Citations Reported in WIA Section 188 Disability Checklist - Office of the Assistant Secretary for Administration and Management (OASAM) - United States Department of Labor

Citations Reported in WIA Section 188 Disability Checklist

Title II- Sect. 188

Reference to 64 FR 61699 (November 12, 1999)




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.

Reference to 65 FR 51984-51990




[Federal Register: August 25, 2000 (Volume 65, Number 166)]



[[Page 51984]]



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DEPARTMENT OF LABOR



Office of the Secretary





State Guidance for Developing Methods of Administration (MOA)

Required by Regulations Implementing Section 188 of the Workforce

Investment Act of 1998 (WIA)



AGENCY: Office of the Secretary.



ACTION: Notice.



-----------------------------------------------------------------------



SUMMARY: The purpose of this notice is to provide interested parties

with the final approved Guidance for use by States in submitting their

Methods of Administration as required by 29 CFR part 37. That part

implements the nondiscrimination and equal opportunity provisions of

the Workforce Investment Act of 1998.



FOR FURTHER INFORMATION CONTACT: Ms. Annabelle T. Lockhart, Director,

Civil Rights Center, U.S. Department of Labor, 200 Constitution Ave.,

N.W., Room N-4123 FPB, Washington, DC 20210, telephone number (202)

219-8927 (voice)(this is not a toll-free number), or (800) 326-2577

(TTY/TDD).



SUPPLEMENTARY INFORMATION: The Workforce Investment Act of 1998 (WIA),

Public Law 105-220 (August 7, 1998), provides the framework for a

reformed national workforce preparation and employment system designed

to meet the needs of the nation's employers, its job seekers, and those

who want to further their careers. While WIA makes many programmatic

changes in the workforce development system authorized under the Job

Training Partnership Act of 1982 (JTPA), one constant has been the

prohibition against discrimination. The nondiscrimination and equal

opportunity provisions of JTPA (section 167) prohibit discrimination

against applicants, beneficiaries and employees on the bases of race,

color, national origin, age, disability, sex, religion, and political

affiliation or belief. Further, section 167 prohibits discrimination

against beneficiaries on the bases of citizenship and participation in

JTPA. The nondiscrimination and equal opportunity provisions of WIA

(section 188) prohibit discrimination against applicants, beneficiaries

and employees on the same bases.

Methods of Administration (MOA), designed to assure the Secretary

of Labor that State programs financially assisted by the Department

operate in a nondiscriminatory manner, have been required of States

since 1984. This requirement was codified when, on January 15, 1993,

the Department of Labor issued 29 CFR part 34, the regulations that

implement section 167 of JTPA. (See 29 CFR 34.33.)

Section 188(e) of WIA requires the Secretary to issue regulations

implementing section 188. An interim final rule implementing that

section was published on November 12, 1999, at 29 CFR part 37. As with

part 34, part 37 includes the requirement that States develop,

implement and maintain, for each of their State programs, an MOA. (See

29 CFR 37.54 and 37.55.) The MOA standards contained in part 37 are

substantially the same as those contained in part 34. States that have

faithfully implemented and maintained their MOAs under JTPA will find

that the time and effort needed to update their MOA to meet WIA

requirements will be minimal.



Signed at Washington, D. C., this 21st day of August, 2000.

Alexis M. Herman,

Secretary of Labor.



ATTACHMENT: State Guidance for Developing Methods of Administration

(MOA) Required by Regulations Implementing Section 188 of the

Workforce Investment Act of 1998 (WIA)



OMB Control No. 1225-0077

Expires January 31, 2003



The regulations that implement the nondiscrimination and equal

opportunity provisions of the Workforce Investment Act of 1998 (WIA),

published at 29 CFR part 37, require that each Governor establish and

adhere to a Methods of Administration (MOA) for his/her State programs.

This document provides Guidance for Governors and States in meeting the

regulatory requirements regarding MOAs.

An MOA is a document that describes the actions an individual State

will take to ensure that its WIA Title I-financially assisted programs,

activities, and recipients are complying, and will continue to comply,

with the nondiscrimination and equal opportunity requirements of WIA

and its implementing regulations. States were first required to prepare

and submit MOAs in 1984, under the Job Training Partnership Act (JTPA).

The requirement was continued in 1993, under the regulations

implementing the nondiscrimination and equal opportunity provisions of

JTPA. The JTPA MOA requirements were set forth in 29 CFR 34.33. The

form and content of the MOAs required under 29 CFR part 37 remain

substantially the same as those of the MOAs required under JTPA.

Title 29 CFR 37.54(a) provides that each Governor must establish

and maintain an MOA for State programs. 29 CFR 37.54(d) describes the

required elements of an MOA. Finally, 29 CFR 37.55 addresses

requirements related to submitting and updating the MOA.

By submitting an MOA, the Governor agrees to fully follow its

provisions. Failure to do so may result in a finding of noncompliance.

See 29 CFR 37.65(a).

This Guidance specifically discusses the requirements of 29 CFR

37.54(b) and 37.55, and is intended to explain, not to add to, the

requirements contained in those regulatory provisions. The Guidance is

based upon materials the Civil Rights Center (CRC) prepared in 1993 to

train Equal Opportunity (EO) Officers regarding the requirements of

MOAs under JTPA. This Guidance does not create new legal requirements

or change current legal requirements. Instead, it reflects the view of

CRC and is intended to serve as a basic resource document on CRC-

administered laws. The legal requirements related to nondiscrimination

and equal opportunity that apply to recipients of financial assistance

under WIA are contained in the statutes and regulations cited in this

Guidance. Every effort has been made to ensure that the information

contained in the Guidance is accurate and up to date.



I. Guidance on Meeting the Requirements of 29 CFR 37.54(b) Section

37.54(b) Requires That Each MOA Shall be:



{time} In writing, addressing each requirement of 29 CFR 37.54(d) with

narrative and documentation;

{time} Reviewed and updated as required by 29 CFR 37.55; and

{time} Signed by the Governor.

The MOA should be organized in the nine elements listed below, with

both a narrative and a documention section for each element.



Section A. Narrative



The first section of each element should be a narrative description

of how the State and its recipients, as that term is defined in 29 CFR

37.4, are meeting and will continue to meet the requirements of part

37. The narrative should be specific. CRC regards the narrative as the

more important section, since it contains the description of what the

State and its recipients are doing and will continue to do to fulfill

their obligations under WIA section 188 and 29 CFR part 37.



Section B. Documentation



The second section of each element should include documentation

that shows how the State is carrying out that element of the MOA. When

reviewing the adequacy of and/or performance under an MOA, CRC may request

additional supporting documentation pursuant to 29 CFR 37.65.

[[Page 51985]]



Element 1. Designation of State-and local-level Equal Opportunity (EO)

Officers (29 CFR 37.54(d)(1)(ii))

In this element, the State should address how it and its recipients

are complying and will continue to comply with the requirements of 29

CFR 37.23 through 37.28. The intent of this section is to ensure that

any individual the recipient appoints as EO Officer has the education,

training and experience, and is provided the necessary ongoing training

and qualified staff, to perform his or her duties assigned under 29 CFR

part 37. Additionally, the EO Officer should not be in a position that

would constitute, or appear to constitute, a conflict of interest.

Further, the State should ensure that he or she reports, on EO matters,

directly to the appropriate official in the organization (see 29 CFR

37.25(e). In summary, any individual appointed as EO Officer should

have the skill, ability, knowledge and authority to properly oversee

and direct the EO program to which that individual has been assigned.

(a) The narrative section of this element should identify, at a

minimum:



{time} Each individual designated as a State-level Equal Opportunity

Officer and each individual designated as a local-level Equal

Opportunity Officer, by name, position title, business address

(including e-mail address if applicable) and telephone number

(including TDD/TTY number). (See 29 CFR 37.23.)



{time} The level within the organization (described in such terms as

the individual's authority and position relative to the top of the

hierarchy) occupied by the EO Officer(s). (See 29 CFR 37.24.)

{time} The duties of the EO Officer(s), and the manner in which those

duties are carried out. (At a minimum, duties assigned to the EO

Officer must include those listed in 29 CFR 37.25.) Describe both the

EO duties, responsibilities and activities associated with the

implementation of 29 CFR part 37, and all other duties,

responsibilities and activities.



Note: The EO Officer may not be assigned duties,

responsibilities or activities that would constitute a conflict of

interest or the appearance of such a conflict; see 29 CFR 37.24.)



{time} The manner in which the recipient makes the identity of the EO

Officer(s) known to applicants, registrants, eligible applicants/

registrants, participants, employees, and applicants for employment, as

well as interested members of the public. (See 29 CFR 37.26.)

{time} The level of staff and other resources available to State- and

local-level EO Officer(s) to ensure that WIA Title I-financially

assisted programs and activities operate in a nondiscriminatory way.

(See 29 CFR 37.26(c).)

{time} The State's plan for ensuring that State- and local-level EO

Officers and their staffs are sufficiently trained to maintain

competency. (See 29 CFR 37.26(d).)

{time} The identity, by name, title and organization, of the

individual to whom each State- and local-level EO Officer reports on

equal opportunity matters.

{time} A description of the professional and support staffing levels

and resources provided to each State- and local-level EO Officer to

assist him or her in ensuring compliance with WIA section 188 and part

37.

{time} The type and level of training each State- and local-level EO

Officer has received and will receive to ensure that he or she is

capable of fulfilling his or her responsibilities as an EO Officer.

{time} The means by which the State makes public the names, position

titles and telephone numbers (including TDD/TTY numbers) of each State-

and local-level EO Officer.

{time} A description of any duties, other than WIA equal opportunity

responsibilities, assigned to each State- and local-level EO Officer.



(b) Documentation for this element to be submitted as part of the

MOA should include, but need not be limited to:



{time} Examples of each document (e.g., notices, directives,

memoranda, letters to community groups, flyers, and relevant pages of

handbooks and manuals) that communicates, either internally or

externally, the EO Officer's name and other required information to

registrants, applicants, eligible applicants/registrants, participants,

applicants for employment, employees, and interested members of the

public.

{time} Examples of each communication (e.g., directives) that

instructs the State's recipients as to the actions they are to take to

comply with 29 CFR 37.23 through 28 with regard to EO Officers.

{time} A copy of the State EO Officer's position description, showing

those duties specifically related to WIA equal opportunity activities,

and other duties.

{time} A representative sample of local-level EO Officer position

descriptions. NOTE: If a single, standard position description has been

adopted for all local-level EO Officers, then a single copy of that

description is sufficient.

{time} Copies of organization chart(s) showing the organizational

location of each EO Officer.

{time} The identity of any staff who perform duties that support WIA

EO activities (e.g., clerical, data analysis), a position description

for each such staff member, and average hours per week spent on EO-

related activities by each such staff member (if positions are not

devoted to WIA equal opportunity activities on a full-time basis).

{time} EO budget and source of funds.

{time} Summary of EO-related training that staff (EO staff and others)

have received and a schedule of EO training to be delivered in the

future. This may be training delivered by the State- or local-level EO

Officer to recipient staff, or training delivered to EO Officers or

recipient staff by outside sources, such as CRC.

Element 2. Notice and Communication (29 CFR 37.54(d)(1)(iii))

In this element, the State should address how it and its recipients

are complying and will continue to comply with the requirements of 29

CFR 37.29 through 37.36. States should ensure the establishment of a

notice and communication system that makes all registrants, applicants,

eligible applicants/registrants, applicants for employment, employees

and interested members of the public aware of both the recipient's

obligation to operate its programs and activities in a

nondiscriminatory manner, and the extent of the rights of members of

these groups to file complaints of discrimination.



(a) The narrative section of this element should describe, at a

minimum:



{time} The methods and frequency of dissemination of the notice,

including initial dissemination. (See 29 CFR 37.29.)

{time} The means by which the notice is made available to individuals

with disabilities. (See 29 CFR 37.31(b).)

{time} The means by which the State ensures that recipients post the

notice. (See 29 CFR 37.33.)

{time} The means by which a copy of the notice is placed in the

participant's file (see 29 CFR 37.31(a)), or where
[[Page 51986]]



the files are maintained electronically, how the requirement of

37.31(a) is and will continue to be met.

{time} The means by which the State ensures that recruitment brochures

and other materials routinely made available to the public include the

statements ``equal opportunity employer/program'' and ``auxiliary aids

and services are available upon request to individuals with

disabilities.'' (See 29 CFR 37.34(a).)

{time} Where a telephone number is included on recruitment brochures

and other materials, the means by which the State ensures that the

materials indicate a TDD/TTY number or provide for an equally effective

means of communication with individuals with hearing impairments. (See

29 CFR 37.34(a).)

{time} The means by which program-related information is published or

broadcast in the news media (e.g., publication of Requests for

Proposal) and the means by which the State ensures that publications/

broadcasts state that the program is an equal opportunity employer/

program and that auxiliary aids and services are available upon request

to individuals with disabilities. (See 29 CFR 37.34(b).)

{time} The manner in which and extent to which information in

languages other than English is provided, and the manner in which the

State ensures that persons of limited English-speaking ability have

access to its programs and activities on a basis equal to that of those

who are proficient in English. (See 29 CFR 37.35.)

{time} The manner in which and extent to which orientations for

registrants, applicants, eligible applicants/registrants, employees,

applicants for employment, and members of the public include a

discussion of the rights of such persons under WIA section 188 and 29

CFR part 37. (See 29 CFR 37.36.)

{time} The steps taken to ensure that communications with individuals

with disabilities are as effective as communications with others. (See

29 CFR 37.29(b).)

{time} The process the State has used and will continue using to

develop and communicate policy and conduct training regarding

nondiscrimination and equal opportunity. (See 29 CFR 37.25(c), and

37.54(d)(2)(iii), and 37.54(d)(2)(vi).)



(b) Documentation for this element to be submitted as part of the

MOA should include, but need not be limited to:



{time} A copy of each communication that instructs the State's

recipients on how they are to comply with the requirements of 37.29

through 37.36 regarding notice and communication.

{time} A copy of the posted notice required by 29 CFR 37.29 and 37.30.

{time} A copy of any checklist of the contents of participant and

employee files, indicating that the notice requirement has been met.

(See 29 CFR 37.31(a)(4).)

{time} A copy of any orientation agendas that include, as an agenda

item, a discussion of equal opportunity and nondiscrimination under WIA

section 188 and 29 CFR part 37. (See 29 CFR 37.36.)

{time} A copy of each item of material, distributed at orientation

sessions, that addresses the rights of individuals under WIA section

188 and 27 CFR part 37. (See 29 CFR 37.36.)

{time} Copies of agendas (and a list of dates) of past and proposed EO

policy briefings and EO training. (See 29 CFR 37.25(f), 37.26(d) and 29

CFR 37.54(d)(2)(vi).)

{time} A copy of each policy issuance or instruction that relates to

WIA section 188 or 29 CFR part 37. (See 29 CFR 37.25(c), 37.54(d)(iii),

29 CFR 54(d)(vi) and 37.54(d)(viii).)

{time} A copy of each recruitment brochure and other item of material

distributed to the public by a WIA Title I-financially assisted

recipient, showing that each includes:

{time} The statements ``equal opportunity employer/program'' and

``auxiliary aids and services are available upon request to individuals

with disabilities''; and

{time} The telephone numbers for TDD/TTY access and/or telephone relay

services. (See 29 CFR 37.34(a).)



[page 51986-Element 3]

Element 3. Review assurances, job training plans, contracts, and

policies and procedures (29 CFR 37.54(d)(1)(i) and (d)(2)(i), (iii) and

(iv))

In this element, the State should address how it and its recipients

are complying and will continue to comply with the requirements of 29

CFR 37.20 and 37.54(d)(1)(i) and (d)(2)(i), (iii) and (iv) regarding

the review of assurances, job training plans, contracts, and policies

and procedures. Additionally, this element should address the

procedures the State and its recipients are following and will continue

to follow in assessing the ability of grant applicants, if funded, or

training providers, if declared eligible, to comply with WIA section

188 and 29 CFR part 37.

(a) The narrative section of this element should describe, at a

minimum, how the State ensures that:



{time} Each grant applicant, and each training provider seeking

eligibility, includes in its application for financial assistance under

Title I of WIA the required EO assurance. (See 29 CFR 37.20(a)(1).)

{time} The required assurance is incorporated into each grant,

cooperative agreement, contract, or other arrangement whereby Federal

financial assistance under Title I of WIA is made available. (See 29

CFR 37.20(a)(2).) NOTE: 29 CFR 37.20(a)(2) provides that the assurance

may be incorporated by reference into these documents.

{time} Each grant applicant, and each training provider seeking

eligibility, is able to provide programmatic and architectural

accessibility for individuals with disabilities. (See subpart C of 29

CFR part 32.)

{time} Job training plans, contracts, assurances, and other similar

agreements entered into by recipients are both nondiscriminatory and

contain the required language regarding nondiscrimination and equal

opportunity. (See 29 CFR 37.54(b)(2)(iv).)

{time} State- and local-level policy issuances, or issuances from

other recipients, are not discriminatory either in intent or effect.

(See 29 CFR 37.54(d)(2)(iii).)

{time} Policies on WIA Title I nondiscrimination and/or equal

opportunity issues are developed and implemented in a timely manner.



(b) Documentation for this element to be submitted as part of the

MOA should include, but need not be limited to:



{time} A copy of each directive that instructs individuals at the

State and/or local level who are responsible for reviewing assurances,

job training plans, contracts, and policies and procedures as to the

requirements of, and their duties under, 29 CFR 37.20, 37.54(d)(1)(i),

and (d)(2)(i), (iii) and (iv).

{time} Copies of assurance pages of plans, contracts, and other

agreements.

{time} Copies of memos or directives to contract managers advising

them to include the required assurance in the appropriate documents.

{time} Copies of checklists or other guidelines used by contract

specialists, attorneys, or others who review contracts and agreements

that indicate that nondiscrimination
[[Page 51987]]



and equal opportunity are considered in the evaluation of such

documents.

{time} A copy of procedures developed to review the ability of grant

applicants, and training providers seeking eligibility, to comply with

the nondiscrimination and equal opportunity provisions of WIA and 29

CFR part 37.

{time} A copy of each WIA EO issuance (e.g., the general EO policy

statement, the policy statement on sexual harassment and the policy

statement on religious accommodation).

[Page 51987 Element 4]

Element 4. Universal Access (29 CFR 37.54(d)(1)(vi)

In this element, the State should address how it and its recipients

are complying and will continue to comply with the requirements of 29

CFR 37.42 relating to the provision of universal access to programs and

activities.

(a) The narrative section of this element should describe, at a

minimum, how:



{time} The State has communicated the obligation of recipients

(including, e.g., LWIAs, one-stop operators and service providers) to

make efforts (including outreach) to broaden the composition of the

pool of those considered for participation or employment in their

programs and activities in an effort to include members of both sexes,

of the various racial and ethnic groups and of various age groups, as

well as individuals with disabilities.

{time} Recipients have made and will continue to make efforts to

broaden the composition of those considered for participation or

employment in their programs and activities, as described above.

{time} The State monitors and evaluates the success of recipient

efforts to broaden the composition of those considered for

participation and employment in their programs and activities, as

described above.



(b) Documentation for this element to be submitted as part of the

MOA should include, but need not be limited to:



{time} Copies of targeting, outreach and recruitment plans.

{time} Criteria for determining priority of service.

{time} Copies of plans for One-Stop delivery systems to expand the

pool of those considered for participation or employment in their

programs and by race/ethnicity, sex, disability status, and age.

{time} Samples of brochures, posters, public-service announcements,

computer screens displaying related information, and other publicity

materials.

Element 5. Compliance with section 504 of the Rehabilitation Act of

1973, as amended and 29 CFR part 37 (29 CFR 37.54(d)(2)(v))

In this element, the State should address how it and its recipients

are complying and will continue to comply with the requirements of the

disability related requirements of WIA section 188; Section 504 of the

Rehabilitation Act of 1973, as amended; and their implementing

regulations, including but not limited to 29 CFR 37.7, 37.8, and 37.9

and Subparts B and C of 29 CFR Part 32.

(a) The narrative section of this element should describe, at a

minimum how the State ensures that recipients:



{time} Meet their obligation not to discriminate on the basis of

disability. (See 29 CFR 32.12 (a), 32.26, and 37.7.)

{time} Provide reasonable accommodation for individuals with

disabilities (See 29 CFR 32.13 and 29 CFR 37.8);

{time} Provide reasonable modification of policies, practices and

procedures, as required (See 29 CFR 37.8);

{time} Provide architectural accessibility for individuals with

disabilities (See 29 CFR 32.28); and

{time} Provide programmatic accessibility for persons with

disabilities (See 29 CFR 32.27).

{time} Provide for and adhere to a schedule to evaluate job

qualifications to ensure that the qualifications do not discriminate on

the basis of disability. (See 29 CFR 32.14.)

{time} Limit preemployment/employment medical inquiries to those

permitted by and in accordance with WIA section 188, Section 504, the

Americans with Disabilities Act of 1990, and their implementing

regulations. (See 29 CFR 32.15.)

{time} Ensure the confidentiality of medical information provided by

registrants, applicants, eligible applicants/registrants, participants,

employees, and applicants for employment. (See 29 CFR 32.15.)

{time} Administer their WIA Title I-financially assisted programs and

activities so that each individual with a disability participates in

the most integrated setting appropriate to that individual. (See 29 CFR

37.7(d).)

{time} Are able to communicate with persons with disabilities as

effectively as with others. (See 29 CFR 37.9.)



(b) Documentation for this element to be submitted as part of the

MOA should include, but need not be limited to:



{time} Copies of policies/procedures issued by the State or any of its

WIA Title I recipients, such as:

{time} The procedures by which persons with disabilities are assured

of participation in programs and activities in as integrated setting as

possible;

{time} The procedures by which the availability of reasonable

accommodation and reasonable modification are made known to persons

with disabilities, and the procedures for making and resolving such

requests;

{time} The procedures by which the State ensures that communication

with persons with disabilities is as effective as communication with

others; and

{time} The procedures by which the State ensures that the programs and

activities operated by its WIA Title I recipients are architecturally

and programmatically accessible to individuals with disabilities.

{time} Any evaluation conducted to determine the programmatic or

architectural accessibility of a WIA Title I-financially assisted

program or activity and the status of any corrective actions taken by

the recipient involved.

{time} Copies of publications and agendas for any training conducted

for recipient staff that is intended to raise awareness of disability

issues.

Element 6. Data and Information Collection and Maintenance (29 CFR

37.54(d)(1)(iv) and (vi))

In this element, the State should address how it and its recipients

are complying and will continue to comply with the requirements of 29

CFR 37.37 through 37.41 related to data and information collection and

maintenance. The State must ensure that a data and information

collection and maintenance system for its WIA Title I-financially

assisted State programs is established and maintained. (See 29 CFR

37.53.)

The most important purposes of the equal opportunity data and

information collection and maintenance system required by 29 CFR part

37 are to assist CRC and those assigned by the State (e.g., State- and/

or local-level EO Officers) in:



{time} Monitoring recipient equal opportunity performance;

{time} Identifying instances or areas of discrimination; and

{time} Identifying individuals or groups of individuals who have been



[[Page 51988]]



discriminated against on a basis prohibited by WIA section 188 and 29

CFR part 37.

A vital element of any system designed to fulfill these purposes is

a way to permit the reviewer to correlate aggregate data to individual

records. For example, 29 CFR part 37 requires that recipient's collect

four pieces of demographic information about each registrant,

applicant, eligible applicant, participant, employee, and applicant for

employment: Race/ethnicity, sex, age, and disability status. This

information must be kept separate from the recipient's individual

records about such persons. However, the system for data and

information collection and maintenance must be designed in such a way

to allow cross referencing of data to individual records.

It is CRC's policy that existing systems for data and information

collection and maintenance that meet all the requirements of 29 CFR

37.37 through 37.41 are acceptable. These systems may be designed by

the recipient or some other entity. However, to the extent that a

system does not meet all the requirements of these regulatory sections,

that system must be modified so that it does meet those requirements.

(a) The narrative section of this element should describe, at a

minimum, how the State ensures that:



{time} Recipients:

{time} Collect and maintain records on applicants, registrants,

eligible applicants/registrants, participants, terminees, employees,

and applicants for employment;

{time} Record the race/ethnicity, sex, age and, disability status of

each applicant, registrant, eligible applicant/registrant, participant,

terminee, employee, and applicant for employment (See 29 CFR

37.37(b)(2).);

{time} Treat records, particularly those containing medical

information, in a manner that ensures their confidentiality (See 29 CFR

32.15; 29 CFR 37.37(b)(2); and 29 CFR 37.41.);

{time} Maintain a log of complaints filed that allege discrimination

on one or more of the bases prohibited by WIA section 188 (See 29 CFR

37.37(c).); and

{time} Maintain such records for a period of three years. (See 29 CFR

37.39.)

{time} Grant applicants and recipients notify the CRC Director of

administrative enforcement actions and lawsuits brought against them

that allege discrimination on one or more of the bases prohibited by

WIA section 188. (See 29 CFR 37.37(a).)



(b) Documentation for this element to be submitted as part of the

MOA should include, but need not be limited to, copies of:



{time} Instructions to recipients within the State regarding

information collection, access to records, and maintenance of records.

(See 29 CFR 37.37.)

{time} Samples of each policy issuance that discusses ensuring the

confidentiality of demographic information regarding individuals.

{time} Samples of reports regarding the above demographic information.

{time} Samples of formats and instructions, in hard copy and

electronic file forms, for complaint logs used by the State and its

recipients to track complaints that allege a violation of WIA section

188 or 29 CFR part 37.

Element 7. Monitor Recipients for Compliance (29 CFR 37.54(d)(2)(ii))

In this element, the State should address how it and its recipients

are complying and will continue to comply with the requirements of 29

CFR 37.54(d)(1)(iii). The State is required to establish procedures to

monitor periodically all aspects of the recipient's compliance with WIA

section 188 and 29 CFR part 37.

Each EO monitoring review must include a review of each

recipient's:



{time} Compliance with its administrative obligations under WIA

section 188 and 29 CFR part 37 (e.g., assurances, notice and

communication, EO Officers);

{time} Compliance with responsibilities it has been assigned through

the MOA;

{time} Programs and activities, to determine whether discrimination is

occurring. This activity is the most important part of the monitoring

review.



Monitoring recipients to ensure their programs and activities are

operating in a nondiscriminatory manner must involve, at a minimum:

(1) Analysis of the data and records collected by the recipient

pursuant to 29 CFR 37.37 through 41, to determine whether any

differences based upon race/ethnicity or sex have practical or

statistical significance; and

(2) Where significant differences are found, follow-up

investigations to determine, through records review, interviews, and

other appropriate investigative techniques, whether the differences are

due to discrimination.

The analyses mentioned in section (1) above may include those that

may reveal practical significance, such as the ``80% rule'' (see 41 CFR

60-3, the DOL regulation regarding the Uniform Employee Selection

Guidelines), and those that reveal statistical significance, such as

the two-standard deviation test.

(a) The narrative section of this element must describe, at a

minimum, the system for evaluating the extent to which recipients are:



{time} Complying with the administrative obligations of 29 CFR part

37, including, but not limited to:

{time} Assurances. (See 29 CFR 37.20 through 37.22.)

{time} Equal Opportunity Officers. (See 29 CFR 37.23 through 37.28.)

{time} Notice and communication. (See 29 CFR 37.29 through 37.36.)

{time} Data and information collection and maintenance. (See 29 CFR

37.37 through 37.41.)

{time} Universal access. (See 29 CFR 37.42.)

{time} Complaint processing procedures. (See 29 CFR 37.70 through

37.80.)

{time} Performing the responsibilities assigned such recipients by the

State through the MOA, such as:

{time} Conducting equal opportunity monitoring/evaluation reviews of

applicants for and recipients of WIA Title I financial assistance

(including monitoring assurances and programmatic and architectural

accessibility).

{time} Imposing sanctions and corrective actions for violations noted

by a recipient during its monitoring reviews.

{time} Ensuring policy development, communication, and training are

carried out.

{time} Ensuring that their programs and activities are operating in a

nondiscriminatory manner and ensuring equal opportunity, including but

not limited to:

{time} Conducting analyses, by race/ethnicity and sex, of program and

employment activity, including but not limited to rates of application,

placement, and termination, to determine if significant differences

exist, and

{time} Conducting follow-up monitoring to determine the cause of any

such differences, through the analysis of the records of individual

registrants, applicants, eligible applicants/registrants, employees and

applicants for employment; interviews; and other appropriate

techniques.



Additionally, the narrative should describe:



{time} The procedure for reviewing recipients' policies and

procedures, to ensure that the policies and procedures do not violate

the prohibitions contained in 29 CFR 37.5 through 37.10.



[[Page 51989]]



{time} The written reports prepared for each review. These reports

must provide, among other things, that the results of the monitoring

review will be made available to the recipient(s) reviewed.

{time} The involvement of the State- and local-level EO Officer(s) in

conducting reviews. Where EO monitoring is carried out by individuals

other than the State- or local-level EO Officer, the narrative should

provide the names, titles, and organizations of those persons.

{time} The procedure for determining which recipients are to be

reviewed, the frequency of reviews of recipients, and the number of

recipients to be reviewed per year.



(b) Documentation for this element to be submitted as part of the

MOA should include, but need not be limited to, copies of:



{time} Schedules of reviews and criteria for targeting recipients for

review.

{time} Monitoring instrument(s) used by State- and/or local-level

staff to monitor recipient EO activities.

{time} Policy issuances and procedural guidance regarding monitoring

reviews and recipient evaluations.

{time} A representative sample of reports of monitoring reviews,

including findings resulting from reviews and the status of follow-up

actions.

Element 8. Complaint Processing Procedures (29 CFR 37.54(d)(1)(v))

In this element, the State should address how it and its recipients

are complying and will continue to comply with the requirements of 29

CFR 37.76 through 37.79 regarding complaint processing procedures.

(a) The narrative section of this element should describe, at a

minimum, how the State ensures that:



{time} Recipients that are required to do so (see 29 CFR 37.77) have

developed and published complaint procedures. (See 29 CFR 37.76.) At a

minimum, such procedures must:

{time} Provide for the issuance of a written Notice of Final Action

within 90 days of the date on which the complaint is filed . (See 29 CFR

37.76(a).)

{time} Contain the elements listed in 29 CFR 37.76(b), which include:

{time} Initial, written notice to the complainant that contains an

acknowledgment that the recipient has received the complaint, and a

notice that the complainant has the right to be represented in the

complaint process (see 29 CFR 37.76(b)(1));

{time} A written statement, provided to the complainant, that contains

a list of the issues raised in the complaint and, for each issue, a

statement whether the recipient will accept the issue for investigation

or reject the issue, and the reasons for each rejection (see 29 CFR

37.76(b)(2));

{time} A period for fact-finding or investigation of the circumstances

underlying the complaint (see 29 CFR 37.76(b)(3));

{time} A period during which the recipient attempts to resolve the

complaint. The methods available to resolve the complaint must include

alternative dispute resolution (ADR) (see 29 CFR 37.76(b)(4) and (c));

and,

{time} A written Notice of Final Action, provided to the complainant

within 90 days of the date on which the complaint was filed , that

contains, for each issue raised in the complaint:

{time} Either a statement of the recipient's decision on the issue and

an explanation of the reasons underlying the decision, or a description

of the way the parties resolved the issue; and

{time} Notice that the complainant has a right to file a complaint

with CRC within 30 days of the date on which the Notice of Final Action

is issued if he or she is dissatisfied with the recipient's final

action on the complaint. (See 29 CFR 37.76(b)(5).)

{time} Describe the procedures to be followed if the complaint is filed

more than 180 days after the date of the alleged violation. (See

29 CFR 37.78.)

{time} Provide that, if the complainant is dissatisfied with the

outcome of the investigation, or if there is no final resolution of the

complaint within 90 days of the date the complaint is filed , the

complainant is notified that he or she may file his or her complaint

with the Civil Rights Center.

{time} Recipients follow the established procedures.



(b) Documentation for this element to be submitted as part of the

MOA should include, but need not be limited to, a copy of:



{time} The State's discrimination complaint procedures developed

pursuant to 29 CFR 37.76 through 37.79.

{time} The instrument (e.g., directive, memorandum) used to inform

recipients of the complaint procedures and directing recipients as to

their use.

{time} The ADR procedures, if not included with complaint processing

procedures.

Element 9. Corrective Actions/Sanctions (29 CFR 37.54(d)(2)(vii))

In this element, the State should address how it and its recipients

are complying and will continue to comply with the requirements of 29

CFR 37.54(d)(2)(vii).



(a) The narrative section of this element should describe, at a

minimum:



{time} The standard for corrective and remedial actions to be applied

when violations of WIA section 188 or 29 CFR part 37 are found.

Corrective and remedial actions must be designed to completely correct

each violation. For each corrective action, a time frame should be

established that sets the minimum time necessary to completely correct

the violation. In the case of a finding of discrimination, the

procedures must provide, where appropriate, for retroactive relief

(including but not limited to back pay) and prospective relief (e.g.,

training, policy development and communication) to ensure that the

discrimination does not recur.

{time} The procedures for follow-up monitoring to ensure that

commitments to take corrective action and remedial action are

fulfilled.

{time} Reports required from the violating recipient regarding actions

to correct the violation(s).

{time} Sanction procedures to be followed where voluntary compliance

cannot be achieved.



(b) Documentation for this element to be submitted as part of the

MOA should include, but need not be limited to:



{time} A copy of any policy memorandum/directive explaining corrective

actions/sanctions. The sanction procedures described in Subpart E of 29

CFR part 37 may be used as a model for States in the preparation of

their procedures.

{time} A copy of each instrument (e.g., directives, memoranda) used to

inform recipients of the State's procedures regarding corrective

actions and sanctions.



II. Guidance on Meeting the Requirements of 29 CFR 37.55



Section 37.55 requires that each State's MOA must be: Developed and

implemented, and a copy submitted to the CRC

Director within 180 days of the effective date of 29 CFR part 37, or

within 180 days of the Department of Labor's approval of that State's

Strategic Five-year Plan, whichever is later;



[[Page 51990]] Updated when necessary, and the Director notified of any

updates at the time of the update; and Reviewed every two years from

the date on which the initial

MOA is submitted to the Director under 29 CFR 37.55(a)(2); for each

such review, either the changes made to the MOA as a result of the

review, or a certification that no changes are necessary, must be

submitted to the Director.



Initial Submission of MOA



Title 29 CFR 37.55(a) requires that each Governor develop and

implement an MOA, and submit to the Director a copy of that State's

MOA, within 180 days after the State becomes subject to WIA section 188

and 29 CFR part 37. The date on which the 180-day clock begins running

is contingent upon the date upon which DOL gave final approval to the

State's Five-year Strategic Plan (Plan). MOAs of States whose Plan

received final approval on or before November 12, 1999, the effective

date of 29 CFR part 37 we due to be submitted to the Director within

180 days of that effective date, in other words, by May 10, 2000.

On the other hand, MOAs of States whose Plan received final

approval after November 12, 1999, must be submitted 180 days after the

date the Plan received final approval by DOL. For example, State A is

delaying its transition to WIA until July 1, 2000, and does not submit

its Plan to DOL until February 1, 2000. State A's Plan receives final

approval on May 1, 2000. Given this scenario, State A is required to

submit its MOA on or before the date that falls 180 days after May 1.

The final date for the submission of State A's MOA, therefore, is

October 28, 2000.



Note: The 180-day timeframe described above applies only to the

submission of the MOA. In general, States and their WIA Title I-

financially assisted recipients are subject to the requirements of

WIA section 188 and 29 CFR part 37 on November 12, 1999 or on the

date they begin operating WIA Title I programs and activities,

whichever is later. The provisions of JTPA section 167 and its

implementing regulations, 29 CFR part 34 continue to apply to

programs and activities that are implemented under and authorized by

JTPA.



Updating the MOA



Title 29 CFR 37.55(b) requires the Governor to (1) update the MOA

as necessary and (2) notify the Director of those updates. The

requirements regarding updating were not part of the JTPA MOA

regulations at 29 CFR 34.33. CRC deemed these new requirements

necessary as a result of reviews of MOAs developed under JPTA. Those

reviews indicated that the procedures to which a State originally

committed in its MOA were not necessarily those in effect at the time

of CRC's review. The purpose of an MOA is to describe to DOL how a

State will ensure that WIA Title I financial assistance will be

administered in a nondiscriminatory way. Further, the MOA is intended

to be a document that State-and local-level staff and management,

through the EO Officer, can consult when determining appropriate steps

to take when confronted with an EO issue. Therefore, the MOA should be

kept current and the Director notified of any changes.



