Implementation of the Nondiscrimination and Equal Opportunity Provisions of the Workforce Innovation and Opportunity Act, 4493-4571 [2016-01213]

Agencies

• DEPARTMENT OF LABOR
• Office of the Secretary

[Federal Register Volume 81, Number 16 (Tuesday, January 26, 2016)]
[Proposed Rules]
[Pages 4493-4571]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-01213]



[[Page 4493]]

Vol. 81

Tuesday,

No. 16

January 26, 2016

Part IV





Department of Labor





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Office of the Secretary





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29 CFR Part 38





Implementation of the Nondiscrimination and Equal Opportunity 
Provisions of the Workforce Innovation and Opportunity Act; Proposed 
Rule

Federal Register / Vol. 81 , No. 16 / Tuesday, January 26, 2016 / 
Proposed Rules

[[Page 4494]]


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DEPARTMENT OF LABOR

Office of the Secretary

29 CFR Part 38

RIN 1291-AA36


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

AGENCY: Office of the Secretary, Labor.

ACTION: Notice of Proposed Rulemaking.

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SUMMARY: The U.S. Department of Labor (Department) is proposing to 
issue nondiscrimination and equal opportunity regulations replacing its 
regulation which implemented Section 188 of the Workforce Innovation 
and Opportunity Act (WIOA). Signed by President Obama on July 22, 2014, 
WIOA supersedes the Workforce Investment Act of 1998 (WIA) as the 
Department's primary mechanism for providing financial assistance for a 
comprehensive system of job training and placement services for adults 
and eligible youth. Section 188 of WIOA prohibits the exclusion of an 
individual from participation in, denial of the benefits of, 
discrimination in, or denial of employment in the administration of or 
in connection with, any programs and activities funded or otherwise 
financially assisted in whole or in part under Title I of WIOA because 
of race, color, religion, sex, national origin, age, disability, 
political affiliation or belief, and for beneficiaries only, 
citizenship status, or participation in a program or activity that 
receives financial assistance under Title I of WIOA. These proposed 
regulations would update the nondiscrimination and equal opportunity 
regulation consistent with current law and address its application to 
current workforce development and workplace practices and issues.
    Most of the provisions of WIOA took effect on July 1, 2015, except 
where otherwise specified in the law. WIOA contains the identical 
provisions of Section 188 as appeared in WIA, and these WIOA provisions 
took effect on July 1, 2015. To ensure no regulatory gap while this 
proposed rulemaking progresses toward a final rule, the Department 
issued a final rule implementing Section 188 of WIOA, which applies 
until issuance of the final rule based on this NPRM. The final rule 
issued separately in July 2015 retains the provisions in part 37 but 
substitutes all references to WIA with WIOA to reflect the proper 
statutory authority. This NPRM revises the final rule issued in July 
2015. This NPRM generally carries over the policies and procedures 
found in Department regulations, which implement the equal opportunity 
and nondiscrimination provisions of WIA and WIOA. Like the final rule 
issued separately in July 2015, this rule is organized by the same 
subparts A through E, and refers to ``changes'' or ``revisions'' made 
to the final rule. Certain sections in each subpart have significant 
revisions.

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

ADDRESSES: Comments may be submitted, identified by Regulatory 
Information Number (RIN) 1291-AA36, by any one of the following 
methods:
     Federal e-Rulemaking Portal www.regulations.gov. Follow 
the instructions for submitting comments.
     Fax: (202) 693-6505 (for comments of six pages or less).
     Mail or Hand Delivery/Courier: Naomi Barry-Perez, 
Director, Civil Rights Center (CRC), U.S. Department of Labor, 200 
Constitution Avenue NW., Room N-4123, Washington, DC 20210.
     Email at CRC-WIOA@dol.gov.
    Please submit comments by only one method. Receipt of comments will 
not be acknowledged; however, the Department will post all comments 
received on https://www.regulations.gov without making any change to the 
comments, including any personal information provided. The https://www.regulations.gov Web site is the Federal e-rulemaking portal, and 
all comments posted there are available and accessible to the public.
    The Department cautions commenters not to include personal 
information, such as Social Security Numbers, personal addresses, 
telephone numbers and email addresses, in comments, as such submitted 
information will become viewable by the public via https://www.regulations.gov. It is the responsibility of the commenter to 
safeguard personal information. Comments submitted through https://www.regulations.gov will not include the commenter's email address 
unless the commenter chooses to include that information as a part of a 
comment.
    Postal delivery in Washington, DC, may be delayed due to security 
concerns. Therefore, the Department encourages the public to submit 
comments via the Web site indicated above.
    The Department will also make all the comments it receives 
available for public inspection during normal business hours at the 
Civil Rights Center at the above address. If you need assistance to 
review the comments, the Department will provide you with appropriate 
aids such as readers or print magnifiers. The Department will make 
copies of this NPRM available, upon request, in large print and as an 
electronic file on computer disk. The Department will consider 
providing the proposed rule in other formats upon request. To schedule 
an appointment to review the comments and/or obtain the rule in an 
alternate format, contact CRC at (202) 693-6500 (VOICE) or (202) 877-
8339 (TTY).

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

SUPPLEMENTARY INFORMATION:

Executive Summary

Purpose of the Regulatory Action

    The Civil Rights Center (CRC) of the Department is charged with 
enforcing Section 188 of WIA and, successively, WIOA, which prohibits 
exclusion of an individual from participation in, denial of the 
benefits of, discrimination in, or denial of employment in the 
administration of or in connection with, any programs and activities 
funded or otherwise financially assisted in whole or in part under 
Title I of WIOA because of race, color, religion, sex, national origin, 
age, disability, political affiliation or belief, and for 
beneficiaries, applicants, and participants only, citizenship status, 
or participation in a program or activity that receives financial 
assistance under Title I of WIOA. Section 188 of WIOA incorporates the 
prohibitions against discrimination in programs and activities that 
receive Federal financial assistance under certain civil rights laws 
including Title VI of the Civil Rights Act of 1964 (prohibiting 
discrimination based on race, color, and national origin in programs 
and activities receiving federal financial assistance),\1\ Title IX of 
the Education Amendments of 1972 (prohibiting discrimination based on 
sex in education and training programs receiving federal financial 
assistance),\2\ Age Discrimination Act of 1975 (prohibiting 
discrimination based on age),\3\ and Section 504 of the Rehabilitation 
Act (prohibiting discrimination based on disability).\4\

[[Page 4495]]

CRC interprets the nondiscrimination provisions of WIOA consistent with 
the principles of Title VII of the Civil Rights Act (Title VII),\5\ the 
Americans with Disabilities Act (ADA),\6\ as amended by the Americans 
with Disabilities Act Amendments Act (ADAAA),\7\ and Section 501 of the 
Rehabilitation Act, as amended,\8\ which are enforced by the Equal 
Employment Opportunity Commission (EEOC); Executive Order 11246, as 
amended,\9\ and Section 503 of the Rehabilitation Act, as amended,\10\ 
which are enforced by the Department's Office of Federal Contract 
Compliance Programs (OFCCP); Title VI of the Civil Rights Act (Title 
VI), the Age Discrimination Act of 1975, and Section 504 of the 
Rehabilitation Act, which are enforced by each Federal funding agency; 
and Title IX of the Education Amendments of 1972 (Title IX), which is 
enforced by each Federal funding agency that assists an education or 
training program.
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    \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, Sec.  2(b)(1), 
122 Stat. 3553 (2008).
    \8\ 29 U.S.C. 791.
    \9\ Executive Order 11246 (30 FR 12319), as amended by Executive 
Order 11375 (32 FR 14303), Executive Order 12086 (43 FR 46501), 
Executive Order 13279 (67 FR 77141), Executive Order 13665 (79 FR 
20749) and Executive Order 13672 (79 FR 42971).
    \10\ 29 U.S.C. 793.
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    The regulations at 29 CFR part 38 set forth the equal opportunity 
and nondiscrimination requirements and obligations for recipients of 
financial assistance under Title I of WIOA and the enforcement 
procedures for implementing the nondiscrimination and equal opportunity 
provisions of WIOA. As set forth in the Part 38 final rule, WIOA did 
not change the nondiscrimination and equal opportunity provisions in 
Section 188, but Congress mandated that the Department issue 
regulations to implement the section not later than one year after the 
date of enactment of WIOA.\11\ The regulations must contain standards 
for determining discrimination and enforcement procedures, including 
complaint processes for Section 188 of WIOA.\12\
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    \11\ 29 U.S.C. 3248(e).
    \12\ Id.
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    Since their promulgation in 1999, the regulations implementing 
Section 188 of WIA at part 37 have only been amended once, in 2004, 
specifically to revise Sec.  37.6 to provide that faith-based and 
community organizations are able to participate in the Department's 
social service programs without regard to their religious character or 
affiliation.\13\ Because the part 38 regulations made only technical 
revisions from the part 37 rule, changing references from ``WIA'' to 
``WIOA,'' the current rule does not reflect recent developments in 
equal opportunity and nondiscrimination jurisprudence. Moreover, 
procedures and processes for enforcement of the nondiscrimination and 
equal opportunity provisions of Section 188 have not been revised to 
reflect changes in the practices of recipients since 1999, including 
the use of computer-based and Internet-based systems to provide aid, 
benefit, service, and training through WIOA Title I-financially 
assisted programs and activities.
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    \13\ 69 FR 41894, July 12, 2004.
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    For the reasons stated above, the Department proposes to revise the 
regulations at part 38 to set forth recipients' nondiscrimination and 
equal opportunity obligations under WIOA Section 188 in accordance with 
existing law and policy. This NPRM proposes to update the regulations 
to address current compliance issues in the workforce system, and to 
reflect existing law under Title VI and Title VII of the Civil Rights 
Act of 1964, Title IX of the Education Amendments of 1972, the ADA and 
the Rehabilitation Act as related to WIOA Title I-financially assisted 
programs and activities. This NPRM also incorporates developments and 
interpretations of existing law by the Department of Justice (DOJ), the 
EEOC, the Department of Education, and this Department's corresponding 
interpretation of Title VII and the Rehabilitation Act, as amended, 
into the workforce development system. The proposed rule is intended to 
reflect current law and legal principles applicable to a recipient's 
obligation to refrain from discrimination and to ensure equal 
opportunity.
    The first category of proposed updates to the part 38 regulations 
in this NPRM improves the overall readability of the regulations 
through revisions, limited reorganization of sections and more explicit 
descriptions of recipient obligations. The NPRM revises the current 
question and answer format in the title of each section to make it more 
straightforward and to more closely mirror other nondiscrimination and 
equal opportunity regulations issued by the Department. This NPRM also 
replaces ``he or she'' with ``the individual,'' ``person,'' or other 
appropriate identifier wherever possible to avoid the gender binary. 
The plain language of the regulations is retained for ease of 
comprehension and application.
    The second category of proposed changes in this NPRM updates the 
nondiscrimination and equal opportunity provisions to align them with 
current law and legal principles. As discussed above, in enforcing the 
nondiscrimination obligations of recipients set forth in this part, CRC 
follows the case law principles developed under, among other statutes, 
Title VI and Title VII of the Civil Rights Act of 1964, Title IX of the 
Education Amendments of 1972, Section 504 of the Rehabilitation Act of 
1973, and the Americans with Disabilities Act, as amended by the ADAAA. 
Since the issuance of the WIA Section 188 regulations in 1999, the 
principles of nondiscrimination and equal opportunity law under these 
statutes have evolved significantly and the ADA has been amended. 
Agencies enforcing these statutes have issued regulations and guidance 
impacting WIOA Title I-financially assisted programs and activities to 
reflect these legal developments.\14\ During that time, the Department 
has issued final rules under Section 503 of the Rehabilitation Act and 
Executive Order 13672, which amended Executive Order 11246.\15\
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    \14\ See 29 CFR part 1630, 76 FR 16978, March 25, 2011 (EEOC 
regulations implementing ADA Title I); 79 FR 4839, January 30, 2014 
(DOJ NPRM amending ADA Title II and III regulations).
    \15\ 41 CFR part 60-741, 78 FR 58862, Sept. 24, 2013 (OFCCP 
final rule implementing Section 503); 41 CFR parts 60-1 through 60-
50, 79 FR 72985, Dec. 9, 2014 (OFCCP final rule implementing E.O. 
13672).
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    The third category of proposed changes in this NPRM improves the 
effectiveness of the Department's enforcement program to support 
compliance with this rule. The compliance review and complaint 
procedures sections have been updated based on the Department's 
experience enforcing 29 CFR part 37. The proposed changes also reflect 
feedback received from stakeholders such as recipients and their Equal 
Opportunity Officers (EO Officers) and are intended to increase 
compliance through clearer descriptions of recipient responsibilities, 
more effective EO, enhanced data collection, and consistent monitoring 
and oversight by Governors. The Department maintains regular contact 
with the regulated community, and this contact has informed certain 
proposed revisions to the provisions in the part 38 rule. For example, 
proposed Sec.  38.35 provides that recipients must include in their 
equal opportunity notice or poster a parenthetical noting that sex, as 
a prohibited basis for discrimination, includes pregnancy, childbirth 
and related medical conditions, sex stereotyping, transgender status, 
and gender identity. Similarly, the notice or

[[Page 4496]]

poster would be modified to note in another parenthetical that includes 
limited English proficiency (LEP) as a form of national origin 
discrimination. These changes, although slight, identify the scope of 
the nondiscrimination obligation with more specificity and inform those 
who may not otherwise be aware of the developments in law.
    The Department has participated in annual training conferences, 
including national conferences on equal opportunity attended by 
officials and staff of the State and local agencies that are 
responsible for ensuring nondiscrimination in the programs receiving 
financial assistance under WIA and/or WIOA Title I. The Department's 
participation in conferences offered leaders of State and other local 
agencies the opportunity to exchange--with each other and with the 
CRC--tips, tools, and practices, and to discuss more efficient and 
effective means of supporting compliance with this rule. Those 
exchanges have informed this NPRM. For example, to assist with 
compliance, the NPRM includes an Appendix that lists best practices for 
a recipient to consider when developing a written LEP plan. By 
including this information, recipients may be better prepared to meet 
their obligations.
    The Department also received feedback from EO Officers at trainings 
and listening sessions conducted by the CRC and through technical 
assistance calls. EO Officers, designated by the recipients, are 
responsible for carrying out the recipients' obligations under Section 
188 and its implementing regulations. Their feedback reflects a shared 
concern among EO Officers that the regulations at 29 CFR part 38 
applicable to the role of the EO Officers do not sufficiently reflect 
the responsibilities of the role. For example, EO Officers have advised 
that the part 37 rule did not provide them with sufficient authority or 
require the recipients to provide EO Officers with sufficient resources 
to enable them to effectively meet their obligations. Many of the 
changes, both substantive and stylistic, that are proposed in this rule 
reflect their input. Specifically, proposed Sec.  38.28 would require 
that the Governor designate a State level EO Officer who reports 
directly to the Governor, and that this EO Officer be given staff and 
resources sufficient to carry out the required responsibilities. These 
requirements are designed to provide the EO Officer with sufficient 
authority to fulfill the obligation to coordinate statewide compliance 
with the nondiscrimination and equal opportunity provisions in WIOA; 
current part 38 does not similarly support the work of the EO Officer.

Statement of Legal Authority

Statutory Authority

    The statutory authorities for this NPRM are: Section 134(b), 
116(d)(2)(F), 116(e), 169(a), 183(c), 185(c)(2), 185(d)(1)(E), 186, 187 
and 188 of WIOA. Public Law 113-128, 128 Stat. 1429; Title VI of the 
Civil Rights Act of 1964, as amended. Public Law 88-352, 78 Stat. 252 
(42 U.S.C. 2000d, et seq.); Section 504 of the Rehabilitation Act of 
1973, as amended, Public Law 93-112, 87 Stat. 390 (29 U.S.C. 794); the 
Age Discrimination Act of 1975, as amended, Public Law 94-135; 89 Stat. 
728 (42 U.S.C. 6101); and Title IX of the Education Amendments of 1972, 
as amended, Public Law 92-318, 86 Stat. 373 (20 U.S.C. 1681).

Departmental Authorization

    Secretary's Order 04-2000 delegated to CRC responsibility for 
developing, implementing and monitoring the Department's civil rights 
enforcement program under all equal opportunity and nondiscrimination 
requirements applicable to programs or activities financially assisted 
or conducted by the Department, including Section 188 of WIA. Section 5 
of the Secretary's Order also authorized the Assistant Secretary for 
Administration and Management, working through the CRC Director, to 
establish and formulate all policies, standards, and procedures for, as 
well as to issue rules and regulations governing, the enforcement of 
statutes applying nondiscrimination and equal opportunity requirements 
to programs and activities receiving financial assistance from the 
Department.\16\ Section 5(j) of the Order also delegates authority and 
assigns responsibility to CRC for ``other similarly related laws, 
executive orders and statutes.'' Thus, this delegation also covers 
CRC's enforcement of Section 188 of WIOA, and no new delegation is 
necessary.
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    \16\ 65 FR 69184, Nov. 15, 2000.
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Interagency Coordination

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

I. Overview of the Rule

    This rule retains the organization of 29 CFR part 38 as well as the 
majority of the provisions in part 38.
    Subpart A--General Provisions. This subpart outlines the purpose 
and application of part 38, provides definitions, outlines prohibited 
grounds for and forms of discrimination, and establishes CRC's 
enforcement authority and recipients' nondiscrimination obligations.
    Subpart B--Recordkeeping and Other Affirmative Obligations of 
Recipients. This subpart sets forth the affirmative obligations of 
recipients of, and grant applicants for, financial assistance under 
WIOA Title I, including the role of EO Officers, notice and 
communication requirements, and the data and information collection and 
maintenance obligations of recipients.
    Subpart C--Governor's Responsibilities to Implement the 
Nondiscrimination and Equal Opportunity Requirements of WIOA. This 
subpart describes a Governor's responsibilities to implement the 
nondiscrimination and equal opportunity provisions of WIOA and this 
part, including oversight and monitoring of WIOA Title I-financially 
assisted State Programs, and development of a Nondiscrimination Plan.
    Subpart D--Compliance Procedures. This subpart describes procedures 
for compliance reviews, complaint processing, issuing determinations, 
and procedures for breaches of conciliation agreements.
    Subpart E--Federal Procedures For Effecting Compliance. This 
subpart describes the procedures for effecting compliance, including 
actions the Department is authorized to take upon

[[Page 4497]]

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

Reasons for Proposed Revisions Generally

    These revisions incorporate current jurisprudence under Title VII 
and EEOC Guidance interpreting the nondiscrimination obligation in the 
employment context, because WIOA Section 188 also applies to employment 
in the administration of or in connection with Title I-financially 
assisted programs and activities. Pursuant to Executive Order 12067, 
because the EEOC is the lead federal agency responsible for defining 
the nature of employment discrimination on the basis of race, color, 
religion, sex, national origin, age, or disability under all Federal 
statutes, Executive orders, regulations, and policies which require 
equal employment opportunity, the Department generally defers to the 
EEOC's interpretations of Title VII law as it applies to applicants and 
employees of employers receiving WIOA Title I financial assistance.
    Pursuant to Executive Order 12250 \17\ and Title VI, the DOJ is the 
lead federal agency responsible for defining the nature and scope of 
the nondiscrimination prohibition based on, among other things, race, 
color and national origin in programs and activities receiving Federal 
financial assistance. Thus, CRC generally defers to the DOJ's 
interpretations of Title VI regarding discrimination based on race, 
color and national origin in programs and activities receiving Federal 
financial assistance. Further, pursuant to ADA Title II, DOJ is the 
lead federal agency responsible for defining the parameters of the 
nondiscrimination and equal opportunity provisions of Title II of the 
ADA.
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    \17\ 45 FR 72995, November 2, 1980.
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Developments in National Origin and Language Access Jurisprudence

    Consistent with Title VI case law and the DOJ's guidance on 
ensuring equal opportunity and nondiscrimination for individuals who 
are limited English proficient (LEP),\18\ this rule proposes to create 
a provision stating that discrimination against individuals based on 
their limited English proficiency may be unlawful national origin 
discrimination.
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    \18\ 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.
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    Title VI provides that ``[n]o person in the United States shall, on 
the ground of race, color, or national origin, be excluded from 
participating in, be denied the benefits of, or be subjected to 
discrimination under any program or activity receiving [f]ederal 
financial assistance.'' \19\ Prohibited discrimination under Title VI 
and its implementing regulations includes: (1) Intentional acts; and 
(2) unintentional acts that result in an unjustified disparate impact 
on the basis of race, color, or national origin. 29 CFR 31.3 (DOL Title 
VI regulations). Indeed, the Supreme Court in Lau v. Nichols, 414 U.S. 
563 (1974), held that excluding LEP children from effective 
participation in an educational program because of their inability to 
speak and understand English constitutes national origin discrimination 
prohibited by Title VI. Courts have consistently found that a 
recipient's failure to provide meaningful access to LEP individuals can 
violate Title VI's prohibition of national origin discrimination. See, 
e.g., Colwell 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 (D. Ariz. 2012) (citing Lau); Faith Action for Cmty. Equity v. 
Hawaii, No. 13-00450 SOM, 2014 WL 1691622 at *14 (D. Haw. Apr. 28, 
2014) (Title VI intent claim was properly alleged by LEP plaintiffs 
when it was based on the ``foreseeable disparate impact of the English-
only policy,'' a pretextual justification for the policy, and 
potentially derogatory comments by a state agency). As a result, the 
proposed rule indicates that the definition of national origin 
discrimination includes discrimination based on limited English 
proficiency. Accordingly, the proposed rule sets forth the 
responsibilities of recipients to meet their compliance obligations for 
ensuring that LEP individuals have meaningful access to WIOA programs 
and services.
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    \19\ 42 U.S.C. 2000d.
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    This proposal is also generally consistent with guidance issued by 
the Department in 2003,\20\ advising Federal financial assistance 
recipients of the Title VI prohibition against national origin 
discrimination affecting LEP individuals. This 2003 DOL Recipient LEP 
Guidance was issued pursuant to Executive Order 13166, which directed 
each federal agency that extends assistance subject to the requirements 
of Title VI to publish guidance for its respective recipients 
clarifying that obligation.\21\ Executive Order 13166 further directs 
that all such guidance documents be consistent with the compliance 
standards and framework detailed in the Department of Justice (DOJ) 
Policy Guidance entitled ``Enforcement of Title VI of the Civil Rights 
Act of 1964--National Origin Discrimination Against Persons with 
Limited English Proficiency.'' \22\ The LEP provisions of this NPRM are 
drawn from, and thus are consistent with, the DOJ Title VI LEP 
Guidance.
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    \20\ Civil Rights Center; Enforcement of Title VI of the Civil 
Rights Act of 1964; Policy Guidance to Federal Financial Assistance 
Recipients Regarding the Title VI Prohibition Against National 
Origin Discrimination Affecting Limited English Proficient Persons; 
Notice, 68 FR 32290, May 29, 2003 [hereinafter DOL LEP Guidance].
    \21\ 65 FR 50121, August 16, 2000.
    \22\ 65 FR 50123, August 16, 2000.
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Developments in ADA Jurisprudence

    Congress passed the Americans with Disabilities Act Amendments Act 
of 2008 (ADAAA), amending the ADA and the Rehabilitation Act, both of 
which apply, in distinct ways, to different groups of recipients of 
WIOA Title I-financial assistance. Consistent with Executive Order 
13563's instruction to Federal agencies to coordinate rules across 
agencies and harmonize regulatory requirements where appropriate, this 
rule proposes, where appropriate, to adopt regulatory language that is 
consistent with the ADAAA and corresponding revisions to the EEOC 
regulations implementing Title I \23\ of the ADA and the NPRM issued by 
the DOJ implementing Title II and Title III of the ADA.\24\ This 
proposal will promote consistent application of nondiscrimination 
obligations across Federal enforcement programs and accordingly enhance 
compliance among entities subject to WIOA Section 188 and the various 
titles of the ADA. If the DOJ changes its proposal in its final rule 
implementing ADA Titles II and III, the Department will review those 
changes to determine their impact on this proposal and take appropriate 
action.
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    \23\ See 76 FR 16978, Mar. 25, 2011.
    \24\ See 79 FR 4839, Jan. 30, 3014.
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    Title I of the ADA prohibits private employers, State and local 
governments, employment agencies and labor unions with 15 or more 
employees from discriminating in employment against qualified 
individuals with disabilities in job application procedures, hiring, 
firing, advancement, compensation, job training, and other terms, 
conditions,

[[Page 4498]]

and privileges of employment.\25\ Title I applies to WIOA Title I-
financially assisted programs and activities because WIOA Section 188 
prohibits discrimination in employment in the administration of or in 
connection with WIOA Title I financially-assisted programs and 
activities. The EEOC issued final regulations implementing the 
amendments to Title I of the ADA in March 2011.\26\
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    \25\ 29 CFR 1630.2(e).
    \26\ See 76 FR 16978, March 25, 2011.
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    Title II of the ADA applies to State and local government entities, 
many of which may also be recipients of WIOA Title I financial 
assistance, and, in subtitle A, protects qualified individuals with 
disabilities from discrimination on the basis of disability in 
services, programs, and activities provided by State and local 
government entities.\27\ Title II extends the prohibition against 
discrimination established by Section 504 of the Rehabilitation Act of 
1973, as amended, 29 U.S.C. 794, to all activities of State and local 
governments regardless of whether these entities receive financial 
assistance \28\ and requires compliance with the ADA Standards of 
Accessible Design.\29\ The Department is responsible for implementing 
the compliance procedures of Title II for components of State and local 
governments that exercise responsibilities, regulate, or administer 
services, programs, or activities in ``relating to labor and the work 
force.'' \30\
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    \27\ See 42 U.S.C. 12131-12165.
    \28\ 42 U.S.C. 12132.
    \29\ 28 CFR part 35 (Title II); 28 CFR part 36 (Title III).
    \30\ 28 CFR 35.190(b)(7).
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    Title III, enforced by the DOJ, prohibits discrimination on the 
basis of disability in the full enjoyment of the goods, services, 
facilities, privileges or advantages, or accommodations of any place of 
public accommodation by a person who owns, leases, or operates that 
place of public accommodation.\31\ Title III applies to businesses that 
are generally open to the public and that fall into one of 12 
categories listed in the ADA, such as restaurants, day care facilities, 
and doctor's offices,\32\ 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.\33\ Many recipients of WIOA Title I financial 
assistance are places of public accommodation and thus are subject to 
Title III of the ADA and its accessible design standards. The DOJ 
issued an NPRM in January 2014 that would implement amendments to Title 
II and Title III of the ADAAA.\34\ The DOJ is responsible for handling 
complaints of noncompliance with Title III.
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    \31\ 42 U.S.C. 12182.
    \32\ 42 U.S.C. 12181.
    \33\ 28 CFR part 35 (Title II); 28 CFR part 36 (Title III).
    \34\ See 76 FR 16978, March 25, 2011; 79 FR 4839, January 30, 
3014.
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    This rule proposes making revisions to part 38 consistent with the 
ADA Amendments Act of 2008 (ADAAA) and the implementing regulations 
issued by the EEOC and the proposed regulations issued by the DOJ. The 
ADAAA and implementing regulations made it easier for an individual 
seeking protection under the ADA to establish that the individual has a 
disability within the meaning of the statute.\35\ This NPRM proposes to 
incorporate the rules of construction set out in the ADAAA that specify 
that the definition of ``disability'' is to be interpreted broadly, 
that the primary inquiry should be whether covered entities have 
complied with their statutory obligations and that the question of 
whether an individual's impairment is a disability under the ADA should 
not demand extensive analysis. This NPRM also proposes revisions to the 
definition of ``disability'' and its component parts, including 
``qualified individual,'' ``reasonable accommodation,'' ``major life 
activity,'' ``regarded as having a disability,'' and ``physical or 
mental impairment'' based on specific provisions in the ADAAA, as well 
as the EEOC's final and the DOJ's proposed implementing regulations. 
For example, the proposed revisions expand the definition of ``major 
life activities'' by providing a non-exhaustive list of major life 
activities, which specifically includes the operation of major bodily 
functions. The revisions also add rules of construction that should be 
applied when determining whether an impairment substantially limits a 
major life activity. If the DOJ changes its proposal in its final rule 
implementing ADA Titles II and III, the Department will review those 
changes to determine their impact on this proposal and take appropriate 
action.
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    \35\ See 42 U.S.C. 12102(1)(A)-(C).
---------------------------------------------------------------------------

Developments in Sex Discrimination Jurisprudence

Pregnancy
    The proposed rule also includes a new section to provide direction 
regarding an existing obligation of recipients of WIOA Title I-
financially assisted programs and activities to refrain from 
discrimination based on pregnancy, childbirth or related medical 
conditions as a form of sex discrimination. Although the Pregnancy 
Discrimination Act (PDA) was enacted in 1978,\36\ the WIA Section 188 
regulations, and the part 38 final rule implementing WIOA, do not refer 
specifically to pregnancy discrimination as a form of sex 
discrimination. This NPRM corrects that omission and sets out the 
standards that CRC would apply in enforcing the prohibition against 
pregnancy discrimination, consistent with the PDA, Title IX, and Title 
VII, in WIOA Title I-financially assisted programs, activities, 
training, and services.
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    \36\ 42 U.S.C. 2000e(k).
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    Because the PDA amended Title VII, it does not directly govern the 
nondiscrimination obligations of a program or activity receiving 
Federal financial assistance outside of the employment context. The 
principles underlying the PDA, however, rest on Title IX's prohibitions 
against discrimination on the basis of pregnancy and actual or 
potential parental status and thus are applicable to WIOA Title I 
recipients.\37\
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    \37\ See infra Section by Section Sec.  38.8 discussing the 
intersection of both the PDA and Title IX.
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    Pregnancy discrimination remains a significant issue. Between 
fiscal year 2001 and fiscal year 2013, charges of pregnancy 
discrimination filed with the EEOC and state and local agencies 
increased from 4,287 to 5,342.\38\ 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.'' \39\ The EEOC's findings and related research 
are relevant to this NPRM because the workforce development system is 
the pipeline through which many women find employment opportunities, 
and thus these programs must operate free of pregnancy discrimination. 
In other words, the discrimination that pregnant women experience in 
the private sector is

[[Page 4499]]

relevant to federally financially assisted programs and activities.
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    \38\ U.S. Equal Employment Opportunity Commission, Pregnancy 
Discrimination Charges, EEOC & FEPAs Combined: FY 1997-FY 2011, 
available at https://www.eeoc.gov/eeoc/statistics/enforcement/pregnancy.cfm (last accessed Oct. 6, 2014); U.S. Equal Employment 
Opportunity Commission, Enforcement Guidance: Pregnancy 
Discrimination and Related Issues, (July 14, 2014), available at 
https://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm (last 
accessed Oct. 6, 2014).
    \39\ 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 
https://worklifelaw.org/pubs/PoorPregnantAndFired.pdf (last accessed 
Oct. 3, 2014).
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Sex Stereotyping
    One of the most significant barriers for women in access to 
services, benefits, training, programs and employment in and through 
the workforce development system is sex stereotyping. Decades of social 
science research has documented the extent to which sex stereotypes 
about the roles of women and men and their respective capabilities in 
the workplace can influence decisions about hiring, training, 
promotions, pay raises, and other conditions of employment.\40\ The 
NPRM adopts the well-recognized principle that employment decisions 
made on the basis of stereotypes about how males and/or females are 
expected to look, speak, or act are forms of sex-based employment 
discrimination and applies that principle to the provisions of aid, 
benefit, service, and training through WIOA Title I programs and 
activities. The Supreme Court recognized in 1989 that an employer 
violates Title VII if its employees' chances of promotion depend on 
whether they fit their managers' preconceived notions of how men or 
women should dress and act.\41\ As the Supreme Court stated in Price 
Waterhouse v. Hopkins, ``we are beyond the day when an employer can 
evaluate employees by assuming or insisting that they match the 
stereotype associated with their . . . [sex].'' \42\ 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.\43\ The principle that sex 
stereotyping is a form of sex discrimination has been applied 
consistently in subsequent Supreme Court and lower-court decisions. 
See, e.g., Nevada Dep't of Human Res. 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); 
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); 
Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285 (3d Cir. 2009) 
(harassment based on a man's effeminacy); Terveer v. Billington, Civil 
Action No. 12-1290, 2014 WL 1280301 (D. D.C. March 31, 2014) (hostile 
work environment based on stereotyped beliefs about the appropriate 
gender with which an individual should form an intimate relationship). 
Cf. U.S. 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'').
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    \40\ See, e.g., Susan Fiske et al., Controlling Other People: 
The Impact of Power on Stereotyping, 48 Am. Psychol. 621 (1993); 
Marzarin Banaji, Implicit Social Cognition: Attitudes, Self-Esteem 
and Stereotypes, 102 Psychol. Rev. 4 (1995); Brian Welle & Madeline 
Heilman, Formal and Informal Discrimination Against Women at Work in 
Managing Social and Ethical Issues in Organizations 23 (Stephen 
Gilliland, Dirk Douglas Steiner & Daniel Skarlicki eds., 2007); 
Susan Bruckm[uuml]ller 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).
    \41\ Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
    \42\ Id. at 251.
    \43\ Id. at 235.
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    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.\44\ Sex 
stereotyping may have even more severe consequences for transgender 
applicants and employees, the vast majority of whom report that they 
have experienced discrimination in the workplace.\45\
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    \44\ See, e.g., Kevin Lang & Jee-Yeon K. Lehmann, Racial 
Discrimination in the Labor Market: Theory and Empirics (NBER 
Working Paper No. 17450, 2010), available at https://www.nber.org/papers/w17450 (last accessed March 19, 2015); Marianne Bertrand & 
Sendhil Mullainathan, Are Emily and Brendan More Employable Than 
Lakisha and Jamal? A Field Experiment on Labor Market 
Discrimination, 94(4) American Econ. Rev. 991 (2004); Ian Ayres & 
Peter Siegelman, Race and Gender Discrimination in Bargaining for a 
New Car, 85(3) Am. Econ. Rev. 304 (1995); Marc Bendick, Charles 
Jackson & Victor Reinoso, Measuring Employment Discrimination 
Through Controlled Experiments, 23 Rev. of Black Pol. Econ. 25 
(1994).
    \45\ Jaime M. Grant, Lisa M. Mottet, & Justin Tanis, National 
Center for Transgender Equality & National Gay and Lesbian Task 
Force, Injustice at Every Turn: A Report of the National Transgender 
Discrimination Survey, (2011), available at https://transequality.org/issues/resources/national-transgender-discrimination-survey-full-report (last accessed March 19, 2015).
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    As the EEOC has recognized, claims of gender identity 
discrimination, including discrimination grounded in stereotypes about 
how persons express their gender, are claims of sex discrimination 
under Title VII. See Macy v. Dep't of Justice, E.E.O.C. Appeal No. 
0120120821, 2012 WL 1435995 (April 20, 2012).\46\ The Commission also 
has found that ``discrimination against lesbian, gay, and bisexual 
individuals based on sex-stereotypes is discrimination on the basis of 
sex under Title VII.'' \47\ See e.g., Veretto v. United States Postal 
Service, E.E.O.C. Appeal No. 0120110873, 2011 WL 2663401 (July 1, 
2011)) (finding allegation of sexual orientation discrimination was a 
claim of sex discrimination because it was based on the sex stereotype 
that marrying a woman is an essential part of being a man); Castello v. 
United States Postal Service, E.E.O.C. Request No. 0520110649, 2011 WL 
6960810 (Dec. 20, 2011) (finding allegation of sexual orientation 
discrimination was a claim of sex discrimination because it was based 
on the sex stereotype that having relationships with men is an 
essential part of being a woman); Complainant v. Dep't of Homeland 
Sec., E.E.O.C. Appeal No. 0120110576, 2014 WL 4407422 (Aug. 20, 2014) 
(finding that sex discrimination claims intersect with sexual 
orientation discrimination claims such that allegations of 
discrimination on the basis of sexual orientation can be construed as 
claims of discrimination on the basis of sex); Baldwin v. Dep't of 
Transp., E.E.O.C. Appeal No. 012013080, 2015 WL 4397641 (July 15, 
2015).
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    \46\ The EEOC also has concluded that discrimination on the 
basis of gender identity is inherently discrimination on the basis 
of sex and that a transgender plaintiff can prove sex discrimination 
without tying the discrimination to a sex stereotype. See Macy, 
E.E.O.C. Appeal No. 0120120821, 2012 WL 1435995 at *10 (``While 
evidence that an employer has acted based on stereotypes about how 
men or women should act is certainly one means of demonstrating 
disparate treatment based on sex, ``sex stereotyping'' is not itself 
an independent cause of action . . . [I[f Complainant can prove that 
the reason that she did not get the job is [because the employer] 
was willing to hire her when he thought she was a man, but was not 
willing to hire her once he found out that she was now a woman--she 
will have proven that the [employer] discriminated on the basis of 
sex.'').
    \47\ In the Baldwin decision, the EEOC stated that sexual 
orientation discrimination is inherently discrimination on the basis 
of sex because it involves treatment that would not have occurred 
but for the sex of the employee; because it takes the employee's sex 
into account by treating him or her differently due to the sex of 
the person he or she associates with; and because it is premised on 
fundamental sex stereotypes, norms, or expectations. Baldwin v. 
Dep't of Transp., E.E.O.C. Appeal No. 0120133080, 2015 WL 
4397641,*10 (July 15, 2015).
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    The Department of Education has interpreted Title IX's prohibition 
against discrimination on the basis of sex in federally-funded 
education programs and activities as including claims of sex 
discrimination related to a person's failure to conform to 
stereotypical

[[Page 4500]]

norms of masculinity and femininity.\48\ A Department of Education 
guidance document states: ``Title IX's sex discrimination prohibition 
extends to claims of discrimination based on gender identity or failure 
to conform to stereotypical notions of masculinity or femininity and 
[the Department of Education's Office for Civil Rights] accepts such 
complaints for investigation.'' \49\
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    \48\ See Questions and Answers on Title IX and Sexual Violence 
B-2 at 5 (available at https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf (last accessed March 19, 2015) (stating 
that Title IX's sex discrimination prohibition extends to claims of 
discrimination based on gender identity or failure to conform to 
stereotypical notions of masculinity or femininity) (April 29, 
2014); Revised Sexual Harassment Guidance: Harassment of Students by 
School Employees, Other Students, or Third Parties, 66 FR 5512, 
January 19, 2001 (available at https://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf).
    \49\ See Questions and Answers on Title IX and Sexual Violence 
B-2 at 5 (available at https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf (last accessed March 19, 2015).
---------------------------------------------------------------------------

    These agency interpretations are consistent with court opinions 
holding that disparate treatment of a transgender employee may 
constitute discrimination because of the individual's non-conformity to 
sex stereotypes. Barnes 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, 574 
(6th Cir. 2004) (``discrimination against a plaintiff who is a 
transsexual [sic]--and therefore fails to act and/or identify with his 
or her gender--is no different from the discrimination directed against 
[the plaintiff] in Price Waterhouse who, in sex-stereotypical terms, 
did not act like a woman''). See also 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). Cf. Oncale 
v. Sundowner Offshore Servs., 523 U.S. 75, 78 (1998) (same-sex 
harassment may be sex discrimination under Title VII).
    In addition to these cases, ``[t]here has likewise been a steady 
stream of district court decisions recognizing that discrimination 
against transgender individuals on the basis of sex-based stereotyping 
constitutes discrimination because of sex.'' Macy, 2012 WL 1435995. See 
also Schroer, 577 F. Supp. 2d at 305-06 (withdrawal of a job offer from 
a transgender applicant constituted sex-stereotyping discrimination in 
violation of title VII).\50\ There are also a growing number of 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. See, e.g., Centola v. 
Potter, 183 F. Supp. 2d 403, 410 (D. Mass. 2002); Heller v. Columbia 
Edgewater, 195 F. Supp. 2d 1212, 1224 (D. Or. 2002); Koren v. Ohio 
Bell, 894 F. Supp. 2d 1032, 1038 (N.D. Ohio 2012); Terveer v. 
Billington, 34 F. Supp. 3d 100, 116, 2014 WL 1280301 (D.D.C. 2014); 
Isaacs v. Felder Servs., 2015 WL 6560655, *3-4 (M.D. Ala. 2015) (slip 
op.); Videckis v. Pepperdine Univ., 2014 WL 8916764 (C.D. Cal. 2015) 
(slip op); cf. Latta v. Otter, 771 F.3d 456, 495 (9th Cir. 2014) 
(Berzon, J. concurring).
---------------------------------------------------------------------------

    \50\ See also id. at 306-07 (analogizing to cases involving 
discrimination based on an employee's religious conversion, which 
undeniably constitutes discrimination ``because of . . . religion'' 
under Title VII). See also Michaels v. Akal Security, Inc., No. 09-
cv-1300, 2010 WL 2573988, at * 4 (D. Colo. June 24, 2010); Lopez v. 
River Oaks Imaging & Diag. Group, Inc., 542 F. Supp. 2d 653, 660 
(S.D. Tex. 2008); Mitchell v. Axcan Scandipharm, Inc., No. Vic. 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 111, 2001 WL 34350174 (N.D. Ohio Nov. 9, 2001).
---------------------------------------------------------------------------

    Furthermore, Federal contractors that operate Job Corps Centers, 
who are covered by Section 188 and this part,\51\ may also be covered 
by the requirements of Executive Order 11246, which requires that 
contractors meeting certain dollar threshold requirements refrain from 
discrimination in employment based on race, color, religion, national 
origin, sex, sexual orientation, and gender identity and take 
affirmative action to ensure equal employment opportunity. Executive 
Order 13672, issued on July 21, 2014, amended Executive Order 11246 to 
add sexual orientation and gender identity as 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.\52\
---------------------------------------------------------------------------

    \51\ See 29 CFR 38.2(b)(4).
    \52\ 79 FR 72985, December 9, 2014.
---------------------------------------------------------------------------

    Consistent with the above jurisprudence and agency interpretations, 
the Department proposes that complaints of discrimination based on 
transgender status and gender identity be treated as complaints of sex 
discrimination. The Department also proposes that for purposes of this 
rule, complaints of discrimination based on sex stereotyping be treated 
as complaints of sex discrimination.

Harassment

    This rule also proposes a new section to provide direction as to a 
recipient's existing obligation regarding unlawful harassment. Courts 
have recognized for many years that harassment on the basis of a 
protected category may give rise to a violation of Title VI and Title 
VII of the Civil Rights Act, Section 504, and Title IX and that 
unlawful harassment may take many forms.\53\ The NPRM adds a section 
that sets out the prohibition against these various forms of unlawful 
harassment.
---------------------------------------------------------------------------

    \53\ See, e.g., Harris v. Forklift Sys., 510 U.S. 17 (1993) 
(harassment based on sex); Meritor Savings Bank v. Vinson, 477 U.S. 
57 (1986) (sex); Daniels v. Essex Group, Inc., 937 F.2d 1264, 1274 
(7th Cir. 1991) (race); Rogers v. Western-Southern Life Ins. Co., 
792 F. Supp. 628 (E.D.Wis.1992) (race); Gebser v. LagoVista 
Independent School District, 524 U.S. 274 (1998) (school can be held 
liable if a teacher sexually harasses a student); Davis v. Monroe 
County Board of Education, 526 U.S. 629 (1999) (holding a school 
liable when one student sexually harasses another student; Zeno v. 
Pine Plains Center School District, 702 F.3d 655 (2nd Cir. 2011) 
(racial harassment under Title VI); Booth v. Houston, 2014 WL 
5590822 (M.D. Alabama 2014) (disability harassment); See Revised 
Sexual Harassment Guidance: Harassment of Students by School 
Employees, Other Students, or Third Parties, 66 FR 5512, January 19, 
2001 (available at https://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf); Dear Colleague letter concerning recipients' 
obligations to protect students from student-on-student harassment 
on the basis of sex, race, national origin, and disability (October 
26, 2010), available at https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.html (last accessed March 13, 2015).
---------------------------------------------------------------------------

    In 2001, 2011, and 2014, the Department of Education issued 
guidance documents 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.\54\ Title IX protects individuals from 
discrimination based on sex in education programs or activities that 
receive Federal financial assistance, including WIOA Title I programs 
and activities that are education and training programs.\55\ The 
proposed rule incorporates language in Subpart A that reflects the 
current Department of Education 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

[[Page 4501]]

consistent with those of one of the agencies that also regulate the 
same recipient community.
---------------------------------------------------------------------------

    \54\ See Revised Sexual Harassment Guidance: Harassment of 
Students by School Employees, Other Students, or Third Parties, 66 
FR 5512, January 19, 2001 (available at https://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf); April 4, 2011 Dear Colleague 
letter on Sexual Violence, available at https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf; April 29, 2014 
Questions and Answers on Title IX and Sexual Violence, available at 
https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf.
    \55\ 20 U.S.C. 1681 et seq.
---------------------------------------------------------------------------

Increased Provision of Services Using Technology, Including the 
Internet

    The increased turn toward the integration of, and in some instances 
complete shift to, online service delivery models in the public 
workforce development system since 1999 requires that the part 38 
regulations be updated to address the nondiscrimination and equal 
opportunity implications raised by these changes. As of 2011, one in 
five American adults did not use the Internet.\56\ In particular, 
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.\57\ Additionally, as of 2011, 
32% of Hispanic individuals (including those who are proficient in 
English) and 29% of Black, non-Hispanic individuals, respectively, were 
not using the Internet.\58\ Similarly, adults with disabilities were 
significantly less likely to use the Internet than adults without a 
disability.\59\
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    \56\ Digital differences: While increased Internet adoption and 
the rise of mobile connectivity have reduced many gaps in technology 
access over the past decade, for some groups, digital disparities 
still remain at 5, Pew Internet & American Life Project, Pew 
Research Center (April 2013) available at https://pewinternet.org/~/
media//Files/Reports/2012/PIP_Digital_differences_041312.pdf. (last 
accessed March 19, 2015).
    \57\ Id.
    \58\ Id.
    \59\ Id.
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Revisions to Subparts B Through E

    Subpart B, Recordkeeping and Other Affirmative Obligations, 
includes revisions to 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 Equal Opportunity 
Officers, and recipient's responsibilities to ensure that they 
designate EO Officers with sufficient expertise, authority, staff and 
resources to carry out their responsibilities. The NPRM also proposes 
revised requirements regarding data and information collection and 
maintenance and revises the section on outreach responsibilities of 
recipients.
    Proposed changes to Subpart C, regarding the Governor's 
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 proposal provides more direction as to the 
Governor's responsibilities and the CRC's procedures for enforcing 
those responsibilities, thus addressing an inadvertent gap in the 
existing regulations.
    Proposed changes to Subpart D regarding compliance procedures 
includes language to strengthen the preapproval compliance review 
process by requiring Departmental grant-making agencies to consult with 
the Director of the 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 rule also proposes to expand 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 some language to clarify that any 
person or their representative may file a complaint based on 
discrimination and retaliation under WIOA and this part. The NPRM 
proposes that complainants and recipients may use a form of alternative 
dispute resolution, rather than mediation alone, to resolve complaints 
so as to expand the options available to recipients and complainants to 
use to achieve resolution of complaints.
    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 Proposed Rule

    The proposed rule would benefit both recipients of financial 
assistance under Title I of WIOA and the beneficiaries of that 
assistance in several ways. First, by updating and clearly and 
accurately stating the existing principles of applicable law, the 
proposed rule will facilitate recipient understanding and compliance, 
thereby reducing costs incurred when noncompliant. The NPRM would also 
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 
nondiscrimination federal laws that these updated regulations 
incorporate, so many of the new substantive nondiscrimination 
provisions do not impose new obligations.
    This regulation would increase equality of opportunity for the 
thousands of applicants, participants, beneficiaries and employees of 
recipients. It would clarify that adverse treatment of applicants, 
beneficiaries, or participants of recipients' WIOA Title I programs and 
activities and their employees or applicants for employment, because of 
gender-based assumptions constitutes sex discrimination. By stating 
that discrimination against an individual because of their gender 
identity or transgender status is unlawful sex discrimination, the NPRM 
would provide much-needed regulatory protection to transgender 
individuals, the majority of whom report they have experienced 
discrimination in the workplace.\60\ In addition, by providing that 
pregnant employees or applicants may be entitled to accommodations when 
such accommodations or modification are provided to other participants 
not so affected but similar in their ability or inability to work, this 
NPRM will protect pregnant individuals who work for recipients, and 
applicants for job training programs and similar activities from losing 
jobs or access to educational and training opportunities.
---------------------------------------------------------------------------

    \60\ Jaime M. Grant, Lisa M. Mottet, & Justin Tanis, National 
Center for Transgender Equality and National Gay and Lesbian Task 
Force, Injustice at Every Turn: A Report of the National Transgender 
Discrimination Survey (2011), available at https://transequality.org/PDFs/Executive_Summary.pdf (last accessed March 19, 2015).
---------------------------------------------------------------------------

    Finally, the NPRM would benefit public understanding of the law. 
This public interest is reflected in 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.''
    The detailed Section-by-Section Analysis below identifies and 
discusses all proposed changes in each section. The Department welcomes 
comments on all of the provisions discussed below.

II. Section-By-Section Analysis

    As explained above, the Department is proposing a revised part 38 
and in doing so has adopted much of the language of current part 38. 
Therefore, this NPRM refers to the changes made to the existing part 38 
rule to highlight differences. The Department proposes several global 
changes to the current part 38 rule.
    First, this NPRM removes the question and answer format of the 
section titles and replaces each title with statements or phrases to 
make them easier to understand.

[[Page 4502]]

    Second, this NPRM makes technical revisions to ensure that the 
regulations are consistent with terms used in WIOA and the proposed 
regulations published by the Department to implement the program 
obligations under Title I of WIOA.
    Third, the proposed rule removes and replaces the term ``on the 
grounds of'' with ``on the basis of'' throughout the regulatory text 
for purposes of consistency with other nondiscrimination regulations 
and Federal statutes.
    Fourth, it replaces the terms ``her'' and ``him'' with 
``individual'' wherever possible.
    Fifth, the proposed rule also includes substantive revisions 
related to the nondiscrimination obligation to reflect changes in the 
law since publication of part 37 in 1999.
    Sixth, this proposal contains changes to certain enforcement 
procedures that will enhance their effectiveness and provide clearer 
direction to the recipient community as to the scope of their 
obligations under this part. Each of these revisions is explained 
below.

Subpart A--General Provisions

Purpose Sec.  38.1
    Proposed Sec.  38.1 makes minor revisions to the language that is 
used in Sec.  38.1. First, the title of proposed Sec.  38.1 is revised 
to read: ``Purpose.'' The NPRM replaces the term ``on the grounds of'' 
with ``on the basis of'' to be consistent with nondiscrimination 
language in other Department civil rights regulations.
Applicability Sec.  38.2
    This NPRM makes minor revisions to the language that is used in 
Sec.  38.2. First, the title of this section is changed to 
``Applicability.'' Reference to the Job Training Partnership Act of 
1982, ``JTPA,'' \61\ is replaced with reference to ``WIA'' in paragraph 
(b)(1) to reflect the ongoing applicability of the nondiscrimination 
and equal opportunity regulations at 29 CFR part 37 to WIA Title I-
financially assisted programs and activities after the effective date 
of WIOA. Subpart (a)(3) is revised to explain that the scope of this 
rule regarding employment practices is limited to any program or 
activity that is operated by a recipient and/or a One-Stop \62\ 
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. This 
limitation tracks the statutory provision in Section 188(a)(2) of 
WIOA.\63\ Finally, the proposed rule deletes subsection (b)(5), which 
under Sec.  38.2 excludes Federally-operated Job Corps Centers from 
application of the provisions of part 38. The Department's Employment 
and Training Administration (ETA), which has responsibility for 
administering WIOA generally, proposes new language in its WIOA NPRM at 
20 CFR 686.350, stating that nondiscrimination requirements, 
procedures, complaint processing, and compliance reviews applicable to 
Federally-operated Job Corps Centers would be governed by provisions of 
Department of Labor regulations, as applicable.\64\ This provision is 
consistent with the language of WIOA Section 188(d), which does not 
distinguish between Federally- and privately-operated Job Corps 
Centers. ``For purposes of this section, Job Corps members shall be 
considered to be the ultimate beneficiaries of Federal financial 
assistance.'' \65\ Moreover, based on complaints arising in Federally-
operated Job Corps Centers, it has become apparent to CRC that uniform 
complaint handling processes need to apply throughout the Job Corps 
system. Additionally, this section is consistent with the Job Corps' 
Policy and Requirements Handbook (PRH), particularly Section 6.8, R5, 
Appendix 602 and Exhibit 6-11, which makes no distinction between 
Federally- and privately-operated centers with regard to student 
complaints. Moreover, this revised section memorializes the current 
practice used by federally-operated Job Corps Centers.\66\
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    \61\ 29 U.S.C. 1501 et seq.
    \62\ 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.
    \63\ 29 U.S.C. 3248(a)(2).
    \64\ See 20 CFR 686.985.
    \65\ 29 U.S.C. 3248(d).
    \66\ Reference Guide, Key EEO and Civil Rights Laws, Statutes, 
and Regulations, USDA Forest Service WO/Civil Rights Staff (April 
2010).
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Effect on Other Obligations Sec.  38.3
    The title of Sec.  38.3 is revised to read: ``Effect on other 
obligations.'' Proposed Sec.  38.3 retains the majority of the language 
in this section from Sec.  38.3. To establish parity with parallel 
provisions in other federal nondiscrimination regulations,\67\ proposed 
Sec.  38.3 also includes paragraph (c) explaining that ``This part does 
not invalidate or limit the 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.'' This addition replaces Sec.  38.3(f) of this 
subsection which states, ``This rule does not preempt consistent State 
and local requirements.'' The NPRM also adds Executive Order 13160 \68\ 
to the provision that states that compliance with this part does not 
affect additional obligations under the listed laws. Executive Order 
13160 prohibits discrimination on the basis of race, sex, color, 
national origin, disability, religion, age, sexual orientation, and 
status as a parent in federally conducted education and training 
programs and activities. This Executive Order is added because of its 
application to the Job Corps program which, as a Federally-conducted 
education and training program, is covered by this part.
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    \67\ 41 CFR 60-741.1(c)(3); 41 CFR 60-300.1(c)(3).
    \68\ 65 FR 39775, June 27, 2000.
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Definitions Sec.  38.4
    This NPRM revises the title of Sec.  38.4 to read: ``Definitions.'' 
The proposed rule retains the majority of the definitions contained in 
Sec.  38.4. Revisions in proposed Sec.  38.4 include updating existing 
definitions consistent with applicable law, such as the definition of 
``disability'' and its component definitions. This section also adds 
new definitions, which are discussed below. These changes also include 
edits to update existing definitions, based on developments in the law, 
as well as feedback from stakeholders and the CRC's investigative and 
enforcement experiences over the past fifteen years. This NPRM retains 
the alphabetical order of the definitions. This ordering makes it 
easier to locate specific terms within the section. However, the 
proposed rule incorporates a letter designation before each definition 
to make it easier to find definitions when they are referenced. The 
headings that appear in this preamble to guide the reader do not appear 
as headings in the regulatory text. The discussion below addresses 
revisions to the definitions section in the part 38 rule.
Aid, Benefit, Service, or Training Sec.  38.4(b)
    In the definition for ``Aid, benefit, service, or training,'' the 
proposed rule replaces ``core and intensive services'' with ``career 
services'' in Sec.  38.4(b)(1) to be consistent with the text of Title 
I of WIOA \69\ and the proposed ETA regulations implementing Title I of 
WIOA,\70\ which made the same replacement.
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    \69\ 29 U.S.C. 3303(a)(1)(A).
    \70\ 80 FR 20690, April 16, 2015.

