# Implementation of the Nondiscrimination and Equal Opportunity Provisions of the Workforce Innovation and Opportunity Act

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2015-17637

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** July 23, 2015
- **Citation:** 80 FR 43872

## Text

DEPARTMENT OF LABOR
Office of the Secretary
29 CFR Part 38
RIN 1291-AA37
Implementation of the Nondiscrimination and Equal Opportunity Provisions of the Workforce Innovation and Opportunity Act

AGENCY:

Office of the Secretary, Labor.

ACTION:

Final rule.

SUMMARY:

The U.S. Department of Labor (Department) is issuing nondiscrimination and equal opportunity regulations to implement Section 188 of the Workforce Innovation and Opportunity Act (WIOA). Under Section 188(e) of WIOA, Congress required the Department to issue regulations implementing Section 188 no later than one year after enactment of WIOA. The Department's publication of this final rule complies with the statutory mandate. This final rule creates a new part in the CFR, which mirrors the regulations published in the CFR in 1999 to implement Section 188 of WIA. The Department has made no substantive changes in this final rule; the changes are technical in nature. This final rule adopts the Department's regulatory scheme for Section 188 of WIA verbatim, with technical revisions to conform to WIOA. Specifically, the Department has: Replaced references to the “Workforce Investment Act of 1998” or “WIA” with “Workforce Innovation and Opportunity Act” or “WIOA” to reflect the proper statutory authority; and updated section numbers in the text of the regulation to reflect its new location.

DATES:

Effective Date:
This final rule is effective July 22, 2015.

FOR FURTHER INFORMATION CONTACT:

Naomi Barry-Perez, Director, Civil Rights Center, U.S. Department of Labor, 200 Constitution Avenue NW., Room N-4123, Washington, DC 20210.
CRC-WIOA@dol.gov,
telephone (202) 693-6500 (VOICE) or (202) 877-8339 (Federal Relay Service—for TTY).

SUPPLEMENTARY INFORMATION:

Executive Summary

On July 22, 2014, President Obama signed the Workforce Innovation and Opportunity Act (WIOA) (Pub. L. 113-128), comprehensive legislation that reforms and modernizes the public workforce system. WIOA reaffirms the role of the public workforce system, and brings together and enhances several key employment, education, and training programs. The statute provides resources, services, and leadership tools for the workforce system to help individuals find good jobs and stay employed and improves employer prospects for success in the global marketplace. WIOA also ensures that the workforce system operates as a comprehensive, integrated and streamlined system to provide pathways to prosperity for those it serves and continuously improves the quality and performance of its services.

As with Section 188 of WIA, the Civil Rights Center (CRC) of the Department is charged with enforcing Section 188 of WIOA, which prohibits exclusion of an individual from participation in, denial of benefits of, discrimination, or denial of employment in the administration of or in connection with any programs and activities funded or otherwise financially assisted in whole or in part under Title I of WIOA because of race, color, religion, sex, national origin, age, disability, political affiliation or belief, and for beneficiaries only, citizenship status, or participation in a program or activity that receives financial assistance under Title I of WIOA. Section 188 of WIOA incorporates the prohibitions against discrimination in programs and activities that receive Federal financial assistance under certain civil rights laws including Title VI of the Civil Rights Act of 1964 (prohibiting discrimination based on race, color, and national origin),
1

Title IX of the Education Amendments of 1972 (prohibiting discrimination based on sex in education and training programs),
2

Age Discrimination Act of 1975 (prohibiting discrimination based on age),
3

and Section 504 of the Rehabilitation Act (prohibiting discrimination based on disability).
4

CRC interprets the nondiscrimination provisions of WIOA consistent with the principles of Title VII of the Civil Rights Act (Title VII),
5

the Americans with Disabilities Act, (ADA)
6

as amended by the Americans with Disabilities Act Amendments Act (ADAAA),
7

and Section 501 of the Rehabilitation Act, as amended,
8

which are enforced by the Equal Employment Opportunity Commission (EEOC); Executive Order 11246, as amended,
9

and Section 503 of the Rehabilitation Act, as amended,
10

which are enforced by the Department's Office of Federal Contract Compliance Programs (OFCCP); Title VI of the Civil Rights Act (Title VI), the Age Discrimination Act 1975, and Section 504 of the Rehabilitation Act, which are enforced by each Federal funding agency; and Title IX of the Education Amendments of 1972 (Title IX), which is enforced by each Federal funding agency that assists an education or training program.

1
42 U.S.C. 2000d
et seq.

2
20 U.S.C. 1681
et seq.

3
42 U.S.C. 6101
et seq.

4
29 U.S.C. 794.

5
42 U.S.C. 2000e
et seq.

6
42 U.S.C. 12101
et seq.

7
42 U.S.C. 12101
et seq.,
Public Law 110-325, section 2(b)(1), 122 Stat. 3553 (2008).

8
29 U.S.C. 791.

9
Executive Order 11246 (30 FR 12319), as amended by Executive Order 11375 (32 FR 14303), Executive Order 12086 (43 FR 46501), Executive Order 13279 (67 FR 77141), Executive Order 13665 (79 FR 20749) and Executive Order 13672 (79 FR 42971).

10
29 U.S.C. 793.

This final rule sets forth the equal opportunity and nondiscrimination requirements and obligations for recipients of financial assistance under Title I of WIOA and the enforcement procedures for implementing the nondiscrimination and equal opportunity provisions of WIOA.
11

Although WIOA did not change the nondiscrimination and equal opportunity provisions in Section 188, Congress mandated that the Department issue regulations to implement the section not later than one year after the date of enactment of WIOA. The regulations are to contain standards for determining discrimination and enforcement procedures, including complaint processes for Section 188 of WIOA.

11
On April 16, 2015, the Departments of Education and Labor published a joint NPRM to implement the provisions of WIOA that affect all of the WIOA core programs (titles I-IV) and which will be jointly administered by both Departments. See 80 FR 20574 (April 16, 2015). In addition, the Departments published separately four agency-specific NPRMs to implement additional provisions of WIOA that are administered separately by the Departments. See 80 FR 20689 (April 16, 2015).

The Department is issuing this final rule to implement Section 188 of WIOA by making technical changes only to its existing regulation implementing WIA,
i.e.,
(1) replicating at part 38 the rule from part 37 (and updating section numbers in the text of the regulation to reflect its new location in part 38), and (2) replacing references to the “Workforce Investment Act of 1998” or “WIA” with “Workforce Innovation and Opportunity Act” or “WIOA” to reflect the proper statutory authority. No other regulatory changes are being made at this time.

The Department recognizes that this final rule does not reflect developments in equal opportunity and nondiscrimination jurisprudence, changes in the practices of recipients

and beneficiaries since 1999 (for example, the routine use of computer- and internet-based systems), and changes in the Department's enforcement procedures and processes. Therefore, the Department will publish a NPRM, with a request for comments, to reflect developments in equal opportunity and nondiscrimination jurisprudence, changes in the practices of recipients and beneficiaries since 1999, and proposed changes in the Department's enforcement procedures and processes. This final rule will apply during the period between July 22, 2015, and issuance of a final rule based on the upcoming NPRM.