State-level MOA Review



Title 29 CFR 37.55(c) requires that, every two years from the date

on which the initial MOA is submitted to the Director under 29 CFR

37.55(a)(2), the Governor must review the MOA and its implementation to

determine if any changes are necessary , either to the document or the

way in which it is implemented. At the time of the review, the Governor

must either (1) provide the Director with any changes that are made or

(2) certify to the Director, in writing, that no changes are necessary.

This requirement is also a change from the MOA requirements under JTPA.

It has been CRC's intent that the MOA be a living document, a guide

describing how the State will ensure that its WIA Title I-financially

assisted programs operate in a nondiscriminatory manner. Through these

modest regulatory changes, CRC hopes to convey that the MOA is to be a

document that serves as a guide in fulfilling the recipient's

obligations of nondiscrimination and equal opportunity.



[FR Doc. 00 -21740 Filed 8-24- 00 ; 8:45 am]

BILLING CODE 4510-23-P

Reference to 64 FR 61692-61738




[Federal Register: November 12, 1999 (Volume 64, Number 218)]



[[ Page 61692 ]]





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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.



[[ Page 61693]]



The second category of changes was prompted by the June 1, 1998,

Presidential Memorandum on Plain Language, which instructed Federal

Departments and Agencies to write new regulations in language

understandable to most people. The Department has met the intent of the

President's memorandum by incorporating stylistic changes into the

language and format of these regulations to facilitate their

readability without changing their substantive content. An example of

such a change is the rewording of subsection topic header statements

into the form of questions.

Other examples:

Some sections have been subdivided, to make the content of

individual sections more homogeneous.

Some sections have been more logically reordered.

Terminology has been adjusted to use plain language terms.

As a result, the term ``shall'' has been replaced in this rule by the

terms ``must,'' ``will,'' ``is/are,'' or similar terms, as appropriate.

The term ``must'' connotes an obligation, while the term ``will''

indicates a future action. Similarly, the term ``prior to'' has been

replaced by the term ``before''; ``pursuant to'' has been replaced, as

appropriate, by ``under,'' ``by,'' or ``authorized by''; and ``is

deemed'' or ``will be deemed'' has been replaced, as appropriate, by

``is/are considered'' or ``become(s).''

Again, these changes are not intended to alter the meaning of the

regulations. Rather, the changes are intended to create a more readable

document.

CRC maintains a close relationship and regular contact with the

regulated community. The agency holds an annual national conference on

equal opportunity, attended by several hundred officials and staff of

the State and local agencies that are responsible for ensuring

nondiscrimination in the programs receiving financial assistance under

JTPA and/or WIA Title I. At this conference, and through other in-

person and telephone contacts with CRC, these officials and staff have

discussed directly with CRC staff members the effect that the JTPA

nondiscrimination regulations have had upon their agencies' operations.

Many of the changes, both substantive and stylistic, that were

incorporated in this Interim Final Rule resulted from this input. For

example, because some of these officials told CRC that the 60-day

period provided in the JTPA regulations for recipients to process

discrimination complaints was insufficient, the rule extends the

relevant time period to 90 days.

The Department is particularly interested in receiving comments

regarding any aspects of the Rule that affect the relationship between

the Federal government and the States.



II. Authority



A. Statutory Authority



The statutory authorities for this Interim Final Rule are: Sections

134(b), 136(d)(2)(F), 136(e), 172(a), 183(c), 185(c)(2), 185(d)(1)(E),

186, 187 and 188 of the Workforce Investment Act of 1998, Pub. L. 105-

220, 12 Stat. 936 (29 U.S.C. 2801 et seq.); Title VI of the Civil

Rights Act of 1964, as amended, Pub. L. 88-352, 78 Stat. 252 (42 U.S.C.

2000d, et seq.); Section 504 of the Rehabilitation Act of 1973, as

amended, Pub. L. 93-112, 87 Stat. 390 (29 U.S.C. 794); the Age

Discrimination Act of 1975, as amended, Pub. L. 94-135, 89 Stat. 728

(42 U.S.C. 6101); and Title IX of the Education Amendments of 1972, as

amended, Pub. L. 92-318, 86 Stat. 373 (20 U.S.C. 1681).



B. Departmental Authorization



Secretary's Order 2-81, Section 5a(2), authorized the Assistant

Secretary for Administration and Management, working through the

Director, Office of Civil Rights, to establish and formulate all

policies, standards, and procedures for, as well as to issue rules and

regulations governing, the enforcement of statutes applying

nondiscrimination and equal opportunity requirements to programs and

activities receiving financial assistance from DOL. On October 12,

1986, the Office of Civil Rights was redesignated the Directorate of

Civil Rights by the Assistant Secretary. Effective December 12, 1995,

the Assistant Secretary redesignated the Directorate of Civil Rights as

the Civil Rights Center (CRC). CRC is authorized to monitor and enforce

all nondiscrimination and equal opportunity regulations regarding

programs receiving financial assistance from DOL, including Section 188

of WIA.



C. Interagency Coordination



The Department of Justice (DOJ), under Section 1-201 of Executive

Order 12250 (45 FR 72995, November 4, 1980), is responsible for

coordinating Federal enforcement of most nondiscrimination laws that

apply to federally-assisted programs and activities. Executive Order

12067 (43 FR 28967, July 5, 1978) requires consultation with the Equal

Employment Opportunity Commission (EEOC) about regulations that involve

equal employment opportunity. The Age Discrimination Act of 1975, as

amended, assigns the Secretary of Health and Human Services the

responsibility for coordinating the Federal enforcement effort of that

Act. This Interim Final Rule has been coordinated with the Department

of Justice and the Equal Employment Opportunity Commission, as well as

the Department of Health and Human Services.

In addition, the Rule has been coordinated with other appropriate

Federal grantmaking agencies, including the Departments of Education

and Housing and Urban Development.



III. Overview of the Rule



Subpart A--(a) outlines the purpose and application of part 37; (b)

provides definitions; (c) outlines prohibited grounds for and forms of

discrimination; and (d) establishes enforcement authority and

obligations.

Subpart B--sets forth the affirmative obligations of recipients of, and

grant applicants for, financial assistance under WIA Title I.

Subpart C--describes a Governor's responsibilities to implement the

nondiscrimination and equal opportunity provisions of WIA and this

part.

Subpart D--describes procedures for compliance reviews and complaint

processing.

Subpart E--describes the procedures for effecting compliance, including

(a) actions the Department will take upon making a finding of

noncompliance for which voluntary compliance cannot be achieved; (b)

the rights of parties upon such a finding; and (c) hearing procedures,

sanctions, and post-termination procedures.



Subpart A--General Provisions



The individual sections in this subpart are largely identical to

their corresponding sections within the same subpart in part 34.

Consistent with plain-language guidelines, one section has been

subdivided into separate sections treating different topics. These

changes are not intended to alter the overall meaning of this subpart,

or the meaning of any of its component sections.



Section 37.1 What is the purpose of this part?



This section is identical to 29 CFR 34.1(a), except that references

to JTPA, and to its Section 167, have been changed to refer to WIA and

its Section 188.



[[ Page 61694]]



Section 37.2 To whom does this part apply, and what is the scope of

this part?



This section contains requirements similar to those in 29 CFR

34.1(b) and (d). The references to other regulatory sections within

part 34 have been changed to reflect the numbering of this Interim

Final Rule, and references to JTPA have been changed to refer to WIA.

Also, some of the material has been presented in outline form to

improve its readability. None of these changes is intended to alter the

meaning of the section.

Language has been added to paragraph 37.2(a) to clarify that the

requirements in this part apply to programs and activities that are

part of the One-Stop delivery system and that are operated by One-Stop

partners listed in WIA Section 121(b), including those partners

financially assisted by grantmaking agencies other than the Department

of Labor, to the extent that the programs and activities are being

conducted as part of the One-Stop delivery system. The requirements in

29 CFR part 34 continue to apply to programs and activities that are

implemented under and authorized by JTPA.

In those cases in which States that have opted to implement WIA

before July 1, 2000, are operating WIA Title I programs and activities

simultaneously with programs and activities under JTPA, the WIA Title I

programs and activities must comply with the requirements in this part,

while the JTPA programs and activities must comply with the

requirements in 29 CFR part 34.



Section 37.3 How does this part affect a recipient's other

obligations?



This section generally contains the same requirements as 29 CFR

34.1(c). The language of 29 CFR 34.1(c)(6), which dealt with

retroactivity, is inapplicable to this Interim Final Rule, and has been

omitted; in addition, references to JTPA have been changed to refer to

WIA. Other differences between this section and the corresponding

paragraphs of the JTPA regulations are listed below.

Paragraph 37.3(b): This paragraph has been amended to incorporate

by reference the provisions of Subparts B and C and Appendix A of 29

CFR part 32, which implement the requirements of Section 504 pertaining

to employment practices, employment-related training, program

accessibility, and accommodations. As a result, the language from 29

CFR 34.1(c)(2) that stated that part 34 did not affect recipients'

obligations to comply with those provisions has been omitted.

It is important to understand the distinction between the concept

of ``program accessibility,'' referred to in this paragraph, and the

separate concept of architectural accessibility, both of which a

recipient is required to provide under Subpart C.

The requirement of program accessibility means that when viewed in

its entirety, the program or activity provided by the recipient must be

readily accessible to qualified individuals with disabilities. 29 CFR

32.27. The recipient must ensure that participants with various

physical and mental disabilities will have access to the program or

activity. This obligation to make the program or activity accessible in

advance exists independent of a request for a particular accommodation

by a specific individual. Therefore, even if an individual with a

disability requests an accommodation that would impose an undue

hardship on the recipient, the recipient still has an overall

obligation to make the program or activity accessible.

Architectural accessibility, by contrast, relates to the

construction and design of facilities. 29 CFR 32.28. Architectural

accessibility standards are similar to building codes. A recipient must

comply with the architectural accessibility standards whether or not a

particular individual with a disability has requested a reasonable

accommodation. 29 CFR 32.13(d). A recipient's obligation to comply with

the architectural accessibility standards is also independent of its

program accessibility obligations.

Paragraph 37.3(d): This paragraph has been added to parallel

Paragraph 37.3(c), and to emphasize that recipients that are also

employers, employment agencies, or other entities covered by Title I of

the ADA have additional obligations imposed by that title.

Paragraph 37.3(e)(9): This paragraph, which refers to the anti-

discrimination provision of the Immigration and Nationality Act, has

been added at the request of the Department of Justice. This provision

prohibits: (a) Discrimination on the basis of citizenship status and

national origin with respect to hiring, firing, or recruitment or

referral for employment for a fee; and (b) unfair documentary practices

with respect to verification of employment eligibility.



Section 37.4 What definitions apply to this part?



To the extent possible, the definitions contained in this section

are consistent with similar terms used in regulations implementing

other civil rights legislation that applies to recipients of Federal

financial assistance. Similarly, where feasible, this Interim Final

Rule uses the terms contained in the proposed WIA program regulations

issued by the Department's Employment and Training Administration

(ETA). However, because this regulation must be compatible with civil

rights enforcement on a broad scale as well as with ETA's WIA program,

this rule defines and uses certain terms, such as ``qualified

interpreter,'' ``recipient,'' ``registrant,'' and ``applicant,'' as

terms of art, not necessarily identical to the definitions that are

used elsewhere for the same terms.

The following list explains the definitions that differ in

substantive ways, either from their counterparts in 29 CFR 34.2, from

ETA's program regulations, or from regulations that implement the

nondiscrimination provisions of other legislation providing Federal

financial assistance. It also lists definitions that have been borrowed

from other civil rights regulations, and explains certain definitions

that might appear to differ substantively from their counterparts in 29

CFR 34.2, but that have not been substantively changed. Definitions

that obviously would not be substantively different from those in

Section 34.2, but that simply would substitute references to WIA for

references to JTPA, are not listed.

This list also contains definitions of terms that are not defined

in the regulations implementing other civil rights legislation that

applies to recipients of Federal financial assistance, or in WIA's

program regulations. Generally, these terms either are used solely

within this part, or have greater significance within this part than

they do within other regulatory systems. With regard to these terms,

the list explains the reason each term has been defined, and/or the

source of the definition.

Aid, benefits, services, or training: In 29 CFR 34.5, this phrase

is used to convey to the reader the comprehensive nature of the areas

in which a JTPA-assisted program or activity could not discriminate on

the basis of disability. For consistency, the phrase has been adopted

throughout part 37; generally, it replaces the phrase ``financial aid,

service, or benefit,'' which was used intermittently in part 34, and

which has a similar meaning. No substantive change is intended by the

use of the phrase.

Section (1) of this definition uses the phrase ``core and intensive

services.'' These terms are used in WIA to describe



[[ Page 61695]]



two of the three general types of employment and training services that

are provided to participants under the WIA program (the third type is

training services). The terms are defined at length in the WIA statute:

a list of ``core services'' is provided in Section 134(d)(2), and a

similar list of ``intensive services'' is provided in Section

134(d)(3)(C). Briefly, ``core services'' are those services available

at a baseline level to all participants, while ``intensive services''

are those services available to individuals who are assessed as needing

additional assistance in order to find or retain employment. Compare

Section 134(d)(2) with Section 134(d)(3)(A).

Section (4) of this definition refers to ``work opportunities.''

This term is intended to encompass On-the-Job Training, subsidized

work, internships, or work experience that a participant obtains

through a WIA Title I-financially assisted program or activity. See the

discussion of the definition of ``On-the-Job Training'' later in this

section.

Applicant: The passage of WIA has altered the method by which

individuals seeking federally-assisted aid, benefits, services, or

training enter the system. The definition of the term ``applicant'' has

been changed accordingly, to signify that, for purposes of this part,

an individual is considered an ``applicant'' at the point at which s/he

submits personal information in response to a request by the recipient

for such information. Because ETA's program regulations that implement

other provisions of WIA refer to the ``registration'' process, rather

than the application process, this part uses the term ``registrant''

interchangeably with ``applicant.'' CRC is particularly interested in

receiving comments on this definition and its effect, if any, on the

data collection obligations of recipients.

Departmental grantmaking agency: This definition was added in order

to help readers distinguish between the meaning of this term and of the

terms ``grantmaking agency'' and ``Federal grantmaking agency'' as used

in this part. See the discussion of the definitions of the latter terms

elsewhere in this section of the preamble.

Discrimination on the ground of citizenship: This definition is

identical to the definition of the same term in Section 34.2, except

that the term ``asylee'' has been inserted into the list of immigration

statuses that are protected against discrimination. In addition, the

phrase ``other individuals authorized by the Attorney General to work

in the United States'' has been amended to ``other immigrants

authorized * * *.'' These changes have been made for consistency with

the language of Section 188(a)(5) of WIA.

These regulations are concerned with nondiscrimination and equal

opportunity only. They do not limit eligibility or impose preferences

for services on the basis of citizenship.

Employment practices: This definition has been moved to the

definition section from 29 CFR 34.7(a). Consistent with plain-language

guidelines, the definition also has been slightly rewritten, and has

been presented in outline form to improve its readability. None of

these changes is intended to alter the meaning of the definition.

Employment-related training: This definition has been included in

response to questions from a number of recipients who were familiar

with the term as it was defined under the Comprehensive Employment and

Training Act (CETA), the predecessor statute to JTPA. Under WIA, the

term is defined more broadly than it was under CETA.

Entity: This definition is expanded from the definition in 29 CFR

34.2, to encompass current and potential changes in business

structures, and to emphasize that such entities as Indian tribes or

tribal organizations and Native Hawaiian organizations, all of which

are eligible to receive financial assistance under WIA Title I, are

included within the definition. See WIA Section 166, ``Native American

Programs.''

Facility: This definition is expanded from the definition in 29 CFR

34.2, in order to follow generally the definition of the same term set

forth in 28 CFR 35.104, in the regulations implementing Subtitle A of

Title II of the ADA. That subtitle prohibits discrimination on the

basis of disability by public entities.

The reference to ``indoor constructs'' such as office cubicles and

computer kiosks has been added in order to clarify that recipients may

be required to alter such constructs to make them accessible to and

usable by individuals with disabilities. See paragraph (2)(i) of the

definition of ``reasonable accommodation'' in Section 37.4.

Federal grantmaking agency: This definition was added in order to

help readers distinguish between the meaning of this term and of the

terms ``grantmaking agency'' and ``Departmental grantmaking agency'' as

used in this part. See the discussion of the definitions of the latter

terms elsewhere in this section of the preamble.

Financial assistance and Financial assistance under Title I of WIA:

As with the term ``applicant,'' the passage of WIA has altered the type

of financial assistance that will be provided under the WIA program,

and the way in which that assistance will be provided. The definitions

of ``financial assistance'' and ``financial assistance under WIA Title

I'' have been drafted accordingly. The Department is particularly

interested in receiving comments on these new definitions.

The new definitions have been modeled on the definitions of the

term ``financial assistance'' provided in various Federal regulations

that also deal with nondiscrimination in programs and activities

receiving Federal financial assistance. Examples include the Office of

Personnel Management regulations at 5 CFR 900.403(c); the Department of

Justice regulations at 28 CFR 42.613(e); and the Department of Health

and Human Services regulations at 45 CFR 86.2(g) and 1203.3(c).

Paragraph (5) of the definition of ``financial assistance under WIA

Title I'' includes ``[a]ny other agreement, arrangement, contract, or

subcontract * * * or other instrument that has as one of its purposes

the provision of assistance or benefits under WIA Title I.'' Under this

paragraph, ``financial assistance under WIA Title I'' includes such

``agreements or arrangements'' as the Memoranda of Understanding (MOUs)

required by Section 121(c) of WIA, and inclusion on a list of eligible

training providers. See the discussion of the definition of

``recipient'' later in this section.

Fundamental alteration: This definition is derived from the Supreme

Court's interpretation of the term in the ADA Title II case of Olmstead

v. Zimring, 119 S.Ct. 2176, 67 USLW 3683, 67 USLW 4567, 1999 WL 407380

(U.S., June 22, 1999), at 12-13 and n.16.

Grantmaking agency: This term replaces the term ``granting agency''

that was used in 29 CFR part 34. See the discussion of the definitions

of ``Departmental grantmaking agency'' and ``Federal grantmaking

agency'' elsewhere in this section.

Individual with a disability: The definition of this term is

identical to the definition of the same term in Section 34.2, with the

following exceptions:

(1) The reference to homosexuality or bisexuality has been deleted.

This change is not a substantive change, since Section 1(ii) of the

definition of the term ``disability'' retains the explanation that the

term ``impairment'' does not include homosexuality or bisexuality. The

deletion was made merely to eliminate unnecessary redundancy in the

rule.



[[ Page 61696]]



(2) The list of the individuals to whom the term ``individual with

a disability'' does not apply has been expanded to clarify that with

regard to employment, there would exist two circumstances under which

the term would not apply to an individual who has a currently

contagious disease or infection. Such an individual would not be an

``individual with a disability'' either if that disease or infection

prevents him or her from performing the duties of the job in question,

or if his or her employment, because of that disease or infection,

would constitute a direct threat to the health and safety of others.

This change has been made for consistency with the definition of

``individual with a disability'' enacted by Congress in Title IV,

Section 403 of WIA, the Rehabilitation Act Amendments of 1998, 29

U.S.C. 701, Pub.L. 105-220, Title IV, Section 401 et seq., Aug. 7,

1998, 112 Stat. 1092.

Labor market area: The definition of this term, which appears in

the definition of ``population eligible to be served,'' is taken

directly from Section 101(18) of WIA.

Local Workforce Investment Area (LWIA) grant recipient: This term

is new under WIA. The term describes the entity that receives WIA Title

I financial assistance from a Governor. It replaces the terms ``SDA

grant recipient'' and ``substate grantee'' that were used under JTPA.

National Programs: This definition has been rewritten to encompass

entities receiving financial assistance under Title I, Subtitle D of

WIA, and to clarify that Job Corps is a National Program under the

definition.

On-the-Job Training: This definition is taken directly from Section

101(31) of WIA. Three words have been added to the definition in order

to clarify that such training is ``provided to a paid participant while

the participant is engaged in productive work.''

Participant and participation: The definitions of these terms

contain the same elements as the definition of the single term

``participant'' in 29 CFR 34.2. The rule defines the term

``participation'' separately in order to help readers better understand

both terms. Also, the new definitions of the terms ``participant'' and

``participation'' clarify that the terms encompass individuals who are

receiving aid, benefits, or training under WIA Title I, as well as the

``services'' included in the definition in 29 CFR 34.2. In addition,

because the term ``aid, benefits, services, or training'' is defined as

including work opportunities obtained through a WIA Title I--

financially assisted program or activity, an individual who obtains

such opportunities is a ``participant'' under this definition. See the

discussion of the definition of ``aid, benefits, services, or

training'' earlier in this section.

The definition of ``participant'' in part 34 excluded individuals

receiving ``post-termination and follow-up services.'' However, Section

134(d)(2)(K) of the WIA statute includes follow-up services among the

list of ``core services'' that participants may receive; as a result,

this language has been deleted from the definition of ``participant''

in Section 37.4. It should be noted that this definition differs from

the definition of the term that is included in ETA's regulations

implementing other provisions of WIA.

The definition in Section 37.4 clarifies that the term

``participant'' includes, but is not limited to, applicants receiving

any services under state Employment Service programs, and claimants

receiving any services under state Unemployment Insurance programs.

Because the definition of the term in the JTPA nondiscrimination

regulations also encompassed such individuals, this clarification is

not a substantive change. Rather, the clarifying language was included

simply to recognize that different recipients may use different

terminology to refer to individuals who receive benefits or services

under their programs.

It is important to recognize that under the One-Stop system

introduced by WIA, various programs and activities that are authorized

by Federal laws other than WIA may be part of a One-Stop center that

also provides WIA Title I--financially assisted programs and

activities. In such cases, any individual who receives aid, benefits,

services, or training from the One-Stop center is a participant for

purposes of the nondiscrimination and equal opportunity provisions of

WIA and this part.

For example, a One-Stop center may include an Employment Services

program authorized and financially assisted under the Wagner-Peyser

Act, 29 U.S.C. 49, as well as core and intensive service programs

authorized under WIA Title I. Under these circumstances, an individual

who receives Wagner-Peyser employment services from the One-Stop center

will fit the definition of ``participant'' in Section 37.4.

Parties to a hearing: This definition has been amended to clarify

that in certain cases, a Governor may be a party to a hearing.

Population eligible to be served: This term is used in the section

of this rule that explains recipients' obligations regarding

individuals with limited English skills. See the discussion of Section

37.35 in this preamble.

Qualified individual with a disability: This definition has been

amended for a number of reasons. First, the definition has been

restructured in order to incorporate the term of art ``aid, benefits,

services, or training,'' which is introduced and defined in this

Interim Final Rule. The term is used in the definition of ``qualified

individual with a disability'' to encompass most, if not all, of the

circumstances (other than employment) in which a recipient might need

to determine the qualifications of an individual with a disability to

receive WIA Title I--financially assisted services, financial or other

aid, or benefits. See the definition of ``aid, benefits, services, or

training'' in Section 37.4, and the discussion in this preamble about

that definition.

Second, the definition as amended is intended to underscore the

distinction between the test for determining whether an individual with

a disability is qualified for such aid, benefits, services, or

training--including employment-related training--and the test for

determining whether such an individual is qualified for employment.

Under paragraph (1) of the definition, such an individual is qualified

for employment if, with or without reasonable accommodation, he or she

is capable of performing ``the essential functions of the job.'' The

definition of the term in 29 CFR 34.2 applied the same test to

employment-related training. However, employment-related training

programs are not ``employment,'' and therefore the focus in determining

whether an individual with a disability is ``qualified'' for such a

program should be upon whether the individual meets the essential

eligibility requirements for the program. Paragraph (2) of the

definition, which relates to aid, benefits, services, or training, has

been amended accordingly.

Third, the amended definition is intended to clarify that an

individual with a disability who is seeking aid, benefits, services, or

training is qualified if he or she meets the essential eligibility

requirements for receiving such aid, benefits, services, or training,

with or without reasonable accommodation or modification. The reference

to ``reasonable accommodation or reasonable modification'' has been

added in order to clarify that the definition is intended to encompass

``situations where an insistence on continuing past requirements and

practices might arbitrarily deprive genuinely qualified (individuals

with disabilities) of an



[[ Page 61697]]



opportunity to participate in a covered program.'' Brennan v. Stewart,

834 F.2d 1248, 1261 (5th Cir. 1988) (discussing Section 504).

Qualified interpreter: This definition is based on the definition

of the same term contained in 28 CFR 35.104, the regulations

implementing Title II of the ADA. In this Interim Final Rule, however,

the term is used in a broader context, to implement the prohibition of

discrimination based on national origin as well as the prohibition of

discrimination against qualified individuals with disabilities. In this

Rule, the term encompasses the interpretation of spoken and written

languages, such as Spanish, for individuals with limited English

skills, as well as interpretation of spoken and written languages into

symbolic languages, such as American Sign Language, for individuals

with disabilities.

Reasonable accommodation: This definition is based on the

definition of the same term contained in 29 CFR 1630.2, in the

regulations implementing Title I of the Americans with Disabilities

Act. Although Title I and its implementing regulations apply the

concept of ``reasonable accommodation'' only in the context of

employment, this Interim Final Rule requires recipients to provide

``reasonable accommodation'' in the additional contexts of aid,

benefits, services, and training. See Section 37.8.

Under the requirements of Section 188 of WIA and this part, as well

as under other Federal civil rights laws and their implementing

regulations, a recipient must provide both accessible facilities (that

is, both program accessibility and architectural accessibility) and

reasonable accommodation for individuals with disabilities. It is

important to understand the difference between these two requirements.

Providing accessible facilities requires a recipient to take

advance actions, in order to be ready when persons with disabilities

seek aid, benefits, services, training, or employment from that

recipient at some point in the future. See the discussion of ``program

accessibility'' and ``architectural accessibility'' in the discussion

in this preamble about Paragraph 37.3(b).

By contrast, providing reasonable accommodation for an individual

with a disability requires the recipient to make efforts to meet the

specific needs of the particular individual who is currently seeking

aid, benefits, services, training, or employment from the recipient.

Reasonable accommodation may require making specific structural or

other modifications to meet the needs of a particular individual for

access.

Recipient: This definition has been amended to clarify that where a

Governor operates a program or activity, either directly or through a

State agency, using discretionary funds apportioned to him/her under

WIA Title I (rather than disbursing the funds to another recipient),

the Governor is also a recipient. In addition, JTPA-related terminology

(such as references to SDA and Substate grant recipients) has been

replaced by WIA-related terminology (such as references to LWIA grant

recipients), and the list of examples of recipients has been numbered

and presented vertically, rather than in paragraph form, for greater

ease of reading. Finally, paragraphs (10) and (11) of the definition,

``outreach and admissions agencies'' and ``placement agencies,'' have

been amended to clarify that Job Corps contractors that perform these

functions are also recipients.

For purposes of this part, entities that participate as partners in

a One-Stop delivery system are treated as ``recipients,'' and are

subject to the nondiscrimination and equal opportunity obligations of

this part, to the extent that they participate in the One-Stop system.

Such partners may include, but are not limited to, mandatory and

additional partners listed in WIA section 121(b), such as entities

providing employment and training activities carried out under the

Community Service Block Grant Act (42 U.S.C. 9901 et seq.), or programs

authorized under section 6(d)(4) of the Food Stamp Act of 1977

(7.U.S.C. 2015(d)(4)), if these entities participate as partners in the

One-Stop delivery system.

With regard to issues involving nondiscrimination and equal

opportunity, the One-Stop-related programs and activities operated by

such partners may fall under the jurisdiction of both CRC and the equal

opportunity office of the Federal grantmaking agency. See Section

37.85(c) and the discussion thereof in this preamble. As a result,

local Workforce Investment Boards, when developing and entering into

MOUs with One-Stop partners pursuant to the requirements of WIA Section

121(c), should include attention to equal opportunity issues that may

affect the One-Stop partners or the delivery system. Such issues

include how discrimination complaints will be handled and how the cost

of reasonable accommodations will be shared. For its part, CRC is in

the process of developing MOUs with other Federal grantmaking agencies

that provide financial assistance to programs and activities in the

One-Stop delivery system, to ensure the consistent application of

Federal civil rights law.

The Department is particularly interested in receiving comments

regarding the effect of this part upon One-Stop partners.

Registrant: See the explanation of the term ``applicant'' in this

section.

Sectarian activities: This term appears in Section 37.6(f), which

implements Section 188(e) of WIA. With certain exceptions, that

statutory section bars participants from being employed to carry out

the construction, operation, or maintenance of any part of any facility

that is or will be used for sectarian instruction or religious worship.

Service provider: Language has been inserted into this definition

to clarify that the term encompasses any ``provider of aid, benefits,

services, or training to'' any WIA Title I--financially assisted

program or activity. The definition of the same term in 29 CFR 34.2

referred only to the ``operator'' of a JTPA-funded program or activity.

This change is not a substantive change; it was made only to clarify

the definition.

Additional language has been added to the definition to clarify

that organizations that are selected and/or certified as eligible

providers of training services under WIA are service providers under

this Interim Final Rule, regardless of whether any participants

actually select the organization to provide them with training.

Small recipient: This definition contains the same requirements as

the definition in 29 CFR 34.2. The definition has been rewritten to

explain that such a recipient both (a) serves a total of fewer than 15

beneficiaries during the entire grant year, and (b) employs fewer than

15 employees on any given day during the grant year. Again, this

alteration is not intended as a substantive change; it was made only to

clarify the definition.

State Programs: This definition adds language explaining that the

term includes State Employment Service agencies, and/or State

unemployment compensation agencies, that operate independently of a

SESA. Again, this change has been included solely to clarify the

definition.

Supportive services: This definition is taken directly from WIA

Section 101(46).

Terminee: This definition has been rewritten to explain that the

term refers to a participant whose participation in the program

terminates, voluntarily or involuntarily, during the applicable program

year. Again, this change has



[[ Page 61698]]



been included solely to clarify the definition.

Undue hardship: As the definition itself notes, the meaning of this

term differs, depending upon the context in which it is used. The first

part of the definition explains the meaning of the term in the context

of reasonable accommodation for individuals with disabilities. This

part of the definition, like the definition of ``reasonable

accommodation,'' is based on the definition of ``undue hardship''

contained in 29 CFR 1630.2, in the regulations implementing Title I of

the Americans with Disabilities Act. As explained above in the

discussion of the definition of ``reasonable accommodation,'' this

Interim Final Rule requires recipients to provide reasonable

accommodation to qualified individuals with disabilities with regard to

aid, benefits, services, and training, as well as employment, except

where such accommodation would cause undue hardship. See Section 37.7.

The second part of the definition explains the meaning of the term

in the context of religious accommodations. This part of the definition

is based on Supreme Court decisions, most notably the leading case of

Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 81, 84 (1977).

WIA Title I--financially assisted program or activity: This

definition contains the same elements as the definition of the term

``JTPA-funded program or activity'' in 29 CFR 34.2. The definition has

been presented in outline form to improve its readability.

The remainder of the definitions in Section 37.4 are either

unchanged from their counterparts in 29 CFR 34.2, or have been changed

merely to refer to WIA rather than JTPA.



Section 37.5 What forms of discrimination are prohibited by this part?



This section is identical to 29 CFR 34.3, except that references to

JTPA have been changed to refer to WIA.



Section 37.6 What specific discriminatory actions, based on prohibited

grounds other than disability, are prohibited by this part?



This section contains the same requirements as 29 CFR 34.4.

Differences between this regulation and the JTPA regulation are

explained below.

Paragraph 37.6(a): This paragraph is identical to the first

sentence of 29 CFR 34.4(a), except that references to JTPA have been

changed to refer to WIA.

Paragraph 37.6(b): This introductory paragraph is identical to the

second sentence of 29 CFR 34.4(a).

Paragraphs 37.6(b)(1)-(7): These paragraphs are identical to 29 CFR

34.4(a)(1)-(7), with the following exceptions:

(1) references to ``service, financial aid, or benefit'' have been

changed to ``aid, benefits, services, or training,'' as explained in

the discussion of the definition of the latter term in Section 37.4

above; and

(2) references to JTPA have been changed to refer to WIA.

Paragraph 37.6(b)(8): This paragraph is identical to 29 CFR

34.4(a)(10), except that a reference to WIA Title I has been inserted.

Paragraphs 37.6(c)(1)-(2): These paragraphs contain requirements

similar to those in 29 CFR 34.4(a)(8) and (9). Paragraph 37.6(c)(1)

signifies that a recipient must not provide significant assistance

under any circumstances to any agency, organization, or person that

discriminates on a prohibited ground. Similarly, Paragraph 37.6(c)(2)

signifies that except where doing so would cause undue hardship, a

recipient may not refuse to accommodate an individual's religious

practices or beliefs, even if the refusal is not based on dislike of or

disagreement with the individual's religion. Again, this alteration is

not intended as a substantive change from the regulations implementing

JTPA; the change was made only to clarify the intent of the

regulations.

As in other paragraphs, references to JTPA have been changed to

refer to WIA.

Paragraph 37.6(d): This paragraph contains the same requirements as

29 CFR 34.4(b). Consistent with plain-language guidelines, the

paragraph has been organized slightly differently from the JTPA

paragraph, and presented in outline form to improve its readability.

Also, the word ``outreach'' has been added to the list of examples of

the types of administrative determinations in which discrimination is

prohibited. Because the list, both in the corresponding JTPA regulation

and in this paragraph, is exemplary rather than restrictive, the

addition of this word makes no substantive change in the paragraph.

For consistency with the language of Section 37.7, the reference to

``standards, procedures or criteria'' has been changed to ``standards,

procedures, criteria, or administrative methods.'' See the discussion

in this preamble about Paragraph 37.7(e). Similarly, the paragraph has

been reworded to prohibit practices that defeat or substantially impair

accomplishment of the objectives of ``the nondiscrimination and equal

opportunity provisions of WIA and this part,'' as well as those of the

program or activity in question.

As in other paragraphs, references to JTPA have been changed to

refer to WIA.

Paragraph 37.6(e): This paragraph contains the same requirements as

29 CFR 34.4(c). Again, consistent with plain-language guidelines, the

paragraph has been organized slightly differently from the JTPA

paragraph, and presented in outline form to improve its readability.

Also, references to JTPA have been changed to refer to WIA.

Paragraph 37.6(f): This paragraph prohibits participants in a WIA

Title I--financially assisted program or activity from being employed

or trained to construct, operate, or maintain any part of a facility

that is or will be used primarily for sectarian instruction or

religious worship. This paragraph is directly based on, and implements,

Section 188(a)(3) of WIA.

Paragraph 37.6(g): This paragraph is identical to 29 CFR 34.4(d).



Section 37.7 What specific discriminatory actions based on disability

are prohibited by this part?



This section contains the same requirements as 29 CFR 34.5, with

additional material modeled on the regulations implementing Title II of

the ADA. Differences between this section and the corresponding

sections of the JTPA nondiscrimination regulations or ADA regulations

are discussed below.

Paragraphs 37.7(a)(1)-(3): These paragraphs are identical to 29 CFR

34.5(a)(1)-(3), except that references to JTPA have been changed to

refer to Title I of WIA.

Paragraph 37.7(a)(4): This paragraph is identical to 29 CFR

34.5(a)(4), with the following exceptions:

(1) The paragraph specifies that, except when necessary to

accommodate a qualified individual with a disability, a recipient may

not provide ``segregated'' aid, benefits, services, or training to

individuals with disabilities. This addition is intended to clarify and

emphasize that a recipient may provide special programs or activities

designed for and limited to individuals with disabilities, but may not

require that individuals with disabilities attend only such programs or

activities. In other words, qualified individuals with disabilities

must be offered the option of participating in the same programs or

activities that are offered to non-disabled individuals. This change is

not intended to provide a substantive change from the JTPA



[[ Page 61699]]



nondiscrimination regulations. It was inserted only to clarify the

intent of the regulations.

