# Implementation of the Nondiscrimination and Equal Opportunity Provisions of the Workforce Innovation and Opportunity Act > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2016-27737 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** December 2, 2016 - **Citation:** 81 FR 87130 ## Text 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: Final rule. SUMMARY: This final rule revises the U.S. Department of Labor (Department) regulations implementing the nondiscrimination and equal opportunity provisions of Section 188 of the Workforce Innovation and Opportunity Act (WIOA). Signed by President Obama on July 22, 2014, WIOA superseded the Workforce Investment Act of 1998 (WIA) as the Department's primary mechanism for providing financial assistance for a comprehensive system of job training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, or political affiliation or belief, or, for beneficiaries, applicants, and participants only, on the basis of citizenship status, or participation in a program or activity that receives financial assistance under Title I of WIOA. This final rule updates Department regulations consistent with current law and addresses its application to current workforce development and workplace practices and issues. DATES: Effective Date: These regulations are effective December 2, 2016. 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 Regulatory History 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 rule was prepared, the Department's Civil Rights Center (CRC) issued a final rule in July 2015 (“2015 rule”), codified at 29 CFR part 38, which applies until this rule takes effect. The 2015 rule retained the provisions in 29 CFR part 37 (“1999 rule”) but simply substituted all references to WIA with WIOA to reflect the proper statutory authority. This final rule revises the 2015 rule and generally carries over the policies and procedures found in the 1999 and 2015 rules, which implemented the equal opportunity and nondiscrimination provisions of WIA and WIOA, respectively. Like the 1999 and 2015 rules, this final rule is organized into subparts A through E. Purpose of the Regulatory Action CRC enforces Section 188 of 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, or political affiliation or belief, or, for beneficiaries, applicants, and participants only, on the basis of 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 (Title VI) (prohibiting discrimination based on race, color, or national origin in programs and activities receiving federal financial assistance), 1 Title IX of the Education Amendments of 1972 (Title IX) (prohibiting discrimination based on sex in education and training programs receiving federal financial assistance), 2 the Age Discrimination Act of 1975 (prohibiting discrimination based on age), 3 and Section 504 of the Rehabilitation Act (Section 504) (prohibiting discrimination based on disability). 4 CRC interprets the nondiscrimination provisions of WIOA consistent with the principles of Title VII of the Civil Rights Act (Title VII), 5 the Americans with Disabilities Act (ADA), 6 as amended by the Americans with Disabilities Act Amendments Act (ADAAA), 7 and Section 501 of the Rehabilitation Act, 8 which are enforced by the Equal Employment Opportunity Commission (EEOC); Executive Order 11246 9 and Section 503 of the Rehabilitation Act, 10 which are enforced by the Department's Office of Federal Contract Compliance Programs (OFCCP); Title VI of the Civil Rights Act, the Age Discrimination Act of 1975, and Section 504 of the Rehabilitation Act, which are enforced by each federal funding agency; and Title IX, which is enforced by each federal funding agency that assists an education or training program. 1 42 U.S.C. 2000d et seq. 2 20 U.S.C. 1681 et seq. 3 42 U.S.C. 6101 et seq. 4 29 U.S.C. 794. 5 42 U.S.C. 2000e et seq. 6 42 U.S.C. 12101 et seq. 7 42 U.S.C. 12101 et seq., Public Law 110-325, 122 Stat. 3553 (2008). 8 29 U.S.C. 791. 9 Executive Order 11246, 30 FR 12319, Sept. 24, 1965, as amended by Executive Order 11375, 32 FR 14303, Oct. 17, 1967; Executive Order 12086, 43 FR 46501, Oct. 10, 1978; Executive Order 13279, 67 FR 77141, Dec. 12, 2002; Executive Order 13665, 79 FR 20749, Apr. 8, 2014; and Executive Order 13672, 79 FR 42971, July 21, 2014. 10 29 U.S.C. 793. CRC issued a notice of proposed rulemaking (NPRM) on January 26, 2016, to implement the nondiscrimination and equal opportunity provisions of WIOA, informed by CRC's experience under the 1999 rule implementing WIA. CRC maintains regular contact with the regulated community, and this contact resulted in some of the changes to the 2015 rule that were proposed in the NPRM. During the 60-day public comment period, CRC received 360 comments 11 on the proposed rule. Comments came from a wide variety of stakeholders, including State and local agencies; civil rights and advocacy groups, such as language access organizations, disability rights organizations, and organizations serving lesbian, gay, bisexual, and transgender (LGBT) individuals; religious organizations; and labor organizations. After a full review of the comments, CRC adopts this final rule incorporating many of the provisions proposed in the NPRM, with some modifications that are discussed in the Section-by-Section analysis below. 11 This includes one comment that was withdrawn and reissued without personally identifiable information and one comment documenting contact with an outside party during the comment period. This rule sets forth the WIOA Section 188 nondiscrimination and equal opportunity requirements and obligations for “recipients” as that term is defined in § 38.4(zz). These requirements and obligations arise in connection with programs or activities financially assisted under WIOA Title I as explained further below. The final rule describes the enforcement procedures for implementing the nondiscrimination and equal opportunity provisions of WIOA. Although WIOA did not change the nondiscrimination and equal opportunity provisions in Section 188, Congress mandated that the Department issue regulations to implement the section, including standards for determining discrimination and enforcement procedures, as well as procedures to process complaints. 12 12 29 U.S.C. 3248(e). To best understand the application of this regulation, readers are encouraged to review the “applicability” language at § 38.2, the definition of “financial assistance” under Title I of WIOA at § 38.4(x) and (y), and the definition of “recipient” at § 38.4(zz). Entities connected to the workforce development system may be recipients for purposes of Section 188 and this rule even if they do not receive assistance in the form of money. For example, recipients subject to these regulations include entities with agreements, arrangements, contracts, subcontracts, or other instruments for the provision of assistance or benefits under WIOA Title I. 13 Thus, entities that are selected and/or certified as eligible training providers are considered to receive financial assistance for the purpose of this regulation and Section 188. 14 Additionally, programs and activities operated by one-stop partners (both required partners and additional partners) also receive financial assistance for purposes of this regulation to the extent that these programs and activities are being conducted as part of the one-stop delivery system. 15 We note, however, that whether an entity is an additional one-stop partner subject to Section 188 is based on whether that entity has signed a Memorandum of Understanding as an additional partner per the requirements of Section 121 of WIOA 16 and not merely whether that entity is working with or contributing something to a WIOA Title I program. 17 13 See § 38.4(x)(5), (y)(5). 14 Section 38.4(zz)(6) (service providers, including eligible training providers, are recipients); see also § 38.4(ggg) (defining “service provider”). 15 Section 38.2(a)(2). 16 See 29 U.S.C. 3151. 17 Please note that this sentence is limited in scope as to whether an entity is a one-stop additional partner subject to this regulation. Even if an entity does not qualify as a one-stop additional partner, that entity might still be subject to the requirements of this regulation if it is otherwise a recipient of financial assistance under Title I of WIOA. Since their promulgation in 1999, the regulations implementing Section 188 of WIA or WIOA had not undergone substantial revision. The 2015 rule made only technical revisions to the 1999 rule, changing references from “WIA” to “WIOA.” Thus, the 2015 rule did 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 had not been revised to reflect changes in the practices of recipients since 1999, including the use of computer-based and internet-based systems to provide aid, benefits, services, or training through WIOA Title I-financially assisted programs and activities. For these reasons, this final rule revises 29 CFR part 38 to set forth recipients' nondiscrimination and equal opportunity obligations under WIOA Section 188 in accordance with existing law and policy. This rule updates 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 rule 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 interpretations of Title VII and the Rehabilitation Act into the workforce development system. The final rule reflects current law and legal principles applicable to a recipient's obligation to refrain from discrimination and to ensure equal opportunity. Major Revisions First, this final rule improves the overall readability of the 2015 rule through revisions, limited reorganization of sections, and more explicit descriptions of recipient obligations. The final rule 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. The plain language of the regulations is retained for ease of comprehension and application. Second, this rule updates the nondiscrimination and equal opportunity provisions of the 2015 rule 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. 18 During that time, the Department has issued final rules under Section 503 of the Rehabilitation Act and Executive Order 11246. 19 18 See U.S. Dep't of Justice, Office of the Att'y Gen., Amendment of Americans with Disabilities Act Title II and III Regulations to Implement ADA Amendments Act of 2008; Final Rule, 81 FR 53204, Aug. 11, 2016 (revising 28 CFR parts 35 and 36) (hereinafter “DOJ Final Rule to Implement ADAAA”); U.S. Equal Emp't Opportunity Comm'n, Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act, as Amended; Final Rule, 76 FR 16978, Mar. 25, 2011 (29 CFR part 1630) (hereinafter “EEOC Final Rule to Implement ADAAA”); see also U.S. Dep't of Health & Human Servs., Office for Civil Rights, Nondiscrimination in Health Programs and Activities; Final Rule, 81 FR 31376, May 18, 2016 (implementing Section 1557 of the Affordable Care Act, which prohibits discrimination on the grounds prohibited by Title VI, Title IX, the Age Act, and Section 504) (hereinafter “HHS Nondiscrimination Final Rule”). 19 U.S. Dep't of Labor, Office of Fed. Contract Compliance Programs, Discrimination on the Basis of Sex; Final Rule, 81 FR 39108, June 15, 2016 (revising 41 CFR part 60-20) (hereinafter “OFCCP Sex Discrimination Final Rule”); U.S. Dep't of Labor, Office of Fed. Contract Compliance Programs, Implementation of Executive Order 13672 Prohibiting Discrimination Based on Sexual Orientation and Gender Identity by Contractors and Subcontractors; Final Rule, 79 FR 72985, Dec. 9, 2014 (revising 41 CFR parts 60-1, 60-2, 60-4, and 60-50) (hereinafter “OFCCP Executive Order 13672 Final Rule”); U.S. Dep't of Labor, Office of Fed. Contract Compliance Programs, Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors Regarding Individuals with Disabilities; Final Rule, 78 FR 58862, Sept. 24, 2013 (revising 41 CFR part 60-741). Third, this final rule improves the effectiveness of CRC's enforcement program to support compliance with the rule. The compliance review and complaint procedures sections are updated and the changes are intended to increase compliance through clearer descriptions of recipient responsibilities, more effective Equal Opportunity (“EO”) Officers, enhanced data collection, and consistent monitoring and oversight by Governors. These changes help identify the scope of the nondiscrimination and equal opportunity requirements and obligations with more specificity and inform those who may not otherwise be aware of the developments in the law. Statement of Legal Authority Statutory Authority The statutory authorities for this final rule are: The Workforce Innovation and Opportunity Act, Public Law 113-128, 128 Stat. 1425, including Section 188 of such Act. Section 188 incorporates the prohibitions against discrimination under 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 et seq. ); and Title IX of the Education Amendments of 1972, as amended, Public Law 92-318, 86 Stat. 373 (20 U.S.C. 1681 et seq. ). Departmental Authorization Secretary's Order 04-2000 delegates authority and responsibility to CRC for developing, implementing, and monitoring the Department's civil rights enforcement program under all equal opportunity and nondiscrimination requirements applicable to programs and activities financially assisted and conducted by the Department, including Section 188 of WIA. Section 5 of the Secretary's Order also authorizes 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. 20 Section 5(A)(1)(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. 