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

Federal RegisterJan 26, 2016

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DEPARTMENT OF LABOR

Office of the Secretary

29 CFR Part 38

RIN 1291-AA36

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

AGENCY:

Office of the Secretary, Labor.

ACTION:

Notice of Proposed Rulemaking.

SUMMARY:

The U.S. Department of Labor (Department) is proposing to issue nondiscrimination and equal opportunity regulations replacing its regulation which implemented Section 188 of the Workforce Innovation and Opportunity Act (WIOA). Signed by President Obama on July 22, 2014, WIOA supersedes the Workforce Investment Act of 1998 (WIA) as the Department's primary mechanism for providing financial assistance for a comprehensive system of job training and placement services for adults and eligible youth. Section 188 of WIOA prohibits the exclusion of an individual from participation in, denial of the benefits of, discrimination in, or denial of employment in the administration of or in connection with, any programs and activities funded or otherwise financially assisted in whole or in part under Title I of WIOA because of race, color, religion, sex, national origin, age, disability, political affiliation or belief, and for beneficiaries only, citizenship status, or participation in a program or activity that receives financial assistance under Title I of WIOA. These proposed regulations would update the nondiscrimination and equal opportunity regulation consistent with current law and address its application to current workforce development and workplace practices and issues.

Most of the provisions of WIOA took effect on July 1, 2015, except where otherwise specified in the law. WIOA contains the identical provisions of Section 188 as appeared in WIA, and these WIOA provisions took effect on July 1, 2015. To ensure no regulatory gap while this proposed rulemaking progresses toward a final rule, the Department issued a final rule implementing Section 188 of WIOA, which applies until issuance of the final rule based on this NPRM. The final rule issued separately in July 2015 retains the provisions in part 37 but substitutes all references to WIA with WIOA to reflect the proper statutory authority. This NPRM revises the final rule issued in July 2015. This NPRM generally carries over the policies and procedures found in Department regulations, which implement the equal opportunity and nondiscrimination provisions of WIA and WIOA. Like the final rule issued separately in July 2015, this rule is organized by the same subparts A through E, and refers to “changes” or “revisions” made to the final rule. Certain sections in each subpart have significant revisions.

DATES:

To be assured of consideration, comments must be received on or before March 28, 2016.

ADDRESSES:

Comments may be submitted, identified by Regulatory Information Number (RIN) 1291-AA36, by any one of the following methods:

•

Federal e-Rulemaking Portal

www.regulations.gov

. Follow the instructions for submitting comments.

•

Fax:

(202) 693-6505 (for comments of six pages or less).

•

Mail or Hand Delivery/Courier:

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

• Email at

CRC-WIOA@dol.gov

Please submit comments by only one method. Receipt of comments will not be acknowledged; however, the Department will post all comments received on

http://www.regulations.gov

without making any change to the comments, including any personal information provided. The

http://www.regulations.gov

Web site is the Federal e-rulemaking portal, and all comments posted there are available and accessible to the public.

The Department cautions commenters not to include personal information, such as Social Security Numbers, personal addresses, telephone numbers and email addresses, in comments, as such submitted information will become viewable by the public via

http://www.regulations.gov

. It is the responsibility of the commenter to safeguard personal information. Comments submitted through

http://www.regulations.gov

will not include the commenter's email address unless the commenter chooses to include that information as a part of a comment.

Postal delivery in Washington, DC, may be delayed due to security concerns. Therefore, the Department encourages the public to submit comments via the Web site indicated above.

The Department will also make all the comments it receives available for public inspection during normal business hours at the Civil Rights Center at the above address. If you need assistance to review the comments, the Department will provide you with appropriate aids such as readers or print magnifiers. The Department will make copies of this NPRM available, upon request, in large print and as an electronic file on computer disk. The Department will consider providing the proposed rule in other formats upon request. To schedule an appointment to review the comments and/or obtain the rule in an alternate format, contact CRC at (202) 693-6500 (VOICE) or (202) 877-8339 (TTY).

FOR FURTHER INFORMATION CONTACT:

Naomi Barry-Perez, Director, Civil Rights Center, U.S. Department of Labor, 200 Constitution Avenue NW., Room N-4123, Washington, DC 20210.

CRC-WIOA@dol.gov

, telephone (202) 693-6500 (VOICE) or (202) 877-8339 (Federal Relay Service—for TTY).

SUPPLEMENTARY INFORMATION:

Executive Summary

Purpose of the Regulatory Action

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

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

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

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

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

the Americans with Disabilities Act (ADA),

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

and Section 501 of the Rehabilitation Act, as amended,

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

and Section 503 of the Rehabilitation Act, as amended,

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

42 U.S.C. 2000d

et seq.

20 U.S.C. 1681

et seq.

42 U.S.C. 6101

et seq.

29 U.S.C. 794.

42 U.S.C. 2000e

et seq.

42 U.S.C. 12101

et seq.

42 U.S.C. 12101

et seq.,

Public Law 110-325, § 2(b)(1), 122 Stat. 3553 (2008).

29 U.S.C. 791.

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).

29 U.S.C. 793.

The regulations at 29 CFR part 38 set forth the equal opportunity and nondiscrimination requirements and obligations for recipients of financial assistance under Title I of WIOA and the enforcement procedures for implementing the nondiscrimination and equal opportunity provisions of WIOA. As set forth in the Part 38 final rule, WIOA did not change the nondiscrimination and equal opportunity provisions in Section 188, but Congress mandated that the Department issue regulations to implement the section not later than one year after the date of enactment of WIOA.

The regulations must contain standards for determining discrimination and enforcement procedures, including complaint processes for Section 188 of WIOA.

29 U.S.C. 3248(e).

Id.

Since their promulgation in 1999, the regulations implementing Section 188 of WIA at part 37 have only been amended once, in 2004, specifically to revise § 37.6 to provide that faith-based and community organizations are able to participate in the Department's social service programs without regard to their religious character or affiliation.

Because the part 38 regulations made only technical revisions from the part 37 rule, changing references from “WIA” to “WIOA,” the current rule does not reflect recent developments in equal opportunity and nondiscrimination jurisprudence. Moreover, procedures and processes for enforcement of the nondiscrimination and equal opportunity provisions of Section 188 have not been revised to reflect changes in the practices of recipients since 1999, including the use of computer-based and Internet-based systems to provide aid, benefit, service, and training through WIOA Title I-financially assisted programs and activities.

69 FR 41894, July 12, 2004.

For the reasons stated above, the Department proposes to revise the regulations at part 38 to set forth recipients' nondiscrimination and equal opportunity obligations under WIOA Section 188 in accordance with existing law and policy. This NPRM proposes to update the regulations to address current compliance issues in the workforce system, and to reflect existing law under Title VI and Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, the ADA and the Rehabilitation Act as related to WIOA Title I-financially assisted programs and activities. This NPRM also incorporates developments and interpretations of existing law by the Department of Justice (DOJ), the EEOC, the Department of Education, and this Department's corresponding interpretation of Title VII and the Rehabilitation Act, as amended, into the workforce development system. The proposed rule is intended to reflect current law and legal principles applicable to a recipient's obligation to refrain from discrimination and to ensure equal opportunity.

The first category of proposed updates to the part 38 regulations in this NPRM improves the overall readability of the regulations through revisions, limited reorganization of sections and more explicit descriptions of recipient obligations. The NPRM revises the current question and answer format in the title of each section to make it more straightforward and to more closely mirror other nondiscrimination and equal opportunity regulations issued by the Department. This NPRM also replaces “he or she” with “the individual,” “person,” or other appropriate identifier wherever possible to avoid the gender binary. The plain language of the regulations is retained for ease of comprehension and application.

The second category of proposed changes in this NPRM updates the nondiscrimination and equal opportunity provisions to align them with current law and legal principles. As discussed above, in enforcing the nondiscrimination obligations of recipients set forth in this part, CRC follows the case law principles developed under, among other statutes, Title VI and Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act, as amended by the ADAAA. Since the issuance of the WIA Section 188 regulations in 1999, the principles of nondiscrimination and equal opportunity law under these statutes have evolved significantly and the ADA has been amended. Agencies enforcing these statutes have issued regulations and guidance impacting WIOA Title I-financially assisted programs and activities to reflect these legal developments.

During that time, the Department has issued final rules under Section 503 of the Rehabilitation Act and Executive Order 13672, which amended Executive Order 11246.

See

29 CFR part 1630, 76 FR 16978, March 25, 2011 (EEOC regulations implementing ADA Title I); 79 FR 4839, January 30, 2014 (DOJ NPRM amending ADA Title II and III regulations).

41 CFR part 60-741, 78 FR 58862, Sept. 24, 2013 (OFCCP final rule implementing Section 503); 41 CFR parts 60-1 through 60-50, 79 FR 72985, Dec. 9, 2014 (OFCCP final rule implementing E.O. 13672).

The third category of proposed changes in this NPRM improves the effectiveness of the Department's enforcement program to support compliance with this rule. The compliance review and complaint procedures sections have been updated based on the Department's experience enforcing 29 CFR part 37. The proposed changes also reflect feedback received from stakeholders such as recipients and their Equal Opportunity Officers (EO Officers) and are intended to increase compliance through clearer descriptions of recipient responsibilities, more effective EO, enhanced data collection, and consistent monitoring and oversight by Governors. The Department maintains regular contact with the regulated community, and this contact has informed certain proposed revisions to the provisions in the part 38 rule. For example, proposed § 38.35 provides that recipients must include in their equal opportunity notice or poster a parenthetical noting that sex, as a prohibited basis for discrimination, includes pregnancy, childbirth and related medical conditions, sex stereotyping, transgender status, and gender identity. Similarly, the notice or

poster would be modified to note in another parenthetical that includes limited English proficiency (LEP) as a form of national origin discrimination. These changes, although slight, identify the scope of the nondiscrimination obligation with more specificity and inform those who may not otherwise be aware of the developments in law.

The Department has participated in annual training conferences, including national conferences on equal opportunity attended by officials and staff of the State and local agencies that are responsible for ensuring nondiscrimination in the programs receiving financial assistance under WIA and/or WIOA Title I. The Department's participation in conferences offered leaders of State and other local agencies the opportunity to exchange—with each other and with the CRC—tips, tools, and practices, and to discuss more efficient and effective means of supporting compliance with this rule. Those exchanges have informed this NPRM. For example, to assist with compliance, the NPRM includes an Appendix that lists best practices for a recipient to consider when developing a written LEP plan. By including this information, recipients may be better prepared to meet their obligations.

The Department also received feedback from EO Officers at trainings and listening sessions conducted by the CRC and through technical assistance calls. EO Officers, designated by the recipients, are responsible for carrying out the recipients' obligations under Section 188 and its implementing regulations. Their feedback reflects a shared concern among EO Officers that the regulations at 29 CFR part 38 applicable to the role of the EO Officers do not sufficiently reflect the responsibilities of the role. For example, EO Officers have advised that the part 37 rule did not provide them with sufficient authority or require the recipients to provide EO Officers with sufficient resources to enable them to effectively meet their obligations. Many of the changes, both substantive and stylistic, that are proposed in this rule reflect their input. Specifically, proposed § 38.28 would require that the Governor designate a State level EO Officer who reports directly to the Governor, and that this EO Officer be given staff and resources sufficient to carry out the required responsibilities. These requirements are designed to provide the EO Officer with sufficient authority to fulfill the obligation to coordinate statewide compliance with the nondiscrimination and equal opportunity provisions in WIOA; current part 38 does not similarly support the work of the EO Officer.

