New Mexico Administrative Code
Title 11 - LABOR AND WORKERS' COMPENSATION
Chapter 2 - JOB TRAINING
Part 21 - WORKFORCE INNOVATION AND OPPORTUNITY ACT GRIEVANCE AND COMPLAINT RESOLUTION PROCEDURES
Section 11.2.21.10 - DISCRIMINATION AND EQUAL OPPORTUNITY GRIEVANCE
Universal Citation: 11 NM Admin Code 11.2.21.10
Current through Register Vol. 35, No. 18, September 24, 2024
A. Equal opportunity complaints.
(1) WIOA prohibits discrimination on the
basis of race, color, religion, sex (including pregnancy, childbirth, and
related medical conditions, transgender status, and gender identity), national
origin (including limited English proficiency), age, disability, political
affiliation or belief, and for beneficiaries, applicants, and participants
only, on the basis of either citizenship status or participation in any program
or activity that received financial assistance under WIOA Title or 29 CFR Part
38. Sexual harassment is a prohibited form of sex discrimination.
(2) Any person who believes that he or she,
or any specific class of individuals, has been or is being subjected to
discrimination or retaliation prohibited by WIOA or its implementing
regulations may file a written complaint, either individually or through an
authorized representative.
(3) The
discrimination complaint processing procedures shall be completed and a written
notice of final action issued within 90 calendar days from the date the
complaint was filed.
(4) To the
extent possible and permitted by law, the confidentiality of information
obtained as a result of the processing or investigation of a complaint will be
maintained and will only be provided to those persons who have a legitimate
need to know in order to achieve a timely resolution of the complaint. Even if
an individual who makes an initial report of suspected discrimination or
harassment ultimately decides to not file a formal complaint, it may still be
necessary for the state or local administrative entity, service provider,
one-stop operator, the state-level EO officer or the local area EO officer to
investigate the matter in order to protect other applicants or participants
from discrimination and harassment.
(5) Reprisal or retaliation against any
individual for making a complaint of unlawful discrimination or for using,
cooperating, or participating in the complaint process, including serving as a
witness, is prohibited. Any person or persons engaging in retaliation are
subject to disciplinary action, up to and including termination from
employment.
(6) Both the
complainant and respondent have the right to be represented by an attorney or
other individual of their choice at their own expense throughout the complaint
process.
B. Time and place for filing complaint.
(1)
Discrimination complaints shall be filed with a state or local administrative
entity, service provider, one-stop operator, the state-level EO officer, a
local area EO officer, or with the Director of the Civil Rights Center (CRC),
USDOL, 200 Constitution Ave NW, Room N-4123, Washington, DC 20210.
(2) Discrimination complaints shall be filed
within 180 days of the alleged discrimination. However, a complainant may
petition the director of the civil rights center for an extension of the filing
time.
(3) The date of filing of any
discrimination complaint shall be:
(a) if the
complaint is sent by mail, the postmark date on the envelope in which the
complaint is mailed;
(b) if the
complaint is sent via commercial courier service, the date on which the courier
service records that it received the complaint;
(c) if the complaint if sent by fax, the
transmittal date recorded on the complaint;
(d) if the complaint is sent by electronic
mail, the date that it is date stamped on the e-mail; or
(e) in the absence of any of the above, the
date on which the complaint is received by the state or local administrative
entity, service provider, one-stop operator, state-level EO officer, or local
area EO officer.
C. Complaint requirements: Each complaint must be in writing and contain the following information:
(1) The complainant's name, mailing address,
telephone number (if any), and e-mail address (if available);
(2) The identity of the respondent, i.e. the
individual or entity that the complainant alleges is responsible for the
discrimination;
(3) A description
of the complainant's allegations. This description must include enough detail
to allow the recipient or the CRC director, as applicable, to determine
whether:
(a) the CRC or the recipient, as
applicable, has jurisdiction over the complaint;
(b) the complaint was filed in time;
and
(c) the complaint has apparent
merit; in other words, whether the complainant's allegations, if true, would
indicate a violation of the nondiscrimination and equal opportunity provisions
of Title I of WIOA or 29 CFR Part 38.
(4) The signature of the complainant or
complainant's representative.