(2) The beginning of 29 CFR 34.5(a)(4) prohibits recipients from

providing different or separate ``aid, benefits, or services'' to

individuals with disabilities; the end of the same paragraph refers to

``aid, benefits, services or training.'' For consistency, the paragraph

has been modified to refer to ``aid, benefits, services, or training''

in both places. Again, this change is not intended to provide a

substantive change from the meaning of the regulations implementing

JTPA.

Paragraphs 37.7(a)(5)-(6): These paragraphs are identical to 29 CFR

34.5(a)(6)-(7), except that references to JTPA have been changed to

refer to Title I of WIA.

Paragraph 37.7(b): This paragraph tracks the language of 29 CFR

34.5(a)(5). Like Paragraph 37.6(c)(1), it has been placed in a separate

paragraph to clarify that a recipient must not provide significant

assistance to any agency, organization, or person that discriminates on

the basis of disability, even if the recipient has no discriminatory

motivation in providing the assistance.

Paragraphs 37.7(c)-(d): These paragraphs are identical to 29 CFR

34.5(b)-(c), except that references to JTPA have been changed to refer

to Title I of WIA.

Paragraph (d) requires recipients to administer WIA Title I-

financially assisted programs and activities in ``the most integrated

setting appropriate to the needs of qualified individuals with

disabilities.'' This language means that the recipient must provide

programs or activities in a setting that enables individuals with

disabilities to interact with non-disabled persons to the fullest

extent possible.

Paragraph 37.7(e): This paragraph contains the same requirements as

29 CFR 34.5(d). Differences between the paragraph and the corresponding

paragraphs of the JTPA nondiscrimination regulations are explained

below.

(1) Consistent with plain-language guidelines, the word ``utilize''

in Paragraph 34.5(d) has been replaced by ``use.''

(2) For consistency with the language of Section 37.6(d), the

reference to ``criteria or administrative methods'' has been changed to

``standards, procedures, criteria, or administrative methods.'' See the

discussion in this preamble about Paragraph 37.6(d).

(3) Paragraph 34.5(d)(1) prohibited the use of such methods that

have ``the effect of'' discriminating against qualified individuals

with disabilities. This wording has been changed to prohibit methods

that have ``the purpose or effect of'' such discrimination. This

addition was made for two reasons:

(a) because WIA Section 188 makes clear that purposeful

discrimination against qualified individuals with disabilities is also

prohibited; and

(b) to make the language of Paragraph 34.5(d)(1) consistent with

the language of the remaining paragraphs in the section, which prohibit

activities that have ``the purpose or effect of'' discrimination.

(3) References to JTPA have been changed to refer to Title I of

WIA.

None of these changes is intended to alter the meaning of the

paragraphs from the meaning of the corresponding paragraphs in the JTPA

nondiscrimination regulations.

Paragraph 37.7(f): This paragraph contains the same requirements as

29 CFR 34.5(e). Consistent with plain-language guidelines, the

paragraph has been organized slightly differently from the

corresponding paragraph in the JTPA nondiscrimination regulations, and

presented in outline form to improve its readability. Also, references

to JTPA have been changed to refer to WIA.

Paragraphs 37.7(g)-(h): These paragraphs are based on 28 CFR

35.130(b)(5)-(6), from the regulations implementing Title II of the

ADA. Differences between the paragraphs and the corresponding

paragraphs of the ADA Title II regulations are explained below.

(1) Two changes have been made in order to tailor the regulations

to the requirements of the WIA program:

(a) The reference in Paragraph 37.7(g) to ``procurement

contractors'' has been changed to ``contractors'; and

(b) References to ``public entity'' have been changed to

``recipient'; and

(2) References to the ADA have been replaced by references to WIA.

These provisions have been modeled upon the ADA Title II

regulations in order to ensure that requirements under Section 188 of

WIA follow generally the requirements of ADA Title II. Many recipients

of WIA Title I financial assistance are also subject to the

requirements of Title II, which applies to public entities including

State and local governments and their departments, agencies, and

instrumentalities. See 42 U.S.C. 12131. Modeling the WIA regulations on

the ADA Title II regulations ensures that these recipients are subject

to similar obligations and responsibilities under both laws.

Paragraph 37.7(h), which discusses licensing and certification

programs, gives CRC jurisdiction only over recipients of WIA Title I

financial assistance. For example, a state electrician certification

program run by a State agency that does not benefit from WIA Title I

financial assistance would not be required to comply with this

paragraph. Such an agency would, however, be required to comply with

the similar requirements set forth in 28 CFR 35.130(b)(6), in the ADA

Title II regulations.

Paragraphs 37.7(i)-(l): These paragraphs are based on 28 CFR

35.130(b)(8), (c), (f), and (g), from the regulations implementing

Title II of the ADA. Differences between the paragraphs and the

corresponding paragraphs of the ADA Title II regulations are explained

below.

(1) References to ``public entity'' have been changed to

``recipient'; and

(2) References to ``service(s)'' have been changed to ``aid,

benefits, services, or training.''

Both of these changes have been made in order to tailor the

regulations to the requirements of the WIA program. Neither change is

intended to alter the meaning of the paragraphs.

Paragraph 37.7(m): This paragraph is identical to 29 CFR 34.5(g),

except that additional punctuation has been added to improve the

material's clarity.

Paragraph 37.7(n): This paragraph contains the same requirements as

29 CFR 34.5(h). The paragraph has been presented in outline form to

improve its readability.

Paragraph 37.7(o): This paragraph is based on 28 CFR 35.130(e),

from the regulations implementing Title II of the ADA, except that

references to the ADA have been replaced by references to WIA. This

change is not intended to alter the meaning of the paragraph.



Section 37.8 What are a recipient's responsibilities regarding

reasonable accommodation and reasonable modification for individuals

with disabilities?



This section is based on 28 CFR 35.130(b)(7), which requires public

entities to make ``reasonable modifications'' in ``policies, practices

or procedures when the modifications are necessary to avoid

discrimination on the basis of disability.'' To this requirement has

been added the obligation that in providing aid, benefits, services,

training, or employment, a recipient must make ``reasonable

accommodation'' for qualified individuals with disabilities.

The two concepts are similar in that they both require a recipient

to consult



[[ Page 61700]]



with each individual with a disability who requests an accommodation(s)

or modification(s); to make an individual determination about the

alterations necessary in each case; and to take appropriate action

based upon that determination. The concepts differ, however, in the

standards used to determine ``reasonableness.'' An accommodation is

``reasonable'' unless providing the requested accommodation would cause

the recipient undue hardship. A modification, by contrast, is

``reasonable'' unless making the modification would require a

fundamental alteration in the nature of the service, program, or

activity that the recipient is providing. See the definitions of

``fundamental alteration,'' ``reasonable accommodation,'' and ``undue

hardship'' in Section 37.4.

The EEOC's Enforcement Guidance on Reasonable Accommodation and

Undue Hardship Under the Americans with Disabilities Act may help

recipients and others understand these concepts, particularly as

applied in the employment context. The Guidance is available from EEOC

or through EEOC's web site at www.eeoc.gov.

The procedures, set forth in paragraphs 37.8(a)(1)-(2) and (b)(1)-

(2), that a recipient must follow in determining whether a requested

accommodation would cause undue hardship, or a requested modification

would result in a fundamental alteration, are derived from the

procedures set forth in 29 CFR 34.6(f)(1)-(3) for making similar

determinations with regard to communications with individuals with

disabilities. See the discussion in this preamble about Paragraphs

37.9(f)(1)-(3).



Section 37.9 What are a recipient's responsibilities to communicate

with individuals with disabilities?



Generally, this section contains the same requirements as 29 CFR

34.6. Differences between the section and the corresponding section of

the JTPA nondiscrimination regulations are described below.

Paragraph 37.9(a): This paragraph requires recipients to ensure

that communication with certain groups of individuals with disabilities

are as effective as communications with others. The paragraph is

identical to Paragraph 34.6(a), except that the term ``registrants''

has been added to the list of such groups. The addition is necessary in

order to tailor the regulations to the requirements of the WIA program.

This change is not intended to alter the meaning of the paragraph.

Paragraph 37.9(b): Two words have been added to this paragraph in

order to clarify its meaning. The first sentence of the paragraph

requires a recipient to ``furnish appropriate auxiliary aids or

services when necessary'' to give individuals with disabilities an

equal opportunity to participate in the program or activity that

receives Federal financial assistance. However, the second sentence of

29 CFR 34.6(b) referred only to a recipient's obligation to determine

what auxiliary aids or services are ``necessary.'' In order to

eliminate confusion, the phrase ``appropriate and'' has been added to

the second sentence, so that it now refers to a recipient's obligation

to determine what auxiliary aids or services are ``appropriate and

necessary.''

Paragraph 37.9(c): The JTPA counterpart to this paragraph is 29 CFR

34.6(c). That paragraph was written in the passive voice. The paragraph

has been shifted to the active voice, to clarify that the recipient has

the responsibility of using telecommunications devices for individuals

with hearing impairments, or other equally effective communications

systems, in order to communicate by telephone with such individuals.

Additionally, the acronym ``TTY,'' which is occasionally used as an

alternative to the acronym ``TDD'' for such communications systems, has

been added.

The phrase ``telephone relay services,'' which has been added as an

example of an ``equally effective communications system,'' refers to

services established under Title IV of the ADA to permit communications

between individuals who communicate by TDD/TTY and individuals who

communicate by the telephone alone. These relay services involve a

relay operator using both a standard telephone and a TDD/TTY to type

the voice messages to the TDD/TTY user and read the TDD/TTY messages to

the standard telephone user. Where such relay services are available, a

recipient may use these services to meet the requirements of this

section. However, where the recipient has extensive telephone contact

with the public, or where the provision of telephone services is a

major function of the recipient, the recipient should use TDDs/TTYs to

ensure more immediate access.

Paragraph 37.9(d): This paragraph is identical to 29 CFR 34.6(d),

except that, consistent with plain language principles, the term

``shall'' has been replaced by ``must.''

Paragraphs 37.9(e)(1) and (2): These paragraph generally contain

the same information as 29 CFR 34.6(e). The information has been

presented in outline form to improve its readability. In addition, two

sentences have been added to Paragraph 37.9(e)(1) to emphasize that

``signage'' is a term of art and to explain the standards that signage

must meet under the regulations.

Paragraphs 37.9(f)(1)-(3): These paragraphs, which deal with

circumstances in which a recipient believes that a particular action

would result in a fundamental alteration to the nature of a service,

program, or activity, contain the same requirements as 29 CFR

34.6(f)(1)-(3). Because the Interim Final Rule (unlike the JTPA

nondiscrimination regulations) includes a definition of ``fundamental

alteration'' that incorporates the concept of ``undue financial and

administrative burdens,'' that phrase is now redundant, and has been

omitted from the paragraphs. See the discussion in this preamble about

the definition of ``fundamental alteration'' in Section 37.4. In

addition, references to JTPA have been changed to refer to WIA. None of

these changes is intended to alter the meaning of these paragraphs.



Section 37.10 To what extent are employment practices covered by this

part?



This section contains information similar to that in 29 CFR

34.7(b)-(g). References to JTPA have been changed to refer to WIA. In

addition, the reference to Equal Employment Opportunity Commission

``guidelines'' has been changed to ``guidance,'' and the material in 29

CFR 34.7(a), which defines the term ``employment practices,'' has been

moved to the definition section (Section 37.4) in this Interim Final

Rule. These changes are not intended to alter the meaning of the

section.

Paragraph 37.10(a)(1) and (2): These paragraphs contain information

similar to that in 29 CFR 34.7(b). Language has been added to this

paragraph to clarify that the section applies to the employment

practices of any program or activity that is part of the One-Stop

delivery system and is operated by a One-Stop partner listed in Section

121(b) of WIA, to the extent that the program or activity is being

conducted as part of the One-Stop delivery system. In addition, the

information has been presented in outline form to improve its

readability.

Paragraph 37.10(d): The corresponding paragraph in the JTPA

nondiscrimination regulations, 29 CFR



[[ Page 61701]]



34.7(e), stated that part 34 did not affect recipients' obligations to

comply with the provisions of Subparts B and C and Appendix A of 29 CFR

part 32. As noted in the discussion in this preamble about Paragraph

37.3(b), that paragraph has been amended to incorporate the cited

provisions by reference. This paragraph has been amended accordingly.

Paragraph 37.10(f): This paragraph, which notes that recipients

should be aware of their obligations to comply with the anti-

discrimination provisions of the Immigration and Nationality Act, has

been added at the request of the Department of Justice. See the

discussion in this preamble about Paragraph 37.3(c)(9).



Section 37.11 To what extent are intimidation and retaliation

prohibited by this part?



This section contains the same requirements as 29 CFR 34.8.

Consistent with plain-language guidelines, the section has been

organized slightly differently from the JTPA section, and presented in

outline form to improve its readability. Also, references to JTPA have

been changed to refer to WIA. None of these changes is intended to

alter the meaning of the section.



Section 37.12 What Department of Labor office is responsible for

administering this part?



This section contains the same requirements as 29 CFR 34.9(a). The

section refers to the Civil Rights Center, or CRC, which was known as

the Directorate of Civil Rights, or DCR, at the time the JTPA

nondiscrimination regulations were promulgated. Also, references to

JTPA in the previous section have been changed in this section, where

appropriate, to refer to WIA. Neither of these changes is intended to

alter the meaning of this section.

Some recipients have expressed confusion about which Department of

Labor agency they should contact for answers to questions about the

nondiscrimination and equal opportunity requirements of the JTPA and

WIA programs. This confusion is understandable: the Department's

Employment and Training Administration (ETA) is responsible for, and

has expertise about, most aspects of the JTPA and WIA programs. As a

result, recipient staff members are accustomed to approaching ETA

personnel for answers to JTPA- and WIA-related questions. However, CRC,

rather than ETA, is responsible for, and has expertise about, the

particular aspects of the JTPA and WIA programs relating to

nondiscrimination and equal opportunity. Recipients will therefore be

able to receive more expeditious answers to questions about these

aspects of the programs by contacting CRC directly.



Section 37.13 Who is responsible for providing interpretations of this

part?



This section is identical to 29 CFR 34.9(b), except that the

reference to JTPA has been changed to refer to WIA. This change is not

intended to alter the meaning of this section. See the discussion of

Section 37.12 above.



Section 37.14 Under what circumstances may the Secretary delegate

responsibility under this part?



This section is identical to 29 CFR 34.12(a) and (b), with the

following exceptions:

(1) The references to other regulatory sections within part 34 have

been changed to reflect the numbering of this Interim Final Rule; and

(2) References to JTPA have been changed to refer to WIA.

Neither of these changes is intended to alter the meaning of this

section.



Section 37.15 What are the Director's responsibilities to coordinate

with other civil rights agencies?



This section generally contains the same requirements as 29 CFR

34.12(c). At the request of the Department of Justice, a reference to

the anti-discrimination provision of the Immigration and Nationality

Act has been added to the list of laws with regard to which the

Director must coordinate with other Federal civil rights agencies. See

the discussion in this preamble about Paragraph 37.3(c)(9).

In addition, consistent with plain-language guidelines, this

section has been organized slightly differently from the JTPA section,

and presented in outline form to improve its readability. Also,

references to JTPA have been changed to refer to WIA. Neither of the

latter changes is intended to alter the meaning of this section.



Section 37.16 What is this part's effect on a recipient's obligations

under other laws, and what limitations apply?



Paragraphs (a) and (b) of this section are identical to the

corresponding paragraphs in 29 CFR 34.11, except that references to

JTPA have been changed to refer to WIA. This change is not intended to

alter the meaning of the paragraphs.

Paragraph (a) of this section means that a recipient is not excused

from complying with the nondiscrimination and equal opportunity

provisions of WIA and this part, even if a State or local law requires

the recipient to discriminate on a prohibited ground.

Similarly, paragraph (b) of this section means that no rule or

regulation of a private organization, club, league, or association that

requires a recipient to discriminate on a prohibited ground excuses a

recipient from complying with the nondiscrimination and equal

opportunity provisions of WIA and this part.

Paragraph (c) of this section contains the same requirements as 29

CFR 34.11(c). It has been rewritten to improve its clarity. The

paragraph bars recipients, while recruiting, selecting, or placing

individuals in programs or activities, from considering whether job

opportunities in any particular occupation or profession will be open

to qualified individuals with disabilities, or to persons of a certain

race, color, religion, sex, national origin, age, political affiliation

or belief, or citizenship. For example, a recipient operating a WIA

Title I--financially assisted training program must not steer women

away from training programs for construction work because the recipient

believes that women will have difficulty finding jobs in construction.

This paragraph does not change the recipient's general obligation under

WIA to assure that training is focused on occupations that are in

demand.



Subpart B--Recordkeeping and Other Affirmative Obligations of

Recipients



The requirements in this subpart are generally similar to the

requirements in Subpart B of part 34. Consistent with plain-language

guidelines, some of the sections within the subpart have been

rearranged in a more logical order, and lengthy sections have been

divided into shorter sections treating narrower topics. These changes

are not intended to alter the overall meaning of this subpart, or the

meaning of any of its component sections.



Assurances



Section 37.20 What is a recipient's obligation to provide a written

assurance?



This section contains the same requirements as 29 CFR 34.20(a) and

(b). Differences between this section and the corresponding section of

the JTPA nondiscrimination regulations are described below.

Paragraph 37.20(a)(1): In this paragraph, the introductory

paragraph has been rewritten to eliminate redundancy, and the required

assurance has been rewritten consistent with plain-language guidelines.

These



[[ Page 61702]]



changes are not intended to alter the meaning of the assurance or the

paragraph.

The rewritten assurance states that the recipient must not

discriminate on the basis of ``citizenship/status as a lawfully

admitted immigrant authorized to work in the United States.'' This

change has been made to convey more accurately the definition of

``discrimination on the ground of citizenship'' contained in Section

37.4.

Paragraphs 37.20(a)(2): These paragraphs are identical to 29 CFR

34.20(a)(2) and (b), with the following exceptions:

(1) The references to other regulatory sections within part 34 have

been changed to reflect the numbering of this Interim Final Rule; and

(2) References to JTPA have been changed to refer to WIA.

Neither of these changes is intended to alter the meaning of these

paragraphs.



Section 37.21 How long will the recipient's obligation under the

assurance last, and how broad is the obligation?



This section contains the same general requirements as 29 CFR

34.20(c). References to JTPA have been changed to refer to Title I of

WIA, and the material has been presented in outline form to improve its

clarity. In addition, two new clauses have been added. The first clause

extends the obligation for the period during which the property is used

``for another purpose involving the provision of * * * services or

benefits'' that are similar to those provided under WIA Title I. This

clause has been added for consistency with other Federal regulations

involving Federally-assisted programs. See, e.g., 28 CFR 42.105(a)(1)

(implementing Title VI); 34 CFR 100.4(a)(1) (applying Title VI to

programs assisted through the Department of Education).

The second new clause extends the obligation under the assurance to

a transferee for the period until the transferee has compensated the

Departmental grantmaking agency for the fair market value of the

property transferred. This clause has been added in order to ensure

that a transferee may not benefit from a transfer of property under the

WIA Title I program without being subjected to the nondiscrimination

and equal opportunity obligations of WIA and this part.



Section 37.22 How must covenants be used in connection with this part?



Generally, this section contains the same requirements as 29 CFR

34.20(d). References to JTPA have been changed to refer to Title I of

WIA. In addition, paragraph (a) has been amended to require that the

covenant must assure compliance with the nondiscrimination and equal

opportunity provisions for the period described in Section 37.21.

Additionally, the clause, described in the discussion of Section 37.21,

that extends the obligation for the period during which the property is

used ``for another purpose involving the provision of similar services

or benefits'' has been added to this section as well. See the

discussion of Section 37.21 above.



Equal Opportunity Officers



Section 37.23 Who must designate an Equal Opportunity Officer?



This section is based on the first sentence of 29 CFR 34.22(a). The

section is not intended to alter the requirements of the corresponding

JTPA regulation with regard to the entities that are required to

designate Equal Opportunity Officers (``EO Officers'').



Section 37.24 Who is eligible to serve as an Equal Opportunity

Officer?



The material in this section is new. It is intended to clarify and

emphasize the significance and level of authority that recipients must

give to the Equal Opportunity Officer position, and to the individual

who holds that 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 described in the document submitted by the Governor.

If CRC has already reviewed those procedures and determined them to be

adequate, the agency may avoid a burdensome and unnecessary complaint

investigation.

In order for the MOA to provide an effective method of monitoring

compliance, however, it is important that CRC have access to current

information regarding a State's practices. The requirements in

paragraphs (b) and (c) are intended to provide that current

information.

Paragraph (b) requires the Governor to ``promptly update'' the MOA

``whenever necessary.'' This paragraph means that whenever, in the

ordinary course of implementing the MOA, the Governor or the State

decides that an amendment to the MOA is appropriate, the Governor must

notify CRC of the amendment. The paragraph does not require the

Governor or the State to provide CRC with an entirely new MOA under

these circumstances. For example, if a State's MOA lists the members of

a particular recipient's EO staff, the State is not required to redo

its entire MOA when there is turnover on the staff. Rather, the

Governor may notify CRC of the change simply by sending a letter

listing the names of the departing and incoming staff members, and the

contact information for the new staffers.

Paragraph (c) requires that every two years, the Governor must

review the MOA and the way in which the State has implemented the

document, and to make any necessary changes. As in paragraph (b), the

Governor is required to notify CRC about those changes alone; he or she

must submit an entirely new MOA to CRC only if he or she decides to

replace the previous MOA completely. If, based on the review, he or she

determines that no changes are necessary, he or she is required merely

to certify to CRC in writing that the previous MOA remains in effect.

If this certification is not required, then each time that the Director

receives a complaint regarding a particular State, CRC will be forced

to contact that State to ask whether its MOA has been changed. In CRC's

view, such repeated inquiries would be more burdensome for States than

requiring certification every two years.

The Department is particularly interested in receiving comments

regarding this section of the Interim Final Rule.



Subpart D--Compliance Procedures



Generally, this subpart contains the same requirements as the

corresponding subpart in part 34. The few circumstances in which

substantive changes have been made are discussed in the descriptions

below of individual sections.

Consistent with plain-language guidelines, the information in this

subpart has been rearranged in a more logical order, and lengthy

sections have been divided into shorter sections treating narrower

topics. The subpart now begins with sections describing the Director's

general authority, and continues with sections describing Compliance

Reviews, Complaint Investigations, Determinations, and Breaches of

Conciliation Agreements. The above changes are not intended to alter

the overall meaning of this subpart, or the meaning of any of its

component sections.



Section 37.60 How does the Director evaluate compliance with the

nondiscrimination and equal opportunity provisions of WIA and this

part?



In general, this section contains the same requirements as 29 CFR

34.40(a). Consistent with plain-language guidelines, the section has

been slightly rewritten and reorganized. Also, references to JTPA have

been replaced by references to WIA. Neither of these changes is

intended to alter the meaning of this section.

The sentence in 29 CFR 34.40(a) that discusses techniques used in

compliance reviews has been moved to Section 37.63, to clarify that in

CRC's actual practice, the techniques discussed are used only in post-

approval compliance reviews.

A sentence has been added to clarify that pre- or post-approval

compliance reviews may focus on one or more specific programs or

activities, or one or more issues within a program or activity. The

Director has the discretion to determine the scope of a particular

compliance review. This addition is intended only to provide notice to

grant applicants and recipients that compliance reviews may be narrow

as well as broad. It does not alter the Director's authority in any

way, but is intended only to clarify the meaning of this section.

Because this section now serves as an introduction to Subpart D, a

sentence has also been added that notes that the Director may also

investigate and resolve discrimination complaints. Again, this sentence

does not alter the Director's authority in any way, and is not intended

to change the meaning of this section.



Section 37.61 Is there authority to issue subpoenas?



This section contains the same requirements as 29 CFR 34.43(g)(4).

Consistent with plain-language guidelines, the section 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 replaced by

references to WIA.

The section was moved to the beginning of this subpart in order to

clarify that the authority to issue subpoenas extends to compliance

reviews as well as complaint investigations. Again, this change does

not alter the subpoena authority in any way, and is not intended to

change the meaning of this section.



Compliance Reviews



Section 37.62 What are the authority and procedures for conducting

pre-approval compliance reviews?



This section contains the same requirements as 29 CFR 34.40(b),

``Pre-approval reviews,'' with additional material from 29 CFR 34.47.

Differences between this section and the corresponding paragraphs and

section of the JTPA nondiscrimination regulations are described below.

Paragraph 37.62(a): This paragraph describes the circumstances

under which, and the bases upon which, the Director may conduct a pre-

approval compliance review. The paragraph is identical to 29 CFR

34.40(b)(1), with the following exceptions:

(1) References to JTPA have been replaced by references to WIA; and

(2) 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

paragraph.

Paragraph 37.62(b): This paragraph outlines the Director's

responsibilities when s/he determines that a grant applicant might not

comply with the nondiscrimination and equal opportunity provisions of

WIA and this part. Generally, this paragraph contains the same

requirements as 29 CFR 34.40(b)(2) and (4); it also incorporates

material from 29 CFR 34.47, which requires the Director to notify the

Assistant Attorney General, as well as the grantmaking agency, where a

complaint investigation or compliance review results in a finding of

noncompliance. The latter requirement



[[ Page 61709]]



is also contained within the Department of Justice's Title VI

coordination regulations at 28 CFR 42.407(d).

Consistent with plain-language guidelines, this paragraph has been

organized slightly differently from the corresponding paragraphs in the

JTPA nondiscrimination regulations, and has been presented in outline

form to improve its readability. Because the JTPA nondiscrimination

regulations listed these same responsibilities, their inclusion in this

paragraph does not alter the Director's authority in any way, and is

not intended to change the meaning of this paragraph.

In addition, 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. Neither of these

changes is intended to alter the meaning of this paragraph.

Paragraph 37.62(c): This paragraph describes the Department's

responsibilities where a grant applicant agrees to take remedial or

corrective actions in order to receive WIA Title I financial

assistance. The paragraph is identical to 29 CFR 34.40(b)(3), with the

following exceptions:

(1) References to JTPA have been replaced by references to WIA; and

(2) 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

paragraph.



Section 37.63 What are the authority and procedures for conducting

post-approval compliance reviews?



Generally, this section contains the same requirements as 29 CFR

34.40(c), ``Post-approval reviews,'' with one paragraph from 34.40(a).

Differences between this section and the corresponding paragraphs of

the JTPA nondiscrimination regulations are described below.

Paragraph 37.63(a): This paragraph outlines the circumstances under

which, and the bases upon which, the Director may conduct a post-

approval compliance review. The paragraph contains the same

requirements as 29 CFR 34.40(c)(1). Consistent with plain-language

guidelines, the list of examples of possible bases for such reviews has

been slightly rewritten to clarify the examples. In addition,

references to JTPA have been replaced by references to WIA. These

changes are not intended to alter the meaning of the paragraph.

Paragraph 37.63(b): This paragraph outlines the procedures for

initiating a post-approval compliance review. The paragraph contains

the same information as 29 CFR 34.40(c)(2), and it incorporates related

material from 29 CFR 34.40(c)(4).

References to ``data'' that a recipient must submit before a post-

approval compliance review have been changed to ``information, records,

and/or data.'' Like other changes described earlier in this Preamble,

this change was made to reflect the growth in computer technology, and

the related expansion of electronic communications; the change was

intended to incorporate a variety of terms that might be used to refer

to material stored in written, electronic, or other forms. Again, this

change does not impose any additional obligations upon recipients; it

was made merely to clarify the paragraph.

In addition, 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 the paragraph.

Paragraph 37.63(c): This paragraph contains material from 29 CFR

34.40(a) about techniques used in compliance reviews. As discussed in

Section 37.60 of this preamble, the sentence was moved to this section

to clarify that in CRC's actual practice, the techniques discussed are

used only in post-approval compliance reviews. The reference to off-

site analyses has been deleted because it refers to internal agency

procedure that is more appropriately treated in internal agency

guidelines.



Section 37.64 What procedures must the Director follow when CRC has

completed a post-approval compliance review?



Generally, this section contains the same requirements as 29 CFR

34.40(c)(3). However, the requirement that the Director inform the

recipient of the results of the review within 210 days of the issuance

of the Notification Letter has been deleted. This change was made

because CRC has decided to establish such internal agency time frames

in internal agency guidelines issued by the Director, rather than

through rulemaking.

In addition, consistent with plain-language guidelines, the section

has been slightly rewritten to clarify it. Also, 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 the paragraph.



Section 37.65 What is the Director's authority to monitor the

activities of a Governor?



This section is identical to 29 CFR 34.34(a) and (b), with the

following exceptions:

(1) References to JTPA have been replaced by references to WIA; and

(2) 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.

The corresponding paragraphs in the JTPA nondiscrimination

regulations were located in Subpart C (``Governor's

Responsibilities''). The section was moved to Subpart D and included

with procedures about compliance reviews because it deals with the

Director's authority to review documents prepared by and actions taken

by a Governor under this part. This change was not intended to alter

the meaning of the section.

Paragraph (c) of Section 34.34 provided that ``[t]he procedures

contained in [S]ubpart D'' would apply to the Director's monitoring

activities. Because the section has been moved to Subpart D, this

paragraph has become redundant, and has been deleted.



Section 37.66 What happens if a recipient fails to submit requested

data, records, and/or information, or fails to provide CRC with the

required access?



This section contains the same general requirements as 29 CFR

34.41(a). The reference to the ``Directorate'' (the Directorate of

Civil Rights, the previous title of the Civil Rights Center) has been

updated to ``CRC.'' Also, to help readers find the section of the

Interim Final Rule that requires a recipient to provide CRC with access

to sources of information, a reference to that section has been added.

Neither of these changes is intended to alter the meaning of this

section.

In addition, language has been added that specifies that recipients

must submit or provide CRC with access to data, records, and/or

information ``in a timely manner.'' This addition was made to clarify

that the Director may issue a Notice to Show Cause based upon a

recipient's delay in supplying the records, data, information, and/or

access sought by CRC.



Section 37.67 What information must a Notice to Show Cause contain?



This section is identical to 29 CFR 34.41(b), and includes the

first sentence of 34.41(c). References to JTPA have been replaced by

references to WIA. These changes are not intended to change the meaning

of this section.



[[ Page 61710]]



Section 37.68 How may a recipient show cause why enforcement

proceedings should not be instituted?



This section is identical to the remainder of 29 CFR 34.41(c), with

the following exceptions:

(1) The references to sections in part 34 have been changed to

reflect the numbering of this Interim Final Rule; and

(2) References to the ``Directorate'' have been updated to ``CRC.''

Neither of these changes is intended to alter the meaning of this

section.



Section 37.69 What happens if a recipient fails to show cause?



This section is identical to 29 CFR 34.41(d), except that the

reference to a section in part 34 has been changed to reflect the

numbering of this Interim Final Rule. This change is not intended to

alter the meaning of this section.



Complaint Processing Procedures



Section 37.70 Who may file a complaint concerning discrimination

connected with WIA Title I?



This section contains the same requirements as 29 CFR 34.43(a).

Consistent with plain-language guidelines, the section has been

slightly rewritten to improve its readability. This change is not

intended to alter the meaning of this section.



Section 37.71 Where may a complaint be filed?



This section contains the same requirements as 29 CFR 34.43(b).

Consistent with plain-language guidelines, the section has been

slightly rewritten to improve its clarity. This change is not intended

to alter the meaning of this section.



Section 37.72 When must a complaint be filed?



This section contains the same requirements as 29 CFR 34.43(c).

Consistent with plain-language guidelines, the section has been

slightly rewritten to improve its clarity. This change is not intended

to alter the meaning of this section.



Section 37.73 What information must a complaint contain?



This section contains the same requirements as 29 CFR 34.43(d),

except that, for the ease of the reader, the information in the second

sentence of Section 34.43(d)(4)(iii) has been placed in the next

section. Consistent with plain-language guidelines, the section has

been slightly rewritten to improve its clarity. This change is not

intended to alter the meaning of this section.



Section 37.74 Are there any forms that a complainant may use to file a

complaint?



This section contains the same requirements as the second sentence

of Section 34.43(d)(4)(iii). Consistent with plain-language guidelines,

the section has been slightly rewritten to improve its clarity. In

addition, for the convenience of the reader, the section now explains

where complainants or their representatives may obtain the forms.



Section 37.75 Is there a right of representation in the complaint

process?



This section contains the same requirements as 29 CFR 34.43(e).

Consistent with plain-language guidelines, the section has been

slightly rewritten to improve its clarity. This change is not intended

to alter the meaning of this section.



Section 37.76 What are the required elements of a recipient's

discrimination complaint processing procedures?



Much of this section is new. It includes most of the general

information contained in 29 CFR 34.42(a), which requires a recipient to

adopt and publish procedures for processing discrimination complaints,

and 34.42(c), which requires the recipient to provide the complainant

with written notice of the resolution of the complaint. (As discussed

earlier in this preamble, the material in 29 CFR 34.42(b), which

charges a recipient's Equal Opportunity Officer with the responsibility

for adopting and publishing these procedures, has been moved to Section

37.25(d), ``What are the responsibilities of an Equal Opportunity

Officer?'' In addition, the information in the third sentence of

Section 34.42(a) has been moved to the next section.) However, this

section includes the following changes.

(1) The period for recipients to process discrimination complaints

has been extended, from 60 to 90 days. See Paragraphs 37.76(a) and

37.76(b)(5). This change has been made in response to concerns raised

by recipients that 60 days was not enough time in which to give a

complaint appropriate attention.

(2) A list of specific elements that must be included in each

recipient's complaint processing procedures has been added. See

Paragraphs 37.76(b) and (c). This change has been made because a number

of recipients have requested more extensive guidance about the steps

that must be taken in order to process a complaint fairly and

effectively. As this section notes, the list is intended only as a

baseline; recipients may include additional elements in their complaint

processing procedures, as long as the procedures allow for resolution

of the complaint within 90 days.

(3) The section requires recipients to adopt procedures for

alternative dispute resolution (ADR). See Paragraph 37.76(c). This

requirement was added in response to input from complainants and

recipients who wanted a more flexible, less adversarial means of

resolving discrimination complaints. (CRC itself is adopting procedures

that will allow complainants and respondents to mediate complaints

filed with the Director. See the discussion of Section 37.89, later in

this preamble.) The section also includes procedures through which any

party to an agreement reached under ADR may complain to the Director if

the agreement is breached. See Paragraph 37.76(c)(2). CRC believes that

complainants and recipients will be more willing to resolve complaints

through ADR if the parties know that they have a means of enforcing the

agreements reached through that procedure. However, in the event that

the ADR process does not resolve a complaint, the section provides that

a complainant may file a complaint with the Director within 30 days of

the date on which the ADR process terminates. CRC is particularly

interested in receiving comments about this new requirement.

(4) The section has given a formal name, ``Notice of Final

Action,'' to the written notification that a recipient must give a

complainant when the recipient has finished processing a complaint.

Because 29 CFR 34.42(c) already required such a written notification,

this change is not a substantive change in the section.



Section 37.77 Who is responsible for developing and publishing

complaint processing procedures for service providers?



Generally, this section contains the same requirements as the third

sentence of 29 CFR 34.42(a). Consistent with plain-language guidelines,

the section has been slightly rewritten to improve its clarity. Also,

JTPA-related terminology (the references to SDA grant recipients and

Substate grantees) has been replaced by WIA-related terminology (the

reference to the LWIA grant recipient). Neither of these changes is

intended to alter the meaning of this section.

The final sentence has been added to the section to clarify that

service providers are obliged to follow the



[[ Page 61711]]



procedures adopted and published on their behalf.



Section 37.78 Does a recipient have any special obligations in cases

in which the recipient determines that it has no jurisdiction over a

complaint?



This section contains the same requirements as 29 CFR 34.43(f)(5).

Consistent with plain-language guidelines, the section has been

slightly rewritten and presented in outline form to improve its

readability. Also, references to JTPA have been replaced by references

to WIA. Neither of these changes is intended to alter the meaning of

this section.



Section 37.79 If, before the 90-day period has expired, a recipient

issues a Notice of Final Action with which the complainant is

dissatisfied, how long does the complainant have to file a complaint

with the Director?



This section contains the same general information as 29 CFR

34.43(f)(1). Consistent with plain-language guidelines, the section has

been slightly rewritten to improve its clarity. Also, references to the

60-day period allowed for processing complaints under the JTPA

nondiscrimination regulations have been replaced by references to the

newly-extended 90-day period allowed under WIA, and the new term

``Notice of Final Action'' has been used to refer to the written

notification that a recipient must provide a complainant when the

recipient has completed its processing of a complaint.



