[Title 28 CFR 42]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 28 - JUDICIAL ADMINISTRATION]
[Chapter I - DEPARTMENT OF JUSTICE]
[Part 42 - NONDISCRIMINATION; EQUAL EMPLOYMENT OPPORTUNITY; POLICIES AND PROCEDURES]
[From the U.S. Government Printing Office]
28JUDICIAL ADMINISTRATION12002-07-012002-07-01falseNONDISCRIMINATION; EQUAL EMPLOYMENT OPPORTUNITY; POLICIES AND PROCEDURES42PART 42JUDICIAL ADMINISTRATIONDEPARTMENT OF JUSTICE
PART 42--NONDISCRIMINATION; EQUAL EMPLOYMENT OPPORTUNITY; POLICIES AND PROCEDURES--Table of Contents
Subpart A--Equal Employment Opportunity Within the Department of Justice
Sec.
42.1 Policy.
42.2 Designation of Director of Equal Employment Opportunity and
Complaint Adjudication Officer.
42.3 Responsibility for Department of Justice Equal Opportunity
Recruitment Program.
Subpart B [Reserved]
Subpart C--Nondiscrimination in Federally Assisted Programs--
Implementation of Title VI of the Civil Rights Act of 1964
42.101 Purpose.
42.102 Definitions.
42.103 Application of this subpart.
42.104 Discrimination prohibited.
42.105 Assurance required.
42.106 Compliance information.
42.107 Conduct of investigations.
42.108 Procedure for effecting compliance.
42.109 Hearings.
42.110 Decisions and notices.
42.111 Judicial review.
42.112 Effect on other regulations; forms and instructions.
Appendix A to Subpart C--Federal Financial Assistance Administered by
the Department of Justice to Which This Subpart Applies
Subpart D--Nondiscrimination in Federally Assisted Programs--
Implementation of Section 815(c)(1) of the Justice System Improvement
Act of 1979
42.201 Purpose and application.
42.202 Definitions.
42.203 Discrimination prohibited.
42.204 Applicants' obligations.
42.205 Complaint investigation.
42.206 Compliance reviews.
42.207 Compliance information.
42.208 Notice of noncompliance.
42.209 Compliance secured.
42.210 Compliance not secured.
42.211 Resumption of suspended funds.
42.212 Preliminary hearing.
42.213 Full hearing.
42.214 Judicial review.
42.215 Other actions authorized under the JSIA.
Appendix A to Subpart D--Commentary
Subpart E--Equal Employment Opportunity Program Guidelines
42.301 Purpose.
42.302 Application.
42.303 Evaluation of employment opportunities.
42.304 Written equal employment opportunity program.
42.305 Recordkeeping and certification.
42.306 Guidelines.
42.307 Obligations of recipients.
42.308 Noncompliance.
Subpart F--Coordination of Enforcement of Non-discrimination in
Federally Assisted Programs
42.401 Purpose and application.
42.402 Definitions.
42.403 Agency regulations.
42.404 Guidelines.
42.405 Public dissemination of title VI information.
42.406 Data and information collection.
42.407 Procedures to determine compliance.
42.408 Complaint procedures.
42.409 Employment practices.
42.410 Continuing State programs.
42.411 Methods of resolving noncompliance.
42.412 Coordination.
42.413 Interagency cooperation and delegations.
42.414 Federal agency staff.
42.415 Federal agency title VI enforcement plan.
[[Page 762]]
Subpart G--Nondiscrimination Based on Handicap in Federally Assisted
Programs--Implementation of Section 504 of the Rehabilitation Act of
1973
General Provisions
42.501 Purpose.
42.502 Application.
42.503 Discrimination prohibited.
42.504 Assurances required.
42.505 Administrative requirements for recipients.
Employment
42.510 Discrimination prohibited.
42.511 Reasonable accommodation.
42.512 Employment criteria.
42.513 Preemployment inquiries.
Program Accessibility
42.520 Discrimination prohibited.
42.521 Existing facilities.
42.522 New construction.
Procedures
42.530 Procedures.
Definitions
42.540 Definitions.
Appendixes to Subpart G
Appendix A--Federal Financial Assistance Administered by the Department
of Justice to Which This Subpart Applies
Appendix B [Reserved]
Appendix C--Department Regulations Under Title VI of the Civil Rights
Act of 1964 (28 CFR 42.106-42.110) Which Apply to This Subpart
[Note]
Appendix D--OJARS' Regulations Under the Omnibus Crime Control and Safe
Streets Act, as Amended, Which Apply to This Subpart (28 CFR
42.205 and 42.206) [Note]
Subpart H--Procedures for Complaints of Employment Discrimination Filed
Against Recipients of Federal Financial Assistance
42.601 Purpose and application.
42.602 Exchange of information.
42.603 Confidentiality.
42.604 Standards for investigation, reviews and hearings.
42.605 Agency processing of complaints of employment discrimination.
42.606 General rules concerning EEOC action on complaints.
42.607 EEOC dismissals of complaints.
42.608 Agency action on complaints dismissed by EEOC.
42.609 EEOC reasonable cause determination and conciliation efforts.
42.610 Agency enforcement of unresolved complaints.
42.611 EEOC negotiated settlements and conciliation agreements.
42.612 Interagency consultation.
42.613 Definitions.
Subpart I--Nondiscrimination on the Basis of Age in Federally Assisted
Programs and Activities; Implementation of the Age Discrimination Act of
1975
General Provisions
42.700 Purpose.
42.701 Application.
42.702 Definitions.
42.703-42.709 [Reserved]
Standards for Determining Age Discrimination
42.710 General prohibition.
42.711 Exception; authorized by law.
42.712 Exception; normal operation or statutory objective.
42.713 Exception; reasonable factors other than age.
42.714 Special benefits.
42.715 Burden of proof regarding exceptions.
42.716-42.719 [Reserved]
Duties of Recipients
42.720 General responsibility.
42.721 Notice to subrecipients.
42.722 Recipient assessment of age distinctions.
42.723 Compliance information.
42.724 Remedial and affirmative action.
42.725 Assurance of compliance.
42.726-42.729 [Reserved]
Compliance Procedures
42.730 Compliance reviews.
42.731 Complaints.
42.732 Prohibition against intimidation.
42.733 Enforcement procedures.
42.734 Alternative funding.
42.735 Judicial review.
42.736 Private lawsuits.
42.737-42.799 [Reserved]
Appendix A to Subpart I of Part 42--Federal Financial Assistance
Administered by the Department of Justice to Which This
Subpart Applies
Appendix B to Subpart I of Part 42--Age Distinctions in Federal Statutes
or Regulations Affecting Financial Assistance Administered by
the Department of Justice
[[Page 763]]
Subpart A--Equal Employment Opportunity Within the Department of Justice
Authority: 5 U.S.C. 301, 28 U.S.C. 509, 510; E.O. 11246, 3 CFR 1964-
1965 Comp., p. 339; E.O. 11478, 3 CFR 1966-1970 Comp., p. 803.
Sec. 42.1 Policy.
(a) It is the policy of the Department of Justice to seek to
eliminate discrimination on the basis of race, color, religion, sex,
sexual orientation, national origin, marital status, political
affiliation, age, or physical or mental handicap in employment within
the Department and to assure equal employment opportunity for all
employees and applicants for employment.
(b) No person shall be subject to retaliation for opposing any
practice prohibited by the above policy or for participating in any
stage of administrative or judicial proceedings related to this policy.
[Order No. 2037-96, 61 FR 34730, July 3, 1996; 61 FR 43119, Aug. 20,
1996]
Sec. 42.2 Designation of Director of Equal Employment Opportunity and Complaint Adjudication Officer.
(a) In compliance with the regulations of the Equal Employment
Opportunity Commission (29 CFR 1613.204(c)), the Assistant Attorney
General for Administration is hereby designated as Director of Equal
Employment Opportunity for the Department of Justice with
responsibilities for administration of the Equal Employment Opportunity
Program within the Department. The Director of Equal Employment
Opportunity shall publish and implement the Department of Justice
regulations, which shall include a positive action program to eliminate
causes of discrimination and shall include procedures for processing
complaints of discrimination within the Department.
(b) The Assistant Attorney General in charge of the Civil Rights
Division shall appoint a Complaint Adjudication Officer, who shall
render final decisions for the Department of Justice on complaints of
discrimination filed by employees and applicants for employment in the
Department pursuant to the Department's Equal Employment Opportunity
Regulations. In rendering decisions, the Complaint Adjudication Officer
shall order such remedial action as may be appropriate, whether or not
there is a finding of discrimination, but in cases where no
discrimination is found any remedial action ordered shall have the prior
approval of the Assistant Attorney General in charge of the Civil Rights
Division, who shall consult with the Deputy Attorney General on the
matter.
[Order No. 420-69, 34 FR 12281, July 25, 1969, as amended by Order No.
721-77, 42 FR 25725, May 19, 1977; Order No. 731-77, 42 FR 35646, July
11, 1977; Order No. 899-80, 45 FR 43703, June 30, 1980; Order No. 960-
81, 46 FR 52357, Oct. 27, 1981]
Sec. 42.3 Responsibility for Department of Justice Equal Opportunity Recruitment Program.
The Assistant Attorney General for Administration shall be
responsible for establishing and implementing the Department of Justice
Equal Opportunity Recruitment Program under 5 U.S.C. 7201.
[Order No. 865-79, 44 FR 77157, Dec. 31, 1979, as amended by Order No.
960-81, 46 FR 52357, Oct. 27, 1981]
Subpart B [Reserved]
Subpart C--Nondiscrimination in Federally Assisted Programs--
Implementation of Title VI of the Civil Rights Act of 1964 1
---------------------------------------------------------------------------
1 See also 28 CFR 50.3. Guidelines for enforcement of Title
VI, Civil Rights Act.
Authority: 42 U.S.C. 2000d-2000d-4; E.O. 12250, 45 FR 72995, 3 CFR,
---------------------------------------------------------------------------
1980 Comp., p. 298.
Source: Order No. 365-66, 31 FR 10265, July 29, 1966, unless
otherwise noted.
Sec. 42.101 Purpose.
The purpose of this subpart is to implement the provisions of title
VI of the Civil Rights Act of 1964, 78 Stat. 252 (hereafter referred to
as the ``Act''), to the end that no person in the United States shall,
on the ground of race, color, or national origin, be excluded from
participation in, be denied the benefits of, or otherwise be subjected
[[Page 764]]
to discrimination under any program or activity receiving Federal
financial assistance from the Department of Justice.
Sec. 42.102 Definitions.
As used in this subpart--
(a) The term responsible Department official with respect to any
program receiving Federal financial assistance means the Attorney
General, or Deputy Attorney General, or such other official of the
Department as has been assigned the principal responsibility within the
Department for the administration of the law extending such assistance.
(b) The term United States includes the several States of the United
States, the District of Columbia, the Commonwealth of Puerto Rico, the
Virgin Islands, American Samoa, Guam, Wake Island, the Canal Zone, and
all other territories and possessions of the United States, and the term
State includes any one of the foregoing.
(c) The term Federal financial assistance includes:
(1) Grants and loans of Federal funds,
(2) The grant or donation of Federal property and interests in
property,
(3) The detail of Federal personnel,
(4) The sale and lease of, and the permission to use (on other than
a casual or transient basis), Federal property or any interest in such
property without consideration or at a nominal consideration, or at a
consideration which is reduced for the purpose of assisting the
recipient, or in recognition of the public interest to be served by such
sale or lease to the recipient, and
(5) Any Federal agreement, arrangement, or other contract which has
as one of its purposes the provision of assistance.
(d) The term program includes any program, project, or activity for
the provision of services, financial aid, or other benefits to
individuals (including education or training, rehabilitation, or other
services or disposition, whether provided through employees of the
recipient of Federal financial assistance or provided by others through
contracts or other arrangements with the recipient, and including work
opportunities and cash or loan or other assistance to individuals), or
for the provision of facilities for furnishing services, financial aid,
or other benefits to individuals. The disposition, services, financial
aid, or benefits provided under a program receiving Federal financial
assistance shall be deemed to include any disposition, services,
financial aid, or benefits provided with the aid of Federal financial
assistance or with the aid of any non-Federal funds, property, or other
resources required to be expended or made available for the program to
meet matching requirements or other conditions which must be met in
order to receive the Federal financial assistance, and to include any
disposition, services, financial aid, or benefits provided in or through
a facility provided with the aid of Federal financial assistance or such
non-Federal resources.
(e) The term facility includes all or any portion of structures,
equipment, or other real or personal property or interests therein, and
the provision of facilities includes the construction, expansion,
renovation, remodeling, alteration, or acquisition of facilities.
(f) The term recipient means any State, political subdivision of any
State, or instrumentality of any State or political subdivision, any
public or private agency, institution, or organization, or other entity,
or any individual, in any State, to whom Federal financial assistance is
extended, directly or through another recipient, for any program,
including any successor, assign, or transferee thereof, but such term
does not include any ultimate beneficiary under any such program.
(g) The term primary recipient means any recipient which is
authorized or required to extend Federal financial assistance to another
recipient for the purpose of carrying out a program.
(h) The term applicant means one who submits an application,
request, or plan required to be approved by a responsible Department
official, or by a primary recipient, as a condition to eligibility for
Federal financial assistance, and the term application means such an
application, request, or plan.
(i) The term academic institution includes any school, academy,
college, university, institute, or other association, organization, or
agency conducting or administering any program,
[[Page 765]]
project, or facility designed to educate or train individuals.
(j) The term disposition means any treatment, handling, decision,
sentencing, confinement, or other prescription of conduct.
(k) The term governmental organization means the political
subdivision for a prescribed geographical area.
[Order No. 365-66, 31 FR 10265, July 29, 1966, as amended by Order No.
699-77, 42 FR 15315, Mar. 21, 1977; Order No. 960-81, 46 FR 52357, Oct.
27, 1981]
Sec. 42.103 Application of this subpart.
This subpart applies to any program for which Federal financial
assistance is authorized under a law administered by the Department. It
applies to money paid, property transferred, or other Federal financial
assistance extended under any such program after the date of this
subpart pursuant to an application whether approved before or after such
date. This subpart does not apply to:
(a) Any Federal financial assistance by way of insurance or guaranty
contracts, or
(b) Employment practices except to the extent described in
Sec. 42.104(c).
[Order No. 365-66, 31 FR 10265, July 29, 1966, as amended by Order No.
519-73, 38 FR 17955, July 5, 1973]
Sec. 42.104 Discrimination prohibited.
(a) General. No person in the United States shall, on the ground of
race, color, or national origin be excluded from participation in, be
denied the benefits of, or be otherwise subjected to discrimination
under any program to which this subpart applies.
(b) Specific discriminatory actions prohibited. (1) A recipient
under any program to which this subpart applies may not, directly or
through contractual or other arrangements, on the ground of race, color,
or national origin:
(i) Deny an individual any disposition, service, financial aid, or
benefit provided under the program;
(ii) Provide any disposition, service, financial aid, or benefit to
an individual which is different, or is provided in a different manner,
from that provided to others under the program;
(iii) Subject an individual to segregation or separate treatment in
any matter related to his receipt of any disposition, service, financial
aid, or benefit under the program;
(iv) Restrict an individual in any way in the enjoyment of any
advantage or privilege enjoyed by others receiving any disposition,
service, financial aid, or benefit under the program;
(v) Treat an individual differently from others in determining
whether he satisfies any admission, enrollment, quota, eligibility,
membership, or other requirement or condition which individuals must
meet in order to be provided any disposition, service, financial aid,
function or benefit provided under the program; or
(vi) Deny an individual an opportunity to participate in the program
through the provision of services or otherwise or afford him an
opportunity to do so which is different from that afforded others under
the program (including the opportunity to participate in the program as
an employee but only to the extent set forth in paragraph (c) of this
section).
(vii) Deny a person the opportunity to participate as a member of a
planning or advisory body which is an integral part of the program.
(2) A recipient, in determining the type of disposition, services,
financial aid, benefits, or facilities which will be provided under any
such program, or the class of individuals to whom, or the situations in
which, such will be provided under any such program, or the class of
individuals to be afforded an opportunity to participate in any such
program, may not, directly or through contractual or other arrangements,
utilize criteria or methods of administration which have the effect of
subjecting individuals to discrimination because of their race, color,
or national origin, or have the effect of defeating or substantially
impairing accomplishment of the objectives of the program as respects
individuals of a particular race, color, or national origin.
(3) In determining the site or location of facilities, a recipient
or applicant may not make selections with the purpose or effect of
excluding individuals from, denying them the benefits
[[Page 766]]
of, or subjecting them to discrimination under any program to which this
subpart applies, on the ground of race, color, or national origin; or
with the purpose or effect of defeating or substantially impairing the
accomplishment of the objectives of the Act or this subpart.
(4) For the purposes of this section the disposition, services,
financial aid, or benefits provided under a program receiving Federal
financial assistance shall be deemed to include any portion of any
program or function or activity conducted by any recipient of Federal
financial assistance which program, function, or activity is directly or
indirectly improved, enhanced, enlarged, or benefited by such Federal
financial assistance or which makes use of any facility, equipment or
property provided with the aid of Federal financial assistance.
(5) The enumeration of specific forms of prohibited discrimination
in this paragraph and in paragraph (c) of this section does not limit
the generality of the prohibition in paragraph (a) of this section.
(6)(i) In administering a program regarding which the recipient has
previously discriminated against persons on the ground of race, color,
or national origin, the recipient must take affirmative action to
overcome the effects of prior discrimination.
(ii) Even in the absence of such prior discrimination, a recipient
in administering a program may take affirmative action to overcome the
effects of conditions which resulted in limiting participation by
persons of a particular race, color, or national origin.
(c) Employment practices. (1) Whenever a primary objective of the
Federal financial assistance to a program to which this subpart applies,
is to provide employment, a recipient of such assistance may not
(directly or through contractual or other arrangements) subject any
individual to discrimination on the ground of race, color, or national
origin in its employment practices under such program (including
recruitment or recruitment advertising, employment, layoff, or
termination, upgrading, demotion, or transfer, rates of pay or other
forms of compensation, and use of facilities). That prohibition also
applies to programs as to which a primary objective of the Federal
financial assistance is (i) to assist individuals, through employment,
to meet expenses incident to the commencement or continuation of their
education or training, or (ii) to provide work experience which
contributes to the education or training of the individuals involved.
The requirements applicable to construction employment under any such
program shall be those specified in or pursuant to part III of Executive
Order 11246 or any Executive order which supersedes it.
(2) In regard to Federal financial assistance which does not have
providing employment as a primary objective, the provisions of paragraph
(c)(1) of this section apply to the employment practices of the
recipient if discrimination on the ground of race, color, or national
origin in such employment practices tends, on the ground of race, color,
or national origin, to exclude persons from participation in, to deny
them the benefits of or to subject them to discrimination under the
program receiving Federal financial assistance. In any such case, the
provisions of paragraph (c)(1) of this section shall apply to the extent
necessary to assure equality of opportunity to and nondiscriminatory
treatment of beneficiaries.
[Order No. 365-66, 31 FR 10265, July 29, 1966, as amended by Order No.
519-73, 38 FR 17955, July 5, 1973]
Sec. 42.105 Assurance required.
(a) General. (1) Every application for Federal financial assistance
to carry out a program to which this subpart applies, and every
application for Federal financial assistance to provide a facility
shall, as a condition to its approval and the extension of any Federal
financial assistance pursuant to the application, contain or be
accompanied by an assurance that the program will be conducted or the
facility operated in compliance with all requirements imposed by or
pursuant to this subpart. In the case where the Federal financial
assistance is to provide or is in the form of personal property, or real
property or interest therein or structures thereon, such assurance shall
obligate the recipient, or, in
[[Page 767]]
the case of a subsequent transfer, the transferee, for the period during
which the property is used for a purpose for which the Federal financial
assistance is extended or for another purpose involving the provision of
similar services or benefits, or for as long as the recipient retains
ownership or possession of the property, whichever is longer. In all
other cases, such assurance shall obligate the recipient for the period
during which Federal financial assistance is extended pursuant to the
application. The responsible Department official shall specify the form
of the foregoing assurances for each program, and the extent to which
like assurances will be required of subgrantees, contractors, and
subcontractors, transferees, successors in interest, and other
participants in the program. Any such assurance shall include provisions
which give the United States a right to seek its judicial enforcement.
(2) In the case of real property, structures or improvements
thereon, or interest therein, which was acquired through a program of
Federal financial assistance, or in the case where Federal financial
assistance is provided in the form of a transfer of real property or
interest therein from the Federal Government, the instrument effecting
or recording the transfer shall contain a convenant running with the
land assuring nondiscrimination for the period during which the real
property is used for a purpose for which the Federal financial
assistance is extended or for another purpose involving the provision of
similar services or benefits. Where no transfer of property is involved,
but property is improved under a program of Federal financial
assistance, the recipient shall agree to include such a covenant in any
subsequent transfer of such property. Where the property is obtained
from the Federal Government, such covenant may also include a condition
coupled with a right to be reserved by the Department to revert title to
the property in the event of a breach of the covenant where, in the
discretion of the responsible Department official, such a condition and
right of reverter are appropriate to the program under which the real
property is obtained and to the nature of the grant and the grantee.
(b) Assurances from government agencies. In the case of any
application from any department, agency, or office of any State or local
government for Federal financial assistance for any specified purpose,
the assurance required by this section, shall extend to any other
department, agency, or office of the same governmental unit if the
policies of such other department, agency, or office will substantially
affect the project for which Federal financial assistance is requested.
That requirement may be waived by the responsible Department official if
the applicant establishes, to the satisfaction of the responsible
Department official, that the practices in other agencies of parts or
programs of the governmental unit will in no way affect:
(1) Its practices in the program for which Federal financial
assistance is sought, or
(2) The beneficiaries of or participants in or persons affected by
such program, or
(3) Full compliance with the subpart as respects such program.
(c) Assurance from academic and other institutions. (1) In the case
of any application for Federal financial assistance for any purpose to
an academic institution, the assurance required by this section shall
extend to admission practices and to all other practices relating to the
treatment of students.
(2) The assurance required with respect to an academic institution,
detention or correctional facility, or any other institution or
facility, insofar as the assurance relates to the institution's
practices with respect to admission or other treatment of individuals as
students, patients, wards, inmates, persons subject to control, or
clients of the institution or facility or to the opportunity to
participate in the provision of services, disposition, treatment, or
benefits to such individuals, shall be applicable to the entire
institution or facility unless the applicant establishes, to the
satisfaction of the responsible Department official, that the practices
in designated parts or programs of the institution or facility will in
no way affect its practices in the program of the institution or
facility for which Federal financial assistance
[[Page 768]]
is sought, or the beneficiaries of or participants in such program. If,
in any such case, the assistance sought is for the construction of a
facility or part of a facility, the assurance shall in any event extend
to the entire facility and to facilities operated in connection
therewith.
