[Federal Register: November 12, 1999 (Volume 64, Number 218)]
[Rules and Regulations]
[Page 61691-61738]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12no99-28]
[[Page 61691]]
_______________________________________________________________________
Part II
Department of Labor
_______________________________________________________________________
Office of the Secretary
_______________________________________________________________________
29 CFR Part 37
Implementation of the Nondiscrimination and Equal Opportunity
Provisions of the Workforce Investment Act of 1998; Final Rule
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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.
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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.
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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:
<bullet> Some sections have been subdivided, to make the content of
individual sections more homogeneous.
<bullet> Some sections have been more logically reordered.
<bullet> 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.
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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
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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.
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(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 position. Much (though by no means all) of the
responsibility for a recipient's nondiscrimination and equal
opportunity program rests on the shoulders of the EO Officer. CRC's
experience has demonstrated that in order for such programs to function
fairly and effectively, the EO Officer must be a senior-level employee
whose responsibilities in the position present no conflicts of interest
with his or her other responsibilities. In addition, the recipient must
establish clear lines of authority and accountability for the program,
and must provide the EO Officer with appropriate levels of support. See
the discussion of Sections 37.25 and 37.26 below.
As with part 34, this section does not require that recipients
designate a separate or additional EO Officer to implement the
nondiscrimination obligations imposed by WIA and this part. Nor is this
section intended to require that the WIA EO Officer be employed in that
position full-time. Recipients may still use their existing EO Officer
and staff (assuming that the EO Officer meets the requirements of this
section), or assign additional, non-WIA-related duties to a newly-
appointed EO Officer, so long as the EO Officer is able to give top
priority to, and to adequately accomplish all of, his/her
responsibilities under the nondiscrimination and equal opportunity
provisions of WIA and this part.
Section 37.25 What are the responsibilities of an Equal Opportunity
Officer?
This section consolidates and clarifies the responsibilities that
were conferred on EO Officers under 29 CFR part 34. The source of each
proposed paragraph is set forth below.
The list of responsibilities provided in this section is not
intended to be exclusive. The EO Officer must also perform any
additional duties that may arise from his/her administration of the
recipient's nondiscrimination and equal opportunity obligations under
WIA and this part.
Paragraph 37.25(a): This paragraph, which requires the EO Officer
to serve as the recipient's liaison with CRC, contains one of the
recipients' responsibilities listed in 29 CFR 34.22(a). Other
responsibilities listed in that paragraph of the JTPA nondiscrimination
regulations are discussed in appropriate sections below.
This paragraph of the Interim Final Rule signifies that the EO
Officer and his/her staff will serve as the point of contact for all
recipient personnel who have questions about WIA's nondiscrimination
and equal opportunity program. The EO Officer will have both expertise
in the subject and an ongoing relationship with CRC staff. Because of
that expertise, the EO Officer may be able to answer recipient staff
members' questions based on his or her own knowledge of the program.
In addition, CRC has found this requirement to be a significant
component of a program with clear lines of authority and
accountability, as discussed in Section 37.24 above. Having a single
point of contact, at both the recipient and departmental levels, helps
to ensure a consistent interpretation and application of the
requirements of the nondiscrimination and equal opportunity provisions
of WIA and this part. See the discussion above about Section 37.12.
Paragraphs 37.25(b)-(c): These paragraphs require the EO Officer to
monitor the activities of the recipient and its recipients to ensure
that the recipients' nondiscrimination and equal opportunity
obligations are not being violated, and to review their written
policies to ensure that those policies are nondiscriminatory. CRC's
experience has demonstrated that these two responsibilities are an
integral part of the most effective equal opportunity programs of
recipients under JTPA.
[[Page 61703]]
These paragraphs are not intended to impose additional
responsibilities upon recipients or their EO Officers. The paragraphs
are intended merely to clarify the responsibilities that were already
imposed under the JTPA program, and to emphasize that the EO Officer
should take a leadership role in the operation of the recipient's
nondiscrimination and equal opportunity programs.
