Implementation of the Nondiscrimination and Equal Opportunity
Provisions of the Workforce Investment Act of 1998; Final Rule
[Federal Register: November 12, 1999 (Volume 64, Number 218)]
[Rules and Regulations]
[Page 61691-61738]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12no99-28]
[[Page 61691]]
_______________________________________________________________________
Part II
Department of Labor
_______________________________________________________________________
Office of the Secretary
_______________________________________________________________________
29 CFR Part 37
Implementation of the Nondiscrimination and Equal Opportunity
Provisions of the Workforce Investment Act of 1998; Final Rule
[[Page 61692]]
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Office of the Secretary
29 CFR Part 37
RIN 1291-AA29
Implementation of the Nondiscrimination and Equal Opportunity
Provisions of the Workforce Investment Act of 1998
AGENCY: Office of the Secretary, Labor.
ACTION: Interim final rule; Request for comments.
-----------------------------------------------------------------------
SUMMARY: This Interim Final Rule implements Section 188 of the
Workforce Investment Act of 1998 (WIA), which contains the statute's
equal opportunity and nondiscrimination provisions. The Workforce
Investment Act supersedes the Job Training Partnership Act (JTPA) as
the Department of Labor's primary mechanism for providing financial
assistance for a comprehensive system of job training and placement
services for adults and eligible youth. With limited substantive
changes described in Section III of this preamble, this rule generally
carries over the policies and procedures found in 29 CFR part 34, which
implements the nondiscrimination and equal opportunity provisions of
JTPA. Section 188(e) of WIA mandates that the Department issue
regulations implementing the section within one year of the passage of
WIA.
DATES: Effective Date: This Interim Final Rule will become effective on
November 12, 1999.
Comment Period: Comments must be received on or before December 13,
1999.
ADDRESSES: Comments should be sent to Annabelle T. Lockhart, Director
of the Civil Rights Center (CRC), by regular mail at the US Department
of Labor, 200 Constitution Avenue NW, Room N-4123, Washington, DC
20210, or by e-mail at CRC-WIA@dol.gov. Brief comments (maximum of five
pages) may be submitted by facsimile machine (FAX) to (202) 219-5658.
Receipt of submissions, whether by U.S. mail, e-mail, or FAX
transmittal, will not be acknowledged; however, the sender may request
confirmation that a submission has been received, by telephoning the
Civil Rights Center at (202) 219-8927 (VOICE) or (202) 219-6118 or
(800) 326-2577 (TTY/TDD).
Comments will be available for public inspection during normal
business hours at the above address. Persons who need assistance to
review the comments will be provided with appropriate aids such as
readers or print magnifiers. Copies of this Interim Final Rule will be
made available in the following formats: large print, electronic file
on computer disk, and audio tape. To schedule an appointment to review
the comments and/or to obtain the Interim Final Rule in an alternate
format, contact CRC at the telephone numbers and addresses listed
above.
FOR FURTHER INFORMATION CONTACT: Bud West, Senior Policy Advisor, Civil
Rights Center, US Department of Labor, 200 Constitution Avenue NW, Room
N-4123, Washington, DC 20210, CRC-WIA@dol.gov, telephone (202) 219-8927
(VOICE), or (202) 219-6118 or (800) 326-2577 (TTY/TDD).
SUPPLEMENTARY INFORMATION: The preamble to these regulations is
organized as follows:
I. Background--provides a brief description of the development of
these proposed regulations.
II. Authority--cites the statutory provisions supporting these
regulations, Departmental redelegation authority, and Interagency
coordination authority.
III. Overview of the Regulations--summarizes pertinent aspects of
the regulatory text and describes its purposes and application.
IV. Regulatory Procedure--sets forth the applicable regulatory
requirements and requests comments on specific issues.
I. Background
On August 7, 1998, President Clinton signed the Workforce
Investment Act of 1998 (WIA), comprehensive reform legislation that
supersedes JTPA. Both WIA and JTPA contain nondiscrimination and equal
opportunity provisions. The JTPA nondiscrimination provisions are
contained in Section 167 of that statute, and in its implementing
regulations codified in 29 CFR part 34. These regulatory provisions
generally are carried over in the nondiscrimination and equal
employment opportunity provisions of WIA's implementing regulations.
The latter regulations are contained in this Interim Final Rule, to be
codified in 29 CFR part 37.
This Interim Final Rule prohibits WIA Title I-financially assisted
grant applicants and recipients, as defined in Section 37.4, from
discriminating on the basis of race, color, religion, sex, national
origin, age, disability, or political affiliation or belief. It also
protects any beneficiary (person intended by Congress to receive WIA
Title I-financially assisted aid, benefits, services, or training) from
discrimination based on either that beneficiary's citizenship, or his
or her participation in any WIA Title I-financially assisted program or
activity. The rule provides procedures for determining and enforcing
compliance.
Although the Department wishes to emphasize that it considers the
reforms embodied in WIA to be significant, and not "business as
usual," the nondiscrimination and equal employment opportunity
principles embodied in this Act are substantially similar to those
contained in JTPA. Accordingly, there are only limited substantive
differences between 29 CFR part 34, implementing the nondiscrimination
and equal opportunity provisions of JTPA, and 29 CFR part 37,
implementing the similar provisions of WIA. Those substantive changes
that have been made are based on the experience of the Civil Rights
Center (CRC), the Departmental agency responsible for administering the
nondiscrimination provisions of JTPA and WIA, and on feedback provided
to CRC by grant applicants and recipients regarding their work with the
nondiscrimination and equal opportunity provisions of JTPA and part 34.
These substantive changes are described in detail in Section III of
this preamble.
Most of the changes the Department has made to the provisions
contained in part 34 have been structural, stylistic, and phrasing
changes. The changes have been made to enhance the readability of the
rule for, and its utility to, recipients who receive financial
assistance under WIA Title I; grant applicants who wish to receive such
assistance; individuals who wish to file discrimination complaints
under WIA Section 188; and other interested parties. The Department
seeks specific comments on the enhancements to the rule, and
suggestions for improving the rule.
The alterations to the rule fall into two categories: (1) Changes
making the rule's obligations consistent with other regulatory
obligations WIA Title I recipients might be under; and (2) Changes
reducing the "legalese" of the JTPA regulations. Generally, neither
type of modification is meant to change the substantive content of the
underlying rule.
As an example of the first category, the section of the rule
regarding recipients' obligations to individuals with disabilities has
been amended to follow generally the regulations implementing Title II
of the Americans with Disabilities Act of 1990, as amended (ADA). These
regulations are found at 28 CFR part 35. This change is not intended to
provide a substantive change from the regulations implementing JTPA. It
is intended only to clarify the regulations.
[[Page 61693]]
The second category of changes was prompted by the June 1, 1998,
Presidential Memorandum on Plain Language, which instructed Federal
Departments and Agencies to write new regulations in language
understandable to most people. The Department has met the intent of the
President's memorandum by incorporating stylistic changes into the
language and format of these regulations to facilitate their
readability without changing their substantive content. An example of
such a change is the rewording of subsection topic header statements
into the form of questions.
Other examples:
<bullet> Some sections have been subdivided, to make the content of
individual sections more homogeneous.
<bullet> Some sections have been more logically reordered.
<bullet> Terminology has been adjusted to use plain language terms.
As a result, the term "shall" has been replaced in this rule by the
terms "must," "will," "is/are," or similar terms, as appropriate.
The term "must" connotes an obligation, while the term "will"
indicates a future action. Similarly, the term "prior to" has been
replaced by the term "before"; "pursuant to" has been replaced, as
appropriate, by "under," "by," or "authorized by"; and "is
deemed" or "will be deemed" has been replaced, as appropriate, by
"is/are considered" or "become(s)."
Again, these changes are not intended to alter the meaning of the
regulations. Rather, the changes are intended to create a more readable
document.
CRC maintains a close relationship and regular contact with the
regulated community. The agency holds an annual national conference on
equal opportunity, attended by several hundred officials and staff of
the State and local agencies that are responsible for ensuring
nondiscrimination in the programs receiving financial assistance under
JTPA and/or WIA Title I. At this conference, and through other in-
person and telephone contacts with CRC, these officials and staff have
discussed directly with CRC staff members the effect that the JTPA
nondiscrimination regulations have had upon their agencies' operations.
any of the changes, both substantive and stylistic, that were
incorporated in this Interim Final Rule resulted from this input. For
example, because some of these officials told CRC that the 60-day
period provided in the JTPA regulations for recipients to process
discrimination complaints was insufficient, the rule extends the
relevant time period to 90 days.
The Department is particularly interested in receiving comments
regarding any aspects of the Rule that affect the relationship between
the Federal government and the States.
II. Authority
A. Statutory Authority
The statutory authorities for this Interim Final Rule are: Sections
134(b), 136(d)(2)(F), 136(e), 172(a), 183(c), 185(c)(2), 185(d)(1)(E),
186, 187 and 188 of the Workforce Investment Act of 1998, Pub. L. 105-
220, 12 Stat. 936 (29 U.S.C. 2801 et seq.); Title VI of the Civil
Rights Act of 1964, as amended, Pub. L. 88-352, 78 Stat. 252 (42 U.S.C.
2000d, et seq.); Section 504 of the Rehabilitation Act of 1973, as
amended, Pub. L. 93-112, 87 Stat. 390 (29 U.S.C. 794); the Age
Discrimination Act of 1975, as amended, Pub. L. 94-135, 89 Stat. 728
(42 U.S.C. 6101); and Title IX of the Education Amendments of 1972, as
amended, Pub. L. 92-318, 86 Stat. 373 (20 U.S.C. 1681).
B. Departmental Authorization
Secretary's Order 2-81, Section 5a(2), authorized the Assistant
Secretary for Administration and Management, working through the
Director, Office of Civil Rights, to establish and formulate all
policies, standards, and procedures for, as well as to issue rules and
regulations governing, the enforcement of statutes applying
nondiscrimination and equal opportunity requirements to programs and
activities receiving financial assistance from DOL. On October 12,
1986, the Office of Civil Rights was redesignated the Directorate of
Civil Rights by the Assistant Secretary. Effective December 12, 1995,
the Assistant Secretary redesignated the Directorate of Civil Rights as
the Civil Rights Center (CRC). CRC is authorized to monitor and enforce
all nondiscrimination and equal opportunity regulations regarding
programs receiving financial assistance from DOL, including Section 188
of WIA.
C. Interagency Coordination
The Department of Justice (DOJ), under Section 1-201 of Executive
Order 12250 (45 FR 72995, November 4, 1980), is responsible for
coordinating Federal enforcement of most nondiscrimination laws that
apply to federally-assisted programs and activities. Executive Order
12067 (43 FR 28967, July 5, 1978) requires consultation with the Equal
Employment Opportunity Commission (EEOC) about regulations that involve
equal employment opportunity. The Age Discrimination Act of 1975, as
amended, assigns the Secretary of Health and Human Services the
responsibility for coordinating the Federal enforcement effort of that
Act. This Interim Final Rule has been coordinated with the Department
of Justice and the Equal Employment Opportunity Commission, as well as
the Department of Health and Human Services.
In addition, the Rule has been coordinated with other appropriate
Federal grantmaking agencies, including the Departments of Education
and Housing and Urban Development.
III. Overview of the Rule
Subpart A--(a) outlines the purpose and application of part 37; (b)
provides definitions; (c) outlines prohibited grounds for and forms of
discrimination; and (d) establishes enforcement authority and
obligations.
Subpart B--sets forth the affirmative obligations of recipients of, and
grant applicants for, financial assistance under WIA Title I.
Subpart C--describes a Governor's responsibilities to implement the
nondiscrimination and equal opportunity provisions of WIA and this
part.
Subpart D--describes procedures for compliance reviews and complaint
processing.
Subpart E--describes the procedures for effecting compliance, including
(a) actions the Department will take upon making a finding of
noncompliance for which voluntary compliance cannot be achieved; (b)
the rights of parties upon such a finding; and (c) hearing procedures,
sanctions, and post-termination procedures.
Subpart A--General Provisions
The individual sections in this subpart are largely identical to
their corresponding sections within the same subpart in part 34.
Consistent with plain-language guidelines, one section has been
subdivided into separate sections treating different topics. These
changes are not intended to alter the overall meaning of this subpart,
or the meaning of any of its component sections.
Section 37.1 What is the purpose of this part?
This section is identical to 29 CFR 34.1(a), except that references
to JTPA, and to its Section 167, have been changed to refer to WIA and
its Section 188.
[[Page 61694]]
Section 37.2 To whom does this part apply, and what is the scope of
this part?
This section contains requirements similar to those in 29 CFR
34.1(b) and (d). The references to other regulatory sections within
part 34 have been changed to reflect the numbering of this Interim
Final Rule, and references to JTPA have been changed to refer to WIA.
Also, some of the material has been presented in outline form to
improve its readability. None of these changes is intended to alter the
meaning of the section.
Language has been added to paragraph 37.2(a) to clarify that the
requirements in this part apply to programs and activities that are
part of the One-Stop delivery system and that are operated by One-Stop
partners listed in WIA Section 121(b), including those partners
financially assisted by grantmaking agencies other than the Department
of Labor, to the extent that the programs and activities are being
conducted as part of the One-Stop delivery system. The requirements in
29 CFR part 34 continue to apply to programs and activities that are
implemented under and authorized by JTPA.
In those cases in which States that have opted to implement WIA
before July 1, 2000, are operating WIA Title I programs and activities
simultaneously with programs and activities under JTPA, the WIA Title I
programs and activities must comply with the requirements in this part,
while the JTPA programs and activities must comply with the
requirements in 29 CFR part 34.
Section 37.3 How does this part affect a recipient's other
obligations?
This section generally contains the same requirements as 29 CFR
34.1(c). The language of 29 CFR 34.1(c)(6), which dealt with
retroactivity, is inapplicable to this Interim Final Rule, and has been
omitted; in addition, references to JTPA have been changed to refer to
WIA. Other differences between this section and the corresponding
paragraphs of the JTPA regulations are listed below.
Paragraph 37.3(b): This paragraph has been amended to incorporate
by reference the provisions of Subparts B and C and Appendix A of 29
CFR part 32, which implement the requirements of Section 504 pertaining
to employment practices, employment-related training, program
accessibility, and accommodations. As a result, the language from 29
CFR 34.1(c)(2) that stated that part 34 did not affect recipients'
obligations to comply with those provisions has been omitted.
It is important to understand the distinction between the concept
of "program accessibility," referred to in this paragraph, and the
separate concept of architectural accessibility, both of which a
recipient is required to provide under Subpart C.
The requirement of program accessibility means that when viewed in
its entirety, the program or activity provided by the recipient must be
readily accessible to qualified individuals with disabilities. 29 CFR
32.27. The recipient must ensure that participants with various
physical and mental disabilities will have access to the program or
activity. This obligation to make the program or activity accessible in
advance exists independent of a request for a particular accommodation
by a specific individual. Therefore, even if an individual with a
disability requests an accommodation that would impose an undue
hardship on the recipient, the recipient still has an overall
obligation to make the program or activity accessible.
Architectural accessibility, by contrast, relates to the
construction and design of facilities. 29 CFR 32.28. Architectural
accessibility standards are similar to building codes. A recipient must
comply with the architectural accessibility standards whether or not a
particular individual with a disability has requested a reasonable
accommodation. 29 CFR 32.13(d). A recipient's obligation to comply with
the architectural accessibility standards is also independent of its
program accessibility obligations.
Paragraph 37.3(d): This paragraph has been added to parallel
Paragraph 37.3(c), and to emphasize that recipients that are also
employers, employment agencies, or other entities covered by Title I of
the ADA have additional obligations imposed by that title.
Paragraph 37.3(e)(9): This paragraph, which refers to the anti-
discrimination provision of the Immigration and Nationality Act, has
been added at the request of the Department of Justice. This provision
prohibits: (a) Discrimination on the basis of citizenship status and
national origin with respect to hiring, firing, or recruitment or
referral for employment for a fee; and (b) unfair documentary practices
with respect to verification of employment eligibility.
Section 37.4 What definitions apply to this part?
To the extent possible, the definitions contained in this section
are consistent with similar terms used in regulations implementing
other civil rights legislation that applies to recipients of Federal
financial assistance. Similarly, where feasible, this Interim Final
Rule uses the terms contained in the proposed WIA program regulations
issued by the Department's Employment and Training Administration
(ETA). However, because this regulation must be compatible with civil
rights enforcement on a broad scale as well as with ETA's WIA program,
this rule defines and uses certain terms, such as "qualified
interpreter," "recipient," "registrant," and "applicant," as
terms of art, not necessarily identical to the definitions that are
used elsewhere for the same terms.
The following list explains the definitions that differ in
substantive ways, either from their counterparts in 29 CFR 34.2, from
ETA's program regulations, or from regulations that implement the
nondiscrimination provisions of other legislation providing Federal
financial assistance. It also lists definitions that have been borrowed
from other civil rights regulations, and explains certain definitions
that might appear to differ substantively from their counterparts in 29
CFR 34.2, but that have not been substantively changed. Definitions
that obviously would not be substantively different from those in
Section 34.2, but that simply would substitute references to WIA for
references to JTPA, are not listed.
This list also contains definitions of terms that are not defined
in the regulations implementing other civil rights legislation that
applies to recipients of Federal financial assistance, or in WIA's
program regulations. Generally, these terms either are used solely
within this part, or have greater significance within this part than
they do within other regulatory systems. With regard to these terms,
the list explains the reason each term has been defined, and/or the
source of the definition.
Aid, benefits, services, or training: In 29 CFR 34.5, this phrase
is used to convey to the reader the comprehensive nature of the areas
in which a JTPA-assisted program or activity could not discriminate on
the basis of disability. For consistency, the phrase has been adopted
throughout part 37; generally, it replaces the phrase "financial aid,
service, or benefit," which was used intermittently in part 34, and
which has a similar meaning. No substantive change is intended by the
use of the phrase.
Section (1) of this definition uses the phrase "core and intensive
services." These terms are used in WIA to describe
[[Page 61695]]
two of the three general types of employment and training services that
are provided to participants under the WIA program (the third type is
training services). The terms are defined at length in the WIA statute:
a list of "core services" is provided in Section 134(d)(2), and a
similar list of "intensive services" is provided in Section
134(d)(3)(C). Briefly, "core services" are those services available
at a baseline level to all participants, while "intensive services"
are those services available to individuals who are assessed as needing
additional assistance in order to find or retain employment. Compare
Section 134(d)(2) with Section 134(d)(3)(A).
Section (4) of this definition refers to "work opportunities."
This term is intended to encompass On-the-Job Training, subsidized
work, internships, or work experience that a participant obtains
through a WIA Title I-financially assisted program or activity. See the
discussion of the definition of "On-the-Job Training" later in this
section.
Applicant: The passage of WIA has altered the method by which
individuals seeking federally-assisted aid, benefits, services, or
training enter the system. The definition of the term "applicant" has
been changed accordingly, to signify that, for purposes of this part,
an individual is considered an "applicant" at the point at which s/he
submits personal information in response to a request by the recipient
for such information. Because ETA's program regulations that implement
other provisions of WIA refer to the "registration" process, rather
than the application process, this part uses the term "registrant"
interchangeably with "applicant." CRC is particularly interested in
receiving comments on this definition and its effect, if any, on the
data collection obligations of recipients.
Departmental grantmaking agency: This definition was added in order
to help readers distinguish between the meaning of this term and of the
terms "grantmaking agency" and "Federal grantmaking agency" as used
in this part. See the discussion of the definitions of the latter terms
elsewhere in this section of the preamble.
Discrimination on the ground of citizenship: This definition is
identical to the definition of the same term in Section 34.2, except
that the term "asylee" has been inserted into the list of immigration
statuses that are protected against discrimination. In addition, the
phrase "other individuals authorized by the Attorney General to work
in the United States" has been amended to "other immigrants
authorized * * *." These changes have been made for consistency with
the language of Section 188(a)(5) of WIA.
These regulations are concerned with nondiscrimination and equal
opportunity only. They do not limit eligibility or impose preferences
for services on the basis of citizenship.
Employment practices: This definition has been moved to the
definition section from 29 CFR 34.7(a). Consistent with plain-language
guidelines, the definition also has been slightly rewritten, and has
been presented in outline form to improve its readability. None of
these changes is intended to alter the meaning of the definition.
Employment-related training: This definition has been included in
response to questions from a number of recipients who were familiar
with the term as it was defined under the Comprehensive Employment and
Training Act (CETA), the predecessor statute to JTPA. Under WIA, the
term is defined more broadly than it was under CETA.
Entity: This definition is expanded from the definition in 29 CFR
34.2, to encompass current and potential changes in business
structures, and to emphasize that such entities as Indian tribes or
tribal organizations and Native Hawaiian organizations, all of which
are eligible to receive financial assistance under WIA Title I, are
included within the definition. See WIA Section 166, "Native American
Programs."
Facility: This definition is expanded from the definition in 29 CFR
34.2, in order to follow generally the definition of the same term set
forth in 28 CFR 35.104, in the regulations implementing Subtitle A of
Title II of the ADA. That subtitle prohibits discrimination on the
basis of disability by public entities.
The reference to "indoor constructs" such as office cubicles and
computer kiosks has been added in order to clarify that recipients may
be required to alter such constructs to make them accessible to and
usable by individuals with disabilities. See paragraph (2)(i) of the
definition of "reasonable accommodation" in Section 37.4.
Federal grantmaking agency: This definition was added in order to
help readers distinguish between the meaning of this term and of the
terms "grantmaking agency" and "Departmental grantmaking agency" as
used in this part. See the discussion of the definitions of the latter
terms elsewhere in this section of the preamble.
Financial assistance and Financial assistance under Title I of WIA:
As with the term "applicant," the passage of WIA has altered the type
of financial assistance that will be provided under the WIA program,
and the way in which that assistance will be provided. The definitions
of "financial assistance" and "financial assistance under WIA Title
I" have been drafted accordingly. The Department is particularly
interested in receiving comments on these new definitions.
The new definitions have been modeled on the definitions of the
term "financial assistance" provided in various Federal regulations
that also deal with nondiscrimination in programs and activities
receiving Federal financial assistance. Examples include the Office of
Personnel Management regulations at 5 CFR 900.403(c); the Department of
Justice regulations at 28 CFR 42.613(e); and the Department of Health
and Human Services regulations at 45 CFR 86.2(g) and 1203.3(c).
Paragraph (5) of the definition of "financial assistance under WIA
Title I" includes "[a]ny other agreement, arrangement, contract, or
subcontract * * * or other instrument that has as one of its purposes
the provision of assistance or benefits under WIA Title I." Under this
paragraph, "financial assistance under WIA Title I" includes such
"agreements or arrangements" as the Memoranda of Understanding (MOUs)
required by Section 121(c) of WIA, and inclusion on a list of eligible
training providers. See the discussion of the definition of
"recipient" later in this section.
Fundamental alteration: This definition is derived from the Supreme
Court's interpretation of the term in the ADA Title II case of Olmstead
v. Zimring, 119 S.Ct. 2176, 67 USLW 3683, 67 USLW 4567, 1999 WL 407380
(U.S., June 22, 1999), at 12-13 and n.16.
Grantmaking agency: This term replaces the term "granting agency"
that was used in 29 CFR part 34. See the discussion of the definitions
of "Departmental grantmaking agency" and "Federal grantmaking
agency" elsewhere in this section.
Individual with a disability: The definition of this term is
identical to the definition of the same term in Section 34.2, with the
following exceptions:
(1) The reference to homosexuality or bisexuality has been deleted.
This change is not a substantive change, since Section 1(ii) of the
definition of the term "disability" retains the explanation that the
term "impairment" does not include homosexuality or bisexuality. The
deletion was made merely to eliminate unnecessary redundancy in the
rule.
[[Page 61696]]
(2) The list of the individuals to whom the term "individual with
a disability" does not apply has been expanded to clarify that with
regard to employment, there would exist two circumstances under which
the term would not apply to an individual who has a currently
contagious disease or infection. Such an individual would not be an
"individual with a disability" either if that disease or infection
prevents him or her from performing the duties of the job in question,
or if his or her employment, because of that disease or infection,
would constitute a direct threat to the health and safety of others.
This change has been made for consistency with the definition of
"individual with a disability" enacted by Congress in Title IV,
Section 403 of WIA, the Rehabilitation Act Amendments of 1998, 29
U.S.C. 701, Pub.L. 105-220, Title IV, Section 401 et seq., Aug. 7,
1998, 112 Stat. 1092.
Labor market area: The definition of this term, which appears in
the definition of "population eligible to be served," is taken
directly from Section 101(18) of WIA.
Local Workforce Investment Area (LWIA) grant recipient: This term
is new under WIA. The term describes the entity that receives WIA Title
I financial assistance from a Governor. It replaces the terms "SDA
grant recipient" and "substate grantee" that were used under JTPA.
National Programs: This definition has been rewritten to encompass
entities receiving financial assistance under Title I, Subtitle D of
WIA, and to clarify that Job Corps is a National Program under the
definition.
On-the-Job Training: This definition is taken directly from Section
101(31) of WIA. Three words have been added to the definition in order
to clarify that such training is "provided to a paid participant while
the participant is engaged in productive work."
Participant and participation: The definitions of these terms
contain the same elements as the definition of the single term
"participant" in 29 CFR 34.2. The rule defines the term
"participation" separately in order to help readers better understand
both terms. Also, the new definitions of the terms "participant" and
"participation" clarify that the terms encompass individuals who are
receiving aid, benefits, or training under WIA Title I, as well as the
"services" included in the definition in 29 CFR 34.2. In addition,
because the term "aid, benefits, services, or training" is defined as
including work opportunities obtained through a WIA Title I--
financially assisted program or activity, an individual who obtains
such opportunities is a "participant" under this definition. See the
discussion of the definition of "aid, benefits, services, or
training" earlier in this section.
The definition of "participant" in part 34 excluded individuals
receiving "post-termination and follow-up services." However, Section
134(d)(2)(K) of the WIA statute includes follow-up services among the
list of "core services" that participants may receive; as a result,
this language has been deleted from the definition of "participant"
in Section 37.4. It should be noted that this definition differs from
the definition of the term that is included in ETA's regulations
implementing other provisions of WIA.
The definition in Section 37.4 clarifies that the term
"participant" includes, but is not limited to, applicants receiving
any services under state Employment Service programs, and claimants
receiving any services under state Unemployment Insurance programs.
Because the definition of the term in the JTPA nondiscrimination
regulations also encompassed such individuals, this clarification is
not a substantive change. Rather, the clarifying language was included
simply to recognize that different recipients may use different
terminology to refer to individuals who receive benefits or services
under their programs.
It is important to recognize that under the One-Stop system
introduced by WIA, various programs and activities that are authorized
by Federal laws other than WIA may be part of a One-Stop center that
also provides WIA Title I--financially assisted programs and
activities. In such cases, any individual who receives aid, benefits,
services, or training from the One-Stop center is a participant for
purposes of the nondiscrimination and equal opportunity provisions of
WIA and this part.
For example, a One-Stop center may include an Employment Services
program authorized and financially assisted under the Wagner-Peyser
Act, 29 U.S.C. 49, as well as core and intensive service programs
authorized under WIA Title I. Under these circumstances, an individual
who receives Wagner-Peyser employment services from the One-Stop center
will fit the definition of "participant" in Section 37.4.
Parties to a hearing: This definition has been amended to clarify
that in certain cases, a Governor may be a party to a hearing.
Population eligible to be served: This term is used in the section
of this rule that explains recipients' obligations regarding
individuals with limited English skills. See the discussion of Section
37.35 in this preamble.
Qualified individual with a disability: This definition has been
amended for a number of reasons. First, the definition has been
restructured in order to incorporate the term of art "aid, benefits,
services, or training," which is introduced and defined in this
Interim Final Rule. The term is used in the definition of "qualified
individual with a disability" to encompass most, if not all, of the
circumstances (other than employment) in which a recipient might need
to determine the qualifications of an individual with a disability to
receive WIA Title I--financially assisted services, financial or other
aid, or benefits. See the definition of "aid, benefits, services, or
training" in Section 37.4, and the discussion in this preamble about
that definition.
Second, the definition as amended is intended to underscore the
distinction between the test for determining whether an individual with
a disability is qualified for such aid, benefits, services, or
training--including employment-related training--and the test for
determining whether such an individual is qualified for employment.
Under paragraph (1) of the definition, such an individual is qualified
for employment if, with or without reasonable accommodation, he or she
is capable of performing "the essential functions of the job." The
definition of the term in 29 CFR 34.2 applied the same test to
employment-related training. However, employment-related training
programs are not "employment," and therefore the focus in determining
whether an individual with a disability is "qualified" for such a
program should be upon whether the individual meets the essential
eligibility requirements for the program. Paragraph (2) of the
definition, which relates to aid, benefits, services, or training, has
been amended accordingly.
Third, the amended definition is intended to clarify that an
individual with a disability who is seeking aid, benefits, services, or
training is qualified if he or she meets the essential eligibility
requirements for receiving such aid, benefits, services, or training,
with or without reasonable accommodation or modification. The reference
to "reasonable accommodation or reasonable modification" has been
added in order to clarify that the definition is intended to encompass
"situations where an insistence on continuing past requirements and
practices might arbitrarily deprive genuinely qualified (individuals
with disabilities) of an
[[Page 61697]]
opportunity to participate in a covered program." Brennan v. Stewart,
834 F.2d 1248, 1261 (5th Cir. 1988) (discussing Section 504).
Qualified interpreter: This definition is based on the definition
of the same term contained in 28 CFR 35.104, the regulations
implementing Title II of the ADA. In this Interim Final Rule, however,
the term is used in a broader context, to implement the prohibition of
discrimination based on national origin as well as the prohibition of
discrimination against qualified individuals with disabilities. In this
Rule, the term encompasses the interpretation of spoken and written
languages, such as Spanish, for individuals with limited English
skills, as well as interpretation of spoken and written languages into
symbolic languages, such as American Sign Language, for individuals
with disabilities.
Reasonable accommodation: This definition is based on the
definition of the same term contained in 29 CFR 1630.2, in the
regulations implementing Title I of the Americans with Disabilities
Act. Although Title I and its implementing regulations apply the
concept of "reasonable accommodation" only in the context of
employment, this Interim Final Rule requires recipients to provide
"reasonable accommodation" in the additional contexts of aid,
benefits, services, and training. See Section 37.8.
Under the requirements of Section 188 of WIA and this part, as well
as under other Federal civil rights laws and their implementing
regulations, a recipient must provide both accessible facilities (that
is, both program accessibility and architectural accessibility) and
reasonable accommodation for individuals with disabilities. It is
important to understand the difference between these two requirements.
Providing accessible facilities requires a recipient to take
advance actions, in order to be ready when persons with disabilities
seek aid, benefits, services, training, or employment from that
recipient at some point in the future. See the discussion of "program
accessibility" and "architectural accessibility" in the discussion
in this preamble about Paragraph 37.3(b).
By contrast, providing reasonable accommodation for an individual
with a disability requires the recipient to make efforts to meet the
specific needs of the particular individual who is currently seeking
aid, benefits, services, training, or employment from the recipient.
Reasonable accommodation may require making specific structural or
other modifications to meet the needs of a particular individual for
access.
Recipient: This definition has been amended to clarify that where a
Governor operates a program or activity, either directly or through a
State agency, using discretionary funds apportioned to him/her under
WIA Title I (rather than disbursing the funds to another recipient),
the Governor is also a recipient. In addition, JTPA-related terminology
(such as references to SDA and Substate grant recipients) has been
replaced by WIA-related terminology (such as references to LWIA grant
recipients), and the list of examples of recipients has been numbered
and presented vertically, rather than in paragraph form, for greater
ease of reading. Finally, paragraphs (10) and (11) of the definition,
"outreach and admissions agencies" and "placement agencies," have
been amended to clarify that Job Corps contractors that perform these
functions are also recipients.
For purposes of this part, entities that participate as partners in
a One-Stop delivery system are treated as "recipients," and are
subject to the nondiscrimination and equal opportunity obligations of
this part, to the extent that they participate in the One-Stop system.
Such partners may include, but are not limited to, mandatory and
additional partners listed in WIA section 121(b), such as entities
providing employment and training activities carried out under the
Community Service Block Grant Act (42 U.S.C. 9901 et seq.), or programs
authorized under section 6(d)(4) of the Food Stamp Act of 1977
(7.U.S.C. 2015(d)(4)), if these entities participate as partners in the
One-Stop delivery system.