Section 37.80 What happens if a recipient fails to issue a Notice of

Final Action within 90 days of the date on which a complaint was filed?



This section contains the same general information as 29 CFR

34.43(f)(3). Consistent with plain-language guidelines, the section has

been slightly rewritten to improve its clarity. Also, references to the

60-day period allowed for processing complaints under the JTPA

nondiscrimination regulations have been replaced by references to the

newly-extended 90-day period allowed under WIA, and the new term

``Notice of Final Action'' has been used to refer to the written

notification that a recipient must provide a complainant when the

recipient has completed its processing of a complaint.

This section deals only with a complainant's rights if a recipient

fails to issue a Notice of Final Action within the required period.

Recipients should be aware that in such circumstances, the Director has

the right to take appropriate action against the recipient.



Section 37.81 Are there any circumstances under which the Director may

extend the time limit for filing a complaint with him or her?



This section contains the same requirements as 29 CFR 34.43(f)(4).

Consistent with plain-language guidelines, the section has been

slightly rewritten and presented in outline form to improve its

readability. Also, the reference to a section in part 34 has been

changed to reflect the numbering of this Interim Final Rule, and a

final sentence has been added to clarify and emphasize that the burden

of showing good cause for extending the time limit rests with the

complainant.



Section 37.82 Does the Director accept every complaint for resolution?



This section consolidates information contained in 29 CFR

34.43(g)(1), (g)(5), and (g)(6). Consistent with plain-language

guidelines, the material has been slightly rewritten and presented in

outline form to improve its readability. Also, the information in

Paragraph 37.82(c), explaining that CRC need not investigate a

complaint about a matter that it has already decided, has been added. A

``complaint about a matter that it has already decided'' is a complaint

about the same set of facts that CRC has already considered and decided

in a previous case. This addition does not change CRC's authority in

any way; it is intended only to notify complainants and respondents

about CRC's practices. None of these changes is intended to alter the

meaning of this section.



Section 37.83 What happens if a complaint does not contain enough

information?



Generally, this section contains the same requirements as 29 CFR

34.43(g)(3). Consistent with plain-language guidelines, the material

has been slightly rewritten and presented in outline form to improve

its readability. Also, the provision requiring that a complainant must

submit the requested additional information within 15 days has been

eliminated. This change has been made in order to provide the Director

with the flexibility to require a longer or shorter response period, if

appropriate in a particular case.



Section 37.84 What happens if CRC does not have jurisdiction over a

complaint?



This section contains the same general information as 29 CFR

34.43(g)(5). Consistent with plain-language guidelines, the section has

been slightly rewritten to improve its clarity. Also, the reference to

the ``Directorate'' has been updated to ``CRC.'' Neither of these

changes is intended to alter the meaning of this section.



Section 37.85 Are there any other circumstances in which the Director

will send a complaint to another authority?



Generally, this section contains the same requirements as 29 CFR

34.43(g)(7) and (8), with additional material necessitated by the

requirements of the WIA program. Differences between this section and

the corresponding paragraphs of the JTPA nondiscrimination regulations

are set forth below.

Paragraph 37.85(a): This paragraph generally contains the same

requirements as 29 CFR 34.43(g)(7), except that the requirement that

the Director advise the complainant and the respondent about the

referral has been moved to paragraph (d). In addition, consistent with

plain-language guidelines, the material has been slightly rewritten.

Neither of these changes is intended to alter the meaning of this

paragraph.

Paragraph 37.85(b): This paragraph generally contains the same

requirements as 29 CFR 34.43(g)(8), except that the requirement that

the Director advise the complainant and the respondent about the

referral has been moved to paragraph (d). In addition, consistent with

plain-language guidelines, the material has been slightly rewritten and

presented in outline form to improve its readability. Also, the

reference to JTPA has been replaced by a reference to WIA. None of

these changes is intended to alter the meaning of this paragraph.

Paragraph 37.85(c): The material in this paragraph is new. Under

the One-Stop system established by WIA, CRC may have dual jurisdiction,

with Federal grantmaking agencies other than the Department of Labor,

over complaints that allege discrimination by One-Stop partners

financially assisted by those other grantmaking agencies. This

paragraph sets forth the general procedures that will be used to

determine whether CRC will retain such complaints for processing or

refer them to the other grantmaking agencies for appropriate action in

accordance with the Federal grantmaking agency's applicable

regulations. CRC will enter into Memoranda of Understanding (MOUs) with

the appropriate Federal grantmaking agencies to ensure that complaints

will be referred in accordance with these guidelines. These MOUs, which

will contain more specific



[[ Page 61712]]



referral procedures, will be published in the Federal Register. In

addition, the Department encourages local Workforce Investment Boards,

in developing the MOUs required by Section 121(c) of WIA, to include in

those MOUs provisions regarding the appropriate referral of any such

complaints filed at the local level.

Paragraph 37.85(d): The material in this paragraph comes from both

29 CFR 34.43(g)(7) and (8), as noted above. It has been placed in a

separate paragraph to improve the readability of this section.



Section 37.86 What must the Director do if he or she determines that a

complaint will not be accepted?



Generally, this section contains the same requirements as 29 CFR

34.43(g)(6). Consistent with plain-language guidelines, the material

has been slightly rewritten to improve its clarity. In addition, the

wording referring to circumstances in which a complaint ``will not be

investigated'' has been changed to ``will not be accepted.'' This

change has been made to reflect the addition of the mediation option to

CRC's complaint processing procedures: where a complainant and

respondent agree to mediate the complaint, CRC will conduct an

investigation only if the mediation fails, or if one of the parties

breaches the agreement reached through the mediation. See Section

37.89.



Section 37.87 What must the Director do if he or she determines that a

complaint will be accepted?



Generally, this section contains the same requirements as 29 CFR

34.43(g)(1)(i) and (ii). Consistent with plain-language guidelines, the

material has been slightly rewritten to improve its clarity. In

addition, the following changes have been made:

(1) The reference to the ``Directorate'' has been changed to the

``Director,'' because it is he or she who has the authority to

determine whether a complaint will be accepted.

(2) The Director is now required to notify the grantmaking agency,

as well as the complainant and the respondent, when a complaint is

accepted. This requirement has been added because CRC's experience has

shown that when grantmaking agencies are aware of discrimination

complaints, those complaints are more likely to be resolved

successfully, and recipients are more likely to comply with their

obligations regarding nondiscrimination and equal opportunity.

(3) The Director is also required to provide notice about any

issues over which he or she has not accepted jurisdiction, and the

reasons why those issues have been rejected. This requirement has been

added in order to provide complainants and respondents with reasonable

notice of the Director's determinations about the entire complaint.



Section 37.88 Who may contact CRC for information about a complaint?



Generally, this section contains the same requirements as 29 CFR

34.43(g)(2). Consistent with plain-language guidelines, the material

has been slightly rewritten to improve its clarity. Also, a second

sentence has been added in order to clarify that the Director has the

authority to determine what information about a complaint should be

released.



Section 37.89 May the Director offer the parties to a complaint the

option of mediation?



This section is new. Like the provisions allowing recipients to

include provisions for ADR in their complaint processing procedures,

this option was added in response to concerns of complainants and

recipients who wanted a more flexible, less adversarial means of

resolving discrimination complaints. CRC is particularly interested in

receiving comments concerning this section.



Determinations



Section 37.90 If a complaint is investigated, what must the Director

do when the investigation is completed?



This section contains information from 29 CFR 34.43(g)(9), (9)(i),

and (9)(ii). Consistent with plain-language guidelines, the material

has been rewritten and reorganized slightly, and presented in outline

form to improve its readability. Also, the Director is now required to

notify the grantmaking agency about his or her determination whether

the respondent has violated the nondiscrimination and equal opportunity

provisions. This requirement was added for the reasons listed in the

discussion of Section 37.87.



Section 37.91 What notice must the Director issue if he or she finds

reasonable cause to believe that a violation has taken place?



This section contains information from 29 CFR 34.43(g)(9)(i).

Consistent with plain-language guidelines, the material has been

rewritten and reorganized slightly to improve its clarity. Also,

references to sections in 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 this section.



Section 37.92 What notice must the Director issue if he or she finds

no reasonable cause to believe that a violation has taken place?



This section contains information from 29 CFR 34.43(g)(9)(ii).

Consistent with plain-language guidelines, the material has been

slightly rewritten to improve its clarity. These changes are not

intended to alter the meaning of the section.



Section 37.93 What happens if the Director finds that a violation has

taken place, and the recipient fails or refuses to take the corrective

action listed in the Initial Determination?



This section contains information from 29 CFR 34.46(a)(1).

Consistent with plain-language guidelines, the material has been

slightly rewritten to improve its clarity. These changes are not

intended to alter the meaning of the section.



Section 37.94 What corrective or remedial actions may be imposed

where, after a compliance review or complaint investigation, the

Director finds a violation of the nondiscrimination and equal

opportunity provisions of WIA or this part?



This section contains the same requirements as 29 CFR 34.44. The

material has been slightly rewritten to improve its clarity. Also, 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. None of these

changes is intended to alter the meaning of the section.



Section 37.95 What procedures apply if the Director finds that a

recipient has violated the nondiscrimination and equal opportunity

provisions of WIA or this part?



This section contains the same requirements as 29 CFR 34.45 (a) and

(b). Consistent with plain-language guidelines, the material has been

rewritten and reorganized slightly to improve its clarity. Some of the

material has been presented in outline form. Also, 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. None of these changes is intended to

alter the meaning of the section.

The section makes reference to a written Conciliation Agreement.

CRC, not the recipient or the Governor, prepares the initial draft of

this



[[ Page 61713]]



document. See also the discussion in this preamble about Section 37.97.



Section 37.96 What are the required elements of a written assurance?



This section contains the same requirements as 29 CFR 34.45(c)(1).

Consistent with plain-language guidelines, the material has been

slightly rewritten to improve its clarity. These changes are not

intended to alter the meaning of the section.



Section 37.97 What are the required elements of a Conciliation

Agreement?



Generally, this section contains the same requirements as 29 CFR

34.45(c)(2). Consistent with plain-language guidelines, the material

has been slightly rewritten to improve its clarity. These changes are

not intended to alter the meaning of the section.

As noted above in the discussion of Section 37.95, CRC, not the

recipient or the Governor, prepares the initial draft of the

Conciliation Agreement.



Section 37.98 When will the Director conclude that compliance cannot

be secured by voluntary means?



This section contains the same requirements as 29 CFR 34.46(a).

Consistent with plain-language guidelines, the material has been

slightly rewritten to improve its clarity. Also, the references to

other regulatory sections within part 34 have been changed to reflect

the numbering of this Interim Final Rule. These changes are not

intended to alter the meaning of the section.



Section 37.99 If the Director concludes that compliance cannot be

secured by voluntary means, what actions must he or she take?



This section includes information from 29 CFR 34.46(b) (1), (2),

and (3). The subparagraphs from Paragraph 34.46(b)(1) that describe the

required elements of a Final Determination have been moved to the next

section. Also, the material in this section has been slightly rewritten

to improve its clarity. Neither of these changes is intended to alter

the meaning of this section.



Section 37.100 What information must a Final Determination contain?



This section contains the same requirements as 29 CFR 34.46(a) and

(b). Consistent with plain-language guidelines, the material has been

rewritten and reorganized slightly to improve its clarity, and the

references to other regulatory sections within part 34 have been

changed to reflect the numbering of this Interim Final Rule. In

addition, in Paragraph 37.100(f)(1), language has been added to clarify

that the Department may withhold a grant applicant's or recipient's WIA

Title I-funded Federal financial assistance in whole or in part. This

change does not expand the Department's authority; it has been added

solely to provide recipients with notice of the Department's actual

practice.



Section 37.101 Whom must the Director notify of a finding of

noncompliance?



Generally, this section contains the same requirements as 29 CFR

34.47. Consistent with plain-language guidelines, the material has been

slightly rewritten to improve its clarity. In addition, language has

been added to clarify that the Director will notify the grant applicant

or recipient, as well as the grantmaking agency and the Assistant

Attorney General. This change has been made to reflect the Director's

actual practice and the requirements of the preceding sections.



Breaches of Conciliation Agreements



Section 37.102 What happens if a grant applicant or recipient breaches

a Conciliation Agreement?



This section contains the same requirements as 29 CFR 34.48(b). The

phrase ``through the Governor or by other means'' has been eliminated

as redundant. This change is not intended to alter the meaning of this

section.



Section 37.103 Whom must the Director notify about a breach of a

Conciliation Agreement?



This section contains the same requirements as 29 CFR 34.48(c).

Consistent with plain-language guidelines, the material has been

slightly rewritten to improve its clarity. In addition, the Director is

now required to notify the grantmaking agency, for the reasons listed

in the discussion of Section 37.87.



Section 37.104 What information must a Notification of Breach of

Conciliation Agreement contain?



This section contains the same requirements as 29 CFR 34.48(d).

Consistent with plain-language guidelines, the material has been

slightly rewritten to improve its clarity. In addition, the 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 section.



Section 37.105 Whom must the Director notify if enforcement action

under a Notification of Breach of Conciliation Agreement is commenced?



This section contains the same requirements as 29 CFR 34.48(e).

Consistent with plain-language guidelines, the material has been

slightly rewritten and presented in outline form to improve its

readability. These changes are not intended to alter the meaning of the

section.



Subpart E--Federal Procedures For Effecting Compliance



Section 37.110 What enforcement procedures does the Department follow

to effect compliance with the nondiscrimination and equal opportunity

provisions of WIA and this part?



This section contains the same requirements as 29 CFR 34.50.

Consistent with plain-language guidelines, the material has been

slightly rewritten to improve its clarity. Also, references to JTPA

have been changed to refer to WIA, and 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 section.



Section 37.111 What hearing procedures does the Department follow?



This section contains the same requirements as 29 CFR 34.51.

Consistent with plain-language guidelines, the material has been

slightly rewritten to improve its clarity. Also, references to another

regulatory section within part 34 have been changed to reflect the

numbering of this Interim Final Rule, and the current address of the

Office of Administrative Law Judges has been provided for the

convenience of the reader. None of these changes is intended to alter

the meaning of the section.



Section 37.112 What procedures for initial and final decisions does

the Department follow?



This section contains the same requirements as 29 CFR 34.52(a) and

(b). Consistent with plain-language guidelines, the material has been

slightly rewritten to improve its clarity. Also, references to JTPA

have been changed to refer to WIA, and 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 section.



[[ Page 61714]]



Section 37.113 What procedure does the Department follow to suspend,

terminate, withhold, deny or discontinue WIA Title I financial

assistance?



Generally, this section contains the same requirements as 29 CFR

34.53(a). Consistent with plain-language guidelines, the material has

been slightly re-punctuated to improve its clarity. Also, references to

JTPA have been changed to refer to WIA, and 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 section.

In addition, language has been added to the section to clarify that

the Department may withhold a grant applicant's or recipient's WIA

Title I financial assistance in whole or in part, as explained in the

discussion of Section 37.100.



Section 37.114 What procedure does the Department follow to distribute

WIA Title I financial assistance to an alternate recipient?



This section is identical to 29 CFR 34.53(b), except that the

reference to JTPA has been changed to refer to WIA. This change is not

intended to alter the meaning of the section.



Section 37.115 What procedures does the Department follow for post-

termination proceedings?



This section contains the same general requirements as 29 CFR

34.52(c). Consistent with plain-language guidelines, the material has

been slightly rewritten to improve its clarity. Also, references to

JTPA have been changed to refer to WIA, and 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 section.

In addition, the sentence providing that ``[r]estoration to

eligibility may be conditioned upon the grant applicant or recipient

entering into a consent decree'' has been deleted, in order to clarify

that the grant applicant or recipient must actually bring itself into

compliance with the nondiscrimination and equal opportunity provisions

of Section 188 and this part before being restored to eligibility for

WIA Title I financial assistance.



IV. Regulatory Procedures



Executive Order 12866



The Department of Labor has determined that this Interim Final Rule

is not a ``significant regulatory action'' under Executive Order 12866

because this action will not: (1) Have an annual effect on the economy

of $100 million or more, or adversely affect in a material way the

economy, a sector of the economy, productivity, competition, jobs, the

environment, public health or safety, or State, local, or tribal

governments or communities; (2) Create a serious inconsistency, or

otherwise interfere, with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user

fees, or loan programs, or the rights and obligations of recipients

thereof; or (4) Raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

Executive Order 12866. Therefore, no regulatory impact analysis has

been prepared.



Regulatory Flexibility Act



This Interim Final Rule does not substantially change the existing

obligation of recipients or entities operating Federally-assisted

programs or activities to apply a policy of nondiscrimination and equal

opportunity in employment or services. The Department of Labor

certifies that the proposed rule will not have a significant economic

impact on substantial number of small business entities. Therefore, a

regulatory flexibility analysis is not required.



Unfunded Mandates Reform



Executive Order 12875--This rule will not create an unfunded

Federal Mandate upon any State, local, or tribal government.

Unfunded Mandate Reform Act of 1995--This rule will not include any

Federal mandate that may result in increased expenditures by State,

local and tribal governments in the aggregate of $100 million or more,

or increased expenditures by the private sector of $100 million or

more.



Paperwork Reduction Act



Certain sections of this Interim Final Rule, including Secs. 37.8,

37.9, 37.20, 37.29, 37.30, 37.31, 37.34, 37.37, 37.38, 37.39, 37.54,

37.73, and 37.74, contain information collection requirements. As

required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)),

the Department of Labor has submitted a copy of these sections to the

Office of Management and Budget (OMB) for its review. Comments must be

submitted by December 13, 1999 to: Desk Officer for the Department of

Labor, Civil Rights Center, Office of Management and Budget, 725 17th

Street, NW (Rm 10235), Washington, DC 20503. Affected parties do not

have to comply with the information collection requirements in this

document until DOL publishes in the Federal Register the control

numbers assigned by OMB. Publication of the control numbers notifies

the public that OMB has approved this information collection

requirement under the Paperwork Reduction Act of 1995.



Request for Comments



This publication implements the nondiscrimination and equal

opportunity provisions of Section 188 of WIA, and requests comments

about this Interim Final Rule from State and local governments; public

interest groups; current and potential grant applicants for and

recipients of Federal financial assistance (particularly current and

potential providers of training services); current and potential

beneficiaries of such Federal financial assistance; other Federal

agencies; and the public.



Clarity Of This Regulation



Executive Order 12866 and the President's memorandum of June 1,

1998, require each agency to write all rules in plain language. The

Department invites comments on how to make this proposed rule easier to

understand. For example:



--Have we organized the material to suit your needs?

--Are the requirements in the rule clearly stated?

--Does the rule contain technical language or jargon that isn't clear?

--Would a different format (grouping and order of sections, use of

headings, paragraphing) make the rule easier to understand?

--Would more (but shorter) sections be better?

--Could we improve clarity by adding tables, lists, or diagrams?

--What else could we do to make the rule easier to understand?



Absence of Notice of Proposed Rulemaking



After full and fair consideration over the months since passage of

the Workforce Investment Act of 1998, the Department of Labor has

determined that it is in the public interest not to publish a Notice of

Proposed Rulemaking (NPRM) regarding implementation of Section 188 of

the Act, but instead to publish this Interim Final Rule. This

determination is based upon the schedule for implementation of WIA.

The WIA program is designed eventually to supersede its predecessor

program, the Job Training Partnership Act (JTPA) program, which sunsets

on



[[ Page 61715]]



July 1, 2000. The regulations implementing JTPA therefore will remain

in effect until that date. However, States have the option of

implementing WIA Title I-financially assisted programs and activities

as early as July 1, 1999; indeed, the Department is encouraging such

early implementation.

CRC is issuing the regulations implementing WIA's nondiscrimination

and equal opportunity provisions as an Interim Final Rule so that those

regulations will be in place as soon as possible for early-

implementation States and their recipients. Generally, the Rule tracks

the nondiscrimination and equal opportunity regulations in place under

JTPA; the Rule does, however, contain a number of new or revised

provisions that will require these States and their recipients to take

action before the date on which they implement WIA, or as soon after

that date as possible.

For example, each application for financial assistance under either

JTPA or WIA Title I must contain assurances regarding the grant

applicant's compliance with various Federal laws and regulations

concerning nondiscrimination and equal opportunity. For the WIA

program, the required assurance has been rewritten in plain language.

The new language appears in Section 37.20 of the Interim Final Rule.

Publication of the regulations as an immediately-effective Interim

Final Rule will eliminate any possible ambiguity regarding the language

that grant applicants in early-implementation states must include in

their applications for WIA Title I financial assistance.

Similarly, Section 37.76 of the Rule contains a list of elements

that a recipient's discrimination complaint processing procedures must

include. Although the JTPA nondiscrimination regulations contained a

general requirement that recipients adopt and publish complaint

processing procedures, the new list of requisite elements for those

procedures is more detailed, and recipients in early-implementing

states will need to know as soon as possible the actual requirements

for those procedures in order to ensure that their complaint processing

procedures comply with the requirements of the WIA program. Publishing

an Interim Final Rule, rather than an NPRM, will assist States and

recipients by providing a firm list of requirements that will be in

place on or soon after the date of implementation, rather than a

proposed list that might change before that date.

Furthermore, the Interim Final Rule sets a comment period to elicit

any concerns raised by the rule. The comment period takes place before

the final rule will be implemented, so that CRC may receive comments in

time to consider them in preparing the final rule for publication.

For the above-listed reasons, the Department of Labor finds that

publishing an NPRM, and providing a period for notice and comment,

before implementing this Interim Final Rule would be contrary to the

public interest, and therefore constitute good cause under 5 U.S.C.

553(b)(B) for publishing these regulations as an Interim Final Rule.

Furthermore, the Department finds that the above-listed reasons also

constitute good cause under 5 U.S.C. 553(d)(3) for waiving the

customary requirement to delay the effective date of a regulation for

30 days following its publication. Therefore, this Interim Final Rule

is effective immediately upon publication.



List of Subjects in 29 CFR Part 37



Administrative practice and procedure, Discrimination, Civil

rights, Equal education opportunity, Equal employment opportunity,

Grant programs--Labor, Individuals with disabilities, Investigations,

Reporting and recordkeeping requirements.



Signed at Washington, D.C. this 22nd day of October 1999.

Alexis M. Herman,

Secretary of Labor.



Accordingly, title 29, subtitle A of the Code of Federal

Regulations is amended by adding part 37 to read as follows:



PART 37--IMPLEMENTATION OF THE NONDISCRIMINATION AND EQUAL

OPPORTUNITY PROVISIONS OF THE WORKFORCE INVESTMENT ACT OF 1998

(WIA)



Subpart A--General Provisions



Sec.

37.1 What is the purpose of this part?

37.2 To whom does this part apply, and what is the scope of this

part?

37.3 How does this part affect a recipient's other obligations?

37.4 What definitions apply to this part?

37.5 What forms of discrimination are prohibited by this part?

37.6 What specific discriminatory actions, based on prohibited

grounds other than disability, are prohibited by this part?

37.7 What specific discriminatory actions based on disability are

prohibited by this part?

37.8 What are a recipient's responsibilities regarding reasonable

accommodation and reasonable modification for individuals with

disabilities?

37.9 What are a recipient's responsibilities to communicate with

individuals with disabilities?

37.10 To what extent are a recipient's employment practices covered

by this part?

37.11 To what extent are intimidation and retaliation prohibited by

this part?

37.12 What Department of Labor office is responsible for

administering this part?

37.13 Who is responsible for providing interpretations of this

part?

37.14 Under what circumstances may the Secretary delegate the

responsibilities of this part?

37.15 What are the Director's responsibilities to coordinate with

other civil rights agencies?

37.16 What is this part's effect on a recipient's obligations under

other laws, and what limitations apply?



Subpart B--Recordkeeping and Other Affirmative Obligations of

Recipients



Assurances



37.20 What is a grant applicant's obligation to provide a written

assurance?

37.21 How long will the recipient's obligation under the assurance

last, and how broad is the obligation?

37.22 How must covenants be used in connection with this part?



Equal Opportunity Officers



37.23 Who must designate an Equal Opportunity Officer?

37.24 Who is eligible to serve as an Equal Opportunity Officer?

37.25 What are the responsibilities of an Equal Opportunity

Officer?

37.26 What are a recipient's obligations relating to the Equal

Opportunity Officer?

37.27 What are the obligations of small recipients regarding Equal

Opportunity Officers?

37.28 What are the obligations of service providers regarding Equal

Opportunity Officers?



Notice and Communication



37.29 What are a recipient's obligations to disseminate its equal

opportunity policy?

37.30 What specific wording must the notice contain?

37.31 Where must the notice required by Secs. 37.29 and 37.30 be

published?

37.32 When must the notice be provided?

37.33 Who is responsible for meeting the notice requirement with

respect to service providers?

37.34 What type of notice must a recipient include in publications,

broadcasts, and other communications?

37.35 What are a recipient's responsibilities to provide services

and information in languages other than English?

37.36 What responsibilities does a recipient have to communicate

information during orientations?



[[ Page 61716]]



Data and Information Collection and Maintenance



37.37 What are a recipient's responsibilities to collect and

maintain data and other information?

37.38 What information must grant applicants and recipients provide

to CRC?

37.39 How long must grant applicants and recipients maintain the

records required under this part?

37.40 What access to sources of information must grant applicants

and recipients provide the Director?

37.41 What responsibilities do grant applicants, recipients, and

the Department have to maintain the confidentiality of the

information collected?

37.42 What are a recipient's responsibilities under this part to

provide universal access to WIA Title I-financially assisted

programs and activities?



Subpart C--Governor's Responsibilities to Implement the

Nondiscrimination and Equal Opportunity Requirements of WIA



37.50 To whom does this subpart apply?

37.51 What are a Governor's oversight responsibilities?

37.52 To what extent may a Governor be liable for the actions of a

recipient he or she has financially assisted under WIA Title I?

37.53 What are a Governor's oversight responsibilities regarding

recipients' recordkeeping?

37.54 That are a Governor's obligations to develop and maintain a

Methods of Administration?

37.55 When must the Governor carry out his or her obligations with

regard to the Methods of Administration?



Subpart D--Compliance Procedures



37.60 How does the Director evaluate compliance with the

nondiscrimination and equal opportunity provisions of WIA and this

part?

37.61 Is there authority to issue subpoenas?



Compliance Reviews



37.62 What are the authority and procedures for conducting pre-

approval compliance reviews?

37.63 What are the authority and procedures for conducting post-

approval compliance reviews?

37.64 What procedures must the Director follow when CRC has

completed a post-approval compliance review?

37.65 What is the Director's authority to monitor the activities of

a Governor?

37.66 What happens if a recipient fails to submit requested data,

records, and/or information, or fails to provide CRC with the

required access?

37.67 What information must a Notice to Show Cause contain?

37.68 How may a recipient show cause why enforcement proceedings

should not be instituted?

37.69 What happens if a recipient fails to show cause?



Complaint Processing Procedures



37.70 Who may file a complaint concerning discrimination connected

with WIA Title I?

37.71 Where may a complaint be filed?

37.72 When must a complaint be filed?

37.73 What information must a complaint contain?

37.74 Are there any forms that a complainant may use to file a

complaint?

37.75 Is there a right of representation in the complaint process?

37.76 What are the required elements of a recipient's

discrimination complaint processing procedures?

37.77 Who is responsible for developing and publishing complaint

processing procedures for service providers?

37.78 Does a recipient have any special obligations in cases in

which the recipient determines that it has no jurisdiction over a

complaint?

37.79 If, before the 90-day period has expired, a recipient issues

a Notice of Final Action with which the complainant is dissatisfied,

how long does the complainant have to file a complaint with the

Director?

37.80 What happens if a recipient fails to issue a Notice of Final

Action within 90 days of the date on which a complaint was filed?

37.81 Are there any circumstances under which the Director may

extend the time limit for filing a complaint with him or her?

37.82 Does the Director accept every complaint for resolution?

37.83 What happens if a complaint does not contain enough

information?

37.84 What happens if CRC does not have jurisdiction over a

complaint?

37.85 Are there any other circumstances in which the Director will

send a complaint to another authority?

37.86 What must the Director do if he or she determines that a

complaint will not be accepted?

37.87 What must the Director do if he or she determines that a

complaint will be accepted?

37.88 Who may contact CRC about a complaint?

37.89 May the Director offer the parties to a complaint the option

of mediation?



Determinations



37.90 If a complaint is investigated, what must the Director do

when the investigation is completed?

37.91 What notice must the Director issue if he or she finds

reasonable cause to believe that a violation has taken place?

37.92 What notice must the Director issue if he or she finds no

reasonable cause to believe that a violation has taken place?

37.93 What happens if the Director finds that a violation has taken

place, and the recipient fails or refuses to take the corrective

action listed in the Initial Determination?

37.94 What corrective or remedial actions may be imposed where,

after a compliance review or complaint investigation, the Director

finds a violation of the nondiscrimination and equal opportunity

provisions of WIA or this part?

37.95 What procedures apply if the Director finds that a recipient

has violated the nondiscrimination and equal opportunity provisions

of WIA or this part?

37.96 What are the required elements of a written assurance?

37.97 What are the required elements of a Conciliation Agreement?

37.98 What are the circumstances under which the Director will

conclude that compliance cannot be secured by voluntary means?

37.99 If the Director concludes that compliance cannot be secured

by voluntary means, what actions must he or she take?

37.100 What information must a Final Determination contain?

37.101 Whom must the Director notify of a finding of noncompliance?



Breaches of Conciliation Agreements



37.102 What happens if a grant applicant or recipient breaches a

Conciliation Agreement?

37.103 Whom must the Director notify about a breach of a

Conciliation Agreement?

37.104 What information must a Notification of Breach of

Conciliation Agreement contain?

37.105 Whom must the Director notify if enforcement action under a

Notification of Breach of Conciliation Agreement is commenced?



Subpart E--Federal Procedures For Effecting Compliance



37.110 What enforcement procedures does the Department follow to

effect compliance with the nondiscrimination and equal opportunity

provisions of WIA and this part?

37.111 What hearing procedures does the Department follow?

37.112 What procedures for initial and final decisions does the

Department follow?

37.113 What procedure does the Department follow to suspend,

terminate, withhold, deny or discontinue WIA Title I financial

assistance?

37.114 What procedure does the Department follow to distribute WIA

Title I financial assistance to an alternate recipient?

37.115 What procedures does the Department follow for post-

termination proceedings?



Authority: 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, 29 U.S.C. 2801 et seq.; Title VI of the

Civil Rights Act of 1964, as amended, 42 U.S.C. 2000d, et seq.;

Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C.

794; the Age Discrimination Act of 1975, as amended, 42



[[ Page 61717]]



U.S.C. 6101; and Title IX of the Education Amendments of 1972, as

amended, 20 U.S.C. 1681.



Subpart A--General Provisions





Sec. 37.1 What is the purpose of this part?



The purpose of this part is to implement the nondiscrimination and

equal opportunity provisions of the Workforce Investment Act of 1998

(WIA), which are contained in section 188 of WIA. Section 188 prohibits

discrimination on the grounds of race, color, religion, sex, national

origin, age, disability, political affiliation or belief, and for

beneficiaries only, citizenship or participation in a WIA Title I-

financially assisted program or activity. This part clarifies the

application of the nondiscrimination and equal opportunity provisions

of WIA and provides uniform procedures for implementing them.





Sec. 37.2 To whom does this part apply, and what is the scope of this

part?



(a) This part applies to:

(1) Any recipient, as defined in Sec. 37.4;

(2) Programs and activities that are part of the One-Stop delivery

system and that are operated by One-Stop partners listed in section

121(b) of WIA, to the extent that the programs and activities are being

conducted as part of the One-Stop delivery system; and

(3) The employment practices of a recipient and/or One-Stop

partner, as provided in Sec. 37.10.

(b) Limitation of Application. This part does not apply to:

(1) Programs or activities that are financially assisted by the

Department exclusively under laws other than Title I of WIA, and that

are not part of the One-Stop delivery system (including programs or

activities implemented under, authorized by, and/or financially

assisted by the Department under, JTPA);

(2) Contracts of insurance or guaranty;

(3) The ultimate beneficiary to this program of Federal financial

assistance;

(4) Federal procurement contracts, with the exception of contracts

to operate or provide services to Job Corps Centers; and

(5) Federally-operated Job Corps Centers. The operating Department

is responsible for enforcing the nondiscrimination and equal

opportunity laws to which such Centers are subject.





Sec. 37.3 How does this part affect a recipient's other obligations?



(a) A recipient's compliance with this part will satisfy any

obligation of the recipient to comply with 29 CFR part 31, the

Department of Labor's regulations implementing Title VI of the Civil

Rights Act of 1964, as amended (Title VI), and with Subparts A, D and E

of 29 CFR part 32, the Department's regulations implementing Section

504 of the Rehabilitation Act of 1973, as amended (Section 504).

(b) 29 CFR part 32, Subparts B and C and Appendix A, the

Department's regulations which implement the requirements of Section

504 pertaining to employment practices and employment-related training,

program accessibility, and reasonable accommodation, are hereby

incorporated into this part by reference. Therefore, recipients must

comply with the requirements set forth in those regulatory sections as

well as the requirements listed in this part.

(c) Recipients that are also public entities or public

accommodations, as defined by Titles II and III of the Americans with

Disabilities Act of 1990 (ADA), should be aware of obligations imposed

by those titles.

(d) Similarly, recipients that are also employers, employment

agencies, or other entities covered by Title I of the ADA should be

aware of obligations imposed by that title.

(e) Compliance with this part does not affect, in any way, any

additional obligation that a recipient may have to comply with the

following laws and their implementing regulations:

(1) Executive Order 11246, as amended;

(2) Sections 503 and 504 of the Rehabilitation Act of 1973, as

amended (29 U.S.C. 793 and 794);

(3) The affirmative action provisions of the Vietnam Era Veterans'

Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212);

(4) The Equal Pay Act of 1963, as amended (29 U.S.C. 206d);

(5) Titles VI and VII of the Civil Rights Act of 1964, as amended

(42 U.S.C. 2000d et seq. and 2000e et seq.);

(6) The Age Discrimination Act of 1975, as amended (42 U.S.C.

6101);

(7) The Age Discrimination in Employment Act of 1967, as amended

(29 U.S.C. 621);

(8) Title IX of the Education Amendments of 1972, as amended (Title

IX) (20 U.S.C. 1681);

(9) The Americans with Disabilities Act of 1990, as amended (42

U.S.C. 12101 et seq.); and

(10) The anti-discrimination provision of the Immigration and

Nationality Act, as amended (8 U.S.C. 1324b).

(f) This rule does not preempt consistent State and local

requirements.





Sec. 37.4 What definitions apply to this part?



As used in this part, the term:

Administrative Law Judge means a person appointed as provided in 5

U.S.C. 3105 and 5 CFR 930.203, and qualified under 5 U.S.C. 557, to

preside at hearings held under the nondiscrimination and equal

opportunity provisions of WIA and this part.

Aid, benefits, services, or training means WIA Title I--financially

assisted services, financial or other aid, or benefits provided by or

through a recipient or its employees, or by others through contract or

other arrangements with the recipient. ``Aid, benefits, services, or

training'' includes, but is not limited to:

(1) Core and intensive services;

(2) Education or training;

(3) Health, welfare, housing, social service, rehabilitation, or

other supportive services;

(4) Work opportunities; and

(5) Cash, loans, or other financial assistance to individuals.

As used in this part, the term includes any aid, benefits,

services, or training provided in or through a facility that has been

constructed, expanded, altered, leased, rented, or otherwise obtained,

in whole or in part, with Federal financial assistance under Title I of

WIA.

Applicant means an individual who is interested in being considered

for WIA Title I--financially assisted aid, benefits, services, or

training by a recipient, and who has signified that interest by

submitting personal information in response to a request by the

recipient. See also the definitions of ``application for benefits,''

``eligible applicant/registrant,'' ``participant,'' ``participation,''

and ``recipient'' in this section.

Applicant for employment means a person or persons who make(s)

application for employment with a recipient of Federal financial

assistance under WIA Title I.

Application for assistance means the process by which required

documentation is provided to the Governor, recipient, or Department

before and as a condition of receiving WIA Title I financial assistance

(including both new and continuing assistance).