Paragraph 37.25(d): This paragraph, which requires the EO Officer
to adopt, publish, and oversee the recipient's procedures for
processing discrimination complaints, contains the same requirements as
29 CFR 34.42(b).
Paragraphs 37.25(e)-(g): These paragraphs contain the
responsibilities of EO Officers that are listed in 29 CFR 34.22(a).
Other responsibilities listed in that paragraph of the JTPA
nondiscrimination regulations belong to recipients and are listed
above, in Paragraph 37.25(a), or below, in Section 37.26.
Section 37.26 What are a recipient's obligations relating to the Equal
Opportunity Officer?
This section consolidates and clarifies the obligations that were
conferred on recipients under 29 CFR part 34 regarding their EO
Officers. The source of each paragraph is set forth below.
Paragraph 37.26(a): This paragraph, which requires recipients to
publicize the EO Officer's name and contact information, contains the
same requirements, in a more detailed form, as the last sentence of 29
CFR 34.22(a).
Paragraph 37.26(b): This paragraph clarifies that where a recipient
provides internal and external notice about its nondiscrimination and
equal opportunity programs, it must also provide information about ways
to contact its EO Officer. See 29 CFR 34.23(a) and (b), and the
discussion of Sections 37.29 through 37.31, 37.34, and 37.36 below.
Paragraph 37.26(c): This paragraph is based on 29 CFR 34.22(b). It
has been rewritten to emphasize that, as explained in the discussion of
Section 37.24 above, the success of a recipient's nondiscrimination and
equal opportunity program depends heavily upon the tangible and
intangible support that the recipient provides to its EO Officer, and
that the recipient's top management should provide a significant
percentage of that support.
Paragraph 37.26(d): This paragraph requires a recipient to ensure
that the EO Officer and his/her staff are afforded the opportunity to
receive the training necessary and appropriate to maintain competency.
This requirement is based on the language 29 CFR 34.22(a) which
required the recipient to pay for any training that the Director
required its EO Officer and staff to take. The requirement has been
rewritten to emphasize that the recipient is responsible for ensuring
that its EO Officer and staff maintain the level of knowledge, skills,
and abilities necessary to carry out their responsibilities fully and
effectively, and that the training needed to maintain this level of
competency in a particular case, or for a particular recipient, may be
more extensive than the training that the Director requires.
Section 37.27 What are the obligations of small recipients relating to
Equal Opportunity Officers?
This section contains the same requirements as 29 CFR 34.22(c).
Consistent with plain-language guidelines, the section has been
slightly rewritten to improve its clarity. Also, the reference to other
regulatory sections within part 34 has been changed to reflect the
numbering of this Interim Final Rule. These changes are not intended to
alter the meaning of this section.
Section 37.28 What are the obligations of service providers relating
to Equal Opportunity Officers?
This section contains the same requirements as 29 CFR 34.22(d). As
with Section 37.27, the section has been slightly rewritten, and the
reference to another regulatory section within part 34 has been changed
to reflect the numbering of this Interim Final Rule. Also, JTPA-related
terminology (the references to SDA grant recipients and Substate
grantees) has been replaced by WIA-related terminology (the reference
to LWIA grant recipients). Again, these changes are not intended to
alter the meaning of this section.
Notice and Communications
Section 37.29 What are a recipient's obligations to disseminate its
equal opportunity policy?
This section contains the same requirements as 29 CFR 34.23(a)(1),
with the addition of related material from 34.23(a)(7). Consistent with
plain-language guidelines, the section has been organized slightly
differently from 29 CFR 34.23(a)(1), and has been presented in outline
form to improve its readability. Also, WIA-related terminology (the
reference to ``registrants'') has been added where appropriate, and the
reference to another regulatory section within part 34 has been changed
to reflect the numbering of this Interim Final Rule. None of these
changes is intended to alter the meaning of this section.
Section 37.30 What specific wording must the notice contain?
This section contains the same requirements as 29 CFR 34.23(a)(5).
Both the introductory language and the notice have been rewritten
consistent with plain-language guidelines. Also, references to JTPA
have been replaced by references to WIA Title I, and the time frame
within which a recipient must process a complaint has been extended to
90 days, consistent with the changes included in this Interim Final
Rule. See the discussion of Section 37.76 in this preamble; see also
the notice in Section 37.30 of the Interim Final Rule.