20 65 FR 69184, Nov. 15, 2000. Interagency Coordination The DOJ, under Section 1-201 of Executive Order 12250, 21 is responsible for coordinating federal enforcement of most nondiscrimination laws that apply to federally assisted programs and activities. Executive Order 12067 22 requires federal departments and agencies to consult with the EEOC about regulations involving equal employment opportunity. The Age Discrimination Act of 1975, as amended, assigns the Secretary of the U.S. Department of Health and Human Services (HHS) the responsibility for coordinating the federal enforcement effort of that Act. Accordingly, the final rule has been developed in coordination with the DOJ, the EEOC, and HHS. In addition, as appropriate, this rule has been developed in coordination with other federal grantmaking agencies, including the U.S. Departments of Education and Housing and Urban Development. 21 45 FR 72995, Nov. 4, 1980. 22 43 FR 28967, July 5, 1978. I. Overview of the Final Rule This final 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 bases 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 and grant applicants, 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 the Workforce Innovation and Opportunity Act (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 conducting compliance reviews, processing complaints, issuing determinations, and handling breaches of conciliation agreements. Subpart E—Federal Procedures for Effecting Compliance. This subpart describes the procedures for effecting compliance, including actions CRC 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 Revisions Generally The final rule incorporates current jurisprudence under Title VII and other employment nondiscrimination laws, as well as EEOC guidance interpreting those nondiscrimination obligations. We rely on this guidance 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, 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 that require equal employment opportunity. CRC thus generally defers to the EEOC's interpretations of Title VII and other relevant employment laws as they apply to job applicants to and employees of recipients. 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 prohibitions based on, among other grounds, race, color, and national origin in programs and activities receiving federal financial assistance. Thus, CRC 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, the DOJ is the lead federal agency responsible for defining the parameters of the nondiscrimination and equal opportunity provisions of Title II of the ADA regarding State and local government entities. Developments in National Origin and Language Access Discrimination Jurisprudence Consistent with Title VI case law and the DOJ's 2002 guidance on ensuring equal opportunity and nondiscrimination for individuals who are limited English proficient (LEP), 23 this final rule provides that recipients must not discriminate on the basis of national origin against individuals who are LEP. 23 U.S. Dep't of Justice, 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 (hereinafter “DOJ 2002 LEP Guidance”). Title VI provides that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 24 Interpreting Title VI, the Supreme Court in Lau v. Nichols 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. 25 Courts have consistently found that a recipient's failure to provide meaningful access to LEP individuals violates Title VI's prohibition of national origin discrimination. 26 Consequently, this final rule provides that the definition of national origin discrimination includes discrimination based on limited English proficiency. The final rule sets forth recipients' compliance obligations for ensuring that LEP individuals have meaningful access to WIOA programs and services. 24 42 U.S.C. 2000d. 25 414 U.S. 563, 568-69 (1974). 26 See, e.g., Colwell v. Dep't of Health & Human Servs., 558 F.3d 1112, 1116-17 (9th Cir. 2009) (noting that Lau concluded “discrimination against LEP individuals was discrimination based on national origin in violation of Title VI”); United States v. Maricopa Cnty., 915 F. Supp. 2d 1073, 1079-80 (D. Ariz. 2012) (discussing Lau ); Faith Action for Cmty. Equity v. Hawaii, No. 13-00450 SOM/RLP, 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,” allegedly pretextual justifications for the policy, and potentially derogatory comments by a State agency). The final rule is also consistent with CRC guidance issued in 2003, advising all recipients 27 of federal financial assistance from the Department of Labor of the Title VI prohibition against national origin discrimination affecting LEP individuals. 28 This 2003 U.S. Department of Labor (DOL) 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. 29 Executive Order 13166 further directs that all such guidance documents be consistent with the compliance standards and framework detailed in LEP Guidance issued by the DOJ. 30 The LEP provisions of this final rule are drawn from Title VI and its implementing regulations, and thus are consistent with, the DOJ 2000 and 2002 LEP Guidance. 27 In this instance, the term “recipient” is broader than the definition at § 38.4(zz). See notes 13-17 and accompanying text for an explanation of the term “recipient” with respect to WIOA Title I programs and activities. 28 U.S. Dep't of Labor, 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, 68 FR 32290, May 29, 2003 (hereinafter “DOL LEP Guidance”). 29 65 FR 50121, Aug. 11, 2000. 30 Id.; see U.S. Dep't of Justice, Enforcement of Title VI of the Civil Rights Act of 1964—National Origin Discrimination Against Persons with Limited English Proficiency, 65 FR 50123, Aug. 16, 2000. Developments in Disability Discrimination Jurisprudence The Americans with Disabilities Act Amendments Act of 2008 amended the ADA and the Rehabilitation Act, both of which apply, in distinct ways, to different groups of recipients under this rule. Consistent with Executive Order 13563's instruction to federal agencies to coordinate rules across agencies and harmonize regulatory requirements where appropriate, the final rule adopts language consistent with the ADAAA and corresponding revisions to the EEOC regulations implementing the ADAAA provisions in Title I of the ADA 31 and the DOJ regulations implementing the ADAAA provisions in Title II and Title III of the ADA. 32 The final rule 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. The NPRM stated that, if the DOJ changed its proposal in its final rule implementing ADA Titles II and III, CRC would review those changes to determine their impact on this rule and take appropriate action. After the NPRM was published, DOJ issued its final rule implementing ADA Titles II and III and accordingly, CRC has reviewed the DOJ rule. The resulting changes are described below in the appropriate portions of the Section-by-Section Analysis. 31 See EEOC Final Rule to Implement ADAAA, supra note 18. 32 See DOJ Final Rule to Implement ADAAA, supra note 18. Title I of the ADA prohibits private employers with fifteen or more employees, State and local governments, employment agencies, and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. 33 WIOA Section 188 applies to some of these entities in the employment context because it 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. 34 33 42 U.S.C. 12101 et seq. 34 See EEOC Final Rule to Implement ADAAA, supra note 18. Title II of the ADA applies to State and local government entities, many of which may also be recipients for purposes of this rule, and, like subtitle A of this part, protects qualified individuals with disabilities from discrimination on the basis of disability in services, programs, and activities provided by State and local government entities. 35 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 federal financial assistance 36 and requires compliance with the ADA Standards for Accessible Design. 37 The Department shares responsibility with the Department of Justice for implementing the compliance procedures of Title II of the ADA for components of State and local governments that exercise responsibilities, regulate, or administer services, programs, or activities “relating to labor and the work force.” 38 35 See 42 U.S.C. 12131-12165. 36 See 42 U.S.C. 12132. 37 42 U.S.C. 12134; see 28 CFR part 35. 38 28 CFR 35.190(b)(7). Title III of the ADA, enforced by the DOJ, prohibits discrimination on the basis of disability in the full enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by a person who owns, leases, or operates that place of public accommodation. 39 Title III applies to businesses that are generally open to the public and that fall into one of twelve categories listed in the ADA, such as restaurants, day care facilities, and doctors' offices, 40 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. 41 Many recipients are places of public accommodation and thus are subject to Title III of the ADA and its accessible design standards. The DOJ issued regulations in August 2016 which incorporated amendments to its ADA Title II and Title III regulations, consistent with the ADAAA. 42 39 42 U.S.C. 12182. 40 42 U.S.C. 12181(7). 41 42 U.S.C. 12186; see 28 CFR part 36. 42 See DOJ Final Rule to Implement ADAAA, supra note 18. This final rule revises the 2015 rule consistent with the ADAAA and the regulations issued by the EEOC, and those proposed by the DOJ. The ADAAA and its implementing and proposed regulations make it easier for an individual seeking protection under the ADA to establish that the individual has a disability within the meaning of the statute. 43 This final rule incorporates 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 recipients 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 final rule also revises 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 regulations and the DOJ's regulations. For example, consistent with the ADAAA, the final rule expands 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 final rule also includes rules of construction that should be applied when determining whether an impairment substantially limits a major life activity. 43 See 42 U.S.C. 12102(1). Developments in Sex Discrimination Jurisprudence Pregnancy Discrimination The final rule includes a section that clarifies recipients' existing obligation to avoid discrimination based on pregnancy, childbirth, and related medical conditions as a form of sex discrimination. Title IX's prohibition of discrimination on the bases of pregnancy and actual or potential parental status applies to recipients under Title I of WIOA and this part. In addition, the Pregnancy Discrimination Act (PDA), 44 enacted in 1978, governs the nondiscrimination obligations of a program or activity receiving federal financial assistance in the context of covered employment. Nevertheless, the earlier WIA Section 188 regulations did not refer specifically to pregnancy discrimination as a form of sex discrimination. This final rule corrects that omission and sets out the standards that CRC will apply in enforcing the prohibition against pregnancy discrimination, consistent with Title IX and with Title VII as amended by the PDA, in WIOA Title I-financially assisted programs, activities, training, and services. 44 42 U.S.C. 2000e(k). 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 5,797. 45 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.” 46 The EEOC's findings and related research are relevant to this rule because the workforce development system is the pipeline through which many women find employment opportunities in the public and private sectors. 45 U.S. Equal Emp't Opportunity Comm'n, Pregnancy Discrimination Charges, EEOC & FEPAs Combined: FY 1997-FY 2011, available at http://www.eeoc.gov/eeoc/statistics/enforcement/pregnancy.cfm ; see U.S. Equal Emp't Opportunity Comm'n, Enforcement Guidance: Pregnancy Discrimination and Related Issues (June 25, 2015), available at http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm . 46 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 . Discrimination Based on Sex Stereotyping, Transgender Status, or Gender Identity Sex stereotyping is one of the most significant barriers to women's ability to access services, benefits, training, programs, and employment in and through the workforce development system. Decades of social science research have 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 terms and conditions of employment. 47 This final rule adopts the well-recognized principle that employment decisions made on the basis of stereotypes about how males and females are expected to look, speak, and act are forms of sex-based employment discrimination, and it applies that principle to the provision of any aid, benefit, service, or 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 or act. 48 As the Supreme Court stated in Price Waterhouse v. Hopkins, “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.” 49 In Price Waterhouse, the Court held that an employer's failure to promote a female senior manager to partner because of the decision-maker's sex-stereotyped perceptions that she was too aggressive and did not “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry” was unlawful sex-based employment discrimination. 50 The principle that sex stereotyping is a form of sex discrimination has been applied consistently in subsequent Supreme Court and lower-court decisions. 51 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. 52 47 See, e.g., Susan Fiske et al., Controlling Other People: The Impact of Power on Stereotyping, 48 a.m. 