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[[Page 4503]]

Auxiliary Aids or Services Sec.  38.4(h)
    This NPRM revises the definition of ``Auxiliary aids or services'' 
to include new technology alternatives that have become available since 
the current regulations were drafted in 1999, such as video remote 
interpreting services and real-time computer-aided transcription 
services. This provision mirrors the language in the DOJ regulations 
implementing Title II of the ADA, which prohibits discrimination on the 
basis of disability by public entities,\71\ some of which are also 
recipients of WIOA Title I financial assistance.
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    \71\ See 28 CFR 35.104.
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Babel Notice Sec.  38.4(i)
    This NPRM adds a definition for ``Babel Notice.'' A Babel Notice is 
a short notice in multiple languages informing the reader that the 
document or electronic media (e.g., Web site, ``app,'' email) contain 
vital information, and explaining how to access language services to 
have the contents of the document or electronic media provided in other 
languages. The Department proposes 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. The Department welcomes comments on 
this definition.
Direct Threat Sec.  38.4(p)
    This NPRM adds a definition for ``direct threat.'' This term is 
used in the context of determining whether the employment of or program 
participation by an individual with a disability poses a health or 
safety risk such that the employer or recipient can lawfully exclude 
the individual from employment or participation. A ``direct threat'' is 
``a significant risk of substantial harm to the health or safety of 
others that cannot be eliminated or reduced by auxiliary aids and 
services, reasonable accommodations, or reasonable modifications in 
policies, practices, or procedures.'' The definition describes the four 
factors that a recipient must consider when making a direct threat 
determination: The duration of the risk, the nature and severity of the 
potential harm, the likelihood that the potential harm will occur, and 
the imminence of the potential harm. This proposed definition tracks 
the definition of direct threat contained in the Americans with 
Disabilities Act and used by DOJ \72\ in interpreting Title II of the 
ADA. This proposed definition ensures consistency with current law. To 
reflect the specific context of federal financially-assisted programs 
and activities, the proposed definition includes considering whether 
provision of auxiliary aids or services or reasonable modifications to 
policies, practices, or procedures, in addition to reasonable 
accommodations, will mitigate risk.
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    \72\ 28 CFR 35.139.
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Disability Sec.  38.4(q)
    The rule proposes a definition of ``disability'' that is updated to 
reflect the current status of the law. As under the current part 38, 
the overall definition is: ``with respect to an individual: (1) A 
physical or mental impairment that substantially limits one or more of 
the major life activities of such individual; (2) A record of such an 
impairment; or (3) Being regarded as having such an impairment.'' The 
proposed definition of ``disability'' integrates updated definitions of 
terms that are components of this definition, including ``major life 
activities,'' ``physical or mental impairment,'' ``record of,'' 
``regarded as,'' and ``substantially limits.'' As is explained below, 
these revised definitions are taken directly from the ADA Amendments 
Act,\73\ regulations promulgated by the EEOC to implement the ADA 
Amendments Act,\74\ and the DOJ's Notice of Proposed Rulemaking to 
amend Title II regulations to implement the ADA Amendments Act.\75\ If 
the DOJ changes its proposal in its final rule implementing ADA Titles 
II and III, the Department will review those changes to determine their 
impact on this proposal and take appropriate action.
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    \73\ Public Law 110-325 (2008).
    \74\ 29 CFR part 1630.
    \75\ 79 FR 4839, January 30, 2014. See also 28 CFR 35.104 (DOJ's 
current Title II regulations).
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Definition of Disability, Rules of Construction Sec.  38.4(q)(1)
    Consistent with the ADAAA, the EEOC regulations implementing the 
ADAAA and DOJ's NPRM to amend the ADA Title II regulations in 
conformance with the ADAAA,\76\ this section sets forth rules of 
construction that provide the standards for application of the 
definition of disability.
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    \76\ See Introduction to the Final Rule ``The primary purpose of 
the ADAAA is to make it easier for people with disabilities to 
obtain protection under the ADA. Consistent with the Amendment Act's 
purpose of reinstating a broad scope of protection under the ADA, 
the definition of ``disability'' in this part shall be construed 
broadly in favor of expansive coverage to the maximum extent 
permitted by the terms of the ADA.'' 29 CFR 1630.1(c) (citing 42 
U.S.C. 12102(4)(A)).
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    Proposed Sec.  38.4(q)(1)(ii) provides that an individual may 
establish coverage under any one or more of the prongs in the 
definition of disability. To be covered under the ADA, however, an 
individual is only required to satisfy one prong. The term ``actual 
disability'' is used in these rules of construction as short-hand 
terminology to refer to an impairment that substantially limits a major 
life activity within the meaning of the first prong of the definition 
of disability. The terminology selected is for ease of reference. It is 
not intended to suggest that an individual with a disability who is 
covered under the first prong has any greater rights under the ADA than 
an individual who is covered under the ``record of'' or ``regarded as'' 
prongs, with the exception that the ADA, as amended, expressly states 
that an individual who meets the definition of disability solely under 
the ``regarded as'' prong is not entitled to reasonable accommodations, 
auxiliary aids or services, or reasonable modifications of policies, 
practices, or procedures.\77\
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    \77\ See 42 U.S.C. 1. See Introduction to the Final Rule, ``The 
primary purpose of the ADAAA is to make it easier for people with 
disabilities to obtain protection under the ADA, Consistent with the 
Amendment Act's purpose of reinstating a broad scope of protection 
under the ADA, the definition of ``disability'' in this part shall 
be construed broadly in favor of expansive coverage to the maximum 
extent permitted by the terms of the ADA.'' 29 CFR 1630.
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    This section also amends the definition of ``disability'' to 
incorporate Congress's expectation that consideration of coverage under 
the first and second prongs of the definition of ``disability'' will 
generally not be necessary except in cases involving requests for 
reasonable accommodations and reasonable modifications.\78\ See Sec.  
38.4(q)(1)(ii)(B).
---------------------------------------------------------------------------

    \78\ 154 Cong. Rec. S8840 (daily ed. Sept. 16, 2008) (Statement 
of Managers).
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Physical or Mental Impairment Sec.  38.4(q)(3)
    This rule revises the definition of ``physical or mental 
impairment,'' in the definition of disability, to include ``immune and 
circulatory illnesses'' as well as ``pregnancy-related medical 
conditions'' and states that the definition of ``mental and 
psychological disorder'' includes ``intellectual disability (formerly 
termed ``mental retardation'') and specific learning disabilities 
(including but not limited to dyslexia).'' This update to the 
definition conforms to the same definition proposed by the DOJ in their 
NPRM implementing Title II of the ADA \79\ and in OFCCP's final rule 
implementing Section 503,\80\ apart from the inclusion of pregnancy-
related medical conditions. This term is added here to

[[Page 4504]]

recognize that, under the ADA as amended by the ADAAA, Section 504 and 
this part, pregnancy itself is not a disability, but pregnancy-related 
medical conditions may meet the ADA definition of a physical or mental 
impairment; for example, preeclampsia (pregnancy-induced high blood 
pressure), placenta previa, and gestational diabetes, disorders of the 
uterus and cervix, or other medical conditions; symptoms such as back 
pain; complications requiring bed rest; and the after-effects of a 
delivery may be a disability.
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    \79\ 79 FR 4839, 4844, January 30, 2014.
    \80\ 78 FR 58682, 58735, September 24, 2013.
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Major Life Activities Sec.  38.4(q)(4)
    The proposed rule adds to the definition of disability a new 
definition for ``major life activities'' that is consistent with the 
definitions in the ADA, as amended,\81\ and regulations promulgated by 
the EEOC \82\ and the DOJ \83\ implementing the ADA. Prior to the 
ADAAA, the ADA did not define ``major life activities,'' leaving 
delineation of illustrative examples to agency regulations. 
Subparagraph (2) of the definition of ``disability'' in the 
Department's current part 38 rule states that ``[t]he phrase major life 
activities means functions such as caring for one's self, performing 
manual tasks, walking, seeing, hearing, speaking, breathing, learning, 
and working.'' \84\ The ADAAA incorporates into the statutory language 
a non-exhaustive list of major life activities that includes, but is 
not limited to, ``caring for oneself, performing manual tasks, seeing, 
hearing, eating, sleeping, walking, standing, lifting, bending, 
speaking, breathing, learning, reading, concentrating, thinking, 
communicating, and working.'' \85\ This list reflects Congress's 
concern that courts were interpreting the term ``disability,'' which 
includes ``major life activities,'' more narrowly than Congress 
intended.\86\ For the same reason, the ADA as amended also explicitly 
defines ``major life activities'' to include the operation of ``major 
bodily functions.'' Examples in the amended statute or the EEOC's 
amended regulations include functions of the immune system, special 
sense organs and skin; normal cell growth; and digestive, 
genitourinary, bowel, bladder, neurological, brain, respiratory, 
circulatory, cardiovascular, endocrine, hemic, lymphatic, 
musculoskeletal, and reproductive functions. The operation of a major 
bodily function includes the operation of an individual organ within a 
body system. In Sec.  38.4(q)(4), the Department proposes to revise its 
part 38 definitions of disability to incorporate the statutory examples 
as well as to provide additional examples of major life activities 
included in the EEOC Title I final regulation--reaching, sitting, and 
interacting with others, and the examples of major bodily 
functions.\87\
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    \81\ 42 U.S.C. 12102(2).
    \82\ 29 CFR 1630.2(i).
    \83\ 79 FR 4839, 4844, January 30, 2014.
    \84\ 29 CFR 38.4(q)(4).
    \85\ 42 U.S.C. 12102(2)(a).
    \86\ See Congressional Record--Senate S8840, S8841 (September 
16, 2008).
    \87\ 29 CFR 1630.2(i)(1).
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    The Department cautions that both the lists of major life 
activities and major bodily functions are illustrative. The absence of 
a particular life activity or bodily function from the list should not 
create a negative implication as to whether such activity or function 
constitutes a major life activity or major bodily function under the 
statute or the implementing regulation.\88\
---------------------------------------------------------------------------

    \88\ 29 CFR 1630, App, Section 1630.2(i). Major Life Activities 
(EEOC Title I).
---------------------------------------------------------------------------

    Consistent with the ADAAA, proposed Sec.  38.4(q)(4)(iii) also 
states that ``[i]n determining other examples of major life activities, 
the term `major' must not be interpreted strictly to create a demanding 
standard for disability.'' \89\ Further, consistent with the ADAAA, the 
proposed regulations provide that ``[w]hether an activity is a `major 
life activity' is not determined by reference to whether the activity 
is of `central importance to daily life.' '' \90\
---------------------------------------------------------------------------

    \89\ 42 U.S.C. 12101(b)(4).
    \90\ 29 CFR 1630.2(i)(2).
---------------------------------------------------------------------------

Substantially Limits--Rules of Construction Sec.  38.4(q)(5)
    The revisions also add rules of construction to be applied when 
determining whether an impairment substantially limits a major life 
activity, including that the term ``substantially limits'' is not meant 
to be a demanding standard, and should be construed broadly in favor of 
expansive coverage. In addition, consistent with the ADAAA, the 
determination of whether an impairment substantially limits a major 
life activity must be made without regard to the ameliorative effects 
of mitigating measures.\91\
---------------------------------------------------------------------------

    \91\ 42 U.S.C. 12102(4)(E).
---------------------------------------------------------------------------

    The determination of whether an impairment substantially limits a 
major life activity requires an individualized assessment.\92\ Section 
38.4(q)(5)(i)(D) applies the principles set forth in the rules of 
construction in order to provide examples of the types of impairments 
that will virtually always be found to substantially limit a major life 
activity.
---------------------------------------------------------------------------

    \92\ 29 CFR 1630.2(j)(1)(v).
---------------------------------------------------------------------------

A Record of an Impairment Sec.  38.4(q)(6)
    This proposed rule updates the definition to state that an 
individual has ``a record of such an impairment,'' ``if the individual 
has a history of, or has been misclassified as having, a mental or 
physical impairment that substantially limits one or more major life 
activities.'' This is the same language used by the EEOC in their 
implementing regulations.\93\ The DOJ NPRM has identical language.\94\
---------------------------------------------------------------------------

    \93\ 29 CFR 1630.2(k)(1).
    \94\ 79 FR 4839, 4848, Jan. 30, 2014.
---------------------------------------------------------------------------

    In addition, the rule proposes adding a new paragraph at Sec.  
38.4(q)(6)(ii), which states that ``[w]hether an individual has a 
record of an impairment that substantially limited a major life 
activity must be construed broadly to the maximum extent permitted by 
Federal disability nondiscrimination law and this part and should not 
demand extensive analysis.'' An individual will be considered to fall 
within this definitional prong if the individual has a history of an 
impairment that substantially limited a major life activity, in 
comparison to most people in the general population, or was 
misclassified as having such an impairment. Moreover, an individual 
under this definitional prong may be entitled to a reasonable 
accommodation or a reasonable modification if needed, and related to 
the past disability. This provision is consistent with the DOJ NPRM 
implementing Title II of the ADA, as amended.\95\ If the DOJ changes 
its proposal in its final rule implementing ADA Titles II and III, the 
Department will review those changes to determine their impact on this 
proposal and take appropriate action.
---------------------------------------------------------------------------

    \95\ 70 FR 4839, 4859, Jan. 30, 2014.
---------------------------------------------------------------------------

Is Regarded as Having Such an Impairment Sec.  38.4(q)(7)
    This rule revises the term ``regarded as having an impairment'' to 
conform to the ADAAA.\96\ This updated language provides that an 
individual meets the definition if it is established that the 
individual is subject to an action prohibited by WIOA Section 188 and 
this part, because of an actual or perceived physical or mental 
impairment, whether or not that impairment substantially limits, or is 
perceived to substantially limit, a major life activity. However, 
impairments that are transitory and minor cannot form

[[Page 4505]]

the basis of a finding that an ``individual is regarded as having a 
disability.''
---------------------------------------------------------------------------

    \96\ 42 U.S.C.12102(3).
---------------------------------------------------------------------------

Employment Practices Sec.  38.4(s)
    A minor revision to the definition of ``Employment practices'' has 
been made to read: ``Employment Practices of a recipient include, but 
are not limited to'' to make it easier to read and understand. The 
enumerated examples in the part 38 definition have not changed.
Employment-Related Training Sec.  38.4(t)
    The definition of ``Employment-related training'' has been revised 
to make the definition less circular. The new definition is ``training 
that allows or enables an individual to obtain skills, abilities and/or 
knowledge that are designed to lead to employment.''
Individual With a Disability Sec.  38.4(ff)
    The rule revises the definition of ``individual with a disability'' 
to be consistent with the ADAAA and implementing regulations issued by 
the EEOC \97\ and proposed by the DOJ.\98\ The majority of the text 
lists conditions that are not included in the definition of an 
individual with a disability.
---------------------------------------------------------------------------

    \97\ 29 CFR 1630.3.
    \98\ 70 FR 4839, 4859-60, Jan. 30, 2014.
---------------------------------------------------------------------------

    The proposed rule separates ``transvestism, transsexualism, and 
gender dysphoria not resulting from physical impartments'' from 
``pedophilia, exhibitionism, voyeurism and other sexual behavior 
disorders.'' Previously, these terms were listed together and are 
listed together in the same definition in the ADA \99\ and in the EEOC 
\100\ regulations and the DOJ \101\ proposed regulations implementing 
the ADA. The terms remain but have been separated into two groups. This 
change is intended to highlight the distinction between the first three 
terms (transvestism, transsexualism, or gender dysphoria not resulting 
from physical impairment) from those in the second group (pedophilia, 
exhibitionism, voyeurism, or other sexual behavior disorders) which 
carry distinctly negative connotations.
---------------------------------------------------------------------------

    \99\ 42 U.S.C. 12211(b).
    \100\ 29 CFR 1630.3(d).
    \101\ 70 FR 4839, 4859-60, January 30, 2014.
---------------------------------------------------------------------------

    In this regard, CRC notes that Section 504 specifically excludes 
from the definition of disability, among other conditions, gender 
identity disorders that are not the result of physical 
impairments.\102\
---------------------------------------------------------------------------

    \102\ 29 U.S.C. 705(20)(F)(i).
---------------------------------------------------------------------------

    Finally, subparagraph (2)(i) of this definition has been changed so 
that it states that an individual who has successfully completed a 
supervised drug rehabilitation program and is no longer engaging in the 
illegal use of drugs or has otherwise been rehabilitated successfully 
and is no longer engaging in the illegal use of drugs is not excluded 
from the definition of an individual with a disability. By adding the 
characterization of ``illegal drugs'' to the last part of this 
subparagraph, it is easier to read and understand such use.
Limited English Proficient (LEP) Individual Sec.  38.4(hh)
    This rule proposes a new definition for ``limited English 
proficient (LEP) individual.'' The proposed definition of ``limited 
English proficient individual'' is ``an individual whose primary 
language for communication is not English and who has a limited ability 
to read, speak, write and/or understand English. LEP individuals may be 
competent in English for certain types of communication (e.g., speaking 
or understanding), but still be LEP for other purposes (e.g., reading 
or writing).'' Similarly, LEP designations are context specific. For 
example, an individual may possess sufficient English language skills 
to function in one setting (e.g., reading a recipient's hours of 
operation or greeting an individual), but the individual's skills may 
be insufficient in other settings (e.g., completing a legal document or 
discussing eligibility requirements). This definition is added because 
discrimination based on limited English proficiency may be a form of 
unlawful national origin discrimination.\103\ The term is used 
elsewhere in this proposed rule, in Sec.  38.9 defining national origin 
discrimination as including discrimination based on limited English 
proficiency. This definition is consistent with decisions interpreting 
the scope of national origin discrimination under Title VI \104\ and 
regulations interpreting national origin-based discrimination,\105\ and 
has been adopted from those DOJ regulations implementing Title VI to 
ensure consistency. Finally, this term is being added to provide 
direction to the regulated recipient community because the population 
attempting to apply for, participate in, and benefit from WIOA Title I-
financially assisted programs and activities is increasingly diverse, 
speaking many languages in addition to and sometimes instead of 
English. According to a report issued by the U.S. Census Bureau in 
2013, as of 2011, 21 percent of people aged 5 and over living in the 
U.S. spoke a language other than English at home, 22.4 percent of whom 
either spoke English not well or not at all.\106\ As a result, WIOA 
Title I-financially assisted programs and activities have increasingly 
interacted with and provided services to individuals who are limited 
English proficient. Since fiscal year 2013, of the compliance reviews 
of state programs that CRC has conducted, six have revealed significant 
language access violations. Thus, there is a need for increased 
direction for recipients regarding their obligations to meet the needs 
of these LEP applicants, participants, and beneficiaries.
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    \103\ Lau v. Nichols, 414 U.S. 563 (1974) (federal fund 
recipient's denial of an education to a group of non-English 
speakers was national origin discrimination in violation of Title 
VI).
    \104\ Sandoval 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 allegations of 
failure to ensure bilingual services in a food stamp program could 
constitute a violation of Title VI).
    \105\ 28 CFR 42.104.
    \106\ American Community Survey Reports, Language Use in the 
United States: 2011 (August 2013).
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National Programs Sec.  38.4(ii)
    This proposed rule includes the National Dislocated Worker Grant 
Programs and YouthBuild programs in the definition of ``National 
Programs.'' This change reflects the language in WIOA Title I Subpart 
D, Section 170 and Sec. 171\107\ and ETA's proposed implementing 
regulations.\108\
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    \107\ 29 U.S.C. 3225-3226.
    \108\ 80 FR 20690, April 16, 2015.
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Nondiscrimination Plan Sec.  38.4(ll)
    This proposed rule changes the name ``Methods of Administration'' 
for the document described in Sec.  38.54 to ``Nondiscrimination 
Plan,'' but retains the definition of the document. This change more 
clearly represents the contents and purpose of this document, which is 
created, maintained, and implemented by the Governor to ensure 
compliance on the part of state programs with WIOA's nondiscrimination 
and equal opportunity obligations and this part.
Other Power-Driven Mobility Device Sec.  38.4(nn)
    This rule adds a definition for ``other power-driven mobility 
device.'' The term is used in the proposed rule in Sec.  38.17, setting 
out the programmatic and physical accessibility requirements applicable 
to individuals with disabilities. This definition mirrors the 
definition in the DOJ ADA Title II regulations.\109\ This definition is

[[Page 4506]]

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

    \109\ 28 CFR 35.104.
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Programmatic Accessibility Sec.  38.4(tt)
    The rule adds a definition for ``programmatic accessibility.'' WIOA 
states in no fewer than ten places in Title I that recipients will 
comply with section 188, if applicable, and applicable provisions of 
the Americans with Disabilities Act of 1990, regarding the physical and 
programmatic accessibility of facilities, programs, services, 
technology, and materials, for individuals with disabilities.\110\ 
However, WIOA does not define programmatic accessibility for this 
purpose. The Department's proposed definition, ``policies, practices, 
and procedures providing effective and meaningful opportunity for 
persons with disabilities to participate in or benefit from aid, 
benefit, service and training,'' provides needed direction for 
recipients and beneficiaries. It is important to note that the term 
``programmatic accessibility'' in this context has a different meaning 
than the similar term ``program accessibility'' that is used in Title 
II of the ADA.
---------------------------------------------------------------------------

    \110\ See, e.g., 29 U.S.C. 102(b)(2)(c)(vii); 29 U.S.C. 
102(b)(2)(e)(vi).
---------------------------------------------------------------------------

Qualified Individual With a Disability Sec.  38.4(ww)
    This rule revises the title of the definition of ``qualified 
individual with a disability'' to match the definition of ``qualified'' 
in the EEOC regulations \111\ implementing Title I of the ADAAA.
---------------------------------------------------------------------------

    \111\ 29 CFR 1630.2(m).
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Qualified Interpreter Sec.  38.4(xx)
    This NPRM amends the existing definition of ``qualified 
interpreter'' to reflect the existence of new technologies used by 
interpreters. The revised language states that interpreting services 
may be provided ``either in-person, through a telephone, a video remote 
interpreting (VRI) service or via internet, video, or other 
technological methods.\112\ This revision is also intended to delineate 
the skills and abilities that an individual must possess in order to 
provide interpretation services. This change to the definition is 
intended to assist recipients who are seeking to meet their 
nondiscrimination and equal opportunity responsibilities as defined in 
this part. This change is also intended to benefit applicants, 
participants, and beneficiaries.
---------------------------------------------------------------------------

    \112\ See 28 CFR 35.104, definition of ``auxiliary aids and 
services'' (paragraph 1) and definition of ``qualified 
interpreter.''
---------------------------------------------------------------------------

    The rule adds two new subdefinitions to further explain the 
different meanings of ``qualified interpreter'' when working with 
individuals with disabilities and with individuals who are limited 
English proficient. The first new definition specifies that ``qualified 
interpreter for an individual with a disability'' includes sign 
language interpreters, oral transliterators, and cued-language 
transliterators, and describes the essential functions required to be 
performed by a qualified interpreter for a deaf or hard of hearing 
individual. This language is taken from the ADA Best Practices Tool Kit 
for State and Local Governments.\113\
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    \113\ ADA Best Practices Tool Kit for State and Local 
Governments, General Effective Communication Requirements Under 
Title II of the ADA, Chapter 3, available at: https://www.ada.gov/pcatoolkit/chap3toolkit.htm (last accessed March 19, 2015).
---------------------------------------------------------------------------

    The second subdefinition is for ``qualified interpreter for an 
individual who is limited English proficient.'' This new subdefinition 
is taken from the DOL LEP guidance and refers to an individual who 
demonstrates expertise in and ability to communicate information 
accurately in both English and in the other language and to identify 
and employ the appropriate mode of interpreting, such as consecutive, 
simultaneous, or sight translation.\114\ Recipients are strongly 
encouraged to use certified interpreters where individual rights depend 
on precise, complete and accurate translations. Such situations may 
include, e.g., a hearing on eligibility for unemployment insurance 
benefits or a test for obtaining certification or credentials. A 
certified interpreter may be someone who has been certified by the 
federal courts to be a qualified interpreter for legal purposes, or 
someone who has been certified by a national interpreter association. 
Certification indicates a particular level of expertise in the specific 
skill of interpretation, which is distinct from being bilingual.
---------------------------------------------------------------------------

    \114\ DOL LEP Guidance, supra note 24 at 32296.
---------------------------------------------------------------------------

Reasonable Accommodation Sec.  38.4(yy)
    This NPRM revises the definition of ``reasonable accommodation'' to 
add a new paragraph (4), which reads as follows: ``A covered entity is 
required, absent undue hardship, to provide a reasonable accommodation 
to an otherwise qualified individual who has an `actual disability' or 
`record of' a disability, but is not required to provide a reasonable 
accommodation to an individual who is only `regarded as' having a 
disability.'' This change to the definition of reasonable accommodation 
makes it consistent with the ADAAA \115\ and regulations issued by the 
EEOC \116\ and proposed by the DOJ \117\ interpreting the ADA.
---------------------------------------------------------------------------

    \115\ 42 U.S.C. 12101 et seq.
    \116\ 29 CFR 1630.9(e).
    \117\ 70 FR 4839, January 30, 2014.
---------------------------------------------------------------------------

Recipient Sec.  38.4(zz)
    This NPRM revises the definition of ``recipient.'' The definition 
retains most of the language contained in the Sec.  38.4 definition 
except that the rule removes the language excluding the operators of 
federally-operated Job Corps Centers from the definition of recipient. 
As described above, WIOA Title I \118\ and ETA's proposed implementing 
regulations \119\ set forth CRC's jurisdiction to enforce the WIOA 
nondiscrimination and equal opportunity provisions as to Federally-
operated Job Corps Centers. Thus, this NPRM revises the definition to 
include as recipients all Job Corps contractors and Center operators. 
This proposed addition to the existing definition is intended to 
provide consistency by placing all Job Corps Centers under CRC's 
jurisdiction to ensure that participants in all Job Corps Centers have 
the identical enforcement mechanism.
---------------------------------------------------------------------------

    \118\ 29 U.S.C. 3248(d).
    \119\ 80 FR 20690, April 16, 2015.
---------------------------------------------------------------------------

Service Animal Sec.  38.4(fff)
    This NPRM adds a definition for ``service animal.'' The proposed 
rule refers to the term ``service animal'' in Sec.  38.16; therefore, 
the term has been defined in this section. This provision is drawn from 
the DOJ ADA Title II regulations at 28 CFR 35.104 and is intended to 
provide uniformity.\120\
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    \120\ The EEOC has not addressed whether or not this definition 
would apply to employers and employment agencies covered under Title 
I of the ADA or Section 501 of the Rehabilitation Act.
---------------------------------------------------------------------------

State Workforce Agency Sec.  38.4(lll)
    This NPRM proposes to change the term ``State Employment Service 
Agencies'' to ``State Workforce Agencies'' to be consistent with the 
change to this term contained in WIOA Title I \121\ and the proposed 
ETA regulations implementing Title I.\122\
---------------------------------------------------------------------------

    \121\ 80 FR 20690, April 16, 2015.
    \122\ Id.
---------------------------------------------------------------------------

Undue Burden or Hardship Sec.  38.4(rrr)
    This NPRM amends the definition of ``undue hardship'' in the 
context of religious accommodation to read as follows: ``For the 
purposes of religious accommodation only, `undue hardship'

[[Page 4507]]

means anything more than a de minimis cost or operational burden that a 
particular accommodation would impose on a recipient.'' This minor 
change to the current rule's definition removes the reference to case 
law and makes it consistent with EEOC's interpretation of Title 
VII.\123\
---------------------------------------------------------------------------

    \123\ 29 CFR 1605.2(e).
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Video Remote Interpreting (VRI) Service Sec.  38.4(sss)
    This NPRM adds the definition of ``video remote interpreting (VRI) 
service'' because it is an interpreting service that is increasingly 
integrated into services provided to individuals with disabilities and 
LEP individuals. The definition of ``video remote interpreting 
service'' means an interpreting service that uses video conference 
technology over dedicated lines or wireless technology offering high-
speed, wide-bandwidth video connection that delivers high-quality video 
images, as provided in Sec.  38.15. This definition mirrors the term 
used by the DOJ regulations implementing Title II of the ADA.\124\
---------------------------------------------------------------------------

    \124\ See 28 CFR 35.104.
---------------------------------------------------------------------------

Vital Information Sec.  38.4(ttt)
    This NPRM adds a new definition for ``vital information.'' The 
proposed rule uses the term ``vital information'' in setting forth a 
recipient's responsibility to meet its language access requirements. 
The proposed definition reads as follows: ``information, whether 
written, oral or electronic, that is necessary for an individual to 
understand how to obtain any aid, benefit, service and/or training; 
necessary for an individual to obtain any aid, benefit, service, and/or 
training; or required by law. Examples of documents containing vital 
information include, but are not limited to, applications, consent, and 
complaint forms; notices of rights and responsibilities; notices 
advising LEP individuals of their rights under this part, including the 
availability of free language assistance; rulebooks; written tests that 
do not assess English language competency, but rather assess competency 
for a particular license, job, or skill for which English proficiency 
is not required; and letters or notices that require a response from 
the beneficiary or applicant, participants, or employee.
    This definition is intended to provide clear direction for 
recipients so that they can determine what information is necessary to 
be translated or interpreted for limited English proficient individuals 
in order for recipients to meet their obligations under this part and 
WIOA Section 188. The definition builds upon and is consistent with the 
discussion of vital written materials and documents contained in the 
DOL LEP Guidance.\125\ The guidance does not define ``vital documents'' 
or ``vital information'' and CRC has received feedback from Equal 
Opportunity Officers that this omission has caused some confusion on 
the part of recipients. The DOL LEP Guidance uses the term ``vital 
documents'' when discussing written language services and which 
documents should be translated. It explains that an effective LEP plan 
for a particular program or activity includes the translation of vital 
written materials into the languages of each frequently-encountered LEP 
group eligible to be served and/or likely to be affected by the 
recipient's program. The Guidance then provides a non-exhaustive list 
of examples of documents that would qualify as vital written materials, 
including letters containing important information regarding 
participation in a program or activity and notices that require a 
response from beneficiaries. When the LEP Guidance was issued in 2003, 
recipients still provided a significant percentage of aid, service, 
benefit, and training in person. Since then, many recipients, including 
unemployment insurance programs, moved to a phone-based system and then 
to a Web site- and Internet-based system of provision of services. 
Today, many WIOA Title I-financially assisted programs and activities, 
including unemployment insurance programs, are made available to the 
public largely through a Web site and the internet. While web-based 
services and programs offered by recipients provide beneficiaries the 
convenience of accessing resources remotely at almost any time, 
ineffectually designed or implemented Web sites may create barriers 
that prevent or limit access for some LEP individuals. As a result, it 
has become necessary to define vital information to include information 
delivered orally, such as in a telephone recording or phone 
conversation with a recipient's staff member, as well as 
electronically, such as contained in a recipient's Web page or email. 
The Department welcomes comments on this new definition.
---------------------------------------------------------------------------

    \125\ DOL LEP Guidance, supra note 24 at 32298.
---------------------------------------------------------------------------

Wheelchair Sec.  38.4(uuu)
    The proposed rule adds a definition for ``wheelchair'' to read as 
follows: ``A manually-operated or power-driven device designed 
primarily for use by an individual with a mobility disability for the 
main purpose of indoor or of both indoor and outdoor locomotion.'' This 
definition mirrors the definition in the DOJ ADA Title II regulations 
at 28 CFR 35.104. CRC has proposed a separate definition for wheelchair 
to distinguish it from other power driven mobility devices.
General Prohibitions on Discrimination Sec.  38.5
    The title of proposed Sec.  38.5 revises the part 37 title to read 
as follows: ``General Prohibitions on Discrimination.''
Specific Discriminatory Actions Prohibited on Bases Other Than 
Disability Sec.  38.6
    The title of proposed Sec.  38.6 revises the part 37 title to: 
``Specific discriminatory actions prohibited on bases other than 
disability.'' In addition, this section replaces the term ``ground'' 
with the term ``basis.''
Discrimination Prohibited Based on Sex Sec.  38.7
    The proposed rule incorporates a new section, Sec.  38.7, titled 
``Discrimination prohibited based on sex.'' This proposed section 
incorporates certain obligations already set forth in the current part 
37 rule. This new section in paragraph (a) states that discrimination 
in WIOA Title I-financially assisted programs and activities based on 
pregnancy, childbirth, or related medical conditions is sex 
discrimination. This principle has been the law since Congress enacted 
the Pregnancy Discrimination Act (PDA) to amend Title VII in 1978 and 
is now being incorporated into the WIOA regulations consistent with 
current law interpreting the PDA.\126\ Pregnancy discrimination is also 
addressed separately in proposed Sec.  38.8.
---------------------------------------------------------------------------

    \126\ 42 U.S.C. 2000e(k).
---------------------------------------------------------------------------

    In addition, paragraph (a) states that discrimination based on 
gender identity or transgender status is also a form of unlawful sex 
discrimination. As described above, the Department follows the 
jurisprudence developed under Title VII cases brought by the EEOC and 
the Department of Justice. In the EEOC's decision in Macy v. Holder, 
the EEOC concluded that discrimination because of gender identity or 
transgender status is sex discrimination in violation of Title VII, by 
definition, because the discriminatory act is ``related to the sex of 
the victim.'' \127\ The EEOC cited both the text of Title VII and the 
reasoning in Schroer v.

[[Page 4508]]

Billington, supra, for its conclusion.\128\ See also Memorandum from 
Attorney General Eric Holder to United States Attorneys and Heads of 
Department Components (Dec. 15, 2014) (citing EEOC's decision in Macy 
v. Holder as support for DOJ's position that ``[t]he most 
straightforward reading of Title VII is that discrimination `because of 
. . . sex' includes discrimination because an employee's gender 
identification is as a member of a particular sex, or because the 
employee is transitioning, or has transitioned, to another sex''). Note 
that discrimination on the basis of gender identity or transgender 
status can arise regardless of whether a transgender individual has 
undergone, is undergoing, or plans to undergo sex-reassignment surgery 
or other processes or procedures designed to facilitate the adoption of 
a sex or gender other than the individual's assigned sex at birth.\129\
---------------------------------------------------------------------------

    \127\ Macy, 2012 WL 1435995 at *7. Macy also held that 
discrimination on the basis of transgender status could be unlawful 
under Title VII as sex stereotyping. Id.
    \128\ Consistent with Macy, this NPRM defines discrimination on 
the basis of gender identity or transgender status as a form of sex 
discrimination. Gender identity is also a stand-alone protected 
category (as is sexual orientation) under Executive Order 13672. 
Executive Order 13672 amended Executive Order 11246 to add sexual 
orientation and gender identity as protected bases, and applies to 
certain government contracts entered into or modified on or after 
April 8, 2015, the effective date of OFCCP's implementing 
regulations promulgated thereunder. Section 188 of WIOA and this 
part apply to Federal contracts to operate Job Corps Centers (see 
Sec.  38.2(b)(4)), so persons that hold such contracts may be 
subject to Executive Order 11246, as amended, including the 
obligation not to discriminate in employment based on gender 
identity and sexual orientation.
    \129\ See Macy v. Holder, 2012 WL 1435995 (discrimination 
against a transgender individual is discrimination related to the 
sex of the victim including when the employer is uncomfortable with 
the fact that the person has transitioned or is in the process of 
transitioning from the person's sex assigned at birth to another 
sex)); Shroer v. Billington, 577 F. Supp. at 293 (discrimination 
against a transgender individual on the basis of an intended, 
ongoing, or completed gender transition is discrimination because of 
sex).
---------------------------------------------------------------------------

    Subsection (b) provides a nonexhaustive list of distinctions based 
on sex that are unlawful. The nonexhaustive list of examples included 
in this proposed section are intended to assist recipients in meeting 
their nondiscrimination and equal opportunity responsibilities under 
this section. The examples include: Making a distinction between 
married and unmarried persons that is not applied equally to 
individuals of both sexes as an example of a sex-based discriminatory 
practice (proposed paragraph 38.7(b)(1)); denying individuals of one 
sex who have children access to aid, benefit, service, or training 
opportunities that is available to individuals of another sex who have 
children is an unlawful sex-based discriminatory practice (proposed 
paragraph 38.7(b)(2)); adversely treating unmarried parents of one sex, 
but not unmarried parents of another sex (proposed paragraph 
38.7(b)(3)); distinguishing on the basis of sex in formal or informal 
job training and/or educational programs, or other opportunities 
(proposed paragraph 38.7(b)(4)); posting job announcements that recruit 
or advertise for individuals for certain jobs on the basis of sex, 
including through the use of gender-specific terms (proposed paragraph 
38.7(b)(5)); treating an individual adversely because the individual 
identifies with a gender different from that individual's sex assigned 
at birth or the individual has undergone, is undergoing, or is planning 
to undergo, processes or procedures designed to facilitate the adoption 
of a sex or gender other than the individual's assigned sex at birth 
(proposed paragraph 38.7(b)(6)); denying individuals who are pregnant, 
who become pregnant, or who plan to become pregnant opportunities for 
or access to aid, benefit, service, or training on the basis of 
pregnancy (proposed paragraph 38.7(b)(7)); making any facilities 
associated with WIOA Title I-financially assisted program or activities 
available only to members of one sex, except that if the recipient 
provides restrooms or changing facilities, the recipient must provide 
separate or single-user restrooms or changing facilities to assure 
privacy (proposed paragraph 38.7(b)(8)); and denying employees access 
to the bathrooms used by the gender with which they identify (proposed 
paragraph 38.7(b)(9)).\130\
---------------------------------------------------------------------------

    \130\ Office of Personnel Management (OPM) Guidance Regarding 
the Employment of Transgender Individuals in the Federal Workplace, 
available at https://www.opm.gov/policy-data-oversight/diversity-and-inclusion/reference-materials/gender-identity-guidance/ (last 
accessed March 20, 2015), citing DOL Occupational Safety and Health 
Administration (OSHA) Interpretations, Interpretation of 29 CFR 
1910.141(c)(1)(i): Toilet Facilities (April 6, 1998), available at 
https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=22932 (last 
accessed March 20, 2015); Letter from Thomas Galassi to Maine Human 
Rights Comm'n (April 16, 2013), available at https://www.dol.gov/oasam/programs/crc/23603JohnP.GauseLetter.pdf (last accessed March 
20, 2015); see also Lusardi v. Dep't of the Army, EEOC Appeal No. 
0120133395, 2015 WL 1607756 (April 1, 2015) (denying employees use 
of a restroom consistent with their gender identity and subjecting 
them to intentional use of the wrong gender pronouns constitutes 
discrimination because of sex, and violates Title VII); Statement of 
Interest of the United States in G.G. v. Gloucester County School 
Board, No. 15-2056 (4th Cir.) (arguing that the Gloucester County 
School Board violated Title IX when it denied a transgender male 
access to the restroom consistent with his gender identity).
---------------------------------------------------------------------------

    Proposed paragraph 38.7(c) provides that a recipient's policies or 
practices that have an adverse impact on the basis of sex and are not 
program-related and consistent with program necessity, constitute sex 
discrimination in violation of WIOA. Traditionally, disparate impact 
claims have involved selection criteria that are not necessary to the 
performance of the job, but which instead reflect stereotypical notions 
about the skills required for the position in question. Mehus v. 
Emporia State Univ., 295 F. Supp. 2d 1258, 1271 (D. Kan. 2004) 
(``Plaintiff is not required to allege discriminatory intent.''); 
Sharif by Sala-huddin v. N.Y. State Educ. Dep't., 709 F. Supp. 345 
(S.D.N.Y. 1989) (disparate impact theory to challenge use of Scholastic 
Aptitude Test to allocate state merit scholarships was appropriate 
under Title IX). See also Blake v. City of Los Angeles, 595 F.2d 1367 
(9th Cir. 1979) (striking down height requirements by the Los Angeles 
police department because they were not job related and had a disparate 
impact on women, who in general are shorter than men); EEOC v. Dial 
Corp., 469 F.3d 735 (8th Cir. 2006) (striking down a strength test used 
in a sausage factory because the test was more physically demanding 
than the job in question and had a significant disparate impact on 
women). This sex discrimination analysis may also apply to policies or 
practices that are unrelated to selection procedures. For instance, an 
employer policy requiring crane operators to urinate off the back of 
the crane instead of using a restroom was held to be a neutral 
employment policy that was not job-related and that produced an adverse 
effect on women, who, the court found, have ``obvious anatomical and 
biological differences'' that require the use of bathrooms. Johnson v. 
AK Steel Corp., 1:07-cv-291, 2008 WL 2184230, *8 (S.D. Ohio May 23, 
2008).
    Proposed paragraph 38.7(d) clarifies that discrimination based on 
sex stereotypes, such as stereotypes about how persons of a particular 
sex are expected to look, speak, or act, is a form of unlawful sex 
discrimination. The proposed rule states the well-recognized principle 
that employment-related decisions made on the basis of stereotypes 
about how males and/or females are expected to look, speak, or act are 
a form of sex-based employment discrimination. As the Supreme Court 
stated in Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989), ``we 
are beyond the day when an employer can evaluate employees by assuming 
or insisting that they match the stereotype associated with their . . . 
[sex].'' In Price Waterhouse, the Court held that an

[[Page 4509]]

employer's failure to promote a female senior manager to partner 
because of the 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.\131\ The principle that 
sex stereotyping is a form of sex discrimination has been applied 
consistently in Supreme Court and lower-court decisions. See, e.g., 
Nevada 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 Equal Protection Clause of the 
Constitution); 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 under Title VII); Prowel v. Wise Bus. Forms, Inc., 579 
F.3d 285 (3d Cir. 2009) (harassment based on a man's so-called 
effeminacy is a form of sex discrimination under Title VII); Terveer v. 
Billington, Civil Action No. 12-1290, 2014 WL 1280301 (D.D.C. Mar. 31, 
2014) (hostile work environment based on stereotyped beliefs about the 
appropriateness of same-sex relationships is a form of sex 
discrimination under Title VII).\132\ Cf. U.S. 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'').\133\
---------------------------------------------------------------------------

    \131\ Price Waterhouse, 490 U.S. at 235.
    \132\ See also Centola, 183 F. Supp. 2d at 410 (``Sexual 
orientation harassment is often, if not always, motivated by a 
desire to enforce heterosexually defined gender norms. In fact, 
stereotypes about homosexuality are directly related to our 
stereotype about the proper roles of men and women.''); Heller v. 
Columbia Edgewater Country Club, 195 F. Supp. 2d 1212 (D. Or. 2002) 
(``[A] jury could find that Cagle repeatedly harassed (and 
ultimately discharged) Heller because Heller did not conform to 
Cagle's stereotype of how a woman ought to behave. Heller is 
attracted to and dates other women, whereas Cagle believes that a 
woman should be attracted to and date only men.''); Videckis v. 
Pepperdine Univ., 2015 WL 8916764 (C.D. Cal. 2015) (slip op) (``The 
type of sexual orientation discrimination Plaintiffs allege falls 
under the broader umbrella of gender stereotype discrimination. 
Stereotypes about lesbianism, and sexuality in general, stem from a 
person's views about the proper roles of men and women--and the 
relationships between them.''). The EEOC has recognized in a number 
of federal sector decisions that adverse actions taken on the basis 
of sex stereotypes related to sexual orientation, such as the 
stereotype that men should only date women, violate Title VII. 
Castello v. U.S. Postal Service, EEOC Request No. 0520110649, 2011 
WL 6960810 (Dec. 20, 2011) (sex-stereotyping evidence entailed 
offensive comment by manager about female subordinate's 
relationships with women); Veretto v. U.S. Postal Service, EEOC 
Appeal No. 0120110873, 2011 WL 2663401 (July 1, 2011) (complainant 
stated plausible sex-stereotyping claim alleging harassment because 
he married a man); Culp v. Dep't of Homeland Security, EEOC Appeal 
0720130012, 2013 WL 2146756 (May 7, 2013) (Title VII covers 
discrimination based on associating with lesbian colleague); Couch 
v. Dep't of Energy, EEOC Appeal No. 0120131136, 2013 WL 4499198, at 
*8 (Aug. 13, 2013) (complainant's claim of harassment based on his 
``perceived sexual orientation''); Complainant v. Dep't of Homeland 
Security, EEOC Appeal No. 0120110576, 2014 WL 4407422 (Aug. 20, 
2014) (``While Title VII's prohibition of discrimination does not 
explicitly include sexual orientation as a basis, Title VII 
prohibits sex discrimination, including sex-stereotyping 
discrimination and gender discrimination'' and ``sex discrimination 
claims may intersect with claims of sexual orientation 
discrimination.''); Baldwin, EEOC Appeal No. 0120133080, 2015 WL 
4397641 at *7 (``Sexual orientation discrimination is also sex 
discrimination because it necessarily involves discrimination based 
on gender stereotypes.'').
    \133\ The Seventh Circuit articulated this principle as early as 
1971. Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (7th 
Cir. 1971) (``In forbidding employers to discriminate against 
individuals because of their sex, Congress intended to strike at the 
entire spectrum of disparate treatment of men and women resulting 
from sex stereotypes.'') (emphasis added).
---------------------------------------------------------------------------

    As a matter of policy, we support banning discrimination on the 
basis of sexual orientation in the administration of, or in connection 
with, any programs and activities funded or otherwise financially 
assisted in whole or in part under Title I of WIOA. Current law is 
mixed on whether existing Federal nondiscrimination laws prohibit 
discrimination on the basis of sexual orientation as a part of their 
prohibitions on sex discrimination. To date, no Federal appellate court 
has concluded that Title VII's prohibition on discrimination ``on the 
basis of sex''--or Federal laws prohibiting sex discrimination more 
generally--prohibits discrimination on the basis of sexual orientation, 
and some appellate courts previously reached the opposite 
conclusion.\134\
---------------------------------------------------------------------------

    \134\ See, e.g,, Kiley v. Am. Soc'y for Prevention of Cruelty to 
Animals, 296 Fed. App'x 107, 109 (2d Cir. 2008); Vickers v. 
Fairfield Med. Ctr., 453 F.3d 757, 759 (6th Cir. 2006); Bibby v. 
Philadelphia Coca Cola Bottling Co., 260 F.3d 257, 260 (3d Cir. 
2001); but cf. Latta v. Otter, 771 F.3d 456 (9th Cir. 2014) (Berzon, 
J., concurring) (in striking down State law prohibition on same sex 
marriage, observing that ``the same sex marriage laws treat the 
subgroup of men who wish to marry men less favorably than the 
otherwise similarly situated subgroup of women who want to marry 
men'' and therefore constitute sex discrimination); see also 
Muhammad v. Caterpillar, 767 F.3d 694 (7th Cir. 2014), 2014 WL 
4418649 (7th Cir. Sept. 9, 2014, as Amended on Denial of Rehearing, 
Oct. 16, 2014) (removing statements from previously issued panel 
decision that relied on outdated precedents about coverage of sexual 
orientation discrimination under Title VII as requested in EEOC 
Amicus Brief).
---------------------------------------------------------------------------

    However, a recent EEOC decision concluded that Title VII's 
prohibition of discrimination ``on the basis of sex'' precludes sexual 
orientation discrimination because discrimination on the basis of 
sexual orientation necessarily involves sex-based considerations. The 
EEOC relied on several theories to reach this conclusion: A plain 
interpretation of the term ``sex'' in the statutory language, an 
associational theory of discrimination based on ``sex,'' and the 
gender-stereotype theory announced in Price Waterhouse.\135\ The EEOC's 
decision cited several district court decisions that similarly 
concluded that sex discrimination includes sexual orientation 
discrimination, using these theories.\136\ The EEOC also analyzed and 
called into question the appellate decisions that have concluded that 
sexual orientation discrimination is not covered under Title VII.\137\ 
The EEOC decision applies to workplace conditions, as well as hiring, 
firing, and promotion decisions, and is one of several recent 
developments in the law that have resulted in additional protections 
for individuals against discrimination based on sexual 
orientation.\138\ Two federal district courts have since concurred with 
the EEOC's legal analysis in Baldwin.\139\
---------------------------------------------------------------------------

    \135\ Baldwin v. Foxx, EEOC Appeal No. 0120133080, Agency No. 
2012-24738-FAA-03, at 5-6 (July 15, 2015) (finding that sexual 
orientation is inseparable from and inescapably linked to sex and 
thus that an allegation of discrimination based on sexual 
orientation is necessarily an allegation of sex discrimination).
    \136\ See id. at *4-*8.
    \137\ See id. at *9-*10.
    \138\ For example, just this year, the Supreme Court ruled that 
States may not prohibit same-sex couples from marrying and must 
recognize the validity of same-sex couples' marriages. Obergefell v. 
Hodges, 135 S. Ct. 2071 (2015).
    \139\ Isaacs, 2015 WL 6560655 at *3-4 (``This court agrees 
instead with the view of the Equal Employment Opportunity Commission 
that claims of sexual orientation discrimination are cognizable 
under Title VII. In [Baldwin], the Commission explains persuasively 
why an allegation of discrimination based on sexual orientation is 
necessarily an allegation of sex discrimination under Title VII.'') 
(internal citations and quotations omitted); Videckis, 2015 8916764 
at *8 (``This Court's conclusion [that sexual orientation 
discrimination is necessarily sex discrimination] is in line with a 
recent Equal Employment Opportunity Commission decision (`EEOC') 
holding that sexual orientation discrimination is covered under 
Title VII, and therefore that the EEOC will treat sexual orientation 
discrimination claims the same as other sex discrimination claims 
under Title VII.''); Cf. Roberts v. United Parcel Serv., 2015 WL 
4509994, *14-18 (E.D. N.Y. 2015) (referring to Baldwin as a 
``landmark ruling,'' noting its criticism of federal courts for 
citing to dated rulings without additional analysis in the sexual 
orientation context, and quoting favorably from the decision at 
length).
---------------------------------------------------------------------------

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

[[Page 4510]]

that this rule includes the most robust set of protections supported by 
the courts on an ongoing basis.
    Paragraph (d) provides examples of sex stereotyping to assist 
recipients in preventing, identifying, and remedying such examples of 
sex discrimination in their programs. Examples of practices that 
constitute sex stereotyping include: Denying an individual access to, 
or otherwise subjecting an individual to adverse treatment in accessing 
aid, benefit, service, and training (proposed paragraph 38.7(d)(1)); 
harassment or adverse treatment of a male because he is considered 
effeminate or insufficiently masculine (proposed paragraph 38.7(d)(2)); 
adverse treatment of an applicant, participant, or beneficiary of a 
WIOA Title I-financially-assisted program or activity because of the 
individual's actual or perceived gender identity (proposed paragraph 
38.7(d)(3)); adverse treatment of an applicant to, participant in, or 
beneficiary of, a WIOA Title I-financially assisted program or activity 
based on sex stereotypes about caregiver responsibilities such as 
assuming that a female applicant has (or will have) family caretaking 
responsibilities, and that those responsibilities will interfere with 
her ability to access aid, benefit, service, or training (proposed 
paragraph 38.7(d)(4)); adverse treatment of a male applicant to, or 
beneficiary of, a WIOA Title I-financially assisted program or activity 
because he has taken, or is planning to take care of, his newborn or 
recently adopted or fostered child, based on the sex-stereotyped belief 
that women, and not men, should care for children (proposed paragraph 
38.7(d)(5)); denying a woman access to, or otherwise subjecting her to 
adverse treatment in accessing aid, benefit, service, or training, 
under a WIOA Title I-financially assisted program or activity based on 
the sex-stereotyped belief that women with children should not work 
long hours, regardless of whether the recipient is acting out of 
hostility or belief that it is acting in her or her children's best 
interest (proposed paragraph 38.7(d)(6)); denying an individual access 
to, or otherwise subjecting the individual to adverse treatment in 
accessing aid, benefit, service, or training under a WIOA Title I-
financially assisted program or activity based on sex stereotyping 
including the belief that a victim of domestic violence would disrupt 
the program or activity and/or may be unable to access aid, benefits, 
services, or training (proposed paragraph 38.7(d)(7)). Proposed 
paragraph 38.7(d)(7) is based upon the technical assistance document 
issued by the EEOC interpreting Title VII's prohibition against sex 
discrimination in employment to include an individual's status as a 
victim of domestic violence.\140\ The technical assistance publication 
states: ``Title VII prohibits disparate treatment based on sex, which 
may include treatment based on sex-based stereotypes. For example: An 
employer terminates an employee after learning that she has been a 
subjected to domestic violence, saying he fears the potential drama 
battered women bring to the workplace.'' The EEOC publication refers to 
the DOJ definition of domestic violence, which defines the term as: ``a 
pattern of abusive behavior in any relationship that is used by one 
partner to gain or maintain power and control over another intimate 
partner. Domestic violence can be physical, sexual, emotional, 
economic, or psychological actions or threats of actions that influence 
another person. This includes any behaviors that intimidate, 
manipulate, humiliate, isolate, frighten, terrorize, coerce, threaten, 
blame, hurt, injure, or wound someone.'' \141\ CRC has drawn from this 
existing EEOC interpretation in this proposed rule.
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    \140\ ``Questions and Answers,'' The Application of Title VII 
and the ADA to Applicants or Employees Who Experience Domestic or 
Dating Violence, Sexual Assault or Stalking,'' available at: https://www.eeoc.gov/eeoc/publications/qa_domestic_violence.cfm (issued in 
2013) (last accessed Feb. 2, 2015).
    \141\ See DOJ Office on Violence Against Women/Domestic Violence 
available at https://www.justice.gov/ovw/domestic-violence (last 
accessed March 19, 2015).
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    Proposed Sec.  38.7(d)(8) addresses stereotyping based on an 
applicant's, participant's, or beneficiary's nonconformity with norms 
about how people with the applicant's, participant's, or beneficiary's 
assigned sex at birth should look, speak, and act. Proposed Sec.  
38.7(d)(8) states adverse treatment of a woman applicant, participant, 
or beneficiary of a WIOA Title I-financially assisted program or 
activity because she does not dress or talk in a feminine manner is an 
example of discrimination based on sex.
    The final example in this non-exhaustive list addresses adverse 
treatment that occurs because of an applicant's, participant's, or 
beneficiary's nonconformity with stereotypes about a certain sex not 
working in a particular job, sector, or industry.
Discrimination Prohibited Based on Pregnancy Sec.  38.8
    The rule proposes a new Sec.  38.8 entitled, ``Discrimination 
prohibited based on pregnancy.'' This section is intended to 
incorporate an existing obligation into the current rule, i.e., that 
the prohibition against sex discrimination includes discrimination 
based on pregnancy, childbirth, and related medical conditions. This 
new section explains that limiting or denying access to any aid, 
benefit, service, or training under a WIOA Title I-financially assisted 
program or activity based on an individual's pregnancy, childbirth, or 
related medical conditions is sex discrimination and is thus 
prohibited.
    Title IX of the Education Amendments of 1972 \142\ prohibits sex 
discrimination in any educational program or activity receiving federal 
financial assistance, including those that are financially assisted by 
WIOA Title I.\143\ Specifically, Title IX provides in part: ``No person 
in the United States shall, on the basis of sex, be excluded from 
participation in, be denied the benefits of, or be subjected to 
discrimination under any education program or activity receiving 
Federal financial assistance.'' \144\ When it enacted Title IX, 
Congress was concerned with ending the ``persistent, pernicious 
discrimination which [was] serving to perpetuate second-class 
citizenship for American women.'' \145\ Congress wanted to provide 
equal opportunity in education as a way to provide greater access to 
jobs, employment security, financial security, and ending the far-
reaching effects of educational discrimination for women.\146\
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    \142\ 20 U.S.C. 1681 et seq.
    \143\ 20 U.S.C. 1687 (Title IX provision applicable to 
vocational education and training programs).
    \144\ 20 U.S.C. 1681(a).
    \145\ 118 Cong. Rec. 5804 (1972) (statement of Sen. Bayh).
    \146\ Emily McNee, Pregnancy Discrimination in Higher Education: 
Accommodating Student Pregnancy, 20 Cardozo J. L & Gender 63 (2013).
---------------------------------------------------------------------------

    As far back as 1974, federal agency regulations, promulgated under 
Title IX, have included pregnancy as a basis of prohibited 
discrimination in programs and activities receiving Federal financial 
assistance.\147\ The Department of Education's regulations 
unequivocally apply Title IX's prohibition against sex discrimination 
to discrimination on the basis of pregnancy and parental status, 
stating: ``A recipient shall not apply any rule concerning a student's 
actual or potential parental, family, or marital status which treats 
students differently

[[Page 4511]]

on the basis of sex.'' \148\ Section 106.40(b) specifically provides 
that a recipient must not ``discriminate against any student, or 
exclude any student from its education program or activity, including 
any class or extracurricular activity, on the basis of such student's 
pregnancy, childbirth, false pregnancy, termination of pregnancy, or 
recovery therefrom.'' The substantive provisions of DOL's Title IX 
regulations at 29 CFR part 36, like those of approximately twenty other 
federal agencies, were modeled on and are essentially identical to the 
Department of Education's regulations.\149\ Thus, DOL's regulations 
likewise prohibit discrimination based on pregnancy, childbirth, false 
pregnancy, termination of pregnancy, or recovery therefrom.
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    \147\ The Department of Health Education and Welfare's (HEW) 
Title IX regulations at 45 FR 24128 included pregnancy as a 
protected basis. HEW's regulations were adopted by the Department of 
Education in 1980. 34 CFR 106.40.
    \148\ 34 CFR 106.40(a).
    \149\ 65 FR 52858 at 52859.
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    When Congress amended Title VII in 1978 by enacting the Pregnancy 
Discrimination Act (PDA), the protections against sex discrimination in 
the context of employment were expanded to include protections against 
discrimination based on pregnancy, childbirth, and related medical 
conditions. While the PDA does not directly govern the 
nondiscrimination obligations of a program or activity receiving 
Federal financial assistance, the principles underlying the PDA were 
built on Title IX's prohibitions against discrimination on the basis of 
pregnancy and actual or potential parental status.\150\ Section 38.8 
relies on both the PDA and Title IX. It is not uncommon for courts to 
do so as well.\151\ Further, because there is significantly more 
available jurisprudence under Title VII,\152\ courts apply the Title 
VII burdens of proof to allegations of pregnancy discrimination under 
Title IX.\153\
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    \150\ See 123 Cong. Rec. 29662 (1977) (statement of Sen. 
Cranston (D--CA)), reprinted in Legis. History of the Pregnancy 
Discrimination Act of 1978, at 128 (1980).
    \151\ See Chipman v. Grant County School Dist., 30 F.Supp.2d 975 
(E.D. Ky. 1998) (``Although [the] language [of Title IX] is somewhat 
different, its purpose is generally the same as the Pregnancy 
Discrimination Act.''), citing Pfeiffer v. Marion Ctr. Area Sch. 
Dist., 917 F.2d 779, 784 (3d Cir. 1990) (``regulations promulgated 
pursuant to Title IX specifically apply its prohibition against 
gender discrimination to discrimination on the basis of 
pregnancy''); Cooper v. Rogers, Case No. 2:11-CV-964-MEF, 2012 WL 
2050577, *8 (M.D. Ala. June 06, 2012).
    \152\ Since the passage of Title IX, there have been fewer than 
fifteen reported cases where a federal court has heard a claim of 
pregnancy discrimination under Title IX. Kendra Fershee, An Act For 
All Contexts: Incorporating The Pregnancy Discrimination Act Into 
Title IX To Help Pregnant Students Gain And Retain Access To 
Education, 39 Hofstra L. Rev. 281 (2010) citing Michelle Gough, 
Parenting and Pregnant Students: An Evaluation of the Implementation 
of the ``Other'' Title IX, 17 Mich. J. Gender & L. 211, 220-47 
(2011).
    \153\ Darien v. University of Massachusetts, 980 F. Supp. 77, 92 
(D. Mass. 1997), citing Lipsett v. University of Puerto Rico, 864 
F.2d 881, 897 (1st Cir. 1988) (holding claims under Title IX will be 
analyzed using the Title VII burden shifting analysis in the 
employment context).
---------------------------------------------------------------------------

    Proposed paragraph (a) of Sec.  38.8 adopts the principle set forth 
in Title IX and the PDA \154\ that discrimination on the basis of sex 
includes ``because of or on the basis of pregnancy, childbirth, or 
related medical conditions.'' \155\ It requires that employers treat 
employees and job applicants of childbearing capacity and those 
affected by pregnancy, childbirth or related medical conditions the 
same for all employment-related purposes as other persons not so 
affected but similar in their ability or inability to work and defines 
the term ``related medical conditions.'' Proposed paragraphs 38.8(a-d) 
provide the following examples that may be prohibited pregnancy 
discrimination: Refusing to provide aid, benefit, service, training or 
employment under a WIOA Title I-financially assisted program or 
activity to a pregnant individual or an individual of childbearing 
capacity, or otherwise subjecting such individuals to adverse treatment 
on the basis of pregnancy, related medical conditions, or childbearing 
capacity; limiting an individual's access to any aid, benefit, service, 
or training under a WIOA Title I-financially assisted program or 
activity based on that individual's pregnancy, or requiring a doctor's 
note in order for a pregnant individual to continue participation while 
pregnant; and denying accommodations or modifications to a pregnant 
applicant or participant who is temporarily unable to participate in a 
program or activity because of pregnancy, childbirth, and/or related 
medical conditions, when such accommodations or modifications are 
provided to other participants who are similarly affected.\156\ Without 
such accommodations, many pregnant individuals are unable to 
participate in job training programs or activities. Consequently, some 
pregnant individuals who need reasonable accommodations lose 
opportunities to receive job training and other WIOA Title I-
financially assisted aid, benefits, services, or training to assist 
them in obtaining employment.
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    \154\ 42 U.S.C. 2000e(k).
    \155\ The statutory term ``related medical conditions'' appears 
in the PDA only.
    \156\ This Pregnancy Discrimination Act obligation applies even 
though ``pregnancy itself is not an impairment within the meaning of 
the [Americans with Disabilities Act of 1990, 42 U.S.C. 12101 et 
seq., as amended], and thus is never on its own a disability.'' 
EEOC, Enforcement Guidance: Pregnancy Discrimination and Related 
Issues, sec. II.A (July 14, 2014) (footnote omitted), available at 
https://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm (last 
accessed March 19, 2015). Under the ADA, accommodation is required 
for qualified individuals absent undue hardship when a physical or 
mental impairment (including one caused by pregnancy) substantially 
limits a major life activity.
---------------------------------------------------------------------------

    The range of accommodations to address the temporary limitations of 
a pregnant applicant, participant, or beneficiary in a WIOA Title I-
financially assisted program or activity may include simple things that 
involve little or no cost, such as permitting more frequent bathroom 
breaks and allowing the pregnant individual to sit down during a 
training program or applications or interview process.\157\ Other 
temporary limitations, however, may require a temporary light-duty 
assignment to accommodate lifting or bending restrictions that a 
pregnant participant or trainee may have.
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    \157\ In addition, the Fair Labor Standards Act, 29 U.S.C. 
Section 207(r), requires FLSA-covered employers to provide 
reasonable break time for an employee to express breast milk for her 
nursing child for one year after the child's birth, each time such 
employee has need to express the milk. Employers are also required 
to provide a place, other than a bathroom, that is shielded from 
view and free from intrusion from coworkers and the public, which 
may be used by an employee to express breast milk. FLSA-covered 
employers with fewer than 50 employees are not subject to the FLSA 
break time requirement if compliance with this provision would 
impose an undue hardship by causing the employer significant 
difficulty or expense when considered in relation to the size, 
financial resources, nature, or structure of the employer's 
business.
---------------------------------------------------------------------------

    Denying an alternative assignment, modified duties, or other 
accommodations to a pregnant applicant, participant, or beneficiary who 
is temporarily unable to perform some program or activity duties 
because of pregnancy, childbirth, or a related medical condition may be 
sex discrimination when such assignments, modifications, or other 
accommodations are provided, or are required to be provided, by a 
recipient's policy or other relevant laws, to other individuals whose 
abilities to perform some of their program or activity duties are 
similarly affected (proposed Sec. 38.7). Thus, for example, a recipient 
that permits light-duty assignments for individuals who are unable to 
perform their regular assignments due to on-the-job injuries or 
disabilities may also be required to permit light-duty assignments for 
individuals who are unable to perform their regular assignments due to 
pregnancy. The approach set forth in the proposed rule with respect to 
pregnancy accommodation is intended to align with the U.S. Supreme 
Court's decision in Young v. United Parcel Serv., Inc., 135 S. Ct. 1338 
(2015). Thus, in analyzing pregnancy-based sex

[[Page 4512]]

discrimination allegations that seek to show disparate treatment 
related to accommodation requests by using indirect evidence, CRC will 
apply the three-part analytical framework set forth by the Supreme 
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805 
(1973). Specifically with respect to demonstrating pretext, CRC will 
follow the analysis described in Young, supra at 1354-55.\158\ CRC 
solicits comments from the public on how best to operationalize 
application of the Court's pretext analysis.
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    \158\ The EEOC has issued guidance in the employment context. 
See U.S. Equal Employment Opportunity Commission, Enforcement 
Guidance: Pregnancy Discrimination and Related Issues (July 25, 
2015), available at https://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm (last accessed Sept. 24, 2015).
---------------------------------------------------------------------------