The rewritten notice 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.
The notice contains references to a document entitled a ``Notice of
Final Action.'' As discussed in Section 37.76 of this preamble, the
``Notice of Final Action'' is merely a formal name for a document that
a recipient was required under part 34 to issue when it finished
processing a discrimination complaint. Therefore, the reference to a
``Notice of Final Action'' is not a substantive change to the notice
required by this section.
Section 37.31 Where must the notice required by Sections 37.29 and
37.30 be published?
This section contains the same requirements as 29 CFR 34.23(a)(2)
and (3). Consistent with plain-language guidelines, the section has
been organized slightly differently from the JTPA nondiscrimination
regulations, and has been presented in outline form to improve its
readability. Also, the reference to another regulatory paragraph within
part 34 has been changed to reflect the numbering of this Interim Final
Rule. None of these changes is intended to alter the meaning of the
section.
A reference to ``electronic communications'' has been added to
Section 37.31(a)(2), to reflect the growth in computer technology, and
the related expansion of electronic communications, that have taken
place since the JTPA nondiscrimination regulations were promulgated in
1992.
[[Page 61704]]
Section 37.32 When must the notice required by Sections 37.29 and
37.30 be provided?
This section contains the same requirements as 29 CFR 34.23(a)(4).
Consistent with plain-language guidelines, the section has been
organized slightly differently from the JTPA nondiscrimination
regulations. Also, the reference to another regulatory paragraph within
part 34 has been changed to reflect the numbering of this Interim Final
Rule. Neither of these changes is intended to alter the meaning of the
paragraph.
Section 37.33 Who is responsible for meeting the notice requirement
with respect to service providers?
This section contains the same requirements as 29 CFR 34.23(a)(6).
JTPA-related terminology (the references to SDA grant recipients and
Substate grantees) has been replaced by WIA-related terminology (the
references to the LWIA grant recipient). Also, the reference to another
regulatory paragraph within part 34 has been changed to reflect the
numbering of this Interim Final Rule. Neither of these changes is
intended to alter the meaning of the section.
Section 37.34 What type of notice must a recipient include in
publications, broadcasts, and other communications?
This section contains the same requirements as 29 CFR 34.23(b).
Differences between the section and the corresponding paragraph of the
JTPA nondiscrimination regulations are described below.
Paragraph 37.34(a): Consistent with plain-language guidelines, this
paragraph has been organized slightly differently from 29 CFR
34.23(b)(1), the corresponding paragraph in the JTPA nondiscrimination
regulations. To reflect the growth in computer technology, and the
related expansion of electronic communications, a reference to
``materials that are ordinarily distributed or communicated in written
and/or oral form, electronically and/or on paper,'' has been added.
Also, because materials that ``describe programs funded under [Title I
of WIA] or the requirements for participation by recipients and
participants'' are frequently distributed to staff and clients, as well
as to the public, a reference to those two groups has been added. In
addition, the acronym ``TTY,'' which, as previously noted, is
occasionally used as an alternative to the acronym ``TDD,'' has been
added. Finally, references to JTPA have been replaced by references to
WIA Title I, and the reference to another regulatory paragraph within
part 34 has been changed to reflect the numbering of this Interim Final
Rule.
Paragraph 37.34(b): The reference to recipients ``required by law
or regulation to'' publish or broadcast information in the news media
has been deleted, in order to clarify that all recipients must include
the required notice in written and electronic publications and
broadcasts, regardless of whether those publications or broadcasts are
required. Also, references to JTPA have been replaced by references to
WIA Title I.
Paragraph 37.34(c): The language contained in 29 CFR 34.23(c) that
prohibited a recipient from ``us[ing] or distribut[ing] a publication
of the type described in paragraph (b) of this section'' has been
replaced by language prohibiting a recipient from ``communicating any
information.'' As with other changes described above, this change was
made to reflect the growth of electronic communication. Recipients now
may reach staff, clients, or the general public through e-mail and
Internet Web sites, as well as through the traditional publications on
paper that were contemplated by the JTPA nondiscrimination regulations.