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). 48 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). 49 Id. at 251 (plurality op.). 50 Id. at 235. 51 See, e.g., Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721 (2003) (stereotype-based beliefs about the allocation of family duties on which state employers relied in establishing discriminatory leave policies held to be sex discrimination under the Constitution); Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285 (3d Cir. 2009) (harassment based on a man's effeminacy); Chadwick v. Wellpoint, Inc., 561 F.3d 38 (1st Cir. 2009) (making employment decision based on the belief that women with young children neglect their job responsibilities is unlawful sex discrimination); Terveer v. Billington, 34 F. Supp. 3d 100 (D.D.C. 2014) (hostile work environment based on stereotyped beliefs about the appropriate gender with which an individual should form an intimate relationship). Cf. United States v. Virginia, 518 U.S. 515, 533 (1996) (in making classifications based on sex, State governments “must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females”). 52 See, e.g., Kevin Lang & Jee-Yeon K. Lehmann, Racial Discrimination in the Labor Market: Theory and Empirics (NBER Working Paper No. 17450, 2011), available at http://www.nber.org/papers/w17450 ; Marianne Bertrand & Sendhil Mullainathan, Are Emily and Brendan More Employable than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination, 94(4) Am. 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). Transgender applicants and employees, the vast majority of whom report that they have experienced discrimination in the workplace, are particularly vulnerable to sex discrimination, including sex stereotyping and its consequences. 53 The EEOC has recognized that claims of gender identity discrimination, including discrimination grounded in stereotypes about how individuals express their gender, are claims of sex discrimination under Title VII. 54 Courts have also held that disparate treatment of a transgender employee may constitute discrimination because of the individual's non-conformity to sex stereotypes. 55 Indeed, there has “been a steady stream of district court decisions recognizing that discrimination against transgender individuals on the basis of sex stereotyping constitutes discrimination because of sex.” 56 Further, some courts have held that discrimination on the basis of gender identity constitutes discrimination “because of” sex independent of a showing of discrimination on the basis of failure to comport with sex stereotypes. 57 53 Jaime M. Grant, Lisa M. Mottet & Justin Tanis, National Center for Transgender Equality & National Gay & Lesbian Task Force, Injustice at Every Turn: A Report of the National Transgender Discrimination Survey (2011), available at http://www.transequality.org/sites/default/files/docs/resources/NTDS_Report.pdf (hereinafter “Injustice at Every Turn”). 54 See Macy v. Dep't of Justice, Appeal No. 0120120821, 2012 WL 1435995, at *10 (EEOC Apr. 20, 2012), available at http://www.eeoc.gov/decisions/0120120821%20Macy%20v%20DOJ%20ATF.txt (“Although most courts have found protection for transgender people under Title VII under a theory of gender stereotyping, evidence of gender stereotyping is simply one means of proving sex discrimination. . . . Thus, a transgender person who has experienced discrimination based on his or her gender identity may establish a prima facie case of sex discrimination through any number of different formulations.”). Other federal agencies have issued guidance stating that Title VII's or Title IX's prohibition against discrimination on the basis of sex includes claims of sex discrimination related to a person's gender identity or transgender status. See U.S. Dep't of Justice & U.S. Dep't of Educ., Dear Colleague Letter on Transgender Students (May 13, 2016), available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf ; Memorandum from Eric Holder, Attorney General, to U.S. Attorneys and Heads of Department Components, Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964 (Dec. 15, 2014), available at https://www.justice.gov/file/188671/download ; U.S. Dep't of Educ., Office for Civil Rights, Questions and Answers on Title IX and Sexual Violence (Apr. 29, 2014) ( available at http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf . However, as of the date of publication of this rule, these guidance documents are among the “Guidelines” subject to a preliminary injunction order that prohibits the federal government from “using the Guidelines or asserting the Guidelines carry weight in any litigation initiated following the date of this Order.” Texas v. United States, No. 7:16-cv-00054-O, slip op. at 37 (N.D. Tex. Aug. 21, 2016), ECF No. 58; see id. at 3 n.4 (identifying the documents referred to in the order as the “Guidelines”). 55 Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005) (holding that transgender woman was a member of a protected class based on her failure to conform to sex stereotypes and thus her Title VII claim was actionable); Smith v. City of Salem, 378 F.3d 566, 575 (6th Cir. 2004) (“discrimination against a plaintiff who is a transsexual—and therefore fails to act and/or identify with his or her gender—is no different from the discrimination directed against [the plaintiff] in Price Waterhouse, who, in sex-stereotypical terms, did not act like a woman”); see also Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) (termination of a transgender employee constituted discrimination on the basis of gender non-conformity and sex-stereotyping discrimination under Equal Protection Clause). 56 Macy, 2012 WL 1435995, at *9; see Michaels v. Akal Security, Inc., No. 09-cv-1300, 2010 WL 2573988, at * 4 (D. Colo. June 24, 2010); Lopez v. River Oaks Imaging & Diagnostic Group, Inc., 542 F. Supp. 2d 653, 660 (S.D. Tex. 2008); Mitchell v. Axcan Scandipharm, Inc., No. Civ. A. 05-243, 2006 WL 456173 (W.D. Pa. Feb. 17, 2006); Tronetti v. TLC HealthNet Lakeshore Hosp., No. 03-CV-0375E(SC), 2003 WL 22757935 (W.D.N.Y. Sept. 26, 2003); Doe v. United Consumer Fin. Servs., No. 1:01 CV 1112, 2001 WL 34350174 (N.D. Ohio Nov. 9, 2001). 57 See Schroer v. Billington, 577 F. Supp. 2d 293, 305-07 (D.D.C. 2008) (withdrawal of a job offer from a transgender applicant constituted discrimination “because of sex” in violation of Title VII, analogizing to cases involving discrimination based on an employee's religious conversion, which undeniably constitutes discrimination because of religion under Title VII); see also Rumble v. Fairview Heath Servs., No. 14-cv-2037, 2015 WL 1197415, at *10 (D. Minn. Mar. 16, 2015) (Section 1557 of the Affordable Care Act). As the NPRM noted, federal contractors that operate Job Corps centers, which are covered by Section 188 and this part, 58 may also be covered by the requirements of Executive Order 11246, which expressly requires that contractors meeting certain dollar threshold requirements refrain from discrimination in employment based on sexual orientation and gender identity, as well as race, color, religion, national origin, and sex, and take affirmative action to ensure equal employment opportunity. 59 58 See § 38.2(b)(4). 59 Executive Order 13672, issued on July 21, 2014, amended Executive Order 11246 to add sexual orientation and gender identity as expressly protected bases, and applies to government contracts entered into or modified on or after April 8, 2015, the effective date of OFCCP's implementing regulations promulgated thereunder. See OFCCP Executive Order 13672 Final Rule, supra note 19. Consistent with the above jurisprudence, the final rule provides that complaints of discrimination based on sex stereotyping, transgender status, or gender identity will be recognized and treated as complaints of sex discrimination. The NPRM further noted the growing number of federal courts recognizing that sexual orientation discrimination constitutes discrimination on the basis of sex when the discrimination is rooted in fundamental sex-based norms and stereotypes. 60 The EEOC has also concluded that “[d]iscrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms.” 61 As explained more fully below in the Section-by-Section Analysis of § 38.7(a) and new § 38.7(d)(10), which we now add to the rule, CRC concludes that Section 188's prohibition of discrimination on the basis of sex includes, at a minimum, sex discrimination related to an individual's sexual orientation where the evidence establishes that the discrimination is based on gender stereotypes. 60 See, e.g., Isaacs v. Felder Servs., No. 2:13cv693-MHT, 2015 WL 6560655, at *3-4 (M.D. Ala. Oct. 29, 2015); Terveer v. Billington, 34 F. Supp. 3d 100, 116 (D.D.C. 2014); Koren v. Ohio Bell Tel. Co., 894 F. Supp. 2d 1032, 1038 (N.D. Ohio 2012); Centola v. Potter, 183 F. Supp. 2d 403, 410 (D. Mass. 2002); Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212, 1224 (D. Or. 2002); Videckis v. Pepperdine Univ., No. CV 15-00298, 2015 WL 8916764 (C.D. Cal. Dec. 15, 2015). 61 Baldwin v. Dep't of Transp., Appeal No. 0120133080, 2015 WL 4397641, at *5 (EEOC July 16, 2015); see also Complainant v. Dep't of Homeland Sec., Appeal No. 0120110576, 2014 WL 4407422 (EEOC Aug. 20, 2014); Veretto v. U.S. Postal Serv., Appeal No. 0120110873, 2011 WL 2663401 (EEOC July 1, 2011); Castello v. U.S. Postal Serv., Request No. 0520110649, 2011 WL 6960810 (EEOC Dec. 20, 2011). Harassment This final rule includes a section to provide direction as to a recipient's existing obligations regarding unlawful harassment. Courts have recognized for many years that harassment based on protected categories may give rise to violations of Title VI, Title VII, Section 504, and Title IX and that unlawful harassment may take many forms. 62 The rule adds a section that sets out the prohibition against these various forms of unlawful harassment. 62 See, e.g., Harris v. Forklift Sys., 510 U.S. 17 (1993) (sex); Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986) (sex); Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655 (2d Cir. 2012) (race); Daniels v. Essex Grp., Inc., 937 F.2d 1264, 1274 (7th Cir. 1991) (race); Rogers v. W.-S. Life Ins. Co., 792 F. Supp. 628 (E.D. Wis. 1992) (race); Booth v. Houston, 58 F. Supp. 3d 1277 (M.D. Ala. 2014) (disability); Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998) (school can be held liable if a teacher sexually harasses a student); Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999) (school can be held liable for failing to address a student's sexual harassment of another student). The U.S. Department of Education has issued guidance interpreting the scope of prohibitions against sexual harassment, including acts of sexual violence, under Title IX that apply to WIOA Title I-financially assisted educational and training programs. 63 Title IX protects individuals from discrimination based on sex in education programs and activities that receive federal financial assistance, including WIOA Title I programs and activities that are education and training programs. 64 The final rule incorporates language in Subpart A that reflects the U.S. Department of Education's interpretation of the scope of Title IX's prohibition against harassment based on sex. In doing so, this rule makes the Department's enforcement of current legal standards consistent with those of another agency that regulates the same recipient community. 63 U.S. Dep't of Educ., Office for Civil Rights, Dear Colleague Letter: Sexual Violence (Apr. 4, 2011), available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf ; U.S. Dep't of Educ., Office for Civil Rights, Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, 66 FR 5512 (Jan. 19, 2001) (available at http://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf ) (hereinafter “Revised Sexual Harassment Guidance”). 64 20 U.S.C. 1681 et seq. Increased Provision of Services Using Technology, Including the Internet The increased integration of, and in some instances complete shift to, online service delivery models in the workforce development system since 1999 required that the 1999 and 2015 rules be updated to address the nondiscrimination and equal opportunity implications raised by these changes. As of 2015, approximately 16 percent of American adults did not use the Internet. 65 Moreover, research suggests that a larger percentage of older individuals may not possess sufficient knowledge and understanding of computers and Web-based programs to be able to access information via a Web site or file for benefits through an online system. 66 Additionally, as of 2015, 19 percent of Hispanic individuals (including those who are proficient in English) and 22 percent of Black, non-Hispanic individuals were not using the Internet. 67 Similarly, adults with disabilities were significantly less likely to use the Internet than adults without disabilities. 68 65 Pew Research Center, Americans' Internet Access: 2000-2015 (June 26, 2015), available at http://www.pewinternet.org/2015/06/26/americans-internet-access-2000-2015/ . 