Statement of Legal Authority

Statutory Authority

The statutory authorities for this NPRM are: Section 134(b), 116(d)(2)(F), 116(e), 169(a), 183(c), 185(c)(2), 185(d)(1)(E), 186, 187 and 188 of WIOA. Public Law 113-128, 128 Stat. 1429; Title VI of the Civil Rights Act of 1964, as amended. Public Law 88-352, 78 Stat. 252 (42 U.S.C. 2000d,

et seq.

); Section 504 of the Rehabilitation Act of 1973, as amended, Public Law 93-112, 87 Stat. 390 (29 U.S.C. 794); the Age Discrimination Act of 1975, as amended, Public Law 94-135; 89 Stat. 728 (42 U.S.C. 6101); and Title IX of the Education Amendments of 1972, as amended, Public Law 92-318, 86 Stat. 373 (20 U.S.C. 1681).

Departmental Authorization

Secretary's Order 04-2000 delegated to CRC responsibility for developing, implementing and monitoring the Department's civil rights enforcement program under all equal opportunity and nondiscrimination requirements applicable to programs or activities financially assisted or conducted by the Department, including Section 188 of WIA. Section 5 of the Secretary's Order also authorized the Assistant Secretary for Administration and Management, working through the CRC Director, to establish and formulate all policies, standards, and procedures for, as well as to issue rules and regulations governing, the enforcement of statutes applying nondiscrimination and equal opportunity requirements to programs and activities receiving financial assistance from the Department.

Section 5(j) of the Order also delegates authority and assigns responsibility to CRC for “other similarly related laws, executive orders and statutes.” Thus, this delegation also covers CRC's enforcement of Section 188 of WIOA, and no new delegation is necessary.

65 FR 69184, Nov. 15, 2000.

Interagency Coordination

The DOJ, under Section 1-201 of Executive Order 12250, 45 FR 72995 (November 4, 1980), is responsible for coordinating Federal enforcement of most nondiscrimination laws that apply to federally-assisted programs and activities. Executive Order 12067, 43 FR 28967 (July 5, 1978) requires Federal departments and agencies to consult with the EEOC about regulations involving equal employment opportunity. Pursuant to Executive Order 12067, the EEOC is the lead federal agency responsible for defining the nature of employment discrimination on the basis of race, color, religion, sex, national origin, age, or disability under all Federal statutes, Executive orders, regulations, and policies which require equal employment opportunity. The Age Discrimination Act of 1975, as amended, assigns the Secretary of Health and Human Services the responsibility for coordinating the federal enforcement effort of that Act. Accordingly, this NPRM has been coordinated with the DOJ and the EEOC as well as the Department of Health and Human Services.

In addition, this NPRM has been coordinated with other appropriate Federal grant-making agencies, including the Departments of Education and Housing and Urban Development.

I. Overview of the Rule

This rule retains the organization of 29 CFR part 38 as well as the majority of the provisions in part 38.

Subpart A—General Provisions. This subpart outlines the purpose and application of part 38, provides definitions, outlines prohibited grounds for and forms of discrimination, and establishes CRC's enforcement authority and recipients' nondiscrimination obligations.

Subpart B—Recordkeeping and Other Affirmative Obligations of Recipients. This subpart sets forth the affirmative obligations of recipients of, and grant applicants for, financial assistance under WIOA Title I, including the role of EO Officers, notice and communication requirements, and the data and information collection and maintenance obligations of recipients.

Subpart C—Governor's Responsibilities to Implement the Nondiscrimination and Equal Opportunity Requirements of WIOA. This subpart describes a Governor's responsibilities to implement the nondiscrimination and equal opportunity provisions of WIOA and this part, including oversight and monitoring of WIOA Title I-financially assisted State Programs, and development of a Nondiscrimination Plan.

Subpart D—Compliance Procedures. This subpart describes procedures for compliance reviews, complaint processing, issuing determinations, and procedures for breaches of conciliation agreements.

Subpart E—Federal Procedures For Effecting Compliance. This subpart describes the procedures for effecting compliance, including actions the Department is authorized to take upon

finding noncompliance when voluntary compliance cannot be achieved, the rights of parties upon such a finding, and hearing procedures, sanctions, and post-termination procedures.

Reasons for Proposed Revisions Generally

These revisions incorporate current jurisprudence under Title VII and EEOC Guidance interpreting the nondiscrimination obligation in the employment context, because WIOA Section 188 also applies to employment in the administration of or in connection with Title I-financially assisted programs and activities. Pursuant to Executive Order 12067, because the EEOC is the lead federal agency responsible for defining the nature of employment discrimination on the basis of race, color, religion, sex, national origin, age, or disability under all Federal statutes, Executive orders, regulations, and policies which require equal employment opportunity, the Department generally defers to the EEOC's interpretations of Title VII law as it applies to applicants and employees of employers receiving WIOA Title I financial assistance.

Pursuant to Executive Order 12250

and Title VI, the DOJ is the lead federal agency responsible for defining the nature and scope of the nondiscrimination prohibition based on, among other things, race, color and national origin in programs and activities receiving Federal financial assistance. Thus, CRC generally defers to the DOJ's interpretations of Title VI regarding discrimination based on race, color and national origin in programs and activities receiving Federal financial assistance. Further, pursuant to ADA Title II, DOJ is the lead federal agency responsible for defining the parameters of the nondiscrimination and equal opportunity provisions of Title II of the ADA.

45 FR 72995, November 2, 1980.

Developments in National Origin and Language Access Jurisprudence

Consistent with Title VI case law and the DOJ's guidance on ensuring equal opportunity and nondiscrimination for individuals who are limited English proficient (LEP),

this rule proposes to create a provision stating that discrimination against individuals based on their limited English proficiency may be unlawful national origin discrimination.

Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons,

67 FR 41455, June 18, 2002.

Title VI provides that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participating in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving [f]ederal financial assistance.”

Prohibited discrimination under Title VI and its implementing regulations includes: (1) Intentional acts; and (2) unintentional acts that result in an unjustified disparate impact on the basis of race, color, or national origin. 29 CFR 31.3 (DOL Title VI regulations). Indeed, the Supreme Court in

Lau

Nichols,

414 U.S. 563 (1974), held that excluding LEP children from effective participation in an educational program because of their inability to speak and understand English constitutes national origin discrimination prohibited by Title VI. Courts have consistently found that a recipient's failure to provide meaningful access to LEP individuals can violate Title VI's prohibition of national origin discrimination.

See, e.g.,

Colwell

Dep't of Health & Human Servs.,

558 F.3d 1112, 1116-17 (9th Cir. 2009) (noting that

Lau

concluded “discrimination against LEP individuals was discrimination based on national origin in violation of Title VI”);

United States

Maricopa Cnty.,

915 F. Supp. 2d 1073, 1079 (D. Ariz. 2012) (citing

Lau

);

Faith Action for Cmty. Equity

Hawaii,

No. 13-00450 SOM, 2014 WL 1691622 at *14 (D. Haw. Apr. 28, 2014) (Title VI intent claim was properly alleged by LEP plaintiffs when it was based on the “foreseeable disparate impact of the English-only policy,” a pretextual justification for the policy, and potentially derogatory comments by a state agency). As a result, the proposed rule indicates that the definition of national origin discrimination includes discrimination based on limited English proficiency. Accordingly, the proposed rule sets forth the responsibilities of recipients to meet their compliance obligations for ensuring that LEP individuals have meaningful access to WIOA programs and services.

42 U.S.C. 2000d.

This proposal is also generally consistent with guidance issued by the Department in 2003,

advising Federal financial assistance recipients of the Title VI prohibition against national origin discrimination affecting LEP individuals. This 2003 DOL Recipient LEP Guidance was issued pursuant to Executive Order 13166, which directed each federal agency that extends assistance subject to the requirements of Title VI to publish guidance for its respective recipients clarifying that obligation.

Executive Order 13166 further directs that all such guidance documents be consistent with the compliance standards and framework detailed in the Department of Justice (DOJ) Policy Guidance entitled “Enforcement of Title VI of the Civil Rights Act of 1964—National Origin Discrimination Against Persons with Limited English Proficiency.”

The LEP provisions of this NPRM are drawn from, and thus are consistent with, the DOJ Title VI LEP Guidance.

Civil Rights Center; Enforcement of Title VI of the Civil Rights Act of 1964; Policy Guidance to Federal Financial Assistance Recipients Regarding the Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons; Notice, 68 FR 32290, May 29, 2003 [hereinafter DOL LEP Guidance].

65 FR 50121, August 16, 2000.

65 FR 50123, August 16, 2000.

Developments in ADA Jurisprudence

Congress passed the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), amending the ADA and the Rehabilitation Act, both of which apply, in distinct ways, to different groups of recipients of WIOA Title I-financial assistance. Consistent with Executive Order 13563's instruction to Federal agencies to coordinate rules across agencies and harmonize regulatory requirements where appropriate, this rule proposes, where appropriate, to adopt regulatory language that is consistent with the ADAAA and corresponding revisions to the EEOC regulations implementing Title I

of the ADA and the NPRM issued by the DOJ implementing Title II and Title III of the ADA.

This proposal will promote consistent application of nondiscrimination obligations across Federal enforcement programs and accordingly enhance compliance among entities subject to WIOA Section 188 and the various titles of the ADA. If the DOJ changes its proposal in its final rule implementing ADA Titles II and III, the Department will review those changes to determine their impact on this proposal and take appropriate action.

See

76 FR 16978, Mar. 25, 2011.

See

79 FR 4839, Jan. 30, 3014.

Title I of the ADA prohibits private employers, State and local governments, employment agencies and labor unions with 15 or more employees from discriminating in employment against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions,

and privileges of employment.

Title I applies to WIOA Title I-financially assisted programs and activities because WIOA Section 188 prohibits discrimination in employment in the administration of or in connection with WIOA Title I financially-assisted programs and activities. The EEOC issued final regulations implementing the amendments to Title I of the ADA in March 2011.

29 CFR 1630.2(e).

See

76 FR 16978, March 25, 2011.

Title II of the ADA applies to State and local government entities, many of which may also be recipients of WIOA Title I financial assistance, and, in subtitle A, protects qualified individuals with disabilities from discrimination on the basis of disability in services, programs, and activities provided by State and local government entities.

Title II extends the prohibition against discrimination established by Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794, to all activities of State and local governments regardless of whether these entities receive financial assistance

and requires compliance with the ADA Standards of Accessible Design.

The Department is responsible for implementing the compliance procedures of Title II for components of State and local governments that exercise responsibilities, regulate, or administer services, programs, or activities in “relating to labor and the work force.”

See

42 U.S.C. 12131-12165.

42 U.S.C. 12132.

28 CFR part 35 (Title II); 28 CFR part 36 (Title III).

28 CFR 35.190(b)(7).

Title III, enforced by the DOJ, prohibits discrimination on the basis of disability in the full enjoyment of the goods, services, facilities, privileges or advantages, or accommodations of any place of public accommodation by a person who owns, leases, or operates that place of public accommodation.

Title III applies to businesses that are generally open to the public and that fall into one of 12 categories listed in the ADA, such as restaurants, day care facilities, and doctor's offices,

and requires newly constructed or altered places of public accommodation—as well as commercial facilities (privately owned, nonresidential facilities such as factories, warehouses, or office buildings)—to comply with the ADA Standards for Accessible Design.

Many recipients of WIOA Title I financial assistance are places of public accommodation and thus are subject to Title III of the ADA and its accessible design standards. The DOJ issued an NPRM in January 2014 that would implement amendments to Title II and Title III of the ADAAA.

The DOJ is responsible for handling complaints of noncompliance with Title III.