Additionally, references to JTPA have been replaced by references
to WIA Title I, and the reference to another regulatory paragraph
within part 34 has been changed to reflect the numbering of this
Interim Final Rule.
Section 37.35 What are a recipient's responsibilities to provide
services and information in languages other than English?
The requirements in this section are authorized by the provision in
Section 188 of WIA that bars recipients from discriminating on the
basis of national origin. Cf. Lau v. Nichols, 414 U.S. 563 (1974)
(school system required to provide English language instruction to
students of Chinese ancestry who do not speak English under Section 601
of the Civil Rights Act of 1964, 42 U.S.C. 2000d, which bans
discrimination based on national origin in programs or activities
receiving Federal financial assistance).
Paragraph (a) of this section contains the same requirements as 29
CFR 34.23(c). Consistent with plain-language guidelines, this paragraph
has been organized slightly differently from the corresponding
paragraph in the JTPA nondiscrimination regulations, and has been
presented in outline form to improve its readability. Also, references
to JTPA have been replaced by references to WIA Title I, and the
references to other regulatory paragraphs within part 34 have been
changed to reflect the numbering of this Interim Final Rule.
Paragraph (b) has been added in order to clarify the
responsibilities of recipients to provide services and information to
individuals with limited English-speaking skills where the number or
proportion of such persons in the community served by the recipient
does not reach the levels described in paragraph (a). In such
circumstances, a recipient should make reasonable efforts to meet the
particularized needs of any such individuals who seek services or
information from that recipient.
The differences between paragraphs (a) and (b) of this section may
be explained as follows: Paragraph (a) requires a recipient to take
certain actions before individuals with limited English skills seek
assistance from the recipient. Under this paragraph, the recipient must
assess the scope of its program or activity and the size and
concentration of the population it serves, and establish and carry out
a plan to provide services and information in the language (or
languages) used by a significant number or proportion of members of
that population. Depending upon the combination of these factors, that
plan may include printing materials in the language used by the
``significant number or proportion of the population,'' hiring
permanent staff members who are qualified interpreters in that
language, or various other options.
Under paragraph (b), by contrast, a recipient is not required to
take action in advance. However, when an individual with limited
English skills--who does not speak a language spoken by a ``significant
number or proportion of the population''--seeks services or information
from the recipient, the recipient should then make reasonable efforts
to meet the particularized needs of that individual. Such efforts may
include, but are not limited to, locating and temporarily employing a
qualified interpreter who can communicate in the appropriate language.
As technology advances, various options for complying with the
requirements of this section, such as computerized and/or on-line
translation services, are becoming increasingly available to
recipients, and the cost of these options is decreasing.
Section 37.36 What responsibilities does a recipient have to
communicate information during orientations?
This section contains the same requirements as 29 CFR 34.23(d).
[[Page 61705]]
Consistent with plain-language guidelines, the section has been
organized slightly differently from the corresponding paragraph in the
JTPA nondiscrimination regulations. Also, references to JTPA have been
replaced by references to WIA Title I. In addition, because recipients
may provide orientations for the general public as well as for their
new participants and/or employees, a reference to the general public
has been added.
Data and Information Collection and Maintenance
Section 37.37 What are a recipient's responsibilities to collect and
maintain data and other information?
This section contains the same requirements as 29 CFR 34.24(a),
(a)(1), and (a)(2), with additional, related material included from 29
CFR 34.24(a)(3)(iii), (a)(7), and (e). Differences between this section
and the corresponding paragraphs of the JTPA nondiscrimination
regulations are described below.
Paragraph 37.37(a): This paragraph is identical to 29 CFR 34.24(a),
except that references to JTPA have been replaced by references to WIA.
This change is not intended to alter the meaning of the paragraph.
Paragraph 37.37(b)(1): The first sentence of this paragraph
contains the same requirements as 29 CFR 34.24(a)(1); references to
JTPA have been replaced by references to WIA. The second sentence has
been added to explain that the manner in which the records and data are
kept must allow the Governor and CRC to monitor the recipient's
compliance by conducting statistical and other quantifiable data
analyses. This provision is not a new requirement; it merely clarifies
and codifies CRC's current practices. Compare 29 CFR 34.24(a)(1).