66 Id. 67 Id. 68 Pew Research Center, Digital Differences (Apr. 13, 2012), available at http://pewinternet.org/~/media//Files/Reports/2012/PIP_Digital_differences_041312.pdf . Subparts B Through E Subpart B, Recordkeeping and Other Affirmative Obligations, includes revisions to the written assurance language that grant applicants are required to include in their grant applications, as well as revisions to the sections regarding the role of EO Officers and recipients' responsibilities to ensure that they designate recipient-level EO Officers with sufficient expertise, authority, staff, and resources to carry out their responsibilities, as well as Governors' additional responsibility to ensure that they designate State-level EO Officers with sufficient expertise, authority, staff and resources to carry out their obligations. The final rule also changes the requirements regarding data, and information collection and maintenance, and revises the section on outreach responsibilities of recipients. Changes to Subpart C, regarding Governors' responsibilities to implement the nondiscrimination and equal opportunity requirements of WIOA, include changing the title of the Methods of Administration, the tool used by Governors to implement their monitoring and oversight responsibilities, to “Nondiscrimination Plan.” In addition, the final rule provides more direction about Governors' responsibilities and CRC's procedures for enforcing those responsibilities, thus addressing an inadvertent gap in the existing regulations. Changes to Subpart D regarding compliance procedures include language to strengthen the preapproval compliance review process by requiring Departmental grantmaking agencies to consult with the Director of CRC to review whether CRC has issued a Notice to Show Cause or a Final Determination against an applicant that has been identified as a probable awardee. This final rule also expands the situations under which CRC may issue a Notice to Show Cause, merges some of the existing sections about the complaint processing procedures for better readability, and adds language to clarify that any person or their representative may file a complaint based on discrimination and retaliation under WIOA and this part. Subpart E, Federal Procedures for Effecting Compliance, substitutes the Administrative Review Board for the Secretary as the entity that issues final agency decisions, and makes several other technical revisions. Benefits of the Final Rule The final rule will benefit both recipients and beneficiaries in several ways. First, by updating and clearly and accurately stating the existing principles of applicable law, the rule will facilitate recipient understanding and compliance, thereby reducing incidents of noncompliance and associated costs incurred when noncompliant. Second, the rule will benefit recipients' beneficiaries, employees, and job applicants by allowing them to participate in programs and activities or work free from discrimination. Importantly, recipients are already subject to the federal nondiscrimination laws that these updated regulations incorporate, so many of the new substantive nondiscrimination provisions do not impose new obligations. Third, this final rule will increase equality of opportunity in the workforce development system, which encompasses thousands of applicants, participants, beneficiaries, and employees of recipients. For example, regarding discrimination on the basis of sex, the final rule clarifies that adverse treatment of applicants to, beneficiaries of, and participants in recipients' WIOA Title I programs and activities and their employees or applicants for employment because of gender identity or gender-based stereotypes constitutes sex discrimination. By expressly recognizing that discrimination against an individual on the basis of gender identity or transgender status is unlawful sex discrimination, the final rule provides much-needed regulatory protection to transgender individuals, the majority of whom report they have experienced discrimination in the workplace. 69 In addition, by providing that pregnant individuals may be entitled to accommodations when such accommodations or modifications are provided to similarly situated individuals, this rule will protect pregnant employees, beneficiaries, applicants, and participants from losing jobs or access to educational and training opportunities. 69 Injustice at Every Turn, supra note 53. Regarding discrimination on the basis of national origin affecting LEP individuals, the rule will improve LEP individuals' participation in the workforce development system by making the LEP requirements easier to understand and thus easier to implement. Recipients will find complying with the rule easier using suggestions provided in the new appendix to the LEP regulation. Finally, the rule will benefit public understanding of the law. This focus on increasing public understanding is consistent with section 6 of Executive Order 13563, which requires agencies to engage in retrospective analyses of their rules “and to modify, streamline, expand, or repeal [such rules] in accordance with what has been learned.” Minor Technical Corrections Made Throughout the Rule Throughout the final rule, CRC has made the following technical corrections for the sake of accuracy, clarity, and consistency. First, CRC corrects internal numbering and references to other rules, and standardizes the form of internal cross-references. Second, CRC avoids introducing and using abbreviations unnecessarily. Third, CRC uses the serial comma in lists of three or more items. Fourth, CRC adds headings for consistency and standardizes capitalization in text and headings, including lowercasing “one-stop” for consistency with WIOA and capitalizing “State” and “State Program.” Fifth, CRC uses hyphens and en dashes as appropriate to clarify multiword modifiers (for example, “senior-level employee,” “WIOA Title I-financially assisted”). Sixth, where multiple bases are listed in an inclusive context, CRC uses “and” rather than “or” to clarify that all of the listed bases are included (for example, “including pregnancy, childbirth, and related medical conditions”). Finally, in the proposed rule, CRC at times used the word “any” prior to the list of singular terms “aid, benefit, service, or training” and at other times did not use the word “any,” even though the list of terms was not intended to be specific. In the final rule, where the singular terms “aid, benefit, service, or training” are used in a nonspecific context, CRC adds the word “any.” CRC has made these changes only for correctness and consistency and intends no substantive changes by making them. These changes are not further addressed in the section-by-section analysis. Comments on Gender-Neutral Language Usage Throughout the Rule The preamble to the proposed rule explained that replaced “he or she” with “the individual,” ”person,” or other appropriate identifier wherever possible. 70 The discussion in the preamble to the proposed rule referred only to the language that CRC used in the NPRM, not to any requirement imposed on recipients. CRC received comments supporting and opposing this language usage. 70 U.S. Dep't of Labor, Office of the Sec'y, Implementation of the Nondiscirmination and Equal Opportunity Provisions of the Workforce Innovation and Opportunity Act; Proposed Rule, 81 FR 4494, 4495, Jan. 26, 2016 (hereinafter “CRC WIOA NPRM”). Comments: Eight commenters—a group of ten advocacy organizations and a union, five individual advocacy organizations, and two health organizations—supported CRC's use of gender-neutral language. Several of these commenters stated that individuals who do not identify as male or female “face pervasive bias and misunderstanding, and often are unable to access benefits and services, including those of WIOA [Title I]-funded programs.” All eight organizational commenters applauded CRC's decision to avoid gender-specific terminology in the language of the rule to signal that protection from discrimination under WIOA applies to individuals regardless of gender. CRC also received comments from multiple individuals opposing CRC's decision to avoid using gender-specific language. Many of these commenters' objections to gender-neutral language focused on the English language's traditional use of gendered pronouns; some individual commenters also expressed doubt regarding the existence of individuals who do not identify as male or female. The majority of the individual commenters who opposed CRC's decision to avoid gender-specific terminology interpreted CRC's decision to be imposing a requirement on recipients to do the same, at a high cost. Response: CRC retains the use of gender-neutral language in the final rule because it agrees with the organizational commenters on this issue that it is appropriate for the final rule to signal that protection from discrimination under WIOA applies to individuals of all genders. CRC clarifies that this rule does not impose any obligation (or cost) on recipients to use gender-neutral language. Comments: In addition to the supportive comments they submitted as described above, five individual advocacy organizations and two health organizations suggested that CRC remove any remaining instances of “he or she,” “him or her,” and “his or her” throughout the rule. Response: For the same reasons as described above, and for the sake of consistency in avoiding gender-specific terminology throughout the final rule, CRC removes gender-specific terminology from the following provisions: §§ 38.4(q)(5)(iii)(C) (replacing “he or she” with “the individual”), 38.4(ff)(3)(ii)(A) (replacing “him or her” with “the individual”), 38.15(a)(4)(ii) (replacing “his or her” with “the individual's”), 38.16(h) (replacing each instance of “his or her” with “the individual's”), 38.30 (replacing “he or she” with “the EO Officer”), 38.55(c)(2) (replacing “s/he” with “the Governor”), 38.64(a) (replacing “he or she” with “the Director”), 38.69(a) (replacing “his/her” with “the person's”), 38.81(d) (replacing “he or she” with “the Director”), 38.83 (replacing “he or she” with “the Director”), 38.91(b)(3) (replacing “he or she” with “the Governor”), and 38.115(c)(1) (replacing “he or she” with “the Director”). These changes are not further addressed in the section-by-section analysis. II. Section-by-Section Analysis This Section-by-Section Analysis describes each section in the proposed rule and identifies and discusses the significant comments received and any changes made. Subpart A—General Provisions General Comments Comment: A professional association applauded the Department's recognition of implicit prejudice and stereotyping and encouraged the Department to provide training for WIOA staff to ensure that there is an understanding of these issues when designing vocational training programs. Response: CRC agrees that training WIOA staff to understand implicit prejudice and stereotyping is a best practice, but declines to explicitly mandate a specific level of training in the final rule. Each recipient is responsible for ensuring compliance with its obligations under WIOA and this part, including determining the appropriate types and frequency of staff training. Comment: An advocacy organization encouraged the Department to focus attention on older workers in the workforce development system. The commenter stressed that older workers face significant barriers including skill and technological deficits compared to their younger counterparts. Response: Under WIOA and this part, recipients are required to comply with their equal opportunity and nondiscrimination obligations on a variety of bases, including age. We understand the commenter's concerns, but decline to emphasize compliance in any one area over other areas. Comment: In a joint comment, two individuals objected to the NPRM's proposal to replace “on the grounds of” with “on the basis of” before listing the protected categories in the rule, such as race, color, religion, or sex. The commenters asserted that “on the grounds of” is a legal term and that use of “on the basis of” is deceptive. Response: CRC disagrees that the term “on the basis of” is deceptive. That phrase is a legal term of art that signals for which categories discrimination is prohibited. It is widely used in regulations and cases addressing antidiscrimination laws, and it is specifically used in WIOA Section 188(a). Therefore, it is appropriate to use in this rule. Purpose § 38.1 Proposed § 38.1 retained the purpose of the 1999 and 2015 rules: “to implement the nondiscrimination and equal opportunity provisions” of WIOA Section 188. 71 CRC made minor revisions, such as replacing “on the grounds of” with “on the basis of” to be consistent with nondiscrimination language in other Department civil rights regulations. 71 Previously WIA Section 188. Comment: An individual commenter opposed the rule, reasoning that the broad scope of prohibited discrimination would lead to divisions in our society. Response: It is beyond the scope of CRC's authority to refuse to implement Section 188 of WIOA. 72 72 See 29 U.S.C. 3248(e). CRC finalizes § 38.1 as proposed, with the following technical edits: correcting the statutory reference in footnote 1 and making minor technical modifications to clarify the list of protected bases, as discussed below in connection with § 38.5. Applicability § 38.2 Proposed § 38.2 explained to which entities part 38 applies, including recipients 73 and programs and activities operated by one-stop 74 partners that are part of the one-stop delivery system. Proposed § 38.2(a)(3) revised the 2015 rule to limit covered employment practices to those “of a recipient and/or One-Stop partner, to the extent that the employment is in the administration of or in connection with programs and activities that are being conducted as a part of WIOA Title I or the One-Stop delivery system.” That limitation tracked the statutory provision in Section 188(a)(2) of WIOA. 75 CRC also proposed deleting § 38.2(b)(5) of the 2015 rule, so that federally operated Job Corps Centers would be included within the requirements of this part. CRC received several comments on this section. 