With regard to issues involving nondiscrimination and equal
opportunity, the One-Stop-related programs and activities operated by
such partners may fall under the jurisdiction of both CRC and the equal
opportunity office of the Federal grantmaking agency. See Section
37.85(c) and the discussion thereof in this preamble. As a result,
local Workforce Investment Boards, when developing and entering into
OUs with One-Stop partners pursuant to the requirements of WIA Section
121(c), should include attention to equal opportunity issues that may
affect the One-Stop partners or the delivery system. Such issues
include how discrimination complaints will be handled and how the cost
of reasonable accommodations will be shared. For its part, CRC is in
the process of developing MOUs with other Federal grantmaking agencies
that provide financial assistance to programs and activities in the
One-Stop delivery system, to ensure the consistent application of
Federal civil rights law.
The Department is particularly interested in receiving comments
regarding the effect of this part upon One-Stop partners.
Registrant: See the explanation of the term "applicant" in this
section.
Sectarian activities: This term appears in Section 37.6(f), which
implements Section 188(e) of WIA. With certain exceptions, that
statutory section bars participants from being employed to carry out
the construction, operation, or maintenance of any part of any facility
that is or will be used for sectarian instruction or religious worship.
Service provider: Language has been inserted into this definition
to clarify that the term encompasses any "provider of aid, benefits,
services, or training to" any WIA Title I--financially assisted
program or activity. The definition of the same term in 29 CFR 34.2
referred only to the "operator" of a JTPA-funded program or activity.
This change is not a substantive change; it was made only to clarify
the definition.
Additional language has been added to the definition to clarify
that organizations that are selected and/or certified as eligible
providers of training services under WIA are service providers under
this Interim Final Rule, regardless of whether any participants
actually select the organization to provide them with training.
Small recipient: This definition contains the same requirements as
the definition in 29 CFR 34.2. The definition has been rewritten to
explain that such a recipient both (a) serves a total of fewer than 15
beneficiaries during the entire grant year, and (b) employs fewer than
15 employees on any given day during the grant year. Again, this
alteration is not intended as a substantive change; it was made only to
clarify the definition.
State Programs: This definition adds language explaining that the
term includes State Employment Service agencies, and/or State
unemployment compensation agencies, that operate independently of a
SESA. Again, this change has been included solely to clarify the
definition.
Supportive services: This definition is taken directly from WIA
Section 101(46).
Terminee: This definition has been rewritten to explain that the
term refers to a participant whose participation in the program
terminates, voluntarily or involuntarily, during the applicable program
year. Again, this change has
[[Page 61698]]
been included solely to clarify the definition.
Undue hardship: As the definition itself notes, the meaning of this
term differs, depending upon the context in which it is used. The first
part of the definition explains the meaning of the term in the context
of reasonable accommodation for individuals with disabilities. This
part of the definition, like the definition of "reasonable
accommodation," is based on the definition of "undue hardship"
contained in 29 CFR 1630.2, in the regulations implementing Title I of
the Americans with Disabilities Act. As explained above in the
discussion of the definition of "reasonable accommodation," this
Interim Final Rule requires recipients to provide reasonable
accommodation to qualified individuals with disabilities with regard to
aid, benefits, services, and training, as well as employment, except
where such accommodation would cause undue hardship. See Section 37.7.
The second part of the definition explains the meaning of the term
in the context of religious accommodations. This part of the definition
is based on Supreme Court decisions, most notably the leading case of
Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 81, 84 (1977).
WIA Title I--financially assisted program or activity: This
definition contains the same elements as the definition of the term
"JTPA-funded program or activity" in 29 CFR 34.2. The definition has
been presented in outline form to improve its readability.
The remainder of the definitions in Section 37.4 are either
unchanged from their counterparts in 29 CFR 34.2, or have been changed
merely to refer to WIA rather than JTPA.
Section 37.5 What forms of discrimination are prohibited by this part?
This section is identical to 29 CFR 34.3, except that references to
JTPA have been changed to refer to WIA.
Section 37.6 What specific discriminatory actions, based on prohibited
grounds other than disability, are prohibited by this part?
This section contains the same requirements as 29 CFR 34.4.
Differences between this regulation and the JTPA regulation are
explained below.
Paragraph 37.6(a): This paragraph is identical to the first
sentence of 29 CFR 34.4(a), except that references to JTPA have been
changed to refer to WIA.
Paragraph 37.6(b): This introductory paragraph is identical to the
second sentence of 29 CFR 34.4(a).
Paragraphs 37.6(b)(1)-(7): These paragraphs are identical to 29 CFR
34.4(a)(1)-(7), with the following exceptions:
(1) references to "service, financial aid, or benefit" have been
changed to "aid, benefits, services, or training," as explained in
the discussion of the definition of the latter term in Section 37.4
above; and
(2) references to JTPA have been changed to refer to WIA.
Paragraph 37.6(b)(8): This paragraph is identical to 29 CFR
34.4(a)(10), except that a reference to WIA Title I has been inserted.
Paragraphs 37.6(c)(1)-(2): These paragraphs contain requirements
similar to those in 29 CFR 34.4(a)(8) and (9). Paragraph 37.6(c)(1)
signifies that a recipient must not provide significant assistance
under any circumstances to any agency, organization, or person that
discriminates on a prohibited ground. Similarly, Paragraph 37.6(c)(2)
signifies that except where doing so would cause undue hardship, a
recipient may not refuse to accommodate an individual's religious
practices or beliefs, even if the refusal is not based on dislike of or
disagreement with the individual's religion. Again, this alteration is
not intended as a substantive change from the regulations implementing
JTPA; the change was made only to clarify the intent of the
regulations.
As in other paragraphs, references to JTPA have been changed to
refer to WIA.
Paragraph 37.6(d): This paragraph contains the same requirements as
29 CFR 34.4(b). Consistent with plain-language guidelines, the
paragraph has been organized slightly differently from the JTPA
paragraph, and presented in outline form to improve its readability.
Also, the word "outreach" has been added to the list of examples of
the types of administrative determinations in which discrimination is
prohibited. Because the list, both in the corresponding JTPA regulation
and in this paragraph, is exemplary rather than restrictive, the
addition of this word makes no substantive change in the paragraph.
For consistency with the language of Section 37.7, the reference to
"standards, procedures or criteria" has been changed to "standards,
procedures, criteria, or administrative methods." See the discussion
in this preamble about Paragraph 37.7(e). Similarly, the paragraph has
been reworded to prohibit practices that defeat or substantially impair
accomplishment of the objectives of "the nondiscrimination and equal
opportunity provisions of WIA and this part," as well as those of the
program or activity in question.
As in other paragraphs, references to JTPA have been changed to
refer to WIA.
Paragraph 37.6(e): This paragraph contains the same requirements as
29 CFR 34.4(c). Again, consistent with plain-language guidelines, the
paragraph has been organized slightly differently from the JTPA
paragraph, and presented in outline form to improve its readability.
Also, references to JTPA have been changed to refer to WIA.
Paragraph 37.6(f): This paragraph prohibits participants in a WIA
Title I--financially assisted program or activity from being employed
or trained to construct, operate, or maintain any part of a facility
that is or will be used primarily for sectarian instruction or
religious worship. This paragraph is directly based on, and implements,
Section 188(a)(3) of WIA.
Paragraph 37.6(g): This paragraph is identical to 29 CFR 34.4(d).
Section 37.7 What specific discriminatory actions based on disability
are prohibited by this part?
This section contains the same requirements as 29 CFR 34.5, with
additional material modeled on the regulations implementing Title II of
the ADA. Differences between this section and the corresponding
sections of the JTPA nondiscrimination regulations or ADA regulations
are discussed below.
Paragraphs 37.7(a)(1)-(3): These paragraphs are identical to 29 CFR
34.5(a)(1)-(3), except that references to JTPA have been changed to
refer to Title I of WIA.
Paragraph 37.7(a)(4): This paragraph is identical to 29 CFR
34.5(a)(4), with the following exceptions:
(1) The paragraph specifies that, except when necessary to
accommodate a qualified individual with a disability, a recipient may
not provide "segregated" aid, benefits, services, or training to
individuals with disabilities. This addition is intended to clarify and
emphasize that a recipient may provide special programs or activities
designed for and limited to individuals with disabilities, but may not
require that individuals with disabilities attend only such programs or
activities. In other words, qualified individuals with disabilities
must be offered the option of participating in the same programs or
activities that are offered to non-disabled individuals. This change is
not intended to provide a substantive change from the JTPA
[[Page 61699]]
nondiscrimination regulations. It was inserted only to clarify the
intent of the regulations.
(2) The beginning of 29 CFR 34.5(a)(4) prohibits recipients from
providing different or separate "aid, benefits, or services" to
individuals with disabilities; the end of the same paragraph refers to
"aid, benefits, services or training." For consistency, the paragraph
has been modified to refer to "aid, benefits, services, or training"
in both places. Again, this change is not intended to provide a
substantive change from the meaning of the regulations implementing
JTPA.
Paragraphs 37.7(a)(5)-(6): These paragraphs are identical to 29 CFR
34.5(a)(6)-(7), except that references to JTPA have been changed to
refer to Title I of WIA.
Paragraph 37.7(b): This paragraph tracks the language of 29 CFR
34.5(a)(5). Like Paragraph 37.6(c)(1), it has been placed in a separate
paragraph to clarify that a recipient must not provide significant
assistance to any agency, organization, or person that discriminates on
the basis of disability, even if the recipient has no discriminatory
motivation in providing the assistance.
Paragraphs 37.7(c)-(d): These paragraphs are identical to 29 CFR
34.5(b)-(c), except that references to JTPA have been changed to refer
to Title I of WIA.
Paragraph (d) requires recipients to administer WIA Title I-
financially assisted programs and activities in "the most integrated
setting appropriate to the needs of qualified individuals with
disabilities." This language means that the recipient must provide
programs or activities in a setting that enables individuals with
disabilities to interact with non-disabled persons to the fullest
extent possible.
Paragraph 37.7(e): This paragraph contains the same requirements as
29 CFR 34.5(d). Differences between the paragraph and the corresponding
paragraphs of the JTPA nondiscrimination regulations are explained
below.
(1) Consistent with plain-language guidelines, the word "utilize"
in Paragraph 34.5(d) has been replaced by "use."
(2) For consistency with the language of Section 37.6(d), the
reference to "criteria or administrative methods" has been changed to
"standards, procedures, criteria, or administrative methods." See the
discussion in this preamble about Paragraph 37.6(d).
(3) Paragraph 34.5(d)(1) prohibited the use of such methods that
have "the effect of" discriminating against qualified individuals
with disabilities. This wording has been changed to prohibit methods
that have "the purpose or effect of" such discrimination. This
addition was made for two reasons:
(a) because WIA Section 188 makes clear that purposeful
discrimination against qualified individuals with disabilities is also
prohibited; and
(b) to make the language of Paragraph 34.5(d)(1) consistent with
the language of the remaining paragraphs in the section, which prohibit
activities that have "the purpose or effect of" discrimination.
(3) References to JTPA have been changed to refer to Title I of
WIA.
None of these changes is intended to alter the meaning of the
paragraphs from the meaning of the corresponding paragraphs in the JTPA
nondiscrimination regulations.
Paragraph 37.7(f): This paragraph contains the same requirements as
29 CFR 34.5(e). Consistent with plain-language guidelines, the
paragraph has been organized slightly differently from the
corresponding paragraph in the JTPA nondiscrimination regulations, and
presented in outline form to improve its readability. Also, references
to JTPA have been changed to refer to WIA.
Paragraphs 37.7(g)-(h): These paragraphs are based on 28 CFR
35.130(b)(5)-(6), from the regulations implementing Title II of the
ADA. Differences between the paragraphs and the corresponding
paragraphs of the ADA Title II regulations are explained below.
(1) Two changes have been made in order to tailor the regulations
to the requirements of the WIA program:
(a) The reference in Paragraph 37.7(g) to "procurement
contractors" has been changed to "contractors'; and
(b) References to "public entity" have been changed to
"recipient'; and
(2) References to the ADA have been replaced by references to WIA.
These provisions have been modeled upon the ADA Title II
regulations in order to ensure that requirements under Section 188 of
WIA follow generally the requirements of ADA Title II. Many recipients
of WIA Title I financial assistance are also subject to the
requirements of Title II, which applies to public entities including
State and local governments and their departments, agencies, and
instrumentalities. See 42 U.S.C. 12131. Modeling the WIA regulations on
the ADA Title II regulations ensures that these recipients are subject
to similar obligations and responsibilities under both laws.
Paragraph 37.7(h), which discusses licensing and certification
programs, gives CRC jurisdiction only over recipients of WIA Title I
financial assistance. For example, a state electrician certification
program run by a State agency that does not benefit from WIA Title I
financial assistance would not be required to comply with this
paragraph. Such an agency would, however, be required to comply with
the similar requirements set forth in 28 CFR 35.130(b)(6), in the ADA
Title II regulations.
Paragraphs 37.7(i)-(l): These paragraphs are based on 28 CFR
35.130(b)(8), (c), (f), and (g), from the regulations implementing
Title II of the ADA. Differences between the paragraphs and the
corresponding paragraphs of the ADA Title II regulations are explained
below.
(1) References to "public entity" have been changed to
"recipient'; and
(2) References to "service(s)" have been changed to "aid,
benefits, services, or training."
Both of these changes have been made in order to tailor the
regulations to the requirements of the WIA program. Neither change is
intended to alter the meaning of the paragraphs.
Paragraph 37.7(m): This paragraph is identical to 29 CFR 34.5(g),
except that additional punctuation has been added to improve the
material's clarity.
Paragraph 37.7(n): This paragraph contains the same requirements as
29 CFR 34.5(h). The paragraph has been presented in outline form to
improve its readability.
Paragraph 37.7(o): This paragraph is based on 28 CFR 35.130(e),
from the regulations implementing Title II of the ADA, except that
references to the ADA have been replaced by references to WIA. This
change is not intended to alter the meaning of the paragraph.
Section 37.8 What are a recipient's responsibilities regarding
reasonable accommodation and reasonable modification for individuals
with disabilities?
This section is based on 28 CFR 35.130(b)(7), which requires public
entities to make "reasonable modifications" in "policies, practices
or procedures when the modifications are necessary to avoid
discrimination on the basis of disability." To this requirement has
been added the obligation that in providing aid, benefits, services,
training, or employment, a recipient must make "reasonable
accommodation" for qualified individuals with disabilities.
The two concepts are similar in that they both require a recipient
to consult
[[Page 61700]]
with each individual with a disability who requests an accommodation(s)
or modification(s); to make an individual determination about the
alterations necessary in each case; and to take appropriate action
based upon that determination. The concepts differ, however, in the
standards used to determine "reasonableness." An accommodation is
"reasonable" unless providing the requested accommodation would cause
the recipient undue hardship. A modification, by contrast, is
"reasonable" unless making the modification would require a
fundamental alteration in the nature of the service, program, or
activity that the recipient is providing. See the definitions of
"fundamental alteration," "reasonable accommodation," and "undue
hardship" in Section 37.4.
The EEOC's Enforcement Guidance on Reasonable Accommodation and
Undue Hardship Under the Americans with Disabilities Act may help
recipients and others understand these concepts, particularly as
applied in the employment context. The Guidance is available from EEOC
or through EEOC's web site at www.eeoc.gov.
The procedures, set forth in paragraphs 37.8(a)(1)-(2) and (b)(1)-
(2), that a recipient must follow in determining whether a requested
accommodation would cause undue hardship, or a requested modification
would result in a fundamental alteration, are derived from the
procedures set forth in 29 CFR 34.6(f)(1)-(3) for making similar
determinations with regard to communications with individuals with
disabilities. See the discussion in this preamble about Paragraphs
37.9(f)(1)-(3).
Section 37.9 What are a recipient's responsibilities to communicate
with individuals with disabilities?
Generally, this section contains the same requirements as 29 CFR
34.6. Differences between the section and the corresponding section of
the JTPA nondiscrimination regulations are described below.
Paragraph 37.9(a): This paragraph requires recipients to ensure
that communication with certain groups of individuals with disabilities
are as effective as communications with others. The paragraph is
identical to Paragraph 34.6(a), except that the term "registrants"
has been added to the list of such groups. The addition is necessary in
order to tailor the regulations to the requirements of the WIA program.
This change is not intended to alter the meaning of the paragraph.
Paragraph 37.9(b): Two words have been added to this paragraph in
order to clarify its meaning. The first sentence of the paragraph
requires a recipient to "furnish appropriate auxiliary aids or
services when necessary" to give individuals with disabilities an
equal opportunity to participate in the program or activity that
receives Federal financial assistance. However, the second sentence of
29 CFR 34.6(b) referred only to a recipient's obligation to determine
what auxiliary aids or services are "necessary." In order to
eliminate confusion, the phrase "appropriate and" has been added to
the second sentence, so that it now refers to a recipient's obligation
to determine what auxiliary aids or services are "appropriate and
necessary."
Paragraph 37.9(c): The JTPA counterpart to this paragraph is 29 CFR
34.6(c). That paragraph was written in the passive voice. The paragraph
has been shifted to the active voice, to clarify that the recipient has
the responsibility of using telecommunications devices for individuals
with hearing impairments, or other equally effective communications
systems, in order to communicate by telephone with such individuals.
Additionally, the acronym "TTY," which is occasionally used as an
alternative to the acronym "TDD" for such communications systems, has
been added.
The phrase "telephone relay services," which has been added as an
example of an "equally effective communications system," refers to
services established under Title IV of the ADA to permit communications
between individuals who communicate by TDD/TTY and individuals who
communicate by the telephone alone. These relay services involve a
relay operator using both a standard telephone and a TDD/TTY to type
the voice messages to the TDD/TTY user and read the TDD/TTY messages to
the standard telephone user. Where such relay services are available, a
recipient may use these services to meet the requirements of this
section. However, where the recipient has extensive telephone contact
with the public, or where the provision of telephone services is a
major function of the recipient, the recipient should use TDDs/TTYs to
ensure more immediate access.
Paragraph 37.9(d): This paragraph is identical to 29 CFR 34.6(d),
except that, consistent with plain language principles, the term
"shall" has been replaced by "must."
Paragraphs 37.9(e)(1) and (2): These paragraph generally contain
the same information as 29 CFR 34.6(e). The information has been
presented in outline form to improve its readability. In addition, two
sentences have been added to Paragraph 37.9(e)(1) to emphasize that
"signage" is a term of art and to explain the standards that signage
must meet under the regulations.
Paragraphs 37.9(f)(1)-(3): These paragraphs, which deal with
circumstances in which a recipient believes that a particular action
would result in a fundamental alteration to the nature of a service,
program, or activity, contain the same requirements as 29 CFR
34.6(f)(1)-(3). Because the Interim Final Rule (unlike the JTPA
nondiscrimination regulations) includes a definition of "fundamental
alteration" that incorporates the concept of "undue financial and
administrative burdens," that phrase is now redundant, and has been
omitted from the paragraphs. See the discussion in this preamble about
the definition of "fundamental alteration" in Section 37.4. In
addition, references to JTPA have been changed to refer to WIA. None of
these changes is intended to alter the meaning of these paragraphs.
Section 37.10 To what extent are employment practices covered by this
part?
This section contains information similar to that in 29 CFR
34.7(b)-(g). References to JTPA have been changed to refer to WIA. In
addition, the reference to Equal Employment Opportunity Commission
"guidelines" has been changed to "guidance," and the material in 29
CFR 34.7(a), which defines the term "employment practices," has been
moved to the definition section (Section 37.4) in this Interim Final
Rule. These changes are not intended to alter the meaning of the
section.
Paragraph 37.10(a)(1) and (2): These paragraphs contain information
similar to that in 29 CFR 34.7(b). Language has been added to this
paragraph to clarify that the section applies to the employment
practices of any program or activity that is part of the One-Stop
delivery system and is operated by a One-Stop partner listed in Section
121(b) of WIA, to the extent that the program or activity is being
conducted as part of the One-Stop delivery system. In addition, the
information has been presented in outline form to improve its
readability.
Paragraph 37.10(d): The corresponding paragraph in the JTPA
nondiscrimination regulations, 29 CFR
[[Page 61701]]
34.7(e), stated that part 34 did not affect recipients' obligations to
comply with the provisions of Subparts B and C and Appendix A of 29 CFR
part 32. As noted in the discussion in this preamble about Paragraph
37.3(b), that paragraph has been amended to incorporate the cited
provisions by reference. This paragraph has been amended accordingly.
Paragraph 37.10(f): This paragraph, which notes that recipients
should be aware of their obligations to comply with the anti-
discrimination provisions of the Immigration and Nationality Act, has
been added at the request of the Department of Justice. See the
discussion in this preamble about Paragraph 37.3(c)(9).
Section 37.11 To what extent are intimidation and retaliation
prohibited by this part?
This section contains the same requirements as 29 CFR 34.8.
Consistent with plain-language guidelines, the section has been
organized slightly differently from the JTPA section, and presented in
outline form to improve its readability. Also, references to JTPA have
been changed to refer to WIA. None of these changes is intended to
alter the meaning of the section.
Section 37.12 What Department of Labor office is responsible for
administering this part?
This section contains the same requirements as 29 CFR 34.9(a). The
section refers to the Civil Rights Center, or CRC, which was known as
the Directorate of Civil Rights, or DCR, at the time the JTPA
nondiscrimination regulations were promulgated. Also, references to
JTPA in the previous section have been changed in this section, where
appropriate, to refer to WIA. Neither of these changes is intended to
alter the meaning of this section.
Some recipients have expressed confusion about which Department of
Labor agency they should contact for answers to questions about the
nondiscrimination and equal opportunity requirements of the JTPA and
WIA programs. This confusion is understandable: the Department's
Employment and Training Administration (ETA) is responsible for, and
has expertise about, most aspects of the JTPA and WIA programs. As a
result, recipient staff members are accustomed to approaching ETA
personnel for answers to JTPA- and WIA-related questions. However, CRC,
rather than ETA, is responsible for, and has expertise about, the
particular aspects of the JTPA and WIA programs relating to
nondiscrimination and equal opportunity. Recipients will therefore be
able to receive more expeditious answers to questions about these
aspects of the programs by contacting CRC directly.
Section 37.13 Who is responsible for providing interpretations of this
part?
This section is identical to 29 CFR 34.9(b), except that the
reference to JTPA has been changed to refer to WIA. This change is not
intended to alter the meaning of this section. See the discussion of
Section 37.12 above.
Section 37.14 Under what circumstances may the Secretary delegate
responsibility under this part?
This section is identical to 29 CFR 34.12(a) and (b), with the
following exceptions:
(1) The references to other regulatory sections within part 34 have
been changed to reflect the numbering of this Interim Final Rule; and
(2) References to JTPA have been changed to refer to WIA.
Neither of these changes is intended to alter the meaning of this
section.
Section 37.15 What are the Director's responsibilities to coordinate
with other civil rights agencies?
This section generally contains the same requirements as 29 CFR
34.12(c). At the request of the Department of Justice, a reference to
the anti-discrimination provision of the Immigration and Nationality
Act has been added to the list of laws with regard to which the
Director must coordinate with other Federal civil rights agencies. See
the discussion in this preamble about Paragraph 37.3(c)(9).
In addition, consistent with plain-language guidelines, this
section has been organized slightly differently from the JTPA section,
and presented in outline form to improve its readability. Also,
references to JTPA have been changed to refer to WIA. Neither of the
latter changes is intended to alter the meaning of this section.
Section 37.16 What is this part's effect on a recipient's obligations
under other laws, and what limitations apply?
Paragraphs (a) and (b) of this section are identical to the
corresponding paragraphs in 29 CFR 34.11, except that references to
JTPA have been changed to refer to WIA. This change is not intended to
alter the meaning of the paragraphs.
Paragraph (a) of this section means that a recipient is not excused
from complying with the nondiscrimination and equal opportunity
provisions of WIA and this part, even if a State or local law requires
the recipient to discriminate on a prohibited ground.
Similarly, paragraph (b) of this section means that no rule or
regulation of a private organization, club, league, or association that
requires a recipient to discriminate on a prohibited ground excuses a
recipient from complying with the nondiscrimination and equal
opportunity provisions of WIA and this part.
Paragraph (c) of this section contains the same requirements as 29
CFR 34.11(c). It has been rewritten to improve its clarity. The
paragraph bars recipients, while recruiting, selecting, or placing
individuals in programs or activities, from considering whether job
opportunities in any particular occupation or profession will be open
to qualified individuals with disabilities, or to persons of a certain
race, color, religion, sex, national origin, age, political affiliation
or belief, or citizenship. For example, a recipient operating a WIA
Title I--financially assisted training program must not steer women
away from training programs for construction work because the recipient
believes that women will have difficulty finding jobs in construction.
This paragraph does not change the recipient's general obligation under
WIA to assure that training is focused on occupations that are in
demand.
Subpart B--Recordkeeping and Other Affirmative Obligations of
Recipients
The requirements in this subpart are generally similar to the
requirements in Subpart B of part 34. Consistent with plain-language
guidelines, some of the sections within the subpart have been
rearranged in a more logical order, and lengthy sections have been
divided into shorter sections treating narrower topics. These changes
are not intended to alter the overall meaning of this subpart, or the
meaning of any of its component sections.
Assurances
Section 37.20 What is a recipient's obligation to provide a written
assurance?
This section contains the same requirements as 29 CFR 34.20(a) and
(b). Differences between this section and the corresponding section of
the JTPA nondiscrimination regulations are described below.
Paragraph 37.20(a)(1): In this paragraph, the introductory
paragraph has been rewritten to eliminate redundancy, and the required
assurance has been rewritten consistent with plain-language guidelines.
These
[[Page 61702]]
changes are not intended to alter the meaning of the assurance or the
paragraph.
The rewritten assurance states that the recipient must not
discriminate on the basis of "citizenship/status as a lawfully
admitted immigrant authorized to work in the United States." This
change has been made to convey more accurately the definition of
"discrimination on the ground of citizenship" contained in Section
37.4.
Paragraphs 37.20(a)(2): These paragraphs are identical to 29 CFR
34.20(a)(2) and (b), with the following exceptions:
(1) The references to other regulatory sections within part 34 have
been changed to reflect the numbering of this Interim Final Rule; and
(2) References to JTPA have been changed to refer to WIA.
Neither of these changes is intended to alter the meaning of these
paragraphs.
Section 37.21 How long will the recipient's obligation under the
assurance last, and how broad is the obligation?
This section contains the same general requirements as 29 CFR
34.20(c). References to JTPA have been changed to refer to Title I of
WIA, and the material has been presented in outline form to improve its
clarity. In addition, two new clauses have been added. The first clause
extends the obligation for the period during which the property is used
"for another purpose involving the provision of * * * services or
benefits" that are similar to those provided under WIA Title I. This
clause has been added for consistency with other Federal regulations
involving Federally-assisted programs. See, e.g., 28 CFR 42.105(a)(1)
(implementing Title VI); 34 CFR 100.4(a)(1) (applying Title VI to
programs assisted through the Department of Education).
The second new clause extends the obligation under the assurance to
a transferee for the period until the transferee has compensated the
Departmental grantmaking agency for the fair market value of the
property transferred. This clause has been added in order to ensure
that a transferee may not benefit from a transfer of property under the
WIA Title I program without being subjected to the nondiscrimination
and equal opportunity obligations of WIA and this part.
Section 37.22 How must covenants be used in connection with this part?
Generally, this section contains the same requirements as 29 CFR
34.20(d). References to JTPA have been changed to refer to Title I of
WIA. In addition, paragraph (a) has been amended to require that the
covenant must assure compliance with the nondiscrimination and equal
opportunity provisions for the period described in Section 37.21.
Additionally, the clause, described in the discussion of Section 37.21,
that extends the obligation for the period during which the property is
used "for another purpose involving the provision of similar services
or benefits" has been added to this section as well. See the
discussion of Section 37.21 above.
Equal Opportunity Officers
Section 37.23 Who must designate an Equal Opportunity Officer?
This section is based on the first sentence of 29 CFR 34.22(a). The
section is not intended to alter the requirements of the corresponding
JTPA regulation with regard to the entities that are required to
designate Equal Opportunity Officers ("EO Officers").
Section 37.24 Who is eligible to serve as an Equal Opportunity
Officer?
The material in this section is new. It is intended to clarify and
emphasize the significance and level of authority that recipients must
give to the Equal Opportunity Officer position, and to the individual
who holds that position. Much (though by no means all) of the
responsibility for a recipient's nondiscrimination and equal
opportunity program rests on the shoulders of the EO Officer. CRC's
experience has demonstrated that in order for such programs to function
fairly and effectively, the EO Officer must be a senior-level employee
whose responsibilities in the position present no conflicts of interest
with his or her other responsibilities. In addition, the recipient must
establish clear lines of authority and accountability for the program,
and must provide the EO Officer with appropriate levels of support. See
the discussion of Sections 37.25 and 37.26 below.
As with part 34, this section does not require that recipients
designate a separate or additional EO Officer to implement the
nondiscrimination obligations imposed by WIA and this part. Nor is this
section intended to require that the WIA EO Officer be employed in that
position full-time. Recipients may still use their existing EO Officer
and staff (assuming that the EO Officer meets the requirements of this
section), or assign additional, non-WIA-related duties to a newly-
appointed EO Officer, so long as the EO Officer is able to give top
priority to, and to adequately accomplish all of, his/her
responsibilities under the nondiscrimination and equal opportunity
provisions of WIA and this part.
Section 37.25 What are the responsibilities of an Equal Opportunity
Officer?
This section consolidates and clarifies the responsibilities that
were conferred on EO Officers under 29 CFR part 34. The source of each
proposed paragraph is set forth below.
The list of responsibilities provided in this section is not
intended to be exclusive. The EO Officer must also perform any
additional duties that may arise from his/her administration of the
recipient's nondiscrimination and equal opportunity obligations under
WIA and this part.
Paragraph 37.25(a): This paragraph, which requires the EO Officer
to serve as the recipient's liaison with CRC, contains one of the
recipients' responsibilities listed in 29 CFR 34.22(a). Other
responsibilities listed in that paragraph of the JTPA nondiscrimination
regulations are discussed in appropriate sections below.
This paragraph of the Interim Final Rule signifies that the EO
Officer and his/her staff will serve as the point of contact for all
recipient personnel who have questions about WIA's nondiscrimination
and equal opportunity program. The EO Officer will have both expertise
in the subject and an ongoing relationship with CRC staff. Because of
that expertise, the EO Officer may be able to answer recipient staff
members' questions based on his or her own knowledge of the program.
In addition, CRC has found this requirement to be a significant
component of a program with clear lines of authority and
accountability, as discussed in Section 37.24 above. Having a single
point of contact, at both the recipient and departmental levels, helps
to ensure a consistent interpretation and application of the
requirements of the nondiscrimination and equal opportunity provisions
of WIA and this part. See the discussion above about Section 37.12.
Paragraphs 37.25(b)-(c): These paragraphs require the EO Officer to
monitor the activities of the recipient and its recipients to ensure
that the recipients' nondiscrimination and equal opportunity
obligations are not being violated, and to review their written
policies to ensure that those policies are nondiscriminatory. CRC's
experience has demonstrated that these two responsibilities are an
integral part of the most effective equal opportunity programs of
recipients under JTPA.
[[Page 61703]]
These paragraphs are not intended to impose additional
responsibilities upon recipients or their EO Officers. The paragraphs
are intended merely to clarify the responsibilities that were already
imposed under the JTPA program, and to emphasize that the EO Officer
should take a leadership role in the operation of the recipient's
nondiscrimination and equal opportunity programs.
Paragraph 37.25(d): This paragraph, which requires the EO Officer
to adopt, publish, and oversee the recipient's procedures for
processing discrimination complaints, contains the same requirements as
29 CFR 34.42(b).
Paragraphs 37.25(e)-(g): These paragraphs contain the
responsibilities of EO Officers that are listed in 29 CFR 34.22(a).
Other responsibilities listed in that paragraph of the JTPA
nondiscrimination regulations belong to recipients and are listed
above, in Paragraph 37.25(a), or below, in Section 37.26.
Section 37.26 What are a recipient's obligations relating to the Equal
Opportunity Officer?
This section consolidates and clarifies the obligations that were
conferred on recipients under 29 CFR part 34 regarding their EO
Officers. The source of each paragraph is set forth below.