Application for benefits means the process by which information,

including but not limited to a completed application form, is provided

by applicants or eligible applicants before and as a condition of

receiving WIA Title I--financially assisted aid, benefits, services, or

training from a recipient.

Assistant Attorney General means the Assistant Attorney General,

Civil Rights



[[ Page 61718]]



Division, United States Department of Justice.

Assistant Secretary means the Assistant Secretary for

Administration and Management, United States Department of Labor.

Auxiliary aids or services includes--

(1) Qualified interpreters, notetakers, transcription services,

written materials, telephone handset amplifiers, assistive listening

systems, telephones compatible with hearing aids, closed caption

decoders, open and closed captioning, telecommunications devices for

deaf persons (TDDs/TTYs), videotext displays, or other effective means

of making aurally delivered materials available to individuals with

hearing impairments;

(2) Qualified readers, taped texts, audio recordings, brailled

materials, large print materials, or other effective means of making

visually delivered materials available to individuals with visual

impairments;

(3) Acquisition or modification of equipment or devices; and

(4) Other similar services and actions.

Beneficiary means the individual or individuals intended by

Congress to receive aid, benefits, services, or training from a

recipient.

Citizenship See ``Discrimination on the ground of citizenship'' in

this section.

CRC means the Civil Rights Center, Office of the Assistant

Secretary for Administration and Management, U.S. Department of Labor.

Department means the U.S. Department of Labor (DOL), including its

agencies and organizational units.

Departmental grantmaking agency means a grantmaking agency within

the U.S. Department of Labor.

Director means the Director, Civil Rights Center (CRC), Office of

the Assistant Secretary for Administration and Management, U.S.

Department of Labor, or a designee authorized to act for the Director.

Disability means, with respect to an individual, a physical or

mental impairment that substantially limits one or more of the major

life activities of such individual; a record of such an impairment; or

being regarded as having such an impairment.

(1)(i) The phrase physical or mental impairment means--

(A) Any physiological disorder or condition, cosmetic

disfigurement, or anatomical loss affecting one or more of the

following body systems: neurological, musculoskeletal, special sense

organs, respiratory (including speech organs), cardiovascular,

reproductive, digestive, genitourinary, hemic and lymphatic, skin, and

endocrine;

(B) Any mental or psychological disorder such as mental

retardation, organic brain syndrome, emotional or mental illness, and

specific learning disabilities.

(ii) The phrase physical or mental impairment includes, but is not

limited to, such contagious and noncontagious diseases and conditions

as orthopedic, visual, speech and hearing impairments, cerebral palsy,

epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart

disease, diabetes, mental retardation, emotional illness, specific

learning disabilities, HIV disease (whether symptomatic or

asymptomatic), tuberculosis, drug addiction, and alcoholism. The phrase

``physical or mental impairment'' does not include homosexuality or

bisexuality.

(2) The phrase major life activities means functions such as caring

for one's self, performing manual tasks, walking, seeing, hearing,

speaking, breathing, learning, and working.

(3) The phrase has a record of such an impairment means has a

history of, or has been misclassified as having, a mental or physical

impairment that substantially limits one or more major life activities.

(4) The phrase is regarded as having an impairment means--

(i) Has a physical or mental impairment that does not substantially

limit major life activities but that is treated by the recipient as

being such a limitation;

(ii) Has a physical or mental impairment that substantially limits

major life activities only as a result of the attitudes of others

toward such impairment; or

(iii) Has none of the impairments defined in paragraph (1) of this

definition but is treated by the recipient as having such an

impairment.

Discrimination on the ground of citizenship means a denial of

participation in programs or activities financially assisted in whole

or in part under Title I of WIA to individuals on the basis of their

status as citizens or nationals of the United States, lawfully admitted

permanent resident aliens, refugees, asylees, and parolees, or other

immigrants authorized by the Attorney General to work in the United

States.

Eligible applicant/registrant means an individual who has been

determined eligible to participate in one or more WIA Title I--

financially assisted programs or activities.

Employment practices means a recipient's practices related to

employment, including but not limited to:

(1) Recruitment or recruitment advertising;

(2) Selection, placement, layoff or termination of employees;

(3) Upgrading, promotion, demotion or transfer of employees;

(4) Training, including employment-related training;

(5) Participation in upward mobility programs;

(6) Deciding rates of pay or other forms of compensation;

(7) Use of facilities; or

(8) Deciding other terms, conditions, benefits and/or privileges of

employment.

Employment-related training means training that allows or enables

an individual to obtain employment.

Entity means any person, corporation, partnership, joint venture,

sole proprietorship, unincorporated association, consortium, Indian

tribe or tribal organization, Native Hawaiian organization, and/or

entity authorized by State or local law; any State or local government;

and/or any agency, instrumentality or subdivision of such a government.

Facility means all or any portion of buildings, structures, sites,

complexes, equipment, roads, walks, passageways, parking lots, rolling

stock or other conveyances, or other real or personal property or

interest in such property, including the site where the building,

property, structure, or equipment is located. The phrase ``real or

personal property'' in the preceding sentence includes indoor

constructs that may or may not be permanently attached to a building or

structure. Such constructs include, but are not limited to, office

cubicles, computer kiosks, and similar constructs.

Federal grantmaking agency means a Federal agency that provides

financial assistance under any Federal statute.

Financial assistance means any of the following:

(1) Any grant, subgrant, loan, or advance of funds, including funds

extended to any entity for payment to or on behalf of participants

admitted to that entity for training, or extended directly to such

participants for payment to that entity;

(2) Provision of the services of grantmaking agency personnel, or

of other personnel at the grantmaking agency's expense;

(3) A grant or donation of real or personal property or any

interest in or use of such property, including:

(a) Transfers or leases of property for less than fair market value

or for reduced consideration;



[[ Page 61719]]



(b) Proceeds from a subsequent sale, transfer, or lease of such

property, if the grantmaking agency's share of the fair market value of

the property is not returned to the grantmaking agency; and

(c) The sale, lease, or license of, and/or the permission to use

(other than on a casual or transient basis), such property or any

interest in such property, either:

(i) Without consideration,

(ii) At a nominal consideration, or

(iii) At a consideration that is reduced or waived either for the

purpose of assisting the recipient, or in recognition of the public

interest to be served by such sale or lease to or use by the recipient;

(4) Waiver of charges that would normally be made for the

furnishing of services by the grantmaking agency; and

(5) Any other agreement, arrangement, contract or subcontract

(other than a procurement contract or a contract of insurance or

guaranty), or other instrument that has as one of its purposes the

provision of assistance or benefits under the statute or policy that

authorizes assistance by the grantmaking agency.

Financial assistance under Title I of WIA means any of the

following, when authorized or extended under WIA Title I:

(1) Any grant, subgrant, loan, or advance of Federal funds,

including funds extended to any entity for payment to or on behalf of

participants admitted to that entity for training, or extended directly

to such participants for payment to that entity;

(2) Provision of the services of Federal personnel, or of other

personnel at Federal expense;

(3) A grant or donation of Federal real or personal property or any

interest in or use of such property, including:

(a) Transfers or leases of property for less than fair market value

or for reduced consideration;

(b) Proceeds from a subsequent sale, transfer, or lease of such

property, if the Federal share of the fair market value of the property

is not returned to the Federal Government; and

(c) The sale, lease, or license of, and/or the permission to use

(other than on a casual or transient basis), such property or any

interest in such property, either:

(i) Without consideration,

(ii) At a nominal consideration, or

(iii) At a consideration that is reduced or waived either for the

purpose of assisting the recipient, or in recognition of the public

interest to be served by such sale or lease to or use by the recipient;

(4) Waiver of charges that would normally be made for the

furnishing of Government services; and

(5) Any other agreement, arrangement, contract or subcontract

(other than a Federal procurement contract or a contract of insurance

or guaranty), or other instrument that has as one of its purposes the

provision of assistance or benefits under WIA Title I.

Fundamental alteration means:

(1) A change in the essential nature of a program or activity as

defined in this part, including but not limited to an aid, service,

benefit, or training; or

(2) A cost that a recipient can demonstrate would result in an

undue burden. Factors to be considered in making the determination

whether the cost of a modification would result in such a burden

include:

(a) The nature and net cost of the modification needed, taking into

consideration the availability of tax credits and deductions, and/or

outside financial assistance, for the modification;

(b) The overall financial resources of the facility or facilities

involved in the provision of the modification, including:

(i) The number of persons aided, benefited, served, or trained by,

or employed at, the facility or facilities; and

(ii) The effect the modification would have on the expenses and

resources of the facility or facilities;

(c) The overall financial resources of the recipient, including:

(i) The overall size of the recipient;

(ii) The number of persons aided, benefited, served, trained, or

employed by the recipient; and

(iii) The number, type and location of the recipient's facilities;

(d) The type of operation or operations of the recipient,

including:

(i) The geographic separateness and administrative or fiscal

relationship of the facility or facilities in question to the

recipient; and

(ii) Where the modification sought is employment-related, the

composition, structure and functions of the recipient's workforce; and

(e) The impact of the modification upon the operation of the

facility or facilities, including:

(i) The impact on the ability of other participants to receive aid,

benefits, services, or training, or of other employees to perform their

duties; and

(ii) The impact on the facility's ability to carry out its mission.

Governor means the chief elected official of any State or his or

her designee.

Grant applicant means an entity that submits the required

documentation to the Governor, recipient, or Department, before and as

a condition of receiving financial assistance under Title I of WIA.

Grantmaking agency means an entity that provides Federal financial

assistance.

Guideline means written informational material supplementing an

agency's regulations and provided to grant applicants and recipients to

provide program-specific interpretations of their responsibilities

under the regulations.

Illegal use of drugs means the use of drugs, the possession or

distribution of which is unlawful under the Controlled Substances Act,

as amended (21 U.S.C. 812). ``Illegal use of drugs'' does not include

the use of a drug taken under supervision of a licensed health care

professional, or other uses authorized by the Controlled Substances Act

or other provisions of Federal law.

Individual with a disability means a person who has a disability,

as defined in this section.

(1) The term ``individual with a disability'' does not include an

individual on the basis of:

(i) Transvestism, transsexualism, pedophilia, exhibitionism,

voyeurism, gender identity disorders not resulting from physical

impairments, or other sexual behavior disorders;

(ii) Compulsive gambling, kleptomania, or pyromania; or

(iii) Psychoactive substance use disorders resulting from current

illegal use of drugs.

(2) The term ``individual with a disability'' also does not include

an individual who is currently engaging in the illegal use of drugs,

when a recipient acts on the basis of such use. This limitation does

not exclude as an individual with a disability an individual who:

(i) Has successfully completed a supervised drug rehabilitation

program and is no longer engaging in the illegal use of drugs, or has

otherwise been rehabilitated successfully and is no longer engaging in

such use;

(ii) Is participating in a supervised rehabilitation program and is

no longer engaging in such use; or

(iii) Is erroneously regarded as engaging in such use, but is not

engaging in such use, except that it is not a violation of the

nondiscrimination and equal opportunity provisions of WIA or this part

for a recipient to adopt or administer reasonable policies or

procedures, including but not limited to drug testing, designed to

ensure that an individual described in paragraph (1)(i) or (1)(ii) of

this definition is no longer engaging in the illegal use of drugs.



[[ Page 61720]]



(2) With regard to employment, the term ``individual with a

disability'' does not include any individual who:

(i) Is an alcoholic:

(A) Whose current use of alcohol prevents such individual from

performing the duties of the job in question, or

(B) Whose employment, by reason of such current alcohol abuse,

would constitute a direct threat to property or the safety of others;

or

(ii) Has a currently contagious disease or infection, if:

(A) That disease or infection prevents him or her from performing

the duties of the job in question, or

(B) His or her employment, because of that disease or infection,

would constitute a direct threat to the health and safety of others.

Labor market area means an economically integrated geographic area

within which individuals can reside and find employment within a

reasonable distance or can readily change employment without changing

their place of residence. Such an area must be identified in accordance

with either criteria used by the Bureau of Labor Statistics of the

Department of Labor in defining such areas, or similar criteria

established by a Governor.

LWIA (Local Workforce Investment Area) grant recipient means the

entity that receives WIA Title I financial assistance for a Local

Workforce Investment Area directly from the Governor and disburses

those funds for workforce investment activities.

Methods of Administration means the written document and supporting

documentation developed under Sec. 37.54.

National Programs means:

(1) Job Corps; and

(2) Programs receiving Federal funds under Title I, Subtitle D of

WIA directly from the Department. Such programs include, but are not

limited to, the Migrant and Seasonal Workers Programs, Native American

Programs, and Veterans' Workforce Investment programs.

Noncompliance means a failure of a grant applicant or recipient to

comply with any of the applicable requirements of the nondiscrimination

and equal opportunity provisions of WIA or this part.

On-the-Job Training (OJT) means training by an employer that is

provided to a paid participant while the participant is engaged in

productive work that:

(1) Provides knowledge or skills essential to the full and adequate

performance of the job;

(2) Provides reimbursement to the employer of up to 50 percent of

the wage rate of the participant, for the extraordinary costs of

providing the training and additional supervision related to the

training; and

(3) Is limited in duration as appropriate to the occupation for

which the participant is being trained, taking into account the content

of the training, the prior work experience of the participant, and the

service strategy of the participant, as appropriate.

Participant means an individual who has been determined to be

eligible to participate in, and who is receiving aid, benefits,

services or training under, a program or activity funded in whole or in

part under Title I of WIA. ``Participant'' includes, but is not limited

to, applicants receiving any service(s) under state Employment Service

programs, and claimants receiving any service(s) under state

Unemployment Insurance programs.

Participation is considered to commence on the first day, following

determination of eligibility, on which the participant began receiving

subsidized aid, benefits, services, or training provided under Title I

of WIA.

Parties to a hearing means the Department and the grant

applicant(s), recipient(s), or Governor.

Population eligible to be served means the total population of

adults and eligible youth who reside within the labor market area that

is served by a particular recipient, and who are eligible to seek WIA

Title I-financially assisted aid, benefits, services or training from

that recipient. See the definition of ``labor market area'' in this

section.

Program or activity: See ``WIA Title I-financially assisted program

or activity'' in this section.

Prohibited ground means any basis upon which it is illegal to

discriminate under the nondiscrimination and equal opportunity

provisions of WIA or this part, i.e., race, color, religion, sex,

national origin, age, disability, political affiliation or belief, and,

for beneficiaries only, citizenship or participation in a WIA Title I-

financially assisted program or activity.

Public entity means:

(1) Any State or local government; and

(2) Any department, agency, special purpose district, workforce

investment board, or other instrumentality of a State or States or

local government.

Qualified individual with a disability means:

(1) With respect to employment, an individual with a disability

who, with or without reasonable accommodation, is capable of performing

the essential functions of the job in question;

(2) With respect to aid, benefits, services, or training, an

individual with a disability who, with or without reasonable

accommodation and/or reasonable modification, meets the essential

eligibility requirements for the receipt of such aid, benefits,

services, or training.

Qualified interpreter means an interpreter who is able to interpret

effectively, accurately, and impartially, either for individuals with

disabilities or for individuals with limited English skills. The

interpreter must be able to interpret both receptively and

expressively, using any necessary specialized vocabulary.

Reasonable accommodation. (1) The term ``reasonable accommodation''

means:

(i) Modifications or adjustments to an application/registration

process that enables a qualified applicant/registrant with a disability

to be considered for the aid, benefits, services, training, or

employment that the qualified applicant/registrant desires; or

(ii) Modifications or adjustments that enable a qualified

individual with a disability to perform the essential functions of a

job, or to receive aid, benefits, services, or training equal to that

provided to qualified individuals without disabilities. These

modifications or adjustments may be made to:

(A) The environment where work is performed or aid, benefits,

services, or training are given; or

(B) The customary manner in which, or circumstances under which, a

job is performed or aid, benefits, services, or training are given; or

(iii) Modifications or adjustments that enable a qualified

individual with a disability to enjoy the same benefits and privileges

of the aid, benefits, services, training, or employment as are enjoyed

by other similarly situated individuals without disabilities.

(2) Reasonable accommodation includes, but is not limited to:

(i) Making existing facilities used by applicants, registrants,

eligible applicants/registrants, participants, applicants for

employment, and employees readily accessible to and usable by

individuals with disabilities; and

(ii) Restructuring of a job or a service, or of the way in which

aid, benefits, or training is/are provided; part-time or modified work

or training schedules; acquisition or modification of equipment or

devices; appropriate adjustment or modifications of examinations,

training materials, or policies; the provision of readers or

interpreters; and other similar



[[ Page 61721]]



accommodations for individuals with disabilities.

(3) To determine the appropriate reasonable accommodation, it may

be necessary for the recipient to initiate an informal, interactive

process with the qualified individual with a disability in need of the

accommodation. This process should identify the precise limitations

resulting from the disability and potential reasonable accommodations

that could overcome those limitations.

Recipient means any entity to which financial assistance under WIA

Title I is extended, either directly from the Department or through the

Governor or another recipient (including any successor, assignee, or

transferee of a recipient), but excluding the ultimate beneficiaries of

the WIA Title I-funded program or activity. In instances in which a

Governor operates a program or activity, either directly or through a

State agency, using discretionary funds apportioned to him or her under

WIA Title I (rather than disbursing the funds to another recipient),

the Governor is also a recipient. ``Recipient'' includes, but is not

limited to:

(1) State-level agencies that administer, or are financed in whole

or in part with, WIA Title I funds;

(2) State Employment Security Agencies;

(3) State and local Workforce Investment Boards;

(4) LWIA grant recipients;

(5) One-Stop operators;

(6) Service providers, including eligible training providers;

(7) On-the-Job Training (OJT) employers;

(8) Job Corps contractors and center operators, excluding the

operators of federally-operated Job Corps centers;

(9) Job Corps national training contractors;

(10) Outreach and admissions agencies, including Job Corps

contractors that perform these functions;

(11) Placement agencies, including Job Corps contractors that

perform these functions; and

(12) Other National Program recipients.

In addition, for purposes of this part, One-Stop partners, as

defined in section 121(b) of WIA, are treated as ``recipients,'' and

are subject to the nondiscrimination and equal opportunity requirements

of this part, to the extent that they participate in the One-Stop

delivery system.

Registrant means the same as ``applicant'' for purposes of this

part. See also the definitions of ``application for benefits,''

``eligible applicant/registrant,'' ``participant,'' ``participation,''

and ``recipient'' in this section.

Respondent means a grant applicant or recipient (including a

Governor) against which a complaint has been filed under the

nondiscrimination and equal opportunity provisions of WIA or this part.

Secretary means the Secretary of Labor, U.S. Department of Labor,

or his or her designee.

Sectarian activities means religious worship or ceremony, or

sectarian instruction.

Section 504 means Section 504 of the Rehabilitation Act of 1973, 29

U.S.C. 794, as amended, which forbids discrimination against qualified

individuals with disabilities in federally-financed and conducted

programs and activities.

Service provider means:

(1) Any operator of, or provider of aid, benefits, services, or

training to:

(a) Any WIA Title I--funded program or activity that receives

financial assistance from or through any State or LWIA grant recipient;

or

(b) Any participant through that participant's Individual Training

Account (ITA); or

(2) Any entity that is selected and/or certified as an eligible

provider of training services to participants.

Small recipient means a recipient who:

(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.

Solicitor means the Solicitor of Labor, U.S. Department of Labor,

or his or her designee.

State means the individual states of the United States, the

District of Columbia, the Commonwealth of Puerto Rico, the Virgin

Islands, American Samoa, Guam, Wake Island, the Commonwealth of the

Northern Mariana Islands, the Federated States of Micronesia, the

Republic of the Marshall Islands, and Palau.

State Employment Security Agency (SESA) means the State agency

that, under the State Administrator, contains both State agencies with

responsibility for administering programs authorized under the Wagner-

Peyser Act, and unemployment insurance programs authorized under Title

III of the Social Security Act.

State Programs means programs financially assisted in whole or in

part under Title I of WIA in which either:

(1) The Governor and/or State receives and disburses the grant to

or through LWIA grant recipients; or

(2) The Governor retains the grant funds and operates the programs,

either directly or through a State agency.

``State programs'' also includes State Employment Security

Agencies, State Employment Service agencies, and/or State unemployment

compensation agencies.

Supportive services means services, such as transportation, child

care, dependent care, housing, and needs-related payments, that are

necessary to enable an individual to participate in WIA Title I-

financially assisted programs and activities, as consistent with the

provisions of WIA.

Terminee means a participant whose participation in the program

terminates, voluntarily or involuntarily, during the applicable program

year.

Title VI means Title VI of the Civil Rights Act of 1964, 42 U.S.C.

2000d, et seq., as amended, which forbids recipients of Federal

financial assistance from discriminating on the basis of race, color,

or national origin.

Transferee means a person or entity to whom real or personal

property, or an interest in such property, is transferred.

Ultimate beneficiary See the definition of ``beneficiary'' in this

section.

Undue hardship This term has different meanings, depending upon

whether it is used with regard to reasonable accommodation of

individuals with disabilities, or with regard to religious

accommodation.

(1) Reasonable accommodation of individuals with disabilities: (i)

In general, ``undue hardship'' means significant difficulty or expense

incurred by a recipient, when considered in light of the factors set

forth in paragraph (ii).

(ii) Factors to be considered in determining whether an

accommodation would impose an undue hardship on a recipient include:

(A) The nature and net cost of the accommodation needed, taking

into consideration the availability of tax credits and deductions, and/

or outside funding, for the accommodation;

(B) The overall financial resources of the facility or facilities

involved in the provision of the reasonable accommodation, including:

(1) The number of persons aided, benefited, served, or trained by,

or employed at, the facility or facilities, and

(2) The effect the accommodation would have on the expenses and

resources of the facility or facilities;

(C) The overall financial resources of the recipient, including:

(1) The overall size of the recipient,



[[ Page 61722]]



(2) The number of persons aided, benefited, served, trained, or

employed by the recipient, and

(3) The number, type and location of the recipient's facilities;

(D) The type of operation or operations of the recipient,

including:

(1) The geographic separateness and administrative or fiscal

relationship of the facility or facilities in question to the

recipient, and

(2) Where the individual is seeking an employment-related

accommodation, the composition, structure and functions of the

recipient's workforce; and

(E) The impact of the accommodation upon the operation of the

facility or facilities, including:

(1) The impact on the ability of other participants to receive aid,

benefits, services, or training, or of other employees to perform their

duties, and

(2) The impact on the facility's ability to carry out its mission.

(2) Religious accommodation For purposes of religious accommodation

only, ``undue hardship'' means any additional, unusual costs, other

than de minimis costs, that a particular accommodation would impose

upon a recipient. See Trans World Airlines, Inc. v. Hardison, 432 U.S.

63, 81, 84 (1977).

WIA means the Workforce Investment Act of 1998, Pub. L. 105-220.

WIA Title I financial assistance See the definition of ``Federal

financial assistance under Title I of WIA'' in this section.

WIA Title I-funded program or activity means:

(1) A program or activity, operated by a recipient and funded, in

whole or in part, under Title I of WIA, that provides either:

(i) Any aid, benefits, services, or training to individuals; or

(ii) Facilities for furnishing any aid, benefits, services, or

training to individuals;

(2) Aid, benefits, services, or training provided in facilities

that are being or were constructed with the aid of Federal financial

assistance under WIA Title I; or

(3) Aid, benefits, services, or training provided with the aid of

any non-WIA Title I funds, property, or other resources that are

required to be expended or made available in order for the program to

meet matching requirements or other conditions which must be met in

order to receive the WIA Title I financial assistance.

See the definition of ``aid, benefits, services, or training'' in

this section.





Sec. 37.5 What forms of discrimination are prohibited by this part?



No individual in the United States may, on the ground of race,

color, religion, sex, national origin, age, disability, political

affiliation or belief, and for beneficiaries only, citizenship or

participation in any WIA Title I--financially assisted program or

activity, be excluded from participation in, denied the benefits of,

subjected to discrimination under, or denied employment in the

administration of or in connection with any WIA Title I--funded program

or activity.





Sec. 37.6 What specific discriminatory actions, based on prohibited

grounds other than disability, are prohibited by this part?



(a) For the purposes of this section, ``prohibited ground'' means

race, color, religion, sex, national origin, age, political affiliation

or belief, and for beneficiaries only, citizenship or participation in

any WIA Title I--financially assisted program or activity.

(b) A recipient must not, directly or through contractual,

licensing, or other arrangements, on a prohibited ground:

(1) Deny an individual any aid, benefits, services, or training

provided under a WIA Title I--funded program or activity;

(2) Provide to an individual any aid, benefits, services, or

training that is different, or is provided in a different manner, from

that provided to others under a WIA Title I--funded program or

activity;

(3) Subject an individual to segregation or separate treatment in

any matter related to his or her receipt of any aid, benefits,

services, or training under a WIA Title I--funded program or activity;

(4) Restrict an individual in any way in the enjoyment of any

advantage or privilege enjoyed by others receiving any aid, benefits,

services, or training under a WIA Title I--funded program or activity;

(5) Treat an individual differently from others in determining

whether he or she satisfies any admission, enrollment, eligibility,

membership, or other requirement or condition for any aid, benefits,

services, or training provided under a WIA Title I--funded program or

activity;

(6) Deny or limit an individual with respect to any opportunity to

participate in a WIA Title I--funded program or activity, or afford him

or her an opportunity to do so that is different from the opportunity

afforded others under a WIA Title I--funded program or activity;

(7) Deny an individual the opportunity to participate as a member

of a planning or advisory body that is an integral part of the WIA

Title I--funded program or activity; or

(8) Otherwise limit on a prohibited ground an individual in

enjoyment of any right, privilege, advantage, or opportunity enjoyed by

others receiving any WIA Title I--financially assisted aid, benefits,

services, or training.

(c) A recipient must not, directly or through contractual,

licensing, or other arrangements:

(1) Aid or perpetuate discrimination by providing significant

assistance to an agency, organization, or person that discriminates on

a prohibited ground in providing any aid, benefits, services, or

training to registrants, applicants or participants in a WIA Title I--

funded program or activity; or

(2) Refuse to accommodate an individual's religious practices or

beliefs, unless to do so would result in undue hardship, as defined in

section 37.4.

(d) (1) In making any of the determinations listed in paragraph

(d)(2) of this section, either directly or through contractual,

licensing, or other arrangements, a recipient must not use standards,

procedures, criteria, or administrative methods that have any of the

following purposes or effects:

(i) Subjecting individuals to discrimination on a prohibited

ground; or

(ii) Defeating or substantially impairing, on a prohibited ground,

accomplishment of the objectives of either:

(A) The WIA Title I--funded program or activity; or

(B) the nondiscrimination and equal opportunity provisions of WIA

or this part.

(2) The determinations to which this paragraph applies include, but

are not limited to:

(i) The types of aid, benefits, services, training, or facilities

that will be provided under any WIA Title I--funded program or

activity;

(ii) The class of individuals to whom such aid, benefits, services,

training, or facilities will be provided; or

(iii) The situations in which such aid, benefits, services,

training, or facilities will be provided.

(3) Paragraph (d) of this section applies to the administration of

WIA Title I--funded programs or activities providing aid, benefits,

services, training, or facilities in any manner, including, but not

limited to:

(i) Outreach and recruitment;

(ii) Registration;

(iii) Counseling and guidance;

(iv) Testing;

(v) Selection, placement, appointment, and referral;



[[ Page 61723]]



(vi) Training; and

(vii) Promotion and retention.

(4) A recipient must not take any of the prohibited actions listed

in paragraph (d) of this section either directly or through

contractual, licensing, or other arrangements.

(e) In determining the site or location of facilities, a grant

applicant or recipient must not make selections that have any of the

following purposes or effects:

(1) On a prohibited ground:

(i) Excluding individuals from a WIA Title I--financially assisted

program or activity;

(ii) Denying them the benefits of such a program or activity; or

(iii) Subjecting them to discrimination; or

(2) Defeating or substantially impairing the accomplishment of the

objectives of either:

(i) The WIA Title I--financially assisted program or activity; or

(ii) The nondiscrimination and equal opportunity provisions of WIA

or this part.

(f) (1) A recipient must not permit participants to be employed or

trained in sectarian activities.

(2) This paragraph applies to any facility that is, or will be,

primarily used or inherently devoted either:

(A) For sectarian instruction; or

(B) As a place of worship,

(ii) A recipient must not permit participants to be employed or

trained in any way to:

(A) Construct any part of such a facility,

(B) Operate any part of such a facility, or

(C) Maintain any part of that facility.

(3) If a facility is not primarily or inherently devoted to

sectarian instruction or religious worship, a recipient may permit the

use of WIA Title I funds to employ participants to maintain the

facility, if the organization that operates the facility is part of a

program or activity that provides services to participants.

(g) The exclusion of an individual from programs or activities

limited by Federal statute or Executive Order to a certain class or

classes of individuals of which the individual in question is not a

member is not prohibited by this part.





Sec. 37.7 What specific discriminatory actions based on disability are

prohibited by this part?



(a) In providing any aid, benefits, services, or training under a

WIA Title I--financially assisted program or activity, a recipient must

not, directly or through contractual, licensing, or other arrangements,

on the ground of disability:

(1) Deny a qualified individual with a disability the opportunity

to participate in or benefit from the aid, benefits, services, or

training;

(2) Afford a qualified individual with a disability an opportunity

to participate in or benefit from the aid, benefits, services, or

training that is not equal to that afforded others;

(3) Provide a qualified individual with a disability with an aid,

benefit, service or training that is not as effective in affording

equal opportunity to obtain the same result, to gain the same benefit,

or to reach the same level of achievement as that provided to others;

(4) Provide different, segregated, or separate aid, benefits,

services, or training to individuals with disabilities, or to any class

of individuals with disabilities, unless such action is necessary to

provide qualified individuals with disabilities with aid, benefits,

services or training that are as effective as those provided to others;

(5) Deny a qualified individual with a disability the opportunity

to participate as a member of planning or advisory boards; or

(6) Otherwise limit a qualified individual with a disability in

enjoyment of any right, privilege, advantage, or opportunity enjoyed by

others receiving any aid, benefit, service or training.

(b) A recipient must not, directly or through contractual,

licensing, or other arrangements, aid or perpetuate discrimination

against qualified individuals with disabilities by providing

significant assistance to an agency, organization, or person that

discriminates on the basis of disability in providing any aid,

benefits, services or training to registrants, applicants, or

participants.

(c) A recipient must not deny a qualified individual with a

disability the opportunity to participate in WIA Title I--financially

assisted programs or activities despite the existence of permissibly

separate or different programs or activities.

(d) A recipient must administer WIA Title I--financially assisted

programs and activities in the most integrated setting appropriate to

the needs of qualified individuals with disabilities.

(e) A recipient must not, directly or through contractual,

licensing, or other arrangements, use standards, procedures, criteria,

or administrative methods:

(1) That have the purpose or effect of subjecting qualified

individuals with disabilities to discrimination on the ground of

disability;

(2) That have the purpose or effect of defeating or substantially

impairing accomplishment of the objectives of the WIA Title I--

financially assisted program or activity with respect to individuals

with disabilities; or

(3) That perpetuate the discrimination of another entity if both

entities are subject to common administrative control or are agencies

of the same state.

(f) In determining the site or location of facilities, a grant

applicant or recipient must not make selections that have any of the

following purposes or effects:

(1) On the basis of disability:

(i) Excluding qualified individuals from a WIA Title I-financially

assisted program or activity;

(ii) Denying them the benefits of such a program or activity; or

(iii) Subjecting them to discrimination; or

(2) Defeating or substantially impairing the accomplishment of the

disability-related objectives of either:

(i) The WIA Title I-financially assisted program or activity; or

(ii) The nondiscrimination and equal opportunity provisions of WIA

or this part.

(g) A recipient, in the selection of contractors, must not use

criteria that subject qualified individuals with disabilities to

discrimination on the basis of disability.

(h) A recipient must not administer a licensing or certification

program in a manner that subjects qualified individuals with

disabilities to discrimination on the basis of disability, nor may a

recipient establish requirements for the programs or activities of

licensees or certified entities that subject qualified individuals with

disabilities to discrimination on the basis of disability. The programs

or activities of entities that are licensed or certified by a recipient

are not, themselves, covered by this part.

(i) A recipient must not impose or apply eligibility criteria that

screen out or tend to screen out an individual with a disability or any

class of individuals with disabilities from fully and equally enjoying

any aid, benefit, service, training, program, or activity, unless such

criteria can be shown to be necessary for the provision of the aid,

benefit, service, training, program, or activity being offered.

(j) Nothing in this part prohibits a recipient from providing aid,

benefits, services, training, or advantages to individuals with

disabilities, or to a particular class of individuals with

disabilities, beyond those required by this part.

(k) A recipient must not place a surcharge on a particular

individual



[[ Page 61724]]



with a disability, or any group of individuals with disabilities, to

cover the costs of measures, such as the provision of auxiliary aids or

program accessibility, that are required to provide that individual or

group with the nondiscriminatory treatment required by WIA Title I or

this part.

(l) A recipient must not exclude, or otherwise deny equal aid,

benefits, services, training, programs, or activities to, an individual

or entity because of the known disability of an individual with whom

the individual or entity is known to have a relationship or

association.

(m) The exclusion of an individual without a disability from the

benefits of a program limited by Federal statute or Executive Order to

individuals with disabilities, or the exclusion of a specific class of

individuals with disabilities from a program limited by Federal statute

or Executive Order to a different class of individuals with

disabilities, is not prohibited by this part.

(n) This part does not require a recipient to provide any of the

following to individuals with disabilities:

(1) Personal devices, such as wheelchairs;

(2) Individually prescribed devices, such as prescription

eyeglasses or hearing aids;

(3) Readers for personal use or study; or

(4) Services of a personal nature, including assistance in eating,

toileting, or dressing.

(o)(1) Nothing in this part requires an individual with a

disability to accept an accommodation, aid, benefit, service, training,

or opportunity provided under WIA Title I or this part that such

individual chooses not to accept.

(2) Nothing in this part authorizes the representative or guardian

of an individual with a disability to decline food, water, medical

treatment, or medical services for that individual.





Sec. 37.8 What are a recipient's responsibilities regarding reasonable

accommodation and reasonable modification for individuals with

disabilities?



(a) With regard to aid, benefits, services, training, and

employment, a recipient must provide reasonable accommodation to

qualified individuals with disabilities who are applicants,

registrants, eligible applicants/registrants, participants, employees,

or applicants for employment, unless providing the accommodation would

cause undue hardship. See the definitions of ``reasonable

accommodation'' and ``undue hardship'' in Sec. 37.4 of this part.

(1) In those circumstances where a recipient believes that the

proposed accommodation would cause undue hardship, the recipient has

the burden of proving that the accommodation would result in such

hardship.

(2) The recipient must make the decision that the accommodation

would cause such hardship only after considering all factors listed in

the definition of ``undue hardship'' in Sec. 37.4. The decision must be

accompanied by a written statement of the recipient's reasons for

reaching that conclusion. The recipient must provide a copy of the

statement of reasons to the individual or individuals who requested the

accommodation.

(3) If a requested accommodation would result in undue hardship,

the recipient must take any other action that would not result in such

hardship, but would nevertheless ensure that, to the maximum extent

possible, individuals with disabilities receive the aid, benefits,

services, training, or employment provided by the recipient.

(b) A recipient must also make reasonable modifications in

policies, practices, or procedures when the modifications are necessary

to avoid discrimination on the basis of disability, unless making the

modifications would fundamentally alter the nature of the service,

program, or activity. See the definition of ``fundamental alteration''

in Sec. 37.4 of this part.

(1) In those circumstances where a recipient believes that the

proposed modification would fundamentally alter the program, activity,

or service, the recipient has the burden of proving that the

modification would result in such an alteration.

(2) The recipient must make the decision that the modification

would result in such an alteration only after considering all factors

listed in the definition of ``fundamental alteration'' in Sec. 37.4.

The decision must be accompanied by a written statement of the

recipient's reasons for reaching that conclusion. The recipient must

provide a copy of the statement of reasons to the individual or

individuals who requested the modification.

(3) If a modification would result in a fundamental alteration, the

recipient must take any other action that would not result in such an

alteration, but would nevertheless ensure that, to the maximum extent

possible, individuals with disabilities receive the aid, benefits,

services, training, or employment provided by the recipient.





Sec. 37.9 What are a recipient's responsibilities to communicate with

individuals with disabilities?