Paragraph 37.37(b)(2): Generally, this paragraph contains the same
requirements as 29 CFR 34.24(a)(2). Consistent with plain-language
guidelines, the paragraph has been slightly rewritten to improve its
clarity. Also, references to JTPA have been replaced by references to
WIA, and WIA-related terminology (the references to ``registrants'' and
to ``eligible applicants/registrants'') has been added where
appropriate. None of these changes is intended to alter the meaning of
the paragraph.
In addition, the last line of the paragraph has been amended to
permit the data and information collected under paragraph (b) of this
section to be used for such ``other use authorized by law.'' This
change has been made to clarify that this Interim Final Rule does not
prohibit recipients from cooperating with Federal, State, and local
agencies that, for law enforcement purposes, seek access to the data
and information collected.
This section does not require recipients to obtain, or to maintain
records regarding, the citizenship status of applicants or
participants.
Paragraph 37.37(c): This paragraph contains the same general
requirements as 29 CFR 34.24(a)(3)(iii). In response to questions that
have arisen about whether recipients must provide the required log of
complaints to CRC when requested to do so, the first sentence has been
amended to clarify that recipients must ``submit [the log] to CRC upon
request.'' Because 29 CFR 34.24(a)(4) already required that grant
applicants and recipients provide, ``[a]t the discretion of the
Director, . . . such information and data'' that the Director
considered necessary to determine whether the entity was complying with
the nondiscrimination and equal opportunity requirements, this addition
was made solely to clarify the regulations. Also, the paragraph has
been slightly rewritten to clarify that a complaint may be based upon
more than one prohibited ground, that every prohibited ground upon
which a particular complaint is based must be recorded in the log, and
that information in the log that could lead to the identification of a
particular individual as having filed a complaint must be kept
confidential.
29 CFR 34.24(a)(3)(iii) contained two identical lists of prohibited
grounds upon which complaints recorded in the required log might have
been filed. For conciseness, the second list of prohibited grounds has
been eliminated. Finally, references to JTPA have been replaced by
references to WIA Title I. Neither of these two changes is intended to
alter the meaning of the paragraph.
Section 37.37(d): This paragraph is identical to 29 CFR 34.24(e).
The current guidelines may be found in 62 FR No. 210, Thursday, October
30, 1997, at 58782, 58790. They may also be found at 28 CFR 42.402(e).
In following these guidelines, recipients should use the combined
format for collection and reporting of data.
Section 37.37(e): This paragraph is identical to 29 CFR
34.24(a)(7), except that JTPA-related terminology (the reference to SDA
grant recipients and Substate grantees) has been replaced by WIA-
related terminology (the reference to the LWIA grant recipient). This
change is not intended to alter the meaning of the paragraph.
Section 37.38 What information must grant applicants and recipients
provide to CRC?
This section consolidates 29 CFR 34.24(a)(3)(i) and (ii), (a)(4),
(a)(5), (a)(6), and (e). Requirements regarding information that grant
applicants and recipients must provide to CRC have been grouped
together. Differences, if any, between the section and the
corresponding paragraphs of the JTPA nondiscrimination regulations are
described below.
Paragraph 37.38(a): This paragraph contains the same general
requirements as 29 CFR 34.24(a)(3)(i). References to JTPA in the
paragraph have been replaced by references to WIA Title I. In addition,
the language requiring grant applicants and recipients to promptly
notify the Director ``of any administrative enforcement actions or
lawsuits filed against it'' has been changed to require such
notification ``when any'' such actions or lawsuits ``are filed.'' This
change was made because of CRC's judgment that grant applicants and
recipients needed guidance about the precise meaning of the requirement
that the notification be made ``promptly.'' The new language emphasizes
that the grant applicant or recipient must notify the Director at the
time that enforcement actions or lawsuits are filed; it also makes the
paragraph more readable.
Also, language that specifies the information that the notification
must contain has been added to this paragraph. The added language is
based upon part of 29 CFR 34.24(a)(3)(ii); the requirements are the
same as those in Section 37.38(b)(2)(i)-(iii).
