87130 Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations

DEPARTMENT OF LABOR WIA, and these WIOA provisions took (ADA),6 as amended by the Americans effect on July 1, 2015. To ensure no with Disabilities Act Amendments Act Office of the Secretary regulatory gap while this rule was (ADAAA),7 and Section 501 of the prepared, the Department’s Civil Rights Rehabilitation Act,8 which are enforced 29 CFR Part 38 Center (CRC) issued a final rule in July by the Equal Employment Opportunity RIN 1291–AA36 2015 (‘‘2015 rule’’), codified at 29 CFR Commission (EEOC); Executive Order part 38, which applies until this rule 11246 9 and Section 503 of the Implementation of the takes effect. The 2015 rule retained the Rehabilitation Act,10 which are enforced Nondiscrimination and Equal provisions in 29 CFR part 37 (‘‘1999 by the Department’s Office of Federal Opportunity Provisions of the rule’’) but simply substituted all Contract Compliance Programs Workforce Innovation and Opportunity references to WIA with WIOA to reflect (OFCCP); Title VI of the Civil Rights Act the proper statutory authority. This final Act, the Age Discrimination Act of 1975, rule revises the 2015 rule and generally and Section 504 of the Rehabilitation AGENCY: Office of the Secretary, Labor. carries over the policies and procedures Act, which are enforced by each federal ACTION: Final rule. found in the 1999 and 2015 rules, which funding agency; and Title IX, which is implemented the equal opportunity and enforced by each federal funding agency SUMMARY: This final rule revises the U.S. nondiscrimination provisions of WIA that assists an education or training Department of Labor (Department) and WIOA, respectively. Like the 1999 program. regulations implementing the and 2015 rules, this final rule is CRC issued a notice of proposed nondiscrimination and equal organized into subparts A through E. rulemaking (NPRM) on January 26, opportunity provisions of Section 188 of 2016, to implement the the Workforce Innovation and Purpose of the Regulatory Action nondiscrimination and equal Opportunity Act (WIOA). Signed by CRC enforces Section 188 of WIOA, opportunity provisions of WIOA, President Obama on July 22, 2014, which prohibits exclusion of an informed by CRC’s experience under the WIOA superseded the Workforce individual from participation in, denial 1999 rule implementing WIA. CRC Investment Act of 1998 (WIA) as the of the benefits of, discrimination in, or maintains regular contact with the Department’s primary mechanism for denial of employment in the regulated community, and this contact providing financial assistance for a administration of or in connection with resulted in some of the changes to the comprehensive system of job training any programs and activities funded or 2015 rule that were proposed in the and placement services for adults and otherwise financially assisted in whole NPRM. During the 60-day public eligible youth. Section 188 of WIOA or in part under Title I of WIOA because comment period, CRC received 360 prohibits the exclusion of an individual of race, color, religion, sex, national comments 11 on the proposed rule. from participation in, denial of the origin, age, disability, or political Comments came from a wide variety of benefits of, discrimination in, or denial affiliation or belief, or, for beneficiaries, stakeholders, including State and local of employment in the administration of applicants, and participants only, on the agencies; civil rights and advocacy or in connection with any programs and basis of citizenship status, or groups, such as language access activities funded or otherwise participation in a program or activity organizations, disability rights financially assisted in whole or in part that receives financial assistance under organizations, and organizations serving under Title I of WIOA because of race, Title I of WIOA. Section 188 of WIOA lesbian, gay, bisexual, and transgender color, religion, sex, national origin, age, incorporates the prohibitions against (LGBT) individuals; religious disability, or political affiliation or discrimination in programs and organizations; and labor organizations. belief, or, for beneficiaries, applicants, activities that receive federal financial After a full review of the comments, and participants only, on the basis of assistance under certain civil rights CRC adopts this final rule incorporating citizenship status, or participation in a laws, including Title VI of the Civil many of the provisions proposed in the program or activity that receives Rights Act of 1964 (Title VI) (prohibiting NPRM, with some modifications that are financial assistance under Title I of discrimination based on race, color, or discussed in the Section-by-Section WIOA. This final rule updates national origin in programs and analysis below. Department regulations consistent with activities receiving federal financial This rule sets forth the WIOA Section current law and addresses its 1 assistance), Title IX of the Education 188 nondiscrimination and equal application to current workforce Amendments of 1972 (Title IX) opportunity requirements and development and workplace practices (prohibiting discrimination based on sex obligations for ‘‘recipients’’ as that term and issues. in education and training programs is defined in § 38.4(zz). These DATES: 2 Effective Date: These regulations receiving federal financial assistance), requirements and obligations arise in are effective December 2, 2016. the Age Discrimination Act of 1975 FOR FURTHER INFORMATION CONTACT: (prohibiting discrimination based on 6 42 U.S.C. 12101 et seq. Naomi Barry-Perez, Director, Civil age),3 and Section 504 of the 7 42 U.S.C. 12101 et seq., Public Law 110–325, Rights Center, U.S. Department of Labor, Rehabilitation Act (Section 504) 122 Stat. 3553 (2008). 200 Constitution Avenue NW., Room N– (prohibiting discrimination based on 8 29 U.S.C. 791. 4123, Washington, DC 20210. CRC- disability).4 CRC interprets the 9 Executive Order 11246, 30 FR 12319, Sept. 24, 1965, as amended by Executive Order 11375, 32 FR [email protected], telephone (202) 693– nondiscrimination provisions of WIOA 14303, Oct. 17, 1967; Executive Order 12086, 43 FR 6500 (VOICE) or (202) 877–8339 consistent with the principles of Title 46501, Oct. 10, 1978; Executive Order 13279, 67 FR (Federal Relay Service—for TTY). VII of the Civil Rights Act (Title VII),5 77141, Dec. 12, 2002; Executive Order 13665, 79 FR 20749, Apr. 8, 2014; and Executive Order 13672, 79 SUPPLEMENTARY INFORMATION the Americans with Disabilities Act : FR 42971, July 21, 2014. 10 29 U.S.C. 793. Executive Summary 1 42 U.S.C. 2000d et seq. 11 This includes one comment that was 2 Regulatory History 20 U.S.C. 1681 et seq. withdrawn and reissued without personally 3 42 U.S.C. 6101 et seq. identifiable information and one comment WIOA contains the identical 4 29 U.S.C. 794. documenting contact with an outside party during provisions of Section 188 as appeared in 5 42 U.S.C. 2000e et seq. the comment period.

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connection with programs or activities Since their promulgation in 1999, the to align them with current law and legal financially assisted under WIOA Title I regulations implementing Section 188 of principles. As discussed above, in as explained further below. The final WIA or WIOA had not undergone enforcing the nondiscrimination rule describes the enforcement substantial revision. The 2015 rule obligations of recipients set forth in this procedures for implementing the made only technical revisions to the part, CRC follows the case law nondiscrimination and equal 1999 rule, changing references from principles developed under, among opportunity provisions of WIOA. ‘‘WIA’’ to ‘‘WIOA.’’ Thus, the 2015 rule other statutes, Title VI and Title VII of Although WIOA did not change the did not reflect recent developments in the Civil Rights Act of 1964, Title IX of nondiscrimination and equal equal opportunity and the Education Amendments of 1972, opportunity provisions in Section 188, nondiscrimination jurisprudence. Section 504 of the Rehabilitation Act of Congress mandated that the Department Moreover, procedures and processes for 1973, and the Americans with issue regulations to implement the enforcement of the nondiscrimination Disabilities Act, as amended by the section, including standards for and equal opportunity provisions of ADAAA. Since the issuance of the WIA determining discrimination and Section 188 had not been revised to Section 188 regulations in 1999, the enforcement procedures, as well as reflect changes in the practices of principles of nondiscrimination and procedures to process complaints.12 recipients since 1999, including the use equal opportunity law under these To best understand the application of of computer-based and internet-based statutes have evolved significantly, and this regulation, readers are encouraged systems to provide aid, benefits, the ADA has been amended. Agencies to review the ‘‘applicability’’ language at services, or training through WIOA Title enforcing these statutes have issued § 38.2, the definition of ‘‘financial I-financially assisted programs and regulations and guidance impacting assistance’’ under Title I of WIOA at activities. WIOA Title I-financially assisted § 38.4(x) and (y), and the definition of For these reasons, this final rule programs and activities to reflect these ‘‘recipient’’ at § 38.4(zz). Entities revises 29 CFR part 38 to set forth legal developments.18 During that time, connected to the workforce recipients’ nondiscrimination and equal the Department has issued final rules development system may be recipients opportunity obligations under WIOA under Section 503 of the Rehabilitation for purposes of Section 188 and this rule Section 188 in accordance with existing Act and Executive Order 11246.19 even if they do not receive assistance in law and policy. This rule updates the Third, this final rule improves the the form of money. For example, regulations to address current effectiveness of CRC’s enforcement recipients subject to these regulations compliance issues in the workforce program to support compliance with the include entities with agreements, system and to reflect existing law under rule. The compliance review and arrangements, contracts, subcontracts, Title VI and Title VII of the Civil Rights complaint procedures sections are or other instruments for the provision of Act of 1964, Title IX of the Education updated and the changes are intended to assistance or benefits under WIOA Title Amendments of 1972, the ADA, and the increase compliance through clearer I.13 Thus, entities that are selected and/ Rehabilitation Act as related to WIOA descriptions of recipient or certified as eligible training providers Title I-financially assisted programs and responsibilities, more effective Equal are considered to receive financial activities. This rule also incorporates Opportunity (‘‘EO’’) Officers, enhanced assistance for the purpose of this developments and interpretations of data collection, and consistent regulation and Section 188.14 existing law by the Department of Additionally, programs and activities Justice (DOJ), the EEOC, the Department 18 See U.S. Dep’t of Justice, Office of the Att’y operated by one-stop partners (both Gen., Amendment of Americans with Disabilities of Education, and this Department’s Act Title II and III Regulations to Implement ADA required partners and additional corresponding interpretations of Title Amendments Act of 2008; Final Rule, 81 FR 53204, partners) also receive financial VII and the Rehabilitation Act into the Aug. 11, 2016 (revising 28 CFR parts 35 and 36) assistance for purposes of this workforce development system. The (hereinafter ‘‘DOJ Final Rule to Implement regulation to the extent that these ADAAA’’); U.S. Equal Emp’t Opportunity Comm’n, final rule reflects current law and legal Regulations to Implement the Equal Employment programs and activities are being principles applicable to a recipient’s Provisions of the Americans with Disabilities Act, conducted as part of the one-stop obligation to refrain from discrimination as Amended; Final Rule, 76 FR 16978, Mar. 25, delivery system.15 We note, however, and to ensure equal opportunity. 2011 (29 CFR part 1630) (hereinafter ‘‘EEOC Final that whether an entity is an additional Rule to Implement ADAAA’’); see also U.S. Dep’t one-stop partner subject to Section 188 Major Revisions of Health & Human Servs., Office for Civil Rights, Nondiscrimination in Health Programs and is based on whether that entity has First, this final rule improves the Activities; Final Rule, 81 FR 31376, May 18, 2016 signed a Memorandum of overall readability of the 2015 rule (implementing Section 1557 of the Affordable Care Understanding as an additional partner through revisions, limited Act, which prohibits discrimination on the grounds per the requirements of Section 121 of reorganization of sections, and more prohibited by Title VI, Title IX, the Age Act, and 16 Section 504) (hereinafter ‘‘HHS Nondiscrimination WIOA and not merely whether that explicit descriptions of recipient Final Rule’’). entity is working with or contributing obligations. The final rule revises the 19 U.S. Dep’t of Labor, Office of Fed. Contract something to a WIOA Title I program.17 current question-and-answer format in Compliance Programs, Discrimination on the Basis the title of each section to make it more of Sex; Final Rule, 81 FR 39108, June 15, 2016 12 29 U.S.C. 3248(e). (revising 41 CFR part 60–20) (hereinafter ‘‘OFCCP straightforward and to more closely Sex Discrimination Final Rule’’); U.S. Dep’t of 13 See § 38.4(x)(5), (y)(5). mirror other nondiscrimination and Labor, Office of Fed. Contract Compliance 14 Section 38.4(zz)(6) (service providers, Programs, Implementation of Executive Order including eligible training providers, are equal opportunity regulations issued by the Department. The plain language of 13672 Prohibiting Discrimination Based on Sexual recipients); see also § 38.4(ggg) (defining ‘‘service Orientation and Gender Identity by Contractors and provider’’). the regulations is retained for ease of Subcontractors; Final Rule, 79 FR 72985, Dec. 9, 15 Section 38.2(a)(2). comprehension and application. 2014 (revising 41 CFR parts 60–1, 60–2, 60–4, and 16 See 29 U.S.C. 3151. Second, this rule updates the 60–50) (hereinafter ‘‘OFCCP Executive Order 13672 17 Please note that this sentence is limited in nondiscrimination and equal Final Rule’’); U.S. Dep’t of Labor, Office of Fed. scope as to whether an entity is a one-stop Contract Compliance Programs, Affirmative Action additional partner subject to this regulation. Even opportunity provisions of the 2015 rule and Nondiscrimination Obligations of Contractors if an entity does not qualify as a one-stop additional and Subcontractors Regarding Individuals with partner, that entity might still be subject to the recipient of financial assistance under Title I of Disabilities; Final Rule, 78 FR 58862, Sept. 24, 2013 requirements of this regulation if it is otherwise a WIOA. (revising 41 CFR part 60–741).

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monitoring and oversight by Governors. activities. Executive Order 12067 22 rights of parties upon such a finding, These changes help identify the scope of requires federal departments and and hearing procedures, sanctions, and the nondiscrimination and equal agencies to consult with the EEOC about post-termination procedures. opportunity requirements and regulations involving equal employment Reasons for Revisions Generally obligations with more specificity and opportunity. The Age Discrimination inform those who may not otherwise be Act of 1975, as amended, assigns the The final rule incorporates current aware of the developments in the law. Secretary of the U.S. Department of jurisprudence under Title VII and other Health and Human Services (HHS) the Statement of Legal Authority employment nondiscrimination laws, as responsibility for coordinating the well as EEOC guidance interpreting Statutory Authority federal enforcement effort of that Act. those nondiscrimination obligations. We The statutory authorities for this final Accordingly, the final rule has been rely on this guidance in the employment rule are: The Workforce Innovation and developed in coordination with the DOJ, context because WIOA Section 188 also Opportunity Act, Public Law 113–128, the EEOC, and HHS. In addition, as applies to employment in the 128 Stat. 1425, including Section 188 of appropriate, this rule has been administration of, or in connection such Act. Section 188 incorporates the developed in coordination with other with, Title I-financially assisted prohibitions against discrimination federal grantmaking agencies, including programs and activities. Pursuant to under Title VI of the Civil Rights Act of the U.S. Departments of Education and Executive Order 12067, the EEOC is the 1964, as amended, Public Law 88–352, Housing and Urban Development. lead federal agency responsible for 78 Stat. 252 (42 U.S.C. 2000d et seq.); I. Overview of the Final Rule defining the nature of employment Section 504 of the Rehabilitation Act of discrimination on the basis of race, This final rule retains the organization 1973, as amended, Public Law 93–112, color, religion, sex, national origin, age, of 29 CFR part 38 as well as the majority 87 Stat. 390 (29 U.S.C. 794); the Age or disability under all federal statutes, of the provisions in part 38. Discrimination Act of 1975, as executive orders, regulations, and Subpart A—General Provisions. This amended, Public Law 94–135, 89 Stat. policies that require equal employment subpart outlines the purpose and 728 (42 U.S.C. 6101 et seq.); and Title opportunity. CRC thus generally defers application of part 38, provides IX of the Education Amendments of to the EEOC’s interpretations of Title VII definitions, outlines prohibited bases 1972, as amended, Public Law 92–318, and other relevant employment laws as and forms of discrimination, and 86 Stat. 373 (20 U.S.C. 1681 et seq.). they apply to job applicants to and establishes CRC’s enforcement authority employees of recipients. Departmental Authorization and recipients’ nondiscrimination Pursuant to Executive Order 12250 obligations. Secretary’s Order 04–2000 delegates and Title VI, the DOJ is the lead federal authority and responsibility to CRC for Subpart B—Recordkeeping and Other Affirmative Obligations of Recipients. agency responsible for defining the developing, implementing, and nature and scope of the monitoring the Department’s civil rights This subpart sets forth the affirmative obligations of recipients and grant nondiscrimination prohibitions based enforcement program under all equal on, among other grounds, race, color, opportunity and nondiscrimination applicants, including the role of EO Officers, notice and communication and national origin in programs and requirements applicable to programs activities receiving federal financial and activities financially assisted and requirements, and the data and information collection and maintenance assistance. Thus, CRC defers to the conducted by the Department, including DOJ’s interpretations of Title VI Section 188 of WIA. Section 5 of the obligations of recipients. Subpart C—Governor’s regarding discrimination based on race, Secretary’s Order also authorizes the color, and national origin in programs Assistant Secretary for Administration Responsibilities to Implement the Nondiscrimination and Equal and activities receiving federal financial and Management, working through the assistance. Further, pursuant to ADA CRC Director, to establish and formulate Opportunity Requirements of the Workforce Innovation and Opportunity Title II, the DOJ is the lead federal all policies, standards, and procedures agency responsible for defining the for, as well as to issue rules and Act (WIOA). This subpart describes a Governor’s responsibilities to parameters of the nondiscrimination regulations governing, the enforcement and equal opportunity provisions of of statutes applying nondiscrimination implement the nondiscrimination and equal opportunity provisions of WIOA Title II of the ADA regarding State and and equal opportunity requirements to local government entities. programs and activities receiving and this part, including oversight and financial assistance from the monitoring of WIOA Title I-financially Developments in National Origin and Department.20 Section 5(A)(1)(j) of the assisted State Programs and Language Access Discrimination Order also delegates authority and development of a Nondiscrimination Jurisprudence assigns responsibility to CRC for ‘‘other Plan. Consistent with Title VI case law and similarly related laws, executive orders Subpart D—Compliance Procedures. the DOJ’s 2002 guidance on ensuring and statutes.’’ Thus, this delegation also This subpart describes procedures for equal opportunity and covers CRC’s enforcement of Section conducting compliance reviews, nondiscrimination for individuals who 188 of WIOA, and no new delegation is processing complaints, issuing are limited English proficient (LEP),23 necessary. determinations, and handling breaches of conciliation agreements. this final rule provides that recipients Interagency Coordination Subpart E—Federal Procedures for must not discriminate on the basis of The DOJ, under Section 1–201 of Effecting Compliance. This subpart national origin against individuals who Executive Order 12250,21 is responsible describes the procedures for effecting are LEP. for coordinating federal enforcement of compliance, including actions CRC is most nondiscrimination laws that apply authorized to take upon finding 23 U.S. Dep’t of Justice, Guidance to Federal to federally assisted programs and noncompliance when voluntary Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination compliance cannot be achieved, the Affecting Limited English Proficient Persons, 67 FR 20 65 FR 69184, Nov. 15, 2000. 41455, June 18, 2002 (hereinafter ‘‘DOJ 2002 LEP 21 45 FR 72995, Nov. 4, 1980. 22 43 FR 28967, July 5, 1978. Guidance’’).

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Title VI provides that ‘‘[n]o person in obligation.29 Executive Order 13166 Section 188 applies to some of these the United States shall, on the ground further directs that all such guidance entities in the employment context of race, color, or national origin, be documents be consistent with the because it prohibits discrimination in excluded from participation in, be compliance standards and framework employment in the administration of or denied the benefits of, or be subjected detailed in LEP Guidance issued by the in connection with WIOA Title I- to discrimination under any program or DOJ.30 The LEP provisions of this final financially assisted programs and activity receiving Federal financial rule are drawn from Title VI and its activities. The EEOC issued final assistance.’’ 24 Interpreting Title VI, the implementing regulations, and thus are regulations implementing the Supreme Court in Lau v. Nichols held consistent with, the DOJ 2000 and 2002 amendments to Title I of the ADA in that excluding LEP children from LEP Guidance. March 2011.34 effective participation in an educational Title II of the ADA applies to State Developments in Disability and local government entities, many of program because of their inability to Discrimination Jurisprudence speak and understand English which may also be recipients for constitutes national origin The Americans with Disabilities Act purposes of this rule, and, like subtitle discrimination.25 Courts have Amendments Act of 2008 amended the A of this part, protects qualified consistently found that a recipient’s ADA and the Rehabilitation Act, both of individuals with disabilities from failure to provide meaningful access to which apply, in distinct ways, to discrimination on the basis of disability LEP individuals violates Title VI’s different groups of recipients under this in services, programs, and activities prohibition of national origin rule. Consistent with Executive Order provided by State and local government 13563’s instruction to federal agencies 35 discrimination.26 Consequently, this entities. Title II extends the to coordinate rules across agencies and final rule provides that the definition of prohibition against discrimination harmonize regulatory requirements established by Section 504 of the national origin discrimination includes where appropriate, the final rule adopts Rehabilitation Act of 1973, as amended, discrimination based on limited English language consistent with the ADAAA 29 U.S.C. 794, to all activities of State proficiency. The final rule sets forth and corresponding revisions to the and local governments regardless of recipients’ compliance obligations for EEOC regulations implementing the whether these entities receive federal ensuring that LEP individuals have ADAAA provisions in Title I of the financial assistance 36 and requires meaningful access to WIOA programs ADA 31 compliance with the ADA Standards for and services. and the DOJ regulations implementing the ADAAA provisions in Accessible Design.37 The Department The final rule is also consistent with Title II and Title III of the ADA.32 The shares responsibility with the CRC guidance issued in 2003, advising final rule will promote consistent Department of Justice for implementing all recipients 27 of federal financial application of nondiscrimination the compliance procedures of Title II of assistance from the Department of Labor obligations across federal enforcement the ADA for components of State and of the Title VI prohibition against programs and accordingly enhance local governments that exercise national origin discrimination affecting compliance among entities subject to responsibilities, regulate, or administer LEP individuals.28 This 2003 U.S. WIOA Section 188 and the various titles services, programs, or activities Department of Labor (DOL) LEP of the ADA. The NPRM stated that, if ‘‘relating to labor and the work force.’’ 38 Guidance was issued pursuant to the DOJ changed its proposal in its final Title III of the ADA, enforced by the Executive Order 13166, which directed rule implementing ADA Titles II and III, DOJ, prohibits discrimination on the each federal agency that extends CRC would review those changes to basis of disability in the full enjoyment assistance subject to the requirements of determine their impact on this rule and of the goods, services, facilities, Title VI to publish guidance for its take appropriate action. After the NPRM privileges, advantages, or respective recipients clarifying that was published, DOJ issued its final rule accommodations of any place of public implementing ADA Titles II and III and accommodation by a person who owns, 24 42 U.S.C. 2000d. accordingly, CRC has reviewed the DOJ leases, or operates that place of public 39 25 414 U.S. 563, 568–69 (1974). rule. The resulting changes are accommodation. Title III applies to 26 See, e.g., Colwell v. Dep’t of Health & Human described below in the appropriate businesses that are generally open to the Servs., 558 F.3d 1112, 1116–17 (9th Cir. 2009) portions of the Section-by-Section public and that fall into one of twelve (noting that Lau concluded ‘‘discrimination against categories listed in the ADA, such as LEP individuals was discrimination based on Analysis. national origin in violation of Title VI’’); United Title I of the ADA prohibits private restaurants, day care facilities, and States v. Maricopa Cnty., 915 F. Supp. 2d 1073, employers with fifteen or more doctors’ offices,40 and requires newly 1079–80 (D. Ariz. 2012) (discussing Lau); Faith employees, State and local governments, constructed or altered places of public Action for Cmty. Equity v. Hawaii, No. 13–00450 accommodation—as well as commercial SOM/RLP, 2014 WL 1691622, at *14 (D. Haw. Apr. employment agencies, and labor unions 28, 2014) (Title VI intent claim was properly alleged from discriminating against qualified facilities (privately owned, by LEP plaintiffs when it was based on the individuals with disabilities in job nonresidential facilities such as ‘‘foreseeable disparate impact of the English-only factories, warehouses, or office policy,’’ allegedly pretextual justifications for the application procedures, hiring, firing, advancement, compensation, job buildings)—to comply with the ADA policy, and potentially derogatory comments by a 41 State agency). training, and other terms, conditions, Standards for Accessible Design. 27 In this instance, the term ‘‘recipient’’ is broader and privileges of employment.33 WIOA Many recipients are places of public than the definition at § 38.4(zz). See notes 13–17 accommodation and thus are subject to and accompanying text for an explanation of the 29 65 FR 50121, Aug. 11, 2000. term ‘‘recipient’’ with respect to WIOA Title I 34 30 Id.; see U.S. Dep’t of Justice, Enforcement of See EEOC Final Rule to Implement ADAAA, programs and activities. supra note 18. 28 Title VI of the Civil Rights Act of 1964—National U.S. Dep’t of Labor, Civil Rights Center, 35 See 42 U.S.C. 12131–12165. Enforcement of Title VI of the Civil Rights Act of Origin Discrimination Against Persons with Limited 36 See 42 U.S.C. 12132. 1964; Policy Guidance to Federal Financial English Proficiency, 65 FR 50123, Aug. 16, 2000. 31 37 42 U.S.C. 12134; see 28 CFR part 35. Assistance Recipients Regarding the Title VI See EEOC Final Rule to Implement ADAAA, 38 Prohibition Against National Origin Discrimination supra note 18. 28 CFR 35.190(b)(7). Affecting Limited English Proficient Persons, 68 FR 32 See DOJ Final Rule to Implement ADAAA, 39 42 U.S.C. 12182. 32290, May 29, 2003 (hereinafter ‘‘DOL LEP supra note 18. 40 42 U.S.C. 12181(7). Guidance’’). 33 42 U.S.C. 12101 et seq. 41 42 U.S.C. 12186; see 28 CFR part 36.

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Title III of the ADA and its accessible financial assistance in the context of the well-recognized principle that design standards. The DOJ issued covered employment. Nevertheless, the employment decisions made on the regulations in August 2016 which earlier WIA Section 188 regulations did basis of stereotypes about how males incorporated amendments to its ADA not refer specifically to pregnancy and females are expected to look, speak, Title II and Title III regulations, discrimination as a form of sex and act are forms of sex-based consistent with the ADAAA.42 discrimination. This final rule corrects employment discrimination, and it This final rule revises the 2015 rule that omission and sets out the standards applies that principle to the provision of consistent with the ADAAA and the that CRC will apply in enforcing the any aid, benefit, service, or training regulations issued by the EEOC, and prohibition against pregnancy through WIOA Title I programs and those proposed by the DOJ. The ADAAA discrimination, consistent with Title IX activities. The Supreme Court and its implementing and proposed and with Title VII as amended by the recognized in 1989 that an employer regulations make it easier for an PDA, in WIOA Title I-financially individual seeking protection under the assisted programs, activities, training, violates Title VII if its employees’ ADA to establish that the individual has and services. chances of promotion depend on a disability within the meaning of the Pregnancy discrimination remains a whether they fit their managers’ statute.43 This final rule incorporates significant issue. Between fiscal year preconceived notions of how men or the rules of construction set out in the 2001 and fiscal year 2013, charges of women should dress or act.48 As the ADAAA that specify that the definition pregnancy discrimination filed with the Supreme Court stated in Price of ‘‘disability’’ is to be interpreted EEOC and State and local agencies Waterhouse v. Hopkins, ‘‘we are beyond broadly, that the primary inquiry should increased from 4,287 to 5,797.45 In the day when an employer could be whether recipients have complied addition, a 2011 review of reported evaluate employees by assuming or with their statutory obligations, and that ‘‘family responsibility discrimination’’ insisting that they matched the the question of whether an individual’s cases (brought by men as well as stereotype associated with their impairment is a disability under the women) found that low-income workers group.’’ 49 In Price Waterhouse, the ADA should not demand extensive face ‘‘extreme hostility to pregnancy.’’ 46 Court held that an employer’s failure to analysis. This final rule also revises the The EEOC’s findings and related promote a female senior manager to definition of ‘‘disability’’ and its research are relevant to this rule because partner because of the decision-maker’s component parts, including ‘‘qualified the workforce development system is sex-stereotyped perceptions that she individual,’’ ‘‘reasonable the pipeline through which many was too aggressive and did not ‘‘walk accommodation,’’ ‘‘major life activity,’’ women find employment opportunities more femininely, talk more femininely, ‘‘regarded as having a disability,’’ and in the public and private sectors. dress more femininely, wear make-up, ‘‘physical or mental impairment’’ based on specific provisions in the ADAAA, as Discrimination Based on Sex have her hair styled, and wear jewelry’’ well as the EEOC’s regulations and the Stereotyping, Transgender Status, or was unlawful sex-based employment 50 DOJ’s regulations. For example, Gender Identity discrimination. The principle that sex consistent with the ADAAA, the final Sex stereotyping is one of the most stereotyping is a form of sex rule expands the definition of ‘‘major significant barriers to women’s ability to discrimination has been applied life activities’’ by providing a non- access services, benefits, training, consistently in subsequent Supreme exhaustive list of major life activities, programs, and employment in and Court and lower-court decisions.51 which specifically includes the through the workforce development Research demonstrates that widely held operation of major bodily functions. The system. Decades of social science social attitudes and biases can lead to final rule also includes rules of research have documented the extent to discriminatory decisions, even where construction that should be applied which sex stereotypes about the roles of when determining whether an women and men and their respective Steiner & Daniel Skarlicki eds., 2007); Susan impairment substantially limits a major capabilities in the workplace can Bruckmu¨ ller et al., Beyond the Glass Ceiling: The life activity. influence decisions about hiring, Glass Cliff and Its Lessons for Organizational training, promotions, pay raises, and Policy, 8 Soc. Issues & Pol. Rev. 202 (2014) Developments in Sex Discrimination (describing the role of sex stereotypes in the other terms and conditions of Jurisprudence workplace). employment.47 This final rule adopts 48 Price Waterhouse v. Hopkins, 490 U.S. 228 Pregnancy Discrimination (1989). 49 The final rule includes a section that 45 U.S. Equal Emp’t Opportunity Comm’n, Id. at 251 (plurality op.). Pregnancy Discrimination Charges, EEOC & FEPAs 50 Id. at 235. clarifies recipients’ existing obligation Combined: FY 1997–FY 2011, available at http:// 51 See, e.g., Nev. Dep’t of Human Res. v. Hibbs, to avoid discrimination based on www.eeoc.gov/eeoc/statistics/enforcement/ 538 U.S. 721 (2003) (stereotype-based beliefs about pregnancy, childbirth, and related pregnancy.cfm; see U.S. Equal Emp’t Opportunity the allocation of family duties on which state medical conditions as a form of sex Comm’n, Enforcement Guidance: Pregnancy employers relied in establishing discriminatory Discrimination and Related Issues (June 25, 2015), discrimination. Title IX’s prohibition of leave policies held to be sex discrimination under available at http://www.eeoc.gov/laws/guidance/ the Constitution); Prowel v. Wise Bus. Forms, Inc., _ discrimination on the bases of pregnancy guidance.cfm. 579 F.3d 285 (3d Cir. 2009) (harassment based on pregnancy and actual or potential 46 Stephanie Bornstein, Center for WorkLifeLaw, a man’s effeminacy); Chadwick v. Wellpoint, Inc., parental status applies to recipients UC Hastings College of the Law, Poor, Pregnant, 561 F.3d 38 (1st Cir. 2009) (making employment under Title I of WIOA and this part. In and Fired: Caregiver Discrimination Against Low- decision based on the belief that women with young Wage Workers 2 (2011), available at http:// children neglect their job responsibilities is addition, the Pregnancy Discrimination worklifelaw.org/pubs/PoorPregnantAndFired.pdf. unlawful sex discrimination); Terveer v. Billington, Act (PDA),44 enacted in 1978, governs 47 See, e.g., Susan Fiske et al., Controlling Other 34 F. Supp. 3d 100 (D.D.C. 2014) (hostile work the nondiscrimination obligations of a People: The Impact of Power on Stereotyping, 48 environment based on stereotyped beliefs about the program or activity receiving federal a.m. Psychol. 621 (1993); Marzarin Banaji, Implicit appropriate gender with which an individual Social Cognition: Attitudes, Self-Esteem and should form an intimate relationship). Cf. United Stereotypes, 102 Psychol. Rev. 4 (1995); Brian Welle States v. Virginia, 518 U.S. 515, 533 (1996) (in 42 See DOJ Final Rule to Implement ADAAA, & Madeline Heilman, Formal and Informal making classifications based on sex, State supra note 18. Discrimination Against Women at Work in governments ‘‘must not rely on overbroad 43 See 42 U.S.C. 12102(1). Managing Social and Ethical Issues in generalizations about the different talents, 44 42 U.S.C. 2000e(k). Organizations 23 (Stephen Gilliland, Dirk Douglas capacities, or preferences of males and females’’).

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there is no formal sex-based (or race- have also held that disparate treatment Consistent with the above based) policy or practice in place.52 of a transgender employee may jurisprudence, the final rule provides Transgender applicants and constitute discrimination because of the that complaints of discrimination based employees, the vast majority of whom individual’s non-conformity to sex on sex stereotyping, transgender status, report that they have experienced stereotypes.55 Indeed, there has ‘‘been a or gender identity will be recognized discrimination in the workplace, are steady stream of district court decisions and treated as complaints of sex particularly vulnerable to sex recognizing that discrimination against discrimination. discrimination, including sex transgender individuals on the basis of The NPRM further noted the growing stereotyping and its consequences.53 sex stereotyping constitutes number of federal courts recognizing The EEOC has recognized that claims of discrimination because of sex.’’ 56 that sexual orientation discrimination gender identity discrimination, Further, some courts have held that constitutes discrimination on the basis including discrimination grounded in discrimination on the basis of gender of sex when the discrimination is rooted stereotypes about how individuals identity constitutes discrimination in fundamental sex-based norms and express their gender, are claims of sex ‘‘because of’’ sex independent of a stereotypes.60 The EEOC has also discrimination under Title VII.54 Courts showing of discrimination on the basis concluded that ‘‘[d]iscrimination on the of failure to comport with sex basis of sexual orientation is premised 52 See, e.g., Kevin Lang & Jee-Yeon K. Lehmann, stereotypes.57 on sex-based preferences, assumptions, Racial Discrimination in the Labor Market: Theory As the NPRM noted, federal expectations, stereotypes, or norms.’’ 61 and Empirics (NBER Working Paper No. 17450, 2011), available at http://www.nber.org/papers/ contractors that operate Job Corps As explained more fully below in the w17450; Marianne Bertrand & Sendhil centers, which are covered by Section Section-by-Section Analysis of § 38.7(a) Mullainathan, Are Emily and Brendan More 188 and this part,58 may also be covered and new § 38.7(d)(10), which we now Employable than Lakisha and Jamal? A Field by the requirements of Executive Order Experiment on Labor Market Discrimination, 94(4) add to the rule, CRC concludes that Am. Econ. Rev. 991 (2004); Ian Ayres & Peter 11246, which expressly requires that Section 188’s prohibition of Siegelman, Race and Gender Discrimination in contractors meeting certain dollar discrimination on the basis of sex Bargaining for a New Car, 85(3) Am. Econ. Rev. 304 threshold requirements refrain from includes, at a minimum, sex (1995); Marc Bendick, Charles Jackson & Victor discrimination in employment based on Reinoso, Measuring Employment Discrimination discrimination related to an individual’s Through Controlled Experiments, 23 Rev. of Black sexual orientation and gender identity, sexual orientation where the evidence Pol. Econ. 25 (1994). as well as race, color, religion, national establishes that the discrimination is 53 Jaime M. Grant, Lisa M. Mottet & Justin Tanis, origin, and sex, and take affirmative based on gender stereotypes. National Center for Transgender Equality & action to ensure equal employment National Gay & Lesbian Task Force, Injustice at 59 Harassment Every Turn: A Report of the National Transgender opportunity. Discrimination Survey (2011), available at http:// This final rule includes a section to www.transequality.org/sites/default/files/docs/ 55 Barnes v. City of Cincinnati, 401 F.3d 729 (6th provide direction as to a recipient’s resources/NTDS_Report.pdf (hereinafter ‘‘Injustice Cir. 2005) (holding that transgender woman was a existing obligations regarding unlawful at Every Turn’’). member of a protected class based on her failure to harassment. Courts have recognized for 54 See Macy v. Dep’t of Justice, Appeal No. conform to sex stereotypes and thus her Title VII 0120120821, 2012 WL 1435995, at *10 (EEOC Apr. claim was actionable); Smith v. City of Salem, 378 many years that harassment based on 20, 2012), available at http://www.eeoc.gov/ F.3d 566, 575 (6th Cir. 2004) (‘‘discrimination protected categories may give rise to decisions/ against a plaintiff who is a transsexual—and violations of Title VI, Title VII, Section 0120120821%20Macy%20v%20DOJ%20ATF.txt therefore fails to act and/or identify with his or her (‘‘Although most courts have found protection for gender—is no different from the discrimination 504, and Title IX and that unlawful 62 transgender people under Title VII under a theory directed against [the plaintiff] in Price Waterhouse, harassment may take many forms. The of gender stereotyping, evidence of gender who, in sex-stereotypical terms, did not act like a stereotyping is simply one means of proving sex woman’’); see also Glenn v. Brumby, 663 F.3d 1312 regulations promulgated thereunder. See OFCCP discrimination.... Thus, a transgender person (11th Cir. 2011) (termination of a transgender Executive Order 13672 Final Rule, supra note 19. who has experienced discrimination based on his employee constituted discrimination on the basis of 60 See, e.g., Isaacs v. Felder Servs., No. or her gender identity may establish a prima facie gender non-conformity and sex-stereotyping 2:13cv693–MHT, 2015 WL 6560655, at *3–4 (M.D. case of sex discrimination through any number of discrimination under Equal Protection Clause). Ala. Oct. 29, 2015); Terveer v. Billington, 34 F. different formulations.’’). Other federal agencies 56 Macy, 2012 WL 1435995, at *9; see Michaels Supp. 3d 100, 116 (D.D.C. 2014); Koren v. Ohio Bell have issued guidance stating that Title VII’s or Title v. Akal Security, Inc., No. 09–cv–1300, 2010 WL Tel. Co., 894 F. Supp. 2d 1032, 1038 (N.D. Ohio IX’s prohibition against discrimination on the basis 2573988, at * 4 (D. Colo. June 24, 2010); Lopez v. 2012); Centola v. Potter, 183 F. Supp. 2d 403, 410 of sex includes claims of sex discrimination related River Oaks Imaging & Diagnostic Group, Inc., 542 (D. Mass. 2002); Heller v. Columbia Edgewater to a person’s gender identity or transgender status. F. Supp. 2d 653, 660 (S.D. Tex. 2008); Mitchell v. Country Club, 195 F. Supp. 2d 1212, 1224 (D. Or. See U.S. Dep’t of Justice & U.S. Dep’t of Educ., Dear Axcan Scandipharm, Inc., No. Civ. A. 05–243, 2006 2002); Videckis v. Pepperdine Univ., No. CV 15– Colleague Letter on Transgender Students (May 13, WL 456173 (W.D. Pa. Feb. 17, 2006); Tronetti v. TLC 00298, 2015 WL 8916764 (C.D. Cal. Dec. 15, 2015). 2016), available at http://www2.ed.gov/about/ HealthNet Lakeshore Hosp., No. 03–CV–0375E(SC), 61 Baldwin v. Dep’t of Transp., Appeal No. offices/list/ocr/letters/colleague-201605-title-ix- 2003 WL 22757935 (W.D.N.Y. Sept. 26, 2003); Doe transgender.pdf; Memorandum from Eric Holder, 0120133080, 2015 WL 4397641, at *5 (EEOC July v. United Consumer Fin. Servs., No. 1:01 CV 1112, 16, 2015); see also Complainant v. Dep’t of Attorney General, to U.S. Attorneys and Heads of 2001 WL 34350174 (N.D. Ohio Nov. 9, 2001). Department Components, Treatment of Transgender Homeland Sec., Appeal No. 0120110576, 2014 WL 57 See Schroer v. Billington, 577 F. Supp. 2d 293, Employment Discrimination Claims Under Title VII 4407422 (EEOC Aug. 20, 2014); Veretto v. U.S. 305–07 (D.D.C. 2008) (withdrawal of a job offer of the Civil Rights Act of 1964 (Dec. 15, 2014), Postal Serv., Appeal No. 0120110873, 2011 WL from a transgender applicant constituted available at https://www.justice.gov/file/188671/ 2663401 (EEOC July 1, 2011); Castello v. U.S. Postal download; U.S. Dep’t of Educ., Office for Civil discrimination ‘‘because of sex’’ in violation of Title Serv., Request No. 0520110649, 2011 WL 6960810 Rights, Questions and Answers on Title IX and VII, analogizing to cases involving discrimination (EEOC Dec. 20, 2011). Sexual Violence (Apr. 29, 2014) (available at http:// based on an employee’s religious conversion, which 62 See, e.g., Harris v. Forklift Sys., 510 U.S. 17 www2.ed.gov/about/offices/list/ocr/docs/qa- undeniably constitutes discrimination because of (1993) (sex); Meritor Sav. Bank v. Vinson, 477 U.S. 201404-title-ix.pdf. However, as of the date of religion under Title VII); see also Rumble v. 57 (1986) (sex); Zeno v. Pine Plains Cent. Sch. Dist., publication of this rule, these guidance documents Fairview Heath Servs., No. 14–cv–2037, 2015 WL 702 F.3d 655 (2d Cir. 2012) (race); Daniels v. Essex are among the ‘‘Guidelines’’ subject to a preliminary 1197415, at *10 (D. Minn. Mar. 16, 2015) (Section Grp., Inc., 937 F.2d 1264, 1274 (7th Cir. 1991) injunction order that prohibits the federal 1557 of the Affordable Care Act). (race); Rogers v. W.-S. Life Ins. Co., 792 F. Supp. government from ‘‘using the Guidelines or asserting 58 See § 38.2(b)(4). 628 (E.D. Wis. 1992) (race); Booth v. Houston, 58 the Guidelines carry weight in any litigation 59 Executive Order 13672, issued on July 21, F. Supp. 3d 1277 (M.D. Ala. 2014) (disability); initiated following the date of this Order.’’ Texas v. 2014, amended Executive Order 11246 to add Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 United States, No. 7:16–cv–00054–O, slip op. at 37 sexual orientation and gender identity as expressly (1998) (school can be held liable if a teacher (N.D. Tex. Aug. 21, 2016), ECF No. 58; see id. at protected bases, and applies to government sexually harasses a student); Davis v. Monroe Cnty. 3 n.4 (identifying the documents referred to in the contracts entered into or modified on or after April Bd. of Educ., 526 U.S. 629 (1999) (school can be order as the ‘‘Guidelines’’). 8, 2015, the effective date of OFCCP’s implementing Continued

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rule adds a section that sets out the Internet.67 Similarly, adults with Subpart E, Federal Procedures for prohibition against these various forms disabilities were significantly less likely Effecting Compliance, substitutes the of unlawful harassment. to use the Internet than adults without Administrative Review Board for the The U.S. Department of Education has disabilities.68 Secretary as the entity that issues final agency decisions, and makes several issued guidance interpreting the scope Subparts B Through E of prohibitions against sexual other technical revisions. Subpart B, Recordkeeping and Other harassment, including acts of sexual Benefits of the Final Rule violence, under Title IX that apply to Affirmative Obligations, includes WIOA Title I-financially assisted revisions to the written assurance The final rule will benefit both language that grant applicants are recipients and beneficiaries in several educational and training programs.63 required to include in their grant ways. First, by updating and clearly and Title IX protects individuals from applications, as well as revisions to the accurately stating the existing principles discrimination based on sex in sections regarding the role of EO of applicable law, the rule will facilitate education programs and activities that Officers and recipients’ responsibilities recipient understanding and receive federal financial assistance, to ensure that they designate recipient- compliance, thereby reducing incidents including WIOA Title I programs and level EO Officers with sufficient of noncompliance and associated costs activities that are education and training expertise, authority, staff, and resources incurred when noncompliant. Second, programs.64 The final rule incorporates to carry out their responsibilities, as the rule will benefit recipients’ language in Subpart A that reflects the well as Governors’ additional beneficiaries, employees, and job U.S. Department of Education’s responsibility to ensure that they applicants by allowing them to interpretation of the scope of Title IX’s designate State-level EO Officers with participate in programs and activities or prohibition against harassment based on sufficient expertise, authority, staff and work free from discrimination. sex. In doing so, this rule makes the resources to carry out their obligations. Importantly, recipients are already Department’s enforcement of current The final rule also changes the subject to the federal nondiscrimination legal standards consistent with those of requirements regarding data, and laws that these updated regulations another agency that regulates the same information collection and incorporate, so many of the new recipient community. maintenance, and revises the section on substantive nondiscrimination Increased Provision of Services Using outreach responsibilities of recipients. provisions do not impose new Technology, Including the Internet Changes to Subpart C, regarding obligations. Governors’ responsibilities to Third, this final rule will increase The increased integration of, and in implement the nondiscrimination and equality of opportunity in the workforce some instances complete shift to, online equal opportunity requirements of development system, which service delivery models in the WIOA, include changing the title of the encompasses thousands of applicants, workforce development system since Methods of Administration, the tool participants, beneficiaries, and 1999 required that the 1999 and 2015 used by Governors to implement their employees of recipients. For example, rules be updated to address the monitoring and oversight regarding discrimination on the basis of nondiscrimination and equal responsibilities, to ‘‘Nondiscrimination sex, the final rule clarifies that adverse opportunity implications raised by these Plan.’’ In addition, the final rule treatment of applicants to, beneficiaries changes. As of 2015, approximately 16 provides more direction about of, and participants in recipients’ WIOA percent of American adults did not use Governors’ responsibilities and CRC’s Title I programs and activities and their the Internet.65 Moreover, research procedures for enforcing those employees or applicants for suggests that a larger percentage of older responsibilities, thus addressing an employment because of gender identity individuals may not possess sufficient inadvertent gap in the existing or gender-based stereotypes constitutes knowledge and understanding of regulations. sex discrimination. By expressly computers and Web-based programs to Changes to Subpart D regarding recognizing that discrimination against be able to access information via a Web compliance procedures include an individual on the basis of gender site or file for benefits through an online language to strengthen the preapproval identity or transgender status is system.66 Additionally, as of 2015, 19 compliance review process by requiring unlawful sex discrimination, the final percent of Hispanic individuals Departmental grantmaking agencies to rule provides much-needed regulatory (including those who are proficient in consult with the Director of CRC to protection to transgender individuals, English) and 22 percent of Black, non- review whether CRC has issued a Notice the majority of whom report they have Hispanic individuals were not using the to Show Cause or a Final Determination experienced discrimination in the against an applicant that has been workplace.69 In addition, by providing held liable for failing to address a student’s sexual identified as a probable awardee. This that pregnant individuals may be harassment of another student). final rule also expands the situations entitled to accommodations when such 63 U.S. Dep’t of Educ., Office for Civil Rights, Dear under which CRC may issue a Notice to accommodations or modifications are Colleague Letter: Sexual Violence (Apr. 4, 2011), Show Cause, merges some of the available at http://www2.ed.gov/about/offices/list/ provided to similarly situated ocr/letters/colleague-201104.pdf; U.S. Dep’t of existing sections about the complaint individuals, this rule will protect Educ., Office for Civil Rights, Revised Sexual processing procedures for better pregnant employees, beneficiaries, Harassment Guidance: Harassment of Students by readability, and adds language to clarify applicants, and participants from losing School Employees, Other Students, or Third Parties, that any person or their representative jobs or access to educational and 66 FR 5512 (Jan. 19, 2001) (available at http:// may file a complaint based on www2.ed.gov/about/offices/list/ocr/docs/ training opportunities. shguide.pdf) (hereinafter ‘‘Revised Sexual discrimination and retaliation under Regarding discrimination on the basis Harassment Guidance’’). WIOA and this part. of national origin affecting LEP 64 20 U.S.C. 1681 et seq. individuals, the rule will improve LEP 65 Pew Research Center, Americans’ Internet 67 Id. individuals’ participation in the Access: 2000–2015 (June 26, 2015), available at 68 Pew Research Center, Digital Differences (Apr. http://www.pewinternet.org/2015/06/26/americans- 13, 2012), available at http://pewinternet.org/∼/ workforce development system by internet-access-2000-2015/. media//Files/Reports/2012/PIP_Digital_differences_ 66 Id. 041312.pdf. 69 Injustice at Every Turn, supra note 53.

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making the LEP requirements easier to with ‘‘the individual,’’ ’’person,’’ or Response: For the same reasons as understand and thus easier to other appropriate identifier wherever described above, and for the sake of implement. Recipients will find possible.70 The discussion in the consistency in avoiding gender-specific complying with the rule easier using preamble to the proposed rule referred terminology throughout the final rule, suggestions provided in the new only to the language that CRC used in CRC removes gender-specific appendix to the LEP regulation. the NPRM, not to any requirement terminology from the following Finally, the rule will benefit public imposed on recipients. CRC received provisions: §§ 38.4(q)(5)(iii)(C) understanding of the law. This focus on comments supporting and opposing this (replacing ‘‘he or she’’ with ‘‘the increasing public understanding is language usage. individual’’), 38.4(ff)(3)(ii)(A) (replacing consistent with section 6 of Executive Comments: Eight commenters—a ‘‘him or her’’ with ‘‘the individual’’), Order 13563, which requires agencies to group of ten advocacy organizations and 38.15(a)(4)(ii) (replacing ‘‘his or her’’ engage in retrospective analyses of their a union, five individual advocacy with ‘‘the individual’s’’), 38.16(h) rules ‘‘and to modify, streamline, organizations, and two health (replacing each instance of ‘‘his or her’’ expand, or repeal [such rules] in organizations—supported CRC’s use of with ‘‘the individual’s’’), 38.30 accordance with what has been gender-neutral language. Several of (replacing ‘‘he or she’’ with ‘‘the EO learned.’’ these commenters stated that Officer’’), 38.55(c)(2) (replacing ‘‘s/he’’ individuals who do not identify as male Minor Technical Corrections Made with ‘‘the Governor’’), 38.64(a) or female ‘‘face pervasive bias and Throughout the Rule (replacing ‘‘he or she’’ with ‘‘the misunderstanding, and often are unable Director’’), 38.69(a) (replacing ‘‘his/her’’ Throughout the final rule, CRC has to access benefits and services, with ‘‘the person’s’’), 38.81(d) (replacing made the following technical including those of WIOA [Title I]- ‘‘he or she’’ with ‘‘the Director’’), 38.83 corrections for the sake of accuracy, funded programs.’’ All eight (replacing ‘‘he or she’’ with ‘‘the clarity, and consistency. First, CRC organizational commenters applauded Director’’), 38.91(b)(3) (replacing ‘‘he or corrects internal numbering and CRC’s decision to avoid gender-specific she’’ with ‘‘the Governor’’), and references to other rules, and terminology in the language of the rule 38.115(c)(1) (replacing ‘‘he or she’’ with standardizes the form of internal cross- to signal that protection from ‘‘the Director’’). These changes are not references. Second, CRC avoids discrimination under WIOA applies to further addressed in the section-by- introducing and using abbreviations individuals regardless of gender. CRC section analysis. unnecessarily. Third, CRC uses the also received comments from multiple serial comma in lists of three or more individuals opposing CRC’s decision to II. Section-by-Section Analysis items. Fourth, CRC adds headings for avoid using gender-specific language. This Section-by-Section Analysis consistency and standardizes Many of these commenters’ objections describes each section in the proposed capitalization in text and headings, to gender-neutral language focused on rule and identifies and discusses the including lowercasing ‘‘one-stop’’ for the English language’s traditional use of significant comments received and any consistency with WIOA and capitalizing gendered pronouns; some individual changes made. ‘‘State’’ and ‘‘State Program.’’ Fifth, CRC commenters also expressed doubt uses hyphens and en dashes as regarding the existence of individuals Subpart A—General Provisions appropriate to clarify multiword who do not identify as male or female. General Comments modifiers (for example, ‘‘senior-level The majority of the individual employee,’’ ‘‘WIOA Title I-financially commenters who opposed CRC’s Comment: A professional association assisted’’). Sixth, where multiple bases decision to avoid gender-specific applauded the Department’s recognition are listed in an inclusive context, CRC terminology interpreted CRC’s decision of implicit prejudice and stereotyping uses ‘‘and’’ rather than ‘‘or’’ to clarify to be imposing a requirement on and encouraged the Department to that all of the listed bases are included recipients to do the same, at a high cost. provide training for WIOA staff to (for example, ‘‘including pregnancy, Response: CRC retains the use of ensure that there is an understanding of childbirth, and related medical gender-neutral language in the final rule these issues when designing vocational conditions’’). because it agrees with the organizational training programs. Finally, in the proposed rule, CRC at commenters on this issue that it is Response: CRC agrees that training times used the word ‘‘any’’ prior to the appropriate for the final rule to signal WIOA staff to understand implicit list of singular terms ‘‘aid, benefit, that protection from discrimination prejudice and stereotyping is a best service, or training’’ and at other times under WIOA applies to individuals of practice, but declines to explicitly did not use the word ‘‘any,’’ even all genders. CRC clarifies that this rule mandate a specific level of training in though the list of terms was not does not impose any obligation (or cost) the final rule. Each recipient is intended to be specific. In the final rule, on recipients to use gender-neutral responsible for ensuring compliance where the singular terms ‘‘aid, benefit, language. with its obligations under WIOA and service, or training’’ are used in a Comments: In addition to the this part, including determining the nonspecific context, CRC adds the word supportive comments they submitted as appropriate types and frequency of staff ‘‘any.’’ CRC has made these changes described above, five individual training. only for correctness and consistency advocacy organizations and two health Comment: An advocacy organization and intends no substantive changes by organizations suggested that CRC encouraged the Department to focus making them. remove any remaining instances of ‘‘he attention on older workers in the These changes are not further or she,’’ ‘‘him or her,’’ and ‘‘his or her’’ workforce development system. The addressed in the section-by-section throughout the rule. commenter stressed that older workers analysis. face significant barriers including skill 70 U.S. Dep’t of Labor, Office of the Sec’y, and technological deficits compared to Comments on Gender-Neutral Language Implementation of the Nondiscirmination and their younger counterparts. Usage Throughout the Rule Equal Opportunity Provisions of the Workforce Innovation and Opportunity Act; Proposed Rule, 81 Response: Under WIOA and this part, The preamble to the proposed rule FR 4494, 4495, Jan. 26, 2016 (hereinafter ‘‘CRC recipients are required to comply with explained that replaced ‘‘he or she’’ WIOA NPRM’’). their equal opportunity and

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nondiscrimination obligations on a One-Stop partner, to the extent that the Response: Under WIOA and this part, variety of bases, including age. We employment is in the administration of these regulations apply to each understand the commenter’s concerns, or in connection with programs and recipient. The term ‘‘recipient’’ includes but decline to emphasize compliance in activities that are being conducted as a every one-stop partner listed in WIOA any one area over other areas. part of WIOA Title I or the One-Stop section 121(b) 77 whenever the partner Comment: In a joint comment, two delivery system.’’ That limitation operates or conducts programs or individuals objected to the NPRM’s tracked the statutory provision in activities that are part of the one-stop proposal to replace ‘‘on the grounds of’’ Section 188(a)(2) of WIOA.75 CRC also delivery system.78 As discussed with ‘‘on the basis of’’ before listing the proposed deleting § 38.2(b)(5) of the below,79 in most cases required and protected categories in the rule, such as 2015 rule, so that federally operated Job additional partners will be monitored by race, color, religion, or sex. The Corps Centers would be included within the State-level EO Officer in addition to commenters asserted that ‘‘on the the requirements of this part. CRC their own recipient-level EO Officers for grounds of’’ is a legal term and that use received several comments on this compliance with WIOA and this part.80 of ‘‘on the basis of’’ is deceptive. section. Regarding the question of colocation, Response: CRC disagrees that the term Comment: A union asked for this final rule covers all one-stop ‘‘on the basis of’’ is deceptive. That clarification of the duties for which it is partners (both required partners and phrase is a legal term of art that signals individually responsible, as a national additional partners) regardless of for which categories discrimination is training contractor, and for which it is whether a partner is colocated within a prohibited. It is widely used in jointly responsible with other parties, one-stop center. Section 188(b) of WIOA regulations and cases addressing including Job Corps Outreach and requires the Secretary to enforce the antidiscrimination laws, and it is Admissions contractors, Center equal opportunity and specifically used in WIOA Section Directors, and others. The commenter nondiscrimination provisions of WIOA 188(a). Therefore, it is appropriate to stated that its responsibilities are not with respect to all States and other use in this rule. clear in light of the oversight and recipients. One-stop partners, other than direction by Job Corps Centers, regional one-stop partners that are National Purpose § 38.1 offices, and the National office, as well Programs, are a part of State Programs Proposed § 38.1 retained the purpose as the responsibilities contractually to which WIOA Section 188 applies.81 of the 1999 and 2015 rules: ‘‘to assigned to other contractors. Accordingly, these regulations include implement the nondiscrimination and Response: Each recipient, as defined one-stop partners as recipients that are equal opportunity provisions’’ of WIOA in § 38.4(zz), is individually responsible subject to the nondiscrimination and Section 188.71 CRC made minor for complying with WIOA Section 188 equal opportunity requirements of this revisions, such as replacing ‘‘on the and these implementing regulations. Job part, to the extent that they participate grounds of’’ with ‘‘on the basis of’’ to be Corps national training contractors are in the one-stop delivery system. This consistent with nondiscrimination recipients, which must designate a result does not change because a partner language in other Department civil recipient-level Equal Opportunity is not colocated with a one-stop center. rights regulations. Officer who will ensure that the training One-stop centers are not just a physical Comment: An individual commenter contractor and its subrecipients (if any) location, but may also include a larger opposed the rule, reasoning that the are not in violation of their equal electronic network. Regardless of broad scope of prohibited opportunity and nondiscrimination location, recipients, including one-stop discrimination would lead to divisions obligations.76 Those obligations include partners that operate programs and in our society. outreach and admissions under § 38.5 activities that are part of the one-stop Response: It is beyond the scope of generally and § 38.40 specifically. While delivery system, are subject to these CRC’s authority to refuse to implement recipients may work cooperatively to regulations. Section 188 of WIOA.72 ensure equal opportunity and Comment: Several advocacy CRC finalizes § 38.1 as proposed, with nondiscrimination, each recipient must organizations supported deletion of the the following technical edits: correcting continue to individually evaluate the statutory reference in footnote 1 and whether such collaborative efforts are 77 Section 38.4(zz) (‘‘for purposes of this part, making minor technical modifications sufficient. All recipients, including Job one-stop partners, as defined in section 121(b) of WIOA, are treated as ‘recipients,’ and are subject to to clarify the list of protected bases, as Corps national training contractors, are the nondiscrimination and equal opportunity discussed below in connection with ultimately responsible for equal requirements of this part, to the extent that they § 38.5. opportunity and nondiscrimination participate in the one-stop delivery system’’). compliance under WIOA regarding all 78 See § 38.2(a)(2) (part 38 applies to ‘‘[p]rograms Applicability § 38.2 and activities that are part of the one-stop delivery aspects of their own programs, system and that are operated by one-stop partners Proposed § 38.2 explained to which activities, and covered employment. . . . to the extent that the programs and activities entities part 38 applies, including Comment: A State agency asked about are being conducted as part of the one-stop delivery recipients 73 and programs and activities partner agencies in the one-stop system, system’’). operated by one-stop 74 partners that are specifically if all sections of the 79 See infra discussion of §§ 38.28 and 38.29. 80 One-stop partners are not required to designate part of the one-stop delivery system. regulations apply to every partner, and a separate EO Officer if the partner is a service Proposed § 38.2(a)(3) revised the 2015 whether the partner agencies will be provider under § 38.4(ggg) (in which case the State- rule to limit covered employment monitored by the Equal Opportunity level EO Officer and/or the LWDA’s grant practices to those ‘‘of a recipient and/or Officer for compliance with WIOA recipient’s EO Officer has this responsibility under § 38.33); if the partner is a small recipient (in which Section 188. The commenter case the partner designates a responsible individual 71 Previously WIA Section 188. recommended against requiring all under § 38.32); or if, under the structure of the 72 See 29 U.S.C. 3248(e). partner agencies to comply with the Governor’s § 38.54 Nondiscrimination Plan, the 73 See § 38.4(zz). regulations unless colocated within a State-Level EO Officer is the partner’s EO Officer. 74 One-stop career centers are designed to provide one-stop center. 81 National Programs are otherwise covered by a full range of assistance to job seekers under one WIOA Section 188 and this part. See §§ 38.4(jj) roof. The centers offer training referrals, career (defining ‘‘National Programs’’) and 38.4(zz)(12) counseling, job listings, and similar employment- 75 29 U.S.C. 3248(a)(2). (defining ‘‘recipients’’ to include National related services. 76 See §§ 38.4(zz)(9), 38.28(b), and 38.31. Programs).

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current exclusion of federally operated additional obligations that compliance Babel Notice Job Corps Centers from the application with this part does not affect. The proposed rule added a definition of the provisions of part 38. The Several advocacy organizations for ‘‘Babel notice’’ in § 38.4(i). A Babel commenters stated that this change is supported the clarification that these notice is a short notice in multiple important to ensure the uniform regulations do not limit the remedies, languages informing the reader that the applicability of nondiscrimination and rights, and procedures under federal, document (e.g., application form, equal opportunity requirements State, or local law that provide equal or consent form, notice of rights and throughout the Job Corps system and to greater protection than the regulations. responsibilities) or electronic media provide a mechanism to address The commenters appreciated federal (e.g., Web site, ‘‘app,’’ email) contains complaints that arise in federally recognition of States’ and localities’ vital information, and explaining how to operated Job Corps Centers. interests in promoting access language services to have the Response: CRC agrees with the nondiscrimination and equal contents of the document or electronic commenter and believes that adopting employment opportunity. media provided in other languages. CRC the NPRM’s proposed change from the CRC finalizes the provisions in § 38.3 proposed adding this definition because 1999 and 2015 rules will ensure equal as proposed, with the exception of one Babel notices are an integral tool for opportunity and nondiscrimination in technical change, replacing ensuring that recipients meet their the entire Job Corps program. As ‘‘incorporated into this part by nondiscrimination and equal explained in the NPRM, this change is reference’’ with ‘‘adopted by this part’’ opportunity obligations under WIOA consistent with WIOA Section 188(d), in paragraph (b). and this part regarding LEP individuals. which does not distinguish between In the proposed rule, CRC sought federally operated and privately Definitions § 38.4 comment on this definition. operated Job Corps centers, as well as The proposed rule retained the Several advocacy organizations with the Department of Agriculture’s majority of the definitions contained in expressed support for the inclusion of a approach for a number of years to the 1999 and 2015 rules. Revisions in definition for ‘‘Babel notice’’ to codify nondiscrimination and equal proposed § 38.4 included updating and clarify the intention of these opportunity in the Job Corps centers it existing definitions consistent with notices, specifically with respect to operates.82 The change also makes our applicable law and adding new individuals who are limited English rule consistent with another of the definitions, as discussed in the proficient. Department’s final rules implementing preamble to the proposed rule. The Comment: An advocacy organization WIOA, which requires that, when the discussion below addresses only those recommended that the definition of Secretary of Labor enters into an proposed definitions on which CRC ‘‘Babel notice’’ be revised to specify that agreement with the Secretary of received substantive comments. For the alternate formats are available as an Agriculture for the funding, reasons discussed in the NPRM, CRC accommodation through the recipient at establishment, and operation of adopts without modification all of the no cost to the beneficiary. federally operated Job Corps centers, proposed definitions not addressed Response: We appreciate the provisions are included to ensure that below. commenter’s concern; however, the the Department of Agriculture complies Babel notice is a safeguard against with the regulations under 20 CFR 686, Aid, Benefit, Service, or Training national origin discrimination against including nondiscrination obligations LEP individuals. Alternate formats are under Section 188 of WIOA.83 CRC received no comments on the addressed in § 38.15 regarding In § 38.2(b)(1), CRC clarifies that definition of ‘‘aid, benefit, service, or communications with individuals with ‘‘Department’’ means the U.S. training’’ in § 38.4(b) but is reorganizing disabilities. Nevertheless, we agree with Department of Labor. Effect on Other the definition to clarify its parts. No the commenter that it is important to Obligations § 38.3 substantive changes are intended by the Proposed § 38.3 described the reorganization. notify individuals with disabilities of their right to request materials in relationship between this rule and other Auxiliary Aids or Services laws that may apply to recipients. To accessible formats, and of their right to establish parity with parallel provisions Proposed § 38.4(h) revised the equally effective communication with in other federal nondiscrimination definition of ‘‘auxiliary aids or services’’ recipients. For this reason, CRC amends regulations,84 proposed § 38.3 added a to include new technology alternatives the equal opportunity notice in § 38.35 proviso that ‘‘This part does not that have become available since the to add two sentences alerting invalidate or limit the obligations, 1999 rule, such as video remote individuals with disabilities of their remedies, rights and procedures under interpreting (VRI) services and real-time right to request auxiliary aids and any Federal law, or the law of any State computer-aided transcription services. services at no cost. or political subdivision, that provides This provision mirrors the definition of For the reasons described in the equal or greater protection for the rights ‘‘auxiliary aids and services’’ in the DOJ proposed rule and considering the of persons as compared to this part.’’ In regulations implementing Title II of the comments received, we are finalizing addition, § 38.3 proposed adding ADA.86 CRC received three comments the definition proposed in § 38.4(i) Executive Order 13160 85 to the supporting the new definition, with one without modification, except for minor commenter noting that the rule provides technical corrections to capitalization. 82 U.S. Dep’t of Agric., Forest Service, WO/Civil guidance for personnel not familiar in Disability Rights Staff, Reference Guide, Key EEO and Civil working with individuals with sensory Rights Laws, Statutes, and Regulations (April 2010). disabilities. Accordingly, CRC adopts Proposed § 38.4(q) updated the 83 U.S. Dep’t of Labor, Emp’t & Training Admin., § 38.4(h) as proposed. definition of ‘‘disability’’ to reflect the Workforce Innovation and Opportunity Act; Final changes made by the ADA Amendments Rule, 81 FR 56072, Aug. 19, 2016. 87 84 See, e.g., 41 CFR 60–741.1(c)(3). sexual orientation, or status as a parent in federally Act of 2008 and to make the 85 65 FR 39775, June 27, 2000. Executive Order conducted education and training programs and 13160 prohibits discrimination on the basis of race, activities. 87 42 U.S.C. 12101 et seq., Public Law 110–325, sex, color, national origin, disability, religion, age, 86 See 28 CFR 35.104. 122 Stat. 3553 (2008).

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definition consistent with subsequent Title II regulations to implement the disability advocacy organizations EEOC regulations 88 and proposed DOJ ADAAA. supporting this provision and adopts it regulations 89 to implement the Proposed § 38.4(q)(3) revised the without change in the final rule, with ADAAA. CRC received two general definition of ‘‘physical or mental the exception of replacing ‘‘covered comments supporting these changes and impairment,’’ in the definition of entity’’ with ‘‘recipient’’ in proposed adopts them as proposed, with minor disability, to add ‘‘immune, circulatory’’ § 38.4(q)(5)(i)(C) (renumbered technical revisions. In addition, as we to the body systems listed in proposed § 38.4(q)(5)(i)(B) in the final rule), proposed to do in the NPRM,90 the final § 38.4(q)(3)(A) (renumbered replacing ‘‘entities’’ with ‘‘recipients’’ in rule makes numbering and minor § 38.4(q)(3)(i)(A) in the final rule); to § 38.4(q)(5)(ii), and making minor editing and wording changes to § 38.4(q) add ‘‘pregnancy-related medical technical changes to conform with DOJ’s 93 to conform in most instances to DOJ’s conditions’’ to § 38.4(q)(3)(ii); to add ADA Title II regulations to implement August 2016 regulations to implement ‘‘intellectual disability’’ (formerly the ADAAA. The order of the the ADAAA.91 We address the changes termed ‘‘mental retardation’’ in the 1999 paragraphs within § 38.4(q)(5) in the the final rule makes to each proposed and 2015 rules) to § 38.4(q)(3)(i)(B); and final rule was changed to be consistent paragraph of § 38.4(q) in turn. to add dyslexia to ‘‘specific learning with the paragraph order in DOJ’s ADA Consistent with the ADAAA, the disabilities’’ in § 38.4(q)(3)(ii). In Title II regulations to implement the EEOC regulations implementing the addition, this final rule adds ‘‘Attention ADAAA, and to minimize any Deficit Hyperactivity Disorder’’ (ADHD) ADAAA, and now with DOJ’s ADA Title confusion. II regulations implementing the in § 38.4(q)(3)(ii). This update to the Proposed § 38.4(q)(6) updated the ADAAA, proposed § 38.4(q)(1)(ii) definition of ‘‘physical or mental definition of an individual with ‘‘[a] (renumbered § 38.4(q)(2) in the final impairment’’ substantially conforms to record of such an impairment’’ to rule) set forth rules of construction that the definition in DOJ’s ADA Title II 94 include an individual that has a history provided the standards for application regulations to implement the ADAAA. of, or has been misclassified as having, of the definition of disability. CRC CRC received one comment from a a mental or physical impairment that received a comment from a State agency coalition of disability advocacy under a related definition, § 38.4(yy) organizations supporting this provision substantially limits one or more major (reasonable accommodation), that using and adopts it without change in the life activities. This is the same language the term ‘‘covered entity’’ rather than final rule, except for the addition of used by the EEOC in its implementing ADHD and minor technical changes to regulations.98 The DOJ regulations have ‘‘recipient’’ was confusing. CRC agrees 99 and, as discussed below, replaces conform with DOJ’s ADA Title II identical language. CRC received no ‘‘covered entity’’ with ‘‘recipient’’ regulations to implement the ADAAA. comments on this provision and adopts Proposed § 38.4(q)(4) added to the throughout the final rule.92 Since the it without change in the final rule, definition of disability a new definition term ‘‘covered entity’’ appeared here in except for minor technical changes to for ‘‘major life activities’’ that is proposed § 38.4(q)(1)(ii)(B) (renumbered conform with DOJ’s ADA Title II consistent with the provisions in the § 38.4(q)(2)(iii) in the final rule) and regulations to implement the ADAAA. ADAAA,95 and regulations promulgated § 38.4(q)(5)(i)(C) (renumbered Proposed § 38.4(q)(7) revised the term by the EEOC 96 and now with the DOJ § 38.4(q)(5)(i)(B) in the final rule), CRC ‘‘is regarded as having such an regulations to implement the ADAAA.97 is replacing that term with ‘‘recipient’’ impairment’’ to conform to the CRC received two comments supporting to ensure consistency. ADAAA.100 The new definition clarifies this provision and adopts it without that illegal disability discrimination Consistent with the ADAAA, the change in the final rule, except to add includes discrimination ‘‘because of an EEOC regulations implementing the ‘‘writing’’ to the list of major life actual or perceived physical or mental ADAAA, and now with DOJ’s ADA Title activities to conform with DOJ’s ADA II regulations to implement the ADAAA, Title II regulations to implement the impairment.’’ CRC received one proposed § 38.4(q)(2) (renumbered ADAAA, and to make minor technical comment from a coalition of disability § 38.4(q)(2)(i) in the final rule) required changes consistent with those DOJ advocacy groups supporting this that the definition of disability be regulations. provision. In accordance with the other construed in favor of broad coverage of Proposed § 38.4(q)(5) added rules of changes noted earlier, the term ‘‘covered individuals with disabilities. CRC construction when determining whether entity’’ is replaced with ‘‘recipient’’ in received no comments on this provision an impairment ‘‘substantially limits’’ an § 38.4(q)(7)(ii) and (iii). The final rule and adopts it without change in the individual in a major life activity. CRC also makes minor technical changes in final rule, except for minor technical received two supportive comments from the text to conform with DOJ’s ADA changes to conform with DOJ’s ADA Title II regulations to implement the 93 See DOJ Final Rule to Implement ADAAA, ADAAA. Additionally, the final rule 88 29 CFR part 1630. supra note 18, at 53227. makes substantive conforming changes 89 U.S. Dep’t of Justice, Office of the Attorney 94 28 CFR 35.108(b). Although DOJ did not to § 38.4(q)(7)(i) (adding the qualifier General, Amendment of Americans with include the example ‘‘pregnancy-related medical ‘‘even if the recipient asserts, or may or Disabilities Act Title II and Title III Regulations to conditions’’ in its regulatory definition of ‘‘physical Implement ADA Amendments Act of 2008; or mental impairment,’’ its inclusion in this final ultimately does establish, a defense to Proposed Rule, 79 FR 4839, Jan. 30, 2014. The rule is consistent with DOJ’s explanation that the action prohibited by WIOA Section Department of Justice has since issued its final rule. pregnancy-related medical impairments may be 188 and this part’’), and to See DOJ Final Rule to Implement ADAAA, supra disabilities. See DOJ Final Rule to Implement § 38.4(q)(7)(ii) (adding an explanatory note 18. ADAAA, supra note 18, at 53227 (while pregnancy 90 CRC WIOA NPRM, supra note 70, at 4497. itself is not an impairment, a pregnancy-related sentence regarding the ‘‘transitory and 91 See DOJ Final Rule to Implement ADAAA, impairment may meet the definition of ‘‘disability’’ minor’’ exception). This new language supra note 18, at 53223–53225. under any prong—‘‘actual,’’ ‘‘record of,’’ or in the final rule is modeled on the 92 CRC is replacing ‘‘covered entity’’ with ‘‘regarded as’’). CRC notes that no example on this language in DOJ’s ADA Title II ‘‘recipient’’ in two sections: In the definition of list will be a disability unless it meets all the ‘‘disability’’ in § 38.4(q) and in the definition of definitional criteria. ‘‘reasonable accommodation’’ in § 38.4(yy). CRC is 95 42 U.S.C. 12102(2). 98 29 CFR 1630.2(k)(1). also replacing ‘‘entities’’ with ‘‘recipients’’ in 96 29 CFR 1630.2(i). 99 28 CFR 35.108(e)(1). § 38.4(q)(5)(ii). 97 28 CFR 35.108(c). 100 42 U.S.C.12102(3).