Paragraph 37.26(a): This paragraph, which requires recipients to
publicize the EO Officer's name and contact information, contains the
same requirements, in a more detailed form, as the last sentence of 29
CFR 34.22(a).
Paragraph 37.26(b): This paragraph clarifies that where a recipient
provides internal and external notice about its nondiscrimination and
equal opportunity programs, it must also provide information about ways
to contact its EO Officer. See 29 CFR 34.23(a) and (b), and the
discussion of Sections 37.29 through 37.31, 37.34, and 37.36 below.
Paragraph 37.26(c): This paragraph is based on 29 CFR 34.22(b). It
has been rewritten to emphasize that, as explained in the discussion of
Section 37.24 above, the success of a recipient's nondiscrimination and
equal opportunity program depends heavily upon the tangible and
intangible support that the recipient provides to its EO Officer, and
that the recipient's top management should provide a significant
percentage of that support.
Paragraph 37.26(d): This paragraph requires a recipient to ensure
that the EO Officer and his/her staff are afforded the opportunity to
receive the training necessary and appropriate to maintain competency.
This requirement is based on the language 29 CFR 34.22(a) which
required the recipient to pay for any training that the Director
required its EO Officer and staff to take. The requirement has been
rewritten to emphasize that the recipient is responsible for ensuring
that its EO Officer and staff maintain the level of knowledge, skills,
and abilities necessary to carry out their responsibilities fully and
effectively, and that the training needed to maintain this level of
competency in a particular case, or for a particular recipient, may be
more extensive than the training that the Director requires.
Section 37.27 What are the obligations of small recipients relating to
Equal Opportunity Officers?
This section contains the same requirements as 29 CFR 34.22(c).
Consistent with plain-language guidelines, the section has been
slightly rewritten to improve its clarity. Also, the reference to other
regulatory sections within part 34 has been changed to reflect the
numbering of this Interim Final Rule. These changes are not intended to
alter the meaning of this section.
Section 37.28 What are the obligations of service providers relating
to Equal Opportunity Officers?
This section contains the same requirements as 29 CFR 34.22(d). As
with Section 37.27, the section has been slightly rewritten, and the
reference to another regulatory section within part 34 has been changed
to reflect the numbering of this Interim Final Rule. Also, JTPA-related
terminology (the references to SDA grant recipients and Substate
grantees) has been replaced by WIA-related terminology (the reference
to LWIA grant recipients). Again, these changes are not intended to
alter the meaning of this section.
Notice and Communications
Section 37.29 What are a recipient's obligations to disseminate its
equal opportunity policy?
This section contains the same requirements as 29 CFR 34.23(a)(1),
with the addition of related material from 34.23(a)(7). Consistent with
plain-language guidelines, the section has been organized slightly
differently from 29 CFR 34.23(a)(1), and has been presented in outline
form to improve its readability. Also, WIA-related terminology (the
reference to "registrants") has been added where appropriate, and the
reference to another regulatory section within part 34 has been changed
to reflect the numbering of this Interim Final Rule. None of these
changes is intended to alter the meaning of this section.
Section 37.30 What specific wording must the notice contain?
This section contains the same requirements as 29 CFR 34.23(a)(5).
Both the introductory language and the notice have been rewritten
consistent with plain-language guidelines. Also, references to JTPA
have been replaced by references to WIA Title I, and the time frame
within which a recipient must process a complaint has been extended to
90 days, consistent with the changes included in this Interim Final
Rule. See the discussion of Section 37.76 in this preamble; see also
the notice in Section 37.30 of the Interim Final Rule.
The rewritten notice states that the recipient must not
discriminate on the basis of "citizenship/status as a lawfully
admitted immigrant authorized to work in the United States." This
change has been made to convey more accurately the definition of
"discrimination on the ground of citizenship" contained in Section
37.4.
The notice contains references to a document entitled a "Notice of
Final Action." As discussed in Section 37.76 of this preamble, the
"Notice of Final Action" is merely a formal name for a document that
a recipient was required under part 34 to issue when it finished
processing a discrimination complaint. Therefore, the reference to a
"Notice of Final Action" is not a substantive change to the notice
required by this section.
Section 37.31 Where must the notice required by Sections 37.29 and
37.30 be published?
This section contains the same requirements as 29 CFR 34.23(a)(2)
and (3). Consistent with plain-language guidelines, the section has
been organized slightly differently from the JTPA nondiscrimination
regulations, and has been presented in outline form to improve its
readability. Also, the reference to another regulatory paragraph within
part 34 has been changed to reflect the numbering of this Interim Final
Rule. None of these changes is intended to alter the meaning of the
section.
A reference to "electronic communications" has been added to
Section 37.31(a)(2), to reflect the growth in computer technology, and
the related expansion of electronic communications, that have taken
place since the JTPA nondiscrimination regulations were promulgated in
1992.
[[Page 61704]]
Section 37.32 When must the notice required by Sections 37.29 and
37.30 be provided?
This section contains the same requirements as 29 CFR 34.23(a)(4).
Consistent with plain-language guidelines, the section has been
organized slightly differently from the JTPA nondiscrimination
regulations. Also, the reference to another regulatory paragraph within
part 34 has been changed to reflect the numbering of this Interim Final
Rule. Neither of these changes is intended to alter the meaning of the
paragraph.
Section 37.33 Who is responsible for meeting the notice requirement
with respect to service providers?
This section contains the same requirements as 29 CFR 34.23(a)(6).
JTPA-related terminology (the references to SDA grant recipients and
Substate grantees) has been replaced by WIA-related terminology (the
references to the LWIA grant recipient). Also, the reference to another
regulatory paragraph within part 34 has been changed to reflect the
numbering of this Interim Final Rule. Neither of these changes is
intended to alter the meaning of the section.
Section 37.34 What type of notice must a recipient include in
publications, broadcasts, and other communications?
This section contains the same requirements as 29 CFR 34.23(b).
Differences between the section and the corresponding paragraph of the
JTPA nondiscrimination regulations are described below.
Paragraph 37.34(a): Consistent with plain-language guidelines, this
paragraph has been organized slightly differently from 29 CFR
34.23(b)(1), the corresponding paragraph in the JTPA nondiscrimination
regulations. To reflect the growth in computer technology, and the
related expansion of electronic communications, a reference to
"materials that are ordinarily distributed or communicated in written
and/or oral form, electronically and/or on paper," has been added.
Also, because materials that "describe programs funded under [Title I
of WIA] or the requirements for participation by recipients and
participants" are frequently distributed to staff and clients, as well
as to the public, a reference to those two groups has been added. In
addition, the acronym "TTY," which, as previously noted, is
occasionally used as an alternative to the acronym "TDD," has been
added. Finally, references to JTPA have been replaced by references to
WIA Title I, and the reference to another regulatory paragraph within
part 34 has been changed to reflect the numbering of this Interim Final
Rule.
Paragraph 37.34(b): The reference to recipients "required by law
or regulation to" publish or broadcast information in the news media
has been deleted, in order to clarify that all recipients must include
the required notice in written and electronic publications and
broadcasts, regardless of whether those publications or broadcasts are
required. Also, references to JTPA have been replaced by references to
WIA Title I.
Paragraph 37.34(c): The language contained in 29 CFR 34.23(c) that
prohibited a recipient from "us[ing] or distribut[ing] a publication
of the type described in paragraph (b) of this section" has been
replaced by language prohibiting a recipient from "communicating any
information." As with other changes described above, this change was
made to reflect the growth of electronic communication. Recipients now
may reach staff, clients, or the general public through e-mail and
Internet Web sites, as well as through the traditional publications on
paper that were contemplated by the JTPA nondiscrimination regulations.
Additionally, references to JTPA have been replaced by references
to WIA Title I, and the reference to another regulatory paragraph
within part 34 has been changed to reflect the numbering of this
Interim Final Rule.
Section 37.35 What are a recipient's responsibilities to provide
services and information in languages other than English?
The requirements in this section are authorized by the provision in
Section 188 of WIA that bars recipients from discriminating on the
basis of national origin. Cf. Lau v. Nichols, 414 U.S. 563 (1974)
(school system required to provide English language instruction to
students of Chinese ancestry who do not speak English under Section 601
of the Civil Rights Act of 1964, 42 U.S.C. 2000d, which bans
discrimination based on national origin in programs or activities
receiving Federal financial assistance).
Paragraph (a) of this section contains the same requirements as 29
CFR 34.23(c). Consistent with plain-language guidelines, this paragraph
has been organized slightly differently from the corresponding
paragraph in the JTPA nondiscrimination regulations, and has been
presented in outline form to improve its readability. Also, references
to JTPA have been replaced by references to WIA Title I, and the
references to other regulatory paragraphs within part 34 have been
changed to reflect the numbering of this Interim Final Rule.
Paragraph (b) has been added in order to clarify the
responsibilities of recipients to provide services and information to
individuals with limited English-speaking skills where the number or
proportion of such persons in the community served by the recipient
does not reach the levels described in paragraph (a). In such
circumstances, a recipient should make reasonable efforts to meet the
particularized needs of any such individuals who seek services or
information from that recipient.
The differences between paragraphs (a) and (b) of this section may
be explained as follows: Paragraph (a) requires a recipient to take
certain actions before individuals with limited English skills seek
assistance from the recipient. Under this paragraph, the recipient must
assess the scope of its program or activity and the size and
concentration of the population it serves, and establish and carry out
a plan to provide services and information in the language (or
languages) used by a significant number or proportion of members of
that population. Depending upon the combination of these factors, that
plan may include printing materials in the language used by the
"significant number or proportion of the population," hiring
permanent staff members who are qualified interpreters in that
language, or various other options.
Under paragraph (b), by contrast, a recipient is not required to
take action in advance. However, when an individual with limited
English skills--who does not speak a language spoken by a "significant
number or proportion of the population"--seeks services or information
from the recipient, the recipient should then make reasonable efforts
to meet the particularized needs of that individual. Such efforts may
include, but are not limited to, locating and temporarily employing a
qualified interpreter who can communicate in the appropriate language.
As technology advances, various options for complying with the
requirements of this section, such as computerized and/or on-line
translation services, are becoming increasingly available to
recipients, and the cost of these options is decreasing.
Section 37.36 What responsibilities does a recipient have to
communicate information during orientations?
This section contains the same requirements as 29 CFR 34.23(d).
[[Page 61705]]
Consistent with plain-language guidelines, the section has been
organized slightly differently from the corresponding paragraph in the
JTPA nondiscrimination regulations. Also, references to JTPA have been
replaced by references to WIA Title I. In addition, because recipients
may provide orientations for the general public as well as for their
new participants and/or employees, a reference to the general public
has been added.
Data and Information Collection and Maintenance
Section 37.37 What are a recipient's responsibilities to collect and
maintain data and other information?
This section contains the same requirements as 29 CFR 34.24(a),
(a)(1), and (a)(2), with additional, related material included from 29
CFR 34.24(a)(3)(iii), (a)(7), and (e). Differences between this section
and the corresponding paragraphs of the JTPA nondiscrimination
regulations are described below.
Paragraph 37.37(a): This paragraph is identical to 29 CFR 34.24(a),
except that references to JTPA have been replaced by references to WIA.
This change is not intended to alter the meaning of the paragraph.
Paragraph 37.37(b)(1): The first sentence of this paragraph
contains the same requirements as 29 CFR 34.24(a)(1); references to
JTPA have been replaced by references to WIA. The second sentence has
been added to explain that the manner in which the records and data are
kept must allow the Governor and CRC to monitor the recipient's
compliance by conducting statistical and other quantifiable data
analyses. This provision is not a new requirement; it merely clarifies
and codifies CRC's current practices. Compare 29 CFR 34.24(a)(1).
Paragraph 37.37(b)(2): Generally, this paragraph contains the same
requirements as 29 CFR 34.24(a)(2). Consistent with plain-language
guidelines, the paragraph has been slightly rewritten to improve its
clarity. Also, references to JTPA have been replaced by references to
WIA, and WIA-related terminology (the references to "registrants" and
to "eligible applicants/registrants") has been added where
appropriate. None of these changes is intended to alter the meaning of
the paragraph.
In addition, the last line of the paragraph has been amended to
permit the data and information collected under paragraph (b) of this
section to be used for such "other use authorized by law." This
change has been made to clarify that this Interim Final Rule does not
prohibit recipients from cooperating with Federal, State, and local
agencies that, for law enforcement purposes, seek access to the data
and information collected.
This section does not require recipients to obtain, or to maintain
records regarding, the citizenship status of applicants or
participants.
Paragraph 37.37(c): This paragraph contains the same general
requirements as 29 CFR 34.24(a)(3)(iii). In response to questions that
have arisen about whether recipients must provide the required log of
complaints to CRC when requested to do so, the first sentence has been
amended to clarify that recipients must "submit [the log] to CRC upon
request." Because 29 CFR 34.24(a)(4) already required that grant
applicants and recipients provide, "[a]t the discretion of the
Director, . . . such information and data" that the Director
considered necessary to determine whether the entity was complying with
the nondiscrimination and equal opportunity requirements, this addition
was made solely to clarify the regulations. Also, the paragraph has
been slightly rewritten to clarify that a complaint may be based upon
more than one prohibited ground, that every prohibited ground upon
which a particular complaint is based must be recorded in the log, and
that information in the log that could lead to the identification of a
particular individual as having filed a complaint must be kept
confidential.
29 CFR 34.24(a)(3)(iii) contained two identical lists of prohibited
grounds upon which complaints recorded in the required log might have
been filed. For conciseness, the second list of prohibited grounds has
been eliminated. Finally, references to JTPA have been replaced by
references to WIA Title I. Neither of these two changes is intended to
alter the meaning of the paragraph.
Section 37.37(d): This paragraph is identical to 29 CFR 34.24(e).
The current guidelines may be found in 62 FR No. 210, Thursday, October
30, 1997, at 58782, 58790. They may also be found at 28 CFR 42.402(e).
In following these guidelines, recipients should use the combined
format for collection and reporting of data.
Section 37.37(e): This paragraph is identical to 29 CFR
34.24(a)(7), except that JTPA-related terminology (the reference to SDA
grant recipients and Substate grantees) has been replaced by WIA-
related terminology (the reference to the LWIA grant recipient). This
change is not intended to alter the meaning of the paragraph.
Section 37.38 What information must grant applicants and recipients
provide to CRC?
This section consolidates 29 CFR 34.24(a)(3)(i) and (ii), (a)(4),
(a)(5), (a)(6), and (e). Requirements regarding information that grant
applicants and recipients must provide to CRC have been grouped
together. Differences, if any, between the section and the
corresponding paragraphs of the JTPA nondiscrimination regulations are
described below.
Paragraph 37.38(a): This paragraph contains the same general
requirements as 29 CFR 34.24(a)(3)(i). References to JTPA in the
paragraph have been replaced by references to WIA Title I. In addition,
the language requiring grant applicants and recipients to promptly
notify the Director "of any administrative enforcement actions or
lawsuits filed against it" has been changed to require such
notification "when any" such actions or lawsuits "are filed." This
change was made because of CRC's judgment that grant applicants and
recipients needed guidance about the precise meaning of the requirement
that the notification be made "promptly." The new language emphasizes
that the grant applicant or recipient must notify the Director at the
time that enforcement actions or lawsuits are filed; it also makes the
paragraph more readable.
Also, language that specifies the information that the notification
must contain has been added to this paragraph. The added language is
based upon part of 29 CFR 34.24(a)(3)(ii); the requirements are the
same as those in Section 37.38(b)(2)(i)-(iii).
Paragraph 37.38(b): This paragraph requires grant applicants, as
part of their applications for assistance, and recipients, as part of a
compliance review or monitoring activity conducted by the Director, to
provide the Director with information about any of the following
occurrences from the two years before the application, compliance
review, or monitoring activity:
(1) The names of any other Federal agencies that found the grant
applicant or recipient to be in noncompliance with civil rights
requirements; and
(2) Information about any administrative enforcement actions or
lawsuits that:
(a) were filed during those two years; and
(b) alleged discrimination on any protected ground.
This paragraph contains the same requirements as 29 CFR
34.24(a)(3)(ii). Consistent with plain-language guidelines, this
paragraph has been
[[Page 61706]]
organized slightly differently from the corresponding paragraph in the
JTPA nondiscrimination regulations, and has been presented in outline
form to improve its readability. Also, references to other regulatory
sections within part 34 have been changed to reflect the numbering of
this Interim Final Rule. None of these changes is intended to alter the
meaning of the paragraph.
Paragraph 37.38(c): This paragraph is based upon 29 CFR
34.24(a)(4). It requires grant applicants and recipients to provide CRC
with the data and information necessary to investigate complaints and
conduct compliance reviews. References to JTPA have been replaced by
references to WIA; and the phrase "in a timely manner" has been
inserted. This phrase was added in order to emphasize the need for
grant applicants and recipients to respond promptly to the Director's
requests for information. Because the corresponding paragraph in part
34 already required grant applicants and recipients to provide
information "at the discretion of the Director," and the scope of
Director's discretion includes the discretion to determine when
information must be submitted, the latter change is intended merely to
clarify the meaning of the paragraph.
The corresponding paragraph in the JTPA nondiscrimination
regulations specified that the requirement applied to complaints and
compliance reviews "on grounds prohibited under the nondiscrimination
and equal opportunity provisions of JTPA and this part, other than
race/ethnicity, sex, age, and disability." Because 29 CFR 34.24(a)(2)
and (3) already required grant applicants and recipients to record and
submit the race/ethnicity, sex, age, and disability of certain
categories of persons, the paragraph was written this way to emphasize
that grant applicants and recipients were required to provide CRC with
records and data about additional prohibited grounds. However, grant
applicants and recipients found the paragraph confusing. The paragraph
therefore has been rewritten to clarify that they may be requested to
submit data and information necessary to investigate complaints and/or
conduct compliance reviews on any ground prohibited by the
nondiscrimination and equal opportunity provisions of WIA and this
part.
Paragraph 37.38(d)-(e): These paragraphs require grant applicants
and recipients to submit certain specified information at the
discretion of the Director. These paragraphs are identical to 29 CFR
34.24(a)(5)-(6), with the following exceptions:
(1) References to JTPA have been replaced by references to WIA; and
(2) In each paragraph, the phrase "in a timely manner" has been
inserted. This phrase was added in order to emphasize the need for
grant applicants and recipients to respond promptly to the Director's
requests for information. As with Paragraph 37.38(c), because each
corresponding paragraph in part 34 already required grant applicants
and recipients to provide information "at the discretion of the
Director," and the scope of Director's discretion includes the
discretion to determine when information must be submitted, these
changes clarify the meaning of these paragraphs.
Paragraph 37.38(f): This paragraph provides that where designation
of persons by race or ethnicity is required, the guidelines of the
Office of Management and Budget must be used. The paragraph is
identical to 29 CFR 34.24(e), and appears in Section 37.37 as well. It
was repeated in this section to clarify that its provisions apply to
information provided to and collected by CRC, as well as to data and
information collected by grant applicants and recipients. The current
guidelines may be found in 62 FR. No. 210, Thursday, October 30, 1997,
at 58782, 58790. They may also be found at 28 CFR 42.402(e). In
following these guidelines, recipients should use the combined format
for collection and reporting of data.
Because this paragraph was applicable to 29 CFR 34.24(a)(4)-(6),
its inclusion in this section does not impose additional
responsibilities upon grant applicants or recipients.
Section 37.39 How long must grant applicants and recipients maintain
the records required under this part?
This section contains the same requirements as 29 CFR 34.24(c),
"Record retention requirements." Consistent with plain-language
guidelines, this section has been organized slightly differently from
the corresponding paragraph in the JTPA nondiscrimination regulations,
and has been presented in outline form to improve its readability. This
change is not intended to alter the meaning of the section.
Section 37.40 What access to sources of information must grant
applicants and recipients provide the Director?
This section generally contains the same requirements as 29 CFR
34.24(b), "Access to sources of information." References to JTPA have
been replaced by references to WIA. In addition, the sentence
"Information obtained pursuant to the requirements of this part must
be used only in connection with compliance and enforcement activities
pertinent to the nondiscrimination and equal opportunity provisions of
WIA and this part" has been deleted from paragraph (b). As with the
change discussed in Section 37.37(b)(2) earlier in this preamble, this
change was made to clarify that this Interim Final Rule does not
prohibit recipients from cooperating with Federal, State, and local
agencies that, for law enforcement purposes, seek access to the data
and information collected.
Paragraph (c) contains the same requirements as the last sentence
of 29 CFR 34.24(b)(2). Consistent with plain-language guidelines, it
has been rewritten to clarify those requirements.
Section 37.41 What responsibilities do grant applicants, recipients,
and the Department have to maintain the confidentiality of the
information collected?
This section is identical to 29 CFR 34.24(d), "Confidentiality,"
with the following exceptions:
(a) language has been inserted to clarify that the identity of
individuals who file discrimination complaints must be kept
confidential; and
(b) the reference to 29 CFR 34.8 has been changed to reflect the
numbering of this Interim Final Rule.
Neither of these changes is intended to alter the meaning of this
section.
Section 37.42 What are a recipient's responsibilities under this part
to provide universal access to WIA Title I-financially assisted
programs and activities?
This section notifies recipients of their obligation to ensure
universal access for all eligible populations to the aid, benefits,
services, and/or training that the recipient offers under its WIA Title
I--financially assisted programs and activities. Recipients should take
specific actions to reach out to all eligible populations. The rule
provides a nonexclusive list of possible actions, such as targeted
advertising, notification of schools or community interest groups, and
consultation with community service groups, that might be used to
enhance community awareness of a recipient's programs and activities.
Subpart C--Governor's Responsibilities to Implement the
Nondiscrimination and Equal Opportunity Requirements of WIA
The individual sections in this subpart are largely identical to
their corresponding sections within the same
[[Page 61707]]
subpart in part 34. Consistent with plain-language guidelines, they
have been rearranged in a more logical order, and one lengthy section
has been divided into shorter sections treating narrower topics. These
changes are not intended to alter the overall meaning of this subpart,
or the meaning of any of its component sections.
Section 37.50 To whom does this subpart apply?
This section is identical to 29 CFR 34.30, "Application," except
that the references to sections in part 34 have been changed to reflect
the numbering of this Interim Final Rule. This change is not intended
to alter the meaning of this section.
Section 37.51 What are a Governor's oversight responsibilities?
This section contains the same requirements as 29 CFR 34.32(a).
References to JTPA have been replaced by references to WIA Title I, and
the references to sections in part 34 have been changed to reflect the
numbering of this Interim Final Rule. Neither of these changes is
intended to alter the meaning of this section. In addition, language
has been added to clarify that the Governor must negotiate with a
noncomplying recipient "where appropriate."
Section 37.52 To what extent may a Governor be liable for the actions
of a recipient s/he has financially assisted under WIA Title I?
This section is identical to 29 CFR 34.32(b) and (c), with the
following exceptions:
(1) References to JTPA have been replaced by references to WIA;
(2) The references to sections in part 34 have been changed to
reflect the numbering of this Interim Final Rule; and
(3) To comply with the rules of grammar, the word "which" in
paragraph (a)(2) has been changed to "that."
None of these changes is intended to alter the meaning of this
section.
Section 37.53 What are a Governor's oversight responsibilities
regarding recipients' recordkeeping?
This section is identical to 29 CFR 34.31, except that the
references to sections in part 34 have been changed to reflect the
numbering of this Interim Final Rule. These changes are not intended to
alter the meaning of this section.
Section 37.54 What are a Governor's obligations to develop and
maintain a Methods of Administration?
A "Methods of Administration" (MOA) is a document that describes
the actions an individual State will take to ensure that its WIA Title
I-financially assisted programs, activities, and recipients are
complying, and will comply, with all requirements imposed by or under
this part.
This section contains the same general requirements as 29 CFR
34.33(a)-(c). References to JTPA have been replaced by references to
WIA, and the references to sections in part 34 have been changed to
reflect the numbering of this Interim Final Rule. Also, the list of
sections referred to in paragraph 37.54(c)(1) has been expanded to
include a description of each section. In addition, consistent with
plain-language guidelines, the information in Paragraphs 37.54(c)(1)
and (c)(2)(vii) has been presented in outline form to improve its
readability. None of these changes is intended to alter the meaning of
these paragraphs.
The reasons for additional changes in the section are described
below.
(1) 29 CFR 34.33(b)(2) required that the MOA be "[u]pdated
periodically as required by the Director." The parallel provision in
Section 37.54, paragraph (b)(2), requires that the MOA be "[r]eviewed
and updated as required in Section 37.55." The reasons for this change
are described below, in the discussion in this preamble about Section
37.55.
(2) Paragraph 37.54(c) has been reserved to give the Department the
opportunity to later amend the regulation to insert a reference to
guidance that the Director intends to issue regarding the requirements
for MOAs.
(2) Paragraph (d)(2)(i) has been added to clarify that the MOA must
include a system that will permit the Governor to carry out his/her
responsibility of determining whether a grant applicant seeking WIA
Title I financial assistance from the State, if funded, or a training
provider, if selected and/or certified as eligible, is likely to comply
with its nondiscrimination and equal opportunity obligations under WIA
and this part. See Section 37.51.
(3) Paragraph (d)(2)(ii) and its subparagraphs are based on 29 CFR
34.33(c)(2)(i). Language has been added to clarify that the Governor
must monitor the compliance of the State's recipients by conducting
statistical and other quantifiable data analyses of each recipient's
records and data, and to provide the minimum requirements for such
monitoring reviews.
(4) Paragraphs (d)(2)(iii) and (d)(2)(iv) are based on 29 CFR
34.33(c)(2)(ii). They have been rewritten to reflect the requirements
CRC actually imposes with regard to the types of documents listed in
the two paragraphs.
(5) 29 CFR 34.33(c)(2)(iii) required the MOA to include procedures
for ensuring that recipients "provide accessibility to individuals
with disabilities." The corresponding paragraph, paragraph (d)(2)(v),
has been changed to clarify and emphasize that the MOA must include
procedures for ensuring that recipients comply with all of the
requirements of Section 504 and this part with regard to individuals
with disabilities, not just those requirements regarding accessibility.
The Department is particularly interested in receiving comments
regarding this section of the Interim Final Rule.
Section 37.55 When must the Governor carry out his or her obligations
with regard to the Methods of Administration?
Paragraph (a) of this section is similar to 29 CFR 34.33(d), except
that it requires the Governor to develop, implement, and submit its
first WIA MOA within 180 days of either the date on which this Interim
Final Rule is effective, or the date on which the Department gives
final approval to the State's Five-Year Plan, whichever is later. If
the MOA submitted by the State under JTPA satisfies the requirements
listed in Section 37.54, the Governor is required only to submit any
necessary updates and/or to certify that no changes are required, as
described below.
The remainder of this section is intended to improve the MOA's
usefulness as a method for both States and CRC to monitor the
compliance of States and their recipients; to initially evaluate
discrimination complaints filed against those States and recipients;
and to reduce the burden on States and recipients by eliminating
unnecessary complaint investigations and/or compliance reviews.
CRC regards the MOA as a baseline instrument for monitoring the
compliance of States and their recipients. By reviewing a State's MOA,
CRC is able to conduct an initial evaluation of the overall systems and
procedures the State has put in place, without the necessity of an
extensive compliance review. Similarly, if a complaint filed with CRC
alleges that a State's or recipient's nondiscrimination and/or equal
opportunity procedures are
[[Page 61708]]
unlawful or unfair, the Director may simply compare the complaint with
the MOA, to establish whether the procedures described in the complaint
are the same ones described in the document submitted by the Governor.
If CRC has already reviewed those procedures and determined them to be
adequate, the agency may avoid a burdensome and unnecessary complaint
investigation.
In order for the MOA to provide an effective method of monitoring
compliance, however, it is important that CRC have access to current
information regarding a State's practices. The requirements in
paragraphs (b) and (c) are intended to provide that current
information.
Paragraph (b) requires the Governor to "promptly update" the MOA
"whenever necessary." This paragraph means that whenever, in the
ordinary course of implementing the MOA, the Governor or the State
decides that an amendment to the MOA is appropriate, the Governor must
notify CRC of the amendment. The paragraph does not require the
Governor or the State to provide CRC with an entirely new MOA under
these circumstances. For example, if a State's MOA lists the members of
a particular recipient's EO staff, the State is not required to redo
its entire MOA when there is turnover on the staff. Rather, the
Governor may notify CRC of the change simply by sending a letter
listing the names of the departing and incoming staff members, and the
contact information for the new staffers.
Paragraph (c) requires that every two years, the Governor must
review the MOA and the way in which the State has implemented the
document, and to make any necessary changes. As in paragraph (b), the
Governor is required to notify CRC about those changes alone; he or she
must submit an entirely new MOA to CRC only if he or she decides to
replace the previous MOA completely. If, based on the review, he or she
determines that no changes are necessary, he or she is required merely
to certify to CRC in writing that the previous MOA remains in effect.
If this certification is not required, then each time that the Director
receives a complaint regarding a particular State, CRC will be forced
to contact that State to ask whether its MOA has been changed. In CRC's
view, such repeated inquiries would be more burdensome for States than
requiring certification every two years.
The Department is particularly interested in receiving comments
regarding this section of the Interim Final Rule.
Subpart D--Compliance Procedures
Generally, this subpart contains the same requirements as the
corresponding subpart in part 34. The few circumstances in which
substantive changes have been made are discussed in the descriptions
below of individual sections.
Consistent with plain-language guidelines, the information in this
subpart has been rearranged in a more logical order, and lengthy
sections have been divided into shorter sections treating narrower
topics. The subpart now begins with sections describing the Director's
general authority, and continues with sections describing Compliance
Reviews, Complaint Investigations, Determinations, and Breaches of
Conciliation Agreements. The above changes are not intended to alter
the overall meaning of this subpart, or the meaning of any of its
component sections.
Section 37.60 How does the Director evaluate compliance with the
nondiscrimination and equal opportunity provisions of WIA and this
part?
In general, this section contains the same requirements as 29 CFR
34.40(a). Consistent with plain-language guidelines, the section has
been slightly rewritten and reorganized. Also, references to JTPA have
been replaced by references to WIA. Neither of these changes is
intended to alter the meaning of this section.
The sentence in 29 CFR 34.40(a) that discusses techniques used in
compliance reviews has been moved to Section 37.63, to clarify that in
CRC's actual practice, the techniques discussed are used only in post-
approval compliance reviews.
A sentence has been added to clarify that pre- or post-approval
compliance reviews may focus on one or more specific programs or
activities, or one or more issues within a program or activity. The
Director has the discretion to determine the scope of a particular
compliance review. This addition is intended only to provide notice to
grant applicants and recipients that compliance reviews may be narrow
as well as broad. It does not alter the Director's authority in any
way, but is intended only to clarify the meaning of this section.
Because this section now serves as an introduction to Subpart D, a
sentence has also been added that notes that the Director may also
investigate and resolve discrimination complaints. Again, this sentence
does not alter the Director's authority in any way, and is not intended
to change the meaning of this section.
Section 37.61 Is there authority to issue subpoenas?
This section contains the same requirements as 29 CFR 34.43(g)(4).
Consistent with plain-language guidelines, the section has been
organized slightly differently from the corresponding paragraph in the
JTPA nondiscrimination regulations, and presented in outline form to
improve its readability. Also, references to JTPA have been replaced by
references to WIA.
The section was moved to the beginning of this subpart in order to
clarify that the authority to issue subpoenas extends to compliance
reviews as well as complaint investigations. Again, this change does
not alter the subpoena authority in any way, and is not intended to
change the meaning of this section.
Compliance Reviews
Section 37.62 What are the authority and procedures for conducting
pre-approval compliance reviews?
This section contains the same requirements as 29 CFR 34.40(b),
"Pre-approval reviews," with additional material from 29 CFR 34.47.
Differences between this section and the corresponding paragraphs and
section of the JTPA nondiscrimination regulations are described below.
Paragraph 37.62(a): This paragraph describes the circumstances
under which, and the bases upon which, the Director may conduct a pre-
approval compliance review. The paragraph is identical to 29 CFR
34.40(b)(1), with the following exceptions:
(1) References to JTPA have been replaced by references to WIA; and
(2) The references to sections in part 34 have been changed to
reflect the numbering of this Interim Final Rule.
Neither of these changes is intended to alter the meaning of this
paragraph.
