Citations Reported in WIA Section 188 Disability Checklist
Title II- Sect. 188
These provisions have been modeled upon the ADA Title II regulations in order to ensure that requirements under Section 188 of WIA follow generally the requirements of ADA Title II. Many recipients of WIA Title I financial assistance are also subject to the requirements of Title II, which applies to public entities including State and local governments and their departments, agencies, and instrumentalities. See 42 U.S.C. 12131. Modeling the WIA regulations on the ADA Title II regulations ensures that these recipients are subject to similar obligations and responsibilities under both laws.
[Federal Register: August 25, 2000 (Volume 65, Number 166)]
[[Page 51984]]
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Office of the Secretary
State Guidance for Developing Methods of Administration (MOA)
Required by Regulations Implementing Section 188 of the Workforce
Investment Act of 1998 (WIA)
AGENCY: Office of the Secretary.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The purpose of this notice is to provide interested parties
with the final approved Guidance for use by States in submitting their
Methods of Administration as required by 29 CFR part 37. That part
implements the nondiscrimination and equal opportunity provisions of
the Workforce Investment Act of 1998.
FOR FURTHER INFORMATION CONTACT: Ms. Annabelle T. Lockhart, Director,
Civil Rights Center, U.S. Department of Labor, 200 Constitution Ave.,
N.W., Room N-4123 FPB, Washington, DC 20210, telephone number (202)
219-8927 (voice)(this is not a toll-free number), or (800) 326-2577
(TTY/TDD).
SUPPLEMENTARY INFORMATION: The Workforce Investment Act of 1998 (WIA),
Public Law 105-220 (August 7, 1998), provides the framework for a
reformed national workforce preparation and employment system designed
to meet the needs of the nation's employers, its job seekers, and those
who want to further their careers. While WIA makes many programmatic
changes in the workforce development system authorized under the Job
Training Partnership Act of 1982 (JTPA), one constant has been the
prohibition against discrimination. The nondiscrimination and equal
opportunity provisions of JTPA (section 167) prohibit discrimination
against applicants, beneficiaries and employees on the bases of race,
color, national origin, age, disability, sex, religion, and political
affiliation or belief. Further, section 167 prohibits discrimination
against beneficiaries on the bases of citizenship and participation in
JTPA. The nondiscrimination and equal opportunity provisions of WIA
(section 188) prohibit discrimination against applicants, beneficiaries
and employees on the same bases.
Methods of Administration (MOA), designed to assure the Secretary
of Labor that State programs financially assisted by the Department
operate in a nondiscriminatory manner, have been required of States
since 1984. This requirement was codified when, on January 15, 1993,
the Department of Labor issued 29 CFR part 34, the regulations that
implement section 167 of JTPA. (See 29 CFR 34.33.)
Section 188(e) of WIA requires the Secretary to issue regulations
implementing section 188. An interim final rule implementing that
section was published on November 12, 1999, at 29 CFR part 37. As with
part 34, part 37 includes the requirement that States develop,
implement and maintain, for each of their State programs, an MOA. (See
29 CFR 37.54 and 37.55.) The MOA standards contained in part 37 are
substantially the same as those contained in part 34. States that have
faithfully implemented and maintained their MOAs under JTPA will find
that the time and effort needed to update their MOA to meet WIA
requirements will be minimal.
Signed at Washington, D. C., this 21st day of August, 2000.
Alexis M. Herman,
Secretary of Labor.
ATTACHMENT: State Guidance for Developing Methods of Administration
(MOA) Required by Regulations Implementing Section 188 of the
Workforce Investment Act of 1998 (WIA)
OMB Control No. 1225-0077
Expires January 31, 2003
The regulations that implement the nondiscrimination and equal
opportunity provisions of the Workforce Investment Act of 1998 (WIA),
published at 29 CFR part 37, require that each Governor establish and
adhere to a Methods of Administration (MOA) for his/her State programs.
This document provides Guidance for Governors and States in meeting the
regulatory requirements regarding MOAs.
An MOA is a document that describes the actions an individual State
will take to ensure that its WIA Title I-financially assisted programs,
activities, and recipients are complying, and will continue to comply,
with the nondiscrimination and equal opportunity requirements of WIA
and its implementing regulations. States were first required to prepare
and submit MOAs in 1984, under the Job Training Partnership Act (JTPA).
The requirement was continued in 1993, under the regulations
implementing the nondiscrimination and equal opportunity provisions of
JTPA. The JTPA MOA requirements were set forth in 29 CFR 34.33. The
form and content of the MOAs required under 29 CFR part 37 remain
substantially the same as those of the MOAs required under JTPA.
Title 29 CFR 37.54(a) provides that each Governor must establish
and maintain an MOA for State programs. 29 CFR 37.54(d) describes the
required elements of an MOA. Finally, 29 CFR 37.55 addresses
requirements related to submitting and updating the MOA.
By submitting an MOA, the Governor agrees to fully follow its
provisions. Failure to do so may result in a finding of noncompliance.
See 29 CFR 37.65(a).
This Guidance specifically discusses the requirements of 29 CFR
37.54(b) and 37.55, and is intended to explain, not to add to, the
requirements contained in those regulatory provisions. The Guidance is
based upon materials the Civil Rights Center (CRC) prepared in 1993 to
train Equal Opportunity (EO) Officers regarding the requirements of
MOAs under JTPA. This Guidance does not create new legal requirements
or change current legal requirements. Instead, it reflects the view of
CRC and is intended to serve as a basic resource document on CRC-
administered laws. The legal requirements related to nondiscrimination
and equal opportunity that apply to recipients of financial assistance
under WIA are contained in the statutes and regulations cited in this
Guidance. Every effort has been made to ensure that the information
contained in the Guidance is accurate and up to date.
I. Guidance on Meeting the Requirements of 29 CFR 37.54(b) Section
37.54(b) Requires That Each MOA Shall be:
{time} In writing, addressing each requirement of 29 CFR 37.54(d) with
narrative and documentation;
{time} Reviewed and updated as required by 29 CFR 37.55; and
{time} Signed by the Governor.
The MOA should be organized in the nine elements listed below, with
both a narrative and a documention section for each element.
Section A. Narrative
The first section of each element should be a narrative description
of how the State and its recipients, as that term is defined in 29 CFR
37.4, are meeting and will continue to meet the requirements of part
37. The narrative should be specific. CRC regards the narrative as the
more important section, since it contains the description of what the
State and its recipients are doing and will continue to do to fulfill
their obligations under WIA section 188 and 29 CFR part 37.
Section B. Documentation
The second section of each element should include documentation
that shows how the State is carrying out that element of the MOA. When
reviewing the adequacy of and/or performance under an MOA, CRC may request
additional supporting documentation pursuant to 29 CFR 37.65.
[[Page 51985]]
Element 1. Designation of State-and local-level Equal Opportunity (EO)
Officers (29 CFR 37.54(d)(1)(ii))
In this element, the State should address how it and its recipients
are complying and will continue to comply with the requirements of 29
CFR 37.23 through 37.28. The intent of this section is to ensure that
any individual the recipient appoints as EO Officer has the education,
training and experience, and is provided the necessary ongoing training
and qualified staff, to perform his or her duties assigned under 29 CFR
part 37. Additionally, the EO Officer should not be in a position that
would constitute, or appear to constitute, a conflict of interest.
Further, the State should ensure that he or she reports, on EO matters,
directly to the appropriate official in the organization (see 29 CFR
37.25(e). In summary, any individual appointed as EO Officer should
have the skill, ability, knowledge and authority to properly oversee
and direct the EO program to which that individual has been assigned.
(a) The narrative section of this element should identify, at a
minimum:
{time} Each individual designated as a State-level Equal Opportunity
Officer and each individual designated as a local-level Equal
Opportunity Officer, by name, position title, business address
(including e-mail address if applicable) and telephone number
(including TDD/TTY number). (See 29 CFR 37.23.)
{time} The level within the organization (described in such terms as
the individual's authority and position relative to the top of the
hierarchy) occupied by the EO Officer(s). (See 29 CFR 37.24.)
{time} The duties of the EO Officer(s), and the manner in which those
duties are carried out. (At a minimum, duties assigned to the EO
Officer must include those listed in 29 CFR 37.25.) Describe both the
EO duties, responsibilities and activities associated with the
implementation of 29 CFR part 37, and all other duties,
responsibilities and activities.
Note: The EO Officer may not be assigned duties,
responsibilities or activities that would constitute a conflict of
interest or the appearance of such a conflict; see 29 CFR 37.24.)
{time} The manner in which the recipient makes the identity of the EO
Officer(s) known to applicants, registrants, eligible applicants/
registrants, participants, employees, and applicants for employment, as
well as interested members of the public. (See 29 CFR 37.26.)
{time} The level of staff and other resources available to State- and
local-level EO Officer(s) to ensure that WIA Title I-financially
assisted programs and activities operate in a nondiscriminatory way.
(See 29 CFR 37.26(c).)
{time} The State's plan for ensuring that State- and local-level EO
Officers and their staffs are sufficiently trained to maintain
competency. (See 29 CFR 37.26(d).)
{time} The identity, by name, title and organization, of the
individual to whom each State- and local-level EO Officer reports on
equal opportunity matters.
{time} A description of the professional and support staffing levels
and resources provided to each State- and local-level EO Officer to
assist him or her in ensuring compliance with WIA section 188 and part
37.
{time} The type and level of training each State- and local-level EO
Officer has received and will receive to ensure that he or she is
capable of fulfilling his or her responsibilities as an EO Officer.
{time} The means by which the State makes public the names, position
titles and telephone numbers (including TDD/TTY numbers) of each State-
and local-level EO Officer.
{time} A description of any duties, other than WIA equal opportunity
responsibilities, assigned to each State- and local-level EO Officer.
(b) Documentation for this element to be submitted as part of the
MOA should include, but need not be limited to:
{time} Examples of each document (e.g., notices, directives,
memoranda, letters to community groups, flyers, and relevant pages of
handbooks and manuals) that communicates, either internally or
externally, the EO Officer's name and other required information to
registrants, applicants, eligible applicants/registrants, participants,
applicants for employment, employees, and interested members of the
public.
{time} Examples of each communication (e.g., directives) that
instructs the State's recipients as to the actions they are to take to
comply with 29 CFR 37.23 through 28 with regard to EO Officers.
{time} A copy of the State EO Officer's position description, showing
those duties specifically related to WIA equal opportunity activities,
and other duties.
{time} A representative sample of local-level EO Officer position
descriptions. NOTE: If a single, standard position description has been
adopted for all local-level EO Officers, then a single copy of that
description is sufficient.
{time} Copies of organization chart(s) showing the organizational
location of each EO Officer.
{time} The identity of any staff who perform duties that support WIA
EO activities (e.g., clerical, data analysis), a position description
for each such staff member, and average hours per week spent on EO-
related activities by each such staff member (if positions are not
devoted to WIA equal opportunity activities on a full-time basis).
{time} EO budget and source of funds.
{time} Summary of EO-related training that staff (EO staff and others)
have received and a schedule of EO training to be delivered in the
future. This may be training delivered by the State- or local-level EO
Officer to recipient staff, or training delivered to EO Officers or
recipient staff by outside sources, such as CRC.
Element 2. Notice and Communication (29 CFR 37.54(d)(1)(iii))
In this element, the State should address how it and its recipients
are complying and will continue to comply with the requirements of 29
CFR 37.29 through 37.36. States should ensure the establishment of a
notice and communication system that makes all registrants, applicants,
eligible applicants/registrants, applicants for employment, employees
and interested members of the public aware of both the recipient's
obligation to operate its programs and activities in a
nondiscriminatory manner, and the extent of the rights of members of
these groups to file complaints of discrimination.
(a) The narrative section of this element should describe, at a
minimum:
{time} The methods and frequency of dissemination of the notice,
including initial dissemination. (See 29 CFR 37.29.)
{time} The means by which the notice is made available to individuals
with disabilities. (See 29 CFR 37.31(b).)
{time} The means by which the State ensures that recipients post the
notice. (See 29 CFR 37.33.)
{time} The means by which a copy of the notice is placed in the
participant's file (see 29 CFR 37.31(a)), or where
[[Page 51986]]
the files are maintained electronically, how the requirement of
37.31(a) is and will continue to be met.
{time} The means by which the State ensures that recruitment brochures
and other materials routinely made available to the public include the
statements ``equal opportunity employer/program'' and ``auxiliary aids
and services are available upon request to individuals with
disabilities.'' (See 29 CFR 37.34(a).)
