department of Veterans
Affairs 1-2, http://www.benefits.va.gov/VOW/docs/LVER_DVOP_Factsheet.pdf (last visited June 24, 2015).
\208\ Carl D. Perkins Career and Technical Education Act of
2006: Report to Congress on State Performance Program Year 2010-
2011, U.S. Department of Education 12, https://s3.amazonaws.com/PCRN/docs/Rpt_to_Congress/Perkins_RTC_2010-11.pdf (last visited June
24, 2015).
\209\ Fiscal Year 2015: Justification of Estimates for
Appropriations Committees, Administration for Children & Families
171, https://www.acf.hhs.gov/sites/default/files/olab/fy_2015_congressional_budget_justification.pdf (last accessed June
25, 2015).
\210\ Welfare Indicators and Risk Factors: Thirteenth Report to
Congress, U.S. Department of Health and Human Services A-8, http://aspe.hhs.gov/hsp/14/indicators/rpt_indicators.pdf (last visited June
24, 2015).
\211\ Provided by the Employment and Training Administration
(ETA), U.S. Department of Labor, from the burden analysis contained
in WIOA NPRM implementing Titles I and III available at https://www.federalregister.gov/articles/2015/04/16/2015-05530/workforce-innovation-and-opportunity-act [hereinafter ETA NPRM] (last visited
June 24, 2015).
\212\ This number is an estimate based on the average number of
full-time employees from fourteen boards multiplied by the number of
recipients. The fourteen boards include three from North Carolina,
three from West Virginia, one from Virginia, three from Washington,
three from Wisconsin, and one from Illinois.
\213\ PY 08: U.S. Department of Labor Job Corps Annual Report,
U.S. Department of Labor 13, http://www.jobcorps.gov/Libraries/pdf/py08report.sflb [hereinafter PY 08] (last visited June 24, 2015).
\214\ Workforce System Results, supra note 188 at 2.
\215\ Job Corps Operators, Job Corps Outreach and Admissions
Operators, and Job Corps national training contractors/Career
Transition Services Operators serve the same beneficiaries, so they
are only counted once.
\216\ This number is an estimate based on the assumption that
there twenty-five employees at each of the Job Corps centers.
\217\ Job Corps Operators, Job Corps Outreach and Admissions
Operators, and Job Corps national training contractors/Career
Transition Services Operators utilize the same employees, so they
are only counted once.
\218\ PY 08, supra note 204, at 13.
\219\ PY 08, supra note 204, at 13.
\220\ PY 2012 estimated, see http://www.doleta.gov/performance/results/pdf/PY2012WIATrends.pdf.
\221\ ETA NPRM, supra note 202.
\222\ Senior Policy Research Associates, PY 2012 WIA Trends Over
Time, U.S. Department of Labor Employment and Training
Administration 26, http://www.doleta.gov/performance/results/pdf/PY2012WIATrends.pdf [hereinafter WIA Trends Over Time] (last visited
June 24, 2015).
\223\ This number is an estimate based on the average number of
employees at five different community colleges multiplied by 56 (the
50 states, the District of Columbia, and American Samoa, Guam,
Northern Mariana Islands, Puerto Rico, and U.S. Virgin Islands). One
college each came from the following states: Alabama, North
Carolina, Virginia, Kentucky, and Colorado.
\224\ PY 2012 see http://www.doleta.gov/performance/results/pdf/PY2012WIATrends.pdf.
\225\ ETA NPRM, supra note 202.
\226\ WIA Trends Over Time, supra note 213, at 26.
\227\ This is an estimate based on the assumption that there is
usually one point of contact per One-Stop. See Regional, State, and
Local Contacts, U.S. Department of Labor Employment and Training
Administration, http://wdr.doleta.gov/contacts/ (last visited June
24, 2015).
\228\ Senior Community Service Employment Program, U.S.
Department of Labor Employment and Training Administration, http://www.doleta.gov/seniors/ (last updated Apr. 18, 2014).
\229\ Workforce System Results, supra note 188, at 2.
\230\ PY 2012 see http://www.doleta.gov/performance/results/pdf/PY2012WIATrends.pdf.
\231\ See Total Active National Emergency Grant Awards by State,
U.S. Department of Labor Employment and Labor Administration, http://www.doleta.gov/neg/neg_map_data.cfm (last updated Aug. 11, 2014).
\232\ WIA Trends Over Time, supra note 213, at 32.
\233\ This number is an estimate based on the average number of
full-time employees from fourteen boards. The fourteen boards
include three from North Carolina, three from West Virginia, one
from Virginia, three from Washington, three from Wisconsin, and one
from Illinois.
\234\ PY 2011 announcement, see http://www.doleta.gov/grants/pdf/sga_dfa_py_11_02_final_1_11_2012.pdf.
\235\ Reentry Employment Opportunities (REO), Department of
Labor Employment and Training Administration, http://www.doleta.gov/REO/trainingtowork_grantees.cfm (last accessed June 24, 2015).
\236\ Notice of Availability of Funds and Solicitation for Grant
Applications for Reintegration of Ex-Offenders (RExO) Adult
Generation 5, U.S. Department of Labor Employment and Training
Administration 6, http://www.doleta.gov/grants/pdf/sga_dfa_py_11_02_final_1_11_2012.pdf (last visited June 24, 2015).
\237\ This number is an estimate based on the average number of
full-time employees at grantee organizations (17) multiplied by the
average number of full-time employees at 11 Training to Work 2
grantees (32.64).
\238\ PY 2011, http://www.doleta.gov/business/pdf/H-1B_TST_R1-R2_Grant_Summaries_Final.pdf.
\239\ Overview of the H-1B Technical Skills Training (TST)
Grants, U.S. Department of Labor Employment and Training
Administration 1, http://www.doleta.gov/business/pdf/H-1B_TST_R1-R2_Grant_Summaries_Final.pdf (last visited June 24, 2015). This is
the most recent data available and assumes no variation from year to
year of total national programs, although the names of the
individual grant programs may shift from year to year. Similar grant
activities continue from year to year, even if they are not these
same grants.
\240\ Id. This number is an estimate based on the total number
of each grantee's projections.
\241\ This number is an estimate based on the average number of
full-time employees at six grantees (21.5) multiplied by the number
of recipients (36).
\242\ 2011, http://manufacturing.gov/docs/2011-jobs-accelerator-overviews.pdf.
\243\ Overview of the H-1B Jobs and Innovation Accelerator
Challenge (Jobs Accelerator) Grants, U.S. Department of Labor
Employment and Training Administration 1, http://www.doleta.gov/business/pdf/H-1B_Jobs_Accelerator_R1-R2_Project_Summaries_FINAL.pdf
(last visited June 24, 2015).
\244\ See The 2011 Jobs and Innovation Accelerator Challenge,
manufacturing.gov 1, http://manufacturing.gov/docs/2011-jobs-accelerator-overviews.pdf (last visited June 24, 2015).
\245\ This number is an estimate based on the average number of
full-time employees at six grantees.
\246\ FY 2015 Congressional Budget Justification, U.S.
Department of Labor 74, http://www.dol.gov/dol/budget/2015/PDF/CBJ-2015-V1-04.pdf (last visited June 24, 2015).
\247\ See Workforce System Results, supra note 188, at 2. This
number was derived from adding the number of beneficiaries of the
Indian and Native American Adult Program and the program for Indian
and Native American Youth.
\248\ This number is an estimate based on the assumption that
American Indian and Alaskan Natives make up 1.6% of the total number
of non-Federal full-time employees as with the total population.
\249\ See National Farmworker Jobs Program, U.S. Department of
Labor Employment and Training Administration, http://www.doleta.gov/Farmworker/html/NFJP_factsheet.cfm (last visited June 24, 2015).
\250\ Workforce System Results, supra note 188, at 2.
\251\ This number is an estimate based on the average number of
full-time employees at state-level Department of Labor equivalents
multiplied by the number of grantees.
\252\ FY 2016 Department of Labor Budget in Brief, U.S.
Department of Labor 14, http://www.dol.gov/dol/budget/2016/PDF/FY2016BIB.pdf (last visited June 24, 2015).
\253\ Workforce System Results, supra note 188, at 2.
\254\ This number is based on the average number of employees at
twenty-three grantees multiplied by the number of grantees.
\255\ This number was provided by the Apprenticeship Program
Office at the Department of Labor.
\256\ Registered Apprenticeship National Results: Fiscal Year
2014, U.S. Department of Labor Employment and Training
Administration, http://doleta.gov/oa/data_statistics.cfm (last
updated Feb. 23, 2015). In FY 2014, more than 170,500 individuals
nationwide entered the apprenticeship system. We estimate in FY
2014, 5.9% (9,488 active female apprentices/159,773 total active
apprentices in the Registered Apprenticeship Partners Information
Management Data System (RAPIDS) database) of active apprentices were
women.
\257\ This number is an estimate based on the average number of
paid employees per firm (4.43) multiplied by the number of
recipients. See Statistics about Business Size (including Small
Business) from the U.S. Census Bureau, U.S. Census Bureau, http://www.census.gov/econ/smallbus.html (last visited June 24, 2015).
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[[Page 4531]]
Table 2, below, presents the compensation rates for the
occupational categories expected to experience an increase in level of
effort (workload) due to the proposed rule. The Department used mean
hourly wage rates from the Bureau of Labor Statistics' Occupational
Employment Statistics (OES) program for private, State and local
employees.\258\ The Department adjusted the wage rates using a loaded
wage factor to reflect total compensation, which includes health and
retirement benefits. For these State and local sectors, the Department
used a loaded wage factor of 1.55, which represents the ratio of total
compensation to wages.\259\ The Department then multiplied the loaded
wage factor by each occupational category's wage rate to calculate an
hourly compensation rate. The Department used the hourly compensation
rates presented in Table 2 extensively throughout this document to
calculate the estimated labor costs for each provision. This analysis
uses the wages of managers and computer programmers and the Federal
minimum wage for beneficiaries. Throughout this analysis, the
Department assumes Equal Opportunity Officers (EO Officers), at
[[Page 4532]]
both the state and local level, are managers. This assumption is based
upon our experience with recipients combined with the proposed language
in the NPRM in which the Department states that the EO Officer must
report directly to the Governor or the chief operating officer or
equivalent of the recipient.\260\ Further, the Department is aware that
administrative support workers may perform some of the functions where
the need for computer programmers is indicated. However, since there is
currently no data to indicate the proportion of computer programmer
versus administrative support staff that would be used for the various
functions, this analysis uses the wages for computer programmers in
estimating the NPRM costs, thereby providing an upper-bound of cost for
these functions. The beneficiary wage rate in Table 2 is used in this
document to calculate the estimated costs to beneficiaries throughout
this document. Throughout this analysis, the Department assumes that
beneficiaries would be paid at least the Federal minimum wage.
---------------------------------------------------------------------------
\258\ http://www.bls.gov/oes/current/oes_nat.htm.
\259\ Discerning the number of State and local-sector employees
and private-sector employees at the local level is difficult;
therefore, the CRC used the State and local-sector loaded wage
factor (1.55) instead of the private-sector wage factor (1.42) for
all employees to avoid underestimating the costs.
\260\ See proposed Sec. Sec. 38.28-38.31.
---------------------------------------------------------------------------
The Department invites comments regarding data sources for the
wages and the loaded wage factors that reflect employee benefits used
in the analysis as well as other assumptions used in calculating burden
and costs.
---------------------------------------------------------------------------
\261\ BLS OES, May 2014, 11-1021 General and Operations Managers
(http://www.bls.gov/oes/current/oes111021.htm).
\262\ BLS OES, May 2014, 15-1131 Computer Programmers (http://www.bls.gov/oes/current/oes151131.htm).
\263\ This is the current Federal minimum wage. 29 U.S.C.
206(a)(1)(C).
Table 2--Calculation of Hourly Compensation Rates
----------------------------------------------------------------------------------------------------------------
Hourly
Position Mean hourly Loaded wage compensation
wage factor rate
A B C = A x B
----------------------------------------------------------------------------------------------------------------
Managers \261\.................................................. $56.35 1.55 $87.34
Computer Programmers \262\...................................... 39.75 .............. 61.61
Beneficiaries \263\............................................. 7.25 .............. 7.25
----------------------------------------------------------------------------------------------------------------
4. Subject-by-Subject Benefit-Cost Analysis
The Department's analysis below covers the expected impacts of the
following proposed provisions of the WIOA NPRM against the baseline of
practice under WIA Section 188 and implementing regulations at part 37.
The Department emphasizes that many of the NPRM provisions are also
existing requirements under WIA. For example, 29 CFR 38.5 prohibits
recipients from excluding an individual from participation in, denial
of the benefits of, discrimination in or denial of employment in the
administration of or in connection with, any WIOA Title I-financially
assisted program or activity on the basis of race, color, religion,
sex, national origin, age, disability, political affiliation or belief,
and for beneficiaries only, citizenship status or participation in any
WIOA Title I-financially assisted program or activity. The NPRM retains
these requirements, but revises the language to make it easier to read,
and also provides separate sections in the rule defining discrimination
based on national origin, sex, and citizenship status to aid recipients
in meeting their obligations.\264\ Accordingly, this regulatory
analysis focuses on ``new'' benefits and costs that can be attributed
to revisions of existing obligations and new requirements contained in
this NPRM. Much of WIA's infrastructure and operations are carried
forward under the WIOA and therefore are not considered ``new'' cost
burdens under this proposed rulemaking.
---------------------------------------------------------------------------
\264\ See 29 CFR 38.9, 38.7, and 38.11.
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Request for Comments
This NPRM implements the nondiscrimination and equal opportunity
provisions of Section 188 of WIOA, and requests comments about the
burden and costs associated with this NPRM including from: State and
local governments, public interest groups, current and potential grant
applicants for and recipients of WIOA Title I-federal financial
assistance (particularly current and potential providers of training
services), current and potential beneficiaries of such Federal
financial assistance, and the public.
Discussion of Impacts
In this section, the Department presents a summary of the costs
associated with the new requirements of the regulations.
The NPRM proposes revising 29 CFR part 38, issuing new regulations
that set forth the requirements that recipients must meet in fulfilling
their obligations under Section 188 of WIOA to ensure nondiscrimination
and equal opportunity in WIOA Title I-federally assisted programs,
services, aid, and activities.
There will be approximately 34,458 recipients of WIOA Title I
federal financial assistance annually who will serve approximately
56,321,699 beneficiaries annually with approximately 881,009 non-
Federal employees of recipients annually based on our informed
estimates.\265\
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\265\ See Table 1 for a breakdown of these numbers.
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Cost of Regulatory Familiarization
Agencies are required to include in the burden analysis the
estimated time it takes for recipients to review and understand the
instructions for compliance.\266\
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\266\ See 5 CFR 1320.3(b)(1)(i).
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Based on its experience with recipients' compliance with the laws
the Civil Rights Center (CRC) enforces and the mandate of the existing
and revised regulations that each recipient has an EO Officer (see 29
CFR 38.28 and 38.29), CRC believes that EO Officers at each recipient
will be responsible for understanding or becoming familiar with the new
requirements. Therefore, the Department estimates that it will take 4
hours for the EO Officer at each recipient to read the rule.
Consequently, the estimated burden for rule familiarization for these
managers is 137,832 hours (34,458 x 4 hours). The Department calculates
the total estimated cost as $12,038,247 (137,832 x $87.34/hour).\267\
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\267\ Throughout this proposed rule, the Department assumes that
EO Officers are managers.
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The following is a description of additional costs and burdens as a
result of this NPRM. It follows the organization of the NPRM for ease
of reference.
[[Page 4533]]
Subpart A--General Provisions
Discrimination Prohibited Based on Pregnancy Sec. 38.8
The rule proposes a new Sec. 38.8 titled, ``Discrimination
Prohibited Based on Pregnancy.''
The language in the NPRM requires recipients in certain situations
to provide reasonable accommodations or modifications to a pregnant
applicant or participant who is temporarily unable to participate in
some portions of a WIOA Title I-financially assisted training program
or activity because of pregnancy, childbirth, and/or related medical
conditions, when such accommodations or modifications are provided, or
are required to be provided, by a recipient's policy or by other
relevant laws, to other applicants or participants not so affected but
similar in their ability or inability to participate.
To determine the burden of this accommodation provision, the
Department estimated the number of beneficiaries of WIOA Title I-
financially assisted programs and activities and the number of
employees of recipients of WIOA Title I-financially assisted programs
who may need an accommodation during pregnancy in a year. No specific
data sets detail the characteristics of beneficiaries and employees of
WIOA Title I-financially assisted programs or activities relating to
pregnancy. Thus, the Department relied on the data sets available from
the Employment and Training Administration for beneficiaries of WIOA
Title I-financially assisted training programs, including the Job Corps
Program, and estimated the number of employees of recipients and the
data sets available for the general population and general labor
force.\268\ The Department believes that the characteristics of the
general labor force are similar to the WIOA Title I-financially
assisted workforce.
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\268\ Note that the analysis used is modeled after that used by
OFCCP in its Sex Discrimination NPRM issued on January 30, 2015 at
80 FR 5246.
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Not every pregnant employee of a recipient in the WIOA Title I-
financially assisted workforce will require an accommodation that might
involve more than a de minimis cost. In fact, the Department believes
most will not. Many will have no medical condition associated with
their pregnancies that require such accommodation. Providing light duty
or accommodations for pregnancy generally involves adjusting work
schedules or allowing more frequent breaks, both of which the
Department believes would incur little to no additional cost in most
cases. However, for those who do have such conditions, the positions
held by employees or training opportunities that beneficiaries may
participate in that require such accommodation generally involve
physical exertion or standing; such positions are likely to be found in
the job categories of craft workers, operatives, laborers, and service
workers. The majority of employees of recipients and beneficiaries of
WIOA Title I-financial assistance will not be undertaking employment or
training requiring accommodations for pregnancy related medical
conditions.
Similarly, only beneficiaries who participate in the job training
opportunities for occupations that require physical exertion or
standing will require accommodations. For example, the number of women
who are pregnant of the individuals who are beneficiaries of
unemployment insurance will not need accommodations as services are
obtained in large part electronically. As stated above, providing light
duty or accommodation for pregnancy involves adjusting schedules or
allowing more frequent breaks at little or no additional cost. However,
a small percentage of the adult women who will annually receive
training from eligible training providers, on-the-job training programs
or Registered Apprenticeship programs and a small percentage of the
female students who will receive Job Corps Center services annually
will participate in training opportunities that may require physical
exertion or standing for long periods of time and may need
accommodations. The Department estimates that of the women who are
employees of recipients or participants in training programs or in Job
Corps Centers, 21 percent work in or are in training for job categories
likely to require accommodations that might involve more than a de
minimis cost.\269\
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\269\ Note that the analysis used is modeled after that used by
OFCCP in their Sex Discrimination NPRM issued on January 30, 2015 at
80 FR 5246, 5248. OFCCP based this estimation on data from the
Employer Information Report EEO-1. See 80 FR 5246, 5262.
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Because these data do not indicate gender demographics, the
Department used data from the Bureau of Labor Statistics that indicate
that 47 percent of the workforce is female.\270\ Therefore, the
Department estimates that 57,666 (122,693 x .47) adult women are
beneficiaries of eligible training providers and on the job training
employers annually.\271\ In addition, the Department estimates that
10,060 (170,500 x .059) adult women were beneficiaries of Registered
Apprenticeship programs annually.\272\ Moreover, the Department
estimates that there are 43,851 girls and women who are annual
beneficiaries of the Job Corps program (109,627 x .40).\273\ In
addition, the Department estimated the number of individuals employed
by recipients of WIOA Title I financial assistance to be 528,303 non-
Federal employees of eligible training providers and on-the-job
training programs, Registered Apprenticeship programs, and Job Corps
Centers. (439,936 + 85,317 + 3,050). Because these data do not indicate
gender demographics, the Department again used data from the Bureau of
Labor Statistics that indicate that 47 percent of the workforce is
female.\274\ Using these assumptions there are 248,302 (528,303 x .47)
adult women non-Federal employees of recipients.
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\270\ Women in the Labor Force: A Databook, BLS Reports,
available at http://www.bls.gov/cps/wlf-databook-2012.pdf (last
accessed Oct. 6, 2014).
\271\ Provided by the Employment and Training Administration
(ETA), U.S. Department of Labor, from the burden analysis contained
in WIOA NPRM implementing Titles I and III available at https://www.federalregister.gov/articles/2015/04/16/2015-05530/workforce-innovation-and-opportunity-act [hereinafter ETA NPRM] (last visited
June 24, 2015).
\272\ 5.9 percent of active beneficiaries in the Registered
Apprenticeship program in 2014 were female. Registered
Apprenticeship Partners Information Management Data System (RAPIDS)
managed by Department of Labor staff only.
\273\ Forty percent of the students benefiting from Job Corps
programs annually are girls and young women. See http://www.jobcorps.gov/libraries/pdf/who_job_corps_serves.sflb.
\274\ Women in the Labor Force: A Databook, BLS Reports,
available at http://www.bls.gov/cps/wlf-databook-2012.pdf (last
accessed Oct. 6, 2014).
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Based on these data, in the following paragraphs, the Department
estimates the approximate number of beneficiaries and employees in (1)
eligible training provider programs and on-the-job training programs,
(2) Job Corps Centers and (3) Registered Apprenticeship Programs who
are pregnant in a given year. Following the analysis adopted by the
Office of Federal Contract Compliance Programs (OFCCP) to calculate
similar costs, the Department turned to data from the U.S. Census
(Census). U.S. Census American Fact Finder does not report on
pregnancy, but does report on births. Census data also shows whether
the mother was in the labor force. The definition of labor force used
by Census includes individuals in the civilian labor force who are
employed or unemployed, and the term unemployed, as used by Census,
includes those who were actively looking for work during the last four
weeks and were available to accept a job. The Department determined
that this number would be the best data
[[Page 4534]]
available to use to estimate the percentage of participants in programs
and activities receiving financial assistance from Title I of WIOA as
well as employees of WIOA Title I-financially assisted programs and
activities. As the Department believes these are the best data
available, the Department used the ratio of births among working and
non-working mothers to determine the pregnancy rate of women in the
workforce. Thus, the Department determined that the pregnancy rate for
women in the workforce is approximately 61 percent of the rate for
women in the general population, translating to a pregnancy rate of 6.7
percent of women who are beneficiaries of WIOA Title I-financially
assisted programs and activities and employees of WIOA Title I-
financially assisted programs and activities.\275\
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\275\ U.S. Census Bureau, American Fact Finder, Women 16 to 50
Years Who Had a Birth in the Past 12 Months by Marital Status and
Labor Force Status, 2009 to 2011 American Community Survey 3-Year
Estimates, available at http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_11_3YR_B13012&prodType=table (last
accessed Feb. 12, 2015). The data table reports birth rates for
women in the labor force at 5.1 percent, compared to women not in
the labor force at 8.4 percent. Comparing the two rates (5.1 percent
to 8.4 percent), the birth rate of women in the labor force was 61
percent that of women not in the labor force. Therefore, multiplying
the pregnancy rate among women of working age, 10.9 percent, by 61
percent results in a 6.7 percent pregnancy rate.
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Training Program Beneficiaries
As calculated above, approximately 57,666 women annually
participate in eligible training provider or on-the-job training
provider programs that receive WIOA Title I financial assistance. Of
this number, using the pregnancy rate data above, 3,864 (57,666 x .067)
women might be pregnant annually. Of this number, the Department
estimates that no more than 21 percent, or 811 women (.21 x 3,864),
would be participating in job training categories likely to require
accommodations that might involve more than a de minimis cost.
Registered Apprenticeship Beneficiaries
As calculated above, approximately 10,060 women annually benefit
from Registered Apprenticeship programs. Of this number, using the
pregnancy rate data above, 674 (10,060 x .67) women might be pregnant
annually. Of this number, the Department estimates that no more than 21
percent, or 142 women (.21 x 674), would be participating in job
training categories likely to require accommodations that might involve
more than a de minimis cost.
Job Corps Program Beneficiaries
Job Corps does not keep data on the percentage of students who are
pregnant. The Job Corps program serves youth and young adults between
the ages of 16 and 24.\276\ Forty percent of Job Corps students or
approximately 43,851 are female.\277\ Applying the .067 rate of
pregnancies used above to all female Job Corps students approximately
2,938 of them may become pregnant annually (43,851 x .067). The Job
Corps Program has three stages through which participants move: Career
Preparation Period, Career Development Period, and Career Transition
Period. Not all of those students will be in the Career Development
Period of their Job Corps Center experience, which is the stage when
they would participate in technical training and most need
accommodations. The Department estimates that at any given time, no
more than a third of students are in the Career Development Period, so
approximately 970 (2,938 x .33) pregnant young women would be in this
part of their educational experience annually. Of this number, the
Department estimates that no more than 21 percent would be
participating in job training that requires physical exertion or
standing for long periods of time, so at most 204 (970 x .21) Job Corps
students may be participating in job training categories likely to
require accommodations that might involve more than a de minimis cost.
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\276\ Job Corps Eligibility Information available at http://www.jobcorps.gov/AboutJobCorps/program_design.aspx.
\277\ Workforce System Results, for the Quarter ending June 30,
2013, ETA, DOL. Annual data for the four quarters ending June 2013.
Includes the number of students active on the start date, number of
students enrolled during the timeframe, number of graduates
separated prior to the start date and in the placement service
window during the timeframe, and number of former enrollees
separated prior to the start date and in the placement service
window during the timeframe.
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Non-Federal Employees of Recipients
The Department determined that there are approximately 528,303 non-
Federal employees who work for recipients of training programs, Job
Corps Programs and Registered Apprenticeships. Because these data do
not indicate gender demographics, CRC used data from the Bureau of
Labor Statistics that indicate that 47 percent of the workforce is
female.\278\ Since approximately 248,302 of the employees of recipients
are women, 16,636 (248,302 x .067) may be pregnant annually based on
the data provided above. Since the majority of the employees of
recipients have office jobs that do not require physical exertion or
standing, the Department anticipates that no more than 21 percent,\279\
or 3,494 women (.21 x 16,636) of these pregnant employees who are
trainers at One Stop Career Centers or at Job Corps Centers, may be
participating in job training categories likely to require
accommodations that might involve more than a de minimis cost.
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\278\ Women in the Labor Force: A Databook, BLS Reports,
available at http://www.bls.gov/cps/wlf-databook-2012.pdf (last
accessed Oct. 6, 2014) .
\279\ See 80 FR 5262 (January 30, 2015).
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Therefore, a total of 4,651 women (811 + 142 + 204 + 3,494) who are
beneficiaries or non-Federal employees of WIOA Title I-financially
assisted programs may be participating in job training categories
likely to require accommodations that might involve more than a de
minimis cost.
Limited Need for Accommodations
Reports from NIH show that the incidence of medical conditions
during pregnancy that require accommodations ranges from 0.5 percent
(placenta previa) to 50 percent (back issues).\280\ Thus, the
Department estimates that of the approximately 4,651 (811 job training
beneficiaries + 142 Registered Apprenticeship beneficiaries + 204 Job
Corps beneficiaries + 3,494 non-Federal employees of recipients) women
beneficiaries and employees in positions that may require physical
exertion or standing according to our previous calculations, 50 percent
(2,326) may require some type of an accommodation or light duty.\281\
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\280\ S. Malmqvist et. al., Prevalence of low back and pelvic
pain during pregnancy (Abstract), J. Manipulative Physiological
Therapy, National Center for Biotechnology Information (2012),
available at http://www.ncbi.nlm.nih.gov/pubmed/22632586 (last
accessed Oct. 6, 2014).
\281\ This is the same data used by OFCCP in Discrimination on
the Basis of Sex, Proposed Rule 80 FR 46 (January 30, 2015).
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The types of accommodations needed during pregnancy also vary. They
range from time off for medical appointments and more frequent breaks
to stools for sitting and assistance with heavy lifting.\282\ Reports
from the W.K. Kellogg Foundation on women's child bearing experiences
and the National Women's Law Center on accommodating pregnant workers
state that the costs associated with accommodating pregnant workers are
minimal and generally involve schedule adjustments or modified work
[[Page 4535]]
duties.\283\ One study found that when faced with a pregnancy-related
need for accommodation, between 62 percent and 74 percent of pregnant
women asked their employer to address their needs. The study further
found that between 87 percent and 95 percent of the pregnant women who
requested an adjustment to their work schedule or job duties worked for
employers that attempted to address those requests. The study
specifically found that 63 percent of pregnant women who needed a
change in duties such as less lifting or more sitting asked their
employers to address that need, and 91 percent of those women worked
for employers that attempted to address their needs.\284\ Based on this
study, the Department believes that most employers and training
providers do provide some form of accommodation to employees and
participants when requested.
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\282\ Unlawful Discrimination Against Pregnant Workers and
Workers with Caregiving Responsibilities: Meeting of the U.S. Equal
Emp. Opportunity Comm'n 8 (Feb. 15, 2012) (statement of Dr. Stephen
Benard, Professor of Sociology, Indiana University), available at
http://www.eeoc.gov/eeoc/meetings/2-15-12/transcript.cfm (last
accessed Oct. 6, 2014).
\283\ National Women's Law Center & A Better Balance, It
Shouldn't Be a Heavy Lift: Fair Treatment for Pregnant Workers 12
(2013), available at http://www.nwlc.org/sites/default/files/pdfs/pregnant_workers.pdf (last accessed Dec. 30, 2014).
\284\ Eugene Declerq et al., W.K. Kellogg Foundation, Listening
to Mothers III: New Mothers Speak Out, 36, (2013).