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

    In an effort to facilitate consistent Federal enforcement, the NPRM 
proposes adding a new section on national origin discrimination. 
Proposed paragraph (a) states the existing obligation that a recipient 
must not discriminate on the basis of national origin in providing any 
aid, benefit, service, or training under any WIOA Title I-financially 
assisted program or activity. It also explains that national origin 
discrimination includes ``treating individual beneficiaries, 
participants, or applicants for aid, benefit, service or training 
adversely because they (or their ancestors) are from a particular 
country or part of the world, because of ethnicity or accent (including 
adverse treatment because they have the physical, linguistic, and 
cultural characteristics closely associated with a national origin 
group).''
    Proposed paragraph (b) adopts the well-established principle under 
Title VI of the Civil Rights Act of 1964, as amended,\159\ that 
recipients of Federal financial assistance must take reasonable steps 
to provide meaningful access to each LEP individual whom they serve or 
encounter. This same principle has applied to recipients in their WIA 
Title I-financially assisted programs and activities and likewise 
applies to all recipients in their WIOA Title I financially-assisted 
programs or activities. This provision reflects the fundamental 
obligation of recipients to provide meaningful access to LEP 
individuals, e.g., to effectively understand communications and to make 
themselves understood. This paragraph provides examples of reasonable 
steps: ``Reasonable steps generally may include, but are not limited 
to, an assessment of an LEP individual to determine language assistance 
needs; providing oral interpretation and written translation of both 
hard-copy and electronic materials, in the appropriate non-English 
languages to LEP individuals; or outreach to limited English proficient 
communities to improve service delivery in needed languages.'' The 
Department intends this to be a flexible standard that evaluates the 
level, type, and manner of language services required in light of the 
particular facts, such as the nature of the communication, the language 
of the LEP individual, and the recipient involved.\160\ The proposed 
section further provides direction regarding the application of the 
term ``reasonable steps'' in the context of training programs. 
``Reasonable steps to provide meaningful access to training programs 
may include, but are not limited to providing: (1) Written training 
materials in appropriate non-English languages by written translation 
or by oral interpretation or summarization; and (2) Oral training 
content in appropriate non-English languages through in-person 
interpretation or telephone interpretation.''
---------------------------------------------------------------------------

    \159\ 42 U.S.C. 2000d et seq.
    \160\ DOL LEP Guidance, 68 FR 32293-32295 (describing the 
factors recipients should consider, and the factors that CRC will 
consider, in determining the extent of recipients' obligations to 
LEP individuals).
---------------------------------------------------------------------------

    The proposed language provides familiarity and consistency for 
recipients about the scope of their obligations. It is particularly 
critical that LEP individuals be provided meaningful access to 
information in the context of access to any aid, benefit, service, and/
or training, because that information--including, for example, how to 
apply for unemployment insurance benefits, how to appeal a denial of 
benefits, how to apply for and participate in job training and 
employment opportunities--is often essential to ensure beneficiaries' 
access to necessary employment-related opportunities.
    Additionally, the NPRM proposes adding paragraphs (c) through (i), 
which specify the actions recipients must take to ensure language 
access. Proposed paragraph (c) makes clear that a recipient should 
ensure that every program delivery avenue, including electronic, in 
person, and/or telephonic communication, conveys in the appropriate 
languages how an individual can effectively learn about, participate 
in, and/or access any aid, benefit service or training that the 
recipient provides. This provision would ensure that, as recipients 
convert to on-line delivery systems, language access is not lost in the 
transition.
    Paragraph (d) specifies that any language assistance services 
whether oral interpretation or written translation, must be provided 
free of charge and in a timely manner.\161\ Consistent with the 
approach in the Department's LEP Guidance that there is no one 
definition for ``timely'' that applies to every type of interaction 
with every type of recipient at all times, CRC declines to define 
``timely'' for the purposes of this section. A determination of whether 
language assistance services are timely will depend on the specific 
circumstances of each case. However, CRC echoes the LEP Guidance's 
recognition that language assistance is timely when it is provided at a 
time and place that avoids the effective denial of or imposition of an 
undue burden on or delay in important aid, benefits, services, or 
training to LEP individuals.\162\
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    \161\ This principle is consistent with long-standing concepts 
reflected in the DOL LEP Guidance. See 68 FR at 32297 (with respect 
to privacy), 32296 (with respect to timeliness), and 32300 (with 
respect to services free of charge).
    \162\ Id. at 47316.
---------------------------------------------------------------------------

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

[[Page 4513]]

facilitate communication when the information conveyed is of minimal 
importance to the services to be provided or when the LEP individual 
requests that the accompanying adult provide language assistance, the 
adult agrees, and reliance on that adult is appropriate. If the LEP 
individual voluntarily chooses to provide their own interpreter, a 
recipient must make and retain a record of the individual's decision to 
use their own interpreter. This provision allows the LEP individual to 
rely on an adult of their own choosing, but requires that the recipient 
document that choice so that there can be no question regarding the 
voluntariness of the choice of interpreter. Proposed paragraph (f)(3) 
outlines that when precise, complete, and accurate interpretations or 
translation of information and/or testimony are critical for 
adjudicatory or legal reasons, or where the competency of the LEP 
person's interpreter is not established, a recipient may decide to 
provide its own, independent interpreter, even if an LEP individual 
wants to use their own interpreter as well.
    Paragraph (g) addresses recipients' LEP requirements as to vital 
information. Paragraph (g)(1) provides that, for languages spoken by a 
significant number or portion of the population eligible to be served 
or likely to be encountered, recipients must translate vital 
information in written materials into these languages and make the 
translations readily available in hard copy, upon request, or 
electronically such as on a Web site. Written training materials 
offered or used within employment-related training programs as defined 
under Sec.  38.4(t) are excluded from these translation requirements. 
The Department is cognizant of the challenge posed by translating the 
variety of training materials into so many languages as may be 
necessary in an employment-related training program. The vital 
information these materials contain can be provided to LEP participants 
by oral interpretation or summarization during the training program 
itself. However, recipients must still take reasonable steps to ensure 
meaningful access to training programs as stated in (b) of this 
section. Reasonable steps to ensure meaningful access for LEP 
individuals to employment-related training programs may include 
offering courses such as English as a Second Language (ESL) to the 
individual concurrent with the training program, or enrollment in such 
a program to attain a sufficient level of English proficiency to become 
eligible for a specific job or training program. Importantly, whenever 
possible, the LEP individual's access to the training program, and thus 
any resulting employment opportunity, should not be delayed by 
enrollment in an ESL course.
    Paragraph (g)(2) states: ``For languages not spoken by a 
significant number or portion of the population eligible to be served, 
or likely to be encountered, a recipient must make reasonable steps to 
meet the particularized language needs of LEP individuals who seek to 
learn about, participate in, and/or access the aid, benefit, service or 
training that the recipient provides. Vital information may be conveyed 
orally if not translated.'' For these languages, recipients are not 
obligated to provide written translations of vital information in 
advance of a request by an LEP individual. Recipients are, however, 
required to take reasonable steps, including oral translation, to 
provide access to vital information. Paragraph (g)(3) states that 
recipients must include a ``Babel notice'' indicating that language 
assistance is available, in all communications of vital information, 
such as hard-copy letters or decisions or those communications posted 
on Web sites. This requirement would ensure that LEP individuals know 
how to obtain language assistance for vital information that has not 
been translated into the LEP individual's preferred, non-English 
language.
    Paragraph (h) addresses the situation in which a recipient becomes 
aware of the particularized language needs of an individual. The 
proposed provision states: ``To the extent otherwise required by this 
part, once a recipient becomes aware of the non-English preferred 
language of an LEP beneficiary, participant, or applicant for aid, 
benefit, service or training, the recipient must convey vital 
information in that language.'' This obligation to provide meaningful 
access as soon as the entity becomes aware that the individual is LEP 
exists regardless of whether the LEP individual's language is spoken by 
a significant number or portion of the population to be served.
    Paragraph (i) provides that recipients should develop a written 
language access plan to ensure LEP individuals have meaningful access 
to their programs and activities and references Appendix A of this part 
where the Department has provided guidance to recipients on developing 
a language access plan.
    In evaluating the scope of a recipient's obligations to provide 
meaningful access, recipients should, and CRC proposes to, give 
substantial weight to the nature and importance of the program or 
activity, including the particular communication at issue, in 
determining the appropriate level, type and manner of language 
assistance services to be provided. At the same time, CRC recognizes 
that a recipient's operations and capacity may be relevant in 
evaluating the level, type, and manner of language assistance services 
it is required to provide. Thus, recipients may also consider the 
proportion of LEP individuals of a particular language group eligible 
to be served or likely to be encountered by the recipient; the 
frequency of contacts between LEP individuals who speak that language 
and the recipient's program or activity; \163\ and the resources 
available to the recipient and the costs of language assistance 
services. Importantly, while these criteria may be used in an 
assessment of how, and at what level, language assistance services must 
be provided, they are not intended to relieve a recipient of its core 
obligation to take reasonable steps to enable LEP individuals to gain 
meaningful access to its programs and activities.
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    \163\ As described in the DOL LEP Guidance, the first and second 
factors evaluate the proportion of LEP individuals in the relevant 
area and the frequency of the recipient's contact with those 
individuals. Further explanatory material in the Guidance makes 
clear, however, that the focus of the inquiry should be on the 
proportion of individuals in, and frequency of contact with, 
speakers of a particular language group, not all LEP individuals. 
CRC intends for recipients to apply the criteria to this narrower 
group of LEP individuals.
---------------------------------------------------------------------------

    For instance, a recipient may choose to consider whether the 
preferred language of an LEP individual is one that is frequently 
spoken or one that the recipient only rarely encounters. In the latter 
circumstance, and depending on the importance of the communication at 
issue, the recipient might satisfy the requirements of Section 188 and 
this proposed part by providing an oral summary of the information 
rather than a written translation. Given the widespread commercial 
availability of relatively low-cost language assistance services such 
as remote oral interpretation, as well as the nature and importance of 
covered entities' employment-related programs or activities, CRC 
expects that most recipients will, at a minimum, have the capacity to 
provide LEP individuals with remote oral interpretation via telephone.
    Recipients may not use their analysis of these various factors as a 
defense or excuse for providing language assistance services in an 
untimely manner. CRC recognizes that a recipient may wish to conduct 
thorough assessments of its language assistance needs and

[[Page 4514]]

comprehensively create the operational infrastructure to execute a 
variety of high quality language assistance services. CRC urges 
recipients to pursue such high standards and to create language access 
plans that will identify in advance the types and levels of services 
that will be provided in each of the contexts in which the recipient 
entity encounters LEP individuals. At the same time, the pursuit of 
such goals cannot come at the expense of failing to provide language 
assistance services at all or in an untimely manner if such services 
are reasonable steps to provide meaningful access. Recipients should 
consider how they can ensure that language assistance services are 
available in their programs and activities as they simultaneously 
conduct further language needs assessments or improve their operational 
capacities to provide effective language assistance services.
    The Department acknowledges that its LEP guidance long has employed 
``four factors'' when assessing a recipient's compliance with its 
obligation to provide meaningful access.\164\ This proposal does not 
include them in the regulatory text because the obligation of a 
recipient is to provide meaningful access in the form of language 
assistance of some type. Recipients should, and CRC will, review each 
situation based on the facts presented. Thus, the Department does not 
want to impose a formulaic analysis that would detract from the primary 
weight to be placed on the nature and importance of the program or 
activity. The Department seeks comment on this approach, particularly 
whether the four factors should instead be incorporated into the 
regulatory text, whether the weight to be accorded the ``nature and 
importance'' factor is appropriate, and whether there are additional 
factors that should be part of the analysis.
---------------------------------------------------------------------------

    \164\ See 68 FR 32293-32295.
---------------------------------------------------------------------------

    The DOL LEP Guidance issued in 2003 did not specifically define 
what constitutes a ``significant number or proportion of the eligible 
service population.'' To provide the regulated community with more 
direction, the Department is considering a regulatory scheme requiring 
recipients to provide a range of language assistance services in the 
non-English languages spoken by state-wide populations with limited 
English proficiency that meet defined thresholds. Such thresholds would 
address the requirements for written translation of vital documents and 
Web site content. For instance, CRC is considering thresholds 
triggering a requirement to translate standardized vital documents 
based upon the number of languages (e.g., top ten languages spoken by 
LEP individuals); percentage of language speakers (e.g., languages 
spoken by at least 5% of LEP individuals); the number of language 
speakers (e.g., languages spoken by at least 1,000 LEP individuals); 
and composite thresholds combining these approaches, e.g., language 
spoken by at least 5% of LEP individuals or 1,000 LEP individuals, 
whichever is lower.
    The Department seeks comment on what thresholds, if any, should be 
required, and to what geographic areas or service areas, State-level or 
lower, the threshold should apply. If thresholds should be required, 
CRC seeks comment on the time that should be allowed for recipients to 
come into compliance with the threshold, including whether this 
regulation should permit recipients to implement their obligations with 
a phased-in approach. CRC is also seeking comment on other 
methodologies for formulating language access thresholds regarding 
written materials containing vital information that would result in 
meaningful access for individuals regardless of national origin, while 
being mindful of the potential burden on recipients.
    These concepts are broadly recognized as essential components of an 
effective language assistance plan for LEP individuals. Recipients 
should be familiar with these concepts, as they are contained in the 
DOL LEP Guidance that was issued in 2003 and various guidance documents 
issued by the Department of Justice.\165\
    Although the requirement that recipients take reasonable steps to 
provide meaningful access for LEP individuals to access and participate 
in WIOA Title I-financially assisted programs and activities is not 
new, the CRC has received feedback from EO Officers and others that 
achieving compliance with these requirements has been difficult in part 
because of the resources necessary and the need for guidance about 
implementation. Thus, the Department recognizes that there is a need 
for additional technical assistance to assist recipients in achieving 
compliance with their language access requirements. The CRC, along with 
the Employment and Training Administration, is committed to providing 
the necessary technical assistance and guidance to the field in the 
years immediately following the effective date of the final rule 
containing these provisions.
Harassment Prohibited Sec.  38.10
    This rule proposes a new Sec.  38.10 to provide additional 
direction for an existing obligation. Harassment is a form of 
discrimination that currently is prohibited under WIA and Section 188. 
Courts have recognized for many years that harassment on the basis of 
race, color, religion, sex, or national origin, including the existence 
of a work environment that is hostile to members of one race, color, 
religion, sex, or national origin, may give rise to a violation of 
Title VII.\166\ Despite this longstanding precedent, current part 38 
does not include any references to harassment. Proposed Sec.  38.10 
remedies this omission.
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    \166\ Harris v. Forklift Sys., 510 U.S. 17 (1993) (harassment 
based on sex); Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) 
(sex); Daniels v. Essex Group, Inc., 937 F.2d 1264, 1274 (7th Cir. 
1991) (race); Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977) (sex); 
Rogers v. Western-Southern Life Ins. Co., 792 F. Supp. 628 (E.D. 
Wis. 1992) (race); Moore v. Secretary of Defense, Army and Air Force 
Exchange, E.E.O.C. Appeal No. 01933575, 1994 WL 1754483 at *1 (Mar. 
16 1994) (religion). See also U.S. Equal Employment Opportunity 
Commission Guidelines on Discrimination Because of Sex, 41 CFR 
1604.11 (1980) (provision on harassment).
---------------------------------------------------------------------------

    Harassment on the basis of race, color, religion, sex, national 
origin, age, disability, political affiliation or belief, and for 
beneficiaries, applicants, and participants only, citizenship status or 
participation, that occurs in WIOA Title I-financially assisted 
programs and activities may give rise to a violation of WIOA Section 
188 and this part. This new section provides recipients with direction 
concerning the conduct that may constitute unlawful harassment so that 
they may better prevent, identify, and remedy it.
    Proposed paragraphs 38.10(a)(1)-(3) describe situations in which 
unlawful harassment may exist under WIOA and this part. Unwelcome 
sexual advances, requests for sexual favors, or offensive remarks may 
constitute unlawful harassment when: Submission to such conduct is made 
explicitly or implicitly a term or condition of accessing the aid, 
benefits, services, training or employment (proposed paragraph 
38.10(a)(1)); submission to or rejection of such conduct is used as the 
basis for limiting that person's access to any aid, benefits, services, 
training or employment (proposed paragraph 38.10(a)(2)); or such 
conduct has the purpose or effect of unreasonably interfering with an 
individual's participation in a WIOA Title I-financially assisted 
program or activity, creating an intimidating, hostile or offensive 
program or activity environment (proposed paragraph 38.10(a)(3)). This 
language mirrors provisions of EEOC's Guidelines on Discrimination 
Because of Sex \167\ and

[[Page 4515]]

OFCCP's proposed rule addressing Discrimination Based on Sex \168\ 
relating to sexual harassment, but also addresses harassment based on 
any of the other protected bases covered by this part. These provisions 
are also consistent with established case law holding that isolated or 
stray remarks generally cannot form the basis of a harassment claim. 
The harassment, to be unlawful, must create a hostile or offensive 
program environment.\169\
---------------------------------------------------------------------------

    \167\ See 29 CFR 1604.11(a).
    \168\ See 80 FR 5279, January 30, 2015.
    \169\ See Price Waterhouse v. Hopkins, 490 U.S. 228, 277-78 
(1989); Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); 
Caver v. City of Trenton, 420 F.3d 243 (3d Cir. 2005); Jordan v. 
Alternative Res. Corp., 458 F.3d 332, 340-44 (4th Cir. 2006); 
Herrera v. Lufkin Indus., Inc., 474 F.3d 675, 680 (10th Cir. 2007); 
Morales-Cruz v. Univ. of Puerto Rico, 676 F.3d 220, 226 (1st Cir. 
2012).
---------------------------------------------------------------------------

    Proposed paragraph Sec.  38.10(b) defines harassment because of sex 
under WIOA broadly to include sexual harassment (including harassment 
based on gender identity and failure to comport with sex stereotypes), 
harassment based on pregnancy, childbirth, or related medical 
conditions, and harassment that is not sexual in nature but is because 
of sex (including harassment based on gender identity or failure to 
comport with sex stereotypes), or where one sex is targeted for the 
harassment. This aligns the meaning of ``because of sex'' for purposes 
of sexual harassment with its meaning under current Title VII law.
Discrimination Prohibited Based on Citizenship Status Sec.  38.11
    This NPRM adds a new Sec.  38.11 titled ``Discrimination prohibited 
based on citizenship status'' to provide additional direction to 
recipients regarding the protections certain noncitizens have from 
discrimination based on their citizenship status. Please note that 
other statutes and regulations may define citizenship discrimination 
differently than it is defined for the purposes of this NPRM.
    The new language assists recipients in identifying citizenship-
based discrimination as treating individual beneficiaries, applicants, 
and participants, adversely because of their status as U.S. citizens or 
nationals of the U.S., lawful permanent residents, refugees, asylees, 
and parolees or other immigrants authorized by the Secretary of 
Homeland Security or his or her designee to work in the U.S. Although 
Section 188(a)(5) refers to immigrants authorized ``by the Attorney 
General'' to work in the U.S., Congress transferred that authority from 
the Attorney General to the Secretary of Homeland Security in the 
Homeland Security Act of 2002.\170\ The new text regarding Section 
188(a)(5) reflects the transfer of noncitizen work authorization 
authority to the Secretary of Homeland Security and specifies that a 
recipient's maintenance or use of policies or procedures that have the 
effect of discriminating on the basis of citizenship status is also 
prohibited by Section 188 and this part.
---------------------------------------------------------------------------

    \170\ See Homeland Security Act of 2002, Public Law 107-296, 8 
U.S.C. 1103(a)(1). Section 1517 of the Homeland Security Act 
(codified at 6 U.S.C. 557) provides that a reference in any other 
Federal law to any function transferred by the Act ``and exercised 
on or after the effective date of the Act'' shall refer to the 
Secretary of Homeland Security or other official or component of DHS 
to whom that function is transferred. See also Clark v. Martinez, 
543 U.S. 371, 374 n.1 (2005) (noting that, with limited exception, 
the immigration authorities previously exercised by the Attorney 
General and the former Immigration and Naturalization Service ``now 
reside in the Secretary of Homeland Security'' and the Department of 
Homeland Security).
---------------------------------------------------------------------------

Discrimination Prohibited Based on Disability Sec.  38.12
    This NPRM revises the title of Sec.  38.7 to ``Discrimination 
prohibited based on disability'' and makes minor changes to this 
section. This rule retains much of the language from the current part 
38 section and proposes adding paragraph Sec.  38.12(p) to address 
claims of no disability. The proposed paragraph states that nothing in 
this part provides the basis for a claim that an individual without a 
disability was subject to discrimination because of a lack of 
disability, including a claim that an individual with a disability was 
granted auxiliary aids or services, reasonable modifications, or 
reasonable accommodations that were denied to an individual without a 
disability. This new subsection incorporates the ADAAA's prohibition on 
claims of discrimination because of an individual's lack of disability. 
The ADAAA expressly prohibits claims that ``an individual without a 
disability was subject to discrimination because of the lack of 
disability.'' \171\
---------------------------------------------------------------------------

    \171\ 42 U.S.C.12201(g).
---------------------------------------------------------------------------

Accessibility Requirements Sec.  38.13
    This rule adds a new Sec.  38.13 titled ``Physical and programmatic 
accessibility requirements'' to address the new emphasis Congress has 
placed on ensuring programmatic and physical accessibility to WIOA 
Title I-financially assisted service, program or activity. In no less 
than ten provisions of Title I of WIOA, Congress referred to 
recipients' obligation to make WIOA Title I-financially assisted 
programs and activities accessible.\172\
---------------------------------------------------------------------------

    \172\ Id.
---------------------------------------------------------------------------

    Proposed paragraph (a) addresses physical accessibility 
requirements and proposed paragraph (b) addresses programmatic 
accessibility requirements. Proposed paragraph (a) states the physical 
accessibility requirements for existing facilities, as well as those 
for new construction or alterations under Title II of the ADA. 
Recipients that receive federal financial assistance are also 
responsible for meeting their accessibility obligations under Section 
504. Proposed paragraph (b) describes the obligations of recipients to 
ensure programmatic accessibility to WIOA Title I-financially assisted 
programs and activities for individuals with disabilities. Congress 
included this description of how to achieve programmatic accessibility 
in 2005 in the context of considering amendments to WIA in an effort to 
improve accessibility to the workforce development system for 
individuals with disabilities.\173\ Therefore, the Department proposes 
to include it here. The Department welcomes comments on this section.
---------------------------------------------------------------------------

    \173\ Sen Rep. 109-134 109th Congress, 1st Section, Workforce 
Investment Act Amendments of 2005 (September 7, 2005) p. 11, 2005 WL 
2250857 at *11.
---------------------------------------------------------------------------

Reasonable Accommodations and Reasonable Modifications for Individuals 
With Disabilities Sec.  38.14
    The title of Sec.  38.14 is revised to ``Reasonable accommodations 
and reasonable modifications for individuals with disabilities.'' The 
section retains the existing text from Sec.  38.8.
Communications With Individuals With Disabilities Sec.  38.15
    The title of proposed Sec.  38.15 revises the Sec.  38.9 title to 
read as follows, ``Communications with individuals with disabilities'' 
and proposes revised text for paragraph (a) and (b) of Sec.  38.15 to 
be consistent with DOJ's ADA Title II proposed regulations, which have 
been updated since the current WIA regulations were promulgated in 
1999. These changes provide that the communication requirements apply 
to beneficiaries, registrants, applicants, participants, members of the 
public and companions with disabilities. If the DOJ changes its 
proposal in its final rule implementing ADA Titles II and III, the 
Department will review those changes to determine their impact on this 
proposal and take appropriate action.
    This rule proposes a new subparagraph (a)(5) addressing the 
obligation that recipients currently have, under Sec.  38.9 and this 
proposed section, as well as the ADA, to take appropriate steps to 
ensure that

[[Page 4516]]

communications with individuals with disabilities are as effective as 
communications with others. This responsibility includes, for example, 
the provision of auxiliary aids and services to afford an individual 
with a disability an equal opportunity to participate in, and enjoy the 
benefits of, a service, program or activity.\174\ Thus, the proposed 
language states that when developing, procuring, maintaining, or using 
electronic and information technology, a recipient must utilize 
electronic and information technologies, applications, or adaptations 
which incorporate accessibility features for individuals with 
disabilities in order to achieve the goal of equally effective 
communication.
---------------------------------------------------------------------------

    \174\ 28 CFR 35.160(b)(1).
---------------------------------------------------------------------------

    The section defines the term ``companion'' for the purposes of this 
part and provides detailed descriptions of requirements for 
telecommunications in subpart (b) and communications of information and 
signage in subpart (c). It also explains the limitations of fundamental 
alterations in subpart (d), i.e., that a recipient is not required to 
take action that it can demonstrate would result in a fundamental 
alteration in the nature of a service, program or activity. CRC has 
drawn these provisions from the ADA Title II regulations to ensure that 
recipients' responsibilities under this part are consistent with those 
under the ADA.
Service Animals Sec.  38.16
    This NPRM adds a new Sec.  38.16 entitled ``Service animals'' to 
provide direction to recipients regarding their obligation to modify 
their policies, practices or procedures to permit the use of a service 
animal by an individual with a disability. This proposed section tracks 
the ADA Title II regulations issued by the DOJ found at 28 CFR part 
35.136 because applicants, beneficiaries of and participants in WIOA 
Title I financially-assisted programs include individuals with 
disabilities with service animals. The Department's discussions with 
recipients' EO Officers demonstrate that there has been some confusion 
on the part of recipients as to what constitutes a service animal and 
what constitutes a pet. This section is intended to resolve that 
confusion. This provision as to service animals is also in direct 
response to the inclusion of disability accessibility obligations 
throughout Title I of WIOA.\175\
---------------------------------------------------------------------------

    \175\ See, e.g., WIOA sections 102(b)(2)(C)(vii); 
102(b)(2)(E)(vi); 107(b)(4)(iii). The EEOC has not addressed whether 
or not this definition would apply to employers and employment 
agencies covered under Title I of the ADA or Section 501 of the 
Rehabilitation Act.
---------------------------------------------------------------------------

Mobility Aids and Devices Sec.  38.17
    This NPRM adds a new Sec.  38.17 entitled ``Mobility aids and 
devices'' to provide direction to recipients regarding the use of 
wheelchairs and manually-powered mobility aids by program participants 
and employees. This language is taken from the DOJ ADA Title II 
regulations at 28 CFR 35.137. This new section is being added in direct 
response to the inclusion of disability accessibility obligations 
throughout Title I of WIOA.\176\
---------------------------------------------------------------------------

    \176\ See, e.g., WIOA sections 102(b)(2)(C)(vii); 
102(b)(2)(E)(vi); 107(b)(4)(iii).
---------------------------------------------------------------------------

Employment Practices Covered Sec.  38.18
    The NPRM proposes to change the title of Sec.  38.10 to 
``Employment practices covered'' and makes minor changes to section (a) 
that only restructures the introductory language to read ``It is an 
unlawful employment practice to discriminate on the basis of race, 
color, religion, sex (including pregnancy, childbirth, and related 
medical conditions, transgender status, and gender identity), national 
origin, age, disability, or political affiliation or belief in the 
administration of, or in connection with. . . .'' The word ``basis'' is 
included instead of ``ground.'' Consistent with existing law, the 
Department proposes to add a parenthetical to define the scope of the 
sex discrimination prohibition to include: Pregnancy, child birth, 
related medical conditions, transgender status, and gender identity.
Intimidation and Retaliation Prohibited Sec.  38.19; Administration of 
This Part Sec.  38.20; Interpretations of This Part Sec.  38.21; 
Delegation of Administration and Interpretation This Part Sec.  38.22
    This rule proposes revising only the titles and section numbers of 
the following sections: Sec.  38.11 to Sec.  38.19, ``Intimidation and 
retaliation prohibited;'' Sec.  38.12 to Sec.  38.20, ``Administration 
of this part,'' Sec.  38.21, ``Interpretations of this part,'' and 
Sec.  38.22, Delegation of the administration and interpretation of 
this part.''
Coordination With Other Agencies Sec.  38.23
    This rule revises the title and number for Sec.  38.15, 
``Coordination with other agencies.''
Effect on Other Laws and Policies Sec.  38.24
    The proposed rule includes a new title and section number for Sec.  
38.16, of Sec.  38.23, ``Effect on other laws and policies'' and one 
minor change. In paragraph (a), CRC proposes to change ``ground'' to 
``basis.''

Subpart B--Recordkeeping and Other Affirmative Obligations of 
Recipients

    In describing the recordkeeping and other affirmative obligations 
that recipients must meet in order to comply with the nondiscrimination 
and equal opportunity provisions of WIOA and this part, the Department 
proposes to set forth several changes to the role of the Equal 
Opportunity Officer and the responsibilities of recipients previously 
set forth in the counterpart provisions of WIA and current part 38.
A Grant Applicant's Obligation To Provide a Written Assurance Sec.  
38.25
    Proposed Sec.  38.25 generally contains the same requirements as 
Sec.  38.20 with some revisions and new requirements for grant 
applicants. This rule proposes revising the title for this section to, 
``A grant applicant's obligation to provide a written assurance.'' 
Proposed Sec.  38.25(a)(1) emphasizes an existing obligation that, as a 
condition of an award of financial assistance under Title I of WIOA, a 
grant applicant assures that it ``has the ability to comply with the 
nondiscrimination and equal opportunity provisions of the following 
laws and will remain in compliance for the duration of the award of 
federal financial assistance.'' The existing part 38 rule does not 
explain that this requirement applies for the duration of the award. 
This new language makes explicit the existing continuing obligation for 
grant applicants and is intended to better effectuate compliance. The 
Department's experience is that when a grant applicant fully 
understands its legal obligations at the outset of the grant 
application process, there is greater compliance and greater 
transparency between the Department and grant applicants that become 
recipients.
Duration and Scope of Assurance Sec.  38.26 and Covenants Sec.  38.27
    Proposed Sec.  38.26 and Sec.  38.27 retain the exact language of 
Sec.  38.21 and Sec.  38.22, respectively, with the exception of 
section headings. This rule proposes as the heading for Sec.  38.21, 
``Duration and scope of the assurance,'' rather than the current 
heading of Sec.  38.21. This rule also proposes as the heading for 
Sec.  38.26, ``Covenants,'' rather than the heading of Sec.  38.22.
Designation of Equal Opportunity Officer Sec.  38.28
    Proposed Sec.  38.28 makes significant changes to current Sec.  
38.23. This rule proposes changing the title of Sec.  38.23 to,

[[Page 4517]]

``Designation of Equal Opportunity Officer.'' All states currently have 
at least one EO Officer who coordinates the Governor's equal 
opportunity and nondiscrimination requirements, so this provision 
formalizes an existing practice. This change is intended to address 
feedback from EO Officers at the State level that they lack sufficient 
authority to carry out their responsibilities. The rule also proposes 
that the Governor is responsible for making that designation, to avoid 
confusion about who is authorized to designate the EO Officer for the 
Governor at the State level and in the Governor's role as a recipient.
    Under the current rule at Sec.  38.27, every recipient, including 
Governors in their capacity as recipients, is required to designate an 
EO Officer. Proposed paragraph (a) requires the Governor to designate a 
State level EO Officer who reports directly to the Governor. Proposed 
Sec.  38.27(a) would also require that the State level EO Officer have 
sufficient staff and resources to carry out the requirements of this 
section. Within each state, the Governor is a unique recipient because 
the State is responsible for disseminating WIOA Title I funds. As a 
recipient, the Governor must designate an EO Officer like all other 
recipients; however, the State level EO Officer has distinct 
responsibilities for coordinating compliance with the nondiscrimination 
and equal opportunity provisions in WIOA and this part, throughout the 
State, as described in the Nondiscrimination Plan, formerly the Methods 
of Administration. Requiring the Governor to designate a State level EO 
Officer and imbuing that Officer with the requisite authority is 
intended to address the concerns raised to the Department by the EO 
Officers.
    EO Officers at the recipient level also have reported to CRC staff 
that they have neither the staff nor the resources to carry out their 
responsibilities, including investigating complaints, and conducting 
necessary monitoring of nondiscrimination policies as required in their 
Nondiscrimination Plans. Thus, proposed Sec.  38.28(b) provides that EO 
Officers at the recipient level be provided with resources sufficient 
to carry out the requirements of this part. The changes made to this 
section are intended to ensure that the EO officers at all levels are 
able to fulfill their responsibilities.
Recipient Obligations Regarding Its Equal Opportunity Officer Sec.  
38.29
    The NPRM proposes moving existing Sec.  38.26 to proposed Sec.  
38.29. The rule proposes as a new title, ``Recipient obligations 
regarding its Equal Opportunity Officer.'' This section is moved up in 
the subpart to elevate the importance of the recipient's 
responsibilities regarding its EO Officer. This section, together with 
Sec. Sec.  38.29 and 38.30, describes the obligations of all recipients 
as to their EO Officers. Thus, these provisions also apply to the EO 
Officers designated by the Governors in their role as recipients, as 
well as to the State level EO Officer that the Governor must designate 
to coordinate statewide compliance pursuant to proposed Sec.  38.27(a).
    In addition, proposed Sec.  38.29 adds a new paragraph (a) 
retaining the existing obligation in Sec.  38.29, consistent with the 
language about the EO Officer in Sec.  38.28, that the EO Officer of 
recipients be a senior level employee. The rule proposes a new 
provision requiring the recipient's EO Officer to report directly to 
the Chief Executive Officer, Chief Operating Officer, or equivalent 
top-level official. In response to the feedback from EO Officers 
described above, the rule proposes this change to ensure that EO 
Officers have the authority they need to complete their 
responsibilities. Proposed paragraph (b) of this section adds a 
requirement that the recipient designate an EO Officer who can fulfill 
the responsibilities of an EO Officer as described in Sec.  38.29. This 
provision was added to ensure that recipients' designated EO Officers 
have the knowledge, skills and abilities to comply with their 
obligations under this part.
Requisite Skill and Authority of Equal Opportunity Officer Sec.  38.30
    This rule proposes a new title for Sec.  38.24 to ``Requisite skill 
and authority of Equal Opportunity Officer'' and a new paragraph 
section number 38.30. This proposed rule adds language to the existing 
provisions in this section that is consistent with the other sections 
in this subpart addressing the EO Officer's skills and authority. The 
proposed provision explains that the EO Officer must be a senior level 
employee of the recipient who possesses the knowledge, skills, and 
abilities necessary to carry out the responsibilities of the role as 
described in this subpart. This provision is intended to emphasize the 
level of authority that recipients must give to the Equal Opportunity 
Officer and the importance that the recipient places on the role of the 
EO officer in effecting compliance with Section 188 and this part. Much 
(though by no means all) of the responsibility for a recipient's 
nondiscrimination and equal opportunity program rests on the shoulders 
of the EO Officer. While the proposed regulatory text is new, the 
Department recognized the importance of the EO Officer role when it 
issued the WIA Section 188 regulations in 1999. As stated in that 
preamble:

    CRC's experience has demonstrated that in order for such 
programs to function fairly and effectively, the EO Officer must be 
a senior-level employee whose responsibilities in the position 
present no conflicts of interest with his or her other 
responsibilities. In addition, the recipient must establish clear 
lines of authority and accountability for the program, and must 
provide the EO Officer with appropriate levels of support.\177\
---------------------------------------------------------------------------

    \177\ Implementation of the Nondiscrimination and Equal 
Opportunity Provisions of the Workforce Investment Act of 1998 
(WIA), 64 FR 61692 at 61702 (November 12, 1999), Section-by-Section 
Analysis, discussion of Sec. Sec.  37.24-25.

Equal Opportunity Officer Responsibilities Sec.  38.31
    The proposed rule has a new title and section number for current 
Sec.  38.25, ``Equal Opportunity Officer responsibilities.'' Section 
38.31 proposes new language in paragraph (d) specifying that the EO 
Officer's obligation to develop and publish the recipient's procedures 
for processing discrimination complaints includes development of 
procedures for investigating, resolving, and tracking complaints filed 
against the recipient and making available to the public, in 
appropriate languages and formats, the procedures for filing a 
complaint. These additions are intended to provide consistency in the 
processing of complaints and increase efficiency through the use of 
standardized procedures for processing discrimination complaints. The 
provision also reiterates existing responsibilities of recipients, 
including Governors, in this part of this section.
    Proposed paragraph (e) adds to the EO Officer's responsibilities an 
outreach and education requirement, which recipients are already 
required to undertake pursuant to Sec.  38.40. This proposal is 
intended to ensure that specific individuals are charged with carrying 
out this mandate. Further, as the recipient's employee who is most 
familiar with equal opportunity and nondiscrimination requirements, the 
EO Officer is likely to be best suited to conduct such outreach. The 
required outreach and education includes activities such as community 
presentations to groups who may benefit from the recipient's covered 
programs, and outreach to advise current and potential beneficiaries of 
their rights and recipient obligations under this part. CRC believes 
that the EO Officers, who serve in the recipient's

[[Page 4518]]

communities, will be in the best position to identify and implement the 
most effective means of outreach and education for their community. In 
addition, the rule proposes deleting Sec.  38.25(e), which addresses 
reporting lines of authority for the Equal Opportunity Officer, because 
it is addressed in Sec.  38.29(a).
    Finally, this rule proposes language in paragraph (f) clarifying 
that the existing training obligation for the EO Officer includes EO 
Officer staff training. EO Officers report that they are unable to 
attend trainings for budgetary reasons. This rule adds the reference to 
staff training to put recipients on notice that they must permit their 
EO Officers and staff to participate in such training.
Small Recipient Equal Opportunity Officer Obligations Sec.  38.32
    The NPRM proposes changing the title of Sec.  38.27 to ``Small 
recipient Equal Opportunity Obligations'' and the section number to 
38.32. It also replaces the word ``developing'' with ``adopting'' 
because small recipients may not be required to develop complaint 
procedures and process complaints. Governors have the discretion to 
prescribe the complaint processing procedures applicable to small 
recipients pursuant to Sec.  38.73.
Service Provider Equal Opportunity Officer Obligations Sec.  38.33
    The NPRM changes the title of Sec.  38.28 to ``Service provider 
Equal Opportunity Officer obligations,'' and renumbers it as Sec.  
38.33.

Notice and Communication

Recipients' Obligations To Disseminate Equal Opportunity Notice Sec.  
38.34
    Proposed Sec.  38.34 retains the language from current Sec.  38.29 
and makes clear in minor revisions to subparagraphs (a)(6) and (b) that 
recipients have an existing obligation to take appropriate steps to 
ensure that communications with individuals with disabilities are as 
effective as communications with others and that the Equal Opportunity 
notice is provided in appropriate languages to ensure meaningful access 
for LEP individuals. This proposed section contains appropriate cross-
references to Sec.  38.9, that addresses recipients' obligation to 
provide translations for LEP populations.
Equal Opportunity Notice/Poster Sec.  38.35
    The proposed new title for Sec.  38.30 is ``Equal opportunity 
notice/poster'' and the new section number is 38.35. The title change 
in this section is important because the rule adds ``poster,'' an 
explicit requirement of this section. The rule also proposes language 
that ``sex'' as a prohibited basis for discrimination includes 
pregnancy, child birth, or related medical conditions, sex 
stereotyping, transgender status, and gender identity and ``national 
origin'' includes LEP to be consistent with current law and serves to 
remind beneficiaries that discrimination based on these subcategories 
is prohibited. The NPRM also proposes language in the poster stating 
that the CRC will accept complaints via U.S. Mail and email at an 
address provided on the CRC's Web site.\178\
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    \178\ https://www.dol.gov/crc.
---------------------------------------------------------------------------

Recipients' Obligations To Publish Equal Opportunity Notice Sec.  38.36
    The NPRM proposes revising the title of Sec.  38.31 to 
``Recipients' obligations to publish equal opportunity notice'' and the 
section number to 38.36. The proposal retains the language in paragraph 
(a)(1) of this section that the Equal Opportunity Notice be posted 
prominently in reasonable numbers and places, and adds that the notice 
must also be posted in available and conspicuous physical locations as 
well as the recipient's Web site pages. These additions reflect the 
current widespread use of Web site pages to convey program and 
employment information. The reference to available and conspicuous 
places is intended to ensure that the notice will be posted in places 
to which employees, beneficiaries and program participants have access 
and in places where the notice is easily visible. Similarly, the 
proposal retains language in paragraph (a)(3) stating that the notice 
must be included in employee and participant handbooks, and includes a 
new reference to electronic forms to account for their current 
widespread use. Proposed paragraph (a)(4) is updated so that the notice 
must be made a part of each participant's and employee's electronic and 
paper file, if one of each is kept.
    The above-proposed changes provide that these notice obligations 
apply to both employees and participants because employees of 
recipients are also protected under this part. Previously, this section 
only applied the notice requirement to participants.
    Similarly, proposed changes to paragraph (b) of Sec.  38.36 require 
that this notice must be provided in appropriate formats for 
registrants, applicants, eligible applicants/registrants, applicants 
for employment and employees and participants with visual impairments. 
The prior rule at Sec.  37.31(b), due to oversight or error, only 
required that notice in an accessible format be provided to 
participants. This rule expands the categories of individuals for whom 
notice must be provided in alternate formats because each category of 
individuals listed above is protected under the WIOA nondiscrimination 
obligation.
    Paragraph (c) of Sec.  38.36 states that the notice must be 
provided to participants in appropriate languages other than English as 
required in this part. This provision was added because recipients have 
an existing obligation under Sec.  38.35 to provide limited English 
proficient individuals with meaningful access to this notice, as set 
out in proposed Sec.  38.9. As discussed in the preamble, the 
population served by WIOA Title I-financially assisted programs and 
activities has grown increasingly diverse, as the overall population in 
the U.S. has become more diverse, including a higher percentage of 
individuals who are not proficient in English. This requirement ensures 
that LEP individuals will receive the notice in a language they can 
understand.
    Paragraph (d) of Sec.  38.36 states that the notice required by 
Sec. Sec.  38.34 and 38.35 must be initially published and provided 
within 90 days of the effective date of this part, or of the date this 
part first applies to the recipient, whichever comes later.
Notice Requirement for Service Providers Sec.  38.37
    Proposed Sec.  38.37 contains the same requirements as current 
Sec.  38.32. This rule proposes revising the heading to, ``Notice 
requirement for service providers,'' rather than the heading of current 
Sec.  38.32.
Publications, Broadcasts, and Other Communications Sec.  38.38
    Proposed Sec.  38.38 generally contains the same requirements as 
current Sec.  38.34. This rule proposes revising the title to, 
``Publications, broadcasts, and other communications.'' Proposed Sec.  
38.38(a) also provides that, where materials indicate that the 
recipient may be reached by voice telephone, the materials must also 
prominently provide the telephone number of the text telephone (TTY) or 
equally effective telecommunication system such as a relay service used 
by the recipient. This proposal updates this section to reflect current 
technology used by individuals with hearing impairments. Proposed 
paragraph (c) of this section replaces ``prohibited ground'' with 
``prohibited basis'' for consistency with this part.

[[Page 4519]]

Communication of Notice in Orientations Sec.  38.39
    Proposed Sec.  38.39 generally contains the same requirements as 
current Sec.  38.36. This rule proposes a revised title, 
``Communication of notice in orientations.'' The proposed rule adds 
language stating that orientations provided not just in person but also 
remotely over the internet or using other technology are subject to 
these notice requirements. Proposed Sec.  38.39 also revises this 
section consistent with current law to ensure equal opportunity for 
individuals with disabilities and meaningful access for individuals who 
are LEP. This rule proposes language stating that the information 
contained in the notice must be communicated in appropriate languages 
to ensure language access as required in Sec.  38.9 of this part and in 
accessible formats as required in Sec.  38.15 of this part. These 
requirements are consistent with the recipient's obligation to provide 
meaningful access to LEP individuals as discussed in Sec.  38.9 of the 
preamble, and the recipient's obligation to provide accessible 
communications to individuals with disabilities under the ADA as 
provided in Sec.  38.15 of this part.
Affirmative Outreach Sec.  38.40
    Proposed Sec.  38.40 generally contains the same requirements as 
current Sec.  38.42. The rule proposes changing the title to 
``Affirmative outreach'' rather than the heading of current Sec.  38.42 
which is in question format and refers to a recipient's 
responsibilities to provide ``universal access.'' The title change in 
this section is important because the Department removes the term 
``universal access'' from the rule entirely. The use of ``universal 
access'' in the current rule has caused confusion because the provision 
was intended to require recipients to perform affirmative outreach in 
order to ensure broad access to WIA Title I financially assisted 
programs; however, ``universal access'' is a term of art with a 
different meaning in the disability context.\179\ Moreover, 
``affirmative outreach'' is more descriptive of the requirements 
contained in this section. This rule proposes some limited updates to 
this section to state that the required affirmative outreach steps 
should involve reasonable efforts to include more complete categories 
of the various groups protected under this part, including persons of 
different sexes, to replace ``both'' sexes and avoid binary terminology 
and be inclusive of individuals who may not identify as male or female, 
as well as various racial and ethnic/national origin groups, various 
religions, individuals with limited English proficiency, individuals 
with disabilities and individuals in different age groups.
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    \179\ ``Universal access,'' also known as ``universal design,'' 
is a strategy for making products, environments, operational 
systems, and services welcoming and usable to the most diverse range 
of people possible. Disability Employment Policy Resources by Topic/
Universal Design https://www.dol.gov/odep/topics/UniversalDesign.htm 
(last accessed March 19, 2015).
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Data and Information Collection and Maintenance

    This rule proposes limited changes and additions to the sections 
covering data and information collection and maintenance to provide 
additional direction to recipients regarding the already existing 
obligations related to data and information collection, and 
maintenance. The Department welcomes comments on these changes.
Collection and Maintenance of Equal Opportunity Data and Other 
Information Sec.  38.41
    Proposed Sec.  38.41 generally contains the same requirements as 
current Sec.  38.37. This rule proposes changing the title to, 
``Collection and maintenance of equal opportunity data and other 
information.'' Proposed paragraph (a) retains the same language as the 
current Sec.  38.37(a).
    Proposed paragraph (b)(2) adds ``limited English proficiency and 
preferred language'' to the list of categories of information that each 
recipient must record about each applicant, registrant, eligible 
applicant/registrant, participant, and terminee. The proposal does not 
apply this data collection obligation to applicants for employment and 
employees because the obligation as to LEP individuals does not apply 
to those categories of individuals. This change is intended to ensure 
that recipients collect information related to serving limited English 
proficient individuals. The Department believes that the term 
``preferred language'' best attempts to capture this information as to 
LEP individuals and is also used by many states with language access 
laws.\180\ Limited English proficiency data is already being collected 
by recipients that offer core, intensive and training services and is 
reported to the Employment and Training Administration of the 
Department. Thus, use of some of the same terminology is intended to 
minimize any burden on recipients.\181\ In addition, the Department 
proposes to delay enforcement regarding collection of these two new 
data points for two years from the effective date of the final rule to 
allow recipients adequate time to update their data collection and 
maintenance systems. The Department seeks comments on the use of these 
terms as proposed in Sec.  38.41.
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    \180\ For example, pursuant to the D.C. Language Access Act, the 
D.C. Office of Human Rights requires covered entities to collect 
data on the number of LEP individuals served in an annual report. 
See Final rulemaking at 55 DCR 6348 (June 8, 2008), as amended by 
Final Rulemaking published at 61 DCR 9836 (September 26, 2014). The 
question on the D.C. Office of Human Right Complaint Form for the 
purposes of capturing this information is ``What language do you 
prefer to communicate in? '' D.C. Government Employment Intake 
Questionnaire Form, Available at https://dcforms.dc.gov/webform/employment-intake-questionnaire-form (last accessed March 19, 2015). 
Hawaii passed their language access law in 2006. See Hawaii Rev. 
Stat. Sec. Sec.  371-31 to 37. In California, the Dymally-Alatorre 
Bilingual Services Act requires local agencies to provide language 
access to limited English-proficient speakers. Ca. Govt. Code Sec.  
7290-7299.8. The Bilingual Services Program at the California 
Department of Human Resources provides oversight, including 
conducting language surveys on implementation. California Department 
of Human Resources, Bilingual Services program, available at https://www.calhr.ca.gov/state-hr-professionals/Pages/Bilingual-Services.aspx (last accessed (March 19, 2015).
    \181\ See, e.g., FY 2012 WIASRD Data Book at 23, Social Policy 
Research Associates for Office of Performance and Technology, 
Employment and Training Administration, U.S. Department of Labor at 
(December 2, 2013).
---------------------------------------------------------------------------

    This NPRM proposes new language in paragraph (b)(3) specifically 
explaining a recipient's responsibilities to keep the medical or 
disability-related information it collects about a particular 
individual on a separate form, and in separate files. The paragraph 
also lists the range of persons who may have access to such files. 
Similarly, new language in paragraph (b)(3) of this section contains 
information about the persons who may be informed that a particular 
individual is an individual with a disability, and the circumstances 
under which this information may be shared. These requirements have 
been separated to emphasize that the range of persons who may be 
permitted to have access to files containing medical and disability-
related information about a particular individual is narrower than the 
range of persons who may be permitted to know generally that an 
individual has a disability. These changes make the regulations 
consistent with DOL's regulations implementing Sec.  504 of the 
Rehabilitation Act, and with the EEOC's regulations implementing Title 
I of the ADA.\182\ The change is also intended to provide recipients 
with information necessary to enable them to develop protocols that are 
consistent with these requirements.
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    \182\ See 29 CFR 1630.14(b)(1)(i)-(iii).

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[[Page 4520]]

Information To Be Provided to CRC by Grant Applicants and Recipients 
Sec.  38.42
    The NPRM proposes a new title for Sec.  38.38, ``Information to be 
provided to CRC by grant applicants and recipients'' and the new 
section number is 38.42. Subsection (a) requires recipients to notify 
the Director when administrative enforcement actions or lawsuits are 
filed against them on any basis prohibited under Section 188 and this 
part. Proposed Sec.  38.42(a) adds pregnancy, child birth or related 
medical conditions, transgender status, and gender identity in 
parentheses as forms of sex discrimination prohibited under this part 
and ``limited English proficiency'' in parentheticals as a form of 
national origin discrimination prohibited by this part. Pregnancy and 
gender identity have been listed as bases of sex discrimination on 
CRC's complaint form since 2014, and limited English proficiency has 
been listed on the complaint form as a form of national origin based 
discrimination since 2011. These additions are designed to make the 
information provision requirement consistent with the protected bases 
on the complaint form. In addition, the NPRM proposes removing the 
reference to grant applicants from Sec.  38.42(b). Removal of this 
reference will sharpen the focus of Sec.  38.42 on the information 
needed for compliance reviews and monitoring activities, as required 
under Sec. Sec.  38.63 and 38.65.
    Finally, the proposed rule includes the phrase ``that the Director 
considers'' in front of the word ``necessary'' in paragraph (c) and (e) 
of this section to inform recipients that the Director of CRC 
determines the information that is necessary for CRC to investigate 
complaints and conduct compliance reviews as well as to determine 
whether the grant applicant would be able to comply with the 
nondiscrimination and equal opportunity provisions of WIOA or this 
part. Proposed Sec.  38.42(e) confirms the CRC's ability to engage in 
pre-award reviews of grant applicants but does not contemplate the 
delay or denial of an award. Processes that may result in the delay or 
denial of an award to a grant applicant are addressed in Sec.  38.62.
Required Maintenance of Records by Recipients Sec.  38.43
    The NPRM proposes a new title for current Sec.  38.39, ``Required 
maintenance of records by recipients,'' and a new section number 38.43. 
Grant applicants and recipients are already required to maintain 
records under current Sec.  38.39. Proposed Sec.  38.43 adds the 
preservation of ``electronic records'' to this existing requirement. 
The rule proposes that recipients that maintain electronic records, in 
addition to hard copies, keep the electronic records for the same 
three-year period. Finally, the NPRM proposes revisions to paragraph 
(b) of this section to require preservation of records once a 
discrimination complaint or compliance review is initiated.
    In this regard, CRC interprets ``relevant'' or ``relevance'' 
broadly and expects recipients to similarly interpret relevance broadly 
when determining the documents that must be preserved. The Department 
has heard from recipients that their obligations to retain compliance 
review records were uncertain. The Department proposes including 
compliance reviews in this retention section because the same 
preservation of records is necessary for the duration of a compliance 
review as for a complaint investigation--to provide CRC with access to 
all records relevant to compliance and to ensure that recipients do not 
dispose of records to avoid a finding of noncompliance. CRC believes 
this may have been an oversight in the part 37 regulations. The 
Department welcomes comments on these proposed changes.
CRC Access to Information and Information Sources Sec.  38.44
    Proposed Sec.  38.44 generally contains the same requirements as 
current Sec.  38.40. The NPRM proposes revising the title to ``CRC 
access to information and information sources.'' In addition, it 
proposes revising paragraph (a) to require that each grant applicant 
and recipient must permit access by the Director ``or the Director's 
designee'' to premises, employees, and participants for the purpose of 
conducting investigations, compliance review, monitoring activities, or 
other similar activities outlined in this section. This change 
acknowledges that it is the Director's staff who ordinarily conducts 
these procedures on behalf of the Director.
Confidentiality Responsibilities of Grant Applicants, Recipients, and 
the Department Sec.  38.45
    Proposed Sec.  38.45 generally contains the same requirements as 
current Sec.  38.41. This rule proposes revising the title of this 
section to, ``Confidentiality responsibilities of grant applicants, 
recipients, and the Department.'' In addition, this section begins: 
``Grant applicants, recipients, and the Department must keep 
confidential to the extent possible . . . consistent with a fair 
determination of the issues.'' This small reorganization is intended to 
make this easier to read and incorporate the language at the beginning 
of this section.

Subpart C--Governor's Responsibilities To Implement the 
Nondiscrimination and Equal Opportunity Requirements of WIOA

Subpart Application to State Programs Sec.  38.50
    The NPRM proposes a new title for Sec.  38.50, ``Subpart 
application to State Programs.'' This NPRM also updates the term 
``State Employment Security Agencies'' to ``State Workforce Agencies'' 
which is used in WIOA and the proposed ETA regulations implementing 
Title I of WIOA.\183\
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    \183\ See 80 FR 20690 (April 16, 2015).
---------------------------------------------------------------------------

Governor's Oversight and Monitoring Responsibilities for State Programs 
Sec.  38.51
    The NPRM proposes a new title for Sec.  38.51, ``Governor's 
oversight and monitoring responsibilities for State Programs.'' 
Proposed Sec.  38.51 generally retains the requirements of current 
Sec.  38.51 but incorporates several subparagraphs found at current 
Sec.  38.54(d)(2)(ii)(A-C) and thus does not impose altogether new 
responsibilities.
    Proposed Sec.  38.51(a) incorporates the Governor's oversight 
responsibilities set out in current Sec.  38.51, which include ensuring 
compliance with the nondiscrimination and equal opportunity provisions 
of WIOA and this part, and negotiating, where appropriate, with a 
recipient to secure voluntary compliance when noncompliance is found 
under Sec.  38.94(b).
    Proposed Sec.  38.51(b) requires the Governor to monitor on an 
annual basis the compliance of State Programs with WIOA Section 188 and 
this part. Under current Sec.  38.54(d)(2)(ii), the requirement to 
``periodically'' monitor was ambiguous and led to infrequent 
monitoring. The Department's experience with State-conducted monitoring 
reveals inconsistent and infrequent monitoring--some States monitor the 
compliance of State Programs as infrequently as every five years. The 
proposed annual monitoring requirement is intended to: (1) Enable the 
timely identification and elimination of discriminatory policies and 
practices, thereby reducing the number of individuals impacted by 
discrimination; (2) be consistent with ETA proposed regulations 
requiring annual oversight of One-Stop Career Centers; \184\ and (3) 
establish a

[[Page 4521]]

consistent State-level practice nationwide.
---------------------------------------------------------------------------

    \184\ Id. at 20752.
---------------------------------------------------------------------------

    Proposed Sec.  38.51(b) incorporates the Governor's monitoring 
responsibilities currently required by Sec.  38.54(d)(2). Moving the 
monitoring obligations from the Methods of Administration section at 
Sec.  38.54(d)(2) to this section does not change the Governor's 
oversight responsibilities but underscores the importance of the 
Governor's monitoring responsibilities and highlights that monitoring 
is more than just a paper responsibility. By this minor reorganization, 
the Department intends to distinguish the required components of a 
Nondiscrimination Plan from the Governor's requirements for 
implementing the Nondiscrimination Plan. Section 38.51 is now the 
section that sets forth all of the Governor's monitoring and oversight 
responsibilities, which include implementation of the Nondiscrimination 
Plan. As discussed below, Sec.  38.54 sets forth all the required 
components of the Nondiscrimination Plan.
    Proposed Sec.  38.51(b) brings in three requirements that were 
previously incorporated into the Governor's Method of Administration 
required by Sec.  38.54. First, at a minimum, each monitoring review 
must include a statistical or other quantifiable analysis of records 
and data kept by the recipient under Sec.  38.41, including analysis by 
race/ethnicity, sex, limited English proficiency, age, and disability 
status. Governors are already required under Sec.  38.54(d)(2)(ii)(A) 
(Methods of Administration) to conduct this analysis during their 
monitoring reviews. Second, monitoring must also include an 
investigation of any significant differences identified in paragraph 
(b)(1) of this section in participation in the programs, activities, or 
employment provided by the recipient to determine whether these 
differences may be caused by discrimination prohibited by this part. 
This investigation must be conducted through review of the recipient's 
records and any other appropriate means, which may include interviewing 
staff, participants and beneficiaries, reviewing documents, and on-site 
review of the facility and other investigative methods. Again, this 
requirement is not new; it is set out in Sec.  38.54(d)(2)(ii)(B). 
Third, the monitoring review must include an assessment to determine 
whether the recipient has fulfilled its administrative obligations 
under Section 188 of WIOA or this part (for example, recordkeeping, 
notice and communication) and any duties assigned to it under the 
Nondiscrimination Plan. This requirement is set out in Sec.  
38.54(d)(2)(ii)(C).
    Proposed Sec.  38.51(b)(1) adds ``limited English proficiency'' to 
the list of categories of records and data that must be analyzed. This 
addition is consistent with the recipients' need to collect data to 
enable them to serve limited English proficient individuals in 
accordance with the nondiscrimination and equal opportunity provisions 
of WIOA and this part. CRC invites comment on the addition of ``primary 
language'' to the list of categories of records and data that must be 
analyzed, including whether there is a more effective method or term to 
use to determine or measure the relevant population of limited English 
proficient individuals and the language services to be provided.
Governor's Liability for Actions of Recipients the Governor Has 
Financially Assisted Under Title I of WIOA Sec.  38.52
    The NPRM proposes a new title for Sec.  38.52, ``Governor's 
liability for actions of recipients the Governor has financially 
assisted under Title I of WIOA.'' This section changes the word 
``adhered to'' to ``implemented'' in paragraph (a)(1) because it more 
accurately describes the responsibility of the Governor. In addition, 
proposed Sec.  38.52 (a)(1) changes, in title only, the term ``Methods 
of Administration'' to ``Nondiscrimination Plan.'' The new title for 
this document is more descriptive of its purpose.
Governor's Oversight Responsibility Regarding Recipients' Recordkeeping 
Sec.  38.53
    Proposed Sec.  38.53 generally retains the language of current 
Sec.  38.53. The NPRM proposes a new title for Sec.  38.53, 
``Governor's oversight responsibility regarding recipients' 
recordkeeping.''
Governor's Obligations To Develop and Implement a Nondiscrimination 
Plan Sec.  38.54
    Proposed Sec.  38.54 generally retains the language of current 
Sec.  38.54 other than the sections moved to Sec.  38.51, already 
discussed. The NPRM proposes a new title for Sec.  38.54, ``Governor's 
obligations to develop and implement a Nondiscrimination Plan.'' 
Proposed Sec.  38.54(a) requires Governors to ``establish and 
implement,'' rather than ``establish and adhere to'' a 
Nondiscrimination Plan for State programs. This section proposes to 
replace ``should'' with ``must'' in the second sentence in paragraph 
(a)(1) to require that, in states in which one agency contains both a 
State Workforce Agency (formerly a SESA) or unemployment insurance and 
WIOA Title I-financially assisted programs, the Governor must develop a 
combined Nondiscrimination Plan. The Governor is responsible for 
completion of the Nondiscrimination Plan in both instances. This change 
formalizes current practice in that every state submits one WIA Methods 
of Administration. This proposal would also eliminate unnecessary 
duplication in that most components of the Plan would be the same for 
both types of entities, and both plans would be overseen by the State 
Level EO Officer.
    The proposed rule has one minor change to paragraph (c)(1)(v) of 
this section: Changing reference to an existing section of 29 CFR part 
38 titled ``Universal Access'' to reflect its new title in this rule, 
``Affirmative Outreach.'' The NPRM adds a new paragraph (c)(2)(iv) to 
include procedures for compliance in the Nondiscrimination Plan for 
protected categories other than disability, which is addressed in Sec.  
38.54(c)(2)(iv), and was addressed in current Sec.  37.54(d)(2)(v). The 
part 38 rule did not require the Governor to include procedures to 
ensure compliance as to these protected categories. This proposal 
corrects that oversight. Proposed Sec.  38.54(c)(2)(v) adds a provision 
requiring the procedures discussed in this subsection to ensure that 
recipients comply not just with Section 504 and WIOA Section 188 and 
this part, but also with Title II of the ADA, as amended, if applicable 
to that recipient. Title II of the ADA applies only to ``public 
entities,'' which include State or local governments and any of their 
departments, agencies, or other instrumentalities.\185\
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    \185\ 42 U.S.C. 12131.
---------------------------------------------------------------------------

Schedule of the Governor's Obligations Regarding the Nondiscrimination 
Plan Sec.  38.55
    The NPRM proposes a new title to Sec.  38.55, ``Schedule of the 
Governor's obligations regarding the Nondiscrimination Plan.'' Proposed 
Sec.  38.55 generally retains the existing schedule that Governors 
follow for their WIA Methods of Administration in current Sec.  38.55. 
This section is intended to minimize the Governor's burden by allowing 
sufficient time to update the existing WIA Methods of Administration to 
comply with requirements for the WIOA Nondiscrimination Plan under this 
part. Therefore, proposed Sec.  38.55 changes paragraph (a) to require 
Governors to develop and implement a Nondiscrimination Plan consistent 
with the requirements of this part either within 180 days of the date 
on which

[[Page 4522]]

this final rule is effective or by the date determined by current Sec.  
38.55, whichever is later.
    As in current Sec.  38.55(b), proposed Sec.  38.55(b) requires the 
Governor to promptly update the Nondiscrimination Plan whenever 
necessary and submit the changes made to the Director in writing at the 
time the updates are made. This requirement ensures that the Director 
will continue to have current versions of each Governor's Plan, rather 
than notification of changes without the actual revisions, as is 
permitted under current part 38. Under both the current part 38 rule 
and proposed Sec.  38.55(a)(2), the Governor is required to submit the 
initial plan to the Director. Pursuant to proposed Sec.  38.55(c) and 
current Sec.  38.55(c), the Governor must review its plan every two 
years, determine whether changes are necessary, and, if so, make the 
changes and submit them to the Director.