{time} Where a telephone number is included on recruitment brochures
and other materials, the means by which the State ensures that the
materials indicate a TDD/TTY number or provide for an equally effective
means of communication with individuals with hearing impairments. (See
29 CFR 37.34(a).)
{time} The means by which program-related information is published or
broadcast in the news media (e.g., publication of Requests for
Proposal) and the means by which the State ensures that publications/
broadcasts state that the program is an equal opportunity employer/
program and that auxiliary aids and services are available upon request
to individuals with disabilities. (See 29 CFR 37.34(b).)
{time} The manner in which and extent to which information in
languages other than English is provided, and the manner in which the
State ensures that persons of limited English-speaking ability have
access to its programs and activities on a basis equal to that of those
who are proficient in English. (See 29 CFR 37.35.)
{time} The manner in which and extent to which orientations for
registrants, applicants, eligible applicants/registrants, employees,
applicants for employment, and members of the public include a
discussion of the rights of such persons under WIA section 188 and 29
CFR part 37. (See 29 CFR 37.36.)
{time} The steps taken to ensure that communications with individuals
with disabilities are as effective as communications with others. (See
29 CFR 37.29(b).)
{time} The process the State has used and will continue using to
develop and communicate policy and conduct training regarding
nondiscrimination and equal opportunity. (See 29 CFR 37.25(c), and
37.54(d)(2)(iii), and 37.54(d)(2)(vi).)
(b) Documentation for this element to be submitted as part of the
MOA should include, but need not be limited to:
{time} A copy of each communication that instructs the State's
recipients on how they are to comply with the requirements of 37.29
through 37.36 regarding notice and communication.
{time} A copy of the posted notice required by 29 CFR 37.29 and 37.30.
{time} A copy of any checklist of the contents of participant and
employee files, indicating that the notice requirement has been met.
(See 29 CFR 37.31(a)(4).)
{time} A copy of any orientation agendas that include, as an agenda
item, a discussion of equal opportunity and nondiscrimination under WIA
section 188 and 29 CFR part 37. (See 29 CFR 37.36.)
{time} A copy of each item of material, distributed at orientation
sessions, that addresses the rights of individuals under WIA section
188 and 27 CFR part 37. (See 29 CFR 37.36.)
{time} Copies of agendas (and a list of dates) of past and proposed EO
policy briefings and EO training. (See 29 CFR 37.25(f), 37.26(d) and 29
CFR 37.54(d)(2)(vi).)
{time} A copy of each policy issuance or instruction that relates to
WIA section 188 or 29 CFR part 37. (See 29 CFR 37.25(c), 37.54(d)(iii),
29 CFR 54(d)(vi) and 37.54(d)(viii).)
{time} A copy of each recruitment brochure and other item of material
distributed to the public by a WIA Title I-financially assisted
recipient, showing that each includes:
{time} The statements ``equal opportunity employer/program'' and
``auxiliary aids and services are available upon request to individuals
with disabilities''; and
{time} The telephone numbers for TDD/TTY access and/or telephone relay
services. (See 29 CFR 37.34(a).)
[page 51986-Element 3]
Element 3. Review assurances, job training plans, contracts, and
policies and procedures (29 CFR 37.54(d)(1)(i) and (d)(2)(i), (iii) and
(iv))
In this element, the State should address how it and its recipients
are complying and will continue to comply with the requirements of 29
CFR 37.20 and 37.54(d)(1)(i) and (d)(2)(i), (iii) and (iv) regarding
the review of assurances, job training plans, contracts, and policies
and procedures. Additionally, this element should address the
procedures the State and its recipients are following and will continue
to follow in assessing the ability of grant applicants, if funded, or
training providers, if declared eligible, to comply with WIA section
188 and 29 CFR part 37.
(a) The narrative section of this element should describe, at a
minimum, how the State ensures that:
{time} Each grant applicant, and each training provider seeking
eligibility, includes in its application for financial assistance under
Title I of WIA the required EO assurance. (See 29 CFR 37.20(a)(1).)
{time} The required assurance is incorporated into each grant,
cooperative agreement, contract, or other arrangement whereby Federal
financial assistance under Title I of WIA is made available. (See 29
CFR 37.20(a)(2).) NOTE: 29 CFR 37.20(a)(2) provides that the assurance
may be incorporated by reference into these documents.
{time} Each grant applicant, and each training provider seeking
eligibility, is able to provide programmatic and architectural
accessibility for individuals with disabilities. (See subpart C of 29
CFR part 32.)
{time} Job training plans, contracts, assurances, and other similar
agreements entered into by recipients are both nondiscriminatory and
contain the required language regarding nondiscrimination and equal
opportunity. (See 29 CFR 37.54(b)(2)(iv).)
{time} State- and local-level policy issuances, or issuances from
other recipients, are not discriminatory either in intent or effect.
(See 29 CFR 37.54(d)(2)(iii).)
{time} Policies on WIA Title I nondiscrimination and/or equal
opportunity issues are developed and implemented in a timely manner.
(b) Documentation for this element to be submitted as part of the
MOA should include, but need not be limited to:
{time} A copy of each directive that instructs individuals at the
State and/or local level who are responsible for reviewing assurances,
job training plans, contracts, and policies and procedures as to the
requirements of, and their duties under, 29 CFR 37.20, 37.54(d)(1)(i),
and (d)(2)(i), (iii) and (iv).
{time} Copies of assurance pages of plans, contracts, and other
agreements.
{time} Copies of memos or directives to contract managers advising
them to include the required assurance in the appropriate documents.
{time} Copies of checklists or other guidelines used by contract
specialists, attorneys, or others who review contracts and agreements
that indicate that nondiscrimination
[[Page 51987]]
and equal opportunity are considered in the evaluation of such
documents.
{time} A copy of procedures developed to review the ability of grant
applicants, and training providers seeking eligibility, to comply with
the nondiscrimination and equal opportunity provisions of WIA and 29
CFR part 37.
{time} A copy of each WIA EO issuance (e.g., the general EO policy
statement, the policy statement on sexual harassment and the policy
statement on religious accommodation).
[Page 51987 Element 4]
Element 4. Universal Access (29 CFR 37.54(d)(1)(vi)
In this element, the State should address how it and its recipients
are complying and will continue to comply with the requirements of 29
CFR 37.42 relating to the provision of universal access to programs and
activities.
(a) The narrative section of this element should describe, at a
minimum, how:
{time} The State has communicated the obligation of recipients
(including, e.g., LWIAs, one-stop operators and service providers) to
make efforts (including outreach) to broaden the composition of the
pool of those considered for participation or employment in their
programs and activities in an effort to include members of both sexes,
of the various racial and ethnic groups and of various age groups, as
well as individuals with disabilities.
{time} Recipients have made and will continue to make efforts to
broaden the composition of those considered for participation or
employment in their programs and activities, as described above.
{time} The State monitors and evaluates the success of recipient
efforts to broaden the composition of those considered for
participation and employment in their programs and activities, as
described above.
(b) Documentation for this element to be submitted as part of the
MOA should include, but need not be limited to:
{time} Copies of targeting, outreach and recruitment plans.
{time} Criteria for determining priority of service.
{time} Copies of plans for One-Stop delivery systems to expand the
pool of those considered for participation or employment in their
programs and by race/ethnicity, sex, disability status, and age.
{time} Samples of brochures, posters, public-service announcements,
computer screens displaying related information, and other publicity
materials.
Element 5. Compliance with section 504 of the Rehabilitation Act of
1973, as amended and 29 CFR part 37 (29 CFR 37.54(d)(2)(v))
In this element, the State should address how it and its recipients
are complying and will continue to comply with the requirements of the
disability related requirements of WIA section 188; Section 504 of the
Rehabilitation Act of 1973, as amended; and their implementing
regulations, including but not limited to 29 CFR 37.7, 37.8, and 37.9
and Subparts B and C of 29 CFR Part 32.
(a) The narrative section of this element should describe, at a
minimum how the State ensures that recipients:
{time} Meet their obligation not to discriminate on the basis of
disability. (See 29 CFR 32.12 (a), 32.26, and 37.7.)
{time} Provide reasonable accommodation for individuals with
disabilities (See 29 CFR 32.13 and 29 CFR 37.8);
{time} Provide reasonable modification of policies, practices and
procedures, as required (See 29 CFR 37.8);
{time} Provide architectural accessibility for individuals with
disabilities (See 29 CFR 32.28); and
{time} Provide programmatic accessibility for persons with
disabilities (See 29 CFR 32.27).
{time} Provide for and adhere to a schedule to evaluate job
qualifications to ensure that the qualifications do not discriminate on
the basis of disability. (See 29 CFR 32.14.)
{time} Limit preemployment/employment medical inquiries to those
permitted by and in accordance with WIA section 188, Section 504, the
Americans with Disabilities Act of 1990, and their implementing
regulations. (See 29 CFR 32.15.)
{time} Ensure the confidentiality of medical information provided by
registrants, applicants, eligible applicants/registrants, participants,
employees, and applicants for employment. (See 29 CFR 32.15.)
{time} Administer their WIA Title I-financially assisted programs and
activities so that each individual with a disability participates in
the most integrated setting appropriate to that individual. (See 29 CFR
37.7(d).)
{time} Are able to communicate with persons with disabilities as
effectively as with others. (See 29 CFR 37.9.)
(b) Documentation for this element to be submitted as part of the
MOA should include, but need not be limited to:
{time} Copies of policies/procedures issued by the State or any of its
WIA Title I recipients, such as:
{time} The procedures by which persons with disabilities are assured
of participation in programs and activities in as integrated setting as
possible;
{time} The procedures by which the availability of reasonable
accommodation and reasonable modification are made known to persons
with disabilities, and the procedures for making and resolving such
requests;
{time} The procedures by which the State ensures that communication
with persons with disabilities is as effective as communication with
others; and
{time} The procedures by which the State ensures that the programs and
activities operated by its WIA Title I recipients are architecturally
and programmatically accessible to individuals with disabilities.
{time} Any evaluation conducted to determine the programmatic or
architectural accessibility of a WIA Title I-financially assisted
program or activity and the status of any corrective actions taken by
the recipient involved.
{time} Copies of publications and agendas for any training conducted
for recipient staff that is intended to raise awareness of disability
issues.
Element 6. Data and Information Collection and Maintenance (29 CFR
37.54(d)(1)(iv) and (vi))
In this element, the State should address how it and its recipients
are complying and will continue to comply with the requirements of 29
CFR 37.37 through 37.41 related to data and information collection and
maintenance. The State must ensure that a data and information
collection and maintenance system for its WIA Title I-financially
assisted State programs is established and maintained. (See 29 CFR
37.53.)
The most important purposes of the equal opportunity data and
information collection and maintenance system required by 29 CFR part
37 are to assist CRC and those assigned by the State (e.g., State- and/
or local-level EO Officers) in:
{time} Monitoring recipient equal opportunity performance;
{time} Identifying instances or areas of discrimination; and
{time} Identifying individuals or groups of individuals who have been
[[Page 51988]]
discriminated against on a basis prohibited by WIA section 188 and 29
CFR part 37.
A vital element of any system designed to fulfill these purposes is
a way to permit the reviewer to correlate aggregate data to individual
records. For example, 29 CFR part 37 requires that recipient's collect
four pieces of demographic information about each registrant,
applicant, eligible applicant, participant, employee, and applicant for
employment: Race/ethnicity, sex, age, and disability status. This
information must be kept separate from the recipient's individual
records about such persons. However, the system for data and
information collection and maintenance must be designed in such a way
to allow cross referencing of data to individual records.
It is CRC's policy that existing systems for data and information
collection and maintenance that meet all the requirements of 29 CFR
37.37 through 37.41 are acceptable. These systems may be designed by
the recipient or some other entity. However, to the extent that a
system does not meet all the requirements of these regulatory sections,
that system must be modified so that it does meet those requirements.
(a) The narrative section of this element should describe, at a
minimum, how the State ensures that:
{time} Recipients:
{time} Collect and maintain records on applicants, registrants,
eligible applicants/registrants, participants, terminees, employees,
and applicants for employment;
{time} Record the race/ethnicity, sex, age and, disability status of
each applicant, registrant, eligible applicant/registrant, participant,
terminee, employee, and applicant for employment (See 29 CFR
37.37(b)(2).);
{time} Treat records, particularly those containing medical
information, in a manner that ensures their confidentiality (See 29 CFR
32.15; 29 CFR 37.37(b)(2); and 29 CFR 37.41.);
{time} Maintain a log of complaints filed that allege discrimination
on one or more of the bases prohibited by WIA section 188 (See 29 CFR
37.37(c).); and
{time} Maintain such records for a period of three years. (See 29 CFR
37.39.)