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To determine the cost of accommodation or light duty imposed by the
proposed rule, the Department considered the types of light duty or
accommodations needed for employees of recipients of WIOA Title I-
financial assistance and participants in WIOA Title I-financially
assisted programs and activities. Generally, providing light duty or
accommodation for pregnancy involves adjusting work schedules or
allowing more frequent breaks. The Department believes that these
accommodations would incur little to no additional cost.
Additional accommodations may involve either modifications to work
environments (providing a stool for sitting rather than standing) or to
job duties--for example, lifting restrictions. In making such an
accommodation, recipients of WIOA Title I financial assistance have
discretion regarding how they would make such modifications. For
example, a recipient may provide an employee with an existing stool, or
a recipient may have other employees assist when heavy lifting is
required. To determine the cost of such accommodations, the Department
referred to the Job Accommodation Network (JAN). JAN reports that the
average cost of accommodation is $500.\285\
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\285\ Beth Loy, Job Accommodation Network, Workplace
Accommodations: Low Cost, High Impact, available at http://askjan.org/media/lowcosthighimpact.html (last updated Sept. 1, 2014)
(last accessed Oct. 6, 2014).
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As stated above, 63 percent of pregnant women who needed a change
in duties related to less lifting or more sitting requested such an
accommodation from their employers. Thus, the Department estimates that
1,465 women (2,326 x .63) who may require accommodations would have
made such a request, and 91 percent, or 1,333 of those requests (1,465
x .91) would have been addressed. In addition, the Department assumes
that of the remaining 37 percent (2,326 x .37 = 861 women) who did not
make such a request for a pregnancy accommodation, had they made the
request, the needs of 91 percent of them (861 x .91 = 784 women) would
also have been addressed. Thus, this proposed rule would require
recipients of WIOA Title I financial assistance to accommodate the
remaining 9 percent of pregnant women whose needs were not addressed.
Therefore, the Department estimates that the cost, accounting for those
pregnant women who made requests and those additional women who could
make requests, would be $104,500 ((1,465 - 1,333 = 132) + (861 - 784 =
71) = 209 x $500). This is a first year cost and a recurring cost.
The Department believes that this cost estimate may be an
overestimate because recipients with 15 or more employees are covered
by a similar requirement found in Title VII and 36 states have
requirements that apply to employers with fewer than 15 employees.\286\
Although the Department seeks comments on all aspects of its
calculation of burden and costs, the agency specifically seeks comments
on the burden associated with providing accommodations to pregnant
employees.
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\286\ State laws covering employers with one employee: Alaska,
Colorado, Hawaii, Maine, Michigan, Minnesota, Montana, New Jersey,
North Dakota, Oklahoma, Oregon, South Dakota, Vermont, and
Wisconsin; state laws covering employers with two employees:
Wyoming; state laws covering employers with three employees:
Connecticut; state laws covering employers with four employees:
Delaware, Iowa, Kansas, New Mexico, New York, Ohio, Pennsylvania,
and Rhode Island; state laws covering employers with five employees:
California and Idaho; state laws covering employers with six
employees: Indiana, Massachusetts, Missouri, New Hampshire, and
Virginia; state laws covering employers with eight or more
employees: Kentucky, Tennessee, and Washington; state laws covering
employers with nine or more employees: Arkansas; state laws covering
employers with 12 or more employees: West Virginia. In addition, the
District of Columbia and Puerto Rico's laws cover employers with one
employee.
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Discrimination Prohibited Based on National Origin, Including Limited
English Proficiency Sec. 38.9
The NPRM proposes language regarding the limited circumstances when
a limited English proficient (LEP) individual may elect to use their
own interpreter and how that choice must be documented by the
recipient. In Sec. 38.9(f)(2), the proposed rule states that an
accompanying adult may interpret or facilitate communication when ``the
information conveyed is of minimal importance to the services to be
provided or when the LEP individual specifically requests that the
accompanying adult provides language assistance, the accompanying adult
agreed to provide assistance, and reliance on that adult for such
assistance is appropriate under the circumstances.'' The NPRM goes on
to state that, ``when the recipient permits the accompanying adult to
provide such assistance, it must make and retain a record of the LEP
individual's decision to use their own interpreter.'' There is
currently no data available regarding the number of LEP individuals who
are beneficiaries of recipients and the Department cannot determine how
often an LEP individual will request that the accompanying adult
provide language assistance, the accompanying adult agrees to provide
it, and when reliance on that adult is appropriate. However, the
Department estimates that all of these conditions will be met
infrequently, creating a de minimis cost. Therefore, the Department
seeks comment on any potential sources of data on the number of LEP
individuals who are beneficiaries of recipients who would decide to use
their own interpreter.
In addition, provisions are included in Sec. 38.9(g) regarding a
recipient's obligations to provide translation of vital information.
Section 38.9(g)(1) addresses that obligation for languages spoken by a
significant number or portion of the population eligible to be served,
or likely to be encountered, stating that ``a recipient must translate
vital information in written materials into these languages and make
the translations readily available in hard copy, upon request, or
electronically such as on a Web site.'' Importantly, written training
materials offered or used within employment-related training programs
as defined under this part are excluded from these requirements.
Section 38.9(g)(2) addresses the obligations of recipients for
languages not spoken by a significant number or portion of the
population eligible to be served, or likely to be encountered, stating
that ``a recipient must make reasonable steps to meet the
particularized language needs of LEP individuals who seek to learn
about, participate in, and/or access the aid,
[[Page 4536]]
benefit, service or training that the recipient provides.'' This
section also allows that vital information may be conveyed orally if
not translated. These requirements are contained in a DOL LEP guidance
issued in 2003 \287\ and regulations implementing Section 188 of WIA
contained at 29 CFR 35.37, which address a recipient's language access
requirements. However, their more detailed inclusion in the regulations
is new. The Department is aware that, although these obligations are
not new to recipients, not all recipients currently provide language
access consistent with these proposed requirements; as a result, many
recipients may incur cost associated with the burden to come into
compliance with these provisions. The Department cannot determine with
accuracy based on its enforcement experiences how many recipients are
currently meeting their obligations as to LEP individuals, nor is it
aware of data from which to base a calculation for these costs.
Similarly, the Department is unable to determine what information each
recipient will determine is vital, and thus needs to be translated, or
what language(s) they would be translated into, because both factors
are based on individual recipient assessments. The Department seeks
comment on the current compliance status of recipients as to their LEP
obligations, the availability of data related to the languages for
which translations would be required, and a method by which to estimate
the quantity of vital information that recipients generally will need
to translate to be in compliance. Furthermore, as discussed in Sec.
38.9, the Department has not defined ``significant number or portion of
the population,'' and is considering other methods of determining when
the obligations related to that determination would be triggered in
this section. The Department welcomes comments on ways to calculate any
new burden and costs incurred as a result of these proposed provisions.
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\287\ 68 FR 32290, May 29, 2003.
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Subpart B--Recordkeeping and Other Affirmative Obligations of
Recipients
Recipients' Obligations To Publish Equal Opportunity Notice Sec. 38.36
The NPRM proposes changes to the specific language provided by the
Department for recipients to use in the equal opportunity notice and
poster that they are required to post prominently in physical locations
and on the recipient's Web site.\288\ The changes state that ``sex
discrimination includes pregnancy, childbirth and related medical
conditions, transgender status, and gender identity; and that national
origin discrimination may include limited English proficiency.'' \289\
This notice and other notices throughout this NPRM are required to be
provided in English as well as appropriate languages other than
English. The Department will make translations of this notice available
to recipients in the ten most frequently spoken languages in the U.S.
other than English. The NPRM also proposes language in the poster
stating that the CRC will accept complaints via U.S. Mail and email at
an address provided on the CRC's Web site.\290\
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\288\ Proposed 29 CFR 38.35; 29 CFR 38.36(a)(1).
\289\ Proposed 29 CFR 38.35.
\290\ Id.
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The NPRM requires that the notice be placed in employee and
participant handbooks, including electronic and paper form if both are
available, provided to each employee and placed in each employee's
file, both paper and electronic, if both are available.\291\
---------------------------------------------------------------------------
\291\ Proposed 29 CFR 38.36(b).
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The Department estimates that it would take each EO Officer
approximately 15 minutes to print out the notices, and another 15
minutes to ensure that new notices and posters are disseminated.
Dissemination includes posting the notice in conspicuous locations in
the physical space of the recipient as well as posting it on
appropriate Web pages on the recipient's Web site. Consequently, the
estimated first year dissemination burden is 17,229 hours (34,458
recipients x .5 hours). The Department calculated the total estimated
first year and dissemination cost for the EO Officers as $1,504,781
(17,229 x $87.34/hour). The Department also calculated that each EO
Officer will make thirty copies of the notice (this assumes ten copies
each in no more than three of the appropriate languages) for posting in
his or her establishment for a first year operational and maintenance
cost of $82,699 (34,458 x $.08 x 30).
Additionally, the Department assumes it will take a computer
programmer 30 minutes to place the notice on appropriate Web pages of
the recipient's Web site. The Department assumes that each recipient
has one Web site. The Department calculates the first year burden to
update their Web sites to be an additional 17,229 hours (34,458 x .5
hours) and the first year costs for recipients to update their Web
sites to be an additional $1,061,479 (17,229 x $61.61/hour). The
Department also calculates it will take an EO Officer 30 minutes to
disseminate to all employees of recipients a copy of the notice and
place a copy in the employees' files. The Department estimates an
additional first year burden for dissemination to be 17,229 hours
(34,458 x .5 hours) and an additional first year cost to be $1,504,781
(17,229 x $87.34/hour).
Moreover, there is a recurring burden each time an employee is
hired. The Department assumes a 1.5 percent \292\ employee turnover
rate per year for a total of 13,215 new employees the second and future
years (881,009 (total number of recipients' employees) x .015). The
Department estimates it will take an EO Officer fifteen minutes to
disseminate the notice to only new recipient's employees each year,
which equates to a burden of 8,615 hours (34,458 x .25 hours) and the
total recurring cost to be $752,434 (8,615 hours x $87.34). The first
year operation and maintenance cost for printing the two copies of the
notice (one to disseminate to the employee and one to place in their
file) for the first year is $140,961 (881,009 total number of
recipients' employees x $.08 x 2) and the second and future years
operation and maintenance cost is $2,114 (13,215 new employees x $.08 x
2) for copies made for new employees each year.
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\292\ http://www.bls.gov/jlt/#news State and local government
preliminary ``hires'' data for February 2015.
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Data and Information Collection, Analysis, and Maintenance Sec. 38.41
Proposed paragraph (a)(2) adds ``limited English proficient'' and
``preferred language'' to the list of categories of information that
each recipient must collect about each applicant, registrant, and
participant. The proposal does not apply these data collection
obligations to applicants for employment and employees of recipients
because the obligation as to LEP individuals does not apply to those
categories of individuals. This change is intended to ensure that
recipients collect information related to serving LEP individuals. The
Department believes that these terms best capture this information as
to LEP individuals and is also used by several states with language
access laws.\293\ The
[[Page 4537]]
Department calculates the cost of adding this category to the list of
categories of information that each recipient must collect about each
applicant and participant as de minimis for the recipient because they
are already collecting demographic data from beneficiaries in several
other categories and these additions will be added to this existing
process. Further, it is estimated on average it will take beneficiaries
5 seconds to provide LEP information including preferred language,
where applicable, voluntarily. This equates to a cost of $567,131
(56,321,699 x 5 seconds = 281,608,495/60 = 4,693,475 minutes/60 =
78,225 hours x $7.25 = $567,131).
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\293\ Pursuant to the DC Language Access Act, the DC Office of
Human Rights requires covered entities to collect data on the number
of LEP individuals served in an annual report. See Final rulemaking
at 55 DCR 6348 (June 8, 2008); as amended by Final Rulemaking
published at 61 DCR 9836 (September 26, 2014). The question on the
DC Office of Human Rights Complaint Form for the purposes of
capturing this information is ``What language do you prefer to
communicate in?'' Available at http://dcforms.dc.gov/webform/employment-intake-questionnaire-form (last visited March 3, 2015).
Hawaii passed their language access law in 2006 See Hawaii Rev.
Stat. Sec. Sec. 371-31 to 37. In California, the Dymally-Alatorre
Bilingual Services Act requires local agencies to provide language
access to limited English-proficient speakers. Ca. Govt. Code Sec.
7290-7299.8. The Bilingual Services Program at the California
Department of Human Resources provides oversight, including
conducting language surveys on implementation. http://www.calhr.ca.gov/state-hr-professionals/Pages/Bilingual-Services.aspx.
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For those recipients that are not already collecting this
information,\294\ the Department estimates that there will be a first
year cost to each recipient of 1.5 hours of a computer programmer's
personnel time to incorporate these new categories into an online form
for data collection. The Department believes that all recipients use
computer-based data collection methods, and the one-time burden is
$3,184,436 (34,458 recipients x 1.5 hours = 51,687 x $61.61/hour).
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\294\ Programs providing core and intensive services through the
One Stop delivery system currently collect information regarding LEP
status and some may be doing so voluntarily, however, we have no way
of knowing how many recipients overall are currently collecting
information from beneficiaries regarding LEP status, so we are
including the cost to all recipients for this analysis.
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Required Maintenance of Records by Recipients Sec. 38.43
The NPRM proposes language that specifies the types of records that
need to be retained by a recipient when a complaint has been filed, and
also requires that records be kept if a compliance review has been
initiated. Records that must be kept include any type of hard-copy or
electronic record related to the complaint or the compliance review.
The Department assumes that the only additional burden and
associated cost would be in identifying any additional files that a
recipient must retain beyond three years if they are under a compliance
review. The Department further assumes this cost to be de minimis.
Subpart C--Governor's Responsibilities To Implement the
Nondiscrimination and Equal Opportunity Requirements of WIOA.
Governor's Oversight and Monitoring Responsibilities for State Programs
Sec. 38.51
Proposed Sec. 38.51(b) requires the Governor to monitor on an
annual basis the compliance of State Programs with WIOA Section 188 and
this part. Under Sec. 37.54(d)(2)(ii), Governors are currently
required to ``periodically'' monitor compliance of recipients. The
proposed annual monitoring requirement is intended to: (1) Enable the
timely identification and elimination of discriminatory policies and
practices, thereby reducing the number of individuals impacted by
discrimination; (2) be consistent with ETA proposed regulations
requiring annual oversight of One-Stop Career Centers; \295\ and (3)
establish a consistent State-level practice nationwide. It is
anticipated that this change will pose burden on some Governors who are
not already interpreting the term ``periodically'' in the current
regulations to require annual oversight.
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\295\ WIOA NPRM implementing Titles I and III available at
https://www.federalregister.gov/articles/2015/04/16/2015-05530/workforce-innovation-and-opportunity-act.
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The Department anticipates that this change will not impose a
burden on all states because approximately half of them are currently
conducting this monitoring annually, pursuant to their Methods of
Administration.\296\ Thus, the Department estimates the burden would be
imposed on 28 of the 56 States subject to this requirement that
currently do not annually monitor their recipients for compliance with
Section 188 of WIA. Of the states that do not conduct annual
monitoring, CRC is aware that the monitoring is conducted on average
every three years. So, for those 28 states, they will need to increase
their monitoring to be two thirds more frequent. Based on CRC's
experience and interaction with several states with varying populations
and geographic sizes, the average amount of time that it takes to
conduct this annual monitoring is approximately 4,000 total hours
carried out by multiple people. The additional burden on each of the 28
states that previously conduct monitoring every three years versus
every year is estimated to be 2,680 hours (4,000 hours x .67) \297\ per
state or 75,040 for all 28 states. The Department calculates the total
estimated annual cost for states as $6,553,994 (2,680 hours x 28 states
x $87.34/hour) since the EO Officer and similar managers are likely to
conduct the monitoring.
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\296\ This is based on CRC's records of reporting and
discussions with EO Officers for the states over the past few years.
\297\ Based on information from CRC's experience working with
the states and asking less than 6 EO Officers these questions.
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Governor's Obligation To Develop and Implement a Nondiscrimination Plan
Sec. 38.54
This rule changes the name ``Methods of Administration'' for the
document described in Sec. 37.54 to ``Nondiscrimination Plan,'' but
retains the definition and contents of the document. Since the contents
of the Plan do not change, the change of the title of the document is
presumed to be incurred in the total cost of the issuance of the Plan.
The Department welcomes comments on this assumption.
Subpart D--Compliance Procedures
Notice To Show Cause Issued to a Recipient Sec. 38.66
The new language in Sec. 38.66, paragraph (b), states that the
Director may issue a Notice to Show Cause to a recipient ``after a
Letter of Findings and/or an Initial Determination has been issued, and
after a reasonable period of time has passed within which the recipient
refuses to negotiate a conciliation agreement with the Director
regarding the violation(s).'' The Department proposes this change to
expand the circumstances in which the Director may issue a Notice to
Show Cause. The proposal seeks to use the Notice to Show Cause at this
later stage because it has been the Department`s experience that, after
issuing a letter of findings, the Governor or other recipients agree in
principle to enter into a conciliation agreement that resolves the
identified violations, but then frequently fail to respond to
correspondence from the CRC regarding finalizing and signing the
agreement. With proposed Sec. 38.66(b), the Director could issue a
Notice to Show Cause prior to issuing a Final Determination, providing
Governors and other recipients another opportunity to take the
corrective or remedial actions required by the Director to bring the
recipient into compliance before enforcement proceedings are initiated.
Recipients are already familiar with the Notice to Show Cause since it
is currently described and contained in the implementing regulations
found at 29 CFR 37.67, so these changes are slight, and the proposed
language is
[[Page 4538]]
clear in terms of the new circumstances under which the Director can
issue them. The Department estimates that it will issue at most two
additional Show Cause Notices per year on average as a result of this
change. As a result, the CRC estimates the burden incurred to be de
minimis and invites comment on the burden associated with this
provision.
Required Elements of a Recipient's Complaint Processing Procedures
Sec. 38.72
The NPRM proposes adding to the procedures that the recipient must
adopt and publish the requirement that recipients provide complainants
a copy of the notice of rights contained in Sec. 38.35, along with the
already-required initial written acknowledgement of receipt of the
complaint and notice of the complainant's right to representation. This
requirement is designed to ensure that complainants are aware of their
rights, including that they have the option of filing with the
recipient or with CRC, and that they are aware of the deadlines
applicable to filing a subsequent complaint with CRC once they file
initially with the recipient.
The Department anticipates that this requirement, under which
recipients provide complainants a copy of the notice of rights
contained in Sec. 38.35, is limited to the operational costs of making
additional copies of the notice for this purpose, and the first year
personnel cost of 30 minutes of the EO Officer's time, who is most
likely to be responsible for implementing this requirement, to include
it in the documents routinely provided to complainants. Based upon
complaint log data from 2003 to 2008, CRC estimates that on average,
each recipient will receive one Section 188 complaint each year. The
Department assumes that the EO Officer will handle the complaint for
each recipient and it will take them approximately 30 minutes to
process the complaint. The total annual burden is estimated to be
17,229 hours (34,458 x .5 hours) for a total cost of $1,504,781 (17,229
hours x $87.34/hr). Additionally, the Department estimates there are
first year and recurring operation and maintenance costs of $2,757
($.08 x 34,458) to copy the equal opportunity notice for complainants.
Table 3--First Year Burden and Costs
------------------------------------------------------------------------
First year burden and costs Burden hours Costs
------------------------------------------------------------------------
Rule Familiarization.............. 137,832 $12,038,247
Discrimination prohibited based on 0 104,500
pregnancy, Sec. 38.8...........
Recipients Obligation to Publish 51,687 4,071,041
Equal Opportunity Notice, Sec.
38.36............................
Data and Information Collection, 129,912 3,751,567
Analysis, and Maintenance, Sec.
38.41............................
Governor's oversight and 75,040 6,553,994
monitoring responsibilities for
State programs, Sec. 38.51.....
Required elements of a recipient's 17,229 1,504,781
complaint processing procedures,
Sec. 38.72.....................
Operation and Maintenance Costs... ................. 226,417
-------------------------------------
Total......................... 411,700 28,250,547
------------------------------------------------------------------------
Table 4--Second and Future-Year Burden and Costs
------------------------------------------------------------------------
Second and future-year burden and
costs Burden hours Costs
------------------------------------------------------------------------
Discrimination prohibited based on 0 $104,500
pregnancy, Sec. 38.8...........
Recipients Obligation to Publish 8,615 752,434
Equal Opportunity Notice, Sec.
38.36............................
Data and Information Collection, 78,225 567,131
Analysis, and Maintenance, Sec.
38.41............................
Governor's oversight and 75,040 6,553,994
monitoring responsibilities for
State programs, Sec. 38.51.....
Required elements of a recipient's 17,229 1,504,781
complaint processing procedures,
Sec. 38.72.....................
Operation and Maintenance Costs... ................. 4,871
-------------------------------------
Total......................... 179,109 9,487,711
------------------------------------------------------------------------
B. Paperwork Reduction Act
The purposes of the Paperwork Reduction Act of 1995 (PRA), 44
U.S.C. 3501 et seq., include minimizing the paperwork burden on
affected entities. The PRA requires certain actions before an agency
can adopt or revise a collection of information, including publishing
the information collection for public comment.
As part of continuing efforts to reduce paperwork and respondent
burden, the Department conducts preclearance consultation activities to
provide the general public and Federal agencies with an opportunity to
comment on proposed and continuing collections of information in
accordance with the PRA.\298\ This activity helps to ensure that: (1)
The public understands the collection instructions; (2) respondents can
provide the requested data in the desired format; (3) reporting burden
(time and financial resources) is minimized; (4) respondents clearly
understand the collection instruments; and (5) the Department can
properly assess the impact of collection requirements on respondents.
Furthermore, the PRA requires all Federal agencies to analyze proposed
regulations for potential burdens on the regulated community created by
provisions in the proposed regulations, which require the submission of
information. The information collection requirements must also be
submitted to the OMB for approval.
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\298\ See 44 U.S.C. 3506(c)(2)(A).
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The Department notes that a Federal agency generally cannot conduct
or sponsor a collection of information, and the public is generally not
required to respond to an information collection, unless it is approved
by the OMB under the PRA and displays a currently valid OMB Control
Number. In addition, notwithstanding any other provisions of law, no
person shall generally be subject to penalty for failing to comply with
a collection of information that does not display a valid Control
Number.\299\ The Department obtains approval for Nondiscrimination
Compliance
[[Page 4539]]
Information Reporting under Control Number 1225-0077.
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\299\ See 44 U.S.C. 3512; 5 CFR 1320.5(a) and 1320.6).
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The information collections in this NPRM are summarized in the
section-by-section discussion of this NPRM, Section II. The Department
has identified that the following proposed sections contain information
collections: 29 CFR 38.14, 38.16f, 25, 38.27, 38.29, 38.34-38.36,
38.38, 38.39-38.43, 38.51, 38.52-.54, 38.55, 387.69, 38.70, 38.72,
38.73, 38.74, and 38.77. Additional information collections approved
under Control Number 1225-0077 appear in part 37, encompassing similar
nondiscrimination requirements under the Workforce Investment Act
(WIA), of this title; they will be maintained on a temporary basis
while existing WIA grants remain in effect.
Concurrent with the publication of this proposed rule, the
Department is submitting an associated information collection request
to the Office of Management and Budget for approval. Interested parties
may obtain a copy free of charge of one or more of the information
collection requests submitted to the OMB on the reginfo.gov Web site at
http://www.reginfo.gov/public/do/PRAMain. From the Information
Collection Review tab, select Information Collection Review. Then
select the Department of Labor from the Currently Under Review dropdown
menu, and lookup Control Number 1225-0077. A free copy of the requests
may also be obtained by contacting the person named in the ADDRESSES
section of this preamble.
As noted in the ADDRESSES section of this NPRM, interested parties
may send comments about the information collections to the Department
throughout the 60-day comment period and/or to the OMB within 30 days
of publication of this document in the Federal Register. In order to
help ensure appropriate consideration, comments should mention the
applicable OMB Control Number(s). The Departments and OMB are
particularly interested in comments that:
Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
Evaluate the accuracy of the agency's estimate of the
burden of the proposed collection of information, including the
validity of the methodology and assumptions used;
Enhance the quality, utility, and clarity of the
information to be collected; and
Minimize the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of responses.
The information collections are summarized as follows:
Agency: DOL-OASAM.
Title of Collection: Nondiscrimination Compliance Information
Reporting.
OMB Control Number: 1225-0077.
Affected Public: Individuals or Households and Private Sector--
businesses or other for profits and not for profit institutions.
Total Estimated Number of Respondents: 105,259.
Total Estimated Number of Responses: 56,324,784.
Total Estimated Annual Time Burden: 315,339.
Total Estimated Annual Other Costs Burden: $0.
C. Executive Order 13132 (Federalism)
The Department has reviewed this proposed rule in accordance with
Executive Order 13132 regarding federalism, and has determined that it
does not have ``federalism implications.'' This proposed rule will not
``have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government.''
D. Unfunded Mandates Reform Act of 1995
This rule will not include any increased expenditures by State,
local, and tribal governments in the aggregate of $100 million or more,
or increased expenditures by the private sector of $100 million or
more.
E. Plain Language
The Department drafted this NPRM in plain language.
F. Assessment of Federal Regulations and Policies on Families
The undersigned hereby certifies that the NPRM would not adverse
effect the will-being of families, as discussed under section 654 of
the Treasure and General Government Appropriations Act, 1999. To the
contrary, by better ensuring that customers, including job seekers and
applicants for unemployment insurance, do not suffer illegal
discrimination in accessing DOL financially-assisted programs,
services, and activities, the NPRM would have a positive effect on the
economic well-being of families.
G. Regulatory Flexibility Act and Executive Order 13272
The Regulatory Flexibility Act (RFA), 5 U.S.C. 603, requires
agencies to prepare a regulatory flexibility analysis to determine
whether a regulation will have a significant economic impact on a
substantial number of small entities. Section 605 of the RFA allows an
agency to certify a rule in lieu of preparing an analysis if the
regulation is not expected to have a significant economic impact on a
substantial number of small entities. Further, under the Small Business
Regulatory Enforcement Fairness Act of 1996, 5 U.S.C 801 (SBREFA), an
agency is required to produce compliance guidance for small entities if
the rule has a significant economic impact. The Small Business
Administration (SBA) defines a small business as one that is
``independently owned and operated and which is not dominant in its
field of operation.'' The definition of small business varies from
industry to industry to the extent necessary to reflect industry size
differences properly. An agency must either use the SBA definition for
a small entity or establish an alternative definition, in this
instance, for the workforce industry. The Department has adopted the
SBA definition for the purposes of this certification. The Department
has notified the Chief Counsel for Advocacy, SBA, under the RFA at 5
U.S.C. 605(b), and proposes to certify that this rule will not have a
significant economic impact on a substantial number of small entities.
This finding is supported, in large measure, by the fact that small
entities are already receiving financial assistance under the WIA
program and will likely continue to do so under the WIOA program as
articulated in this NPRM. Having made these determinations and pursuant
to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b),
CRC certifies that this rule will not have a significant economic
impact on a substantial number of small entities. In making this
determination, the agency used the SBA definition of small business,
found at 13 CFR 121.201
Affected Small Entities
The proposed rule can be expected to impact small one-stop center
operators. One-stop operators can be a single entity (public, private,
or nonprofit) or a consortium of entities. The types of entities that
might be a one-stop operator include: (1) An institution of higher
education; 545 (2) an employment service State agency established under
the Wagner-Peyser
[[Page 4540]]
Act; (3) a community-based organization, nonprofit organization, or
workforce intermediary; (4) a private for-profit entity; (5) a
government agency; (6) a Local Board, with the approval of the local
CEO and the Governor; or (7) another interested organization or entity
that can carry out the duties of the one-stop operator. Examples
include, but are not limited to, a local chamber of commerce or other
business organization, or a labor organization.
Impact on Small Entities
The Department indicates that transfer payments are a significant
aspect of this analysis in that the majority of WIOA program cost
burdens on State and Local WDBs will be fully financed through Federal
transfer payments to States. CRC has highlighted costs that are new to
WIOA implementation in this NPRM. Therefore, the Department expects
that the WIOA NPRM will have negligible net cost impact on small
entities.
H. Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by Section 804 of the
Small Business Regulatory Enforcement Fairness Act of 1996. This rule
will not result in an annual effect on the economy of $100 or more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of the United States-based companies to compete with
foreign-based companies in domestic and export markets.
I. Executive Order 13175 (Indian Tribal Governments)
This proposed rule does not have tribal implications under
Executive Order 13175 that would require a tribal summary impact
statement. The proposed rule would not have substantial direct effects
on one or more Indian tribes, on the relationship between the Federal
government and Indian tribes, or on the distribution of power and
responsibilities between the Federal government and Indian tribes.
J. Executive Order 12630 (Government Actions and Interference With
Constitutionally Protected Property Rights)
This NPRM is not subject to Executive Order 12630 because it does
not involve implementation of a policy that has takings implications or
that could impose limitations on private property use.
K. Executive Order 12988 (Civil Justice Reform)
The NPRM was drafted and reviewed in accordance with Executive
Order 12988 and will not unduly burden the Federal court system. The
NPRM was: (1) reviewed to eliminate drafting errors and ambiguities;
(2) written to minimize litigation; and (3) written to provide a clear
legal standard for affected conduct and to promote burden reduction.
L. Executive Order 13211 (Energy Supply)
This NPRM is not subject to Executive Order 13211. It will not have
a significant adverse effect on the supply, distribution, or use of
energy.