Publication as a Final Rule

The Department is promulgating this final rule without notice or an opportunity for public comment because the Administrative Procedure Act (APA) allows an agency to dispense with notice and comment rulemaking when, as here, “the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. 553(b)(B). Notice and comment rulemaking is unnecessary when changes in regulations merely restate the changes in the enabling legislation.
Gray Panthers Advocacy Committee
v.
Sullivan,
936 F.2d 1284, 1291 (D.C. Cir. 1991), citing
Komjathy
v.
National Transportation Safety Board,
832 F.2d 1294, 1296-97 (D.C. Cir. 1987).

The Department for good cause finds that notice and comment rulemaking would be impractical, unnecessary, or contrary to the public interest because (1) this final rule adopts the Department's existing regulatory scheme for WIA Section 188, with technical revisions to conform to WIOA; (2) this final rule imposes no new or substantive requirement on the public or any entity; and (3) the Department is required by statute to publish this final rule, and lacks the discretion not to do so. The Department has promulgated final rules without notice or comment rulemaking in similar situations. See,
e.g., Implementation of Executive Order 13672 Prohibiting Discrimination Based on Sexual Orientation and Gender Identity by Contractors and Subcontractors,
79 FR 72985 (Dec. 9, 2014) (amending rule to conform to changes in Executive Order 11246, as amended by E.O. 13672 by replacing the words “sex, or national origin” with the words “sex, sexual orientation, gender identity, or national origin”);
Affirmative Action Obligations of Government Contractors, Executive Order 11246, as Amended; Exemption for Religious Entities; Final Rule;
68 FR 56392 (Sept. 30, 2003) (amending rule to conform to changes in Executive Order 11246, as amended by E.O.13279, by restating the religious exemption as a new provision in its regulations); and
Obligations of Contractors and Subcontractors; Miscellaneous Amendments; Final Rule;
34 FR 744 (Jan. 17, 1969) (adding “sex” as basis for prohibited discrimination and replacing “creed” with “religion”).

Sections Revised

This final rule makes only technical revisions to the text adopted from 29 CFR part 37. The primary change is to replace statutory references to “Workforce Investment Act” and “WIA” with “Workforce Innovation and Opportunity Act” and “WIOA”. In replicating the complete text of part 37, 29 CFR as a new part 38, 29 CFR, this final rule also makes corresponding corrections to section numbers within the text of the regulation. No other revisions have been made.

Regulatory Procedures

Executive Orders 12866 and 13563

Executive Order 12866 (Regulatory Planning and Review) and Executive Order 13563 (Improving Regulation and Regulatory Review) direct agencies to assess all costs and benefits of available regulatory alternatives, including the alternative of not regulating, and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health, and safety effects, distributive impacts, and equity, dignity, and fairness concerns). The OMB determines whether a regulatory action is significant and, therefore, subject to review.

Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as any action that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising from legal mandates, the President's priorities, or the principles set forth in Executive Order 12866.

This final rule is not a “significant regulatory action” under Section 3(f)(4) of Executive Order 12866, thus, OMB has not reviewed the rule.

The Need for Regulation

Section 188(e) of WIOA requires that the Department issue regulations implementing Section 188, within a year of enactment, on July 22, 2015.

Congress directed the Department to issue regulations implementing Section 188 of WIOA. Thus, publication of a revised rule is required, and no less burdensome alternatives exist.

Alternatives in Light of the Required Publication of Proposed Regulations

The Department considered two possible rulemaking alternatives: (1) To publish a final rule as 29 CFR part 38 implementing Section 188 of WIOA with only technical updates as compared to the regulations at 29 CFR part 37, which implements Section 188 of WIA; or (2) To publish an final rule with only technical updates (effective immediately) and a NPRM. The final rule would remain in force until issuance of a revised final rule based on the NPRM. The NPRM would propose updating part 38 consistent with current law and address its application to current workforce development and workplace practices and issues.

The Department has considered these options in accordance with the provisions of Executive Order 12866 and has chosen to publish this final rule containing only technical revisions and a NPRM shortly thereafter (
i.e.,
alternative 2). The Department believes that the current rule does not reflect recent developments in equal opportunity and nondiscrimination jurisprudence. Moreover, procedures and processes for enforcement of the nondiscrimination and equal opportunity provisions of WIA Section 188 have not been revised to reflect changes in the practices of recipients since 1999, including the use of computer-based and internet-based systems to provide aid, benefit, service, and training through WIOA Title I financially-assisted programs and activities. Thus, only adopting the language of the existing regulations with technical updates (
i.e.,
alternative 1) would have the negative effect of continuing to require recipients to comply with legal standards that do not take into account recent developments in the law.

Cost Analysis

The expected costs resulting from this final rule are minimal, and consist only of regulatory familiarization and notice. The Department believes that the cost of both regulatory familiarization and notice will be minimal given that the only changes to the regulation are conforming amendments to properly reflect new legislative authority. This final rule substitutes statutory references to “Workforce Investment Act” with “Workforce Innovation and Opportunity”, and “WIA” with “WIOA,” wherever they appear in the current regulations. This final rule also adopts the complete text of part 37, 29 CFR as a new part 38, 29 CFR (and makes corresponding corrections to sections number within the text of the regulation). No other revisions have been made.

Cost of Regulatory Familiarization

Table 1 presents the estimated number of recipients expected to experience the burden of regulatory familiarization for this rule. The estimate may be over-inclusive because several recipients are likely counted more than once under different categories because they receive more than one source of WIOA Title I financial assistance. For example, the Texas Workforce Commission is both a recipient of a Senior Community Service Employment Program Grant as well as an Adult WIOA Title I grantee However, the Department decided to include them in both the “States” category of recipient and under a “National Programs” category to avoid the risk of being under-inclusive in the calculations. At the same time, there are entities that local workforce boards may include in the One-Stop delivery system, and thus, may be recipients if they become partners. These optional partners include the Supplemental Nutritional Assistance Program employment and training program, Ticket-to-Work and the Self-Sufficiency Program of the Social Security Administration. Since the Department has no way of knowing how many of these programs have been included in different One-Stop delivery systems, we are unable to include them in our estimate of the total number of recipients.

12
The 56 State entities are the recipients for the subset of programs below.

Table 1—Estimated Annual Number of Recipients

Recipients

Estimated
annual
number of
recipients

States
12

56

Adult Program (Title I of WIOA).

Dislocated Worker Program (Title I of WIOA).

Youth Program (Title I of WIOA).

Wagner-Peyser Act Program (Wagner-Peyser Act, as amended by title III of WIOA).

Adult Education and Literacy Program (Title II) of WIOA.

Vocational Rehabilitation Program.

Trade Adjustment Assistance Program.

Unemployment Compensation Program.

Local Veterans' Employment Representatives and Disabled Veterans' Outreach Program.

Career and Technical Education (Perkins).

Community Service Block Grants.