{time} Grant applicants and recipients notify the CRC Director of
administrative enforcement actions and lawsuits brought against them
that allege discrimination on one or more of the bases prohibited by
WIA section 188. (See 29 CFR 37.37(a).)
(b) Documentation for this element to be submitted as part of the
MOA should include, but need not be limited to, copies of:
{time} Instructions to recipients within the State regarding
information collection, access to records, and maintenance of records.
(See 29 CFR 37.37.)
{time} Samples of each policy issuance that discusses ensuring the
confidentiality of demographic information regarding individuals.
{time} Samples of reports regarding the above demographic information.
{time} Samples of formats and instructions, in hard copy and
electronic file forms, for complaint logs used by the State and its
recipients to track complaints that allege a violation of WIA section
188 or 29 CFR part 37.
Element 7. Monitor Recipients for Compliance (29 CFR 37.54(d)(2)(ii))
In this element, the State should address how it and its recipients
are complying and will continue to comply with the requirements of 29
CFR 37.54(d)(1)(iii). The State is required to establish procedures to
monitor periodically all aspects of the recipient's compliance with WIA
section 188 and 29 CFR part 37.
Each EO monitoring review must include a review of each
recipient's:
{time} Compliance with its administrative obligations under WIA
section 188 and 29 CFR part 37 (e.g., assurances, notice and
communication, EO Officers);
{time} Compliance with responsibilities it has been assigned through
the MOA;
{time} Programs and activities, to determine whether discrimination is
occurring. This activity is the most important part of the monitoring
review.
Monitoring recipients to ensure their programs and activities are
operating in a nondiscriminatory manner must involve, at a minimum:
(1) Analysis of the data and records collected by the recipient
pursuant to 29 CFR 37.37 through 41, to determine whether any
differences based upon race/ethnicity or sex have practical or
statistical significance; and
(2) Where significant differences are found, follow-up
investigations to determine, through records review, interviews, and
other appropriate investigative techniques, whether the differences are
due to discrimination.
The analyses mentioned in section (1) above may include those that
may reveal practical significance, such as the ``80% rule'' (see 41 CFR
60-3, the DOL regulation regarding the Uniform Employee Selection
Guidelines), and those that reveal statistical significance, such as
the two-standard deviation test.
(a) The narrative section of this element must describe, at a
minimum, the system for evaluating the extent to which recipients are:
{time} Complying with the administrative obligations of 29 CFR part
37, including, but not limited to:
{time} Assurances. (See 29 CFR 37.20 through 37.22.)
{time} Equal Opportunity Officers. (See 29 CFR 37.23 through 37.28.)
{time} Notice and communication. (See 29 CFR 37.29 through 37.36.)
{time} Data and information collection and maintenance. (See 29 CFR
37.37 through 37.41.)
{time} Universal access. (See 29 CFR 37.42.)
{time} Complaint processing procedures. (See 29 CFR 37.70 through
37.80.)
{time} Performing the responsibilities assigned such recipients by the
State through the MOA, such as:
{time} Conducting equal opportunity monitoring/evaluation reviews of
applicants for and recipients of WIA Title I financial assistance
(including monitoring assurances and programmatic and architectural
accessibility).
{time} Imposing sanctions and corrective actions for violations noted
by a recipient during its monitoring reviews.
{time} Ensuring policy development, communication, and training are
carried out.
{time} Ensuring that their programs and activities are operating in a
nondiscriminatory manner and ensuring equal opportunity, including but
not limited to:
{time} Conducting analyses, by race/ethnicity and sex, of program and
employment activity, including but not limited to rates of application,
placement, and termination, to determine if significant differences
exist, and
{time} Conducting follow-up monitoring to determine the cause of any
such differences, through the analysis of the records of individual
registrants, applicants, eligible applicants/registrants, employees and
applicants for employment; interviews; and other appropriate
techniques.
Additionally, the narrative should describe:
{time} The procedure for reviewing recipients' policies and
procedures, to ensure that the policies and procedures do not violate
the prohibitions contained in 29 CFR 37.5 through 37.10.
[[Page 51989]]
{time} The written reports prepared for each review. These reports
must provide, among other things, that the results of the monitoring
review will be made available to the recipient(s) reviewed.
{time} The involvement of the State- and local-level EO Officer(s) in
conducting reviews. Where EO monitoring is carried out by individuals
other than the State- or local-level EO Officer, the narrative should
provide the names, titles, and organizations of those persons.
{time} The procedure for determining which recipients are to be
reviewed, the frequency of reviews of recipients, and the number of
recipients to be reviewed per year.
(b) Documentation for this element to be submitted as part of the
MOA should include, but need not be limited to, copies of:
{time} Schedules of reviews and criteria for targeting recipients for
review.
{time} Monitoring instrument(s) used by State- and/or local-level
staff to monitor recipient EO activities.
{time} Policy issuances and procedural guidance regarding monitoring
reviews and recipient evaluations.
{time} A representative sample of reports of monitoring reviews,
including findings resulting from reviews and the status of follow-up
actions.
Element 8. Complaint Processing Procedures (29 CFR 37.54(d)(1)(v))
In this element, the State should address how it and its recipients
are complying and will continue to comply with the requirements of 29
CFR 37.76 through 37.79 regarding complaint processing procedures.
(a) The narrative section of this element should describe, at a
minimum, how the State ensures that:
{time} Recipients that are required to do so (see 29 CFR 37.77) have
developed and published complaint procedures. (See 29 CFR 37.76.) At a
minimum, such procedures must:
{time} Provide for the issuance of a written Notice of Final Action
within 90 days of the date on which the complaint is filed . (See 29 CFR
37.76(a).)
{time} Contain the elements listed in 29 CFR 37.76(b), which include:
{time} Initial, written notice to the complainant that contains an
acknowledgment that the recipient has received the complaint, and a
notice that the complainant has the right to be represented in the
complaint process (see 29 CFR 37.76(b)(1));
{time} A written statement, provided to the complainant, that contains
a list of the issues raised in the complaint and, for each issue, a
statement whether the recipient will accept the issue for investigation
or reject the issue, and the reasons for each rejection (see 29 CFR
37.76(b)(2));
{time} A period for fact-finding or investigation of the circumstances
underlying the complaint (see 29 CFR 37.76(b)(3));
{time} A period during which the recipient attempts to resolve the
complaint. The methods available to resolve the complaint must include
alternative dispute resolution (ADR) (see 29 CFR 37.76(b)(4) and (c));
and,
{time} A written Notice of Final Action, provided to the complainant
within 90 days of the date on which the complaint was filed , that
contains, for each issue raised in the complaint:
{time} Either a statement of the recipient's decision on the issue and
an explanation of the reasons underlying the decision, or a description
of the way the parties resolved the issue; and
{time} 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. (See 29 CFR 37.76(b)(5).)
{time} Describe the procedures to be followed if the complaint is filed
more than 180 days after the date of the alleged violation. (See
29 CFR 37.78.)
{time} Provide that, if the complainant is dissatisfied with the
outcome of the investigation, or if there is no final resolution of the
complaint within 90 days of the date the complaint is filed , the
complainant is notified that he or she may file his or her complaint
with the Civil Rights Center.
{time} Recipients follow the established procedures.
(b) Documentation for this element to be submitted as part of the
MOA should include, but need not be limited to, a copy of:
{time} The State's discrimination complaint procedures developed
pursuant to 29 CFR 37.76 through 37.79.
{time} The instrument (e.g., directive, memorandum) used to inform
recipients of the complaint procedures and directing recipients as to
their use.
{time} The ADR procedures, if not included with complaint processing
procedures.
Element 9. Corrective Actions/Sanctions (29 CFR 37.54(d)(2)(vii))
In this element, the State should address how it and its recipients
are complying and will continue to comply with the requirements of 29
CFR 37.54(d)(2)(vii).
(a) The narrative section of this element should describe, at a
minimum:
{time} The standard for corrective and remedial actions to be applied
when violations of WIA section 188 or 29 CFR part 37 are found.
Corrective and remedial actions must be designed to completely correct
each violation. For each corrective action, a time frame should be
established that sets the minimum time necessary to completely correct
the violation. In the case of a finding of discrimination, the
procedures must provide, where appropriate, for retroactive relief
(including but not limited to back pay) and prospective relief (e.g.,
training, policy development and communication) to ensure that the
discrimination does not recur.
{time} The procedures for follow-up monitoring to ensure that
commitments to take corrective action and remedial action are
fulfilled.
{time} Reports required from the violating recipient regarding actions
to correct the violation(s).
{time} Sanction procedures to be followed where voluntary compliance
cannot be achieved.
(b) Documentation for this element to be submitted as part of the
MOA should include, but need not be limited to:
{time} A copy of any policy memorandum/directive explaining corrective
actions/sanctions. The sanction procedures described in Subpart E of 29
CFR part 37 may be used as a model for States in the preparation of
their procedures.
{time} A copy of each instrument (e.g., directives, memoranda) used to
inform recipients of the State's procedures regarding corrective
actions and sanctions.
II. Guidance on Meeting the Requirements of 29 CFR 37.55
Section 37.55 requires that each State's MOA must be: Developed and
implemented, and a copy submitted to the CRC
Director within 180 days of the effective date of 29 CFR part 37, or
within 180 days of the Department of Labor's approval of that State's
Strategic Five-year Plan, whichever is later;
[[Page 51990]] Updated when necessary, and the Director notified of any
updates at the time of the update; and Reviewed every two years from
the date on which the initial
MOA is submitted to the Director under 29 CFR 37.55(a)(2); for each
such review, either the changes made to the MOA as a result of the
review, or a certification that no changes are necessary, must be
submitted to the Director.
Initial Submission of MOA
Title 29 CFR 37.55(a) requires that each Governor develop and
implement an MOA, and submit to the Director a copy of that State's
MOA, within 180 days after the State becomes subject to WIA section 188
and 29 CFR part 37. The date on which the 180-day clock begins running
is contingent upon the date upon which DOL gave final approval to the
State's Five-year Strategic Plan (Plan). MOAs of States whose Plan
received final approval on or before November 12, 1999, the effective
date of 29 CFR part 37 we due to be submitted to the Director within
180 days of that effective date, in other words, by May 10, 2000.
On the other hand, MOAs of States whose Plan received final
approval after November 12, 1999, must be submitted 180 days after the
date the Plan received final approval by DOL. For example, State A is
delaying its transition to WIA until July 1, 2000, and does not submit
its Plan to DOL until February 1, 2000. State A's Plan receives final
approval on May 1, 2000. Given this scenario, State A is required to
submit its MOA on or before the date that falls 180 days after May 1.
The final date for the submission of State A's MOA, therefore, is
October 28, 2000.
Note: The 180-day timeframe described above applies only to the
submission of the MOA. In general, States and their WIA Title I-
financially assisted recipients are subject to the requirements of
WIA section 188 and 29 CFR part 37 on November 12, 1999 or on the
date they begin operating WIA Title I programs and activities,
whichever is later. The provisions of JTPA section 167 and its
implementing regulations, 29 CFR part 34 continue to apply to
programs and activities that are implemented under and authorized by
JTPA.
Updating the MOA
Title 29 CFR 37.55(b) requires the Governor to (1) update the MOA
as necessary and (2) notify the Director of those updates. The
requirements regarding updating were not part of the JTPA MOA
regulations at 29 CFR 34.33. CRC deemed these new requirements
necessary as a result of reviews of MOAs developed under JPTA. Those
reviews indicated that the procedures to which a State originally
committed in its MOA were not necessarily those in effect at the time
of CRC's review. The purpose of an MOA is to describe to DOL how a
State will ensure that WIA Title I financial assistance will be
administered in a nondiscriminatory way. Further, the MOA is intended
to be a document that State-and local-level staff and management,
through the EO Officer, can consult when determining appropriate steps
to take when confronted with an EO issue. Therefore, the MOA should be
kept current and the Director notified of any changes.
State-level MOA Review
Title 29 CFR 37.55(c) requires that, every two years from the date
on which the initial MOA is submitted to the Director under 29 CFR
37.55(a)(2), the Governor must review the MOA and its implementation to
determine if any changes are necessary , either to the document or the
way in which it is implemented. At the time of the review, the Governor
must either (1) provide the Director with any changes that are made or
(2) certify to the Director, in writing, that no changes are necessary.