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regulations to implement the apply throughout the rule and is not § 38.4(aa) with the modification noted ADAAA.101 limited to any particular basis of above. discrimination. Furthermore, where Employment Practices Individual With a Disability appropriate, the section that focuses on The NPRM made no substantive discrimination based on sex Proposed § 38.4(ff) made minor changes to the definition of encompasses the organizations’ changes to the definition of ‘‘individual ‘‘employment practices’’ in § 38.4(s). suggestions in the WIOA context, such with a disability.’’ That provision, Comment: A coalition of eighty-six as § 38.7(c)’s prohibition against policies consistent with the 1999 and 2015 rules, women’s, workers’, and civil rights and practices that have a discriminatory mostly defined the term by listing organizations commended CRC for effect. Finally, CRC reiterates that the examples of conditions that the ADA recognizing, in proposed § 38.4(s)(6), scope of this rule regarding employment excludes from the definition of that covered employment practices practices is limited to any program or ‘‘individual with a disability.’’ CRC include ‘‘deciding rates of pay or other activity that is operated by a recipient, proposed changes to be consistent with forms of compensation.’’ Focusing on including a one-stop partner, to the the ADAAA and the implementing 105 discrimination based on sex, the extent that the employment is in the regulations issued by the EEOC and organizations observed that ‘‘women are administration of or in connection with now with regulations issued by the 106 still paid less than men in nearly every programs and activities that are DOJ. occupation.’’ The organizations financially assisted under WIOA Title I, Comment: Two commenters recommended that CRC adopt including those that are part of the one- expressed general support for the provisions similar to those in the stop delivery system.103 For these proposed rule’s definition of an section devoted to compensation in reasons, CRC declines to make the ‘‘individual with a disability.’’ However, OFCCP’s proposed rule Discrimination suggested changes to proposed several commenters, in nearly identical on the Basis of Sex.102 In addition, the comments, encouraged CRC to remove § 38.4(s)(6). organizations asked CRC to explain that the explicit proposed exclusion of ‘‘factors other than sex relied upon in Governor ‘‘transvestism, transsexualism, or gender determining compensation must be job- dysphoria not resulting from physical related, consistent with business Proposed § 38.4(aa) defined the term impairments.’’ Their comments were necessity, and account for the entire pay ‘‘Governor’’ as ‘‘the chief elected official particularly focused on the gender differential’’; to ‘‘advise that prior pay of any State, or the Governor’s dysphoria exclusion. One professional matching should be a rare occurrence’’; designee.’’ CRC received one comment association reasoned that current, and to ‘‘clarify that punitive pay secrecy on this definition. mental health nomenclature includes policies that interfere with enforcement Comment: A State employment these conditions as part of the spectrum of wage discrimination protections agency commented that the proposed of valid mental health conditions and violate antidiscrimination law.’’ Finally, definition of ‘‘Governor’’ is in direct their exclusion is a legacy of they suggested that the rule state that conflict with the WIOA statutory misunderstanding of gender-related nondiscrimination in compensation definition and therefore in violation of concerns. Several advocacy based on sex is required with regard not Section 5 of Title 5 of the United States organizations recognized the language only to employees employed in the Code. The commenter recommended as consistent with the ADA but administration of WIOA programs but that the proposed definition be revised nonetheless recommended the deletion also to any participants and applicants to match the statutory definition. of this language to reflect the evolving who receive remuneration. Response: In response to that scientific evidence suggesting that Response: CRC believes that the comment, CRC revises the regulatory gender dysphoria may have a physical organizations’ suggestions do not definition of Governor to more closely basis and that the terms ‘‘disability’’ and comport with the structure of this rule. track the parallel portion of the statutory ‘‘physical impairment’’ should be read Proposed § 38.4(s) is intended only to definition. This modification is also broadly. define ‘‘employment practices’’ for the consistent with ETA’s definition of Response: The exclusion of purposes of this rule, not to impose ‘‘Governor’’ in its final rule transvestism and transsexualism from substantive nondiscrimination implementing WIOA.104 the definition of disability is a statutory 107 obligations. Accordingly, § 38.4(s) is a CRC, however, retains the language exclusion under the ADA and 108 nonexhaustive list of employment from its definition in the 1999 and 2015 Section 504, and it is beyond CRC’s practices defining the term as it is used rules that the term ‘‘Governor’’ includes scope of authority to remove this 109 elsewhere in the rule, for example, in ‘‘the Governor’s designee.’’ This exclusion. With respect to gender the enunciation of the employment departure from the statutory definition dysphoria, CRC notes that it proposed to nondiscrimination principle in § 38.18. is appropriate as the term relates to the use that term because the fifth edition None of the eight employment practices nondiscrimination and equal of the Diagnostic and Statistical Manual listed in § 38.4(s) are elaborated on in opportunity provisions found at 29 CFR of Mental Disorders replaced the the way the organizations suggested part 38. Governors should continue to diagnostic term ‘‘gender identity CRC do with regard to paragraph (s)(6). have flexibility to designate an disorder’’ with the term ‘‘gender Moreover, to the extent that the individual to carry out the Governor’s dysphoria.’’ However, CRC notes that organizations’ suggestions are specific to obligations to ensure all State Programs’ the precise term used in the ADA and sex discrimination, CRC notes that the compliance with the nondiscrimination Section 504 is ‘‘gender identity definition of ‘‘employment practices’’ and equal opportunity obligations of 105 proposed in § 38.4(s) is intended to WIOA and this part. Accordingly, CRC 29 CFR 1630.3. 106 28 CFR 35.108(g). adopts the definition proposed in 101 28 CFR 35.108(f). 107 42 U.S.C. 12211(b)(1). 102 U.S. Dep’t of Labor, Office of Fed. Contract 108 29 U.S.C. 705(20)(F)(i). Compliance Programs, Discrimination on the Basis 103 This limitation is spelled out in § 38.18 of this 109 However, as discussed in other sections of this of Sex; Proposed Rule, 80 FR 5246, 5278, Jan. 30, final rule and tracks the provision in Section rule, Section 188’s prohibition of discrimination on 2015 (hereinafter ‘‘OFCCP Sex Discrimination 188(a)(2) of WIOA, 29 U.S.C. 3248(a)(2). the basis of sex includes discrimination because of NPRM’’); see 41 CFR 60–20.4. 104 29 CFR 651.10. transgender status or gender identity. See § 38.7(a).

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disorders not resulting from physical implementing Title VI to ensure revision in the proposed definition to impairments.’’ 110 The commenters’ consistency. accommodate future technology reasoning for objecting to the exclusion Several advocacy organizations advances. Specifically, the commenter of gender dysphoria was that modern expressed support for the proposed suggested that CRC add ‘‘motors, or medical consensus considers gender definition of ‘‘limited English proficient methods of propulsion,’’ so that the first dysphoria as resulting from physical (LEP) individual’’ to ensure that it is part of the definition reads: ‘‘Other impairments. In response to these consistent with legal decisions power-driven mobility device means comments and in accordance with the interpreting the scope of national origin any mobility device powered by ADA and Section 504, CRC revises discrimination under Title VI of the batteries, fuel, or other engines, motors, § 38.4(ff) in the final rule to use the Civil Rights Act of 1964 and the DOJ or methods of propulsion . . . .’’ exact statutory term 111 rather than regulations implementing Title VI. Response: CRC agrees with the second ‘‘gender dysphoria.’’ Individuals with Further, the commenters stated that the commenter that the definition should be gender identity disorders resulting from proposed definition will help maximize revised to allow for future technology physical impairments may be covered access to WIOA Title I employment and advances, but believes that the language under the definition of an individual training programs for job seekers and suggested by the commenter may be too with a disability (assuming they meet workers that are LEP. CRC’s response to limiting. Therefore, CRC has revised the the other definitional criteria). one comment is addressed below. proposed definition in the final rule to Comment: One advocacy organization add ‘‘or by other similar means’’ after Limited English Proficient (LEP) commented that it is not clear from the the list of power sources for the devices. Individual definition of LEP whether this includes Programmatic Accessibility In § 38.4(hh), the final rule includes a individuals with sensory impairments, definition for ‘‘limited English who are Deaf or hard of hearing and Since WIOA requires recipients to proficient (LEP) individual.’’ The communicate using American Sign comply with this rule and the proposed definition of ‘‘limited English Language, have speech impairments, or applicable provisions of the ADA proficient (LEP) individual’’ was ‘‘an who are blind or have visual regarding the physical and individual whose primary language for impairments. programmatic accessibility of facilities, communication is not English and who Response: Proposed § 38.4(hh) was programs, services, technology, and has a limited ability to read, speak, not intended to apply to individuals materials, proposed § 38.4(tt) added a write and/or understand English.’’ As with sensory impairments, who are Deaf definition for ‘‘programmatic set forth in the proposed rule, this or hard of hearing and communicate accessibility.’’ definition was added because failure to using American Sign Language, have Comment: A local workforce agency provide language assistance to limited speech impairments, or who are blind or commented that the distinction between English proficient individuals may be a have visual impairments, and such physical and programmatic accessibility form of unlawful national origin individuals are not included in the is well-defined and specific, providing a discrimination.112 The term is used definition of an LEP individual. The clear foundation that will strengthen elsewhere in the final rule, in § 38.9 requirements for ensuring effective recipients’ ability to guarantee that their defining national origin discrimination communication with individuals with programs and services are both as including discrimination based on disabilities are explained in § 38.15. physically and programmatically limited English proficiency. This accessible for individuals with definition is consistent with decisions On-the-Job Training (OJT) disabilities. CRC received a comment interpreting the scope of national origin Proposed § 38.4(mm) retained the from a coalition of disability advocacy discrimination under Title VI 113 and language from the 1999 and 2015 rules, organizations that requested adding the regulations interpreting national origin- which defined ‘‘on-the-job training’’ and words ‘‘fully’’ and ‘‘equally’’ in the based discrimination,114 and has been received no comments regarding its proposed definition of ‘‘programmatic adopted from those DOJ regulations definition. In the definition of OJT in accessibility’’ to emphasize that the § 38.4(mm), CRC makes a technical requirement should direct recipients to 110 42 U.S.C. 12211(b)(1) (ADA); 29 U.S.C. correction to match the maximum wage ‘‘put program beneficiaries and 705(20)(F)(i) (Section 504). rate reimbursement specified by WIOA. participants with disabilities in the 111 See 42 U.S.C. 12211(b)(1) (ADA); 29 U.S.C. position they would be in if they did not 705(20)(F)(i) (Section 504). Other Power-Driven Mobility Device 112 Lau v. Nichols, 414 U.S. 563 (1974) (Supreme have disabilities,’’ rather than just being Court found recipient’s denial of equal education Proposed § 38.4(nn) added a ‘‘helpful.’’ opportunities to a group of non-English speakers definition for ‘‘other power-driven Response: The definition of was national origin discrimination in violation of mobility device.’’ This definition ‘‘programmatic accessibility’’ in Title VI and its regulations); see also sources cited supra note 26. mirrors the definition in the DOJ ADA § 38.4(tt) is sufficient as proposed. It is 115 113 Sandoval v. Hagan, 197 F.3d 484, 510–11 Title II regulations and encompasses taken from the 2005 Senate Health, (11th Cir. 1999) (holding that English-only policy additional mobility devices, such as Education, Labor, and Pensions for driver’s license applications constituted national self-balancing scooters, which are Committee Report on WIA origin discrimination under Title VI), rev’d on other 116 grounds, 532 U.S. 275 (2001); Almendares v. increasingly used by individuals with reauthorization. It is not necessary to Palmer, 284 F. Supp. 2d 799, 808 (N.D. Ohio 2003) mobility impairments. add ‘‘equally’’ or ‘‘fully,’’ because (holding that failure to ensure bilingual services in Comment: CRC received two § 38.12(a) explains the opportunities a food stamp program could constitute a violation comments regarding this new definition. recipients must provide to individuals of Title VI); Pabon v. Levine, 70 FRD. 674, 677 One comment was from a coalition of (S.D.N.Y. 1976) (citing Lau, denying summary with disabilities, including any aid, judgment when LEP unemployment benefits disability advocacy groups that benefit, service, or training that is equal claimaints alleged a state labor agency failed to expressed general support for the to, or as effective as, that provided to provide language assistance services in violation of definition. The second comment was others (e.g., the opportunity to obtain Title VI and its implementing regulations). from a state-based disability 114 28 CFR 42.104 (discrimination prohibited by the same result, benefit, or level of DOJ Title VI regulations); 10 CFR 1040.1 organization that recommended a (Department of Energy regulations mirroring DOJ 116 S. Rep. No. 109–134, 2005 WL 2250857, at *11 Title VI regulations). 115 28 CFR 35.104. (2005).

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achievement). For these reasons, CRC reasons, CRC declines to make the be provided to add clarification to the declines to make the suggested changes suggested changes. meaning of the phrase. The commenter to proposed § 38.4(tt). In § 38.4(xx)(2), CRC proposed a requested that the term ‘‘covered entity’’ definition of ‘‘qualified interpreter for be defined. The commenter also Qualified Individual With a Disability an individual who is limited English suggested that the term ‘‘covered entity’’ Proposed § 38.4(ww) revised a portion proficient.’’ The proposed § 38.4(xx)(2) be replaced with the term ‘‘recipient.’’ of the definition of ‘‘qualified individual was taken from the DOL LEP Guidance Response: We agree that it is with a disability’’ to match the and refers to an individual who preferable to use the term ‘‘recipient,’’ definition in the EEOC regulations demonstrates expertise in and ability to defined in § 38.4(zz), instead of implementing the ADAAA.117 CRC communicate information accurately in ‘‘covered entity,’’ for which there is no received one comment from a coalition both English and in the other language definition in this part, and have adopted of disability organizations supporting (into which English is being interpreted) that change throughout the rule.122 the proposed definition, and § 38.4(ww) and to identify and employ the Regarding the commenter’s request that is adopted as proposed. appropriate mode of interpreting, such we define ‘‘regarded as having a as consecutive, simultaneous, or sight disability,’’ or provide examples, we Qualified Interpreter translation.118 note that the definition of the term Proposed § 38.4(xx) amended the Several advocacy organizations ‘‘disability’’ includes ‘‘being regarded as existing definition of ‘‘qualified expressed support for the proposed having such an impairment,’’ and that interpreter’’ to reflect the availability of definition of ‘‘qualified interpreter’’ and the phrase ‘‘is regarded as having such new technologies, stating that the definition of ‘‘qualified interpreter an impairment’’ is defined in interpreting services may be provided for an individual who is LEP’’ within § 38.4(q)(7). CRC revises § 38.4(yy)(4) of ‘‘either in-person, through a telephone, § 38.4(xx)(2). The commenters stated the rule consistent with that wording to a video remote interpreting (VRI) service that the proposed definitions properly refer to the applicable definitions for the or via internet, video, or other acknowledge that new technology has ‘‘actual disability,’’ ‘‘record of,’’ and technological methods.’’ The revision expanded the availability of ‘‘regarded as’’ prongs. Therefore, also delineated the skills and abilities interpretation services, providing a examples are unnecessary. that an individual must possess in order range of methods for regulated entities For the sake of consistency, CRC to provide interpreter services for an to use to meet their responsibilities places quotation marks around the term individual with a disability. under the regulations. Furthermore, the ‘‘reasonable accommodation’’ in Comment: CRC received one comment commenters noted that the definitions § 38.4(yy)(2). from a coalition of disability advocacy help ensure that job seekers and workers Recipient organizations concerned that who are LEP have access to quality interpreters should ‘‘have a particular interpretation by describing the quality Proposed § 38.4(zz) defined the term level of expertise in the specific jargon of the interpreter as effective, accurate, ‘‘recipient’’ as any one-stop partner being used.’’ The commenter requested impartial, expressive, and using listed in section 121(b) of WIOA and that the definition of qualified necessary vocabulary. The commenters any ‘‘entity to which financial interpreter take into consideration both stated that this characterization of assistance under Title I of WIOA is ‘‘applicable state law governing quality was necessary to disallow the extended, directly from the Department licensure of interpreters,’’ as well as use of Web sites or services that only or through the Governor or another ‘‘the qualification of the interpreter for provide online translation services recipient (including any successor, the particular field of employment in (which may be inaccurate), and to assignee, or transferee of a recipient).’’ any given situation.’’ discourage the use of children or family Section 38.4(zz) also proposed a non- Response: A qualified interpreter is members or other untrained individuals exhaustive list of examples of defined as an interpreter who is able to as interpreters. recipients. interpret ‘‘effectively, accurately, and Reasonable Accommodation Comment: A State labor agency impartially.’’ The interpreter must also commented that the proposed definition Proposed § 38.4(yy) revised the be able to interpret ‘‘both receptively of ‘‘recipient’’ significantly expands the definition of ‘‘reasonable and expressively, using any necessary existing definition and will cause accommodation’’ to add a new specialized vocabulary.’’ Accordingly, confusion because it is not in paragraph stating that the provision of § 38.4(xx) already addresses the accordance with current OMB guidance. reasonable accommodations is not commenters’ concern about an The commenter recommended that the required for individuals who are only interpreter’s ability to use relevant Department continue to rely on the ‘‘regarded as’’ having a disability. This jargon or to otherwise effectively and Office of Management and Budget provision is consistent with the accurately understand and interpret (OMB) definition. ADAAA 119 and regulations issued by communications regarding a particular Response: Although the definition of the EEOC 120 and by the DOJ 121 field of employment. On the other hand, ‘‘recipient’’ in this rule differs from the implementing the ADAAA. possessing State certification may or definition of ‘‘recipient’’ in the Uniform Comment: CRC received a few may not indicate that an individual Administrative Requirements, Cost comments generally supporting this meets the regulatory criteria. We Principles, and Audit Requirements for provision from a coalition of disability therefore decline to incorporate State Federal Awards at 2 CFR part 200 advocacy organizations. CRC received standards into the regulation. The most (‘‘Uniform Guidance’’), the definition of one comment from a State agency asking important factor is whether the recipient in this rule does not expand that the term ‘‘regarded as having a interpreter can facilitate effective, upon or adopt the definition of disability’’ be defined or that examples accurate, and impartial communication ‘‘recipient’’ in the Uniform Guidance

and therefore meets the requirements 118 DOL LEP Guidance, supra note 28, at 32296. 122 CRC is replacing ‘‘covered entity’’ with outlined in the regulation. For these 119 42 U.S.C. 12101 et seq. ‘‘recipient’’ in two sections: in the definition of 120 29 CFR 1630.9(e). ‘‘disability’’ in § 38.4(q) and in the definition of 117 29 CFR 1630.2(m). 121 28 CFR 35.108(f)(7)(ii). ‘‘reasonable accommodation’’ in § 38.4(yy).

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because this rule and the Uniform ‘‘service animal’’ be revised to include definition used by DOJ in its regulations Guidance are two different rules with miniature horses. The commenter noted implementing Title II of the ADA.127 different applicability and different that, even though current ADA Comment: A coalition of purposes. CRC chooses to retain its requirements recognize dogs only as organizations representing the interests definition of ‘‘recipient’’ because CRC service animals, it also permits the use of individuals with disabilities has a statutory duty to enforce WIOA of a miniature horse as a service animal commented that the proposed definition Section 188 with respect to ‘‘programs in certain circumstances. of ‘‘video remote interpreting’’ (VRI) is and activities financially assisted in Response: In the interest of inadequate and vague because it could whole or in part under’’ WIOA. uniformity, our definition of a service ostensibly allow for a smartphone to be Coverage under Section 188 and this animal under § 38.4(fff) is limited to used to Skype the interpreter, reasoning regulation is not dependent on whether dogs, consistent with the Department of that such a scenario is problematic as an entity is a ‘‘pass-through entity’’ as Justice’s 2010 ADA Title II the effectiveness of video remote defined in 2 CFR 200.74, a ‘‘recipient’’ regulations.124 While another section of interpreting depends greatly on the deaf as defined in 2 CFR 200.86, or a the DOJ Title II regulations sets out individual’s ability to view the VRI ‘‘subrecipient’’ as defined in 2 CFR standards for the reasonable interpreter on a sufficient size screen 200.93. Instead, coverage under Section modification of policies, practices, and and the clarity of the signing on the 188 and this regulation depends on procedures to permit miniature horses screen being affected by signal strength. whether an entity is a ‘‘recipient,’’ as to be utilized in certain circumstances The coalition recommended that all defined in § 38.4(zz), that receives and under specific criteria, this is covered entities prioritize the use of on- site interpreters, and that use of VRI be financial assistance under Title I of different from including miniature limited to brief interactions or where a WIOA, as defined in § 38.4(x) and (y). horses in the definition of a ‘‘service qualified interpreter is not available. Moreover, the definition of ‘‘recipient’’ animal.’’ in § 38.4(zz) is consistent with the Response: The current language, definition of ‘‘recipient’’ in the 1999 and Our definition of a service animal, which mirrors the DOJ ADA Title II 2015 rules. Therefore we decline to consistent with the DOJ 2010 ADA Title regulations, is sufficient. As stated in amend the definition of ‘‘recipient’’ as II regulations, excludes animals that are § 38.15, which parallels the language of suggested. only used to provide emotional support, the ADA, a recipient must take well-being, comfort, or companionship, appropriate steps to ensure that Service Animal but does include dogs that can perform communications with individuals with Proposed § 38.4(fff) added a definition work or tasks that are directly related to disabilities are as effective as for ‘‘service animal.’’ This provision is an individual’s disability, including communications with others. A based on the DOJ ADA Title II helping persons with psychiatric and recipient must furnish appropriate regulations.123 neurological disabilities. We believe auxiliary aids and services where Comment: Two disability advocacy that it is appropriate to follow the DOJ necessary to accomplish this. The type organizations expressed support for the Title II regulations in restricting service of auxiliary aid or service necessary to proposed definition of ‘‘service animal,’’ animals to dogs that can perform ensure effective communication varies reasoning that it is consistent with ADA specific assistive tasks; many of the in accordance with the method of definitions that exclude exotic animals same entities subject to this rule are also communication used by the individual, from protected coverage. The subject to the DOJ regulations. However, the nature, length, and complexity of commenter noted that the organization not all of those entities are subject to the the communication involved; and the has received complaints about Pennsylvania Human Relations Act or context in which the communication is individuals who identify exotic animals the federal Fair Housing Act. We believe taking place. In determining what type as service animals, which the permitting emotional support animals of auxiliary aid and service is necessary, commenters believe draws unnecessary under a single State statute,125 or under a recipient must give primary attention to the individual rather than the Fair Housing Act as a reasonable consideration to the request of an performing an actual service. accommodation,126 is fundamentally individual with a disability. In addition, However, a few commenters different than classifying such animals with respect to video remote requested revisions to the definition. An as service animals. Accordingly, those interpreting, there are particular advocacy organization recommended laws are not used as the basis for the requirements under § 38.15(a)(4) that that the definition of ‘‘service animal’’ definition of ‘‘service animal’’ in the address the speed, size, and quality of be expanded to include emotional final rule. the service, which would in many cases support animals to be consistent with limit the use of a smart phone for VRI. Video Remote Interpreting (VRI) Service language in the Pennsylvania Human For these reasons, CRC declines to make Relations Act and the Federal Fair Proposed § 38.4(sss) added a the suggested changes to proposed Housing Act. Another advocacy definition for ‘‘video remote interpreting § 38.4(sss). organization suggested that CRC (VRI) service’’ that mirrors the eliminate or explain the differences Vital Information between CRC’s and DOJ’s language 124 See 28 CFR 35.104. In § 38.4(ttt), the proposed rule regarding emotional support and the 125 The Pennsylvania Human Relations Act does included a definition for ‘‘vital exclusion of miniature horses as service not use the term ‘‘service animal’’ but uses the term information.’’ The proposed rule used animals. Similarly, a state-based ‘‘guide or support animals,’’ without further the term ‘‘vital information’’ to describe organization serving individuals with definition. See 43 Pa. Cons. Stat. sections 952, 955. the type of information that recipients developmental disabilities 126 See U.S. Dep’t of Housing & Urban Dev., Service Animals and Assistance Animals for People must: (1) Translate in advance of recommended that the definition of with Disabilities in Housing and HUD-Funded encountering any specific LEP Programs (FHEO–2013–01, Apr. 25, 2013), available individual, pursuant to § 38.9(g)(1); or 123 See 28 CFR 35.104. The EEOC has not at http://portal.hud.gov/hudportal/documents/ (2) translate (in writing) or interpret addressed whether this definition applies to huddoc?id=servanimals_ntcfheo2013-01.pdf employers and employment agencies covered under (classifying requests for emotional support animals (verbally) when specific LEP Title I of the ADA or Section 501 of the as reasonable accommodation requests, rather than Rehabilitation Act. a service animal). 127 See 28 CFR 35.104.

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individuals are encountered, pursuant distinguish it from other power driven it unclear that the word ‘‘belief’’ is not to § 38.9(g) and (h). The proposed rule mobility devices. The new definition an independent protected category, such gave a nonexhaustive list of examples of mirrors the definition in the DOJ ADA as race, but is part of the protected basis documents containing vital information. Title II regulations.130 CRC received one of ‘‘political affiliation or belief.’’ CRC CRC sought comments on this comment in support of this provision declines the commenter’s suggestion to definition. The comments and our from a coalition of disability advocacy delete the word ‘‘belief’’ from § 38.5, responses regarding the definition of organizations and adopts it as proposed. because the language ‘‘political ‘‘vital information’’ are set forth below: affiliation or belief’’ is derived directly Summary of Regulatory Changes Comment: Several advocacy from WIOA Section 188. However, to organizations supported the proposed For the reasons set forth above and in clarify that ‘‘belief’’ is not an definition of ‘‘vital information’’ the NPRM, and considering the independent basis, and to more clearly specifically because the increased usage comments received, CRC adopts the and consistently identify all of the bases of Web sites or other virtual services to definitions proposed in § 38.4 with the on which discrimination is prohibited, provide employment and training following modifications: reorganizing CRC makes the following technical information should not preclude job paragraph (b); numerous edits in changes as appropriate in this section seekers or workers who are LEP from paragraph (q) to conform with DOJ’s and in §§ 38.1, 38.4(uu), 38.6, 38.10, accessing those services. A local ADA Title II regulations to implement 38.25(a)(1)(i)(A), and 38.42(a): Adding workforce agency supported the the ADAAA; in paragraphs (q) and (yy), both a comma and the words proposed definition of ‘‘vital changing all instances of ‘‘covered ‘‘applicants, and participants’’ following information,’’ reasoning that it ‘‘is entity’’ (or ‘‘covered entities’’) to ‘‘beneficiaries’’; repeating ‘‘on the basis precise [and] provides a clear ‘‘recipient’’ (or ‘‘recipients’’); in of’’ or ‘‘based on’’ before ‘‘citizenship’’; description of the importance of paragraph (aa), revising the definition of and making minor technical changes to providing program information in ‘‘Governor’’ to track the statutory the punctuation and conjunctions in the various formats thereby enabling definition more closely; in paragraph list of bases. For the same reasons, CRC recipients to comply with WIOA (hh), revising the definition of ‘‘limited intends no substantive changes by regulations.’’ A State labor agency did English proficient (LEP) individual’’ to making these revisions. not support including this definition. clarify its connection to national origin The commenter stated that it would discrimination; in paragraph (mm), Specific Discriminatory Actions increase the burden of one-stop centers revising the maximum wage rate Prohibited on Bases Other Than and partners to translate materials into reimbursement to match that in WIOA; Disability § 38.6 multiple languages and would in paragraph (nn), adding ‘‘by other Proposed § 38.6 discussed the types of constitute an unfunded mandate. similar means’’; and in paragraph discriminatory actions prohibited by Response: We acknowledge that (yy)(4), adding references to the WIOA and this part whenever those compliance with § 38.9 may impose applicable definitions for the ‘‘actual actions are taken because of the some limited burdens on recipients. disability,’’ ‘‘record of,’’ and ‘‘regarded protected bases listed in Section 188, Moreover, these burdens are outweighed as’’ prongs. with the exception of disability. In by the benefits that § 38.9 will generate addition, this section replaced the term for individuals with limited English General Prohibitions on Discrimination ‘‘ground’’ with the term ‘‘basis.’’ proficiency by making them aware, in § 38.5 Comment: An advocacy organization their preferred languages, of information Proposed § 38.5 set forth generally the pointed out that the proposed they need to understand in order to discrimination prohibited by WIOA prohibitions on sex discrimination obtain, and to understand how to Section 188 and this part: ‘‘No include a prohibition on job postings obtain, the aid, benefits, services, and individual in the United States may, on that seek individuals of a particular sex. training offered by WIOA Title I the basis of race, color, religion, sex, The commenter urged a similar programs and activities.128 We believe national origin, age, disability, political prohibition on job postings that seek including the definition of vital affiliation or belief, and for individuals of a particular age, or information provides clear direction for beneficiaries, applicants, and contain age-related parameters such as recipients so that they can determine participants only, citizenship or ‘‘recent graduates.’’ The commenter also what information must be translated or participation in any WIOA Title I- expressed concern that older workers orally interpreted for LEP individuals in financially assisted program or activity, have been systematically shortchanged order to meet their obligations under be [subjected to certain adverse in the workforce development system. this part and WIOA Section 188. The actions].’’ The commenter warned that older definition builds upon and is consistent Comment: An individual commenter workers are often diverted or referred to with the discussion of vital written cited the regulatory language ‘‘because other programs, relegated to self-service materials and documents contained in of race, color, religion, sex, national because of understaffing, not served the DOL LEP Guidance.129 For these origin, age, disability, political because the performance criteria reasons, CRC declines to make any affiliation or belief . . . ’’ and discourage helping the hard-to-serve, or modifications to the definition of vital recommended that the word ‘‘belief’’ be otherwise denied equal access to information. removed because it can be meaningful engagement that would misunderstood in context with the other qualify them to be ‘‘participants.’’ The Wheelchair words. commenter concluded that disparate In § 38.4(uuu), the proposed rule Response: CRC appreciates the impact discrimination based on age is a added a definition for ‘‘wheelchair’’ to commenter’s concern that the regulation ‘‘new’’ legal development that should be text be clearly understood. We believe considered as bolstering the case for 128 Cf. HHS Nondiscrimination Final Rule, supra the word ‘‘and’’ after the word ‘‘belief’’ increased attention to disparate impact note 18, at 31401 (recognizing that in the health is inconsistent with the intended based on age in the delivery of career context the benefits of translating information for LEP individuals outweigh the burdens on covered meaning of the text, and may have made services to older jobseekers. entities). Response: As discussed below in 129 DOL LEP Guidance, supra note 28, at 32298. 130 28 CFR 35.104. connection with § 38.7(b)(5), CRC is

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removing the across-the-board Opportunity Officer,131 collect and activities based on pregnancy, prohibition on ‘‘the use of gender- monitor equal opportunity data to childbirth, and related medical specific terms for jobs (such as ensure compliance with this part,132 conditions is a form of unlawful sex ‘waitress’)’’ because the EEOC permits and conduct affirmative outreach to discrimination. CRC received only gender-specific job titles in certain targeted groups.133 supportive comments on this inclusion advertisements in the rare instance in Regarding the question of disparate and adopts it as proposed in the final which sex is a bona fide occupational impact discrimination, CRC disagrees rule. qualification. The use of such language that the final rule should only prohibit Proposed § 38.7(a) further stated that in employment opportunity intentional discrimination—that is, discrimination based on transgender advertisements and other recruitment disparate treatment discrimination. status or gender identity 138 is a form of practices is suspect, but is not a per se WIOA authorizes the Secretary to unlawful sex discrimination. CRC violation, and no violation should be promulgate nondiscrimination received comments supporting and found when it is accompanied by regulations ‘‘that are consistent with the opposing this inclusion. prominent language that clearly Acts referred to in subsection (a)(1)’’ of 134 Comments: CRC received eleven indicates the intent to include Section 188. Under federal statutes comments in support of the express applicants or prospective applicants of that prohibit discrimination, federal inclusion of transgender status and both sexes. Age discrimination cases are agencies have the authority to issue and gender identity in the definition of also fact specific. Language that is age enforce regulations prohibiting policies ‘‘sex.’’ The commenters were one referential, or that would discourage and practices that have disparate 135 coalition of eighty-six women’s, older workers, can be legal if based on impacts on protected classes. It is workers’, and civil rights organizations; a bona fide occupational qualification or particularly important that federal a group of ten advocacy organizations a reasonable factor other than age. agencies such as CRC enforce and a union; six individual advocacy Accordingly, CRC declines to prohibit prohibitions against disparate impact organizations; two health organizations; outright the use of all potentially age- discrimination because victims and one individual. The organizational related parameters. themselves may be unable to enforce agencies’ disparate impact commenters emphasized that the While the rule does not have a regulations.136 CRC emphasizes that it principle that discrimination on the separate section devoted to addressing will not deem unlawful a neutral policy basis of gender identity or transgender age discrimination only, age is a covered or practice that has a disparate impact status constitutes discrimination on the basis for prohibited discrimination. For on a protected class if the recipient basis of sex is well supported by Title example, the provisions of § 38.6 would demonstrates that the policy or practice VII and Title IX case law. prohibit, on a case-by-case basis, job has a substantial legitimate justification CRC also received comments postings shown to be discriminatory and CRC cannot identify an alternative opposing the recognition of due to age, as well as the other scenarios policy or practice that may be discrimination based on transgender raised by the commenter, whenever they comparably effective with less disparate status or gender identity as a form of are the result of age discrimination. We impact.137 unlawful sex discrimination. These disagree with the commenter’s comments were submitted by one group suggestion that CRC should give Discrimination Prohibited Based on Sex of nine religious organizations, one increased attention to any particular § 38.7 employer, one State department of type of discrimination. Therefore CRC Proposed § 38.7(a) stated that labor, and numerous individuals. declines to adopt the commenter’s discrimination in WIOA Title I- recommendation. The religious organizations asserted financially assisted programs and that ‘‘the inclusion of transgender status Comment: An advocacy organization and gender identity in the proposed 131 See §§ 38.28 and 38.29. suggested that there should be ‘‘[n]o regulations is an erroneous discrimination or preference on the 132 See §§ 38.31 and 38.41. 133 interpretation of the law.’’ They stated basis of race, ethnicity, sex, etc.,’’ See § 38.40. 134 that Section 188 does not provide a including ‘‘any use of goals and 29 U.S.C. 3248(e). 135 See, e.g., Alexander v. Choate, 469 U.S. 287, textual basis for including transgender timetables to remedy 293–94 (1985) (explaining that the Court had status and gender identity in CRC’s rule underrepresentation and the like.’’ The previously held, in Guardians Ass’n v. Civil Serv. because the statute uses the term ‘‘sex,’’ Comm’n, 463 U.S. 582 (1983), ‘‘that Title VI [which commenter also opposed the disparate which they stated is ordinarily defined impact approach to civil rights does not itself contain a disparate impact provision] had delegated to the agencies in the first instance as ‘‘being male or female.’’ They further enforcement and favored only the complex determination of what sorts of asserted that most courts have held that prohibition of disparate treatment. disparate impacts upon minorities constituted discrimination on the basis of sufficiently significant social problems, and were Response: With respect to the issue of readily enough remediable, to warrant altering the transgender status or gender identity is ‘‘goals and timetables to remedy practices of the federal grantees that had produced not covered by federal statutes underrepresentation and the like,’’ CRC those impacts’’). prohibiting sex discrimination. The believes that the commenter is 136 Alexander v. Sandoval, 532 U.S. 275, 293 religious organizations also pointed to requesting that the final rule include (2001) (Title VI); see Memorandum from Loretta King, Acting Assistant Attorney General, U.S. Dep’t congressional efforts to enact legislation neither specific numerical goals for of Justice, Civil Rights Div., to Federal Agency Civil that would prohibit federally financially hiring persons because of protected Rights Directors and General Counsels, assisted programs and activities from categories, nor specific numerical goals Strengthening of Enforcement of Title VI of the discriminating on the basis of gender for offering any aid, benefit, service, or Civil Rights Act of 1964 (July 10, 2009), available at http://www.lep.gov/titlevi_enforcement_ identity, portraying such efforts as training on the basis of protected memo.pdf. categories. The rule contains no such 137 N.Y. Urban League, Inc. v. New York, 71 F.3d 138 A transgender individual is an individual requirements. Instead, the final rule 1031, 1036 (2d Cir. 1995); Ga. State Conf. of whose gender identity is different from the sex addresses underrepresentation by Branches of NAACP v. Georgia, 775 F.2d 1403, 1417 assigned to that person at birth. Throughout this (11th Cir. 1985); see generally Texas Dep’t of final rule, the term ‘‘transgender status’’ does not requiring, among other things, Housing & Cmty. Affairs v. Inclusive Communities exclude gender identity, and the term ‘‘gender recipients to designate an Equal Project, 135 S. Ct. 2507, 2522–23 (2015). identity’’ does not exclude transgender status.

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evidence that federal law does not significance in the interpretation of controlled by a religious organization if already forbid such discrimination.139 existing statutes.141 the application of section 1681 of this The State department of labor that Therefore, CRC retains the terms title to such operation would not be opposed this portion of proposed ‘‘transgender status’’ and ‘‘gender consistent with the religious tenets of § 38.7(a) asserted that ‘‘there is no clear identity’’ in the definition of ‘‘sex’’ in such organization.’’ 146 Accordingly, the legal consensus as to whether Title VII’s § 38.7(a) in the final rule. Department’s Title IX regulation already prohibition against sex discrimination Comment: The religious organizations contains an exemption provision and a applies to discrimination on the basis of further asserted that Section 188’s mechanism for receiving exemption gender orientation or gender identity.’’ prohibition on sex discrimination is claims at 29 CFR 36.205. The employer and numerous individual subject to the exception for religious The Title IX religious exception is 142 commenters asserted that this provision organizations contained in Title IX. available to recipients if they meet the of CRC’s rule would undermine They asserted that Title IX’s religious criteria for the exception. The exception traditional values and grant special exception applies to CRC’s rule because applies to any recipient that is an protections to LGBT people. Many WIOA Section 188 forbids sex educational institution controlled by a individual commenters further discrimination ‘‘except as otherwise religious organization if the application expressed skepticism or derision permitted under title IX’’ and requires of this part’s prohibition against sex regarding the existence of transgender the Secretary to promulgate discrimination would not be consistent individuals and individuals who do not nondiscrimination regulations that are with the organization’s religious ‘‘consistent with the Acts referred to in 147 identify as male or female. tenets. It also applies to the subsection (a)(1)’’ of Section 188, educational operation of any recipient Response: As discussed above in the including Title IX.143 The religious that is an entity controlled by a religious main preamble and as supported by organizations further asserted that, even organization if the application of this numerous commenters, CRC finds the if WIOA did not incorporate Title IX’s part’s prohibition against sex prohibition of discrimination on the religious exception, the Religious discrimination to that operation would basis of gender identity or transgender Freedom Restoration Act (RFRA) could not be consistent with the organization’s status as a form of sex discrimination to support a religious exemption from any religious tenets.148 Recipients that meet be consistent with case law under Title nondiscrimination obligation the final 140 either set of criteria may follow the VII and Title IX. rule imposed with regard to gender process established by the Department’s Likewise, CRC does not find the rule’s identity, transgender status, or sexual Title IX regulation at 29 CFR 36.205(b) inclusion of gender identity or orientation. The religious organizations to submit exemption claims.149 The transgender status to be inconsistent stated that they were not suggesting that Department of Education has published with congressional efforts to ban gender any person eligible to participate in job information that CRC finds instructive identity discrimination in programs and training and placement programs should in determining whether a recipient is activities receiving federal financial be excluded from the programs. They ‘‘controlled by a religious assistance. Enactment of subsequent asserted that RFRA would support an organization.’’ 150 If a recipient has legislation may simply codify and exemption from any interference ‘‘with clarify interpretations of existing laws to the ability of a religious organization to 146 20 U.S.C. 1687. provide additional guidance. In require adherence to religiously- 147 See 20 U.S.C. 1681(a)(3). addition, as the Supreme Court has grounded employee conduct standards’’ 148 See 20 U.S.C. 1687. held, several equally tenable inferences or ‘‘to hire and retain staff whose beliefs 149 The Department’s Title IX exemption may be drawn from congressional provision and process are as follows: and practices are consistent with those Educational institutions and other entities inaction, including the inference that of the organization.’’ controlled by religious organizations. existing legislation already incorporates Response: CRC agrees that WIOA • Exemption: These Title IX regulations do not a proposed change, and therefore incorporates the exceptions contained apply to any operation of an educational institution congressional inaction lacks persuasive in Title IX. As the religious or other entity that is controlled by a religious organization to the extent that application of these organizations noted, WIOA Section 188 Title IX regulations would not be consistent with 139 In the 114th Congress (2015–2016), identical forbids sex discrimination ‘‘except as the religious tenets of such organization. ‘‘Equality Act’’ bills were introduced in the Senate otherwise permitted under title IX.’’ 144 • Exemption claims: An educational institution (S. 1858) and House (H.R. 3185) on July 23, 2015. Title IX’s prohibition on sex or other entity that wishes to claim the exemption The bills would, inter alia, prohibit programs and set forth in the paragraph above shall do so by activities receiving federal financial assistance from discrimination applies, with certain submitting in writing to the Director, Civil Rights discriminating against persons based on sex, sexual exceptions, to ‘‘any education program Center, a statement by the highest-ranking official orientation, or gender identity. U.S. Library of or activity receiving Federal financial of the institution, identifying the provisions of these Congress, Congress.gov, available at https:// assistance.’’ 145 In addition to the Title IX regulations that conflict with a specific tenet of the religious organization. www.congress.gov/bill/114th-congress/senate-bill/ exception provision cited by the 1858, https://www.congress.gov/bill/114th- See 29 CFR 36.205. congress/house-bill/3185. religious organizations, Title IX 150 The Department of Education normally 140 See, e.g., Barnes v. Cincinnati, 401 F.3d 729, provides that the term ‘‘program or considers an institution to be controlled by a 739 (6th Cir. 2005); Smith v. Salem, 378 F.3d 566, activity’’ ‘‘does not include any religious organization if it falls into one of the 574 (6th Cir. 2004); Doe v. Univ. of Mass.-Amherst, operation of an entity which is following categories: No. CV 14–30143–MGM, 2015 WL 4306521, at *6 (1) It is a school or department of divinity, n.2 (D. Mass. July 14, 2015); Schroer v. Billington, defined as an institution or a department or branch 141 577 F. Supp. 2d 293 (D.D.C. 2008); Miles v. N.Y. Pension Benefit Guar. Corp. v. LTV Corp., 496 of an institution whose program is specifically for Univ., 979 F. Supp. 248, 249–50 (S.D.N.Y. 1997); U.S. 633, 650 (1990). the education of students to prepare them to see also Macy v. Dep’t of Justice, Appeal No. 142 The religious organizations referred to the become ministers of religion or to enter upon some 0120120821, 2012 WL 1435995, at *7 (EEOC Apr. exception that provides that the prohibition on sex other religious vocation, or to prepare them to teach 20, 2012), available at http://www.eeoc.gov/ discrimination ‘‘shall not apply to an educational theological subjects; or decisions/ institution which is controlled by a religious (2) It requires its faculty, students or employees 0120120821%20Macy%20v%20DOJ%20ATF.txt. organization if the application of this subsection to be members of, or otherwise espouse a personal The contrary approach taken in the older cases would not be consistent with the religious tenets of belief in, the religion of the organization by which cited by opposing commenters ‘‘has been such organization.’’ 20 U.S.C. 1681(a)(3). it claims to be controlled; or eviscerated by Price Waterhouse.’’ Smith, 378 F.3d 143 29 U.S.C. 3248(a)(2), (e). (3) Its charter and catalog, or other official at 573; see also Schwenk v. Hartford, 204 F.3d 1187, 144 29 U.S.C. 3248(a)(2). publication, contains explicit statement that it is 1201 (9th Cir. 2000). 145 20 U.S.C. 1681(a). Continued

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already obtained a Title IX religious Other commenters asserted that aggressive and did not ‘‘walk more exemption from the Department of Section 188 was not intended to protect femininely, talk more femininely, dress Education, such exemption may be against sexual orientation more femininely, wear make-up, have submitted to CRC as a basis for an discrimination, that no federal appellate her hair styled, and wear jewelry’’ was exemption from the Department of court has interpreted Title IX’s or Title unlawful sex-based employment Labor.151 VII’s ban on sex discrimination to discrimination.157 Though Price CRC also acknowledges that RFRA prohibit sexual orientation Waterhouse did not involve an applies to all federal laws, including discrimination, and that CRC therefore allegation of discrimination based on an WIOA. CRC declines, however, to does not have authority to include this individual’s sexual orientation, the implement a blanket RFRA exemption basis. Supreme Court recognized in that case from the final rule’s nondiscrimination Response: As noted above, as well as that unlawful sex discrimination occurs obligations because claims under RFRA in the preamble to the proposed rule, as when an individual is treated differently are inherently individualized and fact a matter of policy, CRC supports based on a failure to conform to gender- specific.152 Insofar as the application of banning discrimination on the basis of based stereotypes about how any requirement under this part would sexual orientation. Ensuring equal individuals should present themselves violate RFRA, such application shall not access to aid, benefit, service, and or behave.158 The Department of Justice be required. training opportunities is critical to has therefore taken the position that a The preamble to the proposed rule meeting the objectives of Section 188 well-pled complaint alleging asked for public comment on the and, more broadly, WIOA. This policy discrimination against a gay employee question of whether the final rule goal is reflected in executive actions because of failure to conform to sex should add sexual orientation such as Executive Order 13672, issued stereotypes states a viable sex discrimination to § 38.7(a) as a form of on July 21, 2014, adding sexual discrimination claim under Title VII.159 unlawful sex discrimination. CRC orientation and gender identity to the When a recipient discriminates against received numerous responsive expressly protected bases under an individual based on sexual comments. Executive Order 11246, which applies orientation, the entity may well rely on Comments: Many commenters to the employment practices of covered stereotypical notions or expectations of requested that CRC explicitly state in federal contractors, including covered how members of a certain sex should act the rule that Section 188’s prohibition of Job Corps contractors.153 Supreme Court or behave. These stereotypes are discrimination on the basis of sex decisions have, moreover, repeatedly precisely the types of gender-based includes discrimination on the basis of made clear that individuals and couples assumptions prohibited by Price sexual orientation. They cited EEOC deserve equal rights regardless of their Waterhouse.160 decisions and recent case law sexual orientation.154 The preamble to Based on this understanding, some supporting this interpretation under the proposed rule acknowledged, courts have recognized in the wake of Title VII, Title IX, and other laws. Some however, that ‘‘[c]urrent law is mixed Price Waterhouse that discrimination commenters supporting the inclusion of on whether existing Federal ‘‘because of sex’’ includes sexual orientation in this rule described nondiscrimination laws prohibit discrimination based on sex stereotypes the Department’s policy as deferring to discrimination on the basis of sexual about sexual attraction and sexual the EEOC’s interpretation of Title VII orientation as a part of their behavior 161 or about deviations from law and pointed out that the prohibitions on sex discrimination.’’ 155 ‘‘heterosexually defined gender Department has failed to defer to the The preamble stated CRC’s policy norms.’’ 162 For example, a recent EEOC’s clear interpretation that sexual position, noted that ‘‘[t]he final rule district court decision in the Ninth orientation discrimination is a form of should reflect the current state of Circuit held that the distinction between sex discrimination. Many of these nondiscrimination law, including with discrimination based on gender commenters urged CRC to incorporate respect to prohibited bases of stereotyping and discrimination based the ‘‘modern legal standard rather than discrimination,’’ and sought comment on sexual orientation is artificial and adopting an outmoded interpretation on the issue.156 that claims based on sexual orientation based on decades-old precedent.’’ In Price Waterhouse v. Hopkins, the are covered by Title VII and Title IX as Supreme Court held that an employer’s a form of sex discrimination.163 controlled by a religious organization or an organ failure to promote a female senior thereof or is committed to the doctrines of a manager to partner because of the sex- 157 490 U.S. 228, 235 (1989) (plurality op.). 158 particular religion, and the members of its stereotyped perceptions that she was too Id. at 250–51. governing body are appointed by the controlling 159 See Def.’s Renewed Mot. to Dismiss at 17–18, religious organization or an organ thereof, and it Terveer v. Billington, No. 1:12–cv–1290 (D.D.C. receives a significant amount of financial support 153 See OFCCP Executive Order 13672 Final Rule, Mar. 21, 2013), ECF No. 27. from the controlling religious organization or an supra note 19. 160 Price Waterhouse, 490 U.S. at 288; see, e.g., organ thereof. 154 For example, in 1996, the Supreme Court Deneffe v. SkyWest, Inc., No. 14–cv–00348, 2015 U.S. Dep’t of Educ., Office for Civil Rights, struck down an amendment to the Colorado WL 2265373, at *6 (D. Colo. May 11, 2015); Terveer Religious Exemption (2016), http://www2.ed.gov/ constitution that prohibited the State government v. Billington, 34 F. Supp. 3d 100, 116 (D.D.C. 2014); about/offices/list/ocr/frontpage/pro-students/rel- from providing any legal protections to gay, lesbian, Boutillier v. Hartford Pub. Schs., 2014 WL 4794527 exempt-pr.html. and bisexual individuals. Romer v. Evans, 517 U.S. (D. Conn. 2014); Koren v. Ohio Bell Tel. Co., 894 151 See Nondiscrimination on the Basis of Sex in 620 (1996). In 2015, the Supreme Court ruled that F. Supp. 2d 1032, 1037–38 (N.D. Ohio 2012); Heller Education Programs and Activities Receiving states may not prohibit same-sex couples from v. Columbia Edgewater Country Club, 195 F. Supp. Federal Financial Assistance; Proposed Common marrying and must recognize the validity of same- 2d 1212, 1224, adopted, 195 F. Supp. 2d 1216 (D. Rule, 64 FR 58568, 58570, Oct. 29, 1999. sex couples’ marriages. Obergefell v. Hodges, 135 S. Or. 2002); Centola v. Potter, 183 F. Supp. 2d 403, 152 The RFRA analysis evaluates whether a legal Ct. 2584 (2015). See also United States v. Windsor, 410 (D. Mass. 2002). requirement imposed by the federal government 133 S. Ct. 2675 (2013) (declaring unconstitutional 161 See Videckis v. Pepperdine Univ., No. CV 15– substantially burdens a person’s exercise of the federal Defense of Marriage Act’s definition of 00298, 2015 WL 8916764 (C.D. Cal. Dec. 15, 2015). religion; if it does, the government must ‘‘marriage’’ as only a legal union between a man 162 Isaacs v. Felder Servs., No. 2:13cv693–MHT, demonstrate that application of the legal and a woman); Lawrence v. Texas, 539 U.S. 558 2015 WL 6560655, at *4 (M.D. Ala. Oct. 29, 2015). requirement to the person furthers a compelling (2003) (declaring unconstitutional a state statute 163 Videckis, 2015 WL 8916764, at *5–6; see also governmental interest and is the least restrictive criminalizing consensual same-sex sexual conduct). U.S. Equal Emp’t Opportunity Comm’n v. Scott means to further that interest. See 42 U.S.C. 155 CRC WIOA NPRM, supra note 70, at 4509. Med. Health Ctr., No. 16–225, 2016 WL 6569233, at 2000bb–1(b). 156 Id. at 4509–10. *6 (W.D. Pa. Nov. 4, 2016). Prior circuit court

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In addition, in Baldwin v. Department Proposed § 38.7(b)(1) addressed conjunction with prominent language of Transportation, the EEOC concluded making a distinction between married that clearly indicates the employer’s that Title VII’s prohibition of and unmarried persons that is not intent to include applicants or discrimination ‘‘because of sex’’ applied equally to individuals of both prospective applicants of both sexes, no includes sexual orientation sexes. CRC received no comments on violation of Title VII will be found.’’ 168 discrimination because discrimination this provision and adopts it without For the sake of consistency across the on the basis of sexual orientation change in the final rule. Department’s regulations, CRC removes necessarily involves sex-based Proposed § 38.7(b)(2) addressed the proposed phrase ‘‘including through considerations.164 The EEOC relied on denying individuals of one sex who the use of gender-specific terms for jobs several theories to reach this have children access to aid, benefit, (such as ‘waitress’)’’ from § 38.7(b)(5) in conclusion: A plain reading of the term service, or training opportunities that the final rule. Like OFCCP, CRC will ‘‘sex’’’ in the statutory language, an are available to individuals of another follow EEOC’s policy guidance on Use associational theory of discrimination sex who have children. of Sex-Referent Language in based on ‘‘sex,’’ and the gender Proposed § 38.7(b)(3) addressed Employment Opportunity Advertising stereotype theory announced in Price adversely treating unmarried and Recruitment. CRC similarly Waterhouse.165 individuals of one sex, but not recommends as a best practice For all of these reasons, CRC unmarried individuals of another sex, incorporating the use of gender-neutral who become parents. CRC received only concludes that Section 188’s prohibition terms where such alternatives exist. supportive comments on these Proposed § 38.7(b)(6) addressed of discrimination on the basis of sex provisions and adopts both as proposed. treating an individual adversely because includes, at a minimum, sex Proposed § 38.7(b)(4) addressed the individual identifies with a gender discrimination related to an individual’s distinctions on the basis of sex in formal different from the sex assigned at birth sexual orientation where the evidence or informal job training programs, or the individual has undergone, is establishes that the discrimination is educational programs, or other undergoing, or is planning to undergo based on gender stereotypes. opportunities such as networking, processes or procedures designed to Accordingly, CRC will evaluate mentoring, individual development facilitate the individual’s transition to a complaints alleging sex discrimination plans, or on the job training sex other than the individual’s assigned related to an individual’s sexual opportunities. CRC received no sex at birth. In addition to the comments orientation to determine whether they comments on this provision and adopts CRC received supporting and opposing can be addressed under § 38.7(d) of the it without change in the final rule. the inclusion of transgender status and final rule as discrimination on the basis Proposed § 38.7(b)(5) addressed 166 gender identity, already discussed in of sex stereotypes. posting job announcements that recruit connection with § 38.7(a), CRC also CRC has decided not to resolve in this or advertise for individuals for certain received supportive comments rule whether discrimination on the basis jobs on the basis of sex, including suggesting modifications of § 38.7(b)(6). of an individual’s sexual orientation through the use of gender-specific terms Comments: Six individual advocacy alone is a form of sex discrimination for jobs, such as ‘‘waitress.’’ CRC organizations, the coalition of eighty-six under Section 188. CRC anticipates that received no comments on this provision organizations, and a health organization the law will continue to evolve on this of its proposed rule. However, on the submitted similar comments on this issue, and CRC will continue to monitor nearly identical provision in the provision. They commended CRC for legal developments in this area. CRC proposed Discrimination on the Basis of including this example of an unlawful will enforce Section 188 in light of those Sex rule, OFCCP received a comment sex-based discriminatory practice but developments and will consider issuing stating that the EEOC permits gender- urged CRC to elaborate that refusing to further guidance on this subject as specific job titles in advertisements if treat an individual according to the appropriate. they are clearly used as terms of art individual’s gender identity constitutes Proposed § 38.7(b) stated that rather than as a means for deterring sex discrimination. Citing EEOC federal recipients may not make any distinction applicants on the basis of sex.167 In sector decisions,169 these commenters based on sex in providing any aid, response to that comment and benefit, service, or training under a comments asserting that removal of 168 EEOC Notice No. 915–051, at 2 (Apr. 16, WIOA Title I-financially assisted gender-specific job titles would impose 1990). While this document is not available on EEOC’s Web site, a hard copy of it is available for program or activity and provided a costs on federal contractors, including public viewing in EEOC’s library. A copy of the nonexhaustive list of such distinctions those associated with negotiating new notice is also available for public viewing in CRC’s to assist recipients in meeting their job titles with unions, OFCCP amended office. nondiscrimination and equal its proposed rule by deleting the clause 169 See, e.g., Lusardi v. Dep’t of the Army, Appeal No. 0120133395, 2015 WL 1607756, at *11 (EEOC opportunity responsibilities under this ‘‘including through use of gender- Apr. 1, 2015) (‘‘Persistent failure to use the section. CRC addresses each example specific terms for jobs (such as employee’s correct name and pronoun may below. ‘lineman’).’’ OFCCP stated that it would constitute unlawful, sex-based harassment if such follow EEOC’s policy guidance on Use conduct is either severe or pervasive enough to create a hostile work environment when ‘judged decisions have drawn such a distinction. See, e.g., of Sex-Referent Language in from the perspective of a reasonable person in the Dawson v. Bumble & Bumble, 398 F.3d 211, 218 (2d Employment Opportunity Advertising [individual’s] position.’ ’’ (quoting Oncale v. Cir. 2005); Vickers v. Fairfield Med. Ctr., 453 F.3d and Recruitment, which provides that Sundowner Offshore Servs., 523 U.S. 75, 81 757, 764 (6th Cir. 2006). use of sex-referent language in (1998))); Eric S. v. Dep’t of Veterans Affairs, Appeal 164 Baldwin v. Dep’t of Transp., Appeal No. No. 0120133123, 2014 WL 1653484, at *2 (EEOC 0120133080, 2015 WL 4397641, at *5 (EEOC July employment opportunity Apr. 16, 2014) (recognizing a claim of sex-based 16, 2015). advertisements and other recruitment harassment in violation of Title VII where 165 Id. at *4–8. practices ‘‘is suspect but is not a per se ‘‘Complainant has explained how he was harmed 166 As discussed at the end of the section-by- violation of Title VII’’ and that ‘‘[w]here by the ongoing refusal to change his name in the section analysis of § 38.7(d), CRC adds to that [the employer’s computer] system, as well as the section of the final rule an example addressing sex-referent language is used in alleged hostility and threats from the Information adverse treatment of an individual based on sexual Security Officer . . . because he changed his gender orientation where the evidence establishes that the 167 OFCCP Sex Discrimination Final Rule, supra identity from female to male’’); Jameson v. U.S. discrimination is based on gender stereotypes. note 19, at 39121. Continued

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suggested adding one or more examples of childbearing capacity and to refer not is necessary to provide programs with to § 38.7(b) addressing deliberate and only to pregnancy but also to childbirth control and flexibility to determine the repeated use of names and pronouns and related medical conditions, best layout for each facility on a case- that are inconsistent with an including childbearing capacity. Both by-case basis and to offer unisex individual’s gender identity; refusing to commenters further recommended that facilities in appropriate contexts. process a name change for a transgender an example be added to § 38.7(b) to Response: CRC agrees with the individual; and prohibiting transgender require that pregnant individuals be commenters that neither WIOA nor Title individuals from dressing in a manner provided reasonable accommodations IX imposes a legal requirement on consistent with their gender. related to pregnancy or pregnancy- recipients to provide sex-segregated Response: CRC agrees that refusing to related medical conditions where such restrooms or changing facilities. In treat an individual according to the accommodations are provided, or addition, CRC notes that OFCCP, in its individual’s gender identity may required to be provided, to other Discrimination on the Basis of Sex final constitute unlawful sex discrimination program participants similar in their rule, recognized the role that providing if the underlying facts establish a hostile ability or inability to work. sex-neutral single-user facilities could environment or other adverse treatment Response: CRC does not find it play in preventing harassment of on the basis of transgender status or necessary to alter the proposed example transgender employees, and OFCCP gender identity, consistent with the in § 38.7(b)(7) or to add the suggested therefore included, as a best practice, EEOC federal sector cases cited by the example to the final rule. The list of the recommendation that federal commenters. However, CRC declines to examples provided in § 38.7(b) is not contractors designate single-user insert the specific examples suggested exhaustive. Moreover, the proposed facilities as sex-neutral.170 Title IX by the commenters because the regulatory text encompasses the authorizes institutions, if they so determination of whether any such commenters’ suggestions. Specifically, choose, to maintain ‘‘separate living action constitutes unlawful sex the principle of nondiscrimination facilities for the different sexes.’’ 171 The discrimination is highly fact specific, based on pregnancy established in U.S. Department of Education’s making a categorical prohibition in § 38.8 includes the references to regulations implementing Title IX regulatory text inappropriate. With childbirth, related medical conditions, provide that a ‘‘recipient may provide respect to the principle itself—that and childbearing capacity that the separate toilet, locker room, and shower refusing to treat an individual according commenters requested be added to facilities on the basis of sex, but such to the individual’s gender identity may § 38.7. Furthermore, the example of facilities provided for students of one constitute unlawful sex discrimination in § 38.8(a) encompasses sex shall be comparable to such discrimination—CRC believes that the the commenters’ first suggestion facilities provided for students of the principle is adequately expressed in the (regarding denying any aid, benefit, other sex.’’ 172 Therefore, CRC accepts rule as proposed, not only here in service, or training to individuals of the commenters’ suggestion to change § 38.7(b)(6) but also in § 38.7(a), childbearing capacity), and the example ‘‘must’’ to ‘‘may’’ in § 38.7(b)(8) of the prohibiting discrimination on the basis of discrimination in § 38.8(d) final rule. of transgender status or gender identity; encompasses the commenters’ second Proposed § 38.7(b)(9) addressed in § 38.7(d)(3), prohibiting adverse suggestion (regarding denying denying individuals access to the treatment because of an individual’s reasonable accommodations to pregnant bathrooms used by the gender with actual or perceived gender identity; and individuals). However, based on the which they identify. In addition to the in § 38.10(b), prohibiting harassment commenters’ suggestions, CRC believes comments CRC received supporting and based on gender identity and failure to it would be helpful to add to § 38.7(b)(7) opposing the inclusion of transgender comport with sex stereotypes. a cross-reference to the section devoted status and gender identity, already For these reasons, and for the reasons to discrimination based on pregnancy. discussed in connection with § 38.7(a), discussed above in the main preamble Therefore, CRC adopts § 38.7(b)(7) as CRC also received comments and in connection with the inclusion of proposed in the final rule, with the specifically supporting, opposing, and transgender status and gender identity addition of a cross-reference to § 38.8. suggesting modifications to this in § 38.7(a), CRC adopts § 38.7(b)(6) as Proposed § 38.7(b)(8) provided that it proposed example of an unlawful sex- proposed. is an unlawful sex-based discriminatory based discriminatory practice. Proposed § 38.7(b)(7) addressed practice to make any facilities Comments: Nine commenters—the denying individuals who are pregnant, associated with WIOA Title I-financially coalition of eighty-six women’s, who become pregnant, or who plan to assisted programs or activities available workers’, and civil rights organizations; become pregnant opportunities for or only to members of one sex, with the a group of ten advocacy organizations access to any aid, benefit, service, or exception that if the recipient provides and a union; six individual advocacy training on the basis of pregnancy. CRC restrooms or changing facilities, the organizations; and a health received two supportive comments recipient must provide separate or organization—applauded CRC’s suggesting modifications of § 38.7(b)(7). single-user restrooms or changing inclusion of this example. They stated Comments: The coalition of eighty-six facilities to assure privacy. CRC that requiring nondiscriminatory access organizations, as well as an individual received comments requesting a specific to bathroom facilities is consistent with advocacy organization, commended clarification of this proposed provision. the position of numerous other federal Comments: Eight commenters—the CRC for including this example but agencies, as well as thirteen States and coalition of eighty-six women’s, asserted that the example is incomplete. the District of Columbia. Many of these workers’, and civil rights organizations; They recommended that it be revised to commenters asserted that proposed six individual advocacy organizations; expressly include individuals who are § 38.7(b)(9) provided essential and one health organization— protection for transgender individuals Postal Serv., Appeal No. 0120130992, 2013 WL encouraged CRC to clarify that, while 2368729, at *2 (EEOC May 21, 2013) (‘‘Intentional recipients are authorized to provide sex- misuse of the employee’s new name and pronoun 170 OFCCP Sex Discrimination Final Rule, supra may cause harm to the employee, and may segregated locker rooms and bathrooms, note 19, at 39122. constitute sex based discrimination and/or they are not required to do so. These 171 20 U.S.C. 1686; see also 34 CFR 106.32. harassment.’’)). commenters explained that the revision 172 34 CFR 106.33 (emphasis added).

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because ‘‘employers and training period for this rule closed, a federal CRC therefore retains the example of program staff continue to misinterpret appellate court overturned one of the sex discrimination proposed in their obligations under sex district court cases cited by the religious § 38.7(b)(9). discrimination laws, and frequently organizations.176 Further, the example Comments: Most of the commenters deny transgender people access to in § 38.7(b)(9) is the logical outgrowth of that supported inclusion of the example appropriate restrooms.’’ 173 the rulings that discrimination on the in § 38.7(b)(9) recommended that CRC also received comments basis of gender identity is clarifying changes be made. They noted opposing the inclusion of this example discrimination on the basis of sex, as that there was no principled basis for from the group of religious discussed earlier in this preamble and restricting the example of equal access organizations and seven individuals. in connection with § 38.7(a).177 to bathrooms, and they requested The religious organizations stated that CRC also does not agree that allowing clarification that the example applies to WIOA incorporates Title IX’s ‘‘separate individuals to access the bathrooms other sex-segregated facilities as well. living facilities’’ exception and that used by the gender with which they Many of the commenters also institutions are therefore permitted to identify will threaten other individuals’ recommended that the example refer to maintain separate bathrooms based on safety or privacy. Significantly, the facilities that are ‘‘consistent with,’’ biological sex. The religious commenters cited no evidence that such rather than ‘‘used by,’’ the gender with organizations further asserted that policies compromise the safety of other which individuals identify. They interpreting Section 188’s prohibition bathroom users, and CRC has identified explained that it is important to ensure on sex discrimination in this way no such evidence.178 With regard to that all individuals are able to access the ‘‘would violate basic and legitimate alleged privacy threats, such comments facilities that are most consistent with expectations of bodily privacy.’’ The assume that non-transgender their gender identity. individual commenters cited privacy individuals will react to the presence of Response: CRC agrees that the legal and safety concerns, asserting that transgender individuals based on the principle of equality and non- ‘‘unintended consequences,’’ such as transgender individuals’ sex assigned at stigmatization underlying the example assault or abuse of children, would birth, rather than on the gender with proposed in § 38.7(b)(9) applies to all result from the inclusion of this which they identify in their daily types of sex-segregated facilities. The example. interactions. Additionally, it is well proposed example was not intended to Response: CRC believes that the established that private bias, prejudice, limit transgender individuals’ access to example proposed in § 38.7(b)(9) is or discomfort ‘‘is not a legitimate basis other facilities that may be separated by consistent with Title VII and Title IX for retaining the status quo.’’ 179 CRC sex. CRC further agrees that referring to case law,174 as well as other agencies’ agrees with the EEOC that: the facilities that are ‘‘consistent with approaches, including that of the [S]upervisory or co-worker confusion or the gender with which [individuals] Department’s OFCCP.175 Thus, CRC anxiety cannot justify discriminatory terms identify’’ more clearly communicates its disagrees with the religious and conditions of employment. Title VII intent to include individuals of all organizations’ assertion that Title IX prohibits discrimination based on sex genders in the regulatory language. contains ‘‘an exemption permitting the whether motivated by hostility, by a desire to Accordingly, CRC revises the example protect people of a certain gender, by gender maintenance of separate bathrooms of sex discrimination proposed in stereotypes, or by the desire to accommodate § 38.7(b)(9) to read ‘‘Denying based on biological sex’’ (emphasis other people’s prejudices or discomfort.... added). Indeed, after the comment individuals access to the restrooms, Allowing the preferences of co-workers to locker rooms, showers, or similar determine whether sex discrimination is facilities consistent with the gender with 173 The commenters cited a national study of valid reinforces the very stereotypes and transgender individuals finding that 22 percent of prejudices that Title VII is intended to which they identify’’ (emphasis added). respondents reported being denied access to overcome.180 Finally, CRC received one comment restrooms consistent with their gender identity in suggesting an addition to § 38.7(b). the workplace. Injustice at Every Turn, supra note 176 G.G., 822 F.3d at 723. Comment: The coalition of eighty-six 53, at 56. 177 See also OFCCP Sex Discrimination Final women’s, workers’, and civil rights 174 G.G. v. Gloucester Cnty. Sch. Bd., 822 F.3d Rule, supra note 19, at 39118–19 (discrimination on 709, 723 (4th Cir. 2016) (upholding the Department organizations recommended adding the the basis of gender identity is discrimination on the following example: ‘‘[D]iscussing of Education’s interpretation of its Title IX basis of sex); HHS Nondiscrimination Final Rule, regulation as requiring schools to permit supra note 18, at 31387–89 (same). current and future plans about family transgender students to access sex-segregated 178 Cf. Nat’l Task Force to End Sexual and during the interview or career facilities consistent with their gender identity), cert. Domestic Violence Against Women, National granted, No. 16–273, 2016 WL 4565643 (U.S. Oct. counseling process may be evidence of Consensus Statement of Anti-Sexual Assault and sex discrimination.’’ The organizations 28, 2016); Highland Bd. of Ed. v. U.S. Dep’t of Ed., Domestic Violence Organizations in Support of Full 2016 WL 5372349, at *11 (S.D. Ohio Sept. 26, and Equal Access for the Transgender Community asserted that adding such an example 2016); Whitaker v. Kenosha Unified Sch. Dist. No. (Apr. 21, 2016), available at http://endsexual would align the rule with EEOC 1 Bd. of Educ., No. 2:16–cv–00943–PP (E.D. Wis. violence.org/files/NTFNational Sept. 22, 2016), ECF No. 33; Carcan˜ o v. McCrory, guidance under the ADA regarding pre- ConsensusStmtTransAccessWithSignatories.pdf offer disability-related inquiries and 2016 WL 4508192, at *11–16 (M.D.N.C. Aug. 26, (asserting that state and local nondiscrimination 2016); Hart v. Lew, 973 F. Supp. 2d 561, 581–82 (D. laws protecting transgender people’s access to under Title VII regarding inquiries about Md. 2013). But see Texas v. United States, No. facilities consistent with their gender identity have individuals’ intentions to become 7:16–cv–54, 2016 WL 4426495 (N.D. Tex. Aug. 21, not increased sexual violence or other public safety pregnant. 2016). issues). Response: CRC agrees that recipients 175 Lusardi v. Dep’t of Army, Appeal No. 179 Latta v. Otter, 771 F.3d 456, 470–71 (9th Cir. 0120133395, 2015 WL 1607756, at *8 (EEOC Apr. 2014); see also Palmore v. Sidoti, 466 U.S. 429, 433 should, as a best practice, refrain from 1, 2015); Brief for the United States as Amicus (1984) (‘‘Private biases may be outside the reach of Curiae Supporting Plaintiff-Appellant, G.G. (4th Cir. the law, but the law cannot, directly or indirectly, 1, 2015) (citing, among others, Fernandez v. Wynn Oct. 28, 2015); OFCCP Sex Discrimination Final give them effect.’’); Cruzan v. Special Sch. Dist., 294 Oil Co., 653 F.2d 1273, 1276–77 (9th Cir. 1981) Rule, supra note 19, at 39122–23; Office of F.3d 981, 984 (8th Cir. 2002) (concluding that ‘‘a (female employee could not lawfully be fired Personnel Mgmt., Diversity and Inclusion Reference reasonable person would not have found the work because employer’s foreign clients would only work Materials: Guidance Regarding the Employment of environment hostile or abusive’’ where a school with males); Diaz v. Pan Am. World Airways, Inc., Transgender Individuals in the Federal Workplace, district had a policy allowing a transgender woman 442 F.2d 385, 389 (5th Cir. 1971) (rejecting available at http://www.opm.gov/policy-data- to use the women’s faculty restroom). customer preference for female flight attendants as oversight/diversity-and-inclusion/reference- 180 Lusardi v. Dep’t of the Army, Appeal No. justification for discrimination against male materials/gender-identity-guidance/. 0120133395, 2015 WL 1607756, at *9 (EEOC Apr. applicants)).

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discussing family plans during the to identify a less discriminatory uniform interview procedures and interview or career counseling process. alternative for the allegedly questions, such that interviews cannot However, such discussions serve as discriminatory practice.183 CRC notes be used as the basis for excluding evidence of unlawful sex discrimination that that language is more closely individuals who have met other only when combined with other facts applicable to the WIOA context than the program requirements without some that support an inference of proposed language—‘‘are not program- objective and uniform basis for making discrimination. Accordingly, the EEOC related and consistent with program such determinations. Title VII guidance cited by the necessity’’—which CRC adapted from Response: CRC agrees that providing commenters states that the EEOC Title VII.184 In the final rule, to match a short, nonexhaustive list of examples typically regards inquiries into whether the wording of the legal standard that in § 38.7(c), as in the other paragraphs applicants or employees intend to applies to disparate impact in this section, would assist recipients become pregnant ‘‘as evidence of discrimination under Title IX, CRC in meeting their nondiscrimination and pregnancy discrimination where the changes that clause to ‘‘that lack a equal opportunity responsibilities under employer subsequently makes an substantial legitimate justification.’’ § 38.7. As noted above, this provision is unfavorable job decision affecting a Second, for the sake of consistency with only one of several disparate impact pregnant worker.’’ 181 Because the the other disparate impact provisions in provisions in the final rule, but CRC determination of whether such the final rule, which refer to practices believes it is particularly helpful to discussions support an inference of that have the ‘‘effect’’ of discriminating provide examples in § 38.7(c) because unlawful sex discrimination is highly on a protected basis,185 CRC replaces there may be unique disparate impact fact specific, a categorical prohibition in ‘‘an adverse impact’’ with ‘‘the effect of issues in the sex discrimination context. regulatory text is inappropriate. CRC discriminating.’’ CRC intends no In the NPRM, CRC cited Title VII also finds inapposite the analogy to the substantive changes by making these cases addressing the same employment ADA rule regarding pre-offer disability- technical revisions. practices the commenters suggested as related inquiries because pregnancy is Comments: The coalition of eighty-six examples of neutral practices that had not in itself a disability.182 For these organizations, along with an disparate impacts on women and were reasons, CRC declines to include this organization representing tradeswomen, not shown to be job related and additional example in proposed commended CRC for including § 38.7(c), consistent with business necessity.186 § 38.7(b). observing that it is particularly Therefore, in the final rule, CRC adds an Proposed § 38.7(c) provided that a important for addressing gender-based introductory sentence to § 38.7(c) recipient’s policies or practices that occupational segregation. The followed by two new examples: ‘‘Height have an adverse impact on the basis of commenters stated that many obstacles or weight qualifications that lack a sex and are not program-related and women face in fields considered substantial legitimate justification and consistent with program necessity ‘‘nontraditional’’ for women are related that negatively affect women constitute sex discrimination in to requirements or criteria that are not substantially more than men’’ and violation of WIOA. CRC received job related or required as a business ‘‘Strength, agility, or other physical comments supporting, opposing, and necessity. These commenters requirements that lack a substantial suggesting modifications to this recommended that CRC include specific legitimate justification and that proposed provision. examples of policies and practices that negatively affect women substantially Comments: Two commenters, a think may have a disparate impact on the more than men.’’ As CRC noted in the tank and a State agency, opposed CRC’s basis of sex and therefore constitute preamble to the NPRM, the disparate disparate impact regulations in general, unlawful sex discrimination if they are impact analysis may also apply to though they did not refer specifically to not job related and consistent with policies and practices that are unrelated this provision. business necessity, such as height, to selection procedures. For instance, as Response: For the same reasons as weight, and strength requirements. The discussed below in connection with discussed in connection with § 38.6, commenters also recommended that, § 38.8(d), denials of pregnancy CRC has authority to promulgate where physical tests are required due to accommodations may be analyzed disparate impact regulations, and it the demands of the job, under both disparate treatment and disagrees that this rule in general or accommodations that are available on disparate impact analyses. The principle § 38.7 in particular should prohibit only job sites should also be provided during in § 38.7(c) is intended to encompass all intentional discrimination, that is, the tests. Finally, the commenters urged such practices that have the effect of disparate treatment discrimination. CRC to state that there should be discriminating on the basis of sex and CRC does, however, make two that lack a substantial legitimate technical changes to the language 183 N.Y. Urban League, Inc. v. New York, 71 F.3d justification. proposed in § 38.7(c). First, under Title 1031, 1036 (2d Cir. 1995); Ga. State Conf. of CRC declines to implement the Branches of NAACP v. Georgia, 775 F.2d 1403, 1417 IX, as under Title VI, the disparate (11th Cir. 1985); see also U.S. Dep’t of Justice, Title commenters’ other suggestions. CRC impact analysis examines whether the IX Legal Manual IV.A.2, available at https:// agrees that, when selection procedures regulated entity’s policy or practice has www.justice.gov/crt/title-ix. require physical tests because of the a disparate impact on a protected class 184 42 U.S.C. 2000e–2(k)(1)(A)(i) (requiring a demands of the job, accommodations defendant to demonstrate that a challenged and, if so, whether the entity can employment practice that causes a disparate impact that are available on job sites should be demonstrate that there is ‘‘a substantial on a protected basis is ‘‘job related for the position provided to applicants. Such a practice legitimate justification’’ and the in question and consistent with business would help ensure that the required Department or complainant is not able necessity’’). physical tests do not have the effect of 185 See, e.g., §§ 38.6(d), (e), (f); 38.10(a)(3); 38.11; 38.12(e). Discriminatory ‘‘effect’’ may be more 181 U.S. Equal Emp’t Opportunity Comm’n, readily understood in the regulatory text than 186 CRC WIOA NPRM, supra note 70, at 4508 Enforcement Guidance on Pregnancy ‘‘adverse impact’’ or ‘‘disparate impact.’’ See, e.g., (citing Blake v. City of Los Angeles, 595 F.2d 1367 Discrimination and Related Issues I.A.3.b (2015), Young v. United Parcel Serv., 135 S. Ct. 1338, 1345 (9th Cir. 1979) (height requirement); Equal Emp’t available at http://www.eeoc.gov/laws/guidance/ (2015) (explaining that, ‘‘[i]n evaluating a disparate- Opportunity Comm’n v. Dial Corp., 469 F.3d 735 pregnancy_guidance.cfm (emphasis added) impact claim, courts focus on the effects of an (8th Cir. 2006) (strength test); Johnson v. AK Steel (hereinafter ‘‘EEOC Pregnancy Guidance’’). employment practice, determining whether they are Corp., No. 1:07–cv–291, 2008 WL 2184230, at *8 182 Id. at II.A. unlawful irrespective of motivation or intent’’). (S.D. Ohio May 23, 2008) (no-restroom policy)).

