[Federal Register Volume 80, Number 141 (Thursday, July 23, 2015)]
[Rules and Regulations]
[Pages 43871-43899]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-17637]



[[Page 43871]]

Vol. 80

Thursday,

No. 141

July 23, 2015

Part III





Department of Labor





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29 CFR Part 38





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

Federal Register / Vol. 80 , No. 141 / Thursday, July 23, 2015 /
Rules and Regulations

[[Page 43872]]


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DEPARTMENT OF LABOR

Office of the Secretary

29 CFR Part 38

RIN 1291-AA37


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

AGENCY: Office of the Secretary, Labor.

ACTION: Final rule.

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

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

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

SUPPLEMENTARY INFORMATION:

Executive Summary

On July 22, 2014, President Obama signed the Workforce Innovation
and Opportunity Act (WIOA) (Pub. L. 113-128), comprehensive legislation
that reforms and modernizes the public workforce system. WIOA reaffirms
the role of the public workforce system, and brings together and
enhances several key employment, education, and training programs. The
statute provides resources, services, and leadership tools for the
workforce system to help individuals find good jobs and stay employed
and improves employer prospects for success in the global marketplace.
WIOA also ensures that the workforce system operates as a
comprehensive, integrated and streamlined system to provide pathways to
prosperity for those it serves and continuously improves the quality
and performance of its services.
As with Section 188 of WIA, the Civil Rights Center (CRC) of the
Department is charged with enforcing Section 188 of WIOA, which
prohibits exclusion of an individual from participation in, denial of
benefits of, discrimination, or denial of employment in the
administration of or in connection with any programs and activities
funded or otherwise financially assisted in whole or in part under
Title I of WIOA because of race, color, religion, sex, national origin,
age, disability, political affiliation or belief, and for beneficiaries
only, citizenship status, or participation in a program or activity
that receives financial assistance under Title I of WIOA. Section 188
of WIOA incorporates the prohibitions against discrimination in
programs and activities that receive Federal financial assistance under
certain civil rights laws including Title VI of the Civil Rights Act of
1964 (prohibiting discrimination based on race, color, and national
origin),\1\ Title IX of the Education Amendments of 1972 (prohibiting
discrimination based on sex in education and training programs),\2\ Age
Discrimination Act of 1975 (prohibiting discrimination based on
age),\3\ and Section 504 of the Rehabilitation Act (prohibiting
discrimination based on disability).\4\ CRC interprets the
nondiscrimination provisions of WIOA consistent with the principles of
Title VII of the Civil Rights Act (Title VII),\5\ the Americans with
Disabilities Act, (ADA) \6\ as amended by the Americans with
Disabilities Act Amendments Act (ADAAA),\7\ and Section 501 of the
Rehabilitation Act, as amended,\8\ which are enforced by the Equal
Employment Opportunity Commission (EEOC); Executive Order 11246, as
amended,\9\ and Section 503 of the Rehabilitation Act, as amended,\10\
which are enforced by the Department's Office of Federal Contract
Compliance Programs (OFCCP); Title VI of the Civil Rights Act (Title
VI), the Age Discrimination Act 1975, and Section 504 of the
Rehabilitation Act, which are enforced by each Federal funding agency;
and Title IX of the Education Amendments of 1972 (Title IX), which is
enforced by each Federal funding agency that assists an education or
training program.
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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, section
2(b)(1), 122 Stat. 3553 (2008).
\8\ 29 U.S.C. 791.
\9\ Executive Order 11246 (30 FR 12319), as amended by Executive
Order 11375 (32 FR 14303), Executive Order 12086 (43 FR 46501),
Executive Order 13279 (67 FR 77141), Executive Order 13665 (79 FR
20749) and Executive Order 13672 (79 FR 42971).
\10\ 29 U.S.C. 793.
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This final rule sets forth the equal opportunity and
nondiscrimination requirements and obligations for recipients of
financial assistance under Title I of WIOA and the enforcement
procedures for implementing the nondiscrimination and equal opportunity
provisions of WIOA.\11\ Although WIOA did not change the
nondiscrimination and equal opportunity provisions in Section 188,
Congress mandated that the Department issue regulations to implement
the section not later than one year after the date of enactment of
WIOA. The regulations are to contain standards for determining
discrimination and enforcement procedures, including complaint
processes for Section 188 of WIOA.
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\11\ On April 16, 2015, the Departments of Education and Labor
published a joint NPRM to implement the provisions of WIOA that
affect all of the WIOA core programs (titles I-IV) and which will be
jointly administered by both Departments. See 80 FR 20574 (April 16,
2015). In addition, the Departments published separately four
agency-specific NPRMs to implement additional provisions of WIOA
that are administered separately by the Departments. See 80 FR 20689
(April 16, 2015).
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The Department is issuing this final rule to implement Section 188
of WIOA by making technical changes only to its existing regulation
implementing WIA, i.e., (1) replicating at part 38 the rule from part
37 (and updating section numbers in the text of the regulation to
reflect its new location in part 38), and (2) replacing references to
the ``Workforce Investment Act of 1998'' or ``WIA'' with ``Workforce
Innovation and Opportunity Act'' or ``WIOA'' to reflect the proper
statutory authority. No other regulatory changes are being made at this
time.
The Department recognizes that this final rule does not reflect
developments in equal opportunity and nondiscrimination jurisprudence,
changes in the practices of recipients

[[Page 43873]]

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

Publication as a Final Rule

The Department is promulgating this final rule without notice or an
opportunity for public comment because the Administrative Procedure Act
(APA) allows an agency to dispense with notice and comment rulemaking
when, as here, ``the agency for good cause finds (and incorporates the
finding and a brief statement of reasons therefore in the rules issued)
that notice and public procedure thereon are impracticable,
unnecessary, or contrary to the public interest.'' 5 U.S.C. 553(b)(B).
Notice and comment rulemaking is unnecessary when changes in
regulations merely restate the changes in the enabling legislation.
Gray Panthers Advocacy Committee v. Sullivan, 936 F.2d 1284, 1291 (D.C.
Cir. 1991), citing Komjathy v. National Transportation Safety Board,
832 F.2d 1294, 1296-97 (D.C. Cir. 1987).
The Department for good cause finds that notice and comment
rulemaking would be impractical, unnecessary, or contrary to the public
interest because (1) this final rule adopts the Department's existing
regulatory scheme for WIA Section 188, with technical revisions to
conform to WIOA; (2) this final rule imposes no new or substantive
requirement on the public or any entity; and (3) the Department is
required by statute to publish this final rule, and lacks the
discretion not to do so. The Department has promulgated final rules
without notice or comment rulemaking in similar situations. See, e.g.,
Implementation of Executive Order 13672 Prohibiting Discrimination
Based on Sexual Orientation and Gender Identity by Contractors and
Subcontractors, 79 FR 72985 (Dec. 9, 2014) (amending rule to conform to
changes in Executive Order 11246, as amended by E.O. 13672 by replacing
the words ``sex, or national origin'' with the words ``sex, sexual
orientation, gender identity, or national origin''); Affirmative Action
Obligations of Government Contractors, Executive Order 11246, as
Amended; Exemption for Religious Entities; Final Rule; 68 FR 56392
(Sept. 30, 2003) (amending rule to conform to changes in Executive
Order 11246, as amended by E.O.13279, by restating the religious
exemption as a new provision in its regulations); and Obligations of
Contractors and Subcontractors; Miscellaneous Amendments; Final Rule;
34 FR 744 (Jan. 17, 1969) (adding ``sex'' as basis for prohibited
discrimination and replacing ``creed'' with ``religion'').

Sections Revised

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

Regulatory Procedures

Executive Orders 12866 and 13563

Executive Order 12866 (Regulatory Planning and Review) and
Executive Order 13563 (Improving Regulation and Regulatory Review)
direct agencies to assess all costs and benefits of available
regulatory alternatives, including the alternative of not regulating,
and, if regulation is necessary, to select regulatory approaches that
maximize net benefits (including potential economic, environmental,
public health, and safety effects, distributive impacts, and equity,
dignity, and fairness concerns). The OMB determines whether a
regulatory action is significant and, therefore, subject to review.
Section 3(f) of Executive Order 12866 defines a ``significant
regulatory action'' as any action that is likely to result in a rule
that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising from legal mandates,
the President's priorities, or the principles set forth in Executive
Order 12866.
This final rule is not a ``significant regulatory action'' under
Section 3(f)(4) of Executive Order 12866, thus, OMB has not reviewed
the rule.

The Need for Regulation

Section 188(e) of WIOA requires that the Department issue
regulations implementing Section 188, within a year of enactment, on
July 22, 2015.
Congress directed the Department to issue regulations implementing
Section 188 of WIOA. Thus, publication of a revised rule is required,
and no less burdensome alternatives exist.

Alternatives in Light of the Required Publication of Proposed
Regulations

The Department considered two possible rulemaking alternatives: (1)
To publish a final rule as 29 CFR part 38 implementing Section 188 of
WIOA with only technical updates as compared to the regulations at 29
CFR part 37, which implements Section 188 of WIA; or (2) To publish an
final rule with only technical updates (effective immediately) and a
NPRM. The final rule would remain in force until issuance of a revised
final rule based on the NPRM. The NPRM would propose updating part 38
consistent with current law and address its application to current
workforce development and workplace practices and issues.
The Department has considered these options in accordance with the
provisions of Executive Order 12866 and has chosen to publish this
final rule containing only technical revisions and a NPRM shortly
thereafter (i.e., alternative 2). The Department believes that the
current rule does not reflect recent developments in equal opportunity
and nondiscrimination jurisprudence. Moreover, procedures and processes
for enforcement of the nondiscrimination and equal opportunity
provisions of WIA Section 188 have not been revised to reflect changes
in the practices of recipients since 1999, including the use of
computer-based and internet-based systems to provide aid, benefit,
service, and training through WIOA Title I financially-assisted
programs and activities. Thus, only adopting the language of the
existing regulations with technical updates (i.e., alternative 1) would
have the negative effect of continuing to require recipients to comply
with legal standards that do not take into account recent developments
in the law.

[[Page 43874]]

Cost Analysis

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

Cost of Regulatory Familiarization

Table 1 presents the estimated number of recipients expected to
experience the burden of regulatory familiarization for this rule. The
estimate may be over-inclusive because several recipients are likely
counted more than once under different categories because they receive
more than one source of WIOA Title I financial assistance. For example,
the Texas Workforce Commission is both a recipient of a Senior
Community Service Employment Program Grant as well as an Adult WIOA
Title I grantee However, the Department decided to include them in both
the ``States'' category of recipient and under a ``National Programs''
category to avoid the risk of being under-inclusive in the
calculations. At the same time, there are entities that local workforce
boards may include in the One-Stop delivery system, and thus, may be
recipients if they become partners. These optional partners include the
Supplemental Nutritional Assistance Program employment and training
program, Ticket-to-Work and the Self-Sufficiency Program of the Social
Security Administration. Since the Department has no way of knowing how
many of these programs have been included in different One-Stop
delivery systems, we are unable to include them in our estimate of the
total number of recipients.
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\12\ The 56 State entities are the recipients for the subset of
programs below.