(a) Recipients must take appropriate steps to ensure that

communications with beneficiaries, registrants, applicants, eligible

applicants/registrants, participants, applicants for employment,

employees, and members of the public who are individuals with

disabilities, are as effective as communications with others.

(b) A recipient must furnish appropriate auxiliary aids or services

where necessary to afford individuals with disabilities an equal

opportunity to participate in, and enjoy the benefits of, the WIA Title

I--financially assisted program or activity. In determining what type

of auxiliary aid or service is appropriate and necessary, such

recipient must give primary consideration to the requests of the

individual with a disability.

(c) Where a recipient communicates by telephone with beneficiaries,

registrants, applicants, eligible applicants/registrants, participants,

applicants for employment, and/or employees, the recipient must use

telecommunications devices for individuals with hearing impairments

(TDDs/TTYs), or equally effective communications systems, such as

telephone relay services.

(d) A recipient must ensure that interested individuals, including

individuals with visual or hearing impairments, can obtain information

as to the existence and location of accessible services, activities,

and facilities.

(e)(1) A recipient must provide signage at a primary entrance to

each of its inaccessible facilities, directing users to a location at

which they can obtain information about accessible facilities. The

signage provided must meet the most current standards prescribed by the

General Services Administration under the Architectural Barriers Act at

41 CFR 101-19.6. Alternative standards for the signage may be adopted

when it is clearly evident that such alternative standards provide

equivalent or greater access to the information.

(2) The international symbol for accessibility must be used at each

primary entrance of an accessible facility.

(f) This section does not require a recipient to take any action

that it can demonstrate would result in a fundamental alteration in the

nature of a service, program, or activity.

(1) In those circumstances where a recipient believes that the

proposed action would fundamentally alter the WIA Title I--financially

assisted



[[ Page 61725]]



program, activity, or service, the recipient has the burden of proving

that compliance with this section would result in such an alteration.

(2) The decision that compliance would result in such an alteration

must be made by the recipient after considering all resources available

for use in the funding and operation of the WIA Title I--financially

assisted program, activity, or service, and must be accompanied by a

written statement of the reasons for reaching that conclusion.

(3) If an action required to comply with this section would result

in the fundamental alteration described in paragraph (f)(1) of this

section, the recipient must take any other action that would not result

in such an alteration, but would nevertheless ensure that, to the

maximum extent possible, individuals with disabilities receive the

benefits or services provided by the recipient.





Sec. 37.10 To what extent are employment practices covered by this

part?



(a) Discrimination on the ground of race, color, religion, sex,

national origin, age, disability, or political affiliation or belief is

prohibited in employment practices in the administration of, or in

connection with:

(1) Any WIA Title I-financially assisted program or activity; and

(2) Any program or activity that is part of the One-Stop delivery

system and is operated by a One-Stop partner listed in Section 121(b)

of WIA, to the extent that the program or activity is being conducted

as part of the One-Stop delivery system.

(b) Employee selection procedures. In implementing this section, a

recipient must comply with the Uniform Guidelines on Employee Selection

Procedures, 41 CFR part 60-3.

(c) Standards for employment-related investigations and reviews. In

any investigation or compliance review, the Director must consider

Equal Employment Opportunity Commission (EEOC) regulations, guidance

and appropriate case law in determining whether a recipient has engaged

in an unlawful employment practice.

(d) As provided in Sec. 37.3(b) of this part, 29 CFR part 32,

subparts B and C and Appendix A, which implement the requirements of

Section 504 pertaining to employment practices and employment-related

training, program accessibility, and reasonable accommodation, have

been incorporated into this part by reference. Therefore, recipients

must comply with the requirements set forth in those regulatory

sections as well as the requirements listed in this part.

(e) Recipients that are also employers, employment agencies, or

other entities covered by Titles I and II of the ADA should be aware of

obligations imposed by those titles. See 29 CFR part 1630 and 28 CFR

part 35.

(f) Similarly, recipients that are also employers covered by the

anti-discrimination provision of the Immigration and Nationality Act

should be aware of the obligations imposed by that provision. See 8

U.S.C. 1324b, as amended.

(g) This rule does not preempt consistent State and local

requirements.





Sec. 37.11 To what extent are intimidation and retaliation prohibited

by this part?



(a) A recipient must not discharge, intimidate, retaliate,

threaten, coerce or discriminate against any individual because the

individual has:

(1) Filed a complaint alleging a violation of Section 188 of WIA or

this part;

(2) Opposed a practice prohibited by the nondiscrimination and

equal opportunity provisions of WIA or this part;

(3) Furnished information to, or assisted or participated in any

manner in, an investigation, review, hearing, or any other activity

related to any of the following:

(i) Administration of the nondiscrimination and equal opportunity

provisions of WIA or this part;

(ii) Exercise of authority under those provisions; or

(iii) Exercise of privilege secured by those provisions; or

(4) Otherwise exercised any rights and privileges under the

nondiscrimination and equal opportunity provisions of WIA or this part.

(b) The sanctions and penalties contained in Section 188(b) of WIA

or this part may be imposed against any recipient that engages in any

such retaliation or intimidation, or fails to take appropriate steps to

prevent such activity.





Sec. 37.12 What Department of Labor office is responsible for

administering this part?



The Civil Rights Center (CRC), in the Office of the Assistant

Secretary for Administration and Management, is responsible for

administering and enforcing the nondiscrimination and equal opportunity

provisions of WIA and this part, and for developing and issuing

policies, standards, guidance, and procedures for effecting compliance.





Sec. 37.13 Who is responsible for providing interpretations of this

part?



The Director will make any rulings under, or interpretations of,

the nondiscrimination and equal opportunity provisions of WIA or this

part.





Sec. 37.14 Under what circumstances may the Secretary delegate the

responsibilities of this part?



(a) The Secretary may from time to time assign to officials of

other departments or agencies of the Government (with the consent of

such department or agency) responsibilities in connection with the

effectuation of the nondiscrimination and equal opportunity provisions

of WIA and this part (other than responsibility for final decisions

under Sec. 37.112), including the achievement of effective coordination

and maximum uniformity within the Department and within the executive

branch of the Government in the application of the nondiscrimination

and equal opportunity provisions of WIA or this part to similar

programs and similar situations.

(b) Any action taken, determination made, or requirement imposed by

an official of another department or agency acting under an assignment

of responsibility under this section has the same effect as if the

action had been taken by the Director.





Sec. 37.15 What are the Director's responsibilities to coordinate with

other civil rights agencies?



(a) Whenever a compliance review or complaint investigation under

this part reveals possible violation of one or more of the laws listed

in paragraph (b) of this section, or of any other Federal civil rights

law, that is not also a violation of the nondiscrimination and equal

opportunity provisions of WIA or this part, the Director must attempt

to notify the appropriate agency and provide it with all relevant

documents and information.

(b) This section applies to the following:

(1) Executive Order 11246, as amended;

(2) Section 503 of the Rehabilitation Act of 1973, as amended (29

U.S.C. 793);

(3) The affirmative action provisions of the Vietnam Era Veterans'

Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212);

(4) The Equal Pay Act of 1963, as amended (29 U.S.C. 206d);

(5) Title VII of the Civil Rights Act of 1964, as amended (42

U.S.C. 2000e et seq.);



[[ Page 61726]]



(6) The Age Discrimination in Employment Act of 1967, as amended

(29 U.S.C. 621);

(7) The Americans with Disabilities Act of 1990, as amended (42

U.S.C. 12101 et seq.);

(8) The anti-discrimination provision of the Immigration and

Nationality Act, as amended (8 U.S.C. 1324b); and

(9) Any other Federal civil rights law.





Sec. 37.16 What is this part's effect on a recipient's obligations

under other laws, and what limitations apply?



(a) Effect of State or local law or other requirements. The

obligation to comply with the nondiscrimination and equal opportunity

provisions of WIA or this part are not excused or reduced by any State

or local law or other requirement that, on a prohibited ground,

prohibits or limits an individual's eligibility to receive aid,

benefits, services, or training; to participate in any WIA Title I--

financially assisted program or activity; to be employed by any

recipient; or to practice any occupation or profession.

(b) Effect of private organization rules. The obligation to comply

with the nondiscrimination and equal opportunity provisions of WIA and

this part is not excused or reduced by any rule or regulation of any

private organization, club, league or association that, on a prohibited

ground, prohibits or limits an individual's eligibility to participate

in any WIA Title I--financially assisted program or activity to which

this part applies.

(c) Effect of possible future exclusion from employment

opportunities. A recipient must not exclude any individual from, or

restrict any individual's participation in, any program or activity

based on the recipient's belief or concern that the individual will

encounter limited future employment opportunities because of his or her

race, color, religion, sex, national origin, age, disability, political

affiliation or belief, or citizenship.



Subpart B--Recordkeeping and Other Affirmative Obligations of

Recipients



Assurances





Sec. 37.20 What is a grant applicant's obligation to provide a written

assurance?



(a) (1) Each application for financial assistance under Title I of

WIA, as defined in Sec. 37.4, must include the following assurance:



As a condition to the award of financial assistance from the

Department of Labor under Title I of WIA, the grant applicant

assures that it will comply fully with the nondiscrimination and

equal opportunity provisions of the following laws:

Section 188 of the Workforce Investment Act of 1998 (WIA), which

prohibits discrimination against all individuals in the United

States on the basis of race, color, religion, sex, national origin,

age, disability, political affiliation or belief, and against

beneficiaries on the basis of either citizenship/status as a

lawfully admitted immigrant authorized to work in the United States

or participation in any WIA Title I--financially assisted program or

activity;

Title VI of the Civil Rights Act of 1964, as amended, which

prohibits discrimination on the bases of race, color and national

origin;

Section 504 of the Rehabilitation Act of 1973, as amended, which

prohibits discrimination against qualified individuals with

disabilities;

The Age Discrimination Act of 1975, as amended, which prohibits

discrimination on the basis of age; and

Title IX of the Education Amendments of 1972, as amended, which

prohibits discrimination on the basis of sex in educational

programs.

The grant applicant also assures that it will comply with 29 CFR

part 37 and all other regulations implementing the laws listed

above. This assurance applies to the grant applicant's operation of

the WIA Title I-financially assisted program or activity, and to all

agreements the grant applicant makes to carry out the WIA Title I-

financially assisted program or activity. The grant applicant

understands that the United States has the right to seek judicial

enforcement of this assurance.



(2) The assurance is considered incorporated by operation of law in

the grant, cooperative agreement, contract or other arrangement whereby

Federal financial assistance under Title I of the WIA is made

available, whether or not it is physically incorporated in such

document and whether or not there is a written agreement between the

Department and the recipient, between the Department and the Governor,

between the Governor and the recipient, or between recipients. The

assurance also may be incorporated by reference in such grants,

cooperative agreements, contracts, or other arrangements.

(b) Continuing State programs. Each Strategic Five-Year State Plan

submitted by a State to carry out a continuing WIA Title I-financially

assisted program or activity must provide a statement that the WIA

Title I-financially assisted program or activity is (or, in the case of

a new WIA Title I-financially assisted program or activity, will be)

conducted in compliance with the nondiscrimination and equal

opportunity provisions of WIA and this part, as a condition to the

approval of the Five-Year Plan and the extension of any WIA Title I

financial assistance under the Plan. The State also must certify that

it has developed and maintains a Methods of Administration under

Sec. 37.54.





Sec. 37.21 How long will the recipient's obligation under the

assurance last, and how broad is the obligation?



(a) Where the WIA Title I financial assistance is intended to

provide, or is in the form of, either personal property, real property,

structures on real property, or interest in any such property or

structures, the assurance will obligate the recipient, or (in the case

of a subsequent transfer) the transferee, for the longer of:

(1) The period during which the property is used either:

(i) For a purpose for which WIA Title I financial assistance is

extended; or

(ii) For another purpose involving the provision of similar

services or benefits; or

(2) The period during which either:

(i) The recipient retains ownership or possession of the property;

or

(ii) The transferee retains ownership or possession of the property

without compensating the Departmental grantmaking agency for the fair

market value of that ownership or possession.

(b) In all other cases, the assurance will obligate the recipient

for the period during which WIA Title I financial assistance is

extended.





Sec. 37.22 How must covenants be used in connection with this part?



(a) Where WIA Title I financial assistance is provided in the form

of a transfer of real property, structures, or improvements on real

property or structures, or interests in real property or structures,

the instrument effecting or recording the transfer must contain a

covenant assuring nondiscrimination and equal opportunity for the

period described in Sec. 37.21.

(b) Where no Federal transfer of real property or interest therein

from the Federal Government is involved, but real property or an

interest therein is acquired or improved under a program of WIA Title I

financial assistance, the recipient must include the covenant described

in paragraph (a) of this section in the instrument effecting or

recording any subsequent transfer of such property.

(c) When the property is obtained from the Federal Government, the

covenant described in paragraph (a) of this section also may include a

condition coupled with a right of reverter to the Department in the

event of a breach of the covenant.



Equal Opportunity Officers





Sec. 37.23 Who must designate an Equal Opportunity Officer?



Every recipient must designate an Equal Opportunity Officer (``EO

Officer''), except small recipients and



[[ Page 61727]]



service providers, as defined in Sec. 37.4. The responsibilities of

small recipients and service providers are described in Secs. 37.27 and

37.28.





Sec. 37.24 Who is eligible to serve as an Equal Opportunity Officer?



A senior-level employee of the recipient should be appointed as the

recipient's Equal Opportunity Officer. Depending upon the size of the

recipient, the size of the recipient's WIA Title I-financially assisted

programs or activities, and the number of applicants, registrants, and

participants served by the recipient, the EO Officer may, or may not,

be assigned other duties. However, he or she must not have other

responsibilities or activities that create a conflict, or the

appearance of a conflict, with the responsibilities of an EO Officer.





Sec. 37.25 What are the responsibilities of an Equal Opportunity

Officer?



An Equal Opportunity Officer is responsible for coordinating a

recipient's obligations under this part. Those responsibilities

include, but are not limited to:

(a) Serving as the recipient's liaison with CRC;

(b) Monitoring and investigating the recipient's activities, and

the activities of the entities that receive WIA Title I funds from the

recipient, to make sure that the recipient and its subrecipients are

not violating their nondiscrimination and equal opportunity obligations

under WIA Title I and this part;

(c) Reviewing the recipient's written policies to make sure that

those policies are nondiscriminatory;

(d) Developing and publishing the recipient's procedures for

processing discrimination complaints under Secs. 37.76 through 37.79,

and making sure that those procedures are followed;

(e) Reporting directly to the appropriate official (including, but

not limited to, the State WIA Director, Governor's WIA Liaison, Job

Corps Center Director, SESA Administrator, or LWIA grant recipient)

about equal opportunity matters;

(f) Undergoing training (at the recipient's expense) to maintain

competency, if the Director requires him or her, and/or his or her

staff, to do so; and

(g) If applicable, overseeing the development and implementation of

the recipient's Methods of Administration under Sec. 37.54.





Sec. 37.26 What are a recipient's obligations relating to the Equal

Opportunity Officer?



A recipient has the following obligations:

(a) Making the Equal Opportunity Officer's name, and his or her

position title, address, and telephone number (voice and TDD/TTY)

public;

(b) Ensuring that the EO Officer's identity and contact information

appears on all internal and external communications about the

recipient's nondiscrimination and equal opportunity programs;

(c) Assigning sufficient staff and resources to the Equal

Opportunity Officer, and providing him or her with the necessary

support of top management, to ensure compliance with the

nondiscrimination and equal opportunity provisions of WIA and this

part; and

(d) Ensuring that the EO Officer and his/her staff are afforded the

opportunity to receive the training necessary and appropriate to

maintain competency.





Sec. 37.27 What are the obligations of small recipients regarding

Equal Opportunity Officers?



Although small recipients do not need to designate Equal

Opportunity Officers who have the full range of responsibilities listed

above, they must designate an individual who will be responsible for

developing and publishing of complaint procedures, and the processing

of complaints, as explained in Secs. 37.76 through 37.79.





Sec. 37.28 What are the obligations of service providers regarding

Equal Opportunity Officers?



Service providers, as defined in Sec. 37.4, are not required to

designate an Equal Opportunity Officer. The obligation for ensuring

service provider compliance with the nondiscrimination and equal

opportunity provisions of WIA and this part rests with the Governor or

LWIA grant recipient, as specified in the State's Methods of

Administration.



Notice and Communication





Sec. 37.29 What are a recipient's obligations to disseminate its equal

opportunity policy?



(a) A recipient must provide initial and continuing notice that it

does not discriminate on any prohibited ground. This notice must be

provided to:

(1) Registrants, applicants, and eligible applicants/registrants;

(2) Participants;

(3) Applicants for employment and employees;

(4) Unions or professional organizations that hold collective

bargaining or professional agreements with the recipient;

(5) Subrecipients that receive WIA Title I funds from the

recipient; and

(6) Members of the public, including those with impaired vision or

hearing.

(b) As provided in Sec. 37.9, the recipient must take appropriate

steps to ensure that communications with individuals with disabilities

are as effective as communications with others.





Sec. 37.30 What specific wording must the notice contain?



The notice must contain the following specific wording:



Equal Opportunity Is the Law



It is against the law for this recipient of Federal financial

assistance to discriminate on the following bases:

Against any individual in the United States, on the basis of

race, color, religion, sex, national origin, age, disability,

political affiliation or belief; and

Against any beneficiary of programs financially assisted under

Title I of the Workforce Investment Act of 1998 (WIA), on the basis

of the beneficiary's citizenship/status as a lawfully admitted

immigrant authorized to work in the United States, or his or her

participation in any WIA Title I-financially assisted program or

activity.

The recipient must not discriminate in any of the following

areas:

Deciding who will be admitted, or have access, to any WIA Title

I-financially assisted program or activity;

Providing opportunities in, or treating any person with regard

to, such a program or activity; or

Making employment decisions in the administration of, or in

connection with, such a program or activity.



What to Do If You Believe You Have Experienced Discrimination



If you think that you have been subjected to discrimination

under a WIA Title I-financially assisted program or

Activity, you may file a complaint within 180 days from the date of

the alleged violation with either:

The recipient's Equal Opportunity Officer (or the person whom

the recipient has designated for this purpose); or

The Director, Civil Rights Center (CRC), U.S. Department of

Labor, 200 Constitution Avenue NW, Room N-4123, Washington, DC

20210.

If you file your complaint with the recipient, you must wait

either until the recipient issues a written Notice of Final Action,

or until 90 days have passed (whichever is sooner), before filing

with the Civil Rights Center (see address above).

If the recipient does not give you a written Notice of Final

Action within 90 days of the day on which you filed your complaint,

you do not have to wait for the recipient to issue that Notice

before filing a complaint with CRC. However, you must file your CRC

complaint within 30 days of the 90-day deadline (in other words,

within 120 days after the day on which you filed your complaint with

the recipient).

If the recipient does give you a written Notice of Final Action

on your complaint,



[[ Page 61728]]



but you are dissatisfied with the decision or resolution, you may

file a complaint with CRC. You must file your CRC complaint within

30 days of the date on which you received the Notice of Final

Action.





Sec. 37.31 Where must the notice required by Secs. 37.29 and 37.30 be

published?



(a) At a minimum, the notice required by Secs. 37.29 and 37.30 must

be:

(1) Posted prominently, in reasonable numbers and places;

(2) Disseminated in internal memoranda and other written or

electronic communications;

(3) Included in handbooks or manuals; and

(4) Made available to each participant, and made part of each

participant's file.

(b) The notice must be provided in appropriate formats to

individuals with visual impairments. Where notice has been given in an

alternate format to a participant with a visual impairment, a record

that such notice has been given must be made a part of the

participant's file.





Sec. 37.32 When must the notice required by Secs. 37.29 and 37.30 be

provided?



The notice required by Secs. 37.29 and 37.30 must be initially

provided within 90 days of the effective date of this part, or of the

date this part first applies to the recipient, whichever comes later.





Sec. 37.33 Who is responsible for meeting the notice requirement with

respect to service providers?



The Governor or the LWIA grant recipient, as determined by the

Governor and as provided in that State's Methods of Administration,

will be responsible for meeting the notice requirement provided in

Sections 37.29 and 37.30 with respect to a State's service providers.





Sec. 37.34 What type of notice must a recipient include in

publications, broadcasts, and other communications?



(a) Recipients must indicate that the WIA Title I-financially

assisted program or activity in question is an ``equal opportunity

employer/program,'' and that ``auxiliary aids and services are

available upon request to individuals with disabilities,'' in

recruitment brochures and other materials that are ordinarily

distributed or communicated in written and/or oral form, electronically

and/or on paper, to staff, clients, or the public at large, to describe

programs financially assisted under Title I of WIA or the requirements

for participation by recipients and participants. Where such materials

indicate that the recipient may be reached by telephone, the materials

must state the telephone number of the TDD/TTY or relay service used by

the recipient, as required by Sec. 37.9(c).

(b) Recipients that publish or broadcast program information in the

news media must ensure that such publications and broadcasts state that

the WIA Title I-financially assisted program or activity in question is

an equal opportunity employer/program (or otherwise indicate that

discrimination in the WIA Title I-financially assisted program or

activity is prohibited by Federal law), and indicate that auxiliary

aids and services are available upon request to individuals with

disabilities.

(c) A recipient must not communicate any information that suggests,

by text or illustration, that the recipient treats beneficiaries,

registrants, applicants, participants, employees or applicants for

employment differently on any prohibited ground specified in Sec. 37.5,

except as such treatment is otherwise permitted under Federal law or

this part.





Sec. 37.35 What are a recipient's responsibilities to provide services

and information in languages other than English?



(a) A significant number or proportion of the population eligible

to be served, or likely to be directly affected, by a WIA Title I-

financially assisted program or activity may need services or

information in a language other than English in order to be effectively

informed about, or able to participate in, the program or activity.

Where such a significant number or proportion exists, a recipient must

take the following actions:

(1) Consider:

(i) The scope of the program or activity, and

(ii) The size and concentration of the population that needs

services or information in a language other than English; and

(2) Based on those considerations, take reasonable steps to provide

services and information in appropriate languages. This information

must include the initial and continuing notice required under

Secs. 37.29 and 37.30, and all information that is communicated under

Sec. 37.34.

(b) In circumstances other than those described in paragraph (a) of

this section, a recipient should nonetheless make reasonable efforts to

meet the particularized language needs of limited-English-speaking

individuals who seek services or information from the recipient.





Sec. 37.36 What responsibilities does a recipient have to communicate

information during orientations?



During each presentation to orient new participants, new employees,

and/or the general public to its WIA Title I-financially assisted

program or activity, a recipient must include a discussion of rights

under the nondiscrimination and equal opportunity provisions of WIA and

this part, including the right to file a complaint of discrimination

with the recipient or the Director.



Data and Information Collection and Maintenance





Sec. 37.37 What are a recipient's responsibilities to collect and

maintain data and other information?



(a) The Director will not require submission of data that can be

obtained from existing reporting requirements or sources, including

those of other agencies, if the source is known and available to the

Director.

(b)(1) Each recipient must collect such data and maintain such

records, in accordance with procedures prescribed by the Director, as

the Director finds necessary to determine whether the recipient has

complied or is complying with the nondiscrimination and equal

opportunity provisions of WIA or this part. The system and format in

which the records and data are kept must be designed to allow the

Governor and CRC to conduct statistical or other quantifiable data

analyses to verify the recipient's compliance with section 188 of WIA

and this part.

(2) Such records must include, but are not limited to, records on

applicants, registrants, eligible applicants/registrants, participants,

terminees, employees, and applicants for employment. Each recipient

must record the race/ethnicity, sex, age, and where known, disability

status, of every applicant, registrant, eligible applicant/registrant,

participant, terminee, applicant for employment, and employee. Such

information must be stored in a manner that ensures confidentiality,

and must be used only for the purposes of recordkeeping and reporting;

determining eligibility, where appropriate, for WIA Title I-financially

assisted programs or activities; determining the extent to which the

recipient is operating its WIA Title I-financially assisted program or

activity in a nondiscriminatory manner; or other use authorized by law.

(c) Each recipient must maintain, and submit to CRC upon request, a

log of complaints filed with it that allege discrimination on the

ground(s) of race, color, religion, sex, national origin, age,

disability, political affiliation or belief,



[[ Page 61729]]



citizenship, and/or participation in a WIA Title I-financially assisted

program or activity. The log must include: the name and address of the

complainant; the ground of the complaint; a description of the

complaint; the date the complaint was filed; the disposition and date

of disposition of the complaint; and other pertinent information.

Information that could lead to identification of a particular

individual as having filed a complaint must be kept confidential.

(d) Where designation of individuals by race or ethnicity is

required, the guidelines of the Office of Management and Budget must be

used.

(e) A service provider's responsibility for collecting and

maintaining the information required under this section may be assumed

by the Governor or LWIA grant recipient, as provided in the State's

Methods of Administration.





Sec. 37.38 What information must grant applicants and recipients

provide to CRC?



In addition to the information which must be collected, maintained,

and, upon request, submitted to CRC under Sec. 37.37:

(a) Each grant applicant and recipient must promptly notify the

Director when any administrative enforcement actions or lawsuits are

filed against it alleging discrimination on the ground of race, color,

religion, sex, national origin, age, disability, political affiliation

or belief, and for beneficiaries only, citizenship or participation in

a WIA Title I-financially assisted program or activity. This

notification must include:

(1) The names of the parties to the action or lawsuit;

(2) The forum in which each case was filed; and

(3) The relevant case numbers.

(b) Each grant applicant (as part of its application) and recipient

(as part of a compliance review conducted under Section 37.63, or

monitoring activity carried out under Sec. 37.65) must provide the

following information:

(1) The name of any other Federal agency that conducted a civil

rights compliance review or complaint investigation, and that found the

grant applicant or recipient to be in noncompliance, during the two

years before the grant application was filed or CRC began its

examination; and

(2) Information about any administrative enforcement actions or

lawsuits that alleged discrimination on any protected basis, and that

were filed against the grant applicant or recipient during the two

years before the application or renewal application, compliance review,

or monitoring activity. This information must include:

(i) The names of the parties;

(ii) The forum in which each case was filed; and

(iii) The relevant case numbers.

(c) At the discretion of the Director, grant applicants and

recipients may be required to provide, in a timely manner, any

information and data necessary to investigate complaints and conduct

compliance reviews on grounds prohibited under the nondiscrimination

and equal opportunity provisions of WIA and this part.

(d) At the discretion of the Director, recipients may be required

to provide, in a timely manner, the particularized information and/or

to submit the periodic reports that the Director considers necessary to

determine compliance with the nondiscrimination and equal opportunity

provisions of WIA or this part.

(e) At the discretion of the Director, grant applicants may be

required to submit, in a timely manner, the particularized information

necessary to determine whether or not the grant applicant, if

financially assisted, would be able to comply with the

nondiscrimination and equal opportunity provisions of WIA or this part.

(f) Where designation of individuals by race or ethnicity is

required, the guidelines of the Office of Management and Budget must be

used.





Sec. 37.39 How long must grant applicants and recipients maintain the

records required under this part?



(a) Each recipient must maintain the following records for a period

of not less than three years from the close of the applicable program

year:

(1) The records of applicants, registrants, eligible applicants/

registrants, participants, terminees, employees, and applicants for

employment; and

(2) Such other records as are required under this part or by the

Director.

(b) Records regarding complaints and actions taken on the

complaints must be maintained for a period of not less than three years

from the date of resolution of the complaint.





Sec. 37.40 What access to sources of information must grant applicants

and recipients provide the Director?



(a) Each grant applicant and recipient must permit access by the

Director during normal business hours to its premises and to its

employees and participants, to the extent that such individuals are on

the premises during the course of the investigation, for the purpose of

conducting complaint investigations, compliance reviews, monitoring

activities associated with a State's development and implementation of

a Methods of Administration, and inspecting and copying such books,

records, accounts and other materials as may be pertinent to ascertain

compliance with and ensure enforcement of the nondiscrimination and

equal opportunity provisions of WIA or this part.

(b) Asserted considerations of privacy or confidentiality are not a

basis for withholding information from CRC and will not bar CRC from

evaluating or seeking to enforce compliance with the nondiscrimination

and equal opportunity provisions of WIA and this part.

(c) Whenever any information that the Director asks a grant

applicant or recipient to provide is in the exclusive possession of

another agency, institution, or person, and that agency, institution,

or person fails or refuses to furnish the information upon request, the

grant applicant or recipient must certify to CRC that it has made

efforts to obtain the information and that the agency, institution, or

person has failed or refused to provide it. This certification must

list the name and address of the agency, institution, or person that

has possession of the information and the specific efforts the grant

applicant or recipient made to obtain it.





Sec. 37.41 What responsibilities do grant applicants, recipients, and

the Department have to maintain the confidentiality of the information

collected?



The identity of any individual who furnishes information relating

to, or assisting in, an investigation or a compliance review, including

the identity of any individual who files a complaint, must be kept

confidential to the extent possible, consistent with a fair

determination of the issues. An individual whose identity it is

necessary to disclose must be protected from retaliation (see

Sec. 37.11).





Sec. 37.42 What are a recipient's responsibilities under this part to

provide universal access to WIA Title I-financially assisted programs

and activities?



Recipients must take appropriate steps to ensure that they are

providing universal access to their WIA Title I-financially assisted

programs and activities. These steps should involve reasonable efforts

to include members of both sexes, various racial and ethnic groups,

individuals with disabilities, and individuals in differing age groups.

Such efforts may include, but are not limited to:

(a) Advertising the recipient's programs and/or activities in

media,



[[ Page 61730]]



such as newspapers or radio programs, that specifically target various

populations;

(b) Sending notices about openings in the recipient's programs and/

or activities to schools or community service groups that serve various

populations; and

(c) Consulting with appropriate community service groups about ways

in which the recipient may improve its outreach and service to various

populations.



Subpart C--Governor's Responsibilities to Implement the

Nondiscrimination and Equal Opportunity Requirements of WIA





Sec. 37.50 To whom does this subpart apply?



This subpart applies to State Programs as defined in Sec. 37.4.

However, the provisions of Sec. 37.52(b) do not apply to State

Employment Security Agencies (SESAs), because the Governor's liability

for any noncompliance on the part of a SESA cannot be waived.





Sec. 37.51 What are a Governor's oversight responsibilities?



The Governor is responsible for oversight of all WIA Title I-

financially assisted State programs. This responsibility includes

ensuring compliance with the nondiscrimination and equal opportunity

provisions of WIA and this part, and negotiating, where appropriate,

with a recipient to secure voluntary compliance when noncompliance is

found under Sec. 37.95(b).





Sec. 37.52 To what extent may a Governor be liable for the actions of

a recipient he or she has financially assisted under WIA Title I?



(a) The Governor and the recipient are jointly and severally liable

for all violations of the nondiscrimination and equal opportunity

provisions of WIA and this part by the recipient, unless the Governor

has:

(1) Established and adhered to a Methods of Administration, under

Section 37.54, designed to give reasonable guarantee of the recipient's

compliance with such provisions;

(2) Entered into a written contract with the recipient that clearly

establishes the recipient's obligations regarding nondiscrimination and

equal opportunity;

(3) Acted with due diligence to monitor the recipient's compliance

with these provisions; and

(4) Taken prompt and appropriate corrective action to effect

compliance.

(b) If the Director determines that the Governor has demonstrated

substantial compliance with the requirements of paragraph (a) of this

section, he or she may recommend to the Secretary that the imposition

of sanctions against the Governor be waived and that sanctions be

imposed only against the noncomplying recipient.





Sec. 37.53 What are a Governor's oversight responsibilities regarding

recipients' recordkeeping?



The Governor must ensure that recipients collect and maintain

records in a manner consistent with the provisions of Sec. 37.37 and

any procedures prescribed by the Director under Sec. 37.37(b). The

Governor must further ensure that recipients are able to provide data

and reports in the manner prescribed by the Director.





Sec. 37.54 What are a Governor's obligations to develop and maintain a

Methods of Administration?



(a) (1) Each Governor must establish and adhere to a Methods of

Administration for State programs as defined in Sec. 37.4. In those

States in which one agency contains both SESA or unemployment insurance

and WIA Title I-financially assisted programs, the Governor should

develop a combined Methods of Administration.

(2) Each Methods of Administration must be designed to give a

reasonable guarantee that all recipients will comply, and are

complying, with the nondiscrimination and equal opportunity provisions

of WIA and this part.

(b) The Methods of Administration must be:

(1) In writing, addressing each requirement of Sec. 37.54(d) with

narrative and documentation;

(2) Reviewed and updated as required in Sec. 37.55; and

(3) Signed by the Governor.

(c) [Reserved]

(d) At a minimum, each Methods of Administration must:

(1) Describe how the State programs and recipients have satisfied

the requirements of the following regulations:

(i) Sections 37.20 through 37.22 (assurances);

(ii) Sections 37.23 through 37.28 (Equal Opportunity Officers);

(iii) Sections 37.29 through 37.36 (Notice and Communication);

(iv) Sections 37.37 through 37.41 (Data and Information Collection

and Maintenance);

(v) Section 37.42 (Universal Access);

(vi) Section 37.53 (Governor's Oversight Responsibilities Regarding

Recipients' Recordkeeping); and

(vii) Sections 37.76 through 37.79 (Complaint Processing

Procedures); and

(2) Include the following additional elements:

(i) A system for determining whether a grant applicant, if

financially assisted, and/or a training provider, if selected as

eligible under section 122 of the Act, is likely to conduct its WIA

Title I--financially assisted programs or activities in a

nondiscriminatory way, and to comply with the regulations in this part;

(ii) A system for periodically monitoring the compliance of

recipients with WIA section 188 and this part, including a

determination as to whether each recipient is conducting its WIA Title

I--financially assisted program or activity in a nondiscriminatory way.

At a minimum, each periodic monitoring review required by this

paragraph must include:

(A) A statistical or other quantifiable analysis of records and

data kept by the recipient under Sec. 37.37, including analyses by

race/ethnicity, sex, age, and disability status;

(B) An investigation of any significant differences identified in

paragraph (A) of this section in participation in the programs,

activities, or employment provided by the recipient, to determine

whether these differences appear to be caused by discrimination. This

investigation must be conducted through review of the recipient's

records and any other appropriate means; and

(C) An assessment to determine whether the recipient has fulfilled

its administrative obligations under section 188 or this part (for

example, recordkeeping, notice and communication) and any duties

assigned to it under the MOA;

(iii) A review of recipient policy issuances to ensure they are

nondiscriminatory;

(iv) A system for reviewing recipients' job training plans,

contracts, assurances, and other similar agreements to ensure that they

are both nondiscriminatory and contain the required language regarding

nondiscrimination and equal opportunity;

(v) Procedures for ensuring that recipients comply with the

requirements of Section 504 and this part with regard to individuals

with disabilities;

(vi) A system of policy communication and training to ensure that

EO Officers and members of the recipients' staffs who have been

assigned responsibilities under the nondiscrimination and equal

opportunity provisions of WIA or this part are aware of and can

effectively carry out these responsibilities;

(vii) Procedures for obtaining prompt corrective action or, as

necessary, applying sanctions when noncompliance is found; and



[[ Page 61731]]



(viii) Supporting documentation to show that the commitments made

in the Methods of Administration have been and/or are being carried

out. This supporting documentation includes, but is not limited to:

(A) policy and procedural issuances concerning required elements of

the Methods of Administration;

(B) copies of monitoring instruments and instructions;

(C) evidence of the extent to which nondiscrimination and equal

opportunity policies have been developed and communicated as required

by this part;

(D) information reflecting the extent to which Equal Opportunity

training, including training called for by Secs. 37.25(f) and 37.26(c),

is planned and/or has been carried out;

(E) reports of monitoring reviews and reports of follow-up actions

taken under those reviews where violations have been found, including,

where appropriate, sanctions; and

(F) copies of any notices made under Secs. 37.29 through 37.36.





Sec. 37.55 When must the Governor carry out his or her obligations

with regard to the Methods of Administration?



(a) 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 a State's Five-Year Plan, whichever is later, a Governor

must:

(1) Develop and implement a Methods of Administration consistent

with the requirements of this part, and

(2) Submit a copy of the Methods of Administration to the Director.

(b) The Governor must promptly update the Methods of Administration

whenever necessary, and must notify the Director in writing at the time

that any such updates are made.