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discriminating on the basis of sex. group.’’ 189 Therefore, CRC retains in the and (b)(6), and for the same reasons as However, CRC does not believe it is final rule the principle stated in discussed above in the main preamble necessary to impose that categorical proposed § 38.7(d). and in connection with those requirement in regulatory text. For Proposed § 38.7(d)(1) addressed paragraphs, CRC adopts § 38.7(d)(3) as similar reasons, CRC does not adopt the denial of access or other adverse proposed. suggestion to require all recipients to treatment based on an individual’s The rule proposed three examples of use uniform interview procedures and failure to comply with gender norms sex stereotypes stemming from questions. However, CRC does note that and expectations for dress, appearance, caregiving responsibilities. Proposed § 38.18(b) requires recipients, in their and/or behavior, including wearing § 38.7(d)(4) addressed adverse treatment covered employment practices, to jewelry, make-up, high-heeled shoes, based on sex stereotypes about caregiver comply with the Uniform Guidelines on suits, or neckties. CRC received two responsibilities in general. It further Employee Selection Procedures, 41 CFR comments opposing this example. provided the example of assuming that part 60–3, where applicable. Comments: The group of religious a female applicant has (or will have) organizations asserted that the proposed family caretaking responsibilities and Proposed § 38.7(d) clarified that example is contrary to case law that those responsibilities will interfere discrimination based on sex stereotypes, establishing that dress and grooming with her ability to access any aid, such as stereotypes about how persons standards based on biological sex do not benefit, service, or training. Proposed of a particular sex are expected to look, violate Title VII. In addition, the same § 38.7(d)(5) addressed adverse treatment speak, or act, is a form of unlawful sex employer commenter that raised the of a male because he has taken, or is discrimination. It provided a objection to § 38.7(d) in general, based planning to take, care of his newborn or nonexhaustive list of examples of sex on the perceived need to protect the recently adopted or foster child, based stereotyping to assist recipients in rights of employers with traditional on the sex-stereotyped belief that preventing, identifying, and remedying values, specifically commented that women, and not men, should care for such examples of sex discrimination in employers should be allowed to impose children. Proposed § 38.7(d)(6) their programs. CRC received comments dress and appearance requirements on addressed denial of access or other supporting and opposing its recognition employees consistent with the adverse treatment of a woman with that sex-based stereotyping may employers’ traditional values. children based on the sex-stereotyped constitute sex discrimination. Response: CRC acknowledges that belief that women with children should Comments: The coalition of eighty-six courts have found gender-specific dress not work long hours, regardless of organizations, the women in trades and grooming codes not to constitute whether the recipient is acting out of organization, a health organization, and sex discrimination in violation of Title hostility or belief that it is acting in her an individual supported CRC’s explicit VII, but CRC emphasizes that most such or her children’s best interest. CRC decisions have focused on whether the recognition of discriminatory sex received comments supporting all three codes disparately impact one sex or stereotyping. An employer opposed the examples and recommending impose an unequal burden.190 The inclusion of § 38.7(d) in the rule. The modifications to paragraphs (d)(4) and proposed example, by contrast, focuses employer asserted that CRC was (5). specifically on discrimination on the Comments: The coalition of eighty-six discriminating against employers with basis of sex stereotypes. When dress and organizations and an individual traditional values, who should be grooming codes have been shown to be membership organization supported the permitted to impose gender-stereotyped motivated by discriminatory sex-based recognition of sex stereotypes stemming expectations on their employees if those stereotypes, courts have found the codes from caregiver responsibilities. The expectations reflect the employers’ to violate Title VII.191 With this coalition of organizations noted that traditional values. clarification, CRC adopts the example in such stereotypes contribute to gender- Response: As discussed previously in § 38.7(d)(1) as proposed. based occupational segregation. this preamble, the principle laid out in Proposed § 38.7(d)(2) addressed However, both commenters asserted that § 38.7(d) is well supported by case harassment or other adverse treatment the rule should acknowledge that these law 187 and is consistent with other of a male because he is considered stereotypes are not limited to caregivers agencies’ approaches, particularly with effeminate or insufficiently masculine. of children and that caregiving the Department of Education’s CRC received no comments on this stereotypes also include assumptions interpretation of Title IX.188 CRC does provision and adopts it in the final rule, such as that men do not have caregiving not agree that, by including examples of with a technical edit to clarify that responsibilities or that women with unlawful sex stereotyping in this rule, it harassment is a type of adverse caregiving responsibilities are less is discriminating against employers treatment. capable, successful, or committed to with traditional values. As the Supreme Proposed § 38.7(d)(3) addressed their jobs than men without such Court stated in Price Waterhouse v. adverse treatment of an individual responsibilities. Hopkins, with respect to ‘‘the legal because of the individual’s actual or Response: CRC agrees that the relevance of sex stereotyping, we are perceived gender identity. CRC received examples of discrimination based on beyond the day when an employer no unique comments on this example stereotypes mentioned by the could evaluate employees by assuming apart from comments on paragraphs (a) commenters may constitute unlawful or insisting that they matched the sex discrimination. However, CRC does 189 stereotype associated with their Price Waterhouse, 490 U.S. at 251 (plurality not find it necessary to alter the op.). proposed examples or to add further 190 See, e.g., Jespersen v. Harrah’s Operating Co., 187 See, e.g., Price Waterhouse v. Hopkins, 490 392 F.3d 1076 (9th Cir. 2004); Nichols v. Azteca examples to the final rule. The examples U.S. 228 (1989); Nev. Dep’t of Human Res. v. Hibbs, Rest. Enters., 256 F.2d 864 (9th Cir. 2001). of sex-based caregiving stereotypes 538 U.S. 721 (2003); Prowel v. Wise Bus. Forms, 191 See, e.g., Lewis v. Heartland Inns, 591 F.3d provided in paragraphs (d)(4), (5), and Inc., 579 F.3d 285 (3d Cir. 2009); Chadwick v. 1033, 1035, 1038–1042 (8th Cir. 2010); Carroll v. (6) are illustrative, not exhaustive. The Wellpoint, Inc., 561 F.3d 38 (1st Cir. 2009); Terveer Talman Fed. Sav. & Loan Ass’n, 604 F.2d 1028, v. Billington, 34 F. Supp. 3d 100 (D.D.C. 2014). 1031 (7th Cir. 1979); see also Hayden ex rel. A.H. nondiscrimination principle spelled out 188 See Revised Sexual Harassment Guidance, v. Greensburg Cmty. Sch. Corp., 743 F.3d 569, 577– in § 38.7(d)—that discrimination on the supra note 63. 78, 583 (7th Cir. 2014). basis of sex stereotypes is a form of

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unlawful sex discrimination— Proposed § 38.7(d)(8) addressed all three of these commenters reasonably covers all of the commenters’ adverse treatment of a woman because recommended that CRC add an example suggestions. Further, § 38.7(d)(4) she does not dress or talk in a feminine addressing the failure ‘‘to provide establishes the application of that manner. CRC received no comments on information about services or training general principle to the particular this provision and adopts it in the final opportunities in the full range of category of ‘‘sex stereotypes about rule. services and opportunities offered by caregiver responsibilities,’’ with no Proposed § 38.7(d)(9) addressed the recipient.’’ limitation on the gender of the caregiver denial of access or other adverse Response: CRC agrees that gender- or the age or identity of the individual treatment because an individual does based occupational segregation remains being cared for. Therefore, CRC adopts not conform to stereotypes about widespread: individuals of a certain sex working in § 38.7(d)(4), (5), and (6) as proposed in In 2012, nontraditional occupations for the final rule, except that it makes a a particular job, sector, or industry. CRC women employed only six percent of all technical correction to § 38.7(d)(4) to received comments supporting and women, but 44 percent of all men. The same change ‘‘sex assumption’’ to ‘‘sex-based recommending modifications to this imbalance holds for occupations that are assumption.’’ CRC intends no example. nontraditional for men; these employ only 5 substantive change by making this Comments: Several commenters began percent of men, but 40 percent of women. technical revision. by noting that gender-based Gender segregation is also substantial in Proposed § 38.7(d)(7) addressed occupational segregation and wage terms of the broad sectors where men and denial of access or other adverse disparities remain widespread, and they women work: three in four workers in treatment based on sex stereotyping, asserted that the federal workforce education and health services are women, including the belief that a victim of development system reinforces these nine in ten workers in the construction problems. For example, comments industry and seven in ten workers in domestic violence would disrupt the manufacturing are men.193 program or activity or be unable to submitted by the coalition of eighty-six access any aid, benefit, service, or organizations, a group of ten CRC is aware of the research studies training. CRC received comments organizations and a union, an cited by the commenters indicating that supporting this example and individual advocacy organization, and the federal workforce development recommending modifications. an organization representing system contributes to gender-based Comments: The coalition of eighty-six tradeswomen cited a research study occupational segregation and the wage women’s, workers’, and civil rights finding that women are often trained for gap. With this final rule, CRC aims to organizations; a group of ten advocacy occupations considered traditionally enforce the WIOA nondiscrimination organizations and a union; and an ‘‘female’’ while men are trained for and equal opportunity provisions to individual advocacy organization occupations considered traditionally combat these problems whenever they welcomed the addition of this example, ‘‘male’’ and that, as a result, women’s are the result of discrimination. CRC which commenters noted would earnings are substantially lower than agrees with a commenter that job enhance survivors’ safety and economic men’s once they exit federal workforce training programs ‘‘can help end the security. The coalition of organizations training services.192 These commenters occupational segregation that has kept and the individual advocacy commended CRC for including the women in lower paying fields by organization recommended that CRC example of sex-based stereotyping in providing them training to enter provide additional illustrative examples § 38.7(d)(9) because they identified such nontraditional jobs that will increase and further discussion of the effects of stereotypes as contributing to these their earnings and employability.’’ this discrimination, specifically obstacles. However, the coalition of CRC also agrees that the examples of ‘‘examples of how sex discrimination or organizations and the two individual recipient practices identified by the sex stereotyping can manifest when organizations requested that CRC commenters may exacerbate gender- both the victim and the abusive partner include further examples of the ways in based occupational segregation, which access or participate in the same which occupational segregation is may in turn contribute to pay program or activity.’’ perpetuated in training programs and disparities. In particular, because it is Response: CRC does not find it workplaces, ‘‘such as the isolation of key that recipients share information necessary to alter the proposed example women within training programs; the about any aid, benefit, service, or in § 38.7(d)(7) or to add examples to the tracking of women and men into certain training without regard to stereotypes final rule. The list of examples provided positions within a training program about individuals of a particular sex in § 38.7(d) is not exhaustive. Moreover, based on assumptions about their working in a specific job, sector, or the proposed regulatory text capabilities and skills because of their industry, CRC adds to § 38.7(d)(9) the encompasses the commenters’ sex; denial of, or unequal access to, phrase ‘‘failing to provide information suggestions. Section 38.7(d) states the networking, mentoring, and/or other about’’ any aid, benefit, service, or overall principle that discrimination on individual development opportunities training based on such stereotypes. With the basis of sex stereotypes is a form of for women; unequal on-the-job training regard to the other examples suggested unlawful sex discrimination. Section and/or job rotations; and applying by the commenters, the rule adequately 38.7(d)(7) offers just one example of the nonuniform performance appraisals that addresses such practices when they application of that principle to sex may lead to subsequent opportunities constitute sex discrimination. For stereotyping of victims of domestic for advancement.’’ Noting the example, to the extent that such violence. CRC believes that the importance of sharing information about practices constitute adverse treatment statement of the principle and the ‘‘nontraditional’’ training opportunities, based on sex stereotypes, § 38.7(d)(9) as provision of this example provide adequate guidance to recipients 192 The commenters cited Institute for Women’s 193 Ariane Hegewisch & Heidi Hartmann, Institute regarding their obligation to refrain from Policy Research, Workforce Investment System for Women’s Policy Research, Occupational discriminating against victims of Reinforces Occupational Gender Segregation and Segregation and the Gender Wage Gap: A Job Half the Gender Wage Gap (2013), available at http:// Done (2014), available at http://www.iwpr.org/ domestic violence on the basis of sex www.iwpr.org/publications/pubs/workforce- publications/pubs/occupational-segregation-and- stereotypes. Therefore, CRC adopts investment-system-reinforces-occupational-gender- the-gender-wage-gap-a-job-half-done (citations § 38.7(d)(7) as proposed in the final rule. segregation-and-the-gender-wage-gap. omitted).

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revised encompasses them. Similarly, to Response: CRC notes that, in its final proposed, with the following the extent that such practices reflect rule, OFCCP did not adopt the example modifications: Making a technical distinctions based on sex, they are suggested by the commenters. Rather, correction in paragraph (d)(2) to clarify prohibited by § 38.7(b), and some are OFCCP amended the proposed example that harassment is a form of adverse specifically addressed by the example in to cover adverse treatment of employees treatment; making a technical correction § 38.7(b)(4). or applicants based on their sexual in paragraph (d)(4) to insert the word Additionally, for State Programs, orientation where the evidence ‘‘based’’ in ‘‘sex-based assumption’’; including providers of services and establishes that the discrimination is adding failure to provide information benefits as part of a State Program such based on gender stereotypes.196 OFCCP about any aid, benefit, service, or as one stops and eligible training explained that it made this change in training to the example in paragraph providers,194 the Governor is required light of the legal framework following (d)(9) of adverse treatment on the basis by § 38.51 to monitor annually from Price Waterhouse, discussed above of stereotypes about individuals of a recipients’ compliance with WIOA with regard to sexual orientation and particular sex working in a specific job, Section 188 and this rule to ensure sex-based stereotypes in connection sector, or industry; and adding new equal opportunity, including with § 38.7(a), as well as for consistency paragraph (d)(10), an example investigating any significant differences with the position taken by the U.S. addressing adverse treatment of an in participation in the programs, Department of Health and Human individual based on sexual orientation activities, or employment provided by Services in its rule implementing where the evidence establishes that the the recipients to determine whether the Section 1557 of the Affordable Care discrimination is based on gender differences appear to be caused by Act.197 For the same reasons, CRC stereotypes. discrimination. adopts in the final rule § 38.7(d)(10), a Discrimination Prohibited Based on CRC further notes that the prohibition new example addressing adverse Pregnancy § 38.8 on sex discrimination is not the only treatment of an applicant, participant, or tool available to combat gender-based beneficiary based on sexual orientation Proposed § 38.8 addressed occupational segregation. For example, where the evidence establishes that the discrimination on the basis of the affirmative outreach provision in discrimination is based on gender pregnancy. Two commenters—the § 38.40 requires that recipients take stereotypes. coalition of eighty-six women’s, appropriate steps to ensure they are workers’, and civil rights organizations Summary of Regulatory Changes and the group of ten advocacy providing equal access to programs and organizations and a union—praised activities, including reasonable efforts to For the reasons set forth above and in CRC’s inclusion of this section devoted include persons of different sexes. the NPRM, and considering the to pregnancy discrimination. One For these reasons, CRC adopts the comments received, CRC finalizes § 38.7 commenter noted that the proposed example in § 38.7(d)(9) but modifies it as follows: CRC adopts § 38.7(a) as section ‘‘provides clarity as to to include a recipient’s failure to proposed, without modification. CRC recipients’ legal obligations toward provide information about any aid, adopts § 38.7(b) as proposed, with the pregnant WIOA applicants, participants, benefit, service, or training based on sex following modifications: In paragraph and employees . . . and is in line with stereotypes. (b)(5), removing a phrase stating that the use of gender-specific terms for jobs current law.’’ Finally, CRC received comments The proposed introductory paragraph proposing additions to § 38.7(d) always constitutes discrimination; in paragraph (b)(7), adding a cross- to § 38.8 stated the general principle addressing sex stereotyping based on that adverse treatment based on sexual orientation. reference to § 38.8, on pregnancy-based discrimination; in paragraph (b)(8), pregnancy, childbirth, and related Comment: Eight commenters—the medical conditions, including coalition of eighty-six women’s, replacing ‘‘must’’ with ‘‘may’’ to reflect that recipients are permitted but not childbearing capacity, in a WIOA workers’, and civil rights organizations; Title I-financially assisted program or six individual advocacy organizations; required to provide separate or single- user restrooms or changing facilities; activity is sex discrimination and is thus and one health organization—urged prohibited. CRC received one comment CRC to address sex stereotyping based and in paragraph (b)(9), clarifying that the access requirement applies not just suggesting an addition to this statement. on sexual orientation in § 38.7(d). Comment: The coalition of eighty-six to restrooms but also to locker rooms, Specifically, they recommended that women’s, workers’, and civil rights showers, and similar facilities. CRC CRC incorporate an example from organizations recommended that CRC adopts § 38.7(c) as proposed, with the OFCCP’s proposed rule on state the full PDA nondiscrimination following modifications: Making Discrimination on the Basis of Sex standard in the first paragraph of § 38.8, technical corrections to align the addressing ‘‘adverse treatment of an ‘‘including that recipients are required wording of the standard with Title IX individual because the individual does to treat applicants, program case law and to use the same disparate not conform to sex-role expectations by participants, and employees of impact language that is used elsewhere being in a relationship with a person of childbearing capacity and those affected 195 in the rule; adding a sentence the same sex.’’ Commenters reasoned by pregnancy, childbirth, or related introducing a nonexhaustive list of that inclusion of such language would medical conditions the same for all examples; and adding new paragraph not only reflect federal case law and employment-related purposes as other (c)(1), an example addressing height or EEOC policy but would also provide persons not so affected but similar in weight qualifications, and new consistency and clarity across the their ability or inability to work.’’ Department’s programs. paragraph (c)(2), an example addressing Response: As explained previously in strength, agility, or other physical this preamble, the PDA governs the requirements. CRC adopts § 38.7(d) as 194 Please note there is a definition of ‘‘State nondiscrimination obligations of a Programs’’ specific to this regulation at § 38.4(kkk). program or activity receiving federal 195 U.S. Dep’t of Labor, Office of Fed. Contract 196 See 40 CFR 60–20.7(a)(3). Compliance Programs, Discrimination on the Basis 197 OFCCP Sex Discrimination Final Rule, supra financial assistance only in the of Sex; Proposed Rule, 80 FR 5246, 5279, Jan. 30, note 19, at 39138; see HHS Nondiscrimination Final employment context. However, within 2015 (proposed 40 CFR 60–20.7(a)(3)). Rule, supra note 18, at 31389–90. that context, CRC agrees with the

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commenters that the nondiscrimination training on the basis of pregnancy or sufficiently strong to justify the burden, but standard of the PDA applies, and childbearing capacity. Proposed rather—when considered along with the indeed, CRC’s intention was to § 38.8(b) addressed limiting an burden imposed—give rise to an inference of incorporate that standard in proposed individual’s access to any aid, benefit, intentional discrimination. 198 The plaintiff can create a genuine issue of § 38.8. Therefore, CRC adds, to the service, or training based on that material fact as to whether a significant introductory paragraph of § 38.8 in the individual’s pregnancy, or requiring a burden exists by providing evidence that the final rule, a sentence stating the PDA’s doctor’s note for a pregnant individual employer accommodates a large percentage nondiscrimination standard regarding to begin or continue participation when of nonpregnant workers while failing to the employment context. The a doctor’s note is not required for accommodate a large percentage of pregnant introductory paragraph should therefore similarly situated nonpregnant workers. Here, for example, if the facts are as be understood to state that CRC applies, individuals. Proposed § 38.8(c) Young says they are, she can show that UPS in all circumstances, the general addressed denying access to any aid, accommodates most nonpregnant employees with lifting limitations while categorically principle that adverse treatment based benefit, service, or training, or requiring failing to accommodate pregnant employees on pregnancy, childbirth, and related termination of participation in a with lifting limitations. Young might also medical conditions, including program or activity, when an individual add that the fact that UPS has multiple childbearing capacity, is prohibited sex becomes pregnant or has a child. CRC policies that accommodate nonpregnant discrimination and that CRC applies the received no comments on these three employees with lifting restrictions suggests nondiscrimination standard of the PDA examples, and it adopts them in the that its reasons for failing to accommodate (which specifically considers final rule without change. pregnant employees with lifting restrictions individuals’ ‘‘ability or inability to Proposed § 38.8(d) addressed denial are not sufficiently strong—to the point that work’’) to recipients’ covered of accommodations or modifications to a jury could find that its reasons for failing a pregnant applicant or participant who to accommodate pregnant employees give employment practices. rise to an inference of intentional The introductory paragraph to is temporarily unable to participate in discrimination.202 proposed § 38.8 also provided a some portions of a program or activity nonexhaustive list of related medical because of pregnancy, childbirth, and/or CRC will apply this framework when conditions.199 CRC received one related medical conditions, when such analyzing pregnancy-based sex comment suggesting additions to this accommodations or modifications are discrimination allegations that seek to list. provided, or required to be provided, to show disparate treatment related to Comment: The coalition of eighty-six other participants not so affected but accommodation requests by using organizations requested that CRC similar in their ability or inability to indirect evidence in the employment include the following additional participate. CRC received two comments context. CRC solicited public comments examples of pregnancy-related medical supporting the inclusion of this example on operationalizing the pretext analysis conditions to provide recipients with and agreeing with CRC that the example described in Young and received one greater clarity: ‘‘impairments of the aligns the rule with the Supreme Court’s responsive comment. reproductive system that require a decision in Young v. United Parcel Comment: The coalition of eighty-six cesarean section, cervical insufficiency, Service.200 organizations stated that ‘‘the rule pregnancy-related anemia, pregnancy- According to Young, it is a violation proposed in § 38.8 appropriately reflects related sciatica, pregnancy-related of Title VII for an employer to deny the Young standard.’’ Nevertheless, the carpal tunnel syndrome, gestational alternative job assignments, modified organizations suggested that CRC clarify diabetes, nausea that can cause severe duties, or other accommodations to several points about the pretext dehydration, abnormal heart rhythms, employees who are unable to perform analysis: Evidence that an employer swelling due to limited circulation, some of their job duties because of accommodates a large percentage of pelvic inflammation, symphysis pubis pregnancy, childbirth, or related nonpregnant workers while failing to dysfunction, breech presentation, medical conditions when (1) the accommodate a large percentage of pregnancies characterized as ‘high-risk,’ employer provides such pregnant workers is relevant to the and depression (including but not accommodations to other employees determination of whether an employer’s limited to post-partum depression).’’ whose abilities or inabilities to perform policy or practice imposes a significant Response: CRC declines to include their job duties are similarly affected, (2) burden on pregnant workers. The additional examples in the list of related the denial of accommodations commenters cautioned that the Court’s medical conditions. As the commenters ‘‘impose[s] a significant burden’’ on language focused on a ‘‘large acknowledged, the list in proposed employees affected by pregnancy, percentage,’’ not a ‘‘majority.’’ The § 38.8 is illustrative rather than childbirth, or related medical commenters further noted that other exhaustive. When any of the suggested conditions, and (3) the employer’s evidence could also be relevant to the conditions are related to pregnancy or asserted reasons for denying determination of a significant burden, childbirth, the rule will encompass accommodations to such employees such as whether the employer has them. ‘‘are not sufficiently strong to justify the multiple policies accommodating Proposed paragraphs (a)–(d) of § 38.8 burden.’’ 201 The Court explained as nonpregnant workers but not provided a nonexhaustive list of follows the evidence required to prove accommodating pregnant workers, or examples of unlawful pregnancy that the employer’s proffered reason is whether an employer’s policies would discrimination. pretextual: reasonably be expected to result in Proposed § 38.8(a) addressed refusing accommodating a large percentage of to provide any aid, benefit, service, or We believe that the plaintiff may reach a nonpregnant workers and denying jury on this issue by providing sufficient evidence that the employer’s policies impose accommodations for a large percentage 198 See 85 FR 4494, 4511, Jan. 26, 2016. a significant burden on pregnant workers, of pregnant workers. 199 The proposed paragraph also provided that a and that the employer’s ‘‘legitimate, Response: CRC agrees that the pregnancy-related medical condition may be a nondiscriminatory’’ reasons are not commenters’ statements as disability, cross-referencing § 38.4(q)(3)(ii). Comments on this provision are discussed supra in characterized above are consistent with connection with that paragraph’s definition of 200 135 S. Ct. 1338 (2015). disability. 201 Id. at 1354. 202 Id. at 1354–55.

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the Court’s decision. CRC will consider itself, which CRC believes is adequately sections to recipients’ obligations to these points when analyzing pregnancy- explained by the nondiscrimination avoid policies, procedures, or practices based sex discrimination allegations in standard laid out in the revised that have the purpose or effect of the employment context that seek to introductory paragraph of § 38.8 and in discriminating on a prohibited basis— show disparate treatment related to the proposed example in § 38.8(d). that is, to avoid both disparate treatment accommodation requests by using Thus, CRC declines to add the example and disparate impact discrimination.206 indirect evidence. requested by the commenters. CRC does not believe it is necessary to CRC also received one comment Furthermore, CRC notes that the related provide further cross-references to the suggesting modifications to the example language the commenters suggested (‘‘or obligation to avoid disparate impact in proposed § 38.8(d). are required to be provided by a discrimination in the final rule. Comments: The coalition of eighty-six recipient’s policy or by other relevant Comment: The coalition of eighty-six organizations pointed to the possible laws’’) already appears in the proposed organizations commended CRC for interaction between the ADAAA and the regulatory text. identifying lactation as a pregnancy- analysis in Young, which, as discussed CRC does, however, make one related medical condition and further above, compares the coverage and technical change to § 38.8(d) for the sake requested an example addressing effects of accommodations policies and of consistency with other parts of § 38.8. adverse treatment of individuals practices on pregnant individuals and As explained above, the introductory because they are breastfeeding or similarly situated nonpregnant paragraph to § 38.8 now contains both because they request accommodations individuals. The organizations urged the general principle of to express breast milk. nondiscrimination on the basis of CRC to amend § 38.8(d) to require Response: CRC declines to include an pregnancy, which applies in all accommodations or modifications for additional example related to circumstances, and the pregnant individuals ‘‘when such breastfeeding. Lactation—which is nondiscrimination standard of the PDA, accommodations or modifications are inclusive of breastfeeding—is listed as a which applies to recipients’ covered provided, or are required to be provided ‘‘related medical condition’’ in § 38.8. employment practices. The specific by a recipient’s policy or by other Moreover, the list of examples of incorporation of the PDA standard in relevant laws, to other applicants or unlawful pregnancy discrimination is proposed § 38.8(d) is therefore participants.’’ The organizations merely illustrative; the fact that it does unnecessary, and CRC revises the asserted that the ADAAA requires not include lactation examples does not recipients to accommodate many language to refer generally to similarly situated individuals, consistent with the mean that adverse treatment associated nonpregnant individuals who have the with lactation is not discriminatory. To very same limitations typically general nondiscrimination principle and the language in § 38.8(b). the contrary, as lactation is a pregnancy- experienced by pregnant individuals 207 Finally, CRC received comments related medical condition, adverse and that, combined with the standard suggesting additional examples in action against individuals because they articulated by the Court in Young, § 38.8. are breastfeeding or because they recipients are therefore required to Comment: The coalition of eighty-six request accommodations to express provide these accommodations to many organizations recommended that the breast milk will be considered unlawful more pregnant individuals. The final rule reiterate that an sex discrimination under this rule. organizations specifically requested that accommodation policy that Comment: One individual commenter CRC include, in § 38.8(d), an example disproportionately excludes employees stated that ‘‘women must have explicit ‘‘explaining that the ADAAA’s who need accommodations because of guarantees of maternity leave, at least expansive coverage means that most pregnancy may constitute disparate within the WIOA financially assisted nonpregnant individuals similar in impact discrimination. The program.’’ ability to work to pregnant individuals organizations recommended that CRC Response: CRC agrees that recipients with physical limitations will be provide additional examples of this should, as a best practice, provide accommodated and recipients who form of discrimination in the area of appropriate leave policies. Furthermore, refuse to also accommodate pregnant accommodations and cross-reference the CRC has jurisdiction to consider, on a workers in this situation are at obligation to avoid disparate impact case-by-case basis, whether a recipient’s significant risk of liability.’’ discrimination throughout the rule. covered leave policies are Response: The EEOC has observed, Response: CRC agrees that denials of discriminatory and whether the and CRC agrees, that the ADAAA’s pregnancy accommodations may be provision of leave is required as a form definition of ‘‘disability’’ may not only analyzed under a disparate impact of reasonable accommodation. ‘‘make it much easier for pregnant analysis as well as a disparate treatment Separately, CRC notes that employees workers with pregnancy-related analysis.205 As discussed previously in may be entitled to unpaid leave under impairments to demonstrate that they connection with § 38.7(c), if a the Family and Medical Leave Act and have disabilities for which they may be recipient’s accommodation policy or to paid and/or unpaid leave under State entitled to a reasonable accommodation practice has the effect of discriminating 203 law. However, it is outside the scope of under the ADA’’ but may also on the basis of sex (and lacks a CRC’s authority to institute a general ‘‘expand[ ] the number of non-pregnant substantial legitimate justification), then maternity leave requirement in this rule. employees who could serve as that policy or practice constitutes CRC therefore declines to add this comparators where disparate treatment unlawful sex discrimination under requirement to § 38.8. under the PDA is alleged.’’ 204 However, § 38.7(c) of the final rule. CRC therefore neither of those possible effects alters does not find it necessary to provide 206 See, e.g., §§ 38.6(d), (e), (f); 38.10(a)(3); 38.11; the pregnancy discrimination analysis additional examples of disparate impact 38.12(e). discrimination related to pregnancy 207 Equal Emp’t Opportunity Comm’n v. Houston 203 EEOC Pregnancy Guidance, supra note 181, accommodations. CRC further notes that Funding II, Ltd., 717 F.3d 425, 430 (5th Cir. 2013) Overview of Statutory Protections; see also Young, (discrimination on the basis of lactation is covered 135 S. Ct. at 1348. the final rule refers in numerous under Title VII generally and as a ‘‘related medical 204 EEOC Pregnancy Guidance, supra note 181, at condition’’ under the PDA); EEOC Pregnancy 11. 205 See Young, 135 S. Ct. at 1345. Guidance, supra note 181, I.A.4.b.

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Summary of Regulatory Changes LEP individuals in Title I job training based on limited English proficiency but For the reasons set forth above and in programs and the significant language failed to make that explicit in § 38.9(a). CRC now adds ‘‘including limited the NPRM, and considering the access violations that CRC’s compliance English proficiency’’ to § 38.9(a), comments received, CRC is finalizing reviews have revealed. consistent with guidance issued by CRC § 38.8 as proposed, with the following Response: CRC agrees with the in 2003 advising all recipients of federal modifications: CRC is adding to the commenters’ recommendation that, in financial assistance from the introductory paragraph a sentence addition to CRC’s statement in the Department of Labor 212 of the Title VI stating that the nondiscrimination preamble, § 38.9(a) should explicitly prohibition against national origin standard of the PDA applies to include the legal prohibition of national discrimination affecting LEP recipients’ covered employment origin discrimination affecting LEP individuals.213 This 2003 DOL LEP practices, and CRC is revising paragraph individuals. Consistent with Title VI Guidance was issued pursuant to (d) to encompass the general pregnancy case law and the DOL and DOJ guidance Executive Order 13166, which directed nondiscrimination standard rather than on ensuring equal opportunity and each federal agency that extends the specific PDA standard. nondiscrimination for individuals who assistance subject to the requirements of are LEP 208 § 38.9(a) now more clearly Discrimination Prohibited Based on Title VI to publish guidance for its provides that discrimination against National Origin, Including Limited respective recipients.214 Executive individuals based on their limited English Proficiency § 38.9 Order 13166 further directs that all such English proficiency may be unlawful The proposed rule added a section on guidance documents be consistent with national origin discrimination. As the the compliance standards and national origin discrimination. Proposed proposed rule set forth, Title VI § 38.9(a) stated the existing obligation framework detailed in the DOJ Policy provides that ‘‘[n]o person in the United Guidance titled ‘‘Enforcement of Title that a recipient must not discriminate States shall, on the ground of race, on the basis of national origin in VI of the Civil Rights Act of 1964— color, or national origin, be excluded National Origin Discrimination Against providing any aid, benefit, service, or from participating in, be denied the training under any WIOA Title I- Persons with Limited English benefits of, or be subjected to Proficiency.’’ 215 Thus, for the reasons financially assisted program or activity. discrimination under any program or It also explained that national origin stated in the preamble to the proposed activity receiving Federal financial rule, and in consideration of the discrimination includes ‘‘treating assistance.’’ 209 Indeed, the Supreme individual beneficiaries, participants, or comment, we have added ‘‘including Court in Lau v. Nichols held that limited English proficiency’’ at the end applicants for aid, benefit, service or excluding LEP children from effective training under any WIOA Title I- of the first sentence of § 38.9(a). participation in an educational program Comment: In contrast, one State labor financially assisted program or activity because of their inability to speak and agency opposed including limited adversely because they (or their families understand English constitutes national English proficiency in the description of or ancestors) are from a particular origin discrimination prohibited by what constitutes national origin country or part of the world, because of 210 Title VI and its regulations. Courts discrimination, and objected that the ethnicity or accent (including physical, have consistently found that a proposed rule appeared to create a new linguistic, and cultural characteristics recipient’s failure to provide meaningful category of national origin closely associated with a national origin access to LEP individuals can violate discrimination based on an individual’s group), or because the recipient Title VI’s prohibition of national origin language of choice. The commenter perceives the individual to be of a 211 discrimination. As a result, the asserted that Lau v. Nichols,216 the certain national origin group, even if proposed rule indicated that the principal case upon which CRC relies to they are not.’’ definition of national origin justify these changes, is of questionable Comment: Several commenters, discrimination includes discrimination validity because it was abrogated in part including advocacy organizations and a by Alexander v. Sandoval.217 professional association, expressed 208 See DOJ LEP Guidance, supra note 23; DOL Additionally, the commenter asserted general support for the provisions LEP Guidance, supra note 28, at 32291. that the proposed insertion of the phrase prohibiting discrimination on the basis 209 42 U.S.C. 2000d. ‘‘including limited English proficiency’’ of national origin, including limited 210 414 U.S. 563, 568–69 (1974). 211 would be an inappropriate use of English proficiency. However, several See, e.g., Colwell v. Dep’t of Health & Human rulemaking authority because it would advocacy organizations recommended Servs., 558 F.3d 1112, 1116–17 (9th Cir. 2009) (recognizing a long history of interpreting elevate to a statutory level language that that the proposed rule be revised to discrimination against LEP individuals as does not exist in the United States Code. explicitly state that denial of services discrimination on the basis of nation origin); United Response: We disagree with the based on an individual’s limited English States v. Maricopa Cnty., 915 F. Supp. 2d 1073, commenter’s assertion calling into proficiency may constitute 1079 (D. Ariz. 2012) (‘‘[L]ongstanding case law, federal regulations and agency interpretation of question the precedential value of Lau impermissible national origin those regulations hold language-based in light of Sandoval. CRC has already discrimination. These commenters discrimination constitutes a form of national origin addressed this very issue in its 2003 argued that this change to the regulatory discrimination under Title VI.’’); Faith Action for Cmty. Equity v. Hawaii, No. 13–00450 SOM/RLP, DOL LEP Guidance.218 There, we agreed text was necessary to clarify that 2014 WL 1691622, at *14 (D. Haw. Apr. 28, 2014) recipients are subject to Title VI’s (‘‘The foreseeable disparate impact of the English- 212 In this instance, the term ‘‘recipient’’ is prohibitions against national origin only policy, the allegedly pretextual justifications broader than the definition at § 38.4(zz). See notes discrimination affecting LEP for the English-only policy, and the potentially 13–17 and accompanying text for an explanation of derogatory comments made and the attitude the term ‘‘recipient’’ with respect to WIOA Title I individuals, as reflected in current Title allegedly shown by HDOT officials suffice to make VI case law, as well as guidance from programs and activities. Plaintiffs’ claims plausible.’’); Nat’l Multi Hous. 213 DOL LEP Guidance, supra note 28, at 32290. Council v. Jackson, 539 F. Supp. 2d 425, 430 CRC and from the Department of Justice. 214 65 FR 50121, Aug. 16, 2000. (D.D.C. 2008) (‘‘Longstanding Justice Department Furthermore, these commenters stated 215 regulations also expressly require communication 65 FR 50123, Aug. 16, 2000. that their proposed revision is between funding recipients and program 216 414 U.S. 563 (1974). particularly important in light of the beneficiaries in languages other than English to 217 532 U.S. 275 (2001). current severe underrepresentation of ensure Title VI compliance.’’). 218 DOL LEP Guidance, supra note 28, at 32292.

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with DOJ’s determination that Sandoval may constitute unlawful national origin comment on this approach, particularly did not overturn Lau with respect to the discrimination.227 Agencies must ensure whether the four factors should instead Title VI obligation to provide that recipients of their federal financial be incorporated into the regulatory text, meaningful access to LEP assistance do not directly or indirectly whether the weight to be accorded the individuals.219 Instead, Sandoval discriminate against LEP individuals. ‘‘nature and importance’’ factor is principally held that there is no private To ensure they do not discriminate appropriate, and whether there are right of action to enforce Title VI against LEP individuals, recipients must additional factors that should be part of disparate impact regulations.220 We identify the appropriate language in the analysis. stated in our DOL LEP Guidance that, in which to provide language access The comments and our responses consideration of Sandoval’s impact, we services for each LEP individual. regarding § 38.9(b) are set forth below. would continue to strive to ensure that Therefore, CRC believes the term Comment: One State labor agency federally assisted programs and ‘‘preferred language’’ captures recommended that, rather than leaving activities work in a way that is effective information that is relevant to serving it to CRC to decide on appropriate for all eligible beneficiaries, including LEP individuals, and notes that term is factors on a case-by-case basis, the ‘‘four those with limited English also used by States with language access factors’’ test should be retained for proficiency.221 The same conclusion laws.228 The commenter did not suggest purposes of assessing a recipient’s LEP applies here. an alternative term, but objected based compliance. The commenter asserted The sole question in Sandoval was upon the commenter’s reading of Lau that the ‘‘four factors’’ test should be ‘‘whether private individuals may sue to and Sandoval. As explained already, we retained because it has been the rule for enforce disparate-impact regulations disagree with the commenter’s view of more than two decades and discarding promulgated under Title VI of the Civil the case law on this issue. Thus, CRC it would create ambiguity leading to Rights Act of 1964.’’ 222 The Supreme declines to make any regulatory unnecessary legal disputes between Court concluded that ‘‘private parties modifications based on the commenter’s recipients and CRC. may not invoke Title VI regulations to assertions. Response: We disagree with the obtain redress for disparate-impact Proposed § 38.9(b) adopted a well- commenter’s characterization that discrimination because Title VI itself established principle under Title VI of declining to list the ‘‘four factors’’ prohibits only intentional the Civil Rights Act of 1964 by requiring analysis in § 38.9 will create ambiguity discrimination.’’ 223 The decision in that recipients of federal financial and lead to unnecessary legal disputes Sandoval specifically declined to assistance take reasonable steps to between recipients and CRC. Thus, this address ‘‘whether the DOJ regulation provide meaningful access to each LEP final rule does not include the four was authorized by § 602, or whether the individual whom they serve or factors in regulatory text, instead courts below were correct to hold that encounter. CRC acknowledged in the outlining the general rule that the the English-only policy had the effect of preamble to the proposed rule that its obligation of a recipient is to provide discriminating on the basis of national LEP guidance long has employed ‘‘four meaningful access in the form of origin.’’ 224 Sandoval did not address factors’’ when assessing the language assistance of some type. We DOJ’s authority to enforce the Title VI effectiveness of a recipient’s steps to believe a formulaic analysis detracts disparate impact regulations or the ensure meaningful access: (1) The from the application of the general rule, lower court decisions that an English- number or proportion of LEP persons as well as from the primary weight to be only policy had the effect of served or encountered in the eligible placed on the nature and importance of discriminating on the basis of national service population; (2) the frequency the program or activity. Recipients origin.225 Sandoval did not overturn with which LEP individuals come in should, and CRC will, review each situation based on the facts presented. Lau’s holding that ‘‘[l]anguage-based contact with the program; (3) the nature The principle that recipients must take discrimination can constitute a form of and importance of the program, activity, reasonable steps to provide meaningful national-origin discrimination under or service provided by the recipient; and access for each LEP individual to Title Title VI.’’ 226 (4) the resources available to the CRC also disagrees with the recipient and costs.229 CRC invited I programs and activities also existed commenter’s assertion that including under WIA. 227 In consideration of this comment, limited English proficiency in the rule See supra notes 24–26 and accompanying text. 228 CRC reviewed its LEP enforcement cases would be an inappropriate use of For example, pursuant to the DC Language Access Act, the DC Office of Human Rights requires and determined that CRC has never rulemaking. It is well established that covered entities to collect data on the number of found a recipient in violation for failing policies and practices that deny LEP LEP individuals served in an annual report. See to perform the four factors analysis. individuals meaningful access to final rulemaking at 55 DCR 6348, June 8, 2008, as Rather, recipients have been found in federally funded programs and activities amended by final rulemaking published at 61 DCR 9836, Sept. 26, 2014. The question on the DC Office violation only when they fail to take of Human Rights Complaint Form for the purposes reasonable steps to provide meaningful 219 Id. at 32292–93. of capturing this information is ‘‘What language do 220 Id. at 32293 and note 1; Sandoval, 532 U.S. you prefer to communicate in?’’ DC Government access. Additionally, while we at 278. Employment Intake Questionnaire Form, available recognize that the decision not to 221 DOL LEP Guidance, supra note 28, at 32292. at http://dcforms.dc.gov/webform/employment- incorporate the four factors into the intake-questionnaire-form. In California, the 222 Sandoval, 532 U.S. at 278. Dymally-Alatorre Bilingual Services Act requires regulatory text may suggest a change 223 Jackson v. Birmingham Bd. of Educ., 544 U.S. local agencies to provide language access to limited from DOL LEP Guidance, the four 167, 178 (2005). English proficient speakers. Ca. Govt. Code § 7290– factors and the DOL LEP Guidance may 224 Id. at 279. 7299.8. The Bilingual Services Program at the still be used as relevant guidelines for 225 Id. California Department of Human Resources 226 J.D.H. v. Las Vegas Metro. Police Dep’t, No. provides oversight, including conducting language recipients. In Title VI, Congress 2:13–CV–01300–APG, 2014 WL 3809131, at *4 (D. surveys on implementation. Cal. Dep’t of Human delegated ‘‘to the agencies in the first Nev. Aug. 1, 2014), citing Colwell v. Dep’t of Health Res., Bilingual Services Program, available at http:// instance the complex determination of & Human Servs., 558 F.3d 1112, 1116–17 (9th Cir. www.calhr.ca.gov/state-hr-professionals/Pages/ what sorts of disparate impacts upon 2009), abrogated on other grounds by Sandoval, 532 Bilingual-Services.aspx. See also Haw. Rev. Stat. U.S. 275 (2001)) (‘‘discrimination against LEP sections 371–31 to –37. minorities constituted sufficiently individuals was discrimination based on national 229 See DOL LEP Guidance, supra note 28, at significant social problems, and were origin in violation of Title VI’’). 32293–95. readily enough remediable, to warrant

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altering the practices of the federal nature and importance of the program or weight to the nature and importance of grantees that had produced those activity, we decline to assign a the program or activity, including the impacts.’’ 230 Despite the four factors’ particular weight to any specific particular communication at issue, in absence from the rule, CRC will relevant factor. Instead, recipients determining the appropriate level, type consider a number of relevant factors, should, and CRC will, consider and and manner of language assistance including the ‘‘four factors,’’ based upon weigh all relevant factors, on a case-by- services to be provided. CRC will also the facts presented in each case. case basis, when determining whether consider any other relevant factors on a To provide guidance to recipients on recipients have taken reasonable steps case-by-case basis, as described above. our intended interpretation of § 38.9(b), to provide meaningful access to LEP CRC intends to provide technical the following preamble discussion sets individuals. assistance to the workforce system on forth a range of factors that may be Thus, as proposed, CRC will not the requirement to take reasonable steps relevant in any given case, regarding the include the ‘‘four factor’’ analysis in the to provide meaningful access for LEP requirement to take reasonable steps to regulatory text of the final rule.232 individuals and will update and/or provide meaningful access to services Comment: A few commenters issue tools to assist recipients to provided. Recipients must take requested clarification of the facilitate compliance. reasonable steps to provide meaningful requirements proposed in § 38.9(b). A For all of the foregoing reasons, and language access service to each LEP State agency asked what specific actions in consideration of the comments, individual encountered. Based upon recipients will be required to take to regulatory modifications are CRC’s experience reviewing and satisfy the requirement to take unnecessary to address the commenters’ enforcing compliance with LEP ‘‘reasonable steps’’ to ensure meaningful concerns. language access requirements, factors access to LEP individuals. The Comment: A State labor agency asked that CRC may consider in determining commenter also asserted that the for clarification on the meaning of compliance regarding the appropriate proposed rule fails to provide the ‘‘appropriate non-English language’’ level of LEP services include, but are necessary detail clarifying how many within § 38.9(b)(2)(i) and (ii), including not limited to: The nature and LEP individuals must be ‘‘served and specification of whether it means importance of the program, activity, or encountered’’ to trigger the requirement something other than a threshold. The service provided by the recipient, that the recipient take these reasonable commenter asserted that if it meant including the nature and importance of steps, and stated that the final rule something other than languages meeting the particular communication at issue should set a reasonable number of the threshold of 5 percent or 1,000 (this factor is to be given primary ‘‘encounters’’ or percentage of individuals, then the requirements of weight); the length, complexity, and population served that communicate in these sections are cost prohibitive and unreasonable. context of the communication; the a certain manner before requiring a recipient to have procedures in place to Response: The text ‘‘appropriate non- number or proportion of LEP persons satisfy that population’s specific needs. English’’ language in § 38.9(b)(2)(i) and served or encountered in the eligible Response: We recognize the (ii) does not, as the commenter asks, service population; the frequency with commenters’ concerns that the proposed mean a threshold. The use of which LEP individuals come in contact rule does not provide detail with respect ‘‘appropriate’’ here is not meant to be a with the program; the prevalence of the to ‘‘served or encountered’’ but we test by which recipients determine language in which the individual decline to modify this provision. whether to provide meaningful access; it communicates among those eligible to Recipients must take reasonable steps to simply refers to the language, other than be served or likely to be encountered by provide meaningful access to each LEP English, that is being translated. the program or activity; the frequency individual. CRC recognizes that Comment: Several advocacy with which a recipient encounters the providing a specific number to trigger organizations commented that the draft language in which the individual certain translation obligations, or regulations do not provide sufficient communicates; whether a recipient has detailing specific actions to take in all direction to recipients to ensure that explored the individual’s preference, if cases, could appear to benefit some they are not only effectively providing any, for a type of language assistance recipients in meeting their obligations information to LEP individuals but also service, as not all types of language under this part, but it could also make providing meaningful access to LEP assistance services may work as well as compliance difficult for a small individuals to participate in programs or others in providing an individual recipient or be wholly inapplicable to activities under Title I. These meaningful access to the recipient’s another. commenters recommended that the program or activity; the cost of language This provision is intended to be a ‘‘and/or’’ in § 38.9(b) be replaced with assistance services and whether a flexible standard specific to the facts of ‘‘and’’ to ensure that recipients are recipient has availed itself of cost-saving each situation. Providing additional required to take reasonable steps to opportunities; all resources available to specificity, at least in the final rule, inform LEP individuals about Title I the recipient, including its capacity to would apply rigid standards across-the- programs and activities and to facilitate leverage resources within and without board to all recipients and thus their participation in such programs and its organizational structure, or to use its jeopardize that very goal. As discussed activities. These advocacy organizations negotiating power to lower the costs at above, in evaluating the scope of a also recommended that the final which language assistance services recipient’s obligations to provide regulations be expanded to include could be obtained; and whether the meaningful access, recipients should, additional guidance on the reasonable recipient has taken the voluntary and CRC intends to, give substantial steps that recipients must take to ensure measure of developing a language access that LEP individuals are afforded 231 plan. With the exception of the similar factors that may be relevant in any given meaningful access to Title I programs LEP language access case). and activities, including adding the 230 Alexander v. Choate, 469 U.S. 287, 293–94 232 This is consistent with HHS’s approach in its following examples of a reasonable (1985) (discussing Guardians Ass’n v. Civil Serv. recent final rule. See HHS Nondiscrimination Final Comm’n, 463 U.S. 582 (1983)). Rule, supra note 18, at 31415–16 (listing range of method to § 38.9(b)(2): ‘‘Programming 231 See also HHS Nondiscrimination Final Rule, relevant factors in preamble that may be considered that simultaneously provides English supra note 18, at 31415–16 (listing a range of although not listed in regulatory text). language training with vocational or

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other workforce training to limited appropriate languages how an the factual context in which the English proficient individuals individual can effectively learn about, interpretation is being provided. This (integrated education and training).’’ participate in, and/or access any aid, provision allows the LEP individual to Response: CRC believes that benefit, service or training that the rely on an adult of their own choosing, regulatory modifications are recipient provides. This provision but requires the recipient, after offering unnecessary to address the commenters’ ensures that, as recipients convert to an interpreter, to document that choice concerns because the use of ‘‘and/or’’ online delivery systems, language access so that there can be no question does not relieve a recipient of its is not lost in the transition. CRC regarding the voluntariness of the obligation to provide meaningful access received no comments on this provision choice of interpreter. Proposed to individuals who are LEP. We also and adopts it without change in the paragraph (f)(3) outlines that, where believe § 38.9 does provide sufficient final rule. precise, complete, and accurate direction to recipients regarding the Proposed § 38.9(d) specified that any interpretations or translation of provision of meaningful access to LEP language assistance services, whether information and/or testimony are individuals to participate in Title I oral interpretation or written critical for adjudicatory or legal reasons, programs and activities, and that no translation, must be provided free of or where the competency of the LEP further examples of reasonable steps to charge and in a timely manner. CRC person’s interpreter is not established, a ensure meaningful access need be received no comments on this provision recipient may decide to provide its own, provided in the regulatory text. and adopts it without change in the independent interpreter, even if an LEP However, as noted above, CRC intends final rule. individual wants to use the individual’s to provide technical assistance to the Proposed § 38.9(e) stated that a own interpreter as well. Thus, CRC workforce system on the requirement to recipient must provide adequate notice declines to make any modification to take reasonable steps to provide to LEP individuals of the existence of § 38.9(f). meaningful access for LEP individuals interpretation and translation services Regarding the comment suggesting the and will update and/or issue tools to and that they are available free of ASL interpreter, providing a sign assist recipients to facilitate compliance. charge. The provision would ensure that language interpreter is specifically Recipients may submit technical LEP individuals are aware that they do covered under the obligation to provide assistance requests to CRC at not have to navigate WIOA Title I auxiliary aids and services to [email protected]. programs and activities unassisted, or at individuals with disabilities (§ 38.15), We note that § 38.9(c) makes clear that their own expense. CRC received no not the obligation to provide services to a recipient should ensure that every comments on this provision and adopts individuals with limited English program delivery avenue, including it without change in the final rule. proficiency. For this reason, CRC electronic, in person, and/or telephonic Proposed § 38.9(f) stated that a declines to make the suggested changes. communication, conveys in the recipient will not require LEP In the proposed rule, § 38.9(g) appropriate languages how an individuals to provide their own addressed recipients’ LEP requirements individual can effectively learn about, interpreters and identified restrictions as to vital information. Section participate in, and/or access any aid, on the use of certain persons to provide 38.9(g)(1) provided that, for languages benefit service or training that the language assistance services for an LEP spoken by a significant number or recipient provides; section 38.9(d) individual. Proposed paragraphs (f)(1) portion of the population eligible to be specifies that any language assistance and (2) identified the narrow and finite served or likely to be encountered, services, whether oral interpretation or situations in which a recipient may rely recipients must translate vital written translation, must be provided on an adult or a minor child information in written materials into free of charge and in a timely manner; accompanying an LEP individual to these languages and make the and § 38.9(e) states that a recipient must interpret. CRC received one comment on translations readily available in hard provide adequate notice to LEP § 38.9(f). The comment and response are copy, upon request, or electronically individuals of the existence of set forth below. such as on a Web site. Written training interpretation and translation services Comment: An advocacy organization materials offered or used within and that they are free of charge. asserted that it is never appropriate for employment-related training programs Moreover, we decline to add the an ‘‘accompanying adult’’ to be asked to as defined under § 38.4(t) are excluded suggested example from the commenter provide communication access for LEP from these translation requirements. to the regulation text: ‘‘Programming individuals and recommended that The vital information these training that simultaneously provides English § 38.9 be revised to include an materials contain can be provided to language training with vocational or affirmative obligation to provide LEP participants by oral interpretation, other workforce training to limited interpreters. Furthermore, the summarization during the training English proficient individuals commenter recommended that a program itself, or other reasonable steps. (integrated education and training).’’ provision be added to § 38.9 creating an However, recipients must still take The appendix to § 38.9 (Illustrative obligation to provide for a qualified sign reasonable steps to ensure meaningful Applications in Recipient Programs and language (ASL) interpreter or other access to training programs as stated in Activities, Ex. 3) already provides an reasonable accommodation for paragraph (b) of this section. example that explains that, depending individuals who are deaf. In the proposed rule, § 38.9(g)(2) upon the circumstances, an English Response: CRC believes that § 38.9(f) required that, ‘‘for languages not spoken language class could be offered before, provides sufficient guidance to allow by a significant number or portion of the or at the same time as, a training recipients to strike the proper balance population eligible to be served, or program, but should not be offered between the many situations where the likely to be encountered, a recipient instead of the training program. use of informal interpreters is must make reasonable steps to meet the Proposed § 38.9(c) made clear that a inappropriate and the few situations particularized language needs of LEP recipient should ensure that every where the limited use of ‘‘an individuals who seek to learn about, program delivery avenue, including accompanying adult’’ is necessary and participate in, and/or access the aid, electronic, in person, and/or telephonic appropriate in light of the nature of a benefit, service or training that the communication, conveys in the service or benefit being provided and recipient provides. Vital information

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may be conveyed orally if not individuals, in violation of federal have taken greater strides in meeting translated.’’ For these languages, nondiscrimination law.233 their LEP requirements over the last 14 recipients are not obligated to provide With respect to the commenter’s years; all recipients should have current written translations of vital information concern that the requirement would plans, including budgetary plans, in in advance of encountering any specific divert funds from other modernization place to meet these requirements. CRC LEP individual. Recipients are, efforts, CRC is sensitive to the budgetary is available to provide technical however, required to take reasonable demands on recipients. CRC assistance to the workforce system on steps, including oral translation, to recommends that readers consult the requirement to take reasonable steps provide access to vital information, once longstanding guidance about taking to provide meaningful access for LEP an LEP individual seeks to learn about, reasonable steps to ensure meaningful individuals and will update and/or participate in, and/or access a WIOA access to vital information and other issue tools to assist recipients to Title I program or activity. aspects of programs and activities. facilitate compliance. Proposed § 38.9(g)(3) stated that In 2002, the DOJ LEP Guidance Comment: A State labor agency recipients must include a ‘‘Babel explained that determining ‘‘[w]hether recommended against the requirements notice’’ indicating that language or not a document (or the information of § 38.9(g) unless the partner is assistance is available, in all it solicits) is ‘vital’ may depend upon colocated within a one-stop center. communications of vital information, the importance of the program, Response: In response to one State such as hard-copy letters or decisions or information, encounter, or service labor agency’s recommendation to those communications posted on Web involved, and the consequence to the delete § 38.9(g) unless the partner is sites. LEP person if the information in colocated within a one-stop center, we The comments and our responses question is not provided accurately or in 234 decline the recommendation but regarding § 38.9(g)(1)–(3) are set forth a timely manner.’’ Similarly, the provide broader context for the below. DOL LEP Guidance tracked the DOJ commenter regarding the obligations of Comment: Although eliminating the Guidance as to vital document 235 recipients. One-stop partners, as defined requirement to translate vital translation. To facilitate the process, in section 121(b) of WIOA, are information was the commenter’s ‘‘recipients are encouraged to create a recipients for purposes of this rule and preference, a State government agency plan for consistently determining, over are subject to the nondiscrimination and urged CRC to, at the very least, add time and across its various activities, equal opportunity requirements of this more flexibility for recipients to provide what documents are ‘vital’ to the part, to the extent that they participate vital information through means other meaningful access of the LEP 236 in the one-stop delivery system. One- than hard copy and electronic written populations they serve.’’ The 2002 stop centers are not just a physical forms. This commenter directed CRC to DOJ LEP Guidance also explained the location, but may include a larger existing guidance, which the commenter importance of ‘‘pooling resources and electronic network. Recipients, described as sufficient and as providing standardizing documents to reduce including one-stop partners, regardless flexibility to recipients who do not have translation needs, using qualified of location, must translate vital the means to keep and create both hard translators and interpreters to ensure information in accordance with copy and electronic translations of vital that documents need not be ‘fixed’ later § 38.9(g). Written training materials information contained in written form. and that inaccurate interpretations do offered or used within employment- Furthermore, the commenter asserted not cause delay or other costs, [as well related training programs as defined that the translation requirements would as] centralizing interpreter and under § 38.4(t) are excluded but divert funding currently being used to translator services to achieve economies recipients must take reasonable steps to meet other modernization efforts (e.g., of scale . . . [which] may help reduce 237 ensure meaningful access for LEP the move to online automated systems). costs.’’ Recipients were directed to individuals as stated in § 38.9(b). Thus, Response: Contrary to the ‘‘carefully explore the most cost- CRC declines to make any regulatory commenter’s belief, recipients do in fact effective means of delivering competent modifications. and accurate language services before have flexibility to translate into either Comment: A State agency emphasized limiting services due to resource hard copy or electronic form. CRC the importance of defining concerns. Large entities and those believes that proposed § 38.9(g) does ‘‘standardized documents’’ to clarify the entities serving a significant number or provide that flexibility. The rule scope of the translation requirement. proportion of LEP persons should requires recipients to translate vital The commenter proposed that the term ensure that their resource limitations are information in written materials into ‘‘standardized documents’’ be defined to well-substantiated before using this certain languages and make the mean ‘‘static documents that are not factor as a reason to limit language translations readily available in hard unique to a case.’’ Additionally, the assistance.’’ 238 Some recipients may copy, upon request, or electronically commenter noted that it would be such as on a Web site. The intentional reasonable to include the standard use of the word ‘‘or’’ allows recipients 233 See U.S. Dep’t of Labor, Emp’t & Training Admin., Unemployment Insurance Program Letter elements of documents that may also flexibility. CRC expects, however, that No. 02–16, State Responsibilities for Ensuring contain unique, targeted, or dynamic the availability and/or provision of Access to Unemployment Insurance Benefits (Oct. translated vital information to LEP 1, 2015), available at http://wdr.doleta.gov/ directives/attach/UIPL/UIPL_02-16.pdf. recipients’ allegations ‘‘that they are spending individuals will be comparable to that money on language assistance’’ was ‘‘insufficient’’ 234 DOJ 2002 LEP Guidance, supra note 23, at to establish a hardship); Sandoval v. Hagan, afforded to non-LEP individuals. CRC 41463. 7 F. Supp. 2d 1234, 1312 (M.D. Ala. 1998) (holding also cautions that the use of a Web site 235 DOL 2002 LEP Guidance, supra note 28, at recipient cannot establish a substantial legitimate and web-based technology as the sole or 32298. cost concern under Title VI to cease the translation primary way for individuals to obtain 236 DOJ 2002 LEP Guidance, supra note 23, at of exams into foreign languages when the recipient information may have the effect of 41463; DOL LEP Guidance, supra note 28, at 32298. has a budget of over $50 million and such denying or limiting access to LEP 237 DOJ 2002 LEP Guidance, supra note 23, at translations costs would be ‘‘trifling’’ in 41460. comparison), aff’d, 197 F.3d 484 (11th Cir. 1999); individuals and members of other 238 Id.; Colwell v. Dep’t of Health & Human rev’d on other grounds, Alexander v. Sandoval, 532 protected groups, apart from LEP Servs., 558 F.3d 1112, 1129 (9th Cir. 2009) (holding U.S. 275 (2001).

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information (e.g., representative materials, reasoning that recipients well-substantiated before using this versions of common correspondence). should be required to create an factor as a reason to limit language Response: We agree that ‘‘vital environment in which LEP individuals assistance.’’ 240 Thus, regulatory information in written materials,’’ as can participate in training programs, not modifications are unnecessary, and we discussed in § 38.9(g)(1), may include simply receive information about the note that providing funding for specific standard language in certain documents, available opportunities. A union translation projects is beyond the scope for example, template language in a recommended that CRC provide funding of this rule. benefits letter requesting a response for the costs of translating training In the preamble to proposed § 38.9, from the beneficiary. However, we materials for LEP individuals, rather CRC also discussed thresholds which decline the commenter’s than exclude them from the translation would trigger a requirement to translate recommendation to define requirement. standardized vital documents into ‘‘standardized documents’’ because the Response: CRC appreciates the particular languages. In the proposed term is self-explanatory. We also note commenters’ concern regarding rule, CRC gave examples for that the translation requirement translation of training materials for consideration of thresholds based upon regarding vital information in written employment-related training programs. the number of languages (e.g., top ten materials is not necessarily limited to In deciding not to adopt the languages spoken by LEP individuals); standardized documents (or standard commenters’ suggestion, and to keep the percentage of language speakers (e.g., language in standard documents), regulatory exception for such training languages spoken by at least 5 percent contrary to the commenter’s suggestion materials, CRC considered that of LEP individuals); the number of in defining that term. For example, translation of written training materials language speakers (e.g., languages recipients are required to translate vital may be challenging for training spoken by at least 1,000 LEP information in case-specific documents providers for a number of reasons, individuals); and composite thresholds in certain circumstances, such as including the variety, size, and combining these approaches, e.g., documents containing decisions about technical nature of training materials, languages spoken by at least 5 percent benefits or appeal rights. Of course, and the cost of written translation of LEP individuals or 1,000 LEP recipients could not and are thus not services. CRC believes that recipients individuals, whichever is lower). CRC required to translate vital information in can take reasonable steps to provide sought comment on what thresholds, if case-specific documents prior to the meaningful access to employment- any, should be required, and to what time of issuance as the contents of such related training programs without geographic areas or service areas (State- communications cannot be discerned in translating written training materials. level or lower) the threshold should advance. The vital information these materials apply. If thresholds were recommended, Comment: A State agency asked CRC contain can be provided to LEP CRC also sought comment on the time to clarify whether the Babel notice must participants by oral interpretation or that should be allowed for recipients to be translated as a vital document summarization during the training come into compliance with the because previous communications with program itself or other steps outlined in threshold(s), including whether this CRC indicated otherwise. the regulation text and the appendix to regulation should permit recipients to Response: Proposed § 38.9(g)(3) the regulation. Of course, recipients implement their obligations with a required recipients to include a ‘‘Babel retain the option of translating training phased-in approach. notice’’ indicating that language materials if they wish to do so. Comment: Without making a assistance is available, in all The final rule does not preclude particular recommendation about the communications of vital information, recipients from translating training appropriate threshold, a State labor such as hard-copy letters or decisions, materials, and for purposes of cost, from agency described relevant portions of or those communications posted on using economies of scale to share the 2003 DOL LEP Guidance that the Web sites. The definition of ‘‘Babel translation materials and provide greater commenter thought CRC should notice’’ in § 38.4(i) clarifies that the access than what is required under this consider, including examples notice must be in ‘‘multiple languages.’’ rule. The DOJ’s 2002 LEP Guidance incorporated from DOJ’s LEP Guidance This requirement ensures that LEP explained the importance of ‘‘pooling in 2002. The commenter noted that the individuals know how to obtain resources and standardizing documents DOL LEP Guidance did not specifically language assistance for vital information to reduce translation needs, using define what is ‘‘a significant number or that has not been translated into the LEP qualified translators and interpreters to portion’’ of an LEP population, but it individual’s preferred, non-English ensure that documents need not be did describe the safe harbor provisions language. Accordingly, consistent with ‘fixed’ later and that inaccurate from the DOJ 2002 LEP Guidance, its definition and like other vital interpretations do not cause delay or which the commenter asserted were information, the Babel notice must be other costs, [and] centralizing reasonable; provided tangible guidelines translated into multiple languages. We interpreter and translator services to for recipients; and specified that ‘‘strong appreciate the commenter’s concern that achieve economies of scale . . . [which] evidence of compliance’’ exists where CRC should ensure that all may help reduce costs.’’ 239 As noted ‘‘[t]he DOJ recipient provides written communications with respect to this above, recipients were directed to translation of vital documents for each requirement are consistent with the ‘‘carefully explore the most cost- eligible LEP language group that final rule. While we are unaware of any effective means of delivering competent constitutes five percent or 1,000, communications with recipients that and accurate language services before whichever is less, of the population of contradicted these requirements, limiting services due to resource persons eligible to be served or likely to recipients should rely upon the concerns. Large entities and those be affected or encountered.’’ 241 The requirements of §§ 38.9(g)(3) and 38.4(i) entities serving a significant number or commenter also stated that the existing going forward. proportion of LEP persons should DOL LEP Guidance explains that when Comment: Several advocacy ensure that their resource limitations are organizations strongly disagreed with 240 Id. the exclusion provided in the 239 DOJ 2002 LEP Guidance, supra note 23, at 241 DOL LEP Guidance, supra note 28, at 32290 translation requirement for training 41460. (quoting DOJ LEP Guidance).

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a recipient is determining whether a to specifically incorporate the guidance national origin, CRC declines to particular language should be subject to provisions cited by the commenter into eliminate the requirement for the the translation requirement, ‘‘it is also this rule for all recipients. translation of vital information into advisable to consider the frequency of Comment: Some commenters multiple languages for LEP individuals. different types of language contacts’’ recommended that CRC adopt specific Vital information is information that is and that resources available to the numerical thresholds that would trigger necessary for an individual to recipient and costs are legitimate the obligation to translate vital understand in order to obtain, or considerations.242 The commenter documents in advance of encountering understand how to obtain, any aid, objected that the proposed rule failed to any specific LEP individual. Other benefit, service or training. Without address these provisions. commenters recommended that CRC such information about WIOA Title I Response: CRC declines to adopt a adopt no thresholds at all. An programs, individuals will not have safe harbor provision in the final rule. individual commenter stated that the meaningful access to the aid, services, As discussed above, after considering establishment of any threshold would benefits and training those programs the comments on the proposed rule, result in discrimination because there provide. As explained above, it is well CRC believes that providing a specific, would be a portion of the population established that policies and practices inflexible standard to trigger translation that was not fairly served. Several that deny LEP individuals meaningful obligations may make compliance advocacy organizations recommended access to federally assisted programs difficult for a small recipient or be that recipients be required to translate and activities may constitute unlawful wholly inapplicable to another. vital information in written materials for national origin discrimination.245 CRC agrees with the commenter that languages spoken by at least 500 LEP Therefore, recipients must take a number of relevant factors should be individuals in the service area, or for reasonable steps to provide LEP considered when evaluating a languages spoken by at least 5 percent individuals with meaningful access to recipient’s compliance with § 38.9(g). of LEP individuals in that area, WIOA Title I programs and activities. As discussed regarding § 38.9(b), CRC whichever is lower. A State workforce While recipients, including States, are will consider all relevant factors (on a agency recommended that the threshold not free, as one commenter urged, to case-by-case basis) when evaluating be consistent with the ‘‘DOJ Civil Rights determine the most appropriate whether a recipient has provided Policy,’’ which we believe is a reference translation policy without reference to meaningful access for LEP individuals to the DOJ LEP Guidance. A State this standard, CRC’s decision to forgo generally, and when evaluating whether workforce agency recommended that the thresholds that trigger advance the recipient has translated vital threshold be set as a percentage of translation of vital documents allows information into appropriate languages language speakers based on data from recipients the flexibility to tailor, to more specifically. Primary weight will the U.S. Census Bureau and the ongoing their specific circumstances, the be given to the nature and importance statistical data collected by the reasonable steps they will take to of the program or activity, but other American Community Survey. After provide meaningful access to LEP factors may also be relevant in a asserting that CRC should eliminate the individuals. particular case, including, as the requirement for the translation of vital Thus, in answer to one commenter’s commenter suggested, the LEP information, a State agency question about how recipients would population in the service area, the recommended a threshold based on the determine the languages for which they frequency of different types of language percentage of LEP individuals state- need to translate documents in advance, contacts, the resources available, and wide if a threshold was necessary. The CRC recommends that recipients create costs. With regard to costs, as noted commenter also urged CRC to explicitly an LEP Plan by consulting the appendix above, recipients must ‘‘carefully exempt State-level information systems to § 38.9, the 2003 DOL LEP Guidance, explore the most cost-effective means of and documents from the translation as well as the Department of Justice’s delivering competent and accurate requirement, unless the adopted 2011 Language Access Assessment and language services before limiting threshold was based on a percentage of Planning Self-Assessment Tool for services due to resource concerns. Large LEP individuals state-wide. A few Federally Conducted and Federally entities and those entities serving a government agencies urged CRC to Assisted Programs (LEP Tool).246 The significant number or proportion of LEP eliminate the requirement for the latter resource includes a self- persons should ensure that their translation of vital information into assessment that guides recipients resource limitations are well- multiple languages. One commenter through the process of analyzing substantiated before using this factor as recommended that CRC instead allow demographics in the relevant geographic a reason to limit language States to determine the most appropriate area; assessing the frequency of contact assistance.’’ 243 translation policy. with LEP individuals; factoring the A few State agencies asked for In this regard, both DOL’s and DOJ’s importance of the services provided by clarification of the meaning of LEP Guidances are useful but must yield the recipient; and managing resources ‘‘significant number’’ as it relates to the in the event that they conflict with the and costs. statute or regulations to which they requirement to translate vital Based on the information gathered information. Similarly, referencing apply.244 Ultimately, recipients are through the self-assessment, the LEP language in § 38.9(c), one of these State bound by the obligations set forth in Tool provides a roadmap for recipients agencies asked how recipients would WIOA and this part, and CRC declines to create an LEP Plan tailored to their determine the languages into which specific circumstances, including a they would need to translate 242 See id. at 32294. determination of which languages are 243 documents. DOJ LEP Guidance, supra note 23, at 41460. encountered with sufficient frequency 244 Response: Recipients are required to LEP guidance documents clarify preexisting (or are spoken by a significant number Title VI responsibilities but do not create new take reasonable steps to provide obligations beyond those in the statute and its meaningful language access services for implementing regulations. See Colwell v. Dep’t of 245 See supra notes 24–26 and accompanying text. Health & Human Servs., 558 F.3d 1112, 1125 (9th each LEP individual. To ensure equal 246 https://www.lep.gov/resources/2011_ Cir. 2009); Nat’l Multi Hous. Council v. Jackson, 539 opportunity for LEP individuals, and to Language_Access_Assessment_and_Planning_ F. Supp. 2d 425, 431 (D.D.C. 2008). prevent discrimination based on Tool.pdf.