Table 1--Estimated Annual Number of Recipients
------------------------------------------------------------------------
Estimated annual
Recipients number of
recipients
------------------------------------------------------------------------
States \12\.......................................... 56
Adult Program (Title I of WIOA).
Dislocated Worker Program (Title I of WIOA).
Youth Program (Title I of WIOA).
Wagner-Peyser Act Program (Wagner-Peyser Act, as
amended by title III of WIOA).
Adult Education and Literacy Program (Title II)
of WIOA.
Vocational Rehabilitation Program.
Trade Adjustment Assistance Program.
Unemployment Compensation Program.
Local Veterans' Employment Representatives and
Disabled Veterans' Outreach Program.
Career and Technical Education (Perkins).
Community Service Block Grants.
Temporary Assistance for Needy Families (TANF)
State and Local Workforce Investment Boards.......... 580
Job Corps Operators (i.e. national contractors)...... 18
Job Corps Outreach and Admissions Operators.......... 24
Job Corps national training contractors/Career 21
Transition Services Operators.......................
Service providers, including eligible training 11,400
providers and on-the-job training employers \13\....
One Stop Career Centers \14\......................... 2,481
National Programs Include:
Senior Community Service Employment Grants....... 71
National Emergency Grants \15\................... 125
Reintegration of Ex-Offenders--Adult Grants \16\. 28
H-1B Technical Skills Training Grants \17\....... 36
H-1B Jobs and Innovation Accelerator Challenge 30
Grants \18\.....................................
Indian and Native American Programs.............. 178
National Farmworker Jobs Program................. 69
YouthBuild....................................... 82
Registered Apprenticeship Program................ 19,259
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Total........................................ 34,458
------------------------------------------------------------------------

Table 2, below, presents the compensation rate for the occupational
category expected to experience an increase in level of effort
(workload) due to the rule. The Department used mean hourly wage rates
from the Bureau of Labor Statistics' Occupational Employment Statistics
(OES) program for private, State and local employees. The Department
adjusted the wage rate using a loaded wage factor to reflect total
compensation, which includes

[[Page 43875]]

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.
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\13\ PY 2012 estimated, see http://www.doleta.gov/performance/results/pdf/PY2012WIATrends.pdf.
\14\ PY 2012 see http://www.doleta.gov/performance/results/pdf/PY2012WIATrends.pdf.
\15\ PY 2012 see http://www.doleta.gov/performance/results/pdf/PY2012WIATrends.pdf.
\16\ PY 2011 announcement, see http://www.doleta.gov/grants/pdf/sga_dfa_py_11_02_final_1_11_2012.pdf.
\17\ PY 2011, http://www.doleta.gov/business/pdf/H-1B_TST_R1-R2_Grant_Summaries_Final.pdf.
\18\ 2011, http://manufacturing.gov/docs/2011-jobs-accelerator-overviews.pdf.
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The Department then multiplied the loaded wage factor by the
occupational category's wage rate to calculate an hourly compensation
rate. Throughout this analysis, the Department assumes Equal
Opportunity Officers, at both the state and local level, are managers.
This assumption is based upon the Civil Rights Center's (CRC)
experience with recipients.

Table 2--Calculation of Hourly Compensation Rates
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Hourly
Position Mean hourly Loaded wage compensation
wage factor rate
A B C = A x B
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Managers \19\................................................ $56.35 1.55 $87.34
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Agencies are required to include in the burden analysis the
estimated time it takes for recipients to review and understand the
instructions for compliance with this final rule. Based on its
experience with recipients' compliance with the laws the CRC enforces
and the mandate of the regulations that each recipient have an Equal
Opportunity (E.O.) Officer, CRC believes that E.O. Officers at each
recipient will be responsible for understanding or becoming familiar
with this final rule. The Department estimates that it will take thirty
minutes for the E.O. Officer at each recipient to read and become
familiar with this final rule. The estimated burden for rule
familiarization for these managers is 17,229 hours (34,458 recipients x
.5 hours). The Department calculates a one-time total estimated cost as
$1,504,781 (17,229 hours x $87.34/hour).\20\
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\19\ BLS OES, May 2014, 11-1021 General and Operations Managers
(http://www.bls.gov/oes/current/oes111021.htm).
\20\ Although DOL believes there may be others that need to
familiarize themselves with this rule, this cost may nonetheless be
overstated. DOL included all recipients as having E.O. Officers who
are managers when the rule (29 CFR part 38) excepts small recipients
from this requirement and recipients who do have E.O. Officers may
have compensation rates lower than the estimate.
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Cost of Notice

The final rule proposes limited changes to the specific language
provided by the Department for recipients to use in the equal
opportunity notice in Sec. 38.30 that they are required to publish
under Sec. 38.31. The final rule requires recipients to substitute
five references to WIA and the Workforce Investment Act of 1998 with
WIOA and the Workforce Innovation and Opportunity Act in the notice.
Based upon its experience with recipients, the Department assumes
the E.O. Officer at each recipient will be responsible for printing out
revised notices with changes to the text of the language for the
notice. The Department estimates that it would take each of them
approximately 15 minutes to ensure that revised notices are printed.
Dissemination includes posting the notices prominently which the
Department estimates that it would take each E.O. Officer approximately
an additional 15 minutes. Consequently, the estimated burden for
updating the notice (i.e. printing revisions of, and disseminating the
posters) is 17,229 hours (34,458 recipients x .5 hours). The Department
calculated the total estimated first year updating and dissemination
cost for the E.O. Officers as $1,504,781 (17,229 hours x $87.34/hour).
The Department also calculated that each E.O. Officer will make thirty
copies of the notice at $.08 each for posting in his or her
establishment for a first year operational and maintenance cost of
$82,699 (34,458 recipients x $.08 a copy x 30 copies). This assumes 10
copies in each English and two additional languages.
Thus the total estimated cost posed by this final rule is
$3,092,261: ($1,504,781 for familiarization + $1,504.781 for updating +
$82,699 for operation and maintenance).
The final rule does not pose any additional burden. It does not
modify existing or create new reporting requirements, record-keeping
requirements, prohibitions against discriminatory conduct, or
administrative requirements. It does not modify existing, or create
new, enforcement procedures. In other words, the regulated community is
already subject to the requirements of this final rule, and will
therefore already be aware of the requirements to be in compliance with
this rule. Therefore, the final rule would not create significant new
costs or burdens for Governors, recipients, or beneficiaries.

Additional Significant Regulatory Action Analysis

In addition to cost, the Department must consider the three
additional factors identified above when determining whether or not
this final rule is a significant regulatory action. First, the
Department has determined that the final rule creates no inconsistency
or interference with an action taken or planned by another agency--the
Department, which is responsible for enforcing Section 188 of WIOA, is
publishing a final rule with technical corrections to implement the
statute as directed by Congress. Because the Department is the agency
responsible for enforcing Section 188, the regulations create no
inconsistency or interference with any other agency.
Second, the Department has determined that the final rule does not
materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof because the final rule is simply a revision of an existing rule
to reflect the proper name of the governing legislation. Finally, the
Department has determined that publication of this final rule raises no
novel legal or policy issues arising from legal mandates, the
President's priorities, or the principles set forth in E.O. 12866
because this final rule contains no new obligations, mandates,
priorities or principles; it simply removes the name of a superseded
statute and inserts the name of the current governing law.

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

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

[[Page 43876]]

Paperwork Reduction Act of 1995

The purposes of the Paperwork Reduction Act of 1995 (PRA), 44
U.S.C. 3501 et seq., include minimizing the paperwork burden on
affected entities. The Department notes that a Federal agency generally
cannot conduct or sponsor a collection of information and the public is
generally not required to respond to an information collection, unless
it is approved by the OMB under the PRA and displays a currently valid
OMB Control Number. In addition, notwithstanding any other provisions
of law, no person shall generally be subject to penalty for failing to
comply with a collection of information that does not display a valid
Control Number. See 44 U.S.C. 3512; 5 CFR 1320.5(a) and 1320.6.
The Department has identified the following sections containing
information collections: 29 CFR 38.20, 38.22, 38.25, 38.29 through
38.40, 38.42, 38.53 through 38.55, 38.70 through 38.74, and 38.77
through 38.80.
The Department submitted an information collection request
associated with this rulemaking for OMB approval. The OMB approved the
request via a Notice of Action dated July 20, 2015. Control number
1225-0077 has been assigned to the information collection requirements
in this rule.
The information collections are summarized as follows:
Agency: DOL-OASAM.
Title of Collection: Nondiscrimination Compliance Information
Reporting.
OMB Control Number: 1225-0077.
Affected Public: Individuals or Households; State, Local, and
Tribal Governments; and Private Sector--businesses or other for profits
and not-for-profit institutions.
Total Estimated Number of Respondents: 10,006 respondents (a single
respondent could be the recipient of multiple grants).
Total Estimated Number of Responses: 15,502,436.
Total Estimated Annual Time Burden: 88,553 hours.
Total Estimated Annual Other Costs Burden: $0.

Small Business Regulatory Enforcement Fairness Act of 1996

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

Unfunded Mandates Reform Act of 1995

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

Executive Order 13132 (Federalism)

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

Executive Order 13175 (Indian Tribal Governments)

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

Effects on Families

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

Executive Order 13045 (Protection of Children)

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

Environmental Impact Assessment

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

Executive Order 13211 (Energy Supply)

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

Executive Order 12630 (Constitutionally Protected Property Rights)

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

Executive Order 12988 (Civil Justice Reform Analysis)

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

List of Subjects in 29 CFR Part 38

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

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

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

Sec.
38.0 Paperwork Reduction Act approvals.
Subpart A--General Provisions
38.1 What is the purpose of this part?
38.2 To whom does this part apply, and what is the scope of this
part?
38.3 How does this part affect a recipient's other obligations?
38.4 What definitions apply to this part?
38.5 What forms of discrimination are prohibited by this part?
38.6 What specific discriminatory actions, based on prohibited
grounds other than

[[Page 43877]]

disability, are prohibited by this part, and what limitations are
there related to religious activities?
38.7 What specific discriminatory actions based on disability are
prohibited by this part?
38.8 What are a recipient's responsibilities regarding reasonable
accommodation and reasonable modification for individuals with
disabilities?
38.9 What are a recipient's responsibilities to communicate with
individuals with disabilities?
38.10 To what extent are employment practices covered by this part?
38.11 To what extent are intimidation and retaliation prohibited by
this part?
38.12 What Department of Labor office is responsible for
administering this part?
38.13 Who is responsible for providing interpretations of this part?
38.14 Under what circumstances may the Secretary delegate the
responsibilities of this part?
38.15 What are the Director's responsibilities to coordinate with
other civil rights agencies?
38.16 What is this part's effect on a recipient's obligations under
other laws, and what limitations apply?
Subpart B--Recordkeeping and Other Affirmative Obligations of
Recipients

Assurances

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

Equal Opportunity Officers

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

Notice and Communication

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

Data and Information Collection and Maintenance

38.37 What are a recipient's responsibilities to collect and
maintain data and other information?
38.38 What information must grant applicants and recipients provide
to CRC?
38.39 How long must grant applicants and recipients maintain the
records required under this part?
38.40 What access to sources of information must grant applicants
and recipients provide the Director?
38.41 What responsibilities do grant applicants, recipients, and the
Department have to maintain the confidentiality of the information
collected?
38.42 What are a recipient's responsibilities under this part to
provide universal access to WIOA Title I-financially assisted
programs and activities?
Subpart C--Governor's Responsibilities to Implement the
Nondiscrimination and Equal Opportunity Requirements of WIOA
38.50 To whom does this subpart apply?
38.51 What are a Governor's oversight responsibilities?
38.52 To what extent may a Governor be liable for the actions of a
recipient he or she has financially assisted under WIOA Title I?
38.53 What are a Governor's oversight responsibilities regarding
recipients' recordkeeping?
38.54 What are a Governor's obligations to develop and maintain a
Methods of Administration?
38.55 When must the Governor carry out his or her obligations with
regard to the Methods of Administration?
Subpart D--Compliance Procedures
38.60 How does the Director evaluate compliance with the
nondiscrimination and equal opportunity provisions of WIOA and this
part?
38.61 Is there authority to issue subpoenas?

Compliance Reviews

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

Complaint Processing Procedures

38.70 Who may file a complaint concerning discrimination connected
with WIOA Title I?
38.71 Where may a complaint be filed?
38.72 When must a complaint be filed?
38.73 What information must a complaint contain?
38.74 Are there any forms that a complainant may use to file a
complaint?
38.75 Is there a right of representation in the complaint process?
38.76 What are the required elements of a recipient's discrimination
complaint processing procedures?
38.77 Who is responsible for developing and publishing complaint
processing procedures for service providers?
38.78 Does a recipient have any special obligations in cases in
which the recipient determines that it has no jurisdiction over a
complaint?
38.79 If, before the 90-day period has expired, a recipient issues a
Notice of Final Action with which the complainant is dissatisfied,
how long does the complainant have to file a complaint with the
Director?
38.80 What happens if a recipient fails to issue a Notice of Final
Action within 90 days of the date on which a complaint was filed?
38.81 Are there any circumstances under which the Director may
extend the time limit for filing a complaint with him or her?
38.82 Does the Director accept every complaint for resolution?
38.83 What happens if a complaint does not contain enough
information?
38.84 What happens if CRC does not have jurisdiction over a
complaint?
38.85 Are there any other circumstances in which the Director will
send a complaint to another authority?
38.86 What must the Director do if he or she determines that a
complaint will not be accepted?
38.87 What must the Director do if he or she determines that a
complaint will be accepted?
38.88 Who may contact CRC about a complaint?
38.89 May the Director offer the parties to a complaint the option
of mediation?