Temporary Assistance for Needy Families (TANF)

State and Local Workforce Investment Boards
580

Job Corps Operators (i.e. national contractors)
18

Job Corps Outreach and Admissions Operators
24

Job Corps national training contractors/Career Transition Services Operators
21

Service providers, including eligible training providers and on-the-job training employers
13

11,400

One Stop Career Centers
14

2,481

National Programs Include:

Senior Community Service Employment Grants
71

National Emergency Grants
15

125

Reintegration of Ex-Offenders—Adult Grants
16

28

H-1B Technical Skills Training Grants
17

36

H-1B Jobs and Innovation Accelerator Challenge Grants
18

30

Indian and Native American Programs
178

National Farmworker Jobs Program
69

YouthBuild
82

Registered Apprenticeship Program
19,259

Total
34,458

Table 2,

below, presents the compensation rate for the occupational category expected to experience an increase in level of effort (workload) due to the rule. The Department used mean hourly wage rates from the Bureau of Labor Statistics' Occupational Employment Statistics (OES) program for private, State and local employees. The Department adjusted the wage rate using a loaded wage factor to reflect total compensation, which includes

health and retirement benefits. For these State and local sectors, the Department used a loaded wage factor of 1.55, which represents the ratio of total compensation to wages.

13
PY 2012 estimated, see
http://www.doleta.gov/performance/results/pdf/PY2012WIATrends.pdf
.

14
PY 2012 see
http://www.doleta.gov/performance/results/pdf/PY2012WIATrends.pdf
.

15
PY 2012 see
http://www.doleta.gov/performance/results/pdf/PY2012WIATrends.pdf
.

16
PY 2011 announcement, see
http://www.doleta.gov/grants/pdf/sga_dfa_py_11_02_final_1_11_2012.pdf
.

17
PY 2011,
http://www.doleta.gov/business/pdf/H-1B_TST_R1-R2_Grant_Summaries_Final.pdf
.

18
2011,
http://manufacturing.gov/docs/2011-jobs-accelerator-overviews.pdf.

The Department then multiplied the loaded wage factor by the occupational category's wage rate to calculate an hourly compensation rate. Throughout this analysis, the Department assumes Equal Opportunity Officers, at both the state and local level, are managers. This assumption is based upon the Civil Rights Center's (CRC) experience with recipients.

Table 2—Calculation of Hourly Compensation Rates

Position

Mean hourly
wage

Loaded wage
factor

Hourly
compensation
rate

A
B
C = A × B

Managers
19

$56.35
1.55
$87.34

Agencies are

required to include in the burden analysis the estimated time it takes for recipients to review and understand the instructions for compliance with this final rule. Based on its experience with recipients' compliance with the laws the CRC enforces and the mandate of the regulations that each recipient have an Equal Opportunity (E.O.) Officer, CRC believes that E.O. Officers at each recipient will be responsible for understanding or becoming familiar with this final rule. The Department estimates that it will take thirty minutes for the E.O. Officer at each recipient to read and become familiar with this final rule. The estimated burden for rule familiarization for these managers is 17,229 hours (34,458 recipients × .5 hours). The Department calculates a one-time total estimated cost as $1,504,781 (17,229 hours × $87.34/hour).
20

19
BLS OES, May 2014, 11-1021 General and Operations Managers (
http://www.bls.gov/oes/current/oes111021.htm
).

20
Although DOL believes there may be others that need to familiarize themselves with this rule, this cost may nonetheless be overstated. DOL included all recipients as having E.O. Officers who are managers when the rule (29 CFR part 38) excepts small recipients from this requirement and recipients who do have E.O. Officers may have compensation rates lower than the estimate.

Cost of Notice

The final rule proposes limited changes to the specific language provided by the Department for recipients to use in the equal opportunity notice in § 38.30 that they are required to publish under § 38.31. The final rule requires recipients to substitute five references to WIA and the Workforce Investment Act of 1998 with WIOA and the Workforce Innovation and Opportunity Act in the notice.

Based upon its experience with recipients, the Department assumes the E.O. Officer at each recipient will be responsible for printing out revised notices with changes to the text of the language for the notice. The Department estimates that it would take each of them approximately 15 minutes to ensure that revised notices are printed. Dissemination includes posting the notices prominently which the Department estimates that it would take each E.O. Officer approximately an additional 15 minutes. Consequently, the estimated burden for updating the notice (
i.e.
printing revisions of, and disseminating the posters) is 17,229 hours (34,458 recipients × .5 hours). The Department calculated the total estimated first year updating and dissemination cost for the E.O. Officers as $1,504,781 (17,229 hours × $87.34/hour). The Department also calculated that each E.O. Officer will make thirty copies of the notice at $.08 each for posting in his or her establishment for a first year operational and maintenance cost of $82,699 (34,458 recipients × $.08 a copy × 30 copies). This assumes 10 copies in each English and two additional languages.

Thus the total estimated cost posed by this final rule is $3,092,261: ($1,504,781 for familiarization + $1,504.781 for updating + $82,699 for operation and maintenance).

The final rule does not pose any additional burden. It does not modify existing or create new reporting requirements, record-keeping requirements, prohibitions against discriminatory conduct, or administrative requirements. It does not modify existing, or create new, enforcement procedures. In other words, the regulated community is already subject to the requirements of this final rule, and will therefore already be aware of the requirements to be in compliance with this rule. Therefore, the final rule would not create significant new costs or burdens for Governors, recipients, or beneficiaries.

Additional Significant Regulatory Action Analysis

In addition to cost, the Department must consider the three additional factors identified above when determining whether or not this final rule is a significant regulatory action. First, the Department has determined that the final rule creates no inconsistency or interference with an action taken or planned by another agency—the Department, which is responsible for enforcing Section 188 of WIOA, is publishing a final rule with technical corrections to implement the statute as directed by Congress. Because the Department is the agency responsible for enforcing Section 188, the regulations create no inconsistency or interference with any other agency.

Second, the Department has determined that the final rule does not materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof because the final rule is simply a revision of an existing rule to reflect the proper name of the governing legislation. Finally, the Department has determined that publication of this final rule raises no novel legal or policy issues arising from legal mandates, the President's priorities, or the principles set forth in E.O. 12866 because this final rule contains no new obligations, mandates, priorities or principles; it simply removes the name of a superseded statute and inserts the name of the current governing law.

Regulatory Flexibility Act and Executive Order 13272 (Consideration of Small Entities)

Because a notice of proposed rulemaking is not required for the rule under 5 U.S.C. 553(b)(B), the requirements of the Regulatory Flexibility Act and Executive Order 13272, pertaining to regulatory flexibility analysis, do not apply to this rule. See 5 U.S.C. 601(2), 603(a). Accordingly, the Department has not prepared a regulatory flexibility analysis.

Paperwork Reduction Act of 1995

The purposes of the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501
et seq.,
include minimizing the paperwork burden on affected entities. The Department notes that a Federal agency generally cannot conduct or sponsor a collection of information and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
See
44 U.S.C. 3512; 5 CFR 1320.5(a) and 1320.6.

The Department has identified the following sections containing information collections: 29 CFR 38.20, 38.22, 38.25, 38.29 through 38.40, 38.42, 38.53 through 38.55, 38.70 through 38.74, and 38.77 through 38.80.