73 See § 38.4(zz). 74 One-stop career centers are designed to provide a full range of assistance to job seekers under one roof. The centers offer training referrals, career counseling, job listings, and similar employment-related services. 75 29 U.S.C. 3248(a)(2). Comment: A union asked for clarification of the duties for which it is individually responsible, as a national training contractor, and for which it is jointly responsible with other parties, including Job Corps Outreach and Admissions contractors, Center Directors, and others. The commenter stated that its responsibilities are not clear in light of the oversight and direction by Job Corps Centers, regional offices, and the National office, as well as the responsibilities contractually assigned to other contractors. Response: Each recipient, as defined in § 38.4(zz), is individually responsible for complying with WIOA Section 188 and these implementing regulations. Job Corps national training contractors are recipients, which must designate a recipient-level Equal Opportunity Officer who will ensure that the training contractor and its subrecipients (if any) are not in violation of their equal opportunity and nondiscrimination obligations. 76 Those obligations include outreach and admissions under § 38.5 generally and § 38.40 specifically. While recipients may work cooperatively to ensure equal opportunity and nondiscrimination, each recipient must continue to individually evaluate whether such collaborative efforts are sufficient. All recipients, including Job Corps national training contractors, are ultimately responsible for equal opportunity and nondiscrimination compliance under WIOA regarding all aspects of their own programs, activities, and covered employment. 76 See §§ 38.4(zz)(9), 38.28(b), and 38.31. Comment: A State agency asked about partner agencies in the one-stop system, specifically if all sections of the regulations apply to every partner, and whether the partner agencies will be monitored by the Equal Opportunity Officer for compliance with WIOA Section 188. The commenter recommended against requiring all partner agencies to comply with the regulations unless colocated within a one-stop center. Response: Under WIOA and this part, these regulations apply to each recipient. The term “recipient” includes every one-stop partner listed in WIOA section 121(b) 77 whenever the partner operates or conducts programs or activities that are part of the one-stop delivery system. 78 As discussed below, 79 in most cases required and additional partners will be monitored by the State-level EO Officer in addition to their own recipient-level EO Officers for compliance with WIOA and this part. 80 77 Section 38.4(zz) (“for purposes of this part, one-stop partners, as defined in section 121(b) of WIOA, are treated as `recipients,' and are subject to the nondiscrimination and equal opportunity requirements of this part, to the extent that they participate in the one-stop delivery system”). 78 See § 38.2(a)(2) (part 38 applies to “[p]rograms and activities that are part of the one-stop delivery system and that are operated by one-stop partners . . . to the extent that the programs and activities are being conducted as part of the one-stop delivery system”). 79 See infra discussion of §§ 38.28 and 38.29. 80 One-stop partners are not required to designate a separate EO Officer if the partner is a service provider under § 38.4(ggg) (in which case the State-level EO Officer and/or the LWDA's grant recipient's EO Officer has this responsibility under § 38.33); if the partner is a small recipient (in which case the partner designates a responsible individual under § 38.32); or if, under the structure of the Governor's § 38.54 Nondiscrimination Plan, the State-Level EO Officer is the partner's EO Officer. Regarding the question of colocation, this final rule covers all one-stop partners (both required partners and additional partners) regardless of whether a partner is colocated within a one-stop center. Section 188(b) of WIOA requires the Secretary to enforce the equal opportunity and nondiscrimination provisions of WIOA with respect to all States and other recipients. One-stop partners, other than one-stop partners that are National Programs, are a part of State Programs to which WIOA Section 188 applies. 81 Accordingly, these regulations include one-stop partners as recipients that are subject to the nondiscrimination and equal opportunity requirements of this part, to the extent that they participate in the one-stop delivery system. This result does not change because a partner is not colocated with a one-stop center. One-stop centers are not just a physical location, but may also include a larger electronic network. Regardless of location, recipients, including one-stop partners that operate programs and activities that are part of the one-stop delivery system, are subject to these regulations. 81 National Programs are otherwise covered by WIOA Section 188 and this part. See §§ 38.4(jj) (defining “National Programs”) and 38.4(zz)(12) (defining “recipients” to include National Programs). Comment: Several advocacy organizations supported deletion of the current exclusion of federally operated Job Corps Centers from the application of the provisions of part 38. The commenters stated that this change is important to ensure the uniform applicability of nondiscrimination and equal opportunity requirements throughout the Job Corps system and to provide a mechanism to address complaints that arise in federally operated Job Corps Centers. Response: CRC agrees with the commenter and believes that adopting the NPRM's proposed change from the 1999 and 2015 rules will ensure equal opportunity and nondiscrimination in the entire Job Corps program. As explained in the NPRM, this change is consistent with WIOA Section 188(d), which does not distinguish between federally operated and privately operated Job Corps centers, as well as with the Department of Agriculture's approach for a number of years to nondiscrimination and equal opportunity in the Job Corps centers it operates. 82 The change also makes our rule consistent with another of the Department's final rules implementing WIOA, which requires that, when the Secretary of Labor enters into an agreement with the Secretary of Agriculture for the funding, establishment, and operation of federally operated Job Corps centers, provisions are included to ensure that the Department of Agriculture complies with the regulations under 20 CFR 686, including nondiscrination obligations under Section 188 of WIOA. 83 82 U.S. Dep't of Agric., Forest Service, WO/Civil Rights Staff, Reference Guide, Key EEO and Civil Rights Laws, Statutes, and Regulations (April 2010). 83 U.S. Dep't of Labor, Emp't & Training Admin., Workforce Innovation and Opportunity Act; Final Rule, 81 FR 56072, Aug. 19, 2016. In § 38.2(b)(1), CRC clarifies that “Department” means the U.S. Department of Labor. Effect on Other Obligations § 38.3 Proposed § 38.3 described the relationship between this rule and other laws that may apply to recipients. To establish parity with parallel provisions in other federal nondiscrimination regulations, 84 proposed § 38.3 added a proviso that “This part does not invalidate or limit the obligations, remedies, rights and procedures under any Federal law, or the law of any State or political subdivision, that provides equal or greater protection for the rights of persons as compared to this part.” In addition, § 38.3 proposed adding Executive Order 13160 85 to the additional obligations that compliance with this part does not affect. 84 See, e.g., 41 CFR 60-741.1(c)(3). 85 65 FR 39775, June 27, 2000. Executive Order 13160 prohibits discrimination on the basis of race, sex, color, national origin, disability, religion, age, sexual orientation, or status as a parent in federally conducted education and training programs and activities. Several advocacy organizations supported the clarification that these regulations do not limit the remedies, rights, and procedures under federal, State, or local law that provide equal or greater protection than the regulations. The commenters appreciated federal recognition of States' and localities' interests in promoting nondiscrimination and equal employment opportunity. CRC finalizes the provisions in § 38.3 as proposed, with the exception of one technical change, replacing “incorporated into this part by reference” with “adopted by this part” in paragraph (b). Definitions § 38.4 The proposed rule retained the majority of the definitions contained in the 1999 and 2015 rules. Revisions in proposed § 38.4 included updating existing definitions consistent with applicable law and adding new definitions, as discussed in the preamble to the proposed rule. The discussion below addresses only those proposed definitions on which CRC received substantive comments. For the reasons discussed in the NPRM, CRC adopts without modification all of the proposed definitions not addressed below. Aid, Benefit, Service, or Training CRC received no comments on the definition of “aid, benefit, service, or training” in § 38.4(b) but is reorganizing the definition to clarify its parts. No substantive changes are intended by the reorganization. Auxiliary Aids or Services Proposed § 38.4(h) revised the definition of “auxiliary aids or services” to include new technology alternatives that have become available since the 1999 rule, such as video remote interpreting (VRI) services and real-time computer-aided transcription services. This provision mirrors the definition of “auxiliary aids and services” in the DOJ regulations implementing Title II of the ADA. 86 CRC received three comments supporting the new definition, with one commenter noting that the rule provides guidance for personnel not familiar in working with individuals with sensory disabilities. Accordingly, CRC adopts § 38.4(h) as proposed. 86 See 28 CFR 35.104. Babel Notice The proposed rule added a definition for “Babel notice” in § 38.4(i). A Babel notice is a short notice in multiple languages informing the reader that the document ( e.g., application form, consent form, notice of rights and responsibilities) or electronic media ( e.g., Web site, “app,” email) contains vital information, and explaining how to access language services to have the contents of the document or electronic media provided in other languages. CRC proposed adding this definition because Babel notices are an integral tool for ensuring that recipients meet their nondiscrimination and equal opportunity obligations under WIOA and this part regarding LEP individuals. In the proposed rule, CRC sought comment on this definition. Several advocacy organizations expressed support for the inclusion of a definition for “Babel notice” to codify and clarify the intention of these notices, specifically with respect to individuals who are limited English proficient. Comment: An advocacy organization recommended that the definition of “Babel notice” be revised to specify that alternate formats are available as an accommodation through the recipient at no cost to the beneficiary. Response: We appreciate the commenter's concern; however, the Babel notice is a safeguard against national origin discrimination against LEP individuals. Alternate formats are addressed in § 38.15 regarding communications with individuals with disabilities. Nevertheless, we agree with the commenter that it is important to notify individuals with disabilities of their right to request materials in accessible formats, and of their right to equally effective communication with recipients. For this reason, CRC amends the equal opportunity notice in § 38.35 to add two sentences alerting individuals with disabilities of their right to request auxiliary aids and services at no cost. For the reasons described in the proposed rule and considering the comments received, we are finalizing the definition proposed in § 38.4(i) without modification, except for minor technical corrections to capitalization. Disability Proposed § 38.4(q) updated the definition of “disability” to reflect the changes made by the ADA Amendments Act of 2008 87 and to make the definition consistent with subsequent EEOC regulations 88 and proposed DOJ regulations 89 to implement the ADAAA. CRC received two general comments supporting these changes and adopts them as proposed, with minor technical revisions. In addition, as we proposed to do in the NPRM, 90 the final rule makes numbering and minor editing and wording changes to § 38.4(q) to conform in most instances to DOJ's August 2016 regulations to implement the ADAAA. 91 We address the changes the final rule makes to each proposed paragraph of § 38.4(q) in turn. 87 42 U.S.C. 12101 et seq., Public Law 110-325, 122 Stat. 3553 (2008). 88 29 CFR part 1630. 89 U.S. Dep't of Justice, Office of the Attorney General, Amendment of Americans with Disabilities Act Title II and Title III Regulations to Implement ADA Amendments Act of 2008; Proposed Rule, 79 FR 4839, Jan. 30, 2014. The Department of Justice has since issued its final rule. See DOJ Final Rule to Implement ADAAA, supra note 18. 90 CRC WIOA NPRM, supra note 70, at 4497. 