Determinations

38.90 If a complaint is investigated, what must the Director do when
the investigation is completed?
38.91 What notice must the Director issue if he or she finds
reasonable cause to believe that a violation has taken place?
38.92 What notice must the Director issue if he or she finds no
reasonable cause to believe that a violation has taken place?
38.93 What happens if the Director finds that a violation has taken
place, and the recipient fails or refuses to take the corrective
action listed in the Initial Determination?

[[Page 43878]]

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

Breaches of Conciliation Agreements

38.102 What happens if a grant applicant or recipient breaches a
Conciliation Agreement?
38.103 Whom must the Director notify about a breach of a
Conciliation Agreement?
38.104 What information must a Notification of Breach of
Conciliation Agreement contain?
38.105 Whom must the Director notify if enforcement action under a
Notification of Breach of Conciliation Agreement is commenced?
Subpart E--Federal Procedures for Effecting Compliance
38.110 What enforcement procedures does the Department follow to
effect compliance with the nondiscrimination and equal opportunity
provisions of WIOA and this part?
38.111 What hearing procedures does the Department follow?
38.112 What procedures for initial and final decisions does the
Department follow?
38.113 What procedure does the Department follow to suspend,
terminate, withhold, deny or discontinue WIOA Title I financial
assistance?
38.114 What procedure does the Department follow to distribute WIOA
Title I financial assistance to an alternate recipient?
38.115 What procedures does the Department follow for post-
termination proceedings?

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

Subpart A--General Provisions


Sec. 38.0 Paperwork Reduction Act approval.

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


Sec. 38.1 What is the purpose of this part?

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


Sec. 38.2 To whom does this part apply, and what is the scope of this
part?

(a) This part applies to:
(1) Any recipient, as defined in 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) The employment practices of a recipient and/or One-Stop
partner, as provided in Sec. 38.10.
(b) Limitation of application. This part does not apply to:
(1) Programs or activities that are financially assisted by the
Department exclusively under laws other than Title I of WIOA, and that
are not part of the One-Stop delivery system (including programs or
activities implemented under, authorized by, and/or financially
assisted by the Department under, JTPA);
(2) Contracts of insurance or guaranty;
(3) The ultimate beneficiary to this program of Federal financial
assistance;
(4) Federal procurement contracts, with the exception of contracts
to operate or provide services to Job Corps Centers; and
(5) Federally-operated Job Corps Centers. The operating Department
is responsible for enforcing the nondiscrimination and equal
opportunity laws to which such Centers are subject.


Sec. 38.3 How does this part affect a recipient's other obligations?

(a) A recipient's compliance with this part will satisfy any
obligation of the recipient to comply with 29 CFR part 31, the
Department of Labor's regulations implementing Title VI of the Civil
Rights Act of 1964, as amended (Title VI), and with Subparts A, D and E
of 29 CFR part 32, the Department's regulations implementing Section
504 of the Rehabilitation Act of 1973, as amended (Section 504).
(b) 29 CFR part 32, subparts B and C and appendix A, the
Department's regulations which implement the requirements of Section
504 pertaining to employment practices and employment-related training,
program accessibility, and reasonable accommodation, are hereby
incorporated into this part by reference. Therefore, recipients must
comply with the requirements set forth in those regulatory sections as
well as the requirements listed in this part.
(c) Recipients that are also public entities or public
accommodations, as defined by Titles II and III of the Americans with
Disabilities Act of 1990 (ADA), should be aware of obligations imposed
by those titles.
(d) Similarly, recipients that are also employers, employment
agencies, or other entities covered by Title I of the ADA should be
aware of obligations imposed by that title.
(e) Compliance with this part does not affect, in any way, any
additional obligation that a recipient may have to comply with the
following laws and their implementing regulations:
(1) Executive Order 11246, as amended;
(2) Sections 503 and 504 of the Rehabilitation Act of 1973, as
amended (29 U.S.C. 793 and 794);
(3) The affirmative action provisions of the Vietnam Era Veterans'
Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212);
(4) The Equal Pay Act of 1963, as amended (29 U.S.C. 206d);
(5) Titles VI and VII of the Civil Rights Act of 1964, as amended
(42 U.S.C. 2000d et seq. and 2000e et seq.);
(6) The Age Discrimination Act of 1975, as amended (42 U.S.C.
6101);
(7) The Age Discrimination in Employment Act of 1967, as amended
(29 U.S.C. 621);
(8) Title IX of the Education Amendments of 1972, as amended (Title
IX) (20 U.S.C. 1681);

[[Page 43879]]

(9) The Americans with Disabilities Act of 1990, as amended (42
U.S.C. 12101 et seq.); and
(10) The anti-discrimination provision of the Immigration and
Nationality Act, as amended (8 U.S.C. 1324b).
(f) This rule does not preempt consistent State and local
requirements.


Sec. 38.4 What definitions apply to this part?

As used in this part, the term:
Administrative Law Judge means a person appointed as provided in 5
U.S.C. 3105 and 5 CFR 930.203, and qualified under 5 U.S.C. 557, to
preside at hearings held under the nondiscrimination and equal
opportunity provisions of WIOA and this part.
Aid, benefits, services, or training. (1) The term ``aid, benefits,
service, or training'' means WIOA Title I--financially assisted
services, financial or other aid, or benefits provided by or through a
recipient or its employees, or by others through contract or other
arrangements with the recipient. ``Aid, benefits, services, or
training'' includes, but is not limited to:
(i) Core and intensive services;
(ii) Education or training;
(iii) Health, welfare, housing, social service, rehabilitation, or
other supportive services;
(iv) Work opportunities; and
(v) Cash, loans, or other financial assistance to individuals.
(2) As used in this part, the term includes any aid, benefits,
services, or training provided in or through a facility that has been
constructed, expanded, altered, leased, rented, or otherwise obtained,
in whole or in part, with Federal financial assistance under Title I of
WIOA.
Applicant means an individual who is interested in being considered
for WIOA Title I--financially assisted aid, benefits, services, or
training by a recipient, and who has signified that interest by
submitting personal information in response to a request by the
recipient. See also the definitions of ``application for benefits,''
``eligible applicant/registrant,'' ``participant,'' ``participation,''
and ``recipient'' in this section.
Applicant for employment means a person or persons who make(s)
application for employment with a recipient of Federal financial
assistance under WIOA Title I.
Application for assistance means the process by which required
documentation is provided to the Governor, recipient, or Department
before and as a condition of receiving WIOA Title I financial
assistance (including both new and continuing assistance).
Application for benefits means the process by which information,
including but not limited to a completed application form, is provided
by applicants or eligible applicants before and as a condition of
receiving WIOA Title I--financially assisted aid, benefits, services,
or training from a recipient.
Assistant Attorney General means the Assistant Attorney General,
Civil Rights Division, United States Department of Justice.
Assistant Secretary means the Assistant Secretary for
Administration and Management, United States Department of Labor.
Auxiliary aids or services includes--
(1) Qualified interpreters, notetakers, transcription services,
written materials, telephone handset amplifiers, assistive listening
systems, telephones compatible with hearing aids, closed caption
decoders, open and closed captioning, telecommunications devices for
deaf persons (TDDs/TTYs), videotext displays, or other effective means
of making aurally delivered materials available to individuals with
hearing impairments;
(2) Qualified readers, taped texts, audio recordings, brailled
materials, large print materials, or other effective means of making
visually delivered materials available to individuals with visual
impairments;
(3) Acquisition or modification of equipment or devices; and
(4) Other similar services and actions.
Beneficiary means the individual or individuals intended by
Congress to receive aid, benefits, services, or training from a
recipient.
Citizenship See ``Discrimination on the ground of citizenship'' in
this section.
CRC means the Civil Rights Center, Office of the Assistant
Secretary for Administration and Management, U.S. Department of Labor.
Department means the U.S. Department of Labor (DOL), including its
agencies and organizational units.
Departmental grantmaking agency means a grantmaking agency within
the U.S. Department of Labor.
Director means the Director, Civil Rights Center (CRC), Office of
the Assistant Secretary for Administration and Management, U.S.
Department of Labor, or a designee authorized to act for the Director.
Disability means, with respect to an individual, a physical or
mental impairment that substantially limits one or more of the major
life activities of such individual; a record of such an impairment; or
being regarded as having such an impairment.
(1)(i) The phrase physical or mental impairment means--
(A) Any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more of the
following body systems: Neurological, musculoskeletal, special sense
organs, respiratory (including speech organs), cardiovascular,
reproductive, digestive, genitourinary, hemic and lymphatic, skin, and
endocrine;
(B) Any mental or psychological disorder such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities.
(ii) The phrase physical or mental impairment includes, but is not
limited to, such contagious and noncontagious diseases and conditions
as orthopedic, visual, speech and hearing impairments, cerebral palsy,
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart
disease, diabetes, mental retardation, emotional illness, specific
learning disabilities, HIV disease (whether symptomatic or
asymptomatic), tuberculosis, drug addiction, and alcoholism. The phrase
``physical or mental impairment'' does not include homosexuality or
bisexuality.
(2) The phrase major life activities means functions such as caring
for one's self, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working.
(3) The phrase has a record of such an impairment means has a
history of, or has been misclassified as having, a mental or physical
impairment that substantially limits one or more major life activities.
(4) The phrase is regarded as having an impairment means--
(i) Has a physical or mental impairment that does not substantially
limit major life activities but that is treated by the recipient as
being such a limitation;
(ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others
toward such impairment; or
(iii) Has none of the impairments defined in paragraph (1) of this
definition but is treated by the recipient as having such an
impairment.
Discrimination on the ground of citizenship means a denial of
participation in programs or activities financially assisted in whole
or in part under Title I of WIOA to individuals on the basis of their
status as citizens or nationals of the United States, lawfully admitted
permanent resident aliens, refugees, asylees, and parolees, or other

[[Page 43880]]

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

[[Page 43881]]