Paragraph 37.38(b): This paragraph requires grant applicants, as
part of their applications for assistance, and recipients, as part of a
compliance review or monitoring activity conducted by the Director, to
provide the Director with information about any of the following
occurrences from the two years before the application, compliance
review, or monitoring activity:
(1) The names of any other Federal agencies that found the grant
applicant or recipient to be in noncompliance with civil rights
requirements; and
(2) Information about any administrative enforcement actions or
lawsuits that:
(a) were filed during those two years; and
(b) alleged discrimination on any protected ground.
This paragraph contains the same requirements as 29 CFR
34.24(a)(3)(ii). Consistent with plain-language guidelines, this
paragraph has been
[[Page 61706]]
organized slightly differently from the corresponding paragraph in the
JTPA nondiscrimination regulations, and has been presented in outline
form to improve its readability. Also, references to other regulatory
sections within part 34 have been changed to reflect the numbering of
this Interim Final Rule. None of these changes is intended to alter the
meaning of the paragraph.
Paragraph 37.38(c): This paragraph is based upon 29 CFR
34.24(a)(4). It requires grant applicants and recipients to provide CRC
with the data and information necessary to investigate complaints and
conduct compliance reviews. References to JTPA have been replaced by
references to WIA; and the phrase ``in a timely manner'' has been
inserted. This phrase was added in order to emphasize the need for
grant applicants and recipients to respond promptly to the Director's
requests for information. Because the corresponding paragraph in part
34 already required grant applicants and recipients to provide
information ``at the discretion of the Director,'' and the scope of
Director's discretion includes the discretion to determine when
information must be submitted, the latter change is intended merely to
clarify the meaning of the paragraph.
The corresponding paragraph in the JTPA nondiscrimination
regulations specified that the requirement applied to complaints and
compliance reviews ``on grounds prohibited under the nondiscrimination
and equal opportunity provisions of JTPA and this part, other than
race/ethnicity, sex, age, and disability.'' Because 29 CFR 34.24(a)(2)
and (3) already required grant applicants and recipients to record and
submit the race/ethnicity, sex, age, and disability of certain
categories of persons, the paragraph was written this way to emphasize
that grant applicants and recipients were required to provide CRC with
records and data about additional prohibited grounds. However, grant
applicants and recipients found the paragraph confusing. The paragraph
therefore has been rewritten to clarify that they may be requested to
submit data and information necessary to investigate complaints and/or
conduct compliance reviews on any ground prohibited by the
nondiscrimination and equal opportunity provisions of WIA and this
part.
Paragraph 37.38(d)-(e): These paragraphs require grant applicants
and recipients to submit certain specified information at the
discretion of the Director. These paragraphs are identical to 29 CFR
34.24(a)(5)-(6), with the following exceptions:
(1) References to JTPA have been replaced by references to WIA; and
(2) In each paragraph, the phrase ``in a timely manner'' has been
inserted. This phrase was added in order to emphasize the need for
grant applicants and recipients to respond promptly to the Director's
requests for information. As with Paragraph 37.38(c), because each
corresponding paragraph in part 34 already required grant applicants
and recipients to provide information ``at the discretion of the
Director,'' and the scope of Director's discretion includes the
discretion to determine when information must be submitted, these
changes clarify the meaning of these paragraphs.
Paragraph 37.38(f): This paragraph provides that where designation
of persons by race or ethnicity is required, the guidelines of the
Office of Management and Budget must be used. The paragraph is
identical to 29 CFR 34.24(e), and appears in Section 37.37 as well. It
was repeated in this section to clarify that its provisions apply to
information provided to and collected by CRC, as well as to data and
information collected by grant applicants and recipients. The current
guidelines may be found in 62 FR. No. 210, Thursday, October 30, 1997,
at 58782, 58790. They may also be found at 28 CFR 42.402(e). In
following these guidelines, recipients should use the combined format
for collection and reporting of data.
Because this paragraph was applicable to 29 CFR 34.24(a)(4)-(6),
its inclusion in this section does not impose additional
responsibilities upon grant applicants or recipients.
Section 37.39 How long must grant applicants and recipients maintain
the records required under this part?