91 See DOJ Final Rule to Implement ADAAA, supra note 18, at 53223-53225. Consistent with the ADAAA, the EEOC regulations implementing the ADAAA, and now with DOJ's ADA Title II regulations implementing the ADAAA, proposed § 38.4(q)(1)(ii) (renumbered § 38.4(q)(2) in the final rule) set forth rules of construction that provided the standards for application of the definition of disability. CRC received a comment from a State agency under a related definition, § 38.4(yy) (reasonable accommodation), that using the term “covered entity” rather than “recipient” was confusing. CRC agrees and, as discussed below, replaces “covered entity” with “recipient” throughout the final rule. 92 Since the term “covered entity” appeared here in proposed § 38.4(q)(1)(ii)(B) (renumbered § 38.4(q)(2)(iii) in the final rule) and § 38.4(q)(5)(i)(C) (renumbered § 38.4(q)(5)(i)(B) in the final rule), CRC is replacing that term with “recipient” to ensure consistency. 92 CRC is replacing “covered entity” with “recipient” in two sections: In the definition of “disability” in § 38.4(q) and in the definition of “reasonable accommodation” in § 38.4(yy). CRC is also replacing “entities” with “recipients” in § 38.4(q)(5)(ii). Consistent with the ADAAA, the EEOC regulations implementing the ADAAA, and now with DOJ's ADA Title II regulations to implement the ADAAA, proposed § 38.4(q)(2) (renumbered § 38.4(q)(2)(i) in the final rule) required that the definition of disability be construed in favor of broad coverage of individuals with disabilities. CRC received no comments on this provision and adopts it without change in the final rule, except for minor technical changes to conform with DOJ's ADA Title II regulations to implement the ADAAA. Proposed § 38.4(q)(3) revised the definition of “physical or mental impairment,” in the definition of disability, to add “immune, circulatory” to the body systems listed in proposed § 38.4(q)(3)(A) (renumbered § 38.4(q)(3)(i)(A) in the final rule); to add “pregnancy-related medical conditions” to § 38.4(q)(3)(ii); 93 to add “intellectual disability” (formerly termed “mental retardation” in the 1999 and 2015 rules) to § 38.4(q)(3)(i)(B); and to add dyslexia to “specific learning disabilities” in § 38.4(q)(3)(ii). In addition, this final rule adds “Attention Deficit Hyperactivity Disorder” (ADHD) in § 38.4(q)(3)(ii). This update to the definition of “physical or mental impairment” substantially conforms to the definition in DOJ's ADA Title II regulations to implement the ADAAA. 94 CRC received one comment from a coalition of disability advocacy organizations supporting this provision and adopts it without change in the final rule, except for the addition of ADHD and minor technical changes to conform with DOJ's ADA Title II regulations to implement the ADAAA. 93 See DOJ Final Rule to Implement ADAAA, supra note 18, at 53227. 94 28 CFR 35.108(b). Although DOJ did not include the example “pregnancy-related medical conditions” in its regulatory definition of “physical or mental impairment,” its inclusion in this final rule is consistent with DOJ's explanation that pregnancy-related medical impairments may be disabilities. See DOJ Final Rule to Implement ADAAA, supra note 18, at 53227 (while pregnancy itself is not an impairment, a pregnancy-related impairment may meet the definition of “disability” under any prong—“actual,” “record of,” or “regarded as”). CRC notes that no example on this list will be a disability unless it meets all the definitional criteria. Proposed § 38.4(q)(4) added to the definition of disability a new definition for “major life activities” that is consistent with the provisions in the ADAAA, 95 and regulations promulgated by the EEOC 96 and now with the DOJ regulations to implement the ADAAA. 97 CRC received two comments supporting this provision and adopts it without change in the final rule, except to add “writing” to the list of major life activities to conform with DOJ's ADA Title II regulations to implement the ADAAA, and to make minor technical changes consistent with those DOJ regulations. 95 42 U.S.C. 12102(2). 96 29 CFR 1630.2(i). 97 28 CFR 35.108(c). Proposed § 38.4(q)(5) added rules of construction when determining whether an impairment “substantially limits” an individual in a major life activity. CRC received two supportive comments from disability advocacy organizations supporting this provision and adopts it without change in the final rule, with the exception of replacing “covered entity” with “recipient” in proposed § 38.4(q)(5)(i)(C) (renumbered § 38.4(q)(5)(i)(B) in the final rule), replacing “entities” with “recipients” in § 38.4(q)(5)(ii), and making minor technical changes to conform with DOJ's ADA Title II regulations to implement the ADAAA. The order of the paragraphs within § 38.4(q)(5) in the final rule was changed to be consistent with the paragraph order in DOJ's ADA Title II regulations to implement the ADAAA, and to minimize any confusion. Proposed § 38.4(q)(6) updated the definition of an individual with “[a] record of such an impairment” to include an individual that 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 its implementing regulations. 98 The DOJ regulations have identical language. 99 CRC received no comments on this provision and adopts it without change in the final rule, except for minor technical changes to conform with DOJ's ADA Title II regulations to implement the ADAAA. 98 29 CFR 1630.2(k)(1). 99 28 CFR 35.108(e)(1). Proposed § 38.4(q)(7) revised the term “is regarded as having such an impairment” to conform to the ADAAA. 100 The new definition clarifies that illegal disability discrimination includes discrimination “because of an actual or perceived physical or mental impairment.” CRC received one comment from a coalition of disability advocacy groups supporting this provision. In accordance with the other changes noted earlier, the term “covered entity” is replaced with “recipient” in § 38.4(q)(7)(ii) and (iii). The final rule also makes minor technical changes in the text to conform with DOJ's ADA Title II regulations to implement the ADAAA. Additionally, the final rule makes substantive conforming changes to § 38.4(q)(7)(i) (adding the qualifier “even if the recipient asserts, or may or ultimately does establish, a defense to the action prohibited by WIOA Section 188 and this part”), and to § 38.4(q)(7)(ii) (adding an explanatory sentence regarding the “transitory and minor” exception). This new language in the final rule is modeled on the language in DOJ's ADA Title II regulations to implement the ADAAA. 101 100 42 U.S.C.12102(3). 101 28 CFR 35.108(f). Employment Practices The NPRM made no substantive changes to the definition of “employment practices” in § 38.4(s). Comment: A coalition of eighty-six women's, workers', and civil rights organizations commended CRC for recognizing, in proposed § 38.4(s)(6), that covered employment practices include “deciding rates of pay or other forms of compensation.” Focusing on discrimination based on sex, the organizations observed that “women are still paid less than men in nearly every occupation.” The organizations recommended that CRC adopt provisions similar to those in the section devoted to compensation in OFCCP's proposed rule Discrimination on the Basis of Sex. 102 In addition, the organizations asked CRC to explain that “factors other than sex relied upon in determining compensation must be job-related, consistent with business necessity, and account for the entire pay differential”; to “advise that prior pay matching should be a rare occurrence”; and to “clarify that punitive pay secrecy policies that interfere with enforcement of wage discrimination protections violate antidiscrimination law.” Finally, they suggested that the rule state that nondiscrimination in compensation based on sex is required with regard not only to employees employed in the administration of WIOA programs but also to any participants and applicants who receive remuneration. 102 U.S. Dep't of Labor, Office of Fed. Contract Compliance Programs, Discrimination on the Basis of Sex; Proposed Rule, 80 FR 5246, 5278, Jan. 30, 2015 (hereinafter “OFCCP Sex Discrimination NPRM”); see 41 CFR 60-20.4. Response: CRC believes that the organizations' suggestions do not comport with the structure of this rule. Proposed § 38.4(s) is intended only to define “employment practices” for the purposes of this rule, not to impose substantive nondiscrimination obligations. Accordingly, § 38.4(s) is a nonexhaustive list of employment practices defining the term as it is used elsewhere in the rule, for example, in the enunciation of the employment nondiscrimination principle in § 38.18. None of the eight employment practices listed in § 38.4(s) are elaborated on in the way the organizations suggested CRC do with regard to paragraph (s)(6). Moreover, to the extent that the organizations' suggestions are specific to sex discrimination, CRC notes that the definition of “employment practices” proposed in § 38.4(s) is intended to apply throughout the rule and is not limited to any particular basis of discrimination. Furthermore, where appropriate, the section that focuses on discrimination based on sex encompasses the organizations' suggestions in the WIOA context, such as § 38.7(c)'s prohibition against policies and practices that have a discriminatory effect. Finally, CRC reiterates that the scope of this rule regarding employment practices is limited to any program or activity that is operated by a recipient, including a one-stop partner, to the extent that the employment is in the administration of or in connection with programs and activities that are financially assisted under WIOA Title I, including those that are part of the one-stop delivery system. 103 For these reasons, CRC declines to make the suggested changes to proposed § 38.4(s)(6). 103 This limitation is spelled out in § 38.18 of this final rule and tracks the provision in Section 188(a)(2) of WIOA, 29 U.S.C. 3248(a)(2). Governor Proposed § 38.4(aa) defined the term “Governor” as “the chief elected official of any State, or the Governor's designee.” CRC received one comment on this definition. Comment: A State employment agency commented that the proposed definition of “Governor” is in direct conflict with the WIOA statutory definition and therefore in violation of Section 5 of Title 5 of the United States Code. The commenter recommended that the proposed definition be revised to match the statutory definition. Response: In response to that comment, CRC revises the regulatory definition of Governor to more closely track the parallel portion of the statutory definition. This modification is also consistent with ETA's definition of “Governor” in its final rule implementing WIOA. 104 104 29 CFR 651.10. CRC, however, retains the language from its definition in the 1999 and 2015 rules that the term “Governor” includes “the Governor's designee.” This departure from the statutory definition is appropriate as the term relates to the nondiscrimination and equal opportunity provisions found at 29 CFR part 38. Governors should continue to have flexibility to designate an individual to carry out the Governor's obligations to ensure all State Programs' compliance with the nondiscrimination and equal opportunity obligations of WIOA and this part. Accordingly, CRC adopts the definition proposed in § 38.4(aa) with the modification noted above. Individual With a Disability Proposed § 38.4(ff) made minor changes to the definition of “individual with a disability.” That provision, consistent with the 1999 and 2015 rules, mostly defined the term by listing examples of conditions that the ADA excludes from the definition of “individual with a disability.” CRC proposed changes to be consistent with the ADAAA and the implementing regulations issued by the EEOC 105 and now with regulations issued by the DOJ. 106 105 29 CFR 1630.3. 106 28 CFR 35.108(g). Comment: Two commenters expressed general support for the proposed rule's definition of an “individual with a disability.” However, several commenters, in nearly identical comments, encouraged CRC to remove the explicit proposed exclusion of “transvestism, transsexualism, or gender dysphoria not resulting from physical impairments.” Their comments were particularly focused on the gender dysphoria exclusion. One professional association reasoned that current, mental health nomenclature includes these conditions as part of the spectrum of valid mental health conditions and their exclusion is a legacy of misunderstanding of gender-related concerns. Several advocacy organizations recognized the language as consistent with the ADA but nonetheless recommended the deletion of this language to reflect the evolving scientific evidence suggesting that gender dysphoria may have a physical basis and that the terms “disability” and “physical impairment” should be read broadly. Response: The exclusion of transvestism and transsexualism from the definition of disability is a statutory exclusion under the ADA 107 and Section 504, 108 and it is beyond CRC's scope of authority to remove this exclusion. 109 With respect to gender dysphoria, CRC notes that it proposed to use that term because the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders replaced the diagnostic term “gender identity disorder” with the term “gender dysphoria.” However, CRC notes that the precise term used in the ADA and Section 504 is “gender identity disorders not resulting from physical impairments.” 