(B) The impact on the facility's ability to carry out its mission.
Governor means the chief elected official of any State or his or
her designee.
Grant applicant means an entity that submits the required
documentation to the Governor, recipient, or Department, before and as
a condition of receiving financial assistance under Title I of WIOA.
Grantmaking agency means an entity that provides Federal financial
assistance.
Guideline means written informational material supplementing an
agency's regulations and provided to grant applicants and recipients to
provide program-specific interpretations of their responsibilities
under the regulations.
Illegal use of drugs means the use of drugs, the possession or
distribution of which is unlawful under the Controlled Substances Act,
as amended (21 U.S.C. 812). ``Illegal use of drugs'' does not include
the use of a drug taken under supervision of a licensed health care
professional, or other uses authorized by the Controlled Substances Act
or other provisions of Federal law.
Individual with a disability means a person who has a disability,
as defined in this section.
(1) The term ``individual with a disability'' does not include an
individual on the basis of:
(i) Transvestism, transsexualism, pedophilia, exhibitionism,
voyeurism, gender identity disorders not resulting from physical
impairments, or other sexual behavior disorders;
(ii) Compulsive gambling, kleptomania, or pyromania; or
(iii) Psychoactive substance use disorders resulting from current
illegal use of drugs.
(2) The term ``individual with a disability'' also does not include
an individual who is currently engaging in the illegal use of drugs,
when a recipient acts on the basis of such use. This limitation does
not exclude as an individual with a disability an individual who:
(i) Has successfully completed a supervised drug rehabilitation
program and is no longer engaging in the illegal use of drugs, or has
otherwise been rehabilitated successfully and is no longer engaging in
such use;
(ii) Is participating in a supervised rehabilitation program and is
no longer engaging in such use; or
(iii) Is erroneously regarded as engaging in such use, but is not
engaging in such use, except that it is not a violation of the
nondiscrimination and equal opportunity provisions of WIOA or this part
for a recipient to adopt or administer reasonable policies or
procedures, including but not limited to drug testing, designed to
ensure that an individual described in paragraph (1)(i) or (ii) of this
definition is no longer engaging in the illegal use of drugs.
(2) With regard to employment, the term ``individual with a
disability'' does not include any individual who:
(i) Is an alcoholic:
(A) Whose current use of alcohol prevents such individual from
performing the duties of the job in question; or
(B) Whose employment, by reason of such current alcohol abuse,
would constitute a direct threat to property or the safety of others;
or
(ii) Has a currently contagious disease or infection, if:
(A) That disease or infection prevents him or her from performing
the duties of the job in question; or
(B) His or her employment, because of that disease or infection,
would constitute a direct threat to the health and safety of others.
Labor market area means an economically integrated geographic area
within which individuals can reside and find employment within a
reasonable distance or can readily change employment without changing
their place of residence. Such an area must be identified in accordance
with either criteria used by the Bureau of Labor Statistics of the
Department of Labor in defining such areas, or similar criteria
established by a Governor.
LWIOA (Local Workforce Investment Area) grant recipient means the
entity that receives WIOA Title I financial assistance for a Local
Workforce Investment Area directly from the Governor and disburses
those funds for Workforce Innovation and Opportunity Act activities.
Methods of Administration means the written document and supporting
documentation developed under Sec. 38.54.
National Programs means:
(1) Job Corps; and
(2) Programs receiving Federal funds under Title I, Subtitle D of
WIOA directly from the Department. Such programs include, but are not
limited to, the Migrant and Seasonal Workers Programs, Native American
Programs, and Veterans' Workforce Investment programs.
Noncompliance means a failure of a grant applicant or recipient to
comply with any of the applicable requirements of the nondiscrimination
and equal opportunity provisions of WIOA or this part.
On-the-Job Training (OJT) means training by an employer that is
provided to a paid participant while the participant is engaged in
productive work that:
(1) Provides knowledge or skills essential to the full and adequate
performance of the job;
(2) Provides reimbursement to the employer of up to 50 percent of
the wage rate of the participant, for the extraordinary costs of
providing the training and additional supervision related to the
training; and
(3) Is limited in duration as appropriate to the occupation for
which the participant is being trained, taking into account the content
of the training, the prior work experience of the participant, and the
service strategy of the participant, as appropriate.
Participant means an individual who has been determined to be
eligible to participate in, and who is receiving aid, benefits,
services or training under, a program or activity funded in whole or in
part under Title I of WIOA. ``Participant'' includes, but is not
limited to, applicants receiving any service(s) under state Employment
Service programs, and claimants receiving any service(s) under state
Unemployment Insurance programs.
Participation is considered to commence on the first day, following
determination of eligibility, on which the participant began receiving
subsidized aid, benefits, services, or training provided under Title I
of WIOA.
Parties to a hearing means the Department and the grant
applicant(s), recipient(s), or Governor.
Population eligible to be served means the total population of
adults and eligible youth who reside within the labor market area that
is served by a particular recipient, and who are eligible to seek WIOA
Title I-financially assisted aid, benefits, services or training from
that recipient. See the definition of ``labor market area'' in this
section.
Program or activity. See ``WIOA Title I-financially assisted
program or activity'' in this section.
Prohibited ground means any basis upon which it is illegal to
discriminate under the nondiscrimination and equal opportunity
provisions of WIOA or this part, i.e., race, color, religion, sex,
national origin, age, disability, political affiliation or belief, and,
for beneficiaries only, citizenship or participation in a WIOA Title I-
financially assisted program or activity.
Public entity means:
(1) Any State or local government; and

[[Page 43882]]

(2) Any department, agency, special purpose district, workforce
investment board, or other instrumentality of a State or States or
local government.
Qualified individual with a disability means:
(1) With respect to employment, an individual with a disability
who, with or without reasonable accommodation, is capable of performing
the essential functions of the job in question;
(2) With respect to aid, benefits, services, or training, an
individual with a disability who, with or without reasonable
accommodation and/or reasonable modification, meets the essential
eligibility requirements for the receipt of such aid, benefits,
services, or training.
Qualified interpreter means an interpreter who is able to interpret
effectively, accurately, and impartially, either for individuals with
disabilities or for individuals with limited English skills. The
interpreter must be able to interpret both receptively and
expressively, using any necessary specialized vocabulary.
Reasonable accommodation. (1) The term ``reasonable accommodation''
means:
(i) Modifications or adjustments to an application/registration
process that enables a qualified applicant/registrant with a disability
to be considered for the aid, benefits, services, training, or
employment that the qualified applicant/registrant desires; or
(ii) Modifications or adjustments that enable a qualified
individual with a disability to perform the essential functions of a
job, or to receive aid, benefits, services, or training equal to that
provided to qualified individuals without disabilities. These
modifications or adjustments may be made to:
(A) The environment where work is performed or aid, benefits,
services, or training are given; or
(B) The customary manner in which, or circumstances under which, a
job is performed or aid, benefits, services, or training are given; or
(iii) Modifications or adjustments that enable a qualified
individual with a disability to enjoy the same benefits and privileges
of the aid, benefits, services, training, or employment as are enjoyed
by other similarly situated individuals without disabilities.
(2) Reasonable accommodation includes, but is not limited to:
(i) Making existing facilities used by applicants, registrants,
eligible applicants/registrants, participants, applicants for
employment, and employees readily accessible to and usable by
individuals with disabilities; and
(ii) Restructuring of a job or a service, or of the way in which
aid, benefits, or training is/are provided; part-time or modified work
or training schedules; acquisition or modification of equipment or
devices; appropriate adjustment or modifications of examinations,
training materials, or policies; the provision of readers or
interpreters; and other similar accommodations for individuals with
disabilities.
(3) To determine the appropriate reasonable accommodation, it may
be necessary for the recipient to initiate an informal, interactive
process with the qualified individual with a disability in need of the
accommodation. This process should identify the precise limitations
resulting from the disability and potential reasonable accommodations
that could overcome those limitations.
Recipient. The term ``recipient'' means:
(1) Any entity to which financial assistance under WIOA Title I is
extended, either directly from the Department or through the Governor
or another recipient (including any successor, assignee, or transferee
of a recipient), but excluding the ultimate beneficiaries of the WIOA
Title I-funded program or activity. In instances in which a Governor
operates a program or activity, either directly or through a State
agency, using discretionary funds apportioned to him or her under WIOA
Title I (rather than disbursing the funds to another recipient), the
Governor is also a recipient. ``Recipient'' includes, but is not
limited to:
(i) State-level agencies that administer, or are financed in whole
or in part with, WIOA Title I funds;
(ii) State Employment Security Agencies;
(iii) State and local Workforce Investment Boards;
(iv) LWIOA grant recipients;
(v) One-Stop operators;
(vi) Service providers, including eligible training providers;
(vii) On-the-Job Training (OJT) employers;
(viii) Job Corps contractors and center operators, excluding the
operators of federally-operated Job Corps centers;
(ix) Job Corps national training contractors;
(x) Outreach and admissions agencies, including Job Corps
contractors that perform these functions;
(xi) Placement agencies, including Job Corps contractors that
perform these functions; and
(xii) Other National Program recipients.
(2) In addition, for purposes of this part, One-Stop partners, as
defined in section 121(b) of WIOA, are treated as ``recipients,'' and
are subject to the nondiscrimination and equal opportunity requirements
of this part, to the extent that they participate in the One-Stop
delivery system.
Registrant means the same as ``applicant'' for purposes of this
part. See also the definitions of ``application for benefits,''
``eligible applicant/registrant,'' ``participant,'' ``participation,''
and ``recipient'' in this section.
Respondent means a grant applicant or recipient (including a
Governor) against which a complaint has been filed under the
nondiscrimination and equal opportunity provisions of WIOA or this
part.
Secretary means the Secretary of Labor, U.S. Department of Labor,
or his or her designee.
Sectarian activities means religious worship or ceremony, or
sectarian instruction.
Section 504 means Section 504 of the Rehabilitation Act of 1973, 29
U.S.C. 794, as amended, which forbids discrimination against qualified
individuals with disabilities in federally-financed and conducted
programs and activities.
Service provider means:
(1) Any operator of, or provider of aid, benefits, services, or
training to:
(i) Any WIOA Title I--funded program or activity that receives
financial assistance from or through any State or LWIOA grant
recipient; or
(ii) Any participant through that participant's Individual Training
Account (ITA); or
(2) Any entity that is selected and/or certified as an eligible
provider of training services to participants.
Small recipient means a recipient who:
(1) Serves a total of fewer than 15 beneficiaries during the entire
grant year; and
(2) Employs fewer than 15 employees on any given day during the
grant year.
Solicitor means the Solicitor of Labor, U.S. Department of Labor,
or his or her designee.
State means the individual states of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, the Virgin
Islands, American Samoa, Guam, Wake Island, the Commonwealth of the
Northern Mariana Islands, the Federated States of Micronesia, the
Republic of the Marshall Islands, and Palau.
State Employment Security Agency (SESA) means the State agency
that, under the State Administrator, contains

[[Page 43883]]

both State agencies with responsibility for administering programs
authorized under the Wagner-Peyser Act, and unemployment insurance
programs authorized under Title III of the Social Security Act.
State programs. The term ``State programs'' means:
(1) Programs financially assisted in whole or in part under Title I
of WIOA in which either:
(i) The Governor and/or State receives and disburses the grant to
or through LWIOA grant recipients; or
(ii) The Governor retains the grant funds and operates the
programs, either directly or through a State agency.
(2) ``State programs'' also includes State Employment Security
Agencies, State Employment Service agencies, and/or State unemployment
compensation agencies.
Supportive services means services, such as transportation, child
care, dependent care, housing, and needs-related payments, that are
necessary to enable an individual to participate in WIOA Title I-
financially assisted programs and activities, as consistent with the
provisions of WIOA.
Terminee means a participant whose participation in the program
terminates, voluntarily or involuntarily, during the applicable program
year.
Title VI means Title VI of the Civil Rights Act of 1964, 42 U.S.C.
2000d, et seq., as amended, which forbids recipients of Federal
financial assistance from discriminating on the basis of race, color,
or national origin.
Transferee means a person or entity to whom real or personal
property, or an interest in such property, is transferred.
Ultimate beneficiary See the definition of ``beneficiary'' in this
section.
Undue hardship This term has different meanings, depending upon
whether it is used with regard to reasonable accommodation of
individuals with disabilities, or with regard to religious
accommodation.
(1) Reasonable accommodation of individuals with disabilities. (i)
In general, ``undue hardship'' means significant difficulty or expense
incurred by a recipient, when considered in light of the factors set
forth in paragraph (ii) of this definition.
(ii) Factors to be considered in determining whether an
accommodation would impose an undue hardship on a recipient include:
(A) The nature and net cost of the accommodation needed, taking
into consideration the availability of tax credits and deductions, and/
or outside funding, for the accommodation;
(B) The overall financial resources of the facility or facilities
involved in the provision of the reasonable accommodation, including:
(1) The number of persons aided, benefited, served, or trained by,
or employed at, the facility or facilities, and
(2) The effect the accommodation would have on the expenses and
resources of the facility or facilities;
(C) The overall financial resources of the recipient, including:
(1) The overall size of the recipient;
(2) The number of persons aided, benefited, served, trained, or
employed by the recipient; and
(3) The number, type and location of the recipient's facilities;
(D) The type of operation or operations of the recipient,
including:
(1) The geographic separateness and administrative or fiscal
relationship of the facility or facilities in question to the
recipient; and
(2) Where the individual is seeking an employment-related
accommodation, the composition, structure and functions of the
recipient's workforce; and
(E) The impact of the accommodation upon the operation of the
facility or facilities, including:
(1) The impact on the ability of other participants to receive aid,
benefits, services, or training, or of other employees to perform their
duties; and
(2) The impact on the facility's ability to carry out its mission.
(2) Religious accommodation. For purposes of religious
accommodation only, ``undue hardship'' means any additional, unusual
costs, other than de minimis costs, that a particular accommodation
would impose upon a recipient. See Trans World Airlines, Inc. v.
Hardison, 432 U.S. 63, 81, 84 (1977).
WIOA means the Workforce Innovation and Opportunity Act, Public Law
113-128.
WIOA Title I financial assistance See the definition of ``Federal
financial assistance under Title I of WIOA'' in this section.
WIOA Title I-funded program or activity means:
(1) A program or activity, operated by a recipient and funded, in
whole or in part, under Title I of WIOA, that provides either:
(i) Any aid, benefits, services, or training to individuals; or
(ii) Facilities for furnishing any aid, benefits, services, or
training to individuals;
(2) Aid, benefits, services, or training provided in facilities
that are being or were constructed with the aid of Federal financial
assistance under WIOA Title I; or
(3) Aid, benefits, services, or training provided with the aid of
any non-WIOA Title I funds, property, or other resources that are
required to be expended or made available in order for the program to
meet matching requirements or other conditions which must be met in
order to receive the WIOA Title I financial assistance. See the
definition of ``aid, benefits, services, or training'' in this section.