42 U.S.C. 12182.

42 U.S.C. 12181.

28 CFR part 35 (Title II); 28 CFR part 36 (Title III).

See

76 FR 16978, March 25, 2011; 79 FR 4839, January 30, 3014.

This rule proposes making revisions to part 38 consistent with the ADA Amendments Act of 2008 (ADAAA) and the implementing regulations issued by the EEOC and the proposed regulations issued by the DOJ. The ADAAA and implementing regulations made it easier for an individual seeking protection under the ADA to establish that the individual has a disability within the meaning of the statute.

This NPRM proposes to incorporate the rules of construction set out in the ADAAA that specify that the definition of “disability” is to be interpreted broadly, that the primary inquiry should be whether covered entities have complied with their statutory obligations and that the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis. This NPRM also proposes revisions to the definition of “disability” and its component parts, including “qualified individual,” “reasonable accommodation,” “major life activity,” “regarded as having a disability,” and “physical or mental impairment” based on specific provisions in the ADAAA, as well as the EEOC's final and the DOJ's proposed implementing regulations. For example, the proposed revisions expand the definition of “major life activities” by providing a non-exhaustive list of major life activities, which specifically includes the operation of major bodily functions. The revisions also add rules of construction that should be applied when determining whether an impairment substantially limits a major life activity. If the DOJ changes its proposal in its final rule implementing ADA Titles II and III, the Department will review those changes to determine their impact on this proposal and take appropriate action.

See

42 U.S.C. 12102(1)(A)-(C).

Developments in Sex Discrimination Jurisprudence

Pregnancy

The proposed rule also includes a new section to provide direction regarding an existing obligation of recipients of WIOA Title I-financially assisted programs and activities to refrain from discrimination based on pregnancy, childbirth or related medical conditions as a form of sex discrimination. Although the Pregnancy Discrimination Act (PDA) was enacted in 1978,

the WIA Section 188 regulations, and the part 38 final rule implementing WIOA, do not refer specifically to pregnancy discrimination as a form of sex discrimination. This NPRM corrects that omission and sets out the standards that CRC would apply in enforcing the prohibition against pregnancy discrimination, consistent with the PDA, Title IX, and Title VII, in WIOA Title I-financially assisted programs, activities, training, and services.

42 U.S.C. 2000e(k).

Because the PDA amended Title VII, it does not directly govern the nondiscrimination obligations of a program or activity receiving Federal financial assistance outside of the employment context. The principles underlying the PDA, however, rest on Title IX's prohibitions against discrimination on the basis of pregnancy and actual or potential parental status and thus are applicable to WIOA Title I recipients.

See infra

Section by Section § 38.8 discussing the intersection of both the PDA and Title IX.

Pregnancy discrimination remains a significant issue. Between fiscal year 2001 and fiscal year 2013, charges of pregnancy discrimination filed with the EEOC and state and local agencies increased from 4,287 to 5,342.

In addition, a 2011 review of reported “family responsibility discrimination” cases (brought by men as well as women) found that low-income workers face “extreme hostility to pregnancy.”

The EEOC's findings and related research are relevant to this NPRM because the workforce development system is the pipeline through which many women find employment opportunities, and thus these programs must operate free of pregnancy discrimination. In other words, the discrimination that pregnant women experience in the private sector is

relevant to federally financially assisted programs and activities.

U.S. Equal Employment Opportunity Commission,

Pregnancy Discrimination Charges,

EEOC & FEPAs Combined: FY 1997-FY 2011,

available at http://www.eeoc.gov/eeoc/statistics/enforcement/pregnancy.cfm

(last accessed Oct. 6, 2014); U.S. Equal Employment Opportunity Commission,

Enforcement Guidance: Pregnancy Discrimination and Related Issues,

(July 14, 2014),

available at http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm

(last accessed Oct. 6, 2014).

Stephanie Bornstein, Center for WorkLifeLaw, UC Hastings College of the Law,

Poor, Pregnant and Fired: Caregiver Discrimination Against Low-Wage Workers

2 (2011),

available at http://worklifelaw.org/pubs/PoorPregnantAndFired.pdf

(last accessed Oct. 3, 2014).

Sex Stereotyping

One of the most significant barriers for women in access to services, benefits, training, programs and employment in and through the workforce development system is sex stereotyping. Decades of social science research has documented the extent to which sex stereotypes about the roles of women and men and their respective capabilities in the workplace can influence decisions about hiring, training, promotions, pay raises, and other conditions of employment.

The NPRM adopts the well-recognized principle that employment decisions made on the basis of stereotypes about how males and/or females are expected to look, speak, or act are forms of sex-based employment discrimination and applies that principle to the provisions of aid, benefit, service, and training through WIOA Title I programs and activities. The Supreme Court recognized in 1989 that an employer violates Title VII if its employees' chances of promotion depend on whether they fit their managers' preconceived notions of how men or women should dress and act.

As the Supreme Court stated in

Price Waterhouse

Hopkins,

“we are beyond the day when an employer can evaluate employees by assuming or insisting that they match the stereotype associated with their . . . [sex].”

Price Waterhouse,

the Court held that an employer's failure to promote a female senior manager to partner because of the decision-maker's sex-stereotyped perceptions that she was too aggressive and did not “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry” was unlawful sex-based employment discrimination.

The principle that sex stereotyping is a form of sex discrimination has been applied consistently in subsequent Supreme Court and lower-court decisions.

See, e.g., Nevada Dep't of Human Res.

Hibbs,

538 U.S. 721 (2003) (stereotype-based beliefs about the allocation of family duties on which state employers relied in establishing discriminatory leave policies held to be sex discrimination under the Constitution);

Chadwick

Wellpoint, Inc.,

561 F.3d 38 (1st Cir. 2009) (making employment decision based on the belief that women with young children neglect their job responsibilities is unlawful sex discrimination);

Prowel

Wise Bus. Forms,

Inc., 579 F.3d 285 (3d Cir. 2009) (harassment based on a man's effeminacy);

Terveer

Billington,

Civil Action No. 12-1290, 2014 WL 1280301 (D. D.C. March 31, 2014) (hostile work environment based on stereotyped beliefs about the appropriate gender with which an individual should form an intimate relationship).

Cf. U.S.

Virginia,

518 U.S. 515, 533 (1996) (in making classifications based on sex, state governments “must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females”).

See, e.g.,

Susan Fiske et al.,

Controlling Other People: The Impact of Power on Stereotyping,

48 Am. Psychol. 621 (1993); Marzarin Banaji,

Implicit Social Cognition: Attitudes, Self-Esteem and Stereotypes,

102 Psychol. Rev. 4 (1995); Brian Welle & Madeline Heilman,

Formal and Informal Discrimination Against Women at Work in Managing Social and Ethical Issues in Organizations

23 (Stephen Gilliland, Dirk Douglas Steiner & Daniel Skarlicki eds., 2007); Susan Bruckmüller et al.,

Beyond the Glass Ceiling: The Glass Cliff and Its Lessons for Organizational Policy,

8 Soc. Issues & Pol. Rev. 202 (2014) (describing the role of sex stereotypes in the workplace).

Price Waterhouse

Hopkins,

490 U.S. 228 (1989).

Id. at 251.

Id. at 235.

Research demonstrates that widely held social attitudes and biases can lead to discriminatory decisions, even where there is no formal sex-based (or race-based) policy or practice in place.

Sex stereotyping may have even more severe consequences for transgender applicants and employees, the vast majority of whom report that they have experienced discrimination in the workplace.

See, e.g.,

Kevin Lang & Jee-Yeon K. Lehmann,

Racial Discrimination in the Labor Market: Theory and Empirics

(NBER Working Paper No. 17450, 2010), available at

http://www.nber.org/papers/w17450

(last accessed March 19, 2015); Marianne Bertrand & Sendhil Mullainathan,

Are Emily and Brendan More Employable Than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination,

94(4) American Econ. Rev. 991 (2004); Ian Ayres & Peter Siegelman, Race and Gender Discrimination in Bargaining for a New Car, 85(3) Am. Econ. Rev. 304 (1995); Marc Bendick, Charles Jackson & Victor Reinoso, Measuring Employment Discrimination Through Controlled Experiments, 23 Rev. of Black Pol. Econ. 25 (1994).

Jaime M. Grant, Lisa M. Mottet, & Justin Tanis, National Center for Transgender Equality & National Gay and Lesbian Task Force, Injustice at Every Turn: A Report of the National Transgender Discrimination Survey, (2011),

available at http://transequality.org/issues/resources/national-transgender-discrimination-survey-full-report

(last accessed March 19, 2015).

As the EEOC has recognized, claims of gender identity discrimination, including discrimination grounded in stereotypes about how persons express their gender, are claims of sex discrimination under Title VII.

See Macy

Dep't of Justice,

E.E.O.C. Appeal No. 0120120821, 2012 WL 1435995 (April 20, 2012).

The Commission also has found that “discrimination against lesbian, gay, and bisexual individuals based on sex-stereotypes is discrimination on the basis of sex under Title VII.”

See

e.g., Veretto

United States Postal Service,

E.E.O.C. Appeal No. 0120110873, 2011 WL 2663401 (July 1, 2011)) (finding allegation of sexual orientation discrimination was a claim of sex discrimination because it was based on the sex stereotype that marrying a woman is an essential part of being a man);

Castello

United States Postal Service,

E.E.O.C. Request No. 0520110649, 2011 WL 6960810 (Dec. 20, 2011) (finding allegation of sexual orientation discrimination was a claim of sex discrimination because it was based on the sex stereotype that having relationships with men is an essential part of being a woman);

Complainant

Dep't of Homeland Sec.,

E.E.O.C. Appeal No. 0120110576, 2014 WL 4407422 (Aug. 20, 2014) (finding that sex discrimination claims intersect with sexual orientation discrimination claims such that allegations of discrimination on the basis of sexual orientation can be construed as claims of discrimination on the basis of sex);

Baldwin

Dep't of Transp.,

E.E.O.C. Appeal No. 012013080, 2015 WL 4397641 (July 15, 2015).

The EEOC also has concluded that discrimination on the basis of gender identity is inherently discrimination on the basis of sex and that a transgender plaintiff can prove sex discrimination without tying the discrimination to a sex stereotype.

See Macy, E.E.O.C. Appeal No. 0120120821, 2012 WL 1435995

at *10 (“While evidence that an employer has acted based on stereotypes about how men or women should act is certainly one means of demonstrating disparate treatment based on sex, “sex stereotyping” is not itself an independent cause of action . . . [I[f Complainant can prove that the reason that she did not get the job is [because the employer] was willing to hire her when he thought she was a man, but was not willing to hire her once he found out that she was now a woman—she will have proven that the [employer] discriminated on the basis of sex.”).

In the

Baldwin

decision, the EEOC stated that sexual orientation discrimination is inherently discrimination on the basis of sex because it involves treatment that would not have occurred but for the sex of the employee; because it takes the employee's sex into account by treating him or her differently due to the sex of the person he or she associates with; and because it is premised on fundamental sex stereotypes, norms, or expectations.

Baldwin

Dep't of Transp.,

E.E.O.C. Appeal No. 0120133080, 2015 WL 4397641,*10 (July 15, 2015).

The Department of Education has interpreted Title IX's prohibition against discrimination on the basis of sex in federally-funded education programs and activities as including claims of sex discrimination related to a person's failure to conform to stereotypical

norms of masculinity and femininity.

A Department of Education guidance document states: “Title IX's sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and [the Department of Education's Office for Civil Rights] accepts such complaints for investigation.”

See

Questions and Answers on Title IX and Sexual Violence B-2 at 5 (available at

http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf

(last accessed March 19, 2015) (stating that Title IX's sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity) (April 29, 2014); Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, 66 FR 5512, January 19, 2001 (available at

http://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf

See

Questions and Answers on Title IX and Sexual Violence B-2 at 5 (available at

http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf

(last accessed March 19, 2015).