The Department submitted an information collection request associated with this rulemaking for OMB approval. The OMB approved the request via a Notice of Action dated July 20, 2015. Control number 1225-0077 has been assigned to the information collection requirements in this rule.

The information collections are summarized as follows:

Agency:
DOL-OASAM.

Title of Collection:
Nondiscrimination Compliance Information Reporting.

OMB Control Number:
1225-0077.

Affected Public:
Individuals or Households; State, Local, and Tribal Governments; and Private Sector—businesses or other for profits and not-for-profit institutions.

Total Estimated Number of Respondents:
10,006 respondents (a single respondent could be the recipient of multiple grants).

Total Estimated Number of Responses:
15,502,436.

Total Estimated Annual Time Burden:
88,553 hours.

Total Estimated Annual Other Costs Burden:
$0.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of the United States-based companies to compete with foreign-based companies in domestic and export markets.

Unfunded Mandates Reform Act of 1995

This rule will not include any increased expenditures by State, local, and tribal governments in the aggregate of $100 million or more, or increased expenditures by the private sector of $100 million or more.

Executive Order 13132 (Federalism)

The Department has reviewed this final rule in accordance with Executive Order 13132 regarding federalism, and has determined that it does not have “federalism implications.” This final rule will not “have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

Executive Order 13175 (Indian Tribal Governments)

This final rule does not have tribal implications under Executive Order 13175 that would require a tribal summary impact statement. The rule would not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.

Effects on Families

The undersigned hereby certifies that the rule would not adversely affect the well-being of families, as discussed under section 654 of the Treasury and General government Appropriation Act, 1999. To the contrary, by ensuring that customers, including job seekers and applicants for unemployment insurance, do not suffer illegal discrimination in accessing DOL financially-assisted programs, services, and activities, the final rule would have a positive effect on the economic well-being of families.

Executive Order 13045 (Protection of Children)

This rule would have no environmental health risk or safety risk that may disproportionately affect children.

Environmental Impact Assessment

A review of this rule in accordance with the requirements of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321
et seq.;
the regulations of the Council on Environmental Quality, 40 CFR part 1500
et seq.;
and DOL NEPA procedures, 29 CFR part 11, indicates the rule would not have a significant impact on the quality of the human environment. There is, thus, no corresponding environmental assessment or an environmental impact statement.

Executive Order 13211 (Energy Supply)

This rule is not subject to Executive Order 13211. It will not have a significant adverse effect on the supply, distribution, or use of energy.

Executive Order 12630 (Constitutionally Protected Property Rights)

This rule is not subject to Executive Order 12630 because it does not involve implementation of a policy that has takings implications or that could impose limitations on private property use.

Executive Order 12988 (Civil Justice Reform Analysis)

This rule was drafted and reviewed in accordance with Executive Order 12988 and will not unduly burden the Federal court system. The rule was: (1) Reviewed to eliminate drafting errors and ambiguities; (2) written to minimize litigation; and (3) written to provide a clear legal standard for affected conduct and to promote burden reduction.

List of Subjects in 29 CFR Part 38

Civil rights, Discrimination in employment, Equal opportunity, Nondiscrimination, Workforce development.

Thomas E. Perez,
Secretary of Labor.

Accordingly, under authority of Section 188 of WIOA and for the reasons set forth in the preamble, the Department amends title 29 of the Code of Federal Regulations, by adding part 38 as follows:

PART 38—IMPLEMENTATION OF THE NONDISCRIMINATION AND EQUAL OPPORTUNITY PROVISIONS OF THE WORKFORCE INNOVATION AND OPPORTUNITY ACT

Sec.
38.0
Paperwork Reduction Act approvals.

Subpart A—General Provisions

38.1
What is the purpose of this part?
38.2
To whom does this part apply, and what is the scope of this part?
38.3
How does this part affect a recipient's other obligations?
38.4
What definitions apply to this part?
38.5
What forms of discrimination are prohibited by this part?
38.6

What specific discriminatory actions, based on prohibited grounds other than

disability, are prohibited by this part, and what limitations are there related to religious activities?

38.7
What specific discriminatory actions based on disability are prohibited by this part?
38.8
What are a recipient's responsibilities regarding reasonable accommodation and reasonable modification for individuals with disabilities?
38.9
What are a recipient's responsibilities to communicate with individuals with disabilities?
38.10
To what extent are employment practices covered by this part?
38.11
To what extent are intimidation and retaliation prohibited by this part?
38.12
What Department of Labor office is responsible for administering this part?
38.13
Who is responsible for providing interpretations of this part?
38.14
Under what circumstances may the Secretary delegate the responsibilities of this part?
38.15
What are the Director's responsibilities to coordinate with other civil rights agencies?
38.16
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

38.20
What is a grant applicant's obligation to provide a written assurance?
38.21
How long will the recipient's obligation under the assurance last, and how broad is the obligation?
38.22
How must covenants be used in connection with this part?
Equal Opportunity Officers

38.23
Who must designate an Equal Opportunity Officer?
38.24
Who is eligible to serve as an Equal Opportunity Officer?
38.25
What are the responsibilities of an Equal Opportunity Officer?
38.26
What are a recipient's obligations relating to the Equal Opportunity Officer?
38.27
What are the obligations of small recipients regarding Equal Opportunity Officers?
38.28
What are the obligations of service providers regarding Equal Opportunity Officers?
Notice and Communication

38.29
What are a recipient's obligations to disseminate its equal opportunity policy?
38.30
What specific wording must the notice contain?
38.31
Where must the notice required by §§ 38.29 and 38.30 be published?
38.32
When must the notice required by §§ 38.29 and 38.30 be provided?
38.33
Who is responsible for meeting the notice requirement with respect to service providers?
38.34
What type of notice must a recipient include in publications, broadcasts, and other communications?
38.35
What are a recipient's responsibilities to provide services and information in languages other than English?
38.36
What responsibilities does a recipient have to communicate information during orientations?
Data and Information Collection and Maintenance

38.37
What are a recipient's responsibilities to collect and maintain data and other information?
38.38
What information must grant applicants and recipients provide to CRC?
38.39
How long must grant applicants and recipients maintain the records required under this part?
38.40
What access to sources of information must grant applicants and recipients provide the Director?
38.41
What responsibilities do grant applicants, recipients, and the Department have to maintain the confidentiality of the information collected?
38.42
What are a recipient's responsibilities under this part to provide universal access to WIOA Title I-financially assisted programs and activities?

Subpart C—Governor's Responsibilities to Implement the Nondiscrimination and Equal Opportunity Requirements of WIOA

38.50
To whom does this subpart apply?
38.51
What are a Governor's oversight responsibilities?
38.52
To what extent may a Governor be liable for the actions of a recipient he or she has financially assisted under WIOA Title I?
38.53
What are a Governor's oversight responsibilities regarding recipients' recordkeeping?
38.54
What are a Governor's obligations to develop and maintain a Methods of Administration?
38.55
When must the Governor carry out his or her obligations with regard to the Methods of Administration?