Sec. 38.5 What forms of discrimination are prohibited by this part?

No individual in the United States may, on the ground of race,
color, religion, sex, national origin, age, disability, political
affiliation or belief, and for beneficiaries only, citizenship or
participation in any WIOA Title I--financially assisted program or
activity, be excluded from participation in, denied the benefits of,
subjected to discrimination under, or denied employment in the
administration of or in connection with any WIOA Title I--funded
program or activity.


Sec. 38.6 What specific discriminatory actions, based on prohibited
grounds other than disability, are prohibited by this part, and what
limitations are there related to religious activities?

(a) For the purposes of this section, ``prohibited ground'' means
race, color, religion, sex, national origin, age, political affiliation
or belief, and for beneficiaries only, citizenship or participation in
any WIOA Title I--financially assisted program or activity.
(b) A recipient must not, directly or through contractual,
licensing, or other arrangements, on a prohibited ground:
(1) Deny an individual any aid, benefits, services, or training
provided under a WIOA Title I--funded program or activity;
(2) Provide to an individual any aid, benefits, services, or
training that is different, or is provided in a different manner, from
that provided to others under a WIOA Title I--funded program or
activity;
(3) Subject an individual to segregation or separate treatment in
any matter related to his or her receipt of any aid, benefits,
services, or training under a WIOA Title I--funded program or activity;
(4) Restrict an individual in any way in the enjoyment of any
advantage or privilege enjoyed by others receiving any aid, benefits,
services, or training under a WIOA Title I--funded program or activity;
(5) Treat an individual differently from others in determining
whether he or she satisfies any admission, enrollment, eligibility,
membership, or other requirement or condition for any

[[Page 43884]]

aid, benefits, services, or training provided under a WIOA Title I--
funded program or activity;
(6) Deny or limit an individual with respect to any opportunity to
participate in a WIOA Title I--funded program or activity, or afford
him or her an opportunity to do so that is different from the
opportunity afforded others under a WIOA Title I--funded program or
activity;
(7) Deny an individual the opportunity to participate as a member
of a planning or advisory body that is an integral part of the WIOA
Title I--funded program or activity; or
(8) Otherwise limit on a prohibited ground an individual in
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving any WIOA Title I--financially assisted aid, benefits,
services, or training.
(c) A recipient must not, directly or through contractual,
licensing, or other arrangements:
(1) Aid or perpetuate discrimination by providing significant
assistance to an agency, organization, or person that discriminates on
a prohibited ground in providing any aid, benefits, services, or
training to registrants, applicants or participants in a WIOA Title I--
funded program or activity; or
(2) Refuse to accommodate an individual's religious practices or
beliefs, unless to do so would result in undue hardship, as defined in
Sec. 38.4.
(d)(1) In making any of the determinations listed in paragraph
(d)(2) of this section, either directly or through contractual,
licensing, or other arrangements, a recipient must not use standards,
procedures, criteria, or administrative methods that have any of the
following purposes or effects:
(i) Subjecting individuals to discrimination on a prohibited
ground; or
(ii) Defeating or substantially impairing, on a prohibited ground,
accomplishment of the objectives of either:
(A) The WIOA Title I--funded program or activity; or
(B) the nondiscrimination and equal opportunity provisions of WIOA
or this part.
(2) The determinations to which this paragraph (d) applies include,
but are not limited to:
(i) The types of aid, benefits, services, training, or facilities
that will be provided under any WIOA Title I--funded program or
activity;
(ii) The class of individuals to whom such aid, benefits, services,
training, or facilities will be provided; or
(iii) The situations in which such aid, benefits, services,
training, or facilities will be provided.
(3) Paragraph (d) of this section applies to the administration of
WIOA Title I--funded programs or activities providing aid, benefits,
services, training, or facilities in any manner, including, but not
limited to:
(i) Outreach and recruitment;
(ii) Registration;
(iii) Counseling and guidance;
(iv) Testing;
(v) Selection, placement, appointment, and referral;
(vi) Training; and
(vii) Promotion and retention.
(4) A recipient must not take any of the prohibited actions listed
in paragraph (d) of this section either directly or through
contractual, licensing, or other arrangements.
(e) In determining the site or location of facilities, a grant
applicant or recipient must not make selections that have any of the
following purposes or effects:
(1) On a prohibited ground:
(i) Excluding individuals from a WIOA Title I--financially assisted
program or activity;
(ii) Denying them the benefits of such a program or activity; or
(iii) Subjecting them to discrimination; or
(2) Defeating or substantially impairing the accomplishment of the
objectives of either:
(i) The WIOA Title I--financially assisted program or activity; or
(ii) The nondiscrimination and equal opportunity provisions of WIOA
or this part.
(f)(1) 29 CFR part 2, subpart D, governs the circumstances under
which DOL support, including WIOA Title I financial assistance, may be
used to employ or train participants in religious activities. Under
that subpart, such assistance may be used for such employment or
training only when the assistance is provided indirectly within the
meaning of the Establishment Clause of the U.S. Constitution, and not
when the assistance is provided directly. As explained in that subpart,
assistance provided through an Individual Training Account is generally
considered indirect, and other mechanisms may also be considered
indirect. See also 20 CFR 667.266 and 667.275. 29 CFR part 2, subpart
D, also contains requirements related to equal treatment of religious
organizations in Department of Labor programs, and to protection of
religious liberty for Department of Labor social service providers and
beneficiaries.
(2) Except under the circumstances described in paragraph (f)(3) of
this section, a recipient must not employ participants to carry out the
construction, operation, or maintenance of any part of any facility
that is used, or to be used, for religious instruction or as a place
for religious worship.
(3) A recipient may employ participants to carry out the
maintenance of a facility that is not primarily or inherently devoted
to religious instruction or religious worship if the organization
operating the facility is part of a program or activity providing
services to participants.
(g) The exclusion of an individual from programs or activities
limited by Federal statute or Executive Order to a certain class or
classes of individuals of which the individual in question is not a
member is not prohibited by this part.


Sec. 38.7 What specific discriminatory actions based on disability
are prohibited by this part?

(a) In providing any aid, benefits, services, or training under a
WIOA Title I--financially assisted program or activity, a recipient
must not, directly or through contractual, licensing, or other
arrangements, on the ground of disability:
(1) Deny a qualified individual with a disability the opportunity
to participate in or benefit from the aid, benefits, services, or
training;
(2) Afford a qualified individual with a disability an opportunity
to participate in or benefit from the aid, benefits, services, or
training that is not equal to that afforded others;
(3) Provide a qualified individual with a disability with an aid,
benefit, service or training that is not as effective in affording
equal opportunity to obtain the same result, to gain the same benefit,
or to reach the same level of achievement as that provided to others;
(4) Provide different, segregated, or separate aid, benefits,
services, or training to individuals with disabilities, or to any class
of individuals with disabilities, unless such action is necessary to
provide qualified individuals with disabilities with aid, benefits,
services or training that are as effective as those provided to others;
(5) Deny a qualified individual with a disability the opportunity
to participate as a member of planning or advisory boards; or
(6) Otherwise limit a qualified individual with a disability in
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving any aid, benefit, service or training.
(b) A recipient must not, directly or through contractual,
licensing, or other

[[Page 43885]]

arrangements, aid or perpetuate discrimination against qualified
individuals with disabilities by providing significant assistance to an
agency, organization, or person that discriminates on the basis of
disability in providing any aid, benefits, services or training to
registrants, applicants, or participants.
(c) A recipient must not deny a qualified individual with a
disability the opportunity to participate in WIOA Title I--financially
assisted programs or activities despite the existence of permissibly
separate or different programs or activities.
(d) A recipient must administer WIOA Title I--financially assisted
programs and activities in the most integrated setting appropriate to
the needs of qualified individuals with disabilities.
(e) A recipient must not, directly or through contractual,
licensing, or other arrangements, use standards, procedures, criteria,
or administrative methods:
(1) That have the purpose or effect of subjecting qualified
individuals with disabilities to discrimination on the ground of
disability;
(2) That have the purpose or effect of defeating or substantially
impairing accomplishment of the objectives of the WIOA Title I--
financially assisted program or activity with respect to individuals
with disabilities; or
(3) That perpetuate the discrimination of another entity if both
entities are subject to common administrative control or are agencies
of the same state.
(f) In determining the site or location of facilities, a grant
applicant or recipient must not make selections that have any of the
following purposes or effects:
(1) On the basis of disability:
(i) Excluding qualified individuals from a WIOA Title I-financially
assisted program or activity;
(ii) Denying them the benefits of such a program or activity; or
(iii) Subjecting them to discrimination; or
(2) Defeating or substantially impairing the accomplishment of the
disability-related objectives of either:
(i) The WIOA Title I-financially assisted program or activity; or
(ii) The nondiscrimination and equal opportunity provisions of WIOA
or this part.
(g) A recipient, in the selection of contractors, must not use
criteria that subject qualified individuals with disabilities to
discrimination on the basis of disability.
(h) A recipient must not administer a licensing or certification
program in a manner that subjects qualified individuals with
disabilities to discrimination on the basis of disability, nor may a
recipient establish requirements for the programs or activities of
licensees or certified entities that subject qualified individuals with
disabilities to discrimination on the basis of disability. The programs
or activities of entities that are licensed or certified by a recipient
are not, themselves, covered by this part.
(i) A recipient must not impose or apply eligibility criteria that
screen out or tend to screen out an individual with a disability or any
class of individuals with disabilities from fully and equally enjoying
any aid, benefit, service, training, program, or activity, unless such
criteria can be shown to be necessary for the provision of the aid,
benefit, service, training, program, or activity being offered.
(j) Nothing in this part prohibits a recipient from providing aid,
benefits, services, training, or advantages to individuals with
disabilities, or to a particular class of individuals with
disabilities, beyond those required by this part.
(k) A recipient must not place a surcharge on a particular
individual with a disability, or any group of individuals with
disabilities, to cover the costs of measures, such as the provision of
auxiliary aids or program accessibility, that are required to provide
that individual or group with the nondiscriminatory treatment required
by WIOA Title I or this part.
(l) A recipient must not exclude, or otherwise deny equal aid,
benefits, services, training, programs, or activities to, an individual
or entity because of the known disability of an individual with whom
the individual or entity is known to have a relationship or
association.
(m) The exclusion of an individual without a disability from the
benefits of a program limited by Federal statute or Executive Order to
individuals with disabilities, or the exclusion of a specific class of
individuals with disabilities from a program limited by Federal statute
or Executive Order to a different class of individuals with
disabilities, is not prohibited by this part.
(n) This part does not require a recipient to provide any of the
following to individuals with disabilities:
(1) Personal devices, such as wheelchairs;
(2) Individually prescribed devices, such as prescription
eyeglasses or hearing aids;
(3) Readers for personal use or study; or
(4) Services of a personal nature, including assistance in eating,
toileting, or dressing.
(o)(1) Nothing in this part requires an individual with a
disability to accept an accommodation, aid, benefit, service, training,
or opportunity provided under WIOA Title I or this part that such
individual chooses not to accept.
(2) Nothing in this part authorizes the representative or guardian
of an individual with a disability to decline food, water, medical
treatment, or medical services for that individual.