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or proportion of the service population types.247 In comparison, WIOA and this vital information as soon as possible, at that is eligible or likely to be part regulate more diverse types of most within a one-year timeframe, encountered) to require advance recipients with potentially more diverse reasoning that any delay is a delay in translation of vital information. In this limited English proficient populations. ensuring that job seekers and workers way, recipients are more apt to fulfill CRC is concerned that significant who are LEP have access to Title I their obligation to provide meaningful limited English proficient populations services. access to their programs and activities might receive no or inadequate language Response: We requested comments on in a cost-effective manner. assistance services under a threshold- whether to delay enforcement of Indeed, the DOL LEP Guidance issued based regulation. CRC is also concerned translation requirements in the event we in 2003 did not specifically define what about the burden an across-the-board required (for the first time) thresholds constitutes a ‘‘significant number or translation threshold might place on that trigger the obligation to proportion of the eligible service small covered entities. automatically translate vital information population’’ that would trigger the need Moreover, we value the flexibility into certain languages. Since we are not to translate vital information into a inherent in this contextualized implementing such thresholds, but particular language (in advance of approach to assess recipients’ retaining the status quo, there is no need encountering any specific LEP compliance with the requirement to take to delay the enforcement of individual) because that number should reasonable steps to provide meaningful requirements that are already in place. be measured on a case-by-case basis. access for LEP individuals. We thus Accordingly, CRC declines to put a The 1999 rule similarly did not define decline to impose the prescriptive timeframe on translating vital the phrase or adopt a threshold. standards recommended by the documents. Although we have extensively commenters as inconsistent with this Comment: In the proposed rule, CRC considered whether to include customized regulatory approach.248 sought comment on other thresholds that would trigger advance Finally, we note that even when there methodologies for formulating language translation of vital information in is no requirement for advance access thresholds regarding written written materials, as either a safe harbor translation in a particular language, materials containing vital information or as an across-the-board minimum recipients still have a duty to take that would result in meaningful access requirement, we decline to set such reasonable steps to provide meaningful for individuals regardless of national thresholds in the final rule. language access services to each LEP origin, while being mindful of the Although thresholds may improve individual, once encountered, pursuant potential burden on recipients. A local workforce agency provided access for some national origin to § 38.9(g)(2). Comment: Several advocacy information about an existing program populations, the approach does not organizations recommended in Chicago. Specifically, the commenter comprehensively effectuate WIOA’s establishing a threshold using data at stated that the diversity of employees at prohibition of national origin the regulated entity’s service delivery its one-stop center enables the center discrimination affecting LEP level to determine the appropriate staff to provide on-site translation, in individuals. Setting thresholds would languages into which to translate vital addition to utilizing the language be both under-inclusive and over- information. The commenters explained services provided by the State- inclusive, given the diverse range, type, that State-level data may not necessarily contracted service provider. and sizes of entities covered by Section reflect the wide variations in local Additionally, the commenter described 188 and the diverse national origin communities. the existing procedures in place populations within the service areas of Response: CRC acknowledges the regarding requests for language services, recipients’ respective programs and commenters’ concern that State-level which enables customers to acquire data activities. For instance, a threshold data are not a perfect solution to upon request from the service provider. requiring all recipients, regardless of capturing the variations in local The commenter asserted that recipients type or size, to provide language communities. As set forth above, that provide on-site language services assistance services in languages spoken however, CRC has not adopted specific have a reporting process to capture the by 5 percent of a county’s LEP thresholds. Thus, the commenters’ number of services needed. Finally, the population could result in the provision concern is addressed by § 38.9(g) and commenter stated that recipients can of language assistance services in more regulatory modifications are capture real numbers that address the languages than the entity would unnecessary. quantity of services provided by the otherwise be required to provide under Comment: Several advocacy workforce area by identifying and its obligation in § 38.9(g). This threshold organizations recommended that noting LEP individuals in their database would apply regardless of the number of regulated entities be mandated to during the registration process. individuals with limited English implement requirements to translate Response: CRC notes that the proficiency who are eligible to be served commenter’s experiences demonstrate or likely to be encountered by the 247 See 45 CFR 155.205(c)(2)(iii), (iv) (regarding that this model is a promising approach recipient’s program or activity and HHS’s regulation of health care exchanges); 26 CFR for recipients with proper planning and regardless of the recipient’s operational 1.501(r)–4(b)(5)(ii) (Department of the Treasury’s commitment to compliance. capacity. Similarly, this threshold could regulation regarding hospital organizations and financial assistance policies); 7 CFR 272.4(b) Comment: Finally, an advocacy leave behind significant numbers of (Department of Agriculture’s Supplemental organization recommended that the rule individuals with limited English Nutrition Assistance Program). be revised to include certified ASL proficiency served by the recipient’s 248 See HHS Nondiscrimination Final Rule, supra interpreter services for translation of program or activity, who communicate note 18, at 31419 (declining to adopt ‘‘thresholds for the non-English languages in which covered vital information. The commenter in a language that constitutes less than entities must provide a range of language assistance explained this could accommodate the 5 percent of the county’s limited English services’’ as an approach that ‘‘does not many individuals in the deaf proficient population. comprehensively effectuate’’ the statutory community who feel that they are not Although some federal regulations set prohibition of national origin discrimination, and instead adopting a ‘‘contextualized approach . . . to adequately supported for success in thresholds, those regulations address assess compliance with the requirement to take employment due to the lack of effective entities or programs of similar sizes and reasonable steps to provide meaningful access’’). communication of vital information.

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Response: As explained in connection guidance to recipients on developing a organization representing tradeswomen with § 38.15, providing sign language language access plan. noted that sexual harassment ‘‘is a interpretation is specifically covered In the appendix to § 38.9, CRC makes serious impediment to women’s success under the obligation to provide the following technical edits: In the first in nontraditional jobs and job training.’’ auxiliary aids and services to sentence of the appendix, adding the That commenter urged CRC to require individuals with disabilities. word ‘‘meaningful’’ to match the training program providers to Communications with individuals with language access standard as described incorporate a sexual harassment disabilities must be as effective as above; in the first sentence of example prevention policy and training into the communications with others. However, 1, referring to the final rule instead of training program curriculum, especially § 38.9 does not address access for the proposed rule and changing ‘‘its’’ to in programs that train for male- individuals with disabilities, only the ‘‘their’’ to correct a grammatical error, dominated jobs. Both the women in prohibition on national origin and in the first sentence of example 2, trades organization and the coalition of discrimination, and § 38.9(g) restates the changing ‘‘on’’ to ‘‘as to’’ for the sake of eighty-six women’s, workers’, and civil obligation to provide translated vital clarity. rights organizations further suggested information for LEP individuals to Summary of Regulatory Changes that CRC clarify the circumstances ensure meaningful access. For this under which recipients are obligated to reason, CRC declines to make the For the reasons set forth above and in prevent and remedy sexual harassment suggested changes. the NPRM, and considering the by specific parties, such as fellow CRC therefore adopts § 38.9(g) as comments received, CRC finalizes § 38.9 program participants, coworkers, and proposed, except for two technical as follows: CRC adopts § 38.9(a) as supervisors. corrections: Changing ‘‘make’’ to ‘‘take’’ proposed but adds the words ‘‘including Response: With regard to sexual in paragraph (g)(1) and, in paragraph limiting English proficiency’’ at the end harassment prevention policies and (g)(2), for consistency with the of the first sentence. CRC finalizes training, CRC agrees that recipients definition of ‘‘Babel notice,’’ specifying proposed § 38.9(b)–(f) without should, as a best practice, foster an that the Babel notice must indicate in modification. CRC finalizes § 38.9(g) as environment in which all individuals multiple languages that language proposed, with the exception of two feel safe, welcome, and treated fairly by assistance is available. technical changes; revising ‘‘make’’ to developing and implementing CRC received no comments on ‘‘take’’ in the first sentence of paragraph procedures to ensure that individuals proposed § 38.9(h) and adopts it in the (g)(2) and clarifying that the Babel are not harassed because of sex. final rule without modification. notice must be in multiple languages. However, it is beyond the scope of this CRC adopts proposed § 38.9(h) and (i) Proposed § 38.9(i) provided that rule to impose a categorical requirement without modification. recipients should develop a written in regulatory text that all recipients take language access plan to ensure LEP Harassment Prohibited § 38.10 these steps. Therefore, CRC declines to individuals have meaningful access to CRC proposed a new § 38.10 to make the suggested changes. their programs and activities, and CRC also declines to expand references the appendix to § 38.9 where provide additional direction for the existing obligation to prevent § 38.10(b) to address recipients’ liability CRC has provided guidance to for various parties’ sexual harassment. recipients on developing a language harassment because of all bases protected by WIOA Section 188 and this To do so would require incorporation of access plan. principles of tort and agency law into Comment: Noting the use of the word part. Most commenters providing input the final rule, which CRC believes is not ‘‘should’’ in § 38.9(i), a State agency on this issue supported the proposed necessary. CRC recognizes and follows asked whether a language access plan provision. An advocacy organization the principles of liability for harassment was required or recommended. And, if specifically supported the addition of established by the Department of required, the commenter asked for harassment based on age. Education’s Title IX guidance clarification on the required contents of Proposed § 38.10(b) defined harassment because of sex under WIOA documents 250 and by Title VII and Title the plan. 251 Response: CRC’s use of the word broadly to include harassment based on IX case law. ‘‘should’’ is intentional. Developing a gender identity and failure to comport CRC makes a technical change to language access plan is not a with sex stereotypes; harassment based § 38.10(b). As proposed, the regulatory requirement, but may be considered as on pregnancy, childbirth, or related text may have been unclear that a relevant factor among others when medical conditions; and sex-based harassment based on gender identity analyzing whether a recipient has harassment that is not sexual in nature and harassment based on failure to afforded LEP individuals meaningful but is because of sex or where one sex comport with sex stereotypes can be access to programs and activities under is targeted for the harassment. CRC independent forms of harassment WIOA Title I and this part. CRC received comments supporting, because of sex. Therefore, in the final recognizes that a recipient may wish to opposing, and recommending rule, the two are listed individually and conduct thorough assessments of its modifications to this paragraph.249 separated by a semicolon. CRC intends language assistance needs and Comments: Several commenters 250 See, e.g., U.S. Dep’t of Educ., Office for Civil comprehensively create the operational commended CRC’s recognition of sex- based harassment as a form of sex Rights, Dear Colleague Letter: Sexual Violence (Apr. infrastructure to execute a variety of 4, 2011), available at http://www2.ed.gov/about/ high quality language assistance discrimination. For example, an offices/list/ocr/letters/colleague-201104.pdf; services. CRC urges recipients to pursue Revised Sexual Harassment Guidance, supra note 249 In addition to the comments described in the 63. such high standards and to create text, CRC received comments supporting and 251 Relevant Title IX cases include Davis v. language access plans that will identify opposing the inclusion in § 38.10(b) of gender Monroe County Board of Education, 526 U.S. 629 in advance the types and levels of identity and sexual orientation. For the same (1999), and Gebser v. Lago Vista Independent services that will be provided in each of reasons as discussed previously in the main School District, 524 U.S. 274 (1998). Relevant Title preamble and in connection with the definition of VII cases include Vance v. Ball State University, the contexts in which the recipient ‘‘sex’’ in § 38.7(a), CRC retains gender identity in 133 S. Ct. 2434 (2013); Burlington Indus., Inc. v. encounters LEP individuals. The this provision as proposed and declines to add Ellerth, 524 U.S. 742 (1998); and Faragher v. City appendix to § 38.9 provides detailed sexual orientation. of Boca Raton, 524 U.S. 775 (1998).

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no substantive change by making this Accordingly, the individual An individual commenter argued that revision. commenter’s position that non-citizens a ‘‘one-size-fits-all’’ approach that should be categorically excluded from assumes that integration and equalized Discrimination Prohibited Based on these protections is contrary to the services is the best solution for all Citizenship Status § 38.11 specific statutory language of Section individuals with disabilities will be The proposed rule added a new 188 of WIOA and beyond CRC’s detrimental to people that greatly § 38.11 titled ‘‘Discrimination authority to adopt. benefit from group programs and prohibited based on citizenship status’’ specialized services. to provide additional direction to Discrimination Prohibited Based on Indeed, a number of commenters recipients regarding the protections Disability § 38.12 focused on § 38.12 in general, and certain noncitizens have from Proposed § 38.12 revised the title of § 38.12(d) in particular, to comment discrimination based on their this section 253 and added a new about work for individuals at citizenship status. Please note that other paragraph (p) which incorporates the subminimum wage and/or in so-called statutes and regulations may define ADAAA’s prohibition on claims of ‘‘sheltered workshops,’’ which provide citizenship discrimination differently discrimination because of an training and employment than it is defined for the purposes of the individual’s lack of disability.254 opportunities 257 in segregated or final rule. CRC will enforce this Overall, this section retained the ‘‘sheltered’’ settings. A coalition of provision consistent with other federal language from the 1999 and 2015 rules, organizations ‘‘urge[d] the Department agencies’ interpretations of their federal which paralleled the wording of DOJ’s to ensure that the proposed regulations statutory eligibility requirements. ‘‘General prohibitions against promote competitive integrated Comment: A professional association discrimination’’ Title II ADA regulation, employment for students and youth supported expansion of including the requirement that a with disabilities.’’ Another commenter antidiscrimination provisions regarding recipient must administer WIOA Title I objected: ethnicity to cover citizenship status and programs and activities ‘‘in the most While maximizing opportunities for national origin, including limited integrated setting appropriate to the English proficiency. The commenter competitive integrated employment among needs of qualified individuals with individuals with disabilities was one of the stated that these changes recognize the disabilities.’’ 255 The ‘‘most integrated central purposes of WIOA, the goal of full diversity of the U.S. workforce. setting appropriate’’ requirement must competitive integrated employment is not Several advocacy organizations agreed also be consistent with the requirements mentioned in the nondiscrimination that the prohibition on discrimination of the Rehabilitation Act, as amended by regulations. It is critical that the based on citizenship status provides WIOA. nondiscrimination mandates in this proposed rule require that covered entities provide greater clarity to recipients about the Comment: A State agency supported protection for certain noncitizens. The people with disabilities equal opportunity to the language in § 38.12(d). A training commenters were particularly access competitive integrated employment provider commented that clarifying supportive of the inclusion of and protect the rights of people with language should be added in § 38.12(d) disabilities to receive a fair income individuals, such as those with work to define ‘‘most integrated setting’’ comparable to that of other employees, be authorization through the Deferred consistent with the ADA and the employed in settings that include people Action for Childhood Arrivals initiative, Supreme Court’s opinion in Olmstead v. with and without disabilities rather than who the commenters asserted are L.C. ex rel. Zimring.256 However, a limited to segregated facilities, and access eligible for services under Title I and opportunities for advancement that are statewide association representing who should be protected from comparable to those of their non-disabled community service providers asserted discrimination in the provision of these peers. that CRC’s proposed rule exceeded services. An individual commenter, statutory authority. The commenter Response: CRC appreciates the however, argued that non-citizens objected to the proposed requirements, supportive comments we received and should not be granted equal saying that it would put additional disagrees that the rule exceeds statutory opportunities and equal status as restrictions on employment by authority. As discussed above, CRC has citizens. mandating integration within not only the authority to promulgate regulations Response: With respect to the bases of necessary to implement WIOA’s equal citizenship and national origin, WIOA the community, but also within the work unit. The commenter warned that opportunity and nondiscrimination Section 188(a)(5) expressly protects the provisions under Section 188(e). right of citizens and nationals of the such requirements could lead to individuals with disabilities being Regarding the commenter’s request to United States, lawfully admitted add clarifying language regarding ‘‘the permanent resident aliens, refugees, replaced by workers without disabilities. most integrated setting’’ in light of the asylees, and parolees, and other ADA and the Olmstead case, we believe immigrants authorized by the Secretary this standard is clear, and has been so of Homeland Security to work in the Act ‘‘and exercised on or after the effective date of the Act’’ shall refer to the Secretary of Homeland since the 1999 rule. We also believe that United States to participate in WIOA Security or other official or component of the it is consistent with disability law Title I programs and activities without Department of Homeland Security to whom that (including Supreme Court precedent). being subjected to discrimination.252 function is transferred. See also Clark v. Martinez, Therefore, we decline to define it 543 U.S. 371, 374 n.1 (2005) (noting that, with limited exception, the immigration authorities further. A recipient must administer 252 29 U.S.C. 3248(a)(5). Although Section previously exercised by the Attorney General and programs and activities in the most 188(a)(5) refers to the Attorney General, § 38.11 the former Immigration and Naturalization Service refers instead to the Secretary of Homeland Security integrated setting appropriate to the ‘‘now reside in the Secretary of Homeland Security’’ because Congress transferred the authority to needs of qualified individuals with and the Department of Homeland Security). authorize aliens to work from the Attorney General disabilities. This is an individualized 253 See 29 CFR 37.7 (1999 rule); 29 CFR 38.7 to the Secretary of Homeland Security in the determination that is based on the Homeland Security Act of 2002. See Homeland (2015 rule). Security Act of 2002, Public Law 107–296, 8 U.S.C. 254 42 U.S.C. 12201(g). specific needs of the individual with a 1103(a)(1). Section 1517 of the Homeland Security 255 28 CFR 35.130(d); 29 CFR 37.12(d) (1999 rule); Act, 6 U.S.C. 557, provides that a reference in any 29 CFR 38.12(d) (2015 rule). 257 Sheltered workshops are also sometimes other federal law to any function transferred by the 256 527 U.S. 581 (1999). referred to as ‘‘work centers.’’

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disability. Overall, the provision is emphasizes competitive integrated § 38.12(d) requires recipients to intended to prohibit exclusion and employment. We therefore add administer their Title I—funded segregation of individuals with explanatory references in § 38.12(a)(1) programs and activities in the most disabilities and the denial of equal and (4) to ensure compliance. integrated setting appropriate to the opportunities enjoyed by others Comment: Several commenters needs of individuals with disabilities. (without disabilities), based on warned of the potential impacts of the As stated previously, this is an presumptions, patronizing attitudes, proposed rule on sheltered workshops. individualized determination that is fears, and stereotypes about individuals An employment service provider based on the specific needs of the with disabilities. Consistent with this requested that CRC delete any language individual with a disability. Overall, the requirement, recipients are required to in the proposed rule that states or provision is intended to prohibit ensure that their actions are based on implies that pre-vocational and group exclusion and segregation of individuals facts applicable to individuals and not training services (aka sheltered with disabilities and the denial of equal on presumptions as to what a class of workshops) are discriminatory towards opportunities enjoyed by others, based individuals with disabilities can or persons with disabilities. The on presumptions, patronizing attitudes, cannot do. We therefore disagree that commenter stated that the language in fears, and stereotypes about individuals correctly administering the obligation to the proposed rule could lead to the with disabilities. Consistent with this operate programs and activities in the elimination of center-based, pre- requirement, recipients are required to most integrated setting appropriate to vocational, sheltered training programs ensure that their actions are based on the needs of qualified individuals with across the nation for individuals with facts applicable to individuals and not disabilities would result in individuals developmental disabilities. An on presumptions as to what a class of with disabilities being replaced by individual commenter agreed and individuals with disabilities can or individuals without disabilities. stressed that group centered cannot do. As noted earlier, the ‘‘most Next, CRC disagrees with the belief of employment is not discriminatory; integrated setting appropriate’’ some commenters that the rule directly instead it allows persons with requirement must also be consistent addresses competitive integrated disabilities to work with their peers in with the requirements of the employment or integration in the ‘‘work a group centered supported Rehabilitation Act as amended by unit,’’ or that the rule requires in all environment. Similarly, another WIOA. cases the elimination of sheltered individual commenter argued that group Comment: An individual commenter workshops and subminimum wage work centers are not discriminatory and stated that the proposed rule would employment. Neither the proposed rule provide valuable skills for individuals eliminate employment choices for nor the final rule contains a definition with disabilities who may not be ready persons with disabilities, including for ‘‘competitive integrated for the competitive community jobs. An preventing those with severe disabilities employment’’ or ‘‘work unit.’’ It appears individual commenter stated that the from working in community that one of the commenters may have elimination of group work centers rehabilitation programs. The commenter been referring to a 2015 Department of would exceed congressional intent and argued that all employment, including Education NPRM that addresses these interfere with a person’s choice in that paid at a subminimum wage, has issues.258 Regarding the advocacy employment. Several commenters value. The commenter argued that organizations that asked CRC to require argued that the loss of these programs without work centers many individuals competitive integrated employment in would be detrimental and cause more with disabilities would be stuck at home the final rule, we decline to do so. The persons with disabilities to be isolated or forced to participate in ‘‘glorified day Rehabilitation Act as amended by and less likely to be employed. care.’’ WIOA, as well as the Department of An adult education provider argued Conversely, several commenters Education’s regulations implementing that its facility provides individuals asserted that the Department should the Rehabilitation Act,259 defines the with disabilities, who do not receive ensure that the proposed rules promote term ‘‘competitive integrated funding, job training in the form of part- competitive wages for people with employment,’’ and moreover, time employment at the work center. disabilities. The commenters cited competitive integrated employment of The commenter argued that the statistics that showed that many individuals with disabilities is an proposed rule could eliminate this as an individuals with disabilities working in overall goal in the Rehabilitation Act as option, which would decrease the sheltered workshops are being paid less amended by WIOA. We note that in availability of job training opportunities than minimum wage, and in some cases many instances, providing employment to individuals with disabilities. The at $0.50 per hour. related services in non-integrated commenter stressed that people with Response: While there are specific settings (such as sheltered workshops) disabilities need on-the-job support, and provisions in the Fair Labor Standards may violate the ‘‘most integrated setting without segregated job training for Act and the 2014 reauthorization of the appropriate’’ standard in the various periods of time, particularly for Rehabilitation Act that govern and Rehabilitation Act, the ADA, and this those who are not funded for services, impact the eligibility of certain rule. For the purposes of Section 188 of a substantial number of individuals individuals with disabilities to work at WIOA and this regulation, the ‘‘most would never have the opportunity to less than the federal minimum wage, integrated setting appropriate’’ standard achieve gainful and meaningful there are no specific provisions in the is consistent with the requirements of employment. Section 188 rule that directly address the Rehabilitation Act and the ADA. Response: While there are specific this issue. However, under § 38.12(a), a Additionally, WIOA prioritizes and provisions in the 2014 reauthorization recipient is not permitted to of the Rehabilitation Act that impact the discriminate by, among other things, (1) 258 U.S. Dep’t of Educ., Office of Special Educ. & eligibility of certain individuals to work denying a qualified individual with a Rehabilitative Servs., State Vocational in so-called sheltered workshops, there disability the opportunity to participate Rehabilitation Services Program; State Supported are no specific provisions in the Section in or benefit from any aid, benefit, Employment Services Program; Limitations on Use of Subminimum Wage; Notice of Proposed 188 rule that either directly approve or service, or training; (2) affording a Rulemaking, 80 FR 21059, Apr. 16, 2015. disapprove of work in such settings. qualified individual with a disability an 259 34 CFR parts 316 and 463. Rather, the integration requirement of opportunity to participate in or benefit

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from any aid, benefit, service, or holders.260 The commenter noted that is critical for recipients to maintain high training that is not equal to that afforded these programs provide opportunities expectations for program participants, to others; (3) providing a qualified for individuals with the most severe and to provide opportunities based on individual with a disability with any disabilities. the individual’s interests and abilities, aid, benefit, service or training that is Response: This comment refers to rather than on assumptions based on not as effective in affording equal provisions in Section 511 of the stereotypes regarding particular types of opportunity to obtain the same result, to Rehabilitation Act,261 which CRC does disabilities. In addition, recipients are gain the same benefit, or to reach the not implement, and which are therefore required to provide reasonable same level of achievement as that outside the scope of these regulations. modifications of policies, practices, and provided to others; or (4) providing Comment: An individual commenter procedures where necessary to avoid different, segregated, or separate aid, recommended that the Department discrimination against individuals with benefit, service, or training to lower or remove the threshold spending particular disabilities, and to provide individuals with disabilities, or to any amounts for PETS services and allow auxiliary aids and services where class of individuals with disabilities, State agencies the ability to provide necessary to ensure effective unless such action is necessary to services to all individuals with communication. provide qualified individuals with disabilities. CRC agrees that training WIOA staff to disabilities with any aid, benefit, Response: Threshold spending understand these obligations is a best service, or training that is as effective as amounts regarding the services practice, but declines to explicitly those provided to others, and consistent recipients provide to individuals with mandate the specific training requested with the requirements of the disabilities are outside the scope of this in the final rule. Each recipient is Rehabilitation Act as amended by rule. Instead, recipients must provide responsible for ensuring compliance WIOA. aid, benefits, services, and training on with its obligations under WIOA and Therefore, this rule neither directly an equal basis to qualified individuals this part, including determining the approves nor disapproves specific with disabilities. Where reasonable appropriate types and frequency of staff wages for individuals with disabilities. accommodations or modifications are training. Rather, the rule addresses necessary to achieve that result, Comment: An advocacy organization nondiscrimination and equal recipients must provide them absent urged CRC to include examples of how opportunity on the basis of disability undue hardship or a fundamental some of the nondiscrimination which may take wages into account on alteration of the program, activity, or provisions apply in the context of WIOA a case-by-case basis. service. Title I—funded entities. For example, Comment: A professional association providing reasonable accommodations In addition, CRC received a few supported more accessible services for general comments concerning the to individuals with disabilities means individuals with disabilities, and urged that American Job Centers must, among prohibitions on disability that these provisions recognize the discrimination in proposed § 38.12. other things, use accessible language specific needs of individuals with where necessary to ensure that a person Comment: An advocacy organization mental health conditions and cognitive with an intellectual disability can fully commended the Department on disabilities to ensure that they receive participate in and benefit from Job expanding inclusion of individuals who services that are specifically tailored to Center services, programs and activities, are blind or visually impaired within their needs. The commenter suggested and must use effective engagement the workforce development system. The additional training for program staff to strategies when needed to ensure full commenter stressed that Rehabilitation help staff recognize appropriate training participation and benefit for a person Service Administration service and employment opportunities for such with cognitive or psychiatric programs have become more restrictive individuals. disabilities. for persons with visual impairments; Response: The statute and regulations Response: The nondiscrimination therefore these individuals, particularly require that no individual with a provisions that apply to recipients older individuals, will need to rely on disability be excluded from under Section 188 with respect to the larger workforce development participation from, denied the benefits individuals with disabilities are broad system to sustain and return to work. of, or subjected to discrimination under and expansive, effectively tracking Response: CRC appreciates the any program or activity on the basis of similar nondiscrimination provisions in 262 feedback from the commenter. The goal disability, and that qualified the ADA. For this reason, it is unlikely of this rule is to ensure that when individuals with disabilities should that providing a few examples of fact- individuals with disabilities engage the have the same opportunity to participate specific discrimination within the larger workforce development system, in or benefit from any aid, benefit, regulatory text will be particularly 263 they are able to do so in an accessible service, or training. By prohibiting useful. Therefore, CRC declines to manner, without discrimination. discrimination and requiring equal provide additional examples in the text. Comment: An individual commenter opportunity and inclusion of However, additional examples of recommended that the Department individuals with disabilities, we believe achieving universal access and equal remove ‘‘failure’’ from Divisions of that this final rule will ensure that all opportunity can be found in the Vocational Rehabilitation as the entry individuals with disabilities receive Department’s recent guidance Promising point to 14(c) program participation. services that are tailored to their Practices in Achieving Universal Access The commenter stated that not all interests and abilities, including and Equal Opportunity: A Section 188 individuals are ready to work once they individuals with mental health Disability Reference Guide.264 complete high school and requiring conditions and cognitive disabilities. It failure would damage the individual’s 264 U.S. Dep’t of Labor, Promising Practices in 260 view of competitive employment. The Section 14(c) refers to the Fair Labor Achieving Universal Access and Equal Standards Act, 29 U.S.C. 214(c). commenter also suggested that high Opportunity: A Section 188 Disability Reference 261 29 U.S.C. 794f. Guide, available at https://www.dol.gov/oasam/ schools should continue to be able to 262 29 U.S.C. 3248(a)(2). programs/crc/Section188Guide.pdf (hereinafter contract with Section 14(c) certificate 263 See § 38.12(a)(1). ‘‘Section 188 Disability Reference Guide’’).

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For these reasons, CRC adopts § 38.12 Opportunity: A Section 188 Disability Comment: The advocacy organization with the following changes: One change Reference Guide.267 also suggested CRC add requirements to paragraph (a)(1) to add an additional Comment: Several commenters regarding modification of standard example regarding meaningful addressed the programmatic equipment, technology or software opportunities consistent with the accessibility requirements in § 38.13(b). programs used by the Title I-financially Rehabilitation Act amendments in Advocacy organizations and a State assisted program or activity as WIOA, and two changes to paragraph agency agreed with the definition of assessment, diagnostic, training, or (a)(4): A grammatical correction programmatic accessibility in § 38.13(b). skills-building tools. (changing ‘‘are’’ to ‘‘is’’) and a Two advocacy organizations Response: These requirements are clarification that the most integrated recommended the following change to already contained within the rule. A setting appropriate must be consistent ensure successful implementation of recipient is required to take appropriate with the Rehabilitation Act as amended programmatic accessibility: Providing steps to ensure that communications by WIOA. notice to individuals with disabilities of with individuals with disabilities are as their right to programmatic accessibility, effective as communications with Accessibility Requirements § 38.13 including verbal offers to provide others, unless doing so would result in The proposed rule added § 38.13, information in an alternative format a fundamental alteration of a service, 269 which did not have a counterpart in the such as large font text, Braille, or program, or activity. In addition, a 1999 or 2015 rule, to address the new electronic disc. recipient must provide reasonable emphasis Congress placed on ensuring Response: Providing unsolicited accommodations to qualified programmatic and physical accessibility verbal offers of information in individuals with disabilities, unless to WIOA Title I-financially assisted alternative formats is contrary to the providing the accommodation would 270 services, programs and activities. In no ADA, since it reflects another’s cause undue hardship. Moreover, a fewer than ten provisions of Title I of perception or stereotype about recipient must make reasonable WIOA, Congress referred to recipients’ particular disabilities. The individual is modifications in policies, practices, or obligation to make WIOA Title I- always free to request such an procedures when the modifications are financially assisted programs and accommodation of auxiliary aids and necessary to avoid discrimination on the basis of disability, unless making the activities accessible.265 services, and the obligation to provide such is only triggered upon such a modifications would fundamentally Proposed paragraph (a) addressed request. As discussed above, CRC agrees alter the nature of the service, program, physical accessibility requirements and it is important to provide written notice or activity.271 proposed paragraph (b) addressed of the general availability of auxiliary Comment: The advocacy organization programmatic accessibility aids and services to all participants. also recommended CRC add requirements. The proposed Accordingly, as discussed above in requirements regarding coordinating programmatic accessibility language § 38.4(i), CRC amends the equal with other State services and benefit tracked language that Congress opportunity notice in § 38.35 to add that delivery systems. considered in 2005 in the context of notification. Response: While CRC supports the debating amendments to WIA in an Comment: An advocacy organization coordination with other State services effort to improve accessibility to the suggested CRC add language to the final and benefit delivery systems as a best workforce development system for rule requiring ongoing training of practice, we decline to require it in all individuals with disabilities.266 program staff on what programmatic cases. As discussed below, a certain Comment: An advocacy organization accessibility requires including best level of coordination is required for and a State agency supported practices in promoting integrated and Governors, facilitated by their State- § 38.13(a)’s requirements for physical competitive employment, disability level Equal Opportunity Officers (and accessibility in existing facilities and cultural competency, and examples of described in their Nondiscrimination new construction/alterations. An reasonable accommodations and Plans). For other recipients, CRC prefers advocacy organization recommended modifications to policies, practices, and to allow more flexibility to structure CRC include examples of the steps procedures. their compliance with WIOA Section recipients must take to ensure Response: CRC agrees that training 188 and this part regarding such accessibility. WIOA staff on programmatic coordination. Response: The physical accessibility accessibility requirements is a best For these reasons, CRC adopts § 38.13 requirements that apply to recipients practice, but declines to explicitly as proposed, with the exception of a under Section 188 track long-standing mandate that specific level of training in minor modification to § 38.13(a) to more accessibility requirements under the the final rule. Each recipient is accurately describe the source of some ADA and Section 504 of the responsible for ensuring compliance recipients’ additional obligations Rehabilitation Act. For this reason, it is with its obligations under WIOA and regarding accessibility requirements. unlikely that providing a few examples this part, including determining the Reasonable Accommodations and of the requirements will be particularly appropriate types and frequency of staff Reasonable Modifications for useful. Therefore, CRC declines to training. Recipients that are seeking Individuals With Disabilities § 38.14 provide additional examples in the text. additional guidance on these issues can With the exception of an introductory However, additional examples can be consult Promising Practices in clause in one paragraph, proposed found in Promising Practices in Achieving Universal Access and Equal § 38.14 retained the existing text from Achieving Universal Access and Equal Opportunity: A Section 188 Disability Reference Guide.268 § 37.8 in the 1999 rule and § 38.8 in the 2015 rule. 265 See, e.g., 29 U.S.C. 3112(b)(2)(C)(vii), 29 U.S.C. 3122(b)(4)(A)(iii), 29 U.S.C. 3122(d)(6)(A), 29 U.S.C. 267 Section 188 Disability Reference Guide, supra 3122(d)(13). note 264. 269 See § 38.15(d). 266 S. Rep. No. 109–134, 2005 WL 2250857, at *11 268 Section 188 Disability Reference Guide, supra 270 See § 38.14(a). (2005). note 264. 271 See § 38.14(b).

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Comment: Several commenters Response: In paragraph (a)(2), the required by existing laws. provided comments on proposed § 38.14 language is sufficient without change. Accommodations in the rule parallel regarding reasonable accommodations Imposing a readability standard that those already required under the ADA and modifications for individuals with reflects another’s perception or and Section 504 of the Rehabilitation disabilities. A State agency expressed stereotype about an individual with a Act, as well as those that were required concern about the threshold of proof disability’s literacy level (absent a under the 1999 and 2015 rules. required in § 38.14 to determine request to do so by the individual with Summary of Regulatory Changes whether a modification places an undue a disability) is inappropriate, and burden on the recipient, and how that contrary to the ADA and other federal For the reasons described above and determination would be made. The anti-discrimination statues. The in the NPRM, and considering the commenter recommended modifying individual is always free to request such comments received, CRC finalizes the language to incorporate the EEOC’s an accommodation or modification, and § 38.14 as proposed, with a modification role in evaluating the evidence the obligation to provide such is only to paragraph (a)(3) to clarify the presented on behalf of the recipient to triggered upon such a request. consultation requirement. In paragraph (a)(3), CRC changes the determine the validity of their claim of Communications With Individuals With provision to state ‘‘after consultation undue hardship. Disabilities § 38.15 Response: The current language is with an individual with a disability (or sufficient without change. The individuals with disabilities).’’ This Proposed § 38.15 revised paragraphs definition of ‘‘undue hardship’’ in § 38.4 revision is consistent with the (a) and (b) from the 1999 and 2015 includes the factors to be considered in requirements under the ADA. rules 272 to be consistent with DOJ’s determining whether an accommodation Comment: A coalition of ADA Title II regulations. Proposed would impose an undue hardship on a organizations representing the interests § 38.15 also contains new language recipient. The threshold of proof is of individuals with disabilities argued regarding video remote interpreting consistent with the ADA and the 1999 that CRC needs to change the way services and accessible electronic and and 2015 rules. Requiring the EEOC to covered entities handle the cost of information technologies. evaluate evidence to determine if it ongoing accommodations for persons Comment: A coalition of properly supports a claim of undue with disabilities. The commenters organizations representing the interests hardship goes beyond the scope of these recommended that CRC implement of individuals with disabilities stated regulations. regulations that encourage all entities that part 38 of the proposed rule should Comment: An advocacy organization covered under WIOA to adopt a be amended to ensure all suggested specific revisions to proposed centralized funding system to pay for nondiscrimination and equal § 38.14 to ensure accessibility and that the cost of reasonable accommodations opportunity provisions are applicable to recipients involve the individual for employment of persons with all technological aspects in seeking an accommodation in the disabilities. The commenters asserted employment. With respect to Web sites, process of deciding whether the that when hiring managers have to pay recipients should be required to caption requested accommodation will be for the cost of accommodations out of all audio-based content, and such provided. The commenter suggested their division’s budget, these managers auditory content should also be additional language as follows have a powerful disincentive against provided in American Sign Language (suggested additions in bold and hiring people with disabilities, (ASL). Transcripts of video descriptions deletions indicated with ellipses): especially those who need ongoing should be required to provide maximum accommodations. Overall, the • In those circumstances where a recipient access. Moreover, all relevant believes that the proposed accommodation commenters stated that centralized information should be fully accessible would cause undue hardship, the recipient funding systems would increase for persons with disabilities, including has the burden of proving that the opportunities for persons with deafblind individuals. accommodation would result in such disabilities to secure jobs and Response: A recipient must take hardship. promotions. appropriate steps to ensure that • The recipient must make the decision Response: While we support creative communications with individuals with that the accommodation would cause such ideas like a centralized accommodation disabilities are as effective as hardship only after considering all factors fund that increases the availability of listed in the definition of ‘‘undue hardship’’ communications with others. A in § 38.44(rrr)(1). The decision must be accommodations, CRC believes that recipient must furnish appropriate accompanied by a written statement of the mandating such a solution is not auxiliary aids and services where recipient’s reasons for reaching that necessary to ensure that recipients meet necessary to accomplish this. The type conclusion. The written statement must meet their obligations to provide reasonable of auxiliary aid or service necessary to readability standards that reflect the accommodations to individuals with ensure effective communication varies program participant’s literacy level and disabilities under WIOA and this part, in accordance with the method of plainly communicate the actual reasoning and should therefore be up to individual communication used by the individual; behind a conclusion that an accommodation would comprise an undue hardship. The recipients. In addition, it is outside the the nature, length, and complexity of recipient must provide a copy of the scope of this rule to require that the communication involved; and the statement of reasons to the individual or recipients utilize a particular funding context in which the communication is individuals who requested the system to pay for accommodations. taking place. In determining what type accommodation. Comment: A union stated that if of auxiliary aid and service is necessary, • If a requested accommodation would further accommodations were a recipient must give primary result in undue hardship, the recipient must, necessitated by the proposed rule, consideration to the request of an in consultation with said individual(s), take additional funding may be needed to . . . other actions that would not result in individual with a disability. Thus, the undue hardship, but would nevertheless effectuate these accommodations. provision of auxiliary aids and services ensure that, to the maximum extent possible, Response: The final rule creates no is always individually based and individuals with disabilities receive the aid, new obligations for recipients regarding benefit, service, training, or employment reasonable accommodations and 272 See 29 CFR 37.9 (1999 rule); 29 CFR 38.9 provided by the recipient. modifications that were not already (2015 rule).

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depends on a number of factors. There use of VRI as an alternative to a live communication varies in accordance is no proactive requirement separate qualified interpreter. A coalition of with the method of communication from an individual’s request to provide organizations representing the interests used by the individual; the nature, auxiliary aids and services. We therefore of individuals with disabilities stated length, and complexity of the decline to make a change with respect that CRC should not utilize the DOJ’s communication involved; and the to the requirements regarding the definition of ‘‘VRI’’ because it is context in which the communication is provision of auxiliary aids and services. inadequate and vague and could lead to taking place. In addition, with respect to Although CRC declines to require the use of a smartphone to be used to video remote interpreting, there are recipients to use specific Web site Skype the interpreter. The commenters particular requirements for how VRI accessibility standards under this rule, stated that this would be problematic should be used under § 38.15(a)(4) that recipients must ensure that information because VRI effectiveness would be address the speed, size, and quality of provided through electronic and dependent on the size of the cell phone the service, which would in many cases information technology, such as on Web screen and effective signal strength. limit the use of a smart phone for VRI. sites, is accessible to individuals with The commenters also raised For these reasons, CRC adopts § 38.15 disabilities. In CRC’s experience, where numerous concerns about the as proposed, except for modifications in a recipient provides required effectiveness of VRI technology § 38.15(a)(5)(ii) to add examples of information through Web sites, it may including malfunctioning of equipment specific modern Web accessibility be difficult to ensure compliance with and video quality. The commenters standards currently available, as well as accessibility requirements without were concerned that the inclusion of technical changes (including a adherence to modern standards, such as VRI would lead to a decrease in onsite regulatory citation) 275 in § 38.15(c). the Section 508 Standards 273 or the interpreters who have greater flexibility, Service Animals § 38.16 WCAG 2.0 Level AA guidelines,274 access to environmental cues, and are which include criteria that provide not subject to technology or equipment The proposed rule added a new comprehensive Web accessibility to malfunctions. Therefore, the § 38.16 to provide direction to recipients individuals with disabilities—including commenters recommended that CRC regarding the obligation to modify their those with visual, auditory, physical, add language to the final rule limiting policies, practices or procedures to speech, cognitive, developmental, the use of VRI to certain situations like permit the use of a service animal by an learning, and neurological difficulties. brief meetings or appointments with the individual with a disability. This Accordingly, we strongly encourage consent of the person with the section tracked the ADA Title II recipients that disseminate information disability. The commenters also stated regulations issued by the DOJ regarding via Web sites to consider these specific that the regulations should provide service animals.276 standards as they take steps to ensure guidance on how VRI should be used. Comment: A coalition of advocacy that their Web sites comply with the Further, the commenters stated that VRI organizations supported the inclusion of requirements of these regulations and is not always an appropriate means of § 38.16 regarding a recipient’s obligation with federal civil rights laws. Having communication for all individuals with to modify policies and practices to considered these issues, and in the disabilities. The commenters added that permit the use of a service animal. interest of clarity on this point, we any person who is given the Another advocacy organization revise the regulatory language in responsibility to obtain an interpreter commended the Department for using § 38.15(a)(5)(ii) to add examples of should conduct an analysis to determine the DOJ’s ADA regulations and specific modern Web accessibility whether VRI is appropriate based on the guidance, particularly with regard to standards currently available. consumer’s disability and preference service animals. However, the Comment: An advocacy organization between VRI and on-site interpreter. organization recommended that CRC expressed support for the requirements Response: The current language, follow DOJ’s guidance more closely and, for accessible electronic and which mirrors the DOJ ADA Title II where the WIOA context does not information technology. However, a regulations, is sufficient. A recipient require differences, CRC should State agency commented that the must take appropriate steps to ensure incorporate and defer to the DOJ’s ADA provisions requiring recipients to utilize that communications with individuals regulations by specific reference. electronic and information technologies, with disabilities are as effective as Response: In the interest of applications, or adaptations that communications with others. A uniformity, the proposed rule tracked incorporate accessibility features for recipient must furnish appropriate DOJ’s ADA Title II provisions regarding individuals with disabilities could auxiliary aids and services where service animals, as well as its definition preclude training providers from listing necessary to accomplish this. Thus, if of a service animal. As a matter of their training programs because of the VRI is not appropriate for a particular policy, CRC provides the full text of extra cost to provide accessibility to an individual with a disability, the those provisions with appropriate individual with disabilities. recipient must provide a different modifications in its own regulations, Response: CRC notes that additional option, absent undue hardship. Of rather than incorporating DOJ’s by accessibility features will not course, in most cases recipients and reference. In some instances, the necessarily cost more; in many cases the qualified individuals with disabilities specific DOJ provision may not be features are already built in or may be must in good faith engage in an applicable to a recipient, or a different required by other laws. Accordingly, interactive process in which they regulatory section may apply. In CRC declines to change the rule as exchange relevant information so the addition, this will prevent having to suggested. recipient may determine an effective revise CRC regulations if the DOJ Comment: An advocacy organization accommodation, giving primary regulation is subsequently revised in a supported the use of video remote consideration to the request of the way that conflicts with this part. interpreting in the proposed rule, individual with the disability. This Comment: A State agency reasoning that the rule allows for the process should reveal whether VRI is recommended that CRC utilize the term appropriate for a particular individual. 273 36 CFR part 1194. Again, the type of auxiliary aid or 275 36 CFR part 1191, appendix B, section 103. 274 See, e.g., http://www.w3.org/TR/WCAG20/. service necessary to ensure effective 276 28 CFR 35.136.

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‘‘service dog’’ to be consistent with the Effect on Other Laws and Policies First, § 38.28(a) proposed the ADA. § 38.24 requirement that the Governor designate Response: While DOJ’s ADA 2010 CRC received no comments on this a State-level EO Officer, who would Title II regulation limited service provision and, accordingly, adopts report directly to the Governor. animals to dogs, the regulation § 38.24 as proposed. Paragraph (a) also required the State- continued to refer to them as ‘‘service level EO Officer to be responsible for Subpart B—Recordkeeping and Other animals’’ and not ‘‘service dogs’’ in both statewide coordination of compliance Affirmative Obligations of Recipients the definition and the specific with the equal opportunity and regulatory section. Thus, the proposed Assurances nondiscrimination requirements in rule is consistent with DOJ’s current WIOA, and that the State-level EO A Grant Applicant’s Obligation To Officer have staff and resources language, and should be readily Provide a Written Assurance § 38.25 understood by recipients and sufficient to carry out these individuals with disabilities. For these Section 38.25 of the proposed rule requirements. Under paragraph (b), the reasons, CRC declines to make the generally retained the existing NPRM proposed to require that each suggested changes to proposed § 38.16. requirements in § 38.20 for grant recipient, with the exception of small applicants. In § 38.25(a)(1), CRC recipients and service providers, Mobility Aids and Devices § 38.17 proposed adding language to emphasize designate a recipient-level EO Officer, the existing obligation that, as a who must have staff and resources The proposed rule added a new condition of an award of financial sufficient to carry out the requirements § 38.17 to provide direction to recipients assistance under Title I of WIOA, a grant of this part. CRC received a total of 21 regarding the use of wheelchairs and applicant assures that it ‘‘has the ability comments on these proposals. manually powered mobility aids by to comply with the nondiscrimination Comment: Several State agencies program participants and employees. and equal opportunity provisions of the requested clarification that the State- The new language is based on the DOJ following laws and will remain in level EO Officer can be appointed by ADA Title II regulations.277 CRC compliance for the duration of the and report to the Governor’s designee, received one supportive comment on award of federal financial assistance.’’ rather than the actual Governor. In this provision from a coalition of CRC proposed this revision because the support of their position, two State disability advocacy organizations, and 1999 and 2015 rules did not provide agencies referenced the proposed adopts § 38.17 as proposed. that this requirement applies for the subpart A definition of ‘‘Governor’’ to Employment Practices Covered § 38.18 duration of the award. include ‘‘the chief elected official . . . CRC received one comment from a or [the Governor’s] designee.’’ These CRC received no comments on this coalition of organizations that strongly commenters indicated that allowing the provision and, accordingly, adopts supported the revisions to the written State-level EO Officer to report to the § 38.18 as proposed, with the exception assurance section. Governor’s designee, such as a director of one technical change, replacing CRC adopts § 38.25 as proposed with or liaison, gives State-level EO Officers ‘‘incorporated into this part by the exception of two technical changes: the proper authority, visibility, and reference’’ with ‘‘adopted by this part’’ Moving the words ‘‘by reference’’ to the level of support needed to carry out in paragraph (d). end of the last sentence in paragraph their responsibilities. (a)(2), and adding the parenthetical Response: CRC agrees that the Intimidation and Retaliation Prohibited phrase ‘‘including limited English definition of ‘‘Governor’’ under § 38.19 proficiency’’ following ‘‘national origin’’ proposed § 38.4(aa) included the CRC received no comments on this in paragraph (a)(1)(i)(A). CRC makes the ‘‘Governor’s designee’’ as part of the provision and, accordingly, adopts latter change for the same reasons as definition of ‘‘Governor.’’ CRC has § 38.19 as proposed. discussed above in connection with the retained the reference to the Governor’s addition of the phrase to § 38.9(a) and designee in the final rule. Accordingly, Administration of This Part § 38.20 for the sake of consistency with that and the designated State-level EO Officer CRC received no comments on this other provisions of the rule. must report directly to the Governor or the Governor’s designee, such as a provision and, accordingly, adopts Duration and Scope of the Assurance § 38.20 as proposed. director, liaison, or other appropriately § 38.26 and Covenants § 38.27 titled official in the Governor’s office, Interpretation of This Part § 38.21 In proposed §§ 38.26 and 38.27, CRC who has the authority of the Governor. retained the same language as in the CRC recognizes the autonomy that the CRC received no comments on this 1999 and 2015 rules,278 with the Governors have in structuring their provision and, accordingly, adopts exception of revised section headings. offices, but also emphasizes that State- § 38.21 as proposed. CRC received no comments on these level EO Officers must have the Delegation of Administration and sections and therefore adopts §§ 38.26 authority extended by the Governor to Interpretation of This Part § 38.22 and 38.27 as proposed. fulfill their responsibilities under Section 188. Because the Governor is Equal Opportunity Officers CRC received no comments on this ultimately responsible for ensuring provision and, accordingly, adopts Designation of Equal Opportunity compliance with the nondiscrimination § 38.22 as proposed. Officers § 38.28 and equal opportunity obligations Coordination With Other Agencies Section 38.28 proposed several within the State, CRC believes that the § 38.23 changes to the 2015 rule’s § 38.23 and Governor is best suited to determine to the 1999 rule’s § 37.23 and incorporated whom the EO Officer should report. CRC received no comments on this components from the 2015 rule’s Comment: Several commenters argued provision and, accordingly, adopts § 38.27, and the 1999 rule’s § 37.27. that the proposed rule’s requirement to § 38.23 as proposed. have a State-level EO Officer and a 278 29 CFR 37.21 and 37.22 (1999 rule); 29 CFR recipient-level EO Officer was 277 28 CFR 35.137. 38.21 and 38.22 (2015 rule). duplicative and inefficient. A State

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agency argued that having a specific level EO Officer or restructure a current level EO Officer should rely on the individual report to the Governor is EO Officer position as the Governor’s Nondiscrimination Plan as the planning burdensome, duplicative, confusing, State-level EO Officer. As noted above, tool to eliminate duplication of staff and an undue hardship to States that the rule also does not change the efforts and to ensure appropriate would have to create a new EO Officer definition of ‘‘Governor,’’ and an delegation of duties. CRC is available to position or restructure their current EO individual designated to act on the provide technical assistance in this Officer position. One State workforce Governor’s behalf may also carry out the regard. Otherwise, specific funding agency requested clarity on whether the responsibilities of the Governor under levels are beyond the scope of this rule. new State-level EO Officer who reports this part. In that case, the Governor’s With respect to the Governor’s directly to the Governor would be authority to ensure equal opportunity obligations, as mentioned above in this established independently of a State’s would flow to the Governor’s designee section, the Governor retains discretion WIOA Title I-B administrative agency. and, in turn, to the State-level EO in structuring the State-level EO Officer The commenter requested clarification Officer. The State-level EO Officer position. The Governor has the option of as to whether the new State-level EO would then have the authority necessary creating a new State-level EO Officer Officer reporting directly to the to carry out the Governor’s equal position or retaining the current EO Governor is a new position or is simply opportunity obligations. Officer to serve as the State-level EO the same EO Officer. In response to these comments, and to Officer. In this regard, the Governor Response: CRC disagrees with the provide more clarity, CRC inserts controls how these positions are funded. assertion that this requirement would subheadings in the regulatory text as The rule does not require the Governor result in a duplication of efforts. follows: ‘‘Governors’’ in § 38.28(a) and to hire additional staff to meet these Governors retain flexibility as to whom ‘‘All recipients’’ in § 38.28(b). The final obligations unless necessary to provide to designate as a State-level EO Officer, rule also clarifies the distinction the State-level EO Officer with the which includes the ability to restructure between the ‘‘State-level EO Officer’’ for resources sufficient to meet the the current EO Officer position to meet the Governor in paragraph (a) and the obligations under this part. CRC the requirements of §§ 38.28 through ‘‘recipient-level EO Officer’’ for all anticipates that current State EO 38.31. The requirement that recipients, recipients in paragraph (b). These Officers will in certain States become including Governors, designate an EO modifications are intended only to the Governor’s State-level EO Officer, Officer is longstanding and exists under clarify § 38.28 as proposed and are not and recognizes that, in practice, the the 2015 rule, just as it existed under intended as substantive changes. Governor can combine these positions the 1999 rule. In practice, most Comment: Several State agencies into a single position within the Governors have empowered a designee, questioned how the EO Officer and parameters of this part. typically, the director(s) of a State support staff would be funded and Comment: A State workforce cabinet agency or agencies that asserted that the requirement adds an development board requested an oversee(s) labor and workforce additional staff member without exemption from the proposed rule’s programs, to appoint an EO Officer often additional funding. The commenters requirement that the State-level EO times referred to as the State EO Officer. argued the proposed rule would divert Officer should report directly to the That EO Officer reported to the State much needed funding away from job Governor when the EO Officer has agency cabinet director and, in practice, training towards administrative costs for direct access to the Governor. The often limited oversight to the EO the new EO Officer and additional staff. commenter argued that its State is a Officer’s own specific agency. Relatedly, a State labor agency argued single-State-area with only one However, the Governor has that WIOA funding was insufficient to Workforce Investment Board and its obligations beyond the duties of a support the proposed rule’s requirement Executive Director is a cabinet member recipient to ensure nondiscrimination that the EO Officer has sufficient funds of the Governor’s administration and and equal opportunity across all State and resources. thus reports directly to the Governor. Programs including State Workforce Response: CRC disagrees with the Response: All Governors have the Agencies. Indeed, under certain commenters’ assertions that this rule obligation to designate a State-level EO circumstances the Governor can be held requires additional staff or funding that Officer. In the example the commenter jointly and severally liable for all would lead to underfunding in other offered, the Executive Director of the violations of these nondiscrimination areas. Regarding the commenter’s Workforce Development Board reports and equal opportunity provisions under concern that statutory funding is directly to the Governor. If the Governor § 38.52, which includes State Workforce insufficient to support the proposed designates the Executive Director as Agencies as defined in § 38.4(lll), and rule’s requirement that EO Officers have discussed above, the State-level EO State Programs as defined in § 38.4(kkk). sufficient funds and resources, CRC Officer could report to the Executive This final rule’s requirement serves to believes the changes to the rule Director. emphasize the importance of the requiring a State-level EO Officer will Comment: Several State agencies and Governor’s obligations, and ensure that allow States to become more efficient a private citizen commented that the EO a State-level EO Officer can carry out while implementing a more effective Officers currently have enough those obligations—with authority equal opportunity program. An authority and CRC was well equipped flowing from the Office of the Governor individual with the requisite under existing regulations to ensure that and with the staff and resources knowledge, skills and abilities coupled EO Officers have the authority and sufficient to carry out those with the authority provided by reporting resources to do their job. These requirements. to the Governor, will enhance the State’s commenters encouraged CRC to conduct The changes in the rule do not remove ability to develop an efficient and a thorough analysis of the Methods of the flexibilities available to a Governor effective nondiscrimination program. Administration (renamed in the NPRM to determine how the equal opportunity Those efficiencies result because the as the ‘‘Nondiscrimination Plan’’) and program works in the State, and is new State-level EO Officer will improve work immediately with the States, when described in the Governor’s the coordination of the recipient-level needed, to ensure that the EO Officer Nondiscrimination Plan. For example, EO Officers for all of the State Programs. has available resources and is placed in the Governor can designate a new State- The Governor or designee and State- a position of authority with sufficient

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visibility and support to carry out the and equal opportunity provisions in would expand the number of EO responsibilities under this part. part 38. CRC disagrees with the Officers and increase duplication of Response: CRC acknowledges that commenters’ assertion that it is not an effort and expense, and could some States may already provide EO appropriate function for the Governor’s discourage the participation of non- Officers with the requisite authority and Office to monitor programs. The mandatory partners. The commenter resources to ensure compliance with monitoring and oversight obligations of attributed this to its belief that the nondiscrimination and equal the Governor have existed dating back at proposed rule expanded the definition opportunity provisions. However, it has least to the 1999 rule, as has the of recipient to include not just State been CRC’s experience that often times requirement that each recipient Workforce Agencies, but also State-level EO Officers are completely removed designate an EO Officer.279 CRC believes partner agencies, State and local from the reporting chain to the that requiring each recipient to workforce boards, one-stop operators, Governor, or the authority granted the designate at least one recipient-level EO and others. The state agency commented EO Officer is limited to the agency Officer is essential to ensure appropriate that inclusion of on-the-job training which the EO Officer oversees. The monitoring of the recipient’s individual employers would ‘‘kill’’ their programs. revisions in the final rule in § 38.28 compliance with WIOA Section 188 and Response: Again, CRC disagrees that resolve these issues. By requiring State- this part. these provisions will result in a level EO Officers to report directly to CRC agrees with commenters that duplication of effort and expense. the Governor, who is ultimately States should have flexibility in Recipients retain flexibility as to whom responsible for ensuring deciding the structure and function of to designate as their recipient-level EO nondiscrimination and equal the State-level EO Officer position and Officers, which includes the ability to opportunity in all State Programs, the other recipient-level EO Officer restructure a current recipient-level EO Governor will be more knowledgeable positions, within the requirements of Officer position to meet the about the nondiscrimination and equal this part. For that reason, as addressed requirements of §§ 38.28 and 38.29. opportunity issues faced by the WIOA above, Governors have the autonomy to Moreover, a recipient-level EO Officer Title I-financially assisted programs and structure the State-level EO Officer with the requisite knowledge, skills and activities and will be in a better position position according to the needs of their abilities coupled with the authority to effectively administer the required States. Governors need not separate provided by reporting to the highest Nondiscrimination Plan in § 38.54. equal opportunity from program level of the recipient will enhance the While CRC is available to provide compliance monitoring functions recipient’s ability to develop an efficient technical assistance to all recipients and provided that the appropriate EO Officer and effective nondiscrimination their EO Officers, CRC declines, receives the results of the equal program, including coordination with however, to assume from the Governor opportunity monitoring and can act other EO Officers to avoid duplication. the obligation to monitor the authority appropriately to ensure equal Although the definition of ‘‘recipient’’ and resources of the State-level EO opportunity and nondiscrimination. The in proposed § 38.4(zz) expanded to Officers. That responsibility remains Governor may designate a current EO include federally operated Job Corps with the Governor. Officer as the State-level EO Officer. Centers, CRC proposed no other change Comment: One State agency said that This requirement does not mandate that to this definition. CRC has consistently moving the equal opportunity the Governor create a new State-level included state-level partner agencies, monitoring function directly under the EO Officer position through a new state and local workforce investment Governor would separate the equal placement. An individual could serve as boards, one-stop operators, and on-the- opportunity and program compliance both the State-level EO Officer and as a job training employers as part of the monitoring functions between two recipient-level EO Officer provided different governmental entities, leading there is no conflict of interest 280 and definition of ‘‘recipient’’ in the 1999 and to less efficiency in overall program that the individual has sufficient staff 2015 rules. The inclusion of these monitoring and economic inefficiencies. and resources to properly perform both entities in the definition of recipient That State agency also commented that the duties of the State-level EO Officer remains appropriate. Moreover, we note monitoring programs under WIOA is not position and the recipient-level EO that as the requirement to designate an an appropriate function for the Officer position. EO Officer has existed, CRC believes Governor’s office. A different State Furthermore, CRC has retained the that most large, on-the-job training agency commented that it would be definition of ‘‘Governor’’ to include the providers are already compliant, and impractical for the State-level EO Governor’s designee. Therefore, CRC small providers do not have all of the Officer to report directly to the disagrees that the new reporting same obligations as other recipients Governor. Another State agency argued structure is impractical. This provision under WIOA and this part.281 that the proposed rule failed to consider allows the Governor the proper Comment: Several commenters the flexibility that WIOA gives States to flexibility and discretion needed to discussed CRC’s authority under WIOA organize and administer their workforce determine the manner in which to to implement § 38.28. One State agency development system. Several delegate authority, while also providing argued that CRC did not have the commenters expressed frustration that the State-level EO Officer the requisite authority under WIOA to require a State the proposed rule requires the authority to ensure compliance with to appoint a State-level EO Officer, designation of a recipient-level EO this part. mandate that the State-level EO Officer Officer for each recipient and does not Comment: A state agency argued that must report directly to the Governor, dictate how a State must organize this the revised definitions in §§ 38.28 and and dictate the structure for program function. 38.29 should be deleted because they administration. Similarly, another Response: As mentioned above, commenter argued that Section 188 proposed § 38.28 required a State-level 279 29 CFR 37.54(d)(2)(ii) (1999 rule); 29 CFR provides no authority for the EO Officer to direct the flow of 38.54(d)(2)(ii) (2015 rule). Department to prescribe the reporting 280 § 38.30 (EO Officers ‘‘must not have other structure for the individual designated information directly to the Governor, responsibilities or activities that create a conflict or who is already responsible for ensuring the appearance of a conflict with the compliance with the nondiscrimination responsibilities of an EO Officer’’). 281 See §§ 38.4(hhh) and 38.32.

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by the Governor to serve as the State- Response: Regardless of political requisite authority to successfully carry level EO Officer. turnover in respective States’ Governors’ out the responsibilities in this part. Response: CRC disagrees with offices, Governors and State-level EO Proposed paragraph (b) added a commenters’ characterization of CRC’s Officers are expected to comply with the requirement to designate an EO Officer authority under WIOA Section 188. As provisions in this part. State-level EO who can fulfill the responsibilities as an initial matter, Section 188 of WIOA Officers who report directly to the described in § 38.31. This provision was delegates to the Secretary of Labor the Governor strengthen oversight and proposed to ensure that EO Officers responsibility for enforcing this section allow the Governor to make informed have the required capabilities to comply through implementing regulations. The decisions to ensure nondiscrimination with their obligations under this part. Secretary has delegated to CRC the and equal opportunity. Moreover, the CRC received four comments on these authority to enforce Section 188 of final rule does not require that the State- changes. WIOA and thus to promulgate this rule. level EO Officer be a political employee Comment: A State agency and a It is CRC’s responsibility to ensure that whose term is limited by that of the coalition of organizations commented access to any WIOA Title I-financially Governor. CRC notes that recipients are that they supported § 38.29 because it assisted program, service, or benefit is prohibited from engaging in would ensure that EO Officers have free from discrimination. Thus, CRC has employment discrimination on the basis adequate authority and staffing to carry the authority to promulgate regulations of political affiliation with respect to out their duties. that will be most effective in employment that is in the However, a State labor agency argued accomplishing this goal, including administration of or in connection with that § 38.29’s requirement that the EO mandating the reporting structure for any WIOA Title I-funded program. Officer be a senior level employee who recipients that receive WIOA Title I Thus, CRC anticipates that State-level reports directly to the Chief Executive financial assistance to ensure effective EO Officers will complete their required Officer was contradictory to § 38.28’s monitoring and compliance. tasks free from political pressure and requirement that the EO Officer report Moreover, the relationship between regardless of administration turnover. to the Governor who is defined as ‘‘the the Governor and the State-level EO Chief Elected Official . . . or the Officer is not unique to this final rule. Summary of Regulatory Changes Governor’s designee.’’ The commenter As a recipient, the Governor, just like all In response to the comments received, also noted that ‘‘Chief Executive other recipients, has been required CRC has revised § 38.28 to clarify Officer’’ was not defined in the under the 1999 and 2015 rules to further the distinction between proposed regulations. A State workforce designate an EO Officer, and the Governors and recipients generally, but development board requested practice, as CRC understands it, was to has not made any substantive changes to clarification on CRC’s definition of have that EO Officer serve as the State the proposed rule. CRC modifies Chief Executive Officer or Chief EO Officer with the responsibility for § 38.28(a) and (b) to include the Operating Officer. The commenter asked the Governor’s Methods of subheadings ‘‘Governors’’ and ‘‘All whether CRC’s definition would include Administration (MOA). However, as recipients,’’ respectively. CRC also Executive Directors of State Workforce discussed above, that State EO Officer clarifies the distinction between the Agencies designated as the WIOA Fiscal may not have held the authority to State-level EO Officer for the Governor Agent, Grant Recipient, State effectively implement the MOA, in paragraph (a) and the recipient-level Administrative Entity, and WIOA monitor compliance by all State EO Officer for all recipients in Liaison. Programs, and then ensure paragraph (b), including by changing Response: Section 38.29 is consistent accountability. By requiring the State- ‘‘statewide’’ to the more precise ‘‘State with the provisions found in §§ 38.28 level EO Officer to report to the Program-wide’’ in paragraph (a). As and 38.30 and details all recipients’ Governor, the Governor will have a discussed in response to a comment obligations regarding their EO Officers. specific individual with the distinct below, CRC further revises paragraph (b) In response to the comments received, responsibilities for coordinating to specify the level of the official to CRC revises §§ 38.28(b) and 38.29 to compliance with the nondiscrimination whom the recipient-level EO Officer clarify the distinction between the and equal opportunity provisions in must directly report, with specific Governor’s responsibilities as to the WIOA and this part, throughout the examples. State-level EO Officer and those of all State, as described in the recipients generally regarding EO Nondiscrimination Plan, formerly the Recipients’ Obligations Regarding Equal Officers, but is not making any Methods of Administration. Opportunity Officers § 38.29 substantive changes from the NPRM to Comment: Several commenters argued The proposed rule relocated this proposed § 38.28(a) or § 38.29. As did that the proposed requirement that the section to highlight the importance of the proposed rule, the final rule requires Governor appoint a State-level EO all recipients’ responsibilities regarding that two types of EO Officers be Officer would weaken that office’s their EO Officers. As indicated in the designated. position and make it susceptible to NPRM, proposed § 38.29 is applicable to First, § 38.28(a) provides that the political pressure. These commenters the EO Officers of all recipients, Governor must designate a State-level argued that State-level EO Officers may including the Governor. EO Officer who reports directly to the be hesitant to take on controversial In proposed § 38.29(a), CRC Governor or designee. That State-level positions because the Governor could incorporated the existing obligation that EO Officer is responsible for overseeing terminate the State-level EO Officer for the EO Officer be a senior level the obligations of the Governor to any reason. Several commenters also employee. CRC added to this provision coordinate and monitor compliance pointed out that the State-level EO that the EO Officer, as a senior-level State Program-wide with this part. Officer position would be subject to employee, report directly to the Chief Second, § 38.28(b) provides that each frequent turnover upon a change in the Executive Officer, Chief Operating recipient must designate a recipient- Governor’s administration. These Officer, or equivalent top-level official level EO Officer that reports to the commenters argued that this would be of the recipient. CRC explained that the highest-level official of that recipient, to detrimental to the performance and proposed change in paragraph (a) was to coordinate that recipient’s compliance continuity of the programs. ensure that EO Officers have the with this part. Because a Governor may

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also be a recipient, the position of of Employment Services, the Chair of of Employment Services, the Chair of ‘‘Governor’’ appears in § 38.28(b) as an the Local Workforce Development the Local Workforce Development Board example of the ‘‘highest-level’’ official Board, the Chief Executive Officer, the the Chief Executive Officer, the Chief of the entity that is a recipient. The Chief Operating Officer, or an Operating Officer, or equivalent top- recipient-level EO Officer designated by equivalent official.’’ This revision level official of the recipient.’’ CRC also the Governor in the Governor’s role as provides more examples of the level of makes a grammatical correction to recipient, however, is only responsible officials to whom the recipient-level EO paragraph (d) (changing ‘‘appears’’ to for compliance in that program, and Officer must report, and incorporates ‘‘appear’’). thus has a different role than the State- the same language as is included for all Requisite Skill and Authority of Equal level EO Officer who is responsible for EO Officers in final § 38.29(a). Opportunity Officer § 38.30 State Program-wide compliance. Comment: Referring to proposed Nevertheless, a recipient-level EO § 38.30, a State agency recommended Together with proposed §§ 38.28 and Officer may also serve as the State-level that, instead of requiring that the EO 38.29, proposed § 38.30 was intended to EO Officer, provided there is no conflict Officer be a senior-level employee, the emphasize the level of authority of interest and that individual has EO Officer could hold a middle recipients must give to the EO Officer sufficient staff and resources to management position with access to the and the capabilities of the person adequately perform the duties of both Governor’s designee. The commenter holding that position. This provision positions. stated that, if the EO Officer must be a explained that the EO Officer must be a Next, §§ 38.29 through 38.31 apply to senior level employee with additional senior level employee of the recipient both types of EO Officers (State-level staffing, then there should be shared who possesses the knowledge, skills, and recipient-level). Thus, to add funding. and abilities necessary to competently clarity, CRC revises the title of § 38.29 Response: As mentioned in the NPRM fulfill the responsibilities of the EO and the section’s introductory sentence and above, CRC wants to ensure through Officer, described in this part. The to specify that ‘‘All recipients have the these provisions that EO Officers have provision also states that the EO Officer following obligations related to their EO the requisite authority to effectuate may be assigned other duties but must Officers.’’ These clarifications will compliance with WIOA Section 188 and not have other responsibilities or improve readability and address this part. CRC retains the requirement activities that create a conflict or the commenters’ concerns that § 38.29(a) that the EO Officer must be a senior appearance of one. CRC received six contradicts the requirement that the level employee. The 1999 rule at § 37.24 substantive comments regarding this State-level EO Officer report directly to and the 2015 rule at § 38.24 required provision. the Governor in § 38.28(a). that the EO Officer be a senior level Comment: A State agency and State CRC emphasizes that the employee; that requirement has not workforce development board requirements for EO Officers generally changed. Thus, the same provisions in supported the requisite skill and in §§ 38.29 through 38.31 apply to all this final rule require no additional authority given to the EO Officer in EO Officers, whether State-level or funding to implement. As to the § 38.30. The State agency commented recipient-level. The State-level EO requirement in proposed and final that this provision would ensure that Officer, however, will have additional §§ 38.28(a) and (b) and 38.29(e) that the the Governor would not have responsibilities in connection with the EO Officer have sufficient staff to ensure reservations delegating authority to the Governor’s monitoring and oversight of compliance, CRC notes that the 1999 EO Officer because the EO Officer State Programs. Thus, the State-level EO rule at § 37.26(c) and 2015 rule at would be qualified to enforce Officer has the same responsibilities and § 38.26(c) already required that the compliance with WIOA and would be qualifications of a recipient-level EO recipient assign sufficient staff and accountable for any conflicts of interest. Officer, but with the additional mandate resources to the EO Officer. Thus, this The State workforce development board to carry out the Governor’s obligations. provision is not new either and recommended that similar requirements As indicated in § 38.28(a), State-level consequently should require no for skill and authority be in place for EO Officers are responsible for State additional funding to implement. Equal Opportunity Liaisons that are Program-wide coordination of Regarding the commenter’s suggestion assigned to individual American Job compliance with the equal opportunity to require ‘‘shared funding,’’ the Centers or be required in each State and nondiscrimination requirements in allocation of specific funds is beyond ‘‘Nondiscrimination Plan.’’ WIOA and this rule. the scope of this rule. Response: CRC appreciates the CRC declines to define the terms commenters’ support for proposed Chief Executive Officer, Chief Operating Summary of Regulatory Changes § 38.30. In the final rule, CRC adopts Officer, or equivalent official in the final For the reasons described in the proposed § 38.30 and declines to require rule. The purpose of this provision is to proposed rule and considering the States to include language in the ensure that EO Officers report to the comments received, CRC finalizes Nondiscrimination Plan regarding Equal top-ranking official within the entity proposed § 38.29, with some Opportunity Liaisons. Some, but not all that is the recipient, who is responsible modifications. CRC modifies the title States, have the Equal Opportunity for overseeing compliance of that and introductory sentence to state: ‘‘All Liaison position. While CRC agrees that recipient. Rather than provide a recipients have the following Equal Opportunity Liaisons should have description, CRC has provided more obligations related to their EO Officers.’’ sufficient authority and skills, CRC examples of the titles that such officials Additionally, CRC revises paragraph (a) declines to require recipients to have may have. In the final rule, CRC revises to further describe the EO Officer’s such a position or to include regulatory § 38.28(b) to specify that all recipients authority to report directly to ‘‘the provisions addressing that position. must designate a recipient-level EO individual in the highest position of Thus, unless the Equal Opportunity Officer, ‘‘who reports directly to the authority for the entity that is the Liaison also serves as an EO Officer, the individual in the highest position of recipient,’’ and provides additional EO Liaison position is outside of the authority for the entity that is the examples of the titles of those officials, scope of this rule’s requirements. recipient, such as the Governor, the ‘‘such as the Governor, the However, States are not restricted from Administrator of the State Department Administrator of the State Department listing skills needed for other positions

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such as the EO Liaison position in their year; and (2) employs fewer than 15 monitoring compliance with the Nondiscrimination Plans. employees on any given day during the nondiscrimination and equal Comment: An advocacy organization grant year. As indicated in the 2015 rule opportunity provisions as set out in this recommended that the EO Officer be and proposed rule §§ 38.28(b) and subpart, CRC declines to regulate each provided training on disability 38.32, small recipients do not need to of these positions and their discrimination and disability issues. designate recipient-level EO Officers. responsibilities. As mentioned in the Response: While CRC generally agrees Thus, any recipient who qualifies as a section above, CRC does not regulate EO that the EO Officer should, as a best small recipient under § 38.4(hhh), or as Liaisons that States may designate to practice, be trained on disability a ‘‘service provider’’ under § 38.4(ggg), help fulfill their obligations under part discrimination, CRC declines to single is not obligated to designate a recipient- 38 unless they also serve as EO Officers. out a specific protected category about level EO Officer. Instead, CRC’s focus is on the EO Officer which EO Officers should be trained. and that individual’s responsibilities. Equal Opportunity Officer CRC believes that the legitimate exercise States have the flexibility, however, to Responsibilities § 38.31 of discretion regarding training on decide how best to incorporate EO disability and other protected bases is Most of the language in the 1999 and Liaisons and their responsibilities best left with recipients. Section 38.30 2015 rules was retained in proposed within the structure of their programs. only requires that the EO Officer possess § 38.31, with some additions. Proposed States are not prohibited from listing the knowledge, skills, and abilities that § 38.31 added new language in skills needed for other positions such as are necessary to comply with this part. paragraph (d) clarifying the existing the EO Liaison in their CRC notes that § 38.31(f) also requires requirements that the EO Officer Nondiscrimination Plans. In fact, CRC that EO Officers undergo training (at the develop and publish the recipient’s encourages this practice, but declines to recipient’s expense) to maintain procedures for processing make it a requirement. competency, which would include discrimination complaints by adding Comment: Some commenters training related to disability examples of specific procedures to be requested clarification of the EO discrimination along with all of the included and that the EO Officer make Officer’s responsibilities. A State other protected bases under Section 188 sure that those procedures are followed, workforce agency asked whether and this part. Accordingly, CRC including by tracking the discrimination employee complaints in the agency declines to specify in the final rule that complaints filed against the recipient, would be the responsibility of the ‘‘State recipients must provide disability developing procedures for investigating EO Officer’’ or other human resources discrimination training for EO Officers. and resolving discrimination staff. Comment: A State agency noted that complaints, and making available to the Response: The recipient-level EO ‘‘size’’ is not defined and requested an public, in appropriate languages and Officer is responsible for developing explanation as to when a recipient is formats, the procedures for filing a and publishing the recipient’s large enough to warrant a dedicated EO complaint. Proposed paragraph (e) procedures for processing Officer. The commenter recommended added to the EO Officer’s discrimination complaints, including that any restrictions on what an agency responsibilities an outreach and covered employee complaints, and for can and cannot do with their staff was education requirement, which making sure those procedures are overly intrusive and should be stricken. recipients were already required to followed as described in § 38.72. The Response: CRC disagrees that the undertake pursuant to the 1999 and State-level EO Officer oversees all requirements in proposed § 38.30 are 2015 rules.282 In addition, the NPRM recipient-level EO Officers assigned to intrusive. CRC declines to modify the deleted § 38.25(e), which addressed State Programs. Since States retain provision that precludes the EO Officer reporting lines of authority for the Equal flexibility to structure their equal from having other responsibilities Opportunity Officer because those opportunity staff as they deem whenever the size of the recipient, or reporting lines are now addressed in the necessary to comply with this part, a the size of its WIOA Title I—funded final rule under §§ 38.28 and 38.29(a). State could require the recipient-level programs, would prevent the EO Officer Finally, the NPRM proposed language in EO Officer to process complaints, or to from competently fulfilling the duties of paragraph (f) to clarify that the existing oversee human resources staff that the office. CRC in this provision has training obligation for the EO Officer handle complaint processing, provided given recipients the flexibility to assign includes EO Officer staff training. CRC no conflict of interest exists and human other duties to the EO Officer as long as received seven comments on these resources staff have the requisite those duties do not interfere with the provisions. knowledge to fulfill equal opportunity EO Officer duties or present an actual or Comment: A State workforce responsibilities. Again, the recipient- apparent conflict. The proposed rule development board supported § 38.31, level EO Officer is accountable for does not define ‘‘size’’ as used in § 38.30 describing the requirements as well- overseeing that process, ensuring there because CRC wants to give recipients defined. The commenter also is no conflict of interest, and confirming the flexibility to structure their recommended that this provision be that the process complies with Section workforces in the manner that best added to requirements that apply to 188 of WIOA and this part. meets their needs, while still complying Equal Opportunity Liaisons. The Comment: One commenter asked with this part. For that reason, the rule commenter also stated that, if the whether the Department would allocate does not require in all cases that EO provision was not included in the final funding for trainings because the Officers be dedicated exclusively to rule, then the Department should proposed rule stated that budgetary their duties under this part. consider including it within the State restrictions are not a sufficient excuse Moreover, regarding when a recipient Nondiscrimination Plan. for not sending EO Officers to training. would be considered a small recipient, Response: While CRC generally agrees Response: As mentioned in the the 1999 rule, the 2015 rule and the that persons other than the EO Officers NPRM, EO Officers reported to CRC that proposed rule defined ‘‘small recipient’’ may be involved in overseeing or they were unable to attend trainings for in § 38.4(hhh) as a recipient who: (1) budgetary reasons. CRC rejected Serves a total of fewer than 15 282 29 CFR 37.42 (1999 rule); 29 CFR 38.42 (2015 budgetary reasons as a basis for beneficiaries during the entire grant rule). recipients to deny training opportunities

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to EO Officers and their staff. CRC are currently required to do under the With respect to the suggestion that continues to believe that recipients must 2015 rule in §§ 38.76 and 38.77, and State-level EO Officers be required to permit their EO Officers and staff to were required to do under the 1999 rule train recipient-level EO Officers on a participate in such training whenever in §§ 37.76 and 37.77. quarterly basis, CRC understands the necessary to ensure that EO Officers and As to whether CRC should provide commenters’ concern, but declines to their staff have the requisite knowledge the policy, procedure and forms that the impose that requirement in this rule. to comply with their responsibilities commenter requests, CRC notes that the CRC wishes to retain States’ flexibility under this part. Furthermore, under EO Officer is the recipient’s employee in deciding how often training should proposed § 38.25 (§ 38.20 in the 2015 likely to be the best suited to help be conducted, so long as they are rule and § 37.20 in the 1999 rule), in recipients develop and publish complying with their overall obligations their written assurances, grant procedures for processing in this part. The requirements in applicants agree to comply fully with discrimination complaints and the §§ 38.29(f) and 38.31(f) emphasize that the nondiscrimination and equal investigatory practices that occur the EO Officer and staff receive training opportunity provisions in this part. thereafter. CRC believes it has provided necessary to maintain competency. In Providing training to EO Officers and sufficient criteria for recipients and that regard, the revisions set forth in their staff is part of that obligation. The their EO Officers related to the §§ 38.28 through 38.30 modifying the requirement to provide training for the processing and tracking of complaints. reporting structure of the State-level EO EO Officer and staff has existed for The requirements in subpart D include Officers and the management level of years. Indeed, under the 2015 rule at a subheading titled ‘‘Complaint the recipient-level EO Officer now puts §§ 38.25(f) and 38.26(d), and the 1999 Processing Procedures,’’ beginning at Governors and recipients in the best rule at §§ 37.25(f) and 37.26(d), § 38.69, which includes sections that position to determine the frequency of recipients were required to ensure that identify, among other things, the training needed for State-level EO the EO Officer and staff were afforded required contents of a complaint, Officers and other EO Officers to the opportunity to receive the training required elements of a recipient’s maintain competency to enable them to necessary and appropriate to maintain complaint processing procedures, and ensure compliance with this rule. competency. CRC retains this the recipient’s obligations as to requirement in the final rule in complaints generally. CRC believes its Small Recipient Equal Opportunity § 38.31(f). Allocation of funding for detailed provisions in this rule provide Officer Obligations § 38.32 specific expenses is beyond the scope of sufficient direction to help recipients Proposed § 38.32 replaced the word this rule. develop and publish procedures for ‘‘developing’’ with ‘‘adopting’’ because Comment: A State agency requested processing discrimination complaints. small recipients may not be required to clarification on how or whether the Recipients also are encouraged to develop complaint procedures and State-level EO Officer and the recipient- contact CRC for technical assistance. process complaints. Governors have the level EO Officer would coordinate Comment: A local workforce agency discretion to prescribe the complaint monitoring activities. The commenter stated that implementation of the processing procedures applicable to argued that this oversight could be time- proposed rule would take more than six small recipients pursuant to § 38.73. consuming and costly for State agencies months and possibly more than a year. CRC received no comments on this because, for example, a one-stop The commenter recommended that CRC provision and adopts § 38.32 as operator would be monitored at a mandate that State-level EO Officers proposed. minimum of three times a year: By the hold training sessions for local EO Service Provider Equal Opportunity State-level EO Officer, the recipient- Officers on a quarterly basis. The Officer Obligations § 38.33 level EO Officer of at least one state- commenter argued that training would level agency partner, and by the local help with interpretation of the rule and The NPRM modified the title of Workforce Development Board or help the State unify its objectives to § 38.28 to ‘‘Service provider Equal LWDA grant recipient. One commenter ensure that the State-level EO Officer is Opportunity Officer obligations’’ and suggested that CRC should provide the providing the best oversight and renumbered it as § 38.33. CRC received policy, procedure, and forms on implementation of Section 188 of no comments on this provision and processing, investigating, and tracking a WIOA. adopts § 38.33 as proposed. complaint. The commenter argued that Response: CRC appreciates the Notice and Communication this would unify the procedures and commenters’ concerns regarding allow all States to provide a uniform implementation and training. However, Recipients’ Obligations To Disseminate result. the 30-day effective date for the final Equal Opportunity Notice § 38.34 Response: CRC understands the rule provides recipients with sufficient Proposed § 38.34 retained language commenter’s concerns about cost and time to come into compliance. CRC from the 1999 and 2015 rules,284 while time management issues, but reiterates notes that most of the requirements in incorporating minor revisions to that such concerns do not relieve the final rule are obligations that paragraphs (a)(6) and (b). Proposed recipients from complying with Section currently exist. For those provisions § 38.34(a)(6) added a requirement that 188 of WIOA or this part. CRC believes where CRC believes that more time is the equal opportunity notice be that the Nondiscrimination Plan will be needed for implementation, CRC has provided to ‘‘those with limited English an effective tool to help States explicitly provided that additional time proficiency.’’ Similarly, § 38.34(b) coordinate efforts and avoid duplicative in the regulatory text.283 proposed that the notice be provided costs and drafts this final rule to give ‘‘in appropriate languages to ensure States the flexibility to determine how 283 For example, recipients have two years after meaningful access for LEP individuals State-level and recipient-level EO the effective date of this rule to update their data as described in § 38.9.’’ Proposed § 38.9 Officers should coordinate monitoring collection of LEP individuals’ primary and activities. The final rule retains the EO preferred languages under § 38.41(b)(2). Section 38.55 also provides an additional 180 days for new equal opportunity notice requirements in Officer’s responsibilities to develop and States to develop and implement their initial §§ 38.34 and 38.35. publish the recipient’s procedures for Nondiscrimination Plans. Furthermore, § 38.36(d) 284 29 CFR 37.29 (1999 rule); 29 CFR 38.29 (2015 processing complaints, which recipients gives recipients up to 90 days to comply with the rule).

