An Equal Opportunity Officer is responsible for coordinating a recipient's obligations under 29 CFR Part 38.28. Those responsibilities include, but are not limited to:
- Serving as the recipient's liaison with CRC;
- Monitoring and investigating the recipient's activities, and the activities of the entities that receive WIOA Title I-financial assistance from the recipient, to make sure that the recipient and its subrecipients are not violating their nondiscrimination and equal opportunity obligations under WIOA Title I and this part, which includes monitoring the collection of data required in this part to ensure compliance with the nondiscrimination and equal opportunity requirements of WIOA and 29 CFR 38;
- Reviewing the recipient's written policies to make sure that those policies are nondiscriminatory;
- Developing and publishing the recipient's procedures for processing discrimination complaints under 29 CFR 38.72 through 29 CFR 38.73, including tracking the discrimination complaints filed against the recipient, developing procedures for investigating and resolving discrimination complaints filed against the recipient, making sure that those procedures are followed, and making available to the public, in appropriate languages and formats, the procedures for filing a complaint;
- Conducting outreach and education about equal opportunity and nondiscrimination requirements consistent with §38.40 and how an individual may file a complaint consistent with §38.69;
- Undergoing training (at the recipient's expense) to maintain competency of the EO Officer and staff, as required by the Director; and
- If applicable, overseeing the development and implementation of the recipient's Nondiscrimination Plan under §38.54.
More Information Regarding EO Officer Responsibilities
Example complaint information form: Appendix A
Complaint Processing Sample Letters: Appendix B
29 CFR 38.34 contains a complete list of the categories of individuals and entities that must receive the Notice. Examples of these categories include:
29 CFR 38.36(a) requires that the Notice be distributed in specified ways, including, at a minimum:
29 CFR 38.36(b) requires the following regarding providing the Notice to persons with disabilities:
29 CFR 38.38 requires that specific information must be included in any materials, publications, or broadcasts (including a recipient’s website). The publication must indicate that:
This publications include materials and information that are distributed by any method, including:
It also includes materials and information that are distributed to:
Alternative contact numbers: If the materials, publications, or broadcasts in the category described above include a telephone number for voice contact with the recipient, they must include an alternative telephone number for contact with the recipient through a TDD/TTY or equally effective relay service.
Notice and Communication Resources:
CRC’s website contains not only the English version of the “Equal Opportunity is the Law” Notice, but also links to translations of the Notice into various other languages.
*Note: The language specified in the English version of the Notice must not be changed; simply insert the name and contact information for the recipient’s Equal Opportunity Officer, where indicated, and use the rest of the notice verbatim.
Disclaimer: Content provided in this toolkit does not create new legal obligations, and is not a substitute for the U.S. Code, Code of Federal Regulations, and Federal Register, which are the official sources for applicable statutes, regulations, notices, and other relevant documents.
- Reporting Relationships for EO Matters, Priority of Responsibilities, and Conflicts of Interest
Equal Opportunity Officers are required to report directly to the individual in the highest-level position of authority for the entity that is the recipient. The Governor of every state must designate an individual as a State-level Equal Opportunity Officer (State-level EO Officer), who reports directly to the Governor and is responsible for State Program-wide coordination of compliance with the equal opportunity and nondiscrimination requirements.
Every recipient except small recipients and service providers, as defined in 29 CFR 38.4(hhh) and (ggg), must designate a recipient-level Equal Opportunity Officer (recipient-level EO Officer), who reports directly to the individual in the highest-level position of authority for the entity that is the recipient.
Examples of highest level positions include:
- Governor (for State-level EO Officer),
- the Administrator of the State Department of Employment Services,
- the Chair of the Local Workforce Development Board,
- the Chief Executive Officer,
- the Chief Operating Officer
If the EO Officer does not report directly to the top official, they must have access to that person without undue delay or obstructions, to ensure that the necessary flow of information between the EO Officer and the top official is not hindered.
EO Officers may be assigned other duties, but they must be able to give top priority to, and to adequately accomplish all of, their responsibilities under WIOA Section 188 and the WIOA nondiscrimination regulations. Additionally, they must not have other responsibilities or activities that create a conflict, or the appearance of a conflict, with their duties as an EO Officer.