List of Subjects in 29 CFR Part 38
Civil rights, Discrimination in employment, Equal opportunity,
Nondiscrimination, Workforce development.
Edward C. Hugler,
Deputy Assistant Secretary for Operations, Office of the Assistant
Secretary for Administration and Management, U.S. Department of Labor.
For reasons set forth in the preamble, the Department proposes to
revise 29 CFR part 38 to read as follows:
TITLE 29--LABOR
PART 38--IMPLEMENTATION OF THE NONDISCRIMINATION AND EQUAL
OPPORTUNITY PROVISIONS OF THE WORKFORCE INNOVATION AND OPPORTUNITY
ACT
Subpart A--General Provisions
Sec.
38.1 Purpose.
38.2 Applicability.
38.3 Effect on other obligations.
38.4 Definitions.
38.5 General prohibitions on discrimination.
38.6 Specific discriminatory actions prohibited on bases other than
disability.
38.7 Discrimination prohibited based on sex.
38.8 Discrimination prohibited based on pregnancy.
38.9 Discrimination prohibited based on national origin, including
limited English proficiency.
38.10 Harassment prohibited.
38.11 Discrimination prohibited based on citizenship status.
38.12 Discrimination prohibited based on disability.
38.13 Accessibility requirements.
38.14 Reasonable accommodations and reasonable modifications for
individuals with disabilities.
38.15 Communications with individuals with disabilities.
38.16 Service animals.
38.17 Mobility aids and devices.
38.18 Employment practices covered.
38.19 Intimidation and retaliation prohibited.
38.20 Administration of this part.
38.21 Interpretation of this part.
38.22 Delegation of administration and interpretation of this part.
38.23 Coordination with other agencies.
38.24 Effect on other laws and policies.
Subpart B--Recordkeeping and Other Affirmative Obligations of
Recipients.
Assurances
38.25 A grant applicant's obligation to provide a written assurance.
38.26 Duration and scope of the assurance.
38.27 Covenants.
Equal Opportunity Officers
38.28 Designation of Equal Opportunity Officer.
38.29 Recipient obligations regarding its Equal Opportunity Officer.
38.30 Requisite skill and authority of Equal Opportunity Officer.
38.31 Equal Opportunity Officer responsibilities.
38.32 Small recipient Equal Opportunity Officer obligations.
38.33 Service provider Equal Opportunity Officer obligations.
Notice and Communication
38.34 Recipients' obligations to disseminate equal opportunity
notice.
38.35 Equal Opportunity notice/poster.
38.36 Recipients' obligations to publish equal opportunity notice.
38.37 Notice requirement for service providers.
38.38 Publications, broadcasts and other communications.
38.39 Communication of notice in orientations.
38.40 Affirmative outreach.
Data and Information Collection Maintenance
38.41 Collection and maintenance of equal opportunity data and other
information.
38.42 Information to be provided to CRC by grant applicants and
recipients.
38.43 Required maintenance of records by grant applicants and
recipients.
38.44 CRC access to information and information sources.
38.45 Confidentiality responsibilities of grant applicants,
recipients, and the Department.
Subpart C--Governor's Responsibilities To Implement the
Nondiscrimination and Equal Opportunity Requirements of WIOA
38.50 Subpart application to State Programs.
38.51 Governor's oversight and monitoring responsibilities for State
Programs.
38.52 Governor's liability for actions of recipients the Governor
has financially assisted under Title I of WIOA.
38.53 Governor's oversight responsibility regarding recipients'
recordkeeping.
38.54 Governor's obligations to develop and implement a
Nondiscrimination Plan.
38.55 Schedule of the Governor's obligations regarding the
Nondiscrimination Plan.
[[Page 4541]]
Subpart D--Compliance Procedures
38.60 Evaluation of compliance.
38.61 Authority to issue subpoenas.
Compliance Reviews
38.62 Authority and procedures for pre-approval compliance reviews.
38.63 Authority and procedures for conducting post-approval
compliance reviews.
38.64 Procedures for concluding post-approval compliance reviews.
38.65 Authority to monitor the activities of a Governor.
38.66 Notice to show cause issued to a recipient.
38.67 Methods by which a recipient may show cause why enforcement
proceedings should not be instituted.
38.68 Failing to show cause.
Complaint Processing Procedures
38.69 Complaint filing.
38.70 Required contents of complaint.
38.71 Right to representation.
38.72 Required elements of a recipient's complaint processing
procedures.
38.73 Responsibility for developing and publishing complaint
processing procedures for service providers.
38.74 Recipient's obligations when it determines that it has no
jurisdiction over a complaint.
38.75 If the complainant is dissatisfied after receiving a Notice of
Final Action.
38.76 If a recipient fails to issue a Notice of Final Action within
90 days after the complaint was filed.
38.77 Extension of deadline to file complaint.
38.78 Determinations regarding acceptance of complaints.
38.79 When a complaint contains insufficient information.
38.80 Lack of jurisdiction.
38.81 Complaint referral.
38.82 Notice that complaint will not be accepted.
38.83 Notice of complaint acceptance.
38.84 Contacting CRC about a complaint.
38.85 Alternative dispute resolution.
Complaint Determinations
38.86 Notice at conclusion of complaint investigation.
38.87 Director's Initial Determination that reasonable cause exists
to believe that a violation has taken place.
38.88 Director's Final Determination that no reasonable cause exists
to believe that a violation has taken place.
38.89 When the recipient fails or refuses to take corrective action
listed in the Initial Determination.
38.90 Corrective or remedial action that may be imposed when the
Director finds a violation.
38.91 Post-violation procedures.
38.92 Written assurance.
38.93 Required elements of a conciliation agreement.
38.94 When voluntary compliance cannot be secured.
38.95 Enforcement when voluntary compliance cannot be secured.
38.96 Contents of a Final Determination of a violation.
38.97 Notification of finding of noncompliance.
Breaches of Conciliation Agreements
38.98 Notice of breach of conciliation agreement.
38.99 Contents of notice of breach of conciliation agreement.
38.100 Notification of an enforcement action under based on breach
of conciliation agreement.
Subpart E--Federal Procedures for Effecting Compliance
38.110 Enforcement procedures.
38.111 Hearing procedures.
38.112 Initial and final decision procedures.
38.113 Suspension, termination, withholding, denial or
discontinuation of financial assistance.
38.114 Distribution of WIOA Title I financial assistance to an
alternative recipient.
38.115 Post-termination proceedings.
Authority: 29 U.S.C. 3101 et seq.; 42 U.S.C. 2000d et seq.; 29
U.S.C. 794; 42 U.S.C. 6101 et seq.; and 20 U.S.C. 1681 et seq.
Subpart A--General Provisions
Sec. 38.1 Purpose.
The purpose of this part is to implement the nondiscrimination and
equal opportunity provisions of the Workforce Innovation and
Opportunity Act (WIOA), which are contained in section 188 of WIOA.\1\
Section 188 prohibits discrimination on the basis of race, color,
religion, sex, national origin, age, disability, political affiliation
or belief, and for beneficiaries only, citizenship status or
participation in a WIOA Title I-financially assisted program or
activity. This part clarifies the application of the nondiscrimination
and equal opportunity provisions of WIOA and provides uniform
procedures for implementing them.
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\1\ 29 U.S.C. 3248.
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Sec. 38.2 Applicability.
(a) This part applies to:
(1) Any recipient, as defined in Sec. 38.4;
(2) Programs and activities that are part of the One-Stop delivery
system and that are operated by One-Stop partners listed in section
121(b) of WIOA, to the extent that the programs and activities are
being conducted as part of the One-Stop delivery system; and
(3) As provided in Sec. 38.18, the employment practices of a
recipient and/or One-Stop partner, to the extent that the employment is
in the administration of or in connection with programs and activities
that are being conducted as a part of WIOA Title I or the One-Stop
delivery system.
(b) Limitation of Application. This part does not apply to:
(1) Programs or activities that are financially assisted by the
Department exclusively under laws other than Title I of WIOA, and that
are not part of the One-Stop delivery system (including programs or
activities implemented under, authorized by, and/or financially
assisted by the Department under the Workforce Investment Act of 1998
(WIA));
(2) Contracts of insurance or guaranty;
(3) The ultimate beneficiary to a program of Federal financial
assistance; and
(4) Federal procurement contracts, with the exception of contracts
to operate or provide services to Job Corps Centers.
Sec. 38.3 Effect on other obligations.
(a) A recipient's compliance with this part will satisfy any
obligation of the recipient to comply with 29 CFR part 31, the
Department's regulations implementing Title VI of the Civil Rights Act
of 1964, as amended (Title VI), and with Subparts A, D and E of 29 CFR
part 32, the Department's regulations implementing Section 504 of the
Rehabilitation Act of 1973, as amended (Section 504).
(b) 29 CFR part 32, subparts B and C and Appendix A, the
Department's regulations which implement the requirements of Section
504 pertaining to employment practices and employment-related training,
program accessibility, and reasonable accommodation, are hereby
incorporated into this part by reference. Therefore, recipients must
comply with the requirements set forth in those regulatory sections as
well as the requirements listed in this part.
(c) This part does not invalidate or limit the obligations,
remedies, rights, and procedures under any Federal law, or the law of
any State or political subdivision, that provides greater or equal
protection for the rights of persons as compared to this part:
(1) Recipients that are also public entities or public
accommodations, as defined by Titles II and III of the Americans with
Disabilities Act of 1990 (ADA), should be aware of obligations imposed
by those titles.
(2) Similarly, recipients that are also employers, employment
agencies, or other entities covered by Title I of the ADA should be
aware of obligations imposed by that title.
(d) Compliance with this part does not affect, in any way, any
additional obligations that a recipient may have to comply with
applicable federal laws
[[Page 4542]]
and their implementing regulations, such as the following:
(1) Executive Order 11246, as amended;
(2) Executive Order 13160;
(3) Sections 503 and 504 of the Rehabilitation Act of 1973, as
amended (29 U.S.C. 793 and 794);
(4) The affirmative action provisions of the Vietnam Era Veterans'
Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212);
(5) The Equal Pay Act of 1963, as amended (29 U.S.C. 206d);
(6) Title VII of the Civil Rights Act of 1964, as amended (42
U.S.C. 2000e et seq.);
(7) The Age Discrimination Act of 1975, as amended (42 U.S.C.
6101);
(8) The Age Discrimination in Employment Act of 1967, as amended
(29 U.S.C. 621);
(9) Title IX of the Education Amendments of 1972, as amended (Title
IX) (20 U.S.C. 1681);
(10) The Americans with Disabilities Act of 1990, as amended (42
U.S.C. 12101 et seq.); and
(11) The anti-discrimination provision of the Immigration and
Nationality Act, as amended (8 U.S.C. 1324b).
Sec. 38.4 Definitions.
For the purpose of this part:
(a) Administrative Law Judge means a person appointed as provided
in 5 U.S.C. 3105 and 5 CFR 930.203, and qualified under 5 U.S.C. 557,
to preside at hearings held under the nondiscrimination and equal
opportunity provisions of WOIA and this part.
(b) Aid, benefit, service, or training means WIOA Title I-
financially assisted services, financial or other aid, training, or
benefits provided by or through a recipient or its employees, or by
others through contract or other arrangements with the recipient. As
used in this part, the term includes any aid, benefits, services, or
training provided in or through a facility that has been constructed,
expanded, altered, leased, rented, or otherwise obtained, in whole or
in part, with Federal financial assistance under Title I of WIOA.
``Aid, benefit, service, or training'' includes, but is not limited to:
(1) Career Services;
(2) Education or training;
(3) Health, welfare, housing, social service, rehabilitation, or
other supportive services;
(4) Work opportunities; and
(5) Cash, loans, or other financial assistance to individuals.
(c) Applicant means an individual who is interested in being
considered for WIOA-Title I financially assisted aid, benefit, service,
or training by a recipient, and who has signified that interest by
submitting personal information in response to a request by the
recipient. See also the definitions of ``application for benefits,''
``eligible applicant/registrant,'' ``participant,'' ``participation,''
and ``recipient'' in this section.
(d) Applicant for employment means a person or persons who make(s)
an application for employment with a recipient of Federal financial
assistance under WIOA Title I.
(e) Application for benefits means the process by which
information, including but not limited to a completed application form,
is provided by applicants or eligible applicants before and as a
condition of receiving WIOA Title I-financially assisted aid, benefit,
service, or training from a recipient.
(f) Assistant Attorney General means the Assistant Attorney
General, Civil Rights Division, United States Department of Justice.
(g) Assistant Secretary means the Assistant Secretary for
Administration and Management, United States Department of Labor.
(h) Auxiliary aids or services includes:
(1) Qualified interpreters on-site or through video remote
interpreting (VRI) services; notetakers; real-time computer-aided
transcription services; written materials; exchange of written notes;
telephone handset amplifiers; assistive listening devices; assistive
listening systems; telephones compatible with hearing aids; closed
caption decoders; open and closed captioning, including real-time
captioning; voice, text, and video-based telecommunications products
and systems, including text telephones (TTYs), videophones, and
captioned telephones, or equally effective telecommunications devices;
videotext displays; accessible electronic and information technology;
or other effective means of making aurally delivered materials
available to individuals with hearing impairments;
(2) Qualified readers; taped texts; audio recordings; Brailled
materials and displays; screen reader software; magnification software;
optical readers; secondary auditory programs (SAP); large print
materials; accessible electronic and information technology; or other
effective methods of making visually delivered materials available to
individuals who are blind or have low vision;
(3) Acquisition or modification of equipment or devices; and
(4) Other similar services, devices, and actions.
(i) Babel Notice means a short notice included in a document or
electronic medium (e.g., Web site, ``app,'' email) in multiple
languages informing the reader that the communication contains vital
information, and explaining how to access language services to have the
contents of the communication provided in other languages.
(j) Beneficiary means the individual or individuals intended by
Congress to receive aid, benefits, services, or training from a
recipient.
(k) Citizenship See ``Discrimination prohibited based on
citizenship status.'' in Sec. 38.11.
(l) CRC means the Civil Rights Center, Office of the Assistant
Secretary for Administration and Management, U.S. Department of Labor.
(m) Department means the U.S. Department of Labor (DOL), including
its agencies and organizational units.
(n) Departmental grantmaking agency means a grantmaking agency
within the U.S. Department of Labor.
(o) Director means the Director, Civil Rights Center (CRC), Office
of the Assistant Secretary for Administration and Management, U.S.
Department of Labor, or a designee authorized to act for the Director.
(p) Direct threat means a significant risk of substantial harm to
the health or safety of others that cannot be eliminated or reduced by
auxiliary aids and services, reasonable accommodations, or reasonable
modifications in policies, practices and/or procedures. The
determination whether an individual with a disability poses a direct
threat must be based on an individualized assessment of the
individual's present ability safely to either: (1) satisfy the
essential eligibility requirements of the program or activity (in the
case of aid, benefits, services, or training); or (2) perform the
essential functions of the job (in the case of employment). This
assessment must be based on a reasonable medical judgment that relies
on the most current medical knowledge and/or on the best available
objective evidence. In determining whether an individual would pose a
direct threat, the factors to be considered include:
(1) The duration of the risk;
(2) The nature and severity of the potential harm;
(3) The likelihood that the potential harm will occur; and
(4) The imminence of the potential harm.
(q) Disability--(1) General. (i) The term ``disability'' means,
with respect to an individual:
(A) A physical or mental impairment that substantially limits one
or more of
[[Page 4543]]
the major life activities of such individual;
(B) A record of such an impairment; or
(C) Being regarded as having such an impairment.
(ii) Rules of construction. (A) Coverage of a particular individual
may be established under any one or more of the three prongs of the
general definition in paragraph (1)(i) of this defintion: the ``actual
disability'' prong in paragraph (1)(i)(A), the ``record of'' prong in
paragraph (1)(i)(B), or the ``regarded as'' prong in paragraph
(1)(i)(C).
(B) Where a covered entity's failure to provide reasonable
accommodations or reasonable modifications under Sec. 38.14(a) or (b),
is not being challenged in a particular case, it is generally
unnecessary to proceed under the ``actual disability'' or ``record of''
prongs, which require a showing of an impairment that substantially
limits a major life activity or a record of such an impairment. In
these cases, the evaluation of coverage can be made solely under the
``regarded as'' prong of the definition of disability, which does not
require a showing of an impairment that substantially limits a major
life activity or a record of such an impairment. However, a case may
proceed under the ``actual disability'' or ``record of'' prong
regardless of whether the case is challenging a covered entity's
failure to provide reasonable accommodations, or reasonable
modifications.
(2) The definition of disability must be construed in favor of
broad coverage of individuals, to the maximum extent permitted by
Federal disability nondiscrimination law and this part.
(3) Physical or mental impairment. (i) The phrase ``physical or
mental impairment'' means--
(A) Any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more of the
following body systems: neurological, musculoskeletal, special sense
organs, respiratory (including speech organs), cardiovascular,
reproductive, digestive, genitourinary, immune, circulatory, hemic and
lymphatic, skin, and endocrine; or
(B) Any mental or psychological disorder such as an intellectual
disability, organic brain syndrome, emotional or mental illness, and
specific learning disabilities.
(ii) The phrase ``physical or mental impairment'' includes, but is
not limited to, such contagious and noncontagious diseases and
conditions as orthopedic, visual, speech and hearing impairments,
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis,
cancer, heart disease, diabetes, intellectual disability, emotional
illness, pregnancy-related medical conditions, specific learning
disabilities (including but not limited to dyslexia), HIV disease
(whether symptomatic or asymptomatic), tuberculosis, drug addiction,
and alcoholism.
(iii) The phrase ``physical or mental impairment'' does not include
homosexuality or bisexuality.
(4) Major life activities. (i) General. Major life activities
include, but are not limited to, caring for oneself, performing manual
tasks, seeing, hearing, eating, sleeping, walking, standing, sitting,
reaching, lifting, bending, speaking, breathing, learning, reading,
concentrating, thinking, communicating, interacting with others, and
working.
(ii) Major bodily functions. A major life activity also includes
the operation of a major bodily function, including but not limited to,
the functions of the immune system, special sense organs and skin,
normal cell growth, and digestive, genitourinary, bowel, bladder,
neurological, brain, respiratory, circulatory, cardiovascular,
endocrine, hemic, lymphatic, musculoskeletal, and reproductive systems.
The operation of a major bodily function includes the operation of an
individual organ within a body system.
(iii) In determining other examples of major life activities, the
term ``major'' must not be interpreted strictly to create a demanding
standard for disability. Whether an activity is a ``major life
activity'' is not determined by reference to whether it is of ``central
importance to daily life.''
(5) Substantially limits--(i) Rules of construction. The following
rules of construction apply when determining whether an impairment
substantially limits an individual in a major life activity.
(A) The term ``substantially limits'' must be construed broadly in
favor of expansive coverage, to the maximum extent permitted by Federal
disability nondiscrimination law and this part. ``Substantially
limits'' is not meant to be a demanding standard.
(B) An impairment is a disability within the meaning of this part
if it substantially limits the ability of an individual to perform a
major life activity as compared to most people in the general
population. An impairment need not prevent, or significantly or
severely restrict, the individual from performing a major life activity
in order to be considered substantially limiting.
(C) The primary object of attention in disability cases brought
under WIOA Section 188 should be whether covered entities have complied
with their obligations and whether discrimination has occurred, not the
extent to which an individual's impairment substantially limits a major
life activity. Accordingly, the threshold issue of whether an
impairment substantially limits a major life activity should not demand
extensive analysis.
(D) The determination of whether an impairment substantially limits
a major life activity requires an individualized assessment. However,
in making this assessment, the term ``substantially limits'' will
require a lower degree of functional limitation than the standard for
``substantially limits'' applied prior to the ADA Amendments Act of
2008 (ADAAA).
(E) The comparison of an individual's performance of a major life
activity to the performance of the same major life activity by most
people in the general population usually will not require scientific,
medical, or statistical evidence. Nothing in this paragraph is
intended, however, to prohibit or limit the use of scientific, medical,
or statistical evidence in making such a comparison where appropriate.
(F)(1) The determination of whether an impairment substantially
limits a major life activity must be made without regard to the
ameliorative effects of mitigating measures.
(2) Mitigating measures include, but are not limited to:
(i) Medication, medical supplies, equipment, appliances, low-vision
devices (defined as devices that magnify, enhance, or otherwise augment
a visual image, but not including ordinary eyeglasses or contact
lenses), prosthetics including limbs and devices, hearing aid(s) and
cochlear implant(s) or other implantable hearing devices, mobility
devices, and oxygen therapy equipment and supplies;
(ii) Use of assistive technology;
(iii) Reasonable modifications of policies, practices, and
procedures, or auxiliary aids or services;
(iv) Learned behavioral or adaptive neurological modifications; or
(v) Psychotherapy, behavioral therapy, or physical therapy.
(3) However, the ameliorative effects of ordinary eyeglasses or
contact lenses will be considered in determining whether an impairment
substantially limits a major life activity. Ordinary eyeglasses or
contact lenses are lenses that are intended to fully correct visual
acuity or to eliminate refractive error.
(G) An impairment that is episodic or in remission is a disability
if it would substantially limit a major life activity when active.
[[Page 4544]]
(H) An impairment that substantially limits one major life activity
need not substantially limit other major life activities in order to be
considered a substantially limiting impairment.
(I) The six-month ``transitory'' part of the ``transitory and
minor'' exception in paragraph (7) of this definition does not apply to
the ``actual disability'' or ``record of'' prongs of the definition of
disability. The effects of an impairment lasting or expected to last
less than six months can be substantially limiting within the meaning
of this section for establishing an actual disability or a record of a
disability.
(ii) Predictable assessments. (A) The principles set forth in
paragraph (5)(i) of this definition are intended to provide for more
generous coverage and application of the prohibition on discrimination
through a framework that is predictable, consistent, and workable for
all individuals and entities with rights and responsibilities with
respect to avoiding discrimination on the basis of disability.
(B) Applying the principles set forth in paragraph (5)(i) of this
definition, the individualized assessment of some types of impairments
will, in virtually all cases, result in a determination of coverage
under paragraph (1)(i)(A) (the ``actual disability'' prong) or
paragraph (1)(i)(B) (the ``record of'' prong). Given their inherent
nature, these types of impairments will, as a factual matter, virtually
always be found to impose a substantial limitation on a major life
activity. Therefore, with respect to these types of impairments, the
necessary individualized assessment should be particularly simple and
straightforward.
(C) For example, applying the principles set forth in paragraph
(5)(i) of this definition, it should easily be concluded that the
following types of impairments, will, at a minimum, substantially limit
the major life activities indicated:
(1) Deafness substantially limits hearing and auditory function;
(2) Blindness substantially limits visual function;
(3) An intellectual disability substantially limits reading,
learning, and problem solving;
(4) Partially or completely missing limbs or mobility impairments
requiring the use of a wheelchair substantially limit musculoskeletal
function;
(5) Autism substantially limits learning, social interaction, and
communication;
(6) Cancer substantially limits normal cell growth;
(7) Cerebral palsy substantially limits brain function;
(8) Diabetes substantially limits endocrine function;
(9) Epilepsy, muscular dystrophy, and multiple sclerosis
substantially limit neurological function;
(10) Human Immunodeficiency Virus (HIV) infection substantially
limits immune function; and
(11) Major depressive disorder, bipolar disorder, post-traumatic
stress disorder, traumatic brain injury, obsessive compulsive disorder,
and schizophrenia substantially limit brain function. The types of
impairments described in this paragraph may substantially limit
additional major life activities not explicitly listed above.
(iii) Condition, manner and duration. (A) At all times taking into
account the principles in paragraph (5)(i) of this definition, in
determining whether an individual is substantially limited in a major
life activity, it may be useful in appropriate cases to consider, as
compared to most people in the general population, the conditions under
which the individual performs the major life activity; the manner in
which the individual performs the major life activity; or the duration
of time it takes the individual to perform the major life activity, or
for which the individual can perform the major life activity.
(B) Consideration of facts such as condition, manner or duration
may include, among other things, consideration of the difficulty,
effort or time required to perform a major life activity; pain
experienced when performing a major life activity; the length of time a
major life activity can be performed; or the way an impairment affects
the operation of a major bodily function. In addition, the non-
ameliorative effects of mitigating measures, such as negative side
effects of medication or burdens associated with following a particular
treatment regimen, may be considered when determining whether an
individual's impairment substantially limits a major life activity.
(C) In determining whether an individual has a disability under the
``actual disability'' or ``record of'' prongs of the definition of
disability, the focus is on how a major life activity is substantially
limited, and not on what outcomes an individual can achieve. For
example, someone with a learning disability may achieve a high level of
academic success, but may nevertheless be substantially limited in one
or more major life activities, including, but not limited to, reading,
writing, speaking, or learning, because of the additional time or
effort he or she must spend to read, write, speak, or learn compared to
most people in the general population.
(6) A record of such an impairment. (i) General. An individual has
a record of such an impairment if the individual has a history of, or
has been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(ii) Broad construction. Whether an individual has a record of an
impairment that substantially limited a major life activity must be
construed broadly to the maximum extent permitted by Federal disability
nondiscrimination law and this part and should not demand extensive
analysis. An individual will be considered to fall within this prong of
the definition of ``disability'' if the individual has a history of an
impairment that substantially limited one or more major life activities
when compared to most people in the general population, or was
misclassified as having had such an impairment. In determining whether
an impairment substantially limited a major life activity, the
principles articulated in paragraph (5)(i) of this definition apply.
(iii) Reasonable accommodation or reasonable modification. An
individual with a record of a substantially limiting impairment may be
entitled to a reasonable accommodation or reasonable modification if
needed and related to the past disability.
(7) Is regarded as having such an impairment. (i) An individual is
``regarded as having such an impairment'' if the individual is
subjected to an action prohibited by WIOA Section 188 and this part
because of an actual or perceived physical or mental impairment,
whether or not that impairment substantially limits, or is perceived to
substantially limit, a major life activity, except for an impairment
that is both transitory and minor. A transitory impairment is an
impairment with an actual or expected duration of six months or less.
(ii) An individual is ``regarded as having such an impairment'' any
time a covered entity takes a prohibited action against the individual
because of an actual or perceived impairment, even if the entity
asserts, or may or does ultimately establish, a defense to such action.
(iii) Establishing that an individual is ``regarded as having such
an impairment'' does not, by itself, establish liability. Liability is
established only when it is proven that a covered entity discriminated
on the basis of disability within the meaning of this part.
(r) Eligible applicant/registrant means an individual who has been
determined eligible to participate in one or more
[[Page 4545]]
WIOA Title I-financially assisted programs or activities.
(s) Employment practices of a recipient include, but are not
limited to:
(1) Recruitment or recruitment advertising;
(2) Selection, placement, layoff or termination of employees;
(3) Upgrading, promotion, demotion or transfer of employees;
(4) Training, including employment-related training;
(5) Participation in upward mobility programs;
(6) Deciding rates of pay or other forms of compensation;
(7) Use of facilities; or
(8) Deciding other terms, conditions, benefits, and/or privileges
of employment.
(t) Employment-related training means training that allows or
enables an individual to obtain skills, abilities and/or knowledge that
are designed to lead to employment.
(u) Entity means any person, corporation, partnership, joint
venture, sole proprietorship, unincorporated association, consortium,
Native American tribe or tribal organization, Native Hawaiian
organization, and/or entity authorized by State or local law; any State
or local government; and/or any agency, instrumentality or subdivision
of such a government.
(v) Facility means all or any portion of buildings, structures,
sites, complexes, equipment, roads, walks, passageways, parking lots,
rolling stock or other conveyances, or other real or personal property
or interest in such property, including the site where the building,
property, structure, or equipment is located. The phrase ``real or
personal property'' in the preceding sentence includes indoor
constructs that may or may not be permanently attached to a building or
structure. Such constructs include, but are not limited to, office
cubicles, computer kiosks, and similar constructs.
(w) Federal grantmaking agency means a Federal agency that provides
financial assistance under any Federal statute.
(x) Financial assistance means any of the following:
(1) Any grant, subgrant, loan, or advance of funds, including funds
extended to any entity for payment to or on behalf of participants
admitted to that recipient for training, or extended directly to such
participants for payment to that recipient;
(2) Provision of the services of grantmaking agency personnel, or
of other personnel at the grantmaking agency's expense;
(3) A grant or donation of real or personal property or any
interest in or use of such property, including:
(i) Transfers or leases of property for less than fair market value
or for reduced consideration;
(ii) Proceeds from a subsequent sale, transfer, or lease of such
property, if the grantmaking agency's share of the fair market value of
the property is not returned to the grantmaking agency; and
(iii) The sale, lease, or license of, and/or the permission to use
(other than on a casual or transient basis), such property or any
interest in such property, either:
(A) Without consideration,
(B) At a nominal consideration, or
(C) At a consideration that is reduced or waived either for the
purpose of assisting the recipient, or in recognition of the public
interest to be served by such sale or lease to or use by the recipient;
(4) Waiver of charges that would normally be made for the
furnishing of services by the grantmaking agency; and
(5) Any other agreement, arrangement, contract or subcontract
(other than a procurement contract or a contract of insurance or
guaranty), or other instrument that has as one of its purposes the
provision of assistance or benefits under the statute or policy that
authorizes assistance by the grantmaking agency.