(d) Continuing State programs. Any State or State agency
administering a program which receives continuing Federal financial
assistance subject to this regulation shall as a condition for the
extension of such assistance:
(1) Provide a statement that the program is (or, in the case of a
new program, will be) conducted in compliance with this regulation, and
(2) Provide for such methods of administration as are found by the
responsible Department official to give reasonable assurance that the
primary recipient and all other recipients of Federal financial
assistance under such program will comply with this regulation.
[Order No. 365-66, 31 FR 10265, July 29, 1966, as amended by Order No.
519-73, 38 FR 17955, July 5, 1973]
Sec. 42.106 Compliance information.
(a) Cooperation and assistance. Each responsible Department official
shall, to the fullest extent practicable, seek the cooperation of
recipients in obtaining compliance with this subpart and shall provide
assistance and guidance to recipients to help them comply voluntarily
with this subpart.
(b) Compliance reports. Each recipient shall keep such records and
submit to the responsible Department official or his designee timely,
complete, and accurate compliance reports at such times, and in such
form and containing such information, as the responsible Department
official or his designee may determine to be necessary to enable him to
ascertain whether the recipient has complied or is complying with this
subpart. In general, recipients should have available for the Department
racial and ethnic data showing the extent to which members of minority
groups are beneficiaries of federally assisted programs. In the case of
any program under which a primary recipient extends Federal financial
assistance to any other recipient or subcontracts with any other person
or group, such other recipient shall also submit such compliance reports
to the primary recipient as may be necessary to enable the primary
recipient to carry out its obligations under this subpart.
(c) Access to sources of information. Each recipient shall permit
access by the responsible Department official or his designee during
normal business hours to such of its books, records, accounts, and other
sources of information, and its facilities, as may be pertinent to
ascertain compliance with this subpart. Whenever any information
required of a recipient is in the exclusive possession of any other
agency, institution, or person and that agency, institution, or person
fails or refuses to furnish that information, the recipient shall so
certify in its report and set forth the efforts which it has made to
obtain the information.
(d) Information to beneficiaries and participants. Each recipient
shall make available to participants, beneficiaries, and other
interested persons such information regarding the provisions of this
subpart and its applicability to the program under which the recipient
receives Federal financial assistance, and make such information
available to them in such manner, as the responsible Department official
finds necessary to apprise such persons of the protections against
discrimination assured them by the Act and this subpart.
[Order No. 365-66, 31 FR 10265, July 29, 1966, as amended by Order No.
519-73, 38 FR 17955, July 5, 1973]
Sec. 42.107 Conduct of investigations.
(a) Periodic compliance reviews. The responsible Department official
or his designee shall from time to time review the practices of
recipients to determine whether they are complying with this subpart.
(b) Complaints. Any person who believes himself or any specific
class of individuals to be subjected to discrimination prohibited by
this subpart may by himself or by a representative file with the
responsible Department official or his designee a written complaint. A
complaint must be filed not later than 180 days from the date of the
[[Page 769]]
alleged discrimination, unless the time for filing is extended by the
responsible Department official or his designee.
(c) Investigations. The responsible Department official or his
designee will make a prompt investigation whenever a compliance review,
report, complaint, or any other information indicates a possible failure
to comply with this subpart. The investigation should include, whenever
appropriate, a review of the pertinent practices and policies of the
recipient, the circumstances under which the possible noncompliance with
this subpart occurred, and other factors relevant to a determination as
to whether the recipient has failed to comply with this subpart.
(d) Resolution of matters. (1) If an investigation pursuant to
paragraph (c) of this section indicates a failure to comply with this
subpart, the responsible Department official or his designee will so
inform the recipient and the matter will be resolved by informal means
whenever possible. If it has been determined that the matter cannot be
resolved by informal means, action will be taken as provided for in
Sec. 42.108.
(2) If an investigation does not warrant action pursuant to
paragraph (d)(1) of this section, the responsible Department official or
his designee will so inform the recipient and the complainant, if any,
in writing.
(e) Intimidatory or retaliatory acts prohibited. No recipient or
other person shall intimidate, threaten, coerce, or discriminate against
any individual for the purpose of interfering with any right or
privilege secured by section 601 of the Act or this subpart, or because
he has made a complaint, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under this subpart.
The identity of complainants shall be kept confidential except to the
extent necessary to carry out the purpose of this subpart, including the
conduct of any investigation, hearing, or judicial proceeding arising
thereunder.
[Order No. 365-66, 31 FR 10265, July 29, 1966, as amended by Order No.
519-73, 38 FR 17955, July 5, 1973]
Sec. 42.108 Procedure for effecting compliance.
(a) General. If there appears to be a failure or threatened failure
to comply with this subpart and if the noncompliance or threatened
noncompliance cannot be corrected by informal means, the responsible
Department official may suspend or terminate, or refuse to grant or
continue, Federal financial assistance, or use any other means
authorized by law, to induce compliance with this subpart. Such other
means include, but are not limited to:
(1) Appropriate proceedings brought by the Department to enforce any
rights of the United States under any law of the United States
(including other titles of the Act), or any assurance or other
contractual undertaking, and
(2) Any applicable proceeding under State or local law.
(b) Noncompliance with assurance requirement. If an applicant or
recipient fails or refuses to furnish an assurance required under
Sec. 42.105, or fails or refuses to comply with the provisions of the
assurance it has furnished, or otherwise fails or refuses to comply with
any requirement imposed by or pursuant to title VI or this subpart,
Federal financial assistance may be suspended, terminated, or refused in
accordance with the procedures of title VI and this subpart. The
Department shall not be required to provide assistance in such a case
during the pendency of administrative proceedings under this subpart,
except that the Department will continue assistance during the pendency
of such proceedings whenever such assistance is due and payable pursuant
to a final commitment made or an application finally approved prior to
the effective date of this subpart.
(c) Termination of or refusal to grant or to continue Federal
financial assistance. No order suspending, terminating, or refusing to
grant or continue Federal financial assistance shall become effective
until:
(1) The responsible Department official has advised the applicant or
recipient of his failure to comply and has determined that compliance
cannot be secured by voluntary means,
(2) There has been an express finding on the record, after
opportunity for
[[Page 770]]
hearing, of a failure by the applicant or recipient to comply with a
requirement imposed by or pursuant to this subpart,
(3) The action has been approved by the Attorney General pursuant to
Sec. 42.110, and
(4) The expiration of 30 days after the Attorney General has filed
with the committee of the House and the committee of the Senate having
legislative jurisdiction over the program involved, a full written
report of the circumstances and the grounds for such action.
Any action to suspend or terminate or to refuse to grant or to continue
Federal financial assistance shall be limited to the particular
political entity, or part thereof, or other applicant or recipient as to
whom such a finding has been made and shall be limited in its effect to
the particular program, or part thereof, in which such noncompliance has
been so found.
(d) Other means authorized by law. No action to effect compliance by
any other means authorized by law shall be taken until:
(1) The responsible Department official has determined that
compliance cannot be secured by voluntary means,
(2) The action has been approved by the Attorney General, and
(3) The recipient or other person has been notified of its failure
to comply and of the action to be taken to effect compliance.
Sec. 42.109 Hearings.
(a) Opportunity for hearing. Whenever an opportunity for a hearing
is required by Sec. 42.108(c), reasonable notice shall be given by
registered or certified mail, return receipt requested, to the affected
applicant or recipient. That notice shall advise the applicant or
recipient of the action proposed to be taken, the specific provision
under which the proposed action against it is to be taken, and the
matters of fact or law asserted as the basis for that action. The notice
shall (1) Fix a date, not less than 20 days after the date of such
notice, within which the applicant or recipient may request that the
responsible Department official schedule the matter for hearing, or (2)
advise the applicant or recipient that a hearing concerning the matter
in question has been scheduled and advise the applicant or recipient of
the place and time of that hearing. The time and place so fixed shall be
reasonable and shall be subject to change for cause. The complainant, if
any, shall be advised of the time and place of the hearing. An applicant
or recipient may waive a hearing and submit written information and
argument for the record. The failure of an applicant or recipient to
request a hearing under this paragraph or to appear at a hearing for
which a date has been set shall be deemed to be a waiver of the right to
a hearing afforded by section 602 of the Act and Sec. 42.108(c) and
consent to the making of a decision on the basis of such information as
is available.
(b) Time and place of hearing. Hearings shall be held at the offices
of the Department in Washington, DC, at a time fixed by the responsible
Department official, unless he determines that the convenience of the
applicant or recipient or of the Department requires that another place
be selected. Hearings shall be held before the responsible Department
official or, at his discretion, before a hearing examiner designated in
accordance with 5 U.S.C. 3105 and 3344 (section 11 of the Administrative
Procedure Act).
(c) Right to counsel. In all proceedings under this section, the
applicant or recipient and the Department shall have the right to be
represented by counsel.
(d) Procedures, evidence, and record. (1) The hearing, decision, and
any administrative review thereof shall be conducted in conformity with
5 U.S.C. 554-557 (sections 5-8 of the Administrative Procedure Act), and
in accordance with such rules of procedure as are proper (and not
inconsistent with this section) relating to the conduct of the hearing,
giving of notices subsequent to those provided for in paragraph (a) of
this section, taking of testimony, exhibits, arguments and briefs,
requests for findings, and other related matters. Both the Department
and the applicant or recipient shall be entitled to introduce all
relevant evidence on the issues as stated in the notice for hearing or
as determined by the officer conducting the hearing.
[[Page 771]]
(2) Technical rules of evidence shall not apply to hearings
conducted pursuant to this subpart, but rules or principles designed to
assure production of the most credible evidence available and to subject
testimony to test by cross-examination shall be applied whenever
reasonably necessary by the officer conducting the hearing. The hearing
officer may exclude irrelevant, immaterial, or unduly repetitious
evidence. All documents and other evidence offered or taken for the
record shall be open to examination by the parties and opportunity shall
be given to refute facts and arguments advanced on either side of the
issues. A transcript shall be made of the oral evidence except to the
extent the substance thereof is stipulated for the record. All decisions
shall be based upon the hearing record and written findings shall be
made.
(e) Consolidated or joint hearings. In cases in which the same or
related facts are asserted to constitute noncompliance with this subpart
with respect to two or more programs to which this subpart applies, or
noncompliance with this subpart and the regulations of one or more other
Federal Departments or agencies issued under title VI of the Act, the
Attorney General may, by agreement with such other departments or
agencies, whenever appropriate, provide for the conduct of consolidated
or joint hearings, and for the application to such hearings of rules of
procedure not inconsistent with this subpart. Final decisions in such
cases, insofar as this subpart is concerned, shall be made in accordance
with Sec. 42.110.
[Order No. 365-66, 31 FR 10265, July 29, 1966, as amended by Order No.
519-73, 38 FR 17955, July 5, 1973]
Sec. 42.110 Decisions and notices.
(a) Decisions by person other than the responsible Department
official. If the hearing is held by a hearing examiner, such hearing
examiner shall either make an initial decision, if so authorized, or
certify the entire record, including his recommended findings and
proposed decision, to the responsible Department official for a final
decision, and a copy of such initial decision or certification shall be
mailed to the applicant or recipient. Whenever the initial decision is
made by the hearing examiner, the applicant or recipient may, within 30
days of the mailing of such notice of initial decision, file with the
responsible Department official his exceptions to the initial decision,
with his reasons therefor. In the absence of exceptions, the responsible
Department official may on his own motion, within 45 days after the
initial decision, serve on the applicant or recipient a notice that he
will review the decision. Upon filing of such exceptions, or of such
notice of review, the responsible Department official shall review the
initial decision and issue his own decision thereon including the
reasons therefor. In the absence of either exceptions or a notice of
review the initial decision shall constitute the final decision of the
responsible Department official.
(b) Decisions on the record or on review by the responsible
Department official. Whenever a record is certified to the responsible
Department official for decision or he reviews the decision of a hearing
examiner pursuant to paragraph (a) of this section, or whenever the
responsible Department official conducts the hearing, the applicant or
recipient shall be given a reasonable opportunity to file with him
briefs or other written statements of its contentions, and a copy of the
final decision of the responsible Department official shall be given in
writing to the applicant or recipient and to the complainant, if any.
(c) Decisions on the record whenever a hearing is waived. Whenever a
hearing is waived pursuant to Sec. 42.109(a), a decision shall be made
by the responsible Department official on the record and a copy of such
decision shall be given in writing to the applicant or recipient, and to
the complainant, if any.
(d) Rulings required. Each decision of a hearing officer or
responsible Department official shall set forth his ruling on each
findings, conclusion, or exception presented, and shall identify the
requirement or requirements imposed by or pursuant to this subpart with
which it is found that the applicant or recipient has failed to comply.
(e) Approval by Attorney General. Any final decision of a
responsible Department official (other than the Attorney
[[Page 772]]
General) which provides for the suspension or termination of, or the
refusal to grant or continue Federal financial assistance, or the
imposition of any other sanction available under this subpart or the
Act, shall promptly be transmitted to the Attorney General, who may
approve such decision, vacate it, or remit or mitigate any sanction
imposed.
(f) Content of orders. The final decision may provide for suspension
or termination of, or refusal to grant or continue, Federal financial
assistance, in whole or in part, under the program involved, and may
contain such terms, conditions, and other provisions as are consistent
with, and will effectuate the purposes of, the Act and this subpart,
including provisions designed to assure that no Federal financial
assistance will thereafter be extended under such program to the
applicant or recipient determined by such decision to be in default in
its performance of an assurance given by it pursuant to this subpart, or
to have otherwise failed to comply with this subpart, unless and until,
it corrects its noncompliance and satisfies the responsible Department
official that it will fully comply with this subpart.
(g) Post-termination proceedings. (1) An applicant or recipient
adversely affected by an order issued under paragraph (f) of this
section shall be restored to full eligibility to receive Federal
financial assistance if it satisfies the terms and conditions of that
order for such eligibility or if it brings itself into compliance with
this subpart and provides reasonable assurance that it will fully comply
with this subpart.
(2) Any applicant or recipient adversely affected by an order
entered pursuant to paragraph (f) of this section may at any time
request the responsible Department official to restore fully its
eligibility to receive Federal financial assistance. Any such request
shall be supported by information showing that the applicant or
recipient has met the requirements of paragraph (g)(1) of this section.
If the responsible Department official denies any such request, the
applicant or recipient may submit a request for a hearing in writing,
specifying why it believes such official to have been in error. It shall
thereupon be given an expeditious hearing, with a decision on the
record, in accordance with rules of procedure issued by the responsible
Department official. The applicant or recipient will be restored to such
eligibility if it proves at such a hearing that it satisfied the
requirements of paragraph (g)(1) of this section. While proceedings
under this paragraph are pending, sanctions imposed by the order issued
under paragraph (f) of this section shall remain in effect.
[Order No. 365-66, 31 FR 10265, July 29, 1966, as amended by Order No.
519-73, 38 FR 17956, July 5, 1973]
Sec. 42.111 Judicial review.
Action taken pursuant to section 602 of the Act is subject to
judicial review as provided in section 603 of the Act.
Sec. 42.112 Effect on other regulations; forms and instructions.
(a) Effect on other regulations. Nothing in this subpart shall be
deemed to supersede any provision of subpart A or B of this part or
Executive Order 11114 or 11246, as amended, or of any other regulation
or instruction which prohibits discrimination on the ground of race,
color, or national origin in any program or situation to which this
subpart is inapplicable, or which prohibits discrimination on any other
ground.
(b) Forms and instructions. Each responsible Department official,
other than the Attorney General or Deputy Attorney General, shall issue
and promptly make available to interested persons forms and detailed
instructions and procedures for effectuating this subpart as applied to
programs to which this subpart applies and for which he is responsible.
(c) Supervision and coordination. The Attorney General may from time
to time assign to officials of the Department, or to officials of other
departments or agencies of the Government, with the consent of such
departments or agencies, responsibilities in connection with the
effectuation of the purposes of title VI of the Act and this subpart
(other than responsibility for final decision as provided in
Sec. 42.110(e)), including the achievement of the effective coordination
and maximum uniformity within the Department and
[[Page 773]]
within the Executive Branch of the Government in the application of
title VI of the Act and this subpart to similar programs and in similar
situations. Any action taken, determination made, or requirement imposed
by an official of another Department or agency acting pursuant to an
assignment of responsibility under this subsection shall have the same
effect as though such action had been taken by the Attorney General.
[Order No. 365-66, 31 FR 10265, July 29, 1966, as amended by Order No.
519-73, 38 FR 17956, July 5, 1973; Order No. 568-74, 39 FR 18646, May
29, 1974]
Appendix A to Subpart C of Part 42--Federal Financial Assistance
Administered by the Department of Justice to Which This Subpart Applies
Note: Failure to list a type of Federal assistance in appendix A
shall not mean, if title VI is otherwise applicable, that a program is
not covered.
1. Assistance provided by the Office of Justice Programs (OJP), the
Bureau of Justice Assistance (BJA), the National Institute of Justice
(NIJ), the Bureau of Justice Statistics (BJS), and the Office of
Juvenile Justice and Delinquency Prevention (OJJDP), including block,
formula, and discretionary grants, victim compensation payments, and
victim assistance grants (title I of the Omnibus Crime Control and Safe
Streets Act of 1968, 42 U.S.C. 3701-3796, as amended (Pub. L. 90-351, as
amended by Pub. L. 93-83, Pub. L. 93-415, Pub. L. 94-430, Pub. L. 94-
503, Pub. L. 95-115, Pub. L. 96-157, and Pub. L. 98-473); the Juvenile
Justice and Delinquency Prevention Act of 1974, 42 U.S.C. 5601-5751, as
amended (Pub. L. 93-415, as amended by Pub. L. 94-503, Pub. L. 95-115,
Pub. L. 96-509, and Pub. L. 98-473); the Victims of Crime Act of 1984,
42 U.S.C. 10601-10604, (Pub. L. 98-473)).
2. Assistance provided by the Bureau of Prisons (BOP) including
technical assistance to State and local governments for improvement of
correctional systems; training of law enforcement personnel, and
assistance to legal services programs (18 U.S.C. 4042).
3. Assistance provided by the National Institute of Corrections
(NIC) including training, grants, and technical assistance to State and
local governments, public and private agencies, educational
institutions, organizations and individuals, in the area of corrections
(18 U.S.C. 4351-4353).
4. Assistance provided by the Drug Enforcement Administration (DEA)
including training, joint task forces, information sharing agreements,
cooperative agreements, and logistical support, primarily to State and
local government agencies (21 U.S.C. 871-886).
5. Assistance provided by the Community Relations Service (CRS) in
the form of discretionary grants to public and private agencies under
the Cuban-Haitian Entrant Program (title V of the Refugee Education
Assistance Act of 1980, Pub. L. 96-422).
6. Assistance provided by the U.S. Parole Commission in the form of
workshops and training programs for State and local agencies and public
and private organizations (18 U.S.C. 4204).
7. Assistance provided by the Federal Bureau of Investigation (FBI)
including field training, training through its National Academy,
National Crime Information Center, and laboratory facilities, primarily
to State and local criminal justice agencies (Omnibus Crime Control and
Safe Streets Act of 1968, as amended 42 U.S.C. 3701-3796).
8. Assistance provided by the Immigration and Naturalization Service
(INS) including training and services primarily to State and local
governments under the Alien Status Verification Index (ASVI); and
citizenship textbooks and training primarily to schools and public and
private service agencies (8 U.S.C. 1360, 8 U.S.C. 1457).
9. Assistance provided by the United States Marshals Service through
its Cooperative Agreement Program for improvement of State and local
correctional facilities (Pub. L. 99-180, 99 Stat. 1142).
10. Assistance provided by the Attorney General through the
Equitable Transfer of Forfeited Property Program (Equitable Sharing)
primarily to State and local law enforcement agencies (21 U.S.C.
881(e)).
11. Assistance provided by the Department of Justice participating
agencies that conduct specialized training through the National Center
for State and Local Law Enforcement Training, a component of the Federal
Law Enforcement Training Center (FLETC), Glenco, Georgia (Pursuant to
Memorandum Agreement with the Department of Treasury).
[Order No. 1204-87, 52 FR 24449, July 1, 1987]
Subpart D--Nondiscrimination in Federally Assisted Programs--
Implementation of Section 815(c)(1) of the Justice System Improvement
Act of 1979
Authority: Secs. 802(a), 815(c), and 817(d) of the Justice System
Improvement Act of 1979, 42 U.S.C. 3701, et seq., as amended (Pub. L.
90-351, as amended by Pub. L. 93-83, Pub. L. 93-415, Pub. L. 94-503, and
Pub. L. 96-157 (December 27, 1979) (JSIA) and Sec. 262 of the Juvenile
Justice and Delinquency Prevention Act of 1974, as amended, 42 U.S.C.
5672
[[Page 774]]
(Pub. L. 93-415, as amended by Pub. L. 95-115)).
Source: 45 FR 28705, Apr. 30, 1980, unless otherwise noted.
Sec. 42.201 Purpose and application.
(a) The purpose of this subpart is to implement the provisions of
section 815(c) of the Justice System Improvement Act of 1979 (42 U.S.C.
3789d(c); title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d; and
title IX of the Education Amendments of 1972, 20 U.S.C. 1681, et seq.,
to the end that no person in any State shall on the ground of race,
color, national origin, sex, or religion be excluded from participation
in, be denied the benefits of, be subjected to discrimination under, or
be denied employment in connection with any program or activity funded
in whole or in part with funds made available under either the Justice
System Improvement Act or the Juvenile Justice Act by the Law
Enforcement Assistance Administration, the National Institute of
Justice, or the Bureau of Justice Statistics. These regulations also
implement Executive Order 12138, which requires all Federal agencies
awarding financial assistance to take certain steps to advance women's
business enterprise.
(b) The regulations in this subpart apply to the delivery of
services by, and employment practices of recipients administering,
participating in, or substantially benefiting from any program or
activity receiving Federal financial assistance extended under the
Justice System Improvement Act of 1979, or the Juvenile Justice and
Delinquency Prevention Act of 1974, as amended.