Subpart D--Compliance Procedures

Evaluation of Compliance Sec.  38.60
    Proposed Sec.  38.60 retains the same language of current Sec.  
38.60, with the exception of the title and a minor technical edit. The 
NPRM proposes to change the title of Sec.  38.60 to ``Evaluation of 
compliance.'' The rule also proposes to add ``the ability to comply 
or,'' in the first sentence to explain that the goal of the pre-
approval compliance reviews of grant applicants for, and post-approval 
compliance reviews of recipients of WIOA Title I financial assistance 
is to determine ability to comply, for applicants, or compliance with, 
for recipients, with the nondiscrimination and equal opportunity 
provisions of WIOA and this part. This language is parallel to the 
language proposed in Sec.  38.25.
Authority To Issue Subpoenas Sec.  38.61
    The NPRM proposes changing the title of Sec.  38.61 to ``Authority 
to issue subpoenas,'' rather than the title of Sec.  37.61. The 
paragraph also cites to Section 183(c), the WIOA provision that 
authorizes the issuance of subpoenas, 29 U.S.C. 3243(c).

Compliance Reviews

Authority and Procedures for Pre-Approval Compliance Reviews Sec.  
38.62
    The NPRM makes several changes to the existing language of current 
Sec.  38.62 in proposed Sec.  38.62. First, the NPRM revises the title 
of Sec.  38.62 to ``Authority and procedures for pre-approval 
compliance reviews.''
    Second, the NPRM adds a new provision as paragraph (b) requiring 
that Departmental grantmaking agencies consult with the Director to 
review whether the CRC has issued a Notice to Show Cause under Sec.  
38.66(b) or a Final Determination for violating the nondiscrimination 
and equal opportunity provisions of WIOA and this part against an 
applicant that has been identified as a probable awardee. The provision 
requires that this consultation include the grantmaker's consideration 
of the current compliance status of the grant applicant if such 
applicant was already subject to the laws enforced by CRC through 
existing financial assistance. The Department has selected the Notice 
to Show Cause and Final Determination because those documents represent 
steps in the enforcement process after CRC has issued findings based on 
its investigation, the recipient has had the opportunity to submit 
information to rebut the adverse findings, and CRC has concluded after 
review of the recipient's submission that a violation exists. This 
consultation and review of compliance status is necessary for effective 
enforcement because it ensures that Department financial assistance 
will not go to grant applicants that are not in compliance, and have 
made insufficient attempts to come into compliance, with the laws that 
DOL enforces.
    Third, the NPRM adds a new paragraph (c) to Sec.  38.62 providing 
that the grantmaking agency will consider, in consultation with the 
Director, the information obtained through the consultation described 
in subsection (b), as well as any other information provided by the 
Director in determining whether to award a grant or grants. 
Departmental grantmaking agencies must consider refraining from 
awarding new grants to applicants or must consider including special 
terms in the grant agreement for entities named by the Director as 
described in subsection (b). Special terms will not be lifted until a 
compliance review has been conducted by the Director, and the Director 
has approved a determination that the applicant is likely to comply 
with the nondiscrimination and equal opportunity requirements of WIOA 
and this part.
    CRC has received feedback from recipients and advocacy 
organizations asking for clarity regarding the possible ramifications 
of the preaward review. This addition provides transparency about the 
possible consequences if an applicant or recipient is found to be 
unlikely to comply with the nondiscrimination and equal opportunity 
requirements of this part and Section 188 of WIOA.
Authority and Procedures for Conducting Post-Approval Compliance 
Reviews Sec.  38.63 and Procedures for Concluding Post-Approval 
Compliance Reviews Sec.  38.64
    Proposed Sec.  38.63 and Sec.  38.64 retain the exact same language 
of current Sec.  38.60 and Sec.  38.61, with the exception of the 
titles. The NPRM proposes a new title for Sec.  38.63 of ``Authority 
and procedures for conducting post-approval compliance reviews.'' The 
NPRM proposes as a new title for Sec.  38.64, ``Procedures for 
concluding post-approval compliance reviews.''
Authority To Monitor the Activities of a Governor Sec.  38.65
    The NPRM retains the language in paragraphs (a) and (b) of current 
Sec.  38.65. The NPRM proposes a new paragraph (c) for Sec.  38.65 that 
specifies the ways in which the Director may enforce the 
nondiscrimination and equal opportunity provisions of WIOA and this 
part regarding Governors' obligations for monitoring and oversight. 
Specifically, if the Director determines that the Governor has not 
complied with this part and Section 188 of WIOA, the Director may issue 
a Letter of Findings. The Letter must advise the Governor of the 
preliminary findings, the proposed remedial or corrective action and 
the timeframe for that action, whether it will be necessary for the 
Governor to enter into a conciliation agreement, and the opportunity to 
conciliate. If the Governor fails to take remedial or corrective 
actions or to enter into a conciliation agreement, the Director may 
follow the procedures in Sec. Sec.  38.95 and 38.96. These additional 
provisions are intended to respond to questions that the Department has 
received from stakeholders (EO Officers and other State officials) 
regarding the possible ramifications if the Governor refuses to 
participate in efforts to come into voluntary compliance or if the 
Governor fails to enter into a conciliation agreement.
    These provisions are also intended to address a gap in the existing 
regulations which did not establish enforcement procedures related to 
the Governors' monitoring obligations under the Nondiscrimination Plan, 
thus leading to the Department's inability to enforce these provisions 
when Governors do not come into compliance voluntarily. This additional 
language allows the Department to hold the Governors accountable if 
they fail to comply with their monitoring obligations. Since 2010, CRC 
has found during compliance reviews that no State has complied fully 
with its monitoring and oversight

[[Page 4523]]

responsibilities. For example, States have not conducted the data 
analysis, set forth in existing Sec.  38.54(d)(2)(ii)(A)(C), to 
determine if there is systemic discrimination. The new provisions of 
this section provide the Department with the enforcement tools to 
secure the Governors' compliance with these and similar monitoring 
obligations. We welcome comments on these proposed changes.
Notice To Show Cause Issued to a Recipient Sec.  38.66
    The NPRM proposes a new title for Sec.  38.66, ``Notice to show 
cause issued to a recipient.'' It also proposes merging existing Sec.  
38.66 and Sec.  38.67, the latter of which previously outlined the 
contents of a notice to show cause. Although the two sections were 
previously adjacent, by combining in one section when a notice to show 
cause may be issued by the Director to a recipient with the required 
contents of such a notice, the Department intends to make the show 
cause provision more comprehensive.
    The NPRM retains in proposed Sec.  38.66 most of the language in 
current Sec.  38.66 and all of the language in current Sec.  38.67. 
Paragraph (a), consistent with current Sec.  38.66, provides that the 
Director may issue a Notice to Show Cause when a recipient's failure to 
comply with the requirements of this part results in the inability of 
the Director to make a finding. This paragraph retains the three 
examples from current Sec.  38.66(a)-(c). The proposal revises the 
example in current Sec.  38.66(a), now proposed 38.66(a)(1) to state, 
``Submit requested information, records, and/or data within the 
timeframe specified in a Notification Letter issued pursuant to Sec.  
38.63,'' rather than ``within 30 days of receiving a Notification 
Letter.'' CRC has proposed this change because the Notification Letter 
contains a timeframe for response. Thus, setting out the timeframe in 
the regulations is redundant. This revision is also consistent with 
Sec.  38.63(b)(3) which permits the Director to modify the timeframe 
for response in the notification letter.
    The new language in Sec.  38.66(b) states that the Director may 
issue a Notice to Show Cause to a recipient when the Director has 
reasonable cause to believe that a recipient is failing to comply with 
the requirements of this part, after the Director has issued a Letter 
of Findings and/or an Initial Determination, and after a reasonable 
period of time has passed within which the recipient refuses to enter 
into a conciliation agreement to resolve the identified violations. The 
Department proposes this change to expand the circumstances in which 
the Director may issue a Notice to Show Cause. Under the existing 
regulations in Sec.  38.66(a), the Director could only issue a Notice 
to Show Cause when the Director had insufficient information to make a 
determination on a recipient's compliance because the recipient failed 
or refused to submit information, records and/or data in response to a 
Notification letter or during a compliance review or complaint 
investigation. This limitation meant that the Director could not use 
this tool effectively at other points in the process, after finding 
reasonable cause to believe that a violation occurred. The proposal 
seeks to use the Notice to Show Cause at this later stage because it 
has been the Department`s experience that, after issuing a letter of 
findings, the Governor or other recipients agree in principle to enter 
into a conciliation agreement that resolves the identified violations, 
but then frequently fail to respond to correspondence from the CRC 
regarding finalizing and signing the agreement. With proposed Sec.  
38.66(b), the Director could issue a Notice to Show Cause prior to 
issuing a Final Determination, providing Governors and other recipients 
another opportunity to take the corrective or remedial actions required 
by the Director to bring the recipient into compliance before 
enforcement proceedings are initiated. In this way, Sec.  38.66 
provides the States with another notice and opportunity to resolve 
violations and avoid the issuance of a Final Determination.
Methods by Which a Recipient May Show Cause Why Enforcement Proceedings 
Should Not Be Instituted Sec.  38.67
    The NPRM retains all of the existing language of current Sec.  
38.68 in Sec.  38.67 except that it proposes changing the title to 
``Methods by which a recipient may show cause why enforcement 
proceedings should not be instituted'' and removes reference to the 
letter of assurance since the Department has proposed to discontinue 
its use of this letter. See discussion below regarding the proposed 
revision of Sec.  38.96, which addresses letters of assurance.
Failing To Show Cause Sec.  38.68
    The NPRM retains almost all the language of current Sec.  38.69 in 
proposed Sec.  38.68 except that it proposes changing the title to 
``Failing to show cause.'' The NPRM also proposes to change the 
provision to state that the Director ``may,'' not ``must,'' follow the 
enforcement procedures contained in Sec. Sec.  38.94 and 38.95 if a 
recipient fails to show cause why enforcement proceedings should not be 
initiated. This revision is intended to more accurately reflect the 
Director's prosecutorial discretion in bringing matters to enforcement. 
Nothing in Section 188 compels the Director to refer for enforcement 
every violation of Section 188 or this part.

Complaint Processing Procedures

Complaint Filing Sec.  38.69
    The NPRM combines existing Sec. Sec.  38.70, 38.71 and 38.72 into 
proposed Sec.  38.69 titled ``Complaint filing,'' with revisions to the 
text. The Department proposes merging these sections to improve 
readability.
    Proposed Sec.  38.69(a) retains the language from current Sec.  
38.70 which explains that a complaint may be filed by any person or the 
person's representative, if that person believes that the complainant 
or class of persons has been discriminated against as prohibited by 
this part. Proposed subparagraph (a)(1) adds a list of the bases upon 
which a complaint may be filed--race, color, religion, sex (including 
pregnancy, child birth or related medical conditions, gender identity 
and transgender status), national origin (including limited English 
proficiency), age, disability, political affiliation or belief, 
citizenship status, or participation in any WIOA Title I-financially 
assisted program or activity. Proposed subparagraph (a)(2) adds 
retaliation as a basis for filing a complaint, consistent with the 
existing non-retaliation provision at current Sec.  38.11 and proposed 
Sec.  38.11. Proposed subparagraph (b) also includes the option of 
filing a complaint electronically in addition to U.S. Mail. Proposed 
subparagraph (c) removes reference to the Director and states that a 
complaint must be filed within 180 days. This language was removed 
because subparagraph (b) already states with whom the complaint must be 
filed.
Required Contents of Complaint Sec.  38.70
    The NPRM proposes merging current Sec. Sec.  38.73 and 38.74 into 
Sec.  38.70 titled ``Required contents of complaint'' and retains 
almost all of the language in these existing sections. The proposed 
changes in this section provide complainants the choice between filing 
complaints electronically or by hard copy, request that complainants 
provide in the complaint their email address, where available, in 
addition to their mailing address, and state that complaint forms are 
available on the Department's Web site at https://

[[Page 4524]]

www.dol.gov/oasam/programs/crc/external-enforc-complaints.htm.
Right to Representation Sec.  38.71
    The NPRM proposes to change the title of Sec.  38.75 to ``Right to 
Representation'' and renumber it as Sec.  38.71. Otherwise, it retains 
the existing language of this section.
Required Elements of a Recipient's Complaint Processing Procedures 
Sec.  38.72
    The NPRM proposes minimal additions to the language of current 
Sec.  38.76, including renumbering it as Sec.  38.72 and changing the 
title to ``Required elements of a recipient's complaint processing 
procedures.'' The proposed language retains the requirement in current 
Sec.  38.76 that recipients adopt procedures specifically to process 
complaints. The NPRM proposes adding to the procedures that the 
recipient must adopt and publish the requirement that recipients 
provide complainants a copy of the notice of rights contained in Sec.  
38.35, along with the already-required initial written acknowledgement 
of receipt of the complaint and notice of the complainant's right to 
representation. This requirement is designed to ensure that 
complainants are aware of their rights, including that they have the 
option of filing with the recipient or with CRC, and that they are 
aware of the deadlines applicable to filing a subsequent complaint with 
CRC once they file initially with the recipient. This notice is the 
same notice that the recipient is already required to post and 
disseminate pursuant to Sec.  38.35, and this change ensures that the 
notice is included in the documents provided to the complainant at this 
critical juncture. The NPRM also proposes requiring inclusion of notice 
that the complainant has the right to request and receive, at no cost, 
auxiliary aids and services, language assistance services, and that 
this notice will be translated into the non-English languages of the 
recipient's service area; this is similar to the accessibility 
requirements found at Sec.  38.34 and Sec.  38.36.
    The NPRM proposes to remove reference to ``he or she'' in this 
section as is consistent throughout the part and replace them with 
``complainant.'' The NPRM also proposes adding a new subparagraph 
(c)(1), affirmatively stating that ADR may be attempted any time after 
a written complaint has been filed with the recipient. This language 
advises complainants and recipients that ADR may be initiated very 
early on to resolve the complaint. This requirement is intended to 
encourage prompt resolution of complaints at the earliest possible 
stage of the process.
    This rule proposes changing the language in the last sentence in 
subparagraph (c)(3)(ii) to state, ``If the Director determines that the 
agreement has been breached, the complaint will be reinstated and 
processed in accordance with the recipient's procedures.'' This change 
from the language in current Sec.  38.76(c)(3)(ii) which stated: ``If 
he or she determines that the agreement has been breached, the 
complainant may file a complaint with the CRC based upon his/her 
original allegation(s), and the Director will waive the time deadline 
for filing such a complaint.'' This language change is proposed because 
the proper procedure, if the agreement reached under ADR is breached, 
is for the recipient and the complainant to return to the original 
complaint processing procedures.
Responsibility for Developing and Publishing Complaint Processing 
Procedures for Service Providers Sec.  38.73
    The NPRM proposes to retain the language from current Sec.  38.77, 
changing the title to ``Responsibility for developing and publishing 
complaint processing procedures for service providers'' for proposed 
Sec.  38.73.
Recipient's Obligations When It Determines That It Has No Jurisdiction 
Over a Complaint Sec.  38.74
    The NPRM essentially retains the language of existing Sec.  38.79 
in Sec.  38.74, but changes the title to ``Recipient's obligations when 
it determines that it has no jurisdiction over a complaint'' and 
replaces the term ``immediate'' with ``within five business days of 
making such determination'' as the time frame in which a recipient must 
notify the complainant in writing that it does not have jurisdiction. 
This change reduces ambiguity by providing a defined timeframe within 
which the recipient must notify a complainant about the recipient's 
lack of jurisdiction so that the complainant may timely pursue the 
allegations in an appropriate forum.
If the Complainant Is Dissatisfied After Receiving a Notice of Final 
Action Sec.  38.75
    Proposed Sec.  38.75 retains the language of existing Sec.  38.79, 
with the exception of the title and two minor revisions. The NPRM 
changes the title of current Sec.  38.79 to ``If the complainant is 
dissatisfied after receiving a Notice of Final Action.'' In addition, 
the Department proposes changing the first sentence from ``If, during 
the 90-day period'' to ``If the recipient issues its Notice of Final 
Action before the end of the 90-day period.'' This change states more 
clearly that this section addresses the situation where the recipient 
issues its Notice before the 90-day period ends. The Department also 
proposes changing ``his or her'' to ``the complainant's'' 
representative consistent with the changes to this part.
If a Recipient Fails To Issue a Notice of Final Action Within 90 Days 
After the Complaint Was Filed Sec.  38.76
    Proposed Sec.  38.76 retains all of the language in existing Sec.  
38.80, with the exception of the title that states ``If a recipient 
fails to issue a Notice of Final Action within 90 days after the 
complaint was filed.''
Extension of Deadline To File Complaint Sec.  38.77
    The NPRM retains current Sec.  37.81 in its entirety in proposed 
Sec.  38.77, and changes the title to ``Extension of deadline to file 
complaint.''
Determinations Regarding Acceptance of Complaints Sec.  38.78
    The NPRM retains all of the language in existing Sec.  38.82, 
except the title and two words. The proposed title of Sec.  38.78 is 
``Determinations regarding acceptance of complaints.'' The Department 
proposes to delete ``No'' at the beginning of the section in response 
to the question in the heading, because the new heading is no longer in 
question format. The Department proposes changing the word 
``determine'' to ``decide'' to distinguish the Director's decision 
whether to accept a complaint from the Director's Initial and Final 
Determinations.
When a Complaint Contains Insufficient Information Sec.  38.79
    The NPRM retains all of the language in existing Sec.  38.83, 
except for removing and replacing gender-specific pronouns and the 
title of Sec.  38.79 to ``When a complaint contains insufficient 
information.'' It also proposes adding a provision to subparagraph (a) 
stating that, if the complaint does not contain enough information ``to 
identify the respondent or the basis of the alleged discrimination, the 
timeliness of the complaint, or the apparent merit of the complaint,'' 
the Director must try to get the needed information from the 
complainant. This proposed new language specifies the circumstances 
under which the Director must try to get information from the 
complainant. In subparagraph (c) the NPRM proposes that, when the 
Director closes the complainant's file, the Director must send a 
written notice to the

[[Page 4525]]

complainant's last known address, ``email address (or other known 
method of contacting the complainant in writing.'' This change 
recognizes that there are more methods of written communication than 
mail now available.
    The NPRM makes no changes to the language of existing Sec. Sec.  
38.84-38.88 besides revising the titles and section numbers to 
Sec. Sec.  38.80-38.84. The new headings are, respectively, ``Lack of 
jurisdiction,'' ``Complaint referral,'' ``Notice that complaint will 
not be accepted,'' ``Notice of complaint acceptance,'' and ``Contacting 
CRC about a complaint.''
Alternative Dispute Resolution Sec.  38.85
    The NPRM makes some changes to existing Sec.  38.89, including 
changing it to Sec.  38.85 with the title ``Alternative dispute 
resolution.'' The Department proposes replacing reference to mediation 
with alternative dispute resolution (ADR) to encompass a broader array 
of procedures that may be used. ``The term ADR means any procedure, 
agreed to by the parties of a dispute, in which they use the services 
of a neutral party to assist them in reaching agreement and avoiding 
litigation. Types of ADR include arbitration, mediation, negotiated 
rulemaking, neutral fact-finding, and mini-trials. With the exception 
of binding arbitration, the goal of ADR is to provide a forum for the 
parties to work toward a voluntary, consensual agreement, as opposed to 
having a judge, or other authority, decide the case.'' \186\ CRC also 
notes that current Sec.  38.76, which sets out the required elements of 
a recipient's discrimination complaint processing procedures, already 
refers to ADR, not mediation, at Sec.  38.76(c).
---------------------------------------------------------------------------

    \186\ Department of Labor/Labor Relations/Alternative Dispute 
Resolution, available at https://www.dol.gov/dol/topic/labor-relations/adr.htm (accessed March 19, 2015).
---------------------------------------------------------------------------

    In addition, the NPRM proposes removing the references to ``the 
parties'' in this section, and replacing them with references to ``the 
complainant and the respondent.'' This change has been made for legal 
accuracy: the real parties in interest to a complaint alleging 
violations of WIOA Section 188 or this part by a recipient are the 
recipient/respondent alleged to have committed the violation and CRC. 
There is no private right of action under WIOA Section 188; the 
complainant stands in the position of a witness who has notified CRC of 
the existence of a potential violation.
    Proposed paragraph (b) removes the word ``issued'' from the 
sentence in current Sec.  38.89(b), ``The mediation will be conducted 
under guidance issued by the Director'' because the guidance from the 
Director on ADR may be provided informally. In addition, the NPRM 
revises paragraph (c) to state that ADR may take place at any time 
after a complaint has been filed to maximize the opportunity for 
resolution of complaints through the ADR process. Finally, the NPRM 
proposes revising paragraph (d) to state that ADR does not suspend 
investigation and complaint processes so that it is clear, that while 
ADR is taking place, CRC will continue complaint processing and 
investigation so that the complaint and evidence will not become stale 
while the complainant and recipient attempt informal resolution. CRC's 
continuing investigative activity will preclude recipients from using 
ADR as a vehicle to preclude CRC from reaching timely findings.

Complaint Determinations

Notice at Conclusion of Complaint Investigation Sec.  38.86
    The NPRM changes the title to ``Notice of conclusion of complaint 
investigation'' and the section number to 38.86. The NPRM adds a 
reference at the end of paragraph (b) to the sections of this part that 
describe the notification process described in Sec. Sec.  38.34 and 
38.36, so that the recipient, complainant and grantmaking agency are 
aware of the procedural steps that CRC will follow.
Director's Initial Determination That Reasonable Cause Exists To 
Believe That a Violation Has Taken Place Sec.  38.87
    The NPRM proposes to retain all of the existing language in Sec.  
38.91, and changes the title of Sec.  38.87 to ``Director's Initial 
Determination that reasonable cause to believe that a violation has 
taken place.''
Director's Final Determination Finding That No Reasonable Cause Exists 
To Believe That a Violation Has Taken Place Sec.  38.88
    The NPRM proposes to retain all of the existing language in Sec.  
38.92, changing the title of Sec.  38.88 to ``Director's Final 
Determination that no reasonable cause exists to believe that a 
violation has taken place.''
When the Recipient Fails or Refuses To Take Corrective Action Listed in 
the Initial Determination Sec.  38.89
    The NPRM proposes retaining the language from current Sec.  38.93 
for Sec.  38.89, changing the title to ``When the recipient fails or 
refuses to take corrective action listed in the Initial 
Determination.'' Section 38.93 states that if the recipient failed or 
refused to take the corrective action listed in the Initial 
Determination, the Department must take corrective action, which 
included referring the matter to the Attorney General, or taking such 
other action as provided by law. This proposal has been made because 
the Department has prosecutorial discretion to pursue or not pursue 
further enforcement action after issuing an Initial Determination.\187\
---------------------------------------------------------------------------

    \187\ 29 U.S.C. 3248(b)(1).
---------------------------------------------------------------------------

Corrective or Remedial Action That May Be Imposed When the Director 
Finds a Violation Sec.  38.90
    The NPRM proposes retaining the language from current Sec.  38.94 
for Sec.  38.90, changing the title to ``Corrective or remedial action 
that may be imposed when the Director finds a violation.''
Post-Violation Procedures Sec.  38.91
    The NPRM proposes retaining all of the existing language in the 
Sec.  38.95, but changes the title. The Department proposes, ``Post 
violation procedures'' as the title for Sec.  38.91. Because the 
circumstances under which a written assurance will be used has been 
revised, as discussed in Sec.  38.92, this section deletes paragraphs 
(b)(1)(iii)(C) and paragraph (b)(3)(iii), which referred to using 
``both'' a written assurance and a conciliation agreement as closing 
documents for the same set of violations. The Department proposes to 
remove the inadvertent reference to a nonexistent paragraph (d) at the 
end of paragraph (a).
 Written Assurance Sec.  38.92
    The NPRM proposes revising current Sec.  38.96 to explain the 
circumstances in which a written assurance will be used as a resolution 
document. The Department proposes retaining the title from current 
Sec.  38.96 for Sec.  38.92. Current Section 38.96 required that ``a 
written assurance must provide documentation that violations listed in 
the Letter of Findings, Notice to Show Cause or Initial Determination, 
as applicable, have been corrected.'' That provision did not adequately 
explain when a written assurance rather than a conciliation agreement 
would be the appropriate resolution document and this confusion has 
caused delay in bringing recipients into compliance. The proposed rule 
states, ``A written assurance is the resolution document used when the 
Director determines that a recipient has taken all corrective actions 
to remedy the violations specified in the Letter of Findings or

[[Page 4526]]

Initial Determination identifying the violations within fifteen 
business days after receipt of the Letter or Determination.'' This 
proposed revision is intended to reduce the protracted negotiations 
over the form of the final resolution document that have become 
commonplace over recent years.
Required Elements of a Conciliation Agreement Sec.  38.93
    The NPRM proposes to retain the language in current Sec.  38.97 for 
proposed Sec.  38.93 titled ``Required elements of a conciliation 
agreement.'' It retains current paragraph (a) and adds a new paragraph 
(b) ``Address the legal and contractual obligations of the recipient.'' 
It re-numbers current paragraph (b) as new paragraph (c), current 
paragraph (c) as paragraph (d), current paragraph (d) as paragraph (e) 
and current paragraph (f) as new paragraph (i). The NPRM proposes a new 
paragraph (g) to require that a conciliation agreement provide that 
nothing in the agreement prohibits CRC from sending it to the 
complainant, making it available to the public, or posting it on the 
CRC or the recipient's Web site. The NPRM also proposes a new paragraph 
(h) to require that a conciliation agreement provide that in any 
proceeding involving an alleged violation of the conciliation 
agreement, CRC may seek enforcement of the agreement itself and shall 
not be required to present proof of the underlying violations resolved 
by the agreement. This change brings the regulations in line with 
current practice and with other nondiscrimination enforcement agencies 
in DOL. For example, OFCCP has incorporated similar language into their 
conciliation agreements pursuant to their regulations at 41 CFR 60-
1.34(d).
    The proposal is consistent with the well-settled principle under 
Title VII case law that a conciliation agreement entered to resolve 
discrimination claims is specifically enforceable independent of a 
finding that the employer did, in fact, engage in discriminatory 
practices, so long as regular contract rules are satisfied and 
enforcement does not conflict with the purposes of Title VII.\188\ The 
courts have concluded that conciliation agreements would be rendered 
worthless as a means of securing voluntary compliance with Title VII, 
if a finding on the merits were required before any voluntary agreement 
to resolve discrimination claims could be enforced.\189\ Likewise, 
respondents that enter into conciliation agreements to resolve findings 
of discrimination or other substantive violations do so voluntarily and 
knowingly. Respondents are under no compulsion to execute conciliation 
agreements; they are free to reject the terms of settlement and have 
the matter resolved through the contested litigation. However, if a 
respondent voluntarily and knowingly accepts an offer to conciliate a 
matter, both parties, including the Government, are entitled to rely on 
the representations contained in the conciliation agreement. The 
conciliation agreement, as a contract, binds both parties and thus 
inequities would result if one or the other party was allowed to ignore 
its agreement and return to ``square one.'' \190\
---------------------------------------------------------------------------

    \188\ See, e.g., EEOC v. Safeway Stores, Inc., 714 F.2d 567 (5th 
Cir. 1983), cert. denied, 467 U.S. 1204 (1984).
    \189\ Eatmon v. Bristol Steel & Iron Works, Inc., 769 F.2d 1503, 
1509 (11th Cir. 1985); EEOC v. Henry Beck Co., 729 F.2d 301, 305 
(4th Cir. 1984); EEOC v. Safeway Stores, supra, 714 F.2d at 574.
    \190\ 62 FR 44186, Aug. 19, 1997.
---------------------------------------------------------------------------

When Voluntary Compliance Cannot Be Secured Sec.  38.94
    The NPRM proposes retaining the language in current Sec.  38.98 in 
proposed Sec.  38.94 titled ``When voluntary compliance cannot be 
secured'' and adds ``the Governor'' in paragraphs (a) and (b)(1) to the 
list of other entities--grant applicants and recipients--to which these 
provisions apply. Although the Governor is also a recipient in certain 
circumstances, these provisions add the Governor as a separate entity 
to address violations that are not based on the Governor's status as a 
recipient. As set forth in Subpart C, the Governor has additional 
obligations to conduct oversight and monitoring of WIOA Title I-
financially assisted State programs and to develop a Nondiscrimination 
Plan that are not based on the Governor's role as a recipient. The 
Governor can be found in violation of this part for failure to comply 
with those obligations.
Enforcement When Voluntary Compliance Cannot Be Secured Sec.  38.95
    The NPRM retains the language of current Sec.  38.99 in proposed 
Sec.  38.95 titled ``Enforcement when voluntary compliance cannot be 
secured.''
Contents of a Final Determination of a Violation Sec.  38.96
    The NPRM retains the language in current Sec.  38.100 in proposed 
Sec.  38.96 titled ``Contents of a final determination of a 
violation.''
Notification of Finding of Noncompliance Sec.  38.97
    The NPRM proposes to retain the language in current Sec.  38.101 in 
new Sec.  38.97 titled ``Notification of finding of noncompliance.''

Breaches of Conciliation Agreements

Notice of Breach of Conciliation Agreement Sec.  38.98
    The NPRM proposes merging and retaining the language in current 
Sec.  38.102 and Sec.  38.103 in new Sec.  38.98 titled ``Notice of 
breach of conciliation agreement.''
Contents of Notice of Breach of Conciliation Agreement Sec.  38.99
    The NPRM proposes retaining the language in current Sec.  38.104 in 
Sec.  38.99 titled ``Contents of notice of breach of conciliation 
agreement.''
Notification of an Enforcement Action Based on Breach of Conciliation 
Agreement Sec.  38.100
    The NPRM proposes retaining the language in current Sec.  38.105 in 
Sec.  38.100 titled ``Notification of an enforcement action based on 
breach of conciliation agreement.''

Subpart E--Federal Procedures for Effecting Compliance

    In describing the procedures the Department will follow in 
effecting compliance with the nondiscrimination and equal opportunity 
provisions of WIOA and this part, the Department proposes a few minor 
changes to the process it had followed in effecting compliance with the 
counterpart provisions of WIA and part 37.
Enforcement Procedures Sec.  38.110
    Proposed Sec.  38.110 generally contains the same requirements of 
current Sec.  38.110. The Department proposes as the title for this 
section, ``Enforcement Procedures,'' rather than the current heading of 
Sec.  38.110, which is in question format. The proposed rule adds 
language at the end of subsection (a)(3) stating that the Secretary may 
take such action as may be provided by law ``which may include seeking 
injunctive relief.'' This additional language is intended to provide 
transparency by advising recipients that the Secretary may seek 
corrective actions that go beyond make-whole relief, and provides an 
example of such other actions.
Hearing Procedures Sec.  38.111
    Proposed Sec.  38.111 contains the same requirements of current 
Sec.  38.111. The Department proposes as the title for this section, 
``Hearing Procedures,'' rather than using the current heading of Sec.  
38.111, which is in question format. Proposed Sec.  38.111(b)(3) 
specifies where a grant applicant or recipient must serve a copy of 
their filings under this section and substitutes ``Civil Rights and 
Labor-Management Division, Room N-2474''

[[Page 4527]]

for ``Civil Rights Division, Room N-2464'' to capture the current title 
and location of the Office of the Solicitor Division to which filings 
must be sent. Proposed Sec.  38.111(d)(2) deletes the word ``Uniform'' 
as used in current Sec.  38.111 (d)(2), ``Uniform Rules of Evidence 
issued by the Department of Labor's Office of Administrative Law 
Judges'' to reflect the current title of that rule at 29 CFR part 18.
Initial and Final Decision Procedures Sec.  38.112
    Proposed Sec.  38.112 generally contains the same requirements of 
current Sec.  38.112. The Department proposes as the title for this 
section, ``Initial and final decision procedures,'' rather than the 
heading of current Sec.  38.112, which is in question format. Proposed 
Section 38.112 is composed of one paragraph that describes Initial 
Decisions by an Administrative Law Judge and multiple paragraphs 
concerning Final Decisions and Orders by the Secretary. Proposed Sec.  
38.112 substitutes ``Administrative Review Board'' for the word 
``Secretary'' where it appears in current Sec.  38.112 paragraphs 
(b)(1), (b)(1)(i), (b)(1)(ii), (b)(1)(v), (b)(1)(vi), (b)(1)(vii)(A), 
(b)(1)(vii)(B), (b)(1)(viii), and (b)(2)(ii). The NPRM substitutes 
``Administrative Review Board'' (ARB) for the Secretary so that the 
part 38 rule accurately reflects the ARB's role in issuing final agency 
decisions in cases brought to enforce WIOA Section 188. In 1996, the 
Secretary issued Secretary's Order 2-96 creating the ARB and delegating 
to the ARB the Secretary's authority to issue final agency decisions 
under 38 enumerated statutes, among them the Comprehensive Employment 
and Training Act, 29 U.S.C. 801 et seq., and the Job Training 
Partnership Act, 20 U.S.C. 1576, predecessor statutes to WIA and WIOA. 
Secretary's Order 1-2002 included a delegation to the ARB for matters 
arising under Section 188 of the Workforce Investment Act. 67 FR 64272 
(October 17, 2002), as did Secretary's Order 02-2012, 77 FR 69376 
(November 16, 2012). These delegation orders also contain a catch-all 
provision to extend the delegation to subsequently enacted statutes or 
rules, including: ``Any laws or regulation subsequently enacted or 
promulgated that provide for final decisions by the Secretary of Labor 
upon appeal or review of decisions, or recommended Decisions, issued by 
ALJs, and any Federal law that extends or supplements unemployment 
compensation and Provides for final decisions by the Secretary of 
Labor.'' \191\ Thus, even absent a new delegation order, the ARB would 
issue final agency decisions under Section 188 of WIOA.
---------------------------------------------------------------------------

    \191\ 77 FR at 63279.
---------------------------------------------------------------------------

    The subparagraphs of proposed Sec.  38.112(b) set forth procedures 
for filing exceptions to the Administrative Law Judge's initial 
decision and order and issuance of a Final Decision and Order by the 
Department. Proposed Sec.  38.112(b)(1)(iii) deletes the sentence 
``[a]ny exception not specifically urged is waived'' from this 
subparagraph. The Department no longer believes that this is an 
accurate statement of the ARB's scope of review of initial decisions. 
The Administrative Procedure Act provides that, on appeal from or 
review of the initial decision, the agency has all the powers which it 
would have in making the initial decision except as it may limit the 
issues on notice or by rule.\192\ Where, as here, the applicable rule 
does not specify the standard of review, ``the Board is not bound by 
either the ALJ's findings of fact or conclusions of law, but reviews 
both de novo.'' \193\
---------------------------------------------------------------------------

    \192\ 5 U.S.C. 557(b).
    \193\ Masek v. The Cadle Co., ARB No.97-069, ALJ No. 1995-WPC-1 
(ARB Apr. 25, 2000) at 7 (citations omitted). See also Jones v. U.S. 
Dep't of Labor, 148 F.App'x 490, 2005 WL 2173769 (6th Cir Sept. 8, 
2005) (ARB acted within its authority in drawing its own conclusions 
based on its independent review of the evidence); Phillips v. 
Stanley Smith Security, Inc., ARB No. 98-020, ALJ No. 1996-ERA-30 
(ARB Jan. 31, 2001 (ARB reviews ALJ decisions under the ERA de novo, 
but accords special weight to an ALJ's demeanor-based credibility 
determinations.); Berkman v. U.S. Coast Guard Academy, ARB No. 98-
056, ALJ No. 1997-CAA-2 and 9 (ARB Feb. 29, 2000).
---------------------------------------------------------------------------

    Finally, proposed Sec.  38.112(b)(2)(ii) adds language providing 
that, when a Final Determination or Notification of a Breach of 
Conciliation Agreement becomes the Final Decision, the ARB may, within 
45 days, issue an order terminating or denying the grant or 
continuation of assistance or imposing appropriate sanctions not just 
for failure of the grant recipient or recipient to comply with the 
required corrective and/or remedial actions, but also for the 
Governor's failure to comply. The NPRM inserts ``the Governor'' because 
the Governor would have obligations under this part that are 
independent of his or her role as a recipient. For example, Sections 
38.50-55 impose on the Governor the obligation to conduct oversight, 
and monitor the compliance, of WIOA title I financially assisted State 
programs, and to develop and maintain a Nondiscrimination Plan for 
State programs as defined in Sec.  38.4. Proposed Sec.  
38.112(b)(2)(ii) retains the language in current Sec.  38.112(b)(2)(ii) 
that the Secretary may refer the matter to the Attorney General for 
further enforcement action. The NPRM retains the reference to the 
Secretary's role here because this referral function has not been 
delegated to the ARB.
Suspension, Termination, Withholding, Denial, or Discontinuation of 
Financial Assistance Sec.  38.113
    Proposed Sec.  38.113 contains the same requirements of current 
Sec.  38.113. The Department proposes as the title for this section, 
``Suspension, termination, withholding, denial or discontinuation of 
financial assistance,'' rather than the heading of current Sec.  
38.113, which is in question format. Consistent with the analysis set 
forth in the proposed Sec.  38.112, the Department proposes in Sec.  
38.113(c) to substitute ``Administrative Review Board'' for 
``Secretary.''
Distribution of WIOA Title I Financial Assistance to an Alternate 
Recipient Sec.  38.114
    Proposed Sec.  38.114 contains the same requirements of current 
Sec.  38.114. The Department proposes as the title for this section, 
``Distribution of WIOA Title I financial assistance to an alternate 
recipient,'' rather than the heading of current Sec.  38.114, which is 
in question format.
Post-Termination Proceedings Sec.  38.115
    Proposed Sec.  38.115 contains the same requirements of current 
Sec.  38.115. The Department proposes as the heading for this section, 
``Post-termination proceedings,'' rather than the heading of current 
Sec.  38.115, which is in question format. Consistent with the 
reasoning provided in proposed Sec.  38.112, and Sec.  38.113, the 
Department proposes in Sec.  38.115 substituting ``Administrative 
Review Board'' for ``Secretary'' throughout this section. This change 
has been made in paragraphs (c)(2) and (c)(5) of this section. 
Consistent with the reasoning provided in proposed Sec.  38.111, the 
Department proposes in Sec.  38.115 substituting ``Civil Rights and 
Labor-Management Division'' for ``Civil Rights Division'' in paragraph 
(c)(3) of this section.

Appendix to Sec.  38.9

Recipient Language Assistance Plan (LEP Plan): Promising Practices
    The proposed rule contains an Appendix that is intended to provide 
further direction as to the obligations of recipients to take 
reasonable steps to provide meaningful language access to LEP 
individuals. The proposed Appendix provides a clear framework for 
recipients that choose to develop a written LEP plan. The Appendix 
states that, while written LEP plans are not required under Section 188 
or this proposed part, development and implementation of such a plan 
has the

[[Page 4528]]

benefit of providing the recipient with a roadmap for establishing and 
documenting compliance with its LEP obligations.
    As the proposed Appendix explains, the elements of an effective 
written plan are not fixed, nor will they be the same for all 
recipients. Rather, each recipient must tailor the plan to its specific 
programs and activities, and should revise the plan, as appropriate, to 
reflect updated government guidance, the recipients' experiences, 
changes in the recipient's operations, changing demographics, and 
stakeholder feedback. Based on its recent experiences in addressing 
issues related to recipient compliance with LEP obligations, the 
Department has set forth 14 suggested elements of a successful 
recipient LEP plan.
Illustrative Applications in Recipient Programs and Activities
    The proposed Appendix also contains several examples that 
illustrate the types of reasonable steps that recipients may be 
required to take to provide meaningful access to LEP individuals. In 
the first example, an LEP individual who speaks Urdu seeks information 
about unemployment insurance from a State's telephone call center. 
Because of the nature and importance of unemployment insurance, the 
resources of the State, and the wide availability of low-cost 
commercial language services, such as telephonic oral interpretation 
services, the State must, at a minimum, provide the LEP individual with 
telephonic interpretation services to ensure meaningful access to the 
unemployment insurance program even if Urdu is a non-frequently 
encountered non-English language.
    The second example illustrates that a recipient has some 
flexibility as to reasonable steps that it may be required to take to 
provide language assistance to LEP individuals. If an LEP individual 
who speaks Tagalog requests a recipient that provides career services 
to translate a brochure about an upcoming job fair, the reasonable 
steps that the recipient must take will vary depending on whether 
Tagalog is spoken by a significant number or proportion of the 
population eligible to be served and is a language frequently 
encountered in the career services program. The recipient would be 
required to provide a written translation of vital information in the 
brochure if the above factors were answered in the affirmative, but it 
would satisfy the obligation to take reasonable steps for the recipient 
to provide an oral summary of the brochure's contents if Tagalog were 
not as commonly spoken in that service area.
    The proposed Appendix also provides direction to recipients 
regarding the provision of English language learning opportunities as 
one of the possible reasonable steps a recipient may take to provide an 
LEP individual meaningful access to its program or activity. The 
Appendix also clarifies that taking reasonable steps may be a 
collaborative process, although each recipient remains independently 
obligated to take reasonable steps. The Appendix uses the example of an 
LEP individual who learns through a One Stop Center of welding training 
offered in English that is being provided by an eligible training 
provider. In such a situation, the One Stop Center and eligible 
training provider may work together to provide meaningful access. This 
coordination may involve ensuring that the LEP individual receives 
appropriate English learning from the One Stop or from another 
organization that provides English language training at no cost to the 
individual. Depending on the circumstances, the English language 
training may be offered before or concurrently with enrollment in the 
welding class.

III. Rulemaking Analyses and Notices

A. Executive Orders 12866 (Regulatory Planning and Review) and 
Executive Order 13563 (Improving Regulation and Regulatory Review)

    Executive Order (E.O.) 12866 directs agencies, in deciding whether 
and how to regulate, to assess all costs and benefits of available 
regulatory alternatives, including the alternative of not regulating. 
E.O. 13563 is supplemental to and reaffirms E.O. 12866. It emphasizes 
the importance of quantifying present and future benefits and costs; 
directs that regulations be adopted with public participation; and, 
where relevant and feasible, directs that regulatory approaches be 
considered that reduce burdens, harmonize rules across agencies, and 
maintain flexibility and freedom of choice for the public. Costs and 
benefits shall be understood to include both quantifiable measures and 
qualitative assessments of possible impacts that are difficult to 
quantify. If regulation is necessary, agencies should select regulatory 
approaches that maximize net benefits. The Office of Management and 
Budget (OMB) determines whether a regulatory action is significant and, 
therefore, subject to review.
    Section 3(f) of E.O. 12866 defines a ``significant regulatory 
action'' as any action that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising from legal mandates, 
the President's priorities, or the principles set forth in E.O. 12866.
    Summary of the analysis. The Department provides the following 
summary of the regulatory impact analysis:
    (1) The proposed rule is a ``significant regulatory action'' under 
Section 3(f)(4) of E.O. 12866; therefore, OMB has reviewed the proposed 
rule.
    (2) The proposed rule would have a negligible net direct cost 
impact on small entities beyond the baseline of the current costs 
required by the Workforce Innovation and Opportunity Act (WIOA) program 
as it is currently implemented in regulation.
    (3) The proposed rule would not impose an unfunded mandate on 
Federal, State, local, or tribal governments as defined by the Unfunded 
Mandates Reform Act.
    In total, the Department estimates that this NPRM would have a 
first year cost of $28,250,547and second and future-year cost of $ 
9,487,711 as detailed in Table 3 and Table 4. The proposals in the NPRM 
would not create significant new costs or burdens for Governors, 
recipients, or beneficiaries. The primary administrative burden created 
for recipients in the first year would be the cost of regulatory 
familiarization, which the Department calculates to be just over $12 
million. The primary administrative burden created for Governors in the 
first year would be the cost of conducting monitoring of recipients for 
compliance with the nondiscrimination and equal opportunity provisions, 
which the Department calculates to be approximately $6.55 million. The 
other new cost burdens created for recipients in the first year would 
be: (1) The cost of pregnancy accommodations, which the Department 
calculates to be just over $100,000; (2) the cost of compliance with 
record keeping, translation, and interpretation obligations related to 
limited English proficient beneficiaries,

[[Page 4529]]

which the Department is currently unable to calculate, and about which 
the Department seeks comment; (3) the cost of updating and 
disseminating equal opportunity notices and posters, which the 
Department calculates to be approximately $4 million; (4) the cost of 
incorporating two new categories of demographic data collection on 
limited English proficiency and preferred language, which the 
Department calculates to be approximately $3.75 million; and (5) the 
cost of updating complaint processing procedures, which the Department 
calculates to be approximately $1.5 million.
    The Department was unable to quantify estimates of several 
important benefits to society due to data limitations or lack of 
existing data or evaluation findings on particular items. However, 
overall many of the proposed revisions to 29 CFR part 38 contained in 
the NPRM will improve readability and provide additional guidance to 
Governors and recipients, in several instances in response to feedback 
from stakeholders, to their benefit. For example, additional language 
in Sec. Sec.  38.28-38.31 regarding the obligations of Equal 
Opportunity Officers (EO Officers) and recipients' obligations 
regarding their EO Officers provides detailed direction that benefits 
recipients. Similarly, language in Sec.  38.92 provides additional 
detail regarding the use of written assurances in the enforcement of 
nondiscrimination and equal opportunity requirements that resolves 
confusion that recipients raised about its use. In addition, by 
including updates to the nondiscrimination provisions in Sec. Sec.  
38.7-38.17, the NPRM makes it easier for Governors and recipients to 
meet their equal opportunity and nondiscrimination obligations under 
Section 188 of WIOA because the implementing regulations contain 
provisions consistent with requirements with which they are already 
required to comply under Federal laws such as Title VI and Title VII of 
the Civil Rights Act of 1964, as amended; Title IX of the Education 
Amendments of 1972; Americans with Disabilities Act of 1990, as 
amended; and Section 504 of the Rehabilitation Act.
    The Department requests comment on the costs and benefits of this 
NPRM with the goal of ensuring a thorough consideration and discussion 
at the Final Rule stage.
1. The Need for the Regulation
    Signed by President Obama on July 22, 2014, the Workforce 
Investment and Opportunity Act (WIOA) supersedes the Workforce 
Investment Act of 1998 (WIA) as the Department's primary mechanism for 
providing financial assistance for a comprehensive system of job 
training and placement services for adults and eligible youth. Section 
188 of WIOA contains the identical provisions of Section 188 as 
appeared in WIA and prohibits the exclusion of an individual from 
participation in, denial of the benefits of, discrimination in, or 
denial of employment in the administration of or in connection with, 
any programs and activities funded or otherwise financially assisted in 
whole or in part under Title I of WIOA because of race, color, 
religion, sex, national origin, age, disability, political affiliation 
or belief, and for beneficiaries only, citizenship status, or 
participation in a program or activity that receives financial 
assistance under Title I of WIOA. Section 188(e) of WIOA requires that 
the Department issue regulations implementing Section 188.
2. Technical Update of Section 188 versus publication of a simultaneous 
NPRM
    The Department considered two possible alternatives:
    (1) To publish a Final Rule as 29 CFR part 38 implementing Section 
188 of WIOA with only technical updates to the regulations at 29 CFR 
part 37 which implements Section 188 of WIA; or
    (2) To publish the above mentioned Final Rule followed by an NPRM. 
The above mentioned Final Rule would apply until issuance of a Final 
Rule based on the NPRM. The NPRM would update part 38 consistent with 
current law and address its application to current workforce 
development and workplace practices and issues.
    The Department has considered these options in accordance with the 
provisions of E.O. 12866 and has chosen to publish this NPRM soon after 
a technically updated Final Rule implementing Section 188 of WIOA 
(i.e., alternative 2). The Department believes that the current rule 
does not reflect recent developments in equal opportunity and 
nondiscrimination jurisprudence. Moreover, procedures and processes for 
enforcement of the nondiscrimination and equal opportunity provisions 
of Section 188 have not been revised to reflect changes in the 
practices of recipients since 1999, including the use of computer-based 
and internet-based systems to provide aid, benefits, services, and 
training through WIOA Title I-financially assisted programs and 
activities. Thus, only reissuing the existing regulations with 
technical updates (i.e., alternative 1) would have the negative effect 
of continuing to impose ongoing compliance costs on recipients.
3. Analysis Considerations
    The Department derives its estimates by comparing the existing 
program baseline, that is, the program benefits and costs estimated as 
a part of the regulations implementing Section 188 of WIA, found at 29 
CFR part 37.
    For a proper evaluation of the benefits and costs of the NPRM, the 
Department explains how the newly required actions by States and 
recipients under the proposed regulations at part 38 are linked to the 
expected benefits and estimated costs. The Department also considered, 
when appropriate, the unintended consequences of the proposed 
regulations introduced by the NPRM. The Department makes every effort, 
when feasible, to quantify and monetize the benefits and costs of the 
NPRM. When the Department is unable to quantify them--for example, due 
to data limitations--the Department describes the benefits and costs 
qualitatively.
    In accordance with the regulatory analysis guidance contained in 
OMB Circular A-4 and consistent with the Department's practices in 
previous rulemakings, this regulatory analysis focuses on the likely 
consequences (benefits and costs that accrue to citizens and residents 
of the United States) of the WIOA-required NPRM.
    Table 1 presents the estimated annual number of recipients expected 
to experience an increase in level of effort (workload) due to the 
proposed language in this NPRM. These estimates are used extensively 
throughout this document to calculate the estimated costs for each 
provision. Note that several recipients are likely counted more than 
once under different categories because they receive more than one 
source of WIOA Title I financial assistance. For example, the Texas 
Workforce Commission is both a recipient of a Senior Community Service 
Employment Program Grant as well as an Adult WIOA Title I grantee. 
However, the Department decided to include them in both the ``States'' 
category of recipient and under a ``National Programs'' category to 
avoid the risk of being under-inclusive in the calculations. At the 
same time, there are entities that local workforce boards may include 
in the One-Stop delivery system, and thus, may be recipients if they 
become partners. These optional partners include the Supplemental 
Nutritional Assistance Program employment and training program, Ticket-
to-Work and the Self-Sufficiency Program of the Social Security

[[Page 4530]]

Administration. Similarly, the beneficiary estimate may be over-
inclusive because several beneficiaries are likely counted more than 
once under different categories because they receive aid, service, 
training or benefit from more than one recipient. However, the 
Department decided to include them in both the State Workforce Agencies 
category of recipient and National Programs category in an effort to be 
over-inclusive, rather than risking being under-inclusive in our 
calculations.

Table 1--Estimated Annual Number of Recipients, Beneficiaries, and Non-Federal Full-Time Employees of Recipients
----------------------------------------------------------------------------------------------------------------
                                                                                                     Estimated
                                                                                    Estimated      annual number
                                                                    Estimated     annual number   of non-federal
                           Recipients                             annual number         of           full-time
                                                                  of recipients   beneficiaries    employees of
                                                                                                    recipients
----------------------------------------------------------------------------------------------------------------
States \194\...................................................        \195\ 56
    Adult Program (Title I of WIOA)............................         (\195\)  ...............    \196\ 65,655
    Dislocated Worker Program (Title I of WIOA)................         (\195\)  ...............         (\196\)
    Youth Program (Title I of WIOA)............................         (\195\)    \197\ 197,045         (\196\)
    Wagner-Peyser Act Program (Wagner-Peyser Act, as amended by         (\195\)            \198\         (\196\)
     Title III of WIOA)........................................                       16,619,943
    Adult Education and Literacy Program (Title II of WIOA)....         (\195\)  \199\ 2,012,163    \200\ 67,293
    Vocational Rehabilitation Program..........................         (\195\)    \201\ 573,086    \202\ 68,000
    Trade Adjustment Assistance Program........................         (\195\)     \203\ 62,706         (\196\)
    Unemployment Compensation Program..........................         (\195\)  \204\ 2,451,464    \205\ 62,138
    Local Veterans' Employment Representatives and Disabled             (\195\)    \206\ 450,843     \207\ 2,700
     Veterans' Outreach Program................................
    Career and Technical Education (Perkins)...................         (\195\)            \208\         (\196\)
                                                                                      12,052,217
    Community Service Block Grants.............................         (\195\)            \209\         (\196\)
                                                                                      16,000,000
    Temporary Assistance for Needy Families (TANF).............         (\195\)  \210\ 4,417,000         (\196\)
State and Local Workforce Investment Boards....................       \211\ 580  ...............     \212\ 9,280
Job Corps Operators (i.e. national contractors)................        \213\ 18   214 215109,627    216 2173,050
Job Corps Outreach and Admissions Operators....................        \218\ 24          (\215\)         (\217\)
Job Corps national training contractors/Career Transition              \219\ 21          (\215\)         (\217\)
 Services Operators............................................
Service providers, including eligible training providers and on-   \221\ 11,400    \222\ 122,693   \223\ 439,936
 the-job training employers \220\..............................
One Stop Career Centers \224\..................................     \225\ 2,481    \226\ 864,936     \227\ 2,481
National Programs Include:
    Senior Community Service Employment Grants.................        \228\ 71     \229\ 67,814         (\196\)
    National Emergency Grants \230\............................       \231\ 125     \232\ 26,221     \233\ 9,280
    Reintegration of Ex-Offenders--Adult Grants \234\..........        \235\ 28      \236\ 6,800       \237\ 555
    H-1B Technical Skills Training Grants \238\................        \239\ 36     \240\ 22,543       \241\ 774
    H-1B Jobs and Innovation Accelerator Challenge Grants \242\        \243\ 30     \244\ 11,200       \245\ 183
    Indian and Native American Programs........................       \246\ 178     \247\ 40,102       \248\ 994
    National Farmworker Jobs Program...........................        \249\ 69     \250\ 35,192    \251\ 60,965
    YouthBuild.................................................        \252\ 82      \253\ 7,604     \254\ 2,408
    Registered Apprenticeship Program..........................    \255\ 19,259    \256\ 170,500    \257\ 85,317
                                                                ------------------------------------------------
        Total..................................................          34,458       56,321,699         881,009
----------------------------------------------------------------------------------------------------------------

     
---------------------------------------------------------------------------

    \194\ The 56 State entities are the recipients for the twelve 
programs below.
    \195\ This number includes the 50 states as well as the District 
of Columbia, American Samoa, Guam, Northern Mariana Islands, Puerto 
Rico, and U.S. Virgin Islands. These 56 entities are the recipients 
for the following programs and are thus counted only once: Adult 
Program (Title I of WIOA), Dislocated Worker Program (Title I of 
WIOA), Youth Program (Title I of WIOA), Wagner-Peyser Act Program 
(Wagner-Peyser Act, as amended by Title III of WIOA), Adult 
Education and Literacy Program (Title II of WIOA), Vocational 
Rehabilitation Program, Trade Adjustment Program, Unemployment 
Compensation Program, Local Veterans' Employment Representatives and 
Disabled Veterans' Outreach Program, Career and Technical Education 
(Perkins), Community Service Block Grants, and Temporary Assistance 
for Needy Families (TANF).
    \196\ This number is an estimate based on the average number of 
employees at state-level Department of Labor equivalents. These same 
65,655 employees account for the non-federal full-time employees in 
the following programs and are thus counted only once: Adult Program 
(Title I of WIOA), Dislocated Worker Program (Title I of WIOA), 
Wagner-Peyser Act Program (Wagner-Peyser Act, as amended by Title 
III of WIOA), Trade Adjustment Assistance Program, Career and 
Technical Education (Perkins), Community Service Block Grants, 
Temporary Assistance for Needy Families (TANF), and Senior Community 
Service Employment Grants.
    \197\ Employment and Training Administration, Workforce System 
Results: For the Quarter ending June 03, 2014, U.S. Department of 
Labor 2, https://www.doleta.gov/performance/results/pdf/workforceSystemResultsJune2014.pdf [hereinafter Workforce System 
Results] (last visited June 24, 2015).
    \198\ National--Wagner-Peyser: Program Year 2013, U.S. 
Department of Labor Employment and Training Administration 1, https://www.doleta.gov/performance/results/pdf/WagnerPeyserPY2013.pdf (last 
visited June 25, 2015).
    \199\ Office of Vocational and Adult Education, Adult Education 
and Family Literacy Act of 1998: Annual Report to Congress Program 
Year 2010-2011, U.S. Department of Education xii, https://www2.ed.gov/about/offices/list/ovae/resource/aefla-report-to-congress-2010.pdf (last visited June 24, 2015).
    \200\ Adult Education Personnel, National Reporting System 1, 
https://www.nrsweb.org/docs/NRS_Fast_Facts_508_rev.pdf (last visited 
June 24, 2015).
    \201\ Office of Special Education and Rehabilitative Services, 
Annual Report Fiscal Year 2012, U.S. Department of Education 21, 
https://www2.ed.gov/about/reports/annual/rsa/2012/rsa-2012-annual-report.pdf (last visited June 24, 2015).
    \202\ This is an estimate based on the average number of 
employees at state-level Department of Labor equivalents.
    \203\ Workforce System Results, supra note 188, at 2.
    \204\ Id.
    \205\ This is an estimate based on the average number of 
employees at state-level Department of Labor equivalents.
    \206\ Veterans' Employment & Training Service, Annual Report to 
Congress: Fiscal Year 2013, U.S. Department of Labor 9, https://www.dol.gov/vets/media/DOL-VETS-FY2013_ANNUAL_REPORT-OMB-CLEARED_10-16-14.pdf (last visited June 24, 2015). This number is for PY 2012. 
Id.
    \207\ LVER and DVOP Fact Sheet, U.S. Department of Veterans 
Affairs 1-2, https://www.benefits.va.gov/VOW/docs/LVER_DVOP_Factsheet.pdf (last visited June 24, 2015).
    \208\ Carl D. Perkins Career and Technical Education Act of 
2006: Report to Congress on State Performance Program Year 2010-
2011, U.S. Department of Education 12, https://s3.amazonaws.com/PCRN/docs/Rpt_to_Congress/Perkins_RTC_2010-11.pdf (last visited June 
24, 2015).
    \209\ Fiscal Year 2015: Justification of Estimates for 
Appropriations Committees, Administration for Children & Families 
171, https://www.acf.hhs.gov/sites/default/files/olab/fy_2015_congressional_budget_justification.pdf (last accessed June 
25, 2015).
    \210\ Welfare Indicators and Risk Factors: Thirteenth Report to 
Congress, U.S. Department of Health and Human Services A-8, https://aspe.hhs.gov/hsp/14/indicators/rpt_indicators.pdf (last visited June 
24, 2015).
    \211\ Provided by the Employment and Training Administration 
(ETA), U.S. Department of Labor, from the burden analysis contained 
in WIOA NPRM implementing Titles I and III available at https://www.federalregister.gov/articles/2015/04/16/2015-05530/workforce-innovation-and-opportunity-act [hereinafter ETA NPRM] (last visited 
June 24, 2015).
    \212\ This number is an estimate based on the average number of 
full-time employees from fourteen boards multiplied by the number of 
recipients. The fourteen boards include three from North Carolina, 
three from West Virginia, one from Virginia, three from Washington, 
three from Wisconsin, and one from Illinois.
    \213\ PY 08: U.S. Department of Labor Job Corps Annual Report, 
U.S. Department of Labor 13, https://www.jobcorps.gov/Libraries/pdf/py08report.sflb [hereinafter PY 08] (last visited June 24, 2015).
    \214\ Workforce System Results, supra note 188 at 2.
    \215\ Job Corps Operators, Job Corps Outreach and Admissions 
Operators, and Job Corps national training contractors/Career 
Transition Services Operators serve the same beneficiaries, so they 
are only counted once.
    \216\ This number is an estimate based on the assumption that 
there twenty-five employees at each of the Job Corps centers.
    \217\ Job Corps Operators, Job Corps Outreach and Admissions 
Operators, and Job Corps national training contractors/Career 
Transition Services Operators utilize the same employees, so they 
are only counted once.
    \218\ PY 08, supra note 204, at 13.
    \219\ PY 08, supra note 204, at 13.
    \220\ PY 2012 estimated, see https://www.doleta.gov/performance/results/pdf/PY2012WIATrends.pdf.
    \221\ ETA NPRM, supra note 202.
    \222\ Senior Policy Research Associates, PY 2012 WIA Trends Over 
Time, U.S. Department of Labor Employment and Training 
Administration 26, https://www.doleta.gov/performance/results/pdf/PY2012WIATrends.pdf [hereinafter WIA Trends Over Time] (last visited 
June 24, 2015).
    \223\ This number is an estimate based on the average number of 
employees at five different community colleges multiplied by 56 (the 
50 states, the District of Columbia, and American Samoa, Guam, 
Northern Mariana Islands, Puerto Rico, and U.S. Virgin Islands). One 
college each came from the following states: Alabama, North 
Carolina, Virginia, Kentucky, and Colorado.
    \224\ PY 2012 see https://www.doleta.gov/performance/results/pdf/PY2012WIATrends.pdf.
    \225\ ETA NPRM, supra note 202.
    \226\ WIA Trends Over Time, supra note 213, at 26.
    \227\ This is an estimate based on the assumption that there is 
usually one point of contact per One-Stop. See Regional, State, and 
Local Contacts, U.S. Department of Labor Employment and Training 
Administration, https://wdr.doleta.gov/contacts/ (last visited June 
24, 2015).
    \228\ Senior Community Service Employment Program, U.S. 
Department of Labor Employment and Training Administration, https://www.doleta.gov/seniors/ (last updated Apr. 18, 2014).
    \229\ Workforce System Results, supra note 188, at 2.
    \230\ PY 2012 see https://www.doleta.gov/performance/results/pdf/PY2012WIATrends.pdf.
    \231\ See Total Active National Emergency Grant Awards by State, 
U.S. Department of Labor Employment and Labor Administration, https://www.doleta.gov/neg/neg_map_data.cfm (last updated Aug. 11, 2014).
    \232\ WIA Trends Over Time, supra note 213, at 32.
    \233\ This number is an estimate based on the average number of 
full-time employees from fourteen boards. The fourteen boards 
include three from North Carolina, three from West Virginia, one 
from Virginia, three from Washington, three from Wisconsin, and one 
from Illinois.
    \234\ PY 2011 announcement, see https://www.doleta.gov/grants/pdf/sga_dfa_py_11_02_final_1_11_2012.pdf.
    \235\ Reentry Employment Opportunities (REO), Department of 
Labor Employment and Training Administration, https://www.doleta.gov/REO/trainingtowork_grantees.cfm (last accessed June 24, 2015).
    \236\ Notice of Availability of Funds and Solicitation for Grant 
Applications for Reintegration of Ex-Offenders (RExO) Adult 
Generation 5, U.S. Department of Labor Employment and Training 
Administration 6, https://www.doleta.gov/grants/pdf/sga_dfa_py_11_02_final_1_11_2012.pdf (last visited June 24, 2015).
    \237\ This number is an estimate based on the average number of 
full-time employees at grantee organizations (17) multiplied by the 
average number of full-time employees at 11 Training to Work 2 
grantees (32.64).
    \238\ PY 2011, https://www.doleta.gov/business/pdf/H-1B_TST_R1-R2_Grant_Summaries_Final.pdf.
    \239\ Overview of the H-1B Technical Skills Training (TST) 
Grants, U.S. Department of Labor Employment and Training 
Administration 1, https://www.doleta.gov/business/pdf/H-1B_TST_R1-R2_Grant_Summaries_Final.pdf (last visited June 24, 2015). This is 
the most recent data available and assumes no variation from year to 
year of total national programs, although the names of the 
individual grant programs may shift from year to year. Similar grant 
activities continue from year to year, even if they are not these 
same grants.
    \240\ Id. This number is an estimate based on the total number 
of each grantee's projections.
    \241\ This number is an estimate based on the average number of 
full-time employees at six grantees (21.5) multiplied by the number 
of recipients (36).
    \242\ 2011, https://manufacturing.gov/docs/2011-jobs-accelerator-overviews.pdf.
    \243\ Overview of the H-1B Jobs and Innovation Accelerator 
Challenge (Jobs Accelerator) Grants, U.S. Department of Labor 
Employment and Training Administration 1, https://www.doleta.gov/business/pdf/H-1B_Jobs_Accelerator_R1-R2_Project_Summaries_FINAL.pdf 
(last visited June 24, 2015).
    \244\ See The 2011 Jobs and Innovation Accelerator Challenge, 
manufacturing.gov 1, https://manufacturing.gov/docs/2011-jobs-accelerator-overviews.pdf (last visited June 24, 2015).
    \245\ This number is an estimate based on the average number of 
full-time employees at six grantees.
    \246\ FY 2015 Congressional Budget Justification, U.S. 
Department of Labor 74, https://www.dol.gov/dol/budget/2015/PDF/CBJ-2015-V1-04.pdf (last visited June 24, 2015).
    \247\ See Workforce System Results, supra note 188, at 2. This 
number was derived from adding the number of beneficiaries of the 
Indian and Native American Adult Program and the program for Indian 
and Native American Youth.
    \248\ This number is an estimate based on the assumption that 
American Indian and Alaskan Natives make up 1.6% of the total number 
of non-Federal full-time employees as with the total population.
    \249\ See National Farmworker Jobs Program, U.S. Department of 
Labor Employment and Training Administration, https://www.doleta.gov/Farmworker/html/NFJP_factsheet.cfm (last visited June 24, 2015).
    \250\ Workforce System Results, supra note 188, at 2.
    \251\ This number is an estimate based on the average number of 
full-time employees at state-level Department of Labor equivalents 
multiplied by the number of grantees.
    \252\ FY 2016 Department of Labor Budget in Brief, U.S. 
Department of Labor 14, https://www.dol.gov/dol/budget/2016/PDF/FY2016BIB.pdf (last visited June 24, 2015).
    \253\ Workforce System Results, supra note 188, at 2.
    \254\ This number is based on the average number of employees at 
twenty-three grantees multiplied by the number of grantees.
    \255\ This number was provided by the Apprenticeship Program 
Office at the Department of Labor.
    \256\ Registered Apprenticeship National Results: Fiscal Year 
2014, U.S. Department of Labor Employment and Training 
Administration, https://doleta.gov/oa/data_statistics.cfm (last 
updated Feb. 23, 2015). In FY 2014, more than 170,500 individuals 
nationwide entered the apprenticeship system. We estimate in FY 
2014, 5.9% (9,488 active female apprentices/159,773 total active 
apprentices in the Registered Apprenticeship Partners Information 
Management Data System (RAPIDS) database) of active apprentices were 
women.
    \257\ This number is an estimate based on the average number of 
paid employees per firm (4.43) multiplied by the number of 
recipients. See Statistics about Business Size (including Small 
Business) from the U.S. Census Bureau, U.S. Census Bureau, https://www.census.gov/econ/smallbus.html (last visited June 24, 2015).