Paragraph 37.62(b): This paragraph outlines the Director's
responsibilities when s/he determines that a grant applicant might not
comply with the nondiscrimination and equal opportunity provisions of
WIA and this part. Generally, this paragraph contains the same
requirements as 29 CFR 34.40(b)(2) and (4); it also incorporates
material from 29 CFR 34.47, which requires the Director to notify the
Assistant Attorney General, as well as the grantmaking agency, where a
complaint investigation or compliance review results in a finding of
noncompliance. The latter requirement
[[Page 61709]]
is also contained within the Department of Justice's Title VI
coordination regulations at 28 CFR 42.407(d).
Consistent with plain-language guidelines, this paragraph has been
organized slightly differently from the corresponding paragraphs in the
JTPA nondiscrimination regulations, and has been presented in outline
form to improve its readability. Because the JTPA nondiscrimination
regulations listed these same responsibilities, their inclusion in this
paragraph does not alter the Director's authority in any way, and is
not intended to change the meaning of this paragraph.
In addition, references to JTPA have been replaced by references to
WIA, and the references to sections in part 34 have been changed to
reflect the numbering of this Interim Final Rule. Neither of these
changes is intended to alter the meaning of this paragraph.
Paragraph 37.62(c): This paragraph describes the Department's
responsibilities where a grant applicant agrees to take remedial or
corrective actions in order to receive WIA Title I financial
assistance. The paragraph is identical to 29 CFR 34.40(b)(3), with the
following exceptions:
(1) References to JTPA have been replaced by references to WIA; and
(2) The references to sections in part 34 have been changed to
reflect the numbering of this Interim Final Rule.
Neither of these changes is intended to alter the meaning of this
paragraph.
Section 37.63 What are the authority and procedures for conducting
post-approval compliance reviews?
Generally, this section contains the same requirements as 29 CFR
34.40(c), "Post-approval reviews," with one paragraph from 34.40(a).
Differences between this section and the corresponding paragraphs of
the JTPA nondiscrimination regulations are described below.
Paragraph 37.63(a): This paragraph outlines the circumstances under
which, and the bases upon which, the Director may conduct a post-
approval compliance review. The paragraph contains the same
requirements as 29 CFR 34.40(c)(1). Consistent with plain-language
guidelines, the list of examples of possible bases for such reviews has
been slightly rewritten to clarify the examples. In addition,
references to JTPA have been replaced by references to WIA. These
changes are not intended to alter the meaning of the paragraph.
Paragraph 37.63(b): This paragraph outlines the procedures for
initiating a post-approval compliance review. The paragraph contains
the same information as 29 CFR 34.40(c)(2), and it incorporates related
material from 29 CFR 34.40(c)(4).
References to "data" that a recipient must submit before a post-
approval compliance review have been changed to "information, records,
and/or data." Like other changes described earlier in this Preamble,
this change was made to reflect the growth in computer technology, and
the related expansion of electronic communications; the change was
intended to incorporate a variety of terms that might be used to refer
to material stored in written, electronic, or other forms. Again, this
change does not impose any additional obligations upon recipients; it
was made merely to clarify the paragraph.
In addition, the references to sections in part 34 have been
changed to reflect the numbering of this Interim Final Rule. These
changes are not intended to alter the meaning of the paragraph.
Paragraph 37.63(c): This paragraph contains material from 29 CFR
34.40(a) about techniques used in compliance reviews. As discussed in
Section 37.60 of this preamble, the sentence was moved to this section
to clarify that in CRC's actual practice, the techniques discussed are
used only in post-approval compliance reviews. The reference to off-
site analyses has been deleted because it refers to internal agency
procedure that is more appropriately treated in internal agency
guidelines.
Section 37.64 What procedures must the Director follow when CRC has
completed a post-approval compliance review?
Generally, this section contains the same requirements as 29 CFR
34.40(c)(3). However, the requirement that the Director inform the
recipient of the results of the review within 210 days of the issuance
of the Notification Letter has been deleted. This change was made
because CRC has decided to establish such internal agency time frames
in internal agency guidelines issued by the Director, rather than
through rulemaking.
In addition, consistent with plain-language guidelines, the section
has been slightly rewritten to clarify it. Also, the references to
sections in part 34 have been changed to reflect the numbering of this
Interim Final Rule. These changes are not intended to alter the meaning
of the paragraph.
Section 37.65 What is the Director's authority to monitor the
activities of a Governor?
This section is identical to 29 CFR 34.34(a) and (b), with the
following exceptions:
(1) References to JTPA have been replaced by references to WIA; and
(2) The references to sections in part 34 have been changed to
reflect the numbering of this Interim Final Rule.
Neither of these changes is intended to alter the meaning of this
section.
The corresponding paragraphs in the JTPA nondiscrimination
regulations were located in Subpart C ("Governor's
Responsibilities"). The section was moved to Subpart D and included
with procedures about compliance reviews because it deals with the
Director's authority to review documents prepared by and actions taken
by a Governor under this part. This change was not intended to alter
the meaning of the section.
Paragraph (c) of Section 34.34 provided that "[t]he procedures
contained in [S]ubpart D" would apply to the Director's monitoring
activities. Because the section has been moved to Subpart D, this
paragraph has become redundant, and has been deleted.
Section 37.66 What happens if a recipient fails to submit requested
data, records, and/or information, or fails to provide CRC with the
required access?
This section contains the same general requirements as 29 CFR
34.41(a). The reference to the "Directorate" (the Directorate of
Civil Rights, the previous title of the Civil Rights Center) has been
updated to "CRC." Also, to help readers find the section of the
Interim Final Rule that requires a recipient to provide CRC with access
to sources of information, a reference to that section has been added.
Neither of these changes is intended to alter the meaning of this
section.
In addition, language has been added that specifies that recipients
must submit or provide CRC with access to data, records, and/or
information "in a timely manner." This addition was made to clarify
that the Director may issue a Notice to Show Cause based upon a
recipient's delay in supplying the records, data, information, and/or
access sought by CRC.
Section 37.67 What information must a Notice to Show Cause contain?
This section is identical to 29 CFR 34.41(b), and includes the
first sentence of 34.41(c). References to JTPA have been replaced by
references to WIA. These changes are not intended to change the meaning
of this section.
[[Page 61710]]
Section 37.68 How may a recipient show cause why enforcement
proceedings should not be instituted?
This section is identical to the remainder of 29 CFR 34.41(c), with
the following exceptions:
(1) The references to sections in part 34 have been changed to
reflect the numbering of this Interim Final Rule; and
(2) References to the "Directorate" have been updated to "CRC."
Neither of these changes is intended to alter the meaning of this
section.
Section 37.69 What happens if a recipient fails to show cause?
This section is identical to 29 CFR 34.41(d), except that the
reference to a section in part 34 has been changed to reflect the
numbering of this Interim Final Rule. This change is not intended to
alter the meaning of this section.
Complaint Processing Procedures
Section 37.70 Who may file a complaint concerning discrimination
connected with WIA Title I?
This section contains the same requirements as 29 CFR 34.43(a).
Consistent with plain-language guidelines, the section has been
slightly rewritten to improve its readability. This change is not
intended to alter the meaning of this section.
Section 37.71 Where may a complaint be filed?
This section contains the same requirements as 29 CFR 34.43(b).
Consistent with plain-language guidelines, the section has been
slightly rewritten to improve its clarity. This change is not intended
to alter the meaning of this section.
Section 37.72 When must a complaint be filed?
This section contains the same requirements as 29 CFR 34.43(c).
Consistent with plain-language guidelines, the section has been
slightly rewritten to improve its clarity. This change is not intended
to alter the meaning of this section.
Section 37.73 What information must a complaint contain?
This section contains the same requirements as 29 CFR 34.43(d),
except that, for the ease of the reader, the information in the second
sentence of Section 34.43(d)(4)(iii) has been placed in the next
section. Consistent with plain-language guidelines, the section has
been slightly rewritten to improve its clarity. This change is not
intended to alter the meaning of this section.
Section 37.74 Are there any forms that a complainant may use to file a
complaint?
This section contains the same requirements as the second sentence
of Section 34.43(d)(4)(iii). Consistent with plain-language guidelines,
the section has been slightly rewritten to improve its clarity. In
addition, for the convenience of the reader, the section now explains
where complainants or their representatives may obtain the forms.
Section 37.75 Is there a right of representation in the complaint
process?
This section contains the same requirements as 29 CFR 34.43(e).
Consistent with plain-language guidelines, the section has been
slightly rewritten to improve its clarity. This change is not intended
to alter the meaning of this section.
Section 37.76 What are the required elements of a recipient's
discrimination complaint processing procedures?
Much of this section is new. It includes most of the general
information contained in 29 CFR 34.42(a), which requires a recipient to
adopt and publish procedures for processing discrimination complaints,
and 34.42(c), which requires the recipient to provide the complainant
with written notice of the resolution of the complaint. (As discussed
earlier in this preamble, the material in 29 CFR 34.42(b), which
charges a recipient's Equal Opportunity Officer with the responsibility
for adopting and publishing these procedures, has been moved to Section
37.25(d), "What are the responsibilities of an Equal Opportunity
Officer?" In addition, the information in the third sentence of
Section 34.42(a) has been moved to the next section.) However, this
section includes the following changes.
(1) The period for recipients to process discrimination complaints
has been extended, from 60 to 90 days. See Paragraphs 37.76(a) and
37.76(b)(5). This change has been made in response to concerns raised
by recipients that 60 days was not enough time in which to give a
complaint appropriate attention.
(2) A list of specific elements that must be included in each
recipient's complaint processing procedures has been added. See
Paragraphs 37.76(b) and (c). This change has been made because a number
of recipients have requested more extensive guidance about the steps
that must be taken in order to process a complaint fairly and
effectively. As this section notes, the list is intended only as a
baseline; recipients may include additional elements in their complaint
processing procedures, as long as the procedures allow for resolution
of the complaint within 90 days.
(3) The section requires recipients to adopt procedures for
alternative dispute resolution (ADR). See Paragraph 37.76(c). This
requirement was added in response to input from complainants and
recipients who wanted a more flexible, less adversarial means of
resolving discrimination complaints. (CRC itself is adopting procedures
that will allow complainants and respondents to mediate complaints
filed with the Director. See the discussion of Section 37.89, later in
this preamble.) The section also includes procedures through which any
party to an agreement reached under ADR may complain to the Director if
the agreement is breached. See Paragraph 37.76(c)(2). CRC believes that
complainants and recipients will be more willing to resolve complaints
through ADR if the parties know that they have a means of enforcing the
agreements reached through that procedure. However, in the event that
the ADR process does not resolve a complaint, the section provides that
a complainant may file a complaint with the Director within 30 days of
the date on which the ADR process terminates. CRC is particularly
interested in receiving comments about this new requirement.
(4) The section has given a formal name, "Notice of Final
Action," to the written notification that a recipient must give a
complainant when the recipient has finished processing a complaint.
Because 29 CFR 34.42(c) already required such a written notification,
this change is not a substantive change in the section.
Section 37.77 Who is responsible for developing and publishing
complaint processing procedures for service providers?
Generally, this section contains the same requirements as the third
sentence of 29 CFR 34.42(a). Consistent with plain-language guidelines,
the section has been slightly rewritten to improve its clarity. Also,
JTPA-related terminology (the references to SDA grant recipients and
Substate grantees) has been replaced by WIA-related terminology (the
reference to the LWIA grant recipient). Neither of these changes is
intended to alter the meaning of this section.
The final sentence has been added to the section to clarify that
service providers are obliged to follow the
[[Page 61711]]
procedures adopted and published on their behalf.
Section 37.78 Does a recipient have any special obligations in cases
in which the recipient determines that it has no jurisdiction over a
complaint?
This section contains the same requirements as 29 CFR 34.43(f)(5).
Consistent with plain-language guidelines, the section has been
slightly rewritten and presented in outline form to improve its
readability. Also, references to JTPA have been replaced by references
to WIA. Neither of these changes is intended to alter the meaning of
this section.
Section 37.79 If, before the 90-day period has expired, a recipient
issues a Notice of Final Action with which the complainant is
dissatisfied, how long does the complainant have to file a complaint
with the Director?
This section contains the same general information as 29 CFR
34.43(f)(1). Consistent with plain-language guidelines, the section has
been slightly rewritten to improve its clarity. Also, references to the
60-day period allowed for processing complaints under the JTPA
nondiscrimination regulations have been replaced by references to the
newly-extended 90-day period allowed under WIA, and the new term
"Notice of Final Action" has been used to refer to the written
notification that a recipient must provide a complainant when the
recipient has completed its processing of a complaint.
Section 37.80 What happens if a recipient fails to issue a Notice of
Final Action within 90 days of the date on which a complaint was filed?
This section contains the same general information as 29 CFR
34.43(f)(3). Consistent with plain-language guidelines, the section has
been slightly rewritten to improve its clarity. Also, references to the
60-day period allowed for processing complaints under the JTPA
nondiscrimination regulations have been replaced by references to the
newly-extended 90-day period allowed under WIA, and the new term
"Notice of Final Action" has been used to refer to the written
notification that a recipient must provide a complainant when the
recipient has completed its processing of a complaint.
This section deals only with a complainant's rights if a recipient
fails to issue a Notice of Final Action within the required period.
Recipients should be aware that in such circumstances, the Director has
the right to take appropriate action against the recipient.
Section 37.81 Are there any circumstances under which the Director may
extend the time limit for filing a complaint with him or her?
This section contains the same requirements as 29 CFR 34.43(f)(4).
Consistent with plain-language guidelines, the section has been
slightly rewritten and presented in outline form to improve its
readability. Also, the reference to a section in part 34 has been
changed to reflect the numbering of this Interim Final Rule, and a
final sentence has been added to clarify and emphasize that the burden
of showing good cause for extending the time limit rests with the
complainant.
Section 37.82 Does the Director accept every complaint for resolution?
This section consolidates information contained in 29 CFR
34.43(g)(1), (g)(5), and (g)(6). Consistent with plain-language
guidelines, the material has been slightly rewritten and presented in
outline form to improve its readability. Also, the information in
Paragraph 37.82(c), explaining that CRC need not investigate a
complaint about a matter that it has already decided, has been added. A
"complaint about a matter that it has already decided" is a complaint
about the same set of facts that CRC has already considered and decided
in a previous case. This addition does not change CRC's authority in
any way; it is intended only to notify complainants and respondents
about CRC's practices. None of these changes is intended to alter the
meaning of this section.
Section 37.83 What happens if a complaint does not contain enough
information?
Generally, this section contains the same requirements as 29 CFR
34.43(g)(3). Consistent with plain-language guidelines, the material
has been slightly rewritten and presented in outline form to improve
its readability. Also, the provision requiring that a complainant must
submit the requested additional information within 15 days has been
eliminated. This change has been made in order to provide the Director
with the flexibility to require a longer or shorter response period, if
appropriate in a particular case.
Section 37.84 What happens if CRC does not have jurisdiction over a
complaint?
This section contains the same general information as 29 CFR
34.43(g)(5). Consistent with plain-language guidelines, the section has
been slightly rewritten to improve its clarity. Also, the reference to
the "Directorate" has been updated to "CRC." Neither of these
changes is intended to alter the meaning of this section.
Section 37.85 Are there any other circumstances in which the Director
will send a complaint to another authority?
Generally, this section contains the same requirements as 29 CFR
34.43(g)(7) and (8), with additional material necessitated by the
requirements of the WIA program. Differences between this section and
the corresponding paragraphs of the JTPA nondiscrimination regulations
are set forth below.
Paragraph 37.85(a): This paragraph generally contains the same
requirements as 29 CFR 34.43(g)(7), except that the requirement that
the Director advise the complainant and the respondent about the
referral has been moved to paragraph (d). In addition, consistent with
plain-language guidelines, the material has been slightly rewritten.
Neither of these changes is intended to alter the meaning of this
paragraph.
Paragraph 37.85(b): This paragraph generally contains the same
requirements as 29 CFR 34.43(g)(8), except that the requirement that
the Director advise the complainant and the respondent about the
referral has been moved to paragraph (d). In addition, consistent with
plain-language guidelines, the material has been slightly rewritten and
presented in outline form to improve its readability. Also, the
reference to JTPA has been replaced by a reference to WIA. None of
these changes is intended to alter the meaning of this paragraph.
Paragraph 37.85(c): The material in this paragraph is new. Under
the One-Stop system established by WIA, CRC may have dual jurisdiction,
with Federal grantmaking agencies other than the Department of Labor,
over complaints that allege discrimination by One-Stop partners
financially assisted by those other grantmaking agencies. This
paragraph sets forth the general procedures that will be used to
determine whether CRC will retain such complaints for processing or
refer them to the other grantmaking agencies for appropriate action in
accordance with the Federal grantmaking agency's applicable
regulations. CRC will enter into Memoranda of Understanding (MOUs) with
the appropriate Federal grantmaking agencies to ensure that complaints
will be referred in accordance with these guidelines. These MOUs, which
will contain more specific
[[Page 61712]]
referral procedures, will be published in the Federal Register. In
addition, the Department encourages local Workforce Investment Boards,
in developing the MOUs required by Section 121(c) of WIA, to include in
those MOUs provisions regarding the appropriate referral of any such
complaints filed at the local level.
Paragraph 37.85(d): The material in this paragraph comes from both
29 CFR 34.43(g)(7) and (8), as noted above. It has been placed in a
separate paragraph to improve the readability of this section.
Section 37.86 What must the Director do if he or she determines that a
complaint will not be accepted?
Generally, this section contains the same requirements as 29 CFR
34.43(g)(6). Consistent with plain-language guidelines, the material
has been slightly rewritten to improve its clarity. In addition, the
wording referring to circumstances in which a complaint "will not be
investigated" has been changed to "will not be accepted." This
change has been made to reflect the addition of the mediation option to
CRC's complaint processing procedures: where a complainant and
respondent agree to mediate the complaint, CRC will conduct an
investigation only if the mediation fails, or if one of the parties
breaches the agreement reached through the mediation. See Section
37.89.
Section 37.87 What must the Director do if he or she determines that a
complaint will be accepted?
Generally, this section contains the same requirements as 29 CFR
34.43(g)(1)(i) and (ii). Consistent with plain-language guidelines, the
material has been slightly rewritten to improve its clarity. In
addition, the following changes have been made:
(1) The reference to the "Directorate" has been changed to the
"Director," because it is he or she who has the authority to
determine whether a complaint will be accepted.
(2) The Director is now required to notify the grantmaking agency,
as well as the complainant and the respondent, when a complaint is
accepted. This requirement has been added because CRC's experience has
shown that when grantmaking agencies are aware of discrimination
complaints, those complaints are more likely to be resolved
successfully, and recipients are more likely to comply with their
obligations regarding nondiscrimination and equal opportunity.
(3) The Director is also required to provide notice about any
issues over which he or she has not accepted jurisdiction, and the
reasons why those issues have been rejected. This requirement has been
added in order to provide complainants and respondents with reasonable
notice of the Director's determinations about the entire complaint.
Section 37.88 Who may contact CRC for information about a complaint?
Generally, this section contains the same requirements as 29 CFR
34.43(g)(2). Consistent with plain-language guidelines, the material
has been slightly rewritten to improve its clarity. Also, a second
sentence has been added in order to clarify that the Director has the
authority to determine what information about a complaint should be
released.
Section 37.89 May the Director offer the parties to a complaint the
option of mediation?
This section is new. Like the provisions allowing recipients to
include provisions for ADR in their complaint processing procedures,
this option was added in response to concerns of complainants and
recipients who wanted a more flexible, less adversarial means of
resolving discrimination complaints. CRC is particularly interested in
receiving comments concerning this section.
Determinations
Section 37.90 If a complaint is investigated, what must the Director
do when the investigation is completed?
This section contains information from 29 CFR 34.43(g)(9), (9)(i),
and (9)(ii). Consistent with plain-language guidelines, the material
has been rewritten and reorganized slightly, and presented in outline
form to improve its readability. Also, the Director is now required to
notify the grantmaking agency about his or her determination whether
the respondent has violated the nondiscrimination and equal opportunity
provisions. This requirement was added for the reasons listed in the
discussion of Section 37.87.
Section 37.91 What notice must the Director issue if he or she finds
reasonable cause to believe that a violation has taken place?
This section contains information from 29 CFR 34.43(g)(9)(i).
Consistent with plain-language guidelines, the material has been
rewritten and reorganized slightly to improve its clarity. Also,
references to sections in part 34 have been changed to reflect the
numbering of this Interim Final Rule. None of these changes is intended
to alter the meaning of this section.
Section 37.92 What notice must the Director issue if he or she finds
no reasonable cause to believe that a violation has taken place?
This section contains information from 29 CFR 34.43(g)(9)(ii).
Consistent with plain-language guidelines, the material has been
slightly rewritten to improve its clarity. These changes are not
intended to alter the meaning of the section.
Section 37.93 What happens if the Director finds that a violation has
taken place, and the recipient fails or refuses to take the corrective
action listed in the Initial Determination?
This section contains information from 29 CFR 34.46(a)(1).
Consistent with plain-language guidelines, the material has been
slightly rewritten to improve its clarity. These changes are not
intended to alter the meaning of the section.
Section 37.94 What corrective or remedial actions may be imposed
where, after a compliance review or complaint investigation, the
Director finds a violation of the nondiscrimination and equal
opportunity provisions of WIA or this part?
This section contains the same requirements as 29 CFR 34.44. The
material has been slightly rewritten to improve its clarity. Also, the
references to other regulatory sections within part 34 have been
changed to reflect the numbering of this Interim Final Rule, and
references to JTPA have been changed to refer to WIA. None of these
changes is intended to alter the meaning of the section.
Section 37.95 What procedures apply if the Director finds that a
recipient has violated the nondiscrimination and equal opportunity
provisions of WIA or this part?
This section contains the same requirements as 29 CFR 34.45 (a) and
(b). Consistent with plain-language guidelines, the material has been
rewritten and reorganized slightly to improve its clarity. Some of the
material has been presented in outline form. Also, the references to
other regulatory sections within part 34 have been changed to reflect
the numbering of this Interim Final Rule, and references to JTPA have
been changed to refer to WIA. None of these changes is intended to
alter the meaning of the section.
The section makes reference to a written Conciliation Agreement.
CRC, not the recipient or the Governor, prepares the initial draft of
this
[[Page 61713]]
document. See also the discussion in this preamble about Section 37.97.
Section 37.96 What are the required elements of a written assurance?
This section contains the same requirements as 29 CFR 34.45(c)(1).
Consistent with plain-language guidelines, the material has been
slightly rewritten to improve its clarity. These changes are not
intended to alter the meaning of the section.
Section 37.97 What are the required elements of a Conciliation
Agreement?
Generally, this section contains the same requirements as 29 CFR
34.45(c)(2). Consistent with plain-language guidelines, the material
has been slightly rewritten to improve its clarity. These changes are
not intended to alter the meaning of the section.
As noted above in the discussion of Section 37.95, CRC, not the
recipient or the Governor, prepares the initial draft of the
Conciliation Agreement.
Section 37.98 When will the Director conclude that compliance cannot
be secured by voluntary means?
This section contains the same requirements as 29 CFR 34.46(a).
Consistent with plain-language guidelines, the material has been
slightly rewritten to improve its clarity. Also, the references to
other regulatory sections within part 34 have been changed to reflect
the numbering of this Interim Final Rule. These changes are not
intended to alter the meaning of the section.
Section 37.99 If the Director concludes that compliance cannot be
secured by voluntary means, what actions must he or she take?
This section includes information from 29 CFR 34.46(b) (1), (2),
and (3). The subparagraphs from Paragraph 34.46(b)(1) that describe the
required elements of a Final Determination have been moved to the next
section. Also, the material in this section has been slightly rewritten
to improve its clarity. Neither of these changes is intended to alter
the meaning of this section.
Section 37.100 What information must a Final Determination contain?
This section contains the same requirements as 29 CFR 34.46(a) and
(b). Consistent with plain-language guidelines, the material has been
rewritten and reorganized slightly to improve its clarity, and the
references to other regulatory sections within part 34 have been
changed to reflect the numbering of this Interim Final Rule. In
addition, in Paragraph 37.100(f)(1), language has been added to clarify
that the Department may withhold a grant applicant's or recipient's WIA
Title I-funded Federal financial assistance in whole or in part. This
change does not expand the Department's authority; it has been added
solely to provide recipients with notice of the Department's actual
practice.
Section 37.101 Whom must the Director notify of a finding of
noncompliance?
Generally, this section contains the same requirements as 29 CFR
34.47. Consistent with plain-language guidelines, the material has been
slightly rewritten to improve its clarity. In addition, language has
been added to clarify that the Director will notify the grant applicant
or recipient, as well as the grantmaking agency and the Assistant
Attorney General. This change has been made to reflect the Director's
actual practice and the requirements of the preceding sections.
Breaches of Conciliation Agreements
Section 37.102 What happens if a grant applicant or recipient breaches
a Conciliation Agreement?
This section contains the same requirements as 29 CFR 34.48(b). The
phrase "through the Governor or by other means" has been eliminated
as redundant. This change is not intended to alter the meaning of this
section.
Section 37.103 Whom must the Director notify about a breach of a
Conciliation Agreement?
This section contains the same requirements as 29 CFR 34.48(c).
Consistent with plain-language guidelines, the material has been
slightly rewritten to improve its clarity. In addition, the Director is
now required to notify the grantmaking agency, for the reasons listed
in the discussion of Section 37.87.
Section 37.104 What information must a Notification of Breach of
Conciliation Agreement contain?
This section contains the same requirements as 29 CFR 34.48(d).
Consistent with plain-language guidelines, the material has been
slightly rewritten to improve its clarity. In addition, the references
to other regulatory sections within part 34 have been changed to
reflect the numbering of this Interim Final Rule. None of these changes
is intended to alter the meaning of the section.
Section 37.105 Whom must the Director notify if enforcement action
under a Notification of Breach of Conciliation Agreement is commenced?
This section contains the same requirements as 29 CFR 34.48(e).
Consistent with plain-language guidelines, the material has been
slightly rewritten and presented in outline form to improve its
readability. These changes are not intended to alter the meaning of the
section.
Subpart E--Federal Procedures For Effecting Compliance
Section 37.110 What enforcement procedures does the Department follow
to effect compliance with the nondiscrimination and equal opportunity
provisions of WIA and this part?
This section contains the same requirements as 29 CFR 34.50.
Consistent with plain-language guidelines, the material has been
slightly rewritten to improve its clarity. Also, references to JTPA
have been changed to refer to WIA, and references to other regulatory
sections within part 34 have been changed to reflect the numbering of
this Interim Final Rule. None of these changes is intended to alter the
meaning of the section.
Section 37.111 What hearing procedures does the Department follow?
This section contains the same requirements as 29 CFR 34.51.
Consistent with plain-language guidelines, the material has been
slightly rewritten to improve its clarity. Also, references to another
regulatory section within part 34 have been changed to reflect the
numbering of this Interim Final Rule, and the current address of the
Office of Administrative Law Judges has been provided for the
convenience of the reader. None of these changes is intended to alter
the meaning of the section.
Section 37.112 What procedures for initial and final decisions does
the Department follow?
This section contains the same requirements as 29 CFR 34.52(a) and
(b). Consistent with plain-language guidelines, the material has been
slightly rewritten to improve its clarity. Also, references to JTPA
have been changed to refer to WIA, and references to other regulatory
sections within part 34 have been changed to reflect the numbering of
this Interim Final Rule. None of these changes is intended to alter the
meaning of the section.
[[Page 61714]]
Section 37.113 What procedure does the Department follow to suspend,
terminate, withhold, deny or discontinue WIA Title I financial
assistance?
Generally, this section contains the same requirements as 29 CFR
34.53(a). Consistent with plain-language guidelines, the material has
been slightly re-punctuated to improve its clarity. Also, references to
JTPA have been changed to refer to WIA, and references to other
regulatory sections within part 34 have been changed to reflect the
numbering of this Interim Final Rule. None of these changes is intended
to alter the meaning of the section.
In addition, language has been added to the section to clarify that
the Department may withhold a grant applicant's or recipient's WIA
Title I financial assistance in whole or in part, as explained in the
discussion of Section 37.100.
Section 37.114 What procedure does the Department follow to distribute
WIA Title I financial assistance to an alternate recipient?
This section is identical to 29 CFR 34.53(b), except that the
reference to JTPA has been changed to refer to WIA. This change is not
intended to alter the meaning of the section.
Section 37.115 What procedures does the Department follow for post-
termination proceedings?
This section contains the same general requirements as 29 CFR
34.52(c). Consistent with plain-language guidelines, the material has
been slightly rewritten to improve its clarity. Also, references to
JTPA have been changed to refer to WIA, and references to other
regulatory sections within part 34 have been changed to reflect the
numbering of this Interim Final Rule. None of these changes is intended
to alter the meaning of the section.
In addition, the sentence providing that "[r]estoration to
eligibility may be conditioned upon the grant applicant or recipient
entering into a consent decree" has been deleted, in order to clarify
that the grant applicant or recipient must actually bring itself into
compliance with the nondiscrimination and equal opportunity provisions
of Section 188 and this part before being restored to eligibility for
WIA Title I financial assistance.
IV. Regulatory Procedures
Executive Order 12866
The Department of Labor has determined that this Interim Final Rule
is not a "significant regulatory action" under Executive Order 12866
because this action will not: (1) Have an annual effect on the economy
of $100 million or more, or adversely affect in a material way the
economy, a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities; (2) Create a serious inconsistency, or
otherwise interfere, with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs, or the rights and obligations of recipients
thereof; or (4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
Executive Order 12866. Therefore, no regulatory impact analysis has
been prepared.
Regulatory Flexibility Act
This Interim Final Rule does not substantially change the existing
obligation of recipients or entities operating Federally-assisted
programs or activities to apply a policy of nondiscrimination and equal
opportunity in employment or services. The Department of Labor
certifies that the proposed rule will not have a significant economic
impact on substantial number of small business entities. Therefore, a
regulatory flexibility analysis is not required.
Unfunded Mandates Reform
Executive Order 12875--This rule will not create an unfunded
Federal Mandate upon any State, local, or tribal government.
Unfunded Mandate Reform Act of 1995--This rule will not include any
Federal mandate that may result in increased expenditures by State,
local and tribal governments in the aggregate of $100 million or more,
or increased expenditures by the private sector of $100 million or
more.
Paperwork Reduction Act
Certain sections of this Interim Final Rule, including Secs. 37.8,
37.9, 37.20, 37.29, 37.30, 37.31, 37.34, 37.37, 37.38, 37.39, 37.54,
37.73, and 37.74, contain information collection requirements. As
required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)),
the Department of Labor has submitted a copy of these sections to the
Office of Management and Budget (OMB) for its review. Comments must be
submitted by December 13, 1999 to: Desk Officer for the Department of
Labor, Civil Rights Center, Office of Management and Budget, 725 17th
Street, NW (Rm 10235), Washington, DC 20503. Affected parties do not
have to comply with the information collection requirements in this
document until DOL publishes in the Federal Register the control
numbers assigned by OMB. Publication of the control numbers notifies
the public that OMB has approved this information collection
requirement under the Paperwork Reduction Act of 1995.
Request for Comments
This publication implements the nondiscrimination and equal
opportunity provisions of Section 188 of WIA, and requests comments
about this Interim Final Rule from State and local governments; public
interest groups; current and potential grant applicants for and
recipients of Federal financial assistance (particularly current and
potential providers of training services); current and potential
beneficiaries of such Federal financial assistance; other Federal
agencies; and the public.
Clarity Of This Regulation
Executive Order 12866 and the President's memorandum of June 1,
1998, require each agency to write all rules in plain language. The
Department invites comments on how to make this proposed rule easier to
understand. For example:
--Have we organized the material to suit your needs?
--Are the requirements in the rule clearly stated?
--Does the rule contain technical language or jargon that isn't clear?
--Would a different format (grouping and order of sections, use of
headings, paragraphing) make the rule easier to understand?
--Would more (but shorter) sections be better?
--Could we improve clarity by adding tables, lists, or diagrams?
--What else could we do to make the rule easier to understand?
Absence of Notice of Proposed Rulemaking
After full and fair consideration over the months since passage of
the Workforce Investment Act of 1998, the Department of Labor has
determined that it is in the public interest not to publish a Notice of
Proposed Rulemaking (NPRM) regarding implementation of Section 188 of
the Act, but instead to publish this Interim Final Rule. This
determination is based upon the schedule for implementation of WIA.