(c) Where a private recipient which receives such assistance through
a unit of government is engaged in prohibited discrimination, the Office
of Justice Assistance, Research, and Statistics will invoke the
enforcement procedures of this subpart (Sec. 42.208, et seq.) against
the appropriate unit of government for failure to enforce the assurances
of nondiscrimination given it by the private recipient pursuant to
Sec. 42.204(a). Where a private recipient receives assistance either
directly from the Law Enforcement Assistance Administration, the
National Institute of Justice, or the Bureau of Justice Statistics or
through another private entity which receives funds directly from one of
those agencies, compliance will be enforced pursuant to section 803(a)
of the Justice System Improvement Act.
Sec. 42.202 Definitions.
(a) JSIA means the Justice System Improvement Act of 1979, Public
Law 96-157, 42 U.S.C. 3701, et seq.
(b) Juvenile Justice Act means title I and II of the Juvenile
Justice and Delinquency Prevention Act of 1974, Public Law 93-415, as
amended by Public Law 94-503 and Public Law 95-115.
(c) OJARS or Office means the Office of Justice Assistance,
Research, and Statistics.
(d) LEAA means the Law Enforcement Assistance Administration.
(e) NIJ means the National Institute of Justice.
(f) BJS means the Bureau of Justice Statistics.
(g) Employment practices means all terms and conditions of
employment including but not limited to, all practices relating to the
screening, recruitment, referral, selection, training, appointment,
promotion, demotion, and assignment of personnel, and includes
advertising, hiring, assignments, classification, discipline, layoff and
termination, upgrading, transfer, leave practices, rate of pay, fringe
benefits, or other forms of pay or credit for services rendered and use
of facilities.
(h) Investigation includes fact-finding efforts and, pursuant to
Sec. 42.205(c)(3), attempts to secure the voluntary resolution of
complaints.
(i) Compliance review means a review of a recipient's selected
employment practices or delivery of services for compliance with the
provisions of section 815(c)(1) of the Justice System Improvement Act,
or this subpart.
(j) Noncompliance means the failure of a recipient to comply with
section 815(c)(1) of the Justice System Improvement Act, or this
subpart.
(k) Program or activity means the operation of the agency or
organizational unit of government receiving or substantially benefiting
from financial assistance awarded, e.g., a police department or
department of corrections.
[[Page 775]]
(l) Pattern or practice means any procedure, custom, or act
affecting or potentially affecting, more than a single individual in a
single or isolated instance.
(m) Religion includes all aspects of religious observance and
practice as well as belief.
(n) Recipient means any State or local unit of government or agency
thereof, and any private entity, institution, or organization, to which
Federal financial assistance is extended directly, or through such
government or agency, but such term does not include any ultimate
beneficiary of such assistance.
(o) State means any State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam,
American Samoa, the Trust Territory of the Pacific Islands, and the
Commonwealth of the Northern Mariana Islands;
(p) Unit of local government means any city, county, township, town,
borough, parish, village or other general purpose political subdivision
of a State, an Indian tribe which performs law enforcement functions as
determined by the Secretary of the Interior, or, for the purpose of
assistance eligiblity, any agency of the District of Columbia government
or the U.S. Government performing law enforcement functions in and for
the District of Columbia;
(q) Combination as applied to States or units of local government
means any grouping or joining together of such States or units for the
purpose of preparing, developing, or implementing a criminal justice
program or project;
(r) Criminal justice council or CJC means the agency designated by a
State to perform the functions listed in section 402(b)(1) of the
Justice System Improvement Act.
(s) All masculine terms such as he, his, and him should be construed
to mean their respective feminine counterparts, she, hers, and her,
where appropriate.
[45 FR 28705, Apr. 30, 1980; 45 FR 54037, Aug. 14, 1980]
Sec. 42.203 Discrimination prohibited.
(a) No person in any State shall on the ground of race, color,
religion, national origin, or sex be excluded from participation in, be
denied the benefits of, be subjected to discrimination under, or denied
employment in connection with any program or activity funded in whole or
in part with funds made available under the JSIA or the Juvenile Justice
Act.
(b) A recipient may not, directly or through contractual or other
arrangements, on the grounds set forth in paragraph (a) of this section:
(1) Deny an individual any disposition, service, financial aid, or
benefit provided under the program;
(2) Provide any disposition, service, financial aid, or benefit to
an individual which is different, or is provided in a different manner,
from that provided to others under the program;
(3) Subject an individual to segregation or separate treatment in
any matter related to his receipt of any disposition, service, financial
aid, or benefit under the program;
(4) Restrict an individual in any way in the enjoyment of any
advantage or privilege enjoyed by others receiving any disposition,
service, or financial aid or benefit under the program;
(5) Treat an individual differently from others in determining
whether he satisfies any admission, enrollment, quota, eligibility,
membership, or other requirement or condition which individuals must
meet in order to be provided any disposition, service, financial aid,
function, or benefit provided under the program;
(6) Deny an individual an opportunity to participate in the program
through the provision of services or otherwise or afford him an
opportunity to do so which is different from that afforded others under
the program;
(7) Deny a person the opportunity to participate as a member of a
planning or advisory body which is an integral part of the program;
(8) Subject any individual to physical abuse or summary punishment,
or deny any individual the rights guaranteed by the Constitution to all
persons;
(9) Subject any individual to discrimination in its employment
practices in connection with any program or activity funded in whole or
in part with funds made available under the JSIA or the Juvenile Justice
Act;
(10) Use any selection device in a manner which is inconsistent with
the
[[Page 776]]
Department of Justice Uniform on Employee Selection Guidelines, 28 CFR
50.14.
(c) In matters involving employment discrimination, section
815(c)(1) of the JSIA shall be interpreted by the Office consistently
with title VII of the Civil Rights Act of 1964, Public Law 88-352, 79
Stat. 253, as amended by the Equal Employment Opportunity Act of 1972,
Public Law 92-261, 87 Stat. 103, and the Pregnancy Discrimination Act,
Public Law 95-555, 92 Stat. 2076.
(d) The use of a minimum height or weight requirement which operates
to disproportionately exclude women and persons of certain national
origins, such as persons of Hispanic or Asian descent, is a violation of
this subpart, unless the recipient is able to demonstrate convincingly,
through use of supportive factual data, that the requirement has been
validated as set forth in the Department of Justice Guidelines on
Employee Selection Procedures, 28 CFR 50.14.
(e) A recipient, in determining the type of disposition, services,
financial aid, benefits, or facilities which will be provided under any
program, or the class of individuals to whom, or the situations in
which, such will be provided under any program, may not directly or
through contractual or other arrangements, utilize criteria or methods
of administration which have the effect of subjecting individuals to
discrimination under section 815(c)(1) of the JSIA, or have the effect
of defeating or substantially impairing accomplishment of the objectives
of the program as respects individuals of a particular race, color, sex,
national origin, or religion.
(f) In determining the site or location of facilities, a recipient
or applicant may not make selections with the purpose or effect of
excluding individuals from, denying them the benefits of, subjecting
them to discrimination under, or denying them employment in connection
with any program or activity to which this subpart applies; or with the
purpose or effect of defeating or substantially impairing the
accomplishment of the objectives of the JSIA, the Juvenile Justice Act,
or this subpart.
(g) For the purposes of this section, the disposition, services,
financial aid, or benefits provided under a program or activity
receiving Federal financial assistance shall be deemed to include any
portion of any program or function or activity conducted by any
recipient of Federal financial assistance which program, function, or
activity is directly or indirectly improved, enhanced, enlarged, or
benefited by such Federal financial assistance or which makes use of any
facility, equipment, or property provided with the aid of Federal
financial assistance.
(h) The enumeration of specific forms of prohibited discrimination
in paragraphs (b) through (g) of this section does not limit the
generality of the prohibition in paragraph (a) of this section.
(i)(1) In administering a program regarding which the recipient has
previously discriminated against persons on the ground of race, color,
religion, national origin, or sex, the recipient must take affirmative
action to overcome the effects of prior discrimination.
(2) Even in the absence of such prior discrimination, a recipient in
administering a program may take affirmative action to overcome the
effects of conditions which resulted in limiting participation by
persons of a particular race, color, religion, national origin, or sex.
(j) Nothing contained in this subpart shall be construed as
requiring any recipient to adopt a percentage ratio, quota system, or
other program to achieve racial balance. The use of goals and timetables
is not use of a quota prohibited by this section.
[45 FR 28705, Apr. 30, 1980, as amended at 45 FR 54036, Aug. 14, 1980]
Sec. 42.204 Applicants' obligations.
(a) Every application for Federal financial assistance to which this
subpart applies shall, as a condition of approval of such application
and the extension of any Federal financial assistance pursuant to such
application, contain or be accompanied by an assurance that the
applicant will comply with all applicable nondiscrimination requirements
and will obtain such assurances from its subgrantees, contractors, or
subcontractors to which this subpart applies, as a condition of the
[[Page 777]]
extension of Federal financial assistance to them.
(b) Every unit of State or local government and every agency of such
unit that applies for a grant of $500,000 or more under the JSIA or the
Juvenile Justice Act, must submit a copy of its current Equal Employment
Opportunity Program (if required to develop one under 28 CFR 42.301, et.
seq.) to OJARS at the same time it submits its grant application. No
application for $500,000 or more will be approved until OJARS has
approved the applicant's EEOP.
(c) Every application for Federal financial assistance from a State
or local unit of government or agency thereof shall contain an assurance
that in the event a Federal or State court or Federal or State
administrative agency makes a finding of discrimination after a due
process hearing, on the ground of race, color, religion, national
origin, or sex against the recipient State or local government unit, or
agency, the recipient will forward a copy of the finding to the
appropriate CJC and to OJARS.
[45 FR 28705, Apr. 30, 1980, as amended at 45 FR 54037, Aug. 14, 1980]
Sec. 42.205 Complaint investigation.
(a) The Office shall investigate complaints filed by or on behalf of
an individual claiming to be aggrieved, that allege a violation of
section 815(c)(1) of the JSIA, or this subpart.
(b) No complaint will be investigated if it is received more than
one year after the date of the alleged discrimination, unless the time
for filing is extended by the Director of OJARS for good cause shown.
(c) The Office shall conduct investigations of complaints as
follows:
(1) Within 21 days of receipt of a complaint, the Office shall:
(i) Ascertain whether it had jurisdiction under paragraphs (a) and
(b) of this section;
(ii) If jurisdiction is found, notify the recipient alleged to be
discriminating of its receipt of the complaint; and
(iii) Initiate the investigation.
(2) The investigation will ordinarily be initiated by a letter
requesting data pertinent to the complaint and advising the recipient
of:
(i) The nature of the complaint, and, with the written consent of
the complainant, the identity of the complainant;
(ii) The programs or activities affected by the complaint;
(iii) The opportunity to make, at any time prior to receipt of the
Office's preliminary findings, a documentary submission, responding to,
rebutting, or denying the allegations made in the complaint; and
(iv) The schedule under which the complaint will be investigated and
a determination of compliance or non-compliance made.
Copies of this letter will also be sent to the chief executive of the
appropriate unit(s) of government, and to the appropriate CJC.
(3) Within 150 days or, where an on-site investigation is required,
within 175 days after the initiation of the investigation, the Office
shall advise the complainant, the recipient, the chief executive(s) of
the appropriate unit(s) of government, and the appropriate CJC of:
(i) Its investigative findings;
(ii) Where appropriate, its recommendations for compliance; and
(iii) If it is likely that satisfactory resolution of the complaint
can be obtained, the recipient's opportunity to request the Office to
engage in voluntary compliance negotiations prior to the Director of
OJARS' determination of compliance or non-compliance.
(4) If, within 30 days, the Office's recommendations for compliance
are not met, or voluntary compliance is not secured, the matter will be
forwarded to the Director of OJARS for a determination of compliance or
non-compliance. The determination shall be made no later than 14 days
after the conclusion of the 30-day period. If the Director makes a
determination of non-compliance with section 815(c)(1) of the JSIA, the
Office shall institute administrative proceedings pursuant to
Sec. 42.208 et seq.
(5) If the complainant or another party, other than the Attorney
General, has filed suit in Federal or State court alleging the same
discrimination alleged in a complaint to OJARS, and, during OJARS'
investigation, the trial of that suit would be in progress,
[[Page 778]]
OJARS will suspend its investigation and monitor the litigation through
the court docket and, where necessary, contacts with the complainant.
Upon receipt of notice that the court has made a finding of a pattern or
practice of discrimination within the meaning of Sec. 42.208, the Office
will institute administrative proceedings pursuant to Sec. 42.208, et
seq. Upon receipt of notice that the court has made a finding affecting
only the complainant, the Office will adopt the findings of the court as
its investigative findings pursuant to Sec. 42.205(c)(3).
(6) The time limits listed in paragraphs (c)(1) through (c)(5) of
this section shall be appropriately adjusted where OJARS requests
another Federal agency or another branch of the Department of Justice to
act on the complaint. OJARS will monitor the progress of the matter
through liaison with the other agency. Where the request to act does not
result in timely resolution of the matter, OJARS will institute
appropriate proceedings pursuant to this section.
[45 FR 28705, Apr. 30, 1980; 45 FR 54037, Aug. 14, 1980]
Sec. 42.206 Compliance reviews.
(a) The Office shall periodically conduct:
(1) Pre-award compliance reviews of all applicants requesting a
grant from LEAA, NIJ, or BJS for $500,000 or more; and
(2) Post-award compliance reviews of selected recipients of LEAA,
NIJ, or BJS assistance.
(b) Pre-award reviews. The Office shall review selected formula,
discretionary, and national priority applications for $500,000 or more
in order to determine whether the application presents a possibility of
discrimination in the services to be performed under the grant, or in
the employment practices of the applicant. In those instances where it
finds such a possibility, the Office shall special condition, disapprove
or take other action with respect to the application to assure that the
project complies with section 815(c)(1) of the JSIA.
(c) Post-award reviews. The Office shall seek to review those
recipients which appear to have the most serious equal employment
opportunity problems, or the greatest disparity in the delivery of
services to the minority and non-minority or male and female communities
they serve. Selection for review shall be made on the basis of:
(1) The relative disparity between the percentage of minorities, or
women, in the relevant labor market, and the percentage of minorities,
or women, employed by the recipient;
(2) The percentage of women and minorities in the population
receiving program benefits;
(3) The number and nature of discrimination complaints filed against
a recipient with OJARS or other Federal agencies;
(4) The scope of the problems revealed by an investigation commenced
on the basis of a complaint filed with the Office against a recipient or
by a pre-award compliance review; and
(5) The amount of assistance provided to the recipient.
(d) Within 15 days after selection of a recipient for review, the
Office shall inform the recipient that it has been selected and will
initiate the review. The review will ordinarily be initiated by a letter
requesting data pertinent to the review and advising the recipient of:
(1) The practices to be reviewed;
(2) The programs or activities affected by the review;
(3) The opportunity to make, at any time prior to receipt of the
Office's investigative findings, a documentary submission responding to
the Office, explaining, validating, or otherwise addressing the
practices under review; and
(4) The schedule under which the review will be conducted and a
determination of compliance or non-compliance made.
Copies of this letter will also be sent to the chief executive of the
appropriate unit(s) of government, and to the appropriate CJC.
(e) Within 150 days or, where an on-site investigation is required,
within 175 days after the initiation of the review, the Office shall
advise the recipient, the chief executive(s) of the appropriate unit(s)
of government, and the appropriate CJC, of:
(1) Its investigative findings;
(2) Where appropriate, its recommendations for compliance; and
[[Page 779]]
(3) The opportunity to request the Office to engage in voluntary
compliance negotiations prior to the Director of OJARS' determination of
compliance or noncompliance.
(f) If, within 30 days, the Office's recommendations for compliance
are not met, or voluntary compliance is not secured, the Director of
OJARS shall make a determination of compliance or non-compliance. The
determination shall be made no later than 14 days after the conclusion
of the 30-day negotiation period. If the Director makes a determination
of non-compliance with section 815(c) of the JSIA, the Office shall
institute administrative proceedings pursuant to Sec. 42.208, et seq.
[45 FR 28705, Apr. 30, 1980; 45 FR 54037, Aug. 14, 1980]
Sec. 42.207 Compliance information.
(a) Each recipient shall:
(1) Keep such records, and submit to OJARS such timely, complete,
and accurate information as OJARS may request to determine whether the
recipient is complying with section 815(c)(1) of the JSIA; and
(2) Permit reasonable access by OJARS to its books, documents,
papers, and records, to the extent necessary to determine whether the
recipient is complying with section 815(c)(1) of the JSIA.
(b) Failure to comply with Sec. 42.207(a) shall subject the
recipient to the sanctions provided in section 803(a) of the JSIA, 42
U.S.C. 3783(a).
Sec. 42.208 Notice of noncompliance.
(a) Whenever the Office has:
(1) Received notice of a finding, after notice and opportunity for a
hearing by:
(i) A Federal court (other than in an action brought by the Attorney
General under section 815(c)(3) of the JSIA);
(ii) A State court; or
(iii) A Federal or State administrative agency (other than the
Office under paragraph (a)(2) of this section); to the effect that there
has been a pattern or practice of discrimination in violation of section
815(c)(1) of the JSIA; or
(2) Made a determination after an investigation by the Office
pursuant to Sec. 42.205 or Sec. 42.206 of this subpart that a State
government or unit of general local government, or agency thereof, is
not in compliance with this subpart, or section 815(c)(1) of the JSIA,
or this subpart: the Office shall, within 10 days after such occurrence,
notify the chief executive of the affected State and, if the action
involves a unit of general local government, the chief executive of such
unit of general local government, that such program or activity has been
so found or determined not to be in compliance with this subpart or
section 815(c)(1) of the JSIA or this subpart, and shall request each
chief executive notified under this section with respect to such
violation to secure compliance.
(b) For the purposes of this section, notice means:
(1) Publication in--
(i) Employment Practices Decisions, Commerce Clearinghouse, Inc.;
(ii) Fair Employment Practices, Bureau of National Affairs, Inc.;
(iii) The United States Law Week, Bureau of National Affairs, Inc.;
or
(iv) Federal Supplement, Federal Reporter, or Supreme Reporter, West
Publishing Company; or
(2) Receipt by the Office of a reliable copy of a pattern or
practice finding, made after a due process hearing from any source.
(c) When the Office receives notice of a finding which has been made
more than 120 days prior to receipt, the Office will determine if the
finding is currently applicable.
(1) In determining the current applicability of the finding, the
Office will contact the clerk of the court and the office of the
deciding judge (or the appropriate agency official) to determine whether
any subsequent orders have been entered.
(2) If the information is unavailable through the clerk or the
office of the judge (or the appropriate agency official), the Office
will contact the attorneys of record for both the plaintiff and
defendant to determine whether any subsequent orders have been entered,
or if the recipient is in compliance.
(3) If, within 10 days of receipt of notice, it is not determined
through the procedures set forth in paragraphs (c)(1) and (2) of this
section, that the
[[Page 780]]
recipient is in full compliance with a final order of the court (or
agency) within the meaning of Sec. 42.211(b), the Office will notify the
appropriate chief executive of the recipient's noncompliance as provided
in Sec. 42.208(a).
(d) For purposes of paragraph (a)(1)(iii) of this section a finding
by a Federal or State administrative agency shall be deemed rendered
after notice and opportunity for a hearing if it is rendered pursuant to
procedures consistent with the provisions of subchapter II of chapter 5,
title 5, U.S. Code (the Administrative Procedures Act).
(e) The procedures of a Federal or State administrative agency shall
be deemed to be consistent with the Administrative Procedure Act (APA)
if:
(1) The agency gives all interested parties opportunity for--
(i) The submission and consideration of facts, arguments, offers of
settlement, or proposals of adjustment when time, the nature of the
proceeding, and the public interest permit; and
(ii) Hearing on notice, and a decision by an individual who did not
participate in the investigation or prosecution of the matter.
(2) A party is entitled to be represented by counsel or other
qualified representative, to present his case or defense by oral or
documentary evidence, to submit rebuttal evidence, and to conduct such
cross-examination as may be required for a full and true disclosure of
the facts; and
(3) The record shows the ruling on each finding, conclusion, or
exception presented. All decisions, including initial recommended, and
tentative decisions, shall be a part of the record and shall include a
statement of--
(i) Findings and conclusions, and the reasons or basis therefor, on
all the material issues of fact, law, or discretion presented on the
record; and
(ii) The appropriate rule, order, sanction, relief, or definal
thereof.
(f) If within 10 days of receipt of notice the Office cannot
determine whether the finding was rendered pursuant to procedures
consistent with the APA, it shall presume the APA procedures were
applied, and send notification under Sec. 42.208(a) to the appropriate
chief executive(s).
(g) Each notification under Sec. 42.208(a) shall advise the
appropriate chief executive of:
(1) The program or activity determined to be in noncompliance;
(2) The general legal and factual basis for its determination;
(3) The Office's request to secure compliance;
(4) The action to be taken by the Office and the provisions of law
under which the proposed action is to be taken should the chief
executive fail to secure compliance; and
(5) The right of the recipient to request a preliminary hearing,
pursuant to Sec. 42.212, and a full hearing, pursuant to Sec. 42.213.
Sec. 42.209 Compliance secured.
(a) In the event a chief executive secures compliance after notice
pursuant to Sec. 42.208, the terms and conditions with which the
affected State government or unit of general local government agrees to
comply shall be set forth in writing and signed by the chief executive
of the State, by the chief executive of such unit (in the event of a
violation by a unit of general local government), and by the Director of
OJARS.
(b) Prior to the effective date of the agreement, the Office shall
send a copy of the agreement to each complainant, if any, with respect
to such violation, and to the appropriate CJC.
(c) The chief executive of the State, or the chief executive of the
unit (in the event of a violation by a unit of general local government)
shall file semi-annual reports with the Office detailing the steps taken
to comply with the agreement.
(d) Within 15 days of receipt of such reports, the Office shall send
a copy to each complainant, if any.
(e) The Director of OJARS shall also determine a recipient to be in
compliance if it complies fully with the final order or judgement of a
Federal or State court, pursuant to Sec. 42.211 (a)(2) and (b), or if
found by such court to be in compliance with section 815(c)(1).
Sec. 42.210 Compliance not secured.
(a) If, at the conclusion of 90 days after notification of
noncompliance with section 815(c)(1):
[[Page 781]]
(1) Compliance has not been secured by the chief executive of that
State or the chief executive of that unit of general local government;
and
(2) An administrative law judge has not made a determination under
Sec. 42.212 that it is likely the State government or unit of local
government will prevail on the merits;
the Office shall notify the Attorney General that compliance has not
been secured and shall cause to have suspended further payment of any
funds under the JSIA or Juvenile Justice Act, as appropriate, to the
specific program or activity in which the noncompliance has been found.