(y) Financial assistance under Title I of WIOA means any of the
following, when authorized or extended under WIOA Title I:
(1) Any grant, subgrant, loan, or advance of federal funds,
including funds extended to any entity for payment to or on behalf of
participants admitted to that recipient for training, or extended
directly to such participants for payment to that recipient;
(2) Provision of the services of Federal personnel, or of other
personnel at Federal expense;
(3) A grant or donation of Federal real or personal property or any
interest in or use of such property, including:
(i) Transfers or leases of property for less than fair market value
or for reduced consideration;
(ii) Proceeds from a subsequent sale, transfer, or lease of such
property, if the Federal share of the fair market value of the property
is not returned to the Federal Government; and
(iii) The sale, lease, or license of, and/or the permission to use
(other than on a casual or transient basis), such property or any
interest in such property, either:
(A) Without consideration,
(B) At a nominal consideration, or
(C) At a consideration that is reduced or waived either for the
purpose of assisting the recipient, or in recognition of the public
interest to be served by such sale or lease to or use by the recipient;
(4) Waiver of charges that would normally be made for the
furnishing of Government services; and
(5) Any other agreement, arrangement, contract or subcontract
(other than a Federal procurement contract or a contract of insurance
or guaranty), or other instrument that has as one of its purposes the
provision of assistance or benefits under WIOA Title I.
(z) Fundamental alteration means:
(1) A change in the essential nature of a program or activity as
defined in this part, including but not limited to an aid, service,
benefit, or training; or
(2) A cost that a recipient can demonstrate would result in an
undue burden. Factors to be considered in making the determination
whether the cost of a modification would result in such a burden
include:
(i) The nature and net cost of the modification needed, taking into
consideration the availability of tax credits and deductions, and/or
outside financial assistance, for the modification;
(ii) The overall financial resources of the facility or facilities
involved in the provision of the modification, including:
(A) The number of persons aided, benefited, served, or trained by,
or employed at, the facility or facilities; and
(B) The effect the modification would have on the expenses and
resources of the facility or facilities;
(iii) The overall financial resources of the recipient, including:
(A) The overall size of the recipient;
(B) The number of persons aided, benefited, served, trained, or
employed by the recipient; and
(C) The number, type and location of the recipient's facilities;
(iv) The type of operation or operations of the recipient,
including:
(A) The geographic separateness and administrative or fiscal
relationship of the facility or facilities in question to the
recipient; and
(B) Where the modification sought is employment-related, the
composition, structure and functions of the recipient's workforce; and
(v) The impact of the modification upon the operation of the
facility or facilities, including:
(A) The impact on the ability of other participants to receive aid,
benefit, service, or training, or of other employees to perform their
duties; and
(B) The impact on the facility's ability to carry out its mission.
[[Page 4546]]
(aa) Governor means the chief elected official of any State, or the
Governor's designee.
(bb) Grant applicant means an entity that submits required
documentation to the Governor, recipient, or Department, before and as
a condition of receiving financial assistance under Title I of WIOA.
(cc) Grantmaking agency means an entity that provides Federal
financial assistance.
(dd) Guideline means written informational material supplementing
an agency's regulations and provided to grant applicants and recipients
to provide program-specific interpretations of their responsibilities
under the regulations.
(ee) Illegal use of drugs means the use of drugs, the possession or
distribution of which is unlawful under the Controlled Substances Act,
as amended (21 U.S.C. 812). ``Illegal use of drugs'' does not include
the use of a drug taken under supervision of a licensed health care
professional, or other uses authorized by the Controlled Substances Act
or other provisions of Federal law.
(ff) Individual with a disability means a person who has a
disability as previously defined in this section.
(1) The term ``individual with a disability'' does not include an
individual on the basis of:
(i) Transvestism, transsexualism, or gender dysphoria not resulting
from physical impairments;
(ii) Pedophilia, exhibitionism, voyeurism, or other sexual behavior
disorders;
(iii) Compulsive gambling, kleptomania, or pyromania; or
(iv) Psychoactive substance use disorders resulting from current
illegal use of drugs.
(2) The term ``individual with a disability'' does not include an
individual who is currently engaging in the illegal use of drugs, when
a recipient acts on the basis of such use. This limitation does not
exclude as an individual with a disability an individual who:
(i) Has successfully completed a supervised drug rehabilitation
program and is no longer engaging in the illegal use of drugs, or has
otherwise been rehabilitated successfully and is no longer engaging in
the illegal use of drugs;
(ii) Is participating in a supervised rehabilitation program and is
no longer engaging in such use; or
(iii) Is erroneously regarded as engaging in such use, but is not
engaging in such use, except that it is not a violation of the
nondiscrimination and equal opportunity provisions of WIOA or this part
for a recipient to adopt or administer reasonable policies or
procedures, including but not limited to drug testing, designed to
ensure that an individual described in paragraph (2)(i) or (ii) of this
definition is no longer engaging in the illegal use of drugs.
(3) With regard to employment, the term ``individual with a
disability'' does not include any individual who:
(i) Is an alcoholic if:
(A) The individual's current use of alcohol prevents such
individual from performing the duties of the job in question, or
(B) The individual's employment, by reason of such current alcohol
abuse, would constitute a direct threat to the individual or the safety
of others; or
(ii) Has a currently contagious disease or infection, if:
(A) That disease or infection prevents him or her from performing
the essential functions of the job in question, or
(B) The individual's employment, because of that disease or
infection, would constitute a direct threat to the health or safety of
the individual or others.
(gg) Labor market area means an economically integrated geographic
area within which individuals can reside and find employment within a
reasonable distance or can readily change employment without changing
their place of residence. Such an area must be identified in accordance
with either criteria used by the Bureau of Labor Statistics of the
Department of Labor in defining such areas, or similar criteria
established by a Governor.
(hh) Limited English proficient (LEP) individual means an
individual whose primary language for communication is not English and
who has a limited ability to read, speak, write, and/or understand
English. LEP individuals may be competent in English for certain types
of communication (e.g., speaking or understanding), but still be LEP
for other purposes (e.g., reading or writing).
(ii) LWIA (Local Workforce Investment Area) grant recipient means
the entity that receives WIOA Title I financial assistance for a Local
Workforce Investment Area directly from the Governor and disburses
those funds for workforce investment activities.
(jj) National Programs means:
(1) Job Corps; and
(2) Programs receiving Federal financial assistance under Title I,
Subtitle D of WIOA directly from the Department. Such programs include,
but are not limited to, the Migrant and Seasonal Farmworkers Programs,
Native American Programs, National Dislocated Worker Grant Programs,
and YouthBuild programs.
(kk) Noncompliance means a failure of a grant applicant or
recipient to comply with any of the applicable requirements of the
nondiscrimination and equal opportunity provisions of WIOA and this
part.
(ll) Nondiscrimination Plan means the written document and
supporting documentation developed under Sec. 38.54.
(mm) On-the-Job Training (OJT) means training by an employer that
is provided to a paid participant while the participant is engaged in
productive work that:
(1) Provides knowledge or skills essential to the full and adequate
performance of the job;
(2) Provides reimbursement to the employer of up to 50 percent of
the wage rate of the participant, for the extraordinary costs of
providing the training and additional supervision related to the
training; and
(3) Is limited in duration as appropriate to the occupation for
which the participant is being trained, taking into account the content
of the training, the prior work experience of the participant, and the
service strategy of the participant, as appropriate.
(nn) Other power-driven mobility device means any mobility device
powered by batteries, fuel, or other engines--whether or not designed
primarily for use by individuals with mobility disabilities--that is
used by individuals with mobility disabilities for the purpose of
locomotion, including golf cars, electronic personal assistance
mobility devices (EPAMDs), such as the Segway[supreg] PT, or any
mobility device designed to operate in areas without defined pedestrian
routes, but that is not a wheelchair within the meaning of this
section.
(oo) Participant means an individual who has been determined to be
eligible to participate in, and who is receiving any aid, benefit,
service or training under, a program or activity financially assisted
in whole or in part under Title I of WIOA. ``Participant'' includes,
but is not limited to, individuals receiving any service(s) under state
Employment Service programs, and claimants receiving any service(s) or
benefits under state Unemployment Insurance programs.
(pp) Participation is considered to commence on the first day,
following determination of eligibility, on which the participant began
receiving subsidized aid, benefit, service, or training provided under
Title I of WIOA.
[[Page 4547]]
(qq) Parties to a hearing means the Department and the grant
applicant(s), recipient(s), or Governor.
(rr) Population eligible to be served means the total population of
adults and eligible youth who reside within the labor market area that
is served by a particular recipient, and who are eligible to seek WIOA
Title I-financially assisted aid, benefits, services or training from
that recipient. See the definition of ``labor market area'' in this
section.
(ss) Program or activity: See ``WIOA Title I-financially assisted
program or activity'' in this section.
(tt) Programmatic accessibility means policies, practices, and
procedures providing effective and meaningful opportunity for persons
with disabilities to participate in or benefit from aid, benefits,
services, and training.
(uu) Prohibited basis means any basis upon which it is illegal to
discriminate under the nondiscrimination and equal opportunity
provisions of WIOA or this part, i.e., race, color, religion, sex,
national origin, age, disability, political affiliation or belief, and,
for beneficiaries only, citizenship status or participation in a WIOA
Title I-financially assisted program or activity.
(vv) Public entity means:
(1) Any State or local government; and
(2) Any department, agency, special purpose district, workforce
investment board, or other instrumentality of a State or States or
local government.
(ww) Qualified individual with a disability means--
(1) With respect to employment, an individual who satisfies the
requisite skill, experience, education, and other job-related
requirements of the employment position such individual holds or
desires, and who, with or without reasonable accommodation, can perform
the essential functions of such position;
(2) With respect to aid, benefits, services, or training, an
individual who, with or without auxiliary aids and services, reasonable
accommodations, and/or reasonable modifications in policies, practices
and procedures, meets the essential eligibility requirements for the
receipt of such aid, benefits, services, or training.
(xx) Qualified interpreter means an interpreter who is able to
interpret effectively, accurately, and impartially, either for
individuals with disabilities or for individuals who are limited
English proficient. The interpreter must be able to interpret both
receptively and expressively, using any necessary specialized
vocabulary, either in-person, through a telephone, a video remote
interpreting (VRI) service, or via internet, video, or other
technological methods.
(1) Qualified interpreter for an individual with a disability
includes, for example, a sign language interpreter, oral
transliterator, and cued-language transliterator. When an interpreter
is provided to a person with a disability, the qualified interpreter
must be able to sign or otherwise communicate effectively, accurately,
and impartially, both receptively and expressively, using any necessary
specialized vocabulary.
(2) Qualified interpreter for an individual who is limited English
proficient means an individual who demonstrates expertise and ability
to communicate information effectively, accurately, and impartially, in
both English and the other language, and identifies and employs the
appropriate mode of interpreting (e.g., consecutive, simultaneous, or
sight translation).
(yy) Reasonable accommodation. (1) The term ``reasonable
accommodation'' means:
(i) Modifications or adjustments to an application/registration
process that enables a qualified applicant/registrant with a disability
to be considered for the aid, benefits, services, training, or
employment that the qualified applicant/registrant desires; or
(ii) Modifications or adjustments that enable a qualified
individual with a disability to perform the essential functions of a
job, or to receive aid, benefits, services, or training equal to that
provided to qualified individuals without disabilities. These
modifications or adjustments may be made to:
(A) The environment where work is performed or aid, benefits,
services, or training are given; or
(B) The customary manner in which, or circumstances under which, a
job is performed or aid, benefits, services, or training are given; or
(iii) Modifications or adjustments that enable a qualified
individual with a disability to enjoy the same benefits and privileges
of the aid, benefits, services, training, or employment as are enjoyed
by other similarly situated individuals without disabilities.
(2) Reasonable accommodation includes, but is not limited to:
(i) Making existing facilities used by applicants, registrants,
eligible applicants/registrants, participants, applicants for
employment, and employees readily accessible to and usable by
individuals with disabilities; and
(ii) Restructuring of a job or a service, or of the way in which
aid, benefits, services, or training is/are provided; part-time or
modified work or training schedules; acquisition or modification of
equipment or devices; appropriate adjustment or modifications of
examinations, training materials, or policies; the provision of readers
or interpreters; and other similar accommodations for individuals with
disabilities.
(3) To determine the appropriate reasonable accommodation, it may
be necessary for the recipient to initiate an informal, interactive
process with the qualified individual with a disability in need of the
accommodation. This process should identify the precise limitations
resulting from the disability and potential reasonable accommodations
that could overcome those limitations.
(4) A covered entity is required, absent undue hardship, to provide
a reasonable accommodation to an otherwise qualified individual who has
an ``actual disability'' or ``record of'' a disability, but is not
required to provide a reasonable accommodation to an individual who is
only ``regarded as'' having a disability.
(zz) Recipient means entity to which financial assistance under
Title I of WIOA is extended, directly from the Department or through
the Governor or another recipient (including any successor, assignee,
or transferee of a recipient). The term excludes any ultimate
beneficiary of the WIOA Title I-financially assisted program or
activity. In instances in which a Governor operates a program or
activity, either directly or through a State agency, using
discretionary funds apportioned to the Governor under WIOA Title I
(rather than disbursing the funds to another recipient), the Governor
is also a recipient. In addition, for purposes of this part, One-Stop
partners, as defined in section 121(b) of WIOA, are treated as
``recipients,'' and are subject to the nondiscrimination and equal
opportunity requirements of this part, to the extent that they
participate in the One-Stop delivery system. ``Recipient'' includes,
but is not limited to:
(1) State-level agencies that administer, or are financed in whole
or in part with, WIOA Title I funds;
(2) State Workforce Agencies;
(3) State and local Workforce Investment Boards;
(4) LWIA grant recipients;
(5) One-Stop operators;
(6) Service providers, including eligible training providers;
(7) On-the-Job Training (OJT) employers;
(8) Job Corps contractors and center operators;
[[Page 4548]]
(9) Job Corps national training contractors;
(10) Outreach and admissions agencies, including Job Corps
contractors that perform these functions;
(11) Placement agencies, including Job Corps contractors that
perform these functions;
(12) Other National Program recipients.
(aaa) Registrant means the same as ``applicant'' for purposes of
this part. See also the definitions of ``application for benefits,''
``eligible applicant/registrant,'' ``participant,'' ``participation,''
and ``recipient'' in this section.
(bbb) Respondent means a grant applicant or recipient (including a
Governor) against which a complaint has been filed under the
nondiscrimination and equal opportunity provisions of WIOA or this
part.
(ccc) Secretary means the Secretary of Labor, U.S. Department of
Labor, or the Secretary's designee.
(ddd) Sectarian activities means religious worship or ceremony, or
sectarian instruction.
(eee) Section 504 means Section 504 of the Rehabilitation Act of
1973, 29 U.S.C. 794, as amended, which forbids discrimination against
qualified individuals with disabilities in federally-financed and
conducted programs and activities.
(fff) Service animal means any dog that is individually trained to
do work or perform tasks for the benefit of an individual with a
disability, including a physical, sensory, psychiatric, intellectual,
or other mental disability. Other species of animals, whether wild or
domestic, trained or untrained, are not service animals for the
purposes of this definition. The work or tasks performed by a service
animal must be directly related to the individual's disability.
Examples of work or tasks include, but are not limited to, assisting
individuals who are blind or have low vision with navigation and other
tasks, alerting individuals who are deaf or hard of hearing to the
presence of people or sounds, providing non-violent protection or
rescue work, pulling a wheelchair, assisting an individual during a
seizure, alerting individuals to the presence of allergens, retrieving
items such as medicine or the telephone, providing physical support and
assistance with balance and stability to individuals with mobility
disabilities, and helping persons with psychiatric and neurological
disabilities by preventing or interrupting impulsive or destructive
behaviors. The crime deterrent effects of an animal's presence and the
provision of emotional support, well-being, comfort, or companionship,
without more, do not constitute work or tasks for the purposes of this
definition.
(ggg) Service provider means:
(1) Any operator of, or provider of aid, benefits, services, or
training to:
(i) Any program or activity that receives WIOA Title I financial
assistance from or through any State or LWIA grant recipient; or
(ii) Any participant through that participant's Individual Training
Account (ITA); or
(2) Any entity that is selected and/or certified as an eligible
provider of training services to participants.
(hhh) Small recipient means a recipient who:
(1) Serves a total of fewer than 15 beneficiaries during the entire
grant year, and
(2) Employs fewer than 15 employees on any given day during the
grant year.
(iii) Solicitor means the Solicitor of Labor, U.S. Department of
Labor, or the Solicitor's designee.
(jjj) State means the individual states of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, the Virgin
Islands, American Samoa, Guam, Wake Island, the Commonwealth of the
Northern Mariana Islands, the Federated States of Micronesia, the
Republic of the Marshall Islands, and Palau.
(kkk) State Programs means programs financially assisted in whole
or in part under Title I of WIOA in which either:
(1) The Governor and/or State receives and disburses the grant to
or through LWIA grant recipients; or
(2) The Governor retains the grant funds and operates the programs,
either directly or through a State agency.
(3) ``State programs'' also includes State Workforce Agencies,
State Employment Service agencies, and/or State unemployment
compensation agencies.
(lll) State Workforce Agency (SWA) means the State agency that,
under the State Administrator, contains both State agencies with
responsibility for administering programs authorized under the Wagner-
Peyser Act, and unemployment insurance programs authorized under Title
III of the Social Security Act.
(mmm) Supportive services means services, such as transportation,
child care, dependent care, housing, and needs-related payments, that
are necessary to enable an individual to participate in WIOA Title I-
financially assisted programs and activities, as consistent with the
provisions of WIOA Title I.
(nnn) Terminee means a participant whose participation in the
program or employee whose employment with the program ends voluntarily
or involuntarily, during the applicable program year.
(ooo) Title VI means Title VI of the Civil Rights Act of 1964, 42
U.S.C. 2000d, et seq., as amended, which forbids recipients of Federal
financial assistance from discriminating on the basis of race, color,
or national origin.
(ppp) Transferee means a person or entity to whom or to which real
or personal property, or an interest in such property, is transferred.
(qqq) Ultimate beneficiary See the definition of ``beneficiary'' in
this section.
(rrr) Undue burden or undue hardship has different meanings,
depending upon whether it is used with regard to reasonable
accommodation of individuals with disabilities, or with regard to
religious accommodation.
(1) Reasonable accommodation of individuals with disabilities. (i)
In general, ``undue hardship'' means significant difficulty or expense
incurred by a recipient, when considered in light of the factors set
forth in paragraph (1)(ii) of this definition.
(ii) Factors to be considered in determining whether an
accommodation would impose an undue hardship on a recipient include:
(A) The nature and net cost of the accommodation needed, taking
into consideration the availability of tax credits and deductions, and/
or outside funding, for the accommodation;
(B) The overall financial resources of the facility or facilities
involved in the provision of the reasonable accommodation, including:
(1) The number of persons aided, benefited, served, or trained by,
or employed at, the facility or facilities, and
(2) The effect the accommodation would have on the expenses and
resources of the facility or facilities;
(C) The overall financial resources of the recipient, including:
(1) The overall size of the recipient,
(2) The number of persons aided, benefited, served, trained, or
employed by the recipient, and
(3) The number, type and location of the recipient's facilities;
(D) The type of operation or operations of the recipient,
including:
(1) The geographic separateness and administrative or fiscal
relationship of the facility or facilities in question to the
recipient, and
(2) Where the individual is seeking an employment-related
accommodation, the composition, structure and functions of the
recipient's workforce; and
[[Page 4549]]
(E) The impact of the accommodation upon the operation of the
facility or facilities, including:
(1) The impact on the ability of other participants to receive aid,
benefits, services, or training, or of other employees to perform their
duties, and
(2) The impact on the facility's ability to carry out its mission.
(2) Religious accommodation. For purposes of religious
accommodation only, ``undue hardship'' means anything more than a de
minimis cost or operational burden that a particular accommodation
would impose upon a recipient.
(sss) Video remote interpreting (VRI) service means an interpreting
service that uses video conference technology over dedicated lines or
wireless technology offering high-speed, wide-bandwidth video
connection that delivers high-quality video images, as provided in
Sec. 38.15.
(ttt) Vital information means information, whether written, oral or
electronic, that is necessary for an individual to understand how to
obtain any aid, benefit, service and/or training; necessary for an
individual to obtain any aid, benefit, service, and/or training; or
required by law. Examples of documents containing vital information
include, but are not limited to applications, consent, and complaint
forms; notices of rights and responsibilities; notices advising LEP
individuals of their rights under this part, including the availability
of free language assistance; rulebooks; written tests that do not
assess English language competency, but rather assess competency for a
particular license, job, or skill for which English proficiency is not
required; and letters or notices that require a response from the
beneficiary or applicant, participant, or employee.
(uuu) Wheelchair means a manually-operated or power-driven device
designed primarily for use by an individual with a mobility disability
for the main purpose of indoor and/or outdoor locomotion.
(vvv) WIOA means the Workforce Innovation and Opportunity Act.
(www) WIOA Title I financial assistance. See the definition of
``Financial assistance under WIOA'' in this section.
(xxx) WIOA Title I-financially assisted program or activity means:
(1) A program or activity, operated by a recipient and financially
assisted, in whole or in part, under Title I of WIOA that provides
either:
(i) Any aid, benefit, service, or training to individuals; or
(ii) Facilities for furnishing any aid, benefits, services, or
training to individuals;
(2) Aid, benefit, service, or training provided in facilities that
are being or were constructed with the aid of Federal financial
assistance under WIOA Title I; or
(3) Aid, benefit, service, or training provided with the aid of any
non-WIOA Title I financial assistance, property, or other resources
that are required to be expended or made available in order for the
program to meet matching requirements or other conditions which must be
met in order to receive the WIOA Title I financial assistance. See the
definition of ``aid, benefit, service, or training'' in this section.
Sec. 38.5 General prohibitions on discrimination.
No individual in the United States may, on the basis of race,
color, religion, sex, national origin, age, disability, political
affiliation or belief, and for beneficiaries, applicants, and
participants only, citizenship or participation in any WIOA Title I-
financially assisted program or activity, be excluded from
participation in, denied the benefits of, subjected to discrimination
under, or denied employment in the administration of or in connection
with any WIOA Title I-financially assisted program or activity.
Sec. 38.6 Specific discriminatory actions prohibited on bases other
than disability.
(a) For the purposes of this section, prohibited bases for
discrimination are race, color, religion, sex, national origin, age,
political affiliation or belief, and for beneficiaries, applicants, and
participants only, citizenship or participation in any WIOA Title I-
financially assisted program or activity.
(b) A recipient must not, directly or through contractual,
licensing, or other arrangements, on a prohibited basis:
(1) Deny an individual any aid, benefit, service, or training
provided under a WIOA Title I-financially assisted program or activity;
(2) Provide to an individual any aid, benefit, service, or training
that is different, or is provided in a different manner, from that
provided to others under a WIOA Title I-financially assisted program or
activity;
(3) Subject an individual to segregation or separate treatment in
any matter related to receipt of any aid, benefit, service, or training
under a WIOA Title I-financially assisted program or activity;
(4) Restrict an individual in any way in the enjoyment of any
advantage or privilege enjoyed by others receiving any aid, benefit,
service, or training under a WIOA Title I-financially assisted program
or activity;
(5) Treat an individual differently from others in determining
whether the individual satisfies any admission, enrollment,
eligibility, membership, or other requirement or condition for any aid,
benefit, service, or training provided under a WIOA Title I-financially
assisted program or activity;
(6) Deny or limit an individual with respect to any opportunity to
participate in a WIOA Title I-financially assisted program or activity,
or afford the individual an opportunity to do so that is different from
the opportunity afforded others under a WIOA Title I-financially
assisted program or activity;
(7) Deny an individual the opportunity to participate as a member
of a planning or advisory body that is an integral part of the WIOA
Title I-financially assisted program or activity; or
(8) Otherwise limit an individual enjoyment of any right,
privilege, advantage, or opportunity enjoyed by others receiving any
WIOA Title I-financially assisted aid, benefit, service, or training.
(c) A recipient must not, directly or through contractual,
licensing, or other arrangements:
(1) Aid or perpetuate discrimination by providing significant
assistance to an agency, organization, or person that discriminates on
a basis prohibited by WIOA Section 188 or this part in providing any
aid, benefit, service, or training, to registrants, applicants or
participants in a WIOA Title I-financially assisted program or
activity; or
(2) Refuse to accommodate an individual's religious practices or
beliefs, unless to do so would result in undue hardship, as defined in
Sec. 38.4(rrr)(2).
(d)(1) In making any of the determinations listed in paragraph
(d)(2) of this section, either directly or through contractual,
licensing, or other arrangements, a recipient must not use standards,
procedures, criteria, or administrative methods that have any of the
following purposes or effects:
(i) Subjecting individuals to discrimination on a prohibited basis;
or
(ii) Defeating or substantially impairing, on a prohibited basis,
accomplishment of the objectives of either:
(A) The WIOA Title I-financially assisted program or activity; or
[[Page 4550]]
(B) The nondiscrimination and equal opportunity provisions of WIOA
or this part.
(2) The determinations to which this paragraph applies include, but
are not limited to:
(i) The types of aid, benefit, service, training, or facilities
that will be provided under any WIOA Title I-financially assisted
program or activity;
(ii) The class of individuals to whom such aid, benefit, service,
training, or facilities will be provided; or
(iii) The situations in which such aid, benefit, service, training,
or facilities will be provided.
(3) Paragraph (d) of this section applies to the administration of
WIOA Title I-financially assisted programs or activities providing aid,
benefit, service, training, or facilities in any manner, including, but
not limited to:
(i) Outreach and recruitment;
(ii) Registration;
(iii) Counseling and guidance;
(iv) Testing;
(v) Selection, placement, appointment, and referral;
(vi) Training; and
(vii) Promotion and retention.
(4) A recipient must not take any of the prohibited actions listed
in paragraph (d) of this section either directly or through
contractual, licensing, or other arrangements.
(e) In determining the site or location of facilities, a grant
applicant or recipient must not make selections that have any of the
following purposes or effects:
(1) On a prohibited basis:
(i) Excluding individuals from a WIOA Title I-financially assisted
program or activity;
(ii) Denying them the benefits of such a program or activity; or
(iii) Subjecting them to discrimination; or
(2) Defeating or substantially impairing the accomplishment of the
objectives of either:
(i) The WIOA Title I-financially assisted program or activity; or
(ii) The nondiscrimination and equal opportunity provisions of WIOA
or this part.
(f)(1) 29 CFR part 2, subpart D governs the circumstances under
which DOL support, including under WIOA Title I-financial assistance,
may be used to employ or train participants in religious activities.
Under that subpart, such assistance may be used for such employment or
training only when the assistance is provided indirectly within the
meaning of the Establishment Clause of the U.S. Constitution, and not
when the assistance is provided directly. As explained in that subpart,
assistance provided through an Individual Training Account is generally
considered indirect, and other mechanisms may also be considered
indirect. See also 20 CFR 667.266 and 667.275. 29 CFR part 2, subpart D
also contains requirements related to equal treatment of religious
organizations in Department of Labor programs, and to protection of
religious liberty for Department of Labor social service providers and
beneficiaries.
(2) Except under the circumstances described in paragraph (f)(3) of
this section, a recipient must not employ participants to carry out the
construction, operation, or maintenance of any part of any facility
that is used, or to be used, for religious instruction or as a place
for religious worship.
(3) A recipient may employ participants to carry out the
maintenance of a facility that is not primarily or inherently devoted
to religious instruction or religious worship if the organization
operating the facility is part of a program or activity providing
services to participants.
(g) The exclusion of an individual from programs or activities
limited by Federal statute or Executive Order to a certain class or
classes of individuals of which the individual in question is not a
member is not prohibited by this part.
Sec. 38.7 Discrimination prohibited based on sex.
(a) In providing any aid, benefit, service, or training under a
WIOA Title I-financially assisted program or activity, a recipient must
not directly or through contractual, licensing, or other arrangements,
discriminate on the basis of sex. An individual may not be excluded
from participation in, denied the benefits of, or subjected to
discrimination under any WIOA Title I- financially assisted program or
activity based on sex. The term sex includes, but is not limited to,
pregnancy, childbirth, and related medical conditions, transgender
status, and gender identity.
(b) Recipients may not make any distinction based on sex in
providing any aid, benefit, service, or training under a WIOA Title I-
financially assisted program or activity. Such unlawful sex-based
discriminatory practices include, but are not limited to, the
following:
(1) Making a distinction between married and unmarried persons that
is not applied equally to both sexes;
(2) Denying individuals of one sex who have children access to any
aid, benefit, service, or training that is available to individuals of
another sex who have children;
(3) Adversely treating unmarried individuals of one sex, but not
unmarried individuals of an other sex, who become parents;
(4) Distinguishing on the basis of sex in formal or informal job
training and/or educational programs, other opportunities such as
networking, mentoring, individual development plans, or on the job
training opportunities;
(5) Posting job announcements for jobs that recruit or advertise
for individuals for certain jobs on the basis of sex, including through
the use of gender-specific terms for jobs (such as ``waitress'');
(6) Treating an individual adversely because the individual
identifies with a gender different from that individual's sex assigned
at birth, or the individual has undergone, is undergoing, or is
planning to undergo, any processes or procedures designed to facilitate
the individual's transition to a sex other than the individual's sex
assigned at birth;
(7) Denying individuals who are pregnant, who become pregnant, or
who plan to become pregnant, opportunities for or access to aid,
benefit, service, or training on the basis of pregnancy;
(8) Making any facilities associated with WIOA Title I-financially
assisted program or activities available only to members of one sex,
except that if the recipient provides restrooms or changing facilities,
the recipient must provide separate or single-user restrooms or
changing facilities;
(9) Denying individuals access to the bathrooms used by the gender
with which they identify.