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included recipients’ obligation to requirement. Section 38.36(b) provides to be consistent with case law under provide written translations of vital that the notice must be provided in Title VII and Title IX. We therefore documents for LEP populations. We appropriate formats to registrants, decline to remove the parenthetical received no comments exclusively applicants, participants, and employees language from the notice/poster pertaining to this provision,285 and with visual impairments. That provision requirement in this section. adopt § 38.34 as proposed. adequately puts recipients on notice Comment: One State agency regarding their obligations to publish Equal Opportunity Notice/Poster § 38.35 recommended that the required wording the equal opportunity notice and to of the equal opportunity notice/poster Section 38.35 proposed the specific provide the notice in an accessible should specify that recipients accept wording recipients must use in their format. Section 38.15 provides further complaints via email and without equal opportunity notices and posters. instruction to recipients regarding signature. CRC retained most of the language from communications with individuals with Response: Nothing in the equal the 1999 and 2015 rules.286 Proposed disabilities. Sections 38.36 and § 38.15 opportunity notice mandated in § 38.35 § 38.35 added the term ‘‘poster’’ to the therefore appropriately capture the prohibits a recipient from accepting title, noting an explicit requirement that commenters’ concerns. For these complaints via email. A complaint may the notice be posted in conspicuous reasons, CRC declines to make the be filed electronically if the complaint physical locations and on Web site change suggested by the commenter. meets the requirements outlined in pages. Proposed § 38.35 also added However, as discussed above in proposed § 38.70(d). One required parentheticals to the required wording, connection with § 38.4(i), we are adding element of a complaint is a written or explaining that ‘‘sex’’ as a prohibited two sentences to § 38.35 to provide electronic signature of the complainant basis for discrimination includes similar notice to beneficiaries. The (or representative). CRC continues to ‘‘pregnancy, child birth, and related equal opportunity notice now alerts believe that it is important for medical conditions, sex stereotyping, individuals with disabilities of their complaints to include signatures. A transgender status, and gender identity’’ right to request auxiliary aids and signature indicates that the contents in and ‘‘national origin’’ includes ‘‘limited services at no cost. the complaint are grounded in fact, and Comment: Several advocacy English proficiency.’’ Section 38.35 to the best of the complainant’s organizations recommended adding proposed these changes to be consistent knowledge, the information is being ‘‘sexual orientation’’ to the parenthetical with current law and to remind presented in good faith. Accordingly, language concerning sex as a form of beneficiaries and recipients that CRC declines to specify in the notice/ discrimination. discrimination based on these poster that recipients accept complaints subcategories is prohibited. The NPRM Response: CRC appreciates the commenters’ suggestion, but declines to by email without signature. also proposed language in the notice/ For the same reasons as discussed poster stating that CRC will accept make this change. For the same reasons described above in the main preamble above in connection with § 38.5, CRC complaints via U.S. mail and email at an makes technical revisions to the 287 and in connection with the discussion address provided on CRC’s Web site. wording and punctuation of the first Many organizations expressed of § 38.7(a), CRC has decided not to resolve in this rule whether sentence of the EO notice/poster to support for the requirements in clarify the list of protected bases. proposed § 38.35. An individual discrimination on the basis of an commenter stated that the equal individual’s sexual orientation alone is Recipients’ Obligations To Publish opportunity notice seems to have a a form of sex discrimination. CRC will Equal Opportunity Notice § 38.36 comprehensive scope, allowing continue to monitor legal developments in this area. Proposed § 38.36 retained the individuals that have been or are being Comment: Two State agencies language in § 38.31(a)(1) of the 2015 discriminated against under WIOA suggested removing the parenthetical rule, and § 37.31(a)(1) of the 1999 rule, programs to be aware of their rights and language relating to transgender status that the equal opportunity notice be file a complaint. Some commenters and gender identity from the notice/ posted prominently in reasonable recommended specific revisions to the poster requirement in proposed § 38.35. numbers and places. Proposed required wording of the equal One agency argued that the posters § 38.36(a)(1) added a requirement that opportunity notice. In total, we received identifying prohibited discrimination be the notice be posted ‘‘in available and 11 comments on this section, which are limited to the governing statutory conspicuous physical locations,’’ as addressed below. provisions. Similarly, another State well as on the recipient’s Web site Comment: One commenter agency commented that Title VII does pages. CRC updated this provision to recommended that CRC add language to not include the parenthetical language reflect the current widespread use of this provision that ‘‘the notice, poster, proposed. Specifically, the State agency Web site pages to convey program and and/or appeal rights set forth in this noted that the area of law regarding sex employment information. CRC also section must be provided in an discrimination is unsettled and thus the highlighted the need to post the notice accessible format.’’ parentheticals as to gender identity and in places that are easily visible and to Response: CRC declines to add the transgender status should be removed. which employees, beneficiaries and suggested wording to § 38.35 because it A coalition of organizations, on the program participants have ready access. is worded as an across-the-board other hand, supported expanding the Similarly, proposed § 38.36(a)(3) statutory provisions by including retained the requirement that the notice 285 We received one comment from an advocacy organization that generally cross-referenced this parentheticals for certain prohibited be included in employee and provision along with proposed §§ 38.4(i), 38.4(ttt), bases. participant handbooks and manuals, 38.36 and 38.39. Our response to that comment is Response: For the same reasons and clarified that this included addressed in the section-by-section analysis of discussed previously in the main electronic handbooks and manuals to § 38.36. preamble and in connection with the account for their current widespread 286 29 CFR 37.30 (1999 rule); 29 CFR 38.30 (2015 rule). definition of ‘‘sex’’ in § 38.7(a), CRC use. Proposed paragraph (a)(4) was 287 U.S. Dep’t of Labor, Civil Rights Center, finds the inclusion of gender identity updated to require that the notice would https://www.dol.gov/oasam/programs/crc/. and transgender status in the final rule be made a part of each participant’s and

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employee’s electronic as well as paper However, unsolicited offers of an unfunded mandate for partner file, if both are maintained. information in ASL or alternative agencies. Proposed paragraph (b) of § 38.36 formats may be contrary to the ADA, Response: CRC disagrees with the required that the notice be provided in whenever they reflect another’s State agency’s description of this appropriate formats for registrants, perception or stereotype about obligation, and declines to adopt the applicants, eligible applicants/ particular disabilities. Instead, commenter’s suggestion. As discussed registrants, applicants for employment individuals are always free to request above, the requirement to publish the and employees and participants with the notice in ASL, and the obligation to equal opportunity notice is not new and visual impairments, correcting an provide it is only triggered upon such a existed in the 1999 and 2015 rules. oversight in the 1999 and 2015 rules request. Moreover, CRC will make translations of that such notice be given only to As stated in § 38.15, which parallels this notice available to recipients in the participants. Paragraph (b) retained the the language of DOJ’s ADA Title II ten most frequently used languages in language from the 1999 and 2015 rules regulations, a recipient must take the U.S. other than English. While there that, where notice has been given in an appropriate steps to ensure that will be some cost associated with alternate format to a participant with a communications with individuals with printing and disseminating the notice, visual impairment, a record that such disabilities are as effective as as discussed below, the final rule does notice has been given must be made a communications with others. A not impose an unfunded mandate on part of the participant’s file. CRC recipient must furnish appropriate State or other governments as defined emphasizes that it is a record that notice auxiliary aids and services where by the Unfunded Mandates Reform was given that should be added to the necessary to accomplish this. The type Act.289 main file, not a record that the of auxiliary aid or service necessary to Regarding the issue of colocation, as individual has a visual impairment. ensure effective communication varies discussed in § 38.2 above, this final rule That type of medical or disability in accordance with the method of covers recipients regardless of whether information must be maintained in a communication used by the individual, they are colocated within a one-stop separate file in accordance with the nature, length, and complexity of center. All covered entities, including § 38.41(b)(3). the communication involved; and the one-stop partner agencies, must meet Proposed paragraph (c) of § 38.36 context in which the communication is the equal opportunity obligations of stated that the notice must be provided taking place. In determining what type WIOA and this part. Those obligations to participants in appropriate languages of auxiliary aid and service is necessary, include publication and dissemination other than English as required in § 38.9, a recipient must give primary of the equal opportunity notice under which sets out recipients’ obligations as consideration to the request of an § 38.36. While the statute now makes to LEP individuals. This provision was individual with a disability. Thus, the partnerships with certain entities added because recipients had an provision of auxiliary aids and services mandatory, both the 1999 and 2015 existing obligation under the 1999 and is always individually based and rules required compliance by all one- 2015 rules to provide limited English depends on a number of factors. There stop partners. Thus, CRC’s jurisdiction proficient individuals with meaningful is no proactive requirement separate has not changed, nor has the category of access to this notice.288 from an individual request to provide entities that are required to comply with Proposed paragraph (d) of § 38.36 notification in ASL. For these reasons the notice requirement. provided that the notice required by CRC declines to make the suggested proposed §§ 38.34 and 38.35 must be Notice Requirement for Service changes to § 38.36. Providers § 38.37 initially published and provided within Comment: One State agency 90 days of the effective date of this part, commented that it should be the Proposed § 38.37 retained the same or of the date this part first applies to responsibility of the human resources substantive requirements as the 1999 the recipient, whichever comes later. department of the recipient, as opposed and 2015 rules,290 with updates to the Several advocacy organizations to the EO Officer, to ensure that the title, internal citations, and the name of expressed support for the requirements equal opportunity notice is included in the Methods of Administration (now the in proposed § 38.36. We received five each participant’s and employee’s Nondiscrimination Plan). We received comments on the provisions in this electronic and paper file, if one of each one comment on this section. section. is kept. Comment: A local workforce Comment: A coalition of development board asked whether organizations representing the interests Response: CRC agrees with the commenter that it is the recipient’s service providers will be required to of individuals with disabilities ‘‘sign-off’’ to indicate that they have commented that ASL versions of notices responsibility to ensure that the notice is included in each employee’s and received, read, and understood the should be available to ensure equal requirements of the equal opportunity access for deaf, hard of hearing, and participant’s file. Section 38.36 explicitly addresses the commenter’s notice. If so, the commenter suggested deafblind beneficiaries, employees, and that that requirement be defined in the job applicants, as well as those with concern and is appropriately titled ‘‘Recipients’ obligations to publish State Nondiscrimination Plan. additional disabilities. The commenters Response: Proposed § 38.37 did not asserted that recipients cannot assume equal opportunity notice.’’ Thus, the recipient has the flexibility to determine require signatures from service that English notification is sufficient for providers to indicate that they received individuals who are fluent in ASL. which members of its staff will ensure compliance with this obligation and can the equal opportunity notice from the Response: CRC agrees that ASL Governor or LWDA grant recipient, or versions of the equal opportunity notice choose to assign that role to its Human Resources staff. understood that notice. Instead, should be made available upon request proposed § 38.37 required the Governor in appropriate cases, and the final rule Comment: A State agency recommended that the provisions of reflects that requirement in § 38.15. 289 See infra discussion of the Unfunded § 38.36 be applicable to partner agencies Mandates Reform Act. 288 See 29 CFR 37.35(a)(2) (1999 rule); 29 CFR only if the partner is colocated within 290 29 CFR 37.33 (1999 rule); 29 CFR 38.33 (2015 38.35(a)(2) (2015 rule). a one-stop center, reasoning that this is rule).

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or LWDA grant recipient to disseminate all other relay services—should be specific communications device the notice on behalf of service providers readily available to all deaf, hard of requested in all cases (as opposed to an pursuant to § 38.34, with the requisite hearing, and deafblind employees, as effective alternative communications language provided in § 38.35. The well as those with additional device); or imposing specific internet Nondiscrimination Plan must include a disabilities, so that covered entities can network requirements. Under some description of how the Governor will permit them to make calls on the same circumstances, the failure to provide ensure that the equal opportunity notice basis that hearing colleagues are able to specific devices or systems may requirement will be met for service make phone calls. The commenters constitute discrimination, and CRC will providers. The service providers asserted that any concerns about evaluate the facts presented on a case- themselves will be bound by, and videophones and IP–CTS posing a risk by-case basis by applying the standards should have signed, the written of disrupting or interfering with a in § 38.15. assurance required by § 38.25 in which covered entity’s internet service can be For these reasons, CRC adopts the providers agree to comply with the resolved by using a network that is § 38.38(a) with the addition of two Section 188 equal opportunity either a separate internet service or examples to paragraph (a). regulations. Accordingly, apart from the completely walled off from the intranet Communication of Notice in provisions of § 38.25, we decline to of the entity solely for videophone use. Orientations § 38.39 impose the requirement that service The commenters also noted that use of providers ‘‘sign off’’ that they have videophones and captioned phones has Proposed § 38.39 generally retained received the equal opportunity notice in been denied in some cases as a result of the same requirements as the 1999 and the final rule, and adopt § 38.37 as concerns regarding access to 2015 rules,292 with modifications to proposed. confidential information, despite the account for current technology and the fact that Telecommunication Relay existing requirements to provide Publications, Broadcasts, and Other Service rules clearly state that all calls language services to LEP individuals, Communications § 38.38 are kept confidential. The commenters and equally effective communications Proposed § 38.38 contained most of concluded that any restriction in for individuals with disabilities.293 The the same requirements as the response to privacy concerns should be 1999 and 2015 rules required recipients, corresponding sections in the 1999 and eliminated. during each presentation to orient new 2015 rules.291 Proposed § 38.38(a) Response: While CRC believes that participants, employees or the general provided that, where materials indicate the proposed language of ‘‘equally public to its WIOA Title I funded that the recipient may be reached by effective telecommunications system’’ programs or activities, to include a ‘‘voice’’ telephone, the materials must would include ‘‘videophones, captioned discussion of rights and responsibilities also ‘‘prominently’’ provide the telephones, or equally effective under Section 188 and this part, telephone number of the text telephone telecommunications systems,’’ including the right to file a (TTY) ‘‘or equally effective including additional examples of discrimination complaint. The proposed telecommunications system’’ such as a current technology regarding telephones rule clarified that not only in-person relay service used by the recipient. will be useful for recipients. CRC orientations but also those provided These modifications reflected current accepts the recommendation to revise remotely over the internet or using other technology used by individuals with the last sentence in § 38.38(a) to include technology are subject to these notice hearing impairments. Proposed the examples of videophone and requirements. Proposed § 38.39 also paragraph (c) of this section made a captioned telephone. required that the discussion of rights minor revision, replacing the term The issue of requiring recipients to and responsibilities during the ‘‘prohibited ground’’ with ‘‘prohibited have specific telecommunications orientation be communicated in basis’’ for consistency with this part. We devices and technology available to be appropriate languages to ensure received one comment on § 38.38. used to place or receive a call is language access as required in § 38.9 of Comment: A coalition of governed by § 38.15, which requires that this part and in accessible formats as organizations representing the interests a recipient take appropriate steps to required in § 38.15 of this part. We of individuals with disabilities ensure that communications with received two comments on these recommended that the proposed individuals with disabilities are as provisions. language in § 38.38 that aims to reflect effective as communications with Comment: A coalition of current technology used by individuals others. A recipient must furnish organizations expressed support for with hearing impairments be replaced appropriate auxiliary aids and services requiring recipients’ equal opportunity with ‘‘videophones, captioned where necessary to accomplish this. The notice to be communicated in telephones, or equally effective type of auxiliary aid or service orientation presentations to new telecommunications systems.’’ With necessary to ensure effective participants, employees, and/or the regard to videophones, the commenters communication varies in accordance general public. The commenters recommended that covered entities with the method of communication reasoned that this provision will help accept video relay calls and be used by the individual; the nature, increase recipient compliance by prohibited from requiring callers to use length, and complexity of the ensuring that individuals engaging in a particular form of telephone, such as communication involved; and the the workforce development system are the text telephone (TTY), to place a call. context in which the communication is aware of their rights. A coalition of Furthermore, the commenters stated taking place. In determining what type organizations representing the interests that videophones and captioned of auxiliary aid and service is necessary, of individuals with disabilities telephones, including their respective a recipient must give primary commented that ASL versions of equal relay systems—video relay service consideration to the request of the opportunity notices should be provided (VRS) and internet-protocol captioned individual with a disability. during orientation. The commenters telephone service (IP–CTS), as well as Accordingly, CRC declines to set blanket mandatory requirements, such 292 29 CFR 37.36 (1999 rule); 29 CFR 38.36 (2015 291 29 CFR 37.34 (1999 rule); 29 CFR 38.34 (2015 as requiring recipients to accept video rule). rule). relay calls in all instances; providing the 293 See, e.g., §§ 38.9 and 38.15.

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noted that, regardless of the format of strengthen the affirmative outreach contains vital information, § 38.9(g)(1) the orientation, whether in person or provisions by requiring that ‘‘reasonable in the final rule appropriately captures remote, the orientation should be fully efforts to include members of various recipients’ obligation to translate that and equally accessible to individuals groups protected by these regulations’’ vital information. As defined in with disabilities. include analysis of local population § 38.4(ttt), vital information includes Response: CRC agrees that proposed data to identify ethnic/national origin information that is necessary for an § 38.39 will increase compliance and groups and individuals with limited individual to understand how to obtain promote awareness of individuals’ English proficiency that should be any aid, benefit, service, or training. rights under WIOA Section 188. CRC targeted by such outreach. Furthermore, Whether outreach materials contain also agrees that, when required, the the commenters stated that outreach vital information will be a fact-specific orientation discussion of rights and materials should be translated into any inquiry dependent upon the responsibilities should be language identified in § 38.9 to circumstances of each case. communicated in a format that is effectively reach limited English Accordingly, CRC views as a best accessible to individuals with proficient speakers of those languages. practice that recipients translate all disabilities. However, §§ 38.39 and Response: CRC appreciates the outreach materials into languages 38.15 are intended to be consistent with commenters’ support of the affirmative identified in § 38.9(g)(1), but declines to the requirements of the ADA.294 As outreach requirement, and finds it impose that requirement in this rule for mentioned in § 38.36, to determine the unnecessary to adopt the commenters’ materials that neither include vital type of auxiliary aid and service that is recommendations regarding local information nor target an LEP necessary, recipients must give primary population data and translation of population. consideration to the request of the outreach materials. CRC disagrees with Comment: A coalition of individual with a disability. Thus, the the commenters that § 38.40 needs to organizations recommended making the provision of auxiliary aids and services specifically mention analysis of local list of ‘‘reasonable efforts’’ a list of is always individually based and population data. Section 38.40 requires minimum, specific targeted outreach depends on a number of factors. There recipients to conduct affirmative required of recipients to address is no proactive requirement separate outreach that targets various underrepresentation or inequitable from an individual request to provide populations in order to ‘‘ensure that representation of protected individuals notification in ASL. Accordingly, CRC [recipients] are providing equal access within WIOA programs and activities. declines to adopt the suggested changes, to their WIOA Title I-financially These commenters also recommended and finalizes proposed § 38.39 without assisted programs and activities.’’ that the Department require all modification. Targeting various populations in this recipients to provide all applicants and program participants information, Affirmative Outreach § 38.40 manner necessarily includes a preliminary determination of which including wages and benefits, about the Proposed § 38.40 generally contained populations to target. Making that full range of employment opportunities the same requirements as the 1999 and determination will likely involve offered by the program, reasoning that 2015 rules.295 However, the proposed consulting various sources of research shows that women might have rule changed the title of this section information—including equal pursued training for different, higher from requiring ‘‘universal access’’ to opportunity data, performance data, paying occupations had they received requiring ‘‘affirmative outreach’’ to more local population data, and other more detailed information about the descriptively explain the requirements relevant resources from within and wages and benefits of different contained in this section. without the recipient’s organization. occupations before they began their Section 38.40 also proposed limited Using these types of resources to training. Response: While CRC acknowledges updates to clarify that the affirmative determine which populations to target the obligation for recipients to conduct outreach requirement applies not just to for affirmative outreach is something affirmative outreach as provided in the listed examples of groups and recipients should have been doing proposed § 38.40, CRC also believes that populations, but to ‘‘the various groups under the 1999 and 2015 rules (§§ 37.42 the outreach required to comply with protected by these regulations.’’ CRC and 38.42, respectively), and should WIOA and this part will depend upon expanded the existing list of example continue to do pursuant to § 38.40 of the circumstances of individual groups by adding ‘‘national origin this final rule. Otherwise, recipients recipients, who should therefore have groups, various religions, [and] would not be ‘‘tak[ing] appropriate steps the flexibility to adopt case-specific individuals with limited English to ensure that they are providing equal reasonable efforts under this proficiency.’’ We also changed the access to their WIOA Title I-financially requirement. Accordingly, CRC declines reference to ‘‘both sexes’’ to ‘‘persons of assisted programs and activities.’’ different sexes’’ to broaden the to impose a list of required minimum Regarding translation of outreach reasonable efforts. terminology. We received three materials, CRC believes that § 38.40 substantive comments on § 38.40. Similarly, CRC declines to require implicitly requires such translation recipients to provide wage and benefit Comment: Several advocacy whenever the required outreach is to organizations expressed support for the information to all applicants and targeted LEP populations. Otherwise, program participants, but considers it a provisions requiring affirmative the outreach would not include outreach. One advocacy organization best practice for recipients to ‘‘tak[ing] appropriate steps’’ and would implement. Indeed, CRC strongly specifically expressed support for CRC’s not ‘‘involve reasonable efforts to inclusion of ‘‘individuals in different encourages recipients to provide as include members’’ of the targeted much information as possible regarding age groups.’’ Other advocacy group.296 Also, when outreach material organizations recommended that CRC wages and benefits for occupations to help applicants and participants make 296 § 38.40. This is consistent with § 38.9(b)(1)’s 294 See also DOJ Final Rule to Implement reference to ‘‘outreach to LEP communities to informed decisions about the ADAAA, supra note 18. improve service delivery in needed languages.’’ See 295 29 CFR 37.42 (1999 rule); 29 CFR 38.42 (2015 also Appendix to § 38.9, Recipient LEP Plan: example of an implementing step in a recipient’s rule). Promising Practices, ¶ 8 (listing outreach as an LEP plan).

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occupations before receiving training. If individuals using their services. The this information is already publicly recipients choose to provide commenter said capturing and recording available for most core programs.299 information regarding possible wages these data points would be easy to Therefore, CRC does not consider it and benefits, that information should be incorporate into their operation. necessary to impose that requirement on provided on an equal basis to all Similarly, several advocacy recipients in this provision. applicants and program participants. organizations supported the collection Finally, as explained above, it is well- CRC also notes that, if recipients steer of the additional data elements and settled that discrimination on the basis women or members of other protected recommended that CRC require these of national origin may include groups into lower paying occupations, data to be made publicly available discrimination against LEP individuals. they may be liable for discrimination annually to monitor the effectiveness of Collection of LEP and preferred under WIOA Section 188 and § 38.5 of outreach and nondiscrimination language data is therefore within the this part. regulations. A coalition of organizations scope of these implementing stated that the collection of additional Data and Information Collection and regulations, and a necessary step data is essential to ensure compliance Maintenance towards meeting the nondiscrimination and would move WIOA programs away and equal opportunity obligations of Collection and Maintenance of Equal from reinforcing gender inequities. WIOA Section 188 and this part. CRC Opportunity Data and Other Information In contrast, several commenters recognizes that the addition of these two § 38.41 expressed opposition to the collection of data points will impose additional Proposed § 38.41 generally retained additional data elements by recipients. obligations on recipients’ data collection the same requirements as the 1999 and Many State agencies and professional systems. Thus, as proposed in the 2015 rules.297 CRC did, however, associations argued that the new data NPRM, CRC will allow recipients two propose changes in § 38.41(b)(2) and collection requirements were outside of years to come into compliance with the added new paragraph (b)(3). the scope of Section 188 of WIOA. requirement to update their data Proposed paragraph (b)(2) added Specifically, State agencies urged that collection practices as to limited English ‘‘limited English proficiency and CRC eliminate the requirement relating proficiency and preferred language, and preferred language’’ to the list of to LEP individuals and their preferred amends the third sentence in categories of information that each languages. In support of their position, § 38.41(b)(2) to reflect that compliance recipient must record about each a State agency commented that ‘‘limited date. applicant, registrant, eligible applicant/ English proficiency’’ was difficult to Comment: CRC received several registrant, participant, and terminee. As quantify and thus the data would be comments regarding the collection of noted in the NPRM, this data collection questionable. Another State agency disability information in proposed obligation would not apply to commented that the collection of § 38.41(b)(3). In order to make WIOA applicants for employment and ‘‘preferred language of an individual’’ Title I programs more responsive to employees because the obligation as to would create unnecessary costs. A third individuals with disabilities, an LEP individuals in § 38.9 does not apply State agency questioned the value of advocacy organization suggested that to those categories of individuals. collecting more information because CRC modify the rule to indicate that a Recipients’ collection of information individuals are not required to disclose person with a disability may voluntarily relates directly to serving (not their race/ethnicity, sex, and disability disclose their disability status during employing) LEP individuals. In status. The commenter therefore argued the course of service, and this addition, CRC proposed to delay that any report generated using this information should be used by enforcement regarding collection of information would be useless because workforce system staff for a limited these two new data points for two years the information could be inaccurate and number of reasons with the focus on from the effective date of the final rule imprecise. enhancing the services provided to the Response: After careful consideration, to allow recipients adequate time to individual. update their data collection and CRC retains the requirement that The advocacy organization also stated maintenance systems. recipients must record the limited that the proposed rule did not take into Proposed paragraph (b)(3) introduced English proficiency and preferred account that there are numerous reasons language of an individual. As some new obligations regarding a recipient’s staff may need to have knowledge of an commenters noted, capturing these data responsibilities to keep the medical or individual’s disability status beyond will help recipients learn more about disability-related information it collects eligibility for Title I of WIOA. The the preferred languages of the about a particular individual on a commenter further opined that the individuals using their services. separate form, and in separate files. This proposed rule may be too restrictive and Although there is no way for recipients new paragraph listed the range of could result in Title I programs failing to guarantee 100 percent accuracy as to persons who may have access to such to be fully responsive to the needs of the information received from files or be informed of a particular individuals with disabilities as service applicants, registrants, participants, and individual’s disability, medical recipients. To support its position, the condition, work restrictions, or terminees, CRC recognizes that giving individuals the opportunity to self- commenter provided examples of reasonable accommodation under instances where knowledge of an certain circumstances. We received 16 identify their preferred language is the most efficient and effective way to individual’s disability would improve substantive comments regarding § 38.41. the services offered to that individual. Comment: Several commenters capture this information as to LEP individuals. This information is also The commenter also stressed that the supported the new equal opportunity proposed rule must emphasize that this data elements that must be collected by used by States with language access laws.298 CRC, however, declines to voluntarily disclosed disability recipients. A local workforce agency information is confidential. Similarly, stated that the additional data would require recipients to make the collected information publicly available as part of help recipients learn more about the 299 See U.S. Dep’t of Labor, Emp’t & Training this rule because CRC understands that Admin., WIA Performance Results, https:// 297 29 CFR 37.37 (1999 rule); 29 CFR 38.37 (2015 www.doleta.gov/performance/results/eta_ rule). 298 See supra note 228 and accompanying text. default.cfm#wiasrd_databook.

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an advocacy organization supported the voluntarily self-identify, but govern how I programs are mostly accounted for recipient’s responsibility to keep the recipient should treat such within the prescribed categories in medical and disability related information once it is received. § 38.41: Applicants, registrants, information on separate forms and in Comment: Several commenters made participants, terminees, employees, and separate files. recommendations to improve the applicants for employment.302 Response: CRC agrees that recipients quality of data collected by grant Additionally, recipients’ obligation to must treat information obtained recipients. An advocacy organization collect and maintain data on the race/ regarding an individual’s disability or commented that recipients were ethnicity, age, sex, and (where known) medical condition as confidential, and collecting data on ‘‘too limited a pool of disability status of all applicants, that in appropriate circumstances such customers.’’ The commenter registrants, participants, and employees information may be relevant beyond recommended that recipients collect existed in the 1999 rule; currently exists eligibility for WIOA services. CRC and record the age (and other protected in the 2015 rule; and CRC retains this declines, however, to adopt the bases) of all those who seek services. requirement in § 38.41. CRC declines to modifications suggested by the The commenter argued that without a impose a blanket additional requirement commenter because they are report on all individuals who seek that the data be cross-tabulated by unnecessary. The final rule does information or services, there is no base subgroups as this might in some contemplate situations beyond against which participants, registrants, circumstances impose an additional eligibility determinations in which an applicants, and others can be monitored burden on recipients. However, CRC individual’s disability is relevant. For or analyzed. A coalition of organizations would expect recipients to conduct example, other sections of the rule suggested that CRC require recipients to cross-tabulated analyses between describe recipients’ obligations collect data on WIOA service and individual groups and to take a more regarding physical accessibility and program usage by race, sex, and thorough look at the intersections of communications with individuals with ethnicity. The commenters also race and sex when appropriate as part disabilities.300 In those situations, recommended that these data be cross- of the monitoring process. information received regarding an tabulated so that recipients and CRC can Summary of Regulatory Changes individual’s disability must be treated better evaluate the utilization of WIOA in a confidential manner, in accordance services and programs by each For the reasons set forth above and in with § 38.41(b)(3). particular group (e.g., African American the NPRM and considering the The requirements of § 38.41(b)(3) are women or Latinas). comments received, CRC finalizes only intended to address the manner in Response: CRC appreciates the § 38.41 as proposed, with one which disability status information commenters’ suggestions to expand the modification. Paragraph (b)(2) now must be maintained by the recipient, in data collection requirements and their allows recipients two years from the order to ensure that it is treated in a usage. However, CRC declines to do so, effective date of this final rule to begin confidential manner. This provision and disagrees that under this final rule collecting the LEP status and preferred parallels the requirements of the ADA there is no base against which language of individuals. on this issue. New paragraph (b)(3) is participants, registrants, applicants, and Information To Be Provided to the Civil also consistent with the Department’s others can be monitored or analyzed. Rights Center (CRC) by Grant Applicants regulations implementing Section 504 of Section 38.31 requires each recipient’s and Recipients § 38.42 the Rehabilitation Act, and with the EO Officer ‘‘to make sure that the EEOC’s regulations implementing Title I recipient and its subrecipients are not Proposed § 38.42 retained most of the of the ADA.301 CRC believes that violating their nondiscrimination and requirements from the 1999 and 2015 consistency across enforcement agencies equal opportunity obligations under rules.303 Proposed paragraph (a) of this will better enable recipients to develop WIOA Title I and this part, which section added pregnancy, child birth or protocols that are consistent with these includes monitoring the collection of related medical conditions, transgender requirements. [equal opportunity] data required [in status, and gender identity in Regarding the advocacy organization’s § 38.41] to ensure compliance . . . .’’ parentheses as forms of sex comment, an individual with a Monitoring the data in this way—to discrimination prohibited under this disability is always free to disclose ensure a recipient has not violated its part and ‘‘limited English proficiency’’ disability status if desired; however, nondiscrimination and equal in parentheticals as a form of national such disclosure is limited to those to opportunity obligations—will often origin discrimination prohibited by this whom the individual with a disability require comparing that equal part. Proposed paragraph (b) removed chooses to make the disclosure, unless opportunity data to various sources, the reference to grant applicants. other officials are permitted to know including programmatic data (e.g., Proposed paragraphs (c) and (e) inserted pursuant to § 38.41(b)(3). Permitting performance data), local population data the phrase ‘‘that the Director considers’’ medical or disability information to be (e.g., census data), and other relevant before the word ‘‘necessary’’ to advise shared without the individual’s specific resources from within and without the recipients that the Director of CRC consent is contrary to the requirements recipient’s organization. Otherwise, ultimately determines what information of the ADA. Thus, CRC stresses the recipients’ EO Officers would not be is necessary for CRC to investigate importance of keeping narrow the range fulfilling their duty to use the equal complaints and conduct compliance of persons who may be permitted to opportunity data collected ‘‘to ensure reviews. The Director will also decide access files containing medical and compliance.’’ what information is necessary to disability-related information to ensure Therefore, it is unnecessary to require determine whether the grant applicant that sensitive disability information data collection in addition to that remains confidential. The rule’s already contemplated by § 38.41. 302 CRC notes for the commenters’ convenience obligations do not limit when Furthermore, CRC notes that the data that the definition of ‘‘applicant’’ in § 38.4(c) collection requirement generally includes an individual ‘‘who has signified . . . individuals with disabilities may interest by submitting personal information in captures the commenter’s concern, in response to a request by the recipient.’’ 300 See §§ 38.13(a) and 38.15. any event, because those who seek 303 29 CFR 37.38 (1999 rule); 29 CFR 38.38 (2015 301 See 29 CFR 1630.14(b)(1)(i)–(iii). information or services for WIOA Title rule).

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would be able to comply with the to perform the analyses suggested by the vague and broad and should be nondiscrimination and equal commenters, or to create affirmative specifically defined. opportunity provisions of WIOA and action plans. Response: CRC declines to modify the this part. As indicated in the NPRM, Comment: A State agency argued that language in proposed § 38.42(c). This proposed paragraph (e) confirmed CRC’s the requirement in § 38.42(a) to notify provision appropriately allows the ability to engage in pre-award reviews of the Director whenever a discrimination Director flexibility in requesting and grant applicants, but CRC does not lawsuit or administrative enforcement obtaining necessary documents and contemplate the delay or denial of an action has been filed is overly information to properly investigate award. Processes that may result in the burdensome and unrelated to equal complaints and conduct compliance delay or denial of an award to a grant opportunity compliance. The reviews. Each discrimination action applicant were addressed in proposed commenter stressed that initiating a filed presents its own set of unique § 38.62. We received three substantive discrimination action does not mean facts. Because of that variability, the comments on proposed § 38.42. that there has been a violation. The Director cannot specify in this rule the Comment: An organization commenter also mentioned that under precise information needed to representing women in the trades Section 188 of WIOA, CRC only has appropriately investigate a particular recommended that the Department jurisdiction over violations; therefore complaint or conduct a particular require State and local workforce notice serves no legitimate purpose and compliance review under the systems to provide information on their is arbitrary. Furthermore, the nondiscrimination and equal gender equity gap analysis and how commenter stated that the requirement opportunity provisions of this part. funds have been used to improve was overly broad because a State can be Moreover, proposed § 38.42(c) contains programs and close gaps. The a recipient outside the context of a State no new requirements for grant commenter suggested that the Workforce Agency. The commenter applicants or recipients as compared to Department require States, workforce recommended that the requirement in the 1999 and 2015 rules. Accordingly, areas, and job training programs that § 38.42(a) be removed or modified. the proposed language is adopted in the demonstrate a gender equity wage gap at Response: CRC declines to remove or final rule. placement or underrepresentation of modify the language set forth in women in training programs in male proposed § 38.42(a). That section Required Maintenance of Records by dominated fields to develop written proposed no new obligations on Recipients § 38.43 affirmative action/gender equity plans. recipients, but only clarified the scope Proposed § 38.43(a) retained most of Response: We acknowledge the pay of sex and national origin the language from the 1999 and 2015 disparities that exist between men and discrimination under existing law by rules,305 but added the preservation of women, and the need to close the adding parenthetical explanations. In ‘‘electronic records’’ to the existing gender wage gap.304 CRC believes the both the 1999 and 2015 rules, CRC requirement that grant applicants and final rule requires Governor and required that grant applicants and recipients maintain certain records. The recipient monitoring responsibilities recipients notify the Director of CRC electronic record keeping requirement that will identify and remedy gaps that when administrative enforcement retained the same three-year period that are the result of discrimination or denial actions or lawsuits were filed against it. applies to hard copy records. Proposed of equal opportunity. Pursuant to Thus, there is no new burden associated paragraph (b) expanded the § 38.31(b) of the final rule, EO Officers with this provision, and the existing requirements from the 1999 and 2015 are required to monitor and investigate burden to give notice of enforcement rules by requiring the preservation of the activities of recipients to ensure actions and lawsuits is minimal. While records once a discrimination complaint compliance with nondiscrimination and CRC acknowledges that the initiation of has been filed or a compliance review equal opportunity obligations. a discrimination action does not mean is initiated. As explained in the NPRM, Additionally, Governors are required, there has been a violation, CRC’s goal is CRC chose to incorporate compliance under § 38.54, to develop and to help recipients come into compliance reviews in this records retention section implement Nondiscrimination Plans for if a violation does exist. CRC believes it because the same preservation of proper oversight of recipients’ State is in the best position to offer recipients records is necessary for the duration of Programs. CRC believes that the technical assistance to ensure a compliance review as for a complaint requirements set forth in §§ 38.31, 38.42 compliance with the nondiscrimination investigation. We received one comment and 38.54 address the commenters’ and equal opportunity provisions when on § 38.43. concerns, while not imposing additional it has pertinent information about an Comment: A local workforce agency obligations on recipients’ staff and enforcement action or lawsuit as soon as supported the requirements in proposed resources. Therefore, CRC declines to possible. § 38.43, commenting that generating and require grant applicants and recipients CRC agrees that a State can be a maintaining electronic records would recipient outside of the context of a provide additional support to the 304 A comparison of average annual wage data State Workforce Agency. Indeed, §§ 38.2 recipient’s current recordkeeping. The from 2013 reveals that women make 78 cents for and 38.4(zz) and (kkk) describe the commenter stated that the requirement every dollar that men make. U.S. Bureau of the entities to which part 38 applies, and Census, Income and Poverty in the United States: would allow recipients to have their 2013 (Sept. 2014), available at https:// define ‘‘recipient’’ and ‘‘State records and files easily available for www.census.gov/library/publications/2014/demo/ Programs.’’ Entities that receive WIOA discrimination complaints and p60-249.html. Data on average weekly wages from Title I federal financial assistance compliance reviews. the Bureau of Labor Statistics for the same year remain obligated to comply with the shows a similar gap with women making 82 cents Response: CRC agrees and, for the for every dollar that men make. Bureau of Labor nondiscrimination and equal reasons set forth above and in the NPRM Statistics, U.S. Department of Labor, Highlights of opportunity provisions of this part. That and considering the comments received, Women’s Earnings (Dec. 2014) (averaging annual obligation has not changed, even with finalizes proposed § 38.43 without data collected from the Current Population Survey, the minor modifications we have Median Weekly Earnings of Full-Time Wage and modification. Salary Workers), available at http://www.bls.gov/ proposed in § 38.42. opub/reports/cps/highlights-of-womens-earnings-in- Comment: A State labor agency stated 305 29 CFR 37.39 (1999 rule); 29 CFR 38.39 (2015 2013.pdf. that the requirements in § 38.42(c) are rule).

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CRC Access to Information and Summary of Regulatory Changes to monitor recipients for compliance,312 Information Sources § 38.44 For the reasons described in the and changed the frequency of that Proposed § 38.44(a) included a minor proposed rule and considering the monitoring requirement from revision to the corresponding section of comments received, CRC finalizes ‘‘periodically’’ to ‘‘annually.’’ Proposed § 38.51(b)(1) added ‘‘limited the 1999 and 2015 rules,306 by requiring proposed § 38.44 with one modification. English proficiency’’ and ‘‘preferred that each grant applicant and recipient We replace the phrase ‘‘normal business language’’ to the list of categories of must permit access by the Director ‘‘or hours’’ with ‘‘its hours of operation’’ in records and data that the Governor must the Director’s designee’’ to premises, paragraph (a). analyze. We received 18 comments on employees, and participants for the Confidentiality Responsibilities of Grant proposed § 38.51. purpose of conducting investigations, Applicants, Recipients, and the Comment: Several commenters compliance reviews, monitoring Department § 38.45 supported the annual monitoring activities, or other similar activities Proposed § 38.45 retained the same requirement under § 38.51(b). An outlined in this section. We received advocacy organization stated that two substantive comments on proposed requirements as the 1999 and 2015 rules 308 but made small organizational annual monitoring would provide § 38.44. greater focus on areas requiring Comment: A State agency changes to this section to improve readability. CRC received no comments improvement and identify any recommended that § 38.44(a) be revised structural barriers in the way of to state that sub-recipients must also on this provision and adopts § 38.45 as proposed. programmatic access. In support of this provide access to the Director. The change, an advocacy organization commenter noted that some recipients Subpart C—Governor’s Responsibilities commented that periodic reviews were may not be able to provide access to To Implement the Nondiscrimination too ambiguous. Additionally, two sub-recipients’ premises, employees, and Equal Opportunity Requirements of advocacy organizations supported the etc. the Workforce Innovation and annual review requirements outlined in Response: CRC appreciates the Opportunity Act (WIOA) § 38.51, including statistical or commenter’s recommendation, but Subpart Application to State Programs quantifiable analysis of recipient data declines to revise paragraph (a) to § 38.50 and the investigation of any significant specifically require that sub-recipients differences in participation to determine provide access to the Director. Section Proposed § 38.50 modified the title of whether they are due to discrimination. 38.4(zz) defines ‘‘recipient’’ to include this section and replaced the term In contrast, many State agencies entities that receive WIOA Title-I ‘‘State Employment Security Agencies’’ disagreed with the proposed rule’s financial assistance ‘‘directly from the with ‘‘State Workforce Agencies’’ to annual monitoring requirement. Several Department or through the Governor or remain consistent with WIOA and with commenters claimed that annual 309 another recipient’’ (emphasis added). ETA’s regulations. CRC received no monitoring was not supported by This definition captures the comments on this provision and adopts WIOA. Two of these commenters argued commenters’ concern regarding sub- § 38.50 as proposed. there was no statistical justification for recipients. Sub-recipients, like (primary) Governor’s Oversight and Monitoring why annual monitoring was the most recipients, are expected to provide the Responsibilities for State Programs effective option and concluded that the Director the same access to the entity’s § 38.51 annual requirement was arbitrary. premises, employees, and participants. Proposed § 38.51 mostly retained the Another State agency recommended Comment: A State agency requested requirements in this section from the periodic monitoring, reasoning that that the term ‘‘normal business hours’’ 1999 and 2015 rules, but also annual assessments are unnecessary as be stricken and replaced with ‘‘hours of incorporated certain paragraphs from a that State had never found any operation,’’ reasoning that this change different section of those rules.310 This violations of equal opportunity and would allow access to a recipient’s reorganization was intended to nondiscrimination requirements. To facilities and the employee who filed underscore the importance of the further support their position, numerous the complaint, regardless of the assigned Governor’s monitoring responsibilities. commenters pointed to the increase in shift. Furthermore, the commenter Specifically, proposed § 38.51(a) workload that an annual monitoring stated that this change would promote retained the Governor’s oversight requirement would create, without higher levels of compliance by the responsibilities,311 which included additional funding or resources from the recipients, knowing that investigations ensuring compliance with the Department. One State agency asked could occur at any time, day or night. nondiscrimination and equal whether additional resources would be Response: We agree with the opportunity provisions of WIOA Section provided to conduct annual reviews. commenter’s recommendation. 188 and this part, and negotiating, Several State agencies argued that Therefore, we have replaced ‘‘normal where appropriate, with a recipient to increasing the frequency of reviews business hours’’ with ‘‘its hours of secure voluntary compliance when would reduce their quality. operation.’’ As a practical matter, noncompliance is found under In conclusion, the various State however, CRC has interpreted ‘‘normal proposed § 38.91(b). Proposed § 38.51(b) agencies asserted that states were in the business hours’’ to mean the hours of incorporated the Governor’s obligation best position to determine when operation for that specific entity,307 so monitoring is appropriate and this revision does not represent a 308 29 CFR 37.41 (1999 rule); 29 CFR 38.41 (2015 recommended the Department replace change in CRC’s current practice. rule). ‘‘annual’’ with ‘‘periodic.’’ Although 309 U.S. Dep’t of Labor, Emp’t & Training Admin., State agencies recommended replacing 306 29 CFR 37.30 (1999 rule); 29 CFR 38.40 (2015 Workforce Innovation and Opportunity Act; Final ‘‘annual’’ with ‘‘periodic,’’ they also rule). Rule, 81 FR 56071, Aug. 19, 2016 (hereinafter ‘‘ETA indicated that many of these States 307 For example, if a recipient’s normal business WIOA Final Rule’’). hours were from 10 p.m. to 6 a.m., CRC would 310 29 CFR 37.54(d)(2)(ii)(A)–(C) (1999 rule); 29 currently monitor their recipients once expect that recipient to allow the Director access to CFR 38.54(d)(2)(ii)(A)–(C) (2015 rule). the recipient’s premises, employees, and 311 29 CFR 37.51 (1999 rule); 29 CFR 38.51 (2015 312 29 CFR 37.54(d)(2)(ii)(A)–(C) (1999 rule); 29 participants during that time. rule). CFR 38.54(d)(2)(ii)(A)–(C) (2015 rule).

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every two years. Some State agencies recommended that the regulations personnel. With respect to physical specifically recommended that the clearly explain how equal opportunity assessments, for example, to determine monitoring requirement be changed to a data and performance data will be physical and programmatic accessibility biennial schedule to allow more latitude integrated for analysis purposes. The for individuals with disabilities and and flexibility. commenter stressed that this type of whether the equal opportunity notice Response: After careful consideration integrated analysis was crucial for the has been properly posted, recipients of all the comments, CRC declines to Governor to determine whether retain the flexibility to decide who will replace ‘‘annual’’ with ‘‘periodic’’ or significant differences in participation conduct that assessment and how that ‘‘biennial’’ monitoring. CRC agrees with are due to discrimination, a failure of information (measurements, pictures, commenters who believed that the 1999 performance, or some other reason. data, other monitoring reviews, etc.) and 2015 rules requiring periodic Response: We appreciate the will be conveyed to the appropriate EO monitoring were too ambiguous and did commenter’s concerns but believe the Officer by on-site personnel, or not lead to effective monitoring for rule as written provides the ability for otherwise collected by the EO Officer. many States. Under the 1999 and 2015 Governors/recipients to perform the Comment: Several commenters rules, CRC acknowledges that its kinds of analyses needed to uncover addressed the new data elements that expectations for monitoring were discriminatory patterns or practices. must be collected by recipients— somewhat unclear. Thus, CRC retains While this rule only requires the recording the limited English the annual monitoring requirement from collection of demographic data, as proficiency and preferred language of the proposed rule to underscore the discussed above regarding § 38.41, individuals. Several commenters did importance of the Governor’s oversight Governors and/or recipients are not support the collection of additional responsibilities in compliance with this expected to utilize whatever data are data elements by recipients. subpart. This monitoring requirement is available to them, including Commenters argued that the new data within the scope of CRC’s authority to performance data, to ensure collection requirements were outside of issue regulations necessary to nondiscrimination and equal the scope of WIOA because they are not implement the equal opportunity and opportunity in their WIOA Title I mentioned in Section 188. nondiscrimination provisions of WIOA programs and activities. We expect that Some advocacy organizations, Section 188, including enforcement the availability of data may vary on a however, supported the collection of procedures.313 case-by-case basis. Therefore, we additional data. A local workforce CRC believes that monitoring decline to modify the regulations to agency stated that the addition of a conducted less than annually is explain how equal opportunity and language collection category will enable ineffective, particularly when dealing performance data should be integrated recipients to record the number of with accessibility issues and correcting for analysis. individuals that are enrolled in their any discriminatory activity that may Comment: A State agency asked WIOA program, record the number of occur. For example, the populations whether a ‘‘desk review’’ that includes language services needed for being served may shift from year to year. data and statistical analysis be individuals seeking WIOA services, and Governors need to identify and correct, acceptable for annual monitoring. produce comprehensive reports Response: The rule does not use the as soon as possible, any discriminatory detailing the diversity of the recipient’s specific term ‘‘desk review.’’ Recipients practices or barriers that individuals workforce area. To help ascertain and are expected to complete their face when attempting to access a service analyze the quantity of language or program. Some violations may take monitoring obligations under § 38.51(b) services needed to assist individuals, time to remedy; under biennial or in a manner that is consistent with the one commenter recommended that periodic monitoring, remedies will be provisions of the Nondiscrimination recipients establish a process for slower in implementation. CRC believes Plan described at § 38.54 (which collecting periodic reports from their that annual monitoring provides for outlines the Governor’s obligations for service providers to ensure data are better communication between the developing and implementing that recorded correctly and matches data in Governor and the State Programs, and Plan). the recipient’s system. that coordinated planning will enhance We recognize that annual monitoring Response: We appreciate hearing the quality of monitoring. Moreover, can be accomplished through offsite about the commenter’s experience with this monitoring requirement is review so long as all necessary data and promising practices for data collection. consistent with ETA’s regulation information are collected and examined We disagree with other commenters’ requiring oversight of one-stop career in relation to the Plan, including data on characterization of the LEP collection centers 314 and helps maintain physical facilities. These data and requirements as outside of the scope of consistency in state-level practices information may be collected by the the statute. CRC has the authority to nationwide. While allocation of funding State-level EO officer directly or the issue and enforce regulations that for specific obligations is beyond the State-level EO officer may obtain these prohibit discrimination on the basis of scope of this rule, the data and information from other entities national origin and, as discussed above Nondiscrimination Plan will be an collecting it, such as monitoring regarding § 38.9, that prohibition effective tool for coordination of state- officials for WIOA operations includes discrimination against LEP wide monitoring and to minimize representing the State or local board, or individuals. It is well established that associated costs. the U.S. Department of Labor. To policies and practices that deny LEP Comment: One advocacy organization conduct the appropriate annual individuals meaningful access to expressed concern that equal analysis, State-level EO Officers may federally funded programs and activities opportunity data collection by wish to use quarterly participation data may constitute unlawful national origin recipients was separated from submitted to the Department, any discrimination.315 performance data collection by service findings or complaints on file for the As supporters of the providers. The commenter program, any corrective actions taken in 315 Lau v. Nichols, 414 U.S. 563, 566 (1974); response to findings or complaints, and Colwell v. Dep’t of Health & Human Servs., 558 313 See 29 U.S.C. 3248(e). physical assessments of facilities, F.3d 1112, 1116–17 (9th Cir. 2009); Cabrera v. 314 ETA WIOA Final Rule, supra note 309. including those made by on-site Alvarez, 977 F. Supp. 2d 969, 977–78 (N.D. Cal.

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proposal stated, obtaining this ‘‘implement a Nondiscrimination Plan’’ proper implementation of Section 188 of information is critical in ensuring that in the first sentence, and replaced WIOA. Other advocacy organizations LEP individuals are being serviced ‘‘should’’ with ‘‘must’’ in the second supported making the appropriately throughout each State. sentence to require that, in States in Nondiscrimination Plan publicly This requirement helps to ensure that which one agency contains both WIOA available on the Governor’s or State States are properly carrying out their Title I-financially assisted programs and Workforce Agency’s Web site. They also obligations in this subpart. either a State Workforce Agency recommended specific revisions to (formerly an SESA) or unemployment § 38.54(c)(2)(iii) to ensure that the plan Governor’s Liability for Actions of insurance, the Governor must develop a includes a system for reviewing that Recipients the Governor Has Financially combined Nondiscrimination Plan. The recipients have demonstrated sufficient Assisted Under Title I of WIOA § 38.52 Governor is responsible for completion resources and program designs that will Section 38.52(a)(1) proposed minor of the Nondiscrimination Plan in both allow them to meet the needs of groups changes by replacing the phrase instances. This change formalizes protected by these regulations, ‘‘adhered to a Methods of current practice in that every State including LEP individuals. Finally, they Administration’’ with ‘‘implemented a submits one WIOA Methods of recommended that § 38.54(c)(2)(viii) be Nondiscrimination Plan.’’ We received Administration. This provision also revised to require that supporting one comment on proposed § 38.52. eliminates unnecessary duplication in documentation to show that Comment: A State agency commented that most components of the Plan would commitments made in the that CRC should confirm acceptance of be the same for both types of entities, Nondiscrimination Plan have been and/ the Nondiscrimination Plan from the and both plans would be overseen by or are being carried out include ‘‘a Governor and identify any discrepancies the State-level EO Officer identified in comparison of the race/ethnicity, sex, found by the Department, such as a § 38.28(a). age, disability, limited English noncompliant policy, process, or The proposed rule made one minor proficiency, and language spoken of the procedure adapted by the State. change to paragraph (c)(1)(v) of this State and local workforce area Response: CRC declines to modify the section: Changing the reference to populations with data on the number of proposed language in the final rule to proposed § 38.40 to reflect its new title. applicants, registrants, participants and require that CRC ‘‘accept’’ the The NPRM added a new paragraph terminees in each group.’’ (c)(2)(iv) to require procedures for Nondiscrimination Plan and/or identify Response: CRC appreciates any discrepancies in the plan. The ensuring compliance with WIOA Section 188 and this part for protected commenters’ suggestions to bolster the Governor’s monitoring and oversight requirements included in the responsibilities exist regardless of categories other than disability. This revision was intended to correct an Nondiscrimination Plan, but finds the affirmative approval from CRC. States final rule sufficient to address the should not await validation to oversight from the previous rules that inadvertently did not require the commenters’ concerns. CRC disagrees implement their Nondiscrimination that § 38.54(c)(2)(iii) should be revised Plan, although CRC is available to Governor to include procedures to ensure compliance as to these protected to include a system for reviewing that provide technical assistance as needed. recipients have ‘‘demonstrate[ed] Furthermore, in subpart D of this rule, categories. Finally, proposed § 38.54(c)(2)(v) added a provision sufficient resources and program CRC has adequately outlined the designs’’ to comply with WIOA Section compliance procedures and the steps it requiring the procedures discussed in that paragraph to ensure that recipients 188 and this part, because that will take if it determines that any State requirement is already contemplated by or recipient has not complied with any comply not just with Section 504 and WIOA Section 188 and this part, but other paragraphs in § 38.54(c), and by obligations under this rule. other sections in the final rule. For For the reasons set forth above and in also with Title II of the ADA, as example, § 38.54(c)(1)(ii) requires the the NPRM and considering the amended, if applicable to the recipient. Nondiscrimination Plan to describe how comments received, CRC finalizes Title II of the ADA applies only to recipients have satisfied certain proposed § 38.52 without modification. ‘‘public entities,’’ which include State or local governments and any of their requirements, including the requirement Governor’s Oversight Responsibility departments, agencies, or other in §§ 38.28(a) and (b) and 38.29(e) that Regarding Recipients’ Recordkeeping instrumentalities.316 We received four EO Officers have sufficient authority, § 38.53 comments on § 38.54. staff, and resources to ensure Proposed § 38.53 changed only the Comment: Several advocacy compliance with WIOA Section 188 and title of this section. CRC received no organizations supported the this part; section 38.54(c)(2)(i) requires comments on this provision and adopts requirement that the Governor a system for determining whether grant § 38.53 as proposed. implement a Nondiscrimination Plan for recipients and training providers are State Programs. One advocacy likely to comply with this part; section Governor’s Obligations To Develop and organization recommended that 38.54(c)(2)(vi) requires a system to Implement a Nondiscrimination Plan additional language be added to § 38.54 ensure that EO Officers and members of § 38.54 to ensure that the Nondiscrimination recipients’ staff can effectively carry out Proposed § 38.54 revised the title of Plan ‘‘will be made available in their equal opportunity and this section and generally retained the alternative, accessible formats upon nondiscrimination responsibilities; language of the 1999 and 2015 rules, request.’’ Another advocacy section 38.54(c)(2)(viii) requires with the exception of the provisions that organization supported the proposed supporting documentation to show that CRC moved to proposed § 38.51, rule and stated that the new title and commitments made in the discussed above. Proposed § 38.54(a)(1) restatement of obligations on the part of Nondiscrimination Plan are being replaced the phrase ‘‘adhere to a States’ chief executives for ensuring carried out; and § 38.54(c)(2)(vii) Methods of Administration’’ with nondiscrimination in WIOA programs requires procedures for obtaining emphasize to States the importance of prompt corrective action when 2013); Almendares v. Palmer, 284 F. Supp. 2d 799, noncompliance is found. Accordingly, 807–08 (N.D. Ohio 2003). 316 42 U.S.C. 12131. the final rule already contemplates

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systems for reviewing that recipients Nondiscrimination Plans. CRC reminds Proposed paragraph (b) also retained have demonstrated sufficient resources the Governors that, if the Plan is the previous requirement that the and program designs to ensure available on the Governor’s Web site, it Governor promptly update the compliance with WIOA Section 188 and must be in an accessible format for Nondiscrimination Plan whenever this part. individuals with disabilities.318 necessary and submit the changes made The final rule also addresses the issue Comment: A State agency asked to the Director in writing at the time the raised by the commenters regarding whether § 38.54 required the State to updates are made. supporting documentation that have a combined plan where the agency Proposed paragraph (c) preserved the compares demographic data to the with oversight over WIOA does not previous rule’s requirement that the number of applicants, registrants, administer the employment service and Governor review the plan every two participants and terminees in each unemployment insurance programs. years, determine whether changes are group. Proposed § 38.54(c)(2)(viii)(A)– Response: Each State must submit one necessary, and, if so, make the changes (F) lists several examples of the types of combined Nondiscrimination Plan that and submit them to the Director. We documents Governors must use to show covers all State Programs, as defined in received one comment on § 38.55. that the commitments made in the 38.4(kkk). As explained in the NPRM, Comment: A State agency stated that Nondiscrimination Plan have been and/ this formalizes the practice under WIA the Governor’s administration and or are being carried out. The examples that every State submitted one Methods leadership in State workforce agencies listed in paragraphs (c)(2)(viii)(A)–(F) of Administration. It also eliminates often turn over quickly with little are not exhaustive and generally capture unnecessary duplication. To highlight transitional training, resulting in loss of the commenters’ concerns about data this, the NPRM proposed changing the knowledge. The commenter noted that comparisons. For example, optional best practice listed in the 1999 in the past CRC had not communicated § 38.54(c)(2)(viii)(B) requires copies of and 2015 rules (that certain States with state-level staff to assure prompt monitoring instruments and ‘‘should’’ develop a combined plan), to compliance when State Methods of § 38.54(c)(2)(viii)(E) requires that reports a requirement (that those same States Administration plans were scheduled of monitoring reviews and reports of ‘‘must’’ develop a combined Plan). The for updating. In order to ensure smooth follow-up actions taken where commenter should note that the transitions and communication between violations have been found be submitted ‘‘combined Nondiscrimination Plan’’ CRC and the States, the commenter with the Nondiscrimination Plan. referenced in § 38.54(a) is not a proposed additional provisions that As a practical matter, such monitoring reference to the ‘‘Combined Plan’’ outline EO Officer obligations in the includes the Governor’s required described in section 103 of WIOA. event of political transitions. The statistical or other quantifiable analyses Pursuant to § 38.31(g), State-level EO commenter stated that these provisions of recipients’ records and data under Officers must oversee the development should include a transition plan so that § 38.41, such as records on applicants, and implementation of the State’s when one EO Officer is outgoing, the registrants, eligible applicants/ Nondiscrimination Plan. new EO Officer is on notice of upcoming deadlines and immediate registrants, participants, terminees, Summary of Regulatory Changes employees and applicants for obligations. The commenter also employment by race/ethnicity, sex, For the reasons set forth above and in recommended that CRC require and limited English proficiency, preferred the NPRM and considering the direct all communications, at least in language, age and disability status.317 comments received, CRC finalizes carbon copy form, to recipients to the CRC believes these provisions § 38.54 as proposed. EO Officer as well. Response: CRC appreciates the collectively result in the requirement to Schedule of the Governor’s Obligations analyze comparison data that the commenter’s suggestions for effective Regarding the Nondiscrimination Plan communication between States and CRC commenters suggest. Moreover, CRC § 38.55 expects that in fulfilling their during transition periods. While CRC Proposed § 38.55 revised the title of monitoring obligations under this part, strongly recommends that Governors this section and generally retained the State-level EO Officers will use create transition plans, as the existing schedule that Governors follow whatever data are available to them, commenter suggests, CRC does not for their Methods of Administration including population data and require such plans in this rule. The under the 2015 rule, and that they also performance data, to ensure that State obligation to comply with this part followed under the 1999 rule. In Programs comply with WIOA Section remains with the office of the Governor, proposed § 38.55, CRC intended to 188 and this part. Therefore, CRC regardless of turnover, and the Governor minimize the Governor’s burden by and the State-level EO Officer remain declines to impose an additional allowing sufficient time to switch from responsible for ensuring compliance in requirement in this provision. With regard to the commenters’ the existing Methods of Administration all State Programs. As stated in the request that Nondiscrimination Plans be to the new Nondiscrimination Plan. discussion of § 38.28 in the preamble, publicly available on the Governor’s or Therefore, proposed § 38.55 revised we expect that State-level EO Officers State Workforce Agency’s Web site, CRC paragraph (a) to allow Governors an will complete their required tasks, encourages publication as a best additional 180 days to develop and regardless of political turnover. For practice. However, CRC declines to implement a Nondiscrimination Plan these reasons, we decline to create transition plans for States, to adopt a impose this requirement at this time. consistent with the requirements of this provision that explicitly requires CRC recognizes that some States rule—either within 180 days of the date Governors to develop transition plans, currently post important excerpts of on which this final rule is effective or or to outline specific State-level EO their Methods of Administration on within 180 days of the date on which Officer obligations during political their Web sites, and anticipates they the Governor would have been required transitions. We reiterate our will continue this practice with their to review and update the Methods of Administration under the 2015 rule, commitment to provide technical 317 See § 38.41(b)(2). This provision excludes LEP whichever is later. assistance to both Governors and the and preferred language data for employees and State-level EO Officers to help them applicants for employment. 318 See § 38.15(a)(5). fulfill their obligations under this part.

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CRC is committed to ensuring that State- agency consider, in discussing with the such, CRC’s issuance of this final rule level EO Officers, as the liaisons with Director, the information obtained should provide clarity to States and CRC, are fully informed of their through the consultation described in other recipients in helping them meet obligations regarding Nondiscrimination paragraph (b), as well as any other their obligations. CRC also intends to Plans, but decline to incorporate the information provided by the Director, in issue guidance regarding this rule, and suggestion that CRC carbon copy the EO determining whether to award the already has useful tools on its Web site, Officer in all circumstances as grant(s). We received no comments on for example, the DOL LEP Guidance unnecessary. this provision and adopt § 38.62 as discussed regarding § 38.9 and proposed, with the exception of a Promising Practices in Achieving Subpart D—Compliance Procedures technical modification to place Universal Access and Equal Evaluation of Compliance § 38.60 paragraph (d)(2) on a new line.322 Opportunity: A Section 188 Disability Reference Guide.323 For States or other Proposed § 38.60 modified the title of Authority and Procedures for recipients that wish to request further this section and retained its language, Conducting Post-Approval Compliance help regarding compliance with the with the exception of a minor technical Reviews § 38.63 and Procedures for rule, CRC is available to provide edit. The proposed rule added the Concluding Post-Approval Compliance technical assistance. For technical phrase ‘‘the ability to comply or’’ in the Reviews § 38.64 assistance, recipients are strongly first sentence to explain the standard of Proposed §§ 38.63 and 38.64 retained encouraged to visit CRC’s Web page at review for grant applicants regarding the the exact same language as in the https://www.dol.gov/oasam/programs/ nondiscrimination and equal parallel sections in the 1999 and 2015 crc/external-compliance-assistance.htm opportunity provisions of WIOA Section rules, with the exception of the or contact CRC at U.S. Department of 188 and this part. This language is revisions made to their titles. We Labor, 200 Constitution Avenue NW., parallel to the language in proposed received no comments on these Room N–4123, Washington, DC 20210. § 38.25 regarding written assurances. sections, and adopt §§ 38.63 and 38.64 [email protected], telephone CRC received no comments on this as proposed. (202) 693–6501 (VOICE) or (202) 877– provision and makes one technical 8339 (Federal Relay Service—for TTY). Authority To Monitor the Activities of correction to § 38.60 as proposed. For CRC declines to adopt a timeframe in the sake of clarity, CRC separates the a Governor § 38.65 this rule for such assistance, due to the reference to compliance reviews of grant Proposed § 38.65 modified the title of fact-specific nature of technical recipients to determine their ability to this section and retained the language in assistance requests. comply from the reference to paragraphs (a) and (b) from the 1999 and Regarding the commenter’s request compliance reviews of recipients to 2015 rules. Proposed paragraph (c) set that CRC review preliminary findings determine their compliance. CRC makes out the enforcement actions that CRC with States to give States the this change to increase the ease of may take as a result of Governors’ opportunity to provide additional reading this provision and intends no failure to come into compliance with information to rectify or resolve a substantive change. their monitoring obligations. We proposed finding, that is one of the Authority To Issue Subpoenas § 38.61 received seven comments on § 38.65. purposes of issuing either a Letter of Comment: Some State agencies and Findings or an Initial Determination Proposed § 38.61 changed the title of advocacy groups requested that CRC under §§ 38.64 and 38.87, respectively. this section and updated its citation to provide technical assistance if the For recipients whose programs or section 183(c) of WIOA, which Governor’s performance is deemed activities have been found 319 authorizes the issuance of subpoenas. inadequate or when a State asks for noncompliant, CRC routinely offers CRC received no comments this section technical assistance to ensure settlement or conciliation agreements but is reorganizing it to clarify its parts. compliance with the proposed rule. that list the steps recipients need to No substantive changes are intended by Similarly, another State agency stated follow to come into compliance. Once the reorganization. that if a Governor has been issued a an agreement is in place, CRC does of Compliance Reviews Letter of Findings, CRC should provide course provide technical assistance technical assistance to help the regarding the agreement. Accordingly, Authority and Procedures for Pre- Governor become compliant. The the final rule addresses the commenters’ Approval Compliance Reviews § 38.62 commenter said the Governor should be concerns without modification. Proposed § 38.62 proposed several given a timeframe in which CRC is Comment: One commenter stated that changes from the 1999 and 2015 rules, required to respond to the Governor or CRC could put more responsibility on including adding a new provision to designee’s questions, requests, and Governors to assure federal funds are paragraph (b) that required results. Furthermore, the commenter used to uphold civil rights for Departmental grantmaking agencies to suggested that CRC develop ‘‘Good individuals with disabilities. consult with the Director to determine Practice or useful tools’’ that States Response: CRC appreciates the if CRC had issued a Notice to Show could use as a template. The commenter commenter’s concern and believes that Cause 320 or a Final Determination 321 recommended that CRC review this final rule appropriately sets forth against an applicant identified as a preliminary findings with States to give the responsibility of Governors. These probable awardee for violating the States the opportunity to provide provisions are intended to strengthen nondiscrimination and equal additional information to rectify or the Governor’s authority to monitor and opportunity provisions of WIOA and resolve a proposed finding. ensure compliance with recipients’ this part. Response: CRC remains committed to obligations as to individuals with Proposed paragraph (c) added new ensuring that recipients comply with disabilities and all other protected language requiring that the grantmaking the nondiscrimination and equal groups. Specifically, CRC also has opportunity provisions of this rule. As strengthened its sections on disability, 319 29 U.S.C. 3243(c). 320 Pursuant to § 38.66(b). 322 Cf. CRC WIOA NPRM, supra note 70, at 4564 323 Section 188 Disability Reference Guide, supra 321 Pursuant to §§ 38.95 and 38.96. (incorrectly labeling § 38.62(d)(2) as ‘‘[Reserved]’’). note 264.