(b) If a hearing is requested pursuant to Sec. 42.213, the
suspension of funds shall be effective for a period of not more than 30
days after the conclusion of the hearing, or in the absence of a hearing
under Sec. 42.213, funds shall be suspended for not more than 120 days,
unless there has been an express finding by the Director of OJARS after
notice and opportunity for such a hearing, that the recipient is not in
compliance with section 815(c)(1) of the JSIA, or this subpart.
Sec. 42.211 Resumption of suspended funds.
(a) Payment of suspended funds made available under the JSIA or the
Juvenile Justice Act shall resume only if--
(1) Such State government or unit of general local government enters
into a compliance agreement signed by the Director of OJARS in
accordance with Sec. 42.209;
(2) Such State government or unit of general local government:
(i) Complies fully with the final order or judgment of a Federal or
State court, if that order or judgement covers all matters raised by the
Director of OJARS in the notice pursuant to Sec. 42.208, or
(ii) Is found to be in compliance with section 815(c)(1) of the JSIA
by such court;
(3) After a hearing, the Director of OJARS, pursuant to Sec. 42.213,
finds that noncompliance has not been demonstrated; or
(4) An administrative law judge has determined, under Sec. 42.212,
that it is likely that the State government or unit of local government
will prevail on the merits.
(b) Full compliance with a court order, for the purposes of
paragraph (2) of this section, includes the securing of an agreement to
comply over a period of time, particularly in complex cases or where
compliance would require an extended period of time for implementation.
Sec. 42.212 Preliminary hearing.
(a) Prior to the suspension of funds under Sec. 42.210(a), but
within the 90-day period after notification under Sec. 42.208, the State
government or unit of local government may request an expedited
preliminary hearing on the record in accordance with 5 U.S.C. 554 in
order to determine whether it is likely that the State government or
unit of local government would, at a full hearing under Sec. 42.213,
prevail on the merits on the issue of the alleged noncompliance.
(b) The preliminary hearing shall be initiated within 30 days of
request. The ALJ shall make his finding within 15 days after the
conclusion of the preliminary hearing.
Sec. 42.213 Full hearing.
(a) At any time after notification of noncompliance under
Sec. 42.208, but before the conclusion of the 120-day suspension period
referred to in Sec. 42.210, a State government or unit of general local
government may request a hearing on the record in accordance with 5
U.S.C. 554 in order to contest the findings of determination of
noncompliance made under Sec. 42.208. The Office shall initiate the
hearing within 60 days of request.
(b) Within 30 days after the conclusion of the hearing, or, in the
absence of a hearing, at the conclusion of the 120-day period referred
to in Sec. 42.210, the Director of OJARS shall make a finding of
compliance or noncompliance.
(1) If the Director makes a finding of noncompliance, the Director
shall:
(i) Notify the Attorney General in order that the Attorney General
may institute a civil action under section 815(c)(3) of the JSIA;
(ii) Cause to have terminated the payment of funds under the JSIA
and/or the Juvenile Justice Act; and
[[Page 782]]
(iii) If appropriate, seek repayment of funds.
(2) If the Director makes a finding of compliance, payment of the
suspended funds and reconsideration of applications shall resume.
Sec. 42.214 Judicial review.
Any State government or unit of general local government aggrieved
by a final determination of the Office under Sec. 42.213 may appeal such
determination as provided in section 805 of the JSIA.
Sec. 42.215 Other actions authorized under the JSIA.
(a) The Director of OJARS may, at any time, request the Attorney
General to file suit to enforce compliance with section 815(c)(1). OJARS
will monitor the litigation through the court docket and liaison with
the Civil Rights Division of the Department of Justice. Where the
litigation does not result in timely resolution of the matter, and funds
have not been suspended pursuant to Sec. 42.215(b), OJARS will institute
administrative proceedings unless enjoined from doing so by the court.
(b)(1) Whenever the Attorney General files a civil action alleging a
pattern or practice of discriminatory conduct on the basis of race,
color, religion, national origin, or sex in any program or activity of a
State government or unit of local government which State government or
unit of local government receives funds made available under the JSIA or
the Juvenile Justice Act and the conduct allegedly violates or would
violate the provisions of this subpart or section 815(c)(1) of the JSIA
and neither party within 45 days after such filing has been granted such
preliminary relief with regard to the suspension or payment of funds as
may otherwise be available by law, the Director of OJARS shall suspend
further payment of any funds under the JSIA and the Juvenile Justice Act
to that specific program or activity alleged by the Attorney General to
be in violation of the provisions of section 815(c)(1) of the JSIA until
such time as the court orders resumption of payment.
(2) The Office expects that preliminary relief authorized by this
subsection will not be granted unless the party making application for
such relief meets the standards for a preliminary injunction.
(c)(1) Whenever a State government or unit of local government or
any officer or employee thereof acting in an official capacity, has
engaged or is engaging in any act or practice prohibited by section
815(c)(1) of the JSIA, a civil action may be instituted after exhaustion
of administrative remedies by the person aggrieved in an appropriate
U.S. District Court or in a State court or general jurisdiction.
(2) Administrative remedies shall be deemed to be exhausted upon the
expiration of 60 days after the date the administrative complaint was
filed with the Office or any other administrative enforcement agency,
unless within such period there has been a determination by the Office
or the agency on the merits of the complaint, in which case such
remedies shall be deemed exhausted at the time the determination becomes
final.
(3) The Attorney General, or a specifically designated assistant for
or in the name of the United States may intervene upon timely
application in any civil action brought to enforce compliance with
section 815(c)(1) of the JSIA if he certifies that the action is of
general public importance. In such action the United States shall be
entitled to the same relief as if it had instituted the action.
Appendix A to Subpart D of Part 42--Commentary
Section 42.201(c). The compliance enforcement mechanism of section
815(c)(2) applies by its terms to State and local government. The
prohibitions in section 815(c)(1), however, apply to all recipients of
OJARS assistance. Accordingly, where a private entity which has received
LEAA, NIJ, or BJS assistance through a State or local unit of government
is determined by OJARS to be in non-compliance, OJARS will invoke the
section 815(c)(2) mechanism against the appropriate unit of government
for its failure to enforce the assurances of compliance given it by the
private recipient, unless the unit has initiated its own compliance
action against the private recipient. The fund termination procedures of
section 803(a) will be invoked against non-complying private recipients
which receive assistance directly from LEAA, NIJ, or BJS, or through
another private entity.
[[Page 783]]
Section 42.202(g). Section 815(c)(1) of the JSIA limits suspension
and termination of assistance in the event of noncompliance to the
``programs or activity'' in which the noncompliance is found. The phrase
``program or activity'' was first used in section 815(c)(1) of the Crime
Control Act of 1976, the substantially identical predecessor to section
815(c)(1).
House Report No. 94-1155 (94th Congress, 2d Session), at p. 26,
explained the provision as follows:
``Suspension may be limited to the specific program or activity
found to have discriminated, rather than all of the recipients' LEAA
funds.
``For example, if discriminatory employment practices in a city's
police department were cited in the notification, LEAA may only suspend
that part of the city's payments which fund the police department. LEAA
may not suspend the city's LEAA funds which are used in the city courts,
prisons, or juvenile justice agencies.''
This passage makes it clear that OJARS need not demonstrate a nexus
between the particular project funded and the discriminatory activity.
See Lau v. Nichols, 414 U.S. 563, 566 (1974).
Sections 42.203(b) and 42.203(e-i). These provisions are derived
from 28 CFR 42.104(b) of subpart C of the Department of Justice
Nondiscrimination Regulations. Where appropriate ``sex'' and
``religion'' have been added as prohibited grounds of discrimination,
and ``denial of employment'' as another activity within the scope of
section 815(c)(1).
Individual projects benefiting a particular sex, race, or ethnic
group are not violative of section 815(c)(1) unless the granting agency
or the recipient has engaged in a pattern of granting preferential
treatment to one such group, and cannot justify the preference on the
basis of a compelling governmental interest, in the case of racial or
ethnic discrimination, or a substantial relationship to an important
governmental function, in the case of sex discrimination.
Section 42.203(b)(10). On August 25, 1978, the Department of
Justice, the Equal Employment Opportunity Commission, the Department of
Labor and the then-Civil Service Commission published the Uniform
Employee Selection Guidelines codified at 28 CFR 50.14. Since OJARS is a
component of the Department, these guidelines are applicable to the
selection procedures of LEAA, NIJ, and BJS recipients. See 44 FR 11996
(March 2, 1979) for a detailed commentary on the guidelines.
Section 42.203(c). In the Conference Report on section 518(c) of the
Crime Control Act (the substantially identical predecessor of section
815(c)), the managers stated that ``In the area of employment cases
brought under this section, it is intended by the conferees that the
standards of title VII of the Civil Rights Act of 1964 apply.'' H. Rept.
No. 94-1723 (94th Cong., 2d Sess.) at p. 32.
This section makes the OJARS standards of employment discrimination
consistent with those used by the Civil Rights Division of the
Department of Justice. It further clarifies that the burden shifts to
the employer to validate its selection procedures once OJARS has
demonstrated that those procedures disproportionately exclude an
affected class. Discriminatory purpose on the part of the employer,
which must be shown before the burden shifts in a Fourteenth Amendment
case such as Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040 (1976),
need not be shown in an employment discrimination case brought under
section 815(c)(1).
Section 42.203(j). Section 815(b) of the JSIA reads:
``Notwithstanding any other provision of law, nothing contained in
this title shall be construed to authorize the National Institute of
Justice, the Bureau of Justice Statistics, or the Law Enforcement
Assistance Administration (1) to require, or condition the availability
or amount of a grant upon the adoption by an applicant or grantee under
this title of a percentage ratio, quota system, or other program to
achieve racial balance in any criminal justice agency; or (2) to deny or
discontinue a grant because of the refusal of an applicant or grantee
under this title to adopt such a ratio, system, or other program.''
In commenting on the Crime Control Act of 1976, Senator Roman Hruska
of Nebraska explained the difference between quotas and goals and
timetables as follows:
``Section 518(b) [now 815(b)] of the act prohibits the setting of
quotas. This provision was unchanged, and this provision will still bind
the Administration.
``LEAA does have an affirmative obligation under this law to seek to
eliminate discriminatory practices, voluntarily, if possible, prior to
resorting to fund termination. LEAA can request that a recipient
eliminate the effect of past discrimination by requiring the recipient
to commit itself to goals and timetables. The formulation of goals is
not a quota prohibited by section 518(b) of the act. A goal is a
numerical objective fixed realistically in terms of the number of
vacancies expected and the number of qualified applicants available.
Factors such as a lower attrition rate than expected, bona fide fiscal
restraints, or a lack of qualified applicants would be acceptable
reasons for not meeting a goal that has been established and no
sanctions would accrue under the program.'' Cong. Rec. S 17320
(September 30, 1976, daily ed.).
The Senate Judiciary Committee Report on the JSIA also emphasized
that section 815(b) does not ``undercut subsection (c) in any way;
subsection (b) has been interpreted
[[Page 784]]
so as not to limit LEAA's anti-discrimination enforcement capabilities.
Indeed, recent court decisions have made this abundantly clear. See,
e.g., United States v. City of Los Angeles, No. 77-3460 (C.D. Cal. 2/1/
79).'' S. Rept. 96-142, p. 57.
See also the Equal Employment Opportunity Commission Affirmative
Action Guidelines, 44 FR 4422 (January 19, 1979).
Section 42.204. All grantees and subgrantees must make the
assurances found in paragraph (a). Only State and local units of
government and agencies thereof must make the assurance found in
paragraph (c), since, as explained in the commentary on Sec. 42.201(c),
the enforcement provisions of section 815(c)(2) apply only to
governmental recipients.
Section 42.205(a). Where information available to the Office clearly
and convincingly demonstrates that the complaint is frivolous or
otherwise without merit, the complaint will not be investigated, and the
complainant will be so advised.
Section 42.205(b). A one-year timeliness requirement is imposed to
ensure that OJARS will be devoting its resources to the resolution of
active issues, and to maximize the possibility that necessary witnesses
and evidence are still available.
Examples of good cause which would clearly warrant an extension of
the filing period are a statement from the complainant stating that he
or she was unware of the discrimination until after a year had passed,
or that he or she was not aware that a remedy was available through
OJARS.
Section 42.205(c)(1). Jurisdiction exists if the complaint alleges
discrimination on a ground prohibited by section 815(c)(1), if the
recipient was receiving funds at the time of the discrimination, and the
respondent named in the complaint is a current recipient of LEAA, NIJ,
or BJS assistance.
Prior to a determination of noncompliance, OJARS will attempt to
negotiate voluntary compliance only during the 30-day period following
receipt of the Office's preliminary findings, and only at the request of
the recipient, as provided in Sec. 42.205(c)(3). If a determination of
noncompliance is made, OJARS will participate in voluntary compliance
efforts during the 90-day period following the letter sent to the chief
executive(s) under section 42.208.
Sections 42.205(c) (3) and (4) and 42.206(e). OJARS will notify the
appropriate chief executive(s) of its recommendations during the
voluntary resolution phase of both the complaint investigation and
compliance review process. OJARS expects that the early involvement of
the chief executive will often expedite the resolution of issues.
Section 42.205(c)(5). OJARS will initiate an investigation if the
litigation discussed in this subparagraph becomes protracted or
apparently will not resolve the matter within a reasonable time.
Section 42.205(c)(6). In order to effectively utilize the resources
of other agencies, and to avoid duplication of effort, OJARS may request
another agency to act on a particular complaint. OJARS expects this
practice to be limited, and will attempt to ensure that any cooperative
agreement reached with another agency is consistent with the timetables
set forth in Sec. 42.205(c).
Section 42.206(a). OJARS recognizes the practical impossibility of
reviewing the compliance of each of its more than 39,000 recipients. The
regulations seek to expedite the review process by reducing its length
and narrowing its focus. Compliance reviews may, in some instances, be
limited to specific employment practices, or other functions of a
recipient, that appear to have the greatest adverse impact on an
affected class.
Section 42.206(b). The factors listed will be considered
cumulatively by OJARS in selecting recipients for reviews. OJARS will
consider data from all sources, including information provided by both
internal and external auditors.
Section 42.208(b). Upon receipt of the publications listed, OJARS
will review the case reports for findings that may be violations of
section 815(c)(1). In the case of the West Publishing Company reporters,
OJARS will consult the topic ``Civil Rights'' in the Key Number Digests
contained in the advance sheets.
Section 42.208(e). This subsection sets forth the minimum procedural
safeguards that OJARS would require of an administrative hearing to
assure the process was consistent with the Administrative Procedure Act.
The sufficiency of other procedures that may vary in form but insure due
process and the same opportunity for a fair hearing of both parties'
evidence will be determined by OJARS on a case-by-case basis.
The Office will compile a list of State agencies whose procedures
have been found consistent with the Administrative Procedure Act, and a
list of State agencies whose procedures have been found inconsistent.
When a finding of an agency not on either list is received, the Office
will attempt to reliably determine the procedures used to render the
findings.
Section 42.209(a). Although the signature of the appropriate chief
executives are ultimately required on the compliance agreement, these
regulations do not preclude them from delegating the responsibility for
securing compliance during the 90-day period following notification, to
State or local administrative or human rights agencies under their
respective authority. A compliance agreement may be an agreement to
comply
[[Page 785]]
over a period of time, particularly in complex cases or where compliance
would require an extended period of time for implementation.
Section 42.209(b). The regulations require that a copy of the
proposed compliance agreement be sent to the complainant, if any, before
the effective date of the agreement. Although the Act would permit a
copy to be sent as late as the effective date, OJARS believes the
compliance agreement would be more likely to resolve all concerns and
discourage litigation if the complainant's views were considered before
it took effect.
Section 42.211(b). An example of a case where compliance would
require an extended period of time for implementation would be a court
order setting a goal of five years for an employer to raise the
percentage of minorities in its workforce to parity with the percentage
of minorities in the relevant geographical labor force.
Section 42.213. The full hearing will be conducted in accordance
with JSIA Hearing and Appeal Procedures, 28 CFR 18.1, et seq.
Section 42.215(a). In a December 20, 1976 letter to the
Administrator of LEAA, Congressman Peter Rodino, Chairman of the House
Judiciary Committee, commented on the regulations proposed to implement
the substantially identical nondiscrimination provisions of the Crime
Control Act. He advised the Administrator that ``the committee
intentionally omitted the word `refer' from the law to ensure that LEAA
would always retain administrative jurisdiction over a complaint filed
with them. It is not appropriate for LEAA to refer cases to the Civil
Rights Division or other Federal or State agencies without monitoring
the case for prompt resolution.''
Section 42.215(c)(2). The exhaustion of administrative remedies at
the end of 60 days (unless the Office has made a determination) does not
limit OJARS' authority to investigate a complaint after the expiration
of that period. OJARS will continue to investigate the complaint after
the end of the 60-day period, if necessary, in accordance with the
provisions of Sec. 42.205.
Subpart E--Equal Employment Opportunity Program Guidelines
Authority: Sec. 501 of the Omnibus Crime Control and Safe Streets
Act of 1968, Pub. L. 90-351, 82 Stat. 197, as amended.
Source: 43 FR 28802, June 30, 1978, unless otherwise noted.
Sec. 42.301 Purpose.
The experience of the Law Enforcement Assistance Administration in
implementing its responsibilities under the Omnibus Crime Control and
Safe Streets Act of 1968, as amended (Pub. L. 90-351, 82 Stat. 197; Pub.
L. 91-644, 84 Stat. 1881) has demonstrated that the full and equal
participation of women and minority individuals in employment
opportunities in the criminal justice system is a necessary component to
the Safe Streets Act's program to reduce crime and delinquency in the
United States.
Sec. 42.302 Application.
(a) Recipient means any State or local unit of government or agency
thereof, and any private entity, institution, or organization, to which
Federal financial assistance is extended directly, or through such
government or agency, but such term does not include any ultimate
beneficiary of such assistance.
(b) The obligation of a recipient to formulate, implement, and
maintain an equal employment opportunity program, in accordance with
this subpart, extends to State and local police agencies, correctional
agencies, criminal court systems, probation and parole agencies, and
similar agencies responsible for the reduction and control of crime and
delinquency.
(c) Assignments of compliance responsibility for title VI of the
Civil Rights Act of 1964 have been made by the Department of Justice to
the Department of Health and Human Services, covering educational
institutions and general hospital or medical facilities. Similarly, the
Department of Labor, in pursuance of its authority under Executive
Orders 11246 and 11375, has assigned responsibility for monitoring equal
employment opportunity under government contracts with medical and
educational institutions, and non-profit organizations, to the
Department of Health and Human Services. Accordingly, monitoring
responsibility in compliance matters in agencies of the kind mentioned
in this paragraph rests with the Department of Health and Human
Services, and agencies of this kind are exempt from the provisions of
this subpart, and are not responsible for the development of equal
employment opportunity programs in accordance herewith.
[[Page 786]]
(d) Each recipient of LEAA assistance within the criminal justice
system which has 50 or more employees and which has received grants or
subgrants of $25,000 or more pursuant to and since the enactment of the
Safe Streets Act of 1968, as amended, and which has a service population
with a minority representation of 3 percent or more, is required to
formulate, implement and maintain an equal employment opportunity
program relating to employment practices affecting minority persons and
women within 120 days after either the promulgation of these amended
guidelines, or the initial application for assistance is approved,
whichever is sooner. Where a recipient has 50 or more employees, and has
received grants or subgrants of $25,000 or more, and has a service
population with a minority representation of less than 3 percent, such
recipient is required to formulate, implement, and maintain an equal
employment opportunity program relating to employment practices
affecting women. For a definition of ``employment practices'' within the
meaning of this paragraph, see Sec. 42.202(c).
(e) Minority persons shall include persons who are Black, not of
Hispanic origin; Asian or Pacific Islanders; American Indians or Alaskan
Native; or Hispanics. These categories are defined at 28 CFR 42.402(e).
(f) Fiscal year means the 12 calendar months beginning October 1,
and ending September 30, of the following calendar year. A fiscal year
is designated by the calendar year in which it ends.
[43 FR 28802, June 30, 1978, as amended by Order No. 960-81, 46 FR
52357, Oct. 27, 1981]
Sec. 42.303 Evaluation of employment opportunities.
(a) A necessary prerequisite to the development and implementation
of a satisfactory equal employment opportunity program is the
identification and analysis of any problem areas inherent in the
utilization or participation of minorities and women in all of the
recipient's employment phases (e.g., recruitment, selection, and
promotion) and the evaluation of employment opportunities for minorities
and women.
(b) In many cases an effective equal employment opportunity program
may only be accomplished where the program is coordinated by the
recipient agency with the cognizant Office of Personnel Management or
similar agency responsible by law, in whole or in part, for the
recruitment and selection of entrance candidates and selection of
candidates for promotion.
(c) In making the evaluation of employment opportunities, the
recipient shall conduct such analysis separately for minorities and
women. However, all racial and ethnic data collected to perform an
evaluation pursuant to the requirements of this section should be cross
classified by sex to ascertain the extent to which minority women or
minority men may be underutilized. The evaluation should include but not
necessarily be limited to, the following factors:
(1) An analysis of present representation of women and minority
persons in all job categories;
(2) An analysis of all recruitment and employment selection
procedures for the preceding fiscal year, including such things as
position descriptions, application forms, recruitment methods and
sources, interview procedures, test administration and test validity,
educational prerequisites, referral procedures and final selection
methods, to insure that equal employment opportunity is being afforded
in all job categories;
(3) An analysis of seniority practices and provisions, upgrading and
promotion procedures, transfer procedures (lateral or vertical), and
formal and informal training programs during the preceding fiscal year,
in order to insure that equal employment opportunity is being afforded;
(4) A reasonable assessment to determine whether minority employment
is inhibited by external factors such as the lack of access to suitable
housing in the geographical area served by a certain facility or the
lack of suitable transportation (public or private) to the workplace.
[43 FR 28802, June 30, 1978, as amended by Order No. 899-80, 45 FR
43703, June 30, 1980]
[[Page 787]]
Sec. 42.304 Written equal employment opportunity program.