This section contains the same requirements as 29 CFR 34.24(c),
``Record retention requirements.'' Consistent with plain-language
guidelines, this section has been organized slightly differently from
the corresponding paragraph in the JTPA nondiscrimination regulations,
and has been presented in outline form to improve its readability. This
change is not intended to alter the meaning of the section.
Section 37.40 What access to sources of information must grant
applicants and recipients provide the Director?
This section generally contains the same requirements as 29 CFR
34.24(b), ``Access to sources of information.'' References to JTPA have
been replaced by references to WIA. In addition, the sentence
``Information obtained pursuant to the requirements of this part must
be used only in connection with compliance and enforcement activities
pertinent to the nondiscrimination and equal opportunity provisions of
WIA and this part'' has been deleted from paragraph (b). As with the
change discussed in Section 37.37(b)(2) earlier in this preamble, this
change was made to clarify that this Interim Final Rule does not
prohibit recipients from cooperating with Federal, State, and local
agencies that, for law enforcement purposes, seek access to the data
and information collected.
Paragraph (c) contains the same requirements as the last sentence
of 29 CFR 34.24(b)(2). Consistent with plain-language guidelines, it
has been rewritten to clarify those requirements.
Section 37.41 What responsibilities do grant applicants, recipients,
and the Department have to maintain the confidentiality of the
information collected?
This section is identical to 29 CFR 34.24(d), ``Confidentiality,''
with the following exceptions:
(a) language has been inserted to clarify that the identity of
individuals who file discrimination complaints must be kept
confidential; and
(b) the reference to 29 CFR 34.8 has been changed to reflect the
numbering of this Interim Final Rule.
Neither of these changes is intended to alter the meaning of this
section.
Section 37.42 What are a recipient's responsibilities under this part
to provide universal access to WIA Title I-financially assisted
programs and activities?
This section notifies recipients of their obligation to ensure
universal access for all eligible populations to the aid, benefits,
services, and/or training that the recipient offers under its WIA Title
I--financially assisted programs and activities. Recipients should take
specific actions to reach out to all eligible populations. The rule
provides a nonexclusive list of possible actions, such as targeted
advertising, notification of schools or community interest groups, and
consultation with community service groups, that might be used to
enhance community awareness of a recipient's programs and activities.
Subpart C--Governor's Responsibilities to Implement the
Nondiscrimination and Equal Opportunity Requirements of WIA
The individual sections in this subpart are largely identical to
their corresponding sections within the same
[[Page 61707]]
subpart in part 34. Consistent with plain-language guidelines, they
have been rearranged in a more logical order, and one lengthy section
has 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.
Section 37.50 To whom does this subpart apply?
This section is identical to 29 CFR 34.30, ``Application,'' except
that the references to sections in part 34 have been changed to reflect
the numbering of this Interim Final Rule. This change is not intended
to alter the meaning of this section.
Section 37.51 What are a Governor's oversight responsibilities?
This section contains the same requirements as 29 CFR 34.32(a).
References to JTPA have been replaced by references to WIA Title I, and
the references to sections in part 34 have been changed to reflect the
numbering of this Interim Final Rule. Neither of these changes is
intended to alter the meaning of this section. In addition, language
has been added to clarify that the Governor must negotiate with a
noncomplying recipient ``where appropriate.''
Section 37.52 To what extent may a Governor be liable for the actions
of a recipient s/he has financially assisted under WIA Title I?
This section is identical to 29 CFR 34.32(b) and (c), with the
following exceptions:
(1) References to JTPA have been replaced by references to WIA;
(2) The references to sections in part 34 have been changed to
reflect the numbering of this Interim Final Rule; and
(3) To comply with the rules of grammar, the word ``which'' in
paragraph (a)(2) has been changed to ``that.''
None of these changes is intended to alter the meaning of this
section.
Section 37.53 What are a Governor's oversight responsibilities
regarding recipients' recordkeeping?
This section is identical to 29 CFR 34.31, except that the
references to sections in part 34 have been changed to reflect the
numbering of this Interim Final Rule. These changes are not intended to
alter the meaning of this section.