- Nondiscrimination Plan
Each Governor is required to develop and submit to CRC a copy of the state’s Nondiscrimination Plan (NDP). An NDP is a document that outlines the equal opportunity policies, procedures, and systems established by the Governor to give a reasonable guarantee that the State and its recipients will comply with Federal equal opportunity and nondiscrimination requirements. Each NDP must include narratives describing the actions the State is taking, and documentation that demonstrates that the State is actually taking those actions. The State-level EO Officer is responsible for overseeing the development and implementation of the NDP.
- State Nondiscrimination Plan Equal Opportunity Guidance
- NDP Analysis Checklist (PDF)
- Complaint Processing
Each recipient is responsible for developing and publishing the procedures for processing discrimination complaints that will be used within his or her area of jurisdiction. For example, a State EO Officer is responsible for the discrimination complaint procedures to be used at the State level; s/he may also be responsible for the procedures to be used at other recipient levels, if the State’s NDP so states. The EO Officer is also responsible for making sure that the procedures are followed. The paragraphs below describe the legal requirements that govern the complaint process.
The WIOA nondiscrimination regulations provide that “Any person who believes that either he or she, or any specific class of individuals, has been or is being subjected to discrimination prohibited by WIOA or 29 CFR Part 38, may file a written complaint, either by him/herself or through a representative.” This language essentially means that anyone may file a complaint if they believe that discrimination is taking place within the One-Stop system, or that WIOA Section 188 or the WIOA nondiscrimination regulations are being violated. The complaint may be filed at the recipient level, under the procedures developed and published by the appropriate EO Officer, or at the Federal level with CRC, as the complainant chooses.
- Determining Timeliness
Complaints alleging discrimination, to be timely, must be filed within 180 calendar days of the alleged discrimination. Only the Director of the Civil Rights Center has the authority to extend the 180 day time frame, even for complaints that are filed at the recipient level. Extensions are granted only for “good cause shown.” This means that the complainant must request an extension from the CRC Director and explain why the extension is justified. If the complainant fails to show good cause, the Director will deny the extension request.
- Determining Jurisdiction and Authority
Each complaint must be filed in writing, and must contain the following information:
- The complainant's name and address (or another means of contacting the complainant);
- The identity of the respondent (the individual or entity that the complainant alleges is responsible for the discrimination);
- A description of the complainant's allegations. This description must include enough detail to allow the Director or the recipient, as applicable, to decide whether:
- CRC or the recipient, as applicable, has jurisdiction over the complaint;
- The complaint was filed in time; and
- The complaint has apparent merit; in other words, whether the complainant's allegations, if true, would violate any of the nondiscrimination and equal opportunity provisions of WIOA or 29 CFR 38;
- The complainant's signature or the signature of the complainant's authorized representative.
- Required Elements of Complaint Processing Procedures
29 CFR Part 38 outlines specific elements that must be addressed in a recipient’s complaint processing procedures. The State or the LWDA grant recipient, as provided in the State’s Nondiscrimination Plan, must develop and publish complaint processing procedures as required in 29 CFR § 38.72. Those procedures are applicable to the State or LWDA and the service providers within that State or LWDA. The procedures must include the following elements:
Initial written notice: This document must notify the complainant that the recipient has received the complaint, and inform the complainant of the right to representation.
Written statement of issues: This statement, which is to be provided to the Complainant, must list the issues raised, and for each issue, state whether the recipient will accept the issue for investigation or reject the issue. If an issue is rejected, the statement must include the reason for the rejection.
Process for Fact-finding: The recipient’s procedures must include a period for fact-finding or investigation of the circumstances underlying the complaint.
It is suggested that recipients establish a fact-finding process, explain how it works, state applicable time frames involved, and the identity of the individual or individuals responsible for the process.
Alternative Dispute Resolution (ADR) Process: The recipient’s procedures must include a period during which the recipient attempts to resolve the complaint. The methods available to resolve the complaint must include alternative dispute resolution (ADR). The choice whether to use ADR or the customary process rests with the complainant.
It is suggested that recipients state the specific ADR process they will use, the identity of the individuals(s) who will conduct ADR, how the process will operate, and applicable timeframes.
If the parties do not reach an agreement under ADR, the complainant may file a complaint with the Director of the CRC.