The WIA program is designed eventually to supersede its predecessor
program, the Job Training Partnership Act (JTPA) program, which sunsets
on
[[Page 61715]]
July 1, 2000. The regulations implementing JTPA therefore will remain
in effect until that date. However, States have the option of
implementing WIA Title I-financially assisted programs and activities
as early as July 1, 1999; indeed, the Department is encouraging such
early implementation.
CRC is issuing the regulations implementing WIA's nondiscrimination
and equal opportunity provisions as an Interim Final Rule so that those
regulations will be in place as soon as possible for early-
implementation States and their recipients. Generally, the Rule tracks
the nondiscrimination and equal opportunity regulations in place under
JTPA; the Rule does, however, contain a number of new or revised
provisions that will require these States and their recipients to take
action before the date on which they implement WIA, or as soon after
that date as possible.
For example, each application for financial assistance under either
JTPA or WIA Title I must contain assurances regarding the grant
applicant's compliance with various Federal laws and regulations
concerning nondiscrimination and equal opportunity. For the WIA
program, the required assurance has been rewritten in plain language.
The new language appears in Section 37.20 of the Interim Final Rule.
Publication of the regulations as an immediately-effective Interim
Final Rule will eliminate any possible ambiguity regarding the language
that grant applicants in early-implementation states must include in
their applications for WIA Title I financial assistance.
Similarly, Section 37.76 of the Rule contains a list of elements
that a recipient's discrimination complaint processing procedures must
include. Although the JTPA nondiscrimination regulations contained a
general requirement that recipients adopt and publish complaint
processing procedures, the new list of requisite elements for those
procedures is more detailed, and recipients in early-implementing
states will need to know as soon as possible the actual requirements
for those procedures in order to ensure that their complaint processing
procedures comply with the requirements of the WIA program. Publishing
an Interim Final Rule, rather than an NPRM, will assist States and
recipients by providing a firm list of requirements that will be in
place on or soon after the date of implementation, rather than a
proposed list that might change before that date.
Furthermore, the Interim Final Rule sets a comment period to elicit
any concerns raised by the rule. The comment period takes place before
the final rule will be implemented, so that CRC may receive comments in
time to consider them in preparing the final rule for publication.
For the above-listed reasons, the Department of Labor finds that
publishing an NPRM, and providing a period for notice and comment,
before implementing this Interim Final Rule would be contrary to the
public interest, and therefore constitute good cause under 5 U.S.C.
553(b)(B) for publishing these regulations as an Interim Final Rule.
Furthermore, the Department finds that the above-listed reasons also
constitute good cause under 5 U.S.C. 553(d)(3) for waiving the
customary requirement to delay the effective date of a regulation for
30 days following its publication. Therefore, this Interim Final Rule
is effective immediately upon publication.
List of Subjects in 29 CFR Part 37
Administrative practice and procedure, Discrimination, Civil
rights, Equal education opportunity, Equal employment opportunity,
Grant programs--Labor, Individuals with disabilities, Investigations,
Reporting and recordkeeping requirements.
Signed at Washington, D.C. this 22nd day of October 1999.
Alexis M. Herman,
Secretary of Labor.
Accordingly, title 29, subtitle A of the Code of Federal
Regulations is amended by adding part 37 to read as follows:
PART 37--IMPLEMENTATION OF THE NONDISCRIMINATION AND EQUAL
OPPORTUNITY PROVISIONS OF THE WORKFORCE INVESTMENT ACT OF 1998
(WIA)
Subpart A--General Provisions
Sec.
37.1 What is the purpose of this part?
37.2 To whom does this part apply, and what is the scope of this
part?
37.3 How does this part affect a recipient's other obligations?
37.4 What definitions apply to this part?
37.5 What forms of discrimination are prohibited by this part?
37.6 What specific discriminatory actions, based on prohibited
grounds other than disability, are prohibited by this part?
37.7 What specific discriminatory actions based on disability are
prohibited by this part?
37.8 What are a recipient's responsibilities regarding reasonable
accommodation and reasonable modification for individuals with
disabilities?
37.9 What are a recipient's responsibilities to communicate with
individuals with disabilities?
37.10 To what extent are a recipient's employment practices covered
by this part?
37.11 To what extent are intimidation and retaliation prohibited by
this part?
37.12 What Department of Labor office is responsible for
administering this part?
37.13 Who is responsible for providing interpretations of this
part?
37.14 Under what circumstances may the Secretary delegate the
responsibilities of this part?
37.15 What are the Director's responsibilities to coordinate with
other civil rights agencies?
37.16 What is this part's effect on a recipient's obligations under
other laws, and what limitations apply?
Subpart B--Recordkeeping and Other Affirmative Obligations of
Recipients
Assurances
37.20 What is a grant applicant's obligation to provide a written
assurance?
37.21 How long will the recipient's obligation under the assurance
last, and how broad is the obligation?
37.22 How must covenants be used in connection with this part?
Equal Opportunity Officers
37.23 Who must designate an Equal Opportunity Officer?
37.24 Who is eligible to serve as an Equal Opportunity Officer?
37.25 What are the responsibilities of an Equal Opportunity
Officer?
37.26 What are a recipient's obligations relating to the Equal
Opportunity Officer?
37.27 What are the obligations of small recipients regarding Equal
Opportunity Officers?
37.28 What are the obligations of service providers regarding Equal
Opportunity Officers?
Notice and Communication
37.29 What are a recipient's obligations to disseminate its equal
opportunity policy?
37.30 What specific wording must the notice contain?
37.31 Where must the notice required by Secs. 37.29 and 37.30 be
published?
37.32 When must the notice be provided?
37.33 Who is responsible for meeting the notice requirement with
respect to service providers?
37.34 What type of notice must a recipient include in publications,
broadcasts, and other communications?
37.35 What are a recipient's responsibilities to provide services
and information in languages other than English?
37.36 What responsibilities does a recipient have to communicate
information during orientations?
[[Page 61716]]
Data and Information Collection and Maintenance
37.37 What are a recipient's responsibilities to collect and
maintain data and other information?
37.38 What information must grant applicants and recipients provide
to CRC?
37.39 How long must grant applicants and recipients maintain the
records required under this part?
37.40 What access to sources of information must grant applicants
and recipients provide the Director?
37.41 What responsibilities do grant applicants, recipients, and
the Department have to maintain the confidentiality of the
information collected?
37.42 What are a recipient's responsibilities under this part to
provide universal access to WIA Title I-financially assisted
programs and activities?
Subpart C--Governor's Responsibilities to Implement the
Nondiscrimination and Equal Opportunity Requirements of WIA
37.50 To whom does this subpart apply?
37.51 What are a Governor's oversight responsibilities?
37.52 To what extent may a Governor be liable for the actions of a
recipient he or she has financially assisted under WIA Title I?
37.53 What are a Governor's oversight responsibilities regarding
recipients' recordkeeping?
37.54 That are a Governor's obligations to develop and maintain a
ethods of Administration?
37.55 When must the Governor carry out his or her obligations with
regard to the Methods of Administration?
Subpart D--Compliance Procedures
37.60 How does the Director evaluate compliance with the
nondiscrimination and equal opportunity provisions of WIA and this
part?
37.61 Is there authority to issue subpoenas?
Compliance Reviews
37.62 What are the authority and procedures for conducting pre-
approval compliance reviews?
37.63 What are the authority and procedures for conducting post-
approval compliance reviews?
37.64 What procedures must the Director follow when CRC has
completed a post-approval compliance review?
37.65 What is the Director's authority to monitor the activities of
a Governor?
37.66 What happens if a recipient fails to submit requested data,
records, and/or information, or fails to provide CRC with the
required access?
37.67 What information must a Notice to Show Cause contain?
37.68 How may a recipient show cause why enforcement proceedings
should not be instituted?
37.69 What happens if a recipient fails to show cause?
Complaint Processing Procedures
37.70 Who may file a complaint concerning discrimination connected
with WIA Title I?
37.71 Where may a complaint be filed?
37.72 When must a complaint be filed?
37.73 What information must a complaint contain?
37.74 Are there any forms that a complainant may use to file a
complaint?
37.75 Is there a right of representation in the complaint process?
37.76 What are the required elements of a recipient's
discrimination complaint processing procedures?
37.77 Who is responsible for developing and publishing complaint
processing procedures for service providers?
37.78 Does a recipient have any special obligations in cases in
which the recipient determines that it has no jurisdiction over a
complaint?
37.79 If, before the 90-day period has expired, a recipient issues
a Notice of Final Action with which the complainant is dissatisfied,
how long does the complainant have to file a complaint with the
Director?
37.80 What happens if a recipient fails to issue a Notice of Final
Action within 90 days of the date on which a complaint was filed?
37.81 Are there any circumstances under which the Director may
extend the time limit for filing a complaint with him or her?
37.82 Does the Director accept every complaint for resolution?
37.83 What happens if a complaint does not contain enough
information?
37.84 What happens if CRC does not have jurisdiction over a
complaint?
37.85 Are there any other circumstances in which the Director will
send a complaint to another authority?
37.86 What must the Director do if he or she determines that a
complaint will not be accepted?
37.87 What must the Director do if he or she determines that a
complaint will be accepted?
37.88 Who may contact CRC about a complaint?
37.89 May the Director offer the parties to a complaint the option
of mediation?
Determinations
37.90 If a complaint is investigated, what must the Director do
when the investigation is completed?
37.91 What notice must the Director issue if he or she finds
reasonable cause to believe that a violation has taken place?
37.92 What notice must the Director issue if he or she finds no
reasonable cause to believe that a violation has taken place?
37.93 What happens if the Director finds that a violation has taken
place, and the recipient fails or refuses to take the corrective
action listed in the Initial Determination?
37.94 What corrective or remedial actions may be imposed where,
after a compliance review or complaint investigation, the Director
finds a violation of the nondiscrimination and equal opportunity
provisions of WIA or this part?
37.95 What procedures apply if the Director finds that a recipient
has violated the nondiscrimination and equal opportunity provisions
of WIA or this part?
37.96 What are the required elements of a written assurance?
37.97 What are the required elements of a Conciliation Agreement?
37.98 What are the circumstances under which the Director will
conclude that compliance cannot be secured by voluntary means?
37.99 If the Director concludes that compliance cannot be secured
by voluntary means, what actions must he or she take?
37.100 What information must a Final Determination contain?
37.101 Whom must the Director notify of a finding of noncompliance?
Breaches of Conciliation Agreements
37.102 What happens if a grant applicant or recipient breaches a
Conciliation Agreement?
37.103 Whom must the Director notify about a breach of a
Conciliation Agreement?
37.104 What information must a Notification of Breach of
Conciliation Agreement contain?
37.105 Whom must the Director notify if enforcement action under a
Notification of Breach of Conciliation Agreement is commenced?
Subpart E--Federal Procedures For Effecting Compliance
37.110 What enforcement procedures does the Department follow to
effect compliance with the nondiscrimination and equal opportunity
provisions of WIA and this part?
37.111 What hearing procedures does the Department follow?
37.112 What procedures for initial and final decisions does the
Department follow?
37.113 What procedure does the Department follow to suspend,
terminate, withhold, deny or discontinue WIA Title I financial
assistance?
37.114 What procedure does the Department follow to distribute WIA
Title I financial assistance to an alternate recipient?
37.115 What procedures does the Department follow for post-
termination proceedings?
Authority: Sections 134(b), 136(d)(2)(F), 136(e), 172(a),
183(c), 185(c)(2), 185(d)(1)(E), 186, 187 and 188 of the Workforce
Investment Act of 1998, 29 U.S.C. 2801 et seq.; Title VI of the
Civil Rights Act of 1964, as amended, 42 U.S.C. 2000d, et seq.;
Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C.
794; the Age Discrimination Act of 1975, as amended, 42
[[Page 61717]]
U.S.C. 6101; and Title IX of the Education Amendments of 1972, as
amended, 20 U.S.C. 1681.
Subpart A--General Provisions
Sec. 37.1 What is the purpose of this part?
The purpose of this part is to implement the nondiscrimination and
equal opportunity provisions of the Workforce Investment Act of 1998
(WIA), which are contained in section 188 of WIA. Section 188 prohibits
discrimination on the grounds of race, color, religion, sex, national
origin, age, disability, political affiliation or belief, and for
beneficiaries only, citizenship or participation in a WIA Title I-
financially assisted program or activity. This part clarifies the
application of the nondiscrimination and equal opportunity provisions
of WIA and provides uniform procedures for implementing them.
Sec. 37.2 To whom does this part apply, and what is the scope of this
part?
(a) This part applies to:
(1) Any recipient, as defined in Sec. 37.4;
(2) Programs and activities that are part of the One-Stop delivery
system and that are operated by One-Stop partners listed in section
121(b) of WIA, to the extent that the programs and activities are being
conducted as part of the One-Stop delivery system; and
(3) The employment practices of a recipient and/or One-Stop
partner, as provided in Sec. 37.10.
(b) Limitation of Application. This part does not apply to:
(1) Programs or activities that are financially assisted by the
Department exclusively under laws other than Title I of WIA, and that
are not part of the One-Stop delivery system (including programs or
activities implemented under, authorized by, and/or financially
assisted by the Department under, JTPA);
(2) Contracts of insurance or guaranty;
(3) The ultimate beneficiary to this program of Federal financial
assistance;
(4) Federal procurement contracts, with the exception of contracts
to operate or provide services to Job Corps Centers; and
(5) Federally-operated Job Corps Centers. The operating Department
is responsible for enforcing the nondiscrimination and equal
opportunity laws to which such Centers are subject.
Sec. 37.3 How does this part affect a recipient's other obligations?
(a) A recipient's compliance with this part will satisfy any
obligation of the recipient to comply with 29 CFR part 31, the
Department of Labor's regulations implementing Title VI of the Civil
Rights Act of 1964, as amended (Title VI), and with Subparts A, D and E
of 29 CFR part 32, the Department's regulations implementing Section
504 of the Rehabilitation Act of 1973, as amended (Section 504).
(b) 29 CFR part 32, Subparts B and C and Appendix A, the
Department's regulations which implement the requirements of Section
504 pertaining to employment practices and employment-related training,
program accessibility, and reasonable accommodation, are hereby
incorporated into this part by reference. Therefore, recipients must
comply with the requirements set forth in those regulatory sections as
well as the requirements listed in this part.
(c) Recipients that are also public entities or public
accommodations, as defined by Titles II and III of the Americans with
Disabilities Act of 1990 (ADA), should be aware of obligations imposed
by those titles.
(d) Similarly, recipients that are also employers, employment
agencies, or other entities covered by Title I of the ADA should be
aware of obligations imposed by that title.
(e) Compliance with this part does not affect, in any way, any
additional obligation that a recipient may have to comply with the
following laws and their implementing regulations:
(1) Executive Order 11246, as amended;
(2) Sections 503 and 504 of the Rehabilitation Act of 1973, as
amended (29 U.S.C. 793 and 794);
(3) The affirmative action provisions of the Vietnam Era Veterans'
Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212);
(4) The Equal Pay Act of 1963, as amended (29 U.S.C. 206d);
(5) Titles VI and VII of the Civil Rights Act of 1964, as amended
(42 U.S.C. 2000d et seq. and 2000e et seq.);
(6) The Age Discrimination Act of 1975, as amended (42 U.S.C.
6101);
(7) The Age Discrimination in Employment Act of 1967, as amended
(29 U.S.C. 621);
(8) Title IX of the Education Amendments of 1972, as amended (Title
IX) (20 U.S.C. 1681);
(9) The Americans with Disabilities Act of 1990, as amended (42
U.S.C. 12101 et seq.); and
(10) The anti-discrimination provision of the Immigration and
Nationality Act, as amended (8 U.S.C. 1324b).
(f) This rule does not preempt consistent State and local
requirements.
Sec. 37.4 What definitions apply to this part?
As used in this part, the term:
Administrative Law Judge means a person appointed as provided in 5
U.S.C. 3105 and 5 CFR 930.203, and qualified under 5 U.S.C. 557, to
preside at hearings held under the nondiscrimination and equal
opportunity provisions of WIA and this part.
Aid, benefits, services, or training means WIA Title I--financially
assisted services, financial or other aid, or benefits provided by or
through a recipient or its employees, or by others through contract or
other arrangements with the recipient. "Aid, benefits, services, or
training" includes, but is not limited to:
(1) Core and intensive services;
(2) Education or training;
(3) Health, welfare, housing, social service, rehabilitation, or
other supportive services;
(4) Work opportunities; and
(5) Cash, loans, or other financial assistance to individuals.
As used in this part, the term includes any aid, benefits,
services, or training provided in or through a facility that has been
constructed, expanded, altered, leased, rented, or otherwise obtained,
in whole or in part, with Federal financial assistance under Title I of
WIA.
Applicant means an individual who is interested in being considered
for WIA Title I--financially assisted aid, benefits, services, or
training by a recipient, and who has signified that interest by
submitting personal information in response to a request by the
recipient. See also the definitions of "application for benefits,"
"eligible applicant/registrant," "participant," "participation,"
and "recipient" in this section.
Applicant for employment means a person or persons who make(s)
application for employment with a recipient of Federal financial
assistance under WIA Title I.
Application for assistance means the process by which required
documentation is provided to the Governor, recipient, or Department
before and as a condition of receiving WIA Title I financial assistance
(including both new and continuing assistance).
Application for benefits means the process by which information,
including but not limited to a completed application form, is provided
by applicants or eligible applicants before and as a condition of
receiving WIA Title I--financially assisted aid, benefits, services, or
training from a recipient.
Assistant Attorney General means the Assistant Attorney General,
Civil Rights
[[Page 61718]]
Division, United States Department of Justice.
Assistant Secretary means the Assistant Secretary for
Administration and Management, United States Department of Labor.
Auxiliary aids or services includes--
(1) Qualified interpreters, notetakers, transcription services,
written materials, telephone handset amplifiers, assistive listening
systems, telephones compatible with hearing aids, closed caption
decoders, open and closed captioning, telecommunications devices for
deaf persons (TDDs/TTYs), videotext displays, or other effective means
of making aurally delivered materials available to individuals with
hearing impairments;
(2) Qualified readers, taped texts, audio recordings, brailled
materials, large print materials, or other effective means of making
visually delivered materials available to individuals with visual
impairments;
(3) Acquisition or modification of equipment or devices; and
(4) Other similar services and actions.
Beneficiary means the individual or individuals intended by
Congress to receive aid, benefits, services, or training from a
recipient.
Citizenship See "Discrimination on the ground of citizenship" in
this section.
CRC means the Civil Rights Center, Office of the Assistant
Secretary for Administration and Management, U.S. Department of Labor.
Department means the U.S. Department of Labor (DOL), including its
agencies and organizational units.
Departmental grantmaking agency means a grantmaking agency within
the U.S. Department of Labor.
Director means the Director, Civil Rights Center (CRC), Office of
the Assistant Secretary for Administration and Management, U.S.
Department of Labor, or a designee authorized to act for the Director.
Disability means, with respect to an individual, a physical or
mental impairment that substantially limits one or more of the major
life activities of such individual; a record of such an impairment; or
being regarded as having such an impairment.
(1)(i) The phrase physical or mental impairment means--
(A) Any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more of the
following body systems: neurological, musculoskeletal, special sense
organs, respiratory (including speech organs), cardiovascular,
reproductive, digestive, genitourinary, 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.
(ii) The phrase physical or mental impairment includes, but is not
limited to, such contagious and noncontagious diseases and conditions
as orthopedic, visual, speech and hearing impairments, cerebral palsy,
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart
disease, diabetes, mental retardation, emotional illness, specific
learning disabilities, HIV disease (whether symptomatic or
asymptomatic), tuberculosis, drug addiction, and alcoholism. The phrase
"physical or mental impairment" does not include homosexuality or
bisexuality.
(2) The phrase major life activities means functions such as caring
for one's self, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working.
(3) The phrase 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.
(4) The phrase is regarded as having an impairment means--
(i) Has a physical or mental impairment that does not substantially
limit major life activities but that is treated by the recipient as
being such a limitation;
(ii) 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
(iii) Has none of the impairments defined in paragraph (1) of this
definition but is treated by the recipient as having such an
impairment.
Discrimination on the ground of citizenship means a denial of
participation in programs or activities financially assisted in whole
or in part under Title I of WIA to individuals on the basis of their
status as citizens or nationals of the United States, lawfully admitted
permanent resident aliens, refugees, asylees, and parolees, or other
immigrants authorized by the Attorney General to work in the United
States.
Eligible applicant/registrant means an individual who has been
determined eligible to participate in one or more WIA Title I--
financially assisted programs or activities.
Employment practices means a recipient's practices related to
employment, including but not limited to:
(1) Recruitment or recruitment advertising;
(2) Selection, placement, layoff or termination of employees;
(3) Upgrading, promotion, demotion or transfer of employees;
(4) Training, including employment-related training;
(5) Participation in upward mobility programs;
(6) Deciding rates of pay or other forms of compensation;
(7) Use of facilities; or
(8) Deciding other terms, conditions, benefits and/or privileges of
employment.
Employment-related training means training that allows or enables
an individual to obtain employment.
Entity means any person, corporation, partnership, joint venture,
sole proprietorship, unincorporated association, consortium, Indian
tribe or tribal organization, Native Hawaiian organization, and/or
entity authorized by State or local law; any State or local government;
and/or any agency, instrumentality or subdivision of such a government.
Facility means all or any portion of buildings, structures, sites,
complexes, equipment, roads, walks, passageways, parking lots, rolling
stock or other conveyances, or other real or personal property or
interest in such property, including the site where the building,
property, structure, or equipment is located. The phrase "real or
personal property" in the preceding sentence includes indoor
constructs that may or may not be permanently attached to a building or
structure. Such constructs include, but are not limited to, office
cubicles, computer kiosks, and similar constructs.
Federal grantmaking agency means a Federal agency that provides
financial assistance under any Federal statute.
Financial assistance means any of the following:
(1) Any grant, subgrant, loan, or advance of funds, including funds
extended to any entity for payment to or on behalf of participants
admitted to that entity for training, or extended directly to such
participants for payment to that entity;
(2) Provision of the services of grantmaking agency personnel, or
of other personnel at the grantmaking agency's expense;
(3) A grant or donation of real or personal property or any
interest in or use of such property, including:
(a) Transfers or leases of property for less than fair market value
or for reduced consideration;
[[Page 61719]]
(b) Proceeds from a subsequent sale, transfer, or lease of such
property, if the grantmaking agency's share of the fair market value of
the property is not returned to the grantmaking agency; and
(c) The sale, lease, or license of, and/or the permission to use
(other than on a casual or transient basis), such property or any
interest in such property, either:
(i) Without consideration,
(ii) At a nominal consideration, or
(iii) At a consideration that is reduced or waived either for the
purpose of assisting the recipient, or in recognition of the public
interest to be served by such sale or lease to or use by the recipient;
(4) Waiver of charges that would normally be made for the
furnishing of services by the grantmaking agency; and
(5) Any other agreement, arrangement, contract or subcontract
(other than a procurement contract or a contract of insurance or
guaranty), or other instrument that has as one of its purposes the
provision of assistance or benefits under the statute or policy that
authorizes assistance by the grantmaking agency.
Financial assistance under Title I of WIA means any of the
following, when authorized or extended under WIA Title I:
(1) Any grant, subgrant, loan, or advance of Federal funds,
including funds extended to any entity for payment to or on behalf of
participants admitted to that entity for training, or extended directly
to such participants for payment to that entity;
(2) Provision of the services of Federal personnel, or of other
personnel at Federal expense;
(3) A grant or donation of Federal real or personal property or any
interest in or use of such property, including:
(a) Transfers or leases of property for less than fair market value
or for reduced consideration;
(b) Proceeds from a subsequent sale, transfer, or lease of such
property, if the Federal share of the fair market value of the property
is not returned to the Federal Government; and
(c) The sale, lease, or license of, and/or the permission to use
(other than on a casual or transient basis), such property or any
interest in such property, either:
(i) Without consideration,
(ii) At a nominal consideration, or
(iii) At a consideration that is reduced or waived either for the
purpose of assisting the recipient, or in recognition of the public
interest to be served by such sale or lease to or use by the recipient;
(4) Waiver of charges that would normally be made for the
furnishing of Government services; and
(5) Any other agreement, arrangement, contract or subcontract
(other than a Federal procurement contract or a contract of insurance
or guaranty), or other instrument that has as one of its purposes the
provision of assistance or benefits under WIA Title I.
Fundamental alteration means:
(1) A change in the essential nature of a program or activity as
defined in this part, including but not limited to an aid, service,
benefit, or training; or
(2) A cost that a recipient can demonstrate would result in an
undue burden. Factors to be considered in making the determination
whether the cost of a modification would result in such a burden
include:
(a) The nature and net cost of the modification needed, taking into
consideration the availability of tax credits and deductions, and/or
outside financial assistance, for the modification;
(b) The overall financial resources of the facility or facilities
involved in the provision of the modification, including:
(i) The number of persons aided, benefited, served, or trained by,
or employed at, the facility or facilities; and
(ii) The effect the modification would have on the expenses and
resources of the facility or facilities;
(c) The overall financial resources of the recipient, including:
(i) The overall size of the recipient;
(ii) The number of persons aided, benefited, served, trained, or
employed by the recipient; and
(iii) The number, type and location of the recipient's facilities;
(d) The type of operation or operations of the recipient,
including:
(i) The geographic separateness and administrative or fiscal
relationship of the facility or facilities in question to the
recipient; and
(ii) Where the modification sought is employment-related, the
composition, structure and functions of the recipient's workforce; and
(e) The impact of the modification upon the operation of the
facility or facilities, including:
(i) The impact on the ability of other participants to receive aid,
benefits, services, or training, or of other employees to perform their
duties; and
(ii) The impact on the facility's ability to carry out its mission.
Governor means the chief elected official of any State or his or
her designee.
Grant applicant means an entity that submits the required
documentation to the Governor, recipient, or Department, before and as
a condition of receiving financial assistance under Title I of WIA.
Grantmaking agency means an entity that provides Federal financial
assistance.
Guideline means written informational material supplementing an
agency's regulations and provided to grant applicants and recipients to
provide program-specific interpretations of their responsibilities
under the regulations.
Illegal use of drugs means the use of drugs, the possession or
distribution of which is unlawful under the Controlled Substances Act,
as amended (21 U.S.C. 812). "Illegal use of drugs" does not include
the use of a drug taken under supervision of a licensed health care
professional, or other uses authorized by the Controlled Substances Act
or other provisions of Federal law.
Individual with a disability means a person who has a disability,
as defined in this section.
(1) The term "individual with a disability" does not include an
individual on the basis of:
(i) Transvestism, transsexualism, pedophilia, exhibitionism,
voyeurism, gender identity disorders not resulting from physical
impairments, or other sexual behavior disorders;
(ii) Compulsive gambling, kleptomania, or pyromania; or
(iii) Psychoactive substance use disorders resulting from current
illegal use of drugs.
(2) The term "individual with a disability" also does not include
an individual who is currently engaging in the illegal use of drugs,
when a recipient acts on the basis of such use. This limitation does
not exclude as an individual with a disability an individual who:
(i) Has successfully completed a supervised drug rehabilitation
program and is no longer engaging in the illegal use of drugs, or has
otherwise been rehabilitated successfully and is no longer engaging in
such use;
(ii) Is participating in a supervised rehabilitation program and is
no longer engaging in such use; or
(iii) Is erroneously regarded as engaging in such use, but is not
engaging in such use, except that it is not a violation of the
nondiscrimination and equal opportunity provisions of WIA or this part
for a recipient to adopt or administer reasonable policies or
procedures, including but not limited to drug testing, designed to
ensure that an individual described in paragraph (1)(i) or (1)(ii) of
this definition is no longer engaging in the illegal use of drugs.
[[Page 61720]]
(2) With regard to employment, the term "individual with a
disability" does not include any individual who:
(i) Is an alcoholic:
(A) Whose current use of alcohol prevents such individual from
performing the duties of the job in question, or
(B) Whose employment, by reason of such current alcohol abuse,
would constitute a direct threat to property or the safety of others;
or
(ii) Has a currently contagious disease or infection, if:
(A) That disease or infection prevents him or her from performing
the duties of the job in question, or
(B) His or her employment, because of that disease or infection,
would constitute a direct threat to the health and safety of others.
Labor market area means an economically integrated geographic area
within which individuals can reside and find employment within a
reasonable distance or can readily change employment without changing
their place of residence. Such an area must be identified in accordance
with either criteria used by the Bureau of Labor Statistics of the
Department of Labor in defining such areas, or similar criteria
established by a Governor.
LWIA (Local Workforce Investment Area) grant recipient means the
entity that receives WIA Title I financial assistance for a Local
Workforce Investment Area directly from the Governor and disburses
those funds for workforce investment activities.
Methods of Administration means the written document and supporting
documentation developed under Sec. 37.54.
National Programs means:
(1) Job Corps; and
(2) Programs receiving Federal funds under Title I, Subtitle D of
WIA directly from the Department. Such programs include, but are not
limited to, the Migrant and Seasonal Workers Programs, Native American
Programs, and Veterans' Workforce Investment programs.
Noncompliance means a failure of a grant applicant or recipient to
comply with any of the applicable requirements of the nondiscrimination
and equal opportunity provisions of WIA or this part.
On-the-Job Training (OJT) means training by an employer that is
provided to a paid participant while the participant is engaged in
productive work that:
(1) Provides knowledge or skills essential to the full and adequate
performance of the job;
(2) Provides reimbursement to the employer of up to 50 percent of
the wage rate of the participant, for the extraordinary costs of
providing the training and additional supervision related to the
training; and
(3) Is limited in duration as appropriate to the occupation for
which the participant is being trained, taking into account the content
of the training, the prior work experience of the participant, and the
service strategy of the participant, as appropriate.
Participant means an individual who has been determined to be
eligible to participate in, and who is receiving aid, benefits,
services or training under, a program or activity funded in whole or in
part under Title I of WIA. "Participant" includes, but is not limited
to, applicants receiving any service(s) under state Employment Service
programs, and claimants receiving any service(s) under state
Unemployment Insurance programs.
Participation is considered to commence on the first day, following
determination of eligibility, on which the participant began receiving
subsidized aid, benefits, services, or training provided under Title I
of WIA.
Parties to a hearing means the Department and the grant
applicant(s), recipient(s), or Governor.
Population eligible to be served means the total population of
adults and eligible youth who reside within the labor market area that
is served by a particular recipient, and who are eligible to seek WIA
Title I-financially assisted aid, benefits, services or training from
that recipient. See the definition of "labor market area" in this
section.
Program or activity: See "WIA Title I-financially assisted program
or activity" in this section.
Prohibited ground means any basis upon which it is illegal to
discriminate under the nondiscrimination and equal opportunity
provisions of WIA or this part, i.e., race, color, religion, sex,
national origin, age, disability, political affiliation or belief, and,
for beneficiaries only, citizenship or participation in a WIA Title I-
financially assisted program or activity.
Public entity means:
(1) Any State or local government; and
(2) Any department, agency, special purpose district, workforce
investment board, or other instrumentality of a State or States or
local government.
Qualified individual with a disability means:
(1) With respect to employment, an individual with a disability
who, with or without reasonable accommodation, is capable of performing
the essential functions of the job in question;
(2) With respect to aid, benefits, services, or training, an
individual with a disability who, with or without reasonable
accommodation and/or reasonable modification, meets the essential
eligibility requirements for the receipt of such aid, benefits,
services, or training.
Qualified interpreter means an interpreter who is able to interpret
effectively, accurately, and impartially, either for individuals with
disabilities or for individuals with limited English skills. The
interpreter must be able to interpret both receptively and
expressively, using any necessary specialized vocabulary.
Reasonable accommodation. (1) The term "reasonable accommodation"
means:
(i) Modifications or adjustments to an application/registration
process that enables a qualified applicant/registrant with a disability
to be considered for the aid, benefits, services, training, or
employment that the qualified applicant/registrant desires; or
(ii) Modifications or adjustments that enable a qualified
individual with a disability to perform the essential functions of a
job, or to receive aid, benefits, services, or training equal to that
provided to qualified individuals without disabilities. These
modifications or adjustments may be made to:
(A) The environment where work is performed or aid, benefits,
services, or training are given; or
(B) The customary manner in which, or circumstances under which, a
job is performed or aid, benefits, services, or training are given; or
(iii) Modifications or adjustments that enable a qualified
individual with a disability to enjoy the same benefits and privileges
of the aid, benefits, services, training, or employment as are enjoyed
by other similarly situated individuals without disabilities.