Section 37.54 What are a Governor's obligations to develop and
maintain a Methods of Administration?
A ``Methods of Administration'' (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 comply, with all requirements imposed by or under
this part.
This section contains the same general requirements as 29 CFR
34.33(a)-(c). References to JTPA have been replaced by references to
WIA, and the references to sections in part 34 have been changed to
reflect the numbering of this Interim Final Rule. Also, the list of
sections referred to in paragraph 37.54(c)(1) has been expanded to
include a description of each section. In addition, consistent with
plain-language guidelines, the information in Paragraphs 37.54(c)(1)
and (c)(2)(vii) has been presented in outline form to improve its
readability. None of these changes is intended to alter the meaning of
these paragraphs.
The reasons for additional changes in the section are described
below.
(1) 29 CFR 34.33(b)(2) required that the MOA be ``[u]pdated
periodically as required by the Director.'' The parallel provision in
Section 37.54, paragraph (b)(2), requires that the MOA be ``[r]eviewed
and updated as required in Section 37.55.'' The reasons for this change
are described below, in the discussion in this preamble about Section
37.55.
(2) Paragraph 37.54(c) has been reserved to give the Department the
opportunity to later amend the regulation to insert a reference to
guidance that the Director intends to issue regarding the requirements
for MOAs.
(2) Paragraph (d)(2)(i) has been added to clarify that the MOA must
include a system that will permit the Governor to carry out his/her
responsibility of determining whether a grant applicant seeking WIA
Title I financial assistance from the State, if funded, or a training
provider, if selected and/or certified as eligible, is likely to comply
with its nondiscrimination and equal opportunity obligations under WIA
and this part. See Section 37.51.
(3) Paragraph (d)(2)(ii) and its subparagraphs are based on 29 CFR
34.33(c)(2)(i). Language has been added to clarify that the Governor
must monitor the compliance of the State's recipients by conducting
statistical and other quantifiable data analyses of each recipient's
records and data, and to provide the minimum requirements for such
monitoring reviews.
(4) Paragraphs (d)(2)(iii) and (d)(2)(iv) are based on 29 CFR
34.33(c)(2)(ii). They have been rewritten to reflect the requirements
CRC actually imposes with regard to the types of documents listed in
the two paragraphs.
(5) 29 CFR 34.33(c)(2)(iii) required the MOA to include procedures
for ensuring that recipients ``provide accessibility to individuals
with disabilities.'' The corresponding paragraph, paragraph (d)(2)(v),
has been changed to clarify and emphasize that the MOA must include
procedures for ensuring that recipients comply with all of the
requirements of Section 504 and this part with regard to individuals
with disabilities, not just those requirements regarding accessibility.
The Department is particularly interested in receiving comments
regarding this section of the Interim Final Rule.
Section 37.55 When must the Governor carry out his or her obligations
with regard to the Methods of Administration?
Paragraph (a) of this section is similar to 29 CFR 34.33(d), except
that it requires the Governor to develop, implement, and submit its
first WIA MOA within 180 days of either the date on which this Interim
Final Rule is effective, or the date on which the Department gives
final approval to the State's Five-Year Plan, whichever is later. If
the MOA submitted by the State under JTPA satisfies the requirements
listed in Section 37.54, the Governor is required only to submit any
necessary updates and/or to certify that no changes are required, as
described below.
The remainder of this section is intended to improve the MOA's
usefulness as a method for both States and CRC to monitor the
compliance of States and their recipients; to initially evaluate
discrimination complaints filed against those States and recipients;
and to reduce the burden on States and recipients by eliminating
unnecessary complaint investigations and/or compliance reviews.
CRC regards the MOA as a baseline instrument for monitoring the
compliance of States and their recipients. By reviewing a State's MOA,
CRC is able to conduct an initial evaluation of the overall systems and
procedures the State has put in place, without the necessity of an
extensive compliance review. Similarly, if a complaint filed with CRC
alleges that a State's or recipient's nondiscrimination and/or equal
opportunity procedures are
[[Page 61708]]
unlawful or unfair, the Director may simply compare the complaint with
the MOA, to establish whether the procedures described in the complaint
are the same ones