Each recipient's equal employment opportunity program shall be in
writing and shall include:
(a) A job classification table or chart which clearly indicates for
each job classification or assignment the number of employees within
each respective job category classified by race, sex and national origin
(include for example Hispanic, Asian or Pacific Islander, and American
Indian or Alaskan Native). Also, principal duties and rates of pay
should be clearly indicated for each job classification. Where auxiliary
duties are assigned or more than one rate of pay applies because of
length of time in the job or other factors, a special notation should be
made. Where the recipient operates more than one shift or assigns
employees within each shift to varying locations, as in law enforcement
agencies, the number by race, sex and national origin on each shift and
in each location should be identified. When relevant, the recipient
should indicate the racial/ethnic mix of the geographic area of
assignments by the inclusion of minority population and percentage
statistics.
(b) The number of disciplinary actions taken against employees by
race, sex and national origin within the preceding fiscal year, the
number and types of sanctions imposed (suspension indefinitely,
suspension for a term, loss of pay, written reprimand, oral reprimand,
other) against individuals by race, sex and national origin.
(c) The number of individuals by race, sex and national origin (if
available) applying for employment within the preceding fiscal year and
the number by race, sex and national origin (if available) of those
applicants who were offered employment and those who were actually
hired. If such data is unavailable, the recipient should institute a
system for the collection of such data.
(d) The number of employees in each job category by race, sex and
national origin who made application for promotion or transfer within
the preceding fiscal year and the number in each job category by race,
sex, and national origin who were promoted or transferred.
(e) The number of employees by race, sex, and national origin who
were terminated within the preceding fiscal year, identifying by race,
sex, and national origin which were voluntary and involuntary
terminations.
(f) Available community and area labor characteristics within the
relevant geographical area including total population, workforce and
existing unemployment by race, sex and national origin. Such data may be
obtained from the Bureau of Labor Statistics, Washington, DC, State and
local employment services, or other reliable sources. Recipient should
identify the sources of the data used.
(g) A detailed narrative statement setting forth the recipient's
existing employment policies and practices as defined in Sec. 42.202(c).
Thus, for example, where testing is used in the employment selection
process, it is not sufficient for the recipient to simply note the fact.
The recipient should identify the test, describe the procedures followed
in administering and scoring the test, state what weight is given to
test scores, how a cut-off score is established and whether the test has
been validated to predict or measure job performance and, if so, a
detailed description of the validation study. Similarly detailed
responses are required with respect to other employment policies,
procedures, and practices used by the applicant.
(1) The statement should include the recipient's detailed analysis
of existing employment policies, procedures, and practices as they
relate to employment of minorities and women (see Sec. 42.303) and,
where improvements are necessary, the statement should set forth in
detail the specific steps the recipient will take for the achievement of
full and equal employment opportunity. The Department of Justice
Guidelines on Employee Selection Procedures, 28 CFR part 50, set out the
appropriate standards for nondiscriminatory selection procedures.
Recipients of LEAA assistance using selection procedures which are not
in conformity with the Department of Justice guidelines shall set forth
the specific areas of nonconformity, the reasons which may explain any
such nonconformity, and if necessary, the steps
[[Page 788]]
the recipient agency will take to correct any existing deficiency.
(2) The recipient should also set forth a program for recruitment of
minority persons based on an informed judgment of what is necessary to
attract minority applications including, but not necessarily limited to,
dissemination of posters, use of advertising media patronized by
minorities, minority group contacts and community relations programs. As
appropriate, recipients may wish to refer to recruitment techniques
suggested in revised order No. 4 of the Office of Federal Contract
Compliance, U.S. Department of Labor, found at 41 CFR 60-2.24(e).
(h) Plan for dissemination of the applicant's Equal Employment
Opportunity Program to all personnel, applicants and the general public.
As appropriate, recipients may wish to refer to the recommendations for
dissemination of policy suggested in revised order No. 4 of the Office
of Federal Contract Compliance, U.S. Department of Labor, found at 41
CFR 60-2.21.
(i) Designation of specified personnel to implement and maintain
adherence to the equal employment opportunity program and a description
of their specific responsibilities suggested in revised order No. 4 of
the Office of Federal Contract Compliance, U.S. Department of Labor,
found at 41 CFR 60-2.22.
Sec. 42.305 Recordkeeping and certification.
The equal employment opportunity program and all records used in its
preparation shall be kept on file and retained by each recipient covered
by these guidelines for subsequent audit or review by responsible
personnel of the cognizant State planning agency or the LEAA. Prior to
the authorization to fund new or continuing programs under the Omnibus
Crime Control and Safe Streets Act of 1968, the recipient shall file a
certificate with the cognizant State planning agency or with the LEAA
Office of Civil Rights Compliance stating that the equal employment
opportunity program is on file with the recipient. This form of the
certification shall be as follows:
I, ---------- (person filing the application) certify that the ----
------ (criminal justice agency) has formulated an equal employment
program in accordance with 28 CFR 42.301, et seq., subpart E, and that
it is on file in the Office of ---------- (name), ---------- (address),
---------- (title), for review or audit by officials of the cognizant
State planning agency or the Law Enforcement Assistance Administration
as required by relevant laws and regulations.
The criminal justice agency created by the Governor to implement the
Safe Streets Act within each State shall certify that it requires, as a
condition of the receipt of block grant funds, that recipients from it
have executed an Equal Employment Opportunity Program in accordance with
this subpart, or that, in conformity with the terms and conditions of
this regulation no equal employment opportunity programs are required to
be filed by that jurisdiction.
Sec. 42.306 Guidelines.
(a) Recipient agencies are expected to conduct a continuing program
of self-evaluation to ascertain whether any of their recruitment,
employee selection or promotional policies (or lack thereof) directly or
indirectly have the effect of denying equal employment opportunities to
minority individuals and women.
(b) Equal employment program modification may be suggested by LEAA
whenever identifiable referral or selection procedures and policies
suggest to LEAA the appropriateness of improved selection procedures and
policies. Accordingly, any recipient agencies falling within this
category are encouraged to develop recruitment, hiring or promotional
guidelines under their equal employment opportunity program which will
correct, in a timely manner, any identifiable employment impediments
which may have contributed to the existing disparities.
Sec. 42.307 Obligations of recipients.
The obligation of those recipients subject to these guidelines for
the maintenance of an equal employment opportunity program shall
continue for the period during which the LEAA assistance is extended to
a recipient or for the period during which a comprehensive law
enforcement plan filed pursuant to the Safe Streets Act is in effect
within the State, whichever is
[[Page 789]]
longer, unless the assurances of compliance, filed by a recipient in
accordance with Sec. 42.204(a)(2), specify a different period.
Sec. 42.308 Noncompliance.
Failure to implement and maintain an equal employment opportunity
program as required by these guidelines shall subject recipients of LEAA
assistance to the sanctions prescribed by the Safe Streets Act and the
equal employment opportunity regulations of the Department of Justice.
(See 42 U.S.C. 3757 and 28 CFR 42.207.)
Subpart F--Coordination of Enforcement of Non-discrimination in
Federally Assisted Programs
Authority: Executive Order 12250.
Source: Order No. 670-76, 41 FR 52669, Dec. 1, 1976, unless
otherwise noted.
Sec. 42.401 Purpose and application.
The purpose of this subpart is to insure that federal agencies which
extend financial assistance properly enforce title VI of the Civil
Rights Act of 1964 and similar provisions in federal grant statutes.
Enforcement of the latter statutes is covered by this subpart to the
extent that they relate to prohibiting discrimination on the ground of
race, color or national origin in programs receiving federal financial
assistance of the type subject to title VI. Responsibility for enforcing
title VI rests with the federal agencies which extend financial
assistance. In accord with the authority granted the Attorney General
under Executive Order 12250, this subpart shall govern the respective
obligations of federal agencies regarding enforcement of title VI. This
subpart is to be used in conjunction with the 1965 Attorney General
Guidelines for Enforcement of title VI, 28 CFR 50.3.
[Order No. 670-76, 41 FR 52669, Dec. 1, 1976, as amended by Order No.
960-81, 46 FR 52357, Oct. 27, 1981]
Sec. 42.402 Definitions.
For purpose of this subpart:
(a) Title VI refers to title VI of the Civil Rights Act of 1964, 42
U.S.C. 2000d to 2000d-4. Where appropriate, this term also refers to the
civil rights provisions of other federal statutes to the extent that
they prohibit discrimination on the ground of race, color or national
origin in programs receiving federal financial assistance of the type
subject to title VI itself.
(b) Agency or federal agency refers to any federal department or
agency which extends federal financial assistance of the type subject to
title VI.
(c) Program refers to programs and activities receiving federal
financial assistance of the type subject to title VI.
(d) Assistant Attorney General refers to the Assistant Attorney
General, Civil Rights Division, United States Department of Justice.
(e) Where designation of persons by race, color or national origin
is required, the following designations shall be used:
(1) Black, not of Hispanic Origin. A person having origins in any of
the black racial groups of Africa.
(2) Hispanic. A person of Mexican, Puerto Rican, Cuban, Central or
South American or other Spanish Culture or origin, regardless of race.
(3) Asian or Pacific Islander. A person having origins in any of the
original peoples of the Far East, Southeast Asia, the Indian
Subcontinent, or the Pacific Islands. This area includes, for example,
China, Japan, Korea, the Philippine Islands, and Samoa.
(4) American Indian or Alaskan Native. A person having origins in
any of the original peoples of North America, and who maintain cultural
identification through tribal affiliation or community recognition.
(5) White, not of Hispanic Origin. A person having origins in any of
the original people of Europe, North Africa, or the Middle East.
Additional sub-categories based on national origin or primary language
spoken may be used where appropriate, on either a national or a regional
basis. Paragraphs (e)(1) through (e)(5) of this section, inclusive, set
forth in this section are in conformity with the OMB Ad Hoc Committee on
Race/Ethnic Categories' recommendations. To the extent that said
designations are modified by the OMB Ad Hoc Committee, paragraphs (e)(1)
[[Page 790]]
through (e)(5) of this section, inclusive, set forth in this section
shall be interpreted to conform with those modifications.
(f) Covered employment means employment practices covered by title
VI. Such practices are those which:
(1) Exist in a program where a primary objective of the federal
financial assistance is to provide employment, or
(2) Cause discrimination on the basis of race, color or national
origin with respect to beneficiaries or potential beneficiaries of the
assisted program.
Sec. 42.403 Agency regulations.
(a) Any federal agency subject to title VI which has not issued a
regulation implementing title VI shall do so as promptly as possible
and, no later than the effective date of this subpart, shall submit a
proposed regulation to the Assistant Attorney General pursuant to
paragraph (c) of this section.
(b) Any federal agency which becomes subject to title VI after the
effective date of this subpart shall, within 60 days of the date it
becomes subject to title VI, submit a proposed regulation to the
Assistant Attorney General pursuant to paragraph (c) of this section.
(c) Regarding issuance or amendment of its regulation implementing
title VI, a federal agency shall take the following steps:
(1) Before publishing a proposed regulation of amendment in the
Federal Register, submit it to the Assistant Attorney General, Civil
Rights Division;
(2) After receiving the approval of the Assistant Attorney General,
publish the proposed regulation or amendment in the Federal Register for
comment;
(3) After final agency approval, submit the regulation or amendment,
through the Assistant Attorney General, to the Attorney General for
final approval. (Executive Order 12250 delegates to the Attorney General
the function, vested in the President by section 602 of title VI, 42
U.S.C. 2000d-1, of approving title VI regulations and amendments to
them.)
(d) The title VI regulation of each federal agency shall be
supplemented with an appendix listing the types of federal financial
assistance, i.e., the statutes authorizing such assistance, to which the
regulation applies. Each such appendix shall be kept up-to-date by
amendments published, at appropriate intervals, in the Federal Register.
In issuing or amending such an appendix, the agency need not follow the
procedure set forth in paragraph (c) of this section.
[Order No. 670-76, 41 FR 52669, Dec. 1, 1976, as amended by Order No.
960-81, 46 FR 52357, Oct. 27, 1981]
Sec. 42.404 Guidelines.
(a) Federal agencies shall publish title VI guidelines for each type
of program to which they extend financial assistance, where such
guidelines would be appropriate to provide detailed information on the
requirements of title VI. Such guidelines shall be published within
three months of the effective date of this subpart or of the effective
date of any subsequent statute authorizing federal financial assistance
to a new type of program. The guidelines shall describe the nature of
title VI coverage, methods of enforcement, examples of prohibited
practices in the context of the particular type of program, required or
suggested remedial action, and the nature of requirements relating to
covered employment, data collection, complaints and public information.
(b) Where a federal agency determines that title VI guidelines are
not appropriate for any type of program to which it provides financial
assistance, the reasons for the determination shall be stated in writing
and made available to the public upon request.
Sec. 42.405 Public dissemination of title VI information.
(a) Federal agencies shall make available and, where appropriate,
distribute their title VI regulations and guidelines for use by federal
employees, applicants for federal assistance, recipients, beneficiaries
and other interested persons.
(b) State agency compliance programs (see Sec. 42.410) shall be made
available to the public.
(c) Federal agencies shall require recipients, where feasible, to
display prominently in reasonable numbers
[[Page 791]]
and places posters which state that the recipients operate programs
subject to the nondiscrimination requirements of title VI, summarize
those requirements, note the availability of title VI information from
recipients and the federal agencies, and explain briefly the procedures
for filing complaints. Federal agencies and recipients shall also
include information on title VI requirements, complaint procedures and
the rights of beneficiaries in handbooks, manuals, pamphlets and other
material which are ordinarily distributed to the public to describe the
federally assisted programs and the requirements for participation by
recipients and beneficiairies. To the extent that recipients are
required by law or regulation to publish or broadcast program
information in the news media, federal agencies and recipients shall
insure that such publications and broadcasts state that the program in
question is an equal opportunity program or otherwise indicate that
discrimination in the program is prohibited by federal law.
(d)(1) Where a significant number or proportion of the population
eligible to be served or likely to be directly affected by a federally
assisted program (e.g., affected by relocation) needs service or
information in a language other than English in order effectively to be
informed of or to participate in the program, the recipient shall take
reasonable steps, considering the scope of the program and the size and
concentration of such population, to provide information in appropriate
languages to such persons. This requirement applies with regard to
written material of the type which is ordinarily distributed to the
public.
(2) Federal agencies shall also take reasonable steps to provide, in
languages other than English, information regarding programs subject to
title VI.
Sec. 42.406 Data and information collection.
(a) Except as determined to be inappropriate in accordance with
paragraph (f) of this section or Sec. 42.404(b), federal agencies, as a
part of the guidelines required by Sec. 42.404, shall in regard to each
assisted program provide for the collection of data and information from
applicants for and recipients of federal assistance sufficient to permit
effective enforcement of title VI.
(b) Pursuant to paragraph (a) of this section, in conjunction with
new applications for federal assistance (see 28 CFR 50.3(c) II A) and in
any applications for approval of specific projects or significant
changes in applications for continuation or renewal of assistance (see
28 CFR 50.3(c) II B), and at other times as appropriate, federal
agencies shall require applicants and recipients to provide relevant and
current title VI information. Examples of data and information which, to
the extent necessary and appropriate for determining compliance with
title VI, should be required by agency guidelines are as follows:
(1) The manner in which services are or will be provided by the
program in question, and related data necessary for determining whether
any persons are or will be denied such services on the basis of
prohibited discrimination;
(2) The population eligible to be served by race, color and national
origin;
(3) Data regarding covered employment, including use or planned use
of bilingual public-contact employees serving beneficiaries of the
program where necessary to permit effective participation by
beneficiaries unable to speak or understand English;
(4) The location of existing or proposed facilities connected with
the program, and related information adequate for determing whether the
location has or will have the effect of unnecessarily denying access to
any persons on the basis of prohibited discrimination;
(5) The present or proposed membership, by race, color and national
origin, in any planning or advisory body which is an integral part of
the program;
(6) Where relocation is involved, the requirements and steps used or
proposed to guard against unnecessary impact on persons on the basis of
race, color or national origin.
(c) Where additional data, such as demographic maps, the racial
composition of affected neighborhoods or census data, is necessary or
appropriate, for understanding information required in paragraph (b) of
this section, federal
[[Page 792]]
agencies shall specify, in their guidelines or in other directives, the
need to submit such data. Such additional data should be required,
however, only to the extent that it is readily available or can be
compiled with reasonable effort.
(d) Pursuant to paragraphs (a) and (b) of this section, in all
cases, federal agencies shall require:
(1) That each applicant or recipient promptly notify the agency upon
its request of any lawsuit filed against the applicant or recipient
alleging discrimination on the basis of race, color or national origin,
and that each recipient notify the agency upon its request of any
complaints filed against the recipient alleging such discrimination;
(2) A brief description of any applicant's or recipient's pending
applications to other federal agencies for assistance, and of federal
asssistance being provided at the time of the application or requested
report;
(3) A statement by any applicant describing any civil rights
compliance reviews regarding the applicant conducted during the two-year
period before the application, and information concerning the agency or
organization performing the review; and periodic statements by any
recipient regarding such reviews;
(4) A written assurance by any applicant or recipient that it will
compile and maintain records required, pursuant to paragraphs (a) and
(b) of this section, by the agency's guidelines or other directives.
(e) Federal agencies should inquire whether any agency listed by the
applicant or recipient pursuant to paragraph (d)(2) of this section has
found the applicant or recipient to be in noncompliance with any
relevant civil rights requirement.
(f) Where a federal agency determines that any of the requirements
of this section are inapplicable or inappropriate in regard to any
program, the basis for this conclusion shall be set forth in writing and
made available to the public upon request.
Sec. 42.407 Procedures to determine compliance.
(a) Agency staff determination responsibility. All federal agency
staff determinations of title VI compliance shall be made by, or be
subject to the review of, the agency's civil rights office. Where
federal agency responsibility for approving applications or specific
projects has been assigned to regional or area offices, the agency shall
include personnel having title VI review responsibility on the staffs of
such offices and such personnel shall perform the functions described in
paragraphs (b) and (c) of this section.
(b) Application review. Prior to approval of federal financial
assistance, the federal agency shall make written determination as to
whether the applicant is in compliance with title VI (see 28 CFR 50.3(c)
II A). The basis for such a determination under ``the agency's own
investigation'' provision (see 28 CFR 50.3(c) II A(2)), shall be
submission of an assurance of compliance and a review of the data
submitted by the applicant. Where a determination cannot be made from
this data, the agency shall require the submission of necessary
additional information and shall take other steps necessary for making
the determination. Such other steps may include, for example,
communicating with local government officials or minority group
organizations and field reviews. Where the requested assistance is for
construction, a pre-approval review should determine whether the
location and design of the project will provide service on a
nondiscriminatory basis and whether persons will be displaced or
relocated on a nondiscriminatory basis.
(c) Post-approval review. (1) Federal agencies shall establish and
maintain an effective program of post-approval compliance reviews
regarding approved new applications (see 28 CFR 50.3(c) II A),
applications for continuation or renewal of assistance (28 CFR 50.3(c)
II B) and all other federally assisted programs. Such reviews are to
include periodic submission of compliance reports by recipients to the
agencies and, where appropriate, field reviews of a representative
number of major recipients. In carrying out this program,
[[Page 793]]
agency personnel shall follow agency manuals which establish appropriate
review procedures and standards of evaluation. Additionally, agencies
should consider incorporating a title VI component into general program
reviews and audits.
(2) The results of post-approval reviews shall be committed to
writing and shall include specific findings of fact and recommendations.
A determination of the compliance status of the recipient reviewed shall
be made as promptly as possible.
(d) Notice to assistant attorney general. Federal agencies shall
promptly notify the Assistant Attorney General of instances of probable
noncompliance determined as the result of application reviews or post-
approval compliance reviews.
Sec. 42.408 Complaint procedures.
(a) Federal agencies shall establish and publish in their guidelines
procedures for the prompt processing and disposition of complaints. The
complaint procedures shall provide for notification in writing to the
complainant and the applicant or recipient as to the disposition of the
complaint. Federal agencies should investigate complaints having
apparent merit. Where such complaints are not investigated, good cause
must exist and must be stated in the notification of disposition. In
such cases, the agency shall ascertain the feasibility of referring the
complaint to the primary recipient, such as a State agency, for
investigation.
(b) Where a federal agency lacks jurisdiction over a complaint, the
agency shall, wherever possible, refer the complaint to another federal
agency or advise the complainant.
(c) Where a federal agency requires or permits recipient to process
title VI complaints, the agency shall ascertain whether the recipients'
procedures for processing complaints are adequate. The federal agency
shall obtain a written report of each such complaint and investigation
and shall retain a review responsibility over the investigation and
disposition of each complaint.
(d) Each federal agency shall maintain a log of title VI complaints
filed with it, and with its recipients, identifying each complainant by
race, color, or national origin; the recipient; the nature of the
complaint; the dates the complaint was filed and the investigation
completed; the disposition; the date of disposition; and other pertinent
information. Each recipient processing title VI complaints shall be
required to maintain a similar log. Federal agencies shall report to the
Assistant Attorney General on January 1, 1977, and each six months
thereafter, the receipt, nature and disposition of all such title VI
complaints.
Sec. 42.409 Employment practices.
Enforcement of title VI compliance with respect to covered
employment practices shall not be superseded by state and local merit
systems relating to the employment practices of the same recipient.
Sec. 42.410 Continuing State programs.
Each state agency administering a continuing program which receives
federal financial assistance shall be required to establish a title VI
compliance program for itself and other recipients which obtain federal
assistance through it. The federal agencies shall require that such
state compliance programs provide for the assignment of title VI
responsibilities to designated state personnel and comply with the
minimum standards established in this subpart for federal agencies,
including the maintenance of records necessary to permit federal
officials to determine the title VI compliance of the state agencies and
the sub-recipient.
Sec. 42.411 Methods of resolving noncompliance.
(a) Effective enforcement of title VI requires that agencies take
prompt action to achieve voluntary compliance in all instances in which
noncompliance is found. Where such efforts have not been successful
within a reasonable period of time, the agency shall initiate
appropriate enforcement procedures as set forth in the 1965 Attorney
General Guidelines, 28 CFR 50.3. Each agency shall establish internal
controls to avoid unnecessary delay in resolving noncompliance, and
shall promptly notify the Assistant Attorney General of
[[Page 794]]
any case in which negotiations have continued for more than sixty days
after the making of the determination of probable noncompliance and
shall state the reasons for the length of the negotiations.
(b) Agreement on the part of a noncomplying recipient to take
remedial steps to achieve compliance with title VI shall be set forth in
writing by the recipient and the federal agency. The remedial plan shall
specify the action necessary for the correction of title VI deficiencies
and shall be available to the public.
Sec. 42.412 Coordination.