These agency interpretations are consistent with court opinions holding that disparate treatment of a transgender employee may constitute discrimination because of the individual's non-conformity to sex stereotypes.

Barnes

City of Cincinnati,

401 F.3d 729 (6th Cir. 2005) (holding that transgender woman was a member of a protected class based on her failure to conform to sex stereotypes and thus her title VII claim was actionable);

Smith

City of Salem,

378 F.3d 566, 574 (6th Cir. 2004) (“discrimination against a plaintiff who is a transsexual [sic]—and therefore fails to act and/or identify with his or her gender—is no different from the discrimination directed against [the plaintiff] in Price Waterhouse who, in sex-stereotypical terms, did not act like a woman”).

See also

28 CFR 35.104 (DOJ's current Title II regulations).

Definition of Disability, Rules of Construction § 38.4(q)(1)

Consistent with the ADAAA, the EEOC regulations implementing the ADAAA and DOJ's NPRM to amend the ADA Title II regulations in conformance with the ADAAA,

this section sets forth rules of construction that provide the standards for application of the definition of disability.

See

Introduction to the Final Rule “The primary purpose of the ADAAA is to make it easier for people with disabilities to obtain protection under the ADA. Consistent with the Amendment Act's purpose of reinstating a broad scope of protection under the ADA, the definition of “disability” in this part shall be construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of the ADA.” 29 CFR 1630.1(c) (citing 42 U.S.C. 12102(4)(A)).

Proposed § 38.4(q)(1)(ii) provides that an individual may establish coverage under any one or more of the prongs in the definition of disability. To be covered under the ADA, however, an individual is only required to satisfy one prong. The term “actual disability” is used in these rules of construction as short-hand terminology to refer to an impairment that substantially limits a major life activity within the meaning of the first prong of the definition of disability. The terminology selected is for ease of reference. It is not intended to suggest that an individual with a disability who is covered under the first prong has any greater rights under the ADA than an individual who is covered under the “record of” or “regarded as” prongs, with the exception that the ADA, as amended, expressly states that an individual who meets the definition of disability solely under the “regarded as” prong is not entitled to reasonable accommodations, auxiliary aids or services, or reasonable modifications of policies, practices, or procedures.

See

42 U.S.C. 1.

See

Introduction to the Final Rule, “The primary purpose of the ADAAA is to make it easier for people with disabilities to obtain protection under the ADA, Consistent with the Amendment Act's purpose of reinstating a broad scope of protection under the ADA, the definition of “disability” in this part shall be construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of the ADA.” 29 CFR 1630.

This section also amends the definition of “disability” to incorporate Congress's expectation that consideration of coverage under the first and second prongs of the definition of “disability” will generally not be necessary except in cases involving requests for reasonable accommodations and reasonable modifications.

See § 38.4(q)(1)(ii)(B).

154 Cong. Rec. S8840 (daily ed. Sept. 16, 2008) (Statement of Managers).

Physical or Mental Impairment § 38.4(q)(3)

This rule revises the definition of “physical or mental impairment,” in the definition of disability, to include “immune and circulatory illnesses” as well as “pregnancy-related medical conditions” and states that the definition of “mental and psychological disorder” includes “intellectual disability (formerly termed “mental retardation”) and specific learning disabilities (including but not limited to dyslexia).” This update to the definition conforms to the same definition proposed by the DOJ in their NPRM implementing Title II of the ADA

and in OFCCP's final rule implementing Section 503,

apart from the inclusion of pregnancy-related medical conditions. This term is added here to

recognize that, under the ADA as amended by the ADAAA, Section 504 and this part, pregnancy itself is not a disability, but pregnancy-related medical conditions may meet the ADA definition of a physical or mental impairment; for example, preeclampsia (pregnancy-induced high blood pressure), placenta previa, and gestational diabetes, disorders of the uterus and cervix, or other medical conditions; symptoms such as back pain; complications requiring bed rest; and the after-effects of a delivery may be a disability.

79 FR 4839, 4844, January 30, 2014.

78 FR 58682, 58735, September 24, 2013.

Major Life Activities § 38.4(q)(4)

The proposed rule adds to the definition of disability a new definition for “major life activities” that is consistent with the definitions in the ADA, as amended,

and regulations promulgated by the EEOC

and the DOJ

implementing the ADA. Prior to the ADAAA, the ADA did not define “major life activities,” leaving delineation of illustrative examples to agency regulations. Subparagraph (2) of the definition of “disability” in the Department's current part 38 rule states that “[t]he phrase major life activities means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.”

The ADAAA incorporates into the statutory language a non-exhaustive list of major life activities that includes, but is not limited to, “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”

This list reflects Congress's concern that courts were interpreting the term “disability,” which includes “major life activities,” more narrowly than Congress intended.

For the same reason, the ADA as amended also explicitly defines “major life activities” to include the operation of “major bodily functions.” Examples in the amended statute or the EEOC's amended regulations include functions of the immune system, special sense organs and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. The operation of a major bodily function includes the operation of an individual organ within a body system. In § 38.4(q)(4), the Department proposes to revise its part 38 definitions of disability to incorporate the statutory examples as well as to provide additional examples of major life activities included in the EEOC Title I final regulation—reaching, sitting, and interacting with others, and the examples of major bodily functions.

42 U.S.C. 12102(2).

29 CFR 1630.2(i).

79 FR 4839, 4844, January 30, 2014.

29 CFR 38.4(q)(4).

42 U.S.C. 12102(2)(a).

See

Congressional Record—Senate S8840, S8841 (September 16, 2008).

29 CFR 1630.2(i)(1).

The Department cautions that both the lists of major life activities and major bodily functions are illustrative. The absence of a particular life activity or bodily function from the list should not create a negative implication as to whether such activity or function constitutes a major life activity or major bodily function under the statute or the implementing regulation.

29 CFR 1630, App, Section 1630.2(i). Major Life Activities (EEOC Title I).

Consistent with the ADAAA, proposed § 38.4(q)(4)(iii) also states that “[i]n determining other examples of major life activities, the term `major' must not be interpreted strictly to create a demanding standard for disability.”

Further, consistent with the ADAAA, the proposed regulations provide that “[w]hether an activity is a `major life activity' is not determined by reference to whether the activity is of `central importance to daily life.' ”

42 U.S.C. 12101(b)(4).

29 CFR 1630.2(i)(2).

Substantially Limits—Rules of Construction § 38.4(q)(5)

The revisions also add rules of construction to be applied when determining whether an impairment substantially limits a major life activity, including that the term “substantially limits” is not meant to be a demanding standard, and should be construed broadly in favor of expansive coverage. In addition, consistent with the ADAAA, the determination of whether an impairment substantially limits a major life activity must be made without regard to the ameliorative effects of mitigating measures.

42 U.S.C. 12102(4)(E).

The determination of whether an impairment substantially limits a major life activity requires an individualized assessment.

Section 38.4(q)(5)(i)(D) applies the principles set forth in the rules of construction in order to provide examples of the types of impairments that will virtually always be found to substantially limit a major life activity.

29 CFR 1630.2(j)(1)(v).

A Record of an Impairment § 38.4(q)(6)

This proposed rule updates the definition to state that an individual has “a record of such an impairment,” “if the individual has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.” This is the same language used by the EEOC in their implementing regulations.

The DOJ NPRM has identical language.

29 CFR 1630.2(k)(1).

79 FR 4839, 4848, Jan. 30, 2014.

In addition, the rule proposes adding a new paragraph at § 38.4(q)(6)(ii), which states that “[w]hether an individual has a record of an impairment that substantially limited a major life activity must be construed broadly to the maximum extent permitted by Federal disability nondiscrimination law and this part and should not demand extensive analysis.” An individual will be considered to fall within this definitional prong if the individual has a history of an impairment that substantially limited a major life activity, in comparison to most people in the general population, or was misclassified as having such an impairment. Moreover, an individual under this definitional prong may be entitled to a reasonable accommodation or a reasonable modification if needed, and related to the past disability. This provision is consistent with the DOJ NPRM implementing Title II of the ADA, as amended.

If the DOJ changes its proposal in its final rule implementing ADA Titles II and III, the Department will review those changes to determine their impact on this proposal and take appropriate action.

70 FR 4839, 4859, Jan. 30, 2014.

Is Regarded as Having Such an Impairment § 38.4(q)(7)

This rule revises the term “regarded as having an impairment” to conform to the ADAAA.

This updated language provides that an individual meets the definition if it is established that the individual is subject to an action prohibited by WIOA Section 188 and this part, because of an actual or perceived physical or mental impairment, whether or not that impairment substantially limits, or is perceived to substantially limit, a major life activity. However, impairments that are transitory and minor cannot form

the basis of a finding that an “individual is regarded as having a disability.”

42 U.S.C.12102(3).

Employment Practices § 38.4(s)

A minor revision to the definition of “Employment practices” has been made to read: “Employment Practices of a recipient include, but are not limited to” to make it easier to read and understand. The enumerated examples in the part 38 definition have not changed.

Employment-Related Training § 38.4(t)

The definition of “Employment-related training” has been revised to make the definition less circular. The new definition is “training that allows or enables an individual to obtain skills, abilities and/or knowledge that are designed to lead to employment.”

Individual With a Disability § 38.4(ff)

The rule revises the definition of “individual with a disability” to be consistent with the ADAAA and implementing regulations issued by the EEOC

and proposed by the DOJ.

The majority of the text lists conditions that are not included in the definition of an individual with a disability.

29 CFR 1630.3.

70 FR 4839, 4859-60, Jan. 30, 2014.

The proposed rule separates “transvestism, transsexualism, and gender dysphoria not resulting from physical impartments” from “pedophilia, exhibitionism, voyeurism and other sexual behavior disorders.” Previously, these terms were listed together and are listed together in the same definition in the ADA

and in the EEOC

100

regulations and the DOJ

101

proposed regulations implementing the ADA. The terms remain but have been separated into two groups. This change is intended to highlight the distinction between the first three terms (transvestism, transsexualism, or gender dysphoria not resulting from physical impairment) from those in the second group (pedophilia, exhibitionism, voyeurism, or other sexual behavior disorders) which carry distinctly negative connotations.

42 U.S.C. 12211(b).

100

29 CFR 1630.3(d).

101

70 FR 4839, 4859-60, January 30, 2014.

In this regard, CRC notes that Section 504 specifically excludes from the definition of disability, among other conditions, gender identity disorders that are not the result of physical impairments.

102

29 U.S.C. 705(20)(F)(i).

Finally, subparagraph (2)(i) of this definition has been changed so that it states that an individual who has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs or has otherwise been rehabilitated successfully and is no longer engaging in the illegal use of drugs is not excluded from the definition of an individual with a disability. By adding the characterization of “illegal drugs” to the last part of this subparagraph, it is easier to read and understand such use.

Limited English Proficient (LEP) Individual § 38.4(hh)

This rule proposes a new definition for “limited English proficient (LEP) individual.” The proposed definition of “limited English proficient individual” is “an individual whose primary language for communication is not English and who has a limited ability to read, speak, write and/or understand English. LEP individuals may be competent in English for certain types of communication (

e.g.,

speaking or understanding), but still be LEP for other purposes (

e.g.,

reading or writing).” Similarly, LEP designations are context specific. For example, an individual may possess sufficient English language skills to function in one setting (

e.g.,

reading a recipient's hours of operation or greeting an individual), but the individual's skills may be insufficient in other settings (

e.g.,

completing a legal document or discussing eligibility requirements). This definition is added because discrimination based on limited English proficiency may be a form of unlawful national origin discrimination.