Subpart D—Compliance Procedures

38.60
How does the Director evaluate compliance with the nondiscrimination and equal opportunity provisions of WIOA and this part?
38.61
Is there authority to issue subpoenas?
Compliance Reviews

38.62
What are the authority and procedures for conducting pre-approval compliance reviews?
38.63
What are the authority and procedures for conducting post-approval compliance reviews?
38.64
What procedures must the Director follow when CRC has completed a post-approval compliance review?
38.65
What is the Director's authority to monitor the activities of a Governor?
38.66
What happens if a recipient fails to submit requested data, records, and/or information, or fails to provide CRC with the required access?
38.67
What information must a Notice to Show Cause contain?
38.68
How may a recipient show cause why enforcement proceedings should not be instituted?
38.69
What happens if a recipient fails to show cause?
Complaint Processing Procedures

38.70
Who may file a complaint concerning discrimination connected with WIOA Title I?
38.71
Where may a complaint be filed?
38.72
When must a complaint be filed?
38.73
What information must a complaint contain?
38.74
Are there any forms that a complainant may use to file a complaint?
38.75
Is there a right of representation in the complaint process?
38.76
What are the required elements of a recipient's discrimination complaint processing procedures?
38.77
Who is responsible for developing and publishing complaint processing procedures for service providers?
38.78
Does a recipient have any special obligations in cases in which the recipient determines that it has no jurisdiction over a complaint?
38.79
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?
38.80
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?
38.81
Are there any circumstances under which the Director may extend the time limit for filing a complaint with him or her?
38.82
Does the Director accept every complaint for resolution?
38.83
What happens if a complaint does not contain enough information?
38.84
What happens if CRC does not have jurisdiction over a complaint?
38.85
Are there any other circumstances in which the Director will send a complaint to another authority?
38.86
What must the Director do if he or she determines that a complaint will not be accepted?
38.87
What must the Director do if he or she determines that a complaint will be accepted?
38.88
Who may contact CRC about a complaint?
38.89
May the Director offer the parties to a complaint the option of mediation?
Determinations

38.90
If a complaint is investigated, what must the Director do when the investigation is completed?
38.91
What notice must the Director issue if he or she finds reasonable cause to believe that a violation has taken place?
38.92
What notice must the Director issue if he or she finds no reasonable cause to believe that a violation has taken place?
38.93

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?

38.94
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 WIOA or this part?
38.95
What procedures apply if the Director finds that a recipient has violated the nondiscrimination and equal opportunity provisions of WIOA or this part?
38.96
What are the required elements of a written assurance?
38.97
What are the required elements of a Conciliation Agreement?
38.98
When will the Director conclude that compliance cannot be secured by voluntary means?
38.99
If the Director concludes that compliance cannot be secured by voluntary means, what actions must he or she take?
38.100
What information must a Final Determination contain?
38.101
Whom must the Director notify of a finding of noncompliance?
Breaches of Conciliation Agreements

38.102
What happens if a grant applicant or recipient breaches a Conciliation Agreement?
38.103
Whom must the Director notify about a breach of a Conciliation Agreement?
38.104
What information must a Notification of Breach of Conciliation Agreement contain?
38.105
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

38.110
What enforcement procedures does the Department follow to effect compliance with the nondiscrimination and equal opportunity provisions of WIOA and this part?
38.111
What hearing procedures does the Department follow?
38.112
What procedures for initial and final decisions does the Department follow?
38.113
What procedure does the Department follow to suspend, terminate, withhold, deny or discontinue WIOA Title I financial assistance?
38.114
What procedure does the Department follow to distribute WIOA Title I financial assistance to an alternate recipient?
38.115
What procedures does the Department follow for post-termination proceedings?

Authority:

29 U.S.C. 3101
et seq.,
29 U.S.C. 3174(b), 29 U.S.C. 3181, 29 U.S.C. 3243, 29 U.S.C. 3245(c)(2), 29 U.S.C. 3245(d)(1)(E), 29 U.S.C. 3246, 29 U.S.C. 3247, and 29 U.S.C. 3248; 42 U.S.C. 2000d,
et seq.;
29 U.S.C. 794; 42 U.S.C. 6101; and 20 U.S.C. 1681.

Subpart A—General Provisions

§ 38.0
Paperwork Reduction Act approval.

The following sections of this part contain collections of information that are subject to approval by the Office of Management and Budget under control number 1225-0077: §§ 38.20, 38.22, 38.25, 38.29 through 38.40, 38.42, 38.53 through 38.55, 38.70 through 38.74, and 38.77 through 38.80. The approval status of the information collections is available at
http://www.reginfo.gov/public/do/PRAMain
.

§ 38.1
What is the purpose of this part?
The purpose of this part is to implement the nondiscrimination and equal opportunity provisions of the Workforce Innovation and Opportunity Act (WIOA), which are contained in section 188 of WIOA. 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 WIOA Title I-financially assisted program or activity. This part clarifies the application of the nondiscrimination and equal opportunity provisions of WIOA and provides uniform procedures for implementing them.

§ 38.2
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 § 38.4;

(2) Programs and activities that are part of the One-Stop delivery system and that are operated by One-Stop partners listed in section 121(b) of WIOA, to the extent that the programs and activities are being conducted as part of the One-Stop delivery system; and

(3) The employment practices of a recipient and/or One-Stop partner, as provided in § 38.10.

(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 WIOA, and that are not part of the One-Stop delivery system (including programs or activities implemented under, authorized by, and/or financially assisted by the Department under, 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.

§ 38.3
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.

§ 38.4
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 WIOA and this part.

Aid, benefits, services, or training.
(1) The term “aid, benefits, service, or training” means WIOA 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:

(i) Core and intensive services;

(ii) Education or training;

(iii) Health, welfare, housing, social service, rehabilitation, or other supportive services;

(iv) Work opportunities; and

(v) Cash, loans, or other financial assistance to individuals.

(2) As used in this part, the term includes any aid, benefits, services, or training provided in or through a facility that has been constructed, expanded, altered, leased, rented, or otherwise obtained, in whole or in part, with Federal financial assistance under Title I of WIOA.

Applicant
means an individual who is interested in being considered for WIOA 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 WIOA 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 WIOA 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 WIOA Title I—financially assisted aid, benefits, services, or training from a recipient.

Assistant Attorney General
means the Assistant Attorney General, Civil Rights 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 WIOA 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 WIOA 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:

(i) Transfers or leases of property for less than fair market value or for reduced consideration;

(ii) Proceeds from a subsequent sale, transfer, or lease of such property, if the grantmaking agency's share of the fair market value of the property is not returned to the grantmaking agency; and

(iii) The sale, lease, or license of, and/or the permission to use (other than on a casual or transient basis), such property or any interest in such property, either:

(A) Without consideration;

(B) At a nominal consideration; or

(C) At a consideration that is reduced or waived either for the purpose of assisting the recipient, or in recognition of the public interest to be served by such sale or lease to or use by the recipient;

(4) Waiver of charges that would normally be made for the furnishing of services by the grantmaking agency; and

(5) Any other agreement, arrangement, contract or subcontract (other than a procurement contract or a contract of insurance or guaranty), or other instrument that has as one of its purposes the provision of assistance or benefits under the statute or policy that authorizes assistance by the grantmaking agency.