110 The commenters' reasoning for objecting to the exclusion of gender dysphoria was that modern medical consensus considers gender dysphoria as resulting from physical impairments. In response to these comments and in accordance with the ADA and Section 504, CRC revises § 38.4(ff) in the final rule to use the exact statutory term 111 rather than “gender dysphoria.” Individuals with gender identity disorders resulting from physical impairments may be covered under the definition of an individual with a disability (assuming they meet the other definitional criteria). 107 42 U.S.C. 12211(b)(1). 108 29 U.S.C. 705(20)(F)(i). 109 However, as discussed in other sections of this rule, Section 188's prohibition of discrimination on the basis of sex includes discrimination because of transgender status or gender identity. See § 38.7(a). 110 42 U.S.C. 12211(b)(1) (ADA); 29 U.S.C. 705(20)(F)(i) (Section 504). 111 See 42 U.S.C. 12211(b)(1) (ADA); 29 U.S.C. 705(20)(F)(i) (Section 504). Limited English Proficient (LEP) Individual In § 38.4(hh), the final rule includes a definition for “limited English proficient (LEP) individual.” The proposed definition of “limited English proficient (LEP) individual” was “an individual whose primary language for communication is not English and who has a limited ability to read, speak, write and/or understand English.” As set forth in the proposed rule, this definition was added because failure to provide language assistance to limited English proficient individuals may be a form of unlawful national origin discrimination. 112 The term is used elsewhere in the final 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 113 and regulations interpreting national origin-based discrimination, 114 and has been adopted from those DOJ regulations implementing Title VI to ensure consistency. 112 Lau v. Nichols, 414 U.S. 563 (1974) (Supreme Court found recipient's denial of equal education opportunities to a group of non-English speakers was national origin discrimination in violation of Title VI and its regulations); see also sources cited supra note 26. 113 Sandoval v. Hagan, 197 F.3d 484, 510-11 (11th Cir. 1999) (holding that English-only policy for driver's license applications constituted national origin discrimination under Title VI), rev'd on other grounds, 532 U.S. 275 (2001); Almendares v. Palmer, 284 F. Supp. 2d 799, 808 (N.D. Ohio 2003) (holding that failure to ensure bilingual services in a food stamp program could constitute a violation of Title VI); Pabon v. Levine, 70 FRD. 674, 677 (S.D.N.Y. 1976) (citing Lau, denying summary judgment when LEP unemployment benefits claimaints alleged a state labor agency failed to provide language assistance services in violation of Title VI and its implementing regulations). 114 28 CFR 42.104 (discrimination prohibited by DOJ Title VI regulations); 10 CFR 1040.1 (Department of Energy regulations mirroring DOJ Title VI regulations). Several advocacy organizations expressed support for the proposed definition of “limited English proficient (LEP) individual” to ensure that it is consistent with legal decisions interpreting the scope of national origin discrimination under Title VI of the Civil Rights Act of 1964 and the DOJ regulations implementing Title VI. Further, the commenters stated that the proposed definition will help maximize access to WIOA Title I employment and training programs for job seekers and workers that are LEP. CRC's response to one comment is addressed below. Comment: One advocacy organization commented that it is not clear from the definition of LEP whether this includes individuals with sensory impairments, who are Deaf or hard of hearing and communicate using American Sign Language, have speech impairments, or who are blind or have visual impairments. Response: Proposed § 38.4(hh) was not intended to apply to individuals with sensory impairments, who are Deaf or hard of hearing and communicate using American Sign Language, have speech impairments, or who are blind or have visual impairments, and such individuals are not included in the definition of an LEP individual. The requirements for ensuring effective communication with individuals with disabilities are explained in § 38.15. On-the-Job Training (OJT) Proposed § 38.4(mm) retained the language from the 1999 and 2015 rules, which defined “on-the-job training” and received no comments regarding its definition. In the definition of OJT in § 38.4(mm), CRC makes a technical correction to match the maximum wage rate reimbursement specified by WIOA. Other Power-Driven Mobility Device Proposed § 38.4(nn) added a definition for “other power-driven mobility device.” This definition mirrors the definition in the DOJ ADA Title II regulations 115 and encompasses additional mobility devices, such as self-balancing scooters, which are increasingly used by individuals with mobility impairments. 115 28 CFR 35.104. Comment: CRC received two comments regarding this new definition. One comment was from a coalition of disability advocacy groups that expressed general support for the definition. The second comment was from a state-based disability organization that recommended a revision in the proposed definition to accommodate future technology advances. Specifically, the commenter suggested that CRC add “motors, or methods of propulsion,” so that the first part of the definition reads: “Other power-driven mobility device means any mobility device powered by batteries, fuel, or other engines, motors, or methods of propulsion . . . .” Response: CRC agrees with the second commenter that the definition should be revised to allow for future technology advances, but believes that the language suggested by the commenter may be too limiting. Therefore, CRC has revised the proposed definition in the final rule to add “or by other similar means” after the list of power sources for the devices. Programmatic Accessibility Since WIOA requires recipients to comply with this rule and the applicable provisions of the ADA regarding the physical and programmatic accessibility of facilities, programs, services, technology, and materials, proposed § 38.4(tt) added a definition for “programmatic accessibility.” Comment: A local workforce agency commented that the distinction between physical and programmatic accessibility is well-defined and specific, providing a clear foundation that will strengthen recipients' ability to guarantee that their programs and services are both physically and programmatically accessible for individuals with disabilities. CRC received a comment from a coalition of disability advocacy organizations that requested adding the words “fully” and “equally” in the proposed definition of “programmatic accessibility” to emphasize that the requirement should direct recipients to “put program beneficiaries and participants with disabilities in the position they would be in if they did not have disabilities,” rather than just being “helpful.” Response: The definition of “programmatic accessibility” in § 38.4(tt) is sufficient as proposed. It is taken from the 2005 Senate Health, Education, Labor, and Pensions Committee Report on WIA reauthorization. 116 It is not necessary to add “equally” or “fully,” because § 38.12(a) explains the opportunities recipients must provide to individuals with disabilities, including any aid, benefit, service, or training that is equal to, or as effective as, that provided to others ( e.g., the opportunity to obtain the same result, benefit, or level of achievement). For these reasons, CRC declines to make the suggested changes to proposed § 38.4(tt). 116 S. Rep. No. 109-134, 2005 WL 2250857, at *11 (2005). Qualified Individual With a Disability Proposed § 38.4(ww) revised a portion of the definition of “qualified individual with a disability” to match the definition in the EEOC regulations implementing the ADAAA. 117 CRC received one comment from a coalition of disability organizations supporting the proposed definition, and § 38.4(ww) is adopted as proposed. 117 29 CFR 1630.2(m). Qualified Interpreter Proposed § 38.4(xx) amended the existing definition of “qualified interpreter” to reflect the availability of new technologies, stating 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.” The revision also delineated the skills and abilities that an individual must possess in order to provide interpreter services for an individual with a disability. Comment: CRC received one comment from a coalition of disability advocacy organizations concerned that interpreters should “have a particular level of expertise in the specific jargon being used.” The commenter requested that the definition of qualified interpreter take into consideration both “applicable state law governing licensure of interpreters,” as well as “the qualification of the interpreter for the particular field of employment in any given situation.” Response: A qualified interpreter is defined as an interpreter who is able to interpret “effectively, accurately, and impartially.” The interpreter must also be able to interpret “both receptively and expressively, using any necessary specialized vocabulary.” Accordingly, § 38.4(xx) already addresses the commenters' concern about an interpreter's ability to use relevant jargon or to otherwise effectively and accurately understand and interpret communications regarding a particular field of employment. On the other hand, possessing State certification may or may not indicate that an individual meets the regulatory criteria. We therefore decline to incorporate State standards into the regulation. The most important factor is whether the interpreter can facilitate effective, accurate, and impartial communication and therefore meets the requirements outlined in the regulation. For these reasons, CRC declines to make the suggested changes. In § 38.4(xx)(2), CRC proposed a definition of “qualified interpreter for an individual who is limited English proficient.” The proposed § 38.4(xx)(2) was 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 (into which English is being interpreted) and to identify and employ the appropriate mode of interpreting, such as consecutive, simultaneous, or sight translation. 118 118 DOL LEP Guidance, supra note 28, at 32296. Several advocacy organizations expressed support for the proposed definition of “qualified interpreter” and the definition of “qualified interpreter for an individual who is LEP” within § 38.4(xx)(2). The commenters stated that the proposed definitions properly acknowledge that new technology has expanded the availability of interpretation services, providing a range of methods for regulated entities to use to meet their responsibilities under the regulations. Furthermore, the commenters noted that the definitions help ensure that job seekers and workers who are LEP have access to quality interpretation by describing the quality of the interpreter as effective, accurate, impartial, expressive, and using necessary vocabulary. The commenters stated that this characterization of quality was necessary to disallow the use of Web sites or services that only provide online translation services (which may be inaccurate), and to discourage the use of children or family members or other untrained individuals as interpreters. Reasonable Accommodation Proposed § 38.4(yy) revised the definition of “reasonable accommodation” to add a new paragraph stating that the provision of reasonable accommodations is not required for individuals who are only “regarded as” having a disability. This provision is consistent with the ADAAA 119 and regulations issued by the EEOC 120 and by the DOJ 121 implementing the ADAAA. 119 42 U.S.C. 12101 et seq. 120 29 CFR 1630.9(e). 121 28 CFR 35.108(f)(7)(ii). Comment: CRC received a few comments generally supporting this provision from a coalition of disability advocacy organizations. CRC received one comment from a State agency asking that the term “regarded as having a disability” be defined or that examples be provided to add clarification to the meaning of the phrase. The commenter requested that the term “covered entity” be defined. The commenter also suggested that the term “covered entity” be replaced with the term “recipient.” Response: We agree that it is preferable to use the term “recipient,” defined in § 38.4(zz), instead of “covered entity,” for which there is no definition in this part, and have adopted that change throughout the rule. 122 Regarding the commenter's request that we define “regarded as having a disability,” or provide examples, we note that the definition of the term “disability” includes “being regarded as having such an impairment,” and that the phrase “is regarded as having such an impairment” is defined in § 38.4(q)(7). CRC revises § 38.4(yy)(4) of the rule consistent with that wording to refer to the applicable definitions for the “actual disability,” “record of,” and “regarded as” prongs. Therefore, examples are unnecessary. 