103

The term is used elsewhere in this proposed rule, in § 38.9 defining national origin discrimination as including discrimination based on limited English proficiency. This definition is consistent with decisions interpreting the scope of national origin discrimination under Title VI

104

and regulations interpreting national origin-based discrimination,

105

and has been adopted from those DOJ regulations implementing Title VI to ensure consistency. Finally, this term is being added to provide direction to the regulated recipient community because the population attempting to apply for, participate in, and benefit from WIOA Title I-financially assisted programs and activities is increasingly diverse, speaking many languages in addition to and sometimes instead of English. According to a report issued by the U.S. Census Bureau in 2013, as of 2011, 21 percent of people aged 5 and over living in the U.S. spoke a language other than English at home, 22.4 percent of whom either spoke English not well or not at all.

106

As a result, WIOA Title I-financially assisted programs and activities have increasingly interacted with and provided services to individuals who are limited English proficient. Since fiscal year 2013, of the compliance reviews of state programs that CRC has conducted, six have revealed significant language access violations. Thus, there is a need for increased direction for recipients regarding their obligations to meet the needs of these LEP applicants, participants, and beneficiaries.

103

Lau

Nichols,

414 U.S. 563 (1974) (federal fund recipient's denial of an education to a group of non-English speakers was national origin discrimination in violation of Title VI).

104

Sandoval

Hagan,

197 F.3d 484, 510-11 (11th Cir. 1999) (holding that English-only policy for driver's license applications constituted national origin discrimination under Title VI), rev'd on other grounds, 532 U.S. 275 (2001);

Almendares

Palmer,

284 F. Supp. 2d 799, 808 (N.D. Ohio 2003) (holding that allegations of failure to ensure bilingual services in a food stamp program could constitute a violation of Title VI).

105

28 CFR 42.104.

106

American Community Survey Reports, Language Use in the United States: 2011 (August 2013).

National Programs § 38.4(ii)

This proposed rule includes the National Dislocated Worker Grant Programs and YouthBuild programs in the definition of “National Programs.” This change reflects the language in WIOA Title I Subpart D, Section 170 and Sec. 171

107

and ETA's proposed implementing regulations.

108

107

29 U.S.C. 3225-3226.

108

80 FR 20690, April 16, 2015.

Nondiscrimination Plan § 38.4(ll)

This proposed rule changes the name “Methods of Administration” for the document described in § 38.54 to “Nondiscrimination Plan,” but retains the definition of the document. This change more clearly represents the contents and purpose of this document, which is created, maintained, and implemented by the Governor to ensure compliance on the part of state programs with WIOA's nondiscrimination and equal opportunity obligations and this part.

Other Power-Driven Mobility Device § 38.4(nn)

This rule adds a definition for “other power-driven mobility device.” The term is used in the proposed rule in § 38.17, setting out the programmatic and physical accessibility requirements applicable to individuals with disabilities. This definition mirrors the definition in the DOJ ADA Title II regulations.

109

This definition is

updated because, as the technology available for mobility devices advances, devices with new capabilities, such as the Segway©, are increasingly used by individuals with mobility impairments.

109

28 CFR 35.104.

Programmatic Accessibility § 38.4(tt)

The rule adds a definition for “programmatic accessibility.” WIOA states in no fewer than ten places in Title I that recipients will comply with section 188, if applicable, and applicable provisions of the Americans with Disabilities Act of 1990, regarding the physical and programmatic accessibility of facilities, programs, services, technology, and materials, for individuals with disabilities.

110

However, WIOA does not define programmatic accessibility for this purpose. The Department's proposed definition, “policies, practices, and procedures providing effective and meaningful opportunity for persons with disabilities to participate in or benefit from aid, benefit, service and training,” provides needed direction for recipients and beneficiaries. It is important to note that the term “programmatic accessibility” in this context has a different meaning than the similar term “program accessibility” that is used in Title II of the ADA.

110

See, e.g.,

29 U.S.C. 102(b)(2)(c)(vii); 29 U.S.C. 102(b)(2)(e)(vi).

Qualified Individual With a Disability § 38.4(ww)

This rule revises the title of the definition of “qualified individual with a disability” to match the definition of “qualified” in the EEOC regulations

111

implementing Title I of the ADAAA.

111

29 CFR 1630.2(m).

Qualified Interpreter § 38.4(xx)

This NPRM amends the existing definition of “qualified interpreter” to reflect the existence of new technologies used by interpreters. The revised language states that interpreting services may be provided “either in-person, through a telephone, a video remote interpreting (VRI) service or via internet, video, or other technological methods.

112

This revision is also intended to delineate the skills and abilities that an individual must possess in order to provide interpretation services. This change to the definition is intended to assist recipients who are seeking to meet their nondiscrimination and equal opportunity responsibilities as defined in this part. This change is also intended to benefit applicants, participants, and beneficiaries.

112

See

28 CFR 35.104, definition of “auxiliary aids and services” (paragraph 1) and definition of “qualified interpreter.”

The rule adds two new subdefinitions to further explain the different meanings of “qualified interpreter” when working with individuals with disabilities and with individuals who are limited English proficient. The first new definition specifies that “qualified interpreter for an individual with a disability” includes sign language interpreters, oral transliterators, and cued-language transliterators, and describes the essential functions required to be performed by a qualified interpreter for a deaf or hard of hearing individual. This language is taken from the ADA Best Practices Tool Kit for State and Local Governments.

113

ADA Best Practices Tool Kit for State and Local Governments, General Effective Communication Requirements Under Title II of the ADA, Chapter 3, available at:

http://www.ada.gov/pcatoolkit/chap3toolkit.htm

(last accessed March 19, 2015).

The second subdefinition is for “qualified interpreter for an individual who is limited English proficient.” This new subdefinition is taken from the DOL LEP guidance and refers to an individual who demonstrates expertise in and ability to communicate information accurately in both English and in the other language and to identify and employ the appropriate mode of interpreting, such as consecutive, simultaneous, or sight translation.

114

Recipients are strongly encouraged to use certified interpreters where individual rights depend on precise, complete and accurate translations. Such situations may include,

e.g.,

a hearing on eligibility for unemployment insurance benefits or a test for obtaining certification or credentials. A certified interpreter may be someone who has been certified by the federal courts to be a qualified interpreter for legal purposes, or someone who has been certified by a national interpreter association. Certification indicates a particular level of expertise in the specific skill of interpretation, which is distinct from being bilingual.

114

DOL LEP Guidance, supra note 24 at 32296.

Reasonable Accommodation § 38.4(yy)

This NPRM revises the definition of “reasonable accommodation” to add a new paragraph (4), which reads as follows: “A covered entity is required, absent undue hardship, to provide a reasonable accommodation to an otherwise qualified individual who has an `actual disability' or `record of' a disability, but is not required to provide a reasonable accommodation to an individual who is only `regarded as' having a disability.” This change to the definition of reasonable accommodation makes it consistent with the ADAAA

115

and regulations issued by the EEOC

116

and proposed by the DOJ

117

interpreting the ADA.

115

42 U.S.C. 12101

et seq.

116

29 CFR 1630.9(e).

117

70 FR 4839, January 30, 2014.

Recipient § 38.4(zz)

This NPRM revises the definition of “recipient.” The definition retains most of the language contained in the § 38.4 definition except that the rule removes the language excluding the operators of federally-operated Job Corps Centers from the definition of recipient. As described above, WIOA Title I

118

and ETA's proposed implementing regulations

119

set forth CRC's jurisdiction to enforce the WIOA nondiscrimination and equal opportunity provisions as to Federally-operated Job Corps Centers. Thus, this NPRM revises the definition to include as recipients all Job Corps contractors and Center operators. This proposed addition to the existing definition is intended to provide consistency by placing all Job Corps Centers under CRC's jurisdiction to ensure that participants in all Job Corps Centers have the identical enforcement mechanism.

118

29 U.S.C. 3248(d).

119

80 FR 20690, April 16, 2015.

Service Animal § 38.4(fff)

This NPRM adds a definition for “service animal.” The proposed rule refers to the term “service animal” in § 38.16; therefore, the term has been defined in this section. This provision is drawn from the DOJ ADA Title II regulations at 28 CFR 35.104 and is intended to provide uniformity.

120

The EEOC has not addressed whether or not this definition would apply to employers and employment agencies covered under Title I of the ADA or Section 501 of the Rehabilitation Act.

State Workforce Agency § 38.4(lll)

This NPRM proposes to change the term “State Employment Service Agencies” to “State Workforce Agencies” to be consistent with the change to this term contained in WIOA Title I

121

and the proposed ETA regulations implementing Title I.

122

121

80 FR 20690, April 16, 2015.

122

Id.

Undue Burden or Hardship § 38.4(rrr)

This NPRM amends the definition of “undue hardship” in the context of religious accommodation to read as follows: “For the purposes of religious accommodation only, `undue hardship'

means anything more than a de minimis cost or operational burden that a particular accommodation would impose on a recipient.” This minor change to the current rule's definition removes the reference to case law and makes it consistent with EEOC's interpretation of Title VII.

123

29 CFR 1605.2(e).

Video Remote Interpreting (VRI) Service § 38.4(sss)

This NPRM adds the definition of “video remote interpreting (VRI) service” because it is an interpreting service that is increasingly integrated into services provided to individuals with disabilities and LEP individuals. The definition of “video remote interpreting service” means an interpreting service that uses video conference technology over dedicated lines or wireless technology offering high-speed, wide-bandwidth video connection that delivers high-quality video images, as provided in § 38.15. This definition mirrors the term used by the DOJ regulations implementing Title II of the ADA.

124

See

28 CFR 35.104.

Vital Information § 38.4(ttt)

This NPRM adds a new definition for “vital information.” The proposed rule uses the term “vital information” in setting forth a recipient's responsibility to meet its language access requirements. The proposed definition reads as follows: “information, whether written, oral or electronic, that is necessary for an individual to understand how to obtain any aid, benefit, service and/or training; necessary for an individual to obtain any aid, benefit, service, and/or training; or required by law. Examples of documents containing vital information include, but are not limited to, applications, consent, and complaint forms; notices of rights and responsibilities; notices advising LEP individuals of their rights under this part, including the availability of free language assistance; rulebooks; written tests that do not assess English language competency, but rather assess competency for a particular license, job, or skill for which English proficiency is not required; and letters or notices that require a response from the beneficiary or applicant, participants, or employee.

This definition is intended to provide clear direction for recipients so that they can determine what information is necessary to be translated or interpreted for limited English proficient individuals in order for recipients to meet their obligations under this part and WIOA Section 188. The definition builds upon and is consistent with the discussion of vital written materials and documents contained in the DOL LEP Guidance.

125

The guidance does not define “vital documents” or “vital information” and CRC has received feedback from Equal Opportunity Officers that this omission has caused some confusion on the part of recipients. The DOL LEP Guidance uses the term “vital documents” when discussing written language services and which documents should be translated. It explains that an effective LEP plan for a particular program or activity includes the translation of vital written materials into the languages of each frequently-encountered LEP group eligible to be served and/or likely to be affected by the recipient's program. The Guidance then provides a non-exhaustive list of examples of documents that would qualify as vital written materials, including letters containing important information regarding participation in a program or activity and notices that require a response from beneficiaries. When the LEP Guidance was issued in 2003, recipients still provided a significant percentage of aid, service, benefit, and training in person. Since then, many recipients, including unemployment insurance programs, moved to a phone-based system and then to a Web site- and Internet-based system of provision of services. Today, many WIOA Title I-financially assisted programs and activities, including unemployment insurance programs, are made available to the public largely through a Web site and the internet. While web-based services and programs offered by recipients provide beneficiaries the convenience of accessing resources remotely at almost any time, ineffectually designed or implemented Web sites may create barriers that prevent or limit access for some LEP individuals. As a result, it has become necessary to define vital information to include information delivered orally, such as in a telephone recording or phone conversation with a recipient's staff member, as well as electronically, such as contained in a recipient's Web page or email. The Department welcomes comments on this new definition.