(a) The Attorney General's authority under Executive Order 12250 is
hereby delegated to the Assistant Attorney General, Civil Rights
Division.
(b) Consistent with this subpart and the 1965 Attorney General
Guidelines, 28 CFR 50.3, the Assistant Attorney General may issue such
directives and take such other action as he deems necessary to insure
that federal agencies carry out their responsibilities under title VI.
In addition, the Assistant Attorney General will routinely provide to
the Director of the Office of Management and Budget copies of all inter-
agency survey reports and related materials prepared by the Civil Rights
Division that evaluate the effectiveness of an agency's title VI
compliance efforts. Where cases or matters are referred to the Assistant
Attorney General for investigation, litigation or other appropriate
action, the federal agencies shall, upon request, provide appropriate
resources to the Assistant Attorney General to assist in carrying out
such action.
[Order No. 670-76, 41 FR 52669, Dec. 1, 1976, as amended by Order No.
699-77, 42 FR 15315, Mar. 21, 1977; Order No. 960-81, 46 FR 52357, Oct.
27, 1981]
Sec. 42.413 Interagency cooperation and delegations.
(a) Where each of a substantial number of recipients is receiving
assistance for similar or related purposes from two or more federal
agencies, or where two or more federal agencies cooperate in
administering assistance for a given class of recipients, the federal
agencies shall:
(1) Jointly coordinate compliance with title VI in the assisted
programs, to the extent consistent with the federal statutes under which
the assistance is provided; and
(2) Designate one of the federal agencies as the lead agency for
title VI compliance purposes. This shall be done by a written delegation
agreement, a copy of which shall be provided to the Assistant Attorney
General and shall be published in the Federal Register.
(b) Where such designations or delegations of functions have been
made, the agencies shall adopt adequate written procedures to assure
that the same standards of compliance with title VI are utilized at the
operational levels by each of the agencies. This may include
notification to agency personnel in handbooks, or instructions on any
forms used regarding the compliance procedures.
(c) Any agency conducting a compliance review or investigating a
complaint of an alleged title VI violation shall notify any other
affected agency upon discovery of its jurisdiction and shall
subsequently inform it of the findings made. Such reviews or
investigations may be made on a joint basis.
(d) Where a compliance review or complaint investigation under title
VI reveals a possible violation of Executive Order 11246, title VII of
the Civil Rights Act of 1964 (42 U.S.C. 2000e), or any other federal
law, the appropriate agency shall be notified.
Sec. 42.414 Federal agency staff.
Sufficient personnel shall be assigned by a federal agency to its
title VI compliance program to ensure effective enforcement of title VI.
Sec. 42.415 Federal agency title VI enforcement plan.
Each federal agency subject to title VI shall develop a written plan
for enforcement which sets out its priorities and procedures. This plan
shall be available to the public and shall address matters such as the
method for selecting recipients for compliance reviews, the
establishment of timetables
[[Page 795]]
and controls for such reviews, the procedure for handling complaints,
the allocation of its staff to different compliance functions, the
development of guidelines, the determination as to when guidelines are
not appropriate, and the provision of civil rights training for its
staff.
Subpart G--Nondiscrimination Based on Handicap in Federally Assisted
Programs--Implementation of Section 504 of the Rehabilitation Act of
1973
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 29 U.S.C. 706, 794;
E.O. 12250.
Source: 45 FR 37622, June 3, 1980, unless otherwise noted.
General Provisions
Sec. 42.501 Purpose.
The purpose of this subpart is to implement section 504 of the
Rehabilitation Act of 1973, as amended, which prohibits discrimination
on the basis of handicap in any program receiving Federal financial
assistance.
Sec. 42.502 Application.
This subpart applies to each recipient of Federal financial
assistance from the Department of Justice and to each program receiving
or benefiting from such assistance. The requirements of this subpart do
not apply to the ultimate beneficiaries of Federal financial assistance
in the program receiving Federal financial assistance.
Sec. 42.503 Discrimination prohibited.
(a) General. No qualified handicapped person shall, solely on the
basis of handicap, be excluded from participation in, be denied the
benefits of, or otherwise be subjected to discrimination under any
program receiving or benefiting from Federal financial assistance.
(b) Discriminatory actions prohibited. (1) A recipient may not
discriminate on the basis of handicap in the following ways directly or
through contractual, licensing, or other arrangements under any program
receiving Federal financial assistance:
(i) Deny a qualified handicapped person the opportunity accorded
others to participate in the program receiving Federal financial
assistance;
(ii) Deny a qualified handicapped person an equal opportunity to
achieve the same benefits that others achieve in the program receiving
Federal financial assistance;
(iii) Provide different or separate assistance to handicapped
persons or classes of handicapped persons than is provided to others
unless such action is necessary to provide qualified handicapped persons
or classes of handicapped persons with assistance as effective as that
provided to others;
(iv) Deny a qualified handicapped person an equal opportunity to
participate in the program by providing services to the program;
(v) Deny a qualified handicapped person an opportunity to
participate as a member of a planning or advisory body;
(vi) Permit the participation in the program of agencies,
organizations or persons which discriminate against the handicapped
beneficiaries in the recipient's program;
(vii) Intimidate or retaliate against any individual, whether
handicapped or not, for the purpose of interfering with any right
secured by section 504 or this subpart.
(2) A recipient may not deny a qualified handicapped person the
opportunity to participate in any program receiving Federal financial
assistance on the ground that other specialized programs for handicapped
persons are available.
(3) A recipient may not, directly or through contractual, licensing,
or other arrangements, utilize criteria or methods of administration
that either purposely or in effect discriminate on the basis of
handicap, defeat or substantially impair accomplishment of the
objectives of the recipient's program with respect to handicapped
persons, or perpetuate the discrimination of another recipient if both
recipients are subject to common administrative control or are agencies
of the same State.
(4) A recipient may not, in determining the location or design of a
facility, make selections that either purposely or in effect
discriminate on the
[[Page 796]]
basis of handicap or defeat or substantially impair the accomplishment
of the objectives of the program with respect to handicapped persons.
(5) A recipient is prohibited from discriminating on the basis of
handicap in a program operating without Federal financial assistance
where such action would discriminate against the handicapped
beneficiaries or participants in any program of the recipient receiving
Federal financial assistance.
(6) Any program not otherwise receiving Federal financial assistance
but using a facility provided with the aid of Federal financial
assistance after the effective date of this subpart is prohibited from
discriminating on the basis of handicap.
(c) The exclusion of nonhandicapped persons or specified classes of
handicapped persons from programs limited by Federal statute or
executive order to handicapped persons or a different class of
handicapped persons is not prohibited by this subpart.
(d) Recipients shall administer programs in the most integrated
setting appropriate to the needs of qualified handicapped persons.
(e) Recipients shall insure that communications with their
applicants, employees and beneficiaries are effectively conveyed to
those having impaired vision and hearing.
(f) A recipient that employs fifteen or more persons shall provide
appropriate auxiliary aids to qualified handicapped persons with
impaired sensory, manual, or speaking skills where a refusal to make
such provision would discriminatorily impair or exclude the
participation of such persons in a program receiving Federal financial
assistance. Such auxiliary aids may include brailled and taped material,
qualified interpreters, readers, and telephonic devices. Attendants,
individually prescribed devices, readers for personal use or study, or
other devices or services of a personal nature are not required under
this section. Departmental officials may require recipients employing
fewer than fifteen persons to provide auxiliary aids when this would not
significantly impair the ability of the recipient to provide its
benefits or services.
(g) The enumeration of specific forms of prohibited discrimination
in this subpart is not exhaustive but only illustrative.
Sec. 42.504 Assurances required.
(a) Assurances. Every application for Federal financial assistance
covered by this subpart shall contain an assurance that the program will
be conducted in compliance with the requirements of section 504 and this
subpart. Each agency within the Department that provides Federal
financial assistance shall specify the form of the foregoing assurance
for each of its assistance programs and shall require applicants for
Department financial assistance to obtain like assurances from
subgrantees, contractors and subcontractors, transferees, successors in
interest, and others connected with the program. Each Department agency
shall specify the extent to which an applicant will be required to
confirm that the assurances provided by secondary recipients are being
honored. Each assurance shall include provisions giving notice that the
United States has a right to seek judicial enforcement of section 504
and the assurance.
(b) Assurances from government agencies. Assurances from agencies of
State and local governments shall extend to any other agency of the same
governmental unit if the policies of the other agency will affect the
program for which Federal financial assistance is requested.
(c) Assurances from institutions. The assurances required with
respect to any institution or facility shall be applicable to the entire
institution or facility.
(d) Duration of obligation. Where the Federal financial assistance
is to provide or is in the form of real or personal property, the
assurance will obligate the recipient and any transferee for the period
during which the property is being used for the purpose for which the
Federal financial assistance is extended or for another purpose
involving the provisions of similar benefits, or for as long as the
recipient retains ownership or possession of the property, whichever is
longer. In all other cases the assurance will obligate the recipient for
the period during
[[Page 797]]
which Federal financial assistance is extended.
(e) Covenants. With respect to any transfer of real property, the
transfer document shall contain a covenant running with the land
assuring nondiscrimination on the condition described in paragraph (d)
of this section. Where the property is obtained from the Federal
Government, the covenant may also include a condition coupled with a
right to be reserved by the Department to revert title to the property
in the event of a breach of the covenant.
(f) Remedies. The failure to secure either an assurance or a
sufficient assurance from a recipient shall not impair the right of the
Department to enforce the requirements of section 504 and this subpart.
Sec. 42.505 Administrative requirements for recipients.
(a) Remedial action. If the Department finds that a recipient has
discriminated against persons on the basis of handicap in violation of
section 504 or this subpart, the recipient shall take the remedial
action the Department considers necessary to overcome the effects of the
discrimination. This may include remedial action with respect to
handicapped persons who are no longer participants in the recipient's
program but who were participants in the program when such
discrimination occurred, and with respect to handicapped persons who
would have been participants in the program had the discrimination not
occurred.
(b) Voluntary action. A recipient may take steps, in addition to the
requirements of this subpart, to increase the participation of qualified
handicapped persons in the recipient's program.
(c) Self-evaluation. (1) A recipient shall, within one year of the
effective date of this subpart, evaluate and modify its policies and
practices that do not meet the requirements of this subpart. During this
process the recipient shall seek the advice and assistance of interested
persons, including handicapped persons or organizations representing
handicapped persons. During this period and thereafter the recipient
shall take any necessary remedial steps to eliminate the effects of
discrimination that resulted from adherence to these policies and
practices.
(2) A recipient employing fifty or more persons and receiving
Federal financial assistance from the Department of $25,000 or more
shall, for at least three years following completion of the evaluation
required under paragraph (c)(1) of this section, maintain on file, make
available for public inspection, and provide to the Department on
request:
(i) A list of the interested persons consulted,
(ii) A description of areas examined and problems identified, and
(iii) A description of modifications made and remedial steps taken.
(d) Designation of responsible employee. A recipient employing fifty
or more persons and receiving Federal financial assistance from the
Department of $25,000 or more shall designate at least one person to
coordinate compliance with this subpart.
(e) Adoption of grievance procedures. A recipient employing fifty or
more persons and receiving Federal financial assistance from the
Department of $25,000 or more shall adopt grievance procedures that
incorporate due process standards (e.g. adequate notice, fair hearing)
and provide for the prompt and equitable resolution of complaints
alleging any action prohibited by this subpart. Such procedures need not
be established with respect to complaints from applicants for
employment. An employee may file a complaint with the Department without
having first used the recipient's grievance procedures.
(f) Notice. (1) A recipient employing fifty or more persons and
receiving Federal financial assistance from the Department of more than
$25,000 shall, on a continuing basis, notify participants,
beneficiaries, applicants, employees and unions or professional
organizations holding collective bargaining or professional agreements
with the recipient that it does not discriminate on the basis of
handicap in violation of section 504 and this subpart. The notification
shall state, where appropriate, that the recipient does not discriminate
in its programs with respect to access, treatment or employment. The
notification shall
[[Page 798]]
also include identification of the person responsible for coordinating
compliance with this subpart and where to file section 504 complaints
with the Department and, where applicable, with the recipient. A
recipient shall make the initial notification required by this paragraph
within 90 days of the effective date of this subpart. Methods of initial
and continuing notification may include the posting of notices,
publication in newspapers and magazines, placement of notices in
recipients' publication, and distribution of memoranda or other written
communications.
(2) Recruitment materials or publications containing general
information that a recipient makes available to participants,
beneficiaries, applicants, or employees shall include a policy statement
of nondiscrimination on the basis of handicap.
(g) The Department may require any recipient with fewer than fifty
employees and receiving less than $25,000 in Federal financial
assistance to comply with paragraphs (c)(2) and (d) through (f) of this
section.
(h) The obligation to comply with this subpart is not affected by
any State or local law or requirement or limited employment
opportunities for handicapped persons in any occupation or profession.
Employment
Sec. 42.510 Discrimination prohibited.
(a) General. (1) No qualified handicapped person shall on the basis
of handicap be subjected to discrimination in employment under any
program receiving or benefiting from Federal financial assistance.
(2) A recipient shall make all decisions concerning employment under
any program receiving Federal financial assistance in a manner which
insures that discrimination on the basis of handicap does not occur and
may not limit, segregate, or classify applicants or employees in any way
that adversely affects their opportunities or status because of
handicap.
(3) A recipient may not participate in a contractual or other
relationship that has the effect of subjecting qualified handicapped
applicants or employees to discrimination prohibited by this section.
The relationships referred to in this paragraph include relationships
with employment and referral agencies, labor unions, organizations
providing or administering fringe benefits to employees of the
recipient, and organizations providing training and apprenticeship
programs, and with civil service agencies in State or local units of
government.
(b) Specific activities. The prohibition against discrimination in
employment applies to the following activities:
(1) Recruitment, advertising, and application processing;
(2) Hiring, upgrading, promotion, award of tenure, demotion,
transfer, layoff, termination, right of return from layoff and rehiring;
(3) Pay and any other form of compensation and changes in
compensation, including fringe benefits available by virtue of
employment, whether or not administered by the recipient;
(4) Job assignments, job classifications, organizational structures,
position descriptions, lines of progression, and seniority lists;
(5) Leaves of absence, sick leave, or any other leave;
(6) Selection and financial support for training, including
apprenticeship, professional meetings, conferences, and selection for
leaves of absence to pursue training;
(7) Employer-sponsored activities, including social or recreational
programs; and
(8) Any other term, condition, or privilege of employment.
(c) In offering employment or promotions to handicapped individuals,
recipients may not reduce the amount of compensation offered because of
any disability income, pension or other benefit the applicant or
employee receives from another source.
(d) A recipient's obligation to comply with this section is not
affected by any inconsistent term of any collective bargaining agreement
to which it is a party.
Sec. 42.511 Reasonable accommodation.
(a) A recipient shall make reasonable accommodation to the known
physical or mental limitations of an otherwise
[[Page 799]]
qualified handicapped applicant or employee unless the recipient can
demonstrate, based on the individual assessment of the applicant or
employee, that the accommodation would impose an undue hardship on the
operation of its program.
(b) Reasonable accommodation may include making facilities used by
employees readily accessible to and usable by handicapped persons, job
restructuring, part-time or modified work schedules, acquisition or
modification of equipment or devices (e.g., telecommunication or other
telephone devices), the provisions of readers or qualified interpreters,
and other similar actions.
(c) Whether an accommodation would impose an undue hardship on the
operation of a recipient's program depends upon a case-by-case analysis
weighing factors that include:
(1) The overall size of the recipient's program with respect to
number of employees, number and type of facilities, and size of budget;
(2) The type of the recipient's operation, including the composition
and structure of the recipient's workforce; and
(3) The nature and cost of the accommodation needed.
A reasonable accommodation may require a recipient to bear more than an
insignificant economic cost in making allowance for the handicap of a
qualified applicant or employee and to accept minor inconvenience which
does not bear on the ability of the handicapped individual to perform
the essential duties of the job.
Sec. 42.512 Employment criteria.
(a) A recipient may not use any employment test or other selection
criterion that tends to screen out handicapped persons unless:
(1) The test score or other selection criterion, as used by the
recipient, is shown to be job-related for the position in question, and
(2) Alternative job-related tests or criteria that tend to screen
out fewer handicapped persons are not shown by the appropriate
Department officials to be available.
(b) A recipient shall administer tests using procedures (e.g.,
auxiliary aids such as readers for visually-impaired persons or
qualified sign language interpreters for hearing-impaired persons) that
accommodate the special problems of handicapped persons to the fullest
extent, consistent with the objectives of the test. When a test is
administered to an applicant or employee who has a handicap that impairs
sensory, manual, or speaking skills, the test results must accurately
reflect the applicant's or employee's job skills, aptitude, or whatever
other factor the test purports to measure, rather than reflecting the
applicant's or employee's impaired sensory, manual, or speaking skills
(except where those skills are the factors that the test purports to
measure).
Sec. 42.513 Preemployment inquiries.
(a) Except as provided in paragraphs (b) and (c) of this section, a
recipient may not conduct a preemployment medical examination and may
not make preemployment inquiry of an applicant as to whether the
applicant is a handicapped person or as to the nature or severity of a
handicap. A recipient may, however, make preemployment inquiry into an
applicant's ability to perform job-related functions.
(b) When a recipient is taking remedial action to correct the
effects of past discrimination pursuant to Sec. 42.505(a) of this
subpart, when a recipient is taking voluntary action to overcome the
effects of conditions that resulted in limited participation in its
Federally assisted program or activity pursuant to Sec. 42.505(b) of
this subpart, or when a recipient is taking affirmative action pursuant
to section 503 of the Act, the recipient may invite applicants for
employment to indicate whether and to what extent they are handicapped:
Provided, That:
(1) The recipient states clearly on any written questionnaire used
for this purpose or makes clear orally if no written questionnaire is
used that the information requested is intended for use solely in
connection with its remedial action obligations or its voluntary
efforts;
(2) The recipient states clearly that the information is being
requested on a voluntary basis, that it will be kept confidential as
provided in paragraph
[[Page 800]]
(d) of this section, that refusal to provide it will not subject the
applicant or employee to any adverse treatment, and that it will be used
only in accordance with this part.
(c) Nothing in this section shall prohibit a recipient from
conditioning an offer of employment on the results of a medical
examination conducted prior to the employee's entrance on duty:
Provided, That:
(1) All entering employees are subjected to such an examination
regardless of handicap, and
(2) The results of such an examination are used only in accordance
with the requirements of this subpart.
(d) The applicant's medical record shall be collected and maintained
on separate forms and kept confidential, except that the following
persons may be informed:
(1) Supervisors and managers regarding restrictions on the work of
handicapped persons and necessary accommodations;
(2) First aid and safety personnel if the condition might require
emergency treatment; and
(3) Government officials investigating compliance with the Act upon
request for relevant information.
Program Accessibility
Sec. 42.520 Discrimination prohibited.
Recipients shall insure that no qualified handicapped person is
denied the benefits of, excluded from participation in, or otherwise
subjected to discrimination under any program receiving Federal
financial assistance because the recipient's facilities are inaccessible
to or unusable by handicapped persons.
Sec. 42.521 Existing facilities.
(a) Program accessibility. A recipient shall operate each program to
which this subpart applies so that the program, when viewed in its
entirety, is readily accessible to and usable by handicapped persons.
This section does not require a recipient to make each of its existing
facilities or every part of a facility accessible to and usable by
handicapped persons.
(b) Compliance procedures. A recipient may comply with the
requirement of paragraph (a) of this section through acquisition or
redesign of equipment, reassignment of services to accessible buildings,
assignment of aids to beneficiaries, delivery of services at alternate
accessible sites, alteration of existing facilities, or any other method
that results in making its program accessible to its program accessible
to handicapped persons. A recipient is not required to make structural
changes in existing facilities where other methods are effective in
achieving compliance with paragraph (a) of this section. In choosing
among methods for meeting the requirement of paragraph (a) of this
section, a recipient shall give priority to those methods that offer
programs to handicapped persons in the most integrated setting
appropriate to obtain the full benefits of the program.
(c) Small providers. If a recipient with fewer than fifteen
employees finds, after consultation with a handicapped person seeking
its services, that there is no method of complying with Sec. 42.521(a)
other than making a significant alteration in its existing facilities,
the recipient may, as an alternative, refer the handicapped person to
other available providers of those services that are accessible.
(d) Time period. A recipient shall comply with the requirement of
paragraph (a) of this section within ninety days of the effective date
of this subpart. However, where structural changes in facilities are
necessary, such changes shall be made as expeditiously as possible and
shall be completed no later than three years from the effective date of
this subpart. If structural changes to facilities are necessary, a
recipient shall, within six months of the effective date of this
subpart, develop a written plan setting forth the steps that will be
taken to complete the changes together with a schedule for making the
changes. The plan shall be developed with the assistance of interested
persons, including handicapped persons or organizations representing
handicapped persons and shall be made available for public inspection.
The plan shall, at a mininum:
(1) Identify physical obstacles in the recipient's facilities that
limit the accessibility of its program to handicapped persons;
[[Page 801]]
(2) Describe in detail the methods that will be used to make the
facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve
full program accessibility and, if the time period of the transition
plan is longer than one year, identify the steps that will be taken
during each year of the transition period; and
(4) Indicate the person responsible for implementation of the plan.
(e) Notice. The recipient shall adopt and implement procedures to
insure that interested persons, including mentally retarded persons or
persons with impaired vision or hearing, special learning problems, or
other disabilities, can obtain information as to the existence and
location of services, activities, and facilities that are accessible to
and usable by handicapped persons.
Sec. 42.522 New construction.
(a) Design and construction. Each new facility constructed by, on
behalf of, or for the use of a recipient shall be designed and
constructed in such a manner that the facility is readily accessible to
and usable by handicapped persons, if the construction was commenced
after the effective date of this subpart. Any alterations to existing
facilities shall, to the maximum extent feasible, be made in an
accessible manner. Any alterations to existing facilities shall, to the
maximum extent feasible, be made in an accessible manner.
(b) Conformance with Uniform Federal Accessibility Standards. (1)
Effective as of March 7, 1988, design, construction, or alteration of
buildings in conformance with sections 3-8 of the Uniform Federal
Accessibility Standards (UFAS) (appendix A to 41 CFR subpart 101-19.6)
shall be deemed to comply with the requirements of this section with
respect to those buildings. Departures from particular technical and
scoping requirements of UFAS by the use of other methods are permitted
where substantially equivalent or greater access to and usability of the
building is provided.