D. Initial complaint processing procedures.
(1)
Logging of
complaints. All complaints shall be logged.
(a) For complaints filed with a service
provider, one-stop operator or local area EO officer, it shall be the local
area EO officer's responsibility to log the complaint.
(b) For complaints filed DWS, or the
state-level EO officer, it shall be the state-level EO officer's responsibility
to log the complaint;
(c) All equal
opportunity complaint logs shall include the following information: the name
and address of the complainant; the basis of the complaint; a description of
the complaint; the disposition and date of disposition of the complaint; and
any other pertinent information.
(d) Each local EO officer shall transmit
copies of its equal opportunity logs for their corresponding local workforce
development area to the state-level EO officer on a monthly basis and shall do
so no later than 10 calendar days after the last day of the month the log
covers.
(e) The state-level EO
officer will compile and maintain copies of all complaint logs submitted in
order to carry out the recordkeeping and monitoring activities required under
WIOA and 29 CFR Part 38.
(2)
Determining jurisdiction.
Jurisdiction must be determined within five business days of the date the
complaint is received. In order for a recipient to have jurisdiction to process
a discrimination complaint, each of the following elements must be met:
(a) the respondent against whom the complaint
was field must be a WIOA recipient;
(b) the complaint must allege a basis for
discrimination that is prohibited by WIOA, including unlawful retaliation;
and
(c) the complaint was filed
within 180 calendar days of the alleged discrimination.
(3)
Who determines jurisdiction.
(a) if the complaint is filed with the
local administrative entity, service provider, one-stop operator, or local area
EO officer, then the local area EO officer is responsible for determining
jurisdiction.
(b) if the complaint
is filed with DWS or the state-level EO officer, then the state-level EO
officer is responsible for determining jurisdiction.
(4)
Notice of lack of
jurisdiction. If a determination is made that there is no jurisdiction
to process the complaint, the EO officer (state-level or local area) making the
determination shall send a written notice of lack of jurisdiction to the
complaint that includes the reason for the determination and notice that the
complainant has the right to file a complaint directly with the civil rights
center within 30 calendar days from receipt of the notice of lack of
jurisdiction. The written notice of lack of jurisdiction must be sent within
five business days of the date that the complaint is received.
(5)
Joint jurisdiction. Where
the complaint alleges discrimination by a WIOA recipient, or service provider
on a basis that is prohibited by both WIOA and by a civil rights law
independently enforced by that WIOA recipient or service provider, the
complaint shall be referred to that WIOA recipient or service provider for
processing under their procedures. For example, WIOA prohibits discrimination
on the basis of national origin. If a discrimination complaint on the basis of
national origin is made against a WIOA recipient or service provider and they
are also prohibited from discriminating on the basis of national origin, then
the complaint will be referred to them for processing according to their own
procedures. The state-level or local area EO officer making the determination
that joint jurisdiction exists is responsible for making written referral of
the complaint to the WIOA recipient or service provider and sending written
notice of the referral to the complainant within five business days of the date
that the complaint is received.
(6)
Sole jurisdiction. Where the complaint alleges discrimination by a
WIOA recipient or service provider on a basis that is prohibited by WIOA and is
not covered by a civil rights law independently enforced by that WIOA recipient
or service provider (e.g., political affiliation or belief, citizenship or
participation in WIOA Title I), the complaint shall be processed by that WIOA
recipient or service provider under these procedures. When it is determined
that WIOA has sole jurisdiction over the discrimination complaint, the
complaint will be referred to the state-level EO officer within five business
days of the date that the complaint is received.
(7) Within 10 business days of the date that
the complaint was filed, the state-level EO officer shall conduct an initial
review of the complaint and issue an initial notice in writing to the
complainant containing the following information:
(a) an acknowledgement that the recipient has
received the complaint;
(b) notice
that the complaint process shall be completed and a written notice of final
action issued within 90 calendar days from the date the complaint was
filed;
(c) notice that the
complainant has the right to be represented in the complaint process;
(d) a copy of the "equal opportunity is the
law" statement;
(e) 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 non-English languages upon the complainant's request;
(f) a list of issues raised in the
complaint;
(g) for each issue
raised in the complaint, a statement whether the recipient will accept the
issue for investigation or reject the issue, and the reasons for the
rejection;
(h) a statement that the
complainant has the right to elect resolution of their complaint through
alternative dispute resolution (ADR), at the complainant's sole
option;
(i) a statement that, if
the complainant does not desire to use ADR, he or she must notify the
state-level officer of that fact within 10 business days of the issuance of the
state-level EO officer's initial letter acknowledging receipt of the complaint;
and
(j) a statement that
retaliation against any individual for filing a complaint or cooperating with
an investigation is unlawful and prohibited.