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including § 38.15 and related ‘‘recipient,’’ because this part applies to comments received, CRC finalizes definitions, to increase accountability to ‘‘recipients’’ as defined in § 38.44(zz). proposed § 38.66 as proposed. ensure that civil rights for individuals This change is made for the sake of Methods by Which a Recipient May with disabilities are well supported, clarity and consistency throughout the Show Cause Why Enforcement including that individuals with final rule, and no substantive change is Proceedings Should Not Be Instituted disabilities have equal access to WIOA intended. § 38.67 Title I-funded programs and that Notice To Show Cause Issued to a recipients communicate as effectively Proposed § 38.67 changed the section Recipient § 38.66 with them as with others. Because of the title and removed reference to the letter revisions already set forth in this final Proposed § 38.66 merged the 2015 of assurance because CRC proposed rule, CRC declines to modify the rule’s §§ 38.66 and 38.67,324 the latter of discontinuing use of that letter. This language in this provision. which outlined the contents of a notice section also updated the cross- Comment: Two advocacy to show cause. This section proposed to references for procedures related to organizations recommended that the retain most of the language in the 2015 correcting violations under §§ 38.91 Director be required to review the rule’s § 38.66 and all of the language in through 38.93. CRC received no adequacy of the Governor’s the 2015 rule’s § 38.67. comments on this provision and adopts Nondiscrimination Plan, by replacing Proposed paragraph (a) provided that § 38.67 as proposed. the Director may issue a Notice to Show the term ‘‘may’’ with ‘‘shall.’’ Failing to Show Cause § 38.68 Response: CRC understands the Cause when a recipient’s failure to commenters’ concerns but declines to comply with the requirements of this Proposed § 38.68 retained the existing make this modification. CRC will part results in the inability of the language from the 1999 and 2015 rules, continue to review Nondiscrimination Director to make a finding. This section with the slight modification of replacing Plans submitted by States. However, retained the three examples set forth in the term ‘‘must’’ with ‘‘may.’’ This CRC believes it critical that the Director the prior rule, but renumbered them. revision was intended to more maintain flexibility and discretion as to Proposed paragraph (a)(1) replaced the accurately reflect the Director’s when to review the adequacy of the 30-day requirement for recipients to prosecutorial discretion in bringing Nondiscrimination Plan based on submit the requested information, matters to enforcement. Nothing in enforcement priorities and resources. records, and/or data with ‘‘the Section 188 compels the Director to Moreover, the discretionary language in timeframe specified’’ in the Notification refer for enforcement every violation of proposed paragraph § 38.65(c) is the letter. This minor change reflects CRC’s Section 188 or this part. CRC received same found in § 38.65(a) of the 2015 common practice of including a no comments on this provision and rule, and § 37.65(a) of the 1999 rule. timeframe for a response in the adopts § 38.68 as proposed. Both provisions permit the Director to Notification Letter and eliminated its Complaint Processing Procedures review the adequacy of the Plans and redundancy from the regulatory text. compliance with this subpart without Proposed paragraph (b) expanded the Complaint Filing § 38.69 restriction. circumstances in which the Director Proposed § 38.69 combined the 2015 Comment: A State agency may issue a Notice to Show Cause by rule’s §§ 38.70, 38.71, and 38.72 into recommended that § 38.65 be deleted, allowing the Director to issue the Notice one section to improve readability.325 claiming that neither WIOA nor Title VI prior to issuing a Final Determination. We retained most of the language from gave the Department the authority over Proposed paragraph (c) retained the these sections, with some revisions to Governors found in § 38.65. same language found in the 2015 rule’s the text. Response: CRC disagrees with the § 38.67, and the 1999 rule’s § 37.67. We Proposed paragraph (a) maintained commenters’ characterization of its received one comment in support of the language from the 1999 and 2015 authority under WIOA and Title VI. these revisions. rules. Proposed paragraph (a)(1), Both Title VI and WIOA Section 188 Comment: A State agency commented however, added a list of the bases upon prohibit those who receive federal that the proposed rule would provide which a complaint may be filed—race, financial assistance from discriminating Governors and other recipients with an color, religion, sex (including against individuals in the classes additional opportunity, as compared to pregnancy, childbirth, or related protected under these statutes. WIOA the existing framework, to take medical conditions, gender identity, and Section 188(b) authorizes the Secretary corrective or remedial actions to come transgender status), national origin of Labor to take action whenever the into compliance before enforcement (including limited English proficiency), Secretary finds that a State or other proceedings were initiated. age, disability, political affiliation or recipient has failed to comply with the Furthermore, the commenter stated that belief, citizenship status, or nondiscrimination obligation in Section the proposed rule would provide an participation in any WIOA Title I- 188(a) or with the regulations prescribed additional opportunity for due process, financially assisted program or activity. to carry out those provisions. The allowing the Governor to come into Consistent with proposed § 38.19, Secretary has delegated enforcement compliance or enter into a conciliation proposed paragraph (a)(2) added and rule making authority under agreement before a final determination retaliation as a basis for filing a Section 188(e) to CRC. Because is rendered. complaint. Proposed paragraph (b) Governors receive federal financial Response: CRC agrees that the expanded the option for filing to assistance under WIOA Title I programs proposed rule gives Governors and include electronic filing. Proposed and services, CRC has the requisite recipients adequate time to come into paragraph (c) removed the reference to authority over Governors to enforce the compliance or negotiate a conciliation the Director to eliminate redundancy 326 provisions in the final rule. For these agreement regarding the violation(s) at and added that the complaint must be reasons, CRC declines to delete this issue before CRC issues a Final filed within 180 days of the alleged provision. Determination. For the reasons set forth CRC makes one technical revision to in the NPRM and considering the 325 29 CFR 37.70 through 37.72 (1999 rule). § 38.65(b), removing the unnecessary 326 § 38.69(b) addresses with whom the complaint modifier ‘‘WIOA Title I’’ from the term 324 29 CFR 37.66, 37.67 (1999 rule). must be filed.

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discrimination or retaliation. We forms. We received two comments on discussion in § 38.35, CRC believes that received two substantive comments on § 38.70. a signature, including an electronic one, these proposed changes. Comment: A private citizen helps support the legitimacy of a Comment: A State agency proposed recommended that CRC coordinate local complaint as it signifies that the that the list of the bases upon which a assistance for individuals who want to contents of the complaint are grounded complaint may be filed reflect the file a discrimination complaint. The in fact, and to the best of the categories identified in applicable commenter stressed that individuals complainant’s knowledge, the statutes. The commenter asserted that need guidance on compliance with the information is being presented in good any bases beyond the statutory language rules, procedures, and bases for a faith. reflect CRC’s interpretation and may not complaint. be an accurate statement of the law to Response: We decline to provide in Right to Representation § 38.71 which recipients are subject. the final rule that CRC coordinate local Proposed § 38.71 revised the title and Response: The commenter refers to assistance for individuals who want to section number of the 2015 rule’s the parenthetical language added to sex file a discrimination complaint. While § 38.75, but retained its language. CRC and national origin as prohibited bases local assistance may be beneficial, CRC received no comments on this provision for discrimination. As discussed is able to offer assistance through the and adopts § 38.71 as proposed. previously, CRC’s inclusion of the resources on our Web site, and by parentheticals is consistent with the telephone and email. In local areas, we Required Elements of a Recipient’s current state of the law as to sex and strongly encourage individuals to view Complaint Processing Procedures national origin discrimination. Again, the equal opportunity notice posted on § 38.72 CRC believes that, by incorporating this recipients’ premises (and published in Proposed § 38.72 revised the title and language, complainants will be more this rule in § 38.35), which provides section number of the 2015 rule’s knowledgeable about and aware of the information on how to file a complaint § 38.76.328 This section retained the protected bases under the statute for with the recipient or CRC. The poster requirements for recipients’ complaint which they may file a complaint. To must be available on the recipient’s Web processing procedures from the 1999 maintain consistency with other site, posted in conspicuous physical and 2015 rules, but added paragraph provisions in the final rule, including locations and provided to each (b)(1)(iii) obligating recipients to give §§ 38.7 and 38.9, the inclusion of those participant and employee. Individuals complainants a copy of the equal categories are appropriate in § 38.69. may also contact recipients’ EO Officers opportunity notice in § 38.35. Comment: A disabilities advocacy for assistance. Recipients are required to Proposed paragraph (b)(1)(iv) also group recommended that CRC add ‘‘the make their EO Officers’ contact added the requirement that recipients designated EO Officer of the recipient’’ information available to the public provide notice that the complainant has to § 38.69(b) so that a person or the under § 38.29(c). the right to request and receive, at no Those who need further assistance in person’s representative may file a cost, auxiliary aids and services, filing a complaint may also visit CRC’s complaint with either ‘‘the recipient, the language assistance services, and that Web site at https://www.dol.gov/oasam/ designated EO [O]fficer of the recipient, this notice will be translated into non- programs/crc/external-enforc- or the [D]irector.’’ English languages, in accordance with complaints.htm. CRC likewise invites Response: CRC agrees that § 38.69(b) proposed §§ 38.4(h) and (i), 38.34, and members of the public to visit our should more clearly identify with whom 38.36. Frequently Asked Questions page at a complainant should file the complaint Proposed paragraph (c)(1) created a if proceeding with the recipient-level https://www.dol.gov/oasam/programs/ crc/external-enforce-faq.htm. For new provision that stated that complaint process. Thus, CRC amends alternative dispute resolution (ADR) this provision to be consistent with the additional assistance, please contact CRC’s External Enforcement division at may be attempted any time after a language in the equal opportunity written complaint has been filed with notice. the U.S. Department of Labor, 200 Constitution Avenue NW., the recipient. Summary of Regulatory Changes Room N–4123, Washington, DC 20210. Finally, proposed paragraph (c)(3)(ii) For the reasons set forth above and in [email protected], modified the language of the 2015 rule’s the NPRM and considering the telephone (202) 693–6502 (VOICE) or § 38.76(c)(3)(ii), by providing in the last comments received, CRC finalizes (202) 877–8339 (Federal Relay Service— sentence that, ‘‘If the Director proposed § 38.69 with a modification in for TTY). determines that the agreement [reached paragraph (b) stating that a complaint Comment: A State agency commented under ADR] has been breached, the may be filed with, on the one hand, the that § 38.70 of the proposed rule would complaint will be reinstated and recipient’s EO Officer or the person the waive the ‘‘signature’’ requirement processed in accordance with the recipient has designated for that currently in place that makes a recipient’s procedures.’’ We received purpose or, on the other hand, the complaint a legally filed document. The three comments on § 38.72. Director. commenter recommended that any hard Comment: An individual commenter copy filed should be required to have a stated that allowing ADR methods may Required Contents of Complaint § 38.70 signature. give recipients too much power to Proposed § 38.70 combined the 2015 Response: CRC disagrees with the coerce complainants. The commenter rule’s §§ 38.73 and 38.74 into one commenter that electronic filing would believed that if recipients are given the section and retained almost all of their waive the signature requirement. The option to discipline themselves, the provisions.327 Proposed § 38.70 updated purpose of electronic filing is to ease the punishment will be as minute as the language in this combined section to filing process for complainants, not to possible. This could result in include the option of electronic filing eliminate the signature requirement. unresolved or unreported issues, which and provided additional information on Proposed § 38.70(d) requires the will allow the discriminating acts to how to electronically access complaint ‘‘written or electronic signature’’ of the continue or worsen. complainant or the complainant’s 327 29 CFR 37.73, 37.74 (1999 rule). representative. As mentioned in the 328 29 CFR 37.76 (1999 rule).

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Response: CRC recognizes the complaints at the earliest possible stage Further, the commenter encouraged commenters’ concerns, but believes that of the process, however, CRC has always outlining procedures for the complaint ADR can be an effective tool for both contemplated that recipient-level process from the perspective of the recipients and complainants. First, CRC complaint processing procedures, complainant, suggesting the outline disagrees that ADR within the meaning including election of ADR, would be should be as detailed as that of the of this part is a process in which the completed within 90 days.329 To clarify recipient outline with dates, procedures, recipient may unilaterally decide the that expectation, CRC revises how to check the progress of your outcome of the complaint. Instead, § 38.72(c)(1) to reflect that the complaint, contact information of the under these regulations ADR is a recipient’s issuance of a Notice of Final entity investigating the complaint, as process to reach a mutually satisfactory Action ends the complainant’s ability to well as all other related information. resolution. compel ADR during the recipient-level Response: CRC appreciates the Second, CRC highlights that, under process. CRC notes that the parties are commenter’s suggestions for fair, proposed § 38.72(c)(2), ADR is voluntary encouraged to reach settlement at any impartial, and effective complaint and the choice whether to use ADR or time. processing procedures at the recipient the customary process rests with the If the complainant files with CRC, and federal level. We decline to complainant. This allows for the CRC may offer the opportunity for both implement the commenter’s complainant to have vital input in the parties to engage in ADR under recommendations, however, because the process used for resolving the dispute. proposed § 38.85. In this instance, regulations already provide adequate Moreover, as proposed § 38.72(c)(3)(ii) mutual consent is necessary because safeguards to ensure such a fair, requires, if the Director determines that CRC is neither the complainant nor the impartial, and effective procedure. there is a breach of an ADR agreement, respondent to the complaint. Again Regarding the commenter’s first the complaint will be reinstated. CRC though, the parties are encouraged to recommendation, complainants are of believes that this approach enables the conduct voluntary settlement course free to request reasonable complainant to have a fair process in discussions at any time in the complaint accommodations and auxiliary aids and resolving the discrimination complaint. process. services from recipients or CRC with Comment: A few commenters Comment: A disabilities advocacy respect to the complaint process. This requested clarification on the proposed group made numerous may include requests for information in rule’s complaint processing procedures. recommendations for additional accessible formats or at a reading level One State agency commented that language to improve the clarity and understandable to the complainant. The § 38.72(c)(2) allows the complainant to efficiency of the complaint processing availability of such accommodations is choose ADR but § 38.85, which allows procedures. The commenter suggested addressed in § 38.14 and need not be for ADR on the federal level, requires that CRC ‘‘draft language that forwards repeated in § 38.72. Moreover, § 38.15 consent by both the complainant and ‘reasonable accommodations’ into the requires recipients to take appropriate the respondent. The commenter entire complaint process,’’ and steps to ensure that communications requested clarification on whether CRC recommended that all communications with individuals with disabilities are as could make ADR at the recipient level related to proposed § 38.72 between the effective as communications with require mutual consent. The commenter recipient and complaint be done in a others. This requirement includes the reasoned that ADR would not be format that is acceptable to the recipient’s complaint processing effective if both parties were not complainant and at a level reflective of procedures under § 38.72. It would be actively participating. The commenter the complainant’s ability to understand contrary to the ADA, however, for also stated that § 38.72(c)(1) needs to all materials presented. recipients or CRC to make assumptions clearly state that the issuance of a The commenter’s recommendations about a complainant’s literacy abilities Notice of Final Action by the recipient also included creating a time frame the on the basis of a disability in advance ends the complaint and terminates the Director must follow in the complaint of a request for accommodation. complainant’s ability to request ADR. process, adding language that defines As to the request for time frames for The commenter stated that CRC needs to the relationship between specific types the Director, CRC recognizes that each clarify that, after a recipient issues a of entities and what federal protections discrimination complaint filed, Notice of Final Action, their only govern them so that individuals and including those concerning individuals remaining option is to appeal to the recipients have a clear understanding of with disabilities, presents its own set of Department under § 38.75. the federal governance for individual unique facts. This variability means that Response: CRC agrees with the protection. The commenter suggested the Director and CRC staff need commenter that ADR is effective when creating comprehensive standards for flexibility to investigate and analyze both parties consent to ADR and investigations, including language to each complaint in a timeframe that actively participate. However, CRC ensure due diligence on behalf of the allows for the full consideration of the declines to remove the complainant’s recipient investigating a complaint. The allegations and defenses presented. The ability to compel ADR at the recipient commenter stated it is imperative that regulations set forth in this part provide level. In that case, ADR is designed to all complaint investigations conducted clear complaint processing procedures encourage the complainant to resolve by the recipient have a strict conflict of for both recipients and complainants. the complaint informally with the interest component that protects the For these reasons CRC declines to set a recipient, thus, the recipient cannot complainant’s rights to a full and time frame for the Director to resolve block the ADR process by withholding unbiased investigation, including strict complaints. consent. protections against a recipient’s Next, the request that the rule include Regarding the timing of ADR, CRC influence over any investigation such as a discussion of the federal protections agrees with the commenter that a providing for an independent facilitator that govern specific types of entities is written Notice of Final Action by the to investigate complaints. This should beyond the scope of this rule, which recipient ends the complainant’s ability be available to both small and large only addresses recipient and Governor to compel ADR during the recipient- recipients. obligations under Section 188 of WIOA. level complaint process. CRC’s goal is to CRC also declines to implement the encourage prompt resolution of 329 See § 38.76. commenter’s suggested changes

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regarding comprehensive investigation with one modification.330 The proposed Determinations Regarding Acceptance standards, including an independent rule changed the term ‘‘immediate’’ to of Complaints § 38.78 facilitator to investigate complaints, to ‘‘within five business days of making Proposed § 38.78 retained the prevent conflicts of interest and undue such determination’’ as the time frame language from the 2015 rule’s § 38.82, influence, and to ensure recipients’ due in which a recipient must notify the with minor modifications including diligence and a full and unbiased complainant in writing that it does not changing the word ‘‘determine’’ to investigation. CRC believes those have jurisdiction. CRC proposed this ‘‘decide’’ in the introductory sentence to safeguards already exist in the final rule, change to reduce ambiguity and provide distinguish the Director’s decision and that recipients’ EO Officers must a more definite timeframe within which whether to accept a complaint from the serve as the type of independent the recipient must notify a complainant Director’s Initial and Final facilitator to which the commenter about the recipient’s lack of jurisdiction Determinations. CRC received no refers. Under § 38.31(d), recipients’ EO so that the complainant may timely comments on this provision and adopts Officers are charged with overseeing the pursue the allegations with CRC. We § 38.78 as proposed. recipient-level complaint process, and received one comment on § 38.74. must do so without any conflict of When a Complaint Contains Insufficient interest, pursuant to § 38.30. Small Comment: One advocacy group Information § 38.79 recipients must also establish complaint commented that, in addition to Proposed § 38.79 retained the procedures under § 38.32. As an notifying the complainant of the right to language from the 2015 rule’s § 38.83, additional safeguard, complainants may file with CRC, the notice should also except for removing and replacing appeal to CRC from the recipient’s final provide guidance on the steps required gender-specific pronouns and revising action on the complaint. to file with CRC, including ‘‘steps and its title. Proposed paragraph (a) added Finally, the rule gives the procedures, required forms, addresses, language explaining that if the complainant sufficient notice of how to phone numbers, etc.’’ complaint does not contain enough information ‘‘to identify the respondent check the progress of a complaint, the Response: We understand the contact information of the entity or the basis of the alleged commenter’s concern but believe that discrimination, the timeliness of the investigating the complaint, as well as the new obligation in § 38.72(b)(1)(iii) to other related information. As stated complaint, or the apparent merit of the provide each complainant the equal above, EO Officers’ information is complaint,’’ the Director must try to get opportunity notice contained in § 38.35 public and complainants may use that the needed information from the information and the contact information will provide individuals with adequate complainant. Proposed paragraph (c) in the equal opportunity notice to check information on how to file a complaint added that the Director must send a on the status of complaints. Sections with CRC and how to contact CRC written notice of complaint closure to 38.69 through 38.85 provide directly if they need additional the complainant’s last known address, comprehensive information about assistance in filing a complaint. That ‘‘email address (or other known method complaint procedures for both notice contains CRC’s physical and Web of contacting the complainant in complainants and recipients. site addresses, and instructions for writing.’’ This change was intended to complaint filing. update the methods of written Summary of Regulatory Changes communication that are available. CRC If the Complainant Is Dissatisfied After For the reasons set forth above and in received no comments on this provision Receiving a Notice of Final Action and adopts § 38.79 as proposed. the NPRM, and in consideration of the § 38.75 comments received, CRC finalizes Lack of Jurisdiction § 38.80, Complaint proposed § 38.72, with two Proposed § 38.75 retained most of the Referral § 38.81, Notice That Complaint modifications. First, CRC makes a language of the 1999 and 2015 rules, but Will Not Be Accepted § 38.82, Notice of technical correction by changing changed ‘‘his/her’’ to ‘‘the Complaint Acceptance § 38.83, and ‘‘issued’’ to ‘‘received’’ in paragraph complainant’s,’’ and clarified that this Contacting CRC About a Complaint (b)(5)(ii) to be consistent with the section applies whenever a recipient § 38.84 standard in §§ 38.74 and 38.75. Second, issues a Notice of Final Action before Proposed §§ 38.80–38.84 retained the CRC revises § 38.72(c)(1) to reflect that the end of the 90-day period for language of the 2015 rule’s §§ 38.84– a complainant may attempt ADR only recipients to resolve a complaint. CRC 38.88, with the exception of their titles until the recipient has issued a Notice received no comments on this provision and section numbers. CRC received no of Final Action. and adopts § 38.75 as proposed. comments on these sections and adopts Responsibility for Developing and §§ 38.80–38.84 as proposed. If a Recipient Fails To Issue a Notice of Publishing Complaint Processing Final Action Within 90 Days After the Alternative Dispute Resolution § 38.85 Procedures for Service Providers § 38.73 Complaint Was Filed § 38.76 and Proposed § 38.85 retained most of the Proposed § 38.73 modified the title Extension of Deadline To File language from the 2015 rule’s § 38.89, and section number of the 2015 rule’s Complaint § 38.77 with some modifications. This section § 38.77 but retained the same language. replaced the reference to ‘‘mediation’’ CRC received no comments on this Proposed §§ 38.76 and 38.77 retained with ‘‘alternative dispute resolution provision and adopts § 38.73 as the same language as in the 1999 and (ADR)’’ to encompass a broader array of proposed. 2015 rules, with the exception of the procedures that may be used to resolve revisions made to their titles and Recipient’s Obligations When It a complaint. corresponding section numbers. CRC Determines That It Has No Jurisdiction Proposed paragraph (a) replaced the received no comments on these sections over a Complaint § 38.74 reference to ‘‘the parties,’’ with ‘‘the and adopts §§ 38.76 and 38.77 as complainant and respondent’’ to clarify Proposed § 38.74 modified the title proposed. that the actual parties in an enforcement and section number of the 2015 rule’s action that arises from a complaint filed § 38.79 and retained most of its language 330 29 CFR 37.79 (1999 rule). under Section 188 or this part are the

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recipient/respondent and CRC. WIOA on this provision and adopts § 38.89 as that a conciliation agreement provide Section 188 provides no private right of proposed. that nothing in the agreement prohibits action. Proposed paragraph (b) removed CRC from sending it to the complainant, Corrective or Remedial Action That May the word ‘‘issued’’ from the 2015 rule’s making it available to the public, or Be Imposed When the Director Finds a § 38.89(b), which stated, ‘‘The posting it on the CRC or the recipient’s Violation § 38.90 mediation will be conducted under Web site. The NPRM also inserted a new guidance issued by the Director.’’ This In proposed § 38.90, we retained the paragraph (h) to require that a change was intended to allow guidance language from the 2015 rule’s § 38.94 conciliation agreement provide that in from the Director on ADR to be and only updated its section number any proceeding involving an alleged provided informally. Proposed and title. CRC received no comments on violation of the conciliation agreement, paragraph (c) added that ADR may take this provision and adopts § 38.90 as CRC may seek enforcement of the place at any time after a complaint has proposed, with the exception of a agreement itself and shall not be been filed to maximize the opportunity technical edit to paragraph (b) to change required to present proof of the for resolution of complaints through the ‘‘must’’ to ‘‘may’’ to make it consistent underlying violations resolved by the ADR process. Proposed paragraph (d) with the title of § 38.90. CRC intends no agreement. CRC believed that these created a new provision to notify substantive change with this revision. revisions would more accurately reflect its current practice and align with the recipients and complainants that ADR Post-Violation Procedures § 38.91 does not suspend CRC’s investigation. rules issued by other nondiscrimination CRC plans to continue to process and Proposed § 38.91 retained most of the enforcement agencies in the investigate complaints during ADR so existing language from the 2015 rule’s Department.333 We received one that the complaint and its evidence will § 38.95, with a few modifications. The comment on proposed § 38.93. not become stale. proposed rule updated the section Comment: A State agency commented CRC received no comments on this number and changed the title. that § 38.93(g) would allow CRC to provision and adopts § 38.85 as Additionally, we proposed to delete the publish conciliation agreements in the proposed. paragraphs (b)(1)(iii)(C) and (b)(3)(iii), media as leverage against the State. The which referred to using ‘‘both’’ a written commenter argued that CRC should only Notice at Conclusion of Complaint assurance and a conciliation agreement be allowed to publish the agreement Investigation § 38.86 as closing documents for the same set of after all negotiating has been completed Proposed § 38.86 retained the violations. As discussed in § 38.92 of and the parties have signed the provisions in the 2015 rule’s § 38.90, but the final rule, this deletion reflects conciliation agreement. modified the title and section number. revisions to the circumstances under Response: CRC does not publish The proposed rule also added language which a written assurance may be used. conciliation agreements that have not at the end of paragraph (b) so that the Finally, we proposed removing the been fully negotiated and executed. The recipient, complainant and grantmaking inadvertent reference to a nonexistent purpose of § 38.93(g) is to ensure that all agency are aware of the procedural steps paragraph (d) at the end of paragraph parties to the agreement understand that that CRC will follow under §§ 38.87 and (a). the agreement may be made public. For 38.88. CRC received no comments on CRC received no comments on this the reasons set forth above and in the this provision and adopts § 38.86 as provision and adopts § 38.91 as NPRM and considering the comments proposed. proposed. received, CRC finalizes proposed § 38.93 without modification. Director’s Initial Determination That Written Assurance § 38.92 Reasonable Cause Exists To Believe When Voluntary Compliance Cannot Be Proposed § 38.92 clarified the That a Violation Has Taken Place Secured § 38.94 corresponding provisions from the 1999 § 38.87 and Director’s Final and 2015 rules to better explain when In proposed § 38.94, we retained the Determination That No Reasonable 334 a written assurance rather than a language in the 1999 and 2015 rules, Cause Exists To Believe That a Violation conciliation agreement would be the but updated its section number and Has Taken Place § 38.88 appropriate resolution document. CRC revised its title. The only change to this Proposed §§ 38.87 and 38.88 retained received no comments on this provision section was adding ‘‘the Governor’’ to all of the existing language in the 2015 and adopts § 38.92 as proposed. the list of other entities in paragraphs (a) rule’s §§ 38.87 and 38.88, and only and (b)(1), because the Governor may updated their titles and section Required Elements of a Conciliation also be a recipient in violation of this numbers. CRC received no comments on Agreement § 38.93 part. We received one comment on these sections and adopts §§ 38.91 and Proposed § 38.93 retained the proposed § 38.94. 38.92 as proposed. language in the 1999 and 2015 rules,332 Comment: A State agency commented with some changes. We updated the that neither WIOA nor Title VI support When the Recipient Fails or Refuses To section number and revised its title. the new authority that CRC seeks to Take Corrective Action Listed in the Proposed paragraph (a) retained all of assert over State Governors. The Initial Determination § 38.89 the language from the 1999 and 2015 commenter suggested that the word Proposed § 38.89 retained most of the sections. We added to the list of ‘‘Governor’’ be removed from language from the 2015 rule’s § 38.93 required elements of a conciliation paragraphs (a) and (b)(1) in § 38.94. Response: CRC disagrees. The with some modifications. Proposed agreement by creating a new provision Governors assume the obligations under § 38.89 replaced the mandatory in proposed paragraph (b) stating that Section 188 when they accept WIOA language regarding enforcement actions the agreement ‘‘[a]ddress the legal and funds. Moreover, as mentioned earlier, the Director could take to allow for contractual obligations of the recipient’’; CRC’s prosecutorial discretion, in we renumbered the paragraphs; and we accordance with Section 188(b) of 333 For example, OFCCP has incorporated similar proposed a new paragraph (g) to require language into its conciliation agreements pursuant 331 WIOA. CRC received no comments to its regulations at 41 CFR 60–1.34(d). 332 29 CFR 37.97 (1999 rule); 29 CFR 38.97 (2015 334 29 CFR 37.98 (1999 rule); 29 CFR 38.98 (2015 331 29 U.S.C. 3248(b). rule). rule).

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CRC has the requisite authority to make-whole relief, and provided Secretary’s Order 02–2012.336 These enforce the nondiscrimination and injunctive relief as an example of such delegation orders also contain a catch- equal opportunity provisions of Section other actions. all provision to extend the delegation to 188 of WIOA and this part as applied to Comment: Two individual subsequently enacted statues or rules, Governors. As contemplated in subparts commenters supported the proposal but including: ‘‘Any laws or regulations B and C, the Governor serves a unique questioned how it would be enforced. subsequently enacted or promulgated role, sometimes serving as both the Response: CRC is committed to that provide for final decisions by the entity responsible for oversight and enforcing the equal opportunity and Secretary of Labor upon appeal or monitoring of all State Programs and as nondiscrimination provisions of WIOA review of decisions, or recommended a recipient, and violations may occur in Section 188 and this part using the Decisions, issued by ALJs.’’ 337 Thus, either role under Section 188. detailed enforcement procedures set absent a new delegation order, the ARB For the reasons set forth above and in forth in the final rule. issues final agency decisions under the NPRM and considering the For the reasons set forth above and in Section 188 of WIOA. comments received, CRC finalizes the NPRM, and in consideration of the Proposed paragraph (b) retained the § 38.94 as proposed, with a grammatical comments received, CRC finalizes procedures for filing exceptions to the correction to paragraph (b)(1) to change proposed § 38.110 without modification. Administrative Law Judge’s initial ‘‘be’’ to ‘‘been.’’ decision and order and issuance of a Hearing Procedures § 38.111 Final Decision and Order by the Enforcement When Voluntary Department, but included some Compliance Cannot Be Secured § 38.95, Proposed § 38.111 retained the same modifications. Specifically, proposed Contents of a Final Determination of a requirements of the 1999 and 2015 paragraph (b)(1)(iii) deleted the sentence Violation § 38.96, and Notification of rules, but made minor changes to their ‘‘[a]ny exception not specifically urged Finding of Noncompliance § 38.97 provisions. Proposed § 38.111(b)(3) only updated the current title and location of is waived’’ from this paragraph. The Proposed §§ 38.95, 38.96, and 38.97 prior provisions did not accurately retained all of the existing language in the Office of the Solicitor’s Division with which grant applicants or describe the ARB’s scope of review of the 2015 rule’s §§ 38.99, 38.100, and initial decisions under the 38.101, and only updated their titles recipients must serve a copy of their filings under this section. Proposed Administrative Procedure Act (APA). and section numbers. CRC received no The APA provides that, on appeal from comments on these sections and adopts § 38.111(d)(2) deleted the word ‘‘Uniform’’ as used in the 2015 rule’s or review of the initial decision, the §§ 38.95, 38.96, and 38.97 as proposed. agency has all the power which it would § 38.111 (d)(2), ‘‘Uniform Rules of have in making the initial decision Notification of Breach of Conciliation Evidence issued by the Department of except as it may limit the issues on Agreement § 38.98 Labor’s Office of Administrative Law notice or by rule.338 Where, as here, the Judges’’ to reflect the current title of that Proposed § 38.98 merged the 2015 applicable rule does not specify the rule at 29 CFR part 18. rule’s §§ 38.102 and 38.103 into one standard of review, ‘‘the Board is not section. CRC received no comments on CRC received no comments on this bound by either the ALJ’s findings of this provision and adopts § 38.98 as provision and adopts § 38.111 as fact or conclusions of law, but reviews proposed, with a technical correction to proposed. both de novo.’’ 339 the title of the section to match the term Initial and Final Decision Procedures Finally, as noted in the preamble to used in the text. § 38.112 the NPRM, we retained all of the 1999 Contents of Notification of Breach of and 2015 rules’ requirements in Proposed § 38.112 generally contained proposed paragraph (b)(2)(ii), and Conciliation Agreement § 38.99 and the same requirements as the 1999 and Notification of an Enforcement Action proposed adding ‘‘the Governor’’ as one 2015 rules, but made a few of the listed entities to which this Based on Breach of Conciliation modifications to its provisions. This Agreement § 38.100 provision applied. Proposed proposed section replaced the word § 38.112(b)(2)(ii) stated that, when a Proposed §§ 38.99 and 38.100 ‘‘Secretary’’ with the phrase Final Determination or Notification of a retained all of the existing language in ‘‘Administrative Review Board’’ (ARB) Breach of Conciliation Agreement the 2015 rule’s §§ 38.104 and 38.105, as it appears in various parts of becomes the Final Decision, the ARB and only updated their titles and section § 38.112(b)(1) and (2). This replacement may, within 45 days, issue an order numbers. CRC received no comments on accurately reflects the ARB’s role in terminating or denying the grant or these sections and adopts §§ 38.99 and issuing final agency decisions in cases continuation of assistance or imposing 38.100 as proposed, with a technical brought to enforce WIOA Section 188. appropriate sanctions for failure of the correction to the title of § 38.99 to match As stated in the NPRM, the Secretary’s grant applicant or recipient to comply the term used in the text. Order 2–96, issued in 1996, created the Subpart E—Federal Procedures for ARB and delegated to the ARB the 336 77 FR 69376, Nov.16, 2012. Effecting Compliance Secretary’s authority to issue final 337 Id. at 63279. agency decisions under 38 enumerated 338 5 U.S.C. 557(b). Enforcement Procedures § 38.110 statues, including the Comprehensive 339 Masek v. The Cadle Co., ARB No.97–069, ALJ Employment and Training Act, 29 No. 1995–WPC–1, at 7 (ARB Apr. 25, 2000) Proposed § 38.110 generally retained (citations omitted). See also Jones v. U.S. Dep’t of the language in the 1999 and 2015 rules U.S.C. 801 et seq., and the Job Training Labor, 148 F.App’x 490, 2005 WL 2173769 (6th Cir and made one additional update, adding Partnership Act, 20 U.S.C. 1576, Sept. 8, 2005) (ARB acted within its authority in language at the end of paragraph (a)(3) predecessor statutes to WIA and WIOA. drawing its own conclusions based on its independent review of the evidence); Phillips v. stating that the Secretary may take such Additionally, Secretary’s Order 1–2002 Stanley Smith Sec., Inc., ARB No. 98–020, ALJ No. action as may be provided by law included a delegation to the ARB for 1996–ERA–30 (ARB Jan. 31, 2001) (ARB reviews ‘‘which may include seeking injunctive matters arising under Section 188 of the ALJ decisions under the ERA de novo but accords relief.’’ We added this provision to Workforce Investment Act,335 as did special weight to an ALJ’s demeanor-based credibility determinations); Berkman v. U.S. Coast advise recipients that the Secretary may Guard Acad., ARB No. 98–056, ALJ No. 1997– seek corrective actions that go beyond 335 67 FR 64272, Oct. 17, 2002. CAA–2, at 9 (ARB Feb. 29, 2000).

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with the required corrective and/or Post-Termination Proceedings § 38.115 of E.O. 12866; therefore, OMB has remedial actions. We announced in the Proposed § 38.115 retained the reviewed this final rule. preamble to the NPRM that the language in this section and changed its (2) This final rule would have a imposition of appropriate sanctions title. CRC received no comments on this negligible net direct cost impact on should also be applicable to Governors provision and adopts § 38.115 as small entities beyond the baseline of the current costs required by the Workforce for their failure to comply. The proposed. regulatory text of the NPRM Innovation and Opportunity Act inadvertently did not insert the III. Rulemaking Analyses and Notices (WIOA) program as it is currently Governor into the list of other entities— implemented in regulation. A. Executive Orders 12866 (Regulatory (3) This final rule would not impose grant applicants and recipients—to Planning and Review) and Executive which these provisions apply. However, an unfunded mandate on Federal, state, Order 13563 (Improving Regulation and local, or tribal governments as defined we have corrected that oversight in this Regulatory Review) final rule. We received one comment by the Unfunded Mandates Reform Act. regarding this revision. Executive Order (E.O.) 12866 directs The total undiscounted cost of this Comment: A State agency commented agencies, in deciding whether and how final rule is estimated to be $120.0 that neither WIOA nor Title VI support to regulate, to assess all costs and million over the 10-year analysis period, which is equivalent to $106.86 million the new authority that the Department benefits of available regulatory at a discount rate of 3 percent or $93.1 seeks to assert over State Governors. The alternatives, including the alternative of million at a discount rate of 7 percent. commenter suggested that the word not regulating. E.O. 13563 is The Department estimates that this final ‘‘Governor’’ be removed from § 38.112. supplemental to and reaffirms E.O. 12866. It emphasizes the importance of rule will have an undiscounted first- Response: For the reasons provided quantifying present and future benefits year cost of $21.0 million, second-year above, CRC has the requisite authority and costs; directs that regulations be cost of $10.2 million, and third-year cost to enforce the nondiscrimination and adopted with public participation; and, of $13.8 million. In the fourth through equal opportunity provisions of Section where relevant and feasible, directs that the tenth years, average annual costs 188 of WIOA and this part as applied to regulatory approaches be considered will be $10.7 million. The annualized Governors. As contemplated in subparts that reduce burdens, harmonize rules cost of the proposed rule is estimated to B and C, the Governor serves a unique across agencies, and maintain flexibility be $12.2 million at a discount rate of 3 role, sometimes serving as both the one and freedom of choice for the public. percent or $12.4 million at a discount responsible for oversight and Costs and benefits shall be understood rate of 7 percent. The annual burden monitoring of all State Programs and as to include both quantifiable measures hours are detailed in Table 3 and Table a recipient. Again, the Governor may be and qualitative assessments of possible 4 presents a summary of the costs of this found in violation under Section 188 impacts that are difficult to quantify. If final rule. This final rule will not create and this part in either role. Thus, we regulation is necessary, agencies should significant new costs for Governors, decline to adopt the commenter’s select regulatory approaches that recipients, or beneficiaries. suggestion to exclude the Governor from maximize net benefits. The Office of The primary cost burden created for this provision. Management and Budget (OMB) affected entities by this final rule will be For the reasons stated in the proposed determines whether a regulatory action the cost of Governors’ oversight and rule and considering the comments is significant and, therefore, subject to monitoring responsibilities for State received, CRC finalizes § 38.112 as review. Programs. Over the 10-year analysis proposed, with the following Section 3(f) of E.O. 12866 defines a timeframe, the Department estimates modifications: Adding ‘‘Governor’s’’ to ‘‘significant regulatory action’’ as any this provision to cost $57.3 million paragraph (b)(2)(ii) and changing action that is likely to result in a rule (undiscounted). The next two ‘‘applicant’’ to ‘‘applicant’s’’ in the same that may: provisions with the highest costs over paragraph for the sake of grammatical (1) Have an annual effect on the the 10-year analysis are the recipients’ correctness and consistency. economy of $100 million or more or obligation to publish the equal opportunity notice ($31.2 million) and Suspension, Termination, Withholding, adversely affect in a material way the the required elements of a recipient’s Denial, or Discontinuation of Financial economy, a sector of the economy, complaint procedures ($12.7 million). Assistance § 38.113 productivity, competition, jobs, the environment, public health or safety, or All provisions are discussed in the Proposed § 38.113 generally retained state, local, or tribal governments or subject-by-subject analysis. the language in this section and revised communities; The Department was unable to its title. The proposed rule included a (2) Create a serious inconsistency or quantify the benefits of this final rule small technical update in paragraph (c) otherwise interfere with an action taken due to data limitations or lack of and replaced the term ‘‘Secretary’’ with or planned by another agency; existing data or evaluation findings. ‘‘Administrative Review Board,’’ (3) Materially alter the budgetary Many of the revisions to 29 CFR part 38 consistent with the reason set forth in impact of entitlements, grants, user fees, contained in this final rule, however, § 38.112. CRC received no comments on or loan programs or the rights and will improve readability and provide this provision and adopts § 38.113 as obligations of recipients thereof; or additional guidance to Governors, other proposed. (4) Raise novel legal or policy issues recipients, and beneficiaries, in several instances in response to feedback from Distribution of WIOA Title I Financial arising from legal mandates, the stakeholders, to their benefit. For Assistance to an Alternate Recipient President’s priorities, or the principles example, additional clarifying language § 38.114 set forth in E.O. 12866. Summary of the analysis. The in §§ 38.28–38.31 regarding the Proposed § 38.114 retained the Department provides the following obligations of Equal Opportunity language in this section and changed its summary of the regulatory impact Officers (EO Officers) and recipients’ title. CRC received no comments on this analysis: obligations regarding their EO Officers provision and adopts § 38.114 as (1) This final rule is a ‘‘significant provides detailed direction that benefits proposed. regulatory action’’ under Section 3(f)(4) recipients by providing better

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programmatic guidance. Similarly, 2. Technical Update of Section 188 baseline, that is, the program benefits § 38.92 provides detail regarding the use Versus Publication of a Simultaneous and costs of the 1999 and 2015 rules to of written assurances in the enforcement Final Rule the benefits and costs of the final of nondiscrimination and equal The Department considered two rule.340 For a proper evaluation of the opportunity requirements that resolves possible alternatives: (1) To publish a benefits and costs of this final rule, the confusion that recipients raised about final rule as 29 CFR part 38 Department has explained how the their use. implementing Section 188 of WIOA newly required actions by States and In addition, by including updates to with only technical updates to the recipients under the regulations at part the nondiscrimination provisions in regulations at 29 CFR 37, which 38 are linked to the expected benefits Subpart A, this final rule makes it easier implemented Section 188 of WIA; or (2) and estimated costs. To do (1) and publish an additional for Governors and recipients to meet The Department made every effort, final rule that updates part 38 consistent their equal opportunity and when feasible, to quantify and monetize with current law and addresses its nondiscrimination obligations under the benefits and costs of this final rule. Section 188 of WIOA because the application to current workforce When the Department was unable to implementing regulations contain development and workplace practices quantify them—for example, due to data provisions consistent with requirements and issues. with which they are already required to The Department considered these limitations—the Department described comply under Federal laws such as Title options in accordance with the the benefits and costs qualitatively. In VI and Title VII of the Civil Rights Act provisions of E.O. 12866 and chose to accordance with the regulatory analysis of 1964, as amended; Title IX of the publish in July 2015 a technically guidance contained in OMB Circular A– Education Amendments of 1972; the updated final rule implementing 4 and consistent with the Department’s Americans with Disabilities Act of 1990, Section 188 of WIOA, as required, and practices in previous rulemakings, this as amended; and Section 504 of the additionally publish this final rule regulatory analysis focuses on the Rehabilitation Act. consistent with current benefits and costs that accrue to citizens nondiscrimination law that addresses its and residents of the United States 1. The Need for the Regulation application to current workforce associated with this final rule. development and workplace practices Signed by President Obama on July and issues (i.e., alternative (2)). The Table 1 presents the estimated annual 22, 2014, WIOA supersedes the Department concluded that the 2015 number of recipients expected to Workforce Investment Act of 1998 rule, which only technically updated experience an increase in level of effort (WIA) as the Department’s primary the 1999 rule, did not reflect recent (workload) due to this final rule. These mechanism for providing financial developments in equal opportunity and estimates are used extensively assistance for a comprehensive system nondiscrimination jurisprudence. throughout this document to estimate of job training and placement services Moreover, procedures and processes for the costs of each provision. Note that for adults and eligible youth. Section enforcement of the nondiscrimination several recipients are counted under 188 of WIOA prohibits the exclusion of and equal opportunity provisions of multiple categories because they receive an individual from participation in, Section 188 have not been revised to more than one source of WIOA Title I denial of the benefits of, discrimination reflect changes in the practices of financial assistance, that is, they receive in, or denial of employment in the recipients since 1999, including the use funds under multiple programs. For administration of or in connection with, of computer-based and internet-based example, the Texas Workforce any programs and activities funded or systems to provide aid, benefits, Commission is both a recipient of a otherwise financially assisted in whole services, and training through WIOA or in part under Title I of WIOA because Senior Community Service Employment Title I financially assisted programs and Program Grant and an Adult WIOA Title of race, color, religion, sex, national activities. Thus, only reissuing the origin, age, disability, or political I grantee. However, the Department existing regulations with technical included it in both categories in an affiliation or belief, or, for beneficiaries, updates (i.e., alternative (1)) would have effort to be overinclusive, rather than applicants, and participants only, the negative effect of continuing to risking underestimating the costs of this because of citizenship status, or impose ongoing compliance costs on participation in a program or activity recipients while not providing the full final rule. that receives financial assistance under protections to which beneficiaries are Title I of WIOA. Section 188(e) of WIOA entitled under current law. 340 As previously noted, the 2015 rule (the requires that the Department issue original regulations implementing Section 188 of regulations implementing Section 188. 3. Analysis Considerations WIOA at 29 CFR part 38) made no substantive WIOA contains identical provisions of The Department derived its estimates changes to the 1999 rule (the regulations implementing Section 188 of WIA at 29 CFR part Section 188 as appeared in WIA. by comparing the existing program 37).

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TABLE 1—ESTIMATED ANNUAL NUMBER OF RECIPIENTS, BENEFICIARIES, AND NON-FEDERAL, FULL-TIME EMPLOYEES OF RECIPIENTS

Non-federal full-time Recipients Beneficiaries employees of recipients

States 341 ...... 342 57 ...... Adult Program (Title I of WIOA) ...... (345) ...... 343 65,655 Dislocated Worker Program (Title I of WIOA) ...... (345) ...... (346) Youth Program (Title I of WIOA) ...... (345) 344 193,130 (346) Wagner-Peyser Act Program (Wagner-Peyser Act, as amended by Title III of WIOA) ...... (345) 345 16,619,943 (346) Adult Education and Literacy Program (Title II of WIOA) ...... (345) 346 2,012,163 347 67,293 Vocational Rehabilitation Program ...... (345) 348 573,086 349 68,000 Trade Adjustment Assistance Program ...... (345) 350 51,133 (346) Unemployment Compensation Program ...... (345) 351 2,451,464 352 62,138 Local Veterans’ Employment Representatives and Disabled Veterans’ Outreach Program (345) 353 450,843 354 2,700 Career and Technical Education (Perkins) ...... (345) 355 12,052,217 (346) Community Service Block Grants ...... (345) 356 16,000,000 (346) Temporary Assistance for Needy Families (TANF) ...... (345) 357 4,417,000 (346) State and Local Workforce Development Boards ...... 358 580 ...... 359 9,280 Service Providers, Including Eligible Training Providers and On-the-Job Training Employ- ers 360 ...... 361 11,400 362 122,693 363 439,936 One-Stop Career Centers 364 ...... 365 2,481 366 864,936 367 2,481 National Programs Include: Job Corps Operators (i.e., national contractors) ...... 368 18 369 370 109,523 371 372 3,050 Job Corps Outreach and Admissions Operators ...... 373 24 (374) (376) Job Corps National Training Contractors/Career Transition Services Operators ...... 374 21 (374) (376) Senior Community Service Employment Grants ...... 375 71 376 67,123 (346) National Emergency Grants 377 ...... 378 125 379 26,221 380 9,280 Reintegration of Ex-Offenders—Adult Grants 381 ...... 382 28 383 6,800 384 555 H–1B Technical Skills Training Grants 385 ...... 386 36 387 22,543 388 774 H–1B Jobs and Innovation Accelerator Challenge Grants 389 ...... 390 30 391 3,500 392 183 Indian and Native American Programs ...... 393 178 394 35,735 395 994 National Farmworker Jobs Program ...... 396 69 397 41,300 398 60,965 YouthBuild ...... 399 82 400 36,997 401 2,408 Registered Apprenticeship Program ...... 402 19,259 403 197,500 404 85,317

Total ...... 34,459 56,355,850 881,009

Table 2 presents the compensation 349 This is an estimate based on the average rates for the occupational categories 65,655 employees account for the non-federal full- number of employees at state-level Department of expected to experience an increase in time employees in the following programs and are Labor equivalents. 350 Workforce System Results, supra note 344, at level of effort (workload) due to this thus counted only once: Adult Program (Title I of WIOA), Dislocated Worker Program (Title I of 3. final rule. The Department used median WIOA), Wagner-Peyser Act Program (Wagner Peyser 351 Id. hourly wage rates from the Bureau of Act, as amended by Title III of WIOA), Trade 352 This is an estimate based on the average Labor Statistics (BLS) Occupational Adjustment Assistance Program, Career and number of employees at state-level Department of Employment Statistics (OES) program Technical Education (Perkins), Community Service Labor equivalents. Block Grants, Temporary Assistance for Needy 353 U.S. Department of Labor, Veterans’ for private, State, and local Families (TANF), and Senior Community Service Employment & Training Service, Annual Report to employees 405 as well as the federal Employment Grants. Congress: Fiscal Year 2013, http://www.dol.gov/ 344 U.S. Department of Labor, Employment and vets/media/DOL-VETS-FY2013_ANNUAL_ _ 341 The 57 state entities are the recipients for the Training Administration, Workforce System Results: REPORT-OMB-CLEARED 10-16-14.pdf. This twelve programs below. For the Quarter ending June 30, 2015, https:// number is for PY 2012. Id. _ 354 342 This number includes the 50 states as well as www.doleta.gov/performance/results/pdf/DOL U.S. Department of Veterans Affairs, LVER Workforce_Rprt_JUN_2015.pdf. (hereinafter and DVOP Fact Sheet, http://www.benefits.va.gov/ the District of Columbia, American Samoa, Guam, _ _ Northern Mariana Islands, Puerto Rico, Palau, and ‘‘Workforce SystemResults’’). VOW/docs/LVER DVOP Factsheet.pdf. U.S. Virgin Islands. These 57 entities are the 345 U.S. Department of Labor, Employment and 355 U.S. Department of Education, Carl D. Perkins recipients for the following programs and are thus Training Administration, National—Wagner-Peyser: Career and Technical Education Act of 2006: counted only once: Adult Program (Title I of Program Year 2013, http://www.doleta.gov/ Report to Congress on state Performance Program WIOA), Dislocated Worker Program (Title I of performance/results/pdf/WagnerPeyserPY2013.pdf. Year 2010–2011, 2014, https://s3.amazonaws.com/ _ _ _ _ WIOA), Youth Program (Title I of WIOA), Wagner- 346 U.S. Department of Education, Office of PCRN/docs/Rpt to Congress/Perkins RTC 2010- Peyser Act Program (Wagner-Peyser Act, as Vocational and Adult Education, Adult Education 11.pdf. amended by Title III of WIOA), Adult Education and Family Literacy Act of 1998: Annual Report to 356 U.S. Department of Health and Human and Literacy Program (Title II of WIOA), Vocational Congress Program Year 2010–2011 (May 2013), Services, Administration for Children & Families, Rehabilitation Program, Trade Adjustment Program, http://www2.ed.gov/about/offices/list/ovae/ Fiscal Year 2015: Justification of Estimates for Unemployment Compensation Program, Local resource/aefla-report-to-congress-2010.pdf. Appropriations Committees, https:// Veterans’ Employment Representatives and 347 National Reporting System, Adult Education www.acf.hhs.gov/sites/default/files/olab/fy_2015_ Disabled Veterans’ Outreach Program, Career and Personnel, http://www.nrsweb.org/docs/NRS_Fast_ congressional_budget_justification.pdf. Technical Education (Perkins), Community Service Facts_508_rev.pdf. 357 U.S. Department of Health and Human Block Grants, and Temporary Assistance for Needy 348 U.S. Department of Education, Office of Services, Welfare Indicators and Risk Factors: Families (TANF). Special Education and Rehabilitative Services, Thirteenth Report to Congress (March 2014), http:// 343 This number is an estimate based on the Annual Report Fiscal Year 2012 (2014), http:// aspe.hhs.gov/hsp/14/indicators/rpt_indicators.pdf. average number of employees at State-level www2.ed.gov/about/reports/annual/rsa/2012/rsa- 358 From the burden analysis contained in the Department of Labor equivalents. These same 2012-annual-report.pdf. ETA WIOA Final Rule, supra note 309.

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minimum wage. The Department 382 U.S. Department of Labor, Employment and 359 This number is an estimate based on the adjusted the wage rates using a loaded Training Administration, Reentry Employment average number of full-time employees from Opportunities (REO) (updated April 2015), http:// wage factor to reflect total fourteen local boards multiplied by the number of www.doleta.gov/REO/trainingtowork_grantees.cfm. compensation, which includes health recipients. The fourteen local boards include three 383 from North Carolina, three from West Virginia, one PY 2011, supra note 381, at 6. and retirement benefits. For these State 384 from Virginia, three from Washington, three from This number is an estimate based on the and local sectors, the Department used Wisconsin, and one from Illinois. average number of full-time employees at grantee a loaded wage factor of 1.57, which organizations (17) multiplied by the average 360 U.S. Department of Labor, Employment and number of full-time employees at 11 Training to represents the ratio of average total Training Administration, PY 2012 WIA Trends Over Work 2 grantees (32.64). compensation to average wages in Time (December 2013), http://www.doleta.gov/ 385 406 performance/results/pdf/PY2012WIATrends.pdf. U.S. Department of Labor, Employment and 2015. The Department multiplied the (hereinafter ‘‘WIA Trends over Time’’). Training Administration, Overview of the H–1B loaded wage factor by each occupational Technical Skills Training (TST) Grants (May 2012), 361 From the burden analysis contained in the category’s median wage rate to calculate http://www.doleta.gov/business/pdf/H-1B_TST_R1- ETA WIOA Final Rule, supra note 309. R2_Grant_Summaries_Final.pdf. an hourly compensation rate. The 362 WIA Trends over Time, supra note 360, at 26. 386 U.S. Department of Labor, Employment and Department used the hourly 363 This number is an estimate based on the Training Administration, Overview of the H–1B compensation rates presented in Table 2 average number of employees at five different Technical Skills Training (TST) Grants (May 2012), extensively throughout this document to community colleges multiplied by 57 (the 50 states, http://www.doleta.gov/business/pdf/H-1B_TST_R1- estimate the labor costs of each the District of Columbia, and American Samoa, R2_Grant_Summaries_Final.pdf. This is the most Guam, Northern Mariana Islands, Puerto Rico, recent data available and assumes no variation from provision. The Department assumes that Palau, and U.S. Virgin Islands). One college each year to year of total national programs, although the beneficiaries would be paid at least the came from the following states: Alabama, North names of the individual grant programs may shift federal minimum wage and therefore, Carolina, Virginia, Kentucky, and Colorado. from year to year. Similar grant activities continue 364 we used the Federal minimum wage rate WIA Trends over Time, supra note 360, at 26. from year to year, even if they are not these same to calculate the estimated costs to 365 From the burden analysis contained in the grants. ETA WIOA Final Rule, supra note 309. 387 Id. This number is an estimate based on the beneficiaries throughout this 407 366 WIA Trends over Time, supra note 360, at 26. total number of each grantee’s projections. analysis. However, the Department 367 This is an estimate based on the assumption 388 This number is an estimate based on the did not multiply the loaded wage factor that there is usually one point of contact per one- average number of full-time employees at six by the federal minimum wage to stop. U.S. Department of Labor, Employment and grantees (21.5) multiplied by the number of calculate an hourly compensation rate Training Administration, Regional, State, and Local recipients (36). for beneficiaries because they are not Contacts (updated February 2016), http:// 389 Mathematica Policy Research, Evaluation of wdr.doleta.gov/contacts/. the Jobs and Innovation Accelerator Challenge considered to be employed. 368 U.S. Department of Labor, Job Corps, PY 08: Grants: Interim Findings on Multiagency The Department assumes Equal U.S. Department of Labor Job Corps Annual Report, Collaboration and Cluster Process (August 2015), Opportunity Officers are managers as a http://www.jobcorps.gov/Libraries/pdf/ https://www.mathematica-mpr.com/our- proxy for their specific wage rates. This py08report.sflb (hereinafter ‘‘PY 08’’). publications-and-findings/publications/evaluation- 369 Workforce System Results, supra note 344, at of-the-jobs-and-innovation-accelerator-challenge- 401 This number is based on the average number 3. grants-interim-findings-on-multiagency (hereinafter of employees at twenty-three grantees multiplied by 370 ‘‘Mathematica JIAC’’). Job Corps Operators, Job Corps Outreach and the number of grantees. 390 U.S. Department of Labor Employment and Admissions Operators, and Job Corps national 402 This number was provided by the Training Administration, Overview of the H–1B Jobs training contractors/Career Transition Services Apprenticeship Program Office at the Department of and Innovation Accelerator Challenge (Jobs Operators serve the same beneficiaries, so they are Labor. only counted once. Accelerator) Grants, http://www.doleta.gov/ 403 U.S. Department of Labor, Employment and 371 business/pdf/H-1B_Jobs_Accelerator_R1-R2_ This number is an estimate based on the Training Administration, Registered Apprenticeship Project_Summaries_FINAL.pdf. assumption that there twenty-five employees at National Results: Fiscal Year 2015 (updated 391 each of the Job Corps centers. Mathematica JIAC, supra note 389, at x. December 2016), http://doleta.gov/oa/data_ 372 Job Corps Operators, Job Corps Outreach and 392 This number is an estimate based on the statistics.cfm. In FY 2015, more than 197,500 Admissions Operators, and Job Corps national average number of full-time employees at six individuals nationwide entered the apprenticeship training contractors/Career Transition Services grantees. system. We estimate in FY 2015, 7.1 percent (14,023 Operators utilize the same employees, so they are 393 U.S. Department of Labor, Employment and active female apprentices/197,500 total active only counted once. Training Administration, FY 2015 Congressional apprentices in the Registered Apprenticeship 373 PY 08, supra note 368, at 13. Budget Justification, http://www.dol.gov/dol/ Partners Information Management Data System 374 PY 08, supra note 368, at 13. budget/2015/PDF/CBJ-2015-V1-04.pdf. (RAPIDS) database) of active apprentices were 375 U.S. Department of Labor, Employment and 394 Workforce System Results, supra note 344, at women. 404 Training Administration, Senior Community 3. This number was derived from adding the U.S. Census Bureau, Statistics about Business Service Employment Program (updated March number of beneficiaries of the Indian and Native Size (including Small Business) from the U.S. 2016), http://www.doleta.gov/seniors/. American Adult Program and the program for Census Bureau (updated August 2015), http:// www.census.gov/econ/smallbus.html. This number 376 Workforce System Results, supra note 344, at Indian and Native American Youth. is an estimate based on the average number of paid 3. 395 This number is an estimate based on the employees per firm (4.43) multiplied by the number 377 WIA Trends over Time, supra note 360, at 26. assumption that American Indian and Alaskan Natives make up 1.6 percent of the total number of of recipients. 378 This number was calculated based on the total 405 non-Federal full-time employees as with the total Department of Labor, Bureau of Labor active National Emergency Grant Awards by state population. Statistics, May 2015 National Occupational (as of August 2014) obtained from the Workforce 396 Employment and Wage Estimates (updated March Investment Act Standardized Record Data U.S. Department of Labor, Employment and _ Training Administration, National Farmworker Jobs 2016), http://www.bls.gov/oes/current/oes nat.htm. (WIASRD) system by the Employment and Training 406 Program (updated February 2016), http:// Discerning the number of State and local- Administration of the U.S. Department of Labor. _ sector employees and private-sector employees at 379 www.doleta.gov/Farmworker/html/NFJP WIA Trends over Time, supra note 360, at 26. factsheet.cfm. the local level is difficult; therefore, the Department 380 used the State and local-sector loaded wage factor This number is an estimate based on the 397 Workforce System Results, supra note 344, at (1.57) instead of the private-sector wage factor average number of full-time employees from 3. fourteen boards. The fourteen boards include three (1.43) for all the employees to avoid 398 This number is an estimate based on the from North Carolina, three from West Virginia, one underestimating the costs. For the State and local average number of full-time employees at state-level from Virginia, three from Washington, three from multiplier see Department of Labor, Bureau of Labor Department of Labor equivalents multiplied by the Wisconsin, and one from Illinois. Statistics, Employer Cost and Employee number of grantees. 381 U.S. Department of Labor, Employment and Compensation (June 2016), http://www.bls.gov/ 399 U.S. Department of Labor, Employment and Training Administration, Notice of Availability of news.release/ecec.nr0.htm. Training Administration, FY 2016 Department of Funds and Solicitation for Grant Applications for 407 The cost to beneficiaries may be Labor Budget in Brief, http://www.dol.gov/dol/ underestimated because some of beneficiaries are in Reintegration of Ex-Offenders (RExO) Adult budget/2016/PDF/FY2016BIB.pdf. Generation 5 (January 2012), http:// the States that have a higher State minimum wage 400 Workforce System Results, supra note 344, at www.doleta.gov/grants/pdf/sga_dfa_py_11_02_ than the federal minimum wage. 3. final_1_11_2012.pdf (hereinafter ‘‘PY 2011’’).

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assumption is based on our experience Department is aware that administrative administrative support staff that would with recipients combined with the support workers may perform some of be used for the various functions, this language in this final rule in which the the functions where the need for analysis uses the wages of computer Department states that the EO Officer computer programmers is indicated. programmers in estimating this final must report directly to the Governor or However, because there are currently no rule costs, thereby providing an upper the chief operating officer or equivalent data to indicate the proportion of bound of cost for these functions. of the recipient.408 Furthermore, the computer programmer versus

TABLE 2—HOURLY COMPENSATION RATES [2015 Dollars]

Median Loaded Hourly Position hourly wage compensation wage factor rate

A B C = A × B

Managers 409 ...... $46.99 1.57 $73.77 Computer Programmers 410 ...... 38.24 ...... 60.04 Beneficiaries 411 ...... 7.25 ...... 7.25

4. Subject-by-Subject Benefit-Cost obligations and new requirements with the new requirements. Therefore, Analysis contained in this final rule. the Department estimates that it will take 4 hours for each EO Officer to read The Department derives its estimates Discussion of Impacts below by comparing the existing the rule. The Department estimates that program baseline, that is, the program In this section, the Department each recipient will have one EO Officer benefits and costs estimated as a part of presents the costs associated with the that will become familiar with the new the 1999 and 2015 rules to the new new requirements of the regulations. requirements. Consequently, the requirements of the final rule.412 This final rule revises 29 CFR part 38, estimated burden for rule Calculated cost estimates may not issuing new regulations that set forth familiarization for these EO Officers is × 417 replicate or sum due to rounding. the requirements that recipients must 137,836 hours (34,459 4 hours). The The Department emphasizes that meet in fulfilling their obligations under Department calculates the total many of this final rule provisions are Section 188 of WIOA to ensure estimated cost as $10,168,754 (137,836 also existing requirements under WIOA. nondiscrimination and equal × $73.77/hour, difference due to For example, 29 CFR 38.5 prohibits opportunity in WIOA Title I federally rounding).418 recipients from excluding an individual assisted programs, services, aid, and The following is a description of from participation in, denial of the activities. There will be approximately additional costs and burdens resulting benefits of, discrimination in or denial 34,459 recipients annually who will from this final rule. It follows the of employment in the administration of serve approximately 56,355,850 organization of this final rule for ease of or in connection with, any WIOA Title beneficiaries annually with reference. I financially assisted program or activity approximately 881,009 non-federal Subpart A—General Provisions on the ground of race, color, religion, employees of recipients annually based sex, national origin, age, disability, on our informed estimates.414 Discrimination Prohibited Based on Pregnancy § 38.8 political affiliation or belief, and for Cost of Regulatory Familiarization beneficiaries only, citizenship status or The final rule includes § 38.8 titled participation in any WIOA Title I- Agencies are required to include in ‘‘Discrimination prohibited based on financially assisted program or activity. the burden analysis the estimated time pregnancy.’’ One of the requirements of This final rule retains these it takes for recipients to review and this section is—in addition to requiring requirements, but revises the language understand the instructions for that recipients not discriminate against to make it easier to read, and also compliance.415 Based on its experience an individual based on pregnancy, provides separate sections in the rule with recipients’ compliance with the childbirth or related medical defining discrimination based on laws the Civil Rights Center enforces, conditions—to require that recipients in national origin, sex, pregnancy and and the mandate of the existing and certain situations provide reasonable citizenship status to aid recipients in revised regulations that each recipient accommodations or modifications to a meeting their obligations.413 has an EO Officer,416 the Department pregnant applicant or participant or Accordingly, this regulatory analysis believes that EO Officers at each employee who is temporarily unable to focuses on ‘‘new’’ costs that can be recipient will be responsible for participate in some portions of a WIOA attributed to revisions of existing understanding or becoming familiar Title I-financially assisted training

408 See §§ 38.28–38.31. 411 This is the current federal minimum wage. 29 416 See 29 CFR 38.23 (2015 rule); § 38.28 (this 409 U.S. Department of Labor, Bureau of Labor U.S.C. 206(a)(1)(C). final rule). Statistics, Occupational Employment Statistics 412 As previously noted, the 2015 rule (the 417 This estimate is high because there are some (May 2015), 11–1021 General and Operations original regulations implementing Section 188 of exceptions to the EO Officer requirement. See, e.g., WIOA at 29 CFR part 38) made no substantive Managers, http://www.bls.gov/oes/current/ § 38.33 (service providers are not required to changes to the 1999 rule (the regulations oes111021.htm. implementing Section 188 of WIA at 29 CFR part designate a recipient-level EO Officer, but are 410 U.S. Department of Labor, Bureau of Labor 37). instead monitored by the EO Officer of the Statistics, Occupational Employment Statistics 413 See §§ 38.9, 38.7, and 38.11. Governor or local area grant recipient). (May 2015), 15–1131 Computer Programmers, 414 See Table 1 for a breakdown of these numbers. 418 Throughout this final rule, the Department http://www.bls.gov/oes/current/oes151131.htm. 415 See 5 CFR 1320.3(b)(1)(i). assumes that EO Officers are managers.

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program or activity because of Registered Apprenticeship programs Based on these data, the Department pregnancy, childbirth, or related and a small percentage of the female estimates the approximate number of medical conditions, when such students who will receive Job Corps female beneficiaries and employees in accommodations or modifications are Center services annually may need (1) eligible training provider programs provided, or are required to be accommodations. and on-the-job training programs, (2) Job provided, by a recipient’s policy or by The Department estimates that, of the Corps Centers and (3) Registered other relevant laws. women who are employees of recipients Apprenticeship Programs who are To determine the burden of this or participants in training programs or pregnant in a given year. Following the accommodation provision, the in Job Corps Centers, 21 percent work in analysis adopted by the Office of Department estimated the number of or are in training for job categories likely Federal Contract Compliance Programs beneficiaries and the number of to require accommodations that might (OFCCP) to estimate similar costs, the employees of recipients who may need involve more than a de minimis cost.419 Department turned to data from the U.S. an accommodation during pregnancy in Because these data about employees Census. The U.S. Census American Fact a given year. No specific data sets detail of recipients or participants in training Finder does not report on pregnancy, the characteristics of these beneficiaries programs do not indicate gender but does report on births. Census data and employees relating to pregnancy. demographics, the Department used also show whether the mother was in Thus, the Department relied on the data from the BLS that indicate that the labor force. The definition of labor data sets available from the Employment about 47 percent of the workforce is force used by the Census includes and Training Administration (ETA) for female.420 Therefore, the Department individuals in the civilian labor force beneficiaries of WIOA Title I financially estimates that 57,666 (122,693 × .47) who are employed or unemployed, and assisted training programs, including adult women are beneficiaries of eligible the term unemployed, as used by the the Job Corps Program, and estimated training providers and on the job Census, includes those who were the number of recipients’ employees training employers annually.421 In actively looking for work during the last based on data sets available for the addition, the Department estimates that four weeks and were available to accept general population and general labor 7.1 percent of active beneficiaries in a job. The Department determined that force. The Department concluded that Registered Apprenticeship programs are this number would be the best data the characteristics of the general labor female, for a total of 14,023 (197,500 × available to use to estimate the force are similar to the WIOA Title I .071) adult women in program year percentage of female participants in financially assisted workforce. 422 programs and activities receiving Not every pregnant employee of a 2015. Moreover, the Department financial assistance from Title I of recipient in the WIOA Title I financially estimates that there are 43,809 girls and WIOA as well as employees of WIOA assisted workforce will require an women who are annual beneficiaries of × Title I financially assisted programs and accommodation that might involve more the Job Corps program (109,523 423 activities who are pregnant in a given than a de minimis cost. In fact, the .40). year. Department concluded that most will In addition, the Department estimates not. Many will have no medical the number of individuals employed by As the Department concludes these condition associated with their recipients to be 528,303 non-federal are the best data available, the pregnancies that require such employees of eligible training providers Department used the ratio of women in accommodation. Providing light duty or and on-the-job training programs, the labor force who gave birth within accommodations for pregnancy Registered Apprenticeship programs, the last year to the total female labor generally involves adjusting work and Job Corps Centers (439,936 + 85,317 force as an approximate pregnancy rate schedules or allowing more frequent + 3,050). Because these data do not of women in the workforce. Based on breaks, both of which the Department indicate gender demographics, the this approach, the Department estimates concluded will incur little to no Department again used data from the that the pregnancy rate for women in additional cost in most cases. Bureau of Labor Statistics that indicate the workforce is approximately 4.7 For those who do have such that 47 percent of the workforce is percent.424 conditions, however, the positions held female. Using these assumptions, there Training Program Beneficiaries by employees or training opportunities are 248,302 (528,303 × .47) adult women that beneficiaries may participate in that non-federal employees of recipients. As calculated above, approximately require such accommodation generally 57,666 women annually participate in involve physical exertion or standing; 419 This analysis is similar to that conducted by eligible training provider or on-the-job such positions are likely to be found in OFCCP in its final sex discrimination rule. OFCCP training provider programs that receive the occupational categories of craft based this estimate on data from the Employer WIOA title I financial assistance. Of this Information Report EEO–1. See OFCCP Sex number, using the pregnancy rate data workers, operatives, laborers, and Discrimination Final Rule, supra note 19, at 39145– service workers. The majority of 46. above, 2,710 women might be pregnant × employees of recipients and 420 U.S. Department of Labor, Bureau of Labor annually (57,666 .047). The beneficiaries of WIOA Title I financial Statistics, Labor Force Statistics from the Current Department estimates that no more than Population Survey (updated February 2016), http:// × assistance will not be undertaking 21 percent, or 569 women (2,710 .21), www.bls.gov/cps/cpsaat11.htm. would be participating in job training employment or training requiring 421 From the burden analysis contained in the accommodations for pregnancy-related ETA WIOA Final Rule, supra note 309. categories likely to require medical conditions. As stated above, 422 In 2015, 7.1 percent of active beneficiaries in providing light duty or accommodation the Registered Apprenticeship program were 424 U.S. Census Bureau, American Fact Finder, female. Registered Apprenticeship Partners Women 16 to 50 Years Who Had a Birth in the Past for pregnancy typically involves Information Management Data System (RAPIDS) 12 Months by Marital Status and Labor Force adjusting schedules or allowing more managed by Department of Labor staff only. Status, 2011 to 2013 American Community Survey frequent breaks at little or no additional 423 Forty percent of the students benefiting from 3-Year Estimates, http://factfinder.census.gov/ cost. However, a small percentage of the Job Corps programs annually are girls and young faces/tableservices/jsf/pages/ women. See Department of Labor, Job Corps, productview.xhtml?pid=ACS_11_3YR_ adult women who will annually receive Student Outcomes/Who Job Corps Serves (August B13012&prodType=table#. The data table reports training from eligible training providers, 2015), http://www.jobcorps.gov/libraries/pdf/who_ birth rates for women in the labor force at 4.7 on-the-job training programs or job_corps_serves.sflb. percent.