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[[Page 4531]]

    Table 2, below, presents the compensation rates for the 
occupational categories expected to experience an increase in level of 
effort (workload) due to the proposed rule. The Department used mean 
hourly wage rates from the Bureau of Labor Statistics' Occupational 
Employment Statistics (OES) program for private, State and local 
employees.\258\ The Department adjusted the wage rates using a loaded 
wage factor to reflect total compensation, which includes health and 
retirement benefits. For these State and local sectors, the Department 
used a loaded wage factor of 1.55, which represents the ratio of total 
compensation to wages.\259\ The Department then multiplied the loaded 
wage factor by each occupational category's wage rate to calculate an 
hourly compensation rate. The Department used the hourly compensation 
rates presented in Table 2 extensively throughout this document to 
calculate the estimated labor costs for each provision. This analysis 
uses the wages of managers and computer programmers and the Federal 
minimum wage for beneficiaries. Throughout this analysis, the 
Department assumes Equal Opportunity Officers (EO Officers), at

[[Page 4532]]

both the state and local level, are managers. This assumption is based 
upon our experience with recipients combined with the proposed language 
in the NPRM in which the Department states that the EO Officer must 
report directly to the Governor or the chief operating officer or 
equivalent of the recipient.\260\ Further, the Department is aware that 
administrative support workers may perform some of the functions where 
the need for computer programmers is indicated. However, since there is 
currently no data to indicate the proportion of computer programmer 
versus administrative support staff that would be used for the various 
functions, this analysis uses the wages for computer programmers in 
estimating the NPRM costs, thereby providing an upper-bound of cost for 
these functions. The beneficiary wage rate in Table 2 is used in this 
document to calculate the estimated costs to beneficiaries throughout 
this document. Throughout this analysis, the Department assumes that 
beneficiaries would be paid at least the Federal minimum wage.
---------------------------------------------------------------------------

    \258\ https://www.bls.gov/oes/current/oes_nat.htm.
    \259\ Discerning the number of State and local-sector employees 
and private-sector employees at the local level is difficult; 
therefore, the CRC used the State and local-sector loaded wage 
factor (1.55) instead of the private-sector wage factor (1.42) for 
all employees to avoid underestimating the costs.
    \260\ See proposed Sec. Sec.  38.28-38.31.
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    The Department invites comments regarding data sources for the 
wages and the loaded wage factors that reflect employee benefits used 
in the analysis as well as other assumptions used in calculating burden 
and costs.
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    \261\ BLS OES, May 2014, 11-1021 General and Operations Managers 
(https://www.bls.gov/oes/current/oes111021.htm).
    \262\ BLS OES, May 2014, 15-1131 Computer Programmers (https://www.bls.gov/oes/current/oes151131.htm).
    \263\ This is the current Federal minimum wage. 29 U.S.C. 
206(a)(1)(C).

                                Table 2--Calculation of Hourly Compensation Rates
----------------------------------------------------------------------------------------------------------------
                                                                                                      Hourly
                            Position                                Mean hourly     Loaded wage    compensation
                                                                       wage           factor           rate
                                                                               A               B       C = A x B
----------------------------------------------------------------------------------------------------------------
Managers \261\..................................................          $56.35            1.55          $87.34
Computer Programmers \262\......................................           39.75  ..............           61.61
Beneficiaries \263\.............................................            7.25  ..............            7.25
----------------------------------------------------------------------------------------------------------------

4. Subject-by-Subject Benefit-Cost Analysis
    The Department's analysis below covers the expected impacts of the 
following proposed provisions of the WIOA NPRM against the baseline of 
practice under WIA Section 188 and implementing regulations at part 37.
    The Department emphasizes that many of the NPRM provisions are also 
existing requirements under WIA. For example, 29 CFR 38.5 prohibits 
recipients from excluding 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 WIOA Title I-financially 
assisted program or activity on the basis of race, color, religion, 
sex, national origin, age, disability, political affiliation or belief, 
and for beneficiaries only, citizenship status or participation in any 
WIOA Title I-financially assisted program or activity. The NPRM retains 
these requirements, but revises the language to make it easier to read, 
and also provides separate sections in the rule defining discrimination 
based on national origin, sex, and citizenship status to aid recipients 
in meeting their obligations.\264\ Accordingly, this regulatory 
analysis focuses on ``new'' benefits and costs that can be attributed 
to revisions of existing obligations and new requirements contained in 
this NPRM. Much of WIA's infrastructure and operations are carried 
forward under the WIOA and therefore are not considered ``new'' cost 
burdens under this proposed rulemaking.
---------------------------------------------------------------------------

    \264\ See 29 CFR 38.9, 38.7, and 38.11.
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Request for Comments
    This NPRM implements the nondiscrimination and equal opportunity 
provisions of Section 188 of WIOA, and requests comments about the 
burden and costs associated with this NPRM including from: State and 
local governments, public interest groups, current and potential grant 
applicants for and recipients of WIOA Title I-federal financial 
assistance (particularly current and potential providers of training 
services), current and potential beneficiaries of such Federal 
financial assistance, and the public.
Discussion of Impacts
    In this section, the Department presents a summary of the costs 
associated with the new requirements of the regulations.
    The NPRM proposes revising 29 CFR part 38, issuing new regulations 
that set forth the requirements that recipients must meet in fulfilling 
their obligations under Section 188 of WIOA to ensure nondiscrimination 
and equal opportunity in WIOA Title I-federally assisted programs, 
services, aid, and activities.
    There will be approximately 34,458 recipients of WIOA Title I 
federal financial assistance annually who will serve approximately 
56,321,699 beneficiaries annually with approximately 881,009 non-
Federal employees of recipients annually based on our informed 
estimates.\265\
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    \265\ See Table 1 for a breakdown of these numbers.
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Cost of Regulatory Familiarization
    Agencies are required to include in the burden analysis the 
estimated time it takes for recipients to review and understand the 
instructions for compliance.\266\
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    \266\ See 5 CFR 1320.3(b)(1)(i).
---------------------------------------------------------------------------

    Based on its experience with recipients' compliance with the laws 
the Civil Rights Center (CRC) enforces and the mandate of the existing 
and revised regulations that each recipient has an EO Officer (see 29 
CFR 38.28 and 38.29), CRC believes that EO Officers at each recipient 
will be responsible for understanding or becoming familiar with the new 
requirements. Therefore, the Department estimates that it will take 4 
hours for the EO Officer at each recipient to read the rule. 
Consequently, the estimated burden for rule familiarization for these 
managers is 137,832 hours (34,458 x 4 hours). The Department calculates 
the total estimated cost as $12,038,247 (137,832 x $87.34/hour).\267\
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    \267\ Throughout this proposed rule, the Department assumes that 
EO Officers are managers.
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    The following is a description of additional costs and burdens as a 
result of this NPRM. It follows the organization of the NPRM for ease 
of reference.

[[Page 4533]]

Subpart A--General Provisions

Discrimination Prohibited Based on Pregnancy Sec.  38.8
    The rule proposes a new Sec.  38.8 titled, ``Discrimination 
Prohibited Based on Pregnancy.''
    The language in the NPRM requires recipients in certain situations 
to provide reasonable accommodations or modifications to a pregnant 
applicant or participant who is temporarily unable to participate in 
some portions of a WIOA Title I-financially assisted training program 
or activity because of pregnancy, childbirth, and/or related medical 
conditions, when such accommodations or modifications are provided, or 
are required to be provided, by a recipient's policy or by other 
relevant laws, to other applicants or participants not so affected but 
similar in their ability or inability to participate.
    To determine the burden of this accommodation provision, the 
Department estimated the number of beneficiaries of WIOA Title I-
financially assisted programs and activities and the number of 
employees of recipients of WIOA Title I-financially assisted programs 
who may need an accommodation during pregnancy in a year. No specific 
data sets detail the characteristics of beneficiaries and employees of 
WIOA Title I-financially assisted programs or activities relating to 
pregnancy. Thus, the Department relied on the data sets available from 
the Employment and Training Administration for beneficiaries of WIOA 
Title I-financially assisted training programs, including the Job Corps 
Program, and estimated the number of employees of recipients and the 
data sets available for the general population and general labor 
force.\268\ The Department believes that the characteristics of the 
general labor force are similar to the WIOA Title I-financially 
assisted workforce.
---------------------------------------------------------------------------

    \268\ Note that the analysis used is modeled after that used by 
OFCCP in its Sex Discrimination NPRM issued on January 30, 2015 at 
80 FR 5246.
---------------------------------------------------------------------------

    Not every pregnant employee of a recipient in the WIOA Title I-
financially assisted workforce will require an accommodation that might 
involve more than a de minimis cost. In fact, the Department believes 
most will not. Many will have no medical condition associated with 
their pregnancies that require such accommodation. Providing light duty 
or accommodations for pregnancy generally involves adjusting work 
schedules or allowing more frequent breaks, both of which the 
Department believes would incur little to no additional cost in most 
cases. However, for those who do have such conditions, the positions 
held by employees or training opportunities that beneficiaries may 
participate in that require such accommodation generally involve 
physical exertion or standing; such positions are likely to be found in 
the job categories of craft workers, operatives, laborers, and service 
workers. The majority of employees of recipients and beneficiaries of 
WIOA Title I-financial assistance will not be undertaking employment or 
training requiring accommodations for pregnancy related medical 
conditions.
    Similarly, only beneficiaries who participate in the job training 
opportunities for occupations that require physical exertion or 
standing will require accommodations. For example, the number of women 
who are pregnant of the individuals who are beneficiaries of 
unemployment insurance will not need accommodations as services are 
obtained in large part electronically. As stated above, providing light 
duty or accommodation for pregnancy involves adjusting schedules or 
allowing more frequent breaks at little or no additional cost. However, 
a small percentage of the adult women who will annually receive 
training from eligible training providers, on-the-job training programs 
or Registered Apprenticeship programs and a small percentage of the 
female students who will receive Job Corps Center services annually 
will participate in training opportunities that may require physical 
exertion or standing for long periods of time and may need 
accommodations. The Department estimates that of the women who are 
employees of recipients or participants in training programs or in Job 
Corps Centers, 21 percent work in or are in training for job categories 
likely to require accommodations that might involve more than a de 
minimis cost.\269\
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    \269\ Note that the analysis used is modeled after that used by 
OFCCP in their Sex Discrimination NPRM issued on January 30, 2015 at 
80 FR 5246, 5248. OFCCP based this estimation on data from the 
Employer Information Report EEO-1. See 80 FR 5246, 5262.
---------------------------------------------------------------------------

    Because these data do not indicate gender demographics, the 
Department used data from the Bureau of Labor Statistics that indicate 
that 47 percent of the workforce is female.\270\ Therefore, the 
Department estimates that 57,666 (122,693 x .47) adult women are 
beneficiaries of eligible training providers and on the job training 
employers annually.\271\ In addition, the Department estimates that 
10,060 (170,500 x .059) adult women were beneficiaries of Registered 
Apprenticeship programs annually.\272\ Moreover, the Department 
estimates that there are 43,851 girls and women who are annual 
beneficiaries of the Job Corps program (109,627 x .40).\273\ In 
addition, the Department estimated the number of individuals employed 
by recipients of WIOA Title I financial assistance to be 528,303 non-
Federal employees of eligible training providers and on-the-job 
training programs, Registered Apprenticeship programs, and Job Corps 
Centers. (439,936 + 85,317 + 3,050). Because these data do not indicate 
gender demographics, the Department again used data from the Bureau of 
Labor Statistics that indicate that 47 percent of the workforce is 
female.\274\ Using these assumptions there are 248,302 (528,303 x .47) 
adult women non-Federal employees of recipients.
---------------------------------------------------------------------------

    \270\ Women in the Labor Force: A Databook, BLS Reports, 
available at https://www.bls.gov/cps/wlf-databook-2012.pdf (last 
accessed Oct. 6, 2014).
    \271\ Provided by the Employment and Training Administration 
(ETA), U.S. Department of Labor, from the burden analysis contained 
in WIOA NPRM implementing Titles I and III available at https://www.federalregister.gov/articles/2015/04/16/2015-05530/workforce-innovation-and-opportunity-act [hereinafter ETA NPRM] (last visited 
June 24, 2015).
    \272\ 5.9 percent of active beneficiaries in the Registered 
Apprenticeship program in 2014 were female. Registered 
Apprenticeship Partners Information Management Data System (RAPIDS) 
managed by Department of Labor staff only.
    \273\ Forty percent of the students benefiting from Job Corps 
programs annually are girls and young women. See https://www.jobcorps.gov/libraries/pdf/who_job_corps_serves.sflb.
    \274\ Women in the Labor Force: A Databook, BLS Reports, 
available at https://www.bls.gov/cps/wlf-databook-2012.pdf (last 
accessed Oct. 6, 2014).
---------------------------------------------------------------------------

    Based on these data, in the following paragraphs, the Department 
estimates the approximate number of beneficiaries and employees in (1) 
eligible training provider programs and on-the-job training programs, 
(2) Job Corps Centers and (3) Registered Apprenticeship Programs who 
are pregnant in a given year. Following the analysis adopted by the 
Office of Federal Contract Compliance Programs (OFCCP) to calculate 
similar costs, the Department turned to data from the U.S. Census 
(Census). U.S. Census American Fact Finder does not report on 
pregnancy, but does report on births. Census data also shows whether 
the mother was in the labor force. The definition of labor force used 
by Census includes individuals in the civilian labor force who are 
employed or unemployed, and the term unemployed, as used by Census, 
includes those who were actively looking for work during the last four 
weeks and were available to accept a job. The Department determined 
that this number would be the best data

[[Page 4534]]

available to use to estimate the percentage of participants in programs 
and activities receiving financial assistance from Title I of WIOA as 
well as employees of WIOA Title I-financially assisted programs and 
activities. As the Department believes these are the best data 
available, the Department used the ratio of births among working and 
non-working mothers to determine the pregnancy rate of women in the 
workforce. Thus, the Department determined that the pregnancy rate for 
women in the workforce is approximately 61 percent of the rate for 
women in the general population, translating to a pregnancy rate of 6.7 
percent of women who are beneficiaries of WIOA Title I-financially 
assisted programs and activities and employees of WIOA Title I-
financially assisted programs and activities.\275\
---------------------------------------------------------------------------

    \275\ U.S. Census Bureau, American Fact Finder, Women 16 to 50 
Years Who Had a Birth in the Past 12 Months by Marital Status and 
Labor Force Status, 2009 to 2011 American Community Survey 3-Year 
Estimates, available at https://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_11_3YR_B13012&prodType=table (last 
accessed Feb. 12, 2015). The data table reports birth rates for 
women in the labor force at 5.1 percent, compared to women not in 
the labor force at 8.4 percent. Comparing the two rates (5.1 percent 
to 8.4 percent), the birth rate of women in the labor force was 61 
percent that of women not in the labor force. Therefore, multiplying 
the pregnancy rate among women of working age, 10.9 percent, by 61 
percent results in a 6.7 percent pregnancy rate.
---------------------------------------------------------------------------

Training Program Beneficiaries

    As calculated above, approximately 57,666 women annually 
participate in eligible training provider or on-the-job training 
provider programs that receive WIOA Title I financial assistance. Of 
this number, using the pregnancy rate data above, 3,864 (57,666 x .067) 
women might be pregnant annually. Of this number, the Department 
estimates that no more than 21 percent, or 811 women (.21 x 3,864), 
would be participating in job training categories likely to require 
accommodations that might involve more than a de minimis cost.

Registered Apprenticeship Beneficiaries

    As calculated above, approximately 10,060 women annually benefit 
from Registered Apprenticeship programs. Of this number, using the 
pregnancy rate data above, 674 (10,060 x .67) women might be pregnant 
annually. Of this number, the Department estimates that no more than 21 
percent, or 142 women (.21 x 674), would be participating in job 
training categories likely to require accommodations that might involve 
more than a de minimis cost.

Job Corps Program Beneficiaries

    Job Corps does not keep data on the percentage of students who are 
pregnant. The Job Corps program serves youth and young adults between 
the ages of 16 and 24.\276\ Forty percent of Job Corps students or 
approximately 43,851 are female.\277\ Applying the .067 rate of 
pregnancies used above to all female Job Corps students approximately 
2,938 of them may become pregnant annually (43,851 x .067). The Job 
Corps Program has three stages through which participants move: Career 
Preparation Period, Career Development Period, and Career Transition 
Period. Not all of those students will be in the Career Development 
Period of their Job Corps Center experience, which is the stage when 
they would participate in technical training and most need 
accommodations. The Department estimates that at any given time, no 
more than a third of students are in the Career Development Period, so 
approximately 970 (2,938 x .33) pregnant young women would be in this 
part of their educational experience annually. Of this number, the 
Department estimates that no more than 21 percent would be 
participating in job training that requires physical exertion or 
standing for long periods of time, so at most 204 (970 x .21) Job Corps 
students may be participating in job training categories likely to 
require accommodations that might involve more than a de minimis cost.
---------------------------------------------------------------------------

    \276\ Job Corps Eligibility Information available at https://www.jobcorps.gov/AboutJobCorps/program_design.aspx.
    \277\ Workforce System Results, for the Quarter ending June 30, 
2013, ETA, DOL. Annual data for the four quarters ending June 2013. 
Includes the number of students active on the start date, number of 
students enrolled during the timeframe, number of graduates 
separated prior to the start date and in the placement service 
window during the timeframe, and number of former enrollees 
separated prior to the start date and in the placement service 
window during the timeframe.
---------------------------------------------------------------------------

Non-Federal Employees of Recipients

    The Department determined that there are approximately 528,303 non-
Federal employees who work for recipients of training programs, Job 
Corps Programs and Registered Apprenticeships. Because these data do 
not indicate gender demographics, CRC used data from the Bureau of 
Labor Statistics that indicate that 47 percent of the workforce is 
female.\278\ Since approximately 248,302 of the employees of recipients 
are women, 16,636 (248,302 x .067) may be pregnant annually based on 
the data provided above. Since the majority of the employees of 
recipients have office jobs that do not require physical exertion or 
standing, the Department anticipates that no more than 21 percent,\279\ 
or 3,494 women (.21 x 16,636) of these pregnant employees who are 
trainers at One Stop Career Centers or at Job Corps Centers, may be 
participating in job training categories likely to require 
accommodations that might involve more than a de minimis cost.
---------------------------------------------------------------------------

    \278\ Women in the Labor Force: A Databook, BLS Reports, 
available at https://www.bls.gov/cps/wlf-databook-2012.pdf (last 
accessed Oct. 6, 2014) .
    \279\ See 80 FR 5262 (January 30, 2015).
---------------------------------------------------------------------------

    Therefore, a total of 4,651 women (811 + 142 + 204 + 3,494) who are 
beneficiaries or non-Federal employees of WIOA Title I-financially 
assisted programs may be participating in job training categories 
likely to require accommodations that might involve more than a de 
minimis cost.

Limited Need for Accommodations

    Reports from NIH show that the incidence of medical conditions 
during pregnancy that require accommodations ranges from 0.5 percent 
(placenta previa) to 50 percent (back issues).\280\ Thus, the 
Department estimates that of the approximately 4,651 (811 job training 
beneficiaries + 142 Registered Apprenticeship beneficiaries + 204 Job 
Corps beneficiaries + 3,494 non-Federal employees of recipients) women 
beneficiaries and employees in positions that may require physical 
exertion or standing according to our previous calculations, 50 percent 
(2,326) may require some type of an accommodation or light duty.\281\
---------------------------------------------------------------------------

    \280\ S. Malmqvist et. al., Prevalence of low back and pelvic 
pain during pregnancy (Abstract), J. Manipulative Physiological 
Therapy, National Center for Biotechnology Information (2012), 
available at https://www.ncbi.nlm.nih.gov/pubmed/22632586 (last 
accessed Oct. 6, 2014).
    \281\ This is the same data used by OFCCP in Discrimination on 
the Basis of Sex, Proposed Rule 80 FR 46 (January 30, 2015).
---------------------------------------------------------------------------

    The types of accommodations needed during pregnancy also vary. They 
range from time off for medical appointments and more frequent breaks 
to stools for sitting and assistance with heavy lifting.\282\ Reports 
from the W.K. Kellogg Foundation on women's child bearing experiences 
and the National Women's Law Center on accommodating pregnant workers 
state that the costs associated with accommodating pregnant workers are 
minimal and generally involve schedule adjustments or modified work

[[Page 4535]]

duties.\283\ One study found that when faced with a pregnancy-related 
need for accommodation, between 62 percent and 74 percent of pregnant 
women asked their employer to address their needs. The study further 
found that between 87 percent and 95 percent of the pregnant women who 
requested an adjustment to their work schedule or job duties worked for 
employers that attempted to address those requests. The study 
specifically found that 63 percent of pregnant women who needed a 
change in duties such as less lifting or more sitting asked their 
employers to address that need, and 91 percent of those women worked 
for employers that attempted to address their needs.\284\ Based on this 
study, the Department believes that most employers and training 
providers do provide some form of accommodation to employees and 
participants when requested.
---------------------------------------------------------------------------

    \282\ Unlawful Discrimination Against Pregnant Workers and 
Workers with Caregiving Responsibilities: Meeting of the U.S. Equal 
Emp. Opportunity Comm'n 8 (Feb. 15, 2012) (statement of Dr. Stephen 
Benard, Professor of Sociology, Indiana University), available at 
https://www.eeoc.gov/eeoc/meetings/2-15-12/transcript.cfm (last 
accessed Oct. 6, 2014).
    \283\ National Women's Law Center & A Better Balance, It 
Shouldn't Be a Heavy Lift: Fair Treatment for Pregnant Workers 12 
(2013), available at https://www.nwlc.org/sites/default/files/pdfs/pregnant_workers.pdf (last accessed Dec. 30, 2014).
    \284\ Eugene Declerq et al., W.K. Kellogg Foundation, Listening 
to Mothers III: New Mothers Speak Out, 36, (2013).
---------------------------------------------------------------------------

    To determine the cost of accommodation or light duty imposed by the 
proposed rule, the Department considered the types of light duty or 
accommodations needed for employees of recipients of WIOA Title I-
financial assistance and participants in WIOA Title I-financially 
assisted programs and activities. Generally, providing light duty or 
accommodation for pregnancy involves adjusting work schedules or 
allowing more frequent breaks. The Department believes that these 
accommodations would incur little to no additional cost.
    Additional accommodations may involve either modifications to work 
environments (providing a stool for sitting rather than standing) or to 
job duties--for example, lifting restrictions. In making such an 
accommodation, recipients of WIOA Title I financial assistance have 
discretion regarding how they would make such modifications. For 
example, a recipient may provide an employee with an existing stool, or 
a recipient may have other employees assist when heavy lifting is 
required. To determine the cost of such accommodations, the Department 
referred to the Job Accommodation Network (JAN). JAN reports that the 
average cost of accommodation is $500.\285\
---------------------------------------------------------------------------

    \285\ Beth Loy, Job Accommodation Network, Workplace 
Accommodations: Low Cost, High Impact, available at https://askjan.org/media/lowcosthighimpact.html (last updated Sept. 1, 2014) 
(last accessed Oct. 6, 2014).
---------------------------------------------------------------------------

    As stated above, 63 percent of pregnant women who needed a change 
in duties related to less lifting or more sitting requested such an 
accommodation from their employers. Thus, the Department estimates that 
1,465 women (2,326 x .63) who may require accommodations would have 
made such a request, and 91 percent, or 1,333 of those requests (1,465 
x .91) would have been addressed. In addition, the Department assumes 
that of the remaining 37 percent (2,326 x .37 = 861 women) who did not 
make such a request for a pregnancy accommodation, had they made the 
request, the needs of 91 percent of them (861 x .91 = 784 women) would 
also have been addressed. Thus, this proposed rule would require 
recipients of WIOA Title I financial assistance to accommodate the 
remaining 9 percent of pregnant women whose needs were not addressed. 
Therefore, the Department estimates that the cost, accounting for those 
pregnant women who made requests and those additional women who could 
make requests, would be $104,500 ((1,465 - 1,333 = 132) + (861 - 784 = 
71) = 209 x $500). This is a first year cost and a recurring cost.
    The Department believes that this cost estimate may be an 
overestimate because recipients with 15 or more employees are covered 
by a similar requirement found in Title VII and 36 states have 
requirements that apply to employers with fewer than 15 employees.\286\ 
Although the Department seeks comments on all aspects of its 
calculation of burden and costs, the agency specifically seeks comments 
on the burden associated with providing accommodations to pregnant 
employees.
---------------------------------------------------------------------------

    \286\ State laws covering employers with one employee: Alaska, 
Colorado, Hawaii, Maine, Michigan, Minnesota, Montana, New Jersey, 
North Dakota, Oklahoma, Oregon, South Dakota, Vermont, and 
Wisconsin; state laws covering employers with two employees: 
Wyoming; state laws covering employers with three employees: 
Connecticut; state laws covering employers with four employees: 
Delaware, Iowa, Kansas, New Mexico, New York, Ohio, Pennsylvania, 
and Rhode Island; state laws covering employers with five employees: 
California and Idaho; state laws covering employers with six 
employees: Indiana, Massachusetts, Missouri, New Hampshire, and 
Virginia; state laws covering employers with eight or more 
employees: Kentucky, Tennessee, and Washington; state laws covering 
employers with nine or more employees: Arkansas; state laws covering 
employers with 12 or more employees: West Virginia. In addition, the 
District of Columbia and Puerto Rico's laws cover employers with one 
employee.
---------------------------------------------------------------------------

Discrimination Prohibited Based on National Origin, Including Limited 
English Proficiency Sec.  38.9
    The NPRM proposes language regarding the limited circumstances when 
a limited English proficient (LEP) individual may elect to use their 
own interpreter and how that choice must be documented by the 
recipient. In Sec.  38.9(f)(2), the proposed rule states that an 
accompanying adult may interpret or facilitate communication when ``the 
information conveyed is of minimal importance to the services to be 
provided or when the LEP individual specifically requests that the 
accompanying adult provides language assistance, the accompanying adult 
agreed to provide assistance, and reliance on that adult for such 
assistance is appropriate under the circumstances.'' The NPRM goes on 
to state that, ``when the recipient permits the accompanying adult to 
provide such assistance, it must make and retain a record of the LEP 
individual's decision to use their own interpreter.'' There is 
currently no data available regarding the number of LEP individuals who 
are beneficiaries of recipients and the Department cannot determine how 
often an LEP individual will request that the accompanying adult 
provide language assistance, the accompanying adult agrees to provide 
it, and when reliance on that adult is appropriate. However, the 
Department estimates that all of these conditions will be met 
infrequently, creating a de minimis cost. Therefore, the Department 
seeks comment on any potential sources of data on the number of LEP 
individuals who are beneficiaries of recipients who would decide to use 
their own interpreter.
    In addition, provisions are included in Sec.  38.9(g) regarding a 
recipient's obligations to provide translation of vital information. 
Section 38.9(g)(1) addresses that obligation for languages spoken by a 
significant number or portion of the population eligible to be served, 
or likely to be encountered, stating that ``a recipient must translate 
vital information in written materials into these languages and make 
the translations readily available in hard copy, upon request, or 
electronically such as on a Web site.'' Importantly, written training 
materials offered or used within employment-related training programs 
as defined under this part are excluded from these requirements. 
Section 38.9(g)(2) addresses the obligations of recipients for 
languages not spoken by a significant number or portion of the 
population eligible to be served, or likely to be encountered, stating 
that ``a recipient must make reasonable steps to meet the 
particularized language needs of LEP individuals who seek to learn 
about, participate in, and/or access the aid,

[[Page 4536]]

benefit, service or training that the recipient provides.'' This 
section also allows that vital information may be conveyed orally if 
not translated. These requirements are contained in a DOL LEP guidance 
issued in 2003 \287\ and regulations implementing Section 188 of WIA 
contained at 29 CFR 35.37, which address a recipient's language access 
requirements. However, their more detailed inclusion in the regulations 
is new. The Department is aware that, although these obligations are 
not new to recipients, not all recipients currently provide language 
access consistent with these proposed requirements; as a result, many 
recipients may incur cost associated with the burden to come into 
compliance with these provisions. The Department cannot determine with 
accuracy based on its enforcement experiences how many recipients are 
currently meeting their obligations as to LEP individuals, nor is it 
aware of data from which to base a calculation for these costs. 
Similarly, the Department is unable to determine what information each 
recipient will determine is vital, and thus needs to be translated, or 
what language(s) they would be translated into, because both factors 
are based on individual recipient assessments. The Department seeks 
comment on the current compliance status of recipients as to their LEP 
obligations, the availability of data related to the languages for 
which translations would be required, and a method by which to estimate 
the quantity of vital information that recipients generally will need 
to translate to be in compliance. Furthermore, as discussed in Sec.  
38.9, the Department has not defined ``significant number or portion of 
the population,'' and is considering other methods of determining when 
the obligations related to that determination would be triggered in 
this section. The Department welcomes comments on ways to calculate any 
new burden and costs incurred as a result of these proposed provisions.
---------------------------------------------------------------------------

    \287\ 68 FR 32290, May 29, 2003.
---------------------------------------------------------------------------

Subpart B--Recordkeeping and Other Affirmative Obligations of 
Recipients

Recipients' Obligations To Publish Equal Opportunity Notice Sec.  38.36
    The NPRM proposes changes to the specific language provided by the 
Department for recipients to use in the equal opportunity notice and 
poster that they are required to post prominently in physical locations 
and on the recipient's Web site.\288\ The changes state that ``sex 
discrimination includes pregnancy, childbirth and related medical 
conditions, transgender status, and gender identity; and that national 
origin discrimination may include limited English proficiency.'' \289\ 
This notice and other notices throughout this NPRM are required to be 
provided in English as well as appropriate languages other than 
English. The Department will make translations of this notice available 
to recipients in the ten most frequently spoken languages in the U.S. 
other than English. The NPRM also proposes language in the poster 
stating that the CRC will accept complaints via U.S. Mail and email at 
an address provided on the CRC's Web site.\290\
---------------------------------------------------------------------------

    \288\ Proposed 29 CFR 38.35; 29 CFR 38.36(a)(1).
    \289\ Proposed 29 CFR 38.35.
    \290\ Id.
---------------------------------------------------------------------------

    The NPRM requires that the notice be placed in employee and 
participant handbooks, including electronic and paper form if both are 
available, provided to each employee and placed in each employee's 
file, both paper and electronic, if both are available.\291\
---------------------------------------------------------------------------

    \291\ Proposed 29 CFR 38.36(b).
---------------------------------------------------------------------------

    The Department estimates that it would take each EO Officer 
approximately 15 minutes to print out the notices, and another 15 
minutes to ensure that new notices and posters are disseminated. 
Dissemination includes posting the notice in conspicuous locations in 
the physical space of the recipient as well as posting it on 
appropriate Web pages on the recipient's Web site. Consequently, the 
estimated first year dissemination burden is 17,229 hours (34,458 
recipients x .5 hours). The Department calculated the total estimated 
first year and dissemination cost for the EO Officers as $1,504,781 
(17,229 x $87.34/hour). The Department also calculated that each EO 
Officer will make thirty copies of the notice (this assumes ten copies 
each in no more than three of the appropriate languages) for posting in 
his or her establishment for a first year operational and maintenance 
cost of $82,699 (34,458 x $.08 x 30).
    Additionally, the Department assumes it will take a computer 
programmer 30 minutes to place the notice on appropriate Web pages of 
the recipient's Web site. The Department assumes that each recipient 
has one Web site. The Department calculates the first year burden to 
update their Web sites to be an additional 17,229 hours (34,458 x .5 
hours) and the first year costs for recipients to update their Web 
sites to be an additional $1,061,479 (17,229 x $61.61/hour). The 
Department also calculates it will take an EO Officer 30 minutes to 
disseminate to all employees of recipients a copy of the notice and 
place a copy in the employees' files. The Department estimates an 
additional first year burden for dissemination to be 17,229 hours 
(34,458 x .5 hours) and an additional first year cost to be $1,504,781 
(17,229 x $87.34/hour).
    Moreover, there is a recurring burden each time an employee is 
hired. The Department assumes a 1.5 percent \292\ employee turnover 
rate per year for a total of 13,215 new employees the second and future 
years (881,009 (total number of recipients' employees) x .015). The 
Department estimates it will take an EO Officer fifteen minutes to 
disseminate the notice to only new recipient's employees each year, 
which equates to a burden of 8,615 hours (34,458 x .25 hours) and the 
total recurring cost to be $752,434 (8,615 hours x $87.34). The first 
year operation and maintenance cost for printing the two copies of the 
notice (one to disseminate to the employee and one to place in their 
file) for the first year is $140,961 (881,009 total number of 
recipients' employees x $.08 x 2) and the second and future years 
operation and maintenance cost is $2,114 (13,215 new employees x $.08 x 
2) for copies made for new employees each year.
---------------------------------------------------------------------------

    \292\ https://www.bls.gov/jlt/#news State and local government 
preliminary ``hires'' data for February 2015.
---------------------------------------------------------------------------

Data and Information Collection, Analysis, and Maintenance Sec.  38.41
    Proposed paragraph (a)(2) adds ``limited English proficient'' and 
``preferred language'' to the list of categories of information that 
each recipient must collect about each applicant, registrant, and 
participant. The proposal does not apply these data collection 
obligations to applicants for employment and employees of recipients 
because the obligation as to LEP individuals does not apply to those 
categories of individuals. This change is intended to ensure that 
recipients collect information related to serving LEP individuals. The 
Department believes that these terms best capture this information as 
to LEP individuals and is also used by several states with language 
access laws.\293\ The

[[Page 4537]]

Department calculates the cost of adding this category to the list of 
categories of information that each recipient must collect about each 
applicant and participant as de minimis for the recipient because they 
are already collecting demographic data from beneficiaries in several 
other categories and these additions will be added to this existing 
process. Further, it is estimated on average it will take beneficiaries 
5 seconds to provide LEP information including preferred language, 
where applicable, voluntarily. This equates to a cost of $567,131 
(56,321,699 x 5 seconds = 281,608,495/60 = 4,693,475 minutes/60 = 
78,225 hours x $7.25 = $567,131).
---------------------------------------------------------------------------

    \293\ Pursuant to the DC Language Access Act, the DC Office of 
Human Rights requires covered entities to collect data on the number 
of LEP individuals served in an annual report. See Final rulemaking 
at 55 DCR 6348 (June 8, 2008); as amended by Final Rulemaking 
published at 61 DCR 9836 (September 26, 2014). The question on the 
DC Office of Human Rights Complaint Form for the purposes of 
capturing this information is ``What language do you prefer to 
communicate in?'' Available at https://dcforms.dc.gov/webform/employment-intake-questionnaire-form (last visited March 3, 2015). 
Hawaii passed their language access law in 2006 See Hawaii Rev. 
Stat. Sec. Sec.  371-31 to 37. In California, the Dymally-Alatorre 
Bilingual Services Act requires local agencies to provide language 
access to limited English-proficient speakers. Ca. Govt. Code Sec.  
7290-7299.8. The Bilingual Services Program at the California 
Department of Human Resources provides oversight, including 
conducting language surveys on implementation. https://www.calhr.ca.gov/state-hr-professionals/Pages/Bilingual-Services.aspx.
---------------------------------------------------------------------------

    For those recipients that are not already collecting this 
information,\294\ the Department estimates that there will be a first 
year cost to each recipient of 1.5 hours of a computer programmer's 
personnel time to incorporate these new categories into an online form 
for data collection. The Department believes that all recipients use 
computer-based data collection methods, and the one-time burden is 
$3,184,436 (34,458 recipients x 1.5 hours = 51,687 x $61.61/hour).
---------------------------------------------------------------------------

    \294\ Programs providing core and intensive services through the 
One Stop delivery system currently collect information regarding LEP 
status and some may be doing so voluntarily, however, we have no way 
of knowing how many recipients overall are currently collecting 
information from beneficiaries regarding LEP status, so we are 
including the cost to all recipients for this analysis.
---------------------------------------------------------------------------

Required Maintenance of Records by Recipients Sec.  38.43
    The NPRM proposes language that specifies the types of records that 
need to be retained by a recipient when a complaint has been filed, and 
also requires that records be kept if a compliance review has been 
initiated. Records that must be kept include any type of hard-copy or 
electronic record related to the complaint or the compliance review.
    The Department assumes that the only additional burden and 
associated cost would be in identifying any additional files that a 
recipient must retain beyond three years if they are under a compliance 
review. The Department further assumes this cost to be de minimis.

Subpart C--Governor's Responsibilities To Implement the 
Nondiscrimination and Equal Opportunity Requirements of WIOA.

Governor's Oversight and Monitoring Responsibilities for State Programs 
Sec.  38.51
    Proposed Sec.  38.51(b) requires the Governor to monitor on an 
annual basis the compliance of State Programs with WIOA Section 188 and 
this part. Under Sec.  37.54(d)(2)(ii), Governors are currently 
required to ``periodically'' monitor compliance of recipients. The 
proposed annual monitoring requirement is intended to: (1) Enable the 
timely identification and elimination of discriminatory policies and 
practices, thereby reducing the number of individuals impacted by 
discrimination; (2) be consistent with ETA proposed regulations 
requiring annual oversight of One-Stop Career Centers; \295\ and (3) 
establish a consistent State-level practice nationwide. It is 
anticipated that this change will pose burden on some Governors who are 
not already interpreting the term ``periodically'' in the current 
regulations to require annual oversight.
---------------------------------------------------------------------------

    \295\ WIOA NPRM implementing Titles I and III available at 
https://www.federalregister.gov/articles/2015/04/16/2015-05530/workforce-innovation-and-opportunity-act.
---------------------------------------------------------------------------

    The Department anticipates that this change will not impose a 
burden on all states because approximately half of them are currently 
conducting this monitoring annually, pursuant to their Methods of 
Administration.\296\ Thus, the Department estimates the burden would be 
imposed on 28 of the 56 States subject to this requirement that 
currently do not annually monitor their recipients for compliance with 
Section 188 of WIA. Of the states that do not conduct annual 
monitoring, CRC is aware that the monitoring is conducted on average 
every three years. So, for those 28 states, they will need to increase 
their monitoring to be two thirds more frequent. Based on CRC's 
experience and interaction with several states with varying populations 
and geographic sizes, the average amount of time that it takes to 
conduct this annual monitoring is approximately 4,000 total hours 
carried out by multiple people. The additional burden on each of the 28 
states that previously conduct monitoring every three years versus 
every year is estimated to be 2,680 hours (4,000 hours x .67) \297\ per 
state or 75,040 for all 28 states. The Department calculates the total 
estimated annual cost for states as $6,553,994 (2,680 hours x 28 states 
x $87.34/hour) since the EO Officer and similar managers are likely to 
conduct the monitoring.
---------------------------------------------------------------------------

    \296\ This is based on CRC's records of reporting and 
discussions with EO Officers for the states over the past few years.
    \297\ Based on information from CRC's experience working with 
the states and asking less than 6 EO Officers these questions.
---------------------------------------------------------------------------

Governor's Obligation To Develop and Implement a Nondiscrimination Plan 
Sec.  38.54
    This rule changes the name ``Methods of Administration'' for the 
document described in Sec.  37.54 to ``Nondiscrimination Plan,'' but 
retains the definition and contents of the document. Since the contents 
of the Plan do not change, the change of the title of the document is 
presumed to be incurred in the total cost of the issuance of the Plan. 
The Department welcomes comments on this assumption.

Subpart D--Compliance Procedures

Notice To Show Cause Issued to a Recipient Sec.  38.66
    The new language in Sec.  38.66, paragraph (b), states that the 
Director may issue a Notice to Show Cause to a recipient ``after a 
Letter of Findings and/or an Initial Determination has been issued, and 
after a reasonable period of time has passed within which the recipient 
refuses to negotiate a conciliation agreement with the Director 
regarding the violation(s).'' The Department proposes this change to 
expand the circumstances in which the Director may issue a Notice to 
Show Cause. The proposal seeks to use the Notice to Show Cause at this 
later stage because it has been the Department`s experience that, after 
issuing a letter of findings, the Governor or other recipients agree in 
principle to enter into a conciliation agreement that resolves the 
identified violations, but then frequently fail to respond to 
correspondence from the CRC regarding finalizing and signing the 
agreement. With proposed Sec.  38.66(b), the Director could issue a 
Notice to Show Cause prior to issuing a Final Determination, providing 
Governors and other recipients another opportunity to take the 
corrective or remedial actions required by the Director to bring the 
recipient into compliance before enforcement proceedings are initiated. 
Recipients are already familiar with the Notice to Show Cause since it 
is currently described and contained in the implementing regulations 
found at 29 CFR 37.67, so these changes are slight, and the proposed 
language is

[[Page 4538]]

clear in terms of the new circumstances under which the Director can 
issue them. The Department estimates that it will issue at most two 
additional Show Cause Notices per year on average as a result of this 
change. As a result, the CRC estimates the burden incurred to be de 
minimis and invites comment on the burden associated with this 
provision.
Required Elements of a Recipient's Complaint Processing Procedures 
Sec.  38.72
    The NPRM proposes adding to the procedures that the recipient must 
adopt and publish the requirement that recipients provide complainants 
a copy of the notice of rights contained in Sec.  38.35, along with the 
already-required initial written acknowledgement of receipt of the 
complaint and notice of the complainant's right to representation. This 
requirement is designed to ensure that complainants are aware of their 
rights, including that they have the option of filing with the 
recipient or with CRC, and that they are aware of the deadlines 
applicable to filing a subsequent complaint with CRC once they file 
initially with the recipient.
    The Department anticipates that this requirement, under which 
recipients provide complainants a copy of the notice of rights 
contained in Sec.  38.35, is limited to the operational costs of making 
additional copies of the notice for this purpose, and the first year 
personnel cost of 30 minutes of the EO Officer's time, who is most 
likely to be responsible for implementing this requirement, to include 
it in the documents routinely provided to complainants. Based upon 
complaint log data from 2003 to 2008, CRC estimates that on average, 
each recipient will receive one Section 188 complaint each year. The 
Department assumes that the EO Officer will handle the complaint for 
each recipient and it will take them approximately 30 minutes to 
process the complaint. The total annual burden is estimated to be 
17,229 hours (34,458 x .5 hours) for a total cost of $1,504,781 (17,229 
hours x $87.34/hr). Additionally, the Department estimates there are 
first year and recurring operation and maintenance costs of $2,757 
($.08 x 34,458) to copy the equal opportunity notice for complainants.

                  Table 3--First Year Burden and Costs
------------------------------------------------------------------------
    First year burden and costs        Burden hours          Costs
------------------------------------------------------------------------
Rule Familiarization..............            137,832        $12,038,247
Discrimination prohibited based on                  0            104,500
 pregnancy, Sec.   38.8...........
Recipients Obligation to Publish               51,687          4,071,041
 Equal Opportunity Notice, Sec.
 38.36............................
Data and Information Collection,              129,912          3,751,567
 Analysis, and Maintenance, Sec.
 38.41............................
Governor's oversight and                       75,040          6,553,994
 monitoring responsibilities for
 State programs, Sec.   38.51.....
Required elements of a recipient's             17,229          1,504,781
 complaint processing procedures,
 Sec.   38.72.....................
Operation and Maintenance Costs...  .................            226,417
                                   -------------------------------------
    Total.........................            411,700         28,250,547
------------------------------------------------------------------------


            Table 4--Second and Future-Year Burden and Costs
------------------------------------------------------------------------
 Second and future-year burden and
               costs                   Burden hours          Costs
------------------------------------------------------------------------
Discrimination prohibited based on                  0           $104,500
 pregnancy, Sec.   38.8...........
Recipients Obligation to Publish                8,615            752,434
 Equal Opportunity Notice, Sec.
 38.36............................
Data and Information Collection,               78,225            567,131
 Analysis, and Maintenance, Sec.
 38.41............................
Governor's oversight and                       75,040          6,553,994
 monitoring responsibilities for
 State programs, Sec.   38.51.....
Required elements of a recipient's             17,229          1,504,781
 complaint processing procedures,
 Sec.   38.72.....................
Operation and Maintenance Costs...  .................              4,871
                                   -------------------------------------
    Total.........................            179,109          9,487,711
------------------------------------------------------------------------

B. Paperwork Reduction Act

    The purposes of the Paperwork Reduction Act of 1995 (PRA), 44 
U.S.C. 3501 et seq., include minimizing the paperwork burden on 
affected entities. The PRA requires certain actions before an agency 
can adopt or revise a collection of information, including publishing 
the information collection for public comment.
    As part of continuing efforts to reduce paperwork and respondent 
burden, the Department conducts preclearance consultation activities to 
provide the general public and Federal agencies with an opportunity to 
comment on proposed and continuing collections of information in 
accordance with the PRA.\298\ This activity helps to ensure that: (1) 
The public understands the collection instructions; (2) respondents can 
provide the requested data in the desired format; (3) reporting burden 
(time and financial resources) is minimized; (4) respondents clearly 
understand the collection instruments; and (5) the Department can 
properly assess the impact of collection requirements on respondents. 
Furthermore, the PRA requires all Federal agencies to analyze proposed 
regulations for potential burdens on the regulated community created by 
provisions in the proposed regulations, which require the submission of 
information. The information collection requirements must also be 
submitted to the OMB for approval.
---------------------------------------------------------------------------

    \298\ See 44 U.S.C. 3506(c)(2)(A).
---------------------------------------------------------------------------

    The Department notes that a Federal agency generally cannot conduct 
or sponsor a collection of information, and the public is generally not 
required to respond to an information collection, unless it is approved 
by the OMB under the PRA and displays a currently valid OMB Control 
Number. In addition, notwithstanding any other provisions of law, no 
person shall generally be subject to penalty for failing to comply with 
a collection of information that does not display a valid Control 
Number.\299\ The Department obtains approval for Nondiscrimination 
Compliance

[[Page 4539]]

Information Reporting under Control Number 1225-0077.
---------------------------------------------------------------------------

    \299\ See 44 U.S.C. 3512; 5 CFR 1320.5(a) and 1320.6).
---------------------------------------------------------------------------

    The information collections in this NPRM are summarized in the 
section-by-section discussion of this NPRM, Section II. The Department 
has identified that the following proposed sections contain information 
collections: 29 CFR 38.14, 38.16f, 25, 38.27, 38.29, 38.34-38.36, 
38.38, 38.39-38.43, 38.51, 38.52-.54, 38.55, 387.69, 38.70, 38.72, 
38.73, 38.74, and 38.77. Additional information collections approved 
under Control Number 1225-0077 appear in part 37, encompassing similar 
nondiscrimination requirements under the Workforce Investment Act 
(WIA), of this title; they will be maintained on a temporary basis 
while existing WIA grants remain in effect.
    Concurrent with the publication of this proposed rule, the 
Department is submitting an associated information collection request 
to the Office of Management and Budget for approval. Interested parties 
may obtain a copy free of charge of one or more of the information 
collection requests submitted to the OMB on the reginfo.gov Web site at 
https://www.reginfo.gov/public/do/PRAMain. From the Information 
Collection Review tab, select Information Collection Review. Then 
select the Department of Labor from the Currently Under Review dropdown 
menu, and lookup Control Number 1225-0077. A free copy of the requests 
may also be obtained by contacting the person named in the ADDRESSES 
section of this preamble.
    As noted in the ADDRESSES section of this NPRM, interested parties 
may send comments about the information collections to the Department 
throughout the 60-day comment period and/or to the OMB within 30 days 
of publication of this document in the Federal Register. In order to 
help ensure appropriate consideration, comments should mention the 
applicable OMB Control Number(s). The Departments and OMB are 
particularly interested in comments that:
     Evaluate whether the proposed collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
     Evaluate the accuracy of the agency's estimate of the 
burden of the proposed collection of information, including the 
validity of the methodology and assumptions used;
     Enhance the quality, utility, and clarity of the 
information to be collected; and
     Minimize the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of responses.
    The information collections are summarized as follows:
    Agency: DOL-OASAM.
    Title of Collection: Nondiscrimination Compliance Information 
Reporting.
    OMB Control Number: 1225-0077.
    Affected Public: Individuals or Households and Private Sector--
businesses or other for profits and not for profit institutions.
    Total Estimated Number of Respondents: 105,259.
    Total Estimated Number of Responses: 56,324,784.
    Total Estimated Annual Time Burden: 315,339.
    Total Estimated Annual Other Costs Burden: $0.

C. Executive Order 13132 (Federalism)

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

D. Unfunded Mandates Reform Act of 1995

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

E. Plain Language

    The Department drafted this NPRM in plain language.

F. Assessment of Federal Regulations and Policies on Families

    The undersigned hereby certifies that the NPRM would not adverse 
effect the will-being of families, as discussed under section 654 of 
the Treasure and General Government Appropriations Act, 1999. To the 
contrary, by better ensuring that customers, including job seekers and 
applicants for unemployment insurance, do not suffer illegal 
discrimination in accessing DOL financially-assisted programs, 
services, and activities, the NPRM would have a positive effect on the 
economic well-being of families.

G. Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 603, requires 
agencies to prepare a regulatory flexibility analysis to determine 
whether a regulation will have a significant economic impact on a 
substantial number of small entities. Section 605 of the RFA allows an 
agency to certify a rule in lieu of preparing an analysis if the 
regulation is not expected to have a significant economic impact on a 
substantial number of small entities. Further, under the Small Business 
Regulatory Enforcement Fairness Act of 1996, 5 U.S.C 801 (SBREFA), an 
agency is required to produce compliance guidance for small entities if 
the rule has a significant economic impact. The Small Business 
Administration (SBA) defines a small business as one that is 
``independently owned and operated and which is not dominant in its 
field of operation.'' The definition of small business varies from 
industry to industry to the extent necessary to reflect industry size 
differences properly. An agency must either use the SBA definition for 
a small entity or establish an alternative definition, in this 
instance, for the workforce industry. The Department has adopted the 
SBA definition for the purposes of this certification. The Department 
has notified the Chief Counsel for Advocacy, SBA, under the RFA at 5 
U.S.C. 605(b), and proposes to certify that this rule will not have a 
significant economic impact on a substantial number of small entities. 
This finding is supported, in large measure, by the fact that small 
entities are already receiving financial assistance under the WIA 
program and will likely continue to do so under the WIOA program as 
articulated in this NPRM. Having made these determinations and pursuant 
to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b), 
CRC certifies that this rule will not have a significant economic 
impact on a substantial number of small entities. In making this 
determination, the agency used the SBA definition of small business, 
found at 13 CFR 121.201
Affected Small Entities
    The proposed rule can be expected to impact small one-stop center 
operators. One-stop operators can be a single entity (public, private, 
or nonprofit) or a consortium of entities. The types of entities that 
might be a one-stop operator include: (1) An institution of higher 
education; 545 (2) an employment service State agency established under 
the Wagner-Peyser

[[Page 4540]]

Act; (3) a community-based organization, nonprofit organization, or 
workforce intermediary; (4) a private for-profit entity; (5) a 
government agency; (6) a Local Board, with the approval of the local 
CEO and the Governor; or (7) another interested organization or entity 
that can carry out the duties of the one-stop operator. Examples 
include, but are not limited to, a local chamber of commerce or other 
business organization, or a labor organization.
Impact on Small Entities
    The Department indicates that transfer payments are a significant 
aspect of this analysis in that the majority of WIOA program cost 
burdens on State and Local WDBs will be fully financed through Federal 
transfer payments to States. CRC has highlighted costs that are new to 
WIOA implementation in this NPRM. Therefore, the Department expects 
that the WIOA NPRM will have negligible net cost impact on small 
entities.

H. Small Business Regulatory Enforcement Fairness Act of 1996

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

I. Executive Order 13175 (Indian Tribal Governments)

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

J. Executive Order 12630 (Government Actions and Interference With 
Constitutionally Protected Property Rights)

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

K. Executive Order 12988 (Civil Justice Reform)

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

L. Executive Order 13211 (Energy Supply)

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

List of Subjects in 29 CFR Part 38

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

Edward C. Hugler,
Deputy Assistant Secretary for Operations, Office of the Assistant 
Secretary for Administration and Management, U.S. Department of Labor.
    For reasons set forth in the preamble, the Department proposes to 
revise 29 CFR part 38 to read as follows:

TITLE 29--LABOR

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

 Subpart A--General Provisions
Sec.
38.1 Purpose.
38.2 Applicability.
38.3 Effect on other obligations.
38.4 Definitions.
38.5 General prohibitions on discrimination.
38.6 Specific discriminatory actions prohibited on bases other than 
disability.
38.7 Discrimination prohibited based on sex.
38.8 Discrimination prohibited based on pregnancy.
38.9 Discrimination prohibited based on national origin, including 
limited English proficiency.
38.10 Harassment prohibited.
38.11 Discrimination prohibited based on citizenship status.
38.12 Discrimination prohibited based on disability.
38.13 Accessibility requirements.
38.14 Reasonable accommodations and reasonable modifications for 
individuals with disabilities.
38.15 Communications with individuals with disabilities.
38.16 Service animals.
38.17 Mobility aids and devices.
38.18 Employment practices covered.
38.19 Intimidation and retaliation prohibited.
38.20 Administration of this part.
38.21 Interpretation of this part.
38.22 Delegation of administration and interpretation of this part.
38.23 Coordination with other agencies.
38.24 Effect on other laws and policies.
Subpart B--Recordkeeping and Other Affirmative Obligations of 
Recipients.