Financial assistance under Title I of WIOA
means any of the following, when authorized or extended under WIOA Title I:

(1) Any grant, subgrant, loan, or advance of Federal funds, including funds extended to any entity for payment to or on behalf of participants admitted to that 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:

(i) Transfers or leases of property for less than fair market value or for reduced consideration;

(ii) Proceeds from a subsequent sale, transfer, or lease of such property, if the Federal share of the fair market value of the property is not returned to the Federal Government; and

(iii) The sale, lease, or license of, and/or the permission to use (other than on a casual or transient basis), such property or any interest in such property, either:

(A) Without consideration;

(B) At a nominal consideration; or

(C) At a consideration that is reduced or waived either for the purpose of assisting the recipient, or in recognition of the public interest to be served by such sale or lease to or use by the recipient;

(4) Waiver of charges that would normally be made for the furnishing of Government services; and

(5) Any other agreement, arrangement, contract or subcontract (other than a Federal procurement contract or a contract of insurance or guaranty), or other instrument that has as one of its purposes the provision of assistance or benefits under WIOA Title I.

Fundamental alteration
means:

(1) A change in the essential nature of a program or activity as defined in this part, including but not limited to an aid, service, benefit, or training; or

(2) A cost that a recipient can demonstrate would result in an undue burden. Factors to be considered in making the determination whether the cost of a modification would result in such a burden include:

(i) The nature and net cost of the modification needed, taking into consideration the availability of tax credits and deductions, and/or outside financial assistance, for the modification;

(ii) The overall financial resources of the facility or facilities involved in the provision of the modification, including:

(A) The number of persons aided, benefited, served, or trained by, or employed at, the facility or facilities; and

(B) The effect the modification would have on the expenses and resources of the facility or facilities;

(iii) The overall financial resources of the recipient, including:

(A) The overall size of the recipient;

(B) The number of persons aided, benefited, served, trained, or employed by the recipient; and

(C) The number, type and location of the recipient's facilities;

(iv) The type of operation or operations of the recipient, including:

(A) The geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the recipient; and

(B) Where the modification sought is employment-related, the composition, structure and functions of the recipient's workforce; and

(v) The impact of the modification upon the operation of the facility or facilities, including:

(A) The impact on the ability of other participants to receive aid, benefits, services, or training, or of other employees to perform their duties; and

(B) 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 WIOA.

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 WIOA or this part for a recipient to adopt or administer reasonable policies or procedures, including but not limited to drug testing, designed to ensure that an individual described in paragraph (1)(i) or (ii) of this definition is no longer engaging in the illegal use of drugs.

(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.

LWIOA (Local Workforce Investment Area) grant recipient
means the entity that receives WIOA Title I financial assistance for a Local Workforce Investment Area directly from the Governor and disburses those funds for Workforce Innovation and Opportunity Act activities.

Methods of Administration
means the written document and supporting documentation developed under § 38.54.

National Programs
means:

(1) Job Corps; and

(2) Programs receiving Federal funds under Title I, Subtitle D of WIOA 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 WIOA 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 WIOA. “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 WIOA.

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 WIOA 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 “WIOA 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 WIOA 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 WIOA 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 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.
The term “recipient” means:

(1) Any entity to which financial assistance under WIOA 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 WIOA 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 WIOA Title I (rather than disbursing the funds to another recipient), the Governor is also a recipient. “Recipient” includes, but is not limited to:

(i) State-level agencies that administer, or are financed in whole or in part with, WIOA Title I funds;

(ii) State Employment Security Agencies;

(iii) State and local Workforce Investment Boards;

(iv) LWIOA grant recipients;

(v) One-Stop operators;

(vi) Service providers, including eligible training providers;

(vii) On-the-Job Training (OJT) employers;

(viii) Job Corps contractors and center operators, excluding the operators of federally-operated Job Corps centers;

(ix) Job Corps national training contractors;

(x) Outreach and admissions agencies, including Job Corps contractors that perform these functions;

(xi) Placement agencies, including Job Corps contractors that perform these functions; and

(xii) Other National Program recipients.

(2) In addition, for purposes of this part, One-Stop partners, as defined in section 121(b) of WIOA, are treated as “recipients,” and are subject to the nondiscrimination and equal opportunity requirements of this part, to the extent that they participate in the One-Stop delivery system.

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 WIOA 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:

(i) Any WIOA Title I—funded program or activity that receives financial assistance from or through any State or LWIOA grant recipient; or

(ii) Any participant through that participant's Individual Training Account (ITA); or

(2) Any entity that is selected and/or certified as an eligible provider of training services to participants.

Small recipient
means a recipient who:

(1) Serves a total of fewer than 15 beneficiaries during the entire grant year; and

(2) Employs fewer than 15 employees on any given day during the grant year.

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.
The term “State programs” means:

(1) Programs financially assisted in whole or in part under Title I of WIOA in which either:

(i) The Governor and/or State receives and disburses the grant to or through LWIOA grant recipients; or

(ii) The Governor retains the grant funds and operates the programs, either directly or through a State agency.

(2) “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 WIOA Title I-financially assisted programs and activities, as consistent with the provisions of WIOA.

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) of this definition.

(ii) Factors to be considered in determining whether an accommodation would impose an undue hardship on a recipient include:

(A) The nature and net cost of the accommodation needed, taking into consideration the availability of tax credits and deductions, and/or outside funding, for the accommodation;

(B) The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, including:

(
1
) The number of persons aided, benefited, served, or trained by, or employed at, the facility or facilities, and

(
2
) The effect the accommodation would have on the expenses and resources of the facility or facilities;

(C) The overall financial resources of the recipient, including:

(
1
) The overall size of the recipient;

(
2
) The number of persons aided, benefited, served, trained, or employed by the recipient; and

(
3
) The number, type and location of the recipient's facilities;

(D) The type of operation or operations of the recipient, including:

(
1
) The geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the recipient; and

(
2
) Where the individual is seeking an employment-related accommodation, the composition, structure and functions of the recipient's workforce; and

(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).

WIOA
means the Workforce Innovation and Opportunity Act, Public Law 113-128.

WIOA Title I financial assistance
See the definition of “Federal financial assistance under Title I of WIOA” in this section.

WIOA 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 WIOA, 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 WIOA Title I; or

(3) Aid, benefits, services, or training provided with the aid of any non-WIOA 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 WIOA Title I financial assistance.
See
the definition of “aid, benefits, services, or training” in this section.

§ 38.5
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 WIOA Title I—financially assisted program or activity, be excluded from participation in, denied the benefits of, subjected to discrimination under, or denied employment in the administration of or in connection with any WIOA Title I—funded program or activity.

§ 38.6
What specific discriminatory actions, based on prohibited grounds other than disability, are prohibited by this part, and what limitations are there related to religious activities?
(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 WIOA 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 WIOA 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 WIOA 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 WIOA 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 WIOA 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 WIOA Title I—funded program or activity;

(6) Deny or limit an individual with respect to any opportunity to participate in a WIOA 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 WIOA 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 WIOA 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 WIOA 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 WIOA 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 § 38.4.