(c) A recipient's policies or practices that have an adverse impact
on the basis of sex, and are not program-related and consistent with
program necessity, constitute sex discrimination in violation of WIOA
and this part.
(d) Discrimination on the basis of sex stereotypes, such as
stereotypes about how persons of a particular sex are expected to look,
speak, or act, is a form of unlawful sex discrimination. Examples of
sex stereotyping include, but are not limited to:
(1) Denying an individual access to, or otherwise subjecting the
individual to adverse treatment in accessing aid, benefit, service, or
training, under a WIOA Title I-financially assisted program or activity
because of that individual's failure to comply with gender norms and
expectations for dress, appearance and/or behavior, including wearing
jewelry, make-up, high-heeled shoes, suits or neckties.
(2) Harassment or adverse treatment of a male applicant,
participant, or
[[Page 4551]]
beneficiary of a WIOA Title I-financially assisted program or activity
because he is considered effeminate or insufficiently masculine.
(3) Adverse treatment of an applicant, participant, or beneficiary
of a WIOA Title I-financially assisted program or activity because of
the individual's actual or perceived gender identity.
(4) Adverse treatment of an applicant, participant, or beneficiary
of a WIOA Title I-financially assisted program or activity based on sex
stereotypes about caregiver responsibilities. For example, adverse
treatment of a female participant because of a sex assumption that she
has (or will have) family caretaking responsibilities, and that those
responsibilities will interfere with her ability to access aid,
benefit, service or training, is discrimination based on sex.
(5) Adverse treatment of a male applicant, participant, or
beneficiary of a WIOA Title I- financially assisted program or activity
because he has taken, or is planning to take, care of his newborn or
recently adopted or fostered child, based on the sex-stereotyped belief
that women, and not men, should care for children.
(6) Denying a woman access to, or otherwise subjecting her to
adverse treatment in accessing, aid, benefit, service, or training
under a WIOA Title I-financially assisted program or activity, based on
the sex-stereotyped belief that women with children should not work
long hours, regardless of whether the recipient is acting out of
hostility or belief that it is acting in her or her children's best
interest.
(7) Denying an individual access to, or otherwise subjecting the
individual to adverse treatment in accessing aid, benefit, service, or
training, under a WIOA Title I-financially assisted program or
activity, based on sex stereotyping including the belief that a victim
of domestic violence would disrupt the program or activity and/or may
be unable to access any aid, benefit, service, or training.
(8) Adverse treatment of a woman applicant, participant, or
beneficiary of a WIOA Title I-financially assisted program or activity
because she does not dress or talk in a feminine manner.
(9) Denying an individual access to, or otherwise subjecting the
individual to adverse treatment in accessing aid, benefit, service, or
training, under a WIOA Title I-financially assisted program or
activity, because the individual does not conform to a sex stereotype
about individuals of a particular sex working in a specific job,
sector, or industry.
Sec. 38.8 Discrimination prohibited based on pregnancy.
Discrimination on the basis of pregnancy, childbirth, or related
medical conditions, including childbearing capacity, is a form of sex
discrimination and a violation of the nondiscrimination provisions of
WIOA and this part. Recipients may not treat persons of childbearing
capacity, or those affected by pregnancy, childbirth, or related
medical conditions, adversely in accessing aid, benefit, service, or
training, under a WIOA Title I-financially assisted program or
activity. Related medical conditions include, but are not limited to:
Lactation; disorders directly related to pregnancy, such as
preeclampsia (pregnancy-induced high blood pressure), placenta previa,
and gestational diabetes; symptoms such as back pain; complications
requiring bed rest; and the after-effects of a delivery. A pregnancy-
related medical condition may also be a disability. See Sec.
38.4(q)(3)(ii). Examples of unlawful pregnancy discrimination may
include:
(a) Refusing to provide any aid, benefit, service, or training,
under a WIOA Title I-financially assisted program or activity to a
pregnant individual or an individual of childbearing capacity, or
otherwise subjecting such individuals to adverse treatment on the basis
of pregnancy or childbearing capacity;
(b) Limiting an individual's access to any aid, benefit, service,
or training under a WIOA Title I-financially assisted program or
activity based on her pregnancy, or requiring a doctor's note in order
for a pregnant woman to begin or continue participation while pregnant
when doctors' notes are not required for participants who are similarly
situated;
(c) Denying an individual access to any aid, benefit, service, or
training under a WIOA Title I-financially assisted program or activity
or requiring the individual to terminate participation in any WIOA
Title I-financially assisted program or activity when the individual
becomes pregnant or has a child;
(d) Denying reasonable accommodations or modifications of policies,
practices, or procedures to a pregnant applicant or participant who is
temporarily unable to participate in some portions of a WIOA Title I-
financially assisted program or activity because of pregnancy,
childbirth, and/or related medical conditions, when such accommodations
or modifications are provided, or are required to be provided, by a
recipient's policy or by other relevant laws, to other applicants or
participants not so affected but similar in their ability or inability
to participate.
Sec. 38.9 Discrimination prohibited based on national origin,
including limited English proficiency.
(a) In providing any aid, benefit, service, or training under a
WIOA Title I-financially assisted program or activity, a recipient must
not, directly or through contractual, licensing, or other arrangements,
discriminate on the basis of national origin. An individual must not be
excluded from participation in, denied the benefits of, or otherwise
subjected to discrimination under, any WIOA Title I-financially
assisted program or activity based on national origin. National origin
discrimination includes treating individual beneficiaries,
participants, or applicants for aid, benefit, service or training under
any WIOA Title I-financially assisted program or activity adversely
because they (or their families or ancestors) are from a particular
country or part of the world, because of ethnicity or accent (including
physical, linguistic, and cultural characteristics closely associated
with a national origin group), or because the recipient perceives the
individual to be of a certain national origin, even if they are not.
(b) A recipient must take reasonable steps to ensure meaningful
access to each limited English proficient (LEP) individual served or
encountered so that LEP individuals are effectively informed about and/
or able to participate in the program or activity.
(1) Reasonable steps generally may include, but are not limited to,
an assessment of an LEP individual to determine language assistance
needs; providing oral interpretation or written translation of both
hard-copy and electronic materials, in the appropriate non-English
languages, to LEP individuals; and outreach to LEP communities to
improve service delivery in needed languages.
(2) Reasonable steps to provide meaningful access to training
programs may include, but are not limited to, providing:
(i) Written training materials in appropriate non-English languages
by written translation or by oral interpretation or summarization; and
(ii) Oral training content in appropriate non-English languages
through in-person interpretation or telephone interpretation.
(c) A recipient should ensure that every program delivery avenue
(e.g., electronic, in person, telephonic) conveys in the appropriate
languages how an individual may effectively learn about, participate
in, and/or access any
[[Page 4552]]
aid, benefit, service, or training that the recipient provides. As a
recipient develops new methods for delivery of information or
assistance, it is required to take reasonable steps to ensure that LEP
individuals remain able to learn about, participate in, and/or access
any aid, benefit, service, or training that the recipient provides.
(d) Any language assistance services, whether oral interpretation
or written translation, must be provided in a timely manner and free of
charge. Language assistance will be considered timely when it is
provided at a place and time that ensures equal access and avoids the
delay or denial of any aid, benefit, service, or training at issue.
(e) A recipient must provide adequate notice to LEP individuals of
the existence of interpretation and translation services and that they
are available free of charge.
(f)(1) A recipient shall not require an LEP individual to provide
their own interpreter.
(2) A recipient also shall not rely on an LEP individual's minor
child or adult family or friend(s) to interpret or facilitate
communication, except:
(i) An LEP individual's minor child or adult family or friend(s)
may interpret or facilitate communication in emergency situations while
awaiting a qualified interpreter; or
(ii) The accompanying adult (but not minor child) may interpret or
facilitate communication when the information conveyed is of minimal
importance to the services to be provided or when the LEP individual
specifically requests that the accompanying adult provide language
assistance, the accompanying adult agrees to provide assistance, and
reliance on that adult for such assistance is appropriate under the
circumstances. When the recipient permits the accompanying adult to
provide such assistance, it must make and retain a record of the LEP
individual's decision to use their own interpreter.
(3) Where precise, complete, and accurate interpretations or
translation of information and/or testimony are critical for
adjudicatory or legal reasons, or where the competency of the
interpreter requested by the LEP individual is not established, a
recipient may decide to provide its own, independent interpreter, even
if an LEP individual wants to use their own interpreter as well.
(g) With regard to vital information:
(1) For languages spoken by a significant number or portion of the
population eligible to be served, or likely to be encountered, a
recipient must translate vital information in written materials into
these languages and make the translations readily available in hard
copy, upon request, or electronically such as on a Web site. Written
training materials offered or used within employment-related training
programs as defined under Sec. 38.4(t) are excluded from these
translation requirements. However, recipients must take reasonable
steps to ensure meaningful access as stated in Sec. 38.9(b).
(2) For languages not spoken by a significant number or portion of
the population eligible to be served, or likely to be encountered, a
recipient must make reasonable steps to meet the particularized
language needs of LEP individuals who seek to learn about, participate
in, and/or access the aid, benefit, service or training that the
recipient provides. Vital information may be conveyed orally if not
translated.
(3) Recipients must include a ``Babel notice,'' indicating that
language assistance is available, in all communications of vital
information, such as hard-copy letters or decisions or those
communications posted on Web sites.
(h) To the extent otherwise required by this part, once a recipient
becomes aware of the non-English preferred language of an LEP
beneficiary, participant, or applicant for aid, benefit, service or
training, the recipient must convey vital information in that language.
(i) Recipients are required to take reasonable steps to provide
language assistance and should develop a written language access plan
to ensure that LEP individuals have meaningful access. The Appendix to
this section provides guidance to recipients on developing a language
access plan.
Appendix to Sec. 38.9--Guidance to Recipients
Recipient Language Assistance Plan (LEP Plan): Promising Practices
The guidelines in this appendix are consistent with and, in
large part, derived from existing federal guidance to federal
financial assistance recipients to take reasonable steps to ensure
access by limited English proficient (LEP) individuals.
Recipients that develop, implement, and periodically revise a
written language assistance plan are more likely to fulfill their
obligation of taking reasonable steps to ensure access to programs
and activities by LEP individuals. The guidelines set forth below
provide a clear framework for developing a written plan that will
ensure meaningful access to LEP individuals. Developing and
implementing a written plan has many benefits, including providing
the recipient with a roadmap for establishing and documenting
compliance with nondiscrimination obligations and ensuring that LEP
beneficiaries receive the necessary assistance to participate in the
recipient's programs and activities.
The elements of a successful LEP plan are not fixed. Written LEP
plans must be tailored to the recipient's specific programs and
activities. And, over time, plans will need to be revised to reflect
new recommendations and government guidance; changes in the
recipient's operations, as well as the recipient's experiences and
lessons learned; changing demographics; and stakeholder and
beneficiary feedback. Nonetheless, a recipient that develops an LEP
plan incorporating the elements identified below will benefit
greatly in accomplishing its mission and providing an equal
opportunity for LEP individuals to participate in its programs and
activities.
A written LEP plan should identify and describe:
1. The process the recipient will use to determine the language
needs of individuals who may or may seek to participate in the
recipient's program and activities (self- or needs-assessment)
2. The results of the assessment, e.g., identifying the LEP
populations to be served by the recipient
3. Timelines for implementing the written LEP plan
4. All language services to be provided to LEP individuals
5. The manner in which LEP individuals will be advised of available
services
6. Steps individuals should take to request language assistance
7. The manner in which staff will provide language assistance
services
8. What steps must be taken to implement the LEP plan, e.g.,
creating or modifying policy documents, employee manuals, employee
training material, posters, Web sites, outreach material, contracts,
and electronic and information technologies, applications, or
adaptations
9. The manner in which staff will be trained
10. Steps the recipient will take to ensure quality control,
including monitoring implementation, establishing a complaint
process, timely addressing complaints, and obtaining feedback from
stakeholders and employees
11. The manner in which the recipient will document the provision of
language services
12. The schedule for revising the LEP plan
13. The individual(s) assigned to oversee implementation of the plan
(e.g., LEP Coordinator or Program Manager)
14. Allocation of resources to implement the plan
Illustrative Applications in Recipient Programs and Activities
Unemployment Insurance Program Example
1. Unemployment insurance programs are recipients covered under
this proposed rule, and States must take reasonable steps to provide
meaningful access to LEP individuals served or encountered in its
unemployment insurance programs and activities. For example, given
the nature and importance of unemployment insurance, if
[[Page 4553]]
an LEP individual who speaks Urdu seeks information about
unemployment insurance from a state's telephone call center that
assists unemployment insurance enrollees and applicants, the State
may consider the proportion of Urdu-speaking LEP individuals served
or encountered by the State's unemployment insurance program; the
frequency with which Urdu-speaking LEP individuals come in contact
with the State's unemployment insurance program; and the resources
available to the State and costs in determining how it will provide
this LEP individual with language assistance. Urdu is a language
that is rarely, if ever, encountered by this State's UI program.
Because low-cost commercial language services, such as telephonic
oral interpretation services, are widely available, the State
should, at a minimum, provide the Urdu-speaking LEP individual
telephonic interpretation services to ensure meaningful access to
unemployment insurance because, even if Urdu is a non-frequently
encountered, non-English language, low-cost commercial language
services, such as telephonic oral interpretation services, are
widely available.
Population Significance as it Pertains to Vital Information
2. Recipients have some flexibility on the means to provide
language assistance services to LEP individuals, as long as they
take reasonable steps to provide meaningful access to their program
or activity. For instance, if a recipient provides career services
to an LEP individual who speaks Tagalog and the individual requests
a translated brochure on an upcoming job fair, the recipient should
consider the importance of the information in the brochure, and may
consider: The proportion of Tagalog-speaking LEP individuals served
or encountered; the frequency with which Tagalog-speaking LEP
individuals come in contact with the recipient; and the resources
available to the recipient. In this instance, the recipient would be
required to provide a written translation of the brochure for the
LEP individual if Tagalog were a language spoken by a significant
number or proportion of the LEP persons in the eligible service
population and a language frequently encountered in the career
services program. But if Tagalog is not spoken by a significant
number or proportion of the population eligible to be served, and
was not frequently encountered by the career services program, it
would be reasonable for the recipient to provide an oral summary of
the brochure's contents in Tagalog.
Training Provider Example Incorporating English Language Learning
3. Providing English language learning opportunities may be one
step that a recipient takes in order to take reasonable steps to
provide an LEP individual meaningful access to its programs or
activities. For example, John, a Korean-speaking LEP individual,
learns through the One Stop Center about available welding positions
at ABC Welding, Co. He also learns through the One Stop Center about
upcoming welder training courses offered at XYZ Technical Institute,
an eligible training provider. John decides to enroll in one of the
XYZ welding courses. XYZ, which conducts its training courses in
English, must take reasonable steps to provide John meaningful
access to the welder training course.
Recipients may work together to provide meaningful access, but
remain independently obligated to take reasonable steps to provide
meaningful access to programs and activities. In this regard, XYZ is
not required to administer an English language learning class
itself. Instead, XYZ may coordinate with the One Stop Center to
ensure that John receives appropriate English language learning
either directly from the One Stop or from another organization that
provides such English language training. The English language class
would not be offered to John instead of the training program, but
John could attend the English language class at the same time as or
prior to the training program. Whether John takes the English class
before or concurrently with the welding course will depend on many
factors including an objective, individualized analysis of John's
English proficiency relative to the welding course. Regardless of
how the English language learning is delivered, it must be provided
at no cost to John.
In evaluating whether reasonable steps include oral
interpretation, written translation, English language learning,
another language service, or some combination of these services, XYZ
may work with the One-Stop Center to provide meaningful access to
John.
Sec. 38.10 Harassment prohibited.
Harassment of an individual based on race, color, religion, sex,
national origin, age, disability, political affiliation or belief, and
for beneficiaries, applicants and participants only, citizenship status
or participation in any WIOA Title I-financially assisted program or
activity is a violation of the nondiscrimination provisions of WIOA and
this part.
(a) Unwelcome sexual advances, requests for sexual favors, or
offensive remarks about a person's race, color, religion, sex, national
origin, age, disability, political affiliation or belief, or
citizenship or participation, and other unwelcome verbal or physical
conduct based on one or more of these protected categories constitutes
unlawful harassment on that basi(e)s when:
(1) Submission to such conduct is made either explicitly or
implicitly a term or condition of accessing the aid, benefit, service,
or training of, or employment in the administration of or in connection
with, any WIOA Title I-financially assisted program or activity;
(2) Submission to or rejection of such conduct by an individual is
used as the basis for limiting that individual's access to any aid,
benefit, service, training or employment from, or employment in the
administration of or in connection with, any WIOA Title I-financially
assisted program or activity; or
(3) Such conduct has the purpose or effect of unreasonably
interfering with an individual's participation in a WIOA Title I-
financially assisted program or activity creating an intimidating,
hostile or offensive program environment.
(b) Harassment because of sex includes harassment based on gender
identity and failure to comport with sex stereotypes; harassment based
on pregnancy, childbirth, or related medical conditions; and sex-based
harassment that is not sexual in nature but that is because of sex or
where one sex is targeted for the harassment.
Sec. 38.11 Discrimination prohibited based on citizenship status.
In providing any aid, benefit, service, or training under a WIOA
Title I-financially assisted program or activity, a recipient must not
directly or through contractual, licensing, or other arrangements,
discriminate on the basis of citizenship status. Individuals protected
under this section include citizens and nationals of the United States,
lawfully admitted permanent resident aliens, refugees, asylees, and
parolees, and other immigrants authorized by the Secretary of Homeland
Security or the Secretary's designee to work in the United States.
Citizenship discrimination occurs when a recipient maintains and
enforces policies and procedures that have the purpose or effect of
discriminating against individual beneficiaries, applicants, and
participants, on the basis of their status as citizens or nationals of
the United States lawfully admitted permanent resident aliens,
refugees, asylees, and parolees, or other immigrants authorized by the
Secretary of Homeland Security or the Secretary's designee to work in
the United States.
Sec. 38.12 Discrimination prohibited based on disability.
(a) In providing any aid, benefit, service, or training under a
WIOA Title I-financially assisted program or activity, a recipient must
not, directly or through contractual, licensing, or other arrangements,
on the basis of disability:
(1) Deny a qualified individual with a disability the opportunity
to participate in or benefit from the aid, benefit, service, or
training;
(2) Afford a qualified individual with a disability an opportunity
to participate in or benefit from the aid, benefits, services, or
training that is not equal to that afforded others;
(3) Provide a qualified individual with a disability with any aid,
benefit, service or training that is not as effective
[[Page 4554]]
in affording equal opportunity to obtain the same result, to gain the
same benefit, or to reach the same level of achievement as that
provided to others;
(4) Provide different, segregated, or separate aid, benefit,
service, or training to individuals with disabilities, or to any class
of individuals with disabilities, unless such action is necessary to
provide qualified individuals with disabilities with any aid, benefit,
service or training that are as effective as those provided to others;
(5) Deny a qualified individual with a disability the opportunity
to participate as a member of planning or advisory boards; or
(6) Otherwise limit a qualified individual with a disability in
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving any aid, benefit, service or training.
(b) A recipient must not, directly or through contractual,
licensing, or other arrangements, aid or perpetuate discrimination
against qualified individuals with disabilities by providing
significant assistance to an agency, organization, or person that
discriminates on the basis of disability in providing any aid, benefit,
service or training to registrants, applicants, or participants.
(c) A recipient must not deny a qualified individual with a
disability the opportunity to participate in WIOA Title I-financially
assisted programs or activities despite the existence of permissibly
separate or different programs or activities.
(d) A recipient must administer WIOA Title I-financially assisted
programs and activities in the most integrated setting appropriate to
the needs of qualified individuals with disabilities.
(e) A recipient must not, directly or through contractual,
licensing, or other arrangements, use standards, procedures, criteria,
or administrative methods:
(1) That have the purpose or effect of subjecting qualified
individuals with disabilities to discrimination on the basis of
disability;
(2) That have the purpose or effect of defeating or substantially
impairing accomplishment of the objectives of the WIOA Title I-
financially assisted program or activity with respect to individuals
with disabilities; or
(3) That perpetuate the discrimination of another entity if both
entities are subject to common administrative control or are agencies
of the same state.
(f) In determining the site or location of facilities, a grant
applicant or recipient must not make selections that have any of the
following purposes or effects:
(1) On the basis of disability:
(i) Excluding qualified individuals from a WIOA Title I-financially
assisted program or activity;
(ii) Denying qualified individuals the benefits of such a program
or activity; or
(iii) Subjecting qualified individuals to discrimination; or
(2) Defeating or substantially impairing the accomplishment of the
disability-related objectives of either:
(i) The WIOA Title I-financially assisted program or activity; or
(ii) The nondiscrimination and equal opportunity provisions of WIOA
or this part.
(g) A recipient, in the selection of contractors, must not use
criteria that subject qualified individuals with disabilities to
discrimination on the basis of disability.
(h) A recipient must not administer a licensing or certification
program in a manner that subjects qualified individuals with
disabilities to discrimination on the basis of disability, nor may a
recipient establish requirements for the programs or activities of
licensees or certified entities that subject qualified individuals with
disabilities to discrimination on the basis of disability. The programs
or activities of entities that are licensed or certified by a recipient
are not, themselves, covered by this part.
(i) A recipient must not impose or apply eligibility criteria that
screen out or tend to screen out individuals with disabilities or any
class of individuals with disabilities from fully and equally enjoying
any aid, benefit, service, training, program, or activity, unless such
criteria can be shown to be necessary for the provision of aid,
benefit, service, training, program, or activity being offered.
(j) Nothing in this part prohibits a recipient from providing aid,
benefit, service, training, or advantages to individuals with
disabilities, or to a particular class of individuals with
disabilities, beyond those required by this part.
(k) A recipient must not place a surcharge on a particular
individual with a disability, or any group of individuals with
disabilities, to cover the costs of measures, such as the provision of
auxiliary aids or program accessibility, that are required to provide
that individual or group with the nondiscriminatory treatment required
by WIOA Title I or this part.
(l) A recipient must not exclude, or otherwise deny equal aid,
benefits, services, training, programs, or activities to, an individual
or entity because of the known disability of an individual with whom
the individual or entity is known to have a relationship or
association.
(m) The exclusion of an individual without a disability from the
benefits of a program limited by federal law to individuals with
disabilities, or the exclusion of a specific class of individuals with
disabilities from a program limited by Federal statute or Executive
Order to a different class of individuals with disabilities, is not
prohibited by this part.
(n) This part does not require a recipient to provide any of the
following to individuals with disabilities:
(1) Personal devices, such as wheelchairs;
(2) Individually prescribed devices, such as prescription
eyeglasses or hearing aids;
(3) Readers for personal use or study; or
(4) Services of a personal nature, including assistance in eating,
toileting, or dressing.
(o)(1) Nothing in this part requires an individual with a
disability to accept an accommodation, aid, benefit, service, training,
or opportunity provided under WIOA Title I or this part that such
individual chooses not to accept.
(2) Nothing in this part authorizes the representative or guardian
of an individual with a disability to decline food, water, medical
treatment, or medical services for that individual.
(p) Claims of no disability. Nothing in this part provides the
basis for a claim that an individual without a disability was subject
to discrimination because of a lack of disability, including a claim
that an individual with a disability was granted auxiliary aids or
services, reasonable modifications, or reasonable accommodations that
were denied to an individual without a disability.
Sec. 38.13 Accessibility requirements.
(a) Physical accessibility. No qualified individual with a
disability may be excluded from participation in, or be denied the
benefits of a recipient's service, program, or activity or be subjected
to discrimination by any recipient because a recipient's facilities are
inaccessible or unusable by individuals with disabilities. Recipients
that are subject to Title II of the ADA must also ensure that new
facilities or alterations of facilities that began construction after
January 26, 1992, comply with the applicable federal accessible design
standards, such as the ADA Standards for Accessible Design (1991 or
2010) or the Uniform Federal Accessibility Standards. In addition,
recipients that receive federal financial
[[Page 4555]]
assistance must meet their accessibility obligations under Section 504
of the Rehabilitation Act and the implementing regulations at 29 CFR
part 32. Some recipients may be subject to additional accessibility
requirements under other statutory authority, including Title III of
the ADA, that is not enforced by CRC. As indicated in Sec.
38.3(d)(10), compliance with this part does not affect a recipient's
obligation to comply with Title III ADA Standards.
(b) Programmatic accessibility. All WIOA Title I-financially
assisted programs and activities must be programmatically accessible,
which includes providing reasonable accommodations for individuals with
disabilities, making reasonable modifications to policies, practices,
and procedures, administering programs in the most integrated setting
appropriate, communicating with persons with disabilities as
effectively as with others, and providing appropriate auxiliary aids or
services, including assistive technology devices and services, where
necessary to afford individuals with disabilities an equal opportunity
to participate in, and enjoy the benefits of, the program or activity.
Sec. 38.14 Reasonable accommodations and reasonable modifications for
individuals with disabilities.
(a) With regard to aid, benefit, service, training, and employment,
a recipient must provide reasonable accommodations to qualified
individuals with disabilities who are applicants, registrants, eligible
applicants/registrants, participants, employees, or applicants for
employment, unless providing the accommodation would cause undue
hardship. See the definitions of ``reasonable accommodation'' and
``undue hardship'' in Sec. 38.4(rrr)(1).
(1) In those circumstances where a recipient believes that the
proposed accommodation would cause undue hardship, the recipient has
the burden of proving that the accommodation would result in such
hardship.
(2) The recipient must make the decision that the accommodation
would cause such hardship only after considering all factors listed in
the definition of ``undue hardship'' in Sec. 38.4(rrr)(1). The
decision must be accompanied by a written statement of the recipient's
reasons for reaching that conclusion. The recipient must provide a copy
of the statement of reasons to the individual or individuals who
requested the accommodation.
(3) If a requested accommodation would result in undue hardship,
the recipient must take any other action that would not result in such
hardship, but would nevertheless ensure that, to the maximum extent
possible, individuals with disabilities receive the aid, benefit,
service, training, or employment provided by the recipient.
(b) With regard to aid, benefit, service, training, and employment,
a recipient must also make reasonable modifications in policies,
practices, or procedures when the modifications are necessary to avoid
discrimination on the basis of disability, unless making the
modifications would fundamentally alter the nature of the service,
program, or activity. See the definition of ``fundamental alteration''
in Sec. 38.4(z).
(1) In those circumstances where a recipient believes that the
proposed modification would fundamentally alter the program, activity,
or service, the recipient has the burden of proving that the
modification would result in such an alteration.
(2) The recipient must make the decision that the modification
would result in such an alteration only after considering all factors
listed in the definition of ``fundamental alteration'' in Sec.
38.4(z). The decision must be accompanied by a written statement of the
recipient's reasons for reaching that conclusion. The recipient must
provide a copy of the statement of reasons to the individual or
individuals who requested the modification.
(3) If a modification would result in a fundamental alteration, the
recipient must take any other action that would not result in such an
alteration, but would nevertheless ensure that, to the maximum extent
possible, individuals with disabilities receive the aid, benefits,
services, training, or employment provided by the recipient.
Sec. 38.15 Communications with individuals with disabilities.
(a) General. (1)(i) A recipient must take appropriate steps to
ensure that communications with individuals with disabilities, such as
beneficiaries, registrants, applicants, eligible applicants/
registrants, participants, applicants for employment, employees,
members of the public, and their companions are as effective as
communications with others.
(ii) For purposes of this section, ``companion'' means a family
member, friend, or associate of an individual seeking access to an aid,
benefit, service, training, program, or activity of a recipient, who,
along with such individual, is an appropriate person with whom the
recipient should communicate.
(2)(i) A recipient must furnish appropriate auxiliary aids and
services where necessary to afford individuals with disabilities,
including beneficiaries, registrants, applicants, eligible applicants/
registrants, participants, members of the public, and companions, an
equal opportunity to participate in, and enjoy the benefits of, a WIOA
Title I-financially assisted service, program, or activity of a
recipient.
(ii) The type of auxiliary aid or service necessary to ensure
effective communication will vary in accordance with the method of
communication used by the individual; the nature, length, and
complexity of the communication involved; and the context in which the
communication is taking place. In determining what types of auxiliary
aids and services are necessary, a recipient must give primary
consideration to the requests of individuals with disabilities. In
order to be effective, auxiliary aids and services must be provided in
accessible formats, in a timely manner, and in such a way as to protect
the privacy and independence of the individual with a disability.
(3)(i) A recipient must not require an individual with a disability
to bring another individual to interpret for him or her.
(ii) A recipient must not rely on an adult accompanying an
individual with a disability to interpret or facilitate communication
except--
(A) In an emergency involving an imminent threat to the safety or
welfare of an individual or the public where there is no interpreter
available; or
(B) Where the individual with a disability specifically requests
that an accompanying adult interpret or facilitate communication, the
accompanying adult agrees to provide such assistance, and reliance on
that adult for such assistance is appropriate under the circumstances.
(iii) A recipient must not rely on a minor child to interpret or
facilitate communication, except in an emergency involving an imminent
threat to the safety or welfare of an individual or the public where
there is no interpreter available.
(4) Video remote interpreting (VRI) services. A recipient that
chooses to provide qualified interpreters via VRI services must ensure
that it provides--
(i) Real-time, full-motion video and audio over a dedicated high-
speed, wide-bandwidth video connection or wireless connection that
delivers high-quality video images that do not produce lags, choppy,
blurry, or grainy images, or irregular pauses in communication;
[[Page 4556]]
(ii) A sharply delineated image that is large enough to display the
interpreter's face, arms, hands, and fingers, and the participating
individual's face, arms, hands, and fingers, regardless of his or her
body position;
(iii) A clear, audible transmission of voices; and
(iv) Adequate training to users of the technology and other
involved individuals so that they may quickly and efficiently set up
and operate the VRI.