Assurances

38.25 A grant applicant's obligation to provide a written assurance.
38.26 Duration and scope of the assurance.
38.27 Covenants.

Equal Opportunity Officers

38.28 Designation of Equal Opportunity Officer.
38.29 Recipient obligations regarding its Equal Opportunity Officer.
38.30 Requisite skill and authority of Equal Opportunity Officer.
38.31 Equal Opportunity Officer responsibilities.
38.32 Small recipient Equal Opportunity Officer obligations.
38.33 Service provider Equal Opportunity Officer obligations.

Notice and Communication

38.34 Recipients' obligations to disseminate equal opportunity 
notice.
38.35 Equal Opportunity notice/poster.
38.36 Recipients' obligations to publish equal opportunity notice.
38.37 Notice requirement for service providers.
38.38 Publications, broadcasts and other communications.
38.39 Communication of notice in orientations.
38.40 Affirmative outreach.

Data and Information Collection Maintenance

38.41 Collection and maintenance of equal opportunity data and other 
information.
38.42 Information to be provided to CRC by grant applicants and 
recipients.
38.43 Required maintenance of records by grant applicants and 
recipients.
38.44 CRC access to information and information sources.
38.45 Confidentiality responsibilities of grant applicants, 
recipients, and the Department.
Subpart C--Governor's Responsibilities To Implement the 
Nondiscrimination and Equal Opportunity Requirements of WIOA
38.50 Subpart application to State Programs.
38.51 Governor's oversight and monitoring responsibilities for State 
Programs.
38.52 Governor's liability for actions of recipients the Governor 
has financially assisted under Title I of WIOA.
38.53 Governor's oversight responsibility regarding recipients' 
recordkeeping.
38.54 Governor's obligations to develop and implement a 
Nondiscrimination Plan.
38.55 Schedule of the Governor's obligations regarding the 
Nondiscrimination Plan.

[[Page 4541]]

Subpart D--Compliance Procedures
38.60 Evaluation of compliance.
38.61 Authority to issue subpoenas.

Compliance Reviews

38.62 Authority and procedures for pre-approval compliance reviews.
38.63 Authority and procedures for conducting post-approval 
compliance reviews.
38.64 Procedures for concluding post-approval compliance reviews.
38.65 Authority to monitor the activities of a Governor.
38.66 Notice to show cause issued to a recipient.
38.67 Methods by which a recipient may show cause why enforcement 
proceedings should not be instituted.
38.68 Failing to show cause.

Complaint Processing Procedures

38.69 Complaint filing.
38.70 Required contents of complaint.
38.71 Right to representation.
38.72 Required elements of a recipient's complaint processing 
procedures.
38.73 Responsibility for developing and publishing complaint 
processing procedures for service providers.
38.74 Recipient's obligations when it determines that it has no 
jurisdiction over a complaint.
38.75 If the complainant is dissatisfied after receiving a Notice of 
Final Action.
38.76 If a recipient fails to issue a Notice of Final Action within 
90 days after the complaint was filed.
38.77 Extension of deadline to file complaint.
38.78 Determinations regarding acceptance of complaints.
38.79 When a complaint contains insufficient information.
38.80 Lack of jurisdiction.
38.81 Complaint referral.
38.82 Notice that complaint will not be accepted.
38.83 Notice of complaint acceptance.
38.84 Contacting CRC about a complaint.
38.85 Alternative dispute resolution.

 Complaint Determinations

38.86 Notice at conclusion of complaint investigation.
38.87 Director's Initial Determination that reasonable cause exists 
to believe that a violation has taken place.
38.88 Director's Final Determination that no reasonable cause exists 
to believe that a violation has taken place.
38.89 When the recipient fails or refuses to take corrective action 
listed in the Initial Determination.
38.90 Corrective or remedial action that may be imposed when the 
Director finds a violation.
38.91 Post-violation procedures.
38.92 Written assurance.
38.93 Required elements of a conciliation agreement.
38.94 When voluntary compliance cannot be secured.
38.95 Enforcement when voluntary compliance cannot be secured.
38.96 Contents of a Final Determination of a violation.
38.97 Notification of finding of noncompliance.

Breaches of Conciliation Agreements

38.98 Notice of breach of conciliation agreement.
38.99 Contents of notice of breach of conciliation agreement.
38.100 Notification of an enforcement action under based on breach 
of conciliation agreement.
Subpart E--Federal Procedures for Effecting Compliance
38.110 Enforcement procedures.
38.111 Hearing procedures.
38.112 Initial and final decision procedures.
38.113 Suspension, termination, withholding, denial or 
discontinuation of financial assistance.
38.114 Distribution of WIOA Title I financial assistance to an 
alternative recipient.
38.115 Post-termination proceedings.

    Authority:  29 U.S.C. 3101 et seq.; 42 U.S.C. 2000d et seq.; 29 
U.S.C. 794; 42 U.S.C. 6101 et seq.; and 20 U.S.C. 1681 et seq.

Subpart A--General Provisions


Sec.  38.1  Purpose.

    The purpose of this part is to implement the nondiscrimination and 
equal opportunity provisions of the Workforce Innovation and 
Opportunity Act (WIOA), which are contained in section 188 of WIOA.\1\ 
Section 188 prohibits discrimination on the basis of race, color, 
religion, sex, national origin, age, disability, political affiliation 
or belief, and for beneficiaries only, citizenship status or 
participation in a WIOA Title I-financially assisted program or 
activity. This part clarifies the application of the nondiscrimination 
and equal opportunity provisions of WIOA and provides uniform 
procedures for implementing them.
---------------------------------------------------------------------------

    \1\ 29 U.S.C. 3248.
---------------------------------------------------------------------------


Sec.  38.2  Applicability.

    (a) This part applies to:
    (1) Any recipient, as defined in Sec.  38.4;
    (2) Programs and activities that are part of the One-Stop delivery 
system and that are operated by One-Stop partners listed in section 
121(b) of WIOA, to the extent that the programs and activities are 
being conducted as part of the One-Stop delivery system; and
    (3) As provided in Sec.  38.18, the employment practices 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.
    (b) Limitation of Application. This part does not apply to:
    (1) Programs or activities that are financially assisted by the 
Department exclusively under laws other than Title I of WIOA, and that 
are not part of the One-Stop delivery system (including programs or 
activities implemented under, authorized by, and/or financially 
assisted by the Department under the Workforce Investment Act of 1998 
(WIA));
    (2) Contracts of insurance or guaranty;
    (3) The ultimate beneficiary to a program of Federal financial 
assistance; and
    (4) Federal procurement contracts, with the exception of contracts 
to operate or provide services to Job Corps Centers.


Sec.  38.3  Effect on other obligations.

    (a) A recipient's compliance with this part will satisfy any 
obligation of the recipient to comply with 29 CFR part 31, the 
Department's regulations implementing Title VI of the Civil Rights Act 
of 1964, as amended (Title VI), and with Subparts A, D and E of 29 CFR 
part 32, the Department's regulations implementing Section 504 of the 
Rehabilitation Act of 1973, as amended (Section 504).
    (b) 29 CFR part 32, subparts B and C and Appendix A, the 
Department's regulations which implement the requirements of Section 
504 pertaining to employment practices and employment-related training, 
program accessibility, and reasonable accommodation, are hereby 
incorporated into this part by reference. Therefore, recipients must 
comply with the requirements set forth in those regulatory sections as 
well as the requirements listed in this part.
    (c) 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 greater or equal 
protection for the rights of persons as compared to this part:
    (1) Recipients that are also public entities or public 
accommodations, as defined by Titles II and III of the Americans with 
Disabilities Act of 1990 (ADA), should be aware of obligations imposed 
by those titles.
    (2) Similarly, recipients that are also employers, employment 
agencies, or other entities covered by Title I of the ADA should be 
aware of obligations imposed by that title.
    (d) Compliance with this part does not affect, in any way, any 
additional obligations that a recipient may have to comply with 
applicable federal laws

[[Page 4542]]

and their implementing regulations, such as the following:
    (1) Executive Order 11246, as amended;
    (2) Executive Order 13160;
    (3) Sections 503 and 504 of the Rehabilitation Act of 1973, as 
amended (29 U.S.C. 793 and 794);
    (4) The affirmative action provisions of the Vietnam Era Veterans' 
Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212);
    (5) The Equal Pay Act of 1963, as amended (29 U.S.C. 206d);
    (6) Title VII of the Civil Rights Act of 1964, as amended (42 
U.S.C. 2000e et seq.);
    (7) The Age Discrimination Act of 1975, as amended (42 U.S.C. 
6101);
    (8) The Age Discrimination in Employment Act of 1967, as amended 
(29 U.S.C. 621);
    (9) Title IX of the Education Amendments of 1972, as amended (Title 
IX) (20 U.S.C. 1681);
    (10) The Americans with Disabilities Act of 1990, as amended (42 
U.S.C. 12101 et seq.); and
    (11) The anti-discrimination provision of the Immigration and 
Nationality Act, as amended (8 U.S.C. 1324b).


Sec.  38.4  Definitions.

    For the purpose of this part:
    (a) Administrative Law Judge means a person appointed as provided 
in 5 U.S.C. 3105 and 5 CFR 930.203, and qualified under 5 U.S.C. 557, 
to preside at hearings held under the nondiscrimination and equal 
opportunity provisions of WOIA and this part.
    (b) Aid, benefit, service, or training means WIOA Title I-
financially assisted services, financial or other aid, training, or 
benefits provided by or through a recipient or its employees, or by 
others through contract or other arrangements with the recipient. As 
used in this part, the term includes any aid, benefits, services, or 
training provided in or through a facility that has been constructed, 
expanded, altered, leased, rented, or otherwise obtained, in whole or 
in part, with Federal financial assistance under Title I of WIOA. 
``Aid, benefit, service, or training'' includes, but is not limited to:
    (1) Career Services;
    (2) Education or training;
    (3) Health, welfare, housing, social service, rehabilitation, or 
other supportive services;
    (4) Work opportunities; and
    (5) Cash, loans, or other financial assistance to individuals.
    (c) Applicant means an individual who is interested in being 
considered for WIOA-Title I financially assisted aid, benefit, service, 
or training by a recipient, and who has signified that interest by 
submitting personal information in response to a request by the 
recipient. See also the definitions of ``application for benefits,'' 
``eligible applicant/registrant,'' ``participant,'' ``participation,'' 
and ``recipient'' in this section.
    (d) Applicant for employment means a person or persons who make(s) 
an application for employment with a recipient of Federal financial 
assistance under WIOA Title I.
    (e) Application for benefits means the process by which 
information, including but not limited to a completed application form, 
is provided by applicants or eligible applicants before and as a 
condition of receiving WIOA Title I-financially assisted aid, benefit, 
service, or training from a recipient.
    (f) Assistant Attorney General means the Assistant Attorney 
General, Civil Rights Division, United States Department of Justice.
    (g) Assistant Secretary means the Assistant Secretary for 
Administration and Management, United States Department of Labor.
    (h) Auxiliary aids or services includes:
    (1) Qualified interpreters on-site or through video remote 
interpreting (VRI) services; notetakers; real-time computer-aided 
transcription services; written materials; exchange of written notes; 
telephone handset amplifiers; assistive listening devices; assistive 
listening systems; telephones compatible with hearing aids; closed 
caption decoders; open and closed captioning, including real-time 
captioning; voice, text, and video-based telecommunications products 
and systems, including text telephones (TTYs), videophones, and 
captioned telephones, or equally effective telecommunications devices; 
videotext displays; accessible electronic and information technology; 
or other effective means of making aurally delivered materials 
available to individuals with hearing impairments;
    (2) Qualified readers; taped texts; audio recordings; Brailled 
materials and displays; screen reader software; magnification software; 
optical readers; secondary auditory programs (SAP); large print 
materials; accessible electronic and information technology; or other 
effective methods of making visually delivered materials available to 
individuals who are blind or have low vision;
    (3) Acquisition or modification of equipment or devices; and
    (4) Other similar services, devices, and actions.
    (i) Babel Notice means a short notice included in a document or 
electronic medium (e.g., Web site, ``app,'' email) in multiple 
languages informing the reader that the communication contains vital 
information, and explaining how to access language services to have the 
contents of the communication provided in other languages.
    (j) Beneficiary means the individual or individuals intended by 
Congress to receive aid, benefits, services, or training from a 
recipient.
    (k) Citizenship See ``Discrimination prohibited based on 
citizenship status.'' in Sec.  38.11.
    (l) CRC means the Civil Rights Center, Office of the Assistant 
Secretary for Administration and Management, U.S. Department of Labor.
    (m) Department means the U.S. Department of Labor (DOL), including 
its agencies and organizational units.
    (n) Departmental grantmaking agency means a grantmaking agency 
within the U.S. Department of Labor.
    (o) Director means the Director, Civil Rights Center (CRC), Office 
of the Assistant Secretary for Administration and Management, U.S. 
Department of Labor, or a designee authorized to act for the Director.
    (p) Direct threat means a significant risk of substantial harm to 
the health or safety of others that cannot be eliminated or reduced by 
auxiliary aids and services, reasonable accommodations, or reasonable 
modifications in policies, practices and/or procedures. The 
determination whether an individual with a disability poses a direct 
threat must be based on an individualized assessment of the 
individual's present ability safely to either: (1) satisfy the 
essential eligibility requirements of the program or activity (in the 
case of aid, benefits, services, or training); or (2) perform the 
essential functions of the job (in the case of employment). This 
assessment must be based on a reasonable medical judgment that relies 
on the most current medical knowledge and/or on the best available 
objective evidence. In determining whether an individual would pose a 
direct threat, the factors to be considered include:
    (1) The duration of the risk;
    (2) The nature and severity of the potential harm;
    (3) The likelihood that the potential harm will occur; and
    (4) The imminence of the potential harm.
    (q) Disability--(1) General. (i) The term ``disability'' means, 
with respect to an individual:
    (A) A physical or mental impairment that substantially limits one 
or more of

[[Page 4543]]

the major life activities of such individual;
    (B) A record of such an impairment; or
    (C) Being regarded as having such an impairment.
    (ii) Rules of construction. (A) Coverage of a particular individual 
may be established under any one or more of the three prongs of the 
general definition in paragraph (1)(i) of this defintion: the ``actual 
disability'' prong in paragraph (1)(i)(A), the ``record of'' prong in 
paragraph (1)(i)(B), or the ``regarded as'' prong in paragraph 
(1)(i)(C).
    (B) Where a covered entity's failure to provide reasonable 
accommodations or reasonable modifications under Sec.  38.14(a) or (b), 
is not being challenged in a particular case, it is generally 
unnecessary to proceed under the ``actual disability'' or ``record of'' 
prongs, which require a showing of an impairment that substantially 
limits a major life activity or a record of such an impairment. In 
these cases, the evaluation of coverage can be made solely under the 
``regarded as'' prong of the definition of disability, which does not 
require a showing of an impairment that substantially limits a major 
life activity or a record of such an impairment. However, a case may 
proceed under the ``actual disability'' or ``record of'' prong 
regardless of whether the case is challenging a covered entity's 
failure to provide reasonable accommodations, or reasonable 
modifications.
    (2) The definition of disability must be construed in favor of 
broad coverage of individuals, to the maximum extent permitted by 
Federal disability nondiscrimination law and this part.
    (3) Physical or mental impairment. (i) The phrase ``physical or 
mental impairment'' means--
    (A) Any physiological disorder or condition, cosmetic 
disfigurement, or anatomical loss affecting one or more of the 
following body systems: neurological, musculoskeletal, special sense 
organs, respiratory (including speech organs), cardiovascular, 
reproductive, digestive, genitourinary, immune, circulatory, hemic and 
lymphatic, skin, and endocrine; or
    (B) Any mental or psychological disorder such as an intellectual 
disability, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities.
    (ii) The phrase ``physical or mental impairment'' includes, but is 
not limited to, such contagious and noncontagious diseases and 
conditions as orthopedic, visual, speech and hearing impairments, 
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, 
cancer, heart disease, diabetes, intellectual disability, emotional 
illness, pregnancy-related medical conditions, specific learning 
disabilities (including but not limited to dyslexia), HIV disease 
(whether symptomatic or asymptomatic), tuberculosis, drug addiction, 
and alcoholism.
    (iii) The phrase ``physical or mental impairment'' does not include 
homosexuality or bisexuality.
    (4) Major life activities. (i) General. Major life activities 
include, but are not limited to, caring for oneself, performing manual 
tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, 
reaching, lifting, bending, speaking, breathing, learning, reading, 
concentrating, thinking, communicating, interacting with others, and 
working.
    (ii) Major bodily functions. A major life activity also includes 
the operation of a major bodily function, including but not limited to, 
the functions of the immune system, special sense organs and skin, 
normal cell growth, and digestive, genitourinary, bowel, bladder, 
neurological, brain, respiratory, circulatory, cardiovascular, 
endocrine, hemic, lymphatic, musculoskeletal, and reproductive systems. 
The operation of a major bodily function includes the operation of an 
individual organ within a body system.
    (iii) In determining other examples of major life activities, the 
term ``major'' must not be interpreted strictly to create a demanding 
standard for disability. Whether an activity is a ``major life 
activity'' is not determined by reference to whether it is of ``central 
importance to daily life.''
    (5) Substantially limits--(i) Rules of construction. The following 
rules of construction apply when determining whether an impairment 
substantially limits an individual in a major life activity.
    (A) The term ``substantially limits'' must be construed broadly in 
favor of expansive coverage, to the maximum extent permitted by Federal 
disability nondiscrimination law and this part. ``Substantially 
limits'' is not meant to be a demanding standard.
    (B) An impairment is a disability within the meaning of this part 
if it substantially limits the ability of an individual to perform a 
major life activity as compared to most people in the general 
population. An impairment need not prevent, or significantly or 
severely restrict, the individual from performing a major life activity 
in order to be considered substantially limiting.
    (C) The primary object of attention in disability cases brought 
under WIOA Section 188 should be whether covered entities have complied 
with their obligations and whether discrimination has occurred, not the 
extent to which an individual's impairment substantially limits a major 
life activity. Accordingly, the threshold issue of whether an 
impairment substantially limits a major life activity should not demand 
extensive analysis.
    (D) The determination of whether an impairment substantially limits 
a major life activity requires an individualized assessment. However, 
in making this assessment, the term ``substantially limits'' will 
require a lower degree of functional limitation than the standard for 
``substantially limits'' applied prior to the ADA Amendments Act of 
2008 (ADAAA).
    (E) The comparison of an individual's performance of a major life 
activity to the performance of the same major life activity by most 
people in the general population usually will not require scientific, 
medical, or statistical evidence. Nothing in this paragraph is 
intended, however, to prohibit or limit the use of scientific, medical, 
or statistical evidence in making such a comparison where appropriate.
    (F)(1) The determination of whether an impairment substantially 
limits a major life activity must be made without regard to the 
ameliorative effects of mitigating measures.
    (2) Mitigating measures include, but are not limited to:
    (i) Medication, medical supplies, equipment, appliances, low-vision 
devices (defined as devices that magnify, enhance, or otherwise augment 
a visual image, but not including ordinary eyeglasses or contact 
lenses), prosthetics including limbs and devices, hearing aid(s) and 
cochlear implant(s) or other implantable hearing devices, mobility 
devices, and oxygen therapy equipment and supplies;
    (ii) Use of assistive technology;
    (iii) Reasonable modifications of policies, practices, and 
procedures, or auxiliary aids or services;
    (iv) Learned behavioral or adaptive neurological modifications; or
    (v) Psychotherapy, behavioral therapy, or physical therapy.
    (3) However, the ameliorative effects of ordinary eyeglasses or 
contact lenses will be considered in determining whether an impairment 
substantially limits a major life activity. Ordinary eyeglasses or 
contact lenses are lenses that are intended to fully correct visual 
acuity or to eliminate refractive error.
    (G) An impairment that is episodic or in remission is a disability 
if it would substantially limit a major life activity when active.

[[Page 4544]]

    (H) An impairment that substantially limits one major life activity 
need not substantially limit other major life activities in order to be 
considered a substantially limiting impairment.
    (I) The six-month ``transitory'' part of the ``transitory and 
minor'' exception in paragraph (7) of this definition does not apply to 
the ``actual disability'' or ``record of'' prongs of the definition of 
disability. The effects of an impairment lasting or expected to last 
less than six months can be substantially limiting within the meaning 
of this section for establishing an actual disability or a record of a 
disability.
    (ii) Predictable assessments. (A) The principles set forth in 
paragraph (5)(i) of this definition are intended to provide for more 
generous coverage and application of the prohibition on discrimination 
through a framework that is predictable, consistent, and workable for 
all individuals and entities with rights and responsibilities with 
respect to avoiding discrimination on the basis of disability.
    (B) Applying the principles set forth in paragraph (5)(i) of this 
definition, the individualized assessment of some types of impairments 
will, in virtually all cases, result in a determination of coverage 
under paragraph (1)(i)(A) (the ``actual disability'' prong) or 
paragraph (1)(i)(B) (the ``record of'' prong). Given their inherent 
nature, these types of impairments will, as a factual matter, virtually 
always be found to impose a substantial limitation on a major life 
activity. Therefore, with respect to these types of impairments, the 
necessary individualized assessment should be particularly simple and 
straightforward.
    (C) For example, applying the principles set forth in paragraph 
(5)(i) of this definition, it should easily be concluded that the 
following types of impairments, will, at a minimum, substantially limit 
the major life activities indicated:
    (1) Deafness substantially limits hearing and auditory function;
    (2) Blindness substantially limits visual function;
    (3) An intellectual disability substantially limits reading, 
learning, and problem solving;
    (4) Partially or completely missing limbs or mobility impairments 
requiring the use of a wheelchair substantially limit musculoskeletal 
function;
    (5) Autism substantially limits learning, social interaction, and 
communication;
    (6) Cancer substantially limits normal cell growth;
    (7) Cerebral palsy substantially limits brain function;
    (8) Diabetes substantially limits endocrine function;
    (9) Epilepsy, muscular dystrophy, and multiple sclerosis 
substantially limit neurological function;
    (10) Human Immunodeficiency Virus (HIV) infection substantially 
limits immune function; and
    (11) Major depressive disorder, bipolar disorder, post-traumatic 
stress disorder, traumatic brain injury, obsessive compulsive disorder, 
and schizophrenia substantially limit brain function. The types of 
impairments described in this paragraph may substantially limit 
additional major life activities not explicitly listed above.
    (iii) Condition, manner and duration. (A) At all times taking into 
account the principles in paragraph (5)(i) of this definition, in 
determining whether an individual is substantially limited in a major 
life activity, it may be useful in appropriate cases to consider, as 
compared to most people in the general population, the conditions under 
which the individual performs the major life activity; the manner in 
which the individual performs the major life activity; or the duration 
of time it takes the individual to perform the major life activity, or 
for which the individual can perform the major life activity.
    (B) Consideration of facts such as condition, manner or duration 
may include, among other things, consideration of the difficulty, 
effort or time required to perform a major life activity; pain 
experienced when performing a major life activity; the length of time a 
major life activity can be performed; or the way an impairment affects 
the operation of a major bodily function. In addition, the non-
ameliorative effects of mitigating measures, such as negative side 
effects of medication or burdens associated with following a particular 
treatment regimen, may be considered when determining whether an 
individual's impairment substantially limits a major life activity.
    (C) In determining whether an individual has a disability under the 
``actual disability'' or ``record of'' prongs of the definition of 
disability, the focus is on how a major life activity is substantially 
limited, and not on what outcomes an individual can achieve. For 
example, someone with a learning disability may achieve a high level of 
academic success, but may nevertheless be substantially limited in one 
or more major life activities, including, but not limited to, reading, 
writing, speaking, or learning, because of the additional time or 
effort he or she must spend to read, write, speak, or learn compared to 
most people in the general population.
    (6) A record of such an impairment. (i) General. An individual has 
a record of such an impairment if the individual has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (ii) Broad construction. Whether an individual has a record of an 
impairment that substantially limited a major life activity must be 
construed broadly to the maximum extent permitted by Federal disability 
nondiscrimination law and this part and should not demand extensive 
analysis. An individual will be considered to fall within this prong of 
the definition of ``disability'' if the individual has a history of an 
impairment that substantially limited one or more major life activities 
when compared to most people in the general population, or was 
misclassified as having had such an impairment. In determining whether 
an impairment substantially limited a major life activity, the 
principles articulated in paragraph (5)(i) of this definition apply.
    (iii) Reasonable accommodation or reasonable modification. An 
individual with a record of a substantially limiting impairment may be 
entitled to a reasonable accommodation or reasonable modification if 
needed and related to the past disability.
    (7) Is regarded as having such an impairment. (i) An individual is 
``regarded as having such an impairment'' if the individual is 
subjected to an action prohibited by WIOA Section 188 and this part 
because of an actual or perceived physical or mental impairment, 
whether or not that impairment substantially limits, or is perceived to 
substantially limit, a major life activity, except for an impairment 
that is both transitory and minor. A transitory impairment is an 
impairment with an actual or expected duration of six months or less.
    (ii) An individual is ``regarded as having such an impairment'' any 
time a covered entity takes a prohibited action against the individual 
because of an actual or perceived impairment, even if the entity 
asserts, or may or does ultimately establish, a defense to such action.
    (iii) Establishing that an individual is ``regarded as having such 
an impairment'' does not, by itself, establish liability. Liability is 
established only when it is proven that a covered entity discriminated 
on the basis of disability within the meaning of this part.
    (r) Eligible applicant/registrant means an individual who has been 
determined eligible to participate in one or more

[[Page 4545]]

WIOA Title I-financially assisted programs or activities.
    (s) Employment practices of a recipient include, but are not 
limited to:
    (1) Recruitment or recruitment advertising;
    (2) Selection, placement, layoff or termination of employees;
    (3) Upgrading, promotion, demotion or transfer of employees;
    (4) Training, including employment-related training;
    (5) Participation in upward mobility programs;
    (6) Deciding rates of pay or other forms of compensation;
    (7) Use of facilities; or
    (8) Deciding other terms, conditions, benefits, and/or privileges 
of employment.
    (t) Employment-related training means training that allows or 
enables an individual to obtain skills, abilities and/or knowledge that 
are designed to lead to employment.
    (u) Entity means any person, corporation, partnership, joint 
venture, sole proprietorship, unincorporated association, consortium, 
Native American tribe or tribal organization, Native Hawaiian 
organization, and/or entity authorized by State or local law; any State 
or local government; and/or any agency, instrumentality or subdivision 
of such a government.
    (v) Facility means all or any portion of buildings, structures, 
sites, complexes, equipment, roads, walks, passageways, parking lots, 
rolling stock or other conveyances, or other real or personal property 
or interest in such property, including the site where the building, 
property, structure, or equipment is located. The phrase ``real or 
personal property'' in the preceding sentence includes indoor 
constructs that may or may not be permanently attached to a building or 
structure. Such constructs include, but are not limited to, office 
cubicles, computer kiosks, and similar constructs.
    (w) Federal grantmaking agency means a Federal agency that provides 
financial assistance under any Federal statute.
    (x) Financial assistance means any of the following:
    (1) Any grant, subgrant, loan, or advance of funds, including funds 
extended to any entity for payment to or on behalf of participants 
admitted to that recipient for training, or extended directly to such 
participants for payment to that recipient;
    (2) Provision of the services of grantmaking agency personnel, or 
of other personnel at the grantmaking agency's expense;
    (3) A grant or donation of real or personal property or any 
interest in or use of such property, including:
    (i) Transfers or leases of property for less than fair market value 
or for reduced consideration;
    (ii) Proceeds from a subsequent sale, transfer, or lease of such 
property, if the grantmaking agency's share of the fair market value of 
the property is not returned to the grantmaking agency; and
    (iii) The sale, lease, or license of, and/or the permission to use 
(other than on a casual or transient basis), such property or any 
interest in such property, either:
    (A) Without consideration,
    (B) At a nominal consideration, or
    (C) At a consideration that is reduced or waived either for the 
purpose of assisting the recipient, or in recognition of the public 
interest to be served by such sale or lease to or use by the recipient;
    (4) Waiver of charges that would normally be made for the 
furnishing of services by the grantmaking agency; and
    (5) Any other agreement, arrangement, contract or subcontract 
(other than a procurement contract or a contract of insurance or 
guaranty), or other instrument that has as one of its purposes the 
provision of assistance or benefits under the statute or policy that 
authorizes assistance by the grantmaking agency.
    (y) Financial assistance under Title I of WIOA means any of the 
following, when authorized or extended under WIOA Title I:
    (1) Any grant, subgrant, loan, or advance of federal funds, 
including funds extended to any entity for payment to or on behalf of 
participants admitted to that recipient for training, or extended 
directly to such participants for payment to that recipient;
    (2) Provision of the services of Federal personnel, or of other 
personnel at Federal expense;
    (3) A grant or donation of Federal real or personal property or any 
interest in or use of such property, including:
    (i) Transfers or leases of property for less than fair market value 
or for reduced consideration;
    (ii) Proceeds from a subsequent sale, transfer, or lease of such 
property, if the Federal share of the fair market value of the property 
is not returned to the Federal Government; and
    (iii) The sale, lease, or license of, and/or the permission to use 
(other than on a casual or transient basis), such property or any 
interest in such property, either:
    (A) Without consideration,
    (B) At a nominal consideration, or
    (C) At a consideration that is reduced or waived either for the 
purpose of assisting the recipient, or in recognition of the public 
interest to be served by such sale or lease to or use by the recipient;
    (4) Waiver of charges that would normally be made for the 
furnishing of Government services; and
    (5) Any other agreement, arrangement, contract or subcontract 
(other than a Federal procurement contract or a contract of insurance 
or guaranty), or other instrument that has as one of its purposes the 
provision of assistance or benefits under WIOA Title I.
    (z) Fundamental alteration means:
    (1) A change in the essential nature of a program or activity as 
defined in this part, including but not limited to an aid, service, 
benefit, or training; or
    (2) A cost that a recipient can demonstrate would result in an 
undue burden. Factors to be considered in making the determination 
whether the cost of a modification would result in such a burden 
include:
    (i) The nature and net cost of the modification needed, taking into 
consideration the availability of tax credits and deductions, and/or 
outside financial assistance, for the modification;
    (ii) The overall financial resources of the facility or facilities 
involved in the provision of the modification, including:
    (A) The number of persons aided, benefited, served, or trained by, 
or employed at, the facility or facilities; and
    (B) The effect the modification would have on the expenses and 
resources of the facility or facilities;
    (iii) The overall financial resources of the recipient, including:
    (A) The overall size of the recipient;
    (B) The number of persons aided, benefited, served, trained, or 
employed by the recipient; and
    (C) The number, type and location of the recipient's facilities;
    (iv) The type of operation or operations of the recipient, 
including:
    (A) The geographic separateness and administrative or fiscal 
relationship of the facility or facilities in question to the 
recipient; and
    (B) Where the modification sought is employment-related, the 
composition, structure and functions of the recipient's workforce; and
    (v) The impact of the modification upon the operation of the 
facility or facilities, including:
    (A) The impact on the ability of other participants to receive aid, 
benefit, service, or training, or of other employees to perform their 
duties; and
    (B) The impact on the facility's ability to carry out its mission.

[[Page 4546]]

    (aa) Governor means the chief elected official of any State, or the 
Governor's designee.
    (bb) Grant applicant means an entity that submits required 
documentation to the Governor, recipient, or Department, before and as 
a condition of receiving financial assistance under Title I of WIOA.
    (cc) Grantmaking agency means an entity that provides Federal 
financial assistance.
    (dd) Guideline means written informational material supplementing 
an agency's regulations and provided to grant applicants and recipients 
to provide program-specific interpretations of their responsibilities 
under the regulations.
    (ee) Illegal use of drugs means the use of drugs, the possession or 
distribution of which is unlawful under the Controlled Substances Act, 
as amended (21 U.S.C. 812). ``Illegal use of drugs'' does not include 
the use of a drug taken under supervision of a licensed health care 
professional, or other uses authorized by the Controlled Substances Act 
or other provisions of Federal law.
    (ff) Individual with a disability means a person who has a 
disability as previously defined in this section.
    (1) The term ``individual with a disability'' does not include an 
individual on the basis of:
    (i) Transvestism, transsexualism, or gender dysphoria not resulting 
from physical impairments;
    (ii) Pedophilia, exhibitionism, voyeurism, or other sexual behavior 
disorders;
    (iii) Compulsive gambling, kleptomania, or pyromania; or
    (iv) Psychoactive substance use disorders resulting from current 
illegal use of drugs.
    (2) The term ``individual with a disability'' does not include an 
individual who is currently engaging in the illegal use of drugs, when 
a recipient acts on the basis of such use. This limitation does not 
exclude as an individual with a disability an individual who:
    (i) Has successfully completed a supervised drug rehabilitation 
program and is no longer engaging in the illegal use of drugs, or has 
otherwise been rehabilitated successfully and is no longer engaging in 
the illegal use of drugs;
    (ii) Is participating in a supervised rehabilitation program and is 
no longer engaging in such use; or
    (iii) Is erroneously regarded as engaging in such use, but is not 
engaging in such use, except that it is not a violation of the 
nondiscrimination and equal opportunity provisions of WIOA or this part 
for a recipient to adopt or administer reasonable policies or 
procedures, including but not limited to drug testing, designed to 
ensure that an individual described in paragraph (2)(i) or (ii) of this 
definition is no longer engaging in the illegal use of drugs.
    (3) With regard to employment, the term ``individual with a 
disability'' does not include any individual who:
    (i) Is an alcoholic if:
    (A) The individual's current use of alcohol prevents such 
individual from performing the duties of the job in question, or
    (B) The individual's employment, by reason of such current alcohol 
abuse, would constitute a direct threat to the individual or the safety 
of others; or
    (ii) Has a currently contagious disease or infection, if:
    (A) That disease or infection prevents him or her from performing 
the essential functions of the job in question, or
    (B) The individual's employment, because of that disease or 
infection, would constitute a direct threat to the health or safety of 
the individual or others.
    (gg) Labor market area means an economically integrated geographic 
area within which individuals can reside and find employment within a 
reasonable distance or can readily change employment without changing 
their place of residence. Such an area must be identified in accordance 
with either criteria used by the Bureau of Labor Statistics of the 
Department of Labor in defining such areas, or similar criteria 
established by a Governor.
    (hh) Limited English proficient (LEP) individual means an 
individual whose primary language for communication is not English and 
who has a limited ability to read, speak, write, and/or understand 
English. LEP individuals may be competent in English for certain types 
of communication (e.g., speaking or understanding), but still be LEP 
for other purposes (e.g., reading or writing).
    (ii) LWIA (Local Workforce Investment Area) grant recipient means 
the entity that receives WIOA Title I financial assistance for a Local 
Workforce Investment Area directly from the Governor and disburses 
those funds for workforce investment activities.
    (jj) National Programs means:
    (1) Job Corps; and
    (2) Programs receiving Federal financial assistance under Title I, 
Subtitle D of WIOA directly from the Department. Such programs include, 
but are not limited to, the Migrant and Seasonal Farmworkers Programs, 
Native American Programs, National Dislocated Worker Grant Programs, 
and YouthBuild programs.
    (kk) Noncompliance means a failure of a grant applicant or 
recipient to comply with any of the applicable requirements of the 
nondiscrimination and equal opportunity provisions of WIOA and this 
part.
    (ll) Nondiscrimination Plan means the written document and 
supporting documentation developed under Sec.  38.54.
    (mm) On-the-Job Training (OJT) means training by an employer that 
is provided to a paid participant while the participant is engaged in 
productive work that:
    (1) Provides knowledge or skills essential to the full and adequate 
performance of the job;
    (2) Provides reimbursement to the employer of up to 50 percent of 
the wage rate of the participant, for the extraordinary costs of 
providing the training and additional supervision related to the 
training; and
    (3) Is limited in duration as appropriate to the occupation for 
which the participant is being trained, taking into account the content 
of the training, the prior work experience of the participant, and the 
service strategy of the participant, as appropriate.
    (nn) Other power-driven mobility device means any mobility device 
powered by batteries, fuel, or other engines--whether or not designed 
primarily for use by individuals with mobility disabilities--that is 
used by individuals with mobility disabilities for the purpose of 
locomotion, including golf cars, electronic personal assistance 
mobility devices (EPAMDs), such as the Segway[supreg] PT, or any 
mobility device designed to operate in areas without defined pedestrian 
routes, but that is not a wheelchair within the meaning of this 
section.
    (oo) Participant means an individual who has been determined to be 
eligible to participate in, and who is receiving any aid, benefit, 
service or training under, a program or activity financially assisted 
in whole or in part under Title I of WIOA. ``Participant'' includes, 
but is not limited to, individuals receiving any service(s) under state 
Employment Service programs, and claimants receiving any service(s) or 
benefits under state Unemployment Insurance programs.
    (pp) Participation is considered to commence on the first day, 
following determination of eligibility, on which the participant began 
receiving subsidized aid, benefit, service, or training provided under 
Title I of WIOA.

[[Page 4547]]

    (qq) Parties to a hearing means the Department and the grant 
applicant(s), recipient(s), or Governor.
    (rr) Population eligible to be served means the total population of 
adults and eligible youth who reside within the labor market area that 
is served by a particular recipient, and who are eligible to seek WIOA 
Title I-financially assisted aid, benefits, services or training from 
that recipient. See the definition of ``labor market area'' in this 
section.
    (ss) Program or activity: See ``WIOA Title I-financially assisted 
program or activity'' in this section.
    (tt) Programmatic accessibility means policies, practices, and 
procedures providing effective and meaningful opportunity for persons 
with disabilities to participate in or benefit from aid, benefits, 
services, and training.
    (uu) Prohibited basis means any basis upon which it is illegal to 
discriminate under the nondiscrimination and equal opportunity 
provisions of WIOA or this part, i.e., race, color, religion, sex, 
national origin, age, disability, political affiliation or belief, and, 
for beneficiaries only, citizenship status or participation in a WIOA 
Title I-financially assisted program or activity.
    (vv) Public entity means:
    (1) Any State or local government; and
    (2) Any department, agency, special purpose district, workforce 
investment board, or other instrumentality of a State or States or 
local government.
    (ww) Qualified individual with a disability means--
    (1) With respect to employment, an individual who satisfies the 
requisite skill, experience, education, and other job-related 
requirements of the employment position such individual holds or 
desires, and who, with or without reasonable accommodation, can perform 
the essential functions of such position;
    (2) With respect to aid, benefits, services, or training, an 
individual who, with or without auxiliary aids and services, reasonable 
accommodations, and/or reasonable modifications in policies, practices 
and procedures, meets the essential eligibility requirements for the 
receipt of such aid, benefits, services, or training.
    (xx) Qualified interpreter means an interpreter who is able to 
interpret effectively, accurately, and impartially, either for 
individuals with disabilities or for individuals who are limited 
English proficient. The interpreter must be able to interpret both 
receptively and expressively, using any necessary specialized 
vocabulary, either in-person, through a telephone, a video remote 
interpreting (VRI) service, or via internet, video, or other 
technological methods.
    (1) Qualified interpreter for an individual with a disability 
includes, for example, a sign language interpreter, oral 
transliterator, and cued-language transliterator. When an interpreter 
is provided to a person with a disability, the qualified interpreter 
must be able to sign or otherwise communicate effectively, accurately, 
and impartially, both receptively and expressively, using any necessary 
specialized vocabulary.
    (2) Qualified interpreter for an individual who is limited English 
proficient means an individual who demonstrates expertise and ability 
to communicate information effectively, accurately, and impartially, in 
both English and the other language, and identifies and employs the 
appropriate mode of interpreting (e.g., consecutive, simultaneous, or 
sight translation).
    (yy) Reasonable accommodation. (1) The term ``reasonable 
accommodation'' means:
    (i) Modifications or adjustments to an application/registration 
process that enables a qualified applicant/registrant with a disability 
to be considered for the aid, benefits, services, training, or 
employment that the qualified applicant/registrant desires; or
    (ii) Modifications or adjustments that enable a qualified 
individual with a disability to perform the essential functions of a 
job, or to receive aid, benefits, services, or training equal to that 
provided to qualified individuals without disabilities. These 
modifications or adjustments may be made to:
    (A) The environment where work is performed or aid, benefits, 
services, or training are given; or
    (B) The customary manner in which, or circumstances under which, a 
job is performed or aid, benefits, services, or training are given; or
    (iii) Modifications or adjustments that enable a qualified 
individual with a disability to enjoy the same benefits and privileges 
of the aid, benefits, services, training, or employment as are enjoyed 
by other similarly situated individuals without disabilities.
    (2) Reasonable accommodation includes, but is not limited to:
    (i) Making existing facilities used by applicants, registrants, 
eligible applicants/registrants, participants, applicants for 
employment, and employees readily accessible to and usable by 
individuals with disabilities; and
    (ii) Restructuring of a job or a service, or of the way in which 
aid, benefits, services, or training is/are provided; part-time or 
modified work or training schedules; acquisition or modification of 
equipment or devices; appropriate adjustment or modifications of 
examinations, training materials, or policies; the provision of readers 
or interpreters; and other similar accommodations for individuals with 
disabilities.
    (3) To determine the appropriate reasonable accommodation, it may 
be necessary for the recipient to initiate an informal, interactive 
process with the qualified individual with a disability in need of the 
accommodation. This process should identify the precise limitations 
resulting from the disability and potential reasonable accommodations 
that could overcome those limitations.
    (4) A covered entity is required, absent undue hardship, to provide 
a reasonable accommodation to an otherwise qualified individual who has 
an ``actual disability'' or ``record of'' a disability, but is not 
required to provide a reasonable accommodation to an individual who is 
only ``regarded as'' having a disability.
    (zz) Recipient means 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). The term excludes any ultimate 
beneficiary of the WIOA Title I-financially assisted program or 
activity. In instances in which a Governor operates a program or 
activity, either directly or through a State agency, using 
discretionary funds apportioned to the Governor under WIOA Title I 
(rather than disbursing the funds to another recipient), the Governor 
is also a recipient. In addition, for purposes of this part, One-Stop 
partners, as defined in section 121(b) of WIOA, are treated as 
``recipients,'' and are subject to the nondiscrimination and equal 
opportunity requirements of this part, to the extent that they 
participate in the One-Stop delivery system. ``Recipient'' includes, 
but is not limited to:
    (1) State-level agencies that administer, or are financed in whole 
or in part with, WIOA Title I funds;
    (2) State Workforce Agencies;
    (3) State and local Workforce Investment Boards;
    (4) LWIA grant recipients;
    (5) One-Stop operators;
    (6) Service providers, including eligible training providers;
    (7) On-the-Job Training (OJT) employers;
    (8) Job Corps contractors and center operators;

[[Page 4548]]

    (9) Job Corps national training contractors;
    (10) Outreach and admissions agencies, including Job Corps 
contractors that perform these functions;
    (11) Placement agencies, including Job Corps contractors that 
perform these functions;
    (12) Other National Program recipients.
    (aaa) Registrant means the same as ``applicant'' for purposes of 
this part. See also the definitions of ``application for benefits,'' 
``eligible applicant/registrant,'' ``participant,'' ``participation,'' 
and ``recipient'' in this section.
    (bbb) Respondent means a grant applicant or recipient (including a 
Governor) against which a complaint has been filed under the 
nondiscrimination and equal opportunity provisions of WIOA or this 
part.
    (ccc) Secretary means the Secretary of Labor, U.S. Department of 
Labor, or the Secretary's designee.
    (ddd) Sectarian activities means religious worship or ceremony, or 
sectarian instruction.
    (eee) Section 504 means Section 504 of the Rehabilitation Act of 
1973, 29 U.S.C. 794, as amended, which forbids discrimination against 
qualified individuals with disabilities in federally-financed and 
conducted programs and activities.
    (fff) Service animal means any dog that is individually trained to 
do work or perform tasks for the benefit of an individual with a 
disability, including a physical, sensory, psychiatric, intellectual, 
or other mental disability. Other species of animals, whether wild or 
domestic, trained or untrained, are not service animals for the 
purposes of this definition. The work or tasks performed by a service 
animal must be directly related to the individual's disability. 
Examples of work or tasks include, but are not limited to, assisting 
individuals who are blind or have low vision with navigation and other 
tasks, alerting individuals who are deaf or hard of hearing to the 
presence of people or sounds, providing non-violent protection or 
rescue work, pulling a wheelchair, assisting an individual during a 
seizure, alerting individuals to the presence of allergens, retrieving 
items such as medicine or the telephone, providing physical support and 
assistance with balance and stability to individuals with mobility 
disabilities, and helping persons with psychiatric and neurological 
disabilities by preventing or interrupting impulsive or destructive 
behaviors. The crime deterrent effects of an animal's presence and the 
provision of emotional support, well-being, comfort, or companionship, 
without more, do not constitute work or tasks for the purposes of this 
definition.
    (ggg) Service provider means:
    (1) Any operator of, or provider of aid, benefits, services, or 
training to:
    (i) Any program or activity that receives WIOA Title I financial 
assistance from or through any State or LWIA grant recipient; or
    (ii) Any participant through that participant's Individual Training 
Account (ITA); or
    (2) Any entity that is selected and/or certified as an eligible 
provider of training services to participants.
    (hhh) Small recipient means a recipient who:
    (1) Serves a total of fewer than 15 beneficiaries during the entire 
grant year, and
    (2) Employs fewer than 15 employees on any given day during the 
grant year.
    (iii) Solicitor means the Solicitor of Labor, U.S. Department of 
Labor, or the Solicitor's designee.
    (jjj) State means the individual states of the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, the Virgin 
Islands, American Samoa, Guam, Wake Island, the Commonwealth of the 
Northern Mariana Islands, the Federated States of Micronesia, the 
Republic of the Marshall Islands, and Palau.
    (kkk) State Programs means programs financially assisted in whole 
or in part under Title I of WIOA in which either:
    (1) The Governor and/or State receives and disburses the grant to 
or through LWIA grant recipients; or
    (2) The Governor retains the grant funds and operates the programs, 
either directly or through a State agency.
    (3) ``State programs'' also includes State Workforce Agencies, 
State Employment Service agencies, and/or State unemployment 
compensation agencies.
    (lll) State Workforce Agency (SWA) means the State agency that, 
under the State Administrator, contains both State agencies with 
responsibility for administering programs authorized under the Wagner-
Peyser Act, and unemployment insurance programs authorized under Title 
III of the Social Security Act.
    (mmm) Supportive services means services, such as transportation, 
child care, dependent care, housing, and needs-related payments, that 
are necessary to enable an individual to participate in WIOA Title I-
financially assisted programs and activities, as consistent with the 
provisions of WIOA Title I.
    (nnn) Terminee means a participant whose participation in the 
program or employee whose employment with the program ends voluntarily 
or involuntarily, during the applicable program year.
    (ooo) Title VI means Title VI of the Civil Rights Act of 1964, 42 
U.S.C. 2000d, et seq., as amended, which forbids recipients of Federal 
financial assistance from discriminating on the basis of race, color, 
or national origin.
    (ppp) Transferee means a person or entity to whom or to which real 
or personal property, or an interest in such property, is transferred.
    (qqq) Ultimate beneficiary See the definition of ``beneficiary'' in 
this section.
    (rrr) Undue burden or undue hardship has different meanings, 
depending upon whether it is used with regard to reasonable 
accommodation of individuals with disabilities, or with regard to 
religious accommodation.
    (1) Reasonable accommodation of individuals with disabilities. (i) 
In general, ``undue hardship'' means significant difficulty or expense 
incurred by a recipient, when considered in light of the factors set 
forth in paragraph (1)(ii) of this definition.
    (ii) Factors to be considered in determining whether an 
accommodation would impose an undue hardship on a recipient include:
    (A) The nature and net cost of the accommodation needed, taking 
into consideration the availability of tax credits and deductions, and/
or outside funding, for the accommodation;
    (B) The overall financial resources of the facility or facilities 
involved in the provision of the reasonable accommodation, including:
    (1) The number of persons aided, benefited, served, or trained by, 
or employed at, the facility or facilities, and
    (2) The effect the accommodation would have on the expenses and 
resources of the facility or facilities;
    (C) The overall financial resources of the recipient, including:
    (1) The overall size of the recipient,
    (2) The number of persons aided, benefited, served, trained, or 
employed by the recipient, and
    (3) The number, type and location of the recipient's facilities;
    (D) The type of operation or operations of the recipient, 
including:
    (1) The geographic separateness and administrative or fiscal 
relationship of the facility or facilities in question to the 
recipient, and
    (2) Where the individual is seeking an employment-related 
accommodation, the composition, structure and functions of the 
recipient's workforce; and

[[Page 4549]]

    (E) The impact of the accommodation upon the operation of the 
facility or facilities, including:
    (1) The impact on the ability of other participants to receive aid, 
benefits, services, or training, or of other employees to perform their 
duties, and
    (2) The impact on the facility's ability to carry out its mission.
    (2) Religious accommodation. For purposes of religious 
accommodation only, ``undue hardship'' means anything more than a de 
minimis cost or operational burden that a particular accommodation 
would impose upon a recipient.
    (sss) Video remote interpreting (VRI) service means an interpreting 
service that uses video conference technology over dedicated lines or 
wireless technology offering high-speed, wide-bandwidth video 
connection that delivers high-quality video images, as provided in 
Sec.  38.15.
    (ttt) Vital information means information, whether written, oral or 
electronic, that is necessary for an individual to understand how to 
obtain any aid, benefit, service and/or training; necessary for an 
individual to obtain any aid, benefit, service, and/or training; or 
required by law. Examples of documents containing vital information 
include, but are not limited to applications, consent, and complaint 
forms; notices of rights and responsibilities; notices advising LEP 
individuals of their rights under this part, including the availability 
of free language assistance; rulebooks; written tests that do not 
assess English language competency, but rather assess competency for a 
particular license, job, or skill for which English proficiency is not 
required; and letters or notices that require a response from the 
beneficiary or applicant, participant, or employee.
    (uuu) Wheelchair means a manually-operated or power-driven device 
designed primarily for use by an individual with a mobility disability 
for the main purpose of indoor and/or outdoor locomotion.
    (vvv) WIOA means the Workforce Innovation and Opportunity Act.
    (www) WIOA Title I financial assistance. See the definition of 
``Financial assistance under WIOA'' in this section.
    (xxx) WIOA Title I-financially assisted program or activity means:
    (1) A program or activity, operated by a recipient and financially 
assisted, in whole or in part, under Title I of WIOA that provides 
either:
    (i) Any aid, benefit, service, or training to individuals; or
    (ii) Facilities for furnishing any aid, benefits, services, or 
training to individuals;
    (2) Aid, benefit, service, or training provided in facilities that 
are being or were constructed with the aid of Federal financial 
assistance under WIOA Title I; or
    (3) Aid, benefit, service, or training provided with the aid of any 
non-WIOA Title I financial assistance, property, or other resources 
that are required to be expended or made available in order for the 
program to meet matching requirements or other conditions which must be 
met in order to receive the WIOA Title I financial assistance. See the 
definition of ``aid, benefit, service, or training'' in this section.


Sec.  38.5  General prohibitions on discrimination.

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


Sec.  38.6  Specific discriminatory actions prohibited on bases other 
than disability.

    (a) For the purposes of this section, prohibited bases for 
discrimination are race, color, religion, sex, national origin, age, 
political affiliation or belief, and for beneficiaries, applicants, and 
participants only, citizenship or participation in any WIOA Title I-
financially assisted program or activity.
    (b) A recipient must not, directly or through contractual, 
licensing, or other arrangements, on a prohibited basis:
    (1) Deny an individual any aid, benefit, service, or training 
provided under a WIOA Title I-financially assisted program or activity;
    (2) Provide to an individual any aid, benefit, service, or training 
that is different, or is provided in a different manner, from that 
provided to others under a WIOA Title I-financially assisted program or 
activity;
    (3) Subject an individual to segregation or separate treatment in 
any matter related to receipt of any aid, benefit, service, or training 
under a WIOA Title I-financially assisted program or activity;
    (4) Restrict an individual in any way in the enjoyment of any 
advantage or privilege enjoyed by others receiving any aid, benefit, 
service, or training under a WIOA Title I-financially assisted program 
or activity;
    (5) Treat an individual differently from others in determining 
whether the individual satisfies any admission, enrollment, 
eligibility, membership, or other requirement or condition for any aid, 
benefit, service, or training provided under a WIOA Title I-financially 
assisted program or activity;
    (6) Deny or limit an individual with respect to any opportunity to 
participate in a WIOA Title I-financially assisted program or activity, 
or afford the individual an opportunity to do so that is different from 
the opportunity afforded others under a WIOA Title I-financially 
assisted program or activity;
    (7) Deny an individual the opportunity to participate as a member 
of a planning or advisory body that is an integral part of the WIOA 
Title I-financially assisted program or activity; or
    (8) Otherwise limit an individual enjoyment of any right, 
privilege, advantage, or opportunity enjoyed by others receiving any 
WIOA Title I-financially assisted aid, benefit, service, or training.
    (c) A recipient must not, directly or through contractual, 
licensing, or other arrangements:
    (1) Aid or perpetuate discrimination by providing significant 
assistance to an agency, organization, or person that discriminates on 
a basis prohibited by WIOA Section 188 or this part in providing any 
aid, benefit, service, or training, to registrants, applicants or 
participants in a WIOA Title I-financially assisted program or 
activity; or
    (2) Refuse to accommodate an individual's religious practices or 
beliefs, unless to do so would result in undue hardship, as defined in 
Sec.  38.4(rrr)(2).
    (d)(1) In making any of the determinations listed in paragraph 
(d)(2) of this section, either directly or through contractual, 
licensing, or other arrangements, a recipient must not use standards, 
procedures, criteria, or administrative methods that have any of the 
following purposes or effects:
    (i) Subjecting individuals to discrimination on a prohibited basis; 
or
    (ii) Defeating or substantially impairing, on a prohibited basis, 
accomplishment of the objectives of either:
    (A) The WIOA Title I-financially assisted program or activity; or

[[Page 4550]]

    (B) The nondiscrimination and equal opportunity provisions of WIOA 
or this part.
    (2) The determinations to which this paragraph applies include, but 
are not limited to:
    (i) The types of aid, benefit, service, training, or facilities 
that will be provided under any WIOA Title I-financially assisted 
program or activity;
    (ii) The class of individuals to whom such aid, benefit, service, 
training, or facilities will be provided; or
    (iii) The situations in which such aid, benefit, service, training, 
or facilities will be provided.
    (3) Paragraph (d) of this section applies to the administration of 
WIOA Title I-financially assisted programs or activities providing aid, 
benefit, service, training, or facilities in any manner, including, but 
not limited to:
    (i) Outreach and recruitment;
    (ii) Registration;
    (iii) Counseling and guidance;
    (iv) Testing;
    (v) Selection, placement, appointment, and referral;
    (vi) Training; and
    (vii) Promotion and retention.
    (4) A recipient must not take any of the prohibited actions listed 
in paragraph (d) of this section either directly or through 
contractual, licensing, or other arrangements.
    (e) In determining the site or location of facilities, a grant 
applicant or recipient must not make selections that have any of the 
following purposes or effects:
    (1) On a prohibited basis:
    (i) Excluding individuals from a WIOA Title I-financially assisted 
program or activity;
    (ii) Denying them the benefits of such a program or activity; or
    (iii) Subjecting them to discrimination; or
    (2) Defeating or substantially impairing the accomplishment of the 
objectives of either:
    (i) The WIOA Title I-financially assisted program or activity; or
    (ii) The nondiscrimination and equal opportunity provisions of WIOA 
or this part.
    (f)(1) 29 CFR part 2, subpart D governs the circumstances under 
which DOL support, including under WIOA Title I-financial assistance, 
may be used to employ or train participants in religious activities. 
Under that subpart, such assistance may be used for such employment or 
training only when the assistance is provided indirectly within the 
meaning of the Establishment Clause of the U.S. Constitution, and not 
when the assistance is provided directly. As explained in that subpart, 
assistance provided through an Individual Training Account is generally 
considered indirect, and other mechanisms may also be considered 
indirect. See also 20 CFR 667.266 and 667.275. 29 CFR part 2, subpart D 
also contains requirements related to equal treatment of religious 
organizations in Department of Labor programs, and to protection of 
religious liberty for Department of Labor social service providers and 
beneficiaries.
    (2) Except under the circumstances described in paragraph (f)(3) of 
this section, a recipient must not employ participants to carry out the 
construction, operation, or maintenance of any part of any facility 
that is used, or to be used, for religious instruction or as a place 
for religious worship.
    (3) A recipient may employ participants to carry out the 
maintenance of a facility that is not primarily or inherently devoted 
to religious instruction or religious worship if the organization 
operating the facility is part of a program or activity providing 
services to participants.
    (g) The exclusion of an individual from programs or activities 
limited by Federal statute or Executive Order to a certain class or 
classes of individuals of which the individual in question is not a 
member is not prohibited by this part.


Sec.  38.7  Discrimination prohibited based on sex.

    (a) In providing any aid, benefit, service, or training under a 
WIOA Title I-financially assisted program or activity, a recipient must 
not directly or through contractual, licensing, or other arrangements, 
discriminate on the basis of sex. An individual may not be excluded 
from participation in, denied the benefits of, or subjected to 
discrimination under any WIOA Title I- financially assisted program or 
activity based on sex. The term sex includes, but is not limited to, 
pregnancy, childbirth, and related medical conditions, transgender 
status, and gender identity.
    (b) Recipients may not make any distinction based on sex in 
providing any aid, benefit, service, or training under a WIOA Title I-
financially assisted program or activity. Such unlawful sex-based 
discriminatory practices include, but are not limited to, the 
following:
    (1) Making a distinction between married and unmarried persons that 
is not applied equally to both sexes;
    (2) Denying individuals of one sex who have children access to any 
aid, benefit, service, or training that is available to individuals of 
another sex who have children;
    (3) Adversely treating unmarried individuals of one sex, but not 
unmarried individuals of an other sex, who become parents;
    (4) Distinguishing on the basis of sex in formal or informal job 
training and/or educational programs, other opportunities such as 
networking, mentoring, individual development plans, or on the job 
training opportunities;
    (5) Posting job announcements for jobs that recruit or advertise 
for individuals for certain jobs on the basis of sex, including through 
the use of gender-specific terms for jobs (such as ``waitress'');
    (6) Treating an individual adversely because the individual 
identifies with a gender different from that individual's sex assigned 
at birth, or the individual has undergone, is undergoing, or is 
planning to undergo, any processes or procedures designed to facilitate 
the individual's transition to a sex other than the individual's sex 
assigned at birth;
    (7) Denying individuals who are pregnant, who become pregnant, or 
who plan to become pregnant, opportunities for or access to aid, 
benefit, service, or training on the basis of pregnancy;
    (8) Making any facilities associated with WIOA Title I-financially 
assisted program or activities available only to members of one sex, 
except that if the recipient provides restrooms or changing facilities, 
the recipient must provide separate or single-user restrooms or 
changing facilities;
    (9) Denying individuals access to the bathrooms used by the gender 
with which they identify.
    (c) A recipient's policies or practices that have an adverse impact 
on the basis of sex, and are not program-related and consistent with 
program necessity, constitute sex discrimination in violation of WIOA 
and this part.
    (d) Discrimination on the basis of sex stereotypes, such as 
stereotypes about how persons of a particular sex are expected to look, 
speak, or act, is a form of unlawful sex discrimination. Examples of 
sex stereotyping include, but are not limited to:
    (1) Denying an individual access to, or otherwise subjecting the 
individual to adverse treatment in accessing aid, benefit, service, or 
training, under a WIOA Title I-financially assisted program or activity 
because of that individual's failure to comply with gender norms and 
expectations for dress, appearance and/or behavior, including wearing 
jewelry, make-up, high-heeled shoes, suits or neckties.
    (2) Harassment or adverse treatment of a male applicant, 
participant, or

[[Page 4551]]

beneficiary of a WIOA Title I-financially assisted program or activity 
because he is considered effeminate or insufficiently masculine.
    (3) Adverse treatment of an applicant, participant, or beneficiary 
of a WIOA Title I-financially assisted program or activity because of 
the individual's actual or perceived gender identity.
    (4) Adverse treatment of an applicant, participant, or beneficiary 
of a WIOA Title I-financially assisted program or activity based on sex 
stereotypes about caregiver responsibilities. For example, adverse 
treatment of a female participant because of a sex assumption that she 
has (or will have) family caretaking responsibilities, and that those 
responsibilities will interfere with her ability to access aid, 
benefit, service or training, is discrimination based on sex.
    (5) Adverse treatment of a male applicant, participant, or 
beneficiary of a WIOA Title I- financially assisted program or activity 
because he has taken, or is planning to take, care of his newborn or 
recently adopted or fostered child, based on the sex-stereotyped belief 
that women, and not men, should care for children.
    (6) Denying a woman access to, or otherwise subjecting her to 
adverse treatment in accessing, aid, benefit, service, or training 
under a WIOA Title I-financially assisted program or activity, based on 
the sex-stereotyped belief that women with children should not work 
long hours, regardless of whether the recipient is acting out of 
hostility or belief that it is acting in her or her children's best 
interest.
    (7) Denying an individual access to, or otherwise subjecting the 
individual to adverse treatment in accessing aid, benefit, service, or 
training, under a WIOA Title I-financially assisted program or 
activity, based on sex stereotyping including the belief that a victim 
of domestic violence would disrupt the program or activity and/or may 
be unable to access any aid, benefit, service, or training.
    (8) Adverse treatment of a woman applicant, participant, or 
beneficiary of a WIOA Title I-financially assisted program or activity 
because she does not dress or talk in a feminine manner.
    (9) Denying an individual access to, or otherwise subjecting the 
individual to adverse treatment in accessing aid, benefit, service, or 
training, under a WIOA Title I-financially assisted program or 
activity, because the individual does not conform to a sex stereotype 
about individuals of a particular sex working in a specific job, 
sector, or industry.