(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 WIOA Title I—funded program or activity; or

(B) the nondiscrimination and equal opportunity provisions of WIOA or this part.

(2) The determinations to which this paragraph (d) applies include, but are not limited to:

(i) The types of aid, benefits, services, training, or facilities that will be provided under any WIOA 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 WIOA 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;

(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 WIOA Title I—financially assisted program or activity;

(ii) Denying them the benefits of such a program or activity; or

(iii) Subjecting them to discrimination; or

(2) Defeating or substantially impairing the accomplishment of the objectives of either:

(i) The WIOA Title I—financially assisted program or activity; or

(ii) The nondiscrimination and equal opportunity provisions of WIOA or this part.

(f)(1) 29 CFR part 2, subpart D, governs the circumstances under which DOL support, including WIOA Title I financial assistance, may be used to employ or train participants in religious activities. Under that subpart, such assistance may be used for such employment or training only when the assistance is provided indirectly within the meaning of the Establishment Clause of the U.S. Constitution, and not when the assistance is provided directly. As explained in that subpart, assistance provided through an Individual Training Account is generally considered indirect, and other mechanisms may also be considered indirect.
See also
20 CFR 667.266 and 667.275. 29 CFR part 2, subpart D, also contains requirements related to equal treatment of religious organizations in Department of Labor programs, and to protection of religious liberty for Department of Labor social service providers and beneficiaries.

(2) Except under the circumstances described in paragraph (f)(3) of this section, a recipient must not employ participants to carry out the construction, operation, or maintenance of any part of any facility that is used, or to be used, for religious instruction or as a place for religious worship.

(3) A recipient may employ participants to carry out the maintenance of a facility that is not primarily or inherently devoted to religious instruction or religious worship if the organization operating the facility is part of a program or activity providing services to participants.

(g) The exclusion of an individual from programs or activities limited by Federal statute or Executive Order to a certain class or classes of individuals of which the individual in question is not a member is not prohibited by this part.

§ 38.7
What specific discriminatory actions based on disability are prohibited by this part?
(a) In providing any aid, benefits, services, or training under a WIOA Title I—financially assisted program or activity, a recipient must not, directly or through contractual, licensing, or other arrangements, on the 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 WIOA Title I—financially assisted programs or activities despite the existence of permissibly separate or different programs or activities.

(d) A recipient must administer WIOA Title I—financially assisted programs and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.

(e) A recipient must not, directly or through contractual, licensing, or other arrangements, use standards, procedures, criteria, or administrative methods:

(1) That have the purpose or effect of subjecting qualified individuals with disabilities to discrimination on the ground of disability;

(2) That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the WIOA Title I—financially assisted program or activity with respect to individuals with disabilities; or

(3) That perpetuate the discrimination of another entity if both entities are subject to common administrative control or are agencies of the same state.

(f) In determining the site or location of facilities, a grant applicant or recipient must not make selections that have any of the following purposes or effects:

(1) On the basis of disability:

(i) Excluding qualified individuals from a WIOA Title I-financially assisted program or activity;

(ii) Denying 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 WIOA Title I-financially assisted program or activity; or

(ii) The nondiscrimination and equal opportunity provisions of WIOA or this part.

(g) A recipient, in the selection of contractors, must not use criteria that subject qualified individuals with disabilities to discrimination on the basis of disability.

(h) A recipient must not administer a licensing or certification program in a manner that subjects qualified individuals with disabilities to discrimination on the basis of disability, nor may a recipient establish requirements for the programs or activities of licensees or certified entities that subject qualified individuals with disabilities to discrimination on the basis of disability. The programs or activities of entities that are licensed or certified by a recipient are not, themselves, covered by this part.

(i) A recipient must not impose or apply eligibility criteria that screen out or tend to screen out 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 with a disability, or any group of individuals with disabilities, to cover the costs of measures, such as the provision of auxiliary aids or program accessibility, that are required to provide that individual or group with the nondiscriminatory treatment required by WIOA Title I or this part.

(l) A recipient must not exclude, or otherwise deny equal aid, benefits, services, training, programs, or activities to, an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association.

(m) The exclusion of an individual without a disability from the benefits of a program limited by Federal 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 WIOA Title I or this part that such individual chooses not to accept.

(2) Nothing in this part authorizes the representative or guardian of an individual with a disability to decline food, water, medical treatment, or medical services for that individual.

§ 38.8
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 § 38.4.

(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 § 38.4. 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 § 38.4.

(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 § 38.4. 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.

§ 38.9
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 WIOA 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 102-76.65. 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 WIOA Title I—financially assisted program, activity, or service, the recipient has the burden of proving that compliance with this section would result in such an alteration.

(2) The decision that compliance would result in such an alteration must be made by the recipient after considering all resources available for use in the funding and operation of the WIOA Title I—financially assisted program, activity, or service, and must be accompanied by a written statement of the 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.

§ 38.10
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 WIOA Title I—financially assisted program or activity; and

(2) Any program or activity that is part of the One-Stop delivery system and is operated by a One-Stop partner listed in Section 121(b) of WIOA, to the extent that the program or activity is being conducted as part of the One-Stop delivery system.

(b)
Employee selection procedures.
In implementing this section, a recipient must comply with the Uniform Guidelines on Employee Selection Procedures, 41 CFR part 60-3.

(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 § 38.3(b), 29 CFR part 32, subparts B and C and appendix A, which implement the requirements of Section 504 pertaining to employment practices and employment-related training, program accessibility, and reasonable accommodation, have been incorporated into this part by reference. Therefore, recipients must comply with the requirements set forth in those regulatory sections as well as the requirements listed in this part.

(e) 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.

§ 38.11
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 WIOA or this part;

(2) Opposed a practice prohibited by the nondiscrimination and equal opportunity provisions of WIOA or this part;

(3) Furnished information to, or assisted or participated in any manner in, an investigation, review, hearing, or any other activity related to any of the following:

(i) Administration of the nondiscrimination and equal

opportunity provisions of WIOA or this part;

(ii) Exercise of authority under those provisions; or

(iii) Exercise of privilege secured by those provisions; or

(4) Otherwise exercised any rights and privileges under the nondiscrimination and equal opportunity provisions of WIOA or this part.

(b) The sanctions and penalties contained in Section 188(b) of WIOA or this part may be imposed against any recipient that engages in any such retaliation or intimidation, or fails to take appropriate steps to prevent such activity.

§ 38.12
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 WIOA and this part, and for developing and issuing policies, standards, guidance, and procedures for effecting compliance.

§ 38.13
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 WIOA or this part.

§ 38.14
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 WIOA and this part (other than responsibility for final decisions under § 38.112), including the achievement of effective coordination and maximum uniformity within the Department and within the executive branch of the Government in the application of the nondiscrimination and equal opportunity provisions of WIOA or this part to similar programs and similar situations.

(b) Any action taken, determination made, or requirement imposed by an official of another department or agency acting under an assignment of responsibility under this section has the same effect as if the action had been taken by the Director.