(c) Every two years from the date on which the initial MOA is

submitted to the Director under Sec. 37.55(a)(2), the Governor must

review the Methods of Administration and the manner in which it has

been implemented, and determine whether any changes are necessary in

order for the State to comply fully and effectively with the

nondiscrimination and equal opportunity provisions of WIA and this

part.

(1) If any such changes are necessary, the Governor must make the

appropriate changes and submit them, in writing, to the Director.

(2) If the Governor determines that no such changes are necessary,

s/he must certify, in writing, to the Director that the Methods of

Administration previously submitted continues in effect.



Subpart D--Compliance Procedures





Sec. 37.60 How does the Director evaluate compliance with the

nondiscrimination and equal opportunity provisions of WIA and this

part?



From time to time, the Director may conduct pre-approval compliance

reviews of grant applicants for, and post-approval compliance reviews

of recipients of, WIA Title I financial assistance, to determine

compliance with the nondiscrimination and equal opportunity provisions

of WIA and this part. Reviews may focus on one or more specific

programs or activities, or one or more issues within a program or

activity. The Director may also investigate and resolve complaints

alleging violations of the nondiscrimination and equal opportunity

provisions of WIA and this part.





Sec. 37.61 Is there authority to issue subpoenas?



Yes, section 183(c) of WIA authorizes the issuance of subpoenas. A

subpoena may direct the individual named on the subpoena to take the

following actions:

(a) To appear:

(1) Before a designated CRC representative,

(2) At a designated time and place;

(b) To give testimony; and/or

(c) To produce documentary evidence.



The subpoena may require the appearance of witnesses, and the

production of documents, from any place in the United States, at any

designated time and place.



Compliance Reviews





Sec. 37.62 What are the authority and procedures for conducting pre-

approval compliance reviews?



(a) As appropriate and necessary to ensure compliance with the

nondiscrimination and equal opportunity provisions of WIA or this part,

the Director may review any application, or class of applications, for

Federal financial assistance under Title I of WIA, before and as a

condition of their approval. The basis for such review may be the

assurance specified in Sec. 37.20, information and reports submitted by

the grant applicant under this part or guidance published by the

Director, and any relevant records on file with the Department.

(b) Where the Director determines that the grant applicant for

Federal financial assistance under WIA Title I, if financially

assisted, might not comply with the nondiscrimination and equal

opportunity requirements of WIA or this part, the Director must:

(1) Notify, in a timely manner, the Departmental grantmaking agency

and the Assistant Attorney General of the findings of the pre-approval

compliance review; and

(2) Issue a Letter of Findings. The Letter of Findings must advise

the grant applicant, in writing, of:

(i) The preliminary findings of the review;

(ii) The proposed remedial or corrective action under Section 37.94

and the time within which the remedial or corrective action should be

completed;

(iii) Whether it will be necessary for the grant applicant to enter

into a written Conciliation Agreement as described in Secs. 37.95 and

37.97; and

(iv) The opportunity to engage in voluntary compliance

negotiations.

(c) If a grant applicant has agreed to certain remedial or

corrective actions in order to receive WIA Title I-funded Federal

financial assistance, the Department must ensure that the remedial or

corrective actions have been taken, or that a Conciliation Agreement

has been entered into, before approving the award of further assistance

under WIA Title I. If a grant applicant refuses or fails to take

remedial or corrective actions or to enter into a Conciliation

Agreement, as applicable, the Director must follow the procedures

outlined in Secs. 37.98 through 37.100.





Sec. 37.63 What are the authority and procedures for conducting post-

approval compliance reviews?



(a) The Director may initiate a post-approval compliance review of

any recipient to determine compliance with the nondiscrimination and

equal opportunity provisions of WIA and this part. The initiation of a

post-approval review may be based on, but need not be limited to, the

results of routine program monitoring by other Departmental or Federal

agencies, or the nature or frequency of complaints.

(b) A post-approval review must be initiated by a Notification

Letter, advising the recipient of:

(1) The practices to be reviewed;

(2) The programs to be reviewed;

(3) The information, records, and/or data to be submitted by the

recipient within 30 days of the receipt of the Notification Letter,

unless this time frame is modified by the Director; and

(4) The opportunity, at any time before receipt of the Final

Determination described in Secs. 37.99 and 37.100, to make a

documentary or other submission that explains, validates or otherwise

addresses the practices under review.



[[ Page 61732]]



(c) The Director may conduct post-approval reviews using such

techniques as desk audits and on-site reviews.





Sec. 37.64 What procedures must the Director follow when CRC has

completed a post-approval compliance review?



(a) Where, as the result of a post-approval review, the Director

has made a finding of noncompliance, he or she must issue a Letter of

Findings. This Letter must advise the recipient, in writing, of:

(1) The preliminary findings of the review;

(2) Where appropriate, the proposed remedial or corrective action

to be taken, and the time by which such action should be completed, as

provided in Sec. 37.94;

(3) Whether it will be necessary for the recipient to enter into a

written assurance and/or Conciliation Agreement, as provided in

Secs. 37.96 and 37.97; and

(4) The opportunity to engage in voluntary compliance negotiations.

(b) Where no violation is found, the recipient must be so informed

in writing.





Sec. 37.65 What is the Director's authority to monitor the activities

of a Governor?



(a) The Director may periodically review the adequacy of the

Methods of Administration established by a Governor, as well as the

adequacy of the Governor's performance under the Methods of

Administration, to determine compliance with the requirements of

Secs. 37.50 through 37.55. The Director may review the Methods of

Administration during a compliance review under Secs. 37.62 and 37.63,

or at another time.

(b) Nothing in this subpart limits or precludes the Director from

monitoring directly any WIA Title I recipient or from investigating any

matter necessary to determine a recipient's compliance with the

nondiscrimination and equal opportunity provisions of WIA or this part.





Sec. 37.66 What happens if a recipient fails to submit requested data,

records, and/or information, or fails to provide CRC with the required

access?



The Director may issue a Notice to Show Cause to a recipient

failing to comply with the requirements of this part, where such

failure results in the inability of the Director to make a finding.

Such a failure includes, but is not limited to, the recipient's failure

or refusal to:

(a) Submit requested information, records, and/or data within 30

days of receiving a Notification Letter;

(b) Submit, in a timely manner, information, records, and/or data

requested during a compliance review, complaint investigation, or other

action to determine a recipient's compliance with the nondiscrimination

and equal opportunity provisions of WIA or this part; or

(c) Provide CRC access in a timely manner to a recipient's

premises, records, or employees during a compliance review, as required

in Sec. 37.40.





Sec. 37.67 What information must a Notice to Show Cause contain?



(a) A Notice to Show Cause must contain:

(1) A description of the violation and a citation to the pertinent

nondiscrimination or equal opportunity provision(s) of WIA and this

part;

(2) The corrective action necessary to achieve compliance or, as

may be appropriate, the concepts and principles of acceptable

corrective or remedial action and the results anticipated; and

(3) A request for a written response to the findings, including

commitments to corrective action or the presentation of opposing facts

and evidence.

(b) A Notice to Show Cause must give the recipient 30 days to show

cause why enforcement proceedings under the nondiscrimination and equal

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





Sec. 37.68 How may a recipient show cause why enforcement proceedings

should not be instituted?



A recipient may show cause why enforcement proceedings should not

be instituted by, among other means:

(a) Correcting the violation(s) that brought about the Notice to

Show Cause and entering into a written assurance and/or entering into a

Conciliation Agreement, as appropriate, under Secs. 37.95 through

37.97;

(b) Demonstrating that CRC does not have jurisdiction; or

(c) Demonstrating that the violation alleged by CRC did not occur.





Sec. 37.69 What happens if a recipient fails to show cause?



If the recipient fails to show cause why enforcement proceedings

should not be initiated, the Director must follow the enforcement

procedures outlined in Secs. 37.99 and 37.100.



Complaint Processing Procedures





Sec. 37.70 Who may file a complaint concerning discrimination

connected with WIA Title I?



Any person who believes that either he or she, or any specific

class of individuals, has been or is being subjected to discrimination

prohibited by WIA or this part, may file a written complaint, either by

him/herself or through a representative.





Sec. 37.71 Where may a complaint be filed?



A complainant may file a complaint with either the recipient or the

Director. Complaints filed with the Director should be sent to the

address listed in the notice in Sec. 37.30.





Sec. 37.72 When must a complaint be filed?



Generally, a complaint must be filed within 180 days of the alleged

discrimination. However, for good cause shown, the Director may extend

the filing time. The time period for filing is for the administrative

convenience of CRC, and does not create a defense for the respondent.





Sec. 37.73 What information must a complaint contain?



Each complaint must be filed in writing, and must contain the

following information:

(a) The complainant's name and address (or another means of

contacting the complainant);

(b) The identity of the respondent (the individual or entity that

the complainant alleges is responsible for the discrimination);

(c) A description of the complainant's allegations. This

description must include enough detail to allow the Director or the

recipient, as applicable, to decide whether:

(i) CRC or the recipient, as applicable, has jurisdiction over the

complaint;

(ii) The complaint was filed in time; and

(iii) 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 WIA or this part;

and

(d) The complainant's signature or the signature of the

complainant's authorized representative.





Sec. 37.74 Are there any forms that a complainant may use to file a

complaint?



Yes. A complainant may file a complaint by completing and

submitting CRC's Complaint Information and Privacy Act Consent Forms,

which may be obtained either from the recipient's EO Officer, or from

CRC at the address listed in the notice contained in Sec. 37.30.





Sec. 37.75 Is there a right of representation in the complaint

process?



Yes. Both the complainant and the respondent have the right to be

represented by an attorney or other individual of their choice.



[[ Page 61733]]



Sec. 37.76 What are the required elements of a recipient's

discrimination complaint processing procedures?



(a) The procedures that a recipient adopts and publishes must

provide that the recipient will issue a written Notice of Final Action

on discrimination complaints within 90 days of the date on which the

complaint is filed.

(b) At a minimum, the procedures must include the following

elements:

(1) Initial, written notice to the complainant that contains the

following information:

(i) An acknowledgment that the recipient has received the

complaint, and

(ii) Notice that the complainant has the right to be represented in

the complaint process;

(2) A written statement of the issue(s), provided to the

complainant, that includes the following information:

(i) A list of the issues raised in the complaint, and

(ii) For each such issue, a statement whether the recipient will

accept the issue for investigation or reject the issue, and the reasons

for each rejection;

(3) A period for fact-finding or investigation of the circumstances

underlying the complaint;

(4) A period during which the recipient attempts to resolve the

complaint. The methods available to resolve the complaint must include

alternative dispute resolution (ADR), as described in paragraph (c) of

this section

(5) A written Notice of Final Action, provided to the complainant

within 90 days of the date on which the complaint was filed, that

contains the following information:

(i) For each issue raised in the complaint, a statement of either:

(A) The recipient's decision on the issue and an explanation of the

reasons underlying the decision, or

(B) A description of the way the parties resolved the issue; and

(ii) Notice that the complainant has a right to file a complaint

with CRC within 30 days of the date on which the Notice of Final Action

is issued if he or she is dissatisfied with the recipient's final

action on the complaint.

(c) The procedures the recipient adopts must provide for

alternative dispute resolution (ADR). The recipient's ADR procedures

must provide that:

(1) The choice whether to use ADR or the customary process rests

with the complainant;

(2) A party to any agreement reached under ADR may file a complaint

with the Director in the event the agreement is breached. In such

circumstances, the following rules will apply:

(i) The non-breaching party may file a complaint with the Director

within 30 days of the date on which the non-breaching party learns of

the alleged breach;

(ii) The Director must evaluate the circumstances to determine

whether the agreement has been breached. If he or she determines that

the agreement has been breached, the complainant may file a complaint

with CRC based upon his/her original allegation(s), and the Director

will waive the time deadline for filing such a complaint.

(3) If the parties do not reach an agreement under ADR, the

complainant may file a complaint with the Director as described in

Secs. 37.71 through 37.74.





Sec. 37.77 Who is responsible for developing and publishing complaint

processing procedures for service providers?



The Governor or the LWIA grant recipient, as provided in the

State's Methods of Administration, must develop and publish, on behalf

of its service providers, the complaint processing procedures required

in Sec. 37.76. The service providers must then follow those procedures.





Sec. 37.78 Does a recipient have any special obligations in cases in

which the recipient determines that it has no jurisdiction over a

complaint?



Yes. If a recipient determines that it does not have jurisdiction

over a complaint, it must notify the complainant, in writing,

immediately. This Notice of Lack of Jurisdiction must include:

(a) A statement of the reasons for that determination, and

(b) Notice that the complainant has a right to file a complaint

with CRC within 30 days of the date on which the complainant receives

the Notice.





Sec. 37.79 If, before the 90-day period has expired, a recipient

issues a Notice of Final Action with which the complainant is

dissatisfied, how long does the complainant have to file a complaint

with the Director?



If, during the 90-day period, the recipient issues its Notice of

Final Action, but the complainant is dissatisfied with the recipient's

decision on the complaint, the complainant or his/her representative

may file a complaint with the Director within 30 days after the date on

which the complainant receives the Notice.





Sec. 37.80 What happens if a recipient fails to issue a Notice of

Final Action within 90 days of the date on which a complaint was filed?



If, by the end of 90 days from the date on which the complainant

filed the complaint, the recipient has failed to issue a Notice of

Final Action, the complainant or his/her representative may file a

complaint with the Director within 30 days of the expiration of the 90-

day period. In other words, the complaint must be filed with the

Director within 120 days of the date on which the complaint was filed

with the recipient.





Sec. 37.81 Are there any circumstances under which the Director may

extend the time limit for filing a complaint with him or her?



Yes. The Director may extend the 30-day time limit:

(a) If the recipient does not include in its Notice of Final Action

the required notice about the complainant's right to file with the

Director, as described in Sec. 37.76(b)(5)(ii); or

(b) For other good cause shown.

The complainant has the burden of proving to the Director that the

time limit should be extended.





Sec. 37.82 Does the Director accept every complaint for resolution?



No. The Director must determine whether CRC will accept a

particular complaint for resolution. For example, a complaint need not

be accepted if:

(a) It has not been timely filed;

(b) CRC has no jurisdiction over the complaint; or

(c) CRC has previously decided the matter.





Sec. 37.83 What happens if a complaint does not contain enough

information?



(a) If a complaint does not contain enough information, the

Director must try to get the needed information from the complainant.

(b) The Director may close the complainant's file, without

prejudice, if:

(1) The Director makes reasonable efforts to try to find the

complainant, but is unable to reach him or her; or

(2) The complainant does not provide the needed information to CRC

within the time specified in the request for more information.

(c) If the Director closes the complainant's file, he or she must

send written notice to the complainant's last known address.





Sec. 37.84 What happens if CRC does not have jurisdiction over a

complaint?



If CRC does not have jurisdiction over a complaint, the Director

must:

(a) Notify the complainant and explain why the complaint falls

outside the coverage of the nondiscrimination and equal opportunity

provisions of WIA or this part; and

(b) Where possible, transfer the complaint to an appropriate

Federal, State or local authority.



[[ Page 61734]]



Sec. 37.85 Are there any other circumstances in which the Director

will send a complaint to another authority?



Yes. The Director refers complaints to other agencies in the

following circumstances:

(a) Where the complaint alleges discrimination based on age, and

the complaint falls within the jurisdiction of the Age Discrimination

Act of 1975, as amended, then the Director must refer the complaint, in

accordance with the provisions of 45 CFR 90.43(c)(3).

(b) Where the only allegation in the complaint is a charge of

individual employment discrimination that is covered both by WIA or

this part and by one or more of the laws listed below, then the

complaint is a ``joint complaint,'' and the Director may refer it to

the EEOC for investigation and conciliation under the procedures

described in 29 CFR part 1640 or 1691, as appropriate. The relevant

laws are:

(1) Title VII of the Civil Rights Act of 1964, as amended (42

U.S.C. 2000e to 2000e-17);

(2) The Equal Pay Act of 1963, as amended (29 U.S.C. 206(d));

(3) The Age Discrimination in Employment Act of 1976, as amended

(29 U.S.C. 621, et seq.); and

(4) Title I of the Americans with Disabilities Act of 1990, as

amended (42 U.S.C. 12101 et seq.).

(c) Where the complaint alleges discrimination by an entity that

operates a program or activity financially assisted by a Federal

grantmaking agency other than the Department, but that participates as

a partner in a One-Stop delivery system, the following procedures

apply:

(1) Where the complaint alleges discrimination on a basis that is

prohibited both by Section 188 of WIA and by a civil rights law

enforced by the Federal grantmaking agency, then CRC and the

grantmaking agency have dual jurisdiction over the complaint, and the

Director will refer the complaint to the grantmaking agency for

processing. In such circumstances, the grantmaking agency's regulations

will govern the processing of the complaint.

(2) Where the complaint alleges discrimination on a basis that is

prohibited by Section 188 of WIA, but not by any civil rights laws

enforced by the Federal grantmaking agency, then CRC has sole

jurisdiction over the complaint, and will retain the complaint and

process it pursuant to this part. Such bases generally include

religion, political affiliation or belief, citizenship, and/or

participation in a WIA Title I-financially assisted program or

activity.

(d) Where the Director makes a referral under this section, he or

she must notify the complainant and the respondent about the referral.





Sec. 37.86 What must the Director do if he or she determines that a

complaint will not be accepted?



If a complaint will not be accepted, the Director must notify the

complainant, in writing, about that fact, and provide the complainant

his/her reasons for making that determination.





Sec. 37.87 What must the Director do if he or she determines that a

complaint will be accepted?



If the Director accepts the complaint for resolution, he or she

must notify the complainant, the respondent, and the grantmaking

agency. The notice must:

(a) State that the complaint will be accepted,

(b) Identify the issues over which CRC has accepted jurisdiction;

and

(c) Explain the reasons why any issues were rejected.





Sec. 37.88 Who may contact CRC about a complaint?



Both the complainant and the respondent, or their authorized

representatives, may contact CRC for information about the complaint.

The Director will determine what information, if any, about the

complaint will be released.





Sec. 37.89 May the Director offer the parties to a complaint the

option of mediation?



Yes. The Director may offer the parties to a complaint the option

of mediating the complaint. In such circumstances, the following rules

apply:

(a) Mediation is voluntary; the parties must consent before the

mediation process will proceed.

(b) The mediation will be conducted under guidance issued by the

Director.

(c) If the parties are unable to reach resolution of the complaint

through mediation, CRC will investigate and process the complaint under

Secs. 37.82 through 37.88 of this part.



Determinations





Sec. 37.90 If a complaint is investigated, what must the Director do

when the investigation is completed?



At the conclusion of the investigation of the complaint, the

Director must take the following actions:

(a) Determine whether there is reasonable cause to believe that the

respondent has violated the nondiscrimination and equal opportunity

provisions of WIA or this part; and

(b) Notify the complainant, the respondent, and the grantmaking

agency, in writing, of that determination.





Sec. 37.91 What notice must the Director issue if he or she finds

reasonable cause to believe that a violation has taken place?



If the Director finds reasonable cause to believe that the

respondent has violated the nondiscrimination and equal opportunity

provisions of WIA or this part, he or she must issue an Initial

Determination. The Initial Determination must include:

(a) The specific findings of the investigation;

(b) The corrective or remedial action that the Department proposes

to the respondent, under Sec. 37.94;

(c) The time by which the respondent must complete the corrective

or remedial action;

(d) Whether it will be necessary for the respondent to enter into a

written agreement under Sec. 37.95 and 37.96; and

(e) The opportunity to engage in voluntary compliance negotiations.





Sec. 37.92 What notice must the Director issue if he or she finds no

reasonable cause to believe that a violation has taken place?



If the Director determines that there is no reasonable cause to

believe that a violation has taken place, he or she must issue a Final

Determination under Sec. 37.100. The Final Determination represents the

Department's final agency action on the complaint.





Sec. 37.93 What happens if the Director finds that a violation has

taken place, and the recipient fails or refuses to take the corrective

action listed in the Initial Determination?



Under such circumstances, the Department must take the actions

described in Sec. 37.99 of this part.





Sec. 37.94 What corrective or remedial actions may be imposed where,

after a compliance review or complaint investigation, the Director

finds a violation of the nondiscrimination and equal opportunity

provisions of WIA or this part?



(a) A Letter of Findings, Notice to Show Cause, or Initial

Determination, issued under Secs. 37.62 or 37.63, 37.66 and 37.67, or

37.91 respectively, must include the specific steps the grant applicant

or recipient, as applicable, must take within a stated period of time

in order to achieve voluntary compliance.

(b) Such steps must include:

(1) Actions to end and/or redress the violation of the

nondiscrimination and equal opportunity provisions of WIA or this part;

(2) Make whole relief where discrimination has been identified,

including, as appropriate, back pay (which must not accrue from a date

more than 2 years before the filing of the complaint or the initiation

of a



[[ Page 61735]]



compliance review) or other monetary relief; hire or reinstatement;

retroactive seniority; promotion; benefits or other services

discriminatorily denied; and

(3) Such other remedial or affirmative relief as the Director deems

necessary, including but not limited to outreach, recruitment and

training designed to ensure equal opportunity.

(c) Monetary relief may not be paid from Federal funds.





Sec. 37.95 What procedures apply if the Director finds that a

recipient has violated the nondiscrimination and equal opportunity

provisions of WIA or this part?



(a) Violations at State level. Where the Director has determined

that a violation of the nondiscrimination and equal opportunity

provisions of WIA or this part has occurred at the State level, he or

she must notify the Governor through the issuance of a Letter of

Findings, Notice to Show Cause or Initial Determination, as

appropriate, under Sec. 37.62 or 37.63, 37.66 and 37.67, or 37.91,

respectively. The Director may secure compliance with the

nondiscrimination and equal opportunity provisions of WIA and this part

through, among other means, the execution of a written assurance and/or

Conciliation Agreement, under paragraph (d) of this section.

(b) Violations below State level. Where the Director has determined

that a violation of the nondiscrimination and equal opportunity

provisions of WIA or this part has occurred below the State level, the

Director must so notify the Governor and the violating recipient(s)

through the issuance of a Letter of Findings, Notice to Show Cause or

Initial Determination, as appropriate, under Secs. 37.62 or 37.63,

37.66 and 37.67, or 37.91, respectively.

(1) Such issuance must:

(i) Direct the Governor to initiate negotiations immediately with

the violating recipient(s) to secure compliance by voluntary means;

(ii) Direct the Governor to complete such negotiations within 30

days of the Governor's receipt of the Notice to Show Cause or within 45

days of the Governor's receipt of the Letter of Findings or Initial

Determination, as applicable. The Director reserves the right to enter

into negotiations with the recipient at any time during the period. For

good cause shown, the Director may approve an extension of time to

secure voluntary compliance. The total time allotted to secure

voluntary compliance must not exceed 60 days.

(iii) Include a determination as to whether compliance must be

achieved by:

(A) Immediate correction of the violation(s) and written assurance

that such violations have been corrected, under Sec. 37.96;

(B) Entering into a written Conciliation Agreement under

Sec. 37.97; or

(C) Both.

(2) If the Governor determines, at any time during the period

described in paragraph (b)(1)(ii) of this section, that a recipient's

compliance cannot be achieved by voluntary means, the Governor must so

notify the Director.

(3) If the Governor is able to secure voluntary compliance under

paragraph (b)(1) of this section, he or she must submit to the Director

for approval, as applicable:

(i) Written assurance that the required action has been taken, as

described in Sec. 37.96;

(ii) A copy of the Conciliation Agreement, as described in

Sec. 37.97; or

(iii) Both.

(4) The Director may disapprove any written assurance or

Conciliation Agreement submitted for approval under paragraph (b)(3) of

this section that fails to satisfy each of the applicable requirements

provided in Secs. 37.96 or 37.97.

(c) Violations in National Programs. Where the Director has

determined that a violation of the nondiscrimination and equal

opportunity provisions of WIA or this part has occurred in a National

Program, he or she must notify the Federal grantmaking agency and the

recipient by issuing a Letter of Findings, Notice to Show Cause, or

Initial Determination, as appropriate, under Secs. 37.62 or 37.63,

37.66 and 37.67, or 37.91, respectively. The Director may secure

compliance with the nondiscrimination and equal opportunity provisions

of WIA and this part through, among other means, the execution of a

written assurance and/or Conciliation Agreement under Secs. 37.96 or

37.97, as applicable.





Sec. 37.96 What are the required elements of a written assurance?



A written assurance must provide documentation that the violations

listed in the Letter of Findings, Notice to Show Cause or Initial

Determination, as applicable, have been corrected.





Sec. 37.97 What are the required elements of a Conciliation Agreement?



A Conciliation Agreement must:

(a) Be in writing;

(b) Address each cited violation;

(c) Specify the corrective or remedial action to be taken within a

stated period of time to come into compliance;

(d) Provide for periodic reporting on the status of the corrective

and remedial action;

(e) Provide that the violation(s) will not recur; and

(f) Provide for enforcement for a breach of the agreement.





Sec. 37.98 When will the Director conclude that compliance cannot be

secured by voluntary means?



The Director will conclude that compliance cannot be secured by

voluntary means under the following circumstances:

(a) The grant applicant or recipient fails or refuses to correct

the violation(s) within the time period established by the Letter of

Findings, Notice to Show Cause or Initial Determination; or

(b) The Director has not approved an extension of time for

agreement on voluntary compliance, under Sec. 37.95(b)(1)(ii), and he

or she either:

(1) Has not been notified, under Sec. 37.95(b)(3), that the grant

applicant or recipient has agreed to voluntary compliance;

(2) Has disapproved a written assurance or Conciliation Agreement,

under Sec. 37.95(b)(4); or

(3) Has received notice from the Governor, under Sec. 37.95(b)(2),

that the grant applicant or recipient will not comply voluntarily.





Sec. 37.99 If the Director concludes that compliance cannot be secured

by voluntary means, what actions must he or she take?



If the Director concludes that compliance cannot be secured by

voluntary means, he or she must either:

(a) Issue a Final Determination;

(b) Refer the matter to the Attorney General with a recommendation

that an appropriate civil action be instituted; or

(c) Take such other action as may be provided by law.





Sec. 37.100 What information must a Final Determination contain?



A Final Determination must contain the following information:

(a) A statement of the efforts made to achieve voluntary

compliance, and a statement that those efforts have been unsuccessful;

(b) A statement of those matters upon which the grant applicant or

recipient and CRC continue to disagree;

(c) A list of any modifications to the findings of fact or

conclusions that were set forth in the Initial Determination, Notice to

Show Cause or Letter of Findings;

(d) A statement of the grant applicant's or recipient's liability,

and, if appropriate, the extent of that liability;

(e) A description of the corrective or remedial actions that the

grant applicant or recipient must take to come into compliance;



[[ Page 61736]]



(f) A notice that if the grant applicant or recipient fails to come

into compliance within 10 days of the date on which it receives the

Final Determination, one or more of the following consequences may

result:

(1) After the grant applicant or recipient is given the opportunity

for a hearing, its WIA Title I funds may be terminated, discontinued,

or withheld in whole or in part, or its application for such funds may

be denied, as appropriate;

(2) The Secretary of Labor may refer the case to the Department of

Justice with a request to file suit against the grant applicant or

recipient; or

(3) the Secretary may take any other action against the grant

applicant or recipient that is provided by law;

(g) A notice of the grant applicant's or recipient's right to

request a hearing under the procedures described in Secs. 37.112

through 37.115; and

(h) A determination of the Governor's liability, if any, under

Sec. 37.52.





Sec. 37.101 Whom must the Director notify of a finding of

noncompliance?



Where a compliance review or complaint investigation results in a

finding of noncompliance, the Director must notify:

(a) The grant applicant or recipient;

(b) The grantmaking agency; and

(c) Tthe Assistant Attorney General.



Breaches of Conciliation Agreements





Sec. 37.102 What happens if a grant applicant or recipient breaches a

Conciliation Agreement?



When it becomes known to the Director that a Conciliation Agreement

has been breached, the Director may issue a Notification of Breach of

Conciliation Agreement.





Sec. 37.103 Whom must the Director notify about a breach of a

Conciliation Agreement?



The Director must send a Notification of Breach of Conciliation

Agreement to the Governor, the grantmaking agency, and/or other

party(ies) to the Conciliation Agreement, as applicable.





Sec. 37.104 What information must a Notification of Breach of

Conciliation Agreement contain?



A Notification of Breach of Conciliation Agreement must:

(a) Specify any efforts made to achieve voluntary compliance, and

indicate that those efforts have been unsuccessful;

(b) Identify the specific provisions of the Conciliation Agreement

violated;

(c) Determine liability for the violation and the extent of the

liability;

(d) Indicate that failure of the violating party to come into

compliance within 10 days of the receipt of the Notification of Breach

of Conciliation Agreement may result, after opportunity for a hearing,

in the termination or denial of the grant, or discontinuation of

assistance, as appropriate, or in referral to the Department of Justice

with a request from the Department to file suit;

(e) Advise the violating party of the right to request a hearing,

and reference the applicable procedures in Section 37.111; and

(f) Include a determination as to the Governor's liability, if any,

in accordance with the provisions of Sec. 37.52.





Sec. 37.105 Whom must the Director notify if enforcement action under

a Notification of Breach of Conciliation Agreement is commenced?



In such circumstances, the Director must notify:

(a) The grantmaking agency; and

(b) The Governor, recipient or grant applicant, as applicable.



Subpart E--Federal Procedures For Effecting Compliance





Sec. 37.110 What enforcement procedures does the Department follow to

effect compliance with the nondiscrimination and equal opportunity

provisions of WIA and this part?



(a) Sanctions; judicial enforcement. If compliance has not been

achieved after issuance of a Final Determination under Secs. 37.99 and

37.100, or a Notification of Breach of Conciliation Agreement under

Secs. 37.102 through 37.105, the Secretary may:

(1) After opportunity for a hearing, suspend, terminate, deny or

discontinue the WIA Title I financial assistance, in whole or in part;

(2) Refer the matter to the Attorney General with a recommendation

that an appropriate civil action be instituted; or

(3) Take such action as may be provided by law.

(b) Deferral of new grants. When proceedings under Sec. 37.111 have

been initiated against a particular recipient, the Department may defer

action on that recipient's applications for new WIA Title I financial

assistance until a Final Decision under Sec. 37.112 has been rendered.

Deferral is not appropriate when WIA Title I financial assistance is

due and payable under a previously approved application.

(1) New WIA Title I financial assistance includes all assistance

for which an application or approval, including renewal or continuation

of existing activities, or authorization of new activities, is required

during the deferral period.

(2) New WIA Title I financial assistance does not include

assistance approved before the beginning of proceedings under

Sec. 37.111, or increases in funding as a result of changed

computations of formula awards.





Sec. 37.111 What hearing procedures does the Department follow?



(a) Notice of opportunity for hearing. As part of a Final

Determination, or a Notification of Breach of a Conciliation Agreement,

the Director must include, and serve on the grant applicant or

recipient (by certified mail, return receipt requested), a notice of

opportunity for hearing.

(b) Complaint; request for hearing; answer. (1) In the case of

noncompliance that cannot be voluntarily resolved, the Final

Determination or Notification of Breach of Conciliation Agreement is

considered the Department's formal complaint.

(2) To request a hearing, the grant applicant or recipient must

file a written answer to the Final Determination or Notification of

Breach of Conciliation Agreement, and a copy of the Final Determination

or Notification of Breach of Conciliation Agreement, with the Office of

the Administrative Law Judges, 800 K Street N.W., Suite 400,

Washington, DC 20001.

(i) The answer must be filed within 30 days of the date of receipt

of the Final Determination or Notification of Breach of Conciliation

Agreement.

(ii) A request for hearing must be set forth in a separate

paragraph of the answer.

(iii) The answer must specifically admit or deny each finding of

fact in the Final Determination or Notification of Breach of

Conciliation Agreement. Where the grant applicant or recipient does not

have knowledge or information sufficient to form a belief, the answer

may so state and the statement will have the effect of a denial.

Findings of fact not denied are considered admitted. The answer must

separately state and identify matters alleged as affirmative defenses,

and must also set forth the matters of fact and law relied on by the

grant applicant or recipient.

(3) The grant applicant or recipient must simultaneously serve a

copy of its filing on the Office of the Solicitor, Civil Rights

Division, Room N-2464, U.S. Department of Labor, 200 Constitution

Avenue N.W., Washington DC 20210.

(4) (i) The failure of a grant applicant or recipient to request a

hearing under this paragraph, or to appear at a hearing for which a

date has been set, waives the right to a hearing; and

(ii) Whenever a hearing is waived, all allegations of fact

contained in the Final Determination or Notification of Breach of

Conciliation Agreement are



[[ Page 61737]]



considered admitted, and the Final Determination or Notification of

Breach of Conciliation Agreement becomes the Final Decision of the

Secretary as of the day following the last date by which the grant

applicant or recipient was required to request a hearing or was to

appear at a hearing. See Sec. 37.112(b)(3).

(c) Time and place of hearing. Hearings will be held at a time and

place ordered by the Administrative Law Judge upon reasonable notice to

all parties and, as appropriate, the complainant. In selecting a place

for the hearing, due regard must be given to the convenience of the

parties, their counsel, and witnesses, if any.

(d) Judicial process; evidence. (1) The Administrative Law Judge

may use judicial process to secure the attendance of witnesses and the

production of documents authorized by Section 9 of the Federal Trade

Commission Act (15 U.S.C. 49).

(2) Evidence. In any hearing or administrative review conducted

under this part, evidentiary matters will be governed by the standards

and principles set forth in the Uniform Rules of Evidence issued by the

Department of Labor's Office of Administrative Law Judges, 29 CFR part

18.





Sec. 37.112 What procedures for initial and final decisions does the

Department follow?



(a) Initial Decision. After the hearing, the Administrative Law

Judge must issue an initial decision and order, containing findings of

fact and conclusions of law. The initial decision and order must be

served on all parties by certified mail, return receipt requested.

(b) Exceptions; Final Decision. (1) Final decision after a hearing.

The initial decision and order becomes the Final Decision and Order of

the Secretary unless exceptions are filed by a party or, in the absence

of exceptions, the Secretary serves notice that he or she will review

the decision.

(i) A party dissatisfied with the initial decision and order may,

within 45 days of receipt, file with the Secretary and serve on the

other parties to the proceedings and on the Administrative Law Judge,

exceptions to the initial decision and order or any part thereof.

(ii) Upon receipt of exceptions, the Administrative Law Judge must

index and forward the record and the initial decision and order to the

Secretary within three days of such receipt.

(iii) A party filing exceptions must specifically identify the

finding or conclusion to which exception is taken. Any exception not

specifically urged is waived.

(iv) Within 45 days of the date of filing such exceptions, a reply,

which must be limited to the scope of the exceptions, may be filed and

served by any other party to the proceeding.

(v) Requests for extensions for the filing of exceptions or replies

must be received by the Secretary no later than 3 days before the

exceptions or replies are due.

(vi) If no exceptions are filed, the Secretary may, within 30 days

of the expiration of the time for filing exceptions, on his or her own

motion serve notice on the parties that the Secretary will review the

decision.

(vii) Final Decision and Order.

(A) Where exceptions have been filed, the initial decision and

order of the Administrative Law Judge becomes the Final Decision and

Order of the Secretary unless the Secretary, within 30 days of the

expiration of the time for filing exceptions and replies, has notified

the parties that the case is accepted for review.

(B) Where exceptions have not been filed, the initial decision and

order of the Administrative Law Judge becomes the Final Decision and

Order of the Secretary unless the Secretary has served notice on the

parties that he or she will review the decision, as provided in

paragraph (b)(1)(vi) of this section.

(viii) Any case reviewed by the Secretary under this paragraph must

be decided within 180 days of the notification of such review. If the

Secretary fails to issue a Final Decision and Order within the 180-day

period, the initial decision and order of the Administrative Law Judge

becomes the Final Decision and Order of the Secretary.

(2) Final Decision where a hearing is waived.

(i) If, after issuance of a Final Determination under Sec. 37.100

or Notification of Breach of Conciliation Agreement under Sec. 37.104,

voluntary compliance has not been achieved within the time set by this

part and the opportunity for a hearing has been waived as provided for

in Sec. 37.111(b)(4), the Final Determination or Notification of Breach

of Conciliation Agreement becomes the Final Decision of the Secretary.

(ii) When a Final Determination or Notification of Breach of

Conciliation Agreement becomes the Final Decision of the Secretary, the

Secretary may, within 45 days, issue an order terminating or denying

the grant or continuation of assistance or imposing other appropriate

sanctions for the grant applicant or recipient's failure to comply with

the required corrective and/or remedial actions, or referring the

matter to the Attorney General for further enforcement action.