125

DOL LEP Guidance, supra note 24 at 32298.

Wheelchair § 38.4(uuu)

The proposed rule adds a definition for “wheelchair” to read as follows: “A manually-operated or power-driven device designed primarily for use by an individual with a mobility disability for the main purpose of indoor or of both indoor and outdoor locomotion.” This definition mirrors the definition in the DOJ ADA Title II regulations at 28 CFR 35.104. CRC has proposed a separate definition for wheelchair to distinguish it from other power driven mobility devices.

General Prohibitions on Discrimination § 38.5

The title of proposed § 38.5 revises the part 37 title to read as follows: “General Prohibitions on Discrimination.”

Specific Discriminatory Actions Prohibited on Bases Other Than Disability § 38.6

The title of proposed § 38.6 revises the part 37 title to: “Specific discriminatory actions prohibited on bases other than disability.” In addition, this section replaces the term “ground” with the term “basis.”

Discrimination Prohibited Based on Sex § 38.7

The proposed rule incorporates a new section, § 38.7, titled “Discrimination prohibited based on sex.” This proposed section incorporates certain obligations already set forth in the current part 37 rule. This new section in paragraph (a) states that discrimination in WIOA Title I-financially assisted programs and activities based on pregnancy, childbirth, or related medical conditions is sex discrimination. This principle has been the law since Congress enacted the Pregnancy Discrimination Act (PDA) to amend Title VII in 1978 and is now being incorporated into the WIOA regulations consistent with current law interpreting the PDA.

126

Pregnancy discrimination is also addressed separately in proposed § 38.8.

126

42 U.S.C. 2000e(k).

In addition, paragraph (a) states that discrimination based on gender identity or transgender status is also a form of unlawful sex discrimination. As described above, the Department follows the jurisprudence developed under Title VII cases brought by the EEOC and the Department of Justice. In the EEOC's decision in

Macy

Holder,

the EEOC concluded that discrimination because of gender identity or transgender status is sex discrimination in violation of Title VII, by definition, because the discriminatory act is “related to the sex of the victim.”

127

The EEOC cited both the text of Title VII and the reasoning in

Schroer

Billington,

supra, for its conclusion.

128

See also Centola,

183 F. Supp. 2d at 410 (“Sexual orientation harassment is often, if not always, motivated by a desire to enforce heterosexually defined gender norms. In fact, stereotypes about homosexuality are directly related to our stereotype about the proper roles of men and women.”);

Heller

Columbia Edgewater Country Club,

195 F. Supp. 2d 1212 (D. Or. 2002) (“[A] jury could find that Cagle repeatedly harassed (and ultimately discharged) Heller because Heller did not conform to Cagle's stereotype of how a woman ought to behave. Heller is attracted to and dates other women, whereas Cagle believes that a woman should be attracted to and date only men.”);

Videckis

Pepperdine Univ.,

2015 WL 8916764 (C.D. Cal. 2015) (slip op) (“The type of sexual orientation discrimination Plaintiffs allege falls under the broader umbrella of gender stereotype discrimination. Stereotypes about lesbianism, and sexuality in general, stem from a person's views about the proper roles of men and women—and the relationships between them.”). The EEOC has recognized in a number of federal sector decisions that adverse actions taken on the basis of sex stereotypes related to sexual orientation, such as the stereotype that men should only date women, violate Title VII.

Castello

U.S. Postal Service,

EEOC Request No. 0520110649, 2011 WL 6960810 (Dec. 20, 2011) (sex-stereotyping evidence entailed offensive comment by manager about female subordinate's relationships with women);

Veretto

U.S. Postal Service,

EEOC Appeal No. 0120110873, 2011 WL 2663401 (July 1, 2011) (complainant stated plausible sex-stereotyping claim alleging harassment because he married a man);

Culp

Dep't of Homeland Security,

EEOC Appeal 0720130012, 2013 WL 2146756 (May 7, 2013) (Title VII covers discrimination based on associating with lesbian colleague);

Couch

Dep't of Energy,

EEOC Appeal No. 0120131136, 2013 WL 4499198, at *8 (Aug. 13, 2013) (complainant's claim of harassment based on his “perceived sexual orientation”);

Complainant

Dep't of Homeland Security,

EEOC Appeal No. 0120110576, 2014 WL 4407422 (Aug. 20, 2014) (“While Title VII's prohibition of discrimination does not explicitly include sexual orientation as a basis, Title VII prohibits sex discrimination, including sex-stereotyping discrimination and gender discrimination” and “sex discrimination claims may intersect with claims of sexual orientation discrimination.”);

Baldwin,

EEOC Appeal No. 0120133080, 2015 WL 4397641 at *7 (“Sexual orientation discrimination is also sex discrimination because it necessarily involves discrimination based on gender stereotypes.”).

133

The Seventh Circuit articulated this principle as early as 1971.

Sprogis

United Air Lines, Inc.,

444 F.2d 1194, 1198 (7th Cir. 1971) (“In forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women

resulting from sex stereotypes.”

) (emphasis added).

As a matter of policy, we support banning discrimination on the basis of sexual orientation in the administration of, or in connection with, any programs and activities funded or otherwise financially assisted in whole or in part under Title I of WIOA. Current law is mixed on whether existing Federal nondiscrimination laws prohibit discrimination on the basis of sexual orientation as a part of their prohibitions on sex discrimination. To date, no Federal appellate court has concluded that Title VII's prohibition on discrimination “on the basis of sex”—or Federal laws prohibiting sex discrimination more generally—prohibits discrimination on the basis of sexual orientation, and some appellate courts previously reached the opposite conclusion.

134

See, e.g,, Kiley

Am. Soc'y for Prevention of Cruelty to Animals,

296 Fed. App'x 107, 109 (2d Cir. 2008);

Vickers

Fairfield Med. Ctr.,

453 F.3d 757, 759 (6th Cir. 2006);

Bibby

Philadelphia Coca Cola Bottling Co.,

260 F.3d 257, 260 (3d Cir. 2001);

but cf. Latta

Otter,

771 F.3d 456 (9th Cir. 2014) (Berzon, J., concurring) (in striking down State law prohibition on same sex marriage, observing that “the same sex marriage laws treat the subgroup of men who wish to marry men less favorably than the otherwise similarly situated subgroup of women who want to marry men” and therefore constitute sex discrimination); see also

Muhammad

Caterpillar,

767 F.3d 694 (7th Cir. 2014), 2014 WL 4418649 (7th Cir. Sept. 9, 2014, as Amended on Denial of Rehearing, Oct. 16, 2014) (removing statements from previously issued panel decision that relied on outdated precedents about coverage of sexual orientation discrimination under Title VII as requested in EEOC Amicus Brief).

However, a recent EEOC decision concluded that Title VII's prohibition of discrimination “on the basis of sex” precludes sexual orientation discrimination because discrimination on the basis of sexual orientation necessarily involves sex-based considerations. The EEOC relied on several theories to reach this conclusion: A plain interpretation of the term “sex” in the statutory language, an associational theory of discrimination based on “sex,” and the gender-stereotype theory announced in

Price Waterhouse.

135

The EEOC's decision cited several district court decisions that similarly concluded that sex discrimination includes sexual orientation discrimination, using these theories.

136

The EEOC also analyzed and called into question the appellate decisions that have concluded that sexual orientation discrimination is not covered under Title VII.

137

The EEOC decision applies to workplace conditions, as well as hiring, firing, and promotion decisions, and is one of several recent developments in the law that have resulted in additional protections for individuals against discrimination based on sexual orientation.

138

Two federal district courts have since concurred with the EEOC's legal analysis in

Baldwin.

139

135

Baldwin

Foxx,

EEOC Appeal No. 0120133080, Agency No. 2012-24738-FAA-03, at 5-6 (July 15, 2015) (finding that sexual orientation is inseparable from and inescapably linked to sex and thus that an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination).

136

See id. at *4-*8.

137

See id. at *9-*10.

138

For example, just this year, the Supreme Court ruled that States may not prohibit same-sex couples from marrying and must recognize the validity of same-sex couples' marriages.

Obergefell

Hodges,

135 S. Ct. 2071 (2015).

139

Isaacs

, 2015 WL 6560655 at *3-4 (“This court agrees instead with the view of the Equal Employment Opportunity Commission that claims of sexual orientation discrimination are cognizable under Title VII. In [

Baldwin

], the Commission explains persuasively why an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.”) (internal citations and quotations omitted);

Videckis,

2015 8916764 at *8 (“This Court's conclusion [that sexual orientation discrimination is necessarily sex discrimination] is in line with a recent Equal Employment Opportunity Commission decision (`EEOC') holding that sexual orientation discrimination is covered under Title VII, and therefore that the EEOC will treat sexual orientation discrimination claims the same as other sex discrimination claims under Title VII.”);

Cf. Roberts

United Parcel Serv.,

2015 WL 4509994, *14-18 (E.D. N.Y. 2015) (referring to

Baldwin

as a “landmark ruling,” noting its criticism of federal courts for citing to dated rulings without additional analysis in the sexual orientation context, and quoting favorably from the decision at length).

The final rule should reflect the current state of nondiscrimination law, including with respect to prohibited bases of discrimination. We seek comment on the best way of ensuring

that this rule includes the most robust set of protections supported by the courts on an ongoing basis.

Paragraph (d) provides examples of sex stereotyping to assist recipients in preventing, identifying, and remedying such examples of sex discrimination in their programs. Examples of practices that constitute sex stereotyping include: Denying an individual access to, or otherwise subjecting an individual to adverse treatment in accessing aid, benefit, service, and training (proposed paragraph 38.7(d)(1)); harassment or adverse treatment of a male because he is considered effeminate or insufficiently masculine (proposed paragraph 38.7(d)(2)); adverse treatment of an applicant, participant, or beneficiary of a WIOA Title I-financially-assisted program or activity because of the individual's actual or perceived gender identity (proposed paragraph 38.7(d)(3)); adverse treatment of an applicant to, participant in, or beneficiary of, a WIOA Title I-financially assisted program or activity based on sex stereotypes about caregiver responsibilities such as assuming that a female applicant has (or will have) family caretaking responsibilities, and that those responsibilities will interfere with her ability to access aid, benefit, service, or training (proposed paragraph 38.7(d)(4)); adverse treatment of a male applicant to, or beneficiary of, a WIOA Title I-financially assisted program or activity because he has taken, or is planning to take care of, his newborn or recently adopted or fostered child, based on the sex-stereotyped belief that women, and not men, should care for children (proposed paragraph 38.7(d)(5)); denying a woman access to, or otherwise subjecting her to adverse treatment in accessing aid, benefit, service, or training, under a WIOA Title I-financially assisted program or activity based on the sex-stereotyped belief that women with children should not work long hours, regardless of whether the recipient is acting out of hostility or belief that it is acting in her or her children's best interest (proposed paragraph 38.7(d)(6)); denying an individual access to, or otherwise subjecting the individual to adverse treatment in accessing aid, benefit, service, or training under a WIOA Title I-financially assisted program or activity based on sex stereotyping including the belief that a victim of domestic violence would disrupt the program or activity and/or may be unable to access aid, benefits, services, or training (proposed paragraph 38.7(d)(7)). Proposed paragraph 38.7(d)(7) is based upon the technical assistance document issued by the EEOC interpreting Title VII's prohibition against sex discrimination in employment to include an individual's status as a victim of domestic violence.

