Ensuring Equal Access to the Nation’s Workforce Development System
Proposed Rule to promote nondiscrimination and equal opportunity in WIOA financially assisted programs and activities(WIOA Section 188 Nondiscrimination and Equal Opportunity NPRM, 29 CFR Part 38)
The workforce development system is the backbone of job training in the United States. It provides millions of jobseekers and workers the opportunity to learn new skills and obtain new and better jobs. The system also serves a critical role in our nation’s labor market, bringing together workers and businesses to ensure that workers can find good jobs and that employers can find the skilled workers they need to keep business thriving.
An essential element of the workforce development system is its accessibility to everyone. The Department of Labor’s Civil Rights Center (CRC) is tasked with ensuring that all people can access the programs, services, and benefits that the system provides, equally and free from discrimination. These principles are not only required, but are vital to a successful workforce development system. As Secretary of Labor Tom Perez has said, “We all know that America is truly strongest when we field a full team.”
CRC is proposing regulations to implement the equal opportunity provisions of the Workforce Innovation and Opportunity Act (WIOA), which was signed into law in July 2014. The proposal provides important updates to the existing regulations, which originated in 1999. Thus, they do not reflect the many developments in civil rights law since that time, changes in the CRC’s enforcement procedures and processes, or new practices of recipients and beneficiaries (for example, the routine use of computer- and internet-based systems).
The proposed update would ensure the entire workforce system is aware of current equal opportunity rights and responsibilities of beneficiaries and recipients. This proposal would increase equality of opportunity for the millions of job applicants, training participants, program beneficiaries, and funding recipients’ employees who interact with the workforce development system each year. The NPRM’s updates also would ensure access to the system, in particular for people with disabilities, individuals with limited English proficiency, transgender individuals, and individuals who are pregnant or have related medical conditions.
What’s New in the WIOA Equal Opportunity NPRM
CRC proposes to revise its regulations to implement the nondiscrimination and equal opportunity obligations under WIOA Section 188. Section 188 prohibits discrimination against individuals in any WIOA Title I program or activity, which includes job training for adults and youth, apprenticeships, and programs or activities provided by partners at American Job Centers. These programs or activities may not discriminate against people because of their race, color, religion, sex, national origin, age, disability, or political affiliation or belief and, for beneficiaries only, because of their citizenship status or participation in a program or activity that receives financial assistance under Title I of WIOA. The rules apply to recipients of financial assistance under Title I of WIOA and to program partners at American Job Centers that offer programs or activities through the workforce development system. Partners conduct related programs or activities through the One-Stop delivery system such as Unemployment Insurance, Temporary Assistance for Needy Families, adult education, Trade Adjustment Assistance, and others. The proposed rule would:
- Update the nondiscrimination and equal opportunity provisions to align them with current law and legal principles. The NPRM captures developments since 1999 under the following laws, reflected in regulations and guidance issued by other federal agencies, including the Departments of Justice and Education, the Equal Employment Opportunity Commission:
- Title VI and Title VII of the Civil Rights Act of 1964;
- Title IX of the Education Amendments of 1972;
- The Americans with Disabilities Act of 1990 and the ADA Amendments Act of 2008; and
- Section 504 of the Rehabilitation Act of 1973.
- Ensure protection from discrimination based on pregnancy. The proposed rule makes clear that sex discrimination includes discrimination based on pregnancy, childbirth, and related medical conditions, in accord with the Pregnancy Discrimination Act of 1978, which amended Title VII of the Civil Rights Act of 1964, and in accord with Title IX of the Education Amendments of 1972.
- Safeguard meaningful access to the workforce system for persons with limited English proficiency (LEP). The regulations clarify that discrimination based on national origin may include discrimination because someone is limited English proficient. As such, under the NPRM, recipients and partners would have to take reasonable steps to ensure that LEP individuals have meaningful access to aid, benefits, services, and training. These steps may include oral interpretation and written translation of both hard-copy and electronic materials in non-English languages. This would ensure that LEP individuals are informed about or able to participate in programs or activities. In addition, the NPRM proposes to clarify which documents are “vital” and thus should be translated. The NPRM would require recipients and partners to record the primary language of applicants, participants, beneficiaries, etc., to help ensure recipients and partners have the necessary information to effectively serve LEP individuals. Finally, an appendix describes promising practices to help recipients comply with their legal obligations and includes the components of a plan to facilitate meaningful access for individuals with limited English proficiency.
- Ensure access to the workforce system by people with disabilities by bringing the regulations in line with updated disability civil rights law.The NPRM would bring the CRC regulations in accord with the Americans with Disabilities Act Amendments Act of 2008 and the proposed implementing regulations and guidance issued by the Department of Justice, as well as the final implementing regulations and guidance issued by the Equal Employment Opportunity Commission. The NPRM’s updated language would ensure that the definition of “disability” will be interpreted broadly, which will enable more individuals with disabilities to be effectively served within the workforce system. The NPRM also proposes to address accessibility requirements (such as for information and electronic technologies) and service animals.
- Ensure that recipients and partners are aware of the full scope of their obligations. CRC proposes changes to the equal opportunity notice or poster that is required of recipients and partners, in order to ensure that they, and individuals participating in their programs and activities, are aware of the scope of the nondiscrimination and equal opportunity obligations and recent developments in law. For example, the changes would reflect that “sex,” as a prohibited basis for discrimination, includes pregnancy, childbirth, and related medical conditions, transgender status, gender identity, and sex stereotyping. Similarly, the changes would make clear that discrimination against LEP persons may be a form of national origin discrimination.
- Outline protections for transgender and gender non-conforming people. The NPRM proposes that discrimination on the basis of transgender status, gender identity, or sex-stereotyping are forms of sex discrimination, in accord with similar developments under other civil rights laws. In addition, the NPRM acknowledges that interpretations flowing from this area of the law, particularly with regard to discrimination based on sexual orientation, may continue to develop in rapid fashion. CRC requests comments on this matter.
- Improve the effectiveness of the Department’s enforcement program to support compliance.
- The proposal would increase compliance through clearer descriptions of recipient and partner responsibilities, more effective Equal Opportunity Officers, and enhanced data collection.
- The NPRM also proposes revisions to strengthen recipient and partner recordkeeping and other actions designed to increase compliance. For example, the role of Equal Opportunity Officers is clarified to help ensure that such individuals have the support, authority, and resources necessary to carry out their responsibilities.
- The NPRM proposes to increase the monitoring responsibilities of Governors to improve the ability to identify and address systemic discrimination by requiring annual monitoring, instead of the current “periodic” monitoring.