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accommodations that might involve that requires physical exertion or to our previous estimations, 50 percent more than a de minimis cost. standing for long periods of time, so at (1,651) may require some type of an most 143 (679 × .21) Job Corps students accommodation or light duty.431 Registered Apprenticeship Beneficiaries may be participating in jobs training The types of accommodations needed As calculated above, approximately categories likely to require during pregnancy also vary. They range 14,023 women benefit annually from accommodation that might involve more from time off for medical appointments Registered Apprenticeship programs. Of than de minimis cost. and more frequent breaks to stools for this number, using the pregnancy rate sitting and assistance with heavy data above, 659 (14,023 × .047) women Non-Federal Employees of Recipients lifting.432 Reports by the W.K. Kellogg might be pregnant in a given year. Of The Department determined that there Foundation on women’s child bearing this number, the Department estimates are approximately 528,303 non-federal experiences and the National Women’s that no more than 21 percent, or 138 employees who work for recipients that Law Center on accommodating pregnant women (.21 × 659), would participate in operate or otherwise provide training workers show that the costs associated job training categories likely to require programs, Job Corps Programs, and with accommodating pregnant workers accommodations that might involve Registered Apprenticeship programs. are minimal and generally involve more than a de minimis cost. Because these data do not indicate schedule adjustments or modified work gender demographics, the Department duties.433 Job Corps Program Participants used data from the BLS that indicate One study found that, when faced Job Corps serves youth and young that 47 percent of the workforce is with a pregnancy-related need for adults between the ages of 16 and 24.425 female.428 Because approximately accommodation, between 62 percent to Forty percent of Job Corps students 248,302 of the employees of recipients 74 percent of pregnant women asked (approximately 43,809) are female.426 are women, 11,670 (248,302 × .047) may their employers to address their needs. Applying the .047 rate of pregnancies be pregnant annually based on the data The study further found that 87 percent used above to all female Job Corps described above. The Department to 95 percent of the pregnant women students indicates that approximately anticipates that no more than 21 who requested an adjustment to their 2,059 of them may become pregnant in percent,429 or 2,451 women (.21 × work schedule or job duties worked for a given year (43,809 × .047). The Job 11,670) of these pregnant employees employers that attempted to address Corps Program has three stages through who are trainers at one-stop career those requests. The study specifically which participants move: Career centers or at Job Corps Centers, may be found that 63 percent of pregnant Preparation Period, Career Development participating in job training categories women who needed a change in duties, Period, and Career Transition Period. likely to require accommodations that such as less lifting or more sitting, asked Not all of those students will be in the might involve more than a de minimis their employers to address that need, Career Development Period of their Job cost. and 91 percent of those women worked Corps Center experience, which is the Therefore, a total of 3,301 women for employers that sought to address stage when they will participate in (569 + 138 + 143 + 2,451, difference due their needs.434 Based on this study, the technical training and will be most to rounding) who are beneficiaries or Department concluded that most likely to need accommodations that non-federal employees of WIOA Title I employers and training providers do might involve more than de minimis financially assisted programs may be provide some form of accommodation to costs.427 participating in job training categories employees and participants when At any given time, no more than a likely to require accommodations that requested. third of students are in the Career might involve more than a de minimis To determine the cost of Development Period; thus, cost. accommodation or light duty associated with this final rule, the Department approximately 679 (2,059 × .33) Limited Need for Accommodations pregnant young women are in this part considered the types of light duty or Reports by the National Institutes of of their educational experience accommodations needed for both Health indicate that the incidence of annually. Of this number, the participants in WIOA Title I programs medical conditions during pregnancy Department estimates that no more than and activities, and employees of that require accommodations ranges 21 percent participate in job training recipients. Generally, providing light from 0.5 percent (placenta previa) to 50 duty or accommodation for pregnancy percent (back issues).430 Thus, the 425 U.S. Department of Labor, Job Corps, involves adjusting work schedules or Eligibility Information (June 2013), http:// Department estimates that of the allowing more frequent breaks. The www.jobcorps.gov/AboutJobCorps/program_ approximately 3,301 (569 job training Department concludes that providing design.aspx. beneficiaries + 138 Registered these accommodations will result in 426 U.S. Department of Labor, Employment & Apprenticeship beneficiaries + 143 Job little to no additional cost. Training Administration, Workforce System Results Corps beneficiaries + 2,451 non-federal for the Quarter Ending June 30, 2013, available at https://www.doleta.gov/performance/results/pdf/ employees of recipients, difference due 431 These are the same data used in the OFCCP workforcesystemresultsjune20_2013.pdf. Annual to rounding) women beneficiaries and Sex Discrimination NPRM, supra note 102. data for the four quarters ending in June 2013. employees in positions that may require 432 Stephen Bernard, Professor of Sociology, Includes the number of students active on the start physical exertion or standing according Indiana University, Unlawful Discrimination date, students enrolled during the timeframe, Against Pregnant Workers and Workers with graduates separated before the start date and in the Caregiving Responsibilities: Meeting of the U.S. placement service window during the time frame, 428 U.S. Department of Labor, Bureau of Labor Equal Employment Opportunity Commission and former enrollees separated before the start date Statistics, Women in the Labor Force: A Databook (February 15, 2012), http://www.eeoc.gov/eeoc/ and in the placement service window during the (Feb. 2013), http://www.bls.gov/cps/wlf-databook- meetings/2-15-12/transcript.cfm. period. 2012.pdf. 433 National Women’s Law Center & A Better 427 Therefore, we focused on estimating the cost 429 See OFCCP Sex Discrimination NPRM, supra Balance, It Shouldn’t Be a Heavy Lift: Fair of providing accommodations during the Job Corps note 102, at 5262. Treatment for Pregnant Workers (2013), http:// Career Development Period. Although participants 430 S. Malmqvist et al., Prevalence of low back www.nwlc.org/sites/default/files/pdfs/pregnant_ may need accommodations during the Career and pelvic pain during pregnancy (Abstract), J. workers.pdf. Preparation and Career Transition Periods as well, Manipulative Physiological Therapy, National 434 Eugene Declerq et al., W.K. Kellogg we expect most substantial accommodation Center for Biotechnology Information (2012), http:// Foundation, Listening to Mothers III: New Mothers requests in the Career Development Period. www.ncbi.nlm.nih.gov/pubmed/22632586. Speak Out, 36 (2013).

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Additional accommodations may because only employees employed in In addition, provisions are included involve either modifications to work the administration of or in connection in § 38.9(g) regarding a recipient’s and training environments (e.g., with WIOA Title I programs or activities obligations to provide translation of providing a stool for sitting rather than are covered by this rule.437 Moreover, to vital information. Section 38.9(g)(1) standing) or to job duties (e.g., lifting the extent a pregnancy-related medical addresses that obligation for languages restrictions). In making such condition is a disability, recipients with spoken by a significant number or accommodations, recipients have 15 or more employees are also already portion of the population eligible to be discretion regarding how they would covered by similar requirements in the served, or likely to be encountered, make such modifications. For example, ADA, as amended by the ADAAA. stating that ‘‘a recipient must translate a recipient may provide an employee or CRC received one comment that vital information in written materials participant with an existing stool, or a addressed the economic analysis of this into these languages and make the recipient may have others assist when provision in the NPRM. A coalition of translations readily available in hard heavy lifting is required. To determine eighty-six women’s, workers’, and civil copy, upon request, or electronically the cost of such accommodations, the rights organizations agreed with the such as on a Web site.’’ Department referred to the Job Department’s estimation of the burdens Importantly, written training Accommodation Network (JAN), which on recipients of accommodating materials offered or used within reports that the average cost of pregnant applicants, participants, and employment-related training programs accommodation is $500.435 employees. as defined under this part are excluded from these requirements. Section As stated above, 63 percent of Discrimination Prohibited Based on 38.9(g)(2) addresses the obligations of pregnant women who needed a change National Origin, Including Limited recipients for languages not spoken by in duties related to less lifting or more English Proficiency § 38.9 sitting requested such an a significant number or portion of the accommodation from their employers. This final rule includes language population eligible to be served, or Thus, the Department estimates that regarding the limited circumstances likely to be encountered, stating that ‘‘a 1,040 women (1,651 × .63) who may when limited English proficient (LEP) recipient must take reasonable steps to require accommodations would have individuals may elect to use their own meet the particularized language needs made such a request, and 91 percent, or interpreters and how that choice must of LEP individuals who seek to learn 946 of those requests (1,040 × .91) be documented by the recipient. In about, participate in, and/or access the would have been addressed. Thus, this § 38.9(f)(2)(ii), this final rule states that aid, benefit, service, or training that the final rule requires recipients to an accompanying adult may interpret or recipient provides.’’ This section also accommodate the remaining 9 percent facilitate communication when ‘‘the allows that vital information may be of pregnant women whose needs were information conveyed is of minimal conveyed orally if not translated. The not addressed. The Department importance to the services to be requirement to take reasonable steps to calculates that the cost, accounting for provided or when the LEP individual provide services and information in specifically requests that the pregnant women who made requests appropriate languages was contained in accompanying adult provides language and the additional women who could the DOL LEP Guidance issued in assistance, the accompanying adult 438 make requests, will be $47,000 2003 and was also required by the agrees to provide assistance, and ((1,040¥946 = 94) = 94 × $500, 1999 and 2015 rules, which addressed reliance on that adult for such difference due to rounding). This is a a recipient’s language access assistance is appropriate under the first-year cost and a recurring cost. obligations.439 The Department concludes that this circumstances.’’ This final rule goes on The Department was unable to assess cost estimate may be an overestimate to state that ‘‘[w]hen the recipient what information each recipient will permits the accompanying adult to because recipients with 15 or more determine is vital, and thus needs to be provide such assistance, it must make employees are covered by a similar translated, or what languages they and retain a record of the LEP requirement in Title VII of the Civil would be translated into, because both individual’s decision to use their own Rights Act; because 36 States have factors are based on individual recipient interpreter.’’ assessments. Furthermore, as discussed requirements that apply to employers There are currently no data available with fewer than 15 employees; 436 and in the preamble to § 38.9, the regarding the number of LEP Department has not defined ‘‘significant individuals who are beneficiaries of 435 Beth Loy, Job Accommodation Network, number or portion of the population.’’ Workplace Accommodations: Low Cost, High recipients and the Department was The Department received several Impact (updated September 2015), http:// unable to determine how often an LEP public comments that addressed the askjan.org/media/lowcosthighimpact.html. Given individual will request that an economic analysis of this provision in that there are not accommodation cost data for accompanying adult provide language pregnancy, the Department uses this as an the NPRM. The NPRM requested approximation because it involves modification to assistance, the accompanying adult comment on the potential burden of the work environments including lifting restrictions agrees to provide it, and when reliance requirement to provide language and other relevant factors. on that adult is appropriate. However, services for LEP individuals in their 436 The following States have laws that cover the Department concludes that all of preferred language based on a threshold employers with one employee: Alaska, Colorado, these conditions will be met Hawaii, Maine, Michigan, Minnesota, Montana, (e.g., 5 percent of the population or New Jersey, North Dakota, Oklahoma, Oregon, infrequently, creating a de minimis cost. 1,000 speakers). Several State South Dakota, Vermont, and Wisconsin. One State government commenters indicated that has laws that cover employers with two employees: Massachusetts, Missouri, New Hampshire, and Wyoming. One State has laws that cover employers Virginia. The following States have laws that cover depending on what threshold is with three employees: Connecticut. The following employers with eight or more employees: Kentucky, selected, it could result in a significant States have laws that cover employers with four Tennessee, and Washington. One State has laws cost burden. However, the commenters employees: Delaware, Iowa, Kansas, New Mexico, that cover employers with nine or more employees: did not provide any specific cost New York, Ohio, Pennsylvania, and Rhode Island. Arkansas. One State has laws that cover employers The following States have laws that cover with 12 or more employees: West Virginia. In employers with five employees: California and addition, the District of Columbia and Puerto Rico’s 438 DOL LEP Guidance, supra note 28. Idaho. The following States have laws that cover laws cover employers with one employee. 439 See 29 CFR 37.35 (1999 rule); 29 CFR 38.35 employers with six employees: Indiana, 437 See § 38.2(a)(3). (2015 rule).

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information as they indicated that the translation threshold might place on rule with respect to auxiliary aids and cost would significantly vary with the small covered entities. services are generally not new to these level of language assistance services Moreover, we value the flexibility entities. Other federal statutes such as provided and the frequency with which inherent in the contextualized approach the ADA and the Rehabilitation Act languages would be encountered. we have chosen to assess compliance already contain the same requirements As discussed in the preamble to § 38.9 with the requirement to take reasonable regarding the provision of auxiliary aids above, CRC considered setting steps to provide meaningful access. This and services for individuals with thresholds which would trigger a provision is intended to be a flexible disabilities. Consequently, CRC does not requirement to translate standardized standard specific to the facts of each agree that it imposes any additional vital documents into particular situation. CRC could not determine costs. languages but has not adopted such what information each recipient will thresholds in this final rule. Although determine is vital, and thus needs to be Subpart B—Recordkeeping and Other thresholds may improve access for some translated, or what languages they Affirmative Obligations of Recipients national origin populations, the would be translated into, because both Equal Opportunity Officers approach does not comprehensively factors are based on individual recipient Designation of Equal Opportunity effectuate WIOA’s prohibition of assessments. Providing additional Officers § 38.28 national origin discrimination affecting specificity, at least in this final rule, LEP individuals. Setting thresholds would apply rigid standards across-the- Every Governor must designate an would be both under-inclusive and board to all recipients and thus individual as a State-level Equal over-inclusive, given the diverse range, jeopardize that very goal. Accordingly, Opportunity Officer (EO Officer), who type, and sizes of entities covered by this rule imposes no new obligations in reports directly to the Governor and is Section 188 and the diverse national this regard. responsible for State Program-wide origin populations within the service The NPRM proposed that recipients coordination of compliance with the areas of recipients’ respective programs take appropriate steps to ensure that equal opportunity and and activities. For instance, a threshold communications with individuals with nondiscrimination requirements. requiring all covered entities, regardless disabilities are as effective as Several commenters indicated this of type or size, to provide language communications with other individuals. requirement would not only increase assistance services in languages spoken One commenter suggested that this monitoring efforts, but also require by 5 percent of a county’s LEP requirement may impose additional increases in staffing. They also population could result in the provision costs and result in providers not listing indicated that the requirement to of language assistance services in more their training programs. designate an individual who reports languages than the entity would Although proposed § 38.15 revised directly to the Governor is an unfunded otherwise be required to provide under the title of § 38.9 in the 2015 rule to mandate. its obligation in § 38.9(g). This threshold ‘‘Communications with individuals The Department disagrees with the would apply regardless of the number of with disabilities’’ and revised paragraph assertion that this requirement would individuals with limited English (a) and (b) to be consistent with DOJ’s result in an increase in staffing or that proficiency who are eligible to be served ADA Title II regulations, no new it is an unfunded mandate. Governors or likely to be encountered by the substantive requirements were outlined retain flexibility as to whom to recipient’s programs or activities and from those contained in the 1999 and designate as the State-level EO Officer, regardless of the recipient’s operational 2015 rules. As with WIA Section 188, a which includes the ability to restructure capacity. Similarly, this threshold could recipient must take appropriate steps to the current EO Officer position to meet leave behind significant numbers of ensure that communications with the requirements of §§ 38.28 through individuals with limited English individuals with disabilities are as 38.31. The requirement that recipients, proficiency served by the recipient’s effective as communications with including Governors, designate an EO programs or activities, who others. A recipient must furnish Officer is longstanding and exists under communicate in a language that appropriate auxiliary aids and services the 2015 rule, just as it existed under constitutes less than 5 percent of the where necessary to accomplish this. The the 1999 rule. In practice, most county’s limited English proficient type of auxiliary aid or service Governors have empowered a designee, population. necessary to ensure effective typically, the director(s) of a State Although some federal regulations set communication varies in accordance cabinet agency or agencies that thresholds, those regulations address with the method of communication oversee(s) labor and workforce entities or programs of similar sizes and used by the individual; the nature, programs, to appoint an EO Officer often types. 440 In comparison, WIOA and this length, and complexity of the times referred to as the State EO Officer. part regulate more diverse types of communication involved; and the That EO Officer reported to the State recipients with potentially more diverse context in which the communication is agency cabinet director and, in practice, limited English proficient populations. taking place. In determining what type often limited oversight to the EO CRC is concerned that significant of auxiliary aid and service is necessary, Officer’s own specific agency. However, limited English proficient populations a recipient must give primary the Governor has obligations beyond the might receive no or inadequate language consideration to the request of an duties of a recipient to ensure assistance services under a threshold- individual with a disability. Thus, the nondiscrimination and equal based regulation. CRC is also concerned provision of auxiliary aids and services opportunity across all State Programs about the burden an across-the-board is always individually based and including State Workforce Agencies. depends on a number of factors. Indeed, under certain circumstances the 440 See 45 CFR 155.205(c)(2)(iii), (iv) (regarding The Department recognizes changes to Governor can be held jointly and HHS’s regulation of health care exchanges); 26 CFR WIOA expanded the applicability of severally liable for all violations of these 1.501(r)–4(b)(5)(ii) (Department of the Treasury’s CRC’s requirements to cover additional nondiscrimination and equal regulation regarding hospital organizations and financial assistance policies); 7 CFR 272.4(b) entities, and that there may be new opportunity provisions under § 38.52, (Department of Agriculture’s Supplemental entities not previously covered. which includes State Workforce Nutrition Assistance Program). However, the requirements of this final Agencies as defined in § 38.4(lll), and

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State Programs as defined in § 38.4(kkk). poster stating that the CRC will accept employee hires rate per year for a total The final rule’s requirement serves to complaints via U.S. mail and email at an of 166,511 new employees in the second emphasize the importance of the address provided on the CRC Web and future years (881,009 (total number Governor’s obligations, and ensure that site.443 of recipients’ employees) × .189). The a State-level EO Officer can carry out This final rule requires that the notice Department estimates that it will take an those obligations—with authority be placed in employee and participant EO Officer 15 minutes to disseminate flowing from the Office of the Governor handbooks, including electronic and the notice to recipients’ new employees and with the staff and resources paper forms if both are available, each year, which equates to a burden of sufficient to carry out those provided to each employee and placed 41,628 hours (166,511 × .25 hours) and requirements. in each employee’s file (both paper and the total recurring cost to be $3,070,879 The changes in the rule do not electronic, if both are available).444 (41,628 hours × $73.77, difference due impede the flexibilities available for a The Department estimates that it to rounding). The first-year operation Governor to determine how the equal would take each EO Officer and maintenance cost for printing the opportunity program works in the State, approximately 15 minutes to print out two copies of the notice (one to and is described in the Governor’s the notices and another 15 minutes to disseminate to the employee and one to Nondiscrimination Plan. For example, ensure that new notices and posters are place in their file) for the first year is the Governor can designate a new State- disseminated. Dissemination includes $140,961 (881,009 (total number of level EO Officer or restructure the posting the notice in conspicuous recipients’ employees) × $0.08 × 2 current EO Officer position as the locations in the physical space of the copies) and the second and future years’ Governor’s State-level EO Officer. As recipient and posting it on appropriate operation and maintenance cost is noted above, the rule does not change Web pages on the recipient’s Web site. $26,642 (166,511 new employees × the definition of ‘‘Governor,’’ and an Consequently, the estimated first-year $0.08 × 2 copies) for copies made for individual designated to act on the dissemination burden is 17,230 hours new employees each year. Governor’s behalf may also carry out the (34,459 recipients × 1 EO Officer × .5 responsibilities of the Governor under hours). The Department calculates the Data and Information Collection, this part. In that case, the Governor’s total estimated first-year and Analysis, and Maintenance § 38.41 authority to ensure equal opportunity dissemination cost for the EO Officers as × Paragraph (a)(2) adds ‘‘limited English would flow to the Governor’s designee $1,271,094 (17,230 hours $73.77/ proficiency’’ and ‘‘preferred language’’ and, in turn, to the State-level EO hour). The Department also estimates to the list of categories of information Officer. The State-level EO Officer that each EO Officer will make 30 that each recipient must collect about would then have the authority necessary copies of the notice (assuming 10 copies each applicant, registrant, participant, to carry out the Governor’s equal each in three languages) for posting in and terminee. The rule does not apply the EO Officer’s establishment for a opportunity obligations. these data collection obligations to first-year operational and maintenance applicants for employment and Recipients’ Obligations To Publish an cost of $82,702 (34,459 × $.08 × 30). Equal Opportunity Notice § 38.36 Additionally, the Department assumes employees of recipients because the This final rule includes changes to the it will take a computer programmer 30 obligation regarding limited English specific language provided by the minutes to place the notice on proficient (LEP) individuals does not Department for recipients to use in the appropriate Web pages of the recipient’s apply to those categories of individuals. equal opportunity notice and poster that Web site. The Department assumes that This change is intended to ensure that they are required to post prominently in each recipient has one Web site. The recipients collect information related to physical locations and on the recipient’s Department calculates the first-year serving LEP individuals. The Web site.441 The changes include notice burden to update recipients’ Web sites Department concludes that these terms that communications with individuals to be an additional 17,230 hours (34,459 best capture this information as to LEP with disabilities must be as effective as × 1 programmer × .5 hours) and the first- individuals and are also used by several 446 communications with others and of the year costs for recipients to update their States with language access laws. right to request auxiliary aids and Web sites to be an additional $1,034,404 The Department calculates the cost of services at no cost; a statement that (17,230 × $60.04/hour, difference due to adding this category to the list of discrimination on the basis of sex rounding). The Department also categories of information that each includes discrimination on the basis of assumes that it will take an EO Officer recipient must collect about each pregnancy, childbirth and related 30 minutes to disseminate to all applicant and participant as de minimis medical conditions, sex stereotyping, employees of recipients a copy of the for the recipient because they are transgender status, and gender identity; notice and place a copy in the employee already collecting demographic data and that discrimination on the basis of files. The Department calculates an from beneficiaries in several other national origin may include additional first-year burden for categories and these additions will be discrimination on the basis of limited dissemination to be 17,230 hours added to this existing process. English proficiency.442 Because this (34,459 × .5 hours) and an additional Furthermore, the Department estimates notice and other notices throughout this first-year cost of $1,271,094 (17,230 × that, on average, it will take final rule are required to be provided in $73.77/hour, difference due to beneficiaries 5 seconds to provide LEP English as well as appropriate languages rounding). information including preferred other than English, the Department will Moreover, there is a recurring burden language, where applicable, voluntarily. make translations of this notice each time an employee is hired. The This equates to an annual cost of 445 × available to recipients in the ten most Department assumes an 18.9 percent $567,472 (56,355,850 5 seconds = frequently spoken languages in the U.S. 281,779,250/60 = 4,696,320 minutes/60 443 × other than English. This final rule also Id. = 78,272 hours $7.25/hour). This 444 requires the inclusion of language in the § 38.36(b). provision will go into effect in the third 445 U.S. Department of Labor, Bureau of Labor year. Statistics, state and local government ‘‘hires’’ data 441 §§ 38.35, 38.36(a)(1). for annual average (2015), http://www.bls.gov/jlt/ 442 § 38.35. #news. 446 See supra note 228 and accompanying text.

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For recipients that are not already centers; 448 and (3) establish a consistent Subpart D—Compliance Procedures collecting this information,447 the state-level practice nationwide. It is Notice To Show Cause Issued to a Department estimates that there will be anticipated that this change will Recipient § 38.66 a one-time cost in the third year to each represent a burden to some Governors recipient of 1.5 hours of a computer who are not already interpreting the The new language in § 38.66(b), states programmer’s time to incorporate these term ‘‘periodically’’ in the current that the Director may issue a Notice to new categories into an online form for regulations to require annual oversight. Show Cause to a recipient ‘‘after a Letter of Findings and/or an Initial data collection. The Department The Department anticipates that this Determination has been issued, and concludes that all recipients use change will not impose a burden on all after a reasonable period of time has computer-based data collection States because approximately half of passed within which the recipient methods, and the one-time burden is them are currently conducting this $3,103,212 (34,459 recipients × 1 refuses to negotiate a conciliation × × monitoring annually, pursuant to their agreement with the Director regarding programmer 1.5 hours $60.04/hour, Methods of Administration.449 Thus, the difference due to rounding). the violation(s).’’ The Department made Department estimates that the burden this change to expand the circumstances Required Maintenance of Records by will be imposed on 29 of the 57 States in which the Director may issue a Recipients § 38.43 subject to this requirement that Notice to Show Cause. This final rule currently do not annually monitor their This final rule includes language that seeks to use the Notice to Show Cause recipients for compliance with Section specifies the types of records that need at this later stage because it has been the to be retained by a recipient when a 188 of WIOA. Of the States that do not Department’s experience that, after complaint has been filed, and also conduct annual monitoring, the issuing a letter of findings or initial requires that records be kept if a Department is aware that the monitoring determination, the Governor or other compliance review has been initiated. is conducted every 3 years on average. recipients may agree in principle to Records that must be kept include any Thus, 29 States will need to increase enter into a conciliation agreement that type of hard-copy or electronic record their monitoring from once every 3 resolves the identified violations, but related to the complaint or the years to yearly. then frequently fail to respond to correspondence from the CRC regarding compliance review. Based on the Department’s experience finalizing and signing the agreement. The Department assumes that the only and interaction with several States with With § 38.66(b), the Director could additional burden and associated cost varying populations and geographic issue a Notice to Show Cause prior to will be to identify additional files that sizes, the average amount of time that it issuing a final Determination, providing a recipient must retain beyond 3 years takes each State’s EO Officer and similar Governors and other recipients another if they receive notice of a complaint or managers to conduct this annual opportunity to take the corrective or are under a compliance review. The monitoring is approximately 4,000 remedial actions required by the Department further assumes this cost to hours in total carried out by multiple Director to bring the recipient into be de minimis. people. The additional burden on each compliance before enforcement Subpart C—Governor’s Responsibilities of the 29 States that previously proceedings are initiated. Recipients are To Implement the Nondiscrimination conducted monitoring every 3 years already familiar with the Notice to and Equal Opportunity Requirements of versus every year is estimated to be Show Cause because it is currently the Workforce Innovation and 2,680 hours (4,000 hours × .67) 450 per described and contained in the Opportunity Act (WIOA) State annually or 77,720 for all 29 States implementing regulations found at 29 (2,680 hours × 29 States) annually. The CFR 38.67, so these changes are slight, Governor’s Oversight and Monitoring Department calculates the total and the language is clear in terms of the Responsibilities for State Programs estimated annual cost for States at new circumstances under which the § 38.51 $5,733,739 (29 States × 2,680 hours × Director can issue them. The Section 38.51(b) of the final rule $73.77/hour, difference due to Department estimates that it will issue requires the Governor to monitor on an rounding). at most two additional Show Cause annual basis the compliance of State Notices per year on average as a result Programs with WIOA Section 188 and Governor’s Obligation To Develop and of this change. Based on this, the this part. Under the 2015 rule, Implement a Nondiscrimination Plan Department estimates the burden Governors were required to § 38.54 incurred to be de minimis. ‘‘periodically’’ monitor compliance of This rule changes the name ‘‘Methods Required Elements of a Recipient’s recipients. The new annual monitoring of Administration’’ for the document Complaint Processing Procedures requirement is intended to: (1) Enable described in § 38.54 to § 38.72 the timely identification and ‘‘Nondiscrimination Plan,’’ but retains elimination of discriminatory policies This final rule adds a paragraph the definition and contents of the and practices, thereby reducing the obligating recipients to give document. Since the contents of the number of individuals impacted by complainants a copy of the equal Plan did not change, the change of the discrimination; (2) be consistent with opportunity notice in § 38.35, along the Department’s regulations requiring title of the document was presumed to with other notices already required by annual oversight of one-stop career be incurred in the total cost of the the 1999 and 2015 rules, including issuance of the Plan. written acknowledgement that the 447 Programs providing core and intensive recipient has received a complaint and services through the one-stop delivery system 448 ETA WIOA Final Rule, supra note 309. notice of the complainant’s right to currently collect information regarding LEP status 449 This is based on CRC’s records of reporting representation. This new requirement is and some may be doing so voluntarily; however, we and discussions with EO Officers for the States over designed to ensure that complainants have no way of knowing how many recipients the past few years. overall are currently collecting information from 450 This is based on information from CRC’s are aware of their rights, including that beneficiaries regarding LEP status, so we are experience working with the States and asking they have the option of filing with the including the cost to all recipients for this analysis. several EO Officers these questions. recipient or with CRC, and that they are

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aware of the deadlines applicable to responsible for implementing this complaint. This burden is calculated at filing a subsequent complaint with CRC requirement, to include it in the 17,230 hours (34,459 recipients × .5 if they file initially with the recipient. documents routinely provided to hours) for a first-year total cost of The Department anticipates that this complainants. Based on complaint log $1,271,094 (17,230 hours × $73.77/hour, requirement, which has recipients data from 2003 to 2008, the Department difference due to rounding). provide complainants a copy of the estimates that, on average, each Additionally, the Department calculates notice of rights contained in § 38.35, is recipient will receive one Section 188 that there are first-year and recurring limited to the operational costs of complaint each year. The Department operation and maintenance costs of making additional copies of the notice assumes that EO Officers will handle $2,757 ($0.08 × 34,459) to copy the for this purpose, and the first-year the complaints for recipients and that it equal opportunity notice for personnel cost of 30 minutes of the EO will take them approximately 30 complainants. Officer’s time, who is most likely to be additional minutes to process each

TABLE 3—ANNUAL BURDEN HOURS

Year 4–10 Provision Year 1 Year 2 Year 3 (annual average)

Cost of regulatory familiarization ...... 137,836 0 0 0 Discrimination prohibited based on pregnancy (§ 38.8) ...... 0 0 0 0 Recipients’ obligations to publish equal opportunity notice (§ 38.36) ...... 51,689 41,628 41,628 41,628 Data and information collection, analysis, and maintenance (§ 38.41) ...... 0 0 129,961 78,272 Governor’s oversight and monitoring responsibilities for state programs (§ 38.51) ...... 77,720 77,720 77,720 77,720 Required elements of a recipient’s complaint processing procedures (§ 38.72) ...... 17,230 17,230 17,230 17,230 Operation and maintenance costs ...... NA NA NA NA

Total ...... 284,474 136,577 266,538 214,849

TABLE 4—ANNUAL COSTS

Year 4–10 Provision Year 1 Year 2 Year 3 (annual 10 Year total Annualized Annualized average) with 3% with 7%

Cost of regulatory familiarization ...... $10,168,754 $0 $0 $0 $10,168,754 $1,157,367 $1,353,86 Discrimination prohibited based on preg- nancy (§38.8) ...... 47,000 47,000 47,000 47,000 47,000 47,000 47,000 Recipients’ obligations to publish equal op- portunity notice (§ 38.36) ...... 3,576,593 3,071,053 3,071,053 3,071,053 31,216,066 3,128,591 3,138,321 Data and information collection, analysis, and maintenance (§ 38.41) ...... 0 0 3,670,684 567,472 7,642,989 773,099 782,056 Governor’s oversight and monitoring respon- sibilities for state programs (§ 38.51) ...... 5,733,739 5,733,739 5,733,739 5,733,739 57,337,386 5,733,739 5,733,739 Required elements of a recipient’s complaint processing procedures (§38.72) ...... 1,271,094 1,271,094 1,271,094 1,271,094 1,271,094 1,271,094 1,271,094 Operation and maintenance costs ...... 226,420 29,398 29,398 29,398 491,006 51,823 55,615

Total (Undiscounted)...... 21,023,600 10,152,284 13,822,968 10,719,756 120,037,144 12,162,713 12,380,910

Total with 3% discounting ...... 21,023,600 9,856,586 13,029,473 8,993,323 106,862,919 ......

Total with 7% discounting ...... 21,023,600 9,488,116 12,073,516 7,208,598 93,045,418 ......

B. Paperwork Reduction Act information in accordance with the regulated community created by 451 The purposes of the Paperwork PRA. This activity helps to ensure provisions in the proposed regulations, Reduction Act of 1995 (PRA), 44 U.S.C. that: (1) The public understands the which require the submission of 3501 et seq., include minimizing the collection instructions; (2) respondents information. The information collection paperwork burden on affected entities. can provide the requested data in the requirements must also be submitted to The PRA requires certain actions before desired format; (3) reporting burden the OMB for approval. an agency can adopt or revise a (time and financial resources) is The Department notes that a federal collection of information, including minimized; (4) respondents clearly agency generally cannot conduct or publishing the information collection understand the collection instruments; sponsor a collection of information, and for public comment. and (5) the Department can properly the public is generally not required to As part of continuing efforts to reduce assess the impact of collection respond to an information collection, paperwork and respondent burden, the requirements on respondents. unless it is approved by the OMB under Department conducts preclearance Furthermore, the PRA requires all the PRA and displays a currently valid consultation activities to provide the federal agencies to analyze proposed OMB Control Number. In addition, general public and federal agencies with regulations for potential burdens on the notwithstanding any other provisions of an opportunity to comment on proposed law, no person shall generally be subject and continuing collections of 451 See 44 U.S.C. 3506(c)(2)(A). to penalty for failing to comply with a

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collection of information that does not 13132 regarding federalism, and has reflect industry size differences display a valid Control Number.452 The determined that it does not have properly. An agency must either use the Department obtains approval for ‘‘federalism implications.’’ This rule SBA definition for a small entity or Nondiscrimination Compliance will not ‘‘have substantial direct effects establish an alternative definition, in Information Reporting under Control on the States, on the relationship this instance, for the workforce Number 1225–0077. between the national government and industry. The information collections in this the States, or on the distribution of The Department has adopted the SBA final rule are summarized in the section- power and responsibilities among the definition for the purposes of this by-section discussion of this final rule various levels of government.’’ certification. The Department has in Section II. The Department has D. Unfunded Mandates Reform Act of notified the Chief Counsel for identified that the following proposed 1995 Advocacy, SBA, under the RFA at 5 sections contain information U.S.C. 605(b), and proposes to certify collections: 29 CFR 38.14, 38.16(f), For purposes of the Unfunded that this rule will not have a significant 38.25, 38.27, 38.29, 38.34–38.36, 38.38, Mandates Reform Act of 1995, 2 U.S.C. economic impact on a substantial 38.39–38.43, 38.51, 38.52–38.54, 38.55, 1532, this rule does not include any number of small entities. This finding is 38.69, 38.70, 38.72, 38.73, 38.74, and federal mandate that may result in supported, in large measure, by the fact 38.77. Additional information excess of $100 million in increased that small entities are already receiving collections approved under Control expenditures by State, local, and tribal financial assistance under the WIOA Number 1225–0077 appear in part 37, governments in the aggregate, or by the program and will likely continue to do encompassing similar private sector of $100 million or more. so as articulated in this final rule. nondiscrimination requirements under E. Plain Language Having made these determinations and the Workforce Investment Act (WIA), of pursuant to section 605(b) of the The Department drafted this final rule this title; they will be maintained on a Regulatory Flexibility Act, 5 U.S.C. in plain language. temporary basis while existing WIA 605(b), the Department certifies that this grants remain in effect. F. Effects on Families rule will not have a significant Concurrent with the publication of The undersigned hereby certifies that economic impact on a substantial this final rule, the Department is the final rule would not adversely affect number of small entities. In making this submitting an associated information the well-being of families, as discussed determination, the agency used the SBA collection request to the Office of under section 654 of the Treasury and definition of small business, found at 13 Management and Budget for approval. General Government Appropriations CFR 121.201. Interested parties may obtain a copy free Act of 1999. To the contrary, by better of charge of one or more of the Affected Small Entities ensuring that beneficiaries, including information collection requests job seekers and applicants for This final rule can be expected to submitted to the OMB on the unemployment insurance, do not suffer impact small one-stop center operators. reginfo.gov Web site at http:// illegal discrimination in accessing One-stop operators can be a single entity www.reginfo.gov/public/do/PRAMain. programs, services, and activities (public, private, or nonprofit) or a From the Information Collection Review financially assisted by the Department, consortium of entities. The types of tab, select Information Collection the final rule would have a positive entities that might be a one-stop Review. Then select the Department of effect on the economic well-being of operator include: (1) An institution of Labor from the Currently Under Review families. higher education; (2) an employment dropdown menu, and lookup Control service State agency established under Number 1225–0077. A free copy of the G. Regulatory Flexibility Act and the Wagner-Peyser Act; (3) a requests may also be obtained by Executive Order 13272 community-based organization, contacting the person named in the The Regulatory Flexibility Act (RFA), nonprofit organization, or workforce ADDRESSES section of this preamble. 5 U.S.C. 603, requires agencies to intermediary; (4) a private for-profit The information collections are prepare a regulatory flexibility analysis entity; (5) a government agency; (6) a summarized as follows: to determine whether a regulation will Local Workforce Development Board, Agency: DOL-OASAM. have a significant economic impact on with the approval of the local CEO and Title of Collection: Nondiscrimination a substantial number of small entities. the Governor; or (7) another interested Compliance Information Reporting. Section 605 of the RFA allows an organization or entity that can carry out OMB Control Number: 1225–0077. Affected Public: Individuals or agency to certify a rule in lieu of the duties of the one-stop operator. Households and Private Sector— preparing an analysis if the regulation is Examples include, but are not limited businesses or other for profits and not not expected to have a significant to, a local chamber of commerce or for profit institutions. economic impact on a substantial other business organization, or a labor Total Estimated Number of number of small entities. Further, under organization. the Small Business Regulatory Respondents: 105,259. Impact on Small Entities Total Estimated Number of Enforcement Fairness Act of 1996, 5 Responses: 56,324,784. U.S.C. 801 (SBREFA), an agency is The Department indicates that Total Estimated Annual Time Burden: required to produce compliance transfer payments are a significant 315,339. guidance for small entities if the rule aspect of this analysis in that the Total Estimated Annual Other Costs has a significant economic impact. The majority of WIOA program cost burdens Burden: $0. Small Business Administration (SBA) on State and local workforce defines a small business as one that is development boards will be fully C. Executive Order 13132 (Federalism) ‘‘independently owned and operated financed through federal transfer The Department has reviewed this and which is not dominant in its field payments to States. The Department has rule in accordance with Executive Order of operation.’’ The definition of small highlighted costs that are new to business varies from industry to implementation of this final rule. 452 See 44 U.S.C. 3512; 5 CFR 1320.5(a), 1320.6. industry to the extent necessary to Therefore, the Department expects that

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this final rule will have negligible net Nondiscrimination, Workforce 38.32 Small recipient Equal Opportunity cost impact on small entities. development. Officer obligations. 38.33 Service provider Equal Opportunity H. Small Business Regulatory Edward C. Hugler, Officer obligations. Enforcement Fairness Act of 1996 Acting Assistant Secretary for Administration Notice and Communication and Management, U.S. Department of Labor. This rule is not a major rule as 38.34 Recipients’ obligations to disseminate ■ For reasons set forth in the preamble, defined by Section 804 of the Small equal opportunity notice. the Department revises 29 CFR part 38 Business Regulatory Enforcement 38.35 Equal Opportunity notice/poster. to read as follows: 38.36 Recipients’ obligations to publish Fairness Act of 1996. This rule will not equal opportunity notice. result in an annual effect on the Title 29—Labor 38.37 Notice requirement for service economy of $100 million or more; a providers. major increase in costs or prices; or PART 38—IMPLEMENTATION OF THE 38.38 Publications, broadcasts, and other significant adverse effects on NONDISCRIMINATION AND EQUAL communications. competition, employment, investment, OPPORTUNITY PROVISIONS OF THE 38.39 Communication of notice in productivity, innovation, or on the WORKFORCE INNOVATION AND orientations. 38.40 Affirmative outreach. ability of United States-based OPPORTUNITY ACT companies to compete with foreign- Subpart A—General Provisions Data and Information Collection and based companies in domestic and Maintenance Sec. export markets. 38.1 Purpose. 38.41 Collection and maintenance of equal 38.2 Applicability. opportunity data and other information. I. Executive Order 13175 (Indian Tribal 38.42 Information to be provided to the 38.3 Effect on other obligations. Governments) Civil Rights Center (CRC) by grant 38.4 Definitions. applicants and recipients. 38.5 General prohibitions on This rule does not have tribal 38.43 Required maintenance of records by discrimination. implications under Executive Order recipients. 38.6 Specific discriminatory actions 38.44 CRC access to information and 13175 that require a tribal summary prohibited on bases other than disability. information sources. impact statement. The rule would not 38.7 Discrimination prohibited based on 38.45 Confidentiality responsibilities of have substantial direct effects on one or sex. grant applicants, recipients, and the 38.8 Discrimination prohibited based on more Indian tribes, on the relationship Department. between the federal government and pregnancy. Indian tribes, or on the distribution of 38.9 Discrimination prohibited based on Subpart C—Governor’s Responsibilities To power and responsibilities between the national origin, including limited Implement the Nondiscrimination and Equal Opportunity Requirements of the Workforce federal government and Indian tribes. English proficiency. 38.10 Harassment prohibited. Innovation and Opportunity Act (WIOA) J. Executive Order 12630 (Government 38.11 Discrimination prohibited based on 38.50 Subpart application to State Actions and Interference With citizenship status. Programs. Constitutionally Protected Property 38.12 Discrimination prohibited based on 38.51 Governor’s oversight and monitoring disability. Rights) responsibilities for State Programs. 38.13 Accessibility requirements. 38.52 Governor’s liability for actions of 38.14 Reasonable accommodations and recipients the Governor has financially This rule is not subject to Executive reasonable modifications for individuals Order 12630 because it does not involve assisted under Title I of WIOA. with disabilities. 38.53 Governor’s oversight responsibility implementation of a policy that has 38.15 Communications with individuals regarding recipients’ recordkeeping. takings implications or that could with disabilities. 38.54 Governor’s obligations to develop and impose limitations on private property 38.16 Service animals. implement a Nondiscrimination Plan. use. 38.17 Mobility aids and devices. 38.55 Schedule of the Governor’s 38.18 Employment practices covered. obligations regarding the K. Executive Order 12988 (Civil Justice 38.19 Intimidation and retaliation Nondiscrimination Plan. Reform) prohibited. 38.20 Administration of this part. Subpart D—Compliance Procedures The rule was drafted and reviewed in 38.21 Interpretation of this part. 38.60 Evaluation of compliance. accordance with Executive Order 12988 38.22 Delegation of administration and 38.61 Authority to issue subpoenas. interpretation of this part. and will not unduly burden the federal Compliance Reviews court system. The final rule was: (1) 38.23 Coordination with other agencies. 38.24 Effect on other laws and policies. 38.62 Authority and procedures for pre- Reviewed to eliminate drafting errors approval compliance reviews. and ambiguities; (2) written to minimize Subpart B—Recordkeeping and Other 38.63 Authority and procedures for litigation; and (3) written to provide a Affirmative Obligations of Recipients conducting post-approval compliance clear legal standard for affected conduct Assurances reviews. and to promote burden reduction. 38.25 A grant applicant’s obligation to 38.64 Procedures for concluding post- provide a written assurance. approval compliance reviews. L. Executive Order 13211 (Energy 38.26 Duration and scope of the assurance. 38.65 Authority to monitor the activities of Supply) 38.27 Covenants. a Governor. 38.66 Notice to Show Cause issued to a This rule is not subject to Executive Equal Opportunity Officers recipient. Order 13211. It will not have a 38.28 Designation of Equal Opportunity 38.67 Methods by which a recipient may significant adverse effect on the supply, Officers. show cause why enforcement distribution, or use of energy. 38.29 Recipients’ obligations regarding proceedings should not be instituted. Equal Opportunity Officers. 38.68 Failing to show cause. List of Subjects in 29 CFR Part 38 38.30 Requisite skill and authority of Equal Opportunity Officer. Complaint Processing Procedures Civil rights, Discrimination in 38.31 Equal Opportunity Officer 38.69 Complaint filing. employment, Equal opportunity, responsibilities. 38.70 Required contents of complaint.

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38.71 Right to representation. 38.115 Post-termination proceedings. § 38.3 Effect on other obligations. 38.72 Required elements of a recipient’s Authority: 29 U.S.C. 3101 et seq.; 42 U.S.C. (a) A recipient’s compliance with this complaint processing procedures. part will satisfy any obligation of the 38.73 Responsibility for developing and 2000d et seq.; 29 U.S.C. 794; 42 U.S.C. 6101 publishing complaint processing et seq.; and 20 U.S.C. 1681 et seq. recipient to comply with 29 CFR part procedures for service providers. 31, the Department’s regulations 38.74 Recipient’s obligations when it Subpart A—General Provisions implementing Title VI of the Civil determines that it has no jurisdiction Rights Act of 1964, as amended (Title § 38.1 Purpose. over a complaint. VI), and with subparts A, D, and E of 29 38.75 If the complainant is dissatisfied after The purpose of this part is to CFR part 32, the Department’s receiving a Notice of Final Action. implement the nondiscrimination and regulations implementing Section 504 of 38.76 If a recipient fails to issue a Notice of equal opportunity provisions of the the Rehabilitation Act of 1973, as Final Action within 90 days after the Workforce Innovation and Opportunity complaint was filed. amended (Section 504). 38.77 Extension of deadline to file Act (WIOA), which are contained in (b) 29 CFR part 32, subparts B and C complaint. section 188 of WIOA (29 U.S.C. 3248). and appendix A, the Department’s 38.78 Determinations regarding acceptance Section 188 prohibits discrimination on regulations which implement the of complaints. the basis of race, color, religion, sex, requirements of Section 504 pertaining 38.79 When a complaint contains national origin, age, disability, or to employment practices and insufficient information. political affiliation or belief, or, for employment-related training, program 38.80 Lack of jurisdiction. beneficiaries, applicants, and accessibility, and reasonable 38.81 Complaint referral. participants only, on the basis of 38.82 Notice that complaint will not be accommodation, are hereby adopted by accepted. citizenship status or participation in a this part. Therefore, recipients must 38.83 Notice of complaint acceptance. WIOA Title I-financially assisted comply with the requirements set forth 38.84 Contacting CRC about a complaint. program or activity. This part clarifies in those regulatory sections as well as 38.85 Alternative dispute resolution. the application of the nondiscrimination the requirements listed in this part. Complaint Determinations and equal opportunity provisions of (c) This part does not invalidate or WIOA and provides uniform procedures limit the obligations, remedies, rights, 38.86 Notice at conclusion of complaint for implementing them. investigation. and procedures under any Federal law, 38.87 Director’s Initial Determination that § 38.2 Applicability. or the law of any State or political reasonable cause exists to believe that a subdivision, that provides greater or violation has taken place. (a) Applicability. This part applies to: equal protection for the rights of persons 38.88 Director’s Final Determination that no (1) Any recipient, as defined in § 38.4; as compared to this part: reasonable cause exists to believe that a (2) Programs and activities that are (1) Recipients that are also public violation has taken place. entities or public accommodations, as 38.89 When the recipient fails or refuses to part of the one-stop delivery system and take corrective action listed in the Initial that are operated by one-stop partners defined by Titles II and III of the Determination. listed in section 121(b) of WIOA, to the Americans with Disabilities Act of 1990 38.90 Corrective or remedial action that extent that the programs and activities (ADA), should be aware of obligations may be imposed when the Director finds are being conducted as part of the one- imposed by those titles. a violation. stop delivery system; and (2) Similarly, recipients that are also 38.91 Post-violation procedures. (3) As provided in § 38.18, the employers, employment agencies, or 38.92 Written assurance. employment practices of a recipient other entities covered by Title I of the 38.93 Required elements of a conciliation ADA should be aware of obligations agreement. and/or one-stop partner, to the extent 38.94 When voluntary compliance cannot that the employment is in the imposed by that title. be secured. administration of or in connection with (d) Compliance with this part does 38.95 Enforcement when voluntary programs and activities that are being not affect, in any way, any additional compliance cannot be secured. conducted as a part of WIOA Title I or obligations that a recipient may have to 38.96 Contents of a Final Determination of the one-stop delivery system. comply with applicable federal laws a violation. and their implementing regulations, 38.97 Notification of finding of (b) Limitation of application. This part does not apply to: such as the following: noncompliance. (1) Executive Order 11246, as (1) Programs or activities that are Breaches of Conciliation Agreements amended; financially assisted by the U.S. (2) Executive Order 13160; 38.98 Notification of Breach of Conciliation Department of Labor (Department) (3) Sections 503 and 504 of the Agreement. exclusively under laws other than Title 38.99 Contents of Notification of Breach of Rehabilitation Act of 1973, as amended I of WIOA, and that are not part of the Conciliation Agreement. (29 U.S.C. 793 and 794); one-stop delivery system (including 38.100 Notification of an enforcement (4) The affirmative action provisions programs or activities implemented action under based on breach of of the Vietnam Era Veterans’ conciliation agreement. under, authorized by, and/or financially Readjustment Assistance Act of 1974, as assisted by the Department under the Subpart E—Federal Procedures for amended (38 U.S.C. 4212); Workforce Investment Act of 1998 Effecting Compliance (5) The Equal Pay Act of 1963, as (WIA)); 38.110 Enforcement procedures. amended (29 U.S.C. 206d); 38.111 Hearing procedures. (2) Contracts of insurance or guaranty; (6) Title VII of the Civil Rights Act of 38.112 Initial and final decision (3) The ultimate beneficiary to a 1964, as amended (42 U.S.C. 2000e et procedures. program of Federal financial assistance; seq.); 38.113 Suspension, termination, and (7) The Age Discrimination Act of withholding, denial, or discontinuation of financial assistance. (4) Federal procurement contracts, 1975, as amended (42 U.S.C. 6101); 38.114 Distribution of WIOA Title I with the exception of contracts to (8) The Age Discrimination in financial assistance to an alternate operate or provide services to Job Corps Employment Act of 1967, as amended recipient. Centers. (29 U.S.C. 621);

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(9) Title IX of the Education (f) Assistant Attorney General means (n) Departmental grantmaking agency Amendments of 1972, as amended (Title the Assistant Attorney General, Civil means a grantmaking agency within the IX) (20 U.S.C. 1681); Rights Division, United States U.S. Department of Labor. (10) The Americans with Disabilities Department of Justice. (o) Director means the Director, Civil Act of 1990, as amended (42 U.S.C. (g) Assistant Secretary means the Rights Center, Office of the Assistant 12101 et seq.); and Assistant Secretary for Administration Secretary for Administration and (11) The anti-discrimination provision and Management, United States Management, U.S. Department of Labor, of the Immigration and Nationality Act, Department of Labor. or a designee authorized to act for the as amended (8 U.S.C. 1324b). (h) Auxiliary aids or services Director. includes: § 38.4 Definitions. (p) Direct threat means a significant (1) Qualified interpreters on-site or risk of substantial harm to the health or For the purpose of this part: through video remote interpreting (VRI) (a) Administrative Law Judge means a safety of others that cannot be services; notetakers; real-time computer- eliminated or reduced by auxiliary aids person appointed as provided in 5 aided transcription services; written U.S.C. 3105 and 5 CFR 930.203, and and services, reasonable materials; exchange of written notes; accommodations, or reasonable qualified under 5 U.S.C. 557, to preside telephone handset amplifiers; assistive at hearings held under the modifications in policies, practices and/ listening devices; assistive listening or procedures. The determination nondiscrimination and equal systems; telephones compatible with opportunity provisions of WOIA and whether an individual with a disability hearing aids; closed caption decoders; poses a direct threat must be based on this part. open and closed captioning, including (b) Aid, benefit, service, or training an individualized assessment of the real-time captioning; voice, text, and means WIOA Title I-financially assisted individual’s present ability safely to video-based telecommunications services, financial or other aid, training, either: products and systems, including text or benefits provided by or through a (1) Satisfy the essential eligibility telephones (TTYs), videophones, and recipient or its employees, or by others requirements of the program or activity through contract or other arrangements captioned telephones, or equally (in the case of aid, benefits, services, or with the recipient. ‘‘Aid, benefit, effective telecommunications devices; training); or service, or training’’ includes, but is not videotext displays; accessible electronic (2) Perform the essential functions of limited to: and information technology; or other the job (in the case of employment). (1) Career Services; effective means of making aurally This assessment must be based on a (2) Education or training; delivered materials available to reasonable medical judgment that relies (3) Health, welfare, housing, social individuals with hearing impairments; on the most current medical knowledge service, rehabilitation, or other (2) Qualified readers; taped texts; and/or on the best available objective supportive services; audio recordings; Brailled materials and evidence. In determining whether an (4) Work opportunities; displays; screen reader software; individual would pose a direct threat, (5) Cash, loans, or other financial magnification software; optical readers; the factors to be considered include: assistance to individuals; and secondary auditory programs (SAP); (i) The duration of the risk; (6) Any aid, benefits, services, or large print materials; accessible (ii) The nature and severity of the training provided in or through a facility electronic and information technology; potential harm; that has been constructed, expanded, or other effective methods of making (iii) The likelihood that the potential altered, leased, rented, or otherwise visually delivered materials available to harm will occur; and obtained, in whole or in part, with individuals who are blind or have low (iv) The imminence of the potential Federal financial assistance under Title vision; harm. I of WIOA. (3) Acquisition or modification of (q) Disability—(1) General. (c) Applicant means an individual equipment or devices; and who is interested in being considered (4) Other similar services, devices, ‘‘Disability’’ means, with respect to an for any WIOA Title I-financially assisted and actions. individual: aid, benefit, service, or training by a (i) Babel notice means a short notice (i) A physical or mental impairment recipient, and who has signified that included in a document or electronic that substantially limits one or more of interest by submitting personal medium (e.g., Web site, ‘‘app,’’ email) in the major life activities of such information in response to a request by multiple languages informing the reader individual; the recipient. See also the definitions of that the communication contains vital (ii) A record of such an impairment; ‘‘application for benefits,’’ ‘‘eligible information, and explaining how to or applicant/registrant,’’ ‘‘participant,’’ access language services to have the (iii) Being regarded as having such an ‘‘participation,’’ and ‘‘recipient’’ in this contents of the communication impairment as described in paragraph section. provided in other languages. (q)(7) of this section. (d) Applicant for employment means (j) Beneficiary means the individual or (2) Rules of construction. (i) The a person or persons who make(s) an individuals intended by Congress to definition of ‘‘disability’’ shall be application for employment with a receive aid, benefits, services, or construed broadly in favor of expansive recipient of Federal financial assistance training from a recipient. coverage, to the maximum extent under WIOA Title I. (k) Citizenship See ‘‘Discrimination permitted by Federal disability (e) Application for benefits means the prohibited based on citizenship status.’’ nondiscrimination law and this part. process by which information, in § 38.11. (ii) An individual may establish including but not limited to a completed (l) CRC means the Civil Rights Center, coverage under any one or more of the application form, is provided by Office of the Assistant Secretary for three prongs of the general definition of applicants or eligible applicants before Administration and Management, U.S. disability in paragraph (q)(1) of this and as a condition of receiving any Department of Labor. section, the ‘‘actual disability’’ prong in WIOA Title I-financially assisted aid, (m) Department means the U.S. paragraph (q)(1)(i) of this section, the benefit, service, or training from a Department of Labor, including its ‘‘record of’’ prong in paragraph (q)(1)(ii) recipient. agencies and organizational units. of this section, or the ‘‘regarded as’’

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prong in paragraph (q)(1)(iii) of this reaching, lifting, bending, speaking, individual from performing a major life section. breathing, learning, reading, activity in order to be considered (iii) Where an individual is not concentrating, thinking, writing, substantially limiting. Nonetheless, not challenging a recipient’s failure to communicating, interacting with others, every impairment will constitute a provide reasonable accommodations or and working; and disability within the meaning of this reasonable modifications under (B) The operation of a ‘‘major bodily section. § 38.14(a) or (b), it is generally function,’’ such as the functions of the (F) The determination of whether an unnecessary to proceed under the immune system, special sense organs impairment substantially limits a major ‘‘actual disability’’ or ‘‘record of’’ and skin, normal cell growth, and life activity requires an individualized prongs, which require a showing of an digestive, genitourinary, bowel, bladder, assessment. However, in making this impairment that substantially limits a neurological, brain, respiratory, assessment, the term ‘‘substantially major life activity or a record of such an circulatory, cardiovascular, endocrine, limits’’ shall be interpreted and applied impairment. In these cases, the hemic, lymphatic, musculoskeletal, and to require a degree of functional evaluation of coverage can be made reproductive systems. The operation of limitation that is lower than the solely under the ‘‘regarded as’’ prong of a major bodily function includes the standard for ‘‘substantially limits’’ the definition of ‘‘disability,’’ which operation of an individual organ within applied prior to the ADA Amendments does not require a showing of an a body system. Act of 2008 (ADAAA). impairment that substantially limits a (ii) Rules of construction. (A) In (G) The comparison of an individual’s major life activity or a record of such an determining whether an impairment performance of a major life activity to impairment. An individual may choose, substantially limits a major life activity, the performance of the same major life however, to proceed under the ‘‘actual the term ‘‘major’’ shall not be activity by most people in the general disability’’ or ‘‘record of’’ prong interpreted strictly to create a population usually will not require regardless of whether the individual is demanding standard. scientific, medical, or statistical challenging a recipient’s failure to (B) Whether an activity is a ‘‘major evidence. Nothing in this paragraph provide reasonable accommodations, or life activity’’ is not determined by (q)(5)(i)(G) is intended, however, to reasonable modifications. reference to whether it is of central prohibit or limit the presentation of (3) Physical or mental impairment. (i) importance to daily life. scientific, medical, or statistical ‘‘Physical or mental impairment’’ (5) Substantially limits—(i) Rules of evidence in making such a comparison means— construction. The following rules of where appropriate. (A) Any physiological disorder or construction apply when determining (H) The determination of whether an condition, cosmetic disfigurement, or whether an impairment substantially impairment substantially limits a major anatomical loss affecting one or more limits an individual in a major life life activity shall be made without body systems, such as: Neurological, activity. regard to the ameliorative effects of musculoskeletal, special sense organs, (A) The term ‘‘substantially limits’’ mitigating measures. However, the respiratory (including speech organs), shall be construed broadly in favor of ameliorative effects of ordinary cardiovascular, reproductive, digestive, expansive coverage, to the maximum eyeglasses or contact lenses shall be genitourinary, immune, circulatory, extent permitted by Federal disability considered in determining whether an hemic, lymphatic, skin, and endocrine; nondiscrimination law and this part. impairment substantially limits a major or ‘‘Substantially limits’’ is not meant to be life activity. Ordinary eyeglasses or (B) Any mental or psychological a demanding standard. contact lenses are lenses that are disorder such as intellectual disability, (B) The primary object of attention in intended to fully correct visual acuity or organic brain syndrome, emotional or disability cases brought under WIOA to eliminate refractive error. mental illness, and specific learning Section 188 should be whether (I) The six-month ‘‘transitory’’ part of disabilities. recipients have complied with their the ‘‘transitory and minor’’ exception in (ii) ‘‘Physical or mental impairment’’ obligations and whether discrimination paragraph (q)(7)(ii) of this section does includes, but is not limited to, has occurred, not the extent to which an not apply to the ‘‘actual disability’’ or contagious and noncontagious diseases individual’s impairment substantially ‘‘record of’’ prongs of the definition of and conditions such as the following: limits a major life activity. Accordingly, ‘‘disability.’’ The effects of an Orthopedic, visual, speech and hearing the threshold issue of whether an impairment lasting or expected to last impairments, and cerebral palsy, impairment substantially limits a major less than six months can be epilepsy, muscular dystrophy, multiple life activity should not demand substantially limiting within the sclerosis, cancer, heart disease, diabetes, extensive analysis. meaning of this paragraph (q)(5)(i) for intellectual disability, emotional illness, (C) An impairment that substantially establishing an actual disability or a pregnancy-related medical conditions, limits one major life activity does not record of a disability. dyslexia and other specific learning need to limit other major life activities (ii) Predictable assessments. (A) The disabilities, Attention Deficit in order to be considered a substantially principles set forth in paragraph (q)(5)(i) Hyperactivity Disorder, Human limiting impairment. of this section are intended to provide Immunodeficiency Virus infection (D) An impairment that is episodic or for more generous coverage and (whether symptomatic or in remission is a disability if it would application of the prohibition on asymptomatic), tuberculosis, drug substantially limit a major life activity discrimination through a framework addiction, and alcoholism. when active. that is predictable, consistent, and (iii) ‘‘Physical or mental impairment’’ (E) An impairment is a disability workable for all individuals and does not include homosexuality or within the meaning of this section if it recipients with rights and bisexuality. substantially limits the ability of an responsibilities with respect to avoiding (4) Major life activities. (i) Major life individual to perform a major life discrimination on the basis of disability. activities include, but are not limited to: activity as compared to most people in (B) Applying these principles, the (A) Caring for oneself, performing the general population. An impairment individualized assessment of some manual tasks, seeing, hearing, eating, does not need to prevent, or types of impairments will, in virtually sleeping, walking, standing, sitting, significantly or severely restrict, the all cases, result in a determination of

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coverage under paragraph (q)(1)(i) of activity, or for which the individual can (D) Learned behavioral or adaptive this section (the ‘‘actual disability’’ perform the major life activity. neurological modifications; or prong) or paragraph (q)(1)(ii) (the (B) Consideration of facts such as (E) Psychotherapy, behavioral ‘‘record of’’ prong). Given their inherent condition, manner or duration may therapy, or physical therapy. nature, these types of impairments will, include, among other things, (6) Has a record of such an as a factual matter, virtually always be consideration of the difficulty, effort or impairment. (i) An individual has a found to impose a substantial limitation time required to perform a major life record of such an impairment if the on a major life activity. Therefore, with activity; pain experienced when individual has a history of, or has been respect to these types of impairments, performing a major life activity; the misclassified as having, a mental or the necessary individualized assessment length of time a major life activity can physical impairment that substantially should be particularly simple and be performed; or the way an impairment limits one or more major life activities. straightforward. affects the operation of a major bodily (ii) Broad construction. Whether an (C) For example, applying these function. In addition, the non- individual has a record of an principles, it should easily be ameliorative effects of mitigating impairment that substantially limited a concluded that the types of impairments measures, such as negative side effects major life activity shall be construed set forth in paragraphs (q)(5)(ii)(C)(1) of medication or burdens associated broadly to the maximum extent through (11) of this section will, at a with following a particular treatment permitted by Federal disability minimum, substantially limit the major regimen, may be considered when nondiscrimination law and this part and life activities indicated. The types of determining whether an individual’s should not demand extensive analysis. impairments described in paragraphs impairment substantially limits a major An individual will be considered to fall (q)(5)(ii)(C)(1) through (11) may life activity. within this prong of the definition of substantially limit additional major life (C) In determining whether an ‘‘disability’’ if the individual has a activities (including major bodily individual has a disability under the history of an impairment that functions) not explicitly listed in ‘‘actual disability’’ or ‘‘record of’’ prongs substantially limited one or more major paragraphs (q)(5)(ii)(C)(1) through (11). of the definition of ‘‘disability,’’ the life activities when compared to most (1) Deafness substantially limits focus is on how a major life activity is people in the general population, or was hearing; substantially limited, and not on what misclassified as having had such an (2) Blindness substantially limits outcomes an individual can achieve. For impairment. In determining whether an seeing; example, someone with a learning impairment substantially limited a (3) Intellectual disability substantially disability may achieve a high level of major life activity, the principles limits brain function; academic success, but may nevertheless articulated in paragraph (q)(5)(i) of this (4) Partially or completely missing be substantially limited in one or more section apply. limbs or mobility impairments requiring major life activities, including, but not (iii) Reasonable accommodation or the use of a wheelchair substantially limited to, reading, writing, speaking, or reasonable modification. An individual limit musculoskeletal function; learning, because of the additional time with a record of a substantially limiting (5) Autism substantially limits brain or effort the individual must spend to impairment may be entitled to a function; read, write, speak, or learn compared to reasonable accommodation or (6) Cancer substantially limits normal most people in the general population. reasonable modification if needed and cell growth; (D) Given the rules of construction set related to the past disability. (7) Cerebral palsy substantially limits forth in paragraph (q)(5)(i) of this (7) Is regarded as having such an brain function; section, it may often be unnecessary to impairment. The following principles (8) Diabetes substantially limits conduct an analysis involving most or apply under the ‘‘regarded as’’ prong of endocrine function; all of the facts related to condition, the definition of ‘‘disability’’ (paragraph (9) Epilepsy, muscular dystrophy, and manner, or duration. This is particularly (q)(1)(iii) of this section): multiple sclerosis each substantially true with respect to impairments such (i) Except as set forth in paragraph limits neurological function; as those described in paragraph (q)(7)(ii) of this section, an individual is (10) Human Immunodeficiency Virus (q)(5)(ii)(C) of this section, which by ‘‘regarded as having such an (HIV) infection substantially limits their inherent nature should be easily impairment’’ if the individual is immune function; and found to impose a substantial limitation subjected to an action prohibited by (11) Major depressive disorder, on a major life activity, and for which WIOA Section 188 and this part because bipolar disorder, post-traumatic stress the individualized assessment should be of an actual or perceived physical or disorder, traumatic brain injury, particularly simple and straightforward. mental impairment, whether or not that obsessive compulsive disorder, and (iv) Mitigating measures include, but impairment substantially limits, or is schizophrenia each substantially limits are not limited to: perceived to substantially limit, a major brain function. (A) Medication, medical supplies, life activity, even if the recipient asserts, (iii) Condition, manner, or duration. equipment, appliances, low-vision or may or does ultimately establish, a (A) At all times taking into account the devices (defined as devices that defense to the action prohibited by principles in paragraph (q)(5)(i) of this magnify, enhance, or otherwise augment WIOA Section 188 and this part. section, in determining whether an a visual image, but not including (ii) An individual is not ‘‘regarded as individual is substantially limited in a ordinary eyeglasses or contact lenses), having such an impairment’’ if the major life activity, it may be useful in prosthetics including limbs and devices, recipient demonstrates that the appropriate cases to consider, as hearing aid(s) and cochlear implant(s) or impairment is, objectively, both compared to most people in the general other implantable hearing devices, ‘‘transitory’’ and ‘‘minor.’’ A recipient population, the conditions under which mobility devices, and oxygen therapy may not defeat ‘‘regarded as’’ coverage the individual performs the major life equipment and supplies; of an individual simply by activity; the manner in which the (B) Use of assistive technology; demonstrating that it subjectively individual performs the major life (C) Reasonable modifications of believed the impairment was transitory activity; or the duration of time it takes policies, practices, and procedures, or and minor; rather, the recipient must the individual to perform the major life auxiliary aids or services; demonstrate that the impairment is (in

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the case of an actual impairment) or to, office cubicles, computer kiosks, and (3) A grant or donation of Federal real would be (in the case of a perceived similar constructs. or personal property or any interest in impairment), objectively, both (w) Federal grantmaking agency or use of such property, including: ‘‘transitory’’ and ‘‘minor.’’ For purposes means a Federal agency that provides (i) Transfers or leases of property for of this section, ‘‘transitory’’ is defined as financial assistance under any Federal less than fair market value or for lasting or expected to last six months or statute. reduced consideration; less. (x) Financial assistance means any of (ii) Proceeds from a subsequent sale, (iii) Establishing that an individual is the following: transfer, or lease of such property, if the ‘‘regarded as having such an (1) Any grant, subgrant, loan, or Federal share of the fair market value of impairment’’ does not, by itself, advance of funds, including funds the property is not returned to the establish liability. Liability is extended to any entity for payment to or Federal Government; and established only when an individual on behalf of participants admitted to (iii) The sale, lease, or license of, and/ proves that a recipient discriminated on that recipient for training, or extended or the permission to use (other than on the basis of disability within the directly to such participants for a casual or transient basis), such meaning of federal nondiscrimination payment to that recipient; property or any interest in such law and this part. (2) Provision of the services of property, either: (A) Without consideration; (r) Eligible applicant/registrant means grantmaking agency personnel, or of other personnel at the grantmaking (B) At a nominal consideration; or an individual who has been determined (C) At a consideration that is reduced eligible to participate in one or more agency’s expense; (3) A grant or donation of real or or waived either for the purpose of WIOA Title I-financially assisted assisting the recipient, or in recognition programs or activities. personal property or any interest in or use of such property, including: of the public interest to be served by (s) Employment practices of a such sale or lease to or use by the recipient include, but are not limited to: (i) Transfers or leases of property for less than fair market value or for recipient; (1) Recruitment or recruitment (4) Waiver of charges that would advertising; reduced consideration; (ii) Proceeds from a subsequent sale, normally be made for the furnishing of (2) Selection, placement, layoff or transfer, or lease of such property, if the Government services; and termination of employees; (5) Any other agreement, arrangement, grantmaking agency’s share of the fair (3) Upgrading, promotion, demotion contract or subcontract (other than a market value of the property is not or transfer of employees; Federal procurement contract or a returned to the grantmaking agency; and (4) Training, including employment- contract of insurance or guaranty), or (iii) The sale, lease, or license of, and/ related training; other instrument that has as one of its or the permission to use (other than on (5) Participation in upward mobility purposes the provision of assistance or a casual or transient basis), such programs; benefits under WIOA Title I. property or any interest in such (6) Deciding rates of pay or other (z) Fundamental alteration means: property, either: (1) A change in the essential nature of forms of compensation; (A) Without consideration; (7) Use of facilities; or a program or activity as defined in this (B) At a nominal consideration; or part, including but not limited to an aid, (8) Deciding other terms, conditions, (C) At a consideration that is reduced benefits, and/or privileges of service, benefit, or training; or or waived either for the purpose of (2) A cost that a recipient can employment. assisting the recipient, or in recognition (t) Employment-related training demonstrate would result in an undue of the public interest to be served by burden. Factors to be considered in means training that allows or enables an such sale or lease to or use by the individual to obtain skills, abilities and/ making the determination whether the recipient; cost of a modification would result in or knowledge that are designed to lead (4) Waiver of charges that would to employment. such a burden include: normally be made for the furnishing of (i) The nature and net cost of the (u) Entity means any person, services by the grantmaking agency; and corporation, partnership, joint venture, modification needed, taking into (5) Any other agreement, arrangement, consideration the availability of tax sole proprietorship, unincorporated contract or subcontract (other than a association, consortium, Native credits and deductions, and/or outside procurement contract or a contract of financial assistance, for the American tribe or tribal organization, insurance or guaranty), or other Native Hawaiian organization, and/or modification; instrument that has as one of its (ii) The overall financial resources of entity authorized by State or local law; purposes the provision of assistance or the facility or facilities involved in the any State or local government; and/or benefits under the statute or policy that provision of the modification, any agency, instrumentality or authorizes assistance by the including: subdivision of such a government. grantmaking agency. (A) The number of persons aided, (v) Facility means all or any portion (y) Financial assistance under Title I benefited, served, or trained by, or of buildings, structures, sites, of WIOA means any of the following, employed at, the facility or facilities; complexes, equipment, roads, walks, when authorized or extended under and passageways, parking lots, rolling stock WIOA Title I: (B) The effect the modification would or other conveyances, or other real or (1) Any grant, subgrant, loan, or have on the expenses and resources of personal property or interest in such advance of federal funds, including the facility or facilities; property, including the site where the funds extended to any entity for (iii) The overall financial resources of building, property, structure, or payment to or on behalf of participants the recipient, including: equipment is located. The phrase ‘‘real admitted to that recipient for training, or (A) The overall size of the recipient; or personal property’’ in the preceding extended directly to such participants (B) The number of persons aided, sentence includes indoor constructs that for payment to that recipient; benefited, served, trained, or employed may or may not be permanently (2) Provision of the services of Federal by the recipient; and attached to a building or structure. Such personnel, or of other personnel at (C) The number, type and location of constructs include, but are not limited Federal expense; the recipient’s facilities;

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(iv) The type of operation or acts on the basis of such use. This types of communication (e.g., speaking operations of the recipient, including: limitation does not exclude as an or understanding), but still be LEP for (A) The geographic separateness and individual with a disability an other purposes (e.g., reading or writing). administrative or fiscal relationship of individual who: (ii) LWDA (Local Workforce the facility or facilities in question to (i) Has successfully completed a Development Area) grant recipient the recipient; and supervised drug rehabilitation program means the entity that receives WIOA (B) Where the modification sought is and is no longer engaging in the illegal Title I financial assistance for a local employment-related, the composition, use of drugs, or has otherwise been area directly from the Governor and structure and functions of the rehabilitated successfully and is no disburses those funds for workforce recipient’s workforce; and longer engaging in the illegal use of development activities. (v) The impact of the modification drugs; (jj) National Programs means: upon the operation of the facility or (ii) Is participating in a supervised (1) Job Corps; and facilities, including: rehabilitation program and is no longer (2) Programs receiving Federal (A) The impact on the ability of other engaging in such use; or financial assistance under Title I, participants to receive aid, benefit, (iii) Is erroneously regarded as Subtitle D of WIOA directly from the service, or training, or of other engaging in such use, but is not Department. Such programs include, but employees to perform their duties; and engaging in such use, except that it is are not limited to, the Migrant and (B) The impact on the facility’s ability not a violation of the nondiscrimination Seasonal Farmworkers Programs, Native to carry out its mission. and equal opportunity provisions of American Programs, National Dislocated (aa) Governor means the chief WIOA or this part for a recipient to Worker Grant Programs, and executive of a State or an outlying area, adopt or administer reasonable policies YouthBuild programs. or the Governor’s designee. or procedures, including but not limited (kk) Noncompliance means a failure (bb) Grant applicant means an entity to drug testing, designed to ensure that of a grant applicant or recipient to that submits required documentation to an individual described in paragraph comply with any of the applicable the Governor, recipient, or Department, (ff)(2)(i) or (ii) of this section is no requirements of the nondiscrimination before and as a condition of receiving longer engaging in the illegal use of and equal opportunity provisions of financial assistance under Title I of drugs. WIOA and this part. WIOA. (3) With regard to employment, the (ll) Nondiscrimination Plan means the (cc) Grantmaking agency means an term ‘‘individual with a disability’’ does written document and supporting entity that provides Federal financial not include any individual who: documentation developed under assistance. (i) Is an alcoholic if: § 38.54. (dd) Guideline means written (A) The individual’s current use of (mm) On-the-Job Training (OJT) informational material supplementing alcohol prevents such individual from means training by an employer that is an agency’s regulations and provided to performing the duties of the job in provided to a paid participant while the grant applicants and recipients to question; or participant is engaged in productive provide program-specific interpretations (B) The individual’s employment, by work that: of their responsibilities under the reason of such current alcohol abuse, (1) Provides knowledge or skills regulations. would constitute a direct threat to the essential to the full and adequate (ee) Illegal use of drugs means the use individual or the safety of others; or performance of the job; of drugs, the possession or distribution (ii) Has a currently contagious disease (2) Provides reimbursement to the of which is unlawful under the or infection, if: employer of up to 50 percent of the Controlled Substances Act, as amended (A) That disease or infection prevents wage rate of the participant (or up to 75 (21 U.S.C. 812). ‘‘Illegal use of drugs’’ the individual from performing the percent as provided in WIOA section does not include the use of a drug taken essential functions of the job in 134(c)(3)(H)), for the extraordinary costs under supervision of a licensed health question; or of providing the training and additional care professional, or other uses (B) The individual’s employment, supervision related to the training; and authorized by the Controlled Substances because of that disease or infection, (3) Is limited in duration as Act or other provisions of Federal law. would constitute a direct threat to the appropriate to the occupation for which (ff) Individual with a disability means health or safety of the individual or the participant is being trained, taking a person who has a disability as others. into account the content of the training, previously defined in this section. (gg) Labor market area means an the prior work experience of the (1) The term ‘‘individual with a economically integrated geographic area participant, and the service strategy of disability’’ does not include an within which individuals can reside the participant, as appropriate. individual on the basis of: and find employment within a (nn) Other power-driven mobility (i) Transvestism, transsexualism, or reasonable distance or can readily device means any mobility device gender identity disorders not resulting change employment without changing powered by batteries, fuel, or other from physical impairments; their place of residence. Such an area engines or by similar means—whether (ii) Pedophilia, exhibitionism, must be identified in accordance with or not designed primarily for use by voyeurism, or other sexual behavior either criteria used by the Bureau of individuals with mobility disabilities— disorders; Labor Statistics of the Department of that is used by individuals with (iii) Compulsive gambling, Labor in defining such areas, or similar mobility disabilities for the purpose of kleptomania, or pyromania; or criteria established by a Governor. locomotion, including golf cars, (iv) Psychoactive substance use (hh) Limited English proficient (LEP) electronic personal assistance mobility disorders resulting from current illegal individual means an individual whose devices (EPAMDs), such as the Segway® use of drugs. primary language for communication is PT, or any mobility device designed to (2) The term ‘‘individual with a not English and who has a limited operate in areas without defined disability’’ does not include an ability to read, speak, write, and/or pedestrian routes, but that is not a individual who is currently engaging in understand English. LEP individuals wheelchair within the meaning of this the illegal use of drugs, when a recipient may be competent in English for certain section.