Sec. 38.8 What are a recipient's responsibilities regarding
reasonable accommodation and reasonable modification for individuals
with disabilities?

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

[[Page 43886]]

definition of ``fundamental alteration'' in Sec. 38.4.
(1) In those circumstances where a recipient believes that the
proposed modification would fundamentally alter the program, activity,
or service, the recipient has the burden of proving that the
modification would result in such an alteration.
(2) The recipient must make the decision that the modification
would result in such an alteration only after considering all factors
listed in the definition of ``fundamental alteration'' in Sec. 38.4.
The decision must be accompanied by a written statement of the
recipient's reasons for reaching that conclusion. The recipient must
provide a copy of the statement of reasons to the individual or
individuals who requested the modification.
(3) If a modification would result in a fundamental alteration, the
recipient must take any other action that would not result in such an
alteration, but would nevertheless ensure that, to the maximum extent
possible, individuals with disabilities receive the aid, benefits,
services, training, or employment provided by the recipient.


Sec. 38.9 What are a recipient's responsibilities to communicate with
individuals with disabilities?

(a) Recipients must take appropriate steps to ensure that
communications with beneficiaries, registrants, applicants, eligible
applicants/registrants, participants, applicants for employment,
employees, and members of the public who are individuals with
disabilities, are as effective as communications with others.
(b) A recipient must furnish appropriate auxiliary aids or services
where necessary to afford individuals with disabilities an equal
opportunity to participate in, and enjoy the benefits of, the WIOA
Title I--financially assisted program or activity. In determining what
type of auxiliary aid or service is appropriate and necessary, such
recipient must give primary consideration to the requests of the
individual with a disability.
(c) Where a recipient communicates by telephone with beneficiaries,
registrants, applicants, eligible applicants/registrants, participants,
applicants for employment, and/or employees, the recipient must use
telecommunications devices for individuals with hearing impairments
(TDDs/TTYs), or equally effective communications systems, such as
telephone relay services.
(d) A recipient must ensure that interested individuals, including
individuals with visual or hearing impairments, can obtain information
as to the existence and location of accessible services, activities,
and facilities.
(e)(1) A recipient must provide signage at a primary entrance to
each of its inaccessible facilities, directing users to a location at
which they can obtain information about accessible facilities. The
signage provided must meet the most current standards prescribed by the
General Services Administration under the Architectural Barriers Act at
41 CFR 102-76.65. Alternative standards for the signage may be adopted
when it is clearly evident that such alternative standards provide
equivalent or greater access to the information.
(2) The international symbol for accessibility must be used at each
primary entrance of an accessible facility.
(f) This section does not require a recipient to take any action
that it can demonstrate would result in a fundamental alteration in the
nature of a service, program, or activity.
(1) In those circumstances where a recipient believes that the
proposed action would fundamentally alter the WIOA Title I--financially
assisted program, activity, or service, the recipient has the burden of
proving that compliance with this section would result in such an
alteration.
(2) The decision that compliance would result in such an alteration
must be made by the recipient after considering all resources available
for use in the funding and operation of the WIOA Title I--financially
assisted program, activity, or service, and must be accompanied by a
written statement of the reasons for reaching that conclusion.
(3) If an action required to comply with this section would result
in the fundamental alteration described in paragraph (f)(1) of this
section, the recipient must take any other action that would not result
in such an alteration, but would nevertheless ensure that, to the
maximum extent possible, individuals with disabilities receive the
benefits or services provided by the recipient.


Sec. 38.10 To what extent are employment practices covered by this
part?

(a) Discrimination on the ground of race, color, religion, sex,
national origin, age, disability, or political affiliation or belief is
prohibited in employment practices in the administration of, or in
connection with:
(1) Any WIOA Title I--financially assisted program or activity; and
(2) Any program or activity that is part of the One-Stop delivery
system and is operated by a One-Stop partner listed in Section 121(b)
of WIOA, to the extent that the program or activity is being conducted
as part of the One-Stop delivery system.
(b) Employee selection procedures. In implementing this section, a
recipient must comply with the Uniform Guidelines on Employee Selection
Procedures, 41 CFR part 60-3.
(c) Standards for employment-related investigations and reviews. In
any investigation or compliance review, the Director must consider
Equal Employment Opportunity Commission (EEOC) regulations, guidance
and appropriate case law in determining whether a recipient has engaged
in an unlawful employment practice.
(d) As provided in 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) Recipients that are also employers, employment agencies, or
other entities covered by Titles I and II of the ADA should be aware of
obligations imposed by those titles. See 29 CFR part 1630 and 28 CFR
part 35.
(f) Similarly, recipients that are also employers covered by the
anti-discrimination provision of the Immigration and Nationality Act
should be aware of the obligations imposed by that provision. See 8
U.S.C. 1324b, as amended.
(g) This rule does not preempt consistent State and local
requirements.


Sec. 38.11 To what extent are intimidation and retaliation prohibited
by this part?

(a) A recipient must not discharge, intimidate, retaliate,
threaten, coerce or discriminate against any individual because the
individual has:
(1) Filed a complaint alleging a violation of Section 188 of WIOA
or this part;
(2) Opposed a practice prohibited by the nondiscrimination and
equal opportunity provisions of WIOA or this part;
(3) Furnished information to, or assisted or participated in any
manner in, an investigation, review, hearing, or any other activity
related to any of the following:
(i) Administration of the nondiscrimination and equal

[[Page 43887]]

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. 38.12 What Department of Labor office is responsible for
administering this part?

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


Sec. 38.13 Who is responsible for providing interpretations of this
part?

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


Sec. 38.14 Under what circumstances may the Secretary delegate the
responsibilities of this part?

(a) The Secretary may from time to time assign to officials of
other departments or agencies of the Government (with the consent of
such department or agency) responsibilities in connection with the
effectuation of the nondiscrimination and equal opportunity provisions
of WIOA and this part (other than responsibility for final decisions
under 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. 38.15 What are the Director's responsibilities to coordinate
with other civil rights agencies?

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


Sec. 38.16 What is this part's effect on a recipient's obligations
under other laws, and what limitations apply?

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

Subpart B--Recordkeeping and Other Affirmative Obligations of
Recipients

Assurances


Sec. 38.20 What is a grant applicant's obligation to provide a
written assurance?

(a)(1) Each application for financial assistance under Title I of
WIOA, as defined in 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 will comply fully with the nondiscrimination and
equal opportunity provisions of the following laws:
Section 188 of the Workforce Innovation and Opportunity Act
(WIOA), which prohibits discrimination against all individuals in
the United States on the basis of race, color, religion, sex,
national origin, age, disability, political affiliation or belief,
and against beneficiaries on the basis of either citizenship/status
as a lawfully admitted immigrant authorized to work in the United
States or participation in any WIOA Title I--financially assisted
program or activity;
Title VI of the Civil Rights Act of 1964, as amended, which
prohibits discrimination on the bases of race, color and national
origin;
Section 504 of the Rehabilitation Act of 1973, as amended, which
prohibits discrimination against qualified individuals with
disabilities;
The Age Discrimination Act of 1975, as amended, which prohibits
discrimination on the basis of age; and
Title IX of the Education Amendments of 1972, as amended, which
prohibits discrimination on the basis of sex in educational
programs.
The grant applicant also assures that it will comply with 29 CFR
part 38 and all other regulations implementing the laws listed
above. This assurance applies to the grant applicant's operation of
the WIOA Title I-financially assisted program or activity, and to
all agreements the grant applicant makes to carry out the WIOA Title
I--financially assisted program or activity. The grant applicant
understands that the United States has the right to seek judicial
enforcement of this assurance.

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

[[Page 43888]]

or other arrangement whereby Federal financial assistance under Title I
of the WIOA is made available, whether or not it is physically
incorporated in such document and whether or not there is a written
agreement between the Department and the recipient, between the
Department and the Governor, between the Governor and the recipient, or
between recipients. The assurance also may be incorporated by reference
in such grants, cooperative agreements, contracts, or other
arrangements.
(b) Continuing State programs. Each Strategic Five-Year State Plan
submitted by a State to carry out a continuing WIOA Title I-financially
assisted program or activity must provide a statement that the WIOA
Title I-financially assisted program or activity is (or, in the case of
a new WIOA Title I-financially assisted program or activity, will be)
conducted in compliance with the nondiscrimination and equal
opportunity provisions of WIOA and this part, as a condition to the
approval of the Five-Year Plan and the extension of any WIOA Title I
financial assistance under the Plan. The State also must certify that
it has developed and maintains a Methods of Administration under Sec.
38.54.


Sec. 38.21 How long will the recipient's obligation under the
assurance last, and how broad is the obligation?

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


Sec. 38.22 How must covenants be used in connection with this part?

(a) Where WIOA Title I financial assistance is provided in the form
of a transfer of real property, structures, or improvements on real
property or structures, or interests in real property or structures,
the instrument effecting or recording the transfer must contain a
covenant assuring nondiscrimination and equal opportunity for the
period described in Sec. 38.21.
(b) Where no Federal transfer of real property or interest therein
from the Federal Government is involved, but real property or an
interest therein is acquired or improved under a program of WIOA Title
I financial assistance, the recipient must include the covenant
described in paragraph (a) of this section in the instrument effecting
or recording any subsequent transfer of such property.
(c) When the property is obtained from the Federal Government, the
covenant described in paragraph (a) of this section also may include a
condition coupled with a right of reverter to the Department in the
event of a breach of the covenant.

Equal Opportunity Officers


Sec. 38.23 Who must designate an Equal Opportunity Officer?

Every recipient must designate an Equal Opportunity Officer (``EO
Officer''), except small recipients and service providers, as defined
in Sec. 38.4. The responsibilities of small recipients and service
providers are described in Sec. Sec. 38.27 and 38.28.


Sec. 38.24 Who is eligible to serve as an Equal Opportunity Officer?

A senior-level employee of the recipient should be appointed as the
recipient's Equal Opportunity Officer. Depending upon the size of the
recipient, the size of the recipient's WIOA Title I--financially
assisted programs or activities, and the number of applicants,
registrants, and participants served by the recipient, the EO Officer
may, or may not, be assigned other duties. However, he or she must not
have other responsibilities or activities that create a conflict, or
the appearance of a conflict, with the responsibilities of an EO
Officer.


Sec. 38.25 What are the responsibilities of an Equal Opportunity
Officer?

An Equal Opportunity Officer is responsible for coordinating a
recipient's obligations under this part. Those responsibilities
include, but are not limited to:
(a) Serving as the recipient's liaison with CRC;
(b) Monitoring and investigating the recipient's activities, and
the activities of the entities that receive WIOA Title I funds from the
recipient, to make sure that the recipient and its subrecipients are
not violating their nondiscrimination and equal opportunity obligations
under WIOA Title I and this part;
(c) Reviewing the recipient's written policies to make sure that
those policies are nondiscriminatory;
(d) Developing and publishing the recipient's procedures for
processing discrimination complaints under Sec. Sec. 38.76 through
38.79, and making sure that those procedures are followed;
(e) Reporting directly to the appropriate official (including, but
not limited to, the State WIOA Director, Governor's WIOA Liaison, Job
Corps Center Director, SESA Administrator, or LWIOA grant recipient)
about equal opportunity matters;
(f) Undergoing training (at the recipient's expense) to maintain
competency, if the Director requires him or her, and/or his or her
staff, to do so; and
(g) If applicable, overseeing the development and implementation of
the recipient's Methods of Administration under Sec. 38.54.


Sec. 38.26 What are a recipient's obligations relating to the Equal
Opportunity Officer?

A recipient has the following obligations:
(a) Making the Equal Opportunity Officer's name, and his or her
position title, address, and telephone number (voice and TDD/TTY)
public;
(b) Ensuring that the EO Officer's identity and contact information
appears on all internal and external communications about the
recipient's nondiscrimination and equal opportunity programs;
(c) Assigning sufficient staff and resources to the Equal
Opportunity Officer, and providing him or her with the necessary
support of top management, to ensure compliance with the
nondiscrimination and equal opportunity provisions of WIOA and this
part; and
(d) Ensuring that the EO Officer and his/her staff are afforded the
opportunity to receive the training necessary and appropriate to
maintain competency.