This requirement is also a change from the MOA requirements under JTPA.
It has been CRC's intent that the MOA be a living document, a guide
describing how the State will ensure that its WIA Title I-financially
assisted programs operate in a nondiscriminatory manner. Through these
modest regulatory changes, CRC hopes to convey that the MOA is to be a
document that serves as a guide in fulfilling the recipient's
obligations of nondiscrimination and equal opportunity.
[FR Doc. 00 -21740 Filed 8-24- 00 ; 8:45 am]
BILLING CODE 4510-23-P
[Federal Register: November 12, 1999 (Volume 64, Number 218)]
[[ Page 61692 ]]
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Office of the Secretary
29 CFR Part 37
RIN 1291-AA29
Implementation of the Nondiscrimination and Equal Opportunity
Provisions of the Workforce Investment Act of 1998
AGENCY: Office of the Secretary, Labor.
ACTION: Interim final rule; Request for comments.
-----------------------------------------------------------------------
SUMMARY: This Interim Final Rule implements Section 188 of the
Workforce Investment Act of 1998 (WIA), which contains the statute's
equal opportunity and nondiscrimination provisions. The Workforce
Investment Act supersedes the Job Training Partnership Act (JTPA) as
the Department of Labor's primary mechanism for providing financial
assistance for a comprehensive system of job training and placement
services for adults and eligible youth. With limited substantive
changes described in Section III of this preamble, this rule generally
carries over the policies and procedures found in 29 CFR part 34, which
implements the nondiscrimination and equal opportunity provisions of
JTPA. Section 188(e) of WIA mandates that the Department issue
regulations implementing the section within one year of the passage of
WIA.
DATES: Effective Date: This Interim Final Rule will become effective on
November 12, 1999.
Comment Period: Comments must be received on or before December 13,
1999.
ADDRESSES: Comments should be sent to Annabelle T. Lockhart, Director
of the Civil Rights Center (CRC), by regular mail at the US Department
of Labor, 200 Constitution Avenue NW, Room N-4123, Washington, DC
20210, or by e-mail at CRC-WIA@dol.gov. Brief comments (maximum of five
pages) may be submitted by facsimile machine (FAX) to (202) 219-5658.
Receipt of submissions, whether by U.S. mail, e-mail, or FAX
transmittal, will not be acknowledged; however, the sender may request
confirmation that a submission has been received, by telephoning the
Civil Rights Center at (202) 219-8927 (VOICE) or (202) 219-6118 or
(800) 326-2577 (TTY/TDD).
Comments will be available for public inspection during normal
business hours at the above address. Persons who need assistance to
review the comments will be provided with appropriate aids such as
readers or print magnifiers. Copies of this Interim Final Rule will be
made available in the following formats: large print, electronic file
on computer disk, and audio tape. To schedule an appointment to review
the comments and/or to obtain the Interim Final Rule in an alternate
format, contact CRC at the telephone numbers and addresses listed
above.
FOR FURTHER INFORMATION CONTACT: Bud West, Senior Policy Advisor, Civil
Rights Center, US Department of Labor, 200 Constitution Avenue NW, Room
N-4123, Washington, DC 20210, CRC-WIA@dol.gov, telephone (202) 219-8927
(VOICE), or (202) 219-6118 or (800) 326-2577 (TTY/TDD).
SUPPLEMENTARY INFORMATION: The preamble to these regulations is
organized as follows:
I. Background--provides a brief description of the development of
these proposed regulations.
II. Authority--cites the statutory provisions supporting these
regulations, Departmental redelegation authority, and Interagency
coordination authority.
III. Overview of the Regulations--summarizes pertinent aspects of
the regulatory text and describes its purposes and application.
IV. Regulatory Procedure--sets forth the applicable regulatory
requirements and requests comments on specific issues.
I. Background
On August 7, 1998, President Clinton signed the Workforce
Investment Act of 1998 (WIA), comprehensive reform legislation that
supersedes JTPA. Both WIA and JTPA contain nondiscrimination and equal
opportunity provisions. The JTPA nondiscrimination provisions are
contained in Section 167 of that statute, and in its implementing
regulations codified in 29 CFR part 34. These regulatory provisions
generally are carried over in the nondiscrimination and equal
employment opportunity provisions of WIA's implementing regulations.
The latter regulations are contained in this Interim Final Rule, to be
codified in 29 CFR part 37.
This Interim Final Rule prohibits WIA Title I-financially assisted
grant applicants and recipients, as defined in Section 37.4, from
discriminating on the basis of race, color, religion, sex, national
origin, age, disability, or political affiliation or belief. It also
protects any beneficiary (person intended by Congress to receive WIA
Title I-financially assisted aid, benefits, services, or training) from
discrimination based on either that beneficiary's citizenship, or his
or her participation in any WIA Title I-financially assisted program or
activity. The rule provides procedures for determining and enforcing
compliance.
Although the Department wishes to emphasize that it considers the
reforms embodied in WIA to be significant, and not ``business as
usual,'' the nondiscrimination and equal employment opportunity
principles embodied in this Act are substantially similar to those
contained in JTPA. Accordingly, there are only limited substantive
differences between 29 CFR part 34, implementing the nondiscrimination
and equal opportunity provisions of JTPA, and 29 CFR part 37,
implementing the similar provisions of WIA. Those substantive changes
that have been made are based on the experience of the Civil Rights
Center (CRC), the Departmental agency responsible for administering the
nondiscrimination provisions of JTPA and WIA, and on feedback provided
to CRC by grant applicants and recipients regarding their work with the
nondiscrimination and equal opportunity provisions of JTPA and part 34.
These substantive changes are described in detail in Section III of
this preamble.
Most of the changes the Department has made to the provisions
contained in part 34 have been structural, stylistic, and phrasing
changes. The changes have been made to enhance the readability of the
rule for, and its utility to, recipients who receive financial
assistance under WIA Title I; grant applicants who wish to receive such
assistance; individuals who wish to file discrimination complaints
under WIA Section 188; and other interested parties. The Department
seeks specific comments on the enhancements to the rule, and
suggestions for improving the rule.
The alterations to the rule fall into two categories: (1) Changes
making the rule's obligations consistent with other regulatory
obligations WIA Title I recipients might be under; and (2) Changes
reducing the ``legalese'' of the JTPA regulations. Generally, neither
type of modification is meant to change the substantive content of the
underlying rule.
As an example of the first category, the section of the rule
regarding recipients' obligations to individuals with disabilities has
been amended to follow generally the regulations implementing Title II
of the Americans with Disabilities Act of 1990, as amended (ADA). These
regulations are found at 28 CFR part 35. This change is not intended to
provide a substantive change from the regulations implementing JTPA. It
is intended only to clarify the regulations.
[[ Page 61693]]
The second category of changes was prompted by the June 1, 1998,
Presidential Memorandum on Plain Language, which instructed Federal
Departments and Agencies to write new regulations in language
understandable to most people. The Department has met the intent of the
President's memorandum by incorporating stylistic changes into the
language and format of these regulations to facilitate their
readability without changing their substantive content. An example of
such a change is the rewording of subsection topic header statements
into the form of questions.
Other examples:
Some sections have been subdivided, to make the content of
individual sections more homogeneous.
Some sections have been more logically reordered.
Terminology has been adjusted to use plain language terms.
As a result, the term ``shall'' has been replaced in this rule by the
terms ``must,'' ``will,'' ``is/are,'' or similar terms, as appropriate.
The term ``must'' connotes an obligation, while the term ``will''
indicates a future action. Similarly, the term ``prior to'' has been
replaced by the term ``before''; ``pursuant to'' has been replaced, as
appropriate, by ``under,'' ``by,'' or ``authorized by''; and ``is
deemed'' or ``will be deemed'' has been replaced, as appropriate, by
``is/are considered'' or ``become(s).''
Again, these changes are not intended to alter the meaning of the
regulations. Rather, the changes are intended to create a more readable
document.
CRC maintains a close relationship and regular contact with the
regulated community. The agency holds an annual national conference on
equal opportunity, attended by several hundred officials and staff of
the State and local agencies that are responsible for ensuring
nondiscrimination in the programs receiving financial assistance under
JTPA and/or WIA Title I. At this conference, and through other in-
person and telephone contacts with CRC, these officials and staff have
discussed directly with CRC staff members the effect that the JTPA
nondiscrimination regulations have had upon their agencies' operations.
Many of the changes, both substantive and stylistic, that were
incorporated in this Interim Final Rule resulted from this input. For
example, because some of these officials told CRC that the 60-day
period provided in the JTPA regulations for recipients to process
discrimination complaints was insufficient, the rule extends the
relevant time period to 90 days.
The Department is particularly interested in receiving comments
regarding any aspects of the Rule that affect the relationship between
the Federal government and the States.
II. Authority
A. Statutory Authority
The statutory authorities for this Interim Final Rule are: Sections
134(b), 136(d)(2)(F), 136(e), 172(a), 183(c), 185(c)(2), 185(d)(1)(E),
186, 187 and 188 of the Workforce Investment Act of 1998, Pub. L. 105-
220, 12 Stat. 936 (29 U.S.C. 2801 et seq.); Title VI of the Civil
Rights Act of 1964, as amended, Pub. L. 88-352, 78 Stat. 252 (42 U.S.C.
2000d, et seq.); Section 504 of the Rehabilitation Act of 1973, as
amended, Pub. L. 93-112, 87 Stat. 390 (29 U.S.C. 794); the Age
Discrimination Act of 1975, as amended, Pub. L. 94-135, 89 Stat. 728
(42 U.S.C. 6101); and Title IX of the Education Amendments of 1972, as
amended, Pub. L. 92-318, 86 Stat. 373 (20 U.S.C. 1681).
B. Departmental Authorization
Secretary's Order 2-81, Section 5a(2), authorized the Assistant
Secretary for Administration and Management, working through the
Director, Office of Civil Rights, to establish and formulate all
policies, standards, and procedures for, as well as to issue rules and
regulations governing, the enforcement of statutes applying
nondiscrimination and equal opportunity requirements to programs and
activities receiving financial assistance from DOL. On October 12,
1986, the Office of Civil Rights was redesignated the Directorate of
Civil Rights by the Assistant Secretary. Effective December 12, 1995,
the Assistant Secretary redesignated the Directorate of Civil Rights as
the Civil Rights Center (CRC). CRC is authorized to monitor and enforce
all nondiscrimination and equal opportunity regulations regarding
programs receiving financial assistance from DOL, including Section 188
of WIA.
C. Interagency Coordination
The Department of Justice (DOJ), under Section 1-201 of Executive
Order 12250 (45 FR 72995, November 4, 1980), is responsible for
coordinating Federal enforcement of most nondiscrimination laws that
apply to federally-assisted programs and activities. Executive Order
12067 (43 FR 28967, July 5, 1978) requires consultation with the Equal
Employment Opportunity Commission (EEOC) about regulations that involve
equal employment opportunity. The Age Discrimination Act of 1975, as
amended, assigns the Secretary of Health and Human Services the
responsibility for coordinating the Federal enforcement effort of that
Act. This Interim Final Rule has been coordinated with the Department
of Justice and the Equal Employment Opportunity Commission, as well as
the Department of Health and Human Services.
In addition, the Rule has been coordinated with other appropriate
Federal grantmaking agencies, including the Departments of Education
and Housing and Urban Development.
III. Overview of the Rule
Subpart A--(a) outlines the purpose and application of part 37; (b)
provides definitions; (c) outlines prohibited grounds for and forms of
discrimination; and (d) establishes enforcement authority and
obligations.
Subpart B--sets forth the affirmative obligations of recipients of, and
grant applicants for, financial assistance under WIA Title I.
Subpart C--describes a Governor's responsibilities to implement the
nondiscrimination and equal opportunity provisions of WIA and this
part.
Subpart D--describes procedures for compliance reviews and complaint
processing.
Subpart E--describes the procedures for effecting compliance, including
(a) actions the Department will take upon making a finding of
noncompliance for which voluntary compliance cannot be achieved; (b)
the rights of parties upon such a finding; and (c) hearing procedures,
sanctions, and post-termination procedures.
Subpart A--General Provisions
The individual sections in this subpart are largely identical to
their corresponding sections within the same subpart in part 34.
Consistent with plain-language guidelines, one section has been
subdivided into separate sections treating different topics. These
changes are not intended to alter the overall meaning of this subpart,
or the meaning of any of its component sections.
Section 37.1 What is the purpose of this part?