140

The technical assistance publication states: “Title VII prohibits disparate treatment based on sex, which may include treatment based on sex-based stereotypes. For example: An employer terminates an employee after learning that she has been a subjected to domestic violence, saying he fears the potential drama battered women bring to the workplace.” The EEOC publication refers to the DOJ definition of domestic violence, which defines the term as: “a pattern of abusive behavior in any relationship that is used by one partner to gain or maintain power and control over another intimate partner. Domestic violence can be physical, sexual, emotional, economic, or psychological actions or threats of actions that influence another person. This includes any behaviors that intimidate, manipulate, humiliate, isolate, frighten, terrorize, coerce, threaten, blame, hurt, injure, or wound someone.”

141

CRC has drawn from this existing EEOC interpretation in this proposed rule.

140

“Questions and Answers,” The Application of Title VII and the ADA to Applicants or Employees Who Experience Domestic or Dating Violence, Sexual Assault or Stalking,” available at:

http://www.eeoc.gov/eeoc/publications/qa_domestic_violence.cfm

(issued in 2013) (last accessed Feb. 2, 2015).

141

See DOJ Office on Violence Against Women/Domestic Violence available at

http://www.justice.gov/ovw/domestic-violence

(last accessed March 19, 2015).

Proposed § 38.7(d)(8) addresses stereotyping based on an applicant's, participant's, or beneficiary's nonconformity with norms about how people with the applicant's, participant's, or beneficiary's assigned sex at birth should look, speak, and act. Proposed § 38.7(d)(8) states adverse treatment of a woman applicant, participant, or beneficiary of a WIOA Title I-financially assisted program or activity because she does not dress or talk in a feminine manner is an example of discrimination based on sex.

The final example in this non-exhaustive list addresses adverse treatment that occurs because of an applicant's, participant's, or beneficiary's nonconformity with stereotypes about a certain sex not working in a particular job, sector, or industry.

Discrimination Prohibited Based on Pregnancy § 38.8

The rule proposes a new § 38.8 entitled, “Discrimination prohibited based on pregnancy.” This section is intended to incorporate an existing obligation into the current rule,

i.e.,

that the prohibition against sex discrimination includes discrimination based on pregnancy, childbirth, and related medical conditions. This new section explains that limiting or denying access to any aid, benefit, service, or training under a WIOA Title I-financially assisted program or activity based on an individual's pregnancy, childbirth, or related medical conditions is sex discrimination and is thus prohibited.

Title IX of the Education Amendments of 1972

142

prohibits sex discrimination in any educational program or activity receiving federal financial assistance, including those that are financially assisted by WIOA Title I.

143

Specifically, Title IX provides in part: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

144

When it enacted Title IX, Congress was concerned with ending the “persistent, pernicious discrimination which [was] serving to perpetuate second-class citizenship for American women.”

145

Congress wanted to provide equal opportunity in education as a way to provide greater access to jobs, employment security, financial security, and ending the far-reaching effects of educational discrimination for women.

146

142

20 U.S.C. 1681

et seq.

143

20 U.S.C. 1687 (Title IX provision applicable to vocational education and training programs).

144

20 U.S.C. 1681(a).

145

118 Cong. Rec. 5804 (1972) (statement of Sen. Bayh).

146

Emily McNee, Pregnancy Discrimination in Higher Education: Accommodating Student Pregnancy,

20 Cardozo J. L & Gender 63 (2013).

As far back as 1974, federal agency regulations, promulgated under Title IX, have included pregnancy as a basis of prohibited discrimination in programs and activities receiving Federal financial assistance.

147

The Department of Education's regulations unequivocally apply Title IX's prohibition against sex discrimination to discrimination on the basis of pregnancy and parental status, stating: “A recipient shall not apply any rule concerning a student's actual or potential parental, family, or marital status which treats students differently

on the basis of sex.”

148

Section 106.40(b) specifically provides that a recipient must not “discriminate against any student, or exclude any student from its education program or activity, including any class or extracurricular activity, on the basis of such student's pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom.” The substantive provisions of DOL's Title IX regulations at 29 CFR part 36, like those of approximately twenty other federal agencies, were modeled on and are essentially identical to the Department of Education's regulations.

149

Thus, DOL's regulations likewise prohibit discrimination based on pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom.

147

The Department of Health Education and Welfare's (HEW) Title IX regulations at 45 FR 24128 included pregnancy as a protected basis. HEW's regulations were adopted by the Department of Education in 1980. 34 CFR 106.40.

148

34 CFR 106.40(a).

149

65 FR 52858 at 52859.

When Congress amended Title VII in 1978 by enacting the Pregnancy Discrimination Act (PDA), the protections against sex discrimination in the context of employment were expanded to include protections against discrimination based on pregnancy, childbirth, and related medical conditions. While the PDA does not directly govern the nondiscrimination obligations of a program or activity receiving Federal financial assistance, the principles underlying the PDA were built on Title IX's prohibitions against discrimination on the basis of pregnancy and actual or potential parental status.

150

Section 38.8 relies on both the PDA and Title IX. It is not uncommon for courts to do so as well.

151

Further, because there is significantly more available jurisprudence under Title VII,

152

courts apply the Title VII burdens of proof to allegations of pregnancy discrimination under Title IX.

153

150

See

123 Cong. Rec. 29662 (1977) (statement of Sen. Cranston (D—CA)),

reprinted in

Legis. History of the Pregnancy Discrimination Act of 1978, at 128 (1980).

151

See Chipman

Grant County School Dist.,

30 F.Supp.2d 975 (E.D. Ky. 1998) (“Although [the] language [of Title IX] is somewhat different, its purpose is generally the same as the Pregnancy Discrimination Act.”), citing

Pfeiffer

Marion Ctr. Area Sch. Dist.,

917 F.2d 779, 784 (3d Cir. 1990) (“regulations promulgated pursuant to Title IX specifically apply its prohibition against gender discrimination to discrimination on the basis of pregnancy”);

Cooper

Rogers,

Case No. 2:11-CV-964-MEF, 2012 WL 2050577, *8 (M.D. Ala. June 06, 2012).

152

Since the passage of Title IX, there have been fewer than fifteen reported cases where a federal court has heard a claim of pregnancy discrimination under Title IX. Kendra Fershee,

An Act For All Contexts: Incorporating The Pregnancy Discrimination Act Into Title IX To Help Pregnant Students Gain And Retain Access To Education,

39 Hofstra L. Rev. 281 (2010) citing Michelle Gough, Parenting and Pregnant Students: An Evaluation of the Implementation of the “Other” Title IX, 17 Mich. J. Gender & L. 211, 220-47 (2011).

153

Darien

University of Massachusetts,

980 F. Supp. 77, 92 (D. Mass. 1997), citing

Lipsett

University of Puerto Rico,

864 F.2d 881, 897 (1st Cir. 1988) (holding claims under Title IX will be analyzed using the Title VII burden shifting analysis in the employment context).

Proposed paragraph (a) of § 38.8 adopts the principle set forth in Title IX and the PDA

154

that discrimination on the basis of sex includes “because of or on the basis of pregnancy, childbirth, or related medical conditions.”

155

It requires that employers treat employees and job applicants of childbearing capacity and those affected by pregnancy, childbirth or related medical conditions the same for all employment-related purposes as other persons not so affected but similar in their ability or inability to work and defines the term “related medical conditions.” Proposed paragraphs 38.8(a-d) provide the following examples that may be prohibited pregnancy discrimination: Refusing to provide aid, benefit, service, training or employment under a WIOA Title I-financially assisted program or activity to a pregnant individual or an individual of childbearing capacity, or otherwise subjecting such individuals to adverse treatment on the basis of pregnancy, related medical conditions, or childbearing capacity; limiting an individual's access to any aid, benefit, service, or training under a WIOA Title I-financially assisted program or activity based on that individual's pregnancy, or requiring a doctor's note in order for a pregnant individual to continue participation while pregnant; and denying accommodations or modifications to a pregnant applicant or participant who is temporarily unable to participate in a program or activity because of pregnancy, childbirth, and/or related medical conditions, when such accommodations or modifications are provided to other participants who are similarly affected.

156

Without such accommodations, many pregnant individuals are unable to participate in job training programs or activities. Consequently, some pregnant individuals who need reasonable accommodations lose opportunities to receive job training and other WIOA Title I-financially assisted aid, benefits, services, or training to assist them in obtaining employment.

154

42 U.S.C. 2000e(k).

155

The statutory term “related medical conditions” appears in the PDA only.

156

This Pregnancy Discrimination Act obligation applies even though “pregnancy itself is not an impairment within the meaning of the [Americans with Disabilities Act of 1990, 42 U.S.C. 12101

et seq.,

as amended], and thus is never on its own a disability.” EEOC,

Enforcement Guidance: Pregnancy Discrimination and Related Issues, sec. II.A

(July 14, 2014) (footnote omitted), available at

http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm

(last accessed March 19, 2015). Under the ADA, accommodation is required for qualified individuals absent undue hardship when a physical or mental impairment (including one caused by pregnancy) substantially limits a major life activity.

The range of accommodations to address the temporary limitations of a pregnant applicant, participant, or beneficiary in a WIOA Title I-financially assisted program or activity may include simple things that involve little or no cost, such as permitting more frequent bathroom breaks and allowing the pregnant individual to sit down during a training program or applications or interview process.

157

Other temporary limitations, however, may require a temporary light-duty assignment to accommodate lifting or bending restrictions that a pregnant participant or trainee may have.

157

In addition, the Fair Labor Standards Act, 29 U.S.C. Section 207(r), requires FLSA-covered employers to provide reasonable break time for an employee to express breast milk for her nursing child for one year after the child's birth, each time such employee has need to express the milk. Employers are also required to provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk. FLSA-covered employers with fewer than 50 employees are not subject to the FLSA break time requirement if compliance with this provision would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer's business.

Denying an alternative assignment, modified duties, or other accommodations to a pregnant applicant, participant, or beneficiary who is temporarily unable to perform some program or activity duties because of pregnancy, childbirth, or a related medical condition may be sex discrimination when such assignments, modifications, or other accommodations are provided, or are required to be provided, by a recipient's policy or other relevant laws, to other individuals whose abilities to perform some of their program or activity duties are similarly affected (proposed Sec. 38.7). Thus, for example, a recipient that permits light-duty assignments for individuals who are unable to perform their regular assignments due to on-the-job injuries or disabilities may also be required to permit light-duty assignments for individuals who are unable to perform their regular assignments due to pregnancy. The approach set forth in the proposed rule with respect to pregnancy accommodation is intended to align with the U.S. Supreme Court's decision in

Young

United Parcel Serv., Inc.,

135 S. Ct. 1338 (2015). Thus, in analyzing pregnancy-based sex

discrimination allegations that seek to show disparate treatment related to accommodation requests by using indirect evidence, CRC will apply the three-part analytical framework set forth by the Supreme Court in

McDonnell Douglas Corp.

Green,

411 U.S. 792, 802-805 (1973). Specifically with respect to demonstrating pretext, CRC will follow the analysis described in

Young,

supra at 1354-55.

158

CRC solicits comments from the public on how best to operationalize application of the Court's pretext analysis.

158

The EEOC has issued guidance in the employment context.

See U.S. Equal Employment Opportunity Commission, Enforcement Guidance: Pregnancy Discrimination and Related Issues

(July 25, 2015), available at

http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm

(last accessed Sept. 24, 2015).