(2) For purposes of this section, section 4.1.6(1)(g) of UFAS shall
be interpreted to exempt from the requirements of UFAS only mechanical
rooms and other spaces that, because of their intended use, will not
require accessibility to the public or beneficiaries or result in the
employment or residence therein of persons with physical handicaps.
(3) This section does not require recipients to make building
alterations that have little likelihood of being accomplished without
removing or altering a load-bearing structural member.
[45 FR 37622, June 3, 1980, as amended by Order 1249-88, 53 FR 3206,
Feb. 4, 1988]
Procedures
Sec. 42.530 Procedures.
(a) The procedural provisions applicable to title VI of the Civil
Rights Act of 1964 (28 CFR 42.106-42.110) apply to this subpart except
that the provision contained in Secs. 42.110(e) and 42.108(c)(3) which
requires the Attorney General's approval before the imposition of any
sanction against a recipient does not apply to programs funded by LEAA,
NIJ, BJS, OJARS and OJJDP. The applicable provisions contain
requirements for compliance information (Sec. 42.106), conduct of
investigations (Sec. 42.107), procedure for effecting compliance
(Sec. 42.108), hearings (Sec. 42.109), and decisions and notices
(Sec. 42.110). (See appendix C.)
(b) In the case of programs funded by LEAA, NIJ, BJS, OJARS and
OJJDP, the timetables and standards for investigation of complaints and
for the conduct of compliance reviews contained in Sec. 42.205(c)(1)
through (c)(3) and Sec. 42.206 (c) and (d) are applicable to this
subpart except that any finding of noncompliance shall be enforced as
provided in paragraph (a) of this section. (See appendix D.)
(c) In the case of programs funded by LEAA, NIJ, BJS, OJARS and
OJJDP, the refusal to provide requested information under paragraph (a)
of this section and Sec. 42.106 will be enforced pursuant to the
provisions of section 803(a) of title I of the Omnibus Crime Control and
Safe Streets Act, as amended by the Justice System Improvement Act of
1979, Public Law 96-157, 93 Stat. 1167.
(d) For acts of discrimination occurring prior to the effective date
of this subpart, the 180-day limitation period
[[Page 802]]
for filing of complaints (Sec. 42.107 of this title) will apply from
that date.
(e) The Department will investigate complaints alleging
discrimination in violation of section 504 occurring prior to the
effective date of this subpart where the language of the statute or
HEW's interagency guidelines (43 FR 2132, January 13, 1978) implementing
Executive Order 11914 (41 FR 17871, April 28, 1976) provided notice that
the challenged policy or practice was unlawful.
Definitions
Sec. 42.540 Definitions.
As used in this subpart the term:
(a) The Act means the Rehabilitation Act of 1973, Public Law 93-112,
as amended (29 U.S.C. 701 et seq.).
(b) Section 504 means section 504 of the Act (29 U.S.C. 794).
(c) Department means the Department of Justice.
(d) LEAA means the Law Enforcement Assistance Administration; NIJ
means the National Institute of Justice; BJS means the Bureau of Justice
Statistics; OJARS means the Office of Justice Assistance, Research and
Statistics; OJJDP means Office of Juvenile Justice and Delinquency
Prevention.
(e) Recipient means any State or unit of local goverment, any
instrumentality of a State or unit of local government, any public or
private agency, institution, organization, or other public or private
entity, or any person to which Federal financial assistance is extended
directly or through another recipient, including any successor,
assignee, or transferree of a recipient, but excluding the ultimate
beneficiary of the assistance.
(f) Federal financial assistance means any grant, cooperative
agreement, loan, contract (other than a direct Federal procurement
contract or a contract of insurance or guaranty), subgrant, contract
under a grant or any other arrangement by which the Department provides
or otherwise makes available assistance in the form of:
(1) Funds;
(2) Services of Federal personnel;
(3) Real and personal property or any interest in or use of such
property, including:
(i) Transfers or leases of such property for less than fair market
value or for reduced consideration; and
(ii) Proceeds from a subsequent transfer or lease of such property
if the Federal share of its fair market value is not returned to the
Federal Government;
(4) Any other thing of value by way of grant, loan, contract or
cooperative agreement.
(g) Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, or other real or personal
property or interest in such property.
(h) The term program means the operations of the agency or
organizational unit of government receiving or substantially benefiting
from the Federal assistance awarded, e.g., a police department or
department of corrections.
(i) Ultimate beneficiary is one among a class of persons who are
entitled to benefit from, or otherwise participate in, programs
receiving Federal financial assistance and to whom the protections of
this subpart extend. The ultimate beneficiary class may be the general
public or some narrower group of persons.
(j) Benefit includes provision of services, financial aid or
disposition (i.e., treatment, handling, decision, sentencing,
confinement, or other prescription of conduct).
(k) Handicapped person. (1) Handicapped person means any person who
(i) has a physical or mental impairment which substantially limits one
or more major life activities, (ii) has a record of such an impairment,
or (iii) is regarded as having such an impairment. For purposes of
employment, such term does not include any individual who is an
alcoholic or drug abuser whose current use of alcohol or drugs prevents
such individual from performing the duties of the job in question or
whose employment, by reason of such current alcohol or drug abuse, would
constitute a direct threat to property or the safety of others.
(2) As used in this subpart the phrase:
(i) Physical or mental impairment means:
[[Page 803]]
(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; hemic and lymphatic; skin; and endocrine;
(B) Any mental or psychological disorder such as mental retardation,
organic brain syndrome, emotional or mental illness, and specific
learning disabilities.
The term physical or mental impairment includes, but is not limited to,
such diseases and conditions as orthopedic, visual, speech, and hearing
impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple
sclerosis, cancer, heart disease, diabetes, mental retardation,
emotional illness, and drug and alcohol abuse.
(ii) Major life activities mean functions such as caring for one's
self, performing manual tasks walking, seeing, hearing, speaking,
breathing, learning, and working.
(iii) Has a record of such an impairment means has a history of, or
has been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(iv) Is regarded as having an impairment means:
(A) Has a physical or mental impairment that does not substantially
limit major life activities but that is treated by a recipient as
constituting such a limitation;
(B) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
(C) Has none of the impairments defined in paragraph (k)(2)(i) of
this section but is treated by a recipient as having such an impairment.
(l) Qualified handicapped person means:
(1) With respect to employment, a handicapped person who, with
reasonable accommodation, can perform the essential functions of the job
in question;
(2) With respect to services, a handicapped person who meets the
essential eligibility requirements for the receipt of such services.
(m) Handicap means any condition or characteristic that renders a
person a handicapped person as defined in paragraph (k) of this section.
(n) Drug abuse means:
(1) The use of any drug or substance listed by the Department of
Justice in 21 CFR 1308.11, under authority of the Controlled Substances
Act, 21 U.S.C. 801, as a controlled substance unavailable for
prescription because:
(i) The drug or substance has a high potential for abuse,
(ii) The drug or other substance has no currently accepted medical
use in treatment in the United States,
(iii) There is a lack of accepted safety for use of the drug or
other substance under medical supervision;
(2) The misuse of any drug or substance listed by the Department of
Justice in 21 CFR 1308.12 through 1308.15 under authority of the
Controlled Substances Act as a controlled substance available for
prescription.
Examples of (1) include certain opiates and opiate derivatives (e.g.,
heroin) and hallucinogenic substances (e.g., marihuana, mescaline,
peyote) and depressants (e.g., methaqualone). Examples of (2) include
opium, coca leaves, methadone, amphetamines and barbiturates.
(o) Alcohol abuse includes alcoholism but also means any misuse of
alcohol which demonstrably interferes with a person's health,
interpersonal relations or working.
Appendix A to Subpart G of Part 42--Federal Financial Assistance
Administered by the Department of Justice to Which This Subpart Applies
Note: Failure to list a type of Federal assistance in appendix A
shall not mean, if section 504 is otherwise applicable, that a program
is not covered.
Editorial Note: For the text of appendix A to subpart G, see
appendix A to subpart C of this part.
[Order No. 1204-87, 52 FR 24450, July 1, 1987]
[[Page 804]]
Appendix B to Subpart G of Part 42[Reserved]
Appendix C to Subpart G of Part 42--Department Regulations Under Title
VI of the Civil Rights Act of 1964 (28 CFR 42.106-42.110) Which Apply to
This Subpart
Editorial Note: For the text of appendix C, see Secs. 42.106 through
42.110 of this part.
Appendix D to Subpart G of Part 42--OJARS' Regulations Under the Omnibus
Crime Control and Safe Streets Act, as Amended, Which Apply to This
Subpart (28 CFR 42.205 and 42.206)
Editorial Note: For the text of appendix D, see Secs. 42.205 and
42.206 of this part.
Subpart H--Procedures for Complaints of Employment Discrimination Filed
Against Recipients of Federal Financial Assistance
Authority: E.O. 12250, 45 FR 72995, 3 CFR, 1980 Comp., p. 298; E.O.
12067, 43 FR 28967, 3 CFR, 1978 Comp., p. 206.
Source: Order No. 992-83, 48 FR 3577, Jan. 25, 1983, unless
otherwise noted.
Sec. 42.601 Purpose and application.
The purpose of this regulation is implement procedures for
processing and resolving complaints of employment discrimination filed
against recipients of Federal financial assistance subject to title VI
of the Civil Rights Act of 1964, title IX of the Education Amendments of
1972, the State and Local Fiscal Assistance Act of 1972, as amended, and
provisions similar to title VI and title IX in Federal grant statutes.
Enforcement of such provisions in Federal grant statutes is covered by
this regulation to the extent they relate to prohibiting employment
discrimination on the ground of race, color, national origin, religion
or sex in programs receiving Federal financial assistance of the type
subject to title VI or title IX. This regulation does not, however,
apply to the Omnibus Crime Control and Safe Streets Act of 1968, as
amended, the Juvenile Justice and Delinquency Prevention Act, as
amended, the Comprehensive Employment Training Act of 1973, as amended,
or Executive Order 11246.
Sec. 42.602 Exchange of information.
EEOC and agencies shall share any information relating to the
employment policies and practices of recipients of federal financial
assistance that may assist each office in carrying out its
responsibilities. Such information shall include, but not necessarily be
limited to, affirmative action programs, annual employment reports,
complaints, investigative files, conciliation or compliance agreements,
and compliance review reports and files.
Sec. 42.603 Confidentiality.
When an agency receives information obtained by EEOC, the agency
shall observe the confidentiality requirements of sections 706(b) and
709(e) of title VII as would EEOC, except in cases where the agency
receives the same information from a source independent of EEOC or has
referred a joint complaint to EEOC under this regulation. In such cases,
the agency may use independent source information or information
obtained by EEOC under the agency's investigative authority in a
subsequent title VI, title IX or revenue sharing act enforcement
proceeding. Agency questions concerning confidentiality shall be
directed to the Associate Legal Counsel for Legal Services, Office of
Legal Counsel of EEOC.
Sec. 42.604 Standards for investigation, reviews and hearings.
In any investigation, compliance review, hearing or other
proceeding, agencies shall consider title VII case law and EEOC
Guidelines, 29 CFR parts 1604 through 1607, unless inapplicable, in
determining whether a recipient of Federal financial assistance has
engaged in an unlawful employment practice.
Sec. 42.605 Agency processing of complaints of employment discrimination.
(a) Within ten days of receipt of a complaint of employment
discrimination, an agency shall notify the respondent that it has
received a complaint of employment discrimination,
[[Page 805]]
including the date, place and circumstances of the alleged unlawful
employment practice.
(b) Within thirty days of receipt of a complaint of employment
discrimination an agency shall:
(1) Determine whether it has jurisdiction over the complaint under
title VI, title IX, or the revenue sharing act; and
(2) Determine whether EEOC may have jurisdiction over the complaint
under title VII of or the Equal Pay Act.
(c) An agency shall transfer to EEOC a complaint of employment
discrimination over which it does not have jurisdiction but over which
EEOC may have jurisdiction within thirty days of receipt of a complaint.
At the same time, the agency shall notify the complainant and the
respondent of the transfer, the reason for the transfer, the location of
the EEOC office to which the complaint was transferred and that the date
the agency received the complaint will be deemed the date it was
received by EEOC.
(d) If any agency determines that a complaint of employment
discrimination is a joint complaint, then the agency may refer the
complaint to EEOC. The agency need not consult with EEOC prior to such a
referral. An agency referral of a joint complaint should occur within
thirty days of receipt of the complaint.
(e) An agency shall refer to EEOC all joint complaints solely
alleging employment discrimination against an individual. If an agency
determines that special circumstances warrant its investigation of such
a joint complaint, then the agency shall determine whether the
complainant has filed a similar charge of employment discrimination with
EEOC.
(1) If an agency determines that the complainant has filed a similar
charge of employment discrimination with EEOC, then the agency may
investigate the complaint if EEOC agrees to defer its investigation
pending the agency investigation.
(2) If an agency determines that the complainant has not filed a
similar charge of employment discrimination with the EEOC, then the
agency may investigate the complaint if special circumstances warrant
such action. In such cases, EEOC shall defer its investigation of the
referred joint complaint pending the agency investigation.
(f) An agency shall not refer to EEOC a joint complaint alleging a
pattern or practice of employment discrimination unless special
circumstances warrant agency referral of the complaint to EEOC.
(g) If a joint complaint alleges discrimination in employment and in
other practices of a recipient, an agency should, absent special
circumstances, handle the entire complaint under the agency's own
investigation procedures. In such cases, the agency shall determine
whether the complainant has filed a similar charge of employment
discrimination with EEOC. If such a charge has been filed, the agency
and EEOC shall coordinate their activities. Upon agency request, EEOC
should ordinarily defer its investigation pending the agency
investigation.
(h) When a joint complaint is referred to EEOC for investigation,
the agency shall advise EEOC of the relevant civil rights provision(s)
applicable to the employment practices of the recipient, whether the
agency wants to receive advance notice of any conciliation negotiations,
whether the agency wants EEOC to seek information concerning the
relationship between the alleged discrimination and the recipient's
Federally assisted programs or activities and, where appropriate,
whether a primary objective of the Federal financial assistance is to
provide employment. The agency shall also notify the complainant and the
recipient of the referral, the location of the EEOC office to which the
complaint was referred, the identity of the civil rights provision(s)
involved, the authority of EEOC under this regulation and that the date
the agency received the complaint will be deemed the date it was
received by EEOC. Specifically, the notice shall inform the recipient
that the agency has delegated to EEOC its investigative authority under
title VI, title IX, or the revenue sharing act, and the relevant act's
implementing regulations. The agency, therefore, may use information
obtained by EEOC under the agency's investigative authority in a
subsequent
[[Page 806]]
title VI, title IX or revenue sharing act enforcement proceeding.
[Order No. 992-83, 48 FR 3577, Jan. 25, 1983, as amended at 61 FR 33658,
June 28, 1996]
Sec. 42.606 General rules concerning EEOC action on complaints.
(a) A complaint of employment discrimination filed with an agency,
which is transferred or referred to EEOC under this regulation, shall be
deemed a charge received by EEOC. For all purposes under title VII and
the Equal Pay Act, the date such a complaint was received by an agency
shall be deemed the date it was received by EEOC.
(b) When EEOC investigates a joint complaint it shall, where
appropriate, seek sufficient information to allow the referring agency
to determine whether the alleged employment discrimination is in a
program or activity that receives Federal financial assistance and/or
whether the alleged employment discrimination causes discrimination with
respect to beneficiaries or potential beneficiaries of the assisted
program.
(c) Upon referral of a joint complaint alleging a pattern or
practice of employment discrimination, EEOC generally will limit its
investigation to the allegation(s) which directly affect the
complainant.
(d) If EEOC, in the course of an investigation of a joint complaint,
is unable to obtain information from a recipient through voluntary
means, EEOC shall consult with the referring agency to determine an
appropriate course of action.
(e) If EEOC agrees to defer its investigation of a complaint of
employment discrimination pending an agency investigation of the
complaint, then EEOC shall give due weight to the agency's determination
concerning the complaint.
Sec. 42.607 EEOC dismissals of complaints.
If EEOC determines that the title VII allegations of a joint
complaint should be dismissed, EEOC shall notify the complainant and the
recipient of the reason for the dismissal and the effect the dismissal
has on the complainant's rights under the relevant civil rights
provision(s) of the referring agency, and issue a notice of right to sue
under title VII. At the same time, EEOC shall transmit to the referring
agency a copy of EEOC's file.
Sec. 42.608 Agency action on complaints dismissed by EEOC.
Upon EEOC's transmittal of a dismissal under Sec. 42.607 of this
regulation, the referring agency shall determine within thirty days,
what, if any, action the agency intends to take with respect to the
complaint and then notify the complainant and the recipient. In reaching
that determination, the referring agency shall give due weight to EEOC's
determination that the title VII allegations of the joint complaint
should be dismissed. If the referring agency decides to take action with
respect to a complaint that EEOC has dismissed for lack of reasonable
cause to believe that title VII has been violated, the agency shall
notify the Assistant Attorney General and the Chairman of the EEOC in
writing of the action it plans to take and the basis of its decision to
take such action.
Sec. 42.609 EEOC reasonable cause determination and conciliation efforts.
(a) If EEOC, after investigation of a joint complaint, determines
that reasonable cause exists to believe that title VII has been
violated, EEOC shall advise the referring agency, the complainant and
the recipient of that determination and attempt to resolve the complaint
by informal methods of conference, conciliation and persuasion. If EEOC
would like the referring agency to participate in conciliation
negotiations, EEOC shall so notify the agency and the agency shall
participate. EEOC shall provide advance notice of any conciliation
negotiations to referring agencies that request such notice, whether or
not EEOC requests their participation in the negotiations.
(b) If EEOC's efforts to resolve the complaint by informal methods
of conference, conciliation and persuasion fail, EEOC shall:
(1) Issue a notice of failure of conciliation to the recipient in
accordance with 29 CFR 1601.25;
[[Page 807]]
(2) Transmit to the referring agency a copy of EEOC's investigative
file, including its Letter of Determination and notice of failure
conciliation;
(3) If the recipient is not a government, governmental entity or
political subdivision, determine whether EEOC will bring suit under
title VII and, in accordance with 29 CFR 1601.28, issue a notice of
right to sue under title VII;
(4) If the recipient is a government, governmental entity or
political subdivision, refer the matter to the Attorney General in
accordance with 29 CFR 1601.29. The Attorney General, or his or her
delegate, will determine whether the Department of Justice will bring
suit under title VII and, in accordance with 29 CFR 1601.28, issue a
notice of right to sue under title VII.
Sec. 42.610 Agency enforcement of unresolved complaints.
(a) Upon EEOC's transmittal of a reasonable cause determination and
notice of failure of conciliation under Sec. 42.609(b)(2) of this
regulation, the referring agency shall determine, within thirty days,
whether the recipient has violated any applicable civil rights
provision(s) which the agency has a responsibility to enforce. The
referring agency shall give due weight to EEOC's determination that
reasonable cause exists to believe that title VII has been violated.
(b) If the referring agency determines that the recipient has
violated any applicable civil rights provision(s) which the agency has a
responsibility to enforce, the agency shall so notify the complainant
and the recipient and determine whether further efforts to obtain
voluntary compliance are warranted. In reaching that determination, the
agency shall give due weight to the failure of EEOC's efforts to resolve
the complaint by informal methods. If the referring agency determines
that further efforts to obtain voluntary compliance are not warranted or
if such further efforts fail, the agency shall initiate appropriate
enforcement proceedings under its own regulations.
(c) If the referring agency determines that the recipient has not
violated any applicable civil rights provision(s) which the agency has a
responsibility to enforce, the agency shall notify the complainant, the
recipient, the Assistant Attorney General and the Chairman of the EEOC
in writing of the basis of that determination.
Sec. 42.611 EEOC negotiated settlements and conciliation agreements.
If the parties enter into a negotiated settlement (as described in
29 CFR 1601.20) prior to a determination or a conciliation agreement (as
described in 29 CFR 1601.24) after a determination, EEOC shall notify
the referring agency that the complaint has been settled. The agency
shall take no further action on the complaint of employment
discrimination thereafter except that the agency may take the existence
of the complaint into account in scheduling the recipient for a review
under the agency's regulations.
Sec. 42.612 Interagency consultation.
(a) Before investigating whether the employment practices of a
recipient of Federal financial assistance constitute a pattern or
practice of unlawful discrimination or initiating formal administrative
enforcement procedures on that basis, an agency shall, to the extent
practical, consult with the Chairman of the EEOC and the Assistant
Attorney General to assure that duplication of effort will be minimized.
(b) Prior to the initiation of any legal action against a recipient
of Federal financial assistance alleging unlawful employment practices,
the Department of Justice and/or EEOC shall, to the extent practical,
notify the appropriate agency or agencies of the proposed action and the
substance of the allegations.
Sec. 42.613 Definitions.
As used in this regulation, the term:
(a) Agency means any Federal department or agency which extends
Federal financial assistance subject to any civil rights provision(s) to
which this regulation applies.
(b) Assistant Attorney General refers to the Assistant Attorney
General, Civil Rights Division, United States Department of Justice, or
his or her delegate.
(c) Chairman of the EEOC refers to the Chairman of the Equal
Employment Opportunity Commission, or his or her delegate.
[[Page 808]]
(d) EEOC means the Equal Empoyment Opportunity Commission and, where
appropriate, any of its District Offices.
(e) Federal financial assistance includes:
(1) Grants and loans of Federal funds,
(2) The grant or donation of Federal property and interests in
property,
(3) The detail of Federal personnel,
(4) The sale and lease of, and the permission to use (on other than
a casual or transient basis), Federal property or any interest in such
property without consideration or at a nominal consideration, or at a
consideration which is reduced for the purpose of assisting the
recipient, or in recognition of the public interest to be served by such
sale or lease to the recipient, and
(5) Any Federal agreement, arrangement, or other contract which has
as one of its purposes the provision of assistance.
For purposes of this regulation, the term Federal financial assistance
also includes funds disbursed under the revenue sharing act.
(f) Joint complaint means a complaint of employment discrimination
covered by title VII or the Equal Pay Act and by title VI, title IX, or
the revenue sharing act.
(g) Recipient means any State, political subdivision of any State,
or instrumentality of any State or political subdivision, any public or
private agency, institution, organization, or other entity, or any
individual, in any State, to whom Federal financial assistance is
extended, directly or through another recipient, for any program,
including any successor, assign, or transferee thereof, but such term
does not include any ultimate beneficiary under such program.