(2) Reasonable accommodation includes, but is not limited to:
(i) Making existing facilities used by applicants, registrants,
eligible applicants/registrants, participants, applicants for
employment, and employees readily accessible to and usable by
individuals with disabilities; and
(ii) Restructuring of a job or a service, or of the way in which
aid, benefits, or training is/are provided; part-time or modified work
or training schedules; acquisition or modification of equipment or
devices; appropriate adjustment or modifications of examinations,
training materials, or policies; the provision of readers or
interpreters; and other similar
[[Page 61721]]
accommodations for individuals with disabilities.
(3) To determine the appropriate reasonable accommodation, it may
be necessary for the recipient to initiate an informal, interactive
process with the qualified individual with a disability in need of the
accommodation. This process should identify the precise limitations
resulting from the disability and potential reasonable accommodations
that could overcome those limitations.
Recipient means any entity to which financial assistance under WIA
Title I is extended, either directly from the Department or through the
Governor or another recipient (including any successor, assignee, or
transferee of a recipient), but excluding the ultimate beneficiaries of
the WIA Title I-funded program or activity. In instances in which a
Governor operates a program or activity, either directly or through a
State agency, using discretionary funds apportioned to him or her under
WIA Title I (rather than disbursing the funds to another recipient),
the Governor is also a recipient. "Recipient" includes, but is not
limited to:
(1) State-level agencies that administer, or are financed in whole
or in part with, WIA Title I funds;
(2) State Employment Security Agencies;
(3) State and local Workforce Investment Boards;
(4) LWIA grant recipients;
(5) One-Stop operators;
(6) Service providers, including eligible training providers;
(7) On-the-Job Training (OJT) employers;
(8) Job Corps contractors and center operators, excluding the
operators of federally-operated Job Corps centers;
(9) Job Corps national training contractors;
(10) Outreach and admissions agencies, including Job Corps
contractors that perform these functions;
(11) Placement agencies, including Job Corps contractors that
perform these functions; and
(12) Other National Program recipients.
In addition, for purposes of this part, One-Stop partners, as
defined in section 121(b) of WIA, are treated as "recipients," and
are subject to the nondiscrimination and equal opportunity requirements
of this part, to the extent that they participate in the One-Stop
delivery system.
Registrant means the same as "applicant" for purposes of this
part. See also the definitions of "application for benefits,"
"eligible applicant/registrant," "participant," "participation,"
and "recipient" in this section.
Respondent means a grant applicant or recipient (including a
Governor) against which a complaint has been filed under the
nondiscrimination and equal opportunity provisions of WIA or this part.
Secretary means the Secretary of Labor, U.S. Department of Labor,
or his or her designee.
Sectarian activities means religious worship or ceremony, or
sectarian instruction.
Section 504 means Section 504 of the Rehabilitation Act of 1973, 29
U.S.C. 794, as amended, which forbids discrimination against qualified
individuals with disabilities in federally-financed and conducted
programs and activities.
Service provider means:
(1) Any operator of, or provider of aid, benefits, services, or
training to:
(a) Any WIA Title I--funded program or activity that receives
financial assistance from or through any State or LWIA grant recipient;
or
(b) Any participant through that participant's Individual Training
Account (ITA); or
(2) Any entity that is selected and/or certified as an eligible
provider of training services to participants.
Small recipient means a recipient who:
(a) Serves a total of fewer than 15 beneficiaries during the entire
grant year, and
(b) Employs fewer than 15 employees on any given day during the
grant year.
Solicitor means the Solicitor of Labor, U.S. Department of Labor,
or his or her designee.
State means the individual states of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, the Virgin
Islands, American Samoa, Guam, Wake Island, the Commonwealth of the
Northern Mariana Islands, the Federated States of Micronesia, the
Republic of the Marshall Islands, and Palau.
State Employment Security Agency (SESA) means the State agency
that, under the State Administrator, contains both State agencies with
responsibility for administering programs authorized under the Wagner-
Peyser Act, and unemployment insurance programs authorized under Title
III of the Social Security Act.
State Programs means programs financially assisted in whole or in
part under Title I of WIA in which either:
(1) The Governor and/or State receives and disburses the grant to
or through LWIA grant recipients; or
(2) The Governor retains the grant funds and operates the programs,
either directly or through a State agency.
"State programs" also includes State Employment Security
Agencies, State Employment Service agencies, and/or State unemployment
compensation agencies.
Supportive services means services, such as transportation, child
care, dependent care, housing, and needs-related payments, that are
necessary to enable an individual to participate in WIA Title I-
financially assisted programs and activities, as consistent with the
provisions of WIA.
Terminee means a participant whose participation in the program
terminates, voluntarily or involuntarily, during the applicable program
year.
Title VI means Title VI of the Civil Rights Act of 1964, 42 U.S.C.
2000d, et seq., as amended, which forbids recipients of Federal
financial assistance from discriminating on the basis of race, color,
or national origin.
Transferee means a person or entity to whom real or personal
property, or an interest in such property, is transferred.
Ultimate beneficiary See the definition of "beneficiary" in this
section.
Undue hardship This term has different meanings, depending upon
whether it is used with regard to reasonable accommodation of
individuals with disabilities, or with regard to religious
accommodation.
(1) Reasonable accommodation of individuals with disabilities: (i)
In general, "undue hardship" means significant difficulty or expense
incurred by a recipient, when considered in light of the factors set
forth in paragraph (ii).
(ii) Factors to be considered in determining whether an
accommodation would impose an undue hardship on a recipient include:
(A) The nature and net cost of the accommodation needed, taking
into consideration the availability of tax credits and deductions, and/
or outside funding, for the accommodation;
(B) The overall financial resources of the facility or facilities
involved in the provision of the reasonable accommodation, including:
(1) The number of persons aided, benefited, served, or trained by,
or employed at, the facility or facilities, and
(2) The effect the accommodation would have on the expenses and
resources of the facility or facilities;
(C) The overall financial resources of the recipient, including:
(1) The overall size of the recipient,
[[Page 61722]]
(2) The number of persons aided, benefited, served, trained, or
employed by the recipient, and
(3) The number, type and location of the recipient's facilities;
(D) The type of operation or operations of the recipient,
including:
(1) The geographic separateness and administrative or fiscal
relationship of the facility or facilities in question to the
recipient, and
(2) Where the individual is seeking an employment-related
accommodation, the composition, structure and functions of the
recipient's workforce; and
(E) The impact of the accommodation upon the operation of the
facility or facilities, including:
(1) The impact on the ability of other participants to receive aid,
benefits, services, or training, or of other employees to perform their
duties, and
(2) The impact on the facility's ability to carry out its mission.
(2) Religious accommodation For purposes of religious accommodation
only, "undue hardship" means any additional, unusual costs, other
than de minimis costs, that a particular accommodation would impose
upon a recipient. See Trans World Airlines, Inc. v. Hardison, 432 U.S.
63, 81, 84 (1977).
WIA means the Workforce Investment Act of 1998, Pub. L. 105-220.
WIA Title I financial assistance See the definition of "Federal
financial assistance under Title I of WIA" in this section.
WIA Title I-funded program or activity means:
(1) A program or activity, operated by a recipient and funded, in
whole or in part, under Title I of WIA, that provides either:
(i) Any aid, benefits, services, or training to individuals; or
(ii) Facilities for furnishing any aid, benefits, services, or
training to individuals;
(2) Aid, benefits, services, or training provided in facilities
that are being or were constructed with the aid of Federal financial
assistance under WIA Title I; or
(3) Aid, benefits, services, or training provided with the aid of
any non-WIA Title I funds, property, or other resources that are
required to be expended or made available in order for the program to
meet matching requirements or other conditions which must be met in
order to receive the WIA Title I financial assistance.
See the definition of "aid, benefits, services, or training" in
this section.
Sec. 37.5 What forms of discrimination are prohibited by this part?
No individual in the United States may, on the ground of race,
color, religion, sex, national origin, age, disability, political
affiliation or belief, and for beneficiaries only, citizenship or
participation in any WIA Title I--financially assisted program or
activity, be excluded from participation in, denied the benefits of,
subjected to discrimination under, or denied employment in the
administration of or in connection with any WIA Title I--funded program
or activity.
Sec. 37.6 What specific discriminatory actions, based on prohibited
grounds other than disability, are prohibited by this part?
(a) For the purposes of this section, "prohibited ground" means
race, color, religion, sex, national origin, age, political affiliation
or belief, and for beneficiaries only, citizenship or participation in
any WIA Title I--financially assisted program or activity.
(b) A recipient must not, directly or through contractual,
licensing, or other arrangements, on a prohibited ground:
(1) Deny an individual any aid, benefits, services, or training
provided under a WIA Title I--funded program or activity;
(2) Provide to an individual any aid, benefits, services, or
training that is different, or is provided in a different manner, from
that provided to others under a WIA Title I--funded program or
activity;
(3) Subject an individual to segregation or separate treatment in
any matter related to his or her receipt of any aid, benefits,
services, or training under a WIA Title I--funded program or activity;
(4) Restrict an individual in any way in the enjoyment of any
advantage or privilege enjoyed by others receiving any aid, benefits,
services, or training under a WIA Title I--funded program or activity;
(5) Treat an individual differently from others in determining
whether he or she satisfies any admission, enrollment, eligibility,
membership, or other requirement or condition for any aid, benefits,
services, or training provided under a WIA Title I--funded program or
activity;
(6) Deny or limit an individual with respect to any opportunity to
participate in a WIA Title I--funded program or activity, or afford him
or her an opportunity to do so that is different from the opportunity
afforded others under a WIA Title I--funded program or activity;
(7) Deny an individual the opportunity to participate as a member
of a planning or advisory body that is an integral part of the WIA
Title I--funded program or activity; or
(8) Otherwise limit on a prohibited ground an individual in
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving any WIA Title I--financially assisted aid, benefits,
services, or training.
(c) A recipient must not, directly or through contractual,
licensing, or other arrangements:
(1) Aid or perpetuate discrimination by providing significant
assistance to an agency, organization, or person that discriminates on
a prohibited ground in providing any aid, benefits, services, or
training to registrants, applicants or participants in a WIA Title I--
funded program or activity; or
(2) Refuse to accommodate an individual's religious practices or
beliefs, unless to do so would result in undue hardship, as defined in
section 37.4.
(d) (1) In making any of the determinations listed in paragraph
(d)(2) of this section, either directly or through contractual,
licensing, or other arrangements, a recipient must not use standards,
procedures, criteria, or administrative methods that have any of the
following purposes or effects:
(i) Subjecting individuals to discrimination on a prohibited
ground; or
(ii) Defeating or substantially impairing, on a prohibited ground,
accomplishment of the objectives of either:
(A) The WIA Title I--funded program or activity; or
(B) the nondiscrimination and equal opportunity provisions of WIA
or this part.
(2) The determinations to which this paragraph applies include, but
are not limited to:
(i) The types of aid, benefits, services, training, or facilities
that will be provided under any WIA Title I--funded program or
activity;
(ii) The class of individuals to whom such aid, benefits, services,
training, or facilities will be provided; or
(iii) The situations in which such aid, benefits, services,
training, or facilities will be provided.
(3) Paragraph (d) of this section applies to the administration of
WIA Title I--funded programs or activities providing aid, benefits,
services, training, or facilities in any manner, including, but not
limited to:
(i) Outreach and recruitment;
(ii) Registration;
(iii) Counseling and guidance;
(iv) Testing;
(v) Selection, placement, appointment, and referral;
[[Page 61723]]
(vi) Training; and
(vii) Promotion and retention.
(4) A recipient must not take any of the prohibited actions listed
in paragraph (d) of this section either directly or through
contractual, licensing, or other arrangements.
(e) In determining the site or location of facilities, a grant
applicant or recipient must not make selections that have any of the
following purposes or effects:
(1) On a prohibited ground:
(i) Excluding individuals from a WIA Title I--financially assisted
program or activity;
(ii) Denying them the benefits of such a program or activity; or
(iii) Subjecting them to discrimination; or
(2) Defeating or substantially impairing the accomplishment of the
objectives of either:
(i) The WIA Title I--financially assisted program or activity; or
(ii) The nondiscrimination and equal opportunity provisions of WIA
or this part.
(f) (1) A recipient must not permit participants to be employed or
trained in sectarian activities.
(2) This paragraph applies to any facility that is, or will be,
primarily used or inherently devoted either:
(A) For sectarian instruction; or
(B) As a place of worship,
(ii) A recipient must not permit participants to be employed or
trained in any way to:
(A) Construct any part of such a facility,
(B) Operate any part of such a facility, or
(C) Maintain any part of that facility.
(3) If a facility is not primarily or inherently devoted to
sectarian instruction or religious worship, a recipient may permit the
use of WIA Title I funds to employ participants to maintain the
facility, if the organization that operates the facility is part of a
program or activity that provides services to participants.
(g) The exclusion of an individual from programs or activities
limited by Federal statute or Executive Order to a certain class or
classes of individuals of which the individual in question is not a
member is not prohibited by this part.
Sec. 37.7 What specific discriminatory actions based on disability are
prohibited by this part?
(a) In providing any aid, benefits, services, or training under a
WIA Title I--financially assisted program or activity, a recipient must
not, directly or through contractual, licensing, or other arrangements,
on the ground of disability:
(1) Deny a qualified individual with a disability the opportunity
to participate in or benefit from the aid, benefits, services, or
training;
(2) Afford a qualified individual with a disability an opportunity
to participate in or benefit from the aid, benefits, services, or
training that is not equal to that afforded others;
(3) Provide a qualified individual with a disability with an aid,
benefit, service or training that is not as effective in affording
equal opportunity to obtain the same result, to gain the same benefit,
or to reach the same level of achievement as that provided to others;
(4) Provide different, segregated, or separate aid, benefits,
services, or training to individuals with disabilities, or to any class
of individuals with disabilities, unless such action is necessary to
provide qualified individuals with disabilities with aid, benefits,
services or training that are as effective as those provided to others;
(5) Deny a qualified individual with a disability the opportunity
to participate as a member of planning or advisory boards; or
(6) Otherwise limit a qualified individual with a disability in
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving any aid, benefit, service or training.
(b) A recipient must not, directly or through contractual,
licensing, or other arrangements, aid or perpetuate discrimination
against qualified individuals with disabilities by providing
significant assistance to an agency, organization, or person that
discriminates on the basis of disability in providing any aid,
benefits, services or training to registrants, applicants, or
participants.
(c) A recipient must not deny a qualified individual with a
disability the opportunity to participate in WIA Title I--financially
assisted programs or activities despite the existence of permissibly
separate or different programs or activities.
(d) A recipient must administer WIA Title I--financially assisted
programs and activities in the most integrated setting appropriate to
the needs of qualified individuals with disabilities.
(e) A recipient must not, directly or through contractual,
licensing, or other arrangements, use standards, procedures, criteria,
or administrative methods:
(1) That have the purpose or effect of subjecting qualified
individuals with disabilities to discrimination on the ground of
disability;
(2) That have the purpose or effect of defeating or substantially
impairing accomplishment of the objectives of the WIA Title I--
financially assisted program or activity with respect to individuals
with disabilities; or
(3) That perpetuate the discrimination of another entity if both
entities are subject to common administrative control or are agencies
of the same state.
(f) In determining the site or location of facilities, a grant
applicant or recipient must not make selections that have any of the
following purposes or effects:
(1) On the basis of disability:
(i) Excluding qualified individuals from a WIA Title I-financially
assisted program or activity;
(ii) Denying them the benefits of such a program or activity; or
(iii) Subjecting them to discrimination; or
(2) Defeating or substantially impairing the accomplishment of the
disability-related objectives of either:
(i) The WIA Title I-financially assisted program or activity; or
(ii) The nondiscrimination and equal opportunity provisions of WIA
or this part.
(g) A recipient, in the selection of contractors, must not use
criteria that subject qualified individuals with disabilities to
discrimination on the basis of disability.
(h) A recipient must not administer a licensing or certification
program in a manner that subjects qualified individuals with
disabilities to discrimination on the basis of disability, nor may a
recipient establish requirements for the programs or activities of
licensees or certified entities that subject qualified individuals with
disabilities to discrimination on the basis of disability. The programs
or activities of entities that are licensed or certified by a recipient
are not, themselves, covered by this part.
(i) A recipient must not impose or apply eligibility criteria that
screen out or tend to screen out an individual with a disability or any
class of individuals with disabilities from fully and equally enjoying
any aid, benefit, service, training, program, or activity, unless such
criteria can be shown to be necessary for the provision of the aid,
benefit, service, training, program, or activity being offered.
(j) Nothing in this part prohibits a recipient from providing aid,
benefits, services, training, or advantages to individuals with
disabilities, or to a particular class of individuals with
disabilities, beyond those required by this part.
(k) A recipient must not place a surcharge on a particular
individual
[[Page 61724]]
with a disability, or any group of individuals with disabilities, to
cover the costs of measures, such as the provision of auxiliary aids or
program accessibility, that are required to provide that individual or
group with the nondiscriminatory treatment required by WIA Title I or
this part.
(l) A recipient must not exclude, or otherwise deny equal aid,
benefits, services, training, programs, or activities to, an individual
or entity because of the known disability of an individual with whom
the individual or entity is known to have a relationship or
association.
(m) The exclusion of an individual without a disability from the
benefits of a program limited by Federal statute or Executive Order to
individuals with disabilities, or the exclusion of a specific class of
individuals with disabilities from a program limited by Federal statute
or Executive Order to a different class of individuals with
disabilities, is not prohibited by this part.
(n) This part does not require a recipient to provide any of the
following to individuals with disabilities:
(1) Personal devices, such as wheelchairs;
(2) Individually prescribed devices, such as prescription
eyeglasses or hearing aids;
(3) Readers for personal use or study; or
(4) Services of a personal nature, including assistance in eating,
toileting, or dressing.
(o)(1) Nothing in this part requires an individual with a
disability to accept an accommodation, aid, benefit, service, training,
or opportunity provided under WIA Title I or this part that such
individual chooses not to accept.
(2) Nothing in this part authorizes the representative or guardian
of an individual with a disability to decline food, water, medical
treatment, or medical services for that individual.
Sec. 37.8 What are a recipient's responsibilities regarding reasonable
accommodation and reasonable modification for individuals with
disabilities?
(a) With regard to aid, benefits, services, training, and
employment, a recipient must provide reasonable accommodation to
qualified individuals with disabilities who are applicants,
registrants, eligible applicants/registrants, participants, employees,
or applicants for employment, unless providing the accommodation would
cause undue hardship. See the definitions of "reasonable
accommodation" and "undue hardship" in Sec. 37.4 of this part.
(1) In those circumstances where a recipient believes that the
proposed accommodation would cause undue hardship, the recipient has
the burden of proving that the accommodation would result in such
hardship.
(2) The recipient must make the decision that the accommodation
would cause such hardship only after considering all factors listed in
the definition of "undue hardship" in Sec. 37.4. The decision must be
accompanied by a written statement of the recipient's reasons for
reaching that conclusion. The recipient must provide a copy of the
statement of reasons to the individual or individuals who requested the
accommodation.
(3) If a requested accommodation would result in undue hardship,
the recipient must take any other action that would not result in such
hardship, but would nevertheless ensure that, to the maximum extent
possible, individuals with disabilities receive the aid, benefits,
services, training, or employment provided by the recipient.
(b) A recipient must also make reasonable modifications in
policies, practices, or procedures when the modifications are necessary
to avoid discrimination on the basis of disability, unless making the
modifications would fundamentally alter the nature of the service,
program, or activity. See the definition of "fundamental alteration"
in Sec. 37.4 of this part.
(1) In those circumstances where a recipient believes that the
proposed modification would fundamentally alter the program, activity,
or service, the recipient has the burden of proving that the
modification would result in such an alteration.
(2) The recipient must make the decision that the modification
would result in such an alteration only after considering all factors
listed in the definition of "fundamental alteration" in Sec. 37.4.
The decision must be accompanied by a written statement of the
recipient's reasons for reaching that conclusion. The recipient must
provide a copy of the statement of reasons to the individual or
individuals who requested the modification.
(3) If a modification would result in a fundamental alteration, the
recipient must take any other action that would not result in such an
alteration, but would nevertheless ensure that, to the maximum extent
possible, individuals with disabilities receive the aid, benefits,
services, training, or employment provided by the recipient.
Sec. 37.9 What are a recipient's responsibilities to communicate with
individuals with disabilities?
(a) Recipients must take appropriate steps to ensure that
communications with beneficiaries, registrants, applicants, eligible
applicants/registrants, participants, applicants for employment,
employees, and members of the public who are individuals with
disabilities, are as effective as communications with others.
(b) A recipient must furnish appropriate auxiliary aids or services
where necessary to afford individuals with disabilities an equal
opportunity to participate in, and enjoy the benefits of, the WIA Title
I--financially assisted program or activity. In determining what type
of auxiliary aid or service is appropriate and necessary, such
recipient must give primary consideration to the requests of the
individual with a disability.
(c) Where a recipient communicates by telephone with beneficiaries,
registrants, applicants, eligible applicants/registrants, participants,
applicants for employment, and/or employees, the recipient must use
telecommunications devices for individuals with hearing impairments
(TDDs/TTYs), or equally effective communications systems, such as
telephone relay services.
(d) A recipient must ensure that interested individuals, including
individuals with visual or hearing impairments, can obtain information
as to the existence and location of accessible services, activities,
and facilities.
(e)(1) A recipient must provide signage at a primary entrance to
each of its inaccessible facilities, directing users to a location at
which they can obtain information about accessible facilities. The
signage provided must meet the most current standards prescribed by the
General Services Administration under the Architectural Barriers Act at
41 CFR 101-19.6. Alternative standards for the signage may be adopted
when it is clearly evident that such alternative standards provide
equivalent or greater access to the information.
(2) The international symbol for accessibility must be used at each
primary entrance of an accessible facility.
(f) This section does not require a recipient to take any action
that it can demonstrate would result in a fundamental alteration in the
nature of a service, program, or activity.
(1) In those circumstances where a recipient believes that the
proposed action would fundamentally alter the WIA Title I--financially
assisted
[[Page 61725]]
program, activity, or service, the recipient has the burden of proving
that compliance with this section would result in such an alteration.
(2) The decision that compliance would result in such an alteration
must be made by the recipient after considering all resources available
for use in the funding and operation of the WIA Title I--financially
assisted program, activity, or service, and must be accompanied by a
written statement of the reasons for reaching that conclusion.
(3) If an action required to comply with this section would result
in the fundamental alteration described in paragraph (f)(1) of this
section, the recipient must take any other action that would not result
in such an alteration, but would nevertheless ensure that, to the
maximum extent possible, individuals with disabilities receive the
benefits or services provided by the recipient.
Sec. 37.10 To what extent are employment practices covered by this
part?
(a) Discrimination on the ground of race, color, religion, sex,
national origin, age, disability, or political affiliation or belief is
prohibited in employment practices in the administration of, or in
connection with:
(1) Any WIA Title I-financially assisted program or activity; and
(2) Any program or activity that is part of the One-Stop delivery
system and is operated by a One-Stop partner listed in Section 121(b)
of WIA, to the extent that the program or activity is being conducted
as part of the One-Stop delivery system.
(b) Employee selection procedures. In implementing this section, a
recipient must comply with the Uniform Guidelines on Employee Selection
Procedures, 41 CFR part 60-3.
(c) Standards for employment-related investigations and reviews. In
any investigation or compliance review, the Director must consider
Equal Employment Opportunity Commission (EEOC) regulations, guidance
and appropriate case law in determining whether a recipient has engaged
in an unlawful employment practice.
(d) As provided in Sec. 37.3(b) of this part, 29 CFR part 32,
subparts B and C and Appendix A, which implement the requirements of
Section 504 pertaining to employment practices and employment-related
training, program accessibility, and reasonable accommodation, have
been incorporated into this part by reference. Therefore, recipients
must comply with the requirements set forth in those regulatory
sections as well as the requirements listed in this part.
(e) Recipients that are also employers, employment agencies, or
other entities covered by Titles I and II of the ADA should be aware of
obligations imposed by those titles. See 29 CFR part 1630 and 28 CFR
part 35.
(f) Similarly, recipients that are also employers covered by the
anti-discrimination provision of the Immigration and Nationality Act
should be aware of the obligations imposed by that provision. See 8
U.S.C. 1324b, as amended.
(g) This rule does not preempt consistent State and local
requirements.
Sec. 37.11 To what extent are intimidation and retaliation prohibited
by this part?
(a) A recipient must not discharge, intimidate, retaliate,
threaten, coerce or discriminate against any individual because the
individual has:
(1) Filed a complaint alleging a violation of Section 188 of WIA or
this part;
(2) Opposed a practice prohibited by the nondiscrimination and
equal opportunity provisions of WIA or this part;
(3) Furnished information to, or assisted or participated in any
manner in, an investigation, review, hearing, or any other activity
related to any of the following:
(i) Administration of the nondiscrimination and equal opportunity
provisions of WIA or this part;
(ii) Exercise of authority under those provisions; or
(iii) Exercise of privilege secured by those provisions; or
(4) Otherwise exercised any rights and privileges under the
nondiscrimination and equal opportunity provisions of WIA or this part.
(b) The sanctions and penalties contained in Section 188(b) of WIA
or this part may be imposed against any recipient that engages in any
such retaliation or intimidation, or fails to take appropriate steps to
prevent such activity.
Sec. 37.12 What Department of Labor office is responsible for
administering this part?
The Civil Rights Center (CRC), in the Office of the Assistant
Secretary for Administration and Management, is responsible for
administering and enforcing the nondiscrimination and equal opportunity
provisions of WIA and this part, and for developing and issuing
policies, standards, guidance, and procedures for effecting compliance.
Sec. 37.13 Who is responsible for providing interpretations of this
part?
The Director will make any rulings under, or interpretations of,
the nondiscrimination and equal opportunity provisions of WIA or this
part.
Sec. 37.14 Under what circumstances may the Secretary delegate the
responsibilities of this part?
(a) The Secretary may from time to time assign to officials of
other departments or agencies of the Government (with the consent of
such department or agency) responsibilities in connection with the
effectuation of the nondiscrimination and equal opportunity provisions
of WIA and this part (other than responsibility for final decisions
under Sec. 37.112), including the achievement of effective coordination
and maximum uniformity within the Department and within the executive
branch of the Government in the application of the nondiscrimination
and equal opportunity provisions of WIA or this part to similar
programs and similar situations.
(b) Any action taken, determination made, or requirement imposed by
an official of another department or agency acting under an assignment
of responsibility under this section has the same effect as if the
action had been taken by the Director.
Sec. 37.15 What are the Director's responsibilities to coordinate with
other civil rights agencies?
(a) Whenever a compliance review or complaint investigation under
this part reveals possible violation of one or more of the laws listed
in paragraph (b) of this section, or of any other Federal civil rights
law, that is not also a violation of the nondiscrimination and equal
opportunity provisions of WIA or this part, the Director must attempt
to notify the appropriate agency and provide it with all relevant
documents and information.
(b) This section applies to the following:
(1) Executive Order 11246, as amended;
(2) Section 503 of the Rehabilitation Act of 1973, as amended (29
U.S.C. 793);
(3) The affirmative action provisions of the Vietnam Era Veterans'
Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212);
(4) The Equal Pay Act of 1963, as amended (29 U.S.C. 206d);
(5) Title VII of the Civil Rights Act of 1964, as amended (42
U.S.C. 2000e et seq.);
[[Page 61726]]
(6) The Age Discrimination in Employment Act of 1967, as amended
(29 U.S.C. 621);
(7) The Americans with Disabilities Act of 1990, as amended (42
U.S.C. 12101 et seq.);
(8) The anti-discrimination provision of the Immigration and
Nationality Act, as amended (8 U.S.C. 1324b); and
(9) Any other Federal civil rights law.
Sec. 37.16 What is this part's effect on a recipient's obligations
under other laws, and what limitations apply?
(a) Effect of State or local law or other requirements. The
obligation to comply with the nondiscrimination and equal opportunity
provisions of WIA or this part are not excused or reduced by any State
or local law or other requirement that, on a prohibited ground,
prohibits or limits an individual's eligibility to receive aid,
benefits, services, or training; to participate in any WIA Title I--
financially assisted program or activity; to be employed by any
recipient; or to practice any occupation or profession.
(b) Effect of private organization rules. The obligation to comply
with the nondiscrimination and equal opportunity provisions of WIA and
this part is not excused or reduced by any rule or regulation of any
private organization, club, league or association that, on a prohibited
ground, prohibits or limits an individual's eligibility to participate
in any WIA Title I--financially assisted program or activity to which
this part applies.
(c) Effect of possible future exclusion from employment
opportunities. A recipient must not exclude any individual from, or
restrict any individual's participation in, any program or activity
based on the recipient's belief or concern that the individual will
encounter limited future employment opportunities because of his or her
race, color, religion, sex, national origin, age, disability, political
affiliation or belief, or citizenship.
Subpart B--Recordkeeping and Other Affirmative Obligations of
Recipients
Assurances
Sec. 37.20 What is a grant applicant's obligation to provide a written
assurance?
(a) (1) Each application for financial assistance under Title I of
WIA, as defined in Sec. 37.4, must include the following assurance:
As a condition to the award of financial assistance from the
Department of Labor under Title I of WIA, the grant applicant
assures that it will comply fully with the nondiscrimination and
equal opportunity provisions of the following laws:
Section 188 of the Workforce Investment Act of 1998 (WIA), which
prohibits discrimination against all individuals in the United
States on the basis of race, color, religion, sex, national origin,
age, disability, political affiliation or belief, and against
beneficiaries on the basis of either citizenship/status as a
lawfully admitted immigrant authorized to work in the United States
or participation in any WIA Title I--financially assisted program or
activity;
Title VI of the Civil Rights Act of 1964, as amended, which
prohibits discrimination on the bases of race, color and national
origin;
Section 504 of the Rehabilitation Act of 1973, as amended, which
prohibits discrimination against qualified individuals with
disabilities;
The Age Discrimination Act of 1975, as amended, which prohibits
discrimination on the basis of age; and
Title IX of the Education Amendments of 1972, as amended, which
prohibits discrimination on the basis of sex in educational
programs.
The grant applicant also assures that it will comply with 29 CFR
part 37 and all other regulations implementing the laws listed
above. This assurance applies to the grant applicant's operation of
the WIA Title I-financially assisted program or activity, and to all
agreements the grant applicant makes to carry out the WIA Title I-
financially assisted program or activity. The grant applicant
understands that the United States has the right to seek judicial
enforcement of this assurance.
(2) The assurance is considered incorporated by operation of law in
the grant, cooperative agreement, contract or other arrangement whereby
Federal financial assistance under Title I of the WIA is made
available, whether or not it is physically incorporated in such
document and whether or not there is a written agreement between the
Department and the recipient, between the Department and the Governor,
between the Governor and the recipient, or between recipients. The
assurance also may be incorporated by reference in such grants,
cooperative agreements, contracts, or other arrangements.
(b) Continuing State programs. Each Strategic Five-Year State Plan
submitted by a State to carry out a continuing WIA Title I-financially
assisted program or activity must provide a statement that the WIA
Title I-financially assisted program or activity is (or, in the case of
a new WIA Title I-financially assisted program or activity, will be)
conducted in compliance with the nondiscrimination and equal
opportunity provisions of WIA and this part, as a condition to the
approval of the Five-Year Plan and the extension of any WIA Title I
financial assistance under the Plan. The State also must certify that
it has developed and maintains a Methods of Administration under
Sec. 37.54.
Sec. 37.21 How long will the recipient's obligation under the
assurance last, and how broad is the obligation?
(a) Where the WIA Title I financial assistance is intended to
provide, or is in the form of, either personal property, real property,
structures on real property, or interest in any such property or
structures, the assurance will obligate the recipient, or (in the case
of a subsequent transfer) the transferee, for the longer of:
(1) The period during which the property is used either:
(i) For a purpose for which WIA Title I financial assistance is
extended; or
(ii) For another purpose involving the provision of similar
services or benefits; or
(2) The period during which either:
(i) The recipient retains ownership or possession of the property;
or
(ii) The transferee retains ownership or possession of the property
without compensating the Departmental grantmaking agency for the fair
market value of that ownership or possession.
(b) In all other cases, the assurance will obligate the recipient
for the period during which WIA Title I financial assistance is
extended.