This section is identical to 29 CFR 34.1(a), except that references
to JTPA, and to its Section 167, have been changed to refer to WIA and
its Section 188.
[[ Page 61694]]
Section 37.2 To whom does this part apply, and what is the scope of
this part?
This section contains requirements similar to those in 29 CFR
34.1(b) and (d). The references to other regulatory sections within
part 34 have been changed to reflect the numbering of this Interim
Final Rule, and references to JTPA have been changed to refer to WIA.
Also, some of the material has been presented in outline form to
improve its readability. None of these changes is intended to alter the
meaning of the section.
Language has been added to paragraph 37.2(a) to clarify that the
requirements in this part apply to programs and activities that are
part of the One-Stop delivery system and that are operated by One-Stop
partners listed in WIA Section 121(b), including those partners
financially assisted by grantmaking agencies other than the Department
of Labor, to the extent that the programs and activities are being
conducted as part of the One-Stop delivery system. The requirements in
29 CFR part 34 continue to apply to programs and activities that are
implemented under and authorized by JTPA.
In those cases in which States that have opted to implement WIA
before July 1, 2000, are operating WIA Title I programs and activities
simultaneously with programs and activities under JTPA, the WIA Title I
programs and activities must comply with the requirements in this part,
while the JTPA programs and activities must comply with the
requirements in 29 CFR part 34.
Section 37.3 How does this part affect a recipient's other
obligations?
This section generally contains the same requirements as 29 CFR
34.1(c). The language of 29 CFR 34.1(c)(6), which dealt with
retroactivity, is inapplicable to this Interim Final Rule, and has been
omitted; in addition, references to JTPA have been changed to refer to
WIA. Other differences between this section and the corresponding
paragraphs of the JTPA regulations are listed below.
Paragraph 37.3(b): This paragraph has been amended to incorporate
by reference the provisions of Subparts B and C and Appendix A of 29
CFR part 32, which implement the requirements of Section 504 pertaining
to employment practices, employment-related training, program
accessibility, and accommodations. As a result, the language from 29
CFR 34.1(c)(2) that stated that part 34 did not affect recipients'
obligations to comply with those provisions has been omitted.
It is important to understand the distinction between the concept
of ``program accessibility,'' referred to in this paragraph, and the
separate concept of architectural accessibility, both of which a
recipient is required to provide under Subpart C.
The requirement of program accessibility means that when viewed in
its entirety, the program or activity provided by the recipient must be
readily accessible to qualified individuals with disabilities. 29 CFR
32.27. The recipient must ensure that participants with various
physical and mental disabilities will have access to the program or
activity. This obligation to make the program or activity accessible in
advance exists independent of a request for a particular accommodation
by a specific individual. Therefore, even if an individual with a
disability requests an accommodation that would impose an undue
hardship on the recipient, the recipient still has an overall
obligation to make the program or activity accessible.
Architectural accessibility, by contrast, relates to the
construction and design of facilities. 29 CFR 32.28. Architectural
accessibility standards are similar to building codes. A recipient must
comply with the architectural accessibility standards whether or not a
particular individual with a disability has requested a reasonable
accommodation. 29 CFR 32.13(d). A recipient's obligation to comply with
the architectural accessibility standards is also independent of its
program accessibility obligations.
Paragraph 37.3(d): This paragraph has been added to parallel
Paragraph 37.3(c), and to emphasize that recipients that are also
employers, employment agencies, or other entities covered by Title I of
the ADA have additional obligations imposed by that title.
Paragraph 37.3(e)(9): This paragraph, which refers to the anti-
discrimination provision of the Immigration and Nationality Act, has
been added at the request of the Department of Justice. This provision
prohibits: (a) Discrimination on the basis of citizenship status and
national origin with respect to hiring, firing, or recruitment or
referral for employment for a fee; and (b) unfair documentary practices
with respect to verification of employment eligibility.
Section 37.4 What definitions apply to this part?
To the extent possible, the definitions contained in this section
are consistent with similar terms used in regulations implementing
other civil rights legislation that applies to recipients of Federal
financial assistance. Similarly, where feasible, this Interim Final
Rule uses the terms contained in the proposed WIA program regulations
issued by the Department's Employment and Training Administration
(ETA). However, because this regulation must be compatible with civil
rights enforcement on a broad scale as well as with ETA's WIA program,
this rule defines and uses certain terms, such as ``qualified
interpreter,'' ``recipient,'' ``registrant,'' and ``applicant,'' as
terms of art, not necessarily identical to the definitions that are
used elsewhere for the same terms.
The following list explains the definitions that differ in
substantive ways, either from their counterparts in 29 CFR 34.2, from
ETA's program regulations, or from regulations that implement the
nondiscrimination provisions of other legislation providing Federal
financial assistance. It also lists definitions that have been borrowed
from other civil rights regulations, and explains certain definitions
that might appear to differ substantively from their counterparts in 29
CFR 34.2, but that have not been substantively changed. Definitions
that obviously would not be substantively different from those in
Section 34.2, but that simply would substitute references to WIA for
references to JTPA, are not listed.
This list also contains definitions of terms that are not defined
in the regulations implementing other civil rights legislation that
applies to recipients of Federal financial assistance, or in WIA's
program regulations. Generally, these terms either are used solely
within this part, or have greater significance within this part than
they do within other regulatory systems. With regard to these terms,
the list explains the reason each term has been defined, and/or the
source of the definition.
Aid, benefits, services, or training: In 29 CFR 34.5, this phrase
is used to convey to the reader the comprehensive nature of the areas
in which a JTPA-assisted program or activity could not discriminate on
the basis of disability. For consistency, the phrase has been adopted
throughout part 37; generally, it replaces the phrase ``financial aid,
service, or benefit,'' which was used intermittently in part 34, and
which has a similar meaning. No substantive change is intended by the
use of the phrase.
Section (1) of this definition uses the phrase ``core and intensive
services.'' These terms are used in WIA to describe
[[ Page 61695]]
two of the three general types of employment and training services that
are provided to participants under the WIA program (the third type is
training services). The terms are defined at length in the WIA statute:
a list of ``core services'' is provided in Section 134(d)(2), and a
similar list of ``intensive services'' is provided in Section
134(d)(3)(C). Briefly, ``core services'' are those services available
at a baseline level to all participants, while ``intensive services''
are those services available to individuals who are assessed as needing
additional assistance in order to find or retain employment. Compare
Section 134(d)(2) with Section 134(d)(3)(A).
Section (4) of this definition refers to ``work opportunities.''
This term is intended to encompass On-the-Job Training, subsidized
work, internships, or work experience that a participant obtains
through a WIA Title I-financially assisted program or activity. See the
discussion of the definition of ``On-the-Job Training'' later in this
section.
Applicant: The passage of WIA has altered the method by which
individuals seeking federally-assisted aid, benefits, services, or
training enter the system. The definition of the term ``applicant'' has
been changed accordingly, to signify that, for purposes of this part,
an individual is considered an ``applicant'' at the point at which s/he
submits personal information in response to a request by the recipient
for such information. Because ETA's program regulations that implement
other provisions of WIA refer to the ``registration'' process, rather
than the application process, this part uses the term ``registrant''
interchangeably with ``applicant.'' CRC is particularly interested in
receiving comments on this definition and its effect, if any, on the
data collection obligations of recipients.
Departmental grantmaking agency: This definition was added in order
to help readers distinguish between the meaning of this term and of the
terms ``grantmaking agency'' and ``Federal grantmaking agency'' as used
in this part. See the discussion of the definitions of the latter terms
elsewhere in this section of the preamble.
Discrimination on the ground of citizenship: This definition is
identical to the definition of the same term in Section 34.2, except
that the term ``asylee'' has been inserted into the list of immigration
statuses that are protected against discrimination. In addition, the
phrase ``other individuals authorized by the Attorney General to work
in the United States'' has been amended to ``other immigrants
authorized * * *.'' These changes have been made for consistency with
the language of Section 188(a)(5) of WIA.
These regulations are concerned with nondiscrimination and equal
opportunity only. They do not limit eligibility or impose preferences
for services on the basis of citizenship.
Employment practices: This definition has been moved to the
definition section from 29 CFR 34.7(a). Consistent with plain-language
guidelines, the definition also has been slightly rewritten, and has
been presented in outline form to improve its readability. None of
these changes is intended to alter the meaning of the definition.
Employment-related training: This definition has been included in
response to questions from a number of recipients who were familiar
with the term as it was defined under the Comprehensive Employment and
Training Act (CETA), the predecessor statute to JTPA. Under WIA, the
term is defined more broadly than it was under CETA.
Entity: This definition is expanded from the definition in 29 CFR
34.2, to encompass current and potential changes in business
structures, and to emphasize that such entities as Indian tribes or
tribal organizations and Native Hawaiian organizations, all of which
are eligible to receive financial assistance under WIA Title I, are
included within the definition. See WIA Section 166, ``Native American
Programs.''
Facility: This definition is expanded from the definition in 29 CFR
34.2, in order to follow generally the definition of the same term set
forth in 28 CFR 35.104, in the regulations implementing Subtitle A of
Title II of the ADA. That subtitle prohibits discrimination on the
basis of disability by public entities.
The reference to ``indoor constructs'' such as office cubicles and
computer kiosks has been added in order to clarify that recipients may
be required to alter such constructs to make them accessible to and
usable by individuals with disabilities. See paragraph (2)(i) of the
definition of ``reasonable accommodation'' in Section 37.4.
Federal grantmaking agency: This definition was added in order to
help readers distinguish between the meaning of this term and of the
terms ``grantmaking agency'' and ``Departmental grantmaking agency'' as
used in this part. See the discussion of the definitions of the latter
terms elsewhere in this section of the preamble.
Financial assistance and Financial assistance under Title I of WIA:
As with the term ``applicant,'' the passage of WIA has altered the type
of financial assistance that will be provided under the WIA program,
and the way in which that assistance will be provided. The definitions
of ``financial assistance'' and ``financial assistance under WIA Title
I'' have been drafted accordingly. The Department is particularly
interested in receiving comments on these new definitions.
The new definitions have been modeled on the definitions of the
term ``financial assistance'' provided in various Federal regulations
that also deal with nondiscrimination in programs and activities
receiving Federal financial assistance. Examples include the Office of
Personnel Management regulations at 5 CFR 900.403(c); the Department of
Justice regulations at 28 CFR 42.613(e); and the Department of Health
and Human Services regulations at 45 CFR 86.2(g) and 1203.3(c).
Paragraph (5) of the definition of ``financial assistance under WIA
Title I'' includes ``[a]ny other agreement, arrangement, contract, or
subcontract * * * or other instrument that has as one of its purposes
the provision of assistance or benefits under WIA Title I.'' Under this
paragraph, ``financial assistance under WIA Title I'' includes such
``agreements or arrangements'' as the Memoranda of Understanding (MOUs)
required by Section 121(c) of WIA, and inclusion on a list of eligible
training providers. See the discussion of the definition of
``recipient'' later in this section.
Fundamental alteration: This definition is derived from the Supreme
Court's interpretation of the term in the ADA Title II case of Olmstead
v. Zimring, 119 S.Ct. 2176, 67 USLW 3683, 67 USLW 4567, 1999 WL 407380
(U.S., June 22, 1999), at 12-13 and n.16.
Grantmaking agency: This term replaces the term ``granting agency''
that was used in 29 CFR part 34. See the discussion of the definitions
of ``Departmental grantmaking agency'' and ``Federal grantmaking
agency'' elsewhere in this section.
Individual with a disability: The definition of this term is
identical to the definition of the same term in Section 34.2, with the
following exceptions:
(1) The reference to homosexuality or bisexuality has been deleted.
This change is not a substantive change, since Section 1(ii) of the
definition of the term ``disability'' retains the explanation that the
term ``impairment'' does not include homosexuality or bisexuality. The
deletion was made merely to eliminate unnecessary redundancy in the
rule.
[[ Page 61696]]
(2) The list of the individuals to whom the term ``individual with
a disability'' does not apply has been expanded to clarify that with
regard to employment, there would exist two circumstances under which
the term would not apply to an individual who has a currently
contagious disease or infection. Such an individual would not be an
``individual with a disability'' either if that disease or infection
prevents him or her from performing the duties of the job in question,
or if his or her employment, because of that disease or infection,
would constitute a direct threat to the health and safety of others.
This change has been made for consistency with the definition of
``individual with a disability'' enacted by Congress in Title IV,
Section 403 of WIA, the Rehabilitation Act Amendments of 1998, 29
U.S.C. 701, Pub.L. 105-220, Title IV, Section 401 et seq., Aug. 7,
1998, 112 Stat. 1092.