(3) Final agency action. A Final Decision and Order issued under

Sec. 37.112(b) constitutes final agency action.





Sec. 37.113 What procedure does the Department follow to suspend,

terminate, withhold, deny or discontinue WIA Title I financial

assistance?



Any action to suspend, terminate, deny or discontinue WIA Title I

financial assistance must be limited to the particular political

entity, or part thereof, or other recipient (or grant applicant) as to

which the finding has been made, and must be limited in its effect to

the particular program, or part thereof, in which the noncompliance has

been found. No order suspending, terminating, denying or discontinuing

WIA Title I financial assistance will become effective until:

(a) The Director has issued a Final Determination under Sec. 37.100

or Notification of Breach of Conciliation Agreement under Sec. 37.104;

(b) There has been an express finding on the record, after

opportunity for a hearing, of failure by the grant applicant or

recipient to comply with a requirement imposed by or under the

nondiscrimination and equal opportunity provisions of WIA or this part;

(c) A Final Decision has been issued by the Secretary, the

Administrative Law Judge's decision and order has become the Final

Decision of the Secretary, or the Final Determination or Notification

of Conciliation Agreement has been deemed the Final Decision of the

Secretary, under Sec. 37.112(b); and

(d) The expiration of 30 days after the Secretary has filed, with

the committees of Congress having legislative jurisdiction over the

program involved, a full written report of the circumstances and

grounds for such action.





Sec. 37.114 What procedure does the Department follow to distribute

WIA Title I financial assistance to an alternate recipient?



When the Department withholds funds from a recipient or grant

applicant under these regulations, the Secretary may disburse the

withheld funds directly to an alternate recipient. In such case, the

Secretary will require any alternate recipient to demonstrate:

(a) The ability to comply with these regulations; and

(b) The ability to achieve the goals of the nondiscrimination and

equal opportunity provisions of WIA.



[[ Page 61738]]



Sec. 37.115 What procedures does the Department follow for post-

termination proceedings?



(a) A grant applicant or recipient adversely affected by a Final

Decision and Order issued under Sec. 37.112(b) will be restored, where

appropriate, to full eligibility to receive WIA Title I financial

assistance if the grant applicant or recipient satisfies the terms and

conditions of the Final Decision and Order and brings itself into

compliance with the nondiscrimination and equal opportunity provisions

of WIA and this part.

(b) A grant applicant or recipient adversely affected by a Final

Decision and Order issued under Sec. 37.112(b) may at any time petition

the Director to restore its eligibility to receive WIA Title I

financial assistance. A copy of the petition must be served on the

parties to the original proceeding that led to the Final Decision and

Order. The petition must be supported by information showing the

actions taken by the grant applicant or recipient to bring itself into

compliance. The grant applicant or recipient has the burden of

demonstrating that it has satisfied the requirements of paragraph (a)

of this section. While proceedings under this section are pending,

sanctions imposed by the Final Decision and Order under Sec. 37.112(b)

(1) and (2) must remain in effect.

(c) The Director must issue a written decision on the petition for

restoration.

(1) If the Director determines that the grant applicant or

recipient has not brought itself into compliance, he or she must issue

a decision denying the petition.

(2) Within 30 days of its receipt of the Director's decision, the

recipient or grant applicant may file a petition for review of the

decision by the Secretary, setting forth the grounds for its objection

to the Director's decision.

(3) The petition must be served on the Director and on the Office

of the Solicitor, Civil Rights Division.

(4) The Director may file a response to the petition within 14

days.

(5) The Secretary must issue the final agency decision denying or

granting the recipient's or grant applicant's request for restoration

to eligibility.



[FR Doc. 99-28202 Filed 11-10-99; 8:45 am]

BILLING CODE 4510-23-P

Reference to 65 FR 51984-51990 (AUGUST 25, 2000)




[[Page 51984]]



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DEPARTMENT OF LABOR



Office of the Secretary



State Guidance for Developing Methods of Administration (MOA)

Required by Regulations Implementing Section 188 of the Workforce

Investment Act of 1998 (WIA)



AGENCY: Office of the Secretary.



ACTION: Notice.



-----------------------------------------------------------------------



SUMMARY: The purpose of this notice is to provide interested parties

with the final approved Guidance for use by States in submitting their

Methods of Administration as required by 29 CFR part 37. That part

implements the nondiscrimination and equal opportunity provisions of

the Workforce Investment Act of 1998.



FOR FURTHER INFORMATION CONTACT: Ms. Annabelle T. Lockhart, Director,

Civil Rights Center, U.S. Department of Labor, 200 Constitution Ave.,

N.W., Room N-4123 FPB, Washington, DC 20210, telephone number (202)

219-8927 (voice)(this is not a toll-free number), or (800) 326-2577

(TTY/TDD).



SUPPLEMENTARY INFORMATION: The Workforce Investment Act of 1998 (WIA),

Public Law 105-220 (August 7, 1998), provides the framework for a

reformed national workforce preparation and employment system designed

to meet the needs of the nation's employers, its job seekers, and those

who want to further their careers. While WIA makes many programmatic

changes in the workforce development system authorized under the Job

Training Partnership Act of 1982 (JTPA), one constant has been the

prohibition against discrimination. The nondiscrimination and equal

opportunity provisions of JTPA (section 167) prohibit discrimination

against applicants, beneficiaries and employees on the bases of race,

color, national origin, age, disability, sex, religion, and political

affiliation or belief. Further, section 167 prohibits discrimination

against beneficiaries on the bases of citizenship and participation in

JTPA. The nondiscrimination and equal opportunity provisions of WIA

(section 188) prohibit discrimination against applicants, beneficiaries

and employees on the same bases.

Methods of Administration (MOA), designed to assure the Secretary

of Labor that State programs financially assisted by the Department

operate in a nondiscriminatory manner, have been required of States

since 1984. This requirement was codified when, on January 15, 1993,

the Department of Labor issued 29 CFR part 34, the regulations that

implement section 167 of JTPA. (See 29 CFR 34.33.)

Section 188(e) of WIA requires the Secretary to issue regulations

implementing section 188. An interim final rule implementing that

section was published on November 12, 1999, at 29 CFR part 37. As with

part 34, part 37 includes the requirement that States develop,

implement and maintain, for each of their State programs, an MOA. (See

29 CFR 37.54 and 37.55.) The MOA standards contained in part 37 are

substantially the same as those contained in part 34. States that have

faithfully implemented and maintained their MOAs under JTPA will find

that the time and effort needed to update their MOA to meet WIA

requirements will be minimal.



Signed at Washington, D. C., this 21st day of August, 2000.

Alexis M. Herman,

Secretary of Labor.



ATTACHMENT: State Guidance for Developing Methods of Administration

(MOA) Required by Regulations Implementing Section 188 of the

Workforce Investment Act of 1998 (WIA)



OMB Control No. 1225-0077

Expires January 31, 2003



The regulations that implement the nondiscrimination and equal

opportunity provisions of the Workforce Investment Act of 1998 (WIA),

published at 29 CFR part 37, require that each Governor establish and

adhere to a Methods of Administration (MOA) for his/her State programs.

This document provides Guidance for Governors and States in meeting the

regulatory requirements regarding MOAs.

An MOA is a document that describes the actions an individual State

will take to ensure that its WIA Title I-financially assisted programs,

activities, and recipients are complying, and will continue to comply,

with the nondiscrimination and equal opportunity requirements of WIA

and its implementing regulations. States were first required to prepare

and submit MOAs in 1984, under the Job Training Partnership Act (JTPA).

The requirement was continued in 1993, under the regulations

implementing the nondiscrimination and equal opportunity provisions of

JTPA. The JTPA MOA requirements were set forth in 29 CFR 34.33. The

form and content of the MOAs required under 29 CFR part 37 remain

substantially the same as those of the MOAs required under JTPA.

Title 29 CFR 37.54(a) provides that each Governor must establish

and maintain an MOA for State programs. 29 CFR 37.54(d) describes the

required elements of an MOA. Finally, 29 CFR 37.55 addresses

requirements related to submitting and updating the MOA.

By submitting an MOA, the Governor agrees to fully follow its

provisions. Failure to do so may result in a finding of noncompliance.

See 29 CFR 37.65(a).

This Guidance specifically discusses the requirements of 29 CFR

37.54(b) and 37.55, and is intended to explain, not to add to, the

requirements contained in those regulatory provisions. The Guidance is

based upon materials the Civil Rights Center (CRC) prepared in 1993 to

train Equal Opportunity (EO) Officers regarding the requirements of

MOAs under JTPA. This Guidance does not create new legal requirements

or change current legal requirements. Instead, it reflects the view of

CRC and is intended to serve as a basic resource document on CRC-

administered laws. The legal requirements related to nondiscrimination

and equal opportunity that apply to recipients of financial assistance

under WIA are contained in the statutes and regulations cited in this

Guidance. Every effort has been made to ensure that the information

contained in the Guidance is accurate and up to date.



I. Guidance on Meeting the Requirements of 29 CFR 37.54(b) Section

37.54(b) Requires That Each MOA Shall be:



{time} In writing, addressing each requirement of 29 CFR 37.54(d) with

narrative and documentation;

{time} Reviewed and updated as required by 29 CFR 37.55; and

{time} Signed by the Governor.

The MOA should be organized in the nine elements listed below, with

both a narrative and a documention section for each element.



Section A. Narrative



The first section of each element should be a narrative description

of how the State and its recipients, as that term is defined in 29 CFR

37.4, are meeting and will continue to meet the requirements of part

37. The narrative should be specific. CRC regards the narrative as the

more important section, since it contains the description of what the

State and its recipients are doing and will continue to do to fulfill

their obligations under WIA section 188 and 29 CFR part 37.



Section B. Documentation



The second section of each element should include documentation

that shows how the State is carrying out that element of the MOA. When

reviewing



Reference to 65 FR 51985 (AUGUST 25, 2000)




the adequacy of and/or performance under an MOA, CRC may request

additional supporting documentation pursuant to 29 CFR 37.65.

Element 1. Designation of State-and local-level Equal Opportunity (EO)

Officers (29 CFR 37.54(d)(1)(ii))

In this element, the State should address how it and its recipients

are complying and will continue to comply with the requirements of 29

CFR 37.23 through 37.28. The intent of this section is to ensure that

any individual the recipient appoints as EO Officer has the education,

training and experience, and is provided the necessary ongoing training

and qualified staff, to perform his or her duties assigned under 29 CFR

part 37. Additionally, the EO Officer should not be in a position that

would constitute, or appear to constitute, a conflict of interest.

Further, the State should ensure that he or she reports, on EO matters,

directly to the appropriate official in the organization (see 29 CFR

37.25(e). In summary, any individual appointed as EO Officer should

have the skill, ability, knowledge and authority to properly oversee

and direct the EO program to which that individual has been assigned.

(a) The narrative section of this element should identify, at a

minimum:

{time} Each individual designated as a State-level Equal Opportunity

Officer and each individual designated as a local-level Equal

Opportunity Officer, by name, position title, business address

(including e-mail address if applicable) and telephone number

(including TDD/TTY number). (See 29 CFR 37.23.)



{time} The level within the organization (described in such terms as

the individual's authority and position relative to the top of the

hierarchy) occupied by the EO Officer(s). (See 29 CFR 37.24.)

{time} The duties of the EO Officer(s), and the manner in which those

duties are carried out. (At a minimum, duties assigned to the EO

Officer must include those listed in 29 CFR 37.25.) Describe both the

EO duties, responsibilities and activities associated with the

implementation of 29 CFR part 37, and all other duties,

responsibilities and activities.



Note: The EO Officer may not be assigned duties,

responsibilities or activities that would constitute a conflict of

interest or the appearance of such a conflict; see 29 CFR 37.24.)



{time} The manner in which the recipient makes the identity of the EO

Officer(s) known to applicants, registrants, eligible applicants/

registrants, participants, employees, and applicants for employment, as

well as interested members of the public. (See 29 CFR 37.26.)

{time} The level of staff and other resources available to State- and

local-level EO Officer(s) to ensure that WIA Title I-financially

assisted programs and activities operate in a nondiscriminatory way.

(See 29 CFR 37.26(c).)

{time} The State's plan for ensuring that State- and local-level EO

Officers and their staffs are sufficiently trained to maintain

competency. (See 29 CFR 37.26(d).)

{time} The identity, by name, title and organization, of the

individual to whom each State- and local-level EO Officer reports on

equal opportunity matters.

{time} A description of the professional and support staffing levels

and resources provided to each State- and local-level EO Officer to

assist him or her in ensuring compliance with WIA section 188 and part

37.

{time} The type and level of training each State- and local-level EO

Officer has received and will receive to ensure that he or she is

capable of fulfilling his or her responsibilities as an EO Officer.

{time} The means by which the State makes public the names, position

titles and telephone numbers (including TDD/TTY numbers) of each State-

and local-level EO Officer.

{time} A description of any duties, other than WIA equal opportunity

responsibilities, assigned to each State- and local-level EO Officer.



(b) Documentation for this element to be submitted as part of the

MOA should include, but need not be limited to:



{time} Examples of each document (e.g., notices, directives,

memoranda, letters to community groups, flyers, and relevant pages of

handbooks and manuals) that communicates, either internally or

externally, the EO Officer's name and other required information to

registrants, applicants, eligible applicants/registrants, participants,

applicants for employment, employees, and interested members of the

public.

{time} Examples of each communication (e.g., directives) that

instructs the State's recipients as to the actions they are to take to

comply with 29 CFR 37.23 through 28 with regard to EO Officers.

{time} A copy of the State EO Officer's position description, showing

those duties specifically related to WIA equal opportunity activities,

and other duties.

{time} A representative sample of local-level EO Officer position

descriptions. NOTE: If a single, standard position description has been

adopted for all local-level EO Officers, then a single copy of that

description is sufficient.

{time} Copies of organization chart(s) showing the organizational

location of each EO Officer.

{time} The identity of any staff who perform duties that support WIA

EO activities (e.g., clerical, data analysis), a position description

for each such staff member, and average hours per week spent on EO-

related activities by each such staff member (if positions are not

devoted to WIA equal opportunity activities on a full-time basis).

{time} EO budget and source of funds.

{time} Summary of EO-related training that staff (EO staff and others)

have received and a schedule of EO training to be delivered in the

future. This may be training delivered by the State- or local-level EO

Officer to recipient staff, or training delivered to EO Officers or

recipient staff by outside sources, such as CRC.



Reference to 65 FR 51985-51986 (AUGUST 25, 2000)




Element 2. Notice and Communication (29 CFR 37.54(d)(1)(iii))

In this element, the State should address how it and its recipients

are complying and will continue to comply with the requirements of 29

CFR 37.29 through 37.36. States should ensure the establishment of a

notice and communication system that makes all registrants, applicants,

eligible applicants/registrants, applicants for employment, employees

and interested members of the public aware of both the recipient's

obligation to operate its programs and activities in a

nondiscriminatory manner, and the extent of the rights of members of

these groups to file complaints of discrimination.



(a) The narrative section of this element should describe, at a

minimum:



{time} The methods and frequency of dissemination of the notice,

including initial dissemination. (See 29 CFR 37.29.)

{time} The means by which the notice is made available to individuals

with disabilities. (See 29 CFR 37.31(b).)

{time} The means by which the State ensures that recipients post the

notice. (See 29 CFR 37.33.)

{time} The means by which a copy of the notice is placed in the

participant's file (see 29 CFR 37.31(a)), or where

the files are maintained electronically, how the requirement of

37.31(a) is and will continue to be met.

{time} The means by which the State ensures that recruitment brochures

and other materials routinely made available to the public include the

statements ``equal opportunity employer/program'' and ``auxiliary aids

and services are available upon request to individuals with

disabilities.'' (See 29 CFR 37.34(a).)

{time} Where a telephone number is included on recruitment brochures

and other materials, the means by which the State ensures that the

materials indicate a TDD/TTY number or provide for an equally effective

means of communication with individuals with hearing impairments. (See

29 CFR 37.34(a).)

{time} The means by which program-related information is published or

broadcast in the news media (e.g., publication of Requests for

Proposal) and the means by which the State ensures that publications/

broadcasts state that the program is an equal opportunity employer/

program and that auxiliary aids and services are available upon request

to individuals with disabilities. (See 29 CFR 37.34(b).)

{time} The manner in which and extent to which information in

languages other than English is provided, and the manner in which the

State ensures that persons of limited English-speaking ability have

access to its programs and activities on a basis equal to that of those

who are proficient in English. (See 29 CFR 37.35.)

{time} The manner in which and extent to which orientations for

registrants, applicants, eligible applicants/registrants, employees,

applicants for employment, and members of the public include a

discussion of the rights of such persons under WIA section 188 and 29

CFR part 37. (See 29 CFR 37.36.)

{time} The steps taken to ensure that communications with individuals

with disabilities are as effective as communications with others. (See

29 CFR 37.29(b).)

{time} The process the State has used and will continue using to

develop and communicate policy and conduct training regarding

nondiscrimination and equal opportunity. (See 29 CFR 37.25(c), and

37.54(d)(2)(iii), and 37.54(d)(2)(vi).)



(b) Documentation for this element to be submitted as part of the

MOA should include, but need not be limited to:



{time} A copy of each communication that instructs the State's

recipients on how they are to comply with the requirements of 37.29

through 37.36 regarding notice and communication.

{time} A copy of the posted notice required by 29 CFR 37.29 and 37.30.

{time} A copy of any checklist of the contents of participant and

employee files, indicating that the notice requirement has been met.

(See 29 CFR 37.31(a)(4).)

{time} A copy of any orientation agendas that include, as an agenda

item, a discussion of equal opportunity and nondiscrimination under WIA

section 188 and 29 CFR part 37. (See 29 CFR 37.36.)

{time} A copy of each item of material, distributed at orientation

sessions, that addresses the rights of individuals under WIA section

188 and 27 CFR part 37. (See 29 CFR 37.36.)

{time} Copies of agendas (and a list of dates) of past and proposed EO

policy briefings and EO training. (See 29 CFR 37.25(f), 37.26(d) and 29

CFR 37.54(d)(2)(vi).)

{time} A copy of each policy issuance or instruction that relates to

WIA section 188 or 29 CFR part 37. (See 29 CFR 37.25(c), 37.54(d)(iii),

29 CFR 54(d)(vi) and 37.54(d)(viii).)

{time} A copy of each recruitment brochure and other item of material

distributed to the public by a WIA Title I-financially assisted

recipient, showing that each includes:

{time} The statements ``equal opportunity employer/program'' and

``auxiliary aids and services are available upon request to individuals

with disabilities''; and

{time} The telephone numbers for TDD/TTY access and/or telephone relay

services. (See 29 CFR 37.34(a).)



Reference to 65 FR 51986 (August 25, 2000)




Element 5. Compliance with section 504 of the Rehabilitation Act of

1973, as amended and 29 CFR part 37 (29 CFR 37.54(d)(2)(v))

In this element, the State should address how it and its recipients

are complying and will continue to comply with the requirements of the

disability related requirements of WIA section 188; Section 504 of the

Rehabilitation Act of 1973, as amended; and their implementing

regulations, including but not limited to 29 CFR 37.7, 37.8, and 37.9

and Subparts B and C of 29 CFR Part 32.

(a) The narrative section of this element should describe, at a

minimum how the State ensures that recipients:



{time} Meet their obligation not to discriminate on the basis of

disability. (See 29 CFR 32.12 (a), 32.26, and 37.7.)

{time} Provide reasonable accommodation for individuals with

disabilities (See 29 CFR 32.13 and 29 CFR 37.8);

{time} Provide reasonable modification of policies, practices and

procedures, as required (See 29 CFR 37.8);

{time} Provide architectural accessibility for individuals with

disabilities (See 29 CFR 32.28); and

{time} Provide programmatic accessibility for persons with

disabilities (See 29 CFR 32.27).

{time} Provide for and adhere to a schedule to evaluate job

qualifications to ensure that the qualifications do not discriminate on

the basis of disability. (See 29 CFR 32.14.)

{time} Limit preemployment/employment medical inquiries to those

permitted by and in accordance with WIA section 188, Section 504, the

Americans with Disabilities Act of 1990, and their implementing

regulations. (See 29 CFR 32.15.)

{time} Ensure the confidentiality of medical information provided by

registrants, applicants, eligible applicants/registrants, participants,

employees, and applicants for employment. (See 29 CFR 32.15.)

{time} Administer their WIA Title I-financially assisted programs and

activities so that each individual with a disability participates in

the most integrated setting appropriate to that individual. (See 29 CFR

37.7(d).)

{time} Are able to communicate with persons with disabilities as

effectively as with others. (See 29 CFR 37.9.)



(b) Documentation for this element to be submitted as part of the

MOA should include, but need not be limited to:



{time} Copies of policies/procedures issued by the State or any of its

WIA Title I recipients, such as:

{time} The procedures by which persons with disabilities are assured

of participation in programs and activities in as integrated setting as

possible;

{time} The procedures by which the availability of reasonable

accommodation and reasonable modification are made known to persons

with disabilities, and the procedures for making and resolving such

requests;

{time} The procedures by which the State ensures that communication

with persons with disabilities is as effective as communication with

others; and

{time} The procedures by which the State ensures that the programs and

activities operated by its WIA Title I recipients are architecturally

and programmatically accessible to individuals with disabilities.

{time} Any evaluation conducted to determine the programmatic or

architectural accessibility of a WIA Title I-financially assisted

program or activity and the status of any corrective actions taken by

the recipient involved.

{time} Copies of publications and agendas for any training conducted

for recipient staff that is intended to raise awareness of disability

issues.



Reference to 65 FR 51987 (AUGUST 25, 2000)




Element 4. Universal Access (29 CFR 37.54(d)(1)(vi)

In this element, the State should address how it and its recipients

are complying and will continue to comply with the requirements of 29

CFR 37.42 relating to the provision of universal access to programs and

activities.

(a) The narrative section of this element should describe, at a

minimum, how:

{time} The State has communicated the obligation of recipients

(including, e.g., LWIAs, one-stop operators and service providers) to

make efforts (including outreach) to broaden the composition of the

pool of those considered for participation or employment in their

programs and activities in an effort to include members of both sexes,

of the various racial and ethnic groups and of various age groups, as

well as individuals with disabilities.

{time} Recipients have made and will continue to make efforts to

broaden the composition of those considered for participation or

employment in their programs and activities, as described above.

{time} The State monitors and evaluates the success of recipient

efforts to broaden the composition of those considered for

participation and employment in their programs and activities, as

described above.



(b) Documentation for this element to be submitted as part of the

MOA should include, but need not be limited to:



{time} Copies of targeting, outreach and recruitment plans.

{time} Criteria for determining priority of service.

{time} Copies of plans for One-Stop delivery systems to expand the

pool of those considered for participation or employment in their

programs and by race/ethnicity, sex, disability status, and age.

{time} Samples of brochures, posters, public-service announcements,

computer screens displaying related information, and other publicity

materials.



Reference to 29 USC 2938




Sec. 2938. Nondiscrimination



(a) In general



(1) Federal financial assistance



For the purpose of applying the prohibitions against

discrimination on the basis of age under the Age Discrimination Act

of 1975 (42 U.S.C. 6101 et seq.), on the basis of disability under

section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), on

the basis of sex under title IX of the Education Amendments of 1972

(20 U.S.C. 1681 et seq.), or on the basis of race, color, or

national origin under title VI of the Civil Rights Act of 1964 (42

U.S.C. 2000d et seq.), programs and activities funded or otherwise

financially assisted in whole or in part under this Act are

considered to be programs and activities receiving Federal financial

assistance.



(2) Prohibition of discrimination regarding participation,

benefits, and employment



No individual shall be excluded from participation in, denied

the benefits of, subjected to discrimination under, or denied

employment in the administration of or in connection with, any such

program or activity because of race, color, religion, sex (except as

otherwise permitted under title IX of the Education Amendments of

1972 [20 U.S.C. 1681 et seq.]), national origin, age, disability, or

political affiliation or belief.



(3) Prohibition on assistance for facilities for sectarian

instruction or religious worship



Participants shall not be employed under this chapter to carry

out the construction, operation, or maintenance of any part of any

facility that is used or to be used for sectarian instruction or as

a place for religious worship (except with respect to the

maintenance of a facility that is not primarily or inherently

devoted to sectarian instruction or religious worship, in a case in

which the organization operating the facility is part of a program

or activity providing services to participants).



(4) Prohibition on discrimination on basis of participant

status



No person may discriminate against an individual who is a

participant in a program or activity that receives funds under this

chapter, with respect to the terms and conditions affecting, or

rights provided to, the individual, solely because of the status of

the individual as a participant.



(5) Prohibition on discrimination against certain

noncitizens



Participation in programs and activities or receiving funds

under this chapter shall be available to citizens and nationals of

the United States, lawfully admitted permanent resident aliens,

refugees, asylees, and parolees, and other immigrants authorized by

the Attorney General to work in the United States.



(b) Action of Secretary



Whenever the Secretary finds that a State or other recipient of

funds under this chapter has failed to comply with a provision of law

referred to in subsection (a)(1) of this section, or with paragraph (2),

(3), (4), or (5) of subsection (a) of this section, including an

applicable regulation prescribed to carry out such provision or

paragraph, the Secretary shall notify such State or recipient and shall

request that the State or recipient comply. If within a reasonable

period of time, not to exceed 60 days, the State or recipient fails or

refuses to comply, the Secretary may--

(1) refer the matter to the Attorney General with a

recommendation that an appropriate civil action be instituted; or

(2) take such other action as may be provided by law.



(c) Action of Attorney General



When a matter is referred to the Attorney General pursuant to

subsection (b)(1) of this section, or whenever the Attorney General has

reason to believe that a State or other recipient of funds under this

chapter is engaged in a pattern or practice of discrimination in

violation of a provision of law referred to in subsection (a)(1) of this

section or in violation of paragraph (2), (3), (4), or (5) of subsection

(a) of this section, the Attorney General may bring a civil action in

any appropriate district court of the United States for such relief as

may be appropriate, including injunctive relief.



(d) Job Corps



For the purposes of this section, Job Corps members shall be

considered as the ultimate beneficiaries of Federal financial

assistance.



(e) Regulations



The Secretary shall issue regulations necessary to implement this

section not later than one year after August 7, 1998. Such regulations

shall adopt standards for determining discrimination and procedures for

enforcement that are consistent with the Acts referred to in a \1\

subsection (a)(1) of this section, as well as procedures to ensure that

complaints filed under this section and such Acts are processed in a

manner that avoids duplication of effort.

---------------------------------------------------------------------------

\1\ So in original.

---------------------------------------------------------------------------



(Pub. L. 105-220, title I, Sec. 188, Aug. 7, 1998, 112 Stat. 1049.)



Reference to 42 USC 2000(e)

From http://www4.law. cornell.edu/uscode/42/2000e.html


US CODE COLLECTION

TITLE 42 > CHAPTER 21 > SUBCHAPTER VI > Sec. 2000e.

Sec. 2000e. - Definitions



For the purposes of this subchapter -



(a)

The term ''person'' includes one or more individuals, governments,

governmental agencies, political subdivisions, labor unions,

partnerships, associations, corporations, legal representatives, mutual

companies, joint-stock companies, trusts, unincorporated organizations,

trustees, trustees in cases under title 11, or receivers.



(b)

The term ''employer'' means a person engaged in an industry affecting

commerce who has fifteen or more employees for each working day in each

of twenty or more calendar weeks in the current or preceding calendar

year, and any agent of such a person, but such term does not include



(1)

the United States, a corporation wholly owned by the Government of the

United States, an Indian tribe, or any department or agency of the

District of Columbia subject by statute to procedures of the competitive

service (as defined in section 2102 of title 5), or



(2)

a bona fide private membership club (other than a labor organization)

which is exempt from taxation under section 501(c) of title 26, except

that during the first year after March 24, 1972, persons having fewer

than twenty-five employees (and their agents) shall not be considered

employers.



(c)

The term ''employment agency'' means any person regularly undertaking

with or without compensation to procure employees for an employer or to

procure for employees opportunities to work for an employer and includes

an agent of such a person.



(d)

The term ''labor organization'' means a labor organization engaged in an

industry affecting commerce, and any agent of such an organization, and

includes any organization of any kind, any agency, or employee

representation committee, group, association, or plan so engaged in

which employees participate and which exists for the purpose, in whole

or in part, of dealing with employers concerning grievances, labor

disputes, wages, rates of pay, hours, or other terms or conditions of

employment, and any conference, general committee, joint or system

board, or joint council so engaged which is subordinate to a national or

international labor organization.



(e)

A labor organization shall be deemed to be engaged in an industry

affecting commerce if



(1)

it maintains or operates a hiring hall or hiring office which procures

employees for an employer or procures for employees opportunities to

work for an employer, or



(2)

the number of its members (or, where it is a labor organization composed

of other labor organizations or their representatives, if the aggregate

number of the members of such other labor organization) is



(A)

twenty-five or more during the first year after March 24, 1972, or



(B)

fifteen or more thereafter, and such labor organization -



(1)

is the certified representative of employees under the provisions of the

National Labor Relations Act, as amended (29 U.S.C. 151 et seq.), or the

Railway Labor Act, as amended (45 U.S.C. 151 et seq.);



(2)

although not certified, is a national or international labor

organization or a local labor organization recognized or acting as the

representative of employees of an employer or employers engaged in an

industry affecting commerce; or



(3)

has chartered a local labor organization or subsidiary body which is

representing or actively seeking to represent employees of employers

within the meaning of paragraph (1) or (2); or



(4)

has been chartered by a labor organization representing or actively

seeking to represent employees within the meaning of paragraph (1) or

(2) as the local or subordinate body through which such employees may

enjoy membership or become affiliated with such labor organization; or



(5)

is a conference, general committee, joint or system board, or joint

council subordinate to a national or international labor organization,

which includes a labor organization engaged in an industry affecting

commerce within the meaning of any of the preceding paragraphs of this

subsection.



(f)

The term ''employee'' means an individual employed by an employer,

except that the term ''employee'' shall not include any person elected

to public office in any State or political subdivision of any State by

the qualified voters thereof, or any person chosen by such officer to be

on such officer's personal staff, or an appointee on the policy making

level or an immediate adviser with respect to the exercise of the

constitutional or legal powers of the office. The exemption set forth in

the preceding sentence shall not include employees subject to the civil

service laws of a State government, governmental agency or political

subdivision. With respect to employment in a foreign country, such term

includes an individual who is a citizen of the United States.



(g)

The term ''commerce'' means trade, traffic, commerce, transportation,

transmission, or communication among the several States; or between a

State and any place outside thereof; or within the District of Columbia,

or a possession of the United States; or between points in the same

State but through a point outside thereof.



(h)

The term ''industry affecting commerce'' means any activity, business,

or industry in commerce or in which a labor dispute would hinder or

obstruct commerce or the free flow of commerce and includes any activity

or industry ''affecting commerce'' within the meaning of the

Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C. 401 et

seq.), and further includes any governmental industry, business, or

activity.



(i)

The term ''State'' includes a State of the United States, the District

of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake

Island, the Canal Zone, and Outer Continental Shelf lands defined in the

Outer Continental Shelf Lands Act (43 U.S.C. 1331 et seq.).



(j)

The term ''religion'' includes all aspects of religious observance and

practice, as well as belief, unless an employer demonstrates that he is

unable to reasonably accommodate to an employee's or prospective

employee's religious observance or practice without undue hardship on

the conduct of the employer's business.



(k)

The terms ''because of sex'' or ''on the basis of sex'' include, but are

not limited to, because of or on the basis of pregnancy, childbirth, or

related medical conditions; and women affected by pregnancy, childbirth,

or related medical conditions shall be treated the same for all

employment-related purposes, including receipt of benefits under fringe

benefit programs, as other persons not so affected but similar in their

ability or inability to work, and nothing in section 2000e-2(h) of this

title shall be interpreted to permit otherwise. This subsection shall

not require an employer to pay for health insurance benefits for

abortion, except where the life of the mother would be endangered if the

fetus were carried to term, or except where medical complications have

arisen from an abortion: Provided, That nothing herein shall preclude an

employer from providing abortion benefits or otherwise affect bargaining

agreements in regard to abortion.



(l)

The term ''complaining party'' means the Commission, the Attorney

General, or a person who may bring an action or proceeding under this

subchapter.



(m)

The term ''demonstrates'' means meets the burdens of production and

persuasion.



(n)

The term ''respondent'' means an employer, employment agency, labor

organization, joint labor-management committee controlling

apprenticeship or other training or retraining program, including an

on-the-job training program, or Federal entity subject to section

2000e-16 of this title

Reference to 42 USC 12111

From http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=browse_usc&docid=Cite:+42USC12111


¤ 12111. Definitions

As used in this subchapter:



(1) Commission

The term `Commission` means the Equal Employment Opportunity Commission

established by section 2000e-4 of this title.



(2) Covered entity

The term `covered entity` means an employer, employment agency, labor

organization, or joint labor-management committee.



(3) Direct threat

The term `direct threat` means a significant risk to the health or

safety of others that cannot be eliminated by reasonable accommodation.



(4) Employee

The term `employee` means an individual employed by an employer. With

respect to employment in a foreign country, such term includes an

individual who is a citizen of the United States.



(5) Employer

(A) In general

The term `employer` means a person engaged in an industry affecting

commerce who has 15 or more employees for each working day in each of 20

or more calendar weeks in the current or preceding calendar year, and

any agent of such person, except that, for two years following the

effective date of this subchapter, an employer means a person engaged in

an industry affecting commerce who has 25 or more employees for each

working day in each of 20 or more calendar weeks in the current or

preceding year, and any agent of such person.



(B) Exceptions

The term `employer` does not include -



(i) the United States, a corporation wholly owned by the government of

the United States, or an Indian tribe; or

(ii) a bona fide private membership club (other than a labor

organization) that is exempt from taxation under section 501(c) of title

26.



(6) Illegal use of drugs

(A) In general

The term `illegal use of drugs` means the use of drugs, the possession

or distribution of which is unlawful under the Controlled Substances Act

(21 U.S.C. 801 et seq.). Such term does not include the use of a drug

taken under supervision by a licensed health care professional, or other

uses authorized by the Controlled Substances Act or other provisions of

Federal law.



(B) Drugs

The term `drug` means a controlled substance, as defined in schedules I

through V of section 202 of the Controlled Substances Act (21 U.S.C.

812).



(7) Person, etc.

The terms `person`, `labor organization`, `employment agency`,

`commerce`, and `industry affecting commerce`, shall have the same

meaning given such terms in section 2000e of this title.



(8) Qualified individual with a disability

The term `qualified individual with a disability` means an individual

with a disability who, with or without reasonable accommodation, can

perform the essential functions of the employment position that such

individual holds or desires. For the purposes of this subchapter,

consideration shall be given to the employer`s judgment as to what

functions of a job are essential, and if an employer has prepared a

written description before advertising or interviewing applicants for

the job, this description shall be considered evidence of the essential

functions of the job.



(9) Reasonable accommodation

The term `reasonable accommodation` may include -

(A) making existing facilities used by employees readily accessible to

and usable by individuals with disabilities; and

(B) job restructuring, part-time or modified work schedules,

reassignment to a vacant position, acquisition or modification of

equipment or devices, appropriate adjustment or modifications of

examinations, training materials or policies, the provision of qualified

readers or interpreters, and other similar accommodations for

individuals with disabilities.



(10) Undue hardship

(A) In general

The term `undue hardship` means an action requiring significant

difficulty or expense, when considered in light of the factors set forth

in subparagraph (B).



(B) Factors to be considered

In determining whether an accommodation would impose an undue hardship

on a covered entity, factors to be considered include -



(i) the nature and cost of the accommodation needed under this chapter;

(ii) the overall financial resources of the facility or facilities

involved in the provision of the reasonable accommodation; the number of

persons employed at such facility; the effect on expenses and resources,

or the impact otherwise of such accommodation upon the operation of the

facility;

(iii) the overall financial resources of the covered entity; the overall

size of the business of a covered entity with respect to the number of

its employees; the number, type, and location of its facilities; and

(iv) the type of operation or operations of the covered entity,

including the composition, structure, and functions of the workforce of

such entity; the geographic separateness, administrative, or fiscal

relationship of the facility or facilities in question to the covered

entity.