(5) When developing, procuring, maintaining, or using electronic
and information technology, a recipient must utilize electronic and
information technologies, applications, or adaptations which:
(i) Incorporate accessibility features for individuals with
disabilities,
(ii) Comply with applicable accessibility guidelines and standards,
including any web accessibility standards under Title II of the
Americans with Disabilities Act (ADA), and
(iii) Provide individuals with disabilities access to, and use of,
information, resources, programs, and activities that are fully
accessible, or ensure that the opportunities and benefits provided by
the electronic and information technologies are provided to individuals
with disabilities in an equally effective and equally integrated
manner.
(b) Telecommunications. (1) Where a recipient communicates by
telephone with beneficiaries, registrants, applicants, eligible
applicants/registrants, participants, applicants for employment,
employees, and/or members of the public, text telephones (TTYs) or
equally effective telecommunications systems must be used to
communicate with individuals who are deaf or hard of hearing or have
speech impairments.
(2) When a recipient uses an automated-attendant system, including,
but not limited to, voicemail and messaging, or an interactive voice
response system, for receiving and directing incoming telephone calls,
that system must provide effective real-time communication with
individuals using auxiliary aids and services, including TTYs and all
forms of FCC-approved telecommunications relay systems, including
Internet-based relay systems.
(3) A recipient must respond to telephone calls from a
telecommunications relay service established under title IV of the
Americans with Disabilities Act in the same manner that it responds to
other telephone calls.
(c) Information and signage. (1) A recipient must ensure that
interested individuals, including individuals with visual or hearing
impairments, can obtain information as to the existence and location of
accessible services, activities, and facilities.
(2)(i) A recipient must provide signage at the public entrances to
each of its inaccessible facilities, directing users to a location at
which they can obtain information about accessible facilities. The
signage provided must meet the most current Standards for Accessible
Design under the Americans with Disabilities Act, as prescribed by the
U.S. Department of Justice. Alternative standards for the signage may
be adopted when it is clearly evident that such alternative standards
provide equivalent or greater access to the information.
(ii) The international symbol for accessibility must be used at
each primary entrance of an accessible facility.
(d) Fundamental alteration. This section does not require a
recipient to take any action that it can demonstrate would result in a
fundamental alteration in the nature of a WIOA Title I-financially
assisted service, program, or activity.
(1) In those circumstances where a recipient believes that the
proposed action would fundamentally alter the WIOA Title I-financially
assisted program, activity, or service, the recipient has the burden of
proving that compliance with this section would result in such an
alteration.
(2) The decision that compliance would result in such an alteration
must be made by the recipient after considering all resources available
for use in the funding and operation of the WIOA Title I-financially
assisted program, activity, or service, and must be accompanied by a
written statement of the recipient's reasons for reaching that
conclusion.
(3) If an action required to comply with this section would result
in the fundamental alteration described in paragraph (d)(1) of this
section, the recipient must take any other action that would not result
in such an alteration or such burdens, but would nevertheless ensure
that, to the maximum extent possible, individuals with disabilities
receive the benefits or services provided by the recipient.
Sec. 38.16 Service animals.
(a) General. Generally, a recipient shall modify its policies,
practices, or procedures to permit the use of a service animal by an
individual with a disability.
(b) Exceptions. A recipient may ask an individual with a disability
to remove a service animal from the premises if--
(1) The animal is out of control and the animal's handler does not
take effective action to control it; or
(2) The animal is not housebroken.
(c) If an animal is properly excluded. If a recipient properly
excludes a service animal under paragraph (b) of this section, the
recipient must give the individual with a disability the opportunity to
participate in the WIOA Title I-financially assisted service, program,
or activity without having the service animal on the premises.
(d) Animal under handler's control. A service animal must be under
the control of its handler. A service animal must have a harness,
leash, or other tether, unless either the handler is unable because of
a disability to use a harness, leash, or other tether, or the use of a
harness, leash, or other tether would interfere with the service
animal's safe, effective performance of work or tasks, in which case
the service animal must be otherwise under the handler's control (e.g.,
voice control, signals, or other effective means).
(e) Care or supervision. A recipient is not responsible for the
care or supervision of a service animal.
(f) Inquiries. A recipient must not ask about the nature or extent
of a person's disability, but may make two inquiries to determine
whether an animal qualifies as a service animal. A recipient may ask if
the animal is required because of a disability and what work or task
the animal has been trained to perform. A recipient must not require
documentation, such as proof that the animal has been certified,
trained, or licensed as a service animal. Generally, a recipient may
not make these inquiries about a service animal when it is readily
apparent that an animal is trained to do work or perform tasks for an
individual with a disability (e.g., the dog is observed guiding an
individual who is blind or has low vision, pulling a person's
wheelchair, or providing assistance with stability or balance to an
individual with an observable mobility disability).
(g) Access to areas of a recipient's facilities. (1) In general.
Individuals with disabilities must be permitted to be accompanied by
their service animals in all areas of a recipient's facilities where
members of the public, participants in services, programs or
activities, beneficiaries, registrants, applicants, eligible
applicants/registrants, applicants for employment and employees, or
invitees, as relevant, are allowed to go.
[[Page 4557]]
(2) Use of service animals in food preparation areas. An employee,
applicant or beneficiary with a disability who needs to use a service
animal in a food preparation area must be allowed to do so unless the
employer recipient, after an individualized assessment, can
demonstrate, that the presence of the service animal presents a direct
threat to health or safety that cannot be eliminated or reduced by a
reasonable accommodation to the employee, applicant or beneficiary.
(h) Surcharges. A recipient must not ask or require an individual
with a disability to pay a surcharge because of his or her service
animal, even if people accompanied by pets are required to pay fees, or
to comply with other requirements generally not applicable to people
without pets. If a recipient normally charges individuals for the
damage they cause, an individual with a disability may be charged for
damage caused by his or her service animal.
Sec. 38.17 Mobility aids and devices.
(a) Use of wheelchairs and manually-powered mobility aids. A
recipient must permit individuals with mobility disabilities to use
wheelchairs and manually-powered mobility aids, such as walkers,
crutches, canes, braces, or other similar devices designed for use by
individuals with mobility disabilities, in any areas open to pedestrian
use.
(b)(1) Use of other power-driven mobility devices. A recipient must
make reasonable modifications in its policies, practices, or procedures
to permit the use of other power-driven mobility devices by individuals
with mobility disabilities, unless the recipient can demonstrate that
the class of other power-driven mobility devices cannot be operated in
accordance with legitimate safety requirements that the recipient has
adopted.
(2) Assessment factors. In determining whether a particular other
power-driven mobility device can be allowed in a specific facility as a
reasonable modification under paragraph (b)(1) of this section, a
recipient must consider--
(i) The type, size, weight, dimensions, and speed of the device;
(ii) The facility's volume of pedestrian traffic (which may vary at
different times of the day, week, month, or year);
(iii) The facility's design and operational characteristics (e.g.,
whether its WIOA Title I-financially assisted service, program, or
activity is conducted indoors, its square footage, the density and
placement of stationary devices, and the availability of storage for
the device, if requested by the user);
(iv) Whether legitimate safety requirements can be established to
permit the safe operation of the other power-driven mobility device in
the specific facility; and
(v) Whether the use of the other power-driven mobility device
creates a substantial risk of serious harm to the immediate environment
or natural or cultural resources, or poses a conflict with Federal land
management laws.
Sec. 38.18 Employment practices covered.
(a) It is an unlawful employment practice to discriminate on the
basis of race, color, religion, sex (including pregnancy, childbirth,
and related medical conditions, transgender status and gender
identity), national origin, age, disability, or political affiliation
or belief in the administration of, or in connection with:
(1) Any WIOA Title I-financially assisted program or activity; and
(2) Any program or activity that is part of the One-Stop delivery
system and is operated by a One-Stop partner listed in Section 121(b)
of WIOA, to the extent that the program or activity is being conducted
as part of the One-Stop delivery system.
(b) Employee selection procedures. In implementing this section, a
recipient must comply with the Uniform Guidelines on Employee Selection
Procedures, 41 CFR part 60-3, where applicable.
(c) Standards for employment-related investigations and reviews. In
any investigation or compliance review, the Director must consider
Equal Employment Opportunity Commission (EEOC) regulations, guidance
and appropriate case law in determining whether a recipient has engaged
in an unlawful employment practice.
(d) As provided in Sec. 38.3(b), 29 CFR part 32, subparts B and C
and Appendix A, which implement the requirements of Section 504
pertaining to employment practices and employment-related training,
program accessibility, and reasonable accommodation, have been
incorporated into this part by reference. Therefore, recipients must
comply with the requirements set forth in those regulatory sections as
well as the requirements listed in this part.
(e)(1) Recipients that are also employers, employment agencies, or
other entities subject to or covered by Titles I and II of the ADA
should be aware of obligations imposed by those titles. See 29 CFR part
1630 and 28 CFR part 35.
(2) Recipients that are also employers, employment agencies, or
other entities subject to or covered by Section 503 of the
Rehabilitation Act of 1973 (29 U.S.C. 793) must meet their obligations
imposed by that provision.
(f) Similarly, recipients that are also employers covered by the
anti-discrimination provision of the Immigration and Nationality Act
should be aware of the obligations imposed by that provision. See 8
U.S.C. 1324b, as amended.
(g) This section does not preempt consistent State and local
requirements.
Sec. 38.19 Intimidation and retaliation prohibited.
(a) A recipient must not discharge, intimidate, retaliate,
threaten, coerce or discriminate against any individual because the
individual has:
(1) Filed a complaint alleging a violation of Section 188 of WIOA
or this part;
(2) Opposed a practice prohibited by the nondiscrimination and
equal opportunity provisions of WIOA or this part;
(3) Furnished information to, or assisted or participated in any
manner in, an investigation, review, hearing, or any other activity
related to any of the following:
(i) Administration of the nondiscrimination and equal opportunity
provisions of WIOA or this part;
(ii) Exercise of authority under those provisions; or
(iii) Exercise of privilege secured by those provisions; or
(4) Otherwise exercised any rights and privileges under the
nondiscrimination and equal opportunity provisions of WIOA or this
part.
(b) The sanctions and penalties contained in Section 188(b) of WIOA
or this part may be imposed against any recipient that engages in any
such retaliation or intimidation, or fails to take appropriate steps to
prevent such activity.
Sec. 38.20 Administration of this part.
The Civil Rights Center (CRC), in the Office of the Assistant
Secretary for Administration and Management, U.S. Department of Labor,
is responsible for administering and enforcing the nondiscrimination
and equal opportunity provisions of WIOA and this part, and for
developing and issuing policies, standards, guidance, and procedures
for effecting compliance.
Sec. 38.21 Interpretations of this part.
The Director will make any rulings under, or interpretations of,
the nondiscrimination and equal opportunity provisions of WIOA or this
part.
[[Page 4558]]
Sec. 38.22 Delegation of administration and interpretation of this
part.
(a) The Secretary may from time to time assign to officials of
other departments or agencies of the Federal Government (with the
consent of such department or agency) responsibilities in connection
with the effectuation of the nondiscrimination and equal opportunity
provisions of WIOA and this part (other than responsibility for final
decisions under Sec. 38.112), including the achievement of effective
coordination and maximum uniformity within the Department and within
the executive branch of the Government in the application of the
nondiscrimination and equal opportunity provisions of WIOA or this part
to similar programs and similar situations.
(b) Any action taken, determination made, or requirement imposed by
an official of another department or agency acting under an assignment
of responsibility under this section has the same effect as if the
action had been taken by the Director.
Sec. 38.23 Coordination with other agencies.
(a) Whenever a compliance review or complaint investigation under
this part reveals possible violation of one or more of the laws listed
in paragraph (b) of this section, or of any other Federal civil rights
law, that is not also a violation of the nondiscrimination and equal
opportunity provisions of WIOA or this part, the Director must attempt
to notify the appropriate agency and provide it with all relevant
documents and information.
(b) This section applies to the following:
(1) Executive Order 11246, as amended;
(2) Section 503 of the Rehabilitation Act of 1973, as amended (29
U.S.C. 793);
(3) The affirmative action provisions of the Vietnam Era Veterans'
Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212);
(4) The Equal Pay Act of 1963, as amended (29 U.S.C. 206d);
(5) Title VII of the Civil Rights Act of 1964, as amended (42
U.S.C. 2000e et seq.);
(6) The Age Discrimination in Employment Act of 1967, as amended
(29 U.S.C. 621);
(7) The Americans with Disabilities Act of 1990, as amended (42
U.S.C. 12101 et seq.);
(8) The anti-discrimination provision of the Immigration and
Nationality Act, as amended (8 U.S.C. 1324b); and
(9) Any other Federal civil rights law.
Sec. 38.24 Effect on other laws and policies.
(a) Effect of State or local law or other requirements. The
obligation to comply with the nondiscrimination and equal opportunity
provisions of WIOA or this part are not excused or reduced by any State
or local law or other requirement that, on a prohibited basis,
prohibits or limits an individual's eligibility to receive aid,
benefit, service, or training; to participate in any WIOA Title I-
financially assisted program or activity; to be employed by any
recipient; or to practice any occupation or profession.
(b) Effect of private organization rules. The obligation to comply
with the nondiscrimination and equal opportunity provisions of WIOA
Title I-financially assisted program or activity and this part is not
excused or reduced by any rule or regulation of any private
organization, club, league or association that, on a prohibited basis,
prohibits or limits an individual's eligibility to participate in any
WIOA financially assisted program or activity to which this part
applies.
(c) Effect of possible future exclusion from employment
opportunities. A recipient must not exclude any individual from, or
restrict any individual's participation in, any program or activity
based on the recipient's belief or concern that the individual will
encounter limited future employment opportunities because of the
individual's race, color, religion, sex, national origin, age,
disability, political affiliation or belief, citizenship status, or
participation in a WIOA Title I-financially assisted program or
activity.
Subpart B--Recordkeeping and Other Affirmative Obligations of
Recipients
Assurances
Sec. 38.25 A grant applicant's obligation to provide a written
assurance.
(a)(1) Each application for financial assistance, under Title I of
WIOA, as defined in Sec. 38.4, must include the following assurance:
As a condition to the award of financial assistance from the
Department of Labor under Title I of WIOA, the grant applicant assures
that it has the ability to comply with the nondiscrimination and equal
opportunity provisions of the following laws and will remain in
compliance for the duration of the award of federal financial
assistance:
Section 188 of the Workforce Innovation and Opportunity Act (WIOA),
which prohibits discrimination against all individuals in the United
States on the basis of race, color, religion, sex (including pregnancy,
childbirth, and related medical conditions, transgender status and
gender identity), national origin, age, disability, political
affiliation or belief, and against beneficiaries on the basis of either
citizenship status or participation in any WIOA Title I-financially
assisted program or activity;
Title VI of the Civil Rights Act of 1964, as amended, which
prohibits discrimination on the bases of race, color and national
origin;
Section 504 of the Rehabilitation Act of 1973, as amended, which
prohibits discrimination against qualified individuals with
disabilities;
The Age Discrimination Act of 1975, as amended, which prohibits
discrimination on the basis of age; and
Title IX of the Education Amendments of 1972, as amended, which
prohibits discrimination on the basis of sex in educational programs.
The grant applicant also assures that, as a recipient of WIOA Title
I financial assistance, it will comply with 29 CFR part 38 and all
other regulations implementing the laws listed above. This assurance
applies to the grant applicant's operation of the WIOA Title I-
financially assisted program or activity, and to all agreements the
grant applicant makes to carry out the WIOA Title I-financially
assisted program or activity. The grant applicant understands that the
United States has the right to seek judicial enforcement of this
assurance.
(2) The assurance is considered incorporated by operation of law in
the grant, cooperative agreement, contract or other arrangement whereby
Federal financial assistance under Title I of WIOA is made available,
whether it is explicitly incorporated in such document and whether
there is a written agreement between the Department and the recipient,
between the Department and the Governor, between the Governor and the
recipient, or between recipients. The assurance also may be
incorporated by reference in such grants, cooperative agreements,
contracts, or other arrangements.
(b) Continuing State programs. Each Strategic Four-Year State Plan
submitted by a State to carry out a continuing WIOA financially
assisted program or activity must provide the text of the assurance in
paragraph (a)(1) of this section, as a condition to the approval of the
Four-Year Plan and the extension of any WIOA Title I assistance under
the Plan. The State also must certify that it has developed and
maintains a Nondiscrimination Plan under Sec. 38.54.
[[Page 4559]]
Sec. 38.26 Duration and scope of the assurance.
(a) Where the WIOA Title I financial assistance is intended to
provide, or is in the form of, either personal property, real property,
structures on real property, or interest in any such property or
structures, the assurance will obligate the recipient, or (in the case
of a subsequent transfer) the transferee, for the longer of:
(1) The period during which the property is used either:
(i) For a purpose for which WIOA Title I financial assistance is
extended; or
(ii) For another purpose involving the provision of similar
services or benefits; or
(2) The period during which either:
(i) The recipient retains ownership or possession of the property;
or
(ii) The transferee retains ownership or possession of the property
without compensating the Departmental grantmaking agency for the fair
market value of that ownership or possession.
(b) In all other cases, the assurance will obligate the recipient
for the period during which WIOA Title I financial assistance is
extended.
Sec. 38.27 Covenants.
(a) Where WIOA Title I financial assistance is provided in the form
of a transfer of real property, structures, or improvements on real
property or structures, or interests in real property or structures,
the instrument effecting or recording the transfer must contain a
covenant assuring nondiscrimination and equal opportunity for the
period described in Sec. 38.25(a)(1).
(b) Where no Federal transfer of real property or interest therein
from the Federal Government is involved, but real property or an
interest therein is acquired or improved under a program of WIOA Title
I financial assistance, the recipient must include the covenant
described in paragraph (a) of this section in the instrument effecting
or recording any subsequent transfer of such property.
(c) When the property is obtained from the Federal Government, the
covenant described in paragraph (a) of this section also may include a
condition coupled with a right of reverter to the Department in the
event of a breach of the covenant.
Equal Opportunity Officers
Sec. 38.28 Designation of Equal Opportunity Officer.
(a) Every Governor must designate an individual as a State Level
Equal Opportunity Officer (EO Officer), who reports directly to the
Governor and is responsible for statewide coordination of compliance
with the equal opportunity and nondiscrimination requirements in WIOA
and this part, including but not limited to Sec. Sec. 38.51, 38.53,
38.54 and 38.55. The State Level EO Officer must have staff and
resources sufficient to carry out these requirements.
(b) Every recipient except small recipients and service providers,
as defined in Sec. 38.4(fff) and Sec. 38.4(eee), must designate an EO
Officer and staff and resources sufficient to carry out the
requirements of this section and Sec. 38.31 of this part. The
responsibilities of small recipients and service providers are
described in Sec. Sec. 38.32 and 38.33.
Sec. 38.29 Recipient obligations regarding its Equal Opportunity
Officer.
The recipient has the following obligations related to its EO
Officer:
(a) Ensuring that the EO Officer is a senior level employee
reporting directly to the Chief Executive Officer, Chief Operating
Officer, or equivalent official;
(b) Designating an individual who can fulfill the responsibilities
of an EO Officer as described in Sec. 38.31;
(c) Making the EO Officer's name, position title, address, and
telephone number (voice and TDD/TTY) public;
(d) Ensuring that the EO Officer's identity and contact information
appears on all internal and external communications about the
recipient's nondiscrimination and equal opportunity programs;
(e) Assigning sufficient authority, staff, and resources to the EO
Officer, and support of top management, to ensure compliance with the
nondiscrimination and equal opportunity provisions of WIOA and this
part; and
(f) Ensuring that the EO Officer and the EO Officer's staff are
afforded the opportunity to receive (at the recipient's expense) the
training necessary and appropriate to maintain competency.
Sec. 38.30 Requisite skill and authority of Equal Opportunity
Officer.
The EO Officer must be a senior level employee of the recipient who
has the knowledge, skills and abilities necessary to fulfill the
responsibilities competently as described in this subpart. Depending
upon the size of the recipient, the size of the recipient's WIOA Title
I-financially assisted programs or activities, and the number of
applicants, registrants, and participants served by the recipient, the
EO Officer may, or may not, be assigned other duties. However, he or
she must not have other responsibilities or activities that create a
conflict or the appearance of a conflict with the responsibilities of
an EO Officer.
Sec. 38.31 Equal Opportunity Officer responsibilities.
An Equal Opportunity Officer is responsible for coordinating a
recipient's obligations under this part. Those responsibilities
include, but are not limited to:
(a) Serving as a recipient's liaison with CRC;
(b) Monitoring and investigating the recipient's activities, and
the activities of the entities that receive WIOA Title I-financial
assistance from the recipient, to make sure that the recipient and its
subrecipients are not violating their nondiscrimination and equal
opportunity obligations under WIOA Title I and this part, which
includes monitoring the collection of data required in this part to
ensure compliance with the nondiscrimination and equal opportunity
requirements of WIOA and this part;
(c) Reviewing the recipient's written policies to make sure that
those policies are nondiscriminatory;
(d) Developing and publishing the recipient's procedures for
processing discrimination complaints under Sec. Sec. 38.72 through
38.73, including tracking the discrimination complaints filed against
the recipient, developing procedures for investigating and resolving
discrimination complaints filed against the recipient, making sure that
those procedures are followed, and making available to the public, in
appropriate languages and formats, the procedures for filing a
complaint;
(e) Conducting outreach and education about equal opportunity and
nondiscrimination requirements consistent with Sec. 38.40 and how an
individual may file a complaint consistent with Sec. 38.69.
(f) Undergoing training (at the recipient's expense) to maintain
competency of the EO Officer and staff, as required by the Director;
and
(g) If applicable, overseeing the development and implementation of
the recipient's Nondiscrimination Plan under Sec. 38.54.
Sec. 38.32 Small recipient Equal Opportunity Officer obligations.
Although small recipients, as defined in Sec. 38.4(hhh), do not
need to designate EO Officers who have the full range of
responsibilities listed above, they must designate an individual who
will be responsible for adopting and publishing complaint procedures,
and processing complaints, as explained in Sec. Sec. 38.72 through
38.75.
[[Page 4560]]
Sec. 38.33 Service provider Equal Opportunity Officer obligations.
Service providers, as defined in Sec. 38.4(ggg), are not required
to designate an EO Officer. The obligation for ensuring service
provider compliance with the nondiscrimination and equal opportunity
provisions of WIOA and this part rests with the Governor or LWIA grant
recipient, as specified in the State's Nondiscrimination Plan.
Notice and Communication
Sec. 38.34 Recipients' obligations to disseminate equal opportunity
notice.
(a) A recipient must provide initial and continuing notice as
defined in Sec. 38.36 that it does not discriminate on any prohibited
basis. This notice must be provided to:
(1) Registrants, applicants, and eligible applicants/registrants;
(2) Participants;
(3) Applicants for employment and employees;
(4) Unions or professional organizations that hold collective
bargaining or professional agreements with the recipient;
(5) Subrecipients that receive WIOA Title I financial assistance
from the recipient; and
(6) Members of the public, including those with impaired vision or
hearing and those with limited English proficiency.
(b) As provided in Sec. 38.15, the recipient must take appropriate
steps to ensure that communications with individuals with disabilities
are as effective as communications with others and that this notice is
provided in appropriate languages to ensure meaningful access for LEP
individuals as described in Sec. 38.9.
Sec. 38.35 Equal opportunity notice/poster.
The notice must contain the following specific wording:
Equal Opportunity Is the Law
It is against the law for this recipient of Federal financial
assistance to discriminate on the following bases: Against any
individual in the United States, on the basis of race, color,
religion, sex (including pregnancy, childbirth and related medical
conditions, sex stereotyping, transgender status, and gender
identity), national origin (including limited English proficiency),
age, disability, political affiliation or belief; and against any
beneficiary of programs financially assisted under Title I of the
Workforce Innovation and Opportunity Act, on the basis of the
beneficiary's citizenship status or his or her participation in any
WIOA Title I-financially assisted program or activity.
The recipient must not discriminate in any of the following
areas:
Deciding who will be admitted, or have access, to any WIOA Title
I-financially assisted program or activity;
providing opportunities in, or treating any person with regard
to, such a program or activity; or
making employment decisions in the administration of, or in
connection with, such a program or activity.
What To Do If You Believe You Have Experienced Discrimination
If you think that you have been subjected to discrimination
under a WIOA Title I-financially assisted program or activity, you
may file a complaint within 180 days from the date of the alleged
violation with either:
The recipient's Equal Opportunity Officer (or the person whom
the recipient has designated for this purpose); or
the Director, Civil Rights Center (CRC), U.S. Department of
Labor, 200 Constitution Avenue NW., Room N-4123, Washington, DC
20210 or electronically as directed on the CRC Web site at
www.dol.gov/crc.
If you file your complaint with the recipient, you must wait
either until the recipient issues a written Notice of Final Action,
or until 90 days have passed (whichever is sooner), before filing
with the Civil Rights Center (see address above).
If the recipient does not give you a written Notice of Final
Action within 90 days of the day on which you filed your complaint,
you may file a complaint with CRC before receiving that Notice.
However, you must file your CRC complaint within 30 days of the 90-
day deadline (in other words, within 120 days after the day on which
you filed your complaint with the recipient).
If the recipient does give you a written Notice of Final Action
on your complaint, but you are dissatisfied with the decision or
resolution, you may file a complaint with CRC. You must file your
CRC complaint within 30 days of the date on which you received the
Notice of Final Action.
Sec. 38.36 Recipients' obligations to publish equal opportunity
notice.
(a) At a minimum, the Equal Opportunity Notice required by
Sec. Sec. 38.34 and 38.35 must be:
(1) Posted prominently, in reasonable numbers and places, in
available and conspicuous physical locations and on the recipient's Web
site pages;
(2) Disseminated in internal memoranda and other written or
electronic communications with staff;
(3) Included in employee and participant handbooks or manuals
regardless of form, including electronic and paper form if both are
available; and
(4) Provided to each participant and employee; the notice must be
made part of each employee's and participant's file. It must be a part
of both paper and electronic files, if both are maintained.
(b) The notice must be provided in appropriate formats to
registrants, applicants, eligible applicants/registrants, applicants
for employment and employees and participants with visual impairments.
Where notice has been given in an alternate format to registrants,
applicants, eligible applicants/registrants, participants, applicants
for employment and employees with a visual impairment, a record that
such notice has been given must be made a part of the employee's or
participant's file.
(c) The notice must be provided to participants in appropriate
languages other than English as required in Sec. 38.9.
(d) The notice required by Sec. Sec. 38.34 and 38.35 must be
initially published and provided within 90 days of the effective date
of this part, or of the date this part first applies to the recipient,
whichever comes later.
Sec. 38.37 Notice requirement for service providers.
The Governor or the LWIA grant recipient, as determined by the
Governor and as provided in that State's Nondiscrimination Plan, will
be responsible for meeting the notice requirement provided in
Sec. Sec. 38.34 and 38.35 with respect to a State's service providers.
Sec. 38.38 Publications, broadcasts, and other communications.
(a) Recipients must indicate that the WIOA Title I-financially
assisted program or activity in question is an ``equal opportunity
employer/program,'' and that ``auxiliary aids and services are
available upon request to individuals with disabilities,'' in
recruitment brochures and other materials that are ordinarily
distributed or communicated in written and/or oral form, electronically
and/or on paper, to staff, clients, or the public at large, to describe
programs financially assisted under Title I of WIOA or the requirements
for participation by recipients and participants. Where such materials
indicate that the recipient may be reached by voice telephone, the
materials must also prominently provide the telephone number of the
text telephone (TTY) or equally effective telecommunications system,
such as a relay service, used by the recipient, as required by Sec.
38.15(b).
(b) Recipients that publish or broadcast program information in the
news media must ensure that such publications and broadcasts state that
the WIOA Title I-financially assisted program or activity in question
is an equal opportunity employer/program (or otherwise indicate that
discrimination in the WIOA Title I-financially assisted program or
activity is prohibited by Federal law), and indicate that auxiliary
aids and services are available upon request to individuals with
disabilities.
[[Page 4561]]
(c) A recipient must not communicate any information that suggests,
by text or illustration, that the recipient treats beneficiaries,
registrants, applicants, participants, employees or applicants for
employment differently on any prohibited basis specified in Sec. 38.5,
except as such treatment is otherwise permitted under Federal law or
this part.
Sec. 38.39 Communication of notice in orientations.
During each presentation to orient new participants, new employees,
and/or the general public to its WIOA Title I-financially assisted
program or activity, in person or over the Internet or using other
technology, a recipient must include a discussion of rights and
responsibilities under the nondiscrimination and equal opportunity
provisions of WIOA and this part, including the right to file a
complaint of discrimination with the recipient or the Director. This
information must be communicated in appropriate languages as required
in Sec. 38.9 and in formats accessible for individuals with
disabilities as required in this part and specified in Sec. 38.15.
Sec. 38.40 Affirmative outreach.