Labor market area: The definition of this term, which appears in
the definition of ``population eligible to be served,'' is taken
directly from Section 101(18) of WIA.
Local Workforce Investment Area (LWIA) grant recipient: This term
is new under WIA. The term describes the entity that receives WIA Title
I financial assistance from a Governor. It replaces the terms ``SDA
grant recipient'' and ``substate grantee'' that were used under JTPA.
National Programs: This definition has been rewritten to encompass
entities receiving financial assistance under Title I, Subtitle D of
WIA, and to clarify that Job Corps is a National Program under the
definition.
On-the-Job Training: This definition is taken directly from Section
101(31) of WIA. Three words have been added to the definition in order
to clarify that such training is ``provided to a paid participant while
the participant is engaged in productive work.''
Participant and participation: The definitions of these terms
contain the same elements as the definition of the single term
``participant'' in 29 CFR 34.2. The rule defines the term
``participation'' separately in order to help readers better understand
both terms. Also, the new definitions of the terms ``participant'' and
``participation'' clarify that the terms encompass individuals who are
receiving aid, benefits, or training under WIA Title I, as well as the
``services'' included in the definition in 29 CFR 34.2. In addition,
because the term ``aid, benefits, services, or training'' is defined as
including work opportunities obtained through a WIA Title I--
financially assisted program or activity, an individual who obtains
such opportunities is a ``participant'' under this definition. See the
discussion of the definition of ``aid, benefits, services, or
training'' earlier in this section.
The definition of ``participant'' in part 34 excluded individuals
receiving ``post-termination and follow-up services.'' However, Section
134(d)(2)(K) of the WIA statute includes follow-up services among the
list of ``core services'' that participants may receive; as a result,
this language has been deleted from the definition of ``participant''
in Section 37.4. It should be noted that this definition differs from
the definition of the term that is included in ETA's regulations
implementing other provisions of WIA.
The definition in Section 37.4 clarifies that the term
``participant'' includes, but is not limited to, applicants receiving
any services under state Employment Service programs, and claimants
receiving any services under state Unemployment Insurance programs.
Because the definition of the term in the JTPA nondiscrimination
regulations also encompassed such individuals, this clarification is
not a substantive change. Rather, the clarifying language was included
simply to recognize that different recipients may use different
terminology to refer to individuals who receive benefits or services
under their programs.
It is important to recognize that under the One-Stop system
introduced by WIA, various programs and activities that are authorized
by Federal laws other than WIA may be part of a One-Stop center that
also provides WIA Title I--financially assisted programs and
activities. In such cases, any individual who receives aid, benefits,
services, or training from the One-Stop center is a participant for
purposes of the nondiscrimination and equal opportunity provisions of
WIA and this part.
For example, a One-Stop center may include an Employment Services
program authorized and financially assisted under the Wagner-Peyser
Act, 29 U.S.C. 49, as well as core and intensive service programs
authorized under WIA Title I. Under these circumstances, an individual
who receives Wagner-Peyser employment services from the One-Stop center
will fit the definition of ``participant'' in Section 37.4.
Parties to a hearing: This definition has been amended to clarify
that in certain cases, a Governor may be a party to a hearing.
Population eligible to be served: This term is used in the section
of this rule that explains recipients' obligations regarding
individuals with limited English skills. See the discussion of Section
37.35 in this preamble.
Qualified individual with a disability: This definition has been
amended for a number of reasons. First, the definition has been
restructured in order to incorporate the term of art ``aid, benefits,
services, or training,'' which is introduced and defined in this
Interim Final Rule. The term is used in the definition of ``qualified
individual with a disability'' to encompass most, if not all, of the
circumstances (other than employment) in which a recipient might need
to determine the qualifications of an individual with a disability to
receive WIA Title I--financially assisted services, financial or other
aid, or benefits. See the definition of ``aid, benefits, services, or
training'' in Section 37.4, and the discussion in this preamble about
that definition.
Second, the definition as amended is intended to underscore the
distinction between the test for determining whether an individual with
a disability is qualified for such aid, benefits, services, or
training--including employment-related training--and the test for
determining whether such an individual is qualified for employment.
Under paragraph (1) of the definition, such an individual is qualified
for employment if, with or without reasonable accommodation, he or she
is capable of performing ``the essential functions of the job.'' The
definition of the term in 29 CFR 34.2 applied the same test to
employment-related training. However, employment-related training
programs are not ``employment,'' and therefore the focus in determining
whether an individual with a disability is ``qualified'' for such a
program should be upon whether the individual meets the essential
eligibility requirements for the program. Paragraph (2) of the
definition, which relates to aid, benefits, services, or training, has
been amended accordingly.
Third, the amended definition is intended to clarify that an
individual with a disability who is seeking aid, benefits, services, or
training is qualified if he or she meets the essential eligibility
requirements for receiving such aid, benefits, services, or training,
with or without reasonable accommodation or modification. The reference
to ``reasonable accommodation or reasonable modification'' has been
added in order to clarify that the definition is intended to encompass
``situations where an insistence on continuing past requirements and
practices might arbitrarily deprive genuinely qualified (individuals
with disabilities) of an
[[ Page 61697]]
opportunity to participate in a covered program.'' Brennan v. Stewart,
834 F.2d 1248, 1261 (5th Cir. 1988) (discussing Section 504).
Qualified interpreter: This definition is based on the definition
of the same term contained in 28 CFR 35.104, the regulations
implementing Title II of the ADA. In this Interim Final Rule, however,
the term is used in a broader context, to implement the prohibition of
discrimination based on national origin as well as the prohibition of
discrimination against qualified individuals with disabilities. In this
Rule, the term encompasses the interpretation of spoken and written
languages, such as Spanish, for individuals with limited English
skills, as well as interpretation of spoken and written languages into
symbolic languages, such as American Sign Language, for individuals
with disabilities.
Reasonable accommodation: This definition is based on the
definition of the same term contained in 29 CFR 1630.2, in the
regulations implementing Title I of the Americans with Disabilities
Act. Although Title I and its implementing regulations apply the
concept of ``reasonable accommodation'' only in the context of
employment, this Interim Final Rule requires recipients to provide
``reasonable accommodation'' in the additional contexts of aid,
benefits, services, and training. See Section 37.8.
Under the requirements of Section 188 of WIA and this part, as well
as under other Federal civil rights laws and their implementing
regulations, a recipient must provide both accessible facilities (that
is, both program accessibility and architectural accessibility) and
reasonable accommodation for individuals with disabilities. It is
important to understand the difference between these two requirements.
Providing accessible facilities requires a recipient to take
advance actions, in order to be ready when persons with disabilities
seek aid, benefits, services, training, or employment from that
recipient at some point in the future. See the discussion of ``program
accessibility'' and ``architectural accessibility'' in the discussion
in this preamble about Paragraph 37.3(b).
By contrast, providing reasonable accommodation for an individual
with a disability requires the recipient to make efforts to meet the
specific needs of the particular individual who is currently seeking
aid, benefits, services, training, or employment from the recipient.
Reasonable accommodation may require making specific structural or
other modifications to meet the needs of a particular individual for
access.
Recipient: This definition has been amended to clarify that where a
Governor operates a program or activity, either directly or through a
State agency, using discretionary funds apportioned to him/her under
WIA Title I (rather than disbursing the funds to another recipient),
the Governor is also a recipient. In addition, JTPA-related terminology
(such as references to SDA and Substate grant recipients) has been
replaced by WIA-related terminology (such as references to LWIA grant
recipients), and the list of examples of recipients has been numbered
and presented vertically, rather than in paragraph form, for greater
ease of reading. Finally, paragraphs (10) and (11) of the definition,
``outreach and admissions agencies'' and ``placement agencies,'' have
been amended to clarify that Job Corps contractors that perform these
functions are also recipients.
For purposes of this part, entities that participate as partners in
a One-Stop delivery system are treated as ``recipients,'' and are
subject to the nondiscrimination and equal opportunity obligations of
this part, to the extent that they participate in the One-Stop system.
Such partners may include, but are not limited to, mandatory and
additional partners listed in WIA section 121(b), such as entities
providing employment and training activities carried out under the
Community Service Block Grant Act (42 U.S.C. 9901 et seq.), or programs
authorized under section 6(d)(4) of the Food Stamp Act of 1977
(7.U.S.C. 2015(d)(4)), if these entities participate as partners in the
One-Stop delivery system.
With regard to issues involving nondiscrimination and equal
opportunity, the One-Stop-related programs and activities operated by
such partners may fall under the jurisdiction of both CRC and the equal
opportunity office of the Federal grantmaking agency. See Section
37.85(c) and the discussion thereof in this preamble. As a result,
local Workforce Investment Boards, when developing and entering into
MOUs with One-Stop partners pursuant to the requirements of WIA Section
121(c), should include attention to equal opportunity issues that may
affect the One-Stop partners or the delivery system. Such issues
include how discrimination complaints will be handled and how the cost
of reasonable accommodations will be shared. For its part, CRC is in
the process of developing MOUs with other Federal grantmaking agencies
that provide financial assistance to programs and activities in the
One-Stop delivery system, to ensure the consistent application of
Federal civil rights law.
The Department is particularly interested in receiving comments
regarding the effect of this part upon One-Stop partners.
Registrant: See the explanation of the term ``applicant'' in this
section.
Sectarian activities: This term appears in Section 37.6(f), which
implements Section 188(e) of WIA. With certain exceptions, that
statutory section bars participants from being employed to carry out
the construction, operation, or maintenance of any part of any facility
that is or will be used for sectarian instruction or religious worship.
Service provider: Language has been inserted into this definition
to clarify that the term encompasses any ``provider of aid, benefits,
services, or training to'' any WIA Title I--financially assisted
program or activity. The definition of the same term in 29 CFR 34.2
referred only to the ``operator'' of a JTPA-funded program or activity.
This change is not a substantive change; it was made only to clarify
the definition.
Additional language has been added to the definition to clarify
that organizations that are selected and/or certified as eligible
providers of training services under WIA are service providers under
this Interim Final Rule, regardless of whether any participants
actually select the organization to provide them with training.
Small recipient: This definition contains the same requirements as
the definition in 29 CFR 34.2. The definition has been rewritten to
explain that such a recipient both (a) serves a total of fewer than 15
beneficiaries during the entire grant year, and (b) employs fewer than
15 employees on any given day during the grant year. Again, this
alteration is not intended as a substantive change; it was made only to
clarify the definition.
State Programs: This definition adds language explaining that the
term includes State Employment Service agencies, and/or State
unemployment compensation agencies, that operate independently of a
SESA. Again, this change has been included solely to clarify the
definition.
Supportive services: This definition is taken directly from WIA
Section 101(46).
Terminee: This definition has been rewritten to explain that the
term refers to a participant whose participation in the program
terminates, voluntarily or involuntarily, during the applicable program
year. Again, this change has
[[ Page 61698]]
been included solely to clarify the definition.
Undue hardship: As the definition itself notes, the meaning of this
term differs, depending upon the context in which it is used. The first
part of the definition explains the meaning of the term in the context
of reasonable accommodation for individuals with disabilities. This
part of the definition, like the definition of ``reasonable
accommodation,'' is based on the definition of ``undue hardship''
contained in 29 CFR 1630.2, in the regulations implementing Title I of
the Americans with Disabilities Act. As explained above in the
discussion of the definition of ``reasonable accommodation,'' this
Interim Final Rule requires recipients to provide reasonable
accommodation to qualified individuals with disabilities with regard to
aid, benefits, services, and training, as well as employment, except
where such accommodation would cause undue hardship. See Section 37.7.
The second part of the definition explains the meaning of the term
in the context of religious accommodations. This part of the definition
is based on Supreme Court decisions, most notably the leading case of
Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 81, 84 (1977).
WIA Title I--financially assisted program or activity: This
definition contains the same elements as the definition of the term
``JTPA-funded program or activity'' in 29 CFR 34.2. The definition has
been presented in outline form to improve its readability.
The remainder of the definitions in Section 37.4 are either
unchanged from their counterparts in 29 CFR 34.2, or have been changed
merely to refer to WIA rather than JTPA.
Section 37.5 What forms of discrimination are prohibited by this part?
This section is identical to 29 CFR 34.3, except that references to
JTPA have been changed to refer to WIA.
Section 37.6 What specific discriminatory actions, based on prohibited
grounds other than disability, are prohibited by this part?