Sec. 37.22 How must covenants be used in connection with this part?
(a) Where WIA Title I financial assistance is provided in the form
of a transfer of real property, structures, or improvements on real
property or structures, or interests in real property or structures,
the instrument effecting or recording the transfer must contain a
covenant assuring nondiscrimination and equal opportunity for the
period described in Sec. 37.21.
(b) Where no Federal transfer of real property or interest therein
from the Federal Government is involved, but real property or an
interest therein is acquired or improved under a program of WIA Title I
financial assistance, the recipient must include the covenant described
in paragraph (a) of this section in the instrument effecting or
recording any subsequent transfer of such property.
(c) When the property is obtained from the Federal Government, the
covenant described in paragraph (a) of this section also may include a
condition coupled with a right of reverter to the Department in the
event of a breach of the covenant.
Equal Opportunity Officers
Sec. 37.23 Who must designate an Equal Opportunity Officer?
Every recipient must designate an Equal Opportunity Officer ("EO
Officer"), except small recipients and
[[Page 61727]]
service providers, as defined in Sec. 37.4. The responsibilities of
small recipients and service providers are described in Secs. 37.27 and
37.28.
Sec. 37.24 Who is eligible to serve as an Equal Opportunity Officer?
A senior-level employee of the recipient should be appointed as the
recipient's Equal Opportunity Officer. Depending upon the size of the
recipient, the size of the recipient's WIA Title I-financially assisted
programs or activities, and the number of applicants, registrants, and
participants served by the recipient, the EO Officer may, or may not,
be assigned other duties. However, he or she must not have other
responsibilities or activities that create a conflict, or the
appearance of a conflict, with the responsibilities of an EO Officer.
Sec. 37.25 What are the responsibilities of an Equal Opportunity
Officer?
An Equal Opportunity Officer is responsible for coordinating a
recipient's obligations under this part. Those responsibilities
include, but are not limited to:
(a) Serving as the recipient's liaison with CRC;
(b) Monitoring and investigating the recipient's activities, and
the activities of the entities that receive WIA Title I funds from the
recipient, to make sure that the recipient and its subrecipients are
not violating their nondiscrimination and equal opportunity obligations
under WIA Title I and this part;
(c) Reviewing the recipient's written policies to make sure that
those policies are nondiscriminatory;
(d) Developing and publishing the recipient's procedures for
processing discrimination complaints under Secs. 37.76 through 37.79,
and making sure that those procedures are followed;
(e) Reporting directly to the appropriate official (including, but
not limited to, the State WIA Director, Governor's WIA Liaison, Job
Corps Center Director, SESA Administrator, or LWIA grant recipient)
about equal opportunity matters;
(f) Undergoing training (at the recipient's expense) to maintain
competency, if the Director requires him or her, and/or his or her
staff, to do so; and
(g) If applicable, overseeing the development and implementation of
the recipient's Methods of Administration under Sec. 37.54.
Sec. 37.26 What are a recipient's obligations relating to the Equal
Opportunity Officer?
A recipient has the following obligations:
(a) Making the Equal Opportunity Officer's name, and his or her
position title, address, and telephone number (voice and TDD/TTY)
public;
(b) Ensuring that the EO Officer's identity and contact information
appears on all internal and external communications about the
recipient's nondiscrimination and equal opportunity programs;
(c) Assigning sufficient staff and resources to the Equal
Opportunity Officer, and providing him or her with the necessary
support of top management, to ensure compliance with the
nondiscrimination and equal opportunity provisions of WIA and this
part; and
(d) Ensuring that the EO Officer and his/her staff are afforded the
opportunity to receive the training necessary and appropriate to
maintain competency.
Sec. 37.27 What are the obligations of small recipients regarding
Equal Opportunity Officers?
Although small recipients do not need to designate Equal
Opportunity Officers who have the full range of responsibilities listed
above, they must designate an individual who will be responsible for
developing and publishing of complaint procedures, and the processing
of complaints, as explained in Secs. 37.76 through 37.79.
Sec. 37.28 What are the obligations of service providers regarding
Equal Opportunity Officers?
Service providers, as defined in Sec. 37.4, are not required to
designate an Equal Opportunity Officer. The obligation for ensuring
service provider compliance with the nondiscrimination and equal
opportunity provisions of WIA and this part rests with the Governor or
LWIA grant recipient, as specified in the State's Methods of
Administration.
Notice and Communication
Sec. 37.29 What are a recipient's obligations to disseminate its equal
opportunity policy?
(a) A recipient must provide initial and continuing notice that it
does not discriminate on any prohibited ground. This notice must be
provided to:
(1) Registrants, applicants, and eligible applicants/registrants;
(2) Participants;
(3) Applicants for employment and employees;
(4) Unions or professional organizations that hold collective
bargaining or professional agreements with the recipient;
(5) Subrecipients that receive WIA Title I funds from the
recipient; and
(6) Members of the public, including those with impaired vision or
hearing.
(b) As provided in Sec. 37.9, the recipient must take appropriate
steps to ensure that communications with individuals with disabilities
are as effective as communications with others.
Sec. 37.30 What specific wording must the notice contain?
The notice must contain the following specific wording:
Equal Opportunity Is the Law
It is against the law for this recipient of Federal financial
assistance to discriminate on the following bases:
Against any individual in the United States, on the basis of
race, color, religion, sex, national origin, age, disability,
political affiliation or belief; and
Against any beneficiary of programs financially assisted under
Title I of the Workforce Investment Act of 1998 (WIA), on the basis
of the beneficiary's citizenship/status as a lawfully admitted
immigrant authorized to work in the United States, or his or her
participation in any WIA Title I-financially assisted program or
activity.
The recipient must not discriminate in any of the following
areas:
Deciding who will be admitted, or have access, to any WIA Title
I-financially assisted program or activity;
Providing opportunities in, or treating any person with regard
to, such a program or activity; or
Making employment decisions in the administration of, or in
connection with, such a program or activity.
What to Do If You Believe You Have Experienced Discrimination
If you think that you have been subjected to discrimination
under a WIA Title I-financially assisted program or
Activity, you may file a complaint within 180 days from the date of
the alleged violation with either:
The recipient's Equal Opportunity Officer (or the person whom
the recipient has designated for this purpose); or
The Director, Civil Rights Center (CRC), U.S. Department of
Labor, 200 Constitution Avenue NW, Room N-4123, Washington, DC
20210.
If you file your complaint with the recipient, you must wait
either until the recipient issues a written Notice of Final Action,
or until 90 days have passed (whichever is sooner), before filing
with the Civil Rights Center (see address above).
If the recipient does not give you a written Notice of Final
Action within 90 days of the day on which you filed your complaint,
you do not have to wait for the recipient to issue that Notice
before filing a complaint with CRC. However, you must file your CRC
complaint within 30 days of the 90-day deadline (in other words,
within 120 days after the day on which you filed your complaint with
the recipient).
If the recipient does give you a written Notice of Final Action
on your complaint,
[[Page 61728]]
but you are dissatisfied with the decision or resolution, you may
file a complaint with CRC. You must file your CRC complaint within
30 days of the date on which you received the Notice of Final
Action.
Sec. 37.31 Where must the notice required by Secs. 37.29 and 37.30 be
published?
(a) At a minimum, the notice required by Secs. 37.29 and 37.30 must
be:
(1) Posted prominently, in reasonable numbers and places;
(2) Disseminated in internal memoranda and other written or
electronic communications;
(3) Included in handbooks or manuals; and
(4) Made available to each participant, and made part of each
participant's file.
(b) The notice must be provided in appropriate formats to
individuals with visual impairments. Where notice has been given in an
alternate format to a participant with a visual impairment, a record
that such notice has been given must be made a part of the
participant's file.
Sec. 37.32 When must the notice required by Secs. 37.29 and 37.30 be
provided?
The notice required by Secs. 37.29 and 37.30 must be initially
provided within 90 days of the effective date of this part, or of the
date this part first applies to the recipient, whichever comes later.
Sec. 37.33 Who is responsible for meeting the notice requirement with
respect to service providers?
The Governor or the LWIA grant recipient, as determined by the
Governor and as provided in that State's Methods of Administration,
will be responsible for meeting the notice requirement provided in
Sections 37.29 and 37.30 with respect to a State's service providers.
Sec. 37.34 What type of notice must a recipient include in
publications, broadcasts, and other communications?
(a) Recipients must indicate that the WIA Title I-financially
assisted program or activity in question is an "equal opportunity
employer/program," and that "auxiliary aids and services are
available upon request to individuals with disabilities," in
recruitment brochures and other materials that are ordinarily
distributed or communicated in written and/or oral form, electronically
and/or on paper, to staff, clients, or the public at large, to describe
programs financially assisted under Title I of WIA or the requirements
for participation by recipients and participants. Where such materials
indicate that the recipient may be reached by telephone, the materials
must state the telephone number of the TDD/TTY or relay service used by
the recipient, as required by Sec. 37.9(c).
(b) Recipients that publish or broadcast program information in the
news media must ensure that such publications and broadcasts state that
the WIA Title I-financially assisted program or activity in question is
an equal opportunity employer/program (or otherwise indicate that
discrimination in the WIA Title I-financially assisted program or
activity is prohibited by Federal law), and indicate that auxiliary
aids and services are available upon request to individuals with
disabilities.
(c) A recipient must not communicate any information that suggests,
by text or illustration, that the recipient treats beneficiaries,
registrants, applicants, participants, employees or applicants for
employment differently on any prohibited ground specified in Sec. 37.5,
except as such treatment is otherwise permitted under Federal law or
this part.
Sec. 37.35 What are a recipient's responsibilities to provide services
and information in languages other than English?
(a) A significant number or proportion of the population eligible
to be served, or likely to be directly affected, by a WIA Title I-
financially assisted program or activity may need services or
information in a language other than English in order to be effectively
informed about, or able to participate in, the program or activity.
Where such a significant number or proportion exists, a recipient must
take the following actions:
(1) Consider:
(i) The scope of the program or activity, and
(ii) The size and concentration of the population that needs
services or information in a language other than English; and
(2) Based on those considerations, take reasonable steps to provide
services and information in appropriate languages. This information
must include the initial and continuing notice required under
Secs. 37.29 and 37.30, and all information that is communicated under
Sec. 37.34.
(b) In circumstances other than those described in paragraph (a) of
this section, a recipient should nonetheless make reasonable efforts to
meet the particularized language needs of limited-English-speaking
individuals who seek services or information from the recipient.
Sec. 37.36 What responsibilities does a recipient have to communicate
information during orientations?
During each presentation to orient new participants, new employees,
and/or the general public to its WIA Title I-financially assisted
program or activity, a recipient must include a discussion of rights
under the nondiscrimination and equal opportunity provisions of WIA and
this part, including the right to file a complaint of discrimination
with the recipient or the Director.
Data and Information Collection and Maintenance
Sec. 37.37 What are a recipient's responsibilities to collect and
maintain data and other information?
(a) The Director will not require submission of data that can be
obtained from existing reporting requirements or sources, including
those of other agencies, if the source is known and available to the
Director.
(b)(1) Each recipient must collect such data and maintain such
records, in accordance with procedures prescribed by the Director, as
the Director finds necessary to determine whether the recipient has
complied or is complying with the nondiscrimination and equal
opportunity provisions of WIA or this part. The system and format in
which the records and data are kept must be designed to allow the
Governor and CRC to conduct statistical or other quantifiable data
analyses to verify the recipient's compliance with section 188 of WIA
and this part.
(2) Such records must include, but are not limited to, records on
applicants, registrants, eligible applicants/registrants, participants,
terminees, employees, and applicants for employment. Each recipient
must record the race/ethnicity, sex, age, and where known, disability
status, of every applicant, registrant, eligible applicant/registrant,
participant, terminee, applicant for employment, and employee. Such
information must be stored in a manner that ensures confidentiality,
and must be used only for the purposes of recordkeeping and reporting;
determining eligibility, where appropriate, for WIA Title I-financially
assisted programs or activities; determining the extent to which the
recipient is operating its WIA Title I-financially assisted program or
activity in a nondiscriminatory manner; or other use authorized by law.
(c) Each recipient must maintain, and submit to CRC upon request, a
log of complaints filed with it that allege discrimination on the
ground(s) of race, color, religion, sex, national origin, age,
disability, political affiliation or belief,
[[Page 61729]]
citizenship, and/or participation in a WIA Title I-financially assisted
program or activity. The log must include: the name and address of the
complainant; the ground of the complaint; a description of the
complaint; the date the complaint was filed; the disposition and date
of disposition of the complaint; and other pertinent information.
Information that could lead to identification of a particular
individual as having filed a complaint must be kept confidential.
(d) Where designation of individuals by race or ethnicity is
required, the guidelines of the Office of Management and Budget must be
used.
(e) A service provider's responsibility for collecting and
maintaining the information required under this section may be assumed
by the Governor or LWIA grant recipient, as provided in the State's
ethods of Administration.
Sec. 37.38 What information must grant applicants and recipients
provide to CRC?
In addition to the information which must be collected, maintained,
and, upon request, submitted to CRC under Sec. 37.37:
(a) Each grant applicant and recipient must promptly notify the
Director when any administrative enforcement actions or lawsuits are
filed against it alleging discrimination on the ground of race, color,
religion, sex, national origin, age, disability, political affiliation
or belief, and for beneficiaries only, citizenship or participation in
a WIA Title I-financially assisted program or activity. This
notification must include:
(1) The names of the parties to the action or lawsuit;
(2) The forum in which each case was filed; and
(3) The relevant case numbers.
(b) Each grant applicant (as part of its application) and recipient
(as part of a compliance review conducted under Section 37.63, or
monitoring activity carried out under Sec. 37.65) must provide the
following information:
(1) The name of any other Federal agency that conducted a civil
rights compliance review or complaint investigation, and that found the
grant applicant or recipient to be in noncompliance, during the two
years before the grant application was filed or CRC began its
examination; and
(2) Information about any administrative enforcement actions or
lawsuits that alleged discrimination on any protected basis, and that
were filed against the grant applicant or recipient during the two
years before the application or renewal application, compliance review,
or monitoring activity. This information must include:
(i) The names of the parties;
(ii) The forum in which each case was filed; and
(iii) The relevant case numbers.
(c) At the discretion of the Director, grant applicants and
recipients may be required to provide, in a timely manner, any
information and data necessary to investigate complaints and conduct
compliance reviews on grounds prohibited under the nondiscrimination
and equal opportunity provisions of WIA and this part.
(d) At the discretion of the Director, recipients may be required
to provide, in a timely manner, the particularized information and/or
to submit the periodic reports that the Director considers necessary to
determine compliance with the nondiscrimination and equal opportunity
provisions of WIA or this part.
(e) At the discretion of the Director, grant applicants may be
required to submit, in a timely manner, the particularized information
necessary to determine whether or not the grant applicant, if
financially assisted, would be able to comply with the
nondiscrimination and equal opportunity provisions of WIA or this part.
(f) Where designation of individuals by race or ethnicity is
required, the guidelines of the Office of Management and Budget must be
used.
Sec. 37.39 How long must grant applicants and recipients maintain the
records required under this part?
(a) Each recipient must maintain the following records for a period
of not less than three years from the close of the applicable program
year:
(1) The records of applicants, registrants, eligible applicants/
registrants, participants, terminees, employees, and applicants for
employment; and
(2) Such other records as are required under this part or by the
Director.
(b) Records regarding complaints and actions taken on the
complaints must be maintained for a period of not less than three years
from the date of resolution of the complaint.
Sec. 37.40 What access to sources of information must grant applicants
and recipients provide the Director?
(a) Each grant applicant and recipient must permit access by the
Director during normal business hours to its premises and to its
employees and participants, to the extent that such individuals are on
the premises during the course of the investigation, for the purpose of
conducting complaint investigations, compliance reviews, monitoring
activities associated with a State's development and implementation of
a Methods of Administration, and inspecting and copying such books,
records, accounts and other materials as may be pertinent to ascertain
compliance with and ensure enforcement of the nondiscrimination and
equal opportunity provisions of WIA or this part.
(b) Asserted considerations of privacy or confidentiality are not a
basis for withholding information from CRC and will not bar CRC from
evaluating or seeking to enforce compliance with the nondiscrimination
and equal opportunity provisions of WIA and this part.
(c) Whenever any information that the Director asks a grant
applicant or recipient to provide is in the exclusive possession of
another agency, institution, or person, and that agency, institution,
or person fails or refuses to furnish the information upon request, the
grant applicant or recipient must certify to CRC that it has made
efforts to obtain the information and that the agency, institution, or
person has failed or refused to provide it. This certification must
list the name and address of the agency, institution, or person that
has possession of the information and the specific efforts the grant
applicant or recipient made to obtain it.
Sec. 37.41 What responsibilities do grant applicants, recipients, and
the Department have to maintain the confidentiality of the information
collected?
The identity of any individual who furnishes information relating
to, or assisting in, an investigation or a compliance review, including
the identity of any individual who files a complaint, must be kept
confidential to the extent possible, consistent with a fair
determination of the issues. An individual whose identity it is
necessary to disclose must be protected from retaliation (see
Sec. 37.11).
Sec. 37.42 What are a recipient's responsibilities under this part to
provide universal access to WIA Title I-financially assisted programs
and activities?
Recipients must take appropriate steps to ensure that they are
providing universal access to their WIA Title I-financially assisted
programs and activities. These steps should involve reasonable efforts
to include members of both sexes, various racial and ethnic groups,
individuals with disabilities, and individuals in differing age groups.
Such efforts may include, but are not limited to:
(a) Advertising the recipient's programs and/or activities in
media,
[[Page 61730]]
such as newspapers or radio programs, that specifically target various
populations;
(b) Sending notices about openings in the recipient's programs and/
or activities to schools or community service groups that serve various
populations; and
(c) Consulting with appropriate community service groups about ways
in which the recipient may improve its outreach and service to various
populations.
Subpart C--Governor's Responsibilities to Implement the
Nondiscrimination and Equal Opportunity Requirements of WIA
Sec. 37.50 To whom does this subpart apply?
This subpart applies to State Programs as defined in Sec. 37.4.
However, the provisions of Sec. 37.52(b) do not apply to State
Employment Security Agencies (SESAs), because the Governor's liability
for any noncompliance on the part of a SESA cannot be waived.
Sec. 37.51 What are a Governor's oversight responsibilities?
The Governor is responsible for oversight of all WIA Title I-
financially assisted State programs. This responsibility includes
ensuring compliance with the nondiscrimination and equal opportunity
provisions of WIA and this part, and negotiating, where appropriate,
with a recipient to secure voluntary compliance when noncompliance is
found under Sec. 37.95(b).
Sec. 37.52 To what extent may a Governor be liable for the actions of
a recipient he or she has financially assisted under WIA Title I?
(a) The Governor and the recipient are jointly and severally liable
for all violations of the nondiscrimination and equal opportunity
provisions of WIA and this part by the recipient, unless the Governor
has:
(1) Established and adhered to a Methods of Administration, under
Section 37.54, designed to give reasonable guarantee of the recipient's
compliance with such provisions;
(2) Entered into a written contract with the recipient that clearly
establishes the recipient's obligations regarding nondiscrimination and
equal opportunity;
(3) Acted with due diligence to monitor the recipient's compliance
with these provisions; and
(4) Taken prompt and appropriate corrective action to effect
compliance.
(b) If the Director determines that the Governor has demonstrated
substantial compliance with the requirements of paragraph (a) of this
section, he or she may recommend to the Secretary that the imposition
of sanctions against the Governor be waived and that sanctions be
imposed only against the noncomplying recipient.
Sec. 37.53 What are a Governor's oversight responsibilities regarding
recipients' recordkeeping?
The Governor must ensure that recipients collect and maintain
records in a manner consistent with the provisions of Sec. 37.37 and
any procedures prescribed by the Director under Sec. 37.37(b). The
Governor must further ensure that recipients are able to provide data
and reports in the manner prescribed by the Director.
Sec. 37.54 What are a Governor's obligations to develop and maintain a
ethods of Administration?
(a) (1) Each Governor must establish and adhere to a Methods of
Administration for State programs as defined in Sec. 37.4. In those
States in which one agency contains both SESA or unemployment insurance
and WIA Title I-financially assisted programs, the Governor should
develop a combined Methods of Administration.
(2) Each Methods of Administration must be designed to give a
reasonable guarantee that all recipients will comply, and are
complying, with the nondiscrimination and equal opportunity provisions
of WIA and this part.
(b) The Methods of Administration must be:
(1) In writing, addressing each requirement of Sec. 37.54(d) with
narrative and documentation;
(2) Reviewed and updated as required in Sec. 37.55; and
(3) Signed by the Governor.
(c) [Reserved]
(d) At a minimum, each Methods of Administration must:
(1) Describe how the State programs and recipients have satisfied
the requirements of the following regulations:
(i) Sections 37.20 through 37.22 (assurances);
(ii) Sections 37.23 through 37.28 (Equal Opportunity Officers);
(iii) Sections 37.29 through 37.36 (Notice and Communication);
(iv) Sections 37.37 through 37.41 (Data and Information Collection
and Maintenance);
(v) Section 37.42 (Universal Access);
(vi) Section 37.53 (Governor's Oversight Responsibilities Regarding
Recipients' Recordkeeping); and
(vii) Sections 37.76 through 37.79 (Complaint Processing
Procedures); and
(2) Include the following additional elements:
(i) A system for determining whether a grant applicant, if
financially assisted, and/or a training provider, if selected as
eligible under section 122 of the Act, is likely to conduct its WIA
Title I--financially assisted programs or activities in a
nondiscriminatory way, and to comply with the regulations in this part;
(ii) A system for periodically monitoring the compliance of
recipients with WIA section 188 and this part, including a
determination as to whether each recipient is conducting its WIA Title
I--financially assisted program or activity in a nondiscriminatory way.
At a minimum, each periodic monitoring review required by this
paragraph must include:
(A) A statistical or other quantifiable analysis of records and
data kept by the recipient under Sec. 37.37, including analyses by
race/ethnicity, sex, age, and disability status;
(B) An investigation of any significant differences identified in
paragraph (A) of this section in participation in the programs,
activities, or employment provided by the recipient, to determine
whether these differences appear to be caused by discrimination. This
investigation must be conducted through review of the recipient's
records and any other appropriate means; and
(C) An assessment to determine whether the recipient has fulfilled
its administrative obligations under section 188 or this part (for
example, recordkeeping, notice and communication) and any duties
assigned to it under the MOA;
(iii) A review of recipient policy issuances to ensure they are
nondiscriminatory;
(iv) A system for reviewing recipients' job training plans,
contracts, assurances, and other similar agreements to ensure that they
are both nondiscriminatory and contain the required language regarding
nondiscrimination and equal opportunity;
(v) Procedures for ensuring that recipients comply with the
requirements of Section 504 and this part with regard to individuals
with disabilities;
(vi) A system of policy communication and training to ensure that
EO Officers and members of the recipients' staffs who have been
assigned responsibilities under the nondiscrimination and equal
opportunity provisions of WIA or this part are aware of and can
effectively carry out these responsibilities;
(vii) Procedures for obtaining prompt corrective action or, as
necessary, applying sanctions when noncompliance is found; and
[[Page 61731]]
(viii) Supporting documentation to show that the commitments made
in the Methods of Administration have been and/or are being carried
out. This supporting documentation includes, but is not limited to:
(A) policy and procedural issuances concerning required elements of
the Methods of Administration;
(B) copies of monitoring instruments and instructions;
(C) evidence of the extent to which nondiscrimination and equal
opportunity policies have been developed and communicated as required
by this part;
(D) information reflecting the extent to which Equal Opportunity
training, including training called for by Secs. 37.25(f) and 37.26(c),
is planned and/or has been carried out;
(E) reports of monitoring reviews and reports of follow-up actions
taken under those reviews where violations have been found, including,
where appropriate, sanctions; and
(F) copies of any notices made under Secs. 37.29 through 37.36.
Sec. 37.55 When must the Governor carry out his or her obligations
with regard to the Methods of Administration?
(a) Within 180 days of either the date on which this interim final
rule is effective, or the date on which the Department gives final
approval to a State's Five-Year Plan, whichever is later, a Governor
must:
(1) Develop and implement a Methods of Administration consistent
with the requirements of this part, and
(2) Submit a copy of the Methods of Administration to the Director.
(b) The Governor must promptly update the Methods of Administration
whenever necessary, and must notify the Director in writing at the time
that any such updates are made.
(c) Every two years from the date on which the initial MOA is
submitted to the Director under Sec. 37.55(a)(2), the Governor must
review the Methods of Administration and the manner in which it has
been implemented, and determine whether any changes are necessary in
order for the State to comply fully and effectively with the
nondiscrimination and equal opportunity provisions of WIA and this
part.
(1) If any such changes are necessary, the Governor must make the
appropriate changes and submit them, in writing, to the Director.
(2) If the Governor determines that no such changes are necessary,
s/he must certify, in writing, to the Director that the Methods of
Administration previously submitted continues in effect.
Subpart D--Compliance Procedures
Sec. 37.60 How does the Director evaluate compliance with the
nondiscrimination and equal opportunity provisions of WIA and this
part?
From time to time, the Director may conduct pre-approval compliance
reviews of grant applicants for, and post-approval compliance reviews
of recipients of, WIA Title I financial assistance, to determine
compliance with the nondiscrimination and equal opportunity provisions
of WIA and this part. Reviews may focus on one or more specific
programs or activities, or one or more issues within a program or
activity. The Director may also investigate and resolve complaints
alleging violations of the nondiscrimination and equal opportunity
provisions of WIA and this part.
Sec. 37.61 Is there authority to issue subpoenas?
Yes, section 183(c) of WIA authorizes the issuance of subpoenas. A
subpoena may direct the individual named on the subpoena to take the
following actions:
(a) To appear:
(1) Before a designated CRC representative,
(2) At a designated time and place;
(b) To give testimony; and/or
(c) To produce documentary evidence.
The subpoena may require the appearance of witnesses, and the
production of documents, from any place in the United States, at any
designated time and place.
Compliance Reviews
Sec. 37.62 What are the authority and procedures for conducting pre-
approval compliance reviews?
(a) As appropriate and necessary to ensure compliance with the
nondiscrimination and equal opportunity provisions of WIA or this part,
the Director may review any application, or class of applications, for
Federal financial assistance under Title I of WIA, before and as a
condition of their approval. The basis for such review may be the
assurance specified in Sec. 37.20, information and reports submitted by
the grant applicant under this part or guidance published by the
Director, and any relevant records on file with the Department.
(b) Where the Director determines that the grant applicant for
Federal financial assistance under WIA Title I, if financially
assisted, might not comply with the nondiscrimination and equal
opportunity requirements of WIA or this part, the Director must:
(1) Notify, in a timely manner, the Departmental grantmaking agency
and the Assistant Attorney General of the findings of the pre-approval
compliance review; and
(2) Issue a Letter of Findings. The Letter of Findings must advise
the grant applicant, in writing, of:
(i) The preliminary findings of the review;
(ii) The proposed remedial or corrective action under Section 37.94
and the time within which the remedial or corrective action should be
completed;
(iii) Whether it will be necessary for the grant applicant to enter
into a written Conciliation Agreement as described in Secs. 37.95 and
37.97; and
(iv) The opportunity to engage in voluntary compliance
negotiations.
(c) If a grant applicant has agreed to certain remedial or
corrective actions in order to receive WIA Title I-funded Federal
financial assistance, the Department must ensure that the remedial or
corrective actions have been taken, or that a Conciliation Agreement
has been entered into, before approving the award of further assistance
under WIA Title I. If a grant applicant refuses or fails to take
remedial or corrective actions or to enter into a Conciliation
Agreement, as applicable, the Director must follow the procedures
outlined in Secs. 37.98 through 37.100.
Sec. 37.63 What are the authority and procedures for conducting post-
approval compliance reviews?
(a) The Director may initiate a post-approval compliance review of
any recipient to determine compliance with the nondiscrimination and
equal opportunity provisions of WIA and this part. The initiation of a
post-approval review may be based on, but need not be limited to, the
results of routine program monitoring by other Departmental or Federal
agencies, or the nature or frequency of complaints.
(b) A post-approval review must be initiated by a Notification
Letter, advising the recipient of:
(1) The practices to be reviewed;
(2) The programs to be reviewed;
(3) The information, records, and/or data to be submitted by the
recipient within 30 days of the receipt of the Notification Letter,
unless this time frame is modified by the Director; and
(4) The opportunity, at any time before receipt of the Final
Determination described in Secs. 37.99 and 37.100, to make a
documentary or other submission that explains, validates or otherwise
addresses the practices under review.
[[Page 61732]]
(c) The Director may conduct post-approval reviews using such
techniques as desk audits and on-site reviews.
Sec. 37.64 What procedures must the Director follow when CRC has
completed a post-approval compliance review?
(a) Where, as the result of a post-approval review, the Director
has made a finding of noncompliance, he or she must issue a Letter of
Findings. This Letter must advise the recipient, in writing, of:
(1) The preliminary findings of the review;
(2) Where appropriate, the proposed remedial or corrective action
to be taken, and the time by which such action should be completed, as
provided in Sec. 37.94;
(3) Whether it will be necessary for the recipient to enter into a
written assurance and/or Conciliation Agreement, as provided in
Secs. 37.96 and 37.97; and
(4) The opportunity to engage in voluntary compliance negotiations.
(b) Where no violation is found, the recipient must be so informed
in writing.
Sec. 37.65 What is the Director's authority to monitor the activities
of a Governor?
(a) The Director may periodically review the adequacy of the
ethods of Administration established by a Governor, as well as the
adequacy of the Governor's performance under the Methods of
Administration, to determine compliance with the requirements of
Secs. 37.50 through 37.55. The Director may review the Methods of
Administration during a compliance review under Secs. 37.62 and 37.63,
or at another time.
(b) Nothing in this subpart limits or precludes the Director from
monitoring directly any WIA Title I recipient or from investigating any
matter necessary to determine a recipient's compliance with the
nondiscrimination and equal opportunity provisions of WIA or this part.
Sec. 37.66 What happens if a recipient fails to submit requested data,
records, and/or information, or fails to provide CRC with the required
access?
The Director may issue a Notice to Show Cause to a recipient
failing to comply with the requirements of this part, where such
failure results in the inability of the Director to make a finding.
Such a failure includes, but is not limited to, the recipient's failure
or refusal to:
(a) Submit requested information, records, and/or data within 30
days of receiving a Notification Letter;
(b) Submit, in a timely manner, information, records, and/or data
requested during a compliance review, complaint investigation, or other
action to determine a recipient's compliance with the nondiscrimination
and equal opportunity provisions of WIA or this part; or
(c) Provide CRC access in a timely manner to a recipient's
premises, records, or employees during a compliance review, as required
in Sec. 37.40.
Sec. 37.67 What information must a Notice to Show Cause contain?
(a) A Notice to Show Cause must contain:
(1) A description of the violation and a citation to the pertinent
nondiscrimination or equal opportunity provision(s) of WIA and this
part;
(2) The corrective action necessary to achieve compliance or, as
may be appropriate, the concepts and principles of acceptable
corrective or remedial action and the results anticipated; and
(3) A request for a written response to the findings, including
commitments to corrective action or the presentation of opposing facts
and evidence.
(b) A Notice to Show Cause must give the recipient 30 days to show
cause why enforcement proceedings under the nondiscrimination and equal
opportunity provisions of WIA or this part should not be instituted.
Sec. 37.68 How may a recipient show cause why enforcement proceedings
should not be instituted?
A recipient may show cause why enforcement proceedings should not
be instituted by, among other means:
(a) Correcting the violation(s) that brought about the Notice to
Show Cause and entering into a written assurance and/or entering into a
Conciliation Agreement, as appropriate, under Secs. 37.95 through
37.97;
(b) Demonstrating that CRC does not have jurisdiction; or
(c) Demonstrating that the violation alleged by CRC did not occur.
Sec. 37.69 What happens if a recipient fails to show cause?
If the recipient fails to show cause why enforcement proceedings
should not be initiated, the Director must follow the enforcement
procedures outlined in Secs. 37.99 and 37.100.
Complaint Processing Procedures
Sec. 37.70 Who may file a complaint concerning discrimination
connected with WIA Title I?
Any person who believes that either he or she, or any specific
class of individuals, has been or is being subjected to discrimination
prohibited by WIA or this part, may file a written complaint, either by
him/herself or through a representative.