Sec. 38.27 What are the obligations of small recipients regarding
Equal Opportunity Officers?

Although small recipients do not need to designate Equal
Opportunity Officers who have the full range of responsibilities listed
above, they must designate an individual who will be responsible for
developing and publishing of complaint procedures, and the processing
of complaints, as explained in Sec. Sec. 38.76 through 38.79.

[[Page 43889]]

Sec. 38.28 What are the obligations of service providers regarding
Equal Opportunity Officers?

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

Notice and Communication


Sec. 38.29 What are a recipient's obligations to disseminate its
equal opportunity policy?

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


Sec. 38.30 What specific wording must the notice contain?

The notice must contain the following specific wording:

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


Sec. 38.31 Where must the notice required by Sec. Sec. 38.29 and
38.30 be published?

(a) At a minimum, the notice required by Sec. Sec. 38.29 and 38.30
must be:
(1) Posted prominently, in reasonable numbers and places;
(2) Disseminated in internal memoranda and other written or
electronic communications;
(3) Included in handbooks or manuals; and
(4) Made available to each participant, and made part of each
participant's file.
(b) The notice must be provided in appropriate formats to
individuals with visual impairments. Where notice has been given in an
alternate format to a participant with a visual impairment, a record
that such notice has been given must be made a part of the
participant's file.


Sec. 38.32 When must the notice required by Sec. Sec. 38.29 and
38.30 be provided?

The notice required by Sec. Sec. 38.29 and 38.30 must be initially
provided within October 21, 2015, or within 90 days of the date this
part first applies to the recipient, whichever comes later.


Sec. 38.33 Who is responsible for meeting the notice requirement with
respect to service providers?

The Governor or the LWIOA grant recipient, as determined by the
Governor and as provided in that State's Methods of Administration,
will be responsible for meeting the notice requirement provided in
Sec. Sec. 38.29 and 38.30 with respect to a State's service providers.


Sec. 38.34 What type of notice must a recipient include in
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 telephone, the materials
must state the telephone number of the TDD/TTY or relay service used by
the recipient, as required by Sec. 38.9(c).
(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.
(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 ground specified in Sec.
38.5, except as such treatment is otherwise permitted under Federal law
or this part.


Sec. 38.35 What are a recipient's responsibilities to provide
services and information in languages other than English?

(a) A significant number or proportion of the population eligible
to be served, or likely to be directly affected, by a WIOA Title I-
financially assisted program or activity may need services or
information in a language other than

[[Page 43890]]

English in order to be effectively informed about, or able to
participate in, the program or activity. Where such a significant
number or proportion exists, a recipient must take the following
actions:
(1) Consider:
(i) The scope of the program or activity; and
(ii) The size and concentration of the population that needs
services or information in a language other than English; and
(2) Based on those considerations, take reasonable steps to provide
services and information in appropriate languages. This information
must include the initial and continuing notice required under
Sec. Sec. 38.29 and 38.30, and all information that is communicated
under Sec. 38.34.
(b) In circumstances other than those described in paragraph (a) of
this section, a recipient should nonetheless make reasonable efforts to
meet the particularized language needs of limited-English-speaking
individuals who seek services or information from the recipient.


Sec. 38.36 What responsibilities does a recipient have to communicate
information during 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, a recipient must include a discussion of rights
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.

Data and Information Collection and Maintenance


Sec. 38.37 What are a recipient's responsibilities to collect and
maintain 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, eligible applicant/registrant,
participant, terminee, applicant for employment, and employee. 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.
(c) Each recipient must maintain, and submit to CRC upon request, a
log of complaints filed with it that allege discrimination on the
ground(s) of race, color, religion, sex, 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 ground 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 LWIOA grant recipient, as provided in the State's
Methods of Administration.


Sec. 38.38 What information must grant applicants and recipients
provide to CRC?

In addition to the information which must be collected, maintained,
and, upon request, submitted to CRC under Sec. 38.37:
(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 ground of race, color,
religion, sex, national origin, age, disability, political affiliation
or belief, and for beneficiaries only, citizenship or participation in
a WIOA Title I-financially assisted program or activity. This
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 grant applicant (as part of its application) and 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 necessary to investigate complaints and conduct
compliance reviews on grounds 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
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.

[[Page 43891]]

Sec. 38.39 How long must grant applicants and recipients maintain the
records required under this part?

(a) Each recipient must maintain the following records 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) Records regarding complaints and actions taken on the
complaints must be maintained for a period of not less than three years
from the date of resolution of the complaint.


Sec. 38.40 What access to sources of information must grant
applicants and recipients provide the Director?

(a) Each grant applicant and recipient must permit access by the
Director 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, monitoring
activities associated with a State's development and implementation of
a Methods of Administration, and 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. 38.41 What responsibilities do grant applicants, recipients, and
the Department have to maintain the confidentiality of the information
collected?

The identity of any individual who furnishes information relating
to, or assisting in, an investigation or a compliance review, including
the identity of any individual who files a complaint, must be kept
confidential to the extent possible, consistent with a fair
determination of the issues. An individual whose identity it is
necessary to disclose must be protected from retaliation (see Sec.
38.11).


Sec. 38.42 What are a recipient's responsibilities under this part to
provide universal access to WIOA Title I-financially assisted programs
and activities?

Recipients must take appropriate steps to ensure that they are
providing universal access to their WIOA Title I-financially assisted
programs and activities. These steps should involve reasonable efforts
to include members of both sexes, various racial and ethnic groups,
individuals with disabilities, and individuals in differing 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.

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


Sec. 38.50 To whom does this subpart apply?

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
Employment Security Agencies (SESAs), because the Governor's liability
for any noncompliance on the part of a SESA cannot be waived.


Sec. 38.51 What are a Governor's oversight responsibilities?

The Governor is responsible for oversight of all WIOA Title I-
financially assisted State programs. This responsibility includes
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. 38.95(b).


Sec. 38.52 To what extent may a Governor be liable for the actions of
a recipient he or she has financially assisted under WIOA Title I?

(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 adhered to a Methods of Administration, under
Sec. 38.54, designed to give 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, he or she 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 What are a 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. 38.38 and
any procedures prescribed by the Director under Sec. 38.38(b). The
Governor must further ensure that recipients are able to provide data
and reports in the manner prescribed by the Director.


Sec. 38.54 What are a Governor's obligations to develop and maintain
a Methods of Administration?

(a)(1) Each Governor must establish and adhere to a Methods of
Administration for State programs as defined in Sec. 38.4. In those
States in which one agency contains both SESA or unemployment insurance
and WIOA Title I-financially assisted programs, the Governor should
develop a combined Methods of Administration.
(2) Each Methods of Administration must be designed to give a
reasonable guarantee that all recipients will comply, and are
complying, with the nondiscrimination and equal

[[Page 43892]]

opportunity provisions of WIOA and this part.
(b) The Methods of Administration must be:
(1) In writing, addressing each requirement of Sec. 38.54(d) with
narrative and documentation;
(2) Reviewed and updated as required in Sec. 38.55; and
(3) Signed by the Governor.
(c) [Reserved]
(d) At a minimum, each Methods of Administration must:
(1) Describe how the State programs and recipients have satisfied
the requirements of the following regulations:
(i) Sections 38.20 through 38.22 (Assurances);
(ii) Sections 38.23 through 38.28 (Equal Opportunity Officers);
(iii) Sections 38.29 through 38.36 (Notice and Communication);
(iv) Sections 38.38 through 38.41 (Data and Information Collection
and Maintenance);
(v) Section 38.42 (universal access);
(vi) Section 38.53 (Governor's oversight responsibilities regarding
recipients' recordkeeping); and
(vii) Sections 38.70 through 38.79 (Complaint Processing
Procedures); and
(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 the Act, 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 system for periodically 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 periodic monitoring review required by this
paragraph (d)(2)(ii) must include:
(A) A statistical or other quantifiable analysis of records and
data kept by the recipient under Sec. 38.38, including analyses by
race/ethnicity, sex, age, and disability status;
(B) An investigation of any significant differences identified in
paragraph (d)(2)(ii)(A) 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
(C) An assessment to determine whether the recipient has fulfilled
its administrative obligations under section 188 or this part (for
example, recordkeeping, notice and communication) and any duties
assigned to it under the MOA;
(iii) A review of recipient policy issuances to ensure they are
nondiscriminatory;
(iv) 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;
(v) Procedures for ensuring that recipients comply with the
requirements of Section 504 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 Methods of Administration 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 Methods of Administration;
(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;
(D) Information reflecting the extent to which Equal Opportunity
training, including training called for by Sec. Sec. 38.25(f) and
38.26(c), 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. 38.29 through
38.36.


Sec. 38.55 When must the Governor carry out his or her obligations
with regard to the Methods of Administration?

(a) Within either January 19, 2016, or the date on which the
Department gives final approval to a State's Five-Year Plan, whichever
is later, a Governor must:
(1) Develop and implement a Methods of Administration consistent
with the requirements of this part, and
(2) Submit a copy of the Methods of Administration to the Director.
(b) The Governor must promptly update the Methods of Administration
whenever necessary, and must notify the Director in writing at the time
that any such updates are made.
(c) Every two years from the date on which the initial MOA is
submitted to the Director under paragraph (a)(2) of this section, the
Governor must review the Methods of Administration 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 Methods of
Administration previously submitted continues in effect.

Subpart D--Compliance Procedures


Sec. 38.60 How does the Director evaluate compliance with the
nondiscrimination and equal opportunity provisions of WIOA and this
part?

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
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 Is there authority to issue subpoenas?

(a) Yes, section 183(c) of WIOA authorizes the issuance of
subpoenas. A subpoena may direct the individual named on the subpoena
to take the following actions:
(1) To appear:
(i) Before a designated CRC representative;

[[Page 43893]]

(ii) At a designated time and place;
(2) To give testimony; and/or
(3) To produce documentary evidence.
(b) 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.

Compliance Reviews


Sec. 38.62 What are the authority and procedures for conducting 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. 38.20, 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) Where the Director determines that the grant applicant for
Federal financial assistance under WIOA Title I, if financially
assisted, might not 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 Section 38.94
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. 38.95
and 38.97; and
(iv) The opportunity to engage in voluntary compliance
negotiations.
(c) If a grant applicant has agreed to certain remedial or
corrective actions in order to receive WIOA Title I-funded Federal
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. 38.98 through 38.100.


Sec. 38.63 What are the 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 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. 38.99 and 38.100, to make a
documentary or other 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 What procedures must the Director follow when CRC has
completed a post-approval compliance review?

(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. 38.94;
(3) Whether it will be necessary for the recipient to enter into a
written assurance and/or Conciliation Agreement, as provided in
Sec. Sec. 38.96 and 38.97; 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 What is the Director's authority to monitor the activities
of a Governor?

(a) The Director may periodically review the adequacy of the
Methods of Administration established by a Governor, as well as the
adequacy of the Governor's performance under the Methods of
Administration, to determine compliance with the requirements of
Sec. Sec. 38.50 through 38.55. The Director may review the Methods of
Administration 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.


Sec. 38.66 What happens if a recipient fails to submit requested
data, records, and/or information, or fails to provide CRC with the
required access?

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:
(a) Submit requested information, records, and/or data within 30
days of receiving a Notification Letter;
(b) 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
(c) Provide CRC access in a timely manner to a recipient's
premises, records, or employees during a compliance review, as required
in Sec. 38.40.


Sec. 38.67 What information must a Notice to Show Cause contain?

(a) 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.
(b) A Notice to Show Cause must give the recipient 30 days to show
cause why enforcement proceedings under the nondiscrimination and equal

[[Page 43894]]

opportunity provisions of WIOA or this part should not be instituted.


Sec. 38.68 How may a recipient 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 written assurance and/or entering into a
Conciliation Agreement, as appropriate, under Sec. Sec. 38.95 through
38.97;
(b) Demonstrating that CRC does not have jurisdiction; or
(c) Demonstrating that the violation alleged by CRC did not occur.


Sec. 38.69 What happens if a recipient fails to show cause?