122 CRC is replacing “covered entity” with “recipient” in two sections: in the definition of “disability” in § 38.4(q) and in the definition of “reasonable accommodation” in § 38.4(yy). For the sake of consistency, CRC places quotation marks around the term “reasonable accommodation” in § 38.4(yy)(2). Recipient Proposed § 38.4(zz) defined the term “recipient” as any one-stop partner listed in section 121(b) of WIOA and any “entity to which financial assistance under Title I of WIOA is extended, directly from the Department or through the Governor or another recipient (including any successor, assignee, or transferee of a recipient).” Section 38.4(zz) also proposed a non-exhaustive list of examples of recipients. Comment: A State labor agency commented that the proposed definition of “recipient” significantly expands the existing definition and will cause confusion because it is not in accordance with current OMB guidance. The commenter recommended that the Department continue to rely on the Office of Management and Budget (OMB) definition. Response: Although the definition of “recipient” in this rule differs from the definition of “recipient” in the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards at 2 CFR part 200 (“Uniform Guidance”), the definition of recipient in this rule does not expand upon or adopt the definition of “recipient” in the Uniform Guidance because this rule and the Uniform Guidance are two different rules with different applicability and different purposes. CRC chooses to retain its definition of “recipient” because CRC has a statutory duty to enforce WIOA Section 188 with respect to “programs and activities financially assisted in whole or in part under” WIOA. Coverage under Section 188 and this regulation is not dependent on whether an entity is a “pass-through entity” as defined in 2 CFR 200.74, a “recipient” as defined in 2 CFR 200.86, or a “subrecipient” as defined in 2 CFR 200.93. Instead, coverage under Section 188 and this regulation depends on whether an entity is a “recipient,” as defined in § 38.4(zz), that receives financial assistance under Title I of WIOA, as defined in § 38.4(x) and (y). Moreover, the definition of “recipient” in § 38.4(zz) is consistent with the definition of “recipient” in the 1999 and 2015 rules. Therefore we decline to amend the definition of “recipient” as suggested. Service Animal Proposed § 38.4(fff) added a definition for “service animal.” This provision is based on the DOJ ADA Title II regulations. 123 123 See 28 CFR 35.104. The EEOC has not addressed whether this definition applies to employers and employment agencies covered under Title I of the ADA or Section 501 of the Rehabilitation Act. Comment: Two disability advocacy organizations expressed support for the proposed definition of “service animal,” reasoning that it is consistent with ADA definitions that exclude exotic animals from protected coverage. The commenter noted that the organization has received complaints about individuals who identify exotic animals as service animals, which the commenters believe draws unnecessary attention to the individual rather than performing an actual service. However, a few commenters requested revisions to the definition. An advocacy organization recommended that the definition of “service animal” be expanded to include emotional support animals to be consistent with language in the Pennsylvania Human Relations Act and the Federal Fair Housing Act. Another advocacy organization suggested that CRC eliminate or explain the differences between CRC's and DOJ's language regarding emotional support and the exclusion of miniature horses as service animals. Similarly, a state-based organization serving individuals with developmental disabilities recommended that the definition of “service animal” be revised to include miniature horses. The commenter noted that, even though current ADA requirements recognize dogs only as service animals, it also permits the use of a miniature horse as a service animal in certain circumstances. Response: In the interest of uniformity, our definition of a service animal under § 38.4(fff) is limited to dogs, consistent with the Department of Justice's 2010 ADA Title II regulations. 124 While another section of the DOJ Title II regulations sets out standards for the reasonable modification of policies, practices, and procedures to permit miniature horses to be utilized in certain circumstances and under specific criteria, this is different from including miniature horses in the definition of a “service animal.” 124 See 28 CFR 35.104. Our definition of a service animal, consistent with the DOJ 2010 ADA Title II regulations, excludes animals that are only used to provide emotional support, well-being, comfort, or companionship, but does include dogs that can perform work or tasks that are directly related to an individual's disability, including helping persons with psychiatric and neurological disabilities. We believe that it is appropriate to follow the DOJ Title II regulations in restricting service animals to dogs that can perform specific assistive tasks; many of the same entities subject to this rule are also subject to the DOJ regulations. However, not all of those entities are subject to the Pennsylvania Human Relations Act or the federal Fair Housing Act. We believe permitting emotional support animals under a single State statute, 125 or under the Fair Housing Act as a reasonable accommodation, 126 is fundamentally different than classifying such animals as service animals. Accordingly, those laws are not used as the basis for the definition of “service animal” in the final rule. 125 The Pennsylvania Human Relations Act does not use the term “service animal” but uses the term “guide or support animals,” without further definition. See 43 Pa. Cons. Stat. sections 952, 955. 126 See U.S. Dep't of Housing & Urban Dev., Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs (FHEO-2013-01, Apr. 25, 2013), available at http://portal.hud.gov/hudportal/documents/huddoc?id=servanimals_ntcfheo2013-01.pdf (classifying requests for emotional support animals as reasonable accommodation requests, rather than a service animal). Video Remote Interpreting (VRI) Service Proposed § 38.4(sss) added a definition for “video remote interpreting (VRI) service” that mirrors the definition used by DOJ in its regulations implementing Title II of the ADA. 127 127 See 28 CFR 35.104. Comment: A coalition of organizations representing the interests of individuals with disabilities commented that the proposed definition of “video remote interpreting” (VRI) is inadequate and vague because it could ostensibly allow for a smartphone to be used to Skype the interpreter, reasoning that such a scenario is problematic as the effectiveness of video remote interpreting depends greatly on the deaf individual's ability to view the VRI interpreter on a sufficient size screen and the clarity of the signing on the screen being affected by signal strength. The coalition recommended that all covered entities prioritize the use of on-site interpreters, and that use of VRI be limited to brief interactions or where a qualified interpreter is not available. Response: The current language, which mirrors the DOJ ADA Title II regulations, is sufficient. As stated in § 38.15, which parallels the language of the ADA, a recipient must take appropriate steps to ensure that communications with individuals with disabilities are as effective as communications with others. A recipient must furnish appropriate auxiliary aids and services where necessary to accomplish this. The type of auxiliary aid or service necessary to ensure effective communication varies in accordance with the method of communication used by the individual, the nature, length, and complexity of the communication involved; and the context in which the communication is taking place. In determining what type of auxiliary aid and service is necessary, a recipient must give primary consideration to the request of an individual with a disability. In addition, with respect to video remote interpreting, there are particular requirements under § 38.15(a)(4) that address the speed, size, and quality of the service, which would in many cases limit the use of a smart phone for VRI. For these reasons, CRC declines to make the suggested changes to proposed § 38.4(sss). Vital Information In § 38.4(ttt), the proposed rule included a definition for “vital information.” The proposed rule used the term “vital information” to describe the type of information that recipients must: (1) Translate in advance of encountering any specific LEP individual, pursuant to § 38.9(g)(1); or (2) translate (in writing) or interpret (verbally) when specific LEP individuals are encountered, pursuant to § 38.9(g) and (h). The proposed rule gave a nonexhaustive list of examples of documents containing vital information. CRC sought comments on this definition. The comments and our responses regarding the definition of “vital information” are set forth below: Comment: Several advocacy organizations supported the proposed definition of “vital information” specifically because the increased usage of Web sites or other virtual services to provide employment and training information should not preclude job seekers or workers who are LEP from accessing those services. A local workforce agency supported the proposed definition of “vital information,” reasoning that it “is precise [and] provides a clear description of the importance of providing program information in various formats thereby enabling recipients to comply with WIOA regulations.” A State labor agency did not support including this definition. The commenter stated that it would increase the burden of one-stop centers and partners to translate materials into multiple languages and would constitute an unfunded mandate. Response: We acknowledge that compliance with § 38.9 may impose some limited burdens on recipients. Moreover, these burdens are outweighed by the benefits that § 38.9 will generate for individuals with limited English proficiency by making them aware, in their preferred languages, of information they need to understand in order to obtain, and to understand how to obtain, the aid, benefits, services, and training offered by WIOA Title I programs and activities. 128 We believe including the definition of vital information provides clear direction for recipients so that they can determine what information must be translated or orally interpreted for LEP individuals in order 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. 129 For these reasons, CRC declines to make any modifications to the definition of vital information. 128 Cf. HHS Nondiscrimination Final Rule, supra note 18, at 31401 (recognizing that in the health context the benefits of translating information for LEP individuals outweigh the burdens on covered entities). 129 DOL LEP Guidance, supra note 28, at 32298. Wheelchair In § 38.4(uuu), the proposed rule added a definition for “wheelchair” to distinguish it from other power driven mobility devices. The new definition mirrors the definition in the DOJ ADA Title II regulations. 130 CRC received one comment in support of this provision from a coalition of disability advocacy organizations and adopts it as proposed. 130 28 CFR 35.104. Summary of Regulatory Changes For the reasons set forth above and in the NPRM, and considering the comments received, CRC adopts the definitions proposed in § 38.4 with the following modifications: reorganizing paragraph (b); numerous edits in paragraph (q) to conform with DOJ's ADA Title II regulations to implement the ADAAA; in paragraphs (q) and (yy), changing all instances of “covered entity” (or “covered entities”) to “recipient” (or “recipients”); in paragraph (aa), revising the definition of “Governor” to track the statutory definition more closely; in paragraph (hh), revising the definition of “limited English proficient (LEP) individual” to clarify its connection to national origin discrimination; in paragraph (mm), revising the maximum wage rate reimbursement to match that in WIOA; in paragraph (nn), adding “by other similar means”; and in paragraph (yy)(4), adding references to the applicable definitions for the “actual disability,” “record of,” and “regarded as” prongs. General Prohibitions on Discrimination § 38.5 Proposed § 38.5 set forth generally the discrimination prohibited by WIOA Section 188 and this part: “No individual in the United States may, on the basis of race, color, religion, sex, national origin, age, disability, political affiliation or belief, and for beneficiaries, applicants, and participants only, citizenship or participation in any WIOA Title I-financially assisted program or activity, be [subjected to certain adverse actions].” Comment: An individual commenter cited the regulatory language “because of race, color, religion, sex, national origin, age, disability, political affiliation or belief . . . ” and recommended that the word “belief” be removed because it can be misunderstood in context with the other words. Response: CRC appreciates the commenter's concern that the regulation text be clearly understood. We believe the word “and” after the word “belief” is inconsistent with the intended meaning of the text, and may have made it unclear that the word “belief” is not an independent protected category, such as race, but is part of the protected basis of “political affiliation or belief.” CRC declines the commenter's suggestion to delete the word “belief” from § 38.5, because the language “political affiliation or belief” is derived directly from WIOA Section 188. However, to clarify that “belief” is not an independent basis, and to more clearly and consistently identify all of the bases on which discrimination is prohibited, CRC makes the following technical changes as appropriate in this section and in §§ 38.1, 38.4(uu), 38.6, 38.10, 38.25(a)(1)(i)(A), and 38.42 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2016-27737. Public record. Not legal advice.