Sec. 37.71 Where may a complaint be filed?
A complainant may file a complaint with either the recipient or the
Director. Complaints filed with the Director should be sent to the
address listed in the notice in Sec. 37.30.
Sec. 37.72 When must a complaint be filed?
Generally, a complaint must be filed within 180 days of the alleged
discrimination. However, for good cause shown, the Director may extend
the filing time. The time period for filing is for the administrative
convenience of CRC, and does not create a defense for the respondent.
Sec. 37.73 What information must a complaint contain?
Each complaint must be filed in writing, and must contain the
following information:
(a) The complainant's name and address (or another means of
contacting the complainant);
(b) The identity of the respondent (the individual or entity that
the complainant alleges is responsible for the discrimination);
(c) A description of the complainant's allegations. This
description must include enough detail to allow the Director or the
recipient, as applicable, to decide whether:
(i) CRC or the recipient, as applicable, has jurisdiction over the
complaint;
(ii) The complaint was filed in time; and
(iii) The complaint has apparent merit; in other words, whether the
complainant's allegations, if true, would violate any of the
nondiscrimination and equal opportunity provisions of WIA or this part;
and
(d) The complainant's signature or the signature of the
complainant's authorized representative.
Sec. 37.74 Are there any forms that a complainant may use to file a
complaint?
Yes. A complainant may file a complaint by completing and
submitting CRC's Complaint Information and Privacy Act Consent Forms,
which may be obtained either from the recipient's EO Officer, or from
CRC at the address listed in the notice contained in Sec. 37.30.
Sec. 37.75 Is there a right of representation in the complaint
process?
Yes. Both the complainant and the respondent have the right to be
represented by an attorney or other individual of their choice.
[[Page 61733]]
Sec. 37.76 What are the required elements of a recipient's
discrimination complaint processing procedures?
(a) The procedures that a recipient adopts and publishes must
provide that the recipient will issue a written Notice of Final Action
on discrimination complaints within 90 days of the date on which the
complaint is filed.
(b) At a minimum, the procedures must include the following
elements:
(1) Initial, written notice to the complainant that contains the
following information:
(i) An acknowledgment that the recipient has received the
complaint, and
(ii) Notice that the complainant has the right to be represented in
the complaint process;
(2) A written statement of the issue(s), provided to the
complainant, that includes the following information:
(i) A list of the issues raised in the complaint, and
(ii) For each such issue, a statement whether the recipient will
accept the issue for investigation or reject the issue, and the reasons
for each rejection;
(3) A period for fact-finding or investigation of the circumstances
underlying the complaint;
(4) A period during which the recipient attempts to resolve the
complaint. The methods available to resolve the complaint must include
alternative dispute resolution (ADR), as described in paragraph (c) of
this section
(5) A written Notice of Final Action, provided to the complainant
within 90 days of the date on which the complaint was filed, that
contains the following information:
(i) For each issue raised in the complaint, a statement of either:
(A) The recipient's decision on the issue and an explanation of the
reasons underlying the decision, or
(B) A description of the way the parties resolved the issue; and
(ii) Notice that the complainant has a right to file a complaint
with CRC within 30 days of the date on which the Notice of Final Action
is issued if he or she is dissatisfied with the recipient's final
action on the complaint.
(c) The procedures the recipient adopts must provide for
alternative dispute resolution (ADR). The recipient's ADR procedures
must provide that:
(1) The choice whether to use ADR or the customary process rests
with the complainant;
(2) A party to any agreement reached under ADR may file a complaint
with the Director in the event the agreement is breached. In such
circumstances, the following rules will apply:
(i) The non-breaching party may file a complaint with the Director
within 30 days of the date on which the non-breaching party learns of
the alleged breach;
(ii) The Director must evaluate the circumstances to determine
whether the agreement has been breached. If he or she determines that
the agreement has been breached, the complainant may file a complaint
with CRC based upon his/her original allegation(s), and the Director
will waive the time deadline for filing such a complaint.
(3) If the parties do not reach an agreement under ADR, the
complainant may file a complaint with the Director as described in
Secs. 37.71 through 37.74.
Sec. 37.77 Who is responsible for developing and publishing complaint
processing procedures for service providers?
The Governor or the LWIA grant recipient, as provided in the
State's Methods of Administration, must develop and publish, on behalf
of its service providers, the complaint processing procedures required
in Sec. 37.76. The service providers must then follow those procedures.
Sec. 37.78 Does a recipient have any special obligations in cases in
which the recipient determines that it has no jurisdiction over a
complaint?
Yes. If a recipient determines that it does not have jurisdiction
over a complaint, it must notify the complainant, in writing,
immediately. This Notice of Lack of Jurisdiction must include:
(a) A statement of the reasons for that determination, and
(b) Notice that the complainant has a right to file a complaint
with CRC within 30 days of the date on which the complainant receives
the Notice.
Sec. 37.79 If, before the 90-day period has expired, a recipient
issues a Notice of Final Action with which the complainant is
dissatisfied, how long does the complainant have to file a complaint
with the Director?
If, during the 90-day period, the recipient issues its Notice of
Final Action, but the complainant is dissatisfied with the recipient's
decision on the complaint, the complainant or his/her representative
may file a complaint with the Director within 30 days after the date on
which the complainant receives the Notice.
Sec. 37.80 What happens if a recipient fails to issue a Notice of
Final Action within 90 days of the date on which a complaint was filed?
If, by the end of 90 days from the date on which the complainant
filed the complaint, the recipient has failed to issue a Notice of
Final Action, the complainant or his/her representative may file a
complaint with the Director within 30 days of the expiration of the 90-
day period. In other words, the complaint must be filed with the
Director within 120 days of the date on which the complaint was filed
with the recipient.
Sec. 37.81 Are there any circumstances under which the Director may
extend the time limit for filing a complaint with him or her?
Yes. The Director may extend the 30-day time limit:
(a) If the recipient does not include in its Notice of Final Action
the required notice about the complainant's right to file with the
Director, as described in Sec. 37.76(b)(5)(ii); or
(b) For other good cause shown.
The complainant has the burden of proving to the Director that the
time limit should be extended.
Sec. 37.82 Does the Director accept every complaint for resolution?
No. The Director must determine whether CRC will accept a
particular complaint for resolution. For example, a complaint need not
be accepted if:
(a) It has not been timely filed;
(b) CRC has no jurisdiction over the complaint; or
(c) CRC has previously decided the matter.
Sec. 37.83 What happens if a complaint does not contain enough
information?
(a) If a complaint does not contain enough information, the
Director must try to get the needed information from the complainant.
(b) The Director may close the complainant's file, without
prejudice, if:
(1) The Director makes reasonable efforts to try to find the
complainant, but is unable to reach him or her; or
(2) The complainant does not provide the needed information to CRC
within the time specified in the request for more information.
(c) If the Director closes the complainant's file, he or she must
send written notice to the complainant's last known address.
Sec. 37.84 What happens if CRC does not have jurisdiction over a
complaint?
If CRC does not have jurisdiction over a complaint, the Director
must:
(a) Notify the complainant and explain why the complaint falls
outside the coverage of the nondiscrimination and equal opportunity
provisions of WIA or this part; and
(b) Where possible, transfer the complaint to an appropriate
Federal, State or local authority.
[[Page 61734]]
Sec. 37.85 Are there any other circumstances in which the Director
will send a complaint to another authority?
Yes. The Director refers complaints to other agencies in the
following circumstances:
(a) Where the complaint alleges discrimination based on age, and
the complaint falls within the jurisdiction of the Age Discrimination
Act of 1975, as amended, then the Director must refer the complaint, in
accordance with the provisions of 45 CFR 90.43(c)(3).
(b) Where the only allegation in the complaint is a charge of
individual employment discrimination that is covered both by WIA or
this part and by one or more of the laws listed below, then the
complaint is a "joint complaint," and the Director may refer it to
the EEOC for investigation and conciliation under the procedures
described in 29 CFR part 1640 or 1691, as appropriate. The relevant
laws are:
(1) Title VII of the Civil Rights Act of 1964, as amended (42
U.S.C. 2000e to 2000e-17);
(2) The Equal Pay Act of 1963, as amended (29 U.S.C. 206(d));
(3) The Age Discrimination in Employment Act of 1976, as amended
(29 U.S.C. 621, et seq.); and
(4) Title I of the Americans with Disabilities Act of 1990, as
amended (42 U.S.C. 12101 et seq.).
(c) Where the complaint alleges discrimination by an entity that
operates a program or activity financially assisted by a Federal
grantmaking agency other than the Department, but that participates as
a partner in a One-Stop delivery system, the following procedures
apply:
(1) Where the complaint alleges discrimination on a basis that is
prohibited both by Section 188 of WIA and by a civil rights law
enforced by the Federal grantmaking agency, then CRC and the
grantmaking agency have dual jurisdiction over the complaint, and the
Director will refer the complaint to the grantmaking agency for
processing. In such circumstances, the grantmaking agency's regulations
will govern the processing of the complaint.
(2) Where the complaint alleges discrimination on a basis that is
prohibited by Section 188 of WIA, but not by any civil rights laws
enforced by the Federal grantmaking agency, then CRC has sole
jurisdiction over the complaint, and will retain the complaint and
process it pursuant to this part. Such bases generally include
religion, political affiliation or belief, citizenship, and/or
participation in a WIA Title I-financially assisted program or
activity.
(d) Where the Director makes a referral under this section, he or
she must notify the complainant and the respondent about the referral.
Sec. 37.86 What must the Director do if he or she determines that a
complaint will not be accepted?
If a complaint will not be accepted, the Director must notify the
complainant, in writing, about that fact, and provide the complainant
his/her reasons for making that determination.
Sec. 37.87 What must the Director do if he or she determines that a
complaint will be accepted?
If the Director accepts the complaint for resolution, he or she
must notify the complainant, the respondent, and the grantmaking
agency. The notice must:
(a) State that the complaint will be accepted,
(b) Identify the issues over which CRC has accepted jurisdiction;
and
(c) Explain the reasons why any issues were rejected.
Sec. 37.88 Who may contact CRC about a complaint?
Both the complainant and the respondent, or their authorized
representatives, may contact CRC for information about the complaint.
The Director will determine what information, if any, about the
complaint will be released.
Sec. 37.89 May the Director offer the parties to a complaint the
option of mediation?
Yes. The Director may offer the parties to a complaint the option
of mediating the complaint. In such circumstances, the following rules
apply:
(a) Mediation is voluntary; the parties must consent before the
mediation process will proceed.
(b) The mediation will be conducted under guidance issued by the
Director.
(c) If the parties are unable to reach resolution of the complaint
through mediation, CRC will investigate and process the complaint under
Secs. 37.82 through 37.88 of this part.
Determinations
Sec. 37.90 If a complaint is investigated, what must the Director do
when the investigation is completed?
At the conclusion of the investigation of the complaint, the
Director must take the following actions:
(a) Determine whether there is reasonable cause to believe that the
respondent has violated the nondiscrimination and equal opportunity
provisions of WIA or this part; and
(b) Notify the complainant, the respondent, and the grantmaking
agency, in writing, of that determination.
Sec. 37.91 What notice must the Director issue if he or she finds
reasonable cause to believe that a violation has taken place?
If the Director finds reasonable cause to believe that the
respondent has violated the nondiscrimination and equal opportunity
provisions of WIA or this part, he or she must issue an Initial
Determination. The Initial Determination must include:
(a) The specific findings of the investigation;
(b) The corrective or remedial action that the Department proposes
to the respondent, under Sec. 37.94;
(c) The time by which the respondent must complete the corrective
or remedial action;
(d) Whether it will be necessary for the respondent to enter into a
written agreement under Sec. 37.95 and 37.96; and
(e) The opportunity to engage in voluntary compliance negotiations.
Sec. 37.92 What notice must the Director issue if he or she finds no
reasonable cause to believe that a violation has taken place?
If the Director determines that there is no reasonable cause to
believe that a violation has taken place, he or she must issue a Final
Determination under Sec. 37.100. The Final Determination represents the
Department's final agency action on the complaint.
Sec. 37.93 What happens if the Director finds that a violation has
taken place, and the recipient fails or refuses to take the corrective
action listed in the Initial Determination?
Under such circumstances, the Department must take the actions
described in Sec. 37.99 of this part.
Sec. 37.94 What corrective or remedial actions may be imposed where,
after a compliance review or complaint investigation, the Director
finds a violation of the nondiscrimination and equal opportunity
provisions of WIA or this part?
(a) A Letter of Findings, Notice to Show Cause, or Initial
Determination, issued under Secs. 37.62 or 37.63, 37.66 and 37.67, or
37.91 respectively, must include the specific steps the grant applicant
or recipient, as applicable, must take within a stated period of time
in order to achieve voluntary compliance.
(b) Such steps must include:
(1) Actions to end and/or redress the violation of the
nondiscrimination and equal opportunity provisions of WIA or this part;
(2) Make whole relief where discrimination has been identified,
including, as appropriate, back pay (which must not accrue from a date
more than 2 years before the filing of the complaint or the initiation
of a
[[Page 61735]]
compliance review) or other monetary relief; hire or reinstatement;
retroactive seniority; promotion; benefits or other services
discriminatorily denied; and
(3) Such other remedial or affirmative relief as the Director deems
necessary, including but not limited to outreach, recruitment and
training designed to ensure equal opportunity.
(c) Monetary relief may not be paid from Federal funds.
Sec. 37.95 What procedures apply if the Director finds that a
recipient has violated the nondiscrimination and equal opportunity
provisions of WIA or this part?
(a) Violations at State level. Where the Director has determined
that a violation of the nondiscrimination and equal opportunity
provisions of WIA or this part has occurred at the State level, he or
she must notify the Governor through the issuance of a Letter of
Findings, Notice to Show Cause or Initial Determination, as
appropriate, under Sec. 37.62 or 37.63, 37.66 and 37.67, or 37.91,
respectively. The Director may secure compliance with the
nondiscrimination and equal opportunity provisions of WIA and this part
through, among other means, the execution of a written assurance and/or
Conciliation Agreement, under paragraph (d) of this section.
(b) Violations below State level. Where the Director has determined
that a violation of the nondiscrimination and equal opportunity
provisions of WIA or this part has occurred below the State level, the
Director must so notify the Governor and the violating recipient(s)
through the issuance of a Letter of Findings, Notice to Show Cause or
Initial Determination, as appropriate, under Secs. 37.62 or 37.63,
37.66 and 37.67, or 37.91, respectively.
(1) Such issuance must:
(i) Direct the Governor to initiate negotiations immediately with
the violating recipient(s) to secure compliance by voluntary means;
(ii) Direct the Governor to complete such negotiations within 30
days of the Governor's receipt of the Notice to Show Cause or within 45
days of the Governor's receipt of the Letter of Findings or Initial
Determination, as applicable. The Director reserves the right to enter
into negotiations with the recipient at any time during the period. For
good cause shown, the Director may approve an extension of time to
secure voluntary compliance. The total time allotted to secure
voluntary compliance must not exceed 60 days.
(iii) Include a determination as to whether compliance must be
achieved by:
(A) Immediate correction of the violation(s) and written assurance
that such violations have been corrected, under Sec. 37.96;
(B) Entering into a written Conciliation Agreement under
Sec. 37.97; or
(C) Both.
(2) If the Governor determines, at any time during the period
described in paragraph (b)(1)(ii) of this section, that a recipient's
compliance cannot be achieved by voluntary means, the Governor must so
notify the Director.
(3) If the Governor is able to secure voluntary compliance under
paragraph (b)(1) of this section, he or she must submit to the Director
for approval, as applicable:
(i) Written assurance that the required action has been taken, as
described in Sec. 37.96;
(ii) A copy of the Conciliation Agreement, as described in
Sec. 37.97; or
(iii) Both.
(4) The Director may disapprove any written assurance or
Conciliation Agreement submitted for approval under paragraph (b)(3) of
this section that fails to satisfy each of the applicable requirements
provided in Secs. 37.96 or 37.97.
(c) Violations in National Programs. Where the Director has
determined that a violation of the nondiscrimination and equal
opportunity provisions of WIA or this part has occurred in a National
Program, he or she must notify the Federal grantmaking agency and the
recipient by issuing a Letter of Findings, Notice to Show Cause, or
Initial Determination, as appropriate, under Secs. 37.62 or 37.63,
37.66 and 37.67, or 37.91, respectively. The Director may secure
compliance with the nondiscrimination and equal opportunity provisions
of WIA and this part through, among other means, the execution of a
written assurance and/or Conciliation Agreement under Secs. 37.96 or
37.97, as applicable.
Sec. 37.96 What are the required elements of a written assurance?
A written assurance must provide documentation that the violations
listed in the Letter of Findings, Notice to Show Cause or Initial
Determination, as applicable, have been corrected.
Sec. 37.97 What are the required elements of a Conciliation Agreement?
A Conciliation Agreement must:
(a) Be in writing;
(b) Address each cited violation;
(c) Specify the corrective or remedial action to be taken within a
stated period of time to come into compliance;
(d) Provide for periodic reporting on the status of the corrective
and remedial action;
(e) Provide that the violation(s) will not recur; and
(f) Provide for enforcement for a breach of the agreement.
Sec. 37.98 When will the Director conclude that compliance cannot be
secured by voluntary means?
The Director will conclude that compliance cannot be secured by
voluntary means under the following circumstances:
(a) The grant applicant or recipient fails or refuses to correct
the violation(s) within the time period established by the Letter of
Findings, Notice to Show Cause or Initial Determination; or
(b) The Director has not approved an extension of time for
agreement on voluntary compliance, under Sec. 37.95(b)(1)(ii), and he
or she either:
(1) Has not been notified, under Sec. 37.95(b)(3), that the grant
applicant or recipient has agreed to voluntary compliance;
(2) Has disapproved a written assurance or Conciliation Agreement,
under Sec. 37.95(b)(4); or
(3) Has received notice from the Governor, under Sec. 37.95(b)(2),
that the grant applicant or recipient will not comply voluntarily.
Sec. 37.99 If the Director concludes that compliance cannot be secured
by voluntary means, what actions must he or she take?
If the Director concludes that compliance cannot be secured by
voluntary means, he or she must either:
(a) Issue a Final Determination;
(b) Refer the matter to the Attorney General with a recommendation
that an appropriate civil action be instituted; or
(c) Take such other action as may be provided by law.
Sec. 37.100 What information must a Final Determination contain?
A Final Determination must contain the following information:
(a) A statement of the efforts made to achieve voluntary
compliance, and a statement that those efforts have been unsuccessful;
(b) A statement of those matters upon which the grant applicant or
recipient and CRC continue to disagree;
(c) A list of any modifications to the findings of fact or
conclusions that were set forth in the Initial Determination, Notice to
Show Cause or Letter of Findings;
(d) A statement of the grant applicant's or recipient's liability,
and, if appropriate, the extent of that liability;
(e) A description of the corrective or remedial actions that the
grant applicant or recipient must take to come into compliance;
[[Page 61736]]
(f) A notice that if the grant applicant or recipient fails to come
into compliance within 10 days of the date on which it receives the
Final Determination, one or more of the following consequences may
result:
(1) After the grant applicant or recipient is given the opportunity
for a hearing, its WIA Title I funds may be terminated, discontinued,
or withheld in whole or in part, or its application for such funds may
be denied, as appropriate;
(2) The Secretary of Labor may refer the case to the Department of
Justice with a request to file suit against the grant applicant or
recipient; or
(3) the Secretary may take any other action against the grant
applicant or recipient that is provided by law;
(g) A notice of the grant applicant's or recipient's right to
request a hearing under the procedures described in Secs. 37.112
through 37.115; and
(h) A determination of the Governor's liability, if any, under
Sec. 37.52.
Sec. 37.101 Whom must the Director notify of a finding of
noncompliance?
Where a compliance review or complaint investigation results in a
finding of noncompliance, the Director must notify:
(a) The grant applicant or recipient;
(b) The grantmaking agency; and
(c) Tthe Assistant Attorney General.
Breaches of Conciliation Agreements
Sec. 37.102 What happens if a grant applicant or recipient breaches a
Conciliation Agreement?
When it becomes known to the Director that a Conciliation Agreement
has been breached, the Director may issue a Notification of Breach of
Conciliation Agreement.
Sec. 37.103 Whom must the Director notify about a breach of a
Conciliation Agreement?
The Director must send a Notification of Breach of Conciliation
Agreement to the Governor, the grantmaking agency, and/or other
party(ies) to the Conciliation Agreement, as applicable.
Sec. 37.104 What information must a Notification of Breach of
Conciliation Agreement contain?
A Notification of Breach of Conciliation Agreement must:
(a) Specify any efforts made to achieve voluntary compliance, and
indicate that those efforts have been unsuccessful;
(b) Identify the specific provisions of the Conciliation Agreement
violated;
(c) Determine liability for the violation and the extent of the
liability;
(d) Indicate that failure of the violating party to come into
compliance within 10 days of the receipt of the Notification of Breach
of Conciliation Agreement may result, after opportunity for a hearing,
in the termination or denial of the grant, or discontinuation of
assistance, as appropriate, or in referral to the Department of Justice
with a request from the Department to file suit;
(e) Advise the violating party of the right to request a hearing,
and reference the applicable procedures in Section 37.111; and
(f) Include a determination as to the Governor's liability, if any,
in accordance with the provisions of Sec. 37.52.
Sec. 37.105 Whom must the Director notify if enforcement action under
a Notification of Breach of Conciliation Agreement is commenced?
In such circumstances, the Director must notify:
(a) The grantmaking agency; and
(b) The Governor, recipient or grant applicant, as applicable.
Subpart E--Federal Procedures For Effecting Compliance
Sec. 37.110 What enforcement procedures does the Department follow to
effect compliance with the nondiscrimination and equal opportunity
provisions of WIA and this part?
(a) Sanctions; judicial enforcement. If compliance has not been
achieved after issuance of a Final Determination under Secs. 37.99 and
37.100, or a Notification of Breach of Conciliation Agreement under
Secs. 37.102 through 37.105, the Secretary may:
(1) After opportunity for a hearing, suspend, terminate, deny or
discontinue the WIA Title I financial assistance, in whole or in part;
(2) Refer the matter to the Attorney General with a recommendation
that an appropriate civil action be instituted; or
(3) Take such action as may be provided by law.
(b) Deferral of new grants. When proceedings under Sec. 37.111 have
been initiated against a particular recipient, the Department may defer
action on that recipient's applications for new WIA Title I financial
assistance until a Final Decision under Sec. 37.112 has been rendered.
Deferral is not appropriate when WIA Title I financial assistance is
due and payable under a previously approved application.
(1) New WIA Title I financial assistance includes all assistance
for which an application or approval, including renewal or continuation
of existing activities, or authorization of new activities, is required
during the deferral period.
(2) New WIA Title I financial assistance does not include
assistance approved before the beginning of proceedings under
Sec. 37.111, or increases in funding as a result of changed
computations of formula awards.
Sec. 37.111 What hearing procedures does the Department follow?
(a) Notice of opportunity for hearing. As part of a Final
Determination, or a Notification of Breach of a Conciliation Agreement,
the Director must include, and serve on the grant applicant or
recipient (by certified mail, return receipt requested), a notice of
opportunity for hearing.
(b) Complaint; request for hearing; answer. (1) In the case of
noncompliance that cannot be voluntarily resolved, the Final
Determination or Notification of Breach of Conciliation Agreement is
considered the Department's formal complaint.
(2) To request a hearing, the grant applicant or recipient must
file a written answer to the Final Determination or Notification of
Breach of Conciliation Agreement, and a copy of the Final Determination
or Notification of Breach of Conciliation Agreement, with the Office of
the Administrative Law Judges, 800 K Street N.W., Suite 400,
Washington, DC 20001.
(i) The answer must be filed within 30 days of the date of receipt
of the Final Determination or Notification of Breach of Conciliation
Agreement.
(ii) A request for hearing must be set forth in a separate
paragraph of the answer.
(iii) The answer must specifically admit or deny each finding of
fact in the Final Determination or Notification of Breach of
Conciliation Agreement. Where the grant applicant or recipient does not
have knowledge or information sufficient to form a belief, the answer
may so state and the statement will have the effect of a denial.
Findings of fact not denied are considered admitted. The answer must
separately state and identify matters alleged as affirmative defenses,
and must also set forth the matters of fact and law relied on by the
grant applicant or recipient.
(3) The grant applicant or recipient must simultaneously serve a
copy of its filing on the Office of the Solicitor, Civil Rights
Division, Room N-2464, U.S. Department of Labor, 200 Constitution
Avenue N.W., Washington DC 20210.
(4) (i) The failure of a grant applicant or recipient to request a
hearing under this paragraph, or to appear at a hearing for which a
date has been set, waives the right to a hearing; and
(ii) Whenever a hearing is waived, all allegations of fact
contained in the Final Determination or Notification of Breach of
Conciliation Agreement are
[[Page 61737]]
considered admitted, and the Final Determination or Notification of
Breach of Conciliation Agreement becomes the Final Decision of the
Secretary as of the day following the last date by which the grant
applicant or recipient was required to request a hearing or was to
appear at a hearing. See Sec. 37.112(b)(3).
(c) Time and place of hearing. Hearings will be held at a time and
place ordered by the Administrative Law Judge upon reasonable notice to
all parties and, as appropriate, the complainant. In selecting a place
for the hearing, due regard must be given to the convenience of the
parties, their counsel, and witnesses, if any.
(d) Judicial process; evidence. (1) The Administrative Law Judge
may use judicial process to secure the attendance of witnesses and the
production of documents authorized by Section 9 of the Federal Trade
Commission Act (15 U.S.C. 49).
(2) Evidence. In any hearing or administrative review conducted
under this part, evidentiary matters will be governed by the standards
and principles set forth in the Uniform Rules of Evidence issued by the
Department of Labor's Office of Administrative Law Judges, 29 CFR part
18.
Sec. 37.112 What procedures for initial and final decisions does the
Department follow?
(a) Initial Decision. After the hearing, the Administrative Law
Judge must issue an initial decision and order, containing findings of
fact and conclusions of law. The initial decision and order must be
served on all parties by certified mail, return receipt requested.
(b) Exceptions; Final Decision. (1) Final decision after a hearing.
The initial decision and order becomes the Final Decision and Order of
the Secretary unless exceptions are filed by a party or, in the absence
of exceptions, the Secretary serves notice that he or she will review
the decision.
(i) A party dissatisfied with the initial decision and order may,
within 45 days of receipt, file with the Secretary and serve on the
other parties to the proceedings and on the Administrative Law Judge,
exceptions to the initial decision and order or any part thereof.
(ii) Upon receipt of exceptions, the Administrative Law Judge must
index and forward the record and the initial decision and order to the
Secretary within three days of such receipt.
(iii) A party filing exceptions must specifically identify the
finding or conclusion to which exception is taken. Any exception not
specifically urged is waived.
(iv) Within 45 days of the date of filing such exceptions, a reply,
which must be limited to the scope of the exceptions, may be filed and
served by any other party to the proceeding.
(v) Requests for extensions for the filing of exceptions or replies
must be received by the Secretary no later than 3 days before the
exceptions or replies are due.
(vi) If no exceptions are filed, the Secretary may, within 30 days
of the expiration of the time for filing exceptions, on his or her own
motion serve notice on the parties that the Secretary will review the
decision.
(vii) Final Decision and Order.
(A) Where exceptions have been filed, the initial decision and
order of the Administrative Law Judge becomes the Final Decision and
Order of the Secretary unless the Secretary, within 30 days of the
expiration of the time for filing exceptions and replies, has notified
the parties that the case is accepted for review.
(B) Where exceptions have not been filed, the initial decision and
order of the Administrative Law Judge becomes the Final Decision and
Order of the Secretary unless the Secretary has served notice on the
parties that he or she will review the decision, as provided in
paragraph (b)(1)(vi) of this section.
(viii) Any case reviewed by the Secretary under this paragraph must
be decided within 180 days of the notification of such review. If the
Secretary fails to issue a Final Decision and Order within the 180-day
period, the initial decision and order of the Administrative Law Judge
becomes the Final Decision and Order of the Secretary.
(2) Final Decision where a hearing is waived.
(i) If, after issuance of a Final Determination under Sec. 37.100
or Notification of Breach of Conciliation Agreement under Sec. 37.104,
voluntary compliance has not been achieved within the time set by this
part and the opportunity for a hearing has been waived as provided for
in Sec. 37.111(b)(4), the Final Determination or Notification of Breach
of Conciliation Agreement becomes the Final Decision of the Secretary.
(ii) When a Final Determination or Notification of Breach of
Conciliation Agreement becomes the Final Decision of the Secretary, the
Secretary may, within 45 days, issue an order terminating or denying
the grant or continuation of assistance or imposing other appropriate
sanctions for the grant applicant or recipient's failure to comply with
the required corrective and/or remedial actions, or referring the
matter to the Attorney General for further enforcement action.
(3) Final agency action. A Final Decision and Order issued under
Sec. 37.112(b) constitutes final agency action.
Sec. 37.113 What procedure does the Department follow to suspend,
terminate, withhold, deny or discontinue WIA Title I financial
assistance?
Any action to suspend, terminate, deny or discontinue WIA Title I
financial assistance must be limited to the particular political
entity, or part thereof, or other recipient (or grant applicant) as to
which the finding has been made, and must be limited in its effect to
the particular program, or part thereof, in which the noncompliance has
been found. No order suspending, terminating, denying or discontinuing
WIA Title I financial assistance will become effective until:
(a) The Director has issued a Final Determination under Sec. 37.100
or Notification of Breach of Conciliation Agreement under Sec. 37.104;
(b) There has been an express finding on the record, after
opportunity for a hearing, of failure by the grant applicant or
recipient to comply with a requirement imposed by or under the
nondiscrimination and equal opportunity provisions of WIA or this part;
(c) A Final Decision has been issued by the Secretary, the
Administrative Law Judge's decision and order has become the Final
Decision of the Secretary, or the Final Determination or Notification
of Conciliation Agreement has been deemed the Final Decision of the
Secretary, under Sec. 37.112(b); and
(d) The expiration of 30 days after the Secretary has filed, with
the committees of Congress having legislative jurisdiction over the
program involved, a full written report of the circumstances and
grounds for such action.
Sec. 37.114 What procedure does the Department follow to distribute
WIA Title I financial assistance to an alternate recipient?
When the Department withholds funds from a recipient or grant
applicant under these regulations, the Secretary may disburse the
withheld funds directly to an alternate recipient. In such case, the
Secretary will require any alternate recipient to demonstrate:
(a) The ability to comply with these regulations; and
(b) The ability to achieve the goals of the nondiscrimination and
equal opportunity provisions of WIA.
[[Page 61738]]
Sec. 37.115 What procedures does the Department follow for post-
termination proceedings?
(a) A grant applicant or recipient adversely affected by a Final
Decision and Order issued under Sec. 37.112(b) will be restored, where
appropriate, to full eligibility to receive WIA Title I financial
assistance if the grant applicant or recipient satisfies the terms and
conditions of the Final Decision and Order and brings itself into
compliance with the nondiscrimination and equal opportunity provisions
of WIA and this part.
(b) A grant applicant or recipient adversely affected by a Final
Decision and Order issued under Sec. 37.112(b) may at any time petition
the Director to restore its eligibility to receive WIA Title I
financial assistance. A copy of the petition must be served on the
parties to the original proceeding that led to the Final Decision and
Order. The petition must be supported by information showing the
actions taken by the grant applicant or recipient to bring itself into
compliance. The grant applicant or recipient has the burden of
demonstrating that it has satisfied the requirements of paragraph (a)
of this section. While proceedings under this section are pending,
sanctions imposed by the Final Decision and Order under Sec. 37.112(b)
(1) and (2) must remain in effect.
(c) The Director must issue a written decision on the petition for
restoration.
(1) If the Director determines that the grant applicant or
recipient has not brought itself into compliance, he or she must issue
a decision denying the petition.
(2) Within 30 days of its receipt of the Director's decision, the
recipient or grant applicant may file a petition for review of the
decision by the Secretary, setting forth the grounds for its objection
to the Director's decision.
(3) The petition must be served on the Director and on the Office
of the Solicitor, Civil Rights Division.
(4) The Director may file a response to the petition within 14
days.
(5) The Secretary must issue the final agency decision denying or
granting the recipient's or grant applicant's request for restoration
to eligibility.
[FR Doc. 99-28202 Filed 11-10-99; 8:45 am]
BILLING CODE 4510-23-P