If the recipient fails to show cause why enforcement proceedings
should not be initiated, the Director must follow the enforcement
procedures outlined in Sec. Sec. 38.99 and 38.100.

Complaint Processing Procedures


Sec. 38.70 Who may file a complaint concerning discrimination
connected with WIOA Title I?

Any person who believes that either he or she, or any specific
class of individuals, has been or is being subjected to discrimination
prohibited by WIOA or this part, may file a written complaint, either
by him/herself or through a representative.


Sec. 38.71 Where may a complaint be filed?

A complainant may file a complaint with either the recipient or the
Director. Complaints filed with the Director should be sent to the
address listed in the notice in Sec. 38.30.


Sec. 38.72 When must a complaint be filed?

Generally, a complaint must be filed within 180 days of the alleged
discrimination. 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. 38.73 What information must a complaint contain?

Each complaint must be filed in writing, and must contain the
following information:
(a) The complainant's name and 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 violate any of the
nondiscrimination and equal opportunity provisions of WIOA or this
part; and
(d) The complainant's signature or the signature of the
complainant's authorized representative.


Sec. 38.74 Are there any forms that a complainant may use to file a
complaint?

Yes. 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 at the address listed in the notice contained in Sec. 38.30.


Sec. 38.75 Is there a right of representation in the complaint
process?

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


Sec. 38.76 What are the required elements of a recipient's
discrimination complaint processing procedures?

(a) The procedures that a recipient adopts and publishes must
provide that the recipient will issue a written Notice of Final Action
on discrimination 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;
(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 he or she 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) The choice whether to use ADR or the customary process rests
with the complainant;
(2) A party to any agreement reached under ADR may file a complaint
with the Director in the event the agreement is breached. In such
circumstances, the following rules will apply:
(i) The non-breaching party may file a complaint 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 he or she determines that
the agreement has been breached, the complainant may file a complaint
with CRC based upon his/her original allegation(s), and the Director
will waive the time deadline for filing such a complaint.
(3) If the parties do not reach an agreement under ADR, the
complainant may file a complaint with the Director as described in
Sec. Sec. 38.71 through 38.74.


Sec. 38.77 Who is responsible for developing and publishing complaint
processing procedures for service providers?

The Governor or the LWIOA grant recipient, as provided in the
State's Methods of Administration, must develop and publish, on behalf
of its service providers, the complaint processing procedures required
in Sec. 38.76. The service providers must then follow those
procedures.

[[Page 43895]]

Sec. 38.78 Does a recipient have any special obligations in cases in
which the recipient determines that it has no jurisdiction over a
complaint?

Yes. If a recipient determines that it does not have jurisdiction
over a complaint, it must notify the complainant, in writing,
immediately. 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. 38.79 If, before the 90-day period has expired, a recipient
issues a Notice of Final Action with which the complainant is
dissatisfied, how long does the complainant have to file a complaint
with the Director?

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


Sec. 38.80 What happens if a recipient fails to issue a Notice of
Final Action within 90 days of the date on which a complaint was filed?

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 his/her 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. 38.81 Are there any circumstances under which the Director may
extend the time limit for filing a complaint with him or her?

(a) Yes. The Director may extend the 30-day time limit:
(1) If the 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. 38.76(b)(5)(ii); 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. 38.82 Does the Director accept every complaint for resolution?

No. The Director must determine 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. 38.83 What happens if a complaint does not contain enough
information?

(a) If a complaint does not contain enough information, 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, he or she must
send written notice to the complainant's last known address.


Sec. 38.84 What happens if CRC does not have jurisdiction over a
complaint?

If CRC does not have jurisdiction over a complaint, the Director
must:
(a) Notify the complainant 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. 38.85 Are there any other circumstances in which the Director
will send a complaint to another authority?

Yes. 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. 38.86 What must the Director do if he or she determines that a
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
his/her reasons for making that determination.


Sec. 38.87 What must the Director do if he or she determines that a
complaint will be accepted?

If the Director accepts the complaint for resolution, he or she
must notify 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. 38.88 Who may contact CRC about a complaint?

Both the complainant and the respondent, or their authorized
representatives, may contact CRC for information about the complaint.
The Director will determine what

[[Page 43896]]

information, if any, about the complaint will be released.


Sec. 38.89 May the Director offer the parties to a complaint the
option of mediation?

Yes. The Director may offer the parties to a complaint the option
of mediating the complaint. In such circumstances, the following rules
apply:
(a) Mediation is voluntary; the parties must consent before the
mediation process will proceed.
(b) The mediation will be conducted under guidance issued by the
Director.
(c) If the parties are unable to reach resolution of the complaint
through mediation, CRC will investigate and process the complaint under
Sec. Sec. 38.82 through 38.88.

Determinations


Sec. 38.90 If a complaint is investigated, what must the Director do
when the investigation is completed?

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
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.


Sec. 38.91 What notice must the Director issue if he or she finds
reasonable cause 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, he or she 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. 38.94;
(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. 38.95 and 38.96; and
(e) The opportunity to engage in voluntary compliance negotiations.


Sec. 38.92 What notice must the Director issue if he or she finds no
reasonable cause 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, he or she must issue a Final
Determination under Sec. 38.100. The Final Determination represents
the Department's final agency action on the complaint.


Sec. 38.93 What happens if the Director finds that a violation has
taken place, and the recipient fails or refuses to take the corrective
action listed in the Initial Determination?

Under such circumstances, the Department must take the actions
described in Sec. 38.99.


Sec. 38.94 What corrective or remedial actions may be imposed where,
after a compliance review or complaint investigation, the Director
finds a violation of the nondiscrimination and equal opportunity
provisions of WIOA or this part?

(a) A Letter of Findings, Notice to Show Cause, or Initial
Determination, issued under Sec. 38.62 or Sec. Sec. 38.63, 38.66, and
38.67, or Sec. 38.91 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. 38.95 What procedures apply if the Director finds that a
recipient has violated the nondiscrimination and equal opportunity
provisions of WIOA or this part?

(a) Violations at 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, he or
she must notify the Governor through the issuance of a Letter of
Findings, Notice to Show Cause or Initial Determination, as
appropriate, under Sec. 38.62 or Sec. Sec. 38.63, 38.66, and 38.67,
or Sec. 38.91, 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
and/or Conciliation Agreement, under paragraph (d) of this section.
(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. 38.62 or Sec. Sec.
38.63, 38.66, and 38.67, or Sec. 38.91, respectively.
(1) Such issuance must:
(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. 38.96;
(B) Entering into a written Conciliation Agreement under Sec.
38.97; or
(C) Both.
(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. 38.96;
(ii) A copy of the Conciliation Agreement, as described in Sec.
38.97; or
(iii) Both.
(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

[[Page 43897]]

applicable requirements provided in Sec. 38.96 or Sec. 38.97.
(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, he or she 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. 38.62 or Sec. Sec.
38.63, 38.66, and 38.67, or Sec. 38.91, 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 and/or Conciliation Agreement under
Sec. 38.96 or Sec. 38.97, as applicable.


Sec. 38.96 What are the required elements of a written assurance?

A written assurance must provide documentation that the violations
listed in the Letter of Findings, Notice to Show Cause or Initial
Determination, as applicable, have been corrected.


Sec. 38.97 What are the required elements of a Conciliation
Agreement?

A Conciliation Agreement must:
(a) Be in writing;
(b) Address each cited violation;
(c) Specify the corrective or remedial action to be taken within a
stated period of time to come into compliance;
(d) Provide for periodic reporting on the status of the corrective
and remedial action;
(e) Provide that the violation(s) will not recur; and
(f) Provide for enforcement for a breach of the agreement.


Sec. 38.98 When will the Director conclude that compliance cannot be
secured by voluntary means?

The Director will conclude that compliance cannot be secured by
voluntary means under the following circumstances:
(a) The grant applicant or recipient fails 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. 38.95(b)(1)(ii), and he
or she either:
(1) Has not been notified, under Sec. 38.95(b)(3), that the grant
applicant or recipient has agreed to voluntary compliance;
(2) Has disapproved a written assurance or Conciliation Agreement,
under Sec. 38.95(b)(4); or
(3) Has received notice from the Governor, under Sec. 38.95(b)(2),
that the grant applicant or recipient will not comply voluntarily.


Sec. 38.99 If the Director concludes that compliance cannot be
secured by voluntary means, what actions must he or she take?

If the Director concludes that compliance cannot be secured by
voluntary means, he or she 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. 38.100 What information must a Final Determination contain?

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 funds may be terminated, discontinued,
or withheld in whole or in part, or its application for such funds 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 38.115; and
(h) A determination of the Governor's liability, if any, under
Sec. 38.52.


Sec. 38.101 Whom must the Director notify of a 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. 38.102 What happens if a grant applicant or recipient breaches a
Conciliation Agreement?

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.


Sec. 38.103 Whom must the Director notify about a breach of a
Conciliation Agreement?

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. 38.104 What information must a Notification of Breach of
Conciliation Agreement contain?

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. 38.105 Whom must the Director notify if enforcement action under
a Notification of Breach of Conciliation Agreement is commenced?

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

[[Page 43898]]

Subpart E--Federal Procedures for Effecting Compliance


Sec. 38.110 What enforcement procedures does the Department follow to
effect compliance with the nondiscrimination and equal opportunity
provisions of WIOA and this part?

(a) Sanctions; judicial enforcement. If compliance has not been
achieved after issuance of a Final Determination under Sec. Sec. 38.99
and 38.100, or a Notification of Breach of Conciliation Agreement under
Sec. Sec. 38.102 through 38.105, 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.
(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 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 What hearing procedures does the Department follow?

(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
Division, Room N-2464, 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. See Sec.
38.112(b)(3).
(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 Uniform Rules of Evidence issued by the
Department of Labor's Office of Administrative Law Judges, 29 CFR part
18.


Sec. 38.112 What procedures for initial and final decisions does the
Department follow?

(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 Secretary unless exceptions are filed by a party or, in the absence
of exceptions, the Secretary serves notice that he or she will review
the decision.
(i) A party dissatisfied with the initial decision and order may,
within 45 days of receipt, file with the Secretary 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
Secretary within three days of such receipt.
(iii) A party filing exceptions must specifically identify the
finding or conclusion to which exception is taken. Any exception not
specifically urged is waived.
(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 Secretary no later than 3 days before the
exceptions or replies are due.
(vi) If no exceptions are filed, the Secretary may, within 30 days
of the expiration of the time for filing exceptions, on his or her own
motion serve notice on the parties that the Secretary 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 of the Secretary unless the
Secretary, within 30 days of the expiration of the time for filing
exceptions and replies, has

[[Page 43899]]

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 of the Secretary unless the Secretary has served notice on the
parties that he or she will review the decision, as provided in
paragraph (b)(1)(vi) of this section.
(viii) Any case reviewed by the Secretary under this paragraph (b)
must be decided within 180 days of the notification of such review. If
the Secretary 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 of the Secretary.
(2) Final Decision where a hearing is waived.
(i) If, after issuance of a Final Determination under Sec. 38.100
or Notification of Breach of Conciliation Agreement under Sec. 38.104,
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 of the
Secretary.
(ii) When a Final Determination or Notification of Breach of
Conciliation Agreement becomes the Final Decision of the Secretary, the
Secretary 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 referring the
matter to the Attorney General for further enforcement action.
(3) Final agency action. A Final Decision and Order issued under
paragraph (b) of this section constitutes final agency action.


Sec. 38.113 What procedure does the Department follow to suspend,
terminate, withhold, deny or discontinue WIOA Title I 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.
38.100 or Notification of Breach of Conciliation Agreement under Sec.
38.104;
(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 Secretary, the
Administrative Law Judge's decision and order has become the Final
Decision of the Secretary, or the Final Determination or Notification
of Conciliation Agreement has been deemed the Final Decision of the
Secretary, 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 What procedure does the Department follow to distribute
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 What procedures does the Department follow for 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. 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 Secretary, 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 Division.
(4) The Director may file a response to the petition within 14
days.
(5) The Secretary must issue the final agency decision denying or
granting the recipient's or grant applicant's request for restoration
to eligibility.

[FR Doc. 2015-17637 Filed 7-22-15; 8:45 am]
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