This section contains the same requirements as 29 CFR 34.4.
Differences between this regulation and the JTPA regulation are
explained below.
Paragraph 37.6(a): This paragraph is identical to the first
sentence of 29 CFR 34.4(a), except that references to JTPA have been
changed to refer to WIA.
Paragraph 37.6(b): This introductory paragraph is identical to the
second sentence of 29 CFR 34.4(a).
Paragraphs 37.6(b)(1)-(7): These paragraphs are identical to 29 CFR
34.4(a)(1)-(7), with the following exceptions:
(1) references to ``service, financial aid, or benefit'' have been
changed to ``aid, benefits, services, or training,'' as explained in
the discussion of the definition of the latter term in Section 37.4
above; and
(2) references to JTPA have been changed to refer to WIA.
Paragraph 37.6(b)(8): This paragraph is identical to 29 CFR
34.4(a)(10), except that a reference to WIA Title I has been inserted.
Paragraphs 37.6(c)(1)-(2): These paragraphs contain requirements
similar to those in 29 CFR 34.4(a)(8) and (9). Paragraph 37.6(c)(1)
signifies that a recipient must not provide significant assistance
under any circumstances to any agency, organization, or person that
discriminates on a prohibited ground. Similarly, Paragraph 37.6(c)(2)
signifies that except where doing so would cause undue hardship, a
recipient may not refuse to accommodate an individual's religious
practices or beliefs, even if the refusal is not based on dislike of or
disagreement with the individual's religion. Again, this alteration is
not intended as a substantive change from the regulations implementing
JTPA; the change was made only to clarify the intent of the
regulations.
As in other paragraphs, references to JTPA have been changed to
refer to WIA.
Paragraph 37.6(d): This paragraph contains the same requirements as
29 CFR 34.4(b). Consistent with plain-language guidelines, the
paragraph has been organized slightly differently from the JTPA
paragraph, and presented in outline form to improve its readability.
Also, the word ``outreach'' has been added to the list of examples of
the types of administrative determinations in which discrimination is
prohibited. Because the list, both in the corresponding JTPA regulation
and in this paragraph, is exemplary rather than restrictive, the
addition of this word makes no substantive change in the paragraph.
For consistency with the language of Section 37.7, the reference to
``standards, procedures or criteria'' has been changed to ``standards,
procedures, criteria, or administrative methods.'' See the discussion
in this preamble about Paragraph 37.7(e). Similarly, the paragraph has
been reworded to prohibit practices that defeat or substantially impair
accomplishment of the objectives of ``the nondiscrimination and equal
opportunity provisions of WIA and this part,'' as well as those of the
program or activity in question.
As in other paragraphs, references to JTPA have been changed to
refer to WIA.
Paragraph 37.6(e): This paragraph contains the same requirements as
29 CFR 34.4(c). Again, consistent with plain-language guidelines, the
paragraph has been organized slightly differently from the JTPA
paragraph, and presented in outline form to improve its readability.
Also, references to JTPA have been changed to refer to WIA.
Paragraph 37.6(f): This paragraph prohibits participants in a WIA
Title I--financially assisted program or activity from being employed
or trained to construct, operate, or maintain any part of a facility
that is or will be used primarily for sectarian instruction or
religious worship. This paragraph is directly based on, and implements,
Section 188(a)(3) of WIA.
Paragraph 37.6(g): This paragraph is identical to 29 CFR 34.4(d).
Section 37.7 What specific discriminatory actions based on disability
are prohibited by this part?
This section contains the same requirements as 29 CFR 34.5, with
additional material modeled on the regulations implementing Title II of
the ADA. Differences between this section and the corresponding
sections of the JTPA nondiscrimination regulations or ADA regulations
are discussed below.
Paragraphs 37.7(a)(1)-(3): These paragraphs are identical to 29 CFR
34.5(a)(1)-(3), except that references to JTPA have been changed to
refer to Title I of WIA.
Paragraph 37.7(a)(4): This paragraph is identical to 29 CFR
34.5(a)(4), with the following exceptions:
(1) The paragraph specifies that, except when necessary to
accommodate a qualified individual with a disability, a recipient may
not provide ``segregated'' aid, benefits, services, or training to
individuals with disabilities. This addition is intended to clarify and
emphasize that a recipient may provide special programs or activities
designed for and limited to individuals with disabilities, but may not
require that individuals with disabilities attend only such programs or
activities. In other words, qualified individuals with disabilities
must be offered the option of participating in the same programs or
activities that are offered to non-disabled individuals. This change is
not intended to provide a substantive change from the JTPA
[[ Page 61699]]
nondiscrimination regulations. It was inserted only to clarify the
intent of the regulations.
(2) The beginning of 29 CFR 34.5(a)(4) prohibits recipients from
providing different or separate ``aid, benefits, or services'' to
individuals with disabilities; the end of the same paragraph refers to
``aid, benefits, services or training.'' For consistency, the paragraph
has been modified to refer to ``aid, benefits, services, or training''
in both places. Again, this change is not intended to provide a
substantive change from the meaning of the regulations implementing
JTPA.
Paragraphs 37.7(a)(5)-(6): These paragraphs are identical to 29 CFR
34.5(a)(6)-(7), except that references to JTPA have been changed to
refer to Title I of WIA.
Paragraph 37.7(b): This paragraph tracks the language of 29 CFR
34.5(a)(5). Like Paragraph 37.6(c)(1), it has been placed in a separate
paragraph to clarify that a recipient must not provide significant
assistance to any agency, organization, or person that discriminates on
the basis of disability, even if the recipient has no discriminatory
motivation in providing the assistance.
Paragraphs 37.7(c)-(d): These paragraphs are identical to 29 CFR
34.5(b)-(c), except that references to JTPA have been changed to refer
to Title I of WIA.
Paragraph (d) requires recipients to administer WIA Title I-
financially assisted programs and activities in ``the most integrated
setting appropriate to the needs of qualified individuals with
disabilities.'' This language means that the recipient must provide
programs or activities in a setting that enables individuals with
disabilities to interact with non-disabled persons to the fullest
extent possible.
Paragraph 37.7(e): This paragraph contains the same requirements as
29 CFR 34.5(d). Differences between the paragraph and the corresponding
paragraphs of the JTPA nondiscrimination regulations are explained
below.
(1) Consistent with plain-language guidelines, the word ``utilize''
in Paragraph 34.5(d) has been replaced by ``use.''
(2) For consistency with the language of Section 37.6(d), the
reference to ``criteria or administrative methods'' has been changed to
``standards, procedures, criteria, or administrative methods.'' See the
discussion in this preamble about Paragraph 37.6(d).
(3) Paragraph 34.5(d)(1) prohibited the use of such methods that
have ``the effect of'' discriminating against qualified individuals
with disabilities. This wording has been changed to prohibit methods
that have ``the purpose or effect of'' such discrimination. This
addition was made for two reasons:
(a) because WIA Section 188 makes clear that purposeful
discrimination against qualified individuals with disabilities is also
prohibited; and
(b) to make the language of Paragraph 34.5(d)(1) consistent with
the language of the remaining paragraphs in the section, which prohibit
activities that have ``the purpose or effect of'' discrimination.
(3) References to JTPA have been changed to refer to Title I of
WIA.
None of these changes is intended to alter the meaning of the
paragraphs from the meaning of the corresponding paragraphs in the JTPA
nondiscrimination regulations.
Paragraph 37.7(f): This paragraph contains the same requirements as
29 CFR 34.5(e). Consistent with plain-language guidelines, the
paragraph has been organized slightly differently from the
corresponding paragraph in the JTPA nondiscrimination regulations, and
presented in outline form to improve its readability. Also, references
to JTPA have been changed to refer to WIA.
Paragraphs 37.7(g)-(h): These paragraphs are based on 28 CFR
35.130(b)(5)-(6), from the regulations implementing Title II of the
ADA. Differences between the paragraphs and the corresponding
paragraphs of the ADA Title II regulations are explained below.
(1) Two changes have been made in order to tailor the regulations
to the requirements of the WIA program:
(a) The reference in Paragraph 37.7(g) to ``procurement
contractors'' has been changed to ``contractors'; and
(b) References to ``public entity'' have been changed to
``recipient'; and
(2) References to the ADA have been replaced by references to WIA.
These provisions have been modeled upon the ADA Title II
regulations in order to ensure that requirements under Section 188 of
WIA follow generally the requirements of ADA Title II. Many recipients
of WIA Title I financial assistance are also subject to the
requirements of Title II, which applies to public entities including
State and local governments and their departments, agencies, and
instrumentalities. See 42 U.S.C. 12131. Modeling the WIA regulations on
the ADA Title II regulations ensures that these recipients are subject
to similar obligations and responsibilities under both laws.
Paragraph 37.7(h), which discusses licensing and certification
programs, gives CRC jurisdiction only over recipients of WIA Title I
financial assistance. For example, a state electrician certification
program run by a State agency that does not benefit from WIA Title I
financial assistance would not be required to comply with this
paragraph. Such an agency would, however, be required to comply with
the similar requirements set forth in 28 CFR 35.130(b)(6), in the ADA
Title II regulations.
Paragraphs 37.7(i)-(l): These paragraphs are based on 28 CFR
35.130(b)(8), (c), (f), and (g), from the regulations implementing
Title II of the ADA. Differences between the paragraphs and the
corresponding paragraphs of the ADA Title II regulations are explained
below.
(1) References to ``public entity'' have been changed to
``recipient'; and
(2) References to ``service(s)'' have been changed to ``aid,
benefits, services, or training.''
Both of these changes have been made in order to tailor the
regulations to the requirements of the WIA program. Neither change is
intended to alter the meaning of the paragraphs.
Paragraph 37.7(m): This paragraph is identical to 29 CFR 34.5(g),
except that additional punctuation has been added to improve the
material's clarity.
Paragraph 37.7(n): This paragraph contains the same requirements as
29 CFR 34.5(h). The paragraph has been presented in outline form to
improve its readability.
Paragraph 37.7(o): This paragraph is based on 28 CFR 35.130(e),
from the regulations implementing Title II of the ADA, except that
references to the ADA have been replaced by references to WIA. This
change is not intended to alter the meaning of the paragraph.
Section 37.8 What are a recipient's responsibilities regarding
reasonable accommodation and reasonable modification for individuals
with disabilities?
This section is based on 28 CFR 35.130(b)(7), which requires public
entities to make ``reasonable modifications'' in ``policies, practices
or procedures when the modifications are necessary to avoid
discrimination on the basis of disability.'' To this requirement has
been added the obligation that in providing aid, benefits, services,
training, or employment, a recipient must make ``reasonable
accommodation'' for qualified individuals with disabilities.
The two concepts are similar in that they both require a recipient
to consult
[[ Page 61700]]
with each individual with a disability who requests an accommodation(s)
or modification(s); to make an individual determination about the
alterations necessary in each case; and to take appropriate action
based upon that determination. The concepts differ, however, in the
standards used to determine ``reasonableness.'' An accommodation is
``reasonable'' unless providing the requested accommodation would cause
the recipient undue hardship. A modification, by contrast, is
``reasonable'' unless making the modification would require a
fundamental alteration in the nature of the service, program, or
activity that the recipient is providing. See the definitions of
``fundamental alteration,'' ``reasonable accommodation,'' and ``undue
hardship'' in Section 37.4.
The EEOC's Enforcement Guidance on Reasonable Accommodation and
Undue Hardship Under the Americans with Disabilities Act may help
recipients and others understand these concepts, particularly as
applied in the employment context. The Guidance is available from EEOC
or through EEOC's web site at www.eeoc.gov.
The procedures, set forth in paragraphs 37.8(a)(1)-(2) and (b)(1)-
(2), that a recipient must follow in determining whether a requested
accommodation would cause undue hardship, or a requested modification
would result in a fundamental alteration, are derived from the
procedures set forth in 29 CFR 34.6(f)(1)-(3) for making similar
determinations with regard to communications with individuals with
disabilities. See the discussion in this preamble about Paragraphs
37.9(f)(1)-(3).
Section 37.9 What are a recipient's responsibilities to communicate
with individuals with disabilities?
Generally, this section contains the same requirements as 29 CFR
34.6. Differences between the section and the corresponding section of
the JTPA nondiscrimination regulations are described below.
Paragraph 37.9(a): This paragraph requires recipients to ensure
that communication with certain groups of individuals with disabilities
are as effective as communications with others. The paragraph is
identical to Paragraph 34.6(a), except that the term ``registrants''
has been added to the list of such groups. The addition is necessary in
order to tailor the regulations to the requirements of the WIA program.