(h) Revenue sharing act refers to the State and Local Fiscal
Assistance Act of 1972, as amended, 31 U.S.C. 1221 et seq.
(i) Title VI refers to title VI of the Civil Rights Act of 1964, 42
U.S.C. 2000d to 2000d-4. Where appropriate, title VI also refers to the
civil rights provisions of other Federal statutes or regulations to the
extent that they prohibit employment discrimination on the ground or
race, color, religion, sex or national origin in programs receiving
Federal financial assistance of the type subject to title VI itself.
(j) Title VII refers to title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. 2000e, et seq.
(k) Title IX refers to title IX of the Education Amendments of 1972,
20 U.S.C. 1681 to 1683.
Subpart I--Nondiscrimination on the Basis of Age in Federally Assisted
Programs and Activities; Implementation of the Age Discrimination Act of
1975
Authority: 42 U.S.C. 6103(a)(4); 45 CFR part 90.
Source: Order No. 1843-94, 59 FR 6560, Feb. 11, 1994, unless
otherwise noted.
General Provisions
Sec. 42.700 Purpose.
(a) This subpart implements the Age Discrimination Act of 1975, as
amended (42 U.S.C. 5101-6107) (Act). Subject to certain exceptions, the
Act prohibits discrimination on the basis of age in programs or
activities receiving federal financial assistance.
(b) The Secretary of Health and Human Services has issued a general
regulation (45 CFR part 90) to guide other federal agencies regarding
implementation of the Act. This subpart is generally based upon that
general regulation.
Sec. 42.701 Application.
(a) This subpart applies to each program or activity that receives
federal financial assistance from the Department of Justice.
(b) This subpart does not apply to employment practices, except to
those occurring in programs that receive federal financial assistance
under the Job Training Partnership Act.
Sec. 42.702 Definitions.
As used in this subpart, the term:
Act means the Age Discrimination Act of 1975, as amended, 42 U.S.C.
6101-6107.
Action means any act, activity, policy, rule, standard, or method of
administration; or the use of any policy,
[[Page 809]]
rule, standard, or method of administration.
Age distinction means any action using age or an age-related term.
Age-related term means a term that necessarily implies a particular
age or range of ages (e.g., ``youth,'' ``juvenile,'' ``adult,'' ``older
persons,'' but not ``student'').
Department means the Department of Justice.
Federal financial assistance means any grant, entitlement, loan,
cooperative agreement, contract (other than a procurement contract or a
contract of insurance or guaranty), or any other arrangement by which
the Department provides assistance in the form of:
(1) Funds;
(2) Services of federal personnel; or
(3) 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; and
(ii) Proceeds from a subsequent transfer or lease of property if the
federal share of its fair market value is not returned to the federal
government.
FMCS means the Federal Mediation and Conciliation Service.
OJP means the Office of Justice Programs. OJP coordinates the work
of the Bureau of Justice Assistance, the National Institute of Justice,
the Bureau of Justice Statistics, and the Office of Juvenile Justice and
Delinquency Prevention; OJP includes the Office for Victims of Crime.
Program or activity means all of the operations of--
(1)(i) A department, agency, special purpose district, or other
instrumentality of a state or of a local government;
(ii) The entity of such state and local government that distributes
such assistance and each such department or agency (and each other state
or local government entity) to which the assistance is extended, in the
cases of assistance to a state or local government;
(2)(i) A college, university, or other postsecondary institution, or
a public system of higher education; or
(ii) A local educational agency (as defined in section 198(a)(10) of
the Elementary and Secondary Education Act of 1965, 20 U.S.C. 2891(12)),
system of vocational education, or other school system;
(3)(i) An entire corporation, partnership, or other private
organization, or an entire sole proprietorship--
(A) If assistance is extended to such corporation, partnership,
private organization, or sole proprietorship as a whole; or
(B) If such entity is principally engaged in the business of
providing education, health care, housing, social services, or parks and
recreation; or
(ii) The entire plant or other comparable, geographically separate
facility to which Federal financial assistance is extended, in the case
of any other corporation, partnership, private organization, or sole
proprietorship; or
(4) Any other entity which is established by two or more of the
entities described in paragraph (1), (2), or (3) of this definition, any
part of which is extended federal financial assistance.
Recipient means any state or political subdivision, any
instrumentality of a State or political subdivision, any public or
private agency, institution, organization, or other entity, or any
person to which federal financial assistance is extended, directly or
through another recipient. ``Recipient'' includes any successor,
assignee, or transferee, but does not include the ultimate beneficiary
of the assistance.
Secretary means the Secretary of Health and Human Services or his or
her designee.
United States means the fifty States, the District of Columbia,
Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the
Trust Territory of the Pacific Islands, the Northern Marinas, and the
territories and possessions of the United States.
Secs. 42.703-42.709 [Reserved]
Standards for Determining Age Discrimination
Sec. 42.710 General prohibition.
(a) Subject to the exceptions discussed in Secs. 42.711-42.713, no
person in the United States shall, on the basis of age, be excluded from
participation in,
[[Page 810]]
be denied the benefits of, or be subjected to discrimination in any
program or activity to which this subpart applies. This prohibition
applies to actions taken by a recipient, directly or through contractual
or other arrangements, that have the purpose or effect of discriminating
on the basis of age.
(b) This prohibition encompasses treatment of elderly persons,
children and any other age group. Unless one of the exception applies,
the recipient may use neither a minimum age limit nor a maximum age
limit in connection with receipt of benefits or services or other
participation in a program subject to this subpart.
Sec. 42.711 Exception; authorized by law.
(a) This subpart does not apply to an age distinction contained in a
portion of a federal or state statute or a local statute or ordinance
adopted by an elected, general-purpose legislative body which portion:
(1) Provides any benefits or assistance to persons on the basis of
age;
(2) Establishes criteria for participation in age-related terms; or
(3) Describes intended beneficiaries or target groups in age-related
terms.
(b) The exception set forth in paragraph (a) of this section does
not extend to regulations adopted by an administrative agency pursuant
to a specific statutory provision or otherwise.
Sec. 42.712 Exception; normal operation or statutory objective.
(a) A recipient may take an action that would otherwise be
prohibited by Sec. 42.710(a), if such action reasonably takes age into
account as a factor necessary to the normal operation of or the
achievement of any statutory objective of the program or activity.
(1) Normal operation refers to the operation of a program or
activity without significant changes that would impair its ability to
meet its objectives.
(2) A statutory objective of a program is a purpose that is
expressly stated in a federal or state statute or a local statute or
ordinance adopted by an elected, general-purpose body.
(b) This exception applies when the following test is met--
(1) Age is used as a measure or approximation of one or more other
characteristics;
(2) The other characteristic must be measured or approximated in
order to continue the normal operation of the program or to achieve any
statutory objective of the program;
(3) The other characteristic can be reasonably measured or
approximated by the use of age; and
(4) The other characteristic is impractical to measure directly on
an individual basis.
(c) The question whether an age distinction comes within this
section depends upon the particular facts, including the nature and
purpose of the program, the basis for and the nature and purpose of the
age distinction, and the manner in which the age distinction is used.
Sec. 42.713 Exception; reasonable factors other than age.
(a) A recipient may take an action, otherwise prohibited by
Sec. 42.710(a), that affects age groups differently, if such
differentiation is based upon reasonable factors other than age.
(b) This exception does not apply to the use of an explicit age
distinction, but to conduct that has the effect of differentiating among
age groups. This exception applies when the factor (other than age) upon
which the recipient's action is based bears a direct and substantial
relationship to the normal operation of or achievement of a statutory
objective of the program.
Sec. 42.714 Special benefits.
If a recipient operating a program provides special benefits to the
elderly or to children, such use of age distinctions shall be presumed
to be necessary to the normal operation of the program, notwithstanding
the provisions of Sec. 42.712.
Sec. 42.715 Burden of proof regarding exceptions.
The burden of proving that an age distinction or other action falls
within the exceptions described in Sec. 42.712 and Sec. 42.713 is on the
recipient. This allocation of the burden of proof applies in proceedings
by the Department to enforce the Act.
[[Page 811]]
Secs. 42.716-42.719 [Reserved]
Duties of Recipients
Sec. 42.720 General responsibility.
Regarding any program subject to this subpart, the recipient has
primary responsibility to ensure compliance with the Act and this
subpart. The recipient also has responsibility to maintain records,
provide information, and to afford access to its records to the
Department to the extent required to determine whether it is in
compliance with the Act.
Sec. 42.721 Notice to subrecipients.
Any recipient that receives federal financial assistance from the
Department and extends such assistance to subrecipients shall give its
subrecipients written notice of their obligations under this subpart.
Sec. 42.722 Recipient assessment of age distinctions.
(a) As part of a compliance review under Sec. 42.730 or complaint
investigation under Sec. 42.731, the Department may require a recipient
employing the equivalent of 15 or more employees to complete a written
self-evaluation, in a manner specified by the responsible Department
official, of any age distinction imposed in its program or activity
receiving federal financial assistance from the Department to assess the
recipient's compliance with the Act.
(b) Whenever a recipient assessment indicates a violation of the Act
and this subpart, the recipient shall take corrective action.
Sec. 42.723 Compliance information.
(a) Upon request by the Department, a recipient shall make available
to the Department information necessary to determine whether the
recipient is complying with this subpart.
(b) Each recipient shall permit reasonable access by the Department
to the recipient's facilities, books, records and other sources of
information concerning the recipient's compliance with this subpart.
Sec. 42.724 Remedial and affirmative action.
(a) If the Department finds that, in violation of this subpart, a
recipient has discriminated on the basis of age, the recipient shall
take remedial action that the Department considers necessary to overcome
the effects of the discrimination.
(b) Even in the absence of a finding of discrimination, a recipient,
in administering a program, may take steps to overcome the effects of
conditions that resulted in limited participation on the basis of age.
Sec. 42.725 Assurance of compliance.
Each recipient of federal financial assistance from the Department
shall sign a written assurance as specified by the Department that it
will comply with this subpart in its federally assisted programs and
activities.
Secs. 42.726-42.729 [Reserved]
Compliance Procedures
Sec. 42.730 Compliance reviews.
The Department may conduct a pre-award or post-award compliance
review of an applicant or a recipient to determine compliance with this
subpart. When a compliance review indicates probably noncompliance, the
Department shall inform the applicant or recipient and shall promptly
begin enforcement as described in Sec. 42.733.
Sec. 42.731 Complaints.
(a) General. This section provides for the filing, by aggrieved
persons, of complaints alleging violation of this subpart. Although the
complaint process is limited to aggrieved persons, any person who has
information regarding a possible violation of this subpart may provide
it to the Department.
(b) Receipt of complaints. (1) Any aggrieved person, individually or
as a member of a class, may file with the Department a written complaint
alleging a violation of this subpart. A complaint may be filed by a
representative of an aggrieved person. A complaint must be filed within
180 days of the date the complaint first knew of the alleged violation.
However, this time
[[Page 812]]
limit may, for good cause shown, be extended by the Department.
(2) The Department shall promptly review each such complaint for
sufficiency. A complaint will be deemed sufficient if it--
(i) Describes an action that may constitute a violation of this
subpart; and
(ii) Contains information necessary for further processing (i.e.,
identifies the parties involved, states the date when the complainant
first learned of the alleged violation, and is signed by the
complainant).
(3) When a complaint is deemed sufficient, the Department shall
promptly refer it to the FMCS for mediation.
(4) When a complaint is deemed insufficient, the Department shall
advise the complainant of the reasons for that determination. A
complainant shall be freely permitted to add information necessary for
further processing.
(c) Representation of parties. During each stage of the complaint
process, the complainant and the recipient may be represented by an
attorney or other representative.
(d) Assistance from the Department. Any complainant or recipient may
request from the Department information regarding the complaint process.
(e) Mediation. (1) When a complaint is referred for mediation, the
complainant and the recipient shall participate in the mediation process
to the extent necessary either to reach an agreement or to enable the
mediator to determine that no agreement can be reached. No determination
that an agreement is not possible shall be made until the mediator has
conferred at least once, jointly or separately, with each of the
parties.
(2) If the complainant and the recipient reach an agreement, they
shall reduce the agreement to writing and sign it. The mediator shall
send a copy of the agreement to the Department.
(3) If, after 60 days after the Department's receipt of a complaint,
no agreement is reached or if, within that 60-day period, the mediator
determines that no agreement can be reached, the mediator shall return
the complaint to the Department.
(4) The mediator shall protect the confidentiality of information
obtained during the mediation process. No mediator shall testify in any
adjudicative proceeding, produce any document, or otherwise disclose any
information obtained during the mediation process without prior approval
of the Director of the FMCS.
(f) Department investigations. The Department shall promptly
investigate any complaint that is unresolved after mediation or is
reopened because of violation of a mediation agreement. An investigation
should include a review of the pertinent actions or practices of the
recipient and the circumstances under which the alleged discrimination
occurred. During an investigation the Department shall take appropriate
steps to obtain informal resolution of the complaint.
(g) Resolution of matters. (1) Where, prior to any finding by the
Department of probable noncompliance with this subpart, discussions
between the Department and the parties result in settlement of a
complaint, the Department shall prepare an agreement to be signed by the
parties and an authorized official of the Department. A settlement shall
not affect the operation of any other enforcement efforts of the
Department, including compliance reviews or investigation of other
complaints involving the recipient.
(2) If the Department determines that an investigation pursuant to
paragraph (f) of this section indicates probable noncompliance with this
subpart, the Department shall inform the recipient and shall promptly
begin enforcement pursuant to Sec. 42.733.
(3) If the Department determines that an investigation does not
indicate probable noncompliance, the Department shall inform the
recipient and the complainant. The Department shall also inform the
complainant of his or her right to bring a civil action as described in
Sec. 42.736.
Sec. 42.732 Prohibition against intimidation.
A recipient may not intimidate or retaliate against any person who
attempts to assert a right secured by the Act and this suppart or who
cooperates in any mediation, investigation, hearing, or other aspect of
the Department's compliance procedure.
[[Page 813]]
Sec. 42.733 Enforcement procedures.
(a) Voluntary compliance. When a compliance review or complaint
investigation results in a finding of probable noncompliance with this
subpart, the Department shall attempt to obtain voluntary compliance. An
agreement for voluntary compliance shall describe the corrective action
to be taken and time limits for such action and shall be signed by the
recipient and an authorized official of the Department.
(b) Means of enforcement--(1) General. (i) The Department may seek
to enforce this subpart--
(A) By administrative proceedings that may lead to termination or
refusal of federal financial assistance to the particular program; or
(B) By any other means authorized by law. Such other means include
lawsuits by the Department of enjoin violations of this subpart.
(ii) To the extent consistent with the Act, the Department, in
enforcing this subpart, shall follow the procedures applicable to
enforcement of title VI of the Civil Rights Act of 1964.
(2) Termination of federal financial assistance. With regard to
enforcement of this subpart through the termination or refusal of
federal financial assistance, the Department shall follow the provisions
of its title VI regulation concerning notice (28 CFR 42.180(c)),
hearings (28 CFR 42.109), and decisions (28 CFR 42.110). However, with
respect to programs receiving federal financial assistance from a
component of the Department's Office of Justice Programs (OJP), the
requirement of 28 CFR 42.110(e) that a sanction be approved by the
Attorney General shall not apply; that function may be performed by the
Assistant Attorney General, OJP.
(3) Other means of enforcement. With regard to enforcement of this
subpart through other means, the Department shall follow the procedures
of 28 CFR 42.108(d). In addition, at least 30 days before commencing a
lawsuit or taking other action pursuant to paragraph (b)(1)(i)(A) of
this section, the Department shall send an appropriate report to the
committees of the House of Representatives and the Senate having
legislative jurisdiction over the program involved.
(c) Deferral. When a proceeding for the termination or refusal or
federal financial assistance is initiated pursuant to paragraph
(b)(1)(i)(A) of this section, the Department may defer granting new
federal financial assistance to the recipient.
(1) New federal financial assistance includes any assistance for
which, during the deferral period, the Department requires an
application or approval, including renewal or continuation of existing
activities or authorization of new activities. New federal financial
assistance does not include assistance approved prior to initiation of
the administrative proceeding or increases in funding as a result of a
change in the manner of computing formula awards.
(2) A deferral may not begin until the recipient has received a
notice of opportunity for a hearing. A deferral may not continue for
more than 60 days unless a hearing has begun within that time or the
time for beginning the hearing has been extended by mutual consent of
the recipient and the Department. A deferral may not continue for more
than 30 days after the close of the hearing, unless the hearing results
in a finding against the recipient.
Sec. 42.734 Alternative funding.
When assistance to a recipient is terminated or refused pursuant to
Sec. 42.733(b)(1)(i)(A), the Department may disburse the withheld funds
directly to an alternate recipient serving the same area (i.e., a public
or nonprofit private organization or agency or state or political
subdivision of the state). Any such alternate recipient must demonstrate
the ability to comply with the requirements of this subpart and to
achieve the goals of the federal statute authorizing the assistance.
Sec. 42.735 Judicial review.
A final decision of the Department in an administrative proceeding
pursuant to Sec. 42.733(b)(1)(i)(A) is subject to judicial review as
provided in section 306 of the Act, 42 U.S.C. 6105.
Sec. 42.736 Private lawsuits.
(a) Upon exhausting administrative remedies under the Act, a
complainant
[[Page 814]]
may file a civil action to enjoin a violation of the Act. Administrative
remedies are exhausted if--
(1) 180 days have elapsed since the complainant filed the complaint
and the Department has made no finding with regard to the complaint; or
(2) The Department issues a finding, pursuant to Sec. 42.731(g)(3),
in favor of the recipient.
(b) Whenever administrative remedies are exhausted in accord with
paragraph (a) of this section, the Department shall promptly inform the
complainant that
(1) The complainant may bring a civil action in a United States
district court for the district in which the recipient is located or
transacts business;
(2) A complainant who prevails in such an action has the right to be
awarded reasonable attorney's fees, if the complainant demands such an
award in the complaint initiating the lawsuit;
(3) Before commencing the action, the complainant must give 30 days'
notice by registered mail to the Secretary, the Attorney General, and
the recipient;
(4) The notice must state the nature of the alleged violation, the
relief requested, the court in which the action will be brought, and
whether attorney's fees will be demanded; and
(5) The complainant may not bring an action if the same alleged
violation by the recipient is the subject of a pending action in any
court of the United States.
Secs. 42.737-42.799 [Reserved]
Appendix A to Subpart I of Part 42--Federal Financial Assistance
Administered by the Department of Justice to Which This Subpart Applies
Note: Failure to list a type of federal assistance in appendix A
shall not mean, if the Age Discrimination Act is otherwise applicable,
that a program or activity is not covered. For the text of appendix A to
subpart I, see appendix A to subpart C of this part.
Appendix B to Subpart I of Part 42--Age Distinctions in Federal Statutes
or Regulations Affecting Financial Assistance Administered by the
Department of Justice
Section 90.31(f) of HHS' the general regulations (45 CFR part 90)
requires each federal agency to publish an appendix to its final
regulation containing a list of age distinctions in federal statutes and
regulations affecting financial assistance administered by the agency.
This appendix is the Department's list of federal statutes and
Department regulations that contain age distinctions that:
(1) Provide benefits or assistance to persons based upon age; or
(2) Establish criteria for participation in age-related terms; or
(3) Describe intended beneficiaries or target groups in age-related
terms.
The Department administers financial assistance under the Juvenile
Justice and Delinquency Prevention Act of 1974, as amended (42 U.S.C.
5601-5672). This statute reflects the basic distinction between criminal
justice systems for adults and juvenile justice systems, and the entire
statute is predicated upon making distinctions on the basis of age
between juveniles and adults. Such age distinctions are set forth
throughout this statute, including provisions establishing programs of
financial assistance to juvenile justice systems and for purposes
related to the prevention of juvenile delinquency. The Department's
current regulations pertaining to formula grants under this statute are
set forth at 28 CFR part 31 (CFDA No. 16.540). In order to implement the
statutory purposes, these regulations reflect the same age distinctions
between juveniles and adults as are contained in the statute. The same
statute also provides for discretionary special emphasis grants for
which there are program announcements issued (CFDA No. 16.541), and this
program also necessarily reflects the basic statutory distinction based
on age.
The Department is authorized to extend financial assistance under
the Missing Children's Assistance Act, as amended (42 U.S.C. 5771-5777).
This law is concerned with problems related to missing children, and,
thus, it contains many age-related references to children, including
references in connection with the provision of financial assistance.
Program announcements are issued in connection with this program (CFDA
No. 16.543).
The Department is authorized to extend financial assistance pursuant
to the Omnibus Crime Control and Safe Streets Act of 1968, as amended
(42 U.S.C. 3701-3797). Among the
[[Page 815]]
statutory purposes of this law is the provision of grants addressing
problems related to juvenile delinquency and problems related to crimes
committed against elderly persons. Accordingly, this law also reflects
the basic distinction between criminal justice systems for adults and
juvenile justice systems. This law also singles out elderly persons as a
special target group to benefit from its programs. The Department's
regulations concerning block grants authorized under this statute are
set forth at 28 CFR part 33. These regulations reflect the statutory
authorizations for such block grants, which specifically authorize funds
for, among other things, programs addressing problems related to
juvenile delinquency and programs addressing the problem of crimes
committed against elderly persons (CFDA No. 16.573). Similarly, the
statute provides for discretionary grants to enhance and complement the
block grants (CFDA No. 16.574) and has been amended to provide a focus
on narcotics control (CFDA No. 16.580).
The Department is authorized to extend financial assistance under
the Victims of Crime Act of 1984, as amended (42 U.S.C. 10601-10604).
Among other things, in order to qualify for funds under one grant
program, a state must certify that priority will be given to eligible
crime victim assistance programs that help victims of certain crimes,
including child abuse. In addition, among the services to victims of
crime for which funding is available is ``short term child care
services'' (CFDA Nos. 16.575 and 16.576).
The Department is authorized to make grants to Native American
Indian tribes with funds reserved to the Office of Victims of Crime
under the Victims of Crime act of 1984, as amended (42 U.S.C. 10601(g)).
The primary purpose of the funding is to assist Native American Indian
tribes with handling child abuse cases, particularly child sexual abuse
(CFDA No. 16.583).
The Department is authorized to extend financial assistance to state
and local authorities for narcotics control under the Anti-Drug Abuse
Act of 1988 (Pub. L. 100-690, 102 Stat. 4181), which extends and/or
modifies each of the previously noted laws. The statute reflects the
basic distinction between criminal justice systems for adults and
juveniles (CFDA Nos. 16.579 and 16.582).