Sec.  38.8  Discrimination prohibited based on pregnancy.

    Discrimination on the basis of pregnancy, childbirth, or related 
medical conditions, including childbearing capacity, is a form of sex 
discrimination and a violation of the nondiscrimination provisions of 
WIOA and this part. Recipients may not treat persons of childbearing 
capacity, or those affected by pregnancy, childbirth, or related 
medical conditions, adversely in accessing aid, benefit, service, or 
training, under a WIOA Title I-financially assisted program or 
activity. Related medical conditions include, but are not limited to: 
Lactation; disorders directly related to pregnancy, such as 
preeclampsia (pregnancy-induced high blood pressure), placenta previa, 
and gestational diabetes; symptoms such as back pain; complications 
requiring bed rest; and the after-effects of a delivery. A pregnancy-
related medical condition may also be a disability. See Sec.  
38.4(q)(3)(ii). Examples of unlawful pregnancy discrimination may 
include:
    (a) Refusing to provide any aid, benefit, service, or training, 
under a WIOA Title I-financially assisted program or activity to a 
pregnant individual or an individual of childbearing capacity, or 
otherwise subjecting such individuals to adverse treatment on the basis 
of pregnancy or childbearing capacity;
    (b) Limiting an individual's access to any aid, benefit, service, 
or training under a WIOA Title I-financially assisted program or 
activity based on her pregnancy, or requiring a doctor's note in order 
for a pregnant woman to begin or continue participation while pregnant 
when doctors' notes are not required for participants who are similarly 
situated;
    (c) Denying an individual access to any aid, benefit, service, or 
training under a WIOA Title I-financially assisted program or activity 
or requiring the individual to terminate participation in any WIOA 
Title I-financially assisted program or activity when the individual 
becomes pregnant or has a child;
    (d) Denying reasonable accommodations or modifications of policies, 
practices, or procedures to a pregnant applicant or participant who is 
temporarily unable to participate in some portions of a WIOA Title I-
financially assisted program or activity because of pregnancy, 
childbirth, and/or related medical conditions, when such accommodations 
or modifications are provided, or are required to be provided, by a 
recipient's policy or by other relevant laws, to other applicants or 
participants not so affected but similar in their ability or inability 
to participate.


Sec.  38.9  Discrimination prohibited based on national origin, 
including limited English proficiency.

    (a) In providing any aid, benefit, service, or training under a 
WIOA Title I-financially assisted program or activity, a recipient must 
not, directly or through contractual, licensing, or other arrangements, 
discriminate on the basis of national origin. An individual must not be 
excluded from participation in, denied the benefits of, or otherwise 
subjected to discrimination under, any WIOA Title I-financially 
assisted program or activity based on national origin. National origin 
discrimination includes treating individual beneficiaries, 
participants, or applicants for aid, benefit, service or training under 
any WIOA Title I-financially assisted program or activity adversely 
because they (or their families or ancestors) are from a particular 
country or part of the world, because of ethnicity or accent (including 
physical, linguistic, and cultural characteristics closely associated 
with a national origin group), or because the recipient perceives the 
individual to be of a certain national origin, even if they are not.
    (b) A recipient must take reasonable steps to ensure meaningful 
access to each limited English proficient (LEP) individual served or 
encountered so that LEP individuals are effectively informed about and/
or able to participate in the program or activity.
    (1) Reasonable steps generally may include, but are not limited to, 
an assessment of an LEP individual to determine language assistance 
needs; providing oral interpretation or written translation of both 
hard-copy and electronic materials, in the appropriate non-English 
languages, to LEP individuals; and outreach to LEP communities to 
improve service delivery in needed languages.
    (2) Reasonable steps to provide meaningful access to training 
programs may include, but are not limited to, providing:
    (i) Written training materials in appropriate non-English languages 
by written translation or by oral interpretation or summarization; and
    (ii) Oral training content in appropriate non-English languages 
through in-person interpretation or telephone interpretation.
    (c) A recipient should ensure that every program delivery avenue 
(e.g., electronic, in person, telephonic) conveys in the appropriate 
languages how an individual may effectively learn about, participate 
in, and/or access any

[[Page 4552]]

aid, benefit, service, or training that the recipient provides. As a 
recipient develops new methods for delivery of information or 
assistance, it is required to take reasonable steps to ensure that LEP 
individuals remain able to learn about, participate in, and/or access 
any aid, benefit, service, or training that the recipient provides.
    (d) Any language assistance services, whether oral interpretation 
or written translation, must be provided in a timely manner and free of 
charge. Language assistance will be considered timely when it is 
provided at a place and time that ensures equal access and avoids the 
delay or denial of any aid, benefit, service, or training at issue.
    (e) A recipient must provide adequate notice to LEP individuals of 
the existence of interpretation and translation services and that they 
are available free of charge.
    (f)(1) A recipient shall not require an LEP individual to provide 
their own interpreter.
    (2) A recipient also shall not rely on an LEP individual's minor 
child or adult family or friend(s) to interpret or facilitate 
communication, except:
    (i) An LEP individual's minor child or adult family or friend(s) 
may interpret or facilitate communication in emergency situations while 
awaiting a qualified interpreter; or
    (ii) The accompanying adult (but not minor child) may interpret or 
facilitate communication when the information conveyed is of minimal 
importance to the services to be provided or when the LEP individual 
specifically requests that the accompanying adult provide language 
assistance, the accompanying adult agrees to provide assistance, and 
reliance on that adult for such assistance is appropriate under the 
circumstances. When the recipient permits the accompanying adult to 
provide such assistance, it must make and retain a record of the LEP 
individual's decision to use their own interpreter.
    (3) Where precise, complete, and accurate interpretations or 
translation of information and/or testimony are critical for 
adjudicatory or legal reasons, or where the competency of the 
interpreter requested by the LEP individual is not established, a 
recipient may decide to provide its own, independent interpreter, even 
if an LEP individual wants to use their own interpreter as well.
    (g) With regard to vital information:
    (1) For languages spoken by a significant number or portion of the 
population eligible to be served, or likely to be encountered, a 
recipient must translate vital information in written materials into 
these languages and make the translations readily available in hard 
copy, upon request, or electronically such as on a Web site. Written 
training materials offered or used within employment-related training 
programs as defined under Sec.  38.4(t) are excluded from these 
translation requirements. However, recipients must take reasonable 
steps to ensure meaningful access as stated in Sec.  38.9(b).
    (2) For languages not spoken by a significant number or portion of 
the population eligible to be served, or likely to be encountered, a 
recipient must make reasonable steps to meet the particularized 
language needs of LEP individuals who seek to learn about, participate 
in, and/or access the aid, benefit, service or training that the 
recipient provides. Vital information may be conveyed orally if not 
translated.
    (3) Recipients must include a ``Babel notice,'' indicating that 
language assistance is available, in all communications of vital 
information, such as hard-copy letters or decisions or those 
communications posted on Web sites.
    (h) To the extent otherwise required by this part, once a recipient 
becomes aware of the non-English preferred language of an LEP 
beneficiary, participant, or applicant for aid, benefit, service or 
training, the recipient must convey vital information in that language.
    (i) Recipients are required to take reasonable steps to provide 
language assistance and should develop a written language access plan 
to ensure that LEP individuals have meaningful access. The Appendix to 
this section provides guidance to recipients on developing a language 
access plan.

Appendix to Sec.  38.9--Guidance to Recipients

Recipient Language Assistance Plan (LEP Plan): Promising Practices

    The guidelines in this appendix are consistent with and, in 
large part, derived from existing federal guidance to federal 
financial assistance recipients to take reasonable steps to ensure 
access by limited English proficient (LEP) individuals.
    Recipients that develop, implement, and periodically revise a 
written language assistance plan are more likely to fulfill their 
obligation of taking reasonable steps to ensure access to programs 
and activities by LEP individuals. The guidelines set forth below 
provide a clear framework for developing a written plan that will 
ensure meaningful access to LEP individuals. Developing and 
implementing a written plan has many benefits, including providing 
the recipient with a roadmap for establishing and documenting 
compliance with nondiscrimination obligations and ensuring that LEP 
beneficiaries receive the necessary assistance to participate in the 
recipient's programs and activities.
    The elements of a successful LEP plan are not fixed. Written LEP 
plans must be tailored to the recipient's specific programs and 
activities. And, over time, plans will need to be revised to reflect 
new recommendations and government guidance; changes in the 
recipient's operations, as well as the recipient's experiences and 
lessons learned; changing demographics; and stakeholder and 
beneficiary feedback. Nonetheless, a recipient that develops an LEP 
plan incorporating the elements identified below will benefit 
greatly in accomplishing its mission and providing an equal 
opportunity for LEP individuals to participate in its programs and 
activities.
    A written LEP plan should identify and describe:

1. The process the recipient will use to determine the language 
needs of individuals who may or may seek to participate in the 
recipient's program and activities (self- or needs-assessment)
2. The results of the assessment, e.g., identifying the LEP 
populations to be served by the recipient
3. Timelines for implementing the written LEP plan
4. All language services to be provided to LEP individuals
5. The manner in which LEP individuals will be advised of available 
services
6. Steps individuals should take to request language assistance
7. The manner in which staff will provide language assistance 
services
8. What steps must be taken to implement the LEP plan, e.g., 
creating or modifying policy documents, employee manuals, employee 
training material, posters, Web sites, outreach material, contracts, 
and electronic and information technologies, applications, or 
adaptations
9. The manner in which staff will be trained
10. Steps the recipient will take to ensure quality control, 
including monitoring implementation, establishing a complaint 
process, timely addressing complaints, and obtaining feedback from 
stakeholders and employees
11. The manner in which the recipient will document the provision of 
language services
12. The schedule for revising the LEP plan
13. The individual(s) assigned to oversee implementation of the plan 
(e.g., LEP Coordinator or Program Manager)
14. Allocation of resources to implement the plan

Illustrative Applications in Recipient Programs and Activities

Unemployment Insurance Program Example

    1. Unemployment insurance programs are recipients covered under 
this proposed rule, and States must take reasonable steps to provide 
meaningful access to LEP individuals served or encountered in its 
unemployment insurance programs and activities. For example, given 
the nature and importance of unemployment insurance, if

[[Page 4553]]

an LEP individual who speaks Urdu seeks information about 
unemployment insurance from a state's telephone call center that 
assists unemployment insurance enrollees and applicants, the State 
may consider the proportion of Urdu-speaking LEP individuals served 
or encountered by the State's unemployment insurance program; the 
frequency with which Urdu-speaking LEP individuals come in contact 
with the State's unemployment insurance program; and the resources 
available to the State and costs in determining how it will provide 
this LEP individual with language assistance. Urdu is a language 
that is rarely, if ever, encountered by this State's UI program. 
Because low-cost commercial language services, such as telephonic 
oral interpretation services, are widely available, the State 
should, at a minimum, provide the Urdu-speaking LEP individual 
telephonic interpretation services to ensure meaningful access to 
unemployment insurance because, even if Urdu is a non-frequently 
encountered, non-English language, low-cost commercial language 
services, such as telephonic oral interpretation services, are 
widely available.

Population Significance as it Pertains to Vital Information

    2. Recipients have some flexibility on the means to provide 
language assistance services to LEP individuals, as long as they 
take reasonable steps to provide meaningful access to their program 
or activity. For instance, if a recipient provides career services 
to an LEP individual who speaks Tagalog and the individual requests 
a translated brochure on an upcoming job fair, the recipient should 
consider the importance of the information in the brochure, and may 
consider: The proportion of Tagalog-speaking LEP individuals served 
or encountered; the frequency with which Tagalog-speaking LEP 
individuals come in contact with the recipient; and the resources 
available to the recipient. In this instance, the recipient would be 
required to provide a written translation of the brochure for the 
LEP individual if Tagalog were a language spoken by a significant 
number or proportion of the LEP persons in the eligible service 
population and a language frequently encountered in the career 
services program. But if Tagalog is not spoken by a significant 
number or proportion of the population eligible to be served, and 
was not frequently encountered by the career services program, it 
would be reasonable for the recipient to provide an oral summary of 
the brochure's contents in Tagalog.

Training Provider Example Incorporating English Language Learning

    3. Providing English language learning opportunities may be one 
step that a recipient takes in order to take reasonable steps to 
provide an LEP individual meaningful access to its programs or 
activities. For example, John, a Korean-speaking LEP individual, 
learns through the One Stop Center about available welding positions 
at ABC Welding, Co. He also learns through the One Stop Center about 
upcoming welder training courses offered at XYZ Technical Institute, 
an eligible training provider. John decides to enroll in one of the 
XYZ welding courses. XYZ, which conducts its training courses in 
English, must take reasonable steps to provide John meaningful 
access to the welder training course.
    Recipients may work together to provide meaningful access, but 
remain independently obligated to take reasonable steps to provide 
meaningful access to programs and activities. In this regard, XYZ is 
not required to administer an English language learning class 
itself. Instead, XYZ may coordinate with the One Stop Center to 
ensure that John receives appropriate English language learning 
either directly from the One Stop or from another organization that 
provides such English language training. The English language class 
would not be offered to John instead of the training program, but 
John could attend the English language class at the same time as or 
prior to the training program. Whether John takes the English class 
before or concurrently with the welding course will depend on many 
factors including an objective, individualized analysis of John's 
English proficiency relative to the welding course. Regardless of 
how the English language learning is delivered, it must be provided 
at no cost to John.
    In evaluating whether reasonable steps include oral 
interpretation, written translation, English language learning, 
another language service, or some combination of these services, XYZ 
may work with the One-Stop Center to provide meaningful access to 
John.


Sec.  38.10  Harassment prohibited.

    Harassment of an individual based on race, color, religion, sex, 
national origin, age, disability, political affiliation or belief, and 
for beneficiaries, applicants and participants only, citizenship status 
or participation in any WIOA Title I-financially assisted program or 
activity is a violation of the nondiscrimination provisions of WIOA and 
this part.
    (a) Unwelcome sexual advances, requests for sexual favors, or 
offensive remarks about a person's race, color, religion, sex, national 
origin, age, disability, political affiliation or belief, or 
citizenship or participation, and other unwelcome verbal or physical 
conduct based on one or more of these protected categories constitutes 
unlawful harassment on that basi(e)s when:
    (1) Submission to such conduct is made either explicitly or 
implicitly a term or condition of accessing the aid, benefit, service, 
or training of, or employment in the administration of or in connection 
with, any WIOA Title I-financially assisted program or activity;
    (2) Submission to or rejection of such conduct by an individual is 
used as the basis for limiting that individual's access to any aid, 
benefit, service, training or employment from, or employment in the 
administration of or in connection with, any WIOA Title I-financially 
assisted program or activity; or
    (3) Such conduct has the purpose or effect of unreasonably 
interfering with an individual's participation in a WIOA Title I-
financially assisted program or activity creating an intimidating, 
hostile or offensive program environment.
    (b) Harassment because of sex includes harassment based on gender 
identity and failure to comport with sex stereotypes; harassment based 
on pregnancy, childbirth, or related medical conditions; and sex-based 
harassment that is not sexual in nature but that is because of sex or 
where one sex is targeted for the harassment.


Sec.  38.11  Discrimination prohibited based on citizenship status.

    In providing any aid, benefit, service, or training under a WIOA 
Title I-financially assisted program or activity, a recipient must not 
directly or through contractual, licensing, or other arrangements, 
discriminate on the basis of citizenship status. Individuals protected 
under this section include citizens and nationals of the United States, 
lawfully admitted permanent resident aliens, refugees, asylees, and 
parolees, and other immigrants authorized by the Secretary of Homeland 
Security or the Secretary's designee to work in the United States. 
Citizenship discrimination occurs when a recipient maintains and 
enforces policies and procedures that have the purpose or effect of 
discriminating against individual beneficiaries, applicants, and 
participants, on the basis of their status as citizens or nationals of 
the United States lawfully admitted permanent resident aliens, 
refugees, asylees, and parolees, or other immigrants authorized by the 
Secretary of Homeland Security or the Secretary's designee to work in 
the United States.


Sec.  38.12  Discrimination prohibited based on disability.

    (a) In providing any aid, benefit, service, or training under a 
WIOA Title I-financially assisted program or activity, a recipient must 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of disability:
    (1) Deny a qualified individual with a disability the opportunity 
to participate in or benefit from the aid, benefit, service, or 
training;
    (2) Afford a qualified individual with a disability an opportunity 
to participate in or benefit from the aid, benefits, services, or 
training that is not equal to that afforded others;
    (3) Provide a qualified individual with a disability with any aid, 
benefit, service or training that is not as effective

[[Page 4554]]

in affording equal opportunity to obtain the same result, to gain the 
same benefit, or to reach the same level of achievement as that 
provided to others;
    (4) Provide different, segregated, or separate aid, benefit, 
service, or training to individuals with disabilities, or to any class 
of individuals with disabilities, unless such action is necessary to 
provide qualified individuals with disabilities with any aid, benefit, 
service or training that are as effective as those provided to others;
    (5) Deny a qualified individual with a disability the opportunity 
to participate as a member of planning or advisory boards; or
    (6) Otherwise limit a qualified individual with a disability in 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving any aid, benefit, service or training.
    (b) A recipient must not, directly or through contractual, 
licensing, or other arrangements, aid or perpetuate discrimination 
against qualified individuals with disabilities by providing 
significant assistance to an agency, organization, or person that 
discriminates on the basis of disability in providing any aid, benefit, 
service or training to registrants, applicants, or participants.
    (c) A recipient must not deny a qualified individual with a 
disability the opportunity to participate in WIOA Title I-financially 
assisted programs or activities despite the existence of permissibly 
separate or different programs or activities.
    (d) A recipient must administer WIOA Title I-financially assisted 
programs and activities in the most integrated setting appropriate to 
the needs of qualified individuals with disabilities.
    (e) A recipient must not, directly or through contractual, 
licensing, or other arrangements, use standards, procedures, criteria, 
or administrative methods:
    (1) That have the purpose or effect of subjecting qualified 
individuals with disabilities to discrimination on the basis of 
disability;
    (2) That have the purpose or effect of defeating or substantially 
impairing accomplishment of the objectives of the WIOA Title I-
financially assisted program or activity with respect to individuals 
with disabilities; or
    (3) That perpetuate the discrimination of another entity if both 
entities are subject to common administrative control or are agencies 
of the same state.
    (f) In determining the site or location of facilities, a grant 
applicant or recipient must not make selections that have any of the 
following purposes or effects:
    (1) On the basis of disability:
    (i) Excluding qualified individuals from a WIOA Title I-financially 
assisted program or activity;
    (ii) Denying qualified individuals the benefits of such a program 
or activity; or
    (iii) Subjecting qualified individuals to discrimination; or
    (2) Defeating or substantially impairing the accomplishment of the 
disability-related objectives of either:
    (i) The WIOA Title I-financially assisted program or activity; or
    (ii) The nondiscrimination and equal opportunity provisions of WIOA 
or this part.
    (g) A recipient, in the selection of contractors, must not use 
criteria that subject qualified individuals with disabilities to 
discrimination on the basis of disability.
    (h) A recipient must not administer a licensing or certification 
program in a manner that subjects qualified individuals with 
disabilities to discrimination on the basis of disability, nor may a 
recipient establish requirements for the programs or activities of 
licensees or certified entities that subject qualified individuals with 
disabilities to discrimination on the basis of disability. The programs 
or activities of entities that are licensed or certified by a recipient 
are not, themselves, covered by this part.
    (i) A recipient must not impose or apply eligibility criteria that 
screen out or tend to screen out individuals with disabilities or any 
class of individuals with disabilities from fully and equally enjoying 
any aid, benefit, service, training, program, or activity, unless such 
criteria can be shown to be necessary for the provision of aid, 
benefit, service, training, program, or activity being offered.
    (j) Nothing in this part prohibits a recipient from providing aid, 
benefit, service, training, or advantages to individuals with 
disabilities, or to a particular class of individuals with 
disabilities, beyond those required by this part.
    (k) A recipient must not place a surcharge on a particular 
individual with a disability, or any group of individuals with 
disabilities, to cover the costs of measures, such as the provision of 
auxiliary aids or program accessibility, that are required to provide 
that individual or group with the nondiscriminatory treatment required 
by WIOA Title I or this part.
    (l) A recipient must not exclude, or otherwise deny equal aid, 
benefits, services, training, programs, or activities to, an individual 
or entity because of the known disability of an individual with whom 
the individual or entity is known to have a relationship or 
association.
    (m) The exclusion of an individual without a disability from the 
benefits of a program limited by federal law to individuals with 
disabilities, or the exclusion of a specific class of individuals with 
disabilities from a program limited by Federal statute or Executive 
Order to a different class of individuals with disabilities, is not 
prohibited by this part.
    (n) This part does not require a recipient to provide any of the 
following to individuals with disabilities:
    (1) Personal devices, such as wheelchairs;
    (2) Individually prescribed devices, such as prescription 
eyeglasses or hearing aids;
    (3) Readers for personal use or study; or
    (4) Services of a personal nature, including assistance in eating, 
toileting, or dressing.
    (o)(1) Nothing in this part requires an individual with a 
disability to accept an accommodation, aid, benefit, service, training, 
or opportunity provided under WIOA Title I or this part that such 
individual chooses not to accept.
    (2) Nothing in this part authorizes the representative or guardian 
of an individual with a disability to decline food, water, medical 
treatment, or medical services for that individual.
    (p) Claims of no disability. Nothing in this part provides the 
basis for a claim that an individual without a disability was subject 
to discrimination because of a lack of disability, including a claim 
that an individual with a disability was granted auxiliary aids or 
services, reasonable modifications, or reasonable accommodations that 
were denied to an individual without a disability.


Sec.  38.13  Accessibility requirements.

    (a) Physical accessibility. No qualified individual with a 
disability may be excluded from participation in, or be denied the 
benefits of a recipient's service, program, or activity or be subjected 
to discrimination by any recipient because a recipient's facilities are 
inaccessible or unusable by individuals with disabilities. Recipients 
that are subject to Title II of the ADA must also ensure that new 
facilities or alterations of facilities that began construction after 
January 26, 1992, comply with the applicable federal accessible design 
standards, such as the ADA Standards for Accessible Design (1991 or 
2010) or the Uniform Federal Accessibility Standards. In addition, 
recipients that receive federal financial

[[Page 4555]]

assistance must meet their accessibility obligations under Section 504 
of the Rehabilitation Act and the implementing regulations at 29 CFR 
part 32. Some recipients may be subject to additional accessibility 
requirements under other statutory authority, including Title III of 
the ADA, that is not enforced by CRC. As indicated in Sec.  
38.3(d)(10), compliance with this part does not affect a recipient's 
obligation to comply with Title III ADA Standards.
    (b) Programmatic accessibility. All WIOA Title I-financially 
assisted programs and activities must be programmatically accessible, 
which includes providing reasonable accommodations for individuals with 
disabilities, making reasonable modifications to policies, practices, 
and procedures, administering programs in the most integrated setting 
appropriate, communicating with persons with disabilities as 
effectively as with others, and providing appropriate auxiliary aids or 
services, including assistive technology devices and services, where 
necessary to afford individuals with disabilities an equal opportunity 
to participate in, and enjoy the benefits of, the program or activity.


Sec.  38.14  Reasonable accommodations and reasonable modifications for 
individuals with disabilities.

    (a) With regard to aid, benefit, service, training, and employment, 
a recipient must provide reasonable accommodations to qualified 
individuals with disabilities who are applicants, registrants, eligible 
applicants/registrants, participants, employees, or applicants for 
employment, unless providing the accommodation would cause undue 
hardship. See the definitions of ``reasonable accommodation'' and 
``undue hardship'' in Sec.  38.4(rrr)(1).
    (1) In those circumstances where a recipient believes that the 
proposed accommodation would cause undue hardship, the recipient has 
the burden of proving that the accommodation would result in such 
hardship.
    (2) The recipient must make the decision that the accommodation 
would cause such hardship only after considering all factors listed in 
the definition of ``undue hardship'' in Sec.  38.4(rrr)(1). The 
decision must be accompanied by a written statement of the recipient's 
reasons for reaching that conclusion. The recipient must provide a copy 
of the statement of reasons to the individual or individuals who 
requested the accommodation.
    (3) If a requested accommodation would result in undue hardship, 
the recipient must take any other action that would not result in such 
hardship, but would nevertheless ensure that, to the maximum extent 
possible, individuals with disabilities receive the aid, benefit, 
service, training, or employment provided by the recipient.
    (b) With regard to aid, benefit, service, training, and employment, 
a recipient must also make reasonable modifications in policies, 
practices, or procedures when the modifications are necessary to avoid 
discrimination on the basis of disability, unless making the 
modifications would fundamentally alter the nature of the service, 
program, or activity. See the definition of ``fundamental alteration'' 
in Sec.  38.4(z).
    (1) In those circumstances where a recipient believes that the 
proposed modification would fundamentally alter the program, activity, 
or service, the recipient has the burden of proving that the 
modification would result in such an alteration.
    (2) The recipient must make the decision that the modification 
would result in such an alteration only after considering all factors 
listed in the definition of ``fundamental alteration'' in Sec.  
38.4(z). The decision must be accompanied by a written statement of the 
recipient's reasons for reaching that conclusion. The recipient must 
provide a copy of the statement of reasons to the individual or 
individuals who requested the modification.
    (3) If a modification would result in a fundamental alteration, the 
recipient must take any other action that would not result in such an 
alteration, but would nevertheless ensure that, to the maximum extent 
possible, individuals with disabilities receive the aid, benefits, 
services, training, or employment provided by the recipient.


Sec.  38.15  Communications with individuals with disabilities.

    (a) General. (1)(i) A recipient must take appropriate steps to 
ensure that communications with individuals with disabilities, such as 
beneficiaries, registrants, applicants, eligible applicants/
registrants, participants, applicants for employment, employees, 
members of the public, and their companions are as effective as 
communications with others.
    (ii) For purposes of this section, ``companion'' means a family 
member, friend, or associate of an individual seeking access to an aid, 
benefit, service, training, program, or activity of a recipient, who, 
along with such individual, is an appropriate person with whom the 
recipient should communicate.
    (2)(i) A recipient must furnish appropriate auxiliary aids and 
services where necessary to afford individuals with disabilities, 
including beneficiaries, registrants, applicants, eligible applicants/
registrants, participants, members of the public, and companions, an 
equal opportunity to participate in, and enjoy the benefits of, a WIOA 
Title I-financially assisted service, program, or activity of a 
recipient.
    (ii) The type of auxiliary aid or service necessary to ensure 
effective communication will vary 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 types of auxiliary 
aids and services are necessary, a recipient must give primary 
consideration to the requests of individuals with disabilities. In 
order to be effective, auxiliary aids and services must be provided in 
accessible formats, in a timely manner, and in such a way as to protect 
the privacy and independence of the individual with a disability.
    (3)(i) A recipient must not require an individual with a disability 
to bring another individual to interpret for him or her.
    (ii) A recipient must not rely on an adult accompanying an 
individual with a disability to interpret or facilitate communication 
except--
    (A) In an emergency involving an imminent threat to the safety or 
welfare of an individual or the public where there is no interpreter 
available; or
    (B) Where the individual with a disability specifically requests 
that an accompanying adult interpret or facilitate communication, the 
accompanying adult agrees to provide such assistance, and reliance on 
that adult for such assistance is appropriate under the circumstances.
    (iii) A recipient must not rely on a minor child to interpret or 
facilitate communication, except in an emergency involving an imminent 
threat to the safety or welfare of an individual or the public where 
there is no interpreter available.
    (4) Video remote interpreting (VRI) services. A recipient that 
chooses to provide qualified interpreters via VRI services must ensure 
that it provides--
    (i) Real-time, full-motion video and audio over a dedicated high-
speed, wide-bandwidth video connection or wireless connection that 
delivers high-quality video images that do not produce lags, choppy, 
blurry, or grainy images, or irregular pauses in communication;

[[Page 4556]]

    (ii) A sharply delineated image that is large enough to display the 
interpreter's face, arms, hands, and fingers, and the participating 
individual's face, arms, hands, and fingers, regardless of his or her 
body position;
    (iii) A clear, audible transmission of voices; and
    (iv) Adequate training to users of the technology and other 
involved individuals so that they may quickly and efficiently set up 
and operate the VRI.
    (5) When developing, procuring, maintaining, or using electronic 
and information technology, a recipient must utilize electronic and 
information technologies, applications, or adaptations which:
    (i) Incorporate accessibility features for individuals with 
disabilities,
    (ii) Comply with applicable accessibility guidelines and standards, 
including any web accessibility standards under Title II of the 
Americans with Disabilities Act (ADA), and
    (iii) Provide individuals with disabilities access to, and use of, 
information, resources, programs, and activities that are fully 
accessible, or ensure that the opportunities and benefits provided by 
the electronic and information technologies are provided to individuals 
with disabilities in an equally effective and equally integrated 
manner.
    (b) Telecommunications. (1) Where a recipient communicates by 
telephone with beneficiaries, registrants, applicants, eligible 
applicants/registrants, participants, applicants for employment, 
employees, and/or members of the public, text telephones (TTYs) or 
equally effective telecommunications systems must be used to 
communicate with individuals who are deaf or hard of hearing or have 
speech impairments.
    (2) When a recipient uses an automated-attendant system, including, 
but not limited to, voicemail and messaging, or an interactive voice 
response system, for receiving and directing incoming telephone calls, 
that system must provide effective real-time communication with 
individuals using auxiliary aids and services, including TTYs and all 
forms of FCC-approved telecommunications relay systems, including 
Internet-based relay systems.
    (3) A recipient must respond to telephone calls from a 
telecommunications relay service established under title IV of the 
Americans with Disabilities Act in the same manner that it responds to 
other telephone calls.
    (c) Information and signage. (1) A recipient must ensure that 
interested individuals, including individuals with visual or hearing 
impairments, can obtain information as to the existence and location of 
accessible services, activities, and facilities.
    (2)(i) A recipient must provide signage at the public entrances to 
each of its inaccessible facilities, directing users to a location at 
which they can obtain information about accessible facilities. The 
signage provided must meet the most current Standards for Accessible 
Design under the Americans with Disabilities Act, as prescribed by the 
U.S. Department of Justice. Alternative standards for the signage may 
be adopted when it is clearly evident that such alternative standards 
provide equivalent or greater access to the information.
    (ii) The international symbol for accessibility must be used at 
each primary entrance of an accessible facility.
    (d) Fundamental alteration. This section does not require a 
recipient to take any action that it can demonstrate would result in a 
fundamental alteration in the nature of a WIOA Title I-financially 
assisted service, program, or activity.
    (1) In those circumstances where a recipient believes that the 
proposed action would fundamentally alter the WIOA Title I-financially 
assisted program, activity, or service, the recipient has the burden of 
proving that compliance with this section would result in such an 
alteration.
    (2) The decision that compliance would result in such an alteration 
must be made by the recipient after considering all resources available 
for use in the funding and operation of the WIOA Title I-financially 
assisted program, activity, or service, and must be accompanied by a 
written statement of the recipient's reasons for reaching that 
conclusion.
    (3) If an action required to comply with this section would result 
in the fundamental alteration described in paragraph (d)(1) of this 
section, the recipient must take any other action that would not result 
in such an alteration or such burdens, but would nevertheless ensure 
that, to the maximum extent possible, individuals with disabilities 
receive the benefits or services provided by the recipient.


Sec.  38.16  Service animals.

    (a) General. Generally, a recipient shall modify its policies, 
practices, or procedures to permit the use of a service animal by an 
individual with a disability.
    (b) Exceptions. A recipient may ask an individual with a disability 
to remove a service animal from the premises if--
    (1) The animal is out of control and the animal's handler does not 
take effective action to control it; or
    (2) The animal is not housebroken.
    (c) If an animal is properly excluded. If a recipient properly 
excludes a service animal under paragraph (b) of this section, the 
recipient must give the individual with a disability the opportunity to 
participate in the WIOA Title I-financially assisted service, program, 
or activity without having the service animal on the premises.
    (d) Animal under handler's control. A service animal must be under 
the control of its handler. A service animal must have a harness, 
leash, or other tether, unless either the handler is unable because of 
a disability to use a harness, leash, or other tether, or the use of a 
harness, leash, or other tether would interfere with the service 
animal's safe, effective performance of work or tasks, in which case 
the service animal must be otherwise under the handler's control (e.g., 
voice control, signals, or other effective means).
    (e) Care or supervision. A recipient is not responsible for the 
care or supervision of a service animal.
    (f) Inquiries. A recipient must not ask about the nature or extent 
of a person's disability, but may make two inquiries to determine 
whether an animal qualifies as a service animal. A recipient may ask if 
the animal is required because of a disability and what work or task 
the animal has been trained to perform. A recipient must not require 
documentation, such as proof that the animal has been certified, 
trained, or licensed as a service animal. Generally, a recipient may 
not make these inquiries about a service animal when it is readily 
apparent that an animal is trained to do work or perform tasks for an 
individual with a disability (e.g., the dog is observed guiding an 
individual who is blind or has low vision, pulling a person's 
wheelchair, or providing assistance with stability or balance to an 
individual with an observable mobility disability).
    (g) Access to areas of a recipient's facilities. (1) In general. 
Individuals with disabilities must be permitted to be accompanied by 
their service animals in all areas of a recipient's facilities where 
members of the public, participants in services, programs or 
activities, beneficiaries, registrants, applicants, eligible 
applicants/registrants, applicants for employment and employees, or 
invitees, as relevant, are allowed to go.

[[Page 4557]]

    (2) Use of service animals in food preparation areas. An employee, 
applicant or beneficiary with a disability who needs to use a service 
animal in a food preparation area must be allowed to do so unless the 
employer recipient, after an individualized assessment, can 
demonstrate, that the presence of the service animal presents a direct 
threat to health or safety that cannot be eliminated or reduced by a 
reasonable accommodation to the employee, applicant or beneficiary.
    (h) Surcharges. A recipient must not ask or require an individual 
with a disability to pay a surcharge because of his or her service 
animal, even if people accompanied by pets are required to pay fees, or 
to comply with other requirements generally not applicable to people 
without pets. If a recipient normally charges individuals for the 
damage they cause, an individual with a disability may be charged for 
damage caused by his or her service animal.


Sec.  38.17  Mobility aids and devices.

    (a) Use of wheelchairs and manually-powered mobility aids. A 
recipient must permit individuals with mobility disabilities to use 
wheelchairs and manually-powered mobility aids, such as walkers, 
crutches, canes, braces, or other similar devices designed for use by 
individuals with mobility disabilities, in any areas open to pedestrian 
use.
    (b)(1) Use of other power-driven mobility devices. A recipient must 
make reasonable modifications in its policies, practices, or procedures 
to permit the use of other power-driven mobility devices by individuals 
with mobility disabilities, unless the recipient can demonstrate that 
the class of other power-driven mobility devices cannot be operated in 
accordance with legitimate safety requirements that the recipient has 
adopted.
    (2) Assessment factors. In determining whether a particular other 
power-driven mobility device can be allowed in a specific facility as a 
reasonable modification under paragraph (b)(1) of this section, a 
recipient must consider--
    (i) The type, size, weight, dimensions, and speed of the device;
    (ii) The facility's volume of pedestrian traffic (which may vary at 
different times of the day, week, month, or year);
    (iii) The facility's design and operational characteristics (e.g., 
whether its WIOA Title I-financially assisted service, program, or 
activity is conducted indoors, its square footage, the density and 
placement of stationary devices, and the availability of storage for 
the device, if requested by the user);
    (iv) Whether legitimate safety requirements can be established to 
permit the safe operation of the other power-driven mobility device in 
the specific facility; and
    (v) Whether the use of the other power-driven mobility device 
creates a substantial risk of serious harm to the immediate environment 
or natural or cultural resources, or poses a conflict with Federal land 
management laws.


Sec.  38.18  Employment practices covered.

    (a) It is an unlawful employment practice to discriminate on the 
basis of race, color, religion, sex (including pregnancy, childbirth, 
and related medical conditions, transgender status and gender 
identity), national origin, age, disability, or political affiliation 
or belief in the administration of, or in connection with:
    (1) Any WIOA Title I-financially assisted program or activity; and
    (2) Any program or activity that is part of the One-Stop delivery 
system and is operated by a One-Stop partner listed in Section 121(b) 
of WIOA, to the extent that the program or activity is being conducted 
as part of the One-Stop delivery system.
    (b) Employee selection procedures. In implementing this section, a 
recipient must comply with the Uniform Guidelines on Employee Selection 
Procedures, 41 CFR part 60-3, where applicable.
    (c) Standards for employment-related investigations and reviews. In 
any investigation or compliance review, the Director must consider 
Equal Employment Opportunity Commission (EEOC) regulations, guidance 
and appropriate case law in determining whether a recipient has engaged 
in an unlawful employment practice.
    (d) As provided in Sec.  38.3(b), 29 CFR part 32, subparts B and C 
and Appendix A, which implement the requirements of Section 504 
pertaining to employment practices and employment-related training, 
program accessibility, and reasonable accommodation, have been 
incorporated into this part by reference. Therefore, recipients must 
comply with the requirements set forth in those regulatory sections as 
well as the requirements listed in this part.
    (e)(1) Recipients that are also employers, employment agencies, or 
other entities subject to or covered by Titles I and II of the ADA 
should be aware of obligations imposed by those titles. See 29 CFR part 
1630 and 28 CFR part 35.
    (2) Recipients that are also employers, employment agencies, or 
other entities subject to or covered by Section 503 of the 
Rehabilitation Act of 1973 (29 U.S.C. 793) must meet their obligations 
imposed by that provision.
    (f) Similarly, recipients that are also employers covered by the 
anti-discrimination provision of the Immigration and Nationality Act 
should be aware of the obligations imposed by that provision. See 8 
U.S.C. 1324b, as amended.
    (g) This section does not preempt consistent State and local 
requirements.


Sec.  38.19  Intimidation and retaliation prohibited.

    (a) A recipient must not discharge, intimidate, retaliate, 
threaten, coerce or discriminate against any individual because the 
individual has:
    (1) Filed a complaint alleging a violation of Section 188 of WIOA 
or this part;
    (2) Opposed a practice prohibited by the nondiscrimination and 
equal opportunity provisions of WIOA or this part;
    (3) Furnished information to, or assisted or participated in any 
manner in, an investigation, review, hearing, or any other activity 
related to any of the following:
    (i) Administration of the nondiscrimination and equal opportunity 
provisions of WIOA or this part;
    (ii) Exercise of authority under those provisions; or
    (iii) Exercise of privilege secured by those provisions; or
    (4) Otherwise exercised any rights and privileges under the 
nondiscrimination and equal opportunity provisions of WIOA or this 
part.
    (b) The sanctions and penalties contained in Section 188(b) of WIOA 
or this part may be imposed against any recipient that engages in any 
such retaliation or intimidation, or fails to take appropriate steps to 
prevent such activity.


Sec.  38.20  Administration of this part.

    The Civil Rights Center (CRC), in the Office of the Assistant 
Secretary for Administration and Management, U.S. Department of Labor, 
is responsible for administering and enforcing the nondiscrimination 
and equal opportunity provisions of WIOA and this part, and for 
developing and issuing policies, standards, guidance, and procedures 
for effecting compliance.


Sec.  38.21  Interpretations of this part.

    The Director will make any rulings under, or interpretations of, 
the nondiscrimination and equal opportunity provisions of WIOA or this 
part.

[[Page 4558]]

Sec.  38.22  Delegation of administration and interpretation of this 
part.

    (a) The Secretary may from time to time assign to officials of 
other departments or agencies of the Federal Government (with the 
consent of such department or agency) responsibilities in connection 
with the effectuation of the nondiscrimination and equal opportunity 
provisions of WIOA and this part (other than responsibility for final 
decisions under Sec.  38.112), including the achievement of effective 
coordination and maximum uniformity within the Department and within 
the executive branch of the Government in the application of the 
nondiscrimination and equal opportunity provisions of WIOA or this part 
to similar programs and similar situations.
    (b) Any action taken, determination made, or requirement imposed by 
an official of another department or agency acting under an assignment 
of responsibility under this section has the same effect as if the 
action had been taken by the Director.


Sec.  38.23  Coordination with other agencies.

    (a) Whenever a compliance review or complaint investigation under 
this part reveals possible violation of one or more of the laws listed 
in paragraph (b) of this section, or of any other Federal civil rights 
law, that is not also a violation of the nondiscrimination and equal 
opportunity provisions of WIOA or this part, the Director must attempt 
to notify the appropriate agency and provide it with all relevant 
documents and information.
    (b) This section applies to the following:
    (1) Executive Order 11246, as amended;
    (2) Section 503 of the Rehabilitation Act of 1973, as amended (29 
U.S.C. 793);
    (3) The affirmative action provisions of the Vietnam Era Veterans' 
Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212);
    (4) The Equal Pay Act of 1963, as amended (29 U.S.C. 206d);
    (5) Title VII of the Civil Rights Act of 1964, as amended (42 
U.S.C. 2000e et seq.);
    (6) The Age Discrimination in Employment Act of 1967, as amended 
(29 U.S.C. 621);
    (7) The Americans with Disabilities Act of 1990, as amended (42 
U.S.C. 12101 et seq.);
    (8) The anti-discrimination provision of the Immigration and 
Nationality Act, as amended (8 U.S.C. 1324b); and
    (9) Any other Federal civil rights law.


Sec.  38.24  Effect on other laws and policies.

    (a) Effect of State or local law or other requirements. The 
obligation to comply with the nondiscrimination and equal opportunity 
provisions of WIOA or this part are not excused or reduced by any State 
or local law or other requirement that, on a prohibited basis, 
prohibits or limits an individual's eligibility to receive aid, 
benefit, service, or training; to participate in any WIOA Title I-
financially assisted program or activity; to be employed by any 
recipient; or to practice any occupation or profession.
    (b) Effect of private organization rules. The obligation to comply 
with the nondiscrimination and equal opportunity provisions of WIOA 
Title I-financially assisted program or activity and this part is not 
excused or reduced by any rule or regulation of any private 
organization, club, league or association that, on a prohibited basis, 
prohibits or limits an individual's eligibility to participate in any 
WIOA financially assisted program or activity to which this part 
applies.
    (c) Effect of possible future exclusion from employment 
opportunities. A recipient must not exclude any individual from, or 
restrict any individual's participation in, any program or activity 
based on the recipient's belief or concern that the individual will 
encounter limited future employment opportunities because of the 
individual's race, color, religion, sex, national origin, age, 
disability, political affiliation or belief, citizenship status, or 
participation in a WIOA Title I-financially assisted program or 
activity.

Subpart B--Recordkeeping and Other Affirmative Obligations of 
Recipients

Assurances


Sec.  38.25  A grant applicant's obligation to provide a written 
assurance.

    (a)(1) Each application for financial assistance, under Title I of 
WIOA, as defined in Sec.  38.4, must include the following assurance:
    As a condition to the award of financial assistance from the 
Department of Labor under Title I of WIOA, the grant applicant assures 
that it has the ability to comply with the nondiscrimination and equal 
opportunity provisions of the following laws and will remain in 
compliance for the duration of the award of federal financial 
assistance:
    Section 188 of the Workforce Innovation and Opportunity Act (WIOA), 
which prohibits discrimination against all individuals in the United 
States on the basis of race, color, religion, sex (including pregnancy, 
childbirth, and related medical conditions, transgender status and 
gender identity), national origin, age, disability, political 
affiliation or belief, and against beneficiaries on the basis of either 
citizenship status or participation in any WIOA Title I-financially 
assisted program or activity;
    Title VI of the Civil Rights Act of 1964, as amended, which 
prohibits discrimination on the bases of race, color and national 
origin;
    Section 504 of the Rehabilitation Act of 1973, as amended, which 
prohibits discrimination against qualified individuals with 
disabilities;
    The Age Discrimination Act of 1975, as amended, which prohibits 
discrimination on the basis of age; and
    Title IX of the Education Amendments of 1972, as amended, which 
prohibits discrimination on the basis of sex in educational programs.
    The grant applicant also assures that, as a recipient of WIOA Title 
I financial assistance, it will comply with 29 CFR part 38 and all 
other regulations implementing the laws listed above. This assurance 
applies to the grant applicant's operation of the WIOA Title I-
financially assisted program or activity, and to all agreements the 
grant applicant makes to carry out the WIOA Title I-financially 
assisted program or activity. The grant applicant understands that the 
United States has the right to seek judicial enforcement of this 
assurance.
    (2) The assurance is considered incorporated by operation of law in 
the grant, cooperative agreement, contract or other arrangement whereby 
Federal financial assistance under Title I of WIOA is made available, 
whether it is explicitly incorporated in such document and whether 
there is a written agreement between the Department and the recipient, 
between the Department and the Governor, between the Governor and the 
recipient, or between recipients. The assurance also may be 
incorporated by reference in such grants, cooperative agreements, 
contracts, or other arrangements.
    (b) Continuing State programs. Each Strategic Four-Year State Plan 
submitted by a State to carry out a continuing WIOA financially 
assisted program or activity must provide the text of the assurance in 
paragraph (a)(1) of this section, as a condition to the approval of the 
Four-Year Plan and the extension of any WIOA Title I assistance under 
the Plan. The State also must certify that it has developed and 
maintains a Nondiscrimination Plan under Sec.  38.54.

[[Page 4559]]

Sec.  38.26  Duration and scope of the assurance.

    (a) Where the WIOA Title I financial assistance is intended to 
provide, or is in the form of, either personal property, real property, 
structures on real property, or interest in any such property or 
structures, the assurance will obligate the recipient, or (in the case 
of a subsequent transfer) the transferee, for the longer of:
    (1) The period during which the property is used either:
    (i) For a purpose for which WIOA Title I financial assistance is 
extended; or
    (ii) For another purpose involving the provision of similar 
services or benefits; or
    (2) The period during which either:
    (i) The recipient retains ownership or possession of the property; 
or
    (ii) The transferee retains ownership or possession of the property 
without compensating the Departmental grantmaking agency for the fair 
market value of that ownership or possession.
    (b) In all other cases, the assurance will obligate the recipient 
for the period during which WIOA Title I financial assistance is 
extended.


Sec.  38.27  Covenants.

    (a) Where WIOA Title I financial assistance is provided in the form 
of a transfer of real property, structures, or improvements on real 
property or structures, or interests in real property or structures, 
the instrument effecting or recording the transfer must contain a 
covenant assuring nondiscrimination and equal opportunity for the 
period described in Sec.  38.25(a)(1).
    (b) Where no Federal transfer of real property or interest therein 
from the Federal Government is involved, but real property or an 
interest therein is acquired or improved under a program of WIOA Title 
I financial assistance, the recipient must include the covenant 
described in paragraph (a) of this section in the instrument effecting 
or recording any subsequent transfer of such property.
    (c) When the property is obtained from the Federal Government, the 
covenant described in paragraph (a) of this section also may include a 
condition coupled with a right of reverter to the Department in the 
event of a breach of the covenant.

Equal Opportunity Officers


Sec.  38.28  Designation of Equal Opportunity Officer.

    (a) Every Governor must designate an individual as a State Level 
Equal Opportunity Officer (EO Officer), who reports directly to the 
Governor and is responsible for statewide coordination of compliance 
with the equal opportunity and nondiscrimination requirements in WIOA 
and this part, including but not limited to Sec. Sec.  38.51, 38.53, 
38.54 and 38.55. The State Level EO Officer must have staff and 
resources sufficient to carry out these requirements.
    (b) Every recipient except small recipients and service providers, 
as defined in Sec.  38.4(fff) and Sec.  38.4(eee), must designate an EO 
Officer and staff and resources sufficient to carry out the 
requirements of this section and Sec.  38.31 of this part. The 
responsibilities of small recipients and service providers are 
described in Sec. Sec.  38.32 and 38.33.


Sec.  38.29  Recipient obligations regarding its Equal Opportunity 
Officer.

    The recipient has the following obligations related to its EO 
Officer:
    (a) Ensuring that the EO Officer is a senior level employee 
reporting directly to the Chief Executive Officer, Chief Operating 
Officer, or equivalent official;
    (b) Designating an individual who can fulfill the responsibilities 
of an EO Officer as described in Sec.  38.31;
    (c) Making the EO Officer's name, position title, address, and 
telephone number (voice and TDD/TTY) public;
    (d) Ensuring that the EO Officer's identity and contact information 
appears on all internal and external communications about the 
recipient's nondiscrimination and equal opportunity programs;
    (e) Assigning sufficient authority, staff, and resources to the EO 
Officer, and support of top management, to ensure compliance with the 
nondiscrimination and equal opportunity provisions of WIOA and this 
part; and
    (f) Ensuring that the EO Officer and the EO Officer's staff are 
afforded the opportunity to receive (at the recipient's expense) the 
training necessary and appropriate to maintain competency.


Sec.  38.30  Requisite skill and authority of Equal Opportunity 
Officer.

    The EO Officer must be a senior level employee of the recipient who 
has the knowledge, skills and abilities necessary to fulfill the 
responsibilities competently as described in this subpart. Depending 
upon the size of the recipient, the size of the recipient's WIOA Title 
I-financially assisted programs or activities, and the number of 
applicants, registrants, and participants served by the recipient, the 
EO Officer may, or may not, be assigned other duties. However, he or 
she must not have other responsibilities or activities that create a 
conflict or the appearance of a conflict with the responsibilities of 
an EO Officer.


Sec.  38.31  Equal Opportunity Officer responsibilities.

    An Equal Opportunity Officer is responsible for coordinating a 
recipient's obligations under this part. Those responsibilities 
include, but are not limited to:
    (a) Serving as a recipient's liaison with CRC;
    (b) Monitoring and investigating the recipient's activities, and 
the activities of the entities that receive WIOA Title I-financial 
assistance from the recipient, to make sure that the recipient and its 
subrecipients are not violating their nondiscrimination and equal 
opportunity obligations under WIOA Title I and this part, which 
includes monitoring the collection of data required in this part to 
ensure compliance with the nondiscrimination and equal opportunity 
requirements of WIOA and this part;
    (c) Reviewing the recipient's written policies to make sure that 
those policies are nondiscriminatory;
    (d) Developing and publishing the recipient's procedures for 
processing discrimination complaints under Sec. Sec.  38.72 through 
38.73, including tracking the discrimination complaints filed against 
the recipient, developing procedures for investigating and resolving 
discrimination complaints filed against the recipient, making sure that 
those procedures are followed, and making available to the public, in 
appropriate languages and formats, the procedures for filing a 
complaint;
    (e) Conducting outreach and education about equal opportunity and 
nondiscrimination requirements consistent with Sec.  38.40 and how an 
individual may file a complaint consistent with Sec.  38.69.
    (f) Undergoing training (at the recipient's expense) to maintain 
competency of the EO Officer and staff, as required by the Director; 
and
    (g) If applicable, overseeing the development and implementation of 
the recipient's Nondiscrimination Plan under Sec.  38.54.


Sec.  38.32  Small recipient Equal Opportunity Officer obligations.

    Although small recipients, as defined in Sec.  38.4(hhh), do not 
need to designate EO Officers who have the full range of 
responsibilities listed above, they must designate an individual who 
will be responsible for adopting and publishing complaint procedures, 
and processing complaints, as explained in Sec. Sec.  38.72 through 
38.75.

[[Page 4560]]

Sec.  38.33  Service provider Equal Opportunity Officer obligations.

    Service providers, as defined in Sec.  38.4(ggg), are not required 
to designate an EO Officer. The obligation for ensuring service 
provider compliance with the nondiscrimination and equal opportunity 
provisions of WIOA and this part rests with the Governor or LWIA grant 
recipient, as specified in the State's Nondiscrimination Plan.

Notice and Communication


Sec.  38.34  Recipients' obligations to disseminate equal opportunity 
notice.

    (a) A recipient must provide initial and continuing notice as 
defined in Sec.  38.36 that it does not discriminate on any prohibited 
basis. This notice must be provided to:
    (1) Registrants, applicants, and eligible applicants/registrants;
    (2) Participants;
    (3) Applicants for employment and employees;
    (4) Unions or professional organizations that hold collective 
bargaining or professional agreements with the recipient;
    (5) Subrecipients that receive WIOA Title I financial assistance 
from the recipient; and
    (6) Members of the public, including those with impaired vision or 
hearing and those with limited English proficiency.
    (b) As provided in Sec.  38.15, the recipient must take appropriate 
steps to ensure that communications with individuals with disabilities 
are as effective as communications with others and that this notice is 
provided in appropriate languages to ensure meaningful access for LEP 
individuals as described in Sec.  38.9.


Sec.  38.35  Equal opportunity notice/poster.

    The notice must contain the following specific wording:

    Equal Opportunity Is the Law
    It is against the law for this recipient of Federal financial 
assistance to discriminate on the following bases: Against any 
individual in the United States, on the basis of race, color, 
religion, sex (including pregnancy, childbirth and related medical 
conditions, sex stereotyping, transgender status, and gender 
identity), national origin (including limited English proficiency), 
age, disability, political affiliation or belief; and against any 
beneficiary of programs financially assisted under Title I of the 
Workforce Innovation and Opportunity Act, on the basis of the 
beneficiary's citizenship status or his or her participation in any 
WIOA Title I-financially assisted program or activity.
    The recipient must not discriminate in any of the following 
areas:
    Deciding who will be admitted, or have access, to any WIOA Title 
I-financially assisted program or activity;
    providing opportunities in, or treating any person with regard 
to, such a program or activity; or
    making employment decisions in the administration of, or in 
connection with, such a program or activity.
    What To Do If You Believe You Have Experienced Discrimination
    If you think that you have been subjected to discrimination 
under a WIOA Title I-financially assisted program or activity, you 
may file a complaint within 180 days from the date of the alleged 
violation with either:
    The recipient's Equal Opportunity Officer (or the person whom 
the recipient has designated for this purpose); or
    the Director, Civil Rights Center (CRC), U.S. Department of 
Labor, 200 Constitution Avenue NW., Room N-4123, Washington, DC 
20210 or electronically as directed on the CRC Web site at 
www.dol.gov/crc.
    If you file your complaint with the recipient, you must wait 
either until the recipient issues a written Notice of Final Action, 
or until 90 days have passed (whichever is sooner), before filing 
with the Civil Rights Center (see address above).
    If the recipient does not give you a written Notice of Final 
Action within 90 days of the day on which you filed your complaint, 
you may file a complaint with CRC before receiving that Notice. 
However, you must file your CRC complaint within 30 days of the 90-
day deadline (in other words, within 120 days after the day on which 
you filed your complaint with the recipient).
    If the recipient does give you a written Notice of Final Action 
on your complaint, but you are dissatisfied with the decision or 
resolution, you may file a complaint with CRC. You must file your 
CRC complaint within 30 days of the date on which you received the 
Notice of Final Action.


Sec.  38.36  Recipients' obligations to publish equal opportunity 
notice.

    (a) At a minimum, the Equal Opportunity Notice required by 
Sec. Sec.  38.34 and 38.35 must be:
    (1) Posted prominently, in reasonable numbers and places, in 
available and conspicuous physical locations and on the recipient's Web 
site pages;
    (2) Disseminated in internal memoranda and other written or 
electronic communications with staff;
    (3) Included in employee and participant handbooks or manuals 
regardless of form, including electronic and paper form if both are 
available; and
    (4) Provided to each participant and employee; the notice must be 
made part of each employee's and participant's file. It must be a part 
of both paper and electronic files, if both are maintained.
    (b) The notice must be provided in appropriate formats to 
registrants, applicants, eligible applicants/registrants, applicants 
for employment and employees and participants with visual impairments. 
Where notice has been given in an alternate format to registrants, 
applicants, eligible applicants/registrants, participants, applicants 
for employment and employees with a visual impairment, a record that 
such notice has been given must be made a part of the employee's or 
participant's file.
    (c) The notice must be provided to participants in appropriate 
languages other than English as required in Sec.  38.9.
    (d) The notice required by Sec. Sec.  38.34 and 38.35 must be 
initially published and provided within 90 days of the effective date 
of this part, or of the date this part first applies to the recipient, 
whichever comes later.


Sec.  38.37  Notice requirement for service providers.

    The Governor or the LWIA grant recipient, as determined by the 
Governor and as provided in that State's Nondiscrimination Plan, will 
be responsible for meeting the notice requirement provided in 
Sec. Sec.  38.34 and 38.35 with respect to a State's service providers.


Sec.  38.38  Publications, broadcasts, and other communications.

    (a) Recipients must indicate that the WIOA Title I-financially 
assisted program or activity in question is an ``equal opportunity 
employer/program,'' and that ``auxiliary aids and services are 
available upon request to individuals with disabilities,'' in 
recruitment brochures and other materials that are ordinarily 
distributed or communicated in written and/or oral form, electronically 
and/or on paper, to staff, clients, or the public at large, to describe 
programs financially assisted under Title I of WIOA or the requirements 
for participation by recipients and participants. Where such materials 
indicate that the recipient may be reached by voice telephone, the 
materials must also prominently provide the telephone number of the 
text telephone (TTY) or equally effective telecommunications system, 
such as a relay service, used by the recipient, as required by Sec.  
38.15(b).
    (b) Recipients that publish or broadcast program information in the 
news media must ensure that such publications and broadcasts state that 
the WIOA Title I-financially assisted program or activity in question 
is an equal opportunity employer/program (or otherwise indicate that 
discrimination in the WIOA Title I-financially assisted program or 
activity is prohibited by Federal law), and indicate that auxiliary 
aids and services are available upon request to individuals with 
disabilities.

[[Page 4561]]

    (c) A recipient must not communicate any information that suggests, 
by text or illustration, that the recipient treats beneficiaries, 
registrants, applicants, participants, employees or applicants for 
employment differently on any prohibited basis specified in Sec.  38.5, 
except as such treatment is otherwise permitted under Federal law or 
this part.


Sec.  38.39  Communication of notice in orientations.

    During each presentation to orient new participants, new employees, 
and/or the general public to its WIOA Title I-financially assisted 
program or activity, in person or over the Internet or using other 
technology, a recipient must include a discussion of rights and 
responsibilities under the nondiscrimination and equal opportunity 
provisions of WIOA and this part, including the right to file a 
complaint of discrimination with the recipient or the Director. This 
information must be communicated in appropriate languages as required 
in Sec.  38.9 and in formats accessible for individuals with 
disabilities as required in this part and specified in Sec.  38.15.


Sec.  38.40  Affirmative outreach.

    Recipients must take appropriate steps to ensure that they are 
providing equal access to their WIOA Title I-financially assisted 
programs and activities. These steps should involve reasonable efforts 
to include members of the various groups protected by these regulations 
including but not limited to persons of different sexes, various racial 
and ethnic/national origin groups, various religions, individuals with 
limited English proficiency, individuals with disabilities, and 
individuals in different age groups. Such efforts may include, but are 
not limited to:
    (a) Advertising the recipient's programs and/or activities in 
media, such as newspapers or radio programs, that specifically target 
various populations;
    (b) Sending notices about openings in the recipient's programs and/
or activities to schools or community service groups that serve various 
populations; and
    (c) Consulting with appropriate community service groups about ways 
in which the recipient may improve its outreach and service to various 
populations.

Data and Information Collection Maintenance


Sec.  38.41  Collection and maintenance of equal opportunity data and 
other information.