A party to any agreement reached under ADR may file a complaint with the Director in the event the agreement is breached. The non-breaching party may file a complaint with the Director within 30 days of the date on which the nonbreaching party learns of the alleged breach. The Director will evaluate the circumstances to determine whether the agreement has been breached. If he or she determines that the agreement has been breached, the complainant may file a complaint with CRC based upon his/her original allegation(s), and the Director will waive the time deadline for filing such a complaint.
Written Notice of Final Action: A Notice of Final Action must be provided to the complainant within 90 days of the date on which the complaint was filed. For each issue raised in the complaint, the Notice must contain the following:
- The recipient’s decision on the issue and an explanation of the reasons underlying the decision, or
- A description of the way the parties resolved the issue; and
- Notice that the complainant has a right to file a complaint with CRC within 30 days of the date on which the complainant receives the Notice of Final Action if the complainant is dissatisfied with the recipient’s final action on the complaint.
- Complaint Log
29 CFR § 38.43 (b) requires each recipient to maintain, and submit to the Civil Rights Center when requested, a log of complaints filed with it that allege discrimination on the ground(s) of race, color, religion, sex, national origin, age, disability, political affiliation or belief, citizenship, and/or participation in a WIOA Title I-financially assisted program or activity. The EO Officer should make sure that this log is being kept, as part of his/her overall monitoring responsibilities.
- Sample Discrimination Complaint Log [xls]
- Instructions for Sample Discrimination Complaint Log
- Determining Timeliness
- Monitoring compliance with the nondiscrimination and equal opportunity provisions of WIOA and their implementing regulations.
Each Governor is required to establish one or more systems to annually monitor compliance by the State and its recipients with the nondiscrimination provisions of WIOA and their implementing regulations. The system(s) must contain specific elements. Examples of some of the required elements:
- a statistical or other quantifiable analysis of records and data, including analyses by race/ethnicity, sex, age, and disability status;
- an investigation of any significant differences identified by the statistical or quantifiable analysis, to determine whether these differences appear to be caused by discrimination;
- an assessment to determine whether the State and/or its recipients have fulfilled their administrative obligations under WIOA Section 188 and 29 CFR part 38 (such as recordkeeping and providing notice and communication). CRC recommends that this assessment include a review of the State’s or recipient’s compliance with its obligations related to the designation of, and support for, its EO Officer;
- policy communication and training to ensure that EO Officers and other relevant staff members are aware of and can effectively carry out their regulatory responsibilities; review of the State’s and its recipients’ job training plans, contracts, assurances, and other similar documents and agreements to ensure that they are both nondiscriminatory and contain required language regarding nondiscrimination and equal opportunity.
CRC recommends that States communicate monitoring requirements to their recipients. In addition, States must ensure that the required monitoring is occurring and that follow-up action is taken where necessary. The WIOA nondiscrimination regulations place responsibility on each recipient’s EO Officer for ensuring that monitoring takes place.
Below are links to one possible tool that may be helpful in the monitoring process, DOL’s WIOA Section 188 Disability Checklist, and to training about the Checklist that CRC has developed. We plan to update this toolkit periodically to provide links to additional monitoring instruments that may be useful. Additionally, the data analysis section of this toolkit provides information regarding how to analyze data to determine if there are significant differences across various groups.
- Notice and Communication Requirements
As part of their overall monitoring responsibilities under the WIOA nondiscrimination regulations, EO Officers must ensure that the recipients for which they are responsible are complying with their legal obligations related to notice and communication. Those obligations are listed below.
The recipient must notify specified groups of individuals and entities that it is covered by the nondiscrimination provisions of WIOA, and that those provisions grant specific rights.
The “Equal Opportunity is the Law” Notice. Recipients must use the exact text of the Notice that is provided in 29 CFR 38.35. That text explains:
- that discrimination on specific listed bases (race, sex, disability, etc.) is against the law
- where and when to file a discrimination complaint
- Applicants for employment / employees
- Unions and professional organizations
- Members of the public
- Prominent posting on the recipient’s premises
- Through internal memoranda and other communication methods
- Inclusion in handbooks and manuals
- Making the Notice available to each participant, and making it part of the participant’s file
- The Notice must be communicated to such persons as effectively as to persons without disabilities, and
- If the Notice is provided in an alternate format to a participant with a visual impairment, a record of that fact must be included in the participant’s file.
- The Program or Activity is “equal opportunity employer/program,” and that;
- “auxiliary aids and services are available upon request to individuals with disabilities,”
- in writing
- the public at large