This change is not intended to alter the meaning of the paragraph.
Paragraph 37.9(b): Two words have been added to this paragraph in
order to clarify its meaning. The first sentence of the paragraph
requires a recipient to ``furnish appropriate auxiliary aids or
services when necessary'' to give individuals with disabilities an
equal opportunity to participate in the program or activity that
receives Federal financial assistance. However, the second sentence of
29 CFR 34.6(b) referred only to a recipient's obligation to determine
what auxiliary aids or services are ``necessary.'' In order to
eliminate confusion, the phrase ``appropriate and'' has been added to
the second sentence, so that it now refers to a recipient's obligation
to determine what auxiliary aids or services are ``appropriate and
necessary.''
Paragraph 37.9(c): The JTPA counterpart to this paragraph is 29 CFR
34.6(c). That paragraph was written in the passive voice. The paragraph
has been shifted to the active voice, to clarify that the recipient has
the responsibility of using telecommunications devices for individuals
with hearing impairments, or other equally effective communications
systems, in order to communicate by telephone with such individuals.
Additionally, the acronym ``TTY,'' which is occasionally used as an
alternative to the acronym ``TDD'' for such communications systems, has
been added.
The phrase ``telephone relay services,'' which has been added as an
example of an ``equally effective communications system,'' refers to
services established under Title IV of the ADA to permit communications
between individuals who communicate by TDD/TTY and individuals who
communicate by the telephone alone. These relay services involve a
relay operator using both a standard telephone and a TDD/TTY to type
the voice messages to the TDD/TTY user and read the TDD/TTY messages to
the standard telephone user. Where such relay services are available, a
recipient may use these services to meet the requirements of this
section. However, where the recipient has extensive telephone contact
with the public, or where the provision of telephone services is a
major function of the recipient, the recipient should use TDDs/TTYs to
ensure more immediate access.
Paragraph 37.9(d): This paragraph is identical to 29 CFR 34.6(d),
except that, consistent with plain language principles, the term
``shall'' has been replaced by ``must.''
Paragraphs 37.9(e)(1) and (2): These paragraph generally contain
the same information as 29 CFR 34.6(e). The information has been
presented in outline form to improve its readability. In addition, two
sentences have been added to Paragraph 37.9(e)(1) to emphasize that
``signage'' is a term of art and to explain the standards that signage
must meet under the regulations.
Paragraphs 37.9(f)(1)-(3): These paragraphs, which deal with
circumstances in which a recipient believes that a particular action
would result in a fundamental alteration to the nature of a service,
program, or activity, contain the same requirements as 29 CFR
34.6(f)(1)-(3). Because the Interim Final Rule (unlike the JTPA
nondiscrimination regulations) includes a definition of ``fundamental
alteration'' that incorporates the concept of ``undue financial and
administrative burdens,'' that phrase is now redundant, and has been
omitted from the paragraphs. See the discussion in this preamble about
the definition of ``fundamental alteration'' in Section 37.4. In
addition, references to JTPA have been changed to refer to WIA. None of
these changes is intended to alter the meaning of these paragraphs.
Section 37.10 To what extent are employment practices covered by this
part?
This section contains information similar to that in 29 CFR
34.7(b)-(g). References to JTPA have been changed to refer to WIA. In
addition, the reference to Equal Employment Opportunity Commission
``guidelines'' has been changed to ``guidance,'' and the material in 29
CFR 34.7(a), which defines the term ``employment practices,'' has been
moved to the definition section (Section 37.4) in this Interim Final
Rule. These changes are not intended to alter the meaning of the
section.
Paragraph 37.10(a)(1) and (2): These paragraphs contain information
similar to that in 29 CFR 34.7(b). Language has been added to this
paragraph to clarify that the section applies to the employment
practices of 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 WIA, to the extent that the program or activity is being
conducted as part of the One-Stop delivery system. In addition, the
information has been presented in outline form to improve its
readability.
Paragraph 37.10(d): The corresponding paragraph in the JTPA
nondiscrimination regulations, 29 CFR
[[ Page 61701]]
34.7(e), stated that part 34 did not affect recipients' obligations to
comply with the provisions of Subparts B and C and Appendix A of 29 CFR
part 32. As noted in the discussion in this preamble about Paragraph
37.3(b), that paragraph has been amended to incorporate the cited
provisions by reference. This paragraph has been amended accordingly.
Paragraph 37.10(f): This paragraph, which notes that recipients
should be aware of their obligations to comply with the anti-
discrimination provisions of the Immigration and Nationality Act, has
been added at the request of the Department of Justice. See the
discussion in this preamble about Paragraph 37.3(c)(9).
Section 37.11 To what extent are intimidation and retaliation
prohibited by this part?
This section contains the same requirements as 29 CFR 34.8.
Consistent with plain-language guidelines, the section has been
organized slightly differently from the JTPA section, and presented in
outline form to improve its readability. Also, references to JTPA have
been changed to refer to WIA. None of these changes is intended to
alter the meaning of the section.
Section 37.12 What Department of Labor office is responsible for
administering this part?
This section contains the same requirements as 29 CFR 34.9(a). The
section refers to the Civil Rights Center, or CRC, which was known as
the Directorate of Civil Rights, or DCR, at the time the JTPA
nondiscrimination regulations were promulgated. Also, references to
JTPA in the previous section have been changed in this section, where
appropriate, to refer to WIA. Neither of these changes is intended to
alter the meaning of this section.
Some recipients have expressed confusion about which Department of
Labor agency they should contact for answers to questions about the
nondiscrimination and equal opportunity requirements of the JTPA and
WIA programs. This confusion is understandable: the Department's
Employment and Training Administration (ETA) is responsible for, and
has expertise about, most aspects of the JTPA and WIA programs. As a
result, recipient staff members are accustomed to approaching ETA
personnel for answers to JTPA- and WIA-related questions. However, CRC,
rather than ETA, is responsible for, and has expertise about, the
particular aspects of the JTPA and WIA programs relating to
nondiscrimination and equal opportunity. Recipients will therefore be
able to receive more expeditious answers to questions about these
aspects of the programs by contacting CRC directly.
Section 37.13 Who is responsible for providing interpretations of this
part?
This section is identical to 29 CFR 34.9(b), except that the
reference to JTPA has been changed to refer to WIA. This change is not
intended to alter the meaning of this section. See the discussion of
Section 37.12 above.
Section 37.14 Under what circumstances may the Secretary delegate
responsibility under this part?
This section is identical to 29 CFR 34.12(a) and (b), with the
following exceptions:
(1) The references to other regulatory sections within part 34 have
been changed to reflect the numbering of this Interim Final Rule; and
(2) References to JTPA have been changed to refer to WIA.
Neither of these changes is intended to alter the meaning of this
section.
Section 37.15 What are the Director's responsibilities to coordinate
with other civil rights agencies?
This section generally contains the same requirements as 29 CFR
34.12(c). At the request of the Department of Justice, a reference to
the anti-discrimination provision of the Immigration and Nationality
Act has been added to the list of laws with regard to which the
Director must coordinate with other Federal civil rights agencies. See
the discussion in this preamble about Paragraph 37.3(c)(9).
In addition, consistent with plain-language guidelines, this
section has been organized slightly differently from the JTPA section,
and presented in outline form to improve its readability. Also,
references to JTPA have been changed to refer to WIA. Neither of the
latter changes is intended to alter the meaning of this section.
Section 37.16 What is this part's effect on a recipient's obligations
under other laws, and what limitations apply?
Paragraphs (a) and (b) of this section are identical to the
corresponding paragraphs in 29 CFR 34.11, except that references to
JTPA have been changed to refer to WIA. This change is not intended to
alter the meaning of the paragraphs.
Paragraph (a) of this section means that a recipient is not excused
from complying with the nondiscrimination and equal opportunity
provisions of WIA and this part, even if a State or local law requires
the recipient to discriminate on a prohibited ground.
Similarly, paragraph (b) of this section means that no rule or
regulation of a private organization, club, league, or association that
requires a recipient to discriminate on a prohibited ground excuses a
recipient from complying with the nondiscrimination and equal
opportunity provisions of WIA and this part.
Paragraph (c) of this section contains the same requirements as 29
CFR 34.11(c). It has been rewritten to improve its clarity. The
paragraph bars recipients, while recruiting, selecting, or placing
individuals in programs or activities, from considering whether job
opportunities in any particular occupation or profession will be open
to qualified individuals with disabilities, or to persons of a certain
race, color, religion, sex, national origin, age, political affiliation
or belief, or citizenship. For example, a recipient operating a WIA
Title I--financially assisted training program must not steer women
away from training programs for construction work because the recipient
believes that women will have difficulty finding jobs in construction.
This paragraph does not change the recipient's general obligation under
WIA to assure that training is focused on occupations that are in
demand.
Subpart B--Recordkeeping and Other Affirmative Obligations of
Recipients
The requirements in this subpart are generally similar to the
requirements in Subpart B of part 34. Consistent with plain-language
guidelines, some of the sections within the subpart have been
rearranged in a more logical order, and lengthy sections have been
divided into shorter sections treating narrower topics. These changes
are not intended to alter the overall meaning of this subpart, or the
meaning of any of its component sections.
Assurances
Section 37.20 What is a recipient's obligation to provide a written
assurance?
This section contains the same requirements as 29 CFR 34.20(a) and
(b). Differences between this section and the corresponding section of
the JTPA nondiscrimination regulations are described below.
Paragraph 37.20(a)(1): In this paragraph, the introductory
paragraph has been rewritten to eliminate redundancy, and the required
assurance has been rewritten consistent with plain-language guidelines.
These
[[ Page 61702]]
changes are not intended to alter the meaning of the assurance or the
paragraph.
The rewritten assurance states that the recipient must not
discriminate on the basis of ``citizenship/status as a lawfully
admitted immigrant authorized to work in the United States.'' This
change has been made to convey more accurately the definition of
``discrimination on the ground of citizenship'' contained in Section
37.4.
Paragraphs 37.20(a)(2): These paragraphs are identical to 29 CFR
34.20(a)(2) and (b), with the following exceptions:
(1) The references to other regulatory sections within part 34 have
been changed to reflect the numbering of this Interim Final Rule; and
(2) References to JTPA have been changed to refer to WIA.
Neither of these changes is intended to alter the meaning of these
paragraphs.
Section 37.21 How long will the recipient's obligation under the
assurance last, and how broad is the obligation?
This section contains the same general requirements as 29 CFR
34.20(c). References to JTPA have been changed to refer to Title I of
WIA, and the material has been presented in outline form to improve its
clarity. In addition, two new clauses have been added. The first clause
extends the obligation for the period during which the property is used
``for another purpose involving the provision of * * * services or
benefits'' that are similar to those provided under WIA Title I. This
clause has been added for consistency with other Federal regulations
involving Federally-assisted programs. See, e.g., 28 CFR 42.105(a)(1)
(implementing Title VI); 34 CFR 100.4(a)(1) (applying Title VI to
programs assisted through the Department of Education).
The second new clause extends the obligation under the assurance to
a transferee for the period until the transferee has compensated the
Departmental grantmaking agency for the fair market value of the
property transferred. This clause has been added in order to ensure
that a transferee may not benefit from a transfer of property under the
WIA Title I program without being subjected to the nondiscrimination
and equal opportunity obligations of WIA and this part.
Section 37.22 How must covenants be used in connection with this part?
Generally, this section contains the same requirements as 29 CFR
34.20(d). References to JTPA have been changed to refer to Title I of
WIA. In addition, paragraph (a) has been amended to require that the
covenant must assure compliance with the nondiscrimination and equal
opportunity provisions for the period described in Section 37.21.
Additionally, the clause, described in the discussion of Section 37.21,
that extends the obligation for the period during which the property is
used ``for another purpose involving the provision of similar services
or benefits'' has been added to this section as well. See the
discussion of Section 37.21 above.
Equal Opportunity Officers
Section 37.23 Who must designate an Equal Opportunity Officer?
This section is based on the first sentence of 29 CFR 34.22(a). The
section is not intended to alter the requirements of the corresponding
JTPA regulation with regard to the entities that are required to
designate Equal Opportunity Officers (``EO Officers'').
Section 37.24 Who is eligible to serve as an Equal Opportunity
Officer?
The material in this section is new. It is intended to clarify and
emphasize the significance and level of authority that recipients must
give to the Equal Opportunity Officer position, and to the individual
who holds that po