(8)
Alternative Dispute Resolution
(ADR). The complainant may, but is not required to, attempt to resolve
their complaint through ADR.
(a) the choice
whether to use ADR rests with the complainant;
(b) the complainant must notify the
state-level EO officer of his or her election to use ADR within 10 business
days of the issuance of the state-level EO officer's initial letter
acknowledging receipt of the complaint;
(c) if the complainant requests to use ADR
for resolving the complaint, the state-level EO officer will request a mediator
and monitor the processing of the complaint. The mediator will schedule
mediation by written notice, mailed to all interested parties at least 7
calendar days prior to the first mediation session. The notice will include the
date, time, and place of the mediation. The mediation process shall be
concluded within 45 calendar days from the date the complaint was filed. The
complaint is considered resolved when all parties to the complaint enter into a
written agreement resolving the issues raised in the complaint. The written
agreement shall give notice that if the terms of the agreement are breached,
the non-breaching party may file a complaint with the director of the CRC
within 30 calendar days of the date the non-breaching party learns of the
breach.
(d) if the parties do not
reach an agreement, the state-level EO officer will proceed to investigate the
circumstances underlying the complaint under these procedures.
(9)
Fact-finding and
investigation.
(a) Unless the
complainant has notified the state-level EO officer that the complainant
desires to attempt a resolution of their complaint through ADR, the state-level
EO officer shall investigate the circumstances underlying the complaint. The
investigation may include, but is not limited to, interviewing the complainant,
the respondent, and any witnesses included in the complaint or who become known
through the investigation process; reviewing documents and other evidence; and
conducting site visits.
(b) The
state-level EO officer has the power to make written request of any entity to
which financial assistance under WIOA Title I is extended to produce records or
documents that are potentially relevant to the investigation of the
complaint.
(c) The entity to which
financial assistance under WIOA Title I is extended shall produce such records
or documents requested by the state-level EO officer within 10 days of the
request. Failure by the entity to comply with the state-level EO officer's
request for records could negatively impact its eligibility for financial
assistance under WIOA Title I in future grant cycles.
(d) If at any stage in the investigation the
state-level EO officer investigating the complaint has a reasonable belief that
immediate action is necessary to protect any involved parties from harm, the
appropriate members of management shall be notified and actions deemed
appropriate will be taken.
(e)
Within 90 days of the date that the complaint was filed, the state-level EO
officer shall complete his or her investigation and issue a notice of final
action.
(f) If at any time during
the processing of a complaint it becomes apparent the state-level EO officer
has a conflict of interest with respect to the complaint which would make it
improper for him or her to conduct or participate in the investigation, the
cabinet secretary of DWS, as the governor's designee with respect to
enforcement of nondiscrimination and equal opportunity provisions of WIOA,
shall appoint an alternate qualified individual to process, investigate and
make a determination on the complaint.
(10)
Notice of final action. The
notice of final action shall contain the following information:
(a) For each issue raised in the complaint, a
statement of either: the decision on the issue and an explanation of the
reasons underlying the decision based on the findings of the investigation or;
if the parties elected to use ADR to resolve the complaint, a description of
the way the parties resolved the issue; and
(b) Notice that the complainant has a right
to file a complaint with the director of the CRC within 30 days of the date in
which the notice of final action is received if the complainant is dissatisfied
with the notice of final action.
(c) The notice of final action shall be sent
to: the complainant; DWS; and in the case of a complaint involving a recipient,
service provider, one-stop operator or other entity under the jurisdiction of a
local workforce development board, the local workforce development board, which
shall treat all information related to the complaint or contained in the notice
of final action with utmost confidentiality.
Disclaimer: These regulations may not be the most recent version. New Mexico may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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