    (a) The Director will not require submission of data that can be 
obtained from existing reporting requirements or sources, including 
those of other agencies, if the source is known and available to the 
Director.
    (b)(1) Each recipient must collect such data and maintain such 
records, in accordance with procedures prescribed by the Director, as 
the Director finds necessary to determine whether the recipient has 
complied or is complying with the nondiscrimination and equal 
opportunity provisions of WIOA or this part. The system and format in 
which the records and data are kept must be designed to allow the 
Governor and CRC to conduct statistical or other quantifiable data 
analyses to verify the recipient's compliance with section 188 of WIOA 
and this part.
    (2) Such records must include, but are not limited to, records on 
applicants, registrants, eligible applicants/registrants, participants, 
terminees, employees, and applicants for employment. Each recipient 
must record the race/ethnicity, sex, age, and where known, disability 
status, of every applicant, registrant, participant, terminee, 
applicant for employment, and employee. For applicants, registrants, 
participants, and terminees, each recipient must also record the 
limited English proficiency and preferred language of an individual. 
Such information must be stored in a manner that ensures 
confidentiality, and must be used only for the purposes of 
recordkeeping and reporting; determining eligibility, where 
appropriate, for WIOA Title I-financially assisted programs or 
activities; determining the extent to which the recipient is operating 
its WIOA Title I-financially assisted program or activity in a 
nondiscriminatory manner; or other use authorized by law.
    (3) Any medical or disability-related information obtained about a 
particular individual, including information that could lead to the 
disclosure of a disability, must be collected on separate forms. All 
such information, whether in hard copy, electronic, or both, must be 
maintained in one or more separate files, apart from any other 
information about the individual, and treated as confidential. Whether 
these files are electronic or hard copy, they must be locked or 
otherwise secured (for example, through password protection).
    (i) Knowledge of disability status or medical condition and access 
to information in related files. Persons in the following categories 
may be informed about an individual's disability or medical condition 
and have access to the information in related files under the following 
listed circumstances:
    (A) Program staff who are responsible for documenting eligibility, 
where disability is an eligibility criterion for a program or activity.
    (B) First aid and safety personnel who need access to underlying 
documentation related to a participant's medical condition in an 
emergency.
    (C) Government officials engaged in enforcing this part, any other 
laws administered by the Department, or any other Federal laws. See 
also Sec.  38.44.
    (ii) Knowledge of disability status or medical condition only. 
Supervisors, managers, and other necessary personnel may be informed 
regarding restrictions on the activities of individuals with 
disabilities and regarding reasonable accommodations for such 
individuals.
    (c) Each recipient must maintain, and submit to CRC upon request, a 
log of complaints filed with the recipient that allege discrimination 
on the basis(es) of race, color, religion, sex (including pregnancy, 
childbirth or related medical conditions, transgender status and gender 
identity), national origin, age, disability, political affiliation or 
belief, citizenship, and/or participation in a WIOA Title I-financially 
assisted program or activity. The log must include: The name and 
address of the complainant; the basis of the complaint; a description 
of the complaint; the date the complaint was filed; the disposition and 
date of disposition of the complaint; and other pertinent information. 
Information that could lead to identification of a particular 
individual as having filed a complaint must be kept confidential.
    (d) Where designation of individuals by race or ethnicity is 
required, the guidelines of the Office of Management and Budget must be 
used.
    (e) A service provider's responsibility for collecting and 
maintaining the information required under this section may be assumed 
by the Governor or LWIA grant recipient, as provided in the State's 
Nondiscrimination Plan.


Sec.  38.42  Information to be provided to CRC by grant applicants and 
recipients.

    In addition to the information which must be collected, maintained, 
and, upon request, submitted to CRC under Sec.  38.41:

[[Page 4562]]

    (a) Each grant applicant and recipient must promptly notify the 
Director when any administrative enforcement actions or lawsuits are 
filed against it alleging discrimination on the basis of race, color, 
religion, sex (including pregnancy, childbirth or related medical 
conditions, transgender status, and gender identity), national origin 
(including limited English proficiency), age, disability, political 
affiliation or belief, and for beneficiaries only, citizenship or 
participation in a WIOA Title I-financially assisted program or 
activity. This notification must include:
    (1) The names of the parties to the action or lawsuit;
    (2) The forum in which each case was filed; and
    (3) The relevant case numbers.
    (b) Each recipient (as part of a compliance review conducted under 
Sec.  38.63, or monitoring activity carried out under Sec.  38.65) must 
provide the following information:
    (1) The name of any other Federal agency that conducted a civil 
rights compliance review or complaint investigation, and that found the 
grant applicant or recipient to be in noncompliance, during the two 
years before the grant application was filed or CRC began its 
examination; and
    (2) Information about any administrative enforcement actions or 
lawsuits that alleged discrimination on any protected basis, and that 
were filed against the grant applicant or recipient during the two 
years before the application or renewal application, compliance review, 
or monitoring activity. This information must include:
    (i) The names of the parties;
    (ii) The forum in which each case was filed; and
    (iii) The relevant case numbers.
    (c) At the discretion of the Director, grant applicants and 
recipients may be required to provide, in a timely manner, any 
information and data that the Director considers necessary to 
investigate complaints and conduct compliance reviews on bases 
prohibited under the nondiscrimination and equal opportunity provisions 
of WIOA and this part.
    (d) At the discretion of the Director, recipients may be required 
to provide, in a timely manner, the particularized information and/or 
to submit the periodic reports that the Director considers necessary to 
determine compliance with the nondiscrimination and equal opportunity 
provisions of WIOA or this part.
    (e) At the discretion of the Director, grant applicants may be 
required to submit, in a timely manner, the particularized information 
that the Director considers necessary to determine whether or not the 
grant applicant, if financially assisted, would be able to comply with 
the nondiscrimination and equal opportunity provisions of WIOA or this 
part.
    (f) Where designation of individuals by race or ethnicity is 
required, the guidelines of the Office of Management and Budget must be 
used.


Sec.  38.43  Required maintenance of records by recipients.

    (a) Each recipient must maintain the following records, whether 
they exist in electronic form (including email) or hard copy, for a 
period of not less than three years from the close of the applicable 
program year:
    (1) The records of applicants, registrants, eligible applicants/
registrants, participants, terminees, employees, and applicants for 
employment; and
    (2) Such other records as are required under this part or by the 
Director.
    (b) Where a discrimination complaint has been filed or compliance 
review initiated, every recipient that possesses or maintains any type 
of hard-copy or electronic record related to the complaint (including 
records that have any relevance to the underlying allegations in the 
complaint, as well as records regarding actions taken on the complaint) 
or to the subject of the compliance review must preserve all records, 
regardless whether hard-copy or electronic, that may be relevant to a 
complaint investigation or compliance review, and maintain those 
records for a period of not less than three years from the date of 
final action related to resolution of the complaint or compliance 
review.


Sec.  38.44  CRC access to information and information sources.

    (a) Each grant applicant and recipient must permit access by the 
Director or the Director's designee during normal business hours to its 
premises and to its employees and participants, to the extent that such 
individuals are on the premises during the course of the investigation, 
for the purpose of conducting complaint investigations, compliance 
reviews, or monitoring activities associated with a State's development 
and implementation of a Nondiscrimination Plan, and for inspecting and 
copying such books, records, accounts and other materials as may be 
pertinent to ascertain compliance with and ensure enforcement of the 
nondiscrimination and equal opportunity provisions of WIOA or this 
part.
    (b) Asserted considerations of privacy or confidentiality are not a 
basis for withholding information from CRC and will not bar CRC from 
evaluating or seeking to enforce compliance with the nondiscrimination 
and equal opportunity provisions of WIOA and this part.
    (c) Whenever any information that the Director asks a grant 
applicant or recipient to provide is in the exclusive possession of 
another agency, institution, or person, and that agency, institution, 
or person fails or refuses to furnish the information upon request, the 
grant applicant or recipient must certify to CRC that it has made 
efforts to obtain the information and that the agency, institution, or 
person has failed or refused to provide it. This certification must 
list the name and address of the agency, institution, or person that 
has possession of the information and the specific efforts the grant 
applicant or recipient made to obtain it.


Sec.  38.45  Confidentiality responsibilities of grant applicants, 
recipients, and the Department.

    Grant applicants, recipients and the Department must keep 
confidential to the extent possible, consistent with a fair 
determination of the issues, the identity of any individual who 
furnishes information relating to, or assists in, an investigation or a 
compliance review, including the identity of any individual who files a 
complaint. An individual whose identity is disclosed must be protected 
from retaliation (See Sec.  38.19).

Subpart C--Governor's Responsibilities To Implement the 
Nondiscrimination and Equal Opportunity Requirements of WIOA


Sec.  38.50  Subpart application to State Programs.

    This subpart applies to State Programs as defined in Sec.  38.4. 
However, the provisions of Sec.  38.52(b) do not apply to State 
Workforce Agencies (SWA), because the Governor's liability for any 
noncompliance on the part of a SWA cannot be waived.


Sec.  38.51  Governor's oversight and monitoring responsibilities for 
State Programs.

    The Governor is responsible for oversight and monitoring of all 
WIOA Title I-financially assisted State Programs. This responsibility 
includes:
    (a) Ensuring compliance with the nondiscrimination and equal 
opportunity provisions of WIOA and this part, and negotiating, where 
appropriate, with a recipient to secure voluntary compliance when

[[Page 4563]]

noncompliance is found under Sec.  38.91(b).
    (b) Annually monitoring the compliance of recipients with WIOA 
section 188 and this part, including a determination as to whether each 
recipient is conducting its WIOA Title I-financially assisted program 
or activity in a nondiscriminatory way. At a minimum, each annual 
monitoring review required by this paragraph must include:
    (1) A statistical or other quantifiable analysis of records and 
data kept by the recipient under Sec.  38.41, including analyses by 
race/ethnicity, sex, limited English proficiency, preferred language, 
age, and disability status;
    (2) An investigation of any significant differences identified in 
paragraph (b)(i) of this section in participation in the programs, 
activities, or employment provided by the recipient, to determine 
whether these differences appear to be caused by discrimination. This 
investigation must be conducted through review of the recipient's 
records and any other appropriate means; and
    (3) An assessment to determine whether the recipient has fulfilled 
its administrative obligations under Section 188 of WIOA or this part 
(for example, recordkeeping, notice and communication) and any duties 
assigned to it under the Nondiscrimination Plan.


Sec.  38.52  Governor's liability for actions of recipients the 
Governor has financially assisted under Title I of WIOA.

    (a) The Governor and the recipient are jointly and severally liable 
for all violations of the nondiscrimination and equal opportunity 
provisions of WIOA and this part by the recipient, unless the Governor 
has:
    (1) Established and implemented a Nondiscrimination Plan, under 
Sec.  38.54, designed to give a reasonable guarantee of the recipient's 
compliance with such provisions;
    (2) Entered into a written contract with the recipient that clearly 
establishes the recipient's obligations regarding nondiscrimination and 
equal opportunity;
    (3) Acted with due diligence to monitor the recipient's compliance 
with these provisions; and
    (4) Taken prompt and appropriate corrective action to effect 
compliance.
    (b) If the Director determines that the Governor has demonstrated 
substantial compliance with the requirements of paragraph (a) of this 
section, the Director may recommend to the Secretary that the 
imposition of sanctions against the Governor be waived and that 
sanctions be imposed only against the noncomplying recipient.


Sec.  38.53  Governor's oversight responsibilities regarding 
recipients' recordkeeping.

    The Governor must ensure that recipients collect and maintain 
records in a manner consistent with the provisions of Sec.  38.41 and 
any procedures prescribed by the Director under Sec.  38.41(a). The 
Governor must further ensure that recipients are able to provide data 
and reports in the manner prescribed by the Director.


Sec.  38.54  Governor's obligations to develop and implement a 
Nondiscrimination Plan.

    (a)(1) Each Governor must establish and implement a 
Nondiscrimination Plan for State programs as defined in Sec.  38.4(ll). 
In those States in which one agency contains both SWA or unemployment 
insurance and WIOA Title I-financially assisted programs, the Governor 
must develop a combined Nondiscrimination Plan.
    (2) Each Nondiscrimination Plan must be designed to give a 
reasonable guarantee that all recipients will comply, and are 
complying, with the nondiscrimination and equal opportunity provisions 
of WIOA and this part.
    (b) The Nondiscrimination Plan must be:
    (1) In writing, addressing each requirement of Sec.  38.54(c) with 
narrative and documentation;
    (2) Reviewed and updated as required in Sec.  38.55; and
    (3) Signed by the Governor.
    (c) At a minimum, each Nondiscrimination Plan must:
    (1) Describe how the State programs and recipients have satisfied 
the requirements of the following regulations:
    (i) Sec. Sec.  38.25 through 38.27 (Assurances);
    (ii) Sec. Sec.  38.28 through 38.33 (Equal Opportunity Officers);
    (iii) Sec. Sec.  38.34 through 38.39 (Notice and Communication);
    (iv) Sec. Sec.  38.41 through 38.45 (Data and Information 
Collection and Maintenance);
    (v) Sec.  38.40 (Affirmative Outreach);
    (vi) Sec.  38.53 (Governor's Oversight Responsibility Regarding 
Recipients' Recordkeeping);
    (vii) Sec. Sec.  38.72 through 38.75 (Complaint Processing 
Procedures); and
    (viii) Sec.  38.51, Sec.  38.53 (Governor's Oversight and 
Monitoring Responsibilities for State Programs).
    (2) Include the following additional elements:
    (i) A system for determining whether a grant applicant, if 
financially assisted, and/or a training provider, if selected as 
eligible under Section 122 of WIOA, is likely to conduct its WIOA Title 
I-financially assisted programs or activities in a nondiscriminatory 
way, and to comply with the regulations in this part;
    (ii) A review of recipient policy issuances to ensure they are 
nondiscriminatory;
    (iii) A system for reviewing recipients' job training plans, 
contracts, assurances, and other similar agreements to ensure that they 
are both nondiscriminatory and contain the required language regarding 
nondiscrimination and equal opportunity;
    (iv) Procedures for ensuring that recipients comply with the 
nondiscrimination and equal opportunity requirements of Sec. Sec.  38.5 
regarding race, color, religion, sex (including pregnancy, childbirth 
and related medical conditions, transgender status, and gender 
identity), national origin (including limited English proficiency), 
age, political affiliation or belief, citizenship, or participation in 
any WIOA Title I financially-assisted program or activity;
    (v) Procedures for ensuring that recipients comply with the 
requirements of applicable Federal disability nondiscrimination law, 
including Section 504; Title II of the Americans with Disabilities Act 
of 1990, as amended, if applicable; WIOA Section 188, and this part 
with regard to individuals with disabilities;
    (vi) A system of policy communication and training to ensure that 
EO Officers and members of the recipients' staffs who have been 
assigned responsibilities under the nondiscrimination and equal 
opportunity provisions of WIOA or this part are aware of and can 
effectively carry out these responsibilities;
    (vii) Procedures for obtaining prompt corrective action or, as 
necessary, applying sanctions when noncompliance is found; and
    (viii) Supporting documentation to show that the commitments made 
in the Nondiscrimination Plan have been and/or are being carried out. 
This supporting documentation includes, but is not limited to:
    (A) Policy and procedural issuances concerning required elements of 
the Nondiscrimination Plan;
    (B) Copies of monitoring instruments and instructions;
    (C) Evidence of the extent to which nondiscrimination and equal 
opportunity policies have been developed and communicated as required 
by this part;

[[Page 4564]]

    (D) Information reflecting the extent to which Equal Opportunity 
training, including training called for by Sec. Sec.  38.29(f) and 
38.31(f), is planned and/or has been carried out;
    (E) Reports of monitoring reviews and reports of follow-up actions 
taken under those reviews where violations have been found, including, 
where appropriate, sanctions; and
    (F) Copies of any notices made under Sec. Sec.  38.34 through 
38.40.


Sec.  38.55  Schedule of the Governor's obligations regarding the 
Nondiscrimination Plan.

    (a) Within 180 days of either the date on which this final rule is 
effective, or the date on which the Governor is required to review and 
update their Methods of Administration as determined by the schedule in 
Sec.  37.55 of this chapter, whichever is later, a Governor must:
    (1) Develop and implement a Nondiscrimination Plan consistent with 
the requirements of this part, and
    (2) Submit a copy of the Nondiscrimination Plan to the Director.
    (b) The Governor must promptly update the Nondiscrimination Plan 
whenever necessary, and submit the changes made to the Director in 
writing at the time that any such updates are made.
    (c) Every two years from the date on which the initial 
Nondiscrimination Plan is submitted to the Director under paragraph 
(a)(2) of this section, the Governor must review the Nondiscrimination 
Plan and the manner in which it has been implemented, and determine 
whether any changes are necessary in order for the State to comply 
fully and effectively with the nondiscrimination and equal opportunity 
provisions of WIOA and this part.
    (1) If any such changes are necessary, the Governor must make the 
appropriate changes and submit them, in writing, to the Director.
    (2) If the Governor determines that no such changes are necessary, 
s/he must certify, in writing, to the Director that the 
Nondiscrimination Plan previously submitted continues in effect.
    (3) Submit a copy of all reports of any monitoring reviews 
conducted by the Governor pursuant to Sec.  38.51(b) since the last 
Nondiscrimination Plan update.

Subpart D--Compliance Procedures


Sec.  38.60  Evaluation of compliance.

    From time to time, the Director may conduct pre-approval compliance 
reviews of grant applicants for, and post-approval compliance reviews 
of recipients of, WIOA Title I-financial assistance to determine the 
ability to comply or compliance with the nondiscrimination and equal 
opportunity provisions of WIOA and this part. Reviews may focus on one 
or more specific programs or activities, or one or more issues within a 
program or activity. The Director may also investigate and resolve 
complaints alleging violations of the nondiscrimination and equal 
opportunity provisions of WIOA and this part.


Sec.  38.61  Authority to issue subpoenas.

    Section 183(c) of WIOA authorizes the issuance of subpoenas. The 
subpoena may require the appearance of witnesses, and the production of 
documents, from any place in the United States, at any designated time 
and place. A subpoena may direct the individual named on the subpoena 
to take the following actions:
    (a) To appear:
    (1) Before a designated CRC representative,
    (2) At a designated time and place;
    (b) To give testimony; and/or
    (c) To produce documentary evidence.

Compliance Reviews


Sec.  38.62  Authority and procedures for pre-approval compliance 
reviews.

    (a) As appropriate and necessary to ensure compliance with the 
nondiscrimination and equal opportunity provisions of WIOA or this 
part, the Director may review any application, or class of 
applications, for Federal financial assistance under Title I of WIOA, 
before and as a condition of their approval. The basis for such review 
may be the assurance specified in Sec.  38.25, information and reports 
submitted by the grant applicant under this part or guidance published 
by the Director, and any relevant records on file with the Department.
    (b) When awarding financial assistance under Title I of WIOA, 
departmental grantmaking agencies must consult with the Director to 
review whether the CRC has issued a Notice to Show Cause under Sec.  
38.66(b) or a Final Determination against an applicant that has been 
identified as a probable awardee.
    (c) The grantmaking agency will consider, in consultation with the 
Director, the above information, along with any other information 
provided by the Director in determining whether to award a grant or 
grants. Departmental grantmaking agencies must consider refraining from 
awarding new grants to applicants or must consider including special 
terms in the grant agreement for entities named by the Director as 
described in subsection (b). Special terms will not be lifted until a 
compliance review has been conducted by the Director, and the Director 
has approved a determination that the applicant is likely to comply 
with the nondiscrimination and equal opportunity requirements of WIOA 
and this part.
    (d) Where the Director determines that the grant applicant for 
Federal financial assistance under Title I of WIOA, if financially 
assisted, is not likely to comply with the nondiscrimination and equal 
opportunity requirements of WIOA or this part, the Director must:
    (1) Notify, in a timely manner, the Departmental grantmaking agency 
and the Assistant Attorney General of the findings of the pre-approval 
compliance review; and (2) Issue a Letter of Findings. The Letter of 
Findings must advise the grant applicant, in writing, of:
    (i) The preliminary findings of the review;
    (ii) The proposed remedial or corrective action under Sec.  38.90 
and the time within which the remedial or corrective action should be 
completed;
    (iii) Whether it will be necessary for the grant applicant to enter 
into a written Conciliation Agreement as described in Sec. Sec.  38.91 
and 38.93; and
    (iv) The opportunity to engage in voluntary compliance 
negotiations.
    (2) [Reserved]
    (e) If a grant applicant has agreed to certain remedial or 
corrective actions in order to receive WIOA Title I financial 
assistance, the Department must ensure that the remedial or corrective 
actions have been taken, or that a Conciliation Agreement has been 
entered into, before approving the award of further assistance under 
WIOA Title I. If a grant applicant refuses or fails to take remedial or 
corrective actions or to enter into a Conciliation Agreement, as 
applicable, the Director must follow the procedures outlined in 
Sec. Sec.  38.95 through 38.97.


Sec.  38.63  Authority and procedures for conducting post-approval 
compliance reviews.

    (a) The Director may initiate a post-approval compliance review of 
any recipient to determine compliance with the nondiscrimination and 
equal opportunity provisions of WIOA and this part. The initiation of a 
post-approval review may be based on, but need not be limited to, the 
results of routine program monitoring by other

[[Page 4565]]

Departmental or Federal agencies, or the nature or frequency of 
complaints.
    (b) A post-approval review must be initiated by a Notification 
Letter, advising the recipient of:
    (1) The practices to be reviewed;
    (2) The programs to be reviewed;
    (3) The information, records, and/or data to be submitted by the 
recipient within 30 days of the receipt of the Notification Letter, 
unless this time frame is modified by the Director; and
    (4) The opportunity, at any time before receipt of the Final 
Determination described in Sec. Sec.  38.95 and 38.96, to make a 
documentary or other written submission that explains, validates or 
otherwise addresses the practices under review.
    (c) The Director may conduct post-approval reviews using such 
techniques as desk audits and on-site reviews.


Sec.  38.64  Procedures for concluding post-approval compliance 
reviews.

    (a) Where, as the result of a post-approval review, the Director 
has made a finding of noncompliance, he or she must issue a Letter of 
Findings. This Letter must advise the recipient, in writing, of:
    (1) The preliminary findings of the review;
    (2) Where appropriate, the proposed remedial or corrective action 
to be taken, and the time by which such action should be completed, as 
provided in Sec.  38.90;
    (3) Whether it will be necessary for the recipient to enter into a 
written assurance or Conciliation Agreement, as provided in Sec. Sec.  
38.95 and 38.96; and
    (4) The opportunity to engage in voluntary compliance negotiations.
    (b) Where no violation is found, the recipient must be so informed 
in writing.


Sec.  38.65  Authority to monitor the activities of a Governor.

    (a) The Director may periodically review the adequacy of the 
Nondiscrimination Plan established by a Governor, as well as the 
adequacy of the Governor's performance under the Nondiscrimination 
Plan, to determine compliance with the requirements of Sec. Sec.  38.50 
through 38.55. The Director may review the Nondiscrimination Plan 
during a compliance review under Sec. Sec.  38.62 and 38.63, or at 
another time.
    (b) Nothing in this subpart limits or precludes the Director from 
monitoring directly any WIOA Title I recipient or from investigating 
any matter necessary to determine a recipient's compliance with the 
nondiscrimination and equal opportunity provisions of WIOA or this 
part.
    (c) Where the Director determines that the Governor has not 
complied with the oversight and monitoring responsibilities set forth 
in the nondiscrimination and equal opportunity requirements of WIOA or 
this part, the Director may:
    (1) Issue a Letter of Findings. The Letter of Findings must advise 
the Governor, in writing, of:
    (i) The preliminary findings of the review:
    (ii) The proposed remedial or corrective action under Sec.  38. 90 
and the time within which the remedial or corrective action should be 
completed;
    (iii) Whether it will be necessary for the Governor to enter into a 
conciliation agreement as described in Sec. Sec.  38.95 and 38.96; and
    (iv) The opportunity to engage in voluntary compliance 
negotiations.
    (2) If a Governor refuses or fails to take remedial or corrective 
actions or to enter into a conciliation agreement, the Director may 
follow the procedures outlined in Sec. Sec.  38.89, 38.90, and 38.91.


Sec.  38.66  Notice to show cause issued to a recipient.

    (a) The Director may issue a Notice to Show Cause to a recipient 
failing to comply with the requirements of this part, where such 
failure results in the inability of the Director to make a finding. 
Such a failure includes, but is not limited to, the recipient's failure 
or refusal to:
    (1) Submit requested information, records, and/or data within the 
timeframe specified in a Notification Letter issued pursuant to Sec.  
38.64;
    (2) Submit, in a timely manner, information, records, and/or data 
requested during a compliance review, complaint investigation, or other 
action to determine a recipient's compliance with the nondiscrimination 
and equal opportunity provisions of WIOA or this part; or
    (3) Provide CRC access in a timely manner to a recipient's 
premises, records, or employees during a compliance review or complaint 
investigation, as required in Sec.  38.42(c).
    (b) The Director may issue a Notice to Show Cause to a recipient 
after a Letter of Findings and/or an Initial Determination has been 
issued, and after a reasonable period of time has passed within which 
the recipient refuses to negotiate a conciliation agreement with the 
Director regarding the violation(s).
    (c) A Notice to Show Cause must contain:
    (1) A description of the violation and a citation to the pertinent 
nondiscrimination or equal opportunity provision(s) of WIOA and this 
part;
    (2) The corrective action necessary to achieve compliance or, as 
may be appropriate, the concepts and principles of acceptable 
corrective or remedial action and the results anticipated; and
    (3) A request for a written response to the findings, including 
commitments to corrective action or the presentation of opposing facts 
and evidence.
    (d) A Notice to Show Cause must give the recipient 30 days from 
receipt of the Notice to show cause why enforcement proceedings under 
the nondiscrimination and equal opportunity provisions of WIOA or this 
part should not be instituted.


Sec.  38.67  Methods by which a recipient may show cause why 
enforcement proceedings should not be instituted.

    A recipient may show cause why enforcement proceedings should not 
be instituted by, among other means:
    (a) Correcting the violation(s) that brought about the Notice to 
Show Cause and entering into a Conciliation Agreement, under Sec. Sec.  
38.91 through 38.93;
    (b) Demonstrating that CRC does not have jurisdiction; or
    (c) Demonstrating that the violation alleged by CRC did not occur.


Sec.  38.68  Failing to show cause.

    If the recipient fails to show cause why enforcement proceedings 
should not be initiated, the Director may follow the enforcement 
procedures outlined in Sec.  38.95.

Complaint Processing Procedures


Sec.  38.69  Complaint filing.

    (a) Any person or his/her representative who believes that any of 
the following circumstances exist may file a written complaint:
    (1) A person, or any specific class of individuals, has been or is 
being discriminated against on the basis of race, color, religion, sex 
(including pregnancy, childbirth, or related medical conditions, 
transgender status, and gender identity), national origin (including 
limited English proficiency), age, disability, political affiliation or 
belief, citizenship status, or participation in any WIOA Title I-
financially-assisted program or activity as prohibited by WIOA or this 
part.
    (2) Either the person, or any specific class of individuals, has 
been or is being retaliated against as described in Sec.  38.19.
    (b) A person or the person's representative may file a complaint 
with either the recipient or the Director. Complaints filed with the 
Director should be sent to the address listed in

[[Page 4566]]

the notice or filed electronically as described in the notice in Sec.  
38.35.
    (c) Generally, a complaint must be filed within 180 days of the 
alleged discrimination or retaliation. However, for good cause shown, 
the Director may extend the filing time. The time period for filing is 
for the administrative convenience of CRC, and does not create a 
defense for the respondent.


Sec.  38.70  Required contents of complaint.

    Each complaint must be filed in writing, either electronically or 
in hard copy, and must contain the following information:
    (a) The complainant's name, mailing address, and, if available, 
email address (or another means of contacting the complainant);
    (b) The identity of the respondent (the individual or entity that 
the complainant alleges is responsible for the discrimination);
    (c) A description of the complainant's allegations. This 
description must include enough detail to allow the Director or the 
recipient, as applicable, to decide whether:
    (1) CRC or the recipient, as applicable, has jurisdiction over the 
complaint;
    (2) The complaint was filed in time; and
    (3) The complaint has apparent merit; in other words, whether the 
complainant's allegations, if true, would indicate noncompliance with 
any of the nondiscrimination and equal opportunity provisions of WIOA 
or this part.
    (d) The written or electronic signature of the complainant or the 
written or electronic signature of the complainant's representative.
    (e) A complainant may file a complaint by completing and submitting 
CRC's Complaint Information and Privacy Act Consent Forms, which may be 
obtained either from the recipient's EO Officer or from CRC. The forms 
are available electronically on CRC's Web site, and in hard copy via 
postal mail upon request. The latter requests may be sent to CRC at the 
address listed in the notice contained in Sec.  38.35.


Sec.  38.71  Right to representation.

    Both the complainant and the respondent have the right to be 
represented by an attorney or other individual of their choice.


Sec.  38.72  Required elements of a recipient's complaint processing 
procedures.

    (a) The procedures that a recipient adopts and publishes for 
processing complaints permitted under this part and WIOA Section 188 
must state that the recipient will issue a written Notice of Final 
Action on complaints within 90 days of the date on which the complaint 
is filed.
    (b) At a minimum, the procedures must include the following 
elements:
    (1) Initial, written notice to the complainant that contains the 
following information:
    (i) An acknowledgment that the recipient has received the 
complaint, and
    (ii) Notice that the complainant has the right to be represented in 
the complaint process;
    (iii) Notice of rights contained in Sec.  38.35; and
    (iv) Notice that the complainant has the right to request and 
receive, at no cost, auxiliary aids and services, language assistance 
services, and that this notice will be translated into the non-English 
languages as required in Sec.  38.4(h), Sec.  38.4(i) and Sec.  38.34 
and Sec.  38.36.
    (2) A written statement of the issue(s), provided to the 
complainant, that includes the following information:
    (i) A list of the issues raised in the complaint, and
    (ii) For each such issue, a statement whether the recipient will 
accept the issue for investigation or reject the issue, and the reasons 
for each rejection;
    (3) A period for fact-finding or investigation of the circumstances 
underlying the complaint;
    (4) A period during which the recipient attempts to resolve the 
complaint. The methods available to resolve the complaint must include 
alternative dispute resolution (ADR), as described in paragraph (c) of 
this section.
    (5) A written Notice of Final Action, provided to the complainant 
within 90 days of the date on which the complaint was filed, that 
contains the following information:
    (i) For each issue raised in the complaint, a statement of either:
    (A) The recipient's decision on the issue and an explanation of the 
reasons underlying the decision, or
    (B) A description of the way the parties resolved the issue; and
    (ii) Notice that the complainant has a right to file a complaint 
with CRC within 30 days of the date on which the Notice of Final Action 
is issued if the complainant is dissatisfied with the recipient's final 
action on the complaint.
    (c) The procedures the recipient adopts must provide for 
alternative dispute resolution (ADR). The recipient's ADR procedures 
must provide that:
    (1) ADR may be attempted any time after a written complaint has 
been filed with the recipient;
    (2) The choice whether to use ADR or the customary process rests 
with the complainant;
    (3) A party to any agreement reached under ADR may notify the 
Director in the event the agreement is breached. In such circumstances, 
the following rules will apply:
    (i) The non-breaching party may notify with the Director within 30 
days of the date on which the non-breaching party learns of the alleged 
breach;
    (ii) The Director must evaluate the circumstances to determine 
whether the agreement has been breached. If the Director determines 
that the agreement has been breached, the complaint will be reinstated 
and processed in accordance with the recipient's procedures.
    (4) If the parties do not reach an agreement under ADR, the 
complainant may file a complaint with the Director as described in 
Sec. Sec.  38.69 through 38.71.


Sec.  38.73  Responsibility for developing and publishing complaint 
processing procedures for service providers.

    The Governor or the LWIA grant recipient, as provided in the 
State's Nondiscrimination Plan, must develop and publish, on behalf of 
its service providers, the complaint processing procedures required in 
Sec.  38.73. The service providers must then follow those procedures.


Sec.  38.74  Recipient's obligations when it determines that it has no 
jurisdiction over a complaint.

    If a recipient determines that it does not have jurisdiction over a 
complaint, it must notify the complainant, in writing within five 
business days of making such determination. This Notice of Lack of 
Jurisdiction must include:
    (a) A statement of the reasons for that determination, and
    (b) Notice that the complainant has a right to file a complaint 
with CRC within 30 days of the date on which the complainant receives 
the Notice.


Sec.  38.75  If the complainant is dissatisfied after receiving a 
Notice of Final Action.

    If the recipient issues its Notice of Final Action before the 90-
day period ends, but the complainant is dissatisfied with the 
recipient's decision on the complaint, the complainant or the 
complainant's representative may file a complaint with the Director 
within 30 days after the date on which the complainant receives the 
Notice.

[[Page 4567]]

Sec.  38.76  If a recipient fails to issue a Notice of Final Action 
within 90 days after the complaint was filed.

    If, by the end of 90 days from the date on which the complainant 
filed the complaint, the recipient has failed to issue a Notice of 
Final Action, the complainant or the complainant's representative may 
file a complaint with the Director within 30 days of the expiration of 
the 90-day period. In other words, the complaint must be filed with the 
Director within 120 days of the date on which the complaint was filed 
with the recipient.


Sec.  38.77  Extension of deadline to file complaint.

    (a) The Director may extend the 30-day time limit for filing a 
complaint:
    (1) If a recipient does not include in its Notice of Final Action 
the required notice about the complainant's right to file with the 
Director, as described in Sec.  38.72(b)(5); or
    (2) For other good cause shown.
    (b) The complainant has the burden of proving to the Director that 
the time limit should be extended.


Sec.  38.78  Determinations regarding acceptance of complaints.

    The Director must decide whether CRC will accept a particular 
complaint for resolution. For example, a complaint need not be accepted 
if:
    (a) It has not been timely filed;
    (b) CRC has no jurisdiction over the complaint; or
    (c) CRC has previously decided the matter.


Sec.  38.79  When a complaint contains insufficient information.

    (a) If a complaint does not contain enough information to identify 
the respondent or the basis of the alleged discrimination, the 
timeliness of the complaint, or the apparent merit of the complaint, 
the Director must try to get the needed information from the 
complainant.
    (b) The Director may close the complainant's file, without 
prejudice, if:
    (1) The Director makes reasonable efforts to try to find the 
complainant, but is unable to reach him or her; or
    (2) The complainant does not provide the needed information to CRC 
within the time specified in the request for more information.
    (c) If the Director closes the complainant's file, the Director 
must send written notice to the complainant's last known address, email 
address (or another known method of contacting the complainant in 
writing).


Sec.  38.80  Lack of jurisdiction.

    If CRC does not have jurisdiction over a complaint, the Director 
must:
    (a) Notify the complainant in writing and explain why the complaint 
falls outside the coverage of the nondiscrimination and equal 
opportunity provisions of WIOA or this part; and
    (b) Where possible, transfer the complaint to an appropriate 
Federal, State or local authority.


Sec.  38.81  Complaint referral.

    The Director refers complaints to other agencies in the following 
circumstances:
    (a) Where the complaint alleges discrimination based on age, and 
the complaint falls within the jurisdiction of the Age Discrimination 
Act of 1975, as amended, then the Director must refer the complaint, in 
accordance with the provisions of 45 CFR 90.43(c)(3).
    (b) Where the only allegation in the complaint is a charge of 
individual employment discrimination that is covered both by WIOA or 
this part and by one or more of the laws listed below, then the 
complaint is a ``joint complaint,'' and the Director may refer it to 
the EEOC for investigation and conciliation under the procedures 
described in 29 CFR part 1640 or 1691, as appropriate. The relevant 
laws are:
    (1) Title VII of the Civil Rights Act of 1964, as amended (42 
U.S.C. 2000e to 2000e-17);
    (2) The Equal Pay Act of 1963, as amended (29 U.S.C. 206(d));
    (3) The Age Discrimination in Employment Act of 1976, as amended 
(29 U.S.C. 621, et seq.); and
    (4) Title I of the Americans with Disabilities Act of 1990, as 
amended (42 U.S.C. 12101 et seq.).
    (c) Where the complaint alleges discrimination by an entity that 
operates a program or activity financially assisted by a Federal 
grantmaking agency other than the Department, but that participates as 
a partner in a One-Stop delivery system, the following procedures 
apply:
    (1) Where the complaint alleges discrimination on a basis that is 
prohibited both by Section 188 of WIOA and by a civil rights law 
enforced by the Federal grantmaking agency, then CRC and the 
grantmaking agency have dual jurisdiction over the complaint, and the 
Director will refer the complaint to the grantmaking agency for 
processing. In such circumstances, the grantmaking agency's regulations 
will govern the processing of the complaint.
    (2) Where the complaint alleges discrimination on a basis that is 
prohibited by Section 188 of WIOA, but not by any civil rights laws 
enforced by the Federal grantmaking agency, then CRC has sole 
jurisdiction over the complaint, and will retain the complaint and 
process it pursuant to this part. Such bases generally include 
religion, political affiliation or belief, citizenship, and/or 
participation in a WIOA Title I-financially assisted program or 
activity.
    (d) Where the Director makes a referral under this section, he or 
she must notify the complainant and the respondent about the referral.


Sec.  38.82  Notice that complaint will not be accepted.

    If a complaint will not be accepted, the Director must notify the 
complainant, in writing, about that fact, and provide the complainant 
the Director's reasons for making that determination.


Sec.  38.83  Notice of complaint acceptance.

    If the Director accepts the complaint for resolution, he or she 
must notify in writing the complainant, the respondent, and the 
grantmaking agency. The notice must:
    (a) State that the complaint will be accepted,
    (b) Identify the issues over which CRC has accepted jurisdiction; 
and
    (c) Explain the reasons why any issues were rejected.


Sec.  38.84  Contacting CRC about a complaint.

    Both the complainant and the respondent, or their representative, 
may contact CRC for information about the complaint. The Director will 
determine what information, if any, about the complaint will be 
released.


Sec.  38.85  Alternative dispute resolution.

    The Director may offer the option of alternative dispute resolution 
(ADR) of the complaint filed with CRC. In such circumstances, the 
following rules apply:
    (a) ADR is voluntary; consent must be given by the complainant and 
respondent before the ADR process will proceed.
    (b) The ADR will be conducted under the guidance of the Director.
    (c) ADR may take place at any time after a complaint has been filed 
under Sec.  38.69, as deemed appropriate by the Director.
    (d) CRC will not suspend its investigation and complaint processes 
during ADR.

Complaint Determinations


Sec.  38.86  Notice at conclusion of complaint investigation.

    At the conclusion of the investigation of the complaint, the 
Director must take the following actions:
    (a) Determine whether there is reasonable cause to believe that the

[[Page 4568]]

respondent has violated the nondiscrimination and equal opportunity 
provisions of WIOA or this part; and
    (b) Notify the complainant, the respondent, and the grantmaking 
agency, in writing, of that determination as provided in Sec. Sec.  
38.87 and 38.88.


Sec.  38.87  Director's Initial Determination that reasonable cause 
exists to believe that a violation has taken place.

    If the Director finds reasonable cause to believe that the 
respondent has violated the nondiscrimination and equal opportunity 
provisions of WIOA or this part the Director must issue an Initial 
Determination. The Initial Determination must include:
    (a) The specific findings of the investigation;
    (b) The corrective or remedial action that the Department proposes 
to the respondent, under Sec.  38.90;
    (c) The time by which the respondent must complete the corrective 
or remedial action;
    (d) Whether it will be necessary for the respondent to enter into a 
written agreement under Sec. Sec.  38.91 through 38.93; and
    (e) The opportunity to engage in voluntary compliance negotiations.


Sec.  38.88  Director's Final Determination that no reasonable cause 
exists to believe that a violation has taken place.

    If the Director determines that there is no reasonable cause to 
believe that a violation has taken place, the Director must issue a 
Final Determination under Sec.  38.96. The Final Determination 
represents the Department's final agency action on the complaint.


Sec.  38.89  When the recipient fails or refuses to take the corrective 
action listed in the Initial Determination.

    Under such circumstances, following a complaint investigation or 
compliance review, the Department may take the actions described in 
Sec.  38.95.


Sec.  38.90  Corrective or remedial action that may be imposed when the 
Director finds a violation.

    (a) A Letter of Findings, Notice to Show Cause, or Initial 
Determination, issued under Sec. Sec.  38.62 or 38.63, 38.66 and 38.67, 
or 38.87, respectively, must include the specific steps the grant 
applicant or recipient, as applicable, must take within a stated period 
of time in order to achieve voluntary compliance.
    (b) Such steps must include:
    (1) Actions to end and/or redress the violation of the 
nondiscrimination and equal opportunity provisions of WIOA or this 
part;
    (2) Make whole relief where discrimination has been identified, 
including, as appropriate, back pay (which must not accrue from a date 
more than 2 years before the filing of the complaint or the initiation 
of a compliance review), or other monetary relief; hire or 
reinstatement; retroactive seniority; promotion; benefits or other 
services discriminatorily denied; and
    (3) Such other remedial or affirmative relief as the Director deems 
necessary, including but not limited to outreach, recruitment and 
training designed to ensure equal opportunity.
    (c) Monetary relief may not be paid from Federal funds.


Sec.  38.91  Post violation procedures.

    (a) Violations at the State Level. Where the Director has 
determined that a violation of the nondiscrimination and equal 
opportunity provisions of WIOA or this part has occurred at the State 
level, the Director must notify the Governor of that State through the 
issuance of a Letter of Findings, Notice to Show Cause, or Initial 
Determination, as appropriate, under Sec. Sec.  38.62 or 38.63, 38.66 
and 38.67, or 38.87, respectively. The Director may secure compliance 
with the nondiscrimination and equal opportunity provisions of WIOA and 
this part through, among other means, the execution of a written 
assurance or Conciliation Agreement.
    (b) Violations below State level. Where the Director has determined 
that a violation of the nondiscrimination and equal opportunity 
provisions of WIOA or this part has occurred below the State level, the 
Director must so notify the Governor and the violating recipient(s) 
through the issuance of a Letter of Findings, Notice to Show Cause or 
Initial Determination, as appropriate, under Sec. Sec.  38.62 or 38.63, 
38.66 and 38.67, or 38.87, respectively.
    (1) Such issuance may:
    (i) Direct the Governor to initiate negotiations immediately with 
the violating recipient(s) to secure compliance by voluntary means;
    (ii) Direct the Governor to complete such negotiations within 30 
days of the Governor's receipt of the Notice to Show Cause or within 45 
days of the Governor's receipt of the Letter of Findings or Initial 
Determination, as applicable. The Director reserves the right to enter 
into negotiations with the recipient at any time during the period. For 
good cause shown, the Director may approve an extension of time to 
secure voluntary compliance. The total time allotted to secure 
voluntary compliance must not exceed 60 days.
    (iii) Include a determination as to whether compliance must be 
achieved by:
    (A) Immediate correction of the violation(s) and written assurance 
that such violations have been corrected, under Sec.  38.92; or
    (B) Entering into a written Conciliation Agreement under Sec.  
38.93.
    (2) If the Governor determines, at any time during the period 
described in paragraph (b)(1)(ii) of this section, that a recipient's 
compliance cannot be achieved by voluntary means, the Governor must so 
notify the Director.
    (3) If the Governor is able to secure voluntary compliance under 
paragraph (b)(1) of this section, he or she must submit to the Director 
for approval, as applicable:
    (i) Written assurance that the required action has been taken, as 
described in Sec.  38.92; or
    (ii) A copy of the Conciliation Agreement, as described in Sec.  
38.93.
    (4) The Director may disapprove any written assurance or 
Conciliation Agreement submitted for approval under paragraph (b)(3) of 
this section that fails to satisfy each of the applicable requirements 
provided in Sec. Sec.  38.92 and 38.93.
    (c) Violations in National Programs. Where the Director has 
determined that a violation of the nondiscrimination and equal 
opportunity provisions of WIOA or this part has occurred in a National 
Program, the Director must notify the Federal grantmaking agency and 
the recipient by issuing a Letter of Findings, Notice to Show Cause, or 
Initial Determination, as appropriate, under Sec. Sec.  38.62 or 38.63, 
38.66 and 38.67, or 38.87, respectively. The Director may secure 
compliance with the nondiscrimination and equal opportunities 
provisions of WIOA through, among other means, the execution of a 
written assurance or conciliation agreement under Sec. Sec.  38.92 or 
38.93.


Sec.  38.92  Written assurance.

    A written assurance is the resolution document that may be used 
when the Director determines that a recipient has, within fifteen 
business days after receipt of the Letter of Findings or Initial 
Determination identifying the violations, taken all corrective actions 
to remedy the violations specified in those documents.


Sec.  38.93  Required elements of a conciliation agreement.

    A conciliation agreement must:
    (a) Be in writing;
    (b) Address the legal and contractual obligations of the recipient;

[[Page 4569]]

    (c) Address each cited violation;
    (d) Specify the corrective or remedial action to be taken within a 
stated period of time to come into compliance;
    (e) Provide for periodic reporting on the status of the corrective 
and remedial action;
    (f) State that the violation(s) will not recur;
    (g) State that nothing in the agreement will prohibit CRC from 
sending the agreement to the complainant, making it available to the 
public, or posting it on the CRC or recipient's Web site;
    (h) State that, in any proceeding involving an alleged violation of 
the conciliation agreement, CRC may seek enforcement of the agreement 
itself and shall not be required to present proof of the underlying 
violations resolved by the agreement; and
    (i) Provide for enforcement for a breach of the agreement.


Sec.  38.94  When voluntary compliance cannot be secured.

    The Director will conclude that compliance cannot be secured by 
voluntary means under the following circumstances:
    (a) The Governor, grant applicant or recipient fails to or refuses 
to correct the violation(s) within the time period established by the 
Letter of Findings, Notice to Show Cause or Initial Determination; or
    (b) The Director has not approved an extension of time for 
agreement on voluntary compliance under Sec.  38.91(b)(1)(ii) and he or 
she either:
    (1) Has not be notified under Sec.  38.91(b)(3), that the Governor, 
grant applicant or recipient has agreed to voluntary compliance;
    (2) Has disapproved a written assurance or Conciliation Agreement, 
under Sec.  38.91(b)(4); or
    (3) Has received notice from the Governor, under Sec.  38.91(b)(2), 
that the grant applicant or recipient will not comply voluntarily.


Sec.  38.95  Enforcement when voluntary compliance cannot be secured.

    If the Director concludes that compliance cannot be secured by 
voluntary means, the Director must either:
    (a) Issue a Final Determination;
    (b) Refer the matter to the Attorney General with a recommendation 
that an appropriate civil action be instituted; or
    (c) Take such other action as may be provided by law.


Sec.  38.96  Contents of a Final Determination of a violation.

    A Final Determination must contain the following information:
    (a) A statement of the efforts made to achieve voluntary 
compliance, and a statement that those efforts have been unsuccessful;
    (b) A statement of those matters upon which the grant applicant or 
recipient and CRC continue to disagree;
    (c) A list of any modifications to the findings of fact or 
conclusions that were set forth in the Initial Determination, Notice to 
Show Cause or Letter of Findings;
    (d) A statement of the grant applicant's or recipient's liability, 
and, if appropriate, the extent of that liability;
    (e) A description of the corrective or remedial actions that the 
grant applicant or recipient must take to come into compliance;
    (f) A notice that if the grant applicant or recipient fails to come 
into compliance within 10 days of the date on which it receives the 
Final Determination, one or more of the following consequences may 
result:
    (1) After the grant applicant or recipient is given the opportunity 
for a hearing, its WIOA Title I financial assistance may be terminated, 
discontinued, or withheld in whole or in part, or its application for 
such financial assistance may be denied, as appropriate;
    (2) The Secretary of Labor may refer the case to the Department of 
Justice with a request to file suit against the grant applicant or 
recipient; or
    (3) the Secretary may take any other action against the grant 
applicant or recipient that is provided by law;
    (g) A notice of the grant applicant's or recipient's right to 
request a hearing under the procedures described in Sec. Sec.  38.112 
through 37.115; and
    (h) A determination of the Governor's liability, if any, under 
Sec.  38.52.


Sec.  38.97  Notification of finding of noncompliance.

    Where a compliance review or complaint investigation results in a 
finding of noncompliance, the Director must notify:
    (a) The grant applicant or recipient;
    (b) The grantmaking agency; and
    (c) The Assistant Attorney General.

 Breaches of Conciliation Agreements


Sec.  38.98  Notice of breach of conciliation agreement.

    (a) When it becomes known to the Director that a Conciliation 
Agreement has been breached, the Director may issue a Notification of 
Breach of Conciliation Agreement.
    (b) The Director must send a Notification of Breach of Conciliation 
Agreement to the Governor, the grantmaking agency, and/or other 
party(ies) to the Conciliation Agreement, as applicable.


Sec.  38.99  Contents of notice of breach of conciliation agreement.

    A Notification of Breach of Conciliation Agreement must:
    (a) Specify any efforts made to achieve voluntary compliance, and 
indicate that those efforts have been unsuccessful;
    (b) Identify the specific provisions of the Conciliation Agreement 
violated;
    (c) Determine liability for the violation and the extent of the 
liability;
    (d) Indicate that failure of the violating party to come into 
compliance within 10 days of the receipt of the Notification of Breach 
of Conciliation Agreement may result, after opportunity for a hearing, 
in the termination or denial of the grant, or discontinuation of 
assistance, as appropriate, or in referral to the Department of Justice 
with a request from the Department to file suit;
    (e) Advise the violating party of the right to request a hearing, 
and reference the applicable procedures in Sec.  38.111; and
    (f) Include a determination as to the Governor's liability, if any, 
in accordance with the provisions of Sec.  38.52.


Sec.  38.100  Notification of an enforcement action based on breach of 
conciliation agreement.

    In such circumstances, the Director must notify:
    (a) The grantmaking agency; and
    (b) The Governor, recipient or grant applicant, as applicable.

Subpart E--Federal Procedures for Effecting Compliance


Sec.  38.110  Enforcement procedures.

    (a) Sanctions; judicial enforcement. If compliance has not been 
achieved after issuance of a Final Determination under Sec. Sec.  38.95 
and 38.96, or a Notification of Breach of Conciliation Agreement under 
Sec. Sec.  38.98 through 38.100, the Secretary may:
    (1) After opportunity for a hearing, suspend, terminate, deny or 
discontinue the WIOA Title I financial assistance, in whole or in part;
    (2) Refer the matter to the Attorney General with a recommendation 
that an appropriate civil action be instituted; or
    (3) Take such action as may be provided by law, which may include 
seeking injunctive relief.
    (b) Deferral of new grants. When proceedings under Sec.  38.111 
have been initiated against a particular recipient, the Department may 
defer action on that recipient's applications for new WIOA Title I 
financial assistance until a Final Decision under Sec.  38.112 has been 
rendered. Deferral is not appropriate

[[Page 4570]]

when WIOA Title I financial assistance is due and payable under a 
previously approved application.
    (1) New WIOA Title I financial assistance includes all assistance 
for which an application or approval, including renewal or continuation 
of existing activities, or authorization of new activities, is required 
during the deferral period.
    (2) New WIOA Title I financial assistance does not include 
assistance approved before the beginning of proceedings under Sec.  
38.111, or increases in funding as a result of changed computations of 
formula awards.


Sec.  38.111  Hearing procedures.

    (a) Notice of opportunity for hearing. As part of a Final 
Determination, or a Notification of Breach of a Conciliation Agreement, 
the Director must include, and serve on the grant applicant or 
recipient (by certified mail, return receipt requested), a notice of 
opportunity for hearing.
    (b) Complaint; request for hearing; answer. (1) In the case of 
noncompliance that cannot be voluntarily resolved, the Final 
Determination or Notification of Breach of Conciliation Agreement is 
considered the Department's formal complaint.
    (2) To request a hearing, the grant applicant or recipient must 
file a written answer to the Final Determination or Notification of 
Breach of Conciliation Agreement, and a copy of the Final Determination 
or Notification of Breach of Conciliation Agreement, with the Office of 
the Administrative Law Judges, 800 K Street NW., Suite 400, Washington, 
DC 20001.
    (i) The answer must be filed within 30 days of the date of receipt 
of the Final Determination or Notification of Breach of Conciliation 
Agreement.
    (ii) A request for hearing must be set forth in a separate 
paragraph of the answer.
    (iii) The answer must specifically admit or deny each finding of 
fact in the Final Determination or Notification of Breach of 
Conciliation Agreement. Where the grant applicant or recipient does not 
have knowledge or information sufficient to form a belief, the answer 
may so state and the statement will have the effect of a denial. 
Findings of fact not denied are considered admitted. The answer must 
separately state and identify matters alleged as affirmative defenses, 
and must also set forth the matters of fact and law relied on by the 
grant applicant or recipient.
    (3) The grant applicant or recipient must simultaneously serve a 
copy of its filing on the Office of the Solicitor, Civil Rights and 
Labor-Management Division, Room N-2474, U.S. Department of Labor, 200 
Constitution Avenue NW., Washington, DC 20210.
    (4)(i) The failure of a grant applicant or recipient to request a 
hearing under this paragraph (b), or to appear at a hearing for which a 
date has been set, waives the right to a hearing; and
    (ii) Whenever a hearing is waived, all allegations of fact 
contained in the Final Determination or Notification of Breach of 
Conciliation Agreement are considered admitted, and the Final 
Determination or Notification of Breach of Conciliation Agreement 
becomes the Final Decision of the Secretary as of the day following the 
last date by which the grant applicant or recipient was required to 
request a hearing or was to appear at a hearing.
    (c) Time and place of hearing. Hearings will be held at a time and 
place ordered by the Administrative Law Judge upon reasonable notice to 
all parties and, as appropriate, the complainant. In selecting a place 
for the hearing, due regard must be given to the convenience of the 
parties, their counsel, and witnesses, if any.
    (d) Judicial process; evidence. (1) The Administrative Law Judge 
may use judicial process to secure the attendance of witnesses and the 
production of documents authorized by Section 9 of the Federal Trade 
Commission Act (15 U.S.C. 49).
    (2) Evidence. In any hearing or administrative review conducted 
under this part, evidentiary matters will be governed by the standards 
and principles set forth in the Rules of Evidence issued by the 
Department of Labor's Office of Administrative Law Judges, 29 CFR part 
18.


Sec.  38.112  Initial and final decision procedures.

    (a) Initial decision. After the hearing, the Administrative Law 
Judge must issue an initial decision and order, containing findings of 
fact and conclusions of law. The initial decision and order must be 
served on all parties by certified mail, return receipt requested.
    (b) Exceptions; Final Decision. (1) Final decision after a hearing. 
The initial decision and order becomes the Final Decision and Order of 
the Department unless exceptions are filed by a party or, in the 
absence of exceptions, the Administrative Review Board serves notice 
that it will review the decision.
    (i) A party dissatisfied with the initial decision and order may, 
within 45 days of receipt, file with the Administrative Review Board 
and serve on the other parties to the proceedings and on the 
Administrative Law Judge, exceptions to the initial decision and order 
or any part thereof.
    (ii) Upon receipt of exceptions, the Administrative Law Judge must 
index and forward the record and the initial decision and order to the 
Administrative Review Board within three days of such receipt.
    (iii) A party filing exceptions must specifically identify the 
finding or conclusion to which exception is taken.
    (iv) Within 45 days of the date of filing such exceptions, a reply, 
which must be limited to the scope of the exceptions, may be filed and 
served by any other party to the proceeding.
    (v) Requests for extensions for the filing of exceptions or replies 
must be received by the Administrative Review Board no later than 3 
days before the exceptions or replies are due.
    (vi) If no exceptions are filed, the Administrative Review Board 
may, within 30 days of the expiration of the time for filing 
exceptions, on its own motion serve notice on the parties that it will 
review the decision.
    (vii) Final Decision and Order. (A) Where exceptions have been 
filed, the initial decision and order of the Administrative Law Judge 
becomes the Final Decision and Order unless the Administrative Review 
Board, within 30 days of the expiration of the time for filing 
exceptions and replies, has notified the parties that the case is 
accepted for review.
    (B) Where exceptions have not been filed, the initial decision and 
order of the Administrative Law Judge becomes the Final Decision and 
Order unless the Administrative Review Board has served notice on the 
parties that it will review the decision, as provided in paragraph 
(b)(1)(vi) of this section.
    (viii) Any case reviewed by the Administrative Review Board under 
this paragraph must be decided within 180 days of the notification of 
such review. If the Administrative Review Board fails to issue a Final 
Decision and Order within the 180-day period, the initial decision and 
order of the Administrative Law Judge becomes the Final Decision and 
Order.
    (2) Final Decision where a hearing is waived.
    (i) If, after issuance of a Final Determination under Sec.  38.95 
or Notification of Breach of Conciliation Agreement under Sec.  38.98, 
voluntary compliance has not been achieved within the time set by this 
part and the opportunity for a hearing has been waived as provided for 
in Sec.  38.111(b)(4), the Final Determination or Notification of 
Breach of Conciliation Agreement becomes the Final Decision.

[[Page 4571]]

    (ii) When a Final Determination or Notification of Breach of 
Conciliation Agreement becomes the Final Decision, the Administrative 
Review Board may, within 45 days, issue an order terminating or denying 
the grant or continuation of assistance; or imposing other appropriate 
sanctions for the grant applicant or recipient's failure to comply with 
the required corrective and/or remedial actions, or the Secretary may 
refer the matter to the Attorney General for further enforcement 
action.
    (3) Final agency action. A Final Decision and Order issued under 
Sec.  38.112(b) constitutes final agency action.


Sec.  38.113  Suspension, termination, withholding, denial, or 
discontinuation of financial assistance.

    Any action to suspend, terminate, deny or discontinue WIOA Title I 
financial assistance must be limited to the particular political 
entity, or part thereof, or other recipient (or grant applicant) as to 
which the finding has been made, and must be limited in its effect to 
the particular program, or part thereof, in which the noncompliance has 
been found. No order suspending, terminating, denying or discontinuing 
WIOA Title I financial assistance will become effective until:
    (a) The Director has issued a Final Determination under Sec.  38.95 
or Notification of Breach of Conciliation Agreement under Sec.  38.98;
    (b) There has been an express finding on the record, after 
opportunity for a hearing, of failure by the grant applicant or 
recipient to comply with a requirement imposed by or under the 
nondiscrimination and equal opportunity provisions of WIOA or this 
part;
    (c) A Final Decision has been issued by the Administrative Review 
Board, the Administrative Law Judge's decision and order has become the 
Final Agency Decision, or the Final Determination or Notification of 
Conciliation Agreement has been deemed the Final Agency Decision, under 
Sec.  38.112(b); and
    (d) The expiration of 30 days after the Secretary has filed, with 
the committees of Congress having legislative jurisdiction over the 
program involved, a full written report of the circumstances and 
grounds for such action.


Sec.  38.114  Distribution of WIOA Title I financial assistance to an 
alternate recipient.

    When the Department withholds funds from a recipient or grant 
applicant under these regulations, the Secretary may disburse the 
withheld funds directly to an alternate recipient. In such case, the 
Secretary will require any alternate recipient to demonstrate:
    (a) The ability to comply with these regulations; and
    (b) The ability to achieve the goals of the nondiscrimination and 
equal opportunity provisions of WIOA.


Sec.  38.115  Post-termination proceedings.

    (a) A grant applicant or recipient adversely affected by a Final 
Decision and Order issued under Sec.  38.112(b) will be restored, where 
appropriate, to full eligibility to receive WIOA Title I financial 
assistance if the grant applicant or recipient satisfies the terms and 
conditions of the Final Decision and Order and brings itself into 
compliance with the nondiscrimination and equal opportunity provisions 
of WIOA and this part.
    (b) A grant applicant or recipient adversely affected by a Final 
Decision and Order issued under Sec.  38.112(b) may at any time 
petition the Director to restore its eligibility to receive WIOA Title 
I financial assistance. A copy of the petition must be served on the 
parties to the original proceeding that led to the Final Decision and 
Order. The petition must be supported by information showing the 
actions taken by the grant applicant or recipient to bring itself into 
compliance. The grant applicant or recipient has the burden of 
demonstrating that it has satisfied the requirements of paragraph (a) 
of this section. While proceedings under this section are pending, 
sanctions imposed by the Final Decision and Order under Sec. Sec.  
38.112(b)(1) and (2) must remain in effect.
    (c) The Director must issue a written decision on the petition for 
restoration.
    (1) If the Director determines that the grant applicant or 
recipient has not brought itself into compliance, he or she must issue 
a decision denying the petition.
    (2) Within 30 days of its receipt of the Director's decision, the 
recipient or grant applicant may file a petition for review of the 
decision by the Administrative Review Board, setting forth the grounds 
for its objection to the Director's decision.
    (3) The petition must be served on the Director and on the Office 
of the Solicitor, Civil Rights and Labor-Management Division.
    (4) The Director may file a response to the petition within 14 
days.
    (5) The Administrative Review Board must issue the final agency 
decision denying or granting the recipient's or grant applicant's 
request for restoration to eligibility.

[FR Doc. 2016-01213 Filed 1-25-16; 8:45 am]
 BILLING CODE P