§ 38.15
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 WIOA or this part, the Director must attempt to notify the appropriate agency and provide it with all relevant documents and information.

(b) This section applies to the following:

(1) Executive Order 11246, as amended;

(2) Section 503 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 793);

(3) The affirmative action provisions of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212);

(4) The Equal Pay Act of 1963, as amended (29 U.S.C. 206d);

(5) Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000e
et seq.
);

(6) The Age Discrimination in Employment Act of 1967, as amended (29 U.S.C. 621);

(7) The Americans with Disabilities Act of 1990, as amended (42 U.S.C. 12101
et seq.
);

(8) The anti-discrimination provision of the Immigration and Nationality Act, as amended (8 U.S.C. 1324b); and

(9) Any other Federal civil rights law.

§ 38.16
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 WIOA 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 WIOA Title I—financially assisted program or activity; to be employed by any recipient; or to practice any occupation or profession.

(b)
Effect of private organization rules.
The obligation to comply with the nondiscrimination and equal opportunity provisions of WIOA 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 WIOA 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

§ 38.20
What is a grant applicant's obligation to provide a written assurance?
(a)(1) Each application for financial assistance under Title I of WIOA, as defined in § 38.4, must include the following assurance:

As a condition to the award of financial assistance from the Department of Labor under Title I of WIOA, the grant applicant assures that it will comply fully with the nondiscrimination and equal opportunity provisions of the following laws:

Section 188 of the Workforce Innovation and Opportunity Act (WIOA), which prohibits discrimination against all individuals in the United States on the basis of race, color, religion, sex, 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 WIOA Title I—financially assisted program or activity;

Title VI of the Civil Rights Act of 1964, as amended, which prohibits discrimination on the bases of race, color and national origin;

Section 504 of the Rehabilitation Act of 1973, as amended, which prohibits discrimination against qualified individuals with disabilities;

The Age Discrimination Act of 1975, as amended, which prohibits discrimination on the basis of age; and

Title IX of the Education Amendments of 1972, as amended, which prohibits discrimination on the basis of sex in educational programs.

The grant applicant also assures that it will comply with 29 CFR part 38 and all other regulations implementing the laws listed above. This assurance applies to the grant applicant's operation of the WIOA Title I-financially assisted program or activity, and to all agreements the grant applicant makes to carry out the WIOA Title I—financially assisted program or activity. The grant applicant understands that the United States has the right to seek judicial enforcement of this assurance.

(2) The assurance is considered incorporated by operation of law in the grant, cooperative agreement, contract

or other arrangement whereby Federal financial assistance under Title I of the WIOA 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 WIOA Title I-financially assisted program or activity must provide a statement that the WIOA Title I-financially assisted program or activity is (or, in the case of a new WIOA Title I-financially assisted program or activity, will be) conducted in compliance with the nondiscrimination and equal opportunity provisions of WIOA and this part, as a condition to the approval of the Five-Year Plan and the extension of any WIOA Title I financial assistance under the Plan. The State also must certify that it has developed and maintains a Methods of Administration under § 38.54.

§ 38.21
How long will the recipient's obligation under the assurance last, and how broad is the obligation?
(a) Where the WIOA Title I financial assistance is intended to provide, or is in the form of, either personal property, real property, structures on real property, or interest in any such property or structures, the assurance will obligate the recipient, or (in the case of a subsequent transfer) the transferee, for the longer of:

(1) The period during which the property is used either:

(i) For a purpose for which WIOA Title I financial assistance is extended; or

(ii) For another purpose involving the provision of similar services or benefits; or

(2) The period during which either:

(i) The recipient retains ownership or possession of the property; or

(ii) The transferee retains ownership or possession of the property without compensating the Departmental grantmaking agency for the fair market value of that ownership or possession.

(b) In all other cases, the assurance will obligate the recipient for the period during which WIOA Title I financial assistance is extended.

§ 38.22
How must covenants be used in connection with this part?
(a) Where WIOA Title I financial assistance is provided in the form of a transfer of real property, structures, or improvements on real property or structures, or interests in real property or structures, the instrument effecting or recording the transfer must contain a covenant assuring nondiscrimination and equal opportunity for the period described in § 38.21.

(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 WIOA Title I financial assistance, the recipient must include the covenant described in paragraph (a) of this section in the instrument effecting or recording any subsequent transfer of such property.

(c) When the property is obtained from the Federal Government, the covenant described in paragraph (a) of this section also may include a condition coupled with a right of reverter to the Department in the event of a breach of the covenant.

Equal Opportunity Officers

§ 38.23
Who must designate an Equal Opportunity Officer?
Every recipient must designate an Equal Opportunity Officer (“EO Officer”), except small recipients and service providers, as defined in § 38.4. The responsibilities of small recipients and service providers are described in §§ 38.27 and 38.28.

§ 38.24
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 WIOA Title I—financially assisted programs or activities, and the number of applicants, registrants, and participants served by the recipient, the EO Officer may, or may not, be assigned other duties. However, he or she must not have other responsibilities or activities that create a conflict, or the appearance of a conflict, with the responsibilities of an EO Officer.

§ 38.25
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 WIOA 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 WIOA 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 §§ 38.76 through 38.79, and making sure that those procedures are followed;

(e) Reporting directly to the appropriate official (including, but not limited to, the State WIOA Director, Governor's WIOA Liaison, Job Corps Center Director, SESA Administrator, or LWIOA 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 § 38.54.

§ 38.26
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 WIOA 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.

§ 38.27
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 §§ 38.76 through 38.79.

§ 38.28
What are the obligations of service providers regarding Equal Opportunity Officers?
Service providers, as defined in § 38.4, are not required to designate an Equal Opportunity Officer. The obligation for ensuring service provider compliance with the nondiscrimination and equal opportunity provisions of WIOA and this part rests with the Governor or LWIOA grant recipient, as specified in the State's Methods of Administration.

Notice and Communication

§ 38.29
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 WIOA Title I funds from the recipient; and

(6) Members of the public, including those with impaired vision or hearing.

(b) As provided in § 38.9, the recipient must take appropriate steps to ensure that communications with individuals with disabilities are as effective as communications with others.

§ 38.30
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 Innovation and Opportunity Act (WIOA), 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 WIOA Title I-financially assisted program or activity.

The recipient must not discriminate in any of the following areas:

deciding who will be admitted, or have access, to any WIOA Title I-financially assisted program or activity;

providing opportunities in, or treating any person with regard to, such a program or activity; or

making employment decisions in the administration of, or in connection with, such a program or activity.

What To Do If You Believe You Have Experienced Discrimination

If you think that you have been subjected to discrimination under a WIOA Title I-financially assisted program or activity, you may file a complaint within 180 days from the date of the alleged violation with either:

the recipient's Equal Opportunity Officer (or the person whom the recipient has designated for this purpose); or

the Director, Civil Rights Center (CRC), U.S. Department of Labor, 200 Constitution Avenue NW., Room N-4123, Washington, DC 20210.

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, 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.

§ 38.31
Where must th e notice required by §§ 38.29 and 38

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2015-17637. Public record. Not legal advice.