Recipients must take appropriate steps to ensure that they are
providing equal access to their WIOA Title I-financially assisted
programs and activities. These steps should involve reasonable efforts
to include members of the various groups protected by these regulations
including but not limited to persons of different sexes, various racial
and ethnic/national origin groups, various religions, individuals with
limited English proficiency, individuals with disabilities, and
individuals in different age groups. Such efforts may include, but are
not limited to:
(a) Advertising the recipient's programs and/or activities in
media, such as newspapers or radio programs, that specifically target
various populations;
(b) Sending notices about openings in the recipient's programs and/
or activities to schools or community service groups that serve various
populations; and
(c) Consulting with appropriate community service groups about ways
in which the recipient may improve its outreach and service to various
populations.
Data and Information Collection Maintenance
Sec. 38.41 Collection and maintenance of equal opportunity data and
other information.
(a) The Director will not require submission of data that can be
obtained from existing reporting requirements or sources, including
those of other agencies, if the source is known and available to the
Director.
(b)(1) Each recipient must collect such data and maintain such
records, in accordance with procedures prescribed by the Director, as
the Director finds necessary to determine whether the recipient has
complied or is complying with the nondiscrimination and equal
opportunity provisions of WIOA or this part. The system and format in
which the records and data are kept must be designed to allow the
Governor and CRC to conduct statistical or other quantifiable data
analyses to verify the recipient's compliance with section 188 of WIOA
and this part.
(2) Such records must include, but are not limited to, records on
applicants, registrants, eligible applicants/registrants, participants,
terminees, employees, and applicants for employment. Each recipient
must record the race/ethnicity, sex, age, and where known, disability
status, of every applicant, registrant, participant, terminee,
applicant for employment, and employee. For applicants, registrants,
participants, and terminees, each recipient must also record the
limited English proficiency and preferred language of an individual.
Such information must be stored in a manner that ensures
confidentiality, and must be used only for the purposes of
recordkeeping and reporting; determining eligibility, where
appropriate, for WIOA Title I-financially assisted programs or
activities; determining the extent to which the recipient is operating
its WIOA Title I-financially assisted program or activity in a
nondiscriminatory manner; or other use authorized by law.
(3) Any medical or disability-related information obtained about a
particular individual, including information that could lead to the
disclosure of a disability, must be collected on separate forms. All
such information, whether in hard copy, electronic, or both, must be
maintained in one or more separate files, apart from any other
information about the individual, and treated as confidential. Whether
these files are electronic or hard copy, they must be locked or
otherwise secured (for example, through password protection).
(i) Knowledge of disability status or medical condition and access
to information in related files. Persons in the following categories
may be informed about an individual's disability or medical condition
and have access to the information in related files under the following
listed circumstances:
(A) Program staff who are responsible for documenting eligibility,
where disability is an eligibility criterion for a program or activity.
(B) First aid and safety personnel who need access to underlying
documentation related to a participant's medical condition in an
emergency.
(C) Government officials engaged in enforcing this part, any other
laws administered by the Department, or any other Federal laws. See
also Sec. 38.44.
(ii) Knowledge of disability status or medical condition only.
Supervisors, managers, and other necessary personnel may be informed
regarding restrictions on the activities of individuals with
disabilities and regarding reasonable accommodations for such
individuals.
(c) Each recipient must maintain, and submit to CRC upon request, a
log of complaints filed with the recipient that allege discrimination
on the basis(es) of race, color, religion, sex (including pregnancy,
childbirth or related medical conditions, transgender status and gender
identity), national origin, age, disability, political affiliation or
belief, citizenship, and/or participation in a WIOA Title I-financially
assisted program or activity. The log must include: The name and
address of the complainant; the basis of the complaint; a description
of the complaint; the date the complaint was filed; the disposition and
date of disposition of the complaint; and other pertinent information.
Information that could lead to identification of a particular
individual as having filed a complaint must be kept confidential.
(d) Where designation of individuals by race or ethnicity is
required, the guidelines of the Office of Management and Budget must be
used.
(e) A service provider's responsibility for collecting and
maintaining the information required under this section may be assumed
by the Governor or LWIA grant recipient, as provided in the State's
Nondiscrimination Plan.
Sec. 38.42 Information to be provided to CRC by grant applicants and
recipients.
In addition to the information which must be collected, maintained,
and, upon request, submitted to CRC under Sec. 38.41:
[[Page 4562]]
(a) Each grant applicant and recipient must promptly notify the
Director when any administrative enforcement actions or lawsuits are
filed against it alleging discrimination on the basis of race, color,
religion, sex (including pregnancy, childbirth or related medical
conditions, transgender status, and gender identity), national origin
(including limited English proficiency), age, disability, political
affiliation or belief, and for beneficiaries only, citizenship or
participation in a WIOA Title I-financially assisted program or
activity. This notification must include:
(1) The names of the parties to the action or lawsuit;
(2) The forum in which each case was filed; and
(3) The relevant case numbers.
(b) Each recipient (as part of a compliance review conducted under
Sec. 38.63, or monitoring activity carried out under Sec. 38.65) must
provide the following information:
(1) The name of any other Federal agency that conducted a civil
rights compliance review or complaint investigation, and that found the
grant applicant or recipient to be in noncompliance, during the two
years before the grant application was filed or CRC began its
examination; and
(2) Information about any administrative enforcement actions or
lawsuits that alleged discrimination on any protected basis, and that
were filed against the grant applicant or recipient during the two
years before the application or renewal application, compliance review,
or monitoring activity. This information must include:
(i) The names of the parties;
(ii) The forum in which each case was filed; and
(iii) The relevant case numbers.
(c) At the discretion of the Director, grant applicants and
recipients may be required to provide, in a timely manner, any
information and data that the Director considers necessary to
investigate complaints and conduct compliance reviews on bases
prohibited under the nondiscrimination and equal opportunity provisions
of WIOA and this part.
(d) At the discretion of the Director, recipients may be required
to provide, in a timely manner, the particularized information and/or
to submit the periodic reports that the Director considers necessary to
determine compliance with the nondiscrimination and equal opportunity
provisions of WIOA or this part.
(e) At the discretion of the Director, grant applicants may be
required to submit, in a timely manner, the particularized information
that the Director considers necessary to determine whether or not the
grant applicant, if financially assisted, would be able to comply with
the nondiscrimination and equal opportunity provisions of WIOA or this
part.
(f) Where designation of individuals by race or ethnicity is
required, the guidelines of the Office of Management and Budget must be
used.
Sec. 38.43 Required maintenance of records by recipients.
(a) Each recipient must maintain the following records, whether
they exist in electronic form (including email) or hard copy, for a
period of not less than three years from the close of the applicable
program year:
(1) The records of applicants, registrants, eligible applicants/
registrants, participants, terminees, employees, and applicants for
employment; and
(2) Such other records as are required under this part or by the
Director.
(b) Where a discrimination complaint has been filed or compliance
review initiated, every recipient that possesses or maintains any type
of hard-copy or electronic record related to the complaint (including
records that have any relevance to the underlying allegations in the
complaint, as well as records regarding actions taken on the complaint)
or to the subject of the compliance review must preserve all records,
regardless whether hard-copy or electronic, that may be relevant to a
complaint investigation or compliance review, and maintain those
records for a period of not less than three years from the date of
final action related to resolution of the complaint or compliance
review.
Sec. 38.44 CRC access to information and information sources.
(a) Each grant applicant and recipient must permit access by the
Director or the Director's designee during normal business hours to its
premises and to its employees and participants, to the extent that such
individuals are on the premises during the course of the investigation,
for the purpose of conducting complaint investigations, compliance
reviews, or monitoring activities associated with a State's development
and implementation of a Nondiscrimination Plan, and for inspecting and
copying such books, records, accounts and other materials as may be
pertinent to ascertain compliance with and ensure enforcement of the
nondiscrimination and equal opportunity provisions of WIOA or this
part.
(b) Asserted considerations of privacy or confidentiality are not a
basis for withholding information from CRC and will not bar CRC from
evaluating or seeking to enforce compliance with the nondiscrimination
and equal opportunity provisions of WIOA and this part.
(c) Whenever any information that the Director asks a grant
applicant or recipient to provide is in the exclusive possession of
another agency, institution, or person, and that agency, institution,
or person fails or refuses to furnish the information upon request, the
grant applicant or recipient must certify to CRC that it has made
efforts to obtain the information and that the agency, institution, or
person has failed or refused to provide it. This certification must
list the name and address of the agency, institution, or person that
has possession of the information and the specific efforts the grant
applicant or recipient made to obtain it.
Sec. 38.45 Confidentiality responsibilities of grant applicants,
recipients, and the Department.
Grant applicants, recipients and the Department must keep
confidential to the extent possible, consistent with a fair
determination of the issues, the identity of any individual who
furnishes information relating to, or assists in, an investigation or a
compliance review, including the identity of any individual who files a
complaint. An individual whose identity is disclosed must be protected
from retaliation (See Sec. 38.19).
Subpart C--Governor's Responsibilities To Implement the
Nondiscrimination and Equal Opportunity Requirements of WIOA
Sec. 38.50 Subpart application to State Programs.
This subpart applies to State Programs as defined in Sec. 38.4.
However, the provisions of Sec. 38.52(b) do not apply to State
Workforce Agencies (SWA), because the Governor's liability for any
noncompliance on the part of a SWA cannot be waived.
Sec. 38.51 Governor's oversight and monitoring responsibilities for
State Programs.
The Governor is responsible for oversight and monitoring of all
WIOA Title I-financially assisted State Programs. This responsibility
includes:
(a) Ensuring compliance with the nondiscrimination and equal
opportunity provisions of WIOA and this part, and negotiating, where
appropriate, with a recipient to secure voluntary compliance when
[[Page 4563]]
noncompliance is found under Sec. 38.91(b).
(b) Annually monitoring the compliance of recipients with WIOA
section 188 and this part, including a determination as to whether each
recipient is conducting its WIOA Title I-financially assisted program
or activity in a nondiscriminatory way. At a minimum, each annual
monitoring review required by this paragraph must include:
(1) A statistical or other quantifiable analysis of records and
data kept by the recipient under Sec. 38.41, including analyses by
race/ethnicity, sex, limited English proficiency, preferred language,
age, and disability status;
(2) An investigation of any significant differences identified in
paragraph (b)(i) of this section in participation in the programs,
activities, or employment provided by the recipient, to determine
whether these differences appear to be caused by discrimination. This
investigation must be conducted through review of the recipient's
records and any other appropriate means; and
(3) An assessment to determine whether the recipient has fulfilled
its administrative obligations under Section 188 of WIOA or this part
(for example, recordkeeping, notice and communication) and any duties
assigned to it under the Nondiscrimination Plan.
Sec. 38.52 Governor's liability for actions of recipients the
Governor has financially assisted under Title I of WIOA.
(a) The Governor and the recipient are jointly and severally liable
for all violations of the nondiscrimination and equal opportunity
provisions of WIOA and this part by the recipient, unless the Governor
has:
(1) Established and implemented a Nondiscrimination Plan, under
Sec. 38.54, designed to give a reasonable guarantee of the recipient's
compliance with such provisions;
(2) Entered into a written contract with the recipient that clearly
establishes the recipient's obligations regarding nondiscrimination and
equal opportunity;
(3) Acted with due diligence to monitor the recipient's compliance
with these provisions; and
(4) Taken prompt and appropriate corrective action to effect
compliance.
(b) If the Director determines that the Governor has demonstrated
substantial compliance with the requirements of paragraph (a) of this
section, the Director may recommend to the Secretary that the
imposition of sanctions against the Governor be waived and that
sanctions be imposed only against the noncomplying recipient.
Sec. 38.53 Governor's oversight responsibilities regarding
recipients' recordkeeping.
The Governor must ensure that recipients collect and maintain
records in a manner consistent with the provisions of Sec. 38.41 and
any procedures prescribed by the Director under Sec. 38.41(a). The
Governor must further ensure that recipients are able to provide data
and reports in the manner prescribed by the Director.
Sec. 38.54 Governor's obligations to develop and implement a
Nondiscrimination Plan.
(a)(1) Each Governor must establish and implement a
Nondiscrimination Plan for State programs as defined in Sec. 38.4(ll).
In those States in which one agency contains both SWA or unemployment
insurance and WIOA Title I-financially assisted programs, the Governor
must develop a combined Nondiscrimination Plan.
(2) Each Nondiscrimination Plan must be designed to give a
reasonable guarantee that all recipients will comply, and are
complying, with the nondiscrimination and equal opportunity provisions
of WIOA and this part.
(b) The Nondiscrimination Plan must be:
(1) In writing, addressing each requirement of Sec. 38.54(c) with
narrative and documentation;
(2) Reviewed and updated as required in Sec. 38.55; and
(3) Signed by the Governor.
(c) At a minimum, each Nondiscrimination Plan must:
(1) Describe how the State programs and recipients have satisfied
the requirements of the following regulations:
(i) Sec. Sec. 38.25 through 38.27 (Assurances);
(ii) Sec. Sec. 38.28 through 38.33 (Equal Opportunity Officers);
(iii) Sec. Sec. 38.34 through 38.39 (Notice and Communication);
(iv) Sec. Sec. 38.41 through 38.45 (Data and Information
Collection and Maintenance);
(v) Sec. 38.40 (Affirmative Outreach);
(vi) Sec. 38.53 (Governor's Oversight Responsibility Regarding
Recipients' Recordkeeping);
(vii) Sec. Sec. 38.72 through 38.75 (Complaint Processing
Procedures); and
(viii) Sec. 38.51, Sec. 38.53 (Governor's Oversight and
Monitoring Responsibilities for State Programs).
(2) Include the following additional elements:
(i) A system for determining whether a grant applicant, if
financially assisted, and/or a training provider, if selected as
eligible under Section 122 of WIOA, is likely to conduct its WIOA Title
I-financially assisted programs or activities in a nondiscriminatory
way, and to comply with the regulations in this part;
(ii) A review of recipient policy issuances to ensure they are
nondiscriminatory;
(iii) A system for reviewing recipients' job training plans,
contracts, assurances, and other similar agreements to ensure that they
are both nondiscriminatory and contain the required language regarding
nondiscrimination and equal opportunity;
(iv) Procedures for ensuring that recipients comply with the
nondiscrimination and equal opportunity requirements of Sec. Sec. 38.5
regarding race, color, religion, sex (including pregnancy, childbirth
and related medical conditions, transgender status, and gender
identity), national origin (including limited English proficiency),
age, political affiliation or belief, citizenship, or participation in
any WIOA Title I financially-assisted program or activity;
(v) Procedures for ensuring that recipients comply with the
requirements of applicable Federal disability nondiscrimination law,
including Section 504; Title II of the Americans with Disabilities Act
of 1990, as amended, if applicable; WIOA Section 188, and this part
with regard to individuals with disabilities;
(vi) A system of policy communication and training to ensure that
EO Officers and members of the recipients' staffs who have been
assigned responsibilities under the nondiscrimination and equal
opportunity provisions of WIOA or this part are aware of and can
effectively carry out these responsibilities;
(vii) Procedures for obtaining prompt corrective action or, as
necessary, applying sanctions when noncompliance is found; and
(viii) Supporting documentation to show that the commitments made
in the Nondiscrimination Plan have been and/or are being carried out.
This supporting documentation includes, but is not limited to:
(A) Policy and procedural issuances concerning required elements of
the Nondiscrimination Plan;
(B) Copies of monitoring instruments and instructions;
(C) Evidence of the extent to which nondiscrimination and equal
opportunity policies have been developed and communicated as required
by this part;
[[Page 4564]]
(D) Information reflecting the extent to which Equal Opportunity
training, including training called for by Sec. Sec. 38.29(f) and
38.31(f), is planned and/or has been carried out;
(E) Reports of monitoring reviews and reports of follow-up actions
taken under those reviews where violations have been found, including,
where appropriate, sanctions; and
(F) Copies of any notices made under Sec. Sec. 38.34 through
38.40.
Sec. 38.55 Schedule of the Governor's obligations regarding the
Nondiscrimination Plan.
(a) Within 180 days of either the date on which this final rule is
effective, or the date on which the Governor is required to review and
update their Methods of Administration as determined by the schedule in
Sec. 37.55 of this chapter, whichever is later, a Governor must:
(1) Develop and implement a Nondiscrimination Plan consistent with
the requirements of this part, and
(2) Submit a copy of the Nondiscrimination Plan to the Director.
(b) The Governor must promptly update the Nondiscrimination Plan
whenever necessary, and submit the changes made to the Director in
writing at the time that any such updates are made.
(c) Every two years from the date on which the initial
Nondiscrimination Plan is submitted to the Director under paragraph
(a)(2) of this section, the Governor must review the Nondiscrimination
Plan and the manner in which it has been implemented, and determine
whether any changes are necessary in order for the State to comply
fully and effectively with the nondiscrimination and equal opportunity
provisions of WIOA and this part.
(1) If any such changes are necessary, the Governor must make the
appropriate changes and submit them, in writing, to the Director.
(2) If the Governor determines that no such changes are necessary,
s/he must certify, in writing, to the Director that the
Nondiscrimination Plan previously submitted continues in effect.
(3) Submit a copy of all reports of any monitoring reviews
conducted by the Governor pursuant to Sec. 38.51(b) since the last
Nondiscrimination Plan update.
Subpart D--Compliance Procedures
Sec. 38.60 Evaluation of compliance.
From time to time, the Director may conduct pre-approval compliance
reviews of grant applicants for, and post-approval compliance reviews
of recipients of, WIOA Title I-financial assistance to determine the
ability to comply or compliance with the nondiscrimination and equal
opportunity provisions of WIOA and this part. Reviews may focus on one
or more specific programs or activities, or one or more issues within a
program or activity. The Director may also investigate and resolve
complaints alleging violations of the nondiscrimination and equal
opportunity provisions of WIOA and this part.
Sec. 38.61 Authority to issue subpoenas.
Section 183(c) of WIOA authorizes the issuance of subpoenas. The
subpoena may require the appearance of witnesses, and the production of
documents, from any place in the United States, at any designated time
and place. A subpoena may direct the individual named on the subpoena
to take the following actions:
(a) To appear:
(1) Before a designated CRC representative,
(2) At a designated time and place;
(b) To give testimony; and/or
(c) To produce documentary evidence.
Compliance Reviews
Sec. 38.62 Authority and procedures for pre-approval compliance
reviews.
(a) As appropriate and necessary to ensure compliance with the
nondiscrimination and equal opportunity provisions of WIOA or this
part, the Director may review any application, or class of
applications, for Federal financial assistance under Title I of WIOA,
before and as a condition of their approval. The basis for such review
may be the assurance specified in Sec. 38.25, information and reports
submitted by the grant applicant under this part or guidance published
by the Director, and any relevant records on file with the Department.
(b) When awarding financial assistance under Title I of WIOA,
departmental grantmaking agencies must consult with the Director to
review whether the CRC has issued a Notice to Show Cause under Sec.
38.66(b) or a Final Determination against an applicant that has been
identified as a probable awardee.
(c) The grantmaking agency will consider, in consultation with the
Director, the above information, along with any other information
provided by the Director in determining whether to award a grant or
grants. Departmental grantmaking agencies must consider refraining from
awarding new grants to applicants or must consider including special
terms in the grant agreement for entities named by the Director as
described in subsection (b). Special terms will not be lifted until a
compliance review has been conducted by the Director, and the Director
has approved a determination that the applicant is likely to comply
with the nondiscrimination and equal opportunity requirements of WIOA
and this part.
(d) Where the Director determines that the grant applicant for
Federal financial assistance under Title I of WIOA, if financially
assisted, is not likely to comply with the nondiscrimination and equal
opportunity requirements of WIOA or this part, the Director must:
(1) Notify, in a timely manner, the Departmental grantmaking agency
and the Assistant Attorney General of the findings of the pre-approval
compliance review; and (2) Issue a Letter of Findings. The Letter of
Findings must advise the grant applicant, in writing, of:
(i) The preliminary findings of the review;
(ii) The proposed remedial or corrective action under Sec. 38.90
and the time within which the remedial or corrective action should be
completed;
(iii) Whether it will be necessary for the grant applicant to enter
into a written Conciliation Agreement as described in Sec. Sec. 38.91
and 38.93; and
(iv) The opportunity to engage in voluntary compliance
negotiations.
(2) [Reserved]
(e) If a grant applicant has agreed to certain remedial or
corrective actions in order to receive WIOA Title I financial
assistance, the Department must ensure that the remedial or corrective
actions have been taken, or that a Conciliation Agreement has been
entered into, before approving the award of further assistance under
WIOA Title I. If a grant applicant refuses or fails to take remedial or
corrective actions or to enter into a Conciliation Agreement, as
applicable, the Director must follow the procedures outlined in
Sec. Sec. 38.95 through 38.97.
Sec. 38.63 Authority and procedures for conducting post-approval
compliance reviews.
(a) The Director may initiate a post-approval compliance review of
any recipient to determine compliance with the nondiscrimination and
equal opportunity provisions of WIOA and this part. The initiation of a
post-approval review may be based on, but need not be limited to, the
results of routine program monitoring by other
[[Page 4565]]
Departmental or Federal agencies, or the nature or frequency of
complaints.
(b) A post-approval review must be initiated by a Notification
Letter, advising the recipient of:
(1) The practices to be reviewed;
(2) The programs to be reviewed;
(3) The information, records, and/or data to be submitted by the
recipient within 30 days of the receipt of the Notification Letter,
unless this time frame is modified by the Director; and
(4) The opportunity, at any time before receipt of the Final
Determination described in Sec. Sec. 38.95 and 38.96, to make a
documentary or other written submission that explains, validates or
otherwise addresses the practices under review.
(c) The Director may conduct post-approval reviews using such
techniques as desk audits and on-site reviews.
Sec. 38.64 Procedures for concluding post-approval compliance
reviews.
(a) Where, as the result of a post-approval review, the Director
has made a finding of noncompliance, he or she must issue a Letter of
Findings. This Letter must advise the recipient, in writing, of:
(1) The preliminary findings of the review;
(2) Where appropriate, the proposed remedial or corrective action
to be taken, and the time by which such action should be completed, as
provided in Sec. 38.90;
(3) Whether it will be necessary for the recipient to enter into a
written assurance or Conciliation Agreement, as provided in Sec. Sec.
38.95 and 38.96; and
(4) The opportunity to engage in voluntary compliance negotiations.
(b) Where no violation is found, the recipient must be so informed
in writing.
Sec. 38.65 Authority to monitor the activities of a Governor.
(a) The Director may periodically review the adequacy of the
Nondiscrimination Plan established by a Governor, as well as the
adequacy of the Governor's performance under the Nondiscrimination
Plan, to determine compliance with the requirements of Sec. Sec. 38.50
through 38.55. The Director may review the Nondiscrimination Plan
during a compliance review under Sec. Sec. 38.62 and 38.63, or at
another time.
(b) Nothing in this subpart limits or precludes the Director from
monitoring directly any WIOA Title I recipient or from investigating
any matter necessary to determine a recipient's compliance with the
nondiscrimination and equal opportunity provisions of WIOA or this
part.
(c) Where the Director determines that the Governor has not
complied with the oversight and monitoring responsibilities set forth
in the nondiscrimination and equal opportunity requirements of WIOA or
this part, the Director may:
(1) Issue a Letter of Findings. The Letter of Findings must advise
the Governor, in writing, of:
(i) The preliminary findings of the review:
(ii) The proposed remedial or corrective action under Sec. 38. 90
and the time within which the remedial or corrective action should be
completed;
(iii) Whether it will be necessary for the Governor to enter into a
conciliation agreement as described in Sec. Sec. 38.95 and 38.96; and
(iv) The opportunity to engage in voluntary compliance
negotiations.
(2) If a Governor refuses or fails to take remedial or corrective
actions or to enter into a conciliation agreement, the Director may
follow the procedures outlined in Sec. Sec. 38.89, 38.90, and 38.91.
Sec. 38.66 Notice to show cause issued to a recipient.
(a) The Director may issue a Notice to Show Cause to a recipient
failing to comply with the requirements of this part, where such
failure results in the inability of the Director to make a finding.
Such a failure includes, but is not limited to, the recipient's failure
or refusal to:
(1) Submit requested information, records, and/or data within the
timeframe specified in a Notification Letter issued pursuant to Sec.
38.64;
(2) Submit, in a timely manner, information, records, and/or data
requested during a compliance review, complaint investigation, or other
action to determine a recipient's compliance with the nondiscrimination
and equal opportunity provisions of WIOA or this part; or
(3) Provide CRC access in a timely manner to a recipient's
premises, records, or employees during a compliance review or complaint
investigation, as required in Sec. 38.42(c).
(b) The Director may issue a Notice to Show Cause to a recipient
after a Letter of Findings and/or an Initial Determination has been
issued, and after a reasonable period of time has passed within which
the recipient refuses to negotiate a conciliation agreement with the
Director regarding the violation(s).
(c) A Notice to Show Cause must contain:
(1) A description of the violation and a citation to the pertinent
nondiscrimination or equal opportunity provision(s) of WIOA and this
part;
(2) The corrective action necessary to achieve compliance or, as
may be appropriate, the concepts and principles of acceptable
corrective or remedial action and the results anticipated; and
(3) A request for a written response to the findings, including
commitments to corrective action or the presentation of opposing facts
and evidence.
(d) A Notice to Show Cause must give the recipient 30 days from
receipt of the Notice to show cause why enforcement proceedings under
the nondiscrimination and equal opportunity provisions of WIOA or this
part should not be instituted.
Sec. 38.67 Methods by which a recipient may show cause why
enforcement proceedings should not be instituted.
A recipient may show cause why enforcement proceedings should not
be instituted by, among other means:
(a) Correcting the violation(s) that brought about the Notice to
Show Cause and entering into a Conciliation Agreement, under Sec. Sec.
38.91 through 38.93;
(b) Demonstrating that CRC does not have jurisdiction; or
(c) Demonstrating that the violation alleged by CRC did not occur.
Sec. 38.68 Failing to show cause.
If the recipient fails to show cause why enforcement proceedings
should not be initiated, the Director may follow the enforcement
procedures outlined in Sec. 38.95.
Complaint Processing Procedures
Sec. 38.69 Complaint filing.
(a) Any person or his/her representative who believes that any of
the following circumstances exist may file a written complaint:
(1) A person, or any specific class of individuals, has been or is
being discriminated against on the basis of race, color, religion, sex
(including pregnancy, childbirth, or related medical conditions,
transgender status, and gender identity), national origin (including
limited English proficiency), age, disability, political affiliation or
belief, citizenship status, or participation in any WIOA Title I-
financially-assisted program or activity as prohibited by WIOA or this
part.
(2) Either the person, or any specific class of individuals, has
been or is being retaliated against as described in Sec. 38.19.
(b) A person or the person's representative may file a complaint
with either the recipient or the Director. Complaints filed with the
Director should be sent to the address listed in
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the notice or filed electronically as described in the notice in Sec.
38.35.
(c) Generally, a complaint must be filed within 180 days of the
alleged discrimination or retaliation. However, for good cause shown,
the Director may extend the filing time. The time period for filing is
for the administrative convenience of CRC, and does not create a
defense for the respondent.
Sec. 38.70 Required contents of complaint.
Each complaint must be filed in writing, either electronically or
in hard copy, and must contain the following information:
(a) The complainant's name, mailing address, and, if available,
email address (or another means of contacting the complainant);
(b) The identity of the respondent (the individual or entity that
the complainant alleges is responsible for the discrimination);
(c) A description of the complainant's allegations. This
description must include enough detail to allow the Director or the
recipient, as applicable, to decide whether:
(1) CRC or the recipient, as applicable, has jurisdiction over the
complaint;
(2) The complaint was filed in time; and
(3) The complaint has apparent merit; in other words, whether the
complainant's allegations, if true, would indicate noncompliance with
any of the nondiscrimination and equal opportunity provisions of WIOA
or this part.
(d) The written or electronic signature of the complainant or the
written or electronic signature of the complainant's representative.
(e) A complainant may file a complaint by completing and submitting
CRC's Complaint Information and Privacy Act Consent Forms, which may be
obtained either from the recipient's EO Officer or from CRC. The forms
are available electronically on CRC's Web site, and in hard copy via
postal mail upon request. The latter requests may be sent to CRC at the
address listed in the notice contained in Sec. 38.35.
Sec. 38.71 Right to representation.
Both the complainant and the respondent have the right to be
represented by an attorney or other individual of their choice.
Sec. 38.72 Required elements of a recipient's complaint processing
procedures.
(a) The procedures that a recipient adopts and publishes for
processing complaints permitted under this part and WIOA Section 188
must state that the recipient will issue a written Notice of Final
Action on complaints within 90 days of the date on which the complaint
is filed.
(b) At a minimum, the procedures must include the following
elements:
(1) Initial, written notice to the complainant that contains the
following information:
(i) An acknowledgment that the recipient has received the
complaint, and
(ii) Notice that the complainant has the right to be represented in
the complaint process;
(iii) Notice of rights contained in Sec. 38.35; and
(iv) Notice that the complainant has the right to request and
receive, at no cost, auxiliary aids and services, language assistance
services, and that this notice will be translated into the non-English
languages as required in Sec. 38.4(h), Sec. 38.4(i) and Sec. 38.34
and Sec. 38.36.
(2) A written statement of the issue(s), provided to the
complainant, that includes the following information:
(i) A list of the issues raised in the complaint, and
(ii) For each such issue, a statement whether the recipient will
accept the issue for investigation or reject the issue, and the reasons
for each rejection;
(3) A period for fact-finding or investigation of the circumstances
underlying the complaint;
(4) A period during which the recipient attempts to resolve the
complaint. The methods available to resolve the complaint must include
alternative dispute resolution (ADR), as described in paragraph (c) of
this section.