Discrimination Prohibited Based on National Origin, Including Limited English Proficiency § 38.9

In an effort to facilitate consistent Federal enforcement, the NPRM proposes adding a new section on national origin discrimination. Proposed paragraph (a) states the existing obligation that a recipient must not discriminate on the basis of national origin in providing any aid, benefit, service, or training under any WIOA Title I-financially assisted program or activity. It also explains that national origin discrimination includes “treating individual beneficiaries, participants, or applicants for aid, benefit, service or training adversely because they (or their ancestors) are from a particular country or part of the world, because of ethnicity or accent (including adverse treatment because they have the physical, linguistic, and cultural characteristics closely associated with a national origin group).”

Proposed paragraph (b) adopts the well-established principle under Title VI of the Civil Rights Act of 1964, as amended,

159

that recipients of Federal financial assistance must take reasonable steps to provide meaningful access to each LEP individual whom they serve or encounter. This same principle has applied to recipients in their WIA Title I-financially assisted programs and activities and likewise applies to all recipients in their WIOA Title I financially-assisted programs or activities. This provision reflects the fundamental obligation of recipients to provide meaningful access to LEP individuals,

e.g.,

to effectively understand communications and to make themselves understood. This paragraph provides examples of reasonable steps: “Reasonable steps generally may include, but are not limited to, an assessment of an LEP individual to determine language assistance needs; providing oral interpretation and written translation of both hard-copy and electronic materials, in the appropriate non-English languages to LEP individuals; or outreach to limited English proficient communities to improve service delivery in needed languages.” The Department intends this to be a flexible standard that evaluates the level, type, and manner of language services required in light of the particular facts, such as the nature of the communication, the language of the LEP individual, and the recipient involved.

160

The proposed section further provides direction regarding the application of the term “reasonable steps” in the context of training programs. “Reasonable steps to provide meaningful access to training programs may include, but are not limited to providing: (1) Written training materials in appropriate non-English languages by written translation or by oral interpretation or summarization; and (2) Oral training content in appropriate non-English languages through in-person interpretation or telephone interpretation.”

159

42 U.S.C. 2000d

et seq.

160

DOL LEP Guidance, 68 FR 32293-32295 (describing the factors recipients should consider, and the factors that CRC will consider, in determining the extent of recipients' obligations to LEP individuals).

The proposed language provides familiarity and consistency for recipients about the scope of their obligations. It is particularly critical that LEP individuals be provided meaningful access to information in the context of access to any aid, benefit, service, and/or training, because that information—including, for example, how to apply for unemployment insurance benefits, how to appeal a denial of benefits, how to apply for and participate in job training and employment opportunities—is often essential to ensure beneficiaries' access to necessary employment-related opportunities.

Additionally, the NPRM proposes adding paragraphs (c) through (i), which specify the actions recipients must take to ensure language access. Proposed paragraph (c) makes clear that a recipient should ensure that every program delivery avenue, including electronic, in person, and/or telephonic communication, conveys in the appropriate languages how an individual can effectively learn about, participate in, and/or access any aid, benefit service or training that the recipient provides. This provision would ensure that, as recipients convert to on-line delivery systems, language access is not lost in the transition.

Paragraph (d) specifies that any language assistance services whether oral interpretation or written translation, must be provided free of charge and in a timely manner.

161

Consistent with the approach in the Department's LEP Guidance that there is no one definition for “timely” that applies to every type of interaction with every type of recipient at all times, CRC declines to define “timely” for the purposes of this section. A determination of whether language assistance services are timely will depend on the specific circumstances of each case. However, CRC echoes the LEP Guidance's recognition that language assistance is timely when it is provided at a time and place that avoids the effective denial of or imposition of an undue burden on or delay in important aid, benefits, services, or training to LEP individuals.

162

161

This principle is consistent with long-standing concepts reflected in the DOL LEP Guidance.

See

68 FR at 32297 (with respect to privacy), 32296 (with respect to timeliness), and 32300 (with respect to services free of charge).

162

Id.

at 47316.

Paragraph (e) states that a recipient must provide adequate notice to LEP individuals of the existence of interpretation and translation services and that they are free of charge. The provision would ensure that LEP individuals are aware that they do not have to navigate the workforce system unassisted.

Paragraph (f) identifies restrictions on the use of certain persons to provide language assistance services for an LEP individual. This paragraph applies regardless of the appropriate level, type, or manner of language assistance services a recipient is required to provide. Based upon the CRC's experience, the use of incompetent or ad hoc interpreters, such as family members, including children, and friends, is not uncommon and can have negative consequences if the interpretation is not accurate. Thus, proposed paragraph (f) prohibits a recipient from requiring an LEP individual to provide his/her own interpreter. Proposed paragraphs (f)(1)-(2), however, identify narrow and finite situations in which a recipient may rely on an adult accompanying an LEP individual to interpret. Proposed paragraph (f)(2)(i) provides that an LEP individual's minor child or adult family or friend(s) may interpret or facilitate communication in emergency situations while awaiting a qualified interpreter. Proposed paragraph (f)(2)(ii) states that an accompanying adult may interpret or

facilitate communication when the information conveyed is of minimal importance to the services to be provided or when the LEP individual requests that the accompanying adult provide language assistance, the adult agrees, and reliance on that adult is appropriate. If the LEP individual voluntarily chooses to provide their own interpreter, a recipient must make and retain a record of the individual's decision to use their own interpreter. This provision allows the LEP individual to rely on an adult of their own choosing, but requires that the recipient document that choice so that there can be no question regarding the voluntariness of the choice of interpreter. Proposed paragraph (f)(3) outlines that when precise, complete, and accurate interpretations or translation of information and/or testimony are critical for adjudicatory or legal reasons, or where the competency of the LEP person's interpreter is not established, a recipient may decide to provide its own, independent interpreter, even if an LEP individual wants to use their own interpreter as well.

Paragraph (g) addresses recipients' LEP requirements as to vital information. Paragraph (g)(1) provides that, for languages spoken by a significant number or portion of the population eligible to be served or likely to be encountered, recipients must translate vital information in written materials into these languages and make the translations readily available in hard copy, upon request, or electronically such as on a Web site. Written training materials offered or used within employment-related training programs as defined under § 38.4(t) are excluded from these translation requirements. The Department is cognizant of the challenge posed by translating the variety of training materials into so many languages as may be necessary in an employment-related training program. The vital information these materials contain can be provided to LEP participants by oral interpretation or summarization during the training program itself. However, recipients must still take reasonable steps to ensure meaningful access to training programs as stated in (b) of this section. Reasonable steps to ensure meaningful access for LEP individuals to employment-related training programs may include offering courses such as English as a Second Language (ESL) to the individual concurrent with the training program, or enrollment in such a program to attain a sufficient level of English proficiency to become eligible for a specific job or training program. Importantly, whenever possible, the LEP individual's access to the training program, and thus any resulting employment opportunity, should not be delayed by enrollment in an ESL course.

Paragraph (g)(2) states: “For languages not spoken by a significant number or portion of the population eligible to be served, or likely to be encountered, a recipient must make reasonable steps to meet the particularized language needs of LEP individuals who seek to learn about, participate in, and/or access the aid, benefit, service or training that the recipient provides. Vital information may be conveyed orally if not translated.” For these languages, recipients are not obligated to provide written translations of vital information in advance of a request by an LEP individual. Recipients are, however, required to take reasonable steps, including oral translation, to provide access to vital information. Paragraph (g)(3) states that recipients must include a “Babel notice” indicating that language assistance is available, in all communications of vital information, such as hard-copy letters or decisions or those communications posted on Web sites. This requirement would ensure that LEP individuals know how to obtain language assistance for vital information that has not been translated into the LEP individual's preferred, non-English language.

Paragraph (h) addresses the situation in which a recipient becomes aware of the particularized language needs of an individual. The proposed provision states: “To the extent otherwise required by this part, once a recipient becomes aware of the non-English preferred language of an LEP beneficiary, participant, or applicant for aid, benefit, service or training, the recipient must convey vital information in that language.” This obligation to provide meaningful access as soon as the entity becomes aware that the individual is LEP exists regardless of whether the LEP individual's language is spoken by a significant number or portion of the population to be served.

Paragraph (i) provides that recipients should develop a written language access plan to ensure LEP individuals have meaningful access to their programs and activities and references Appendix A of this part where the Department has provided guidance to recipients on developing a language access plan.

In evaluating the scope of a recipient's obligations to provide meaningful access, recipients should, and CRC proposes to, give substantial weight to the nature and importance of the program or activity, including the particular communication at issue, in determining the appropriate level, type and manner of language assistance services to be provided. At the same time, CRC recognizes that a recipient's operations and capacity may be relevant in evaluating the level, type, and manner of language assistance services it is required to provide. Thus, recipients may also consider the proportion of LEP individuals of a particular language group eligible to be served or likely to be encountered by the recipient; the frequency of contacts between LEP individuals who speak that language and the recipient's program or activity;

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and the resources available to the recipient and the costs of language assistance services. Importantly, while these criteria may be used in an assessment of how, and at what level, language assistance services must be provided, they are not intended to relieve a recipient of its core obligation to take reasonable steps to enable LEP individuals to gain meaningful access to its programs and activities.

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As described in the DOL LEP Guidance, the first and second factors evaluate the proportion of LEP individuals in the relevant area and the frequency of the recipient's contact with those individuals. Further explanatory material in the Guidance makes clear, however, that the focus of the inquiry should be on the proportion of individuals in, and frequency of contact with, speakers of a particular language group, not all LEP individuals. CRC intends for recipients to apply the criteria to this narrower group of LEP individuals.

For instance, a recipient may choose to consider whether the preferred language of an LEP individual is one that is frequently spoken or one that the recipient only rarely encounters. In the latter circumstance, and depending on the importance of the communication at issue, the recipient might satisfy the requirements of Section 188 and this proposed part by providing an oral summary of the information rather than a written translation. Given the widespread commercial availability of relatively low-cost language assistance services such as remote oral interpretation, as well as the nature and importance of covered entities' employment-related programs or activities, CRC expects that most recipients will, at a minimum, have the capacity to provide LEP individuals with remote oral interpretation via telephone.

Recipients may not use their analysis of these various factors as a defense or excuse for providing language assistance services in an untimely manner. CRC recognizes that a recipient may wish to conduct thorough assessments of its language assistance needs and

comprehensively create the operational infrastructure to execute a variety of high quality language assistance services. CRC urges recipients to pursue such high standards and to create language access plans that will identify in advance the types and levels of services that will be provided in each of the contexts in which the recipient entity encounters LEP individuals. At the same time, the pursuit of such goals cannot come at the expense of failing to provide language assistance services at all or in an untimely manner if such services are reasonable steps to provide meaningful access. Recipients should consider how they can ensure that language assistance services are available in their programs and activities as they simultaneously conduct further language needs assessments or improve their operational capacities to provide effective language assistance services.

The Department acknowledges that its LEP guidance long has employed “four factors” when assessing a recipient's compliance with its obligation to provide meaningful access.

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This proposal does not include them in the regulatory text because the obligation of a recipient is to provide meaningful access in the form of language assistance of some type. Recipients should, and CRC will, review each situation based on the facts presented. Thus, the Department does not want to impose a formulaic analysis that would detract from the primary weight to be placed on the nature and importance of the program or activity. The Department seeks comment on this approach, particularly whether the four factors should instead be incorporated into the regulatory text, whether the weight to be accorded the “nature and importance” factor is appropriate, and whether there are additional factors that should be part of the analysis.

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See

68 FR 32293-32295.

The DOL LEP Guidance issued in 2003 did not specifically define what constitutes a “significant number or proportion of the eligible service population.” To provide the regulated community with more direction, the Department is considering a regulatory scheme requiring recipients to provide a range of language assistance services in the non-English languages spoken by state-wide populations with limited English proficiency that meet defined thresholds. Such thresholds would address the requirements for written translatio

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