(5) A written Notice of Final Action, provided to the complainant
within 90 days of the date on which the complaint was filed, that
contains the following information:
(i) For each issue raised in the complaint, a statement of either:
(A) The recipient's decision on the issue and an explanation of the
reasons underlying the decision, or
(B) A description of the way the parties resolved the issue; and
(ii) Notice that the complainant has a right to file a complaint
with CRC within 30 days of the date on which the Notice of Final Action
is issued if the complainant is dissatisfied with the recipient's final
action on the complaint.
(c) The procedures the recipient adopts must provide for
alternative dispute resolution (ADR). The recipient's ADR procedures
must provide that:
(1) ADR may be attempted any time after a written complaint has
been filed with the recipient;
(2) The choice whether to use ADR or the customary process rests
with the complainant;
(3) A party to any agreement reached under ADR may notify the
Director in the event the agreement is breached. In such circumstances,
the following rules will apply:
(i) The non-breaching party may notify with the Director within 30
days of the date on which the non-breaching party learns of the alleged
breach;
(ii) The Director must evaluate the circumstances to determine
whether the agreement has been breached. If the Director determines
that the agreement has been breached, the complaint will be reinstated
and processed in accordance with the recipient's procedures.
(4) If the parties do not reach an agreement under ADR, the
complainant may file a complaint with the Director as described in
Sec. Sec. 38.69 through 38.71.
Sec. 38.73 Responsibility for developing and publishing complaint
processing procedures for service providers.
The Governor or the LWIA grant recipient, as provided in the
State's Nondiscrimination Plan, must develop and publish, on behalf of
its service providers, the complaint processing procedures required in
Sec. 38.73. The service providers must then follow those procedures.
Sec. 38.74 Recipient's obligations when it determines that it has no
jurisdiction over a complaint.
If a recipient determines that it does not have jurisdiction over a
complaint, it must notify the complainant, in writing within five
business days of making such determination. This Notice of Lack of
Jurisdiction must include:
(a) A statement of the reasons for that determination, and
(b) Notice that the complainant has a right to file a complaint
with CRC within 30 days of the date on which the complainant receives
the Notice.
Sec. 38.75 If the complainant is dissatisfied after receiving a
Notice of Final Action.
If the recipient issues its Notice of Final Action before the 90-
day period ends, but the complainant is dissatisfied with the
recipient's decision on the complaint, the complainant or the
complainant's representative may file a complaint with the Director
within 30 days after the date on which the complainant receives the
Notice.
[[Page 4567]]
Sec. 38.76 If a recipient fails to issue a Notice of Final Action
within 90 days after the complaint was filed.
If, by the end of 90 days from the date on which the complainant
filed the complaint, the recipient has failed to issue a Notice of
Final Action, the complainant or the complainant's representative may
file a complaint with the Director within 30 days of the expiration of
the 90-day period. In other words, the complaint must be filed with the
Director within 120 days of the date on which the complaint was filed
with the recipient.
Sec. 38.77 Extension of deadline to file complaint.
(a) The Director may extend the 30-day time limit for filing a
complaint:
(1) If a recipient does not include in its Notice of Final Action
the required notice about the complainant's right to file with the
Director, as described in Sec. 38.72(b)(5); or
(2) For other good cause shown.
(b) The complainant has the burden of proving to the Director that
the time limit should be extended.
Sec. 38.78 Determinations regarding acceptance of complaints.
The Director must decide whether CRC will accept a particular
complaint for resolution. For example, a complaint need not be accepted
if:
(a) It has not been timely filed;
(b) CRC has no jurisdiction over the complaint; or
(c) CRC has previously decided the matter.
Sec. 38.79 When a complaint contains insufficient information.
(a) If a complaint does not contain enough information to identify
the respondent or the basis of the alleged discrimination, the
timeliness of the complaint, or the apparent merit of the complaint,
the Director must try to get the needed information from the
complainant.
(b) The Director may close the complainant's file, without
prejudice, if:
(1) The Director makes reasonable efforts to try to find the
complainant, but is unable to reach him or her; or
(2) The complainant does not provide the needed information to CRC
within the time specified in the request for more information.
(c) If the Director closes the complainant's file, the Director
must send written notice to the complainant's last known address, email
address (or another known method of contacting the complainant in
writing).
Sec. 38.80 Lack of jurisdiction.
If CRC does not have jurisdiction over a complaint, the Director
must:
(a) Notify the complainant in writing and explain why the complaint
falls outside the coverage of the nondiscrimination and equal
opportunity provisions of WIOA or this part; and
(b) Where possible, transfer the complaint to an appropriate
Federal, State or local authority.
Sec. 38.81 Complaint referral.
The Director refers complaints to other agencies in the following
circumstances:
(a) Where the complaint alleges discrimination based on age, and
the complaint falls within the jurisdiction of the Age Discrimination
Act of 1975, as amended, then the Director must refer the complaint, in
accordance with the provisions of 45 CFR 90.43(c)(3).
(b) Where the only allegation in the complaint is a charge of
individual employment discrimination that is covered both by WIOA or
this part and by one or more of the laws listed below, then the
complaint is a ``joint complaint,'' and the Director may refer it to
the EEOC for investigation and conciliation under the procedures
described in 29 CFR part 1640 or 1691, as appropriate. The relevant
laws are:
(1) Title VII of the Civil Rights Act of 1964, as amended (42
U.S.C. 2000e to 2000e-17);
(2) The Equal Pay Act of 1963, as amended (29 U.S.C. 206(d));
(3) The Age Discrimination in Employment Act of 1976, as amended
(29 U.S.C. 621, et seq.); and
(4) Title I of the Americans with Disabilities Act of 1990, as
amended (42 U.S.C. 12101 et seq.).
(c) Where the complaint alleges discrimination by an entity that
operates a program or activity financially assisted by a Federal
grantmaking agency other than the Department, but that participates as
a partner in a One-Stop delivery system, the following procedures
apply:
(1) Where the complaint alleges discrimination on a basis that is
prohibited both by Section 188 of WIOA and by a civil rights law
enforced by the Federal grantmaking agency, then CRC and the
grantmaking agency have dual jurisdiction over the complaint, and the
Director will refer the complaint to the grantmaking agency for
processing. In such circumstances, the grantmaking agency's regulations
will govern the processing of the complaint.
(2) Where the complaint alleges discrimination on a basis that is
prohibited by Section 188 of WIOA, but not by any civil rights laws
enforced by the Federal grantmaking agency, then CRC has sole
jurisdiction over the complaint, and will retain the complaint and
process it pursuant to this part. Such bases generally include
religion, political affiliation or belief, citizenship, and/or
participation in a WIOA Title I-financially assisted program or
activity.
(d) Where the Director makes a referral under this section, he or
she must notify the complainant and the respondent about the referral.
Sec. 38.82 Notice that complaint will not be accepted.
If a complaint will not be accepted, the Director must notify the
complainant, in writing, about that fact, and provide the complainant
the Director's reasons for making that determination.
Sec. 38.83 Notice of complaint acceptance.
If the Director accepts the complaint for resolution, he or she
must notify in writing the complainant, the respondent, and the
grantmaking agency. The notice must:
(a) State that the complaint will be accepted,
(b) Identify the issues over which CRC has accepted jurisdiction;
and
(c) Explain the reasons why any issues were rejected.
Sec. 38.84 Contacting CRC about a complaint.
Both the complainant and the respondent, or their representative,
may contact CRC for information about the complaint. The Director will
determine what information, if any, about the complaint will be
released.
Sec. 38.85 Alternative dispute resolution.
The Director may offer the option of alternative dispute resolution
(ADR) of the complaint filed with CRC. In such circumstances, the
following rules apply:
(a) ADR is voluntary; consent must be given by the complainant and
respondent before the ADR process will proceed.
(b) The ADR will be conducted under the guidance of the Director.
(c) ADR may take place at any time after a complaint has been filed
under Sec. 38.69, as deemed appropriate by the Director.
(d) CRC will not suspend its investigation and complaint processes
during ADR.
Complaint Determinations
Sec. 38.86 Notice at conclusion of complaint investigation.
At the conclusion of the investigation of the complaint, the
Director must take the following actions:
(a) Determine whether there is reasonable cause to believe that the
[[Page 4568]]
respondent has violated the nondiscrimination and equal opportunity
provisions of WIOA or this part; and
(b) Notify the complainant, the respondent, and the grantmaking
agency, in writing, of that determination as provided in Sec. Sec.
38.87 and 38.88.
Sec. 38.87 Director's Initial Determination that reasonable cause
exists to believe that a violation has taken place.
If the Director finds reasonable cause to believe that the
respondent has violated the nondiscrimination and equal opportunity
provisions of WIOA or this part the Director must issue an Initial
Determination. The Initial Determination must include:
(a) The specific findings of the investigation;
(b) The corrective or remedial action that the Department proposes
to the respondent, under Sec. 38.90;
(c) The time by which the respondent must complete the corrective
or remedial action;
(d) Whether it will be necessary for the respondent to enter into a
written agreement under Sec. Sec. 38.91 through 38.93; and
(e) The opportunity to engage in voluntary compliance negotiations.
Sec. 38.88 Director's Final Determination that no reasonable cause
exists to believe that a violation has taken place.
If the Director determines that there is no reasonable cause to
believe that a violation has taken place, the Director must issue a
Final Determination under Sec. 38.96. The Final Determination
represents the Department's final agency action on the complaint.
Sec. 38.89 When the recipient fails or refuses to take the corrective
action listed in the Initial Determination.
Under such circumstances, following a complaint investigation or
compliance review, the Department may take the actions described in
Sec. 38.95.
Sec. 38.90 Corrective or remedial action that may be imposed when the
Director finds a violation.
(a) A Letter of Findings, Notice to Show Cause, or Initial
Determination, issued under Sec. Sec. 38.62 or 38.63, 38.66 and 38.67,
or 38.87, respectively, must include the specific steps the grant
applicant or recipient, as applicable, must take within a stated period
of time in order to achieve voluntary compliance.
(b) Such steps must include:
(1) Actions to end and/or redress the violation of the
nondiscrimination and equal opportunity provisions of WIOA or this
part;
(2) Make whole relief where discrimination has been identified,
including, as appropriate, back pay (which must not accrue from a date
more than 2 years before the filing of the complaint or the initiation
of a compliance review), or other monetary relief; hire or
reinstatement; retroactive seniority; promotion; benefits or other
services discriminatorily denied; and
(3) Such other remedial or affirmative relief as the Director deems
necessary, including but not limited to outreach, recruitment and
training designed to ensure equal opportunity.
(c) Monetary relief may not be paid from Federal funds.
Sec. 38.91 Post violation procedures.
(a) Violations at the State Level. Where the Director has
determined that a violation of the nondiscrimination and equal
opportunity provisions of WIOA or this part has occurred at the State
level, the Director must notify the Governor of that State through the
issuance of a Letter of Findings, Notice to Show Cause, or Initial
Determination, as appropriate, under Sec. Sec. 38.62 or 38.63, 38.66
and 38.67, or 38.87, respectively. The Director may secure compliance
with the nondiscrimination and equal opportunity provisions of WIOA and
this part through, among other means, the execution of a written
assurance or Conciliation Agreement.
(b) Violations below State level. Where the Director has determined
that a violation of the nondiscrimination and equal opportunity
provisions of WIOA or this part has occurred below the State level, the
Director must so notify the Governor and the violating recipient(s)
through the issuance of a Letter of Findings, Notice to Show Cause or
Initial Determination, as appropriate, under Sec. Sec. 38.62 or 38.63,
38.66 and 38.67, or 38.87, respectively.
(1) Such issuance may:
(i) Direct the Governor to initiate negotiations immediately with
the violating recipient(s) to secure compliance by voluntary means;
(ii) Direct the Governor to complete such negotiations within 30
days of the Governor's receipt of the Notice to Show Cause or within 45
days of the Governor's receipt of the Letter of Findings or Initial
Determination, as applicable. The Director reserves the right to enter
into negotiations with the recipient at any time during the period. For
good cause shown, the Director may approve an extension of time to
secure voluntary compliance. The total time allotted to secure
voluntary compliance must not exceed 60 days.
(iii) Include a determination as to whether compliance must be
achieved by:
(A) Immediate correction of the violation(s) and written assurance
that such violations have been corrected, under Sec. 38.92; or
(B) Entering into a written Conciliation Agreement under Sec.
38.93.
(2) If the Governor determines, at any time during the period
described in paragraph (b)(1)(ii) of this section, that a recipient's
compliance cannot be achieved by voluntary means, the Governor must so
notify the Director.
(3) If the Governor is able to secure voluntary compliance under
paragraph (b)(1) of this section, he or she must submit to the Director
for approval, as applicable:
(i) Written assurance that the required action has been taken, as
described in Sec. 38.92; or
(ii) A copy of the Conciliation Agreement, as described in Sec.
38.93.
(4) The Director may disapprove any written assurance or
Conciliation Agreement submitted for approval under paragraph (b)(3) of
this section that fails to satisfy each of the applicable requirements
provided in Sec. Sec. 38.92 and 38.93.
(c) Violations in National Programs. Where the Director has
determined that a violation of the nondiscrimination and equal
opportunity provisions of WIOA or this part has occurred in a National
Program, the Director must notify the Federal grantmaking agency and
the recipient by issuing a Letter of Findings, Notice to Show Cause, or
Initial Determination, as appropriate, under Sec. Sec. 38.62 or 38.63,
38.66 and 38.67, or 38.87, respectively. The Director may secure
compliance with the nondiscrimination and equal opportunities
provisions of WIOA through, among other means, the execution of a
written assurance or conciliation agreement under Sec. Sec. 38.92 or
38.93.
Sec. 38.92 Written assurance.
A written assurance is the resolution document that may be used
when the Director determines that a recipient has, within fifteen
business days after receipt of the Letter of Findings or Initial
Determination identifying the violations, taken all corrective actions
to remedy the violations specified in those documents.
Sec. 38.93 Required elements of a conciliation agreement.
A conciliation agreement must:
(a) Be in writing;
(b) Address the legal and contractual obligations of the recipient;
[[Page 4569]]
(c) Address each cited violation;
(d) Specify the corrective or remedial action to be taken within a
stated period of time to come into compliance;
(e) Provide for periodic reporting on the status of the corrective
and remedial action;
(f) State that the violation(s) will not recur;
(g) State that nothing in the agreement will prohibit CRC from
sending the agreement to the complainant, making it available to the
public, or posting it on the CRC or recipient's Web site;
(h) State that, in any proceeding involving an alleged violation of
the conciliation agreement, CRC may seek enforcement of the agreement
itself and shall not be required to present proof of the underlying
violations resolved by the agreement; and
(i) Provide for enforcement for a breach of the agreement.
Sec. 38.94 When voluntary compliance cannot be secured.
The Director will conclude that compliance cannot be secured by
voluntary means under the following circumstances:
(a) The Governor, grant applicant or recipient fails to or refuses
to correct the violation(s) within the time period established by the
Letter of Findings, Notice to Show Cause or Initial Determination; or
(b) The Director has not approved an extension of time for
agreement on voluntary compliance under Sec. 38.91(b)(1)(ii) and he or
she either:
(1) Has not be notified under Sec. 38.91(b)(3), that the Governor,
grant applicant or recipient has agreed to voluntary compliance;
(2) Has disapproved a written assurance or Conciliation Agreement,
under Sec. 38.91(b)(4); or
(3) Has received notice from the Governor, under Sec. 38.91(b)(2),
that the grant applicant or recipient will not comply voluntarily.
Sec. 38.95 Enforcement when voluntary compliance cannot be secured.
If the Director concludes that compliance cannot be secured by
voluntary means, the Director must either:
(a) Issue a Final Determination;
(b) Refer the matter to the Attorney General with a recommendation
that an appropriate civil action be instituted; or
(c) Take such other action as may be provided by law.
Sec. 38.96 Contents of a Final Determination of a violation.
A Final Determination must contain the following information:
(a) A statement of the efforts made to achieve voluntary
compliance, and a statement that those efforts have been unsuccessful;
(b) A statement of those matters upon which the grant applicant or
recipient and CRC continue to disagree;
(c) A list of any modifications to the findings of fact or
conclusions that were set forth in the Initial Determination, Notice to
Show Cause or Letter of Findings;
(d) A statement of the grant applicant's or recipient's liability,
and, if appropriate, the extent of that liability;
(e) A description of the corrective or remedial actions that the
grant applicant or recipient must take to come into compliance;
(f) A notice that if the grant applicant or recipient fails to come
into compliance within 10 days of the date on which it receives the
Final Determination, one or more of the following consequences may
result:
(1) After the grant applicant or recipient is given the opportunity
for a hearing, its WIOA Title I financial assistance may be terminated,
discontinued, or withheld in whole or in part, or its application for
such financial assistance may be denied, as appropriate;
(2) The Secretary of Labor may refer the case to the Department of
Justice with a request to file suit against the grant applicant or
recipient; or
(3) the Secretary may take any other action against the grant
applicant or recipient that is provided by law;
(g) A notice of the grant applicant's or recipient's right to
request a hearing under the procedures described in Sec. Sec. 38.112
through 37.115; and
(h) A determination of the Governor's liability, if any, under
Sec. 38.52.
Sec. 38.97 Notification of finding of noncompliance.
Where a compliance review or complaint investigation results in a
finding of noncompliance, the Director must notify:
(a) The grant applicant or recipient;
(b) The grantmaking agency; and
(c) The Assistant Attorney General.
Breaches of Conciliation Agreements
Sec. 38.98 Notice of breach of conciliation agreement.
(a) When it becomes known to the Director that a Conciliation
Agreement has been breached, the Director may issue a Notification of
Breach of Conciliation Agreement.
(b) The Director must send a Notification of Breach of Conciliation
Agreement to the Governor, the grantmaking agency, and/or other
party(ies) to the Conciliation Agreement, as applicable.
Sec. 38.99 Contents of notice of breach of conciliation agreement.
A Notification of Breach of Conciliation Agreement must:
(a) Specify any efforts made to achieve voluntary compliance, and
indicate that those efforts have been unsuccessful;
(b) Identify the specific provisions of the Conciliation Agreement
violated;
(c) Determine liability for the violation and the extent of the
liability;
(d) Indicate that failure of the violating party to come into
compliance within 10 days of the receipt of the Notification of Breach
of Conciliation Agreement may result, after opportunity for a hearing,
in the termination or denial of the grant, or discontinuation of
assistance, as appropriate, or in referral to the Department of Justice
with a request from the Department to file suit;
(e) Advise the violating party of the right to request a hearing,
and reference the applicable procedures in Sec. 38.111; and
(f) Include a determination as to the Governor's liability, if any,
in accordance with the provisions of Sec. 38.52.
Sec. 38.100 Notification of an enforcement action based on breach of
conciliation agreement.
In such circumstances, the Director must notify:
(a) The grantmaking agency; and
(b) The Governor, recipient or grant applicant, as applicable.
Subpart E--Federal Procedures for Effecting Compliance
Sec. 38.110 Enforcement procedures.
(a) Sanctions; judicial enforcement. If compliance has not been
achieved after issuance of a Final Determination under Sec. Sec. 38.95
and 38.96, or a Notification of Breach of Conciliation Agreement under
Sec. Sec. 38.98 through 38.100, the Secretary may:
(1) After opportunity for a hearing, suspend, terminate, deny or
discontinue the WIOA Title I financial assistance, in whole or in part;
(2) Refer the matter to the Attorney General with a recommendation
that an appropriate civil action be instituted; or
(3) Take such action as may be provided by law, which may include
seeking injunctive relief.
(b) Deferral of new grants. When proceedings under Sec. 38.111
have been initiated against a particular recipient, the Department may
defer action on that recipient's applications for new WIOA Title I
financial assistance until a Final Decision under Sec. 38.112 has been
rendered. Deferral is not appropriate
[[Page 4570]]
when WIOA Title I financial assistance is due and payable under a
previously approved application.
(1) New WIOA Title I financial assistance includes all assistance
for which an application or approval, including renewal or continuation
of existing activities, or authorization of new activities, is required
during the deferral period.
(2) New WIOA Title I financial assistance does not include
assistance approved before the beginning of proceedings under Sec.
38.111, or increases in funding as a result of changed computations of
formula awards.
Sec. 38.111 Hearing procedures.
(a) Notice of opportunity for hearing. As part of a Final
Determination, or a Notification of Breach of a Conciliation Agreement,
the Director must include, and serve on the grant applicant or
recipient (by certified mail, return receipt requested), a notice of
opportunity for hearing.
(b) Complaint; request for hearing; answer. (1) In the case of
noncompliance that cannot be voluntarily resolved, the Final
Determination or Notification of Breach of Conciliation Agreement is
considered the Department's formal complaint.
(2) To request a hearing, the grant applicant or recipient must
file a written answer to the Final Determination or Notification of
Breach of Conciliation Agreement, and a copy of the Final Determination
or Notification of Breach of Conciliation Agreement, with the Office of
the Administrative Law Judges, 800 K Street NW., Suite 400, Washington,
DC 20001.
(i) The answer must be filed within 30 days of the date of receipt
of the Final Determination or Notification of Breach of Conciliation
Agreement.
(ii) A request for hearing must be set forth in a separate
paragraph of the answer.
(iii) The answer must specifically admit or deny each finding of
fact in the Final Determination or Notification of Breach of
Conciliation Agreement. Where the grant applicant or recipient does not
have knowledge or information sufficient to form a belief, the answer
may so state and the statement will have the effect of a denial.
Findings of fact not denied are considered admitted. The answer must
separately state and identify matters alleged as affirmative defenses,
and must also set forth the matters of fact and law relied on by the
grant applicant or recipient.
(3) The grant applicant or recipient must simultaneously serve a
copy of its filing on the Office of the Solicitor, Civil Rights and
Labor-Management Division, Room N-2474, U.S. Department of Labor, 200
Constitution Avenue NW., Washington, DC 20210.
(4)(i) The failure of a grant applicant or recipient to request a
hearing under this paragraph (b), or to appear at a hearing for which a
date has been set, waives the right to a hearing; and
(ii) Whenever a hearing is waived, all allegations of fact
contained in the Final Determination or Notification of Breach of
Conciliation Agreement are considered admitted, and the Final
Determination or Notification of Breach of Conciliation Agreement
becomes the Final Decision of the Secretary as of the day following the
last date by which the grant applicant or recipient was required to
request a hearing or was to appear at a hearing.
(c) Time and place of hearing. Hearings will be held at a time and
place ordered by the Administrative Law Judge upon reasonable notice to
all parties and, as appropriate, the complainant. In selecting a place
for the hearing, due regard must be given to the convenience of the
parties, their counsel, and witnesses, if any.
(d) Judicial process; evidence. (1) The Administrative Law Judge
may use judicial process to secure the attendance of witnesses and the
production of documents authorized by Section 9 of the Federal Trade
Commission Act (15 U.S.C. 49).
(2) Evidence. In any hearing or administrative review conducted
under this part, evidentiary matters will be governed by the standards
and principles set forth in the Rules of Evidence issued by the
Department of Labor's Office of Administrative Law Judges, 29 CFR part
18.
Sec. 38.112 Initial and final decision procedures.
(a) Initial decision. After the hearing, the Administrative Law
Judge must issue an initial decision and order, containing findings of
fact and conclusions of law. The initial decision and order must be
served on all parties by certified mail, return receipt requested.
(b) Exceptions; Final Decision. (1) Final decision after a hearing.
The initial decision and order becomes the Final Decision and Order of
the Department unless exceptions are filed by a party or, in the
absence of exceptions, the Administrative Review Board serves notice
that it will review the decision.
(i) A party dissatisfied with the initial decision and order may,
within 45 days of receipt, file with the Administrative Review Board
and serve on the other parties to the proceedings and on the
Administrative Law Judge, exceptions to the initial decision and order
or any part thereof.
(ii) Upon receipt of exceptions, the Administrative Law Judge must
index and forward the record and the initial decision and order to the
Administrative Review Board within three days of such receipt.
(iii) A party filing exceptions must specifically identify the
finding or conclusion to which exception is taken.
(iv) Within 45 days of the date of filing such exceptions, a reply,
which must be limited to the scope of the exceptions, may be filed and
served by any other party to the proceeding.
(v) Requests for extensions for the filing of exceptions or replies
must be received by the Administrative Review Board no later than 3
days before the exceptions or replies are due.
(vi) If no exceptions are filed, the Administrative Review Board
may, within 30 days of the expiration of the time for filing
exceptions, on its own motion serve notice on the parties that it will
review the decision.
(vii) Final Decision and Order. (A) Where exceptions have been
filed, the initial decision and order of the Administrative Law Judge
becomes the Final Decision and Order unless the Administrative Review
Board, within 30 days of the expiration of the time for filing
exceptions and replies, has notified the parties that the case is
accepted for review.
(B) Where exceptions have not been filed, the initial decision and
order of the Administrative Law Judge becomes the Final Decision and
Order unless the Administrative Review Board has served notice on the
parties that it will review the decision, as provided in paragraph
(b)(1)(vi) of this section.
(viii) Any case reviewed by the Administrative Review Board under
this paragraph must be decided within 180 days of the notification of
such review. If the Administrative Review Board fails to issue a Final
Decision and Order within the 180-day period, the initial decision and
order of the Administrative Law Judge becomes the Final Decision and
Order.
(2) Final Decision where a hearing is waived.
(i) If, after issuance of a Final Determination under Sec. 38.95
or Notification of Breach of Conciliation Agreement under Sec. 38.98,
voluntary compliance has not been achieved within the time set by this
part and the opportunity for a hearing has been waived as provided for
in Sec. 38.111(b)(4), the Final Determination or Notification of
Breach of Conciliation Agreement becomes the Final Decision.
[[Page 4571]]
(ii) When a Final Determination or Notification of Breach of
Conciliation Agreement becomes the Final Decision, the Administrative
Review Board may, within 45 days, issue an order terminating or denying
the grant or continuation of assistance; or imposing other appropriate
sanctions for the grant applicant or recipient's failure to comply with
the required corrective and/or remedial actions, or the Secretary may
refer the matter to the Attorney General for further enforcement
action.
(3) Final agency action. A Final Decision and Order issued under
Sec. 38.112(b) constitutes final agency action.
Sec. 38.113 Suspension, termination, withholding, denial, or
discontinuation of financial assistance.
Any action to suspend, terminate, deny or discontinue WIOA Title I
financial assistance must be limited to the particular political
entity, or part thereof, or other recipient (or grant applicant) as to
which the finding has been made, and must be limited in its effect to
the particular program, or part thereof, in which the noncompliance has
been found. No order suspending, terminating, denying or discontinuing
WIOA Title I financial assistance will become effective until:
(a) The Director has issued a Final Determination under Sec. 38.95
or Notification of Breach of Conciliation Agreement under Sec. 38.98;
(b) There has been an express finding on the record, after
opportunity for a hearing, of failure by the grant applicant or
recipient to comply with a requirement imposed by or under the
nondiscrimination and equal opportunity provisions of WIOA or this
part;
(c) A Final Decision has been issued by the Administrative Review
Board, the Administrative Law Judge's decision and order has become the
Final Agency Decision, or the Final Determination or Notification of
Conciliation Agreement has been deemed the Final Agency Decision, under
Sec. 38.112(b); and
(d) The expiration of 30 days after the Secretary has filed, with
the committees of Congress having legislative jurisdiction over the
program involved, a full written report of the circumstances and
grounds for such action.
Sec. 38.114 Distribution of WIOA Title I financial assistance to an
alternate recipient.
When the Department withholds funds from a recipient or grant
applicant under these regulations, the Secretary may disburse the
withheld funds directly to an alternate recipient. In such case, the
Secretary will require any alternate recipient to demonstrate:
(a) The ability to comply with these regulations; and
(b) The ability to achieve the goals of the nondiscrimination and
equal opportunity provisions of WIOA.
Sec. 38.115 Post-termination proceedings.
(a) A grant applicant or recipient adversely affected by a Final
Decision and Order issued under Sec. 38.112(b) will be restored, where
appropriate, to full eligibility to receive WIOA Title I financial
assistance if the grant applicant or recipient satisfies the terms and
conditions of the Final Decision and Order and brings itself into
compliance with the nondiscrimination and equal opportunity provisions
of WIOA and this part.
(b) A grant applicant or recipient adversely affected by a Final
Decision and Order issued under Sec. 38.112(b) may at any time
petition the Director to restore its eligibility to receive WIOA Title
I financial assistance. A copy of the petition must be served on the
parties to the original proceeding that led to the Final Decision and
Order. The petition must be supported by information showing the
actions taken by the grant applicant or recipient to bring itself into
compliance. The grant applicant or recipient has the burden of
demonstrating that it has satisfied the requirements of paragraph (a)
of this section. While proceedings under this section are pending,
sanctions imposed by the Final Decision and Order under Sec. Sec.
38.112(b)(1) and (2) must remain in effect.
(c) The Director must issue a written decision on the petition for
restoration.
(1) If the Director determines that the grant applicant or
recipient has not brought itself into compliance, he or she must issue
a decision denying the petition.
(2) Within 30 days of its receipt of the Director's decision, the
recipient or grant applicant may file a petition for review of the
decision by the Administrative Review Board, setting forth the grounds
for its objection to the Director's decision.
(3) The petition must be served on the Director and on the Office
of the Solicitor, Civil Rights and Labor-Management Division.
(4) The Director may file a response to the petition within 14
days.
(5) The Administrative Review Board must issue the final agency
decision denying or granting the recipient's or grant applicant's
request for restoration to eligibility.
[FR Doc. 2016-01213 Filed 1-25-16; 8:45 am]
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