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(oo) Participant means an individual without reasonable accommodation, can (B) The customary manner in which, who has been determined to be eligible perform the essential functions of such or circumstances under which, a job is to participate in, and who is receiving position; performed or aid, benefits, services, or any aid, benefit, service, or training (2) With respect to aid, benefits, training are given; or under, a program or activity financially services, or training, an individual who, (iii) Modifications or adjustments that assisted in whole or in part under Title with or without auxiliary aids and enable a qualified individual with a I of WIOA. ‘‘Participant’’ includes, but services, reasonable accommodations, disability to enjoy the same benefits and is not limited to, individuals receiving and/or reasonable modifications in privileges of the aid, benefits, services, any service(s) under State Employment policies, practices and procedures, training, or employment as are enjoyed Service programs, and claimants meets the essential eligibility by other similarly situated individuals receiving any service(s) or benefits requirements for the receipt of such aid, without disabilities. under State Unemployment Insurance benefits, services, or training. (2) ‘‘Reasonable accommodation’’ programs. (xx) Qualified interpreter means an includes, but is not limited to: (pp) Participation is considered to interpreter who is able to interpret (i) Making existing facilities used by commence on the first day, following effectively, accurately, and impartially, applicants, registrants, eligible determination of eligibility, on which either for individuals with disabilities applicants/registrants, participants, the participant began receiving or for individuals who are limited applicants for employment, and subsidized aid, benefit, service, or English proficient. The interpreter must employees readily accessible to and usable by individuals with disabilities; training provided under Title I of be able to interpret both receptively and and WIOA. expressively, using any necessary (qq) Parties to a hearing means the (ii) Restructuring of a job or a service, specialized vocabulary, either in-person, or of the way in which aid, benefits, Department and the grant applicant(s), through a telephone, a video remote recipient(s), or Governor. services, or training is/are provided; interpreting (VRI) service, or via part-time or modified work or training (rr) Population eligible to be served internet, video, or other technological means the total population of adults and schedules; acquisition or modification methods. of equipment or devices; appropriate eligible youth who reside within the (1) Qualified interpreter for an labor market area that is served by a adjustment or modifications of individual with a disability includes, for examinations, training materials, or particular recipient, and who are example, a sign language interpreter, eligible to seek WIOA Title I-financially policies; the provision of readers or oral transliterator, and cued-language interpreters; and other similar assisted aid, benefits, services, or transliterator. When an interpreter is training from that recipient. See the accommodations for individuals with provided to a person with a disability, disabilities. definition of ‘‘labor market area’’ in this the qualified interpreter must be able to section. (3) To determine the appropriate sign or otherwise communicate reasonable accommodation, it may be (ss) Program or activity, see ‘‘WIOA effectively, accurately, and impartially, Title I-financially assisted program or necessary for the recipient to initiate an both receptively and expressively, using informal, interactive process with the activity’’ in this section. any necessary specialized vocabulary. (tt) Programmatic accessibility means qualified individual with a disability in (2) Qualified interpreter for an policies, practices, and procedures need of the accommodation. This individual who is limited English providing effective and meaningful process should identify the precise proficient means an individual who opportunity for persons with disabilities limitations resulting from the disability demonstrates expertise and ability to to participate in or benefit from aid, and potential reasonable communicate information effectively, benefits, services, and training. accommodations that could overcome (uu) Prohibited basis means any basis accurately, and impartially, in both those limitations. upon which it is illegal to discriminate English and the other language, and (4) A recipient is required, absent under the nondiscrimination and equal identifies and employs the appropriate undue hardship, to provide a reasonable opportunity provisions of WIOA or this mode of interpreting (e.g., consecutive, accommodation to an otherwise part, i.e., race, color, religion, sex, simultaneous, or sight translation). qualified individual who meets the national origin, age, disability, or (yy) Reasonable accommodation. (1) definition of disability under the ‘‘actual political affiliation or belief, or, for The term ‘‘reasonable accommodation’’ disability’’ prong (paragraph (q)(1)(i) of beneficiaries, applicants, and means: this section) or the ‘‘record of’’ a participants only, citizenship status or (i) Modifications or adjustments to an disability prong (paragraph (q)(1)(ii) of participation in a WIOA Title I- application/registration process that this section), but is not required to financially assisted program or activity. enables a qualified applicant/registrant provide a reasonable accommodation to (vv) Public entity means: with a disability to be considered for the an individual who meets the definition (1) Any State or local government; aid, benefits, services, training, or of disability solely under the ‘‘regarded and employment that the qualified as’’ prong (paragraph (q)(1)(iii) of this (2) Any department, agency, special applicant/registrant desires; or section). purpose district, workforce (ii) Modifications or adjustments that (zz) Recipient means entity to which development board, or other enable a qualified individual with a financial assistance under Title I of instrumentality of a State or States or disability to perform the essential WIOA is extended, directly from the local government. functions of a job, or to receive aid, Department or through the Governor or (ww) Qualified individual with a benefits, services, or training equal to another recipient (including any disability means: that provided to qualified individuals successor, assignee, or transferee of a (1) With respect to employment, an without disabilities. These recipient). The term excludes any individual who satisfies the requisite modifications or adjustments may be ultimate beneficiary of the WIOA Title skill, experience, education, and other made to: I-financially assisted program or job-related requirements of the (A) The environment where work is activity. In instances in which a employment position such individual performed or aid, benefits, services, or Governor operates a program or activity, holds or desires, and who, with or training are given; or either directly or through a State agency,

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using discretionary funds apportioned intellectual, or other mental disability. (2) The Governor retains the grant to the Governor under WIOA Title I Other species of animals, whether wild funds and operates the programs, either (rather than disbursing the funds to or domestic, trained or untrained, are directly or through a State agency. another recipient), the Governor is also not service animals for the purposes of (3) ‘‘State Programs’’ also includes a recipient. In addition, for purposes of this definition. The work or tasks State Workforce Agencies, State this part, one-stop partners, as defined performed by a service animal must be Employment Service agencies, and/or in section 121(b) of WIOA, are treated directly related to the individual’s State unemployment compensation as ‘‘recipients,’’ and are subject to the disability. Examples of work or tasks agencies. nondiscrimination and equal include, but are not limited to, assisting (lll) State Workforce Agency (SWA) opportunity requirements of this part, to individuals who are blind or have low means the State agency that, under the the extent that they participate in the vision with navigation and other tasks, State Administrator, contains both State one-stop delivery system. ‘‘Recipient’’ alerting individuals who are deaf or agencies with responsibility for includes, but is not limited to: hard of hearing to the presence of administering programs authorized (1) State-level agencies that people or sounds, providing non-violent under the Wagner-Peyser Act, and administer, or are financed in whole or protection or rescue work, pulling a unemployment insurance programs in part with, WIOA Title I funds; wheelchair, assisting an individual authorized under Title III of the Social (2) State Workforce Agencies; during a seizure, alerting individuals to Security Act. (3) State and Local Workforce the presence of allergens, retrieving (mmm) Supportive services means Development Boards; items such as medicine or the services, such as transportation, child (4) LWDA grant recipients; telephone, providing physical support care, dependent care, housing, and (5) One-stop operators; and assistance with balance and needs-related payments, that are (6) Service providers, including stability to individuals with mobility necessary to enable an individual to eligible training providers; disabilities, and helping persons with participate in WIOA Title I-financially (7) On-the-Job Training (OJT) psychiatric and neurological disabilities assisted programs and activities, as employers; by preventing or interrupting impulsive consistent with the provisions of WIOA (8) Job Corps contractors and center or destructive behaviors. The crime Title I. operators; deterrent effects of an animal’s presence (nnn) Terminee means a participant (9) Job Corps national training and the provision of emotional support, whose participation in the program or contractors; well-being, comfort, or companionship, (10) Outreach and admissions employee whose employment with the without more, do not constitute work or agencies, including Job Corps program ends voluntarily or tasks for the purposes of this definition. involuntarily, during the applicable contractors that perform these functions; (ggg) Service provider means: (11) Placement agencies, including program year. (1) Any operator of, or provider of aid, (ooo) Title VI means Title VI of the Job Corps contractors that perform these benefits, services, or training to: functions; Civil Rights Act of 1964, 42 U.S.C. (i) Any program or activity that 2000d, et seq., as amended, which (12) Other National Program receives WIOA Title I financial recipients. forbids recipients of federal financial assistance from or through any State or assistance from discriminating on the (aaa) Registrant means the same as LWDA grant recipient; or ‘‘applicant’’ for purposes of this part. basis of race, color, or national origin. (ii) Any participant through that (ppp) Transferee means a person or See also the definitions of ‘‘application participant’s Individual Training for benefits,’’ ‘‘eligible applicant/ entity to whom or to which real or Account (ITA); or personal property, or an interest in such registrant,’’ ‘‘participant,’’ (2) Any entity that is selected and/or property, is transferred. ‘‘participation,’’ and ‘‘recipient’’ in this certified as an eligible provider of (qqq) Ultimate beneficiary, see the section. training services to participants. (bbb) Respondent means a grant (hhh) Small recipient means a definition of ‘‘beneficiary’’ in this applicant or recipient (including a recipient who: section. Governor) against which a complaint (1) Serves a total of fewer than 15 (rrr) Undue burden or undue hardship has been filed under the beneficiaries during the entire grant has different meanings, depending upon nondiscrimination and equal year; and whether it is used with regard to opportunity provisions of WIOA or this (2) Employs fewer than 15 employees reasonable accommodation of part. on any given day during the grant year. individuals with disabilities, or with (ccc) Secretary means the Secretary of (iii) Solicitor means the Solicitor of regard to religious accommodation. Labor, U.S. Department of Labor, or the Labor, U.S. Department of Labor, or the (1) Reasonable accommodation of Secretary’s designee. Solicitor’s designee. individuals with disabilities. (i) In (ddd) Sectarian activities means (jjj) State means the individual states general, ‘‘undue hardship’’ means religious worship or ceremony, or of the United States, the District of significant difficulty or expense sectarian instruction. Columbia, the Commonwealth of Puerto incurred by a recipient, when (eee) Section 504 means Section 504 Rico, the Virgin Islands, American considered in light of the factors set of the Rehabilitation Act of 1973, 29 Samoa, Guam, Wake Island, the forth in paragraph (rrr)(1)(ii) of this U.S.C. 794, as amended, which forbids Commonwealth of the Northern Mariana section. discrimination against qualified Islands, the Federated States of (ii) Factors to be considered in individuals with disabilities in Micronesia, the Republic of the determining whether an accommodation federally-financed and conducted Marshall Islands, and Palau. would impose an undue hardship on a programs and activities. (kkk) State Programs means programs recipient include: (fff) Service animal means any dog financially assisted in whole or in part (A) The nature and net cost of the that is individually trained to do work under Title I of WIOA in which either: accommodation needed, taking into or perform tasks for the benefit of an (1) The Governor and/or State consideration the availability of tax individual with a disability, including a receives and disburses the grant to or credits and deductions, and/or outside physical, sensory, psychiatric, through LWDA grant recipients; or funding, for the accommodation;

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(B) The overall financial resources of language assistance; rulebooks; written race, color, religion, sex, national origin, the facility or facilities involved in the tests that do not assess English language age, and political affiliation and belief, provision of the reasonable competency, but rather assess and, for beneficiaries, applicants, and accommodation, including: competency for a particular license, job, participants only, citizenship and (1) The number of persons aided, or skill for which English proficiency is participation in any WIOA Title I- benefited, served, or trained by, or not required; and letters or notices that financially assisted program or activity. employed at, the facility or facilities; require a response from the beneficiary (b) A recipient must not, directly or and or applicant, participant, or employee. through contractual, licensing, or other (2) The effect the accommodation (uuu) Wheelchair means a manually- arrangements, on a prohibited basis: would have on the expenses and operated or power-driven device (1) Deny an individual any aid, resources of the facility or facilities; designed primarily for use by an benefit, service, or training provided (C) The overall financial resources of individual with a mobility disability for under a WIOA Title I-financially the recipient, including: the main purpose of indoor and/or assisted program or activity; (1) The overall size of the recipient; outdoor locomotion. (2) Provide to an individual any aid, (2) The number of persons aided, (vvv) WIOA means the Workforce benefit, service, or training that is benefited, served, trained, or employed Innovation and Opportunity Act. different, or is provided in a different by the recipient; and (www) WIOA Title I financial manner, from that provided to others (3) The number, type and location of assistance, see the definition of under a WIOA Title I-financially the recipient’s facilities; ‘‘Financial assistance under WIOA’’ in assisted program or activity; (D) The type of operation or this section. (3) Subject an individual to operations of the recipient, including: (xxx) WIOA Title I-financially assisted segregation or separate treatment in any (1) The geographic separateness and program or activity means: matter related to receipt of any aid, administrative or fiscal relationship of (1) A program or activity, operated by benefit, service, or training under a the facility or facilities in question to a recipient and financially assisted, in WIOA Title I-financially assisted the recipient; and whole or in part, under Title I of WIOA program or activity; (2) Where the individual is seeking an that provides either: (4) Restrict an individual in any way employment-related accommodation, (i) Any aid, benefit, service, or in the enjoyment of any advantage or the composition, structure and training to individuals; or privilege enjoyed by others receiving functions of the recipient’s workforce; (ii) Facilities for furnishing any aid, any aid, benefit, service, or training and benefits, services, or training to under a WIOA Title I-financially (E) The impact of the accommodation individuals; assisted program or activity; upon the operation of the facility or (2) Aid, benefit, service, or training (5) Treat an individual differently facilities, including: provided in facilities that are being or from others in determining whether the (1) The impact on the ability of other were constructed with the aid of Federal individual satisfies any admission, participants to receive aid, benefits, financial assistance under WIOA Title I; enrollment, eligibility, membership, or or services, or training, or of other other requirement or condition for any (3) Aid, benefit, service, or training employees to perform their duties; and aid, benefit, service, or training provided with the aid of any non-WIOA (2) The impact on the facility’s ability provided under a WIOA Title I- Title I financial assistance, property, or to carry out its mission. financially assisted program or activity; other resources that are required to be (2) Religious accommodation. For (6) Deny or limit an individual with expended or made available in order for purposes of religious accommodation respect to any opportunity to participate the program to meet matching only, ‘‘undue hardship’’ means anything in a WIOA Title I-financially assisted requirements or other conditions which more than a de minimis cost or program or activity, or afford the must be met in order to receive the operational burden that a particular individual an opportunity to do so that WIOA Title I financial assistance. See accommodation would impose upon a is different from the opportunity the definition of ‘‘aid, benefit, service, recipient. afforded others under a WIOA Title I- or training’’ in this section. (sss) Video remote interpreting (VRI) financially assisted program or activity; service means an interpreting service § 38.5 General prohibitions on (7) Deny an individual the that uses video conference technology discrimination. opportunity to participate as a member over dedicated lines or wireless No individual in the United States of a planning or advisory body that is technology offering high-speed, wide- may, on the basis of race, color, religion, an integral part of the WIOA Title I- bandwidth video connection that sex, national origin, age, disability, or financially assisted program or activity; delivers high-quality video images, as political affiliation or belief, or, for or provided in § 38.15. beneficiaries, applicants, and (8) Otherwise limit an individual (ttt) Vital information means participants only, on the basis of enjoyment of any right, privilege, information, whether written, oral or citizenship or participation in any advantage, or opportunity enjoyed by electronic, that is necessary for an WIOA Title I-financially assisted others receiving any WIOA Title I- individual to understand how to obtain program or activity, be excluded from financially assisted aid, benefit, service, any aid, benefit, service, and/or training; participation in, denied the benefits of, or training. necessary for an individual to obtain subjected to discrimination under, or (c) A recipient must not, directly or any aid, benefit, service, and/or training; denied employment in the through contractual, licensing, or other or required by law. Examples of administration of or in connection with arrangements: documents containing vital information any WIOA Title I-financially assisted (1) Aid or perpetuate discrimination include, but are not limited to program or activity. by providing significant assistance to an applications, consent and complaint agency, organization, or person that forms; notices of rights and § 38.6 Specific discriminatory actions discriminates on a basis prohibited by responsibilities; notices advising LEP prohibited on bases other than disability. WIOA Section 188 or this part in individuals of their rights under this (a) For the purposes of this section, providing any aid, benefit, service, or part, including the availability of free prohibited bases for discrimination are training, to registrants, applicants or

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participants in a WIOA Title I- (iii) Subjecting them to the benefits of, or subjected to financially assisted program or activity; discrimination; or discrimination under any WIOA Title I- or (2) Defeating or substantially financially assisted program or activity (2) Refuse to accommodate an impairing the accomplishment of the based on sex. The term sex includes, but individual’s religious practices or objectives of either: is not limited to, pregnancy, childbirth, beliefs, unless to do so would result in (i) The WIOA Title I-financially and related medical conditions, undue hardship, as defined in assisted program or activity; or transgender status, and gender identity. § 38.4(rrr)(2). (ii) The nondiscrimination and equal (b) Recipients may not make any (d)(1) In making any of the opportunity provisions of WIOA or this distinction based on sex in providing determinations listed in paragraph (d)(2) part. any aid, benefit, service, or training of this section, either directly or through (f)(1) 29 CFR part 2, subpart D, under a WIOA Title I-financially contractual, licensing, or other governs the circumstances under which assisted program or activity. Such arrangements, a recipient must not use Department support, including under unlawful sex-based discriminatory standards, procedures, criteria, or WIOA Title I financial assistance, may practices include, but are not limited to, administrative methods that have any of be used to employ or train participants the following: the following purposes or effects: in religious activities. Under that (1) Making a distinction between (i) Subjecting individuals to subpart, such assistance may be used for married and unmarried persons that is discrimination on a prohibited basis; or such employment or training only when not applied equally to both sexes; (ii) Defeating or substantially the assistance is provided indirectly (2) Denying individuals of one sex impairing, on a prohibited basis, within the meaning of the Establishment who have children access to any aid, accomplishment of the objectives of Clause of the U.S. Constitution, and not benefit, service, or training that is either: when the assistance is provided available to individuals of another sex (A) The WIOA Title I-financially directly. As explained in that subpart, who have children; assisted program or activity; or assistance provided through an (3) Adversely treating unmarried (B) The nondiscrimination and equal Individual Training Account is individuals of one sex, but not opportunity provisions of WIOA or this generally considered indirect, and other unmarried individuals of another sex, part. mechanisms may also be considered who become parents; (2) The determinations to which this indirect. See also 20 CFR 683.255 and (4) Distinguishing on the basis of sex paragraph (d) applies include, but are 683.285. 29 CFR part 2, subpart D, also in formal or informal job training and/ not limited to: contains requirements related to equal or educational programs, other (i) The types of aid, benefit, service, treatment of religious organizations in opportunities such as networking, training, or facilities that will be Department of Labor programs, and to mentoring, individual development provided under any WIOA Title I- protection of religious liberty for plans, or on the job training financially assisted program or activity; Department of Labor social service opportunities; (ii) The class of individuals to whom providers and beneficiaries. (5) Posting job announcements for such aid, benefit, service, training, or (2) Except under the circumstances jobs that recruit or advertise for facilities will be provided; or described in paragraph (f)(3) of this individuals for certain jobs on the basis (iii) The situations in which such aid, section, a recipient must not employ of sex; benefit, service, training, or facilities participants to carry out the (6) Treating an individual adversely will be provided. construction, operation, or maintenance because the individual identifies with a (3) Paragraph (d) of this section gender different from that individual’s applies to the administration of WIOA of any part of any facility that is used, or to be used, for religious instruction or sex assigned at birth, or the individual Title I-financially assisted programs or has undergone, is undergoing, or is activities providing any aid, benefit, as a place for religious worship. (3) A recipient may employ planning to undergo, any processes or service, training, or facilities in any participants to carry out the procedures designed to facilitate the manner, including, but not limited to: maintenance of a facility that is not individual’s transition to a sex other (i) Outreach and recruitment; than the individual’s sex assigned at (ii) Registration; primarily or inherently devoted to (iii) Counseling and guidance; religious instruction or religious birth; (iv) Testing; worship if the organization operating (7) Denying individuals who are (v) Selection, placement, the facility is part of a program or pregnant, who become pregnant, or who appointment, and referral; activity providing services to plan to become pregnant opportunities (vi) Training; and participants. for or access to any aid, benefit, service, (vii) Promotion and retention. (g) The exclusion of an individual or training on the basis of pregnancy (4) A recipient must not take any of from programs or activities limited by (see also § 38.8); the prohibited actions listed in Federal statute or Executive Order to a (8) Making any facilities associated paragraph (d) of this section either certain class or classes of individuals of with WIOA Title I-financially assisted directly or through contractual, which the individual in question is not program or activities available only to licensing, or other arrangements. a member is not prohibited by this part. members of one sex, except that if the (e) In determining the site or location recipient provides restrooms or of facilities, a grant applicant or § 38.7 Discrimination prohibited based on changing facilities, the recipient may recipient must not make selections that sex. provide separate or single-user have any of the following purposes or (a) In providing any aid, benefit, restrooms or changing facilities; and effects: service, or training under a WIOA Title (9) Denying individuals access to the (1) On a prohibited basis: I-financially assisted program or restrooms, locker rooms, showers, or (i) Excluding individuals from a activity, a recipient must not directly or similar facilities consistent with the WIOA Title I-financially assisted through contractual, licensing, or other gender with which they identify. program or activity; arrangements, discriminate on the basis (c) A recipient’s policies or practices (ii) Denying them the benefits of such of sex. An individual may not be that have the effect of discriminating on a program or activity; or excluded from participation in, denied the basis of sex and that lack a

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substantial legitimate justification service, or training under a WIOA Title limited to: Lactation; disorders directly constitute sex discrimination in I-financially assisted program or related to pregnancy, such as violation of WIOA and this part. Such activity, based on the sex-stereotyped preeclampsia (pregnancy-induced high unlawful sex-based discriminatory belief that women with children should blood pressure), placenta previa, and practices include, but are not limited to, not work long hours, regardless of gestational diabetes; symptoms such as the following: whether the recipient is acting out of back pain; complications requiring bed (1) Height or weight qualifications hostility or belief that it is acting in her rest; and the after-effects of a delivery. that lack a substantial legitimate or her children’s best interest. A pregnancy-related medical condition justification and that negatively affect (7) Denying an individual access to, or may also be a disability. See women substantially more than men. otherwise subjecting the individual to § 38.4(q)(3)(ii). Examples of unlawful (2) Strength, agility, or other physical adverse treatment in accessing, any aid, pregnancy discrimination may include: requirements that lack a substantial benefit, service, or training under a (a) Refusing to provide any aid, legitimate justification and that WIOA Title I-financially assisted benefit, service, or training under a negatively affect women substantially program or activity, based on sex WIOA Title I-financially assisted more than men. stereotyping including the belief that a program or activity to a pregnant (d) Discrimination on the basis of sex victim of domestic violence would individual or an individual of stereotypes, such as stereotypes about disrupt the program or activity and/or childbearing capacity, or otherwise how persons of a particular sex are may be unable to access any aid, benefit, subjecting such individuals to adverse expected to look, speak, or act, is a form service, or training. treatment on the basis of pregnancy or of unlawful sex discrimination. (8) Adverse treatment of a woman childbearing capacity; Examples of sex stereotyping include, applicant, participant, or beneficiary of (b) Limiting an individual’s access to but are not limited to: a WIOA Title I-financially assisted any aid, benefit, service, or training (1) Denying an individual access to, or program or activity because she does not under a WIOA Title I-financially otherwise subjecting the individual to dress or talk in a feminine manner. assisted program or activity based on adverse treatment in accessing, any aid, (9) Denying an individual access to, her pregnancy, or requiring a doctor’s benefit, service, or training under a failing to provide information about, or note in order for a pregnant woman to WIOA Title I-financially assisted otherwise subjecting the individual to begin or continue participation while program or activity because of that adverse treatment in accessing, any aid, pregnant when doctors’ notes are not individual’s failure to comply with benefit, service, or training under a required for participants who are gender norms and expectations for WIOA Title I-financially assisted similarly situated; dress, appearance and/or behavior, program or activity, because the (c) Denying an individual access to including wearing jewelry, make-up, individual does not conform to a sex any aid, benefit, service, or training high-heeled shoes, suits, or neckties. stereotype about individuals of a under a WIOA Title I-financially (2) Harassment or other adverse particular sex working in a specific job, assisted program or activity or requiring treatment of a male applicant, sector, or industry. the individual to terminate participation participant, or beneficiary of a WIOA (10) Adverse treatment of an in any WIOA Title I-financially assisted Title I-financially assisted program or applicant, participant, or beneficiary of program or activity when the individual activity because he is considered a WIOA Title I-financially assisted becomes pregnant or has a child; and effeminate or insufficiently masculine. program or activity based on sexual (d) Denying reasonable (3) Adverse treatment of an applicant, orientation where the evidence accommodations or modifications of participant, or beneficiary of a WIOA establishes that the discrimination is policies, practices, or procedures to a Title I-financially assisted program or based on gender stereotypes. pregnant applicant or participant who is activity because of the individual’s temporarily unable to participate in actual or perceived gender identity. § 38.8 Discrimination prohibited based on pregnancy. some portions of a WIOA Title I- (4) Adverse treatment of an applicant, financially assisted program or activity Discrimination on the basis of participant, or beneficiary of a WIOA because of pregnancy, childbirth, and/or pregnancy, childbirth, or related Title I-financially assisted program or related medical conditions, when such medical conditions, including activity based on sex stereotypes about accommodations or modifications are childbearing capacity, is a form of sex caregiver responsibilities. For example, provided, or are required to be discrimination and a violation of the adverse treatment of a female provided, by a recipient’s policy or by nondiscrimination provisions of WIOA participant because of a sex-based other relevant laws, to other similarly and this part. Recipients may not treat assumption that she has (or will have) situated applicants or participants. family caretaking responsibilities, and persons of childbearing capacity, or that those responsibilities will interfere those affected by pregnancy, childbirth, § 38.9 Discrimination prohibited based on with her ability to access any aid, or related medical conditions, adversely national origin, including limited English benefit, service, or training, is in accessing any aid, benefit, service, or proficiency. discrimination based on sex. training under a WIOA Title I- (a) In providing any aid, benefit, (5) Adverse treatment of a male financially assisted program or activity. service, or training under a WIOA Title applicant, participant, or beneficiary of In their covered employment practices, I-financially assisted program or a WIOA Title I-financially assisted recipients must treat people of activity, a recipient must not, directly or program or activity because he has childbearing capacity and those affected through contractual, licensing, or other taken, or is planning to take, care of his by pregnancy, childbirth, or related arrangements, discriminate on the basis newborn or recently adopted or fostered medical conditions the same for all of national origin, including limited child, based on the sex-stereotyped employment-related purposes, English proficiency. An individual must belief that women, and not men, should including receipt of benefits under not be excluded from participation in, care for children. fringe-benefit programs, as other denied the benefits of, or otherwise (6) Denying a woman access to, or persons not so affected but similar in subjected to discrimination under, any otherwise subjecting her to adverse their ability or inability to work. Related WIOA Title I-financially assisted treatment in accessing, any aid, benefit, medical conditions include, but are not program or activity based on national

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origin. National origin discrimination (e) A recipient must provide adequate particularized language needs of LEP includes treating individual notice to LEP individuals of the individuals who seek to learn about, beneficiaries, participants, or applicants existence of interpretation and participate in, and/or access the aid, for any aid, benefit, service, or training translation services and that these benefit, service, or training that the under any WIOA Title I-financially language assistance services are recipient provides. Vital information assisted program or activity adversely available free of charge. may be conveyed orally if not because they (or their families or (f)(1) A recipient shall not require an translated. ancestors) are from a particular country LEP individual to provide their own (3) Recipients must include a ‘‘Babel or part of the world, because of ethnicity interpreter. notice,’’ indicating in appropriate or accent (including physical, linguistic, (2) A recipient also shall not rely on languages that language assistance is and cultural characteristics closely an LEP individual’s minor child or adult available, in all communications of vital associated with a national origin group), family or friend(s) to interpret or information, such as hard copy letters or or because the recipient perceives the facilitate communication, except: decisions or those communications individual to be of a certain national (i) An LEP individual’s minor child or posted on Web sites. origin, even if they are not. adult family or friend(s) may interpret (h) To the extent otherwise required (b) A recipient must take reasonable or facilitate communication in by this part, once a recipient becomes steps to ensure meaningful access to emergency situations while awaiting a aware of the non-English preferred each limited English proficient (LEP) qualified interpreter; or language of an LEP beneficiary, individual served or encountered so that (ii) The accompanying adult (but not participant, or applicant for aid, benefit, LEP individuals are effectively informed minor child) may interpret or facilitate service, or training, the recipient must about and/or able to participate in the communication when the information convey vital information in that program or activity. conveyed is of minimal importance to language. (1) Reasonable steps generally may the services to be provided or when the (i) Recipients are required to take include, but are not limited to, an LEP individual specifically requests that reasonable steps to provide language assessment of an LEP individual to the accompanying adult provide assistance and should develop a written determine language assistance needs; language assistance, the accompanying language access plan to ensure that LEP providing oral interpretation or written adult agrees to provide assistance, and individuals have meaningful access. translation of both hard copy and reliance on that adult for such The appendix to this section provides electronic materials, in the appropriate assistance is appropriate under the guidance to recipients on developing a non-English languages, to LEP circumstances. When the recipient language access plan. individuals; and outreach to LEP permits the accompanying adult to communities to improve service provide such assistance, it must make Appendix to § 38.9—Guidance to delivery in needed languages. and retain a record of the LEP Recipients (2) Reasonable steps to provide individual’s decision to use their own Recipient Language Assistance Plan (LEP meaningful access to training programs interpreter. Plan): Promising Practices may include, but are not limited to, (3) Where precise, complete, and The guidelines in this appendix are providing: accurate interpretations or translation of consistent with and, in large part, derived (i) Written training materials in information and/or testimony are from existing federal guidance to federal appropriate non-English languages by critical for adjudicatory or legal reasons, financial assistance recipients to take written translation or by oral or where the competency of the reasonable steps to ensure meaningful access interpretation or summarization; and interpreter requested by the LEP by limited English proficient (LEP) (ii) Oral training content in individual is not established, a recipient individuals. appropriate non-English languages may decide to provide its own, Recipients that develop, implement, and through in-person interpretation or independent interpreter, even if an LEP periodically revise a written language telephone interpretation. assistance plan are more likely to fulfill their individual wants to use their own obligation of taking reasonable steps to (c) A recipient should ensure that interpreter as well. ensure access to programs and activities by every program delivery avenue (e.g., (g) With regard to vital information: LEP individuals. The guidelines set forth electronic, in person, telephonic) (1) For languages spoken by a below provide a clear framework for conveys in the appropriate languages significant number or portion of the developing a written plan that will ensure how an individual may effectively learn population eligible to be served, or meaningful access to LEP individuals. about, participate in, and/or access any likely to be encountered, a recipient Developing and implementing a written plan aid, benefit, service, or training that the must translate vital information in has many benefits, including providing the recipient provides. As a recipient written materials into these languages recipient with a roadmap for establishing and develops new methods for delivery of and make the translations readily documenting compliance with nondiscrimination obligations and ensuring information or assistance, it is required available in hard copy, upon request, or that LEP beneficiaries receive the necessary to take reasonable steps to ensure that electronically such as on a Web site. assistance to participate in the recipient’s LEP individuals remain able to learn Written training materials offered or programs and activities. about, participate in, and/or access any used within employment-related The elements of a successful LEP plan are aid, benefit, service, or training that the training programs as defined under not fixed. Written LEP plans must be tailored recipient provides. § 38.4(t) are excluded from these to the recipient’s specific programs and (d) Any language assistance services, translation requirements. However, activities. And, over time, plans will need to whether oral interpretation or written recipients must take reasonable steps to be revised to reflect new recommendations translation, must be accurate, provided ensure meaningful access as stated in and government guidance; changes in the in a timely manner and free of charge. recipient’s operations, as well as the § 38.9(b). recipient’s experiences and lessons learned; Language assistance will be considered (2) For languages not spoken by a changing demographics; and stakeholder and timely when it is provided at a place significant number or portion of the beneficiary feedback. Nonetheless, a and time that ensures equal access and population eligible to be served, or recipient that develops an LEP plan avoids the delay or denial of any aid, likely to be encountered, a recipient incorporating the elements identified below benefit, service, or training at issue. must take reasonable steps to meet the will benefit greatly in accomplishing its

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mission and providing an equal opportunity widely available, the State should, at a training program, but John could attend the for LEP individuals to participate in its minimum, provide the Urdu-speaking LEP English language class at the same time as or programs and activities. individual telephonic interpretation services prior to the training program. Whether John A written LEP plan should identify and to ensure meaningful access to takes the English class before or concurrently describe: unemployment insurance because, even if with the welding course will depend on 1. The process the recipient will use to Urdu is a non-frequently encountered, non- many factors including an objective, determine the language needs of English language, low-cost commercial individualized analysis of John’s English individuals who may or may seek to language services, such as telephonic oral proficiency relative to the welding course. participate in the recipient’s program interpretation services, are widely available. Regardless of how the English language and activities (self- or needs-assessment) learning is delivered, it must be provided at Population Significance as It Pertains to 2. The results of the assessment, e.g., no cost to John. Vital Information identifying the LEP populations to be In evaluating whether reasonable steps served by the recipient 2. Recipients have some flexibility as to the include oral interpretation, translation, 3. Timelines for implementing the written means to provide language assistance English language learning, another language LEP plan services to LEP individuals, as long as they service, or some combination of these 4. All language services to be provided to take reasonable steps to provide meaningful services, XYZ may work with the one-stop LEP individuals access to their program or activity. For center to provide meaningful access to John. 5. The manner in which LEP individuals will instance, if a recipient provides career be advised of available services services to an LEP individual who speaks § 38.10 Harassment prohibited. 6. Steps individuals should take to request Tagalog and the individual requests a Harassment of an individual based on language assistance translated brochure on an upcoming job fair, race, color, religion, sex, national origin, 7. The manner in which staff will provide the recipient should consider the importance age, disability, or political affiliation or language assistance services of the information in the brochure, and may 8. What steps must be taken to implement the consider: The proportion of Tagalog-speaking belief, or, for beneficiaries, applicants, LEP plan, e.g., creating or modifying LEP individuals served or encountered; the and participants only, based on policy documents, employee manuals, frequency with which Tagalog-speaking LEP citizenship status or participation in any employee training material, posters, Web individuals come in contact with the WIOA Title I-financially assisted sites, outreach material, contracts, and recipient; and the resources available to the program or activity, is a violation of the electronic and information technologies, recipient. In this instance, the recipient nondiscrimination provisions of WIOA applications, or adaptations would be required to provide a written and this part. 9. The manner in which staff will be trained translation of the brochure for the LEP (a) Unwelcome sexual advances, 10. Steps the recipient will take to ensure individual if Tagalog were a language spoken requests for sexual favors, or offensive quality control, including monitoring by a significant number or proportion of the implementation, establishing a LEP persons in the eligible service remarks about a person’s race, color, complaint process, timely addressing population and a language frequently religion, sex, national origin, age, complaints, and obtaining feedback from encountered in the career services program. disability, political affiliation or belief, stakeholders and employees But if Tagalog is not spoken by a significant or citizenship or participation, and 11. The manner in which the recipient will number or proportion of the population other unwelcome verbal or physical document the provision of language eligible to be served, and was not frequently conduct based on one or more of these assistance services encountered by the career services program, protected categories constitutes 12. The schedule for revising the LEP plan it would be reasonable for the recipient to 13. The individual(s) assigned to oversee unlawful harassment on that basi(e)s provide an oral summary of the brochure’s when: implementation of the plan (e.g., LEP contents in Tagalog. Coordinator or Program Manager) (1) Submission to such conduct is 14. Allocation of resources to implement the Training Provider Example Incorporating made either explicitly or implicitly a plan English Language Learning term or condition of accessing the aid, Illustrative Applications in Recipient 3. Providing English language learning benefit, service, or training of, or Programs and Activities opportunities may be one step that a employment in the administration of or recipient takes in order to take reasonable in connection with, any WIOA Title I- Unemployment Insurance Program Example steps to provide an LEP individual financially assisted program or activity; meaningful access to its programs or 1. Unemployment insurance programs are (2) Submission to or rejection of such recipients covered under this rule, and States activities. For example, John, a Korean- speaking LEP individual, learns through the conduct by an individual is used as the must take reasonable steps to provide basis for limiting that individual’s meaningful access to LEP individuals served one-stop center about available welding or encountered in their unemployment positions at ABC Welding, Co. He also learns access to any aid, benefit, service, insurance programs and activities. For through the one-stop center about upcoming training, or employment from, or example, given the nature and importance of welder training courses offered at XYZ employment in the administration of or unemployment insurance, if an LEP Technical Institute, an eligible training in connection with, any WIOA Title I- individual who speaks Urdu seeks provider. John decides to enroll in one of the financially assisted program or activity; information about unemployment insurance XYZ welding courses. XYZ, which conducts or from a State’s telephone call center that its training courses in English, must take reasonable steps to provide John meaningful (3) Such conduct has the purpose or assists unemployment insurance enrollees effect of unreasonably interfering with and applicants, the State may consider the access to the welder training course. proportion of Urdu-speaking LEP individuals Recipients may work together to provide an individual’s participation in a WIOA served or encountered by the State’s meaningful access, but remain independently Title I-financially assisted program or unemployment insurance program; the obligated to take reasonable steps to provide activity creating an intimidating, hostile frequency with which Urdu-speaking LEP meaningful access to programs and activities. or offensive program environment. individuals come in contact with the State’s In this regard, XYZ is not required to (b) Harassment because of sex unemployment insurance program; and the administer an English language learning class includes harassment based on gender resources available to the State and costs in itself. Instead, XYZ may coordinate with the identity; harassment based on failure to one-stop center to ensure that John receives determining how it will provide this LEP comport with sex stereotypes; individual with language assistance. Urdu is appropriate English language learning either a language that is rarely, if ever, encountered directly from the one-stop or from another harassment based on pregnancy, by this State’s UI program. Because low-cost organization that provides such English childbirth, and related medical commercial language services, such as language training. The English language class conditions; and sex-based harassment telephonic oral interpretation services, are would not be offered to John instead of the that is not sexual in nature but that is

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because of sex or where one sex is aid, benefit, service, or training that is (ii) Denying qualified individuals the targeted for the harassment. as effective as those provided to others, benefits of such a program or activity; or and consistent with the requirements of (iii) Subjecting qualified individuals § 38.11 Discrimination prohibited based on the Rehabilitation Act as amended by to discrimination; or citizenship status. WIOA, including those provisions that (2) Defeating or substantially In providing any aid, benefit, service, prioritize opportunities in competitive impairing the accomplishment of the or training under a WIOA Title I- integrated employment; disability-related objectives of either: financially assisted program or activity, (5) Deny a qualified individual with a (i) The WIOA Title I-financially a recipient must not directly or through disability the opportunity to participate assisted program or activity; or contractual, licensing, or other as a member of planning or advisory (ii) The nondiscrimination and equal arrangements, discriminate on the basis boards; or opportunity provisions of WIOA or this of citizenship status. Individuals (6) Otherwise limit a qualified part. protected under this section include individual with a disability in (g) A recipient, in the selection of citizens and nationals of the United enjoyment of any right, privilege, contractors, must not use criteria that States, lawfully admitted permanent advantage, or opportunity enjoyed by subject qualified individuals with resident aliens, refugees, asylees, and others receiving any aid, benefit, disabilities to discrimination on the parolees, and other immigrants service, or training. basis of disability. (h) A recipient must not administer a authorized by the Secretary of (b) A recipient must not, directly or licensing or certification program in a Homeland Security or the Secretary’s through contractual, licensing, or other manner that subjects qualified designee to work in the United States. arrangements, aid or perpetuate individuals with disabilities to Citizenship discrimination occurs when discrimination against qualified discrimination on the basis of disability, a recipient maintains and enforces individuals with disabilities by nor may a recipient establish policies and procedures that have the providing significant assistance to an requirements for the programs or purpose or effect of discriminating agency, organization, or person that activities of licensees or certified against individual beneficiaries, discriminates on the basis of disability entities that subject qualified applicants, and participants, on the in providing any aid, benefit, service, or individuals with disabilities to basis of their status as citizens or training to registrants, applicants, or discrimination on the basis of disability. nationals of the United States, lawfully participants. The programs or activities of entities admitted permanent resident aliens, (c) A recipient must not deny a that are licensed or certified by a refugees, asylees, and parolees, or other qualified individual with a disability recipient are not, themselves, covered immigrants authorized by the Secretary the opportunity to participate in WIOA by this part. of Homeland Security or the Secretary’s Title I-financially assisted programs or designee to work in the United States. (i) A recipient must not impose or activities despite the existence of apply eligibility criteria that screen out § 38.12 Discrimination prohibited based on permissibly separate or different or tend to screen out individuals with disability. programs or activities. disabilities or any class of individuals (a) In providing any aid, benefit, (d) A recipient must administer WIOA with disabilities from fully and equally service, or training under a WIOA Title Title I-financially assisted programs and enjoying any aid, benefit, service, I-financially assisted program or activities in the most integrated setting training, program, or activity, unless activity, a recipient must not, directly or appropriate to the needs of qualified such criteria can be shown to be through contractual, licensing, or other individuals with disabilities. necessary for the provision of any aid, arrangements, on the basis of disability: (e) A recipient must not, directly or benefit, service, training, program, or (1) Deny a qualified individual with a through contractual, licensing, or other activity being offered. disability the opportunity to participate arrangements, use standards, (j) Nothing in this part prohibits a in or benefit from the aid, benefit, procedures, criteria, or administrative recipient from providing any aid, service, or training, including methods: benefit, service, training, or advantages meaningful opportunities to seek (1) That have the purpose or effect of to individuals with disabilities, or to a employment and work in competitive subjecting qualified individuals with particular class of individuals with integrated settings; disabilities to discrimination on the disabilities, beyond those required by (2) Afford a qualified individual with basis of disability; this part. a disability an opportunity to participate (2) That have the purpose or effect of (k) A recipient must not place a in or benefit from the aid, benefits, defeating or substantially impairing surcharge on a particular individual services, or training that is not equal to accomplishment of the objectives of the with a disability, or any group of that afforded others; WIOA Title I-financially assisted individuals with disabilities, to cover (3) Provide a qualified individual program or activity with respect to the costs of measures, such as the with a disability with any aid, benefit, individuals with disabilities; or provision of auxiliary aids or program service, or training that is not as (3) That perpetuate the discrimination accessibility, that are required to effective in affording equal opportunity of another entity if both entities are provide that individual or group with to obtain the same result, to gain the subject to common administrative the nondiscriminatory treatment same benefit, or to reach the same level control or are agencies of the same State. required by WIOA Title I or this part. of achievement as that provided to (f) In determining the site or location (l) A recipient must not exclude, or others; of facilities, a grant applicant or otherwise deny equal aid, benefits, (4) Provide different, segregated, or recipient must not make selections that services, training, programs, or activities separate aid, benefit, service, or training have any of the following purposes or to, an individual or entity because of the to individuals with disabilities, or to effects: known disability of an individual with any class of individuals with (1) On the basis of disability: whom the individual or entity is known disabilities, unless such action is (i) Excluding qualified individuals to have a relationship or association. necessary to provide qualified from a WIOA Title I-financially assisted (m) The exclusion of an individual individuals with disabilities with any program or activity; without a disability from the benefits of

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a program limited by federal law to additional accessibility requirements ensure that, to the maximum extent individuals with disabilities, or the under other statutory authority, possible, individuals with disabilities exclusion of a specific class of including Title III of the ADA, that is receive the aid, benefit, service, training, individuals with disabilities from a not enforced by CRC. As indicated in or employment provided by the program limited by Federal statute or § 38.3(d)(10), compliance with this part recipient. Executive Order to a different class of does not affect a recipient’s obligation to (b) With regard to any aid, benefit, individuals with disabilities, is not comply with the applicable ADA service, training, and employment, a prohibited by this part. Standards for Accessible Design. recipient must also make reasonable (n) This part does not require a (b) Programmatic accessibility. All modifications in policies, practices, or recipient to provide any of the following WIOA Title I-financially assisted procedures when the modifications are to individuals with disabilities: programs and activities must be necessary to avoid discrimination on the (1) Personal devices, such as programmatically accessible, which basis of disability, unless making the wheelchairs; includes providing reasonable modifications would fundamentally (2) Individually prescribed devices, accommodations for individuals with alter the nature of the service, program, such as prescription eyeglasses or disabilities, making reasonable or activity. See the definition of hearing aids; modifications to policies, practices, and ‘‘fundamental alteration’’ in § 38.4(z). (3) Readers for personal use or study; procedures, administering programs in (1) In those circumstances where a or the most integrated setting appropriate, recipient believes that the proposed (4) Services of a personal nature, communicating with persons with modification would fundamentally alter including assistance in eating, toileting, disabilities as effectively as with others, the program, activity, or service, the or dressing. and providing appropriate auxiliary aids (o)(1) Nothing in this part requires an recipient has the burden of proving that or services, including assistive the modification would result in such individual with a disability to accept technology devices and services, where any accommodation, aid, benefit, an alteration. necessary to afford individuals with (2) The recipient must make the service, training, or opportunity disabilities an equal opportunity to provided under WIOA Title I or this decision that the modification would participate in, and enjoy the benefits of, result in such an alteration only after part that such individual chooses not to the program or activity. accept. considering all factors listed in the (2) Nothing in this part authorizes the § 38.14 Reasonable accommodations and definition of ‘‘fundamental alteration’’ representative or guardian of an reasonable modifications for individuals in § 38.4(z). The decision must be individual with a disability to decline with disabilities. accompanied by a written statement of food, water, medical treatment, or (a) With regard to any aid, benefit, the recipient’s reasons for reaching that medical services for that individual. service, training, and employment, a conclusion. The recipient must provide (p) Claims of no disability. Nothing in recipient must provide reasonable a copy of the statement of reasons to the this part provides the basis for a claim accommodations to qualified individual or individuals who requested that an individual without a disability individuals with disabilities who are the modification. was subject to discrimination because of applicants, registrants, eligible (3) If a modification would result in a lack of disability, including a claim applicants/registrants, participants, a fundamental alteration, the recipient that an individual with a disability was employees, or applicants for must take any other action that would granted auxiliary aids or services, employment, unless providing the not result in such an alteration, but reasonable modifications, or reasonable accommodation would cause undue would nevertheless ensure that, to the accommodations that were denied to an hardship. See the definitions of maximum extent possible, individuals individual without a disability. ‘‘reasonable accommodation’’ and with disabilities receive the aid, ‘‘undue hardship’’ in § 38.4(rrr)(1). benefits, services, training, or § 38.13 Accessibility requirements. (1) In those circumstances where a employment provided by the recipient. (a) Physical accessibility. No qualified recipient believes that the proposed individual with a disability may be accommodation would cause undue § 38.15 Communications with individuals with disabilities. excluded from participation in, or be hardship, the recipient has the burden denied the benefits of a recipient’s of proving that the accommodation (a) General—(1) Communications with service, program, or activity or be would result in such hardship. individuals with disabilities. (i) A subjected to discrimination by any (2) The recipient must make the recipient must take appropriate steps to recipient because a recipient’s facilities decision that the accommodation would ensure that communications with are inaccessible or unusable by cause such hardship only after individuals with disabilities, such as individuals with disabilities. Recipients considering all factors listed in the beneficiaries, registrants, applicants, that are subject to Title II of the ADA definition of ‘‘undue hardship’’ in eligible applicants/registrants, must also ensure that new facilities or § 38.4(rrr)(1). The decision must be participants, applicants for alterations of facilities that began accompanied by a written statement of employment, employees, members of construction after January 26, 1992, the recipient’s reasons for reaching that the public, and their companions are as comply with the applicable federal conclusion. The recipient must provide effective as communications with accessible design standards, such as the a copy of the statement of reasons to the others. ADA Standards for Accessible Design individual or individuals who requested (ii) For purposes of this section, (1991 or 2010) or the Uniform Federal the accommodation. ‘‘companion’’ means a family member, Accessibility Standards. In addition, (3) If a requested accommodation friend, or associate of an individual recipients that receive federal financial would result in undue hardship, the seeking access to an aid, benefit, service, assistance must meet their accessibility recipient must, after consultation with training, program, or activity of a obligations under Section 504 of the an individual with a disability (or recipient, who, along with such Rehabilitation Act and the individuals with disabilities), take any individual, is an appropriate person implementing regulations at 29 CFR part other action that would not result in with whom the recipient should 32. Some recipients may be subject to such hardship, but would nevertheless communicate.

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(2) Auxiliary aids and services. (i) A produce lags, choppy, blurry, or grainy same manner that it responds to other recipient must furnish appropriate images, or irregular pauses in telephone calls. auxiliary aids and services where communication; (c) Information and signage. (1) A necessary to afford individuals with (ii) A sharply delineated image that is recipient must ensure that interested disabilities, including beneficiaries, large enough to display the interpreter’s individuals, including individuals with registrants, applicants, eligible face, arms, hands, and fingers, and the visual or hearing impairments, can applicants/registrants, participants, participating individual’s face, arms, obtain information as to the existence members of the public, and hands, and fingers, regardless of the and location of accessible services, companions, an equal opportunity to individual’s body position; activities, and facilities. participate in, and enjoy the benefits of, (iii) A clear, audible transmission of (2)(i) A recipient must provide a WIOA Title I-financially assisted voices; and signage at the public entrances to each service, program, or activity of a (iv) Adequate training to users of the of its inaccessible facilities, directing recipient. technology and other involved users to a location at which they can (ii) The type of auxiliary aid or service individuals so that they may quickly obtain information about accessible necessary to ensure effective and efficiently set up and operate the facilities. The signage provided must communication will vary in accordance VRI. meet the Standards for Accessible with the method of communication (5) Electronic and information Design under the Americans with used by the individual; the nature, technology. When developing, Disabilities Act. Alternative standards length, and complexity of the procuring, maintaining, or using for the signage may be adopted when it communication involved; and the electronic and information technology, a is clearly evident that such alternative context in which the communication is recipient must utilize electronic and standards provide equivalent or greater taking place. In determining what types information technologies, applications, access to the information. See 36 CFR of auxiliary aids and services are or adaptations which: part 1191, appendix B, section 103. (i) Incorporate accessibility features necessary, a recipient must give primary (ii) The international symbol for consideration to the requests of for individuals with disabilities; (ii) Are consistent with modern accessibility must be used at each individuals with disabilities. In order to primary entrance of an accessible be effective, auxiliary aids and services accessibility standards, such as Section 508 Standards (36 CFR part 1194) and facility. must be provided in accessible formats, (d) Fundamental alteration. This in a timely manner, and in such a way W3C’s Web Content Accessibility Guidelines (WCAG) 2.0 AA; and section does not require a recipient to as to protect the privacy and take any action that it can demonstrate independence of the individual with a (iii) Provide individuals with disabilities access to, and use of, would result in a fundamental alteration disability. in the nature of a WIOA Title I- (3) Interpreters. (i) A recipient must information, resources, programs, and financially assisted service, program, or not require an individual with a activities that are fully accessible, or activity. disability to bring another individual to ensure that the opportunities and interpret for him or her. benefits provided by the electronic and (1) In those circumstances where a (ii) A recipient must not rely on an information technologies are provided recipient believes that the proposed adult accompanying an individual with to individuals with disabilities in an action would fundamentally alter the a disability to interpret or facilitate equally effective and equally integrated WIOA Title I-financially assisted communication except— manner. program, activity, or service, the (A) In an emergency involving an (b) Telecommunications. (1) Where a recipient has the burden of proving that imminent threat to the safety or welfare recipient communicates by telephone compliance with this section would of an individual or the public where with beneficiaries, registrants, result in such an alteration. there is no interpreter available; or applicants, eligible applicants/ (2) The decision that compliance (B) Where the individual with a registrants, participants, applicants for would result in such an alteration must disability specifically requests that an employment, employees, and/or be made by the recipient after accompanying adult interpret or members of the public, text telephones considering all resources available for facilitate communication, the (TTYs) or equally effective use in the funding and operation of the accompanying adult agrees to provide telecommunications systems must be WIOA Title I-financially assisted such assistance, and reliance on that used to communicate with individuals program, activity, or service, and must adult for such assistance is appropriate who are deaf or hard of hearing or have be accompanied by a written statement under the circumstances. speech impairments. of the recipient’s reasons for reaching (iii) A recipient must not rely on a (2) When a recipient uses an that conclusion. minor child to interpret or facilitate automated-attendant system, including, (3) If an action required to comply communication, except in an emergency but not limited to, voicemail and with this section would result in the involving an imminent threat to the messaging, or an interactive voice fundamental alteration described in safety or welfare of an individual or the response system, for receiving and paragraph (d)(1) of this section, the public where there is no interpreter directing incoming telephone calls, that recipient must take any other action that available. system must provide effective real-time would not result in such an alteration or (4) Video remote interpreting (VRI) communication with individuals using such burdens, but would nevertheless services. A recipient that chooses to auxiliary aids and services, including ensure that, to the maximum extent provide qualified interpreters via VRI TTYs and all forms of FCC-approved possible, individuals with disabilities services must ensure that it provides— telecommunications relay systems, receive the benefits or services provided (i) Real-time, full-motion video and including internet-based relay systems. by the recipient. audio over a dedicated high-speed, (3) A recipient must respond to wide-bandwidth video connection or telephone calls from a § 38.16 Service animals. wireless connection that delivers high- telecommunications relay service (a) General. Generally, a recipient quality video images that do not established under title IV of the shall modify its policies, practices, or Americans with Disabilities Act in the procedures to permit the use of a service

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animal by an individual with a employees, or invitees, as relevant, are devices, and the availability of storage disability. allowed to go. for the device, if requested by the user); (b) Exceptions. A recipient may ask an (2) Use of service animals in food (iv) Whether legitimate safety individual with a disability to remove a preparation areas. An employee, requirements can be established to service animal from the premises if— applicant or beneficiary with a permit the safe operation of the other (1) The animal is out of control and disability who needs to use a service power-driven mobility device in the the animal’s handler does not take animal in a food preparation area must specific facility; and effective action to control it; or be allowed to do so unless the employer (v) Whether the use of the other (2) The animal is not housebroken. recipient, after an individualized power-driven mobility device creates a (c) If an animal is properly excluded. assessment, can demonstrate, that the substantial risk of serious harm to the If a recipient properly excludes a service presence of the service animal presents immediate environment or natural or animal under paragraph (b) of this a direct threat to health or safety that cultural resources, or poses a conflict section, the recipient must give the cannot be eliminated or reduced by a with Federal land management laws. individual with a disability the reasonable accommodation to the opportunity to participate in the WIOA employee, applicant or beneficiary. § 38.18 Employment practices covered. Title I-financially assisted service, (h) Surcharges. A recipient must not (a) Employment practices covered. It program, or activity without having the ask or require an individual with a is an unlawful employment practice to service animal on the premises. disability to pay a surcharge because of discriminate on the basis of race, color, (d) Animal under handler’s control. A the individual’s service animal, even if religion, sex (including pregnancy, service animal must be under the people accompanied by pets are childbirth, and related medical control of its handler. A service animal required to pay fees, or to comply with conditions, transgender status, and must have a harness, leash, or other other requirements generally not gender identity), national origin, age, tether, unless either the handler is applicable to people without pets. If a disability, or political affiliation or unable because of a disability to use a recipient normally charges individuals belief in the administration of, or in harness, leash, or other tether, or the use for the damage they cause, an individual connection with: of a harness, leash, or other tether with a disability may be charged for (1) Any WIOA Title I-financially would interfere with the service damage caused by the individual’s assisted program or activity; and animal’s safe, effective performance of service animal. (2) Any program or activity that is work or tasks, in which case the service part of the one-stop delivery system and animal must be otherwise under the § 38.17 Mobility aids and devices. is operated by a one-stop partner listed handler’s control (e.g., voice control, (a) Use of wheelchairs and manually- in Section 121(b) of WIOA, to the extent signals, or other effective means). powered mobility aids. A recipient must that the program or activity is being (e) Care or supervision. A recipient is permit individuals with mobility conducted as part of the one-stop not responsible for the care or disabilities to use wheelchairs and delivery system. supervision of a service animal. manually-powered mobility aids, such (b) Employee selection procedures. In (f) Inquiries. A recipient must not ask as walkers, crutches, canes, braces, or implementing this section, a recipient about the nature or extent of a person’s other similar devices designed for use must comply with the Uniform disability, but may make two inquiries by individuals with mobility Guidelines on Employee Selection to determine whether an animal disabilities, in any areas open to Procedures, 41 CFR part 60–3, where qualifies as a service animal. A recipient pedestrian use. may ask if the animal is required (b)(1) Use of other power-driven applicable. because of a disability and what work or mobility devices. A recipient must make (c) Standards for employment-related task the animal has been trained to reasonable modifications in its policies, investigations and reviews. In any perform. A recipient must not require practices, or procedures to permit the investigation or compliance review, the documentation, such as proof that the use of other power-driven mobility Director must consider Equal animal has been certified, trained, or devices by individuals with mobility Employment Opportunity Commission licensed as a service animal. Generally, disabilities, unless the recipient can (EEOC) regulations, guidance and a recipient may not make these inquiries demonstrate that the class of other appropriate case law in determining about a service animal when it is readily power-driven mobility devices cannot whether a recipient has engaged in an apparent that an animal is trained to do be operated in accordance with unlawful employment practice. work or perform tasks for an individual legitimate safety requirements that the (d) Section 504 of the Rehabilitation with a disability (e.g., the dog is recipient has adopted. Act. As provided in § 38.3(b), 29 CFR observed guiding an individual who is (2) Assessment factors. In determining part 32, subparts B and C and appendix blind or has low vision, pulling a whether a particular other power-driven A, which implement the requirements person’s wheelchair, or providing mobility device can be allowed in a of Section 504 pertaining to assistance with stability or balance to an specific facility as a reasonable employment practices and employment- individual with an observable mobility modification under paragraph (b)(1) of related training, program accessibility, disability). this section, a recipient must consider— and reasonable accommodation, have (g) Access to areas of a recipient’s (i) The type, size, weight, dimensions, been adopted by this part. Therefore, facilities. and speed of the device; recipients must comply with the (1) In general. Individuals with (ii) The facility’s volume of pedestrian requirements set forth in those disabilities must be permitted to be traffic (which may vary at different regulatory sections as well as the accompanied by their service animals in times of the day, week, month, or year); requirements listed in this part. all areas of a recipient’s facilities where (iii) The facility’s design and (e) Employers, employment agencies, members of the public, participants in operational characteristics (e.g., whether or other entities. (1) Recipients that are services, programs or activities, its WIOA Title I-financially assisted also employers, employment agencies, beneficiaries, registrants, applicants, service, program, or activity is or other entities subject to or covered by eligible applicants/registrants, conducted indoors, its square footage, Titles I and II of the ADA should be applicants for employment and the density and placement of stationary aware of obligations imposed by those

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titles. See 29 CFR part 1630 and 28 CFR § 38.21 Interpretation of this part. (8) The anti-discrimination provision part 35. The Director will make any rulings of the Immigration and Nationality Act, (2) Recipients that are also employers, under, or interpretations of, the as amended (8 U.S.C. 1324b); and employment agencies, or other entities nondiscrimination and equal (9) Any other Federal civil rights law. subject to or covered by Section 503 of opportunity provisions of WIOA or this § 38.24 Effect on other laws and policies. the Rehabilitation Act of 1973 (29 U.S.C. part. 793) must meet their obligations (a) Effect of State or local law or other imposed by that provision. § 38.22 Delegation of administration and requirements. The obligation to comply interpretation of this part. (f) Immigration and Nationality Act. with the nondiscrimination and equal Similarly, recipients that are also (a) The Secretary may from time to opportunity provisions of WIOA or this employers covered by the anti- time assign to officials of other part are not excused or reduced by any discrimination provision of the departments or agencies of the Federal State or local law or other requirement Immigration and Nationality Act should Government (with the consent of such that, on a prohibited basis, prohibits or be aware of the obligations imposed by department or agency) responsibilities limits an individual’s eligibility to that provision. See 8 U.S.C. 1324b, as in connection with the effectuation of receive any aid, benefit, service, or amended. the nondiscrimination and equal training; to participate in any WIOA (g) State and local requirements. This opportunity provisions of WIOA and Title I-financially assisted program or section does not preempt consistent this part (other than responsibility for activity; to be employed by any State and local requirements. final decisions under § 38.112), recipient; or to practice any occupation including the achievement of effective or profession. § 38.19 Intimidation and retaliation coordination and maximum uniformity (b) Effect of private organization rules. prohibited. within the Department and within the The obligation to comply with the (a) A recipient must not discharge, executive branch of the Government in nondiscrimination and equal intimidate, retaliate, threaten, coerce or the application of the nondiscrimination opportunity provisions of WIOA Title I- discriminate against any individual and equal opportunity provisions of financially assisted program or activity because the individual has: WIOA or this part to similar programs and this part is not excused or reduced (1) Filed a complaint alleging a and similar situations. by any rule or regulation of any private violation of Section 188 of WIOA or this (b) Any action taken, determination organization, club, league or association part; made, or requirement imposed by an that, on a prohibited basis, prohibits or (2) Opposed a practice prohibited by official of another department or agency limits an individual’s eligibility to the nondiscrimination and equal acting under an assignment of participate in any WIOA financially opportunity provisions of WIOA or this responsibility under this section has the assisted program or activity to which part; same effect as if the action had been this part applies. (3) Furnished information to, or taken by the Director. (c) Effect of possible future exclusion from employment opportunities. A assisted or participated in any manner § 38.23 Coordination with other agencies. recipient must not exclude any in, an investigation, review, hearing, or (a) Whenever a compliance review or any other activity related to any of the individual from, or restrict any complaint investigation under this part individual’s participation in, any following: reveals possible violation of one or more (i) Administration of the program or activity based on the of the laws listed in paragraph (b) of this recipient’s belief or concern that the nondiscrimination and equal section, or of any other Federal civil opportunity provisions of WIOA or this individual will encounter limited future rights law, that is not also a violation of employment opportunities because of part; the nondiscrimination and equal (ii) Exercise of authority under those the individual’s race, color, religion, opportunity provisions of WIOA or this sex, national origin, age, disability, provisions; or part, the Director must attempt to notify (iii) Exercise of privilege secured by political affiliation or belief, citizenship the appropriate agency and provide it status, or participation in a WIOA Title those provisions; or with all relevant documents and I-financially assisted program or (4) Otherwise exercised any rights and information. activity. privileges under the nondiscrimination (b) This section applies to the and equal opportunity provisions of following: WIOA or this part. Subpart B—Recordkeeping and Other (1) Executive Order 11246, as Affirmative Obligations of Recipients (b) The sanctions and penalties amended; contained in Section 188(b) of WIOA or (2) Section 503 of the Rehabilitation Assurances this part may be imposed against any Act of 1973, as amended (29 U.S.C. recipient that engages in any such 793); § 38.25 A grant applicant’s obligation to retaliation or intimidation, or fails to (3) The affirmative action provisions provide a written assurance. take appropriate steps to prevent such of the Vietnam Era Veterans’ (a) Grant applicant’s obligation to activity. Readjustment Assistance Act of 1974, as provide a written assurance. (1) Each amended (38 U.S.C. 4212); application for financial assistance, § 38.20 Administration of this part. (4) The Equal Pay Act of 1963, as under Title I of WIOA, as defined in The Civil Rights Center, in the Office amended (29 U.S.C. 206d); § 38.4, must include the following of the Assistant Secretary for (5) Title VII of the Civil Rights Act of assurance: Administration and Management, U.S. 1964, as amended (42 U.S.C. 2000e et (i) As a condition to the award of Department of Labor, is responsible for seq.); financial assistance from the administering and enforcing the (6) The Age Discrimination in Department of Labor under Title I of nondiscrimination and equal Employment Act of 1967, as amended WIOA, the grant applicant assures that opportunity provisions of WIOA and (29 U.S.C. 621); it has the ability to comply with the this part, and for developing and issuing (7) The Americans with Disabilities nondiscrimination and equal policies, standards, guidance, and Act of 1990, as amended (42 U.S.C. opportunity provisions of the following procedures for effecting compliance. 12101 et seq.); laws and will remain in compliance for

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the duration of the award of federal section, as a condition to the approval Equal Opportunity Officers financial assistance: of the Four-Year Plan and the extension (A) Section 188 of the Workforce of any WIOA Title I assistance under the § 38.28 Designation of Equal Opportunity Officers. Innovation and Opportunity Act Plan. The State also must certify that it (WIOA), which prohibits discrimination has developed and maintains a (a) Governors. Every Governor must against all individuals in the United Nondiscrimination Plan under § 38.54. designate an individual as a State-level States on the basis of race, color, Equal Opportunity Officer (State-level religion, sex (including pregnancy, § 38.26 Duration and scope of the EO Officer), who reports directly to the childbirth, and related medical assurance. Governor and is responsible for State conditions, transgender status, and (a) Where the WIOA Title I financial Program–wide coordination of gender identity), national origin assistance is intended to provide, or is compliance with the equal opportunity (including limited English proficiency), in the form of, either personal property, and nondiscrimination requirements in age, disability, or political affiliation or real property, structures on real WIOA and this part, including but not belief, or against beneficiaries on the property, or interest in any such limited to §§ 38.51, 38.53, 38.54, and basis of either citizenship status or property or structures, the assurance 38.55 for State Programs. The State-level participation in any WIOA Title I- will obligate the recipient, or (in the EO Officer must have staff and resources financially assisted program or activity; case of a subsequent transfer) the sufficient to carry out these (B) Title VI of the Civil Rights Act of transferee, for the longer of: requirements. 1964, as amended, which prohibits (1) The period during which the (b) All recipients. Every recipient discrimination on the bases of race, property is used either: except small recipients and service color and national origin; (i) For a purpose for which WIOA providers, as defined in § 38.4(hhh) and (C) Section 504 of the Rehabilitation Title I financial assistance is extended; (ggg), must designate a recipient-level Act of 1973, as amended, which or Equal Opportunity Officer (recipient- prohibits discrimination against (ii) For another purpose involving the level EO Officer), who reports directly qualified individuals with disabilities; provision of similar services or benefits; to the individual in the highest-level (D) The Age Discrimination Act of or position of authority for the entity that 1975, as amended, which prohibits (2) The period during which either: is the recipient, such as the Governor, discrimination on the basis of age; and the Administrator of the State (i) The recipient retains ownership or (E) Title IX of the Education Department of Employment Services, possession of the property; or Amendments of 1972, as amended, the Chair of the Local Workforce (ii) The transferee retains ownership which prohibits discrimination on the Development Board, the Chief Executive or possession of the property without basis of sex in educational programs. Officer, the Chief Operating Officer, or compensating the Departmental (ii) The grant applicant also assures an equivalent official. The recipient- grantmaking agency for the fair market that, as a recipient of WIOA Title I level EO Officer must have staff and value of that ownership or possession. financial assistance, it will comply with resources sufficient to carry out the 29 CFR part 38 and all other regulations (b) In all other cases, the assurance requirements of this section and § 38.31. implementing the laws listed above. will obligate the recipient for the period The responsibilities of small recipients This assurance applies to the grant during which WIOA Title I financial and service providers are described in applicant’s operation of the WIOA Title assistance is extended. §§ 38.32 and 38.33. I-financially assisted program or § 38.27 Covenants. activity, and to all agreements the grant § 38.29 Recipients’ obligations regarding applicant makes to carry out the WIOA (a) Where WIOA Title I financial Equal Opportunity Officers. Title I-financially assisted program or assistance is provided in the form of a All recipients have the following activity. The grant applicant transfer of real property, structures, or obligations related to their EO Officers: understands that the United States has improvements on real property or (a) Ensuring that the EO Officer is a the right to seek judicial enforcement of structures, or interests in real property senior-level employee reporting directly this assurance. or structures, the instrument effecting or to the individual in the highest-level (2) The assurance is considered recording the transfer must contain a position of authority for the entity that incorporated by operation of law in the covenant assuring nondiscrimination is the recipient, such as the Governor, grant, cooperative agreement, contract and equal opportunity for the period the Administrator of the State or other arrangement whereby Federal described in § 38.25(a)(1). Department of Employment Services, financial assistance under Title I of (b) Where no Federal transfer of real the Chair of the Local Workforce WIOA is made available, whether it is property or interest therein from the Development Board, the Chief Executive explicitly incorporated in such Federal Government is involved, but Officer, the Chief Operating Officer, or document and whether there is a real property or an interest therein is an equivalent official; written agreement between the acquired or improved under a program (b) Designating an individual who can Department and the recipient, between of WIOA Title I financial assistance, the fulfill the responsibilities of an EO the Department and the Governor, recipient must include the covenant Officer as described in § 38.31; between the Governor and the recipient, described in paragraph (a) of this (c) Making the EO Officer’s name, or between recipients. The assurance section in the instrument effecting or position title, address, and telephone also may be incorporated in such grants, recording any subsequent transfer of number (voice and TDD/TTY) public; cooperative agreements, contracts, or such property. (d) Ensuring that the EO Officer’s other arrangements by reference. (c) When the property is obtained identity and contact information appear (b) Continuing State Programs. Each from the Federal Government, the on all internal and external Strategic Four-Year State Plan submitted covenant described in paragraph (a) of communications about the recipient’s by a State to carry out a continuing this section also may include a nondiscrimination and equal WIOA financially assisted program or condition coupled with a right of opportunity programs; activity must provide the text of the reverter to the Department in the event (e) Assigning sufficient authority, assurance in paragraph (a)(1) of this of a breach of the covenant. staff, and resources to the EO Officer,

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and support of top management, to appropriate languages and formats, the effective as communications with others ensure compliance with the procedures for filing a complaint; and that this notice is provided in nondiscrimination and equal (e) Conducting outreach and appropriate languages to ensure opportunity provisions of WIOA and education about equal opportunity and meaningful access for LEP individuals this part; and nondiscrimination requirements as described in § 38.9. (f) Ensuring that the EO Officer and consistent with § 38.40 and how an § 38.35 Equal opportunity notice/poster. the EO Officer’s staff are afforded the individual may file a complaint opportunity to receive (at the recipient’s consistent with § 38.69; The notice must contain the following expense) the training necessary and (f) Undergoing training (at the specific wording: appropriate to maintain competency. recipient’s expense) to maintain Equal Opportunity Is the Law competency of the EO Officer and staff, § 38.30 Requisite skill and authority of It is against the law for this recipient as required by the Director; and of Federal financial assistance to Equal Opportunity Officer. (g) If applicable, overseeing the discriminate on the following bases: development and implementation of the The EO Officer must be a senior level Against any individual in the United recipient’s Nondiscrimination Plan employee of the recipient who has the States, on the basis of race, color, under § 38.54. knowledge, skills and abilities necessary religion, sex (including pregnancy, to fulfill the responsibilities § 38.32 Small recipient Equal Opportunity childbirth, and related medical competently as described in this Officer obligations. conditions, sex stereotyping, subpart. Depending upon the size of the Although small recipients, as defined transgender status, and gender identity), recipient, the size of the recipient’s national origin (including limited WIOA Title I-financially assisted in § 38.4(hhh), do not need to designate EO Officers who have the full range of English proficiency), age, disability, or programs or activities, and the number political affiliation or belief, or, against of applicants, registrants, and responsibilities listed in § 38.31, they must designate an individual who will any beneficiary of, applicant to, or participants served by the recipient, the participant in programs financially EO Officer may, or may not, be assigned be responsible for adopting and publishing complaint procedures, and assisted under Title I of the Workforce other duties. However, the EO Officer Innovation and Opportunity Act, on the must not have other responsibilities or processing complaints, as explained in §§ 38.72 through 38.75. basis of the individual’s citizenship activities that create a conflict or the status or participation in any WIOA appearance of a conflict with the § 38.33 Service provider Equal Title I-financially assisted program or responsibilities of an EO Officer. Opportunity Officer obligations. activity. § 38.31 Equal Opportunity Officer Service providers, as defined in The recipient must not discriminate responsibilities. § 38.4(ggg), are not required to designate in any of the following areas: an EO Officer. The obligation for An Equal Opportunity Officer is Deciding who will be admitted, or ensuring service provider compliance responsible for coordinating a have access, to any WIOA Title I- with the nondiscrimination and equal recipient’s obligations under this part. financially assisted program or activity; opportunity provisions of WIOA and Those responsibilities include, but are providing opportunities in, or treating this part rests with the Governor or not limited to: any person with regard to, such a LWDA grant recipient, as specified in program or activity; or (a) Serving as a recipient’s liaison the State’s Nondiscrimination Plan. making employment decisions in the with CRC; Notice and Communication administration of, or in connection (b) Monitoring and investigating the with, such a program or activity. recipient’s activities, and the activities § 38.34 Recipients’ obligations to Recipients of federal financial of the entities that receive WIOA Title disseminate equal opportunity notice. assistance must take reasonable steps to I-financial assistance from the recipient, (a) A recipient must provide initial ensure that communications with to make sure that the recipient and its and continuing notice as defined in individuals with disabilities are as subrecipients are not violating their § 38.36 that it does not discriminate on effective as communications with nondiscrimination and equal any prohibited basis. This notice must others. This means that, upon request opportunity obligations under WIOA be provided to: and at no cost to the individual, Title I and this part, which includes (1) Registrants, applicants, and recipients are required to provide monitoring the collection of data eligible applicants/registrants; appropriate auxiliary aids and services required in this part to ensure (2) Participants; to qualified individuals with compliance with the nondiscrimination (3) Applicants for employment and disabilities. and equal opportunity requirements of employees; What To Do If You Believe You Have WIOA and this part; (4) Unions or professional Experienced Discrimination (c) Reviewing the recipient’s written organizations that hold collective policies to make sure that those policies bargaining or professional agreements If you think that you have been are nondiscriminatory; with the recipient; subjected to discrimination under a (d) Developing and publishing the (5) Subrecipients that receive WIOA WIOA Title I-financially assisted recipient’s procedures for processing Title I financial assistance from the program or activity, you may file a discrimination complaints under recipient; and complaint within 180 days from the §§ 38.72 through 38.73, including (6) Members of the public, including date of the alleged violation with either: tracking the discrimination complaints those with impaired vision or hearing The recipient’s Equal Opportunity filed against the recipient, developing and those with limited English Officer (or the person whom the procedures for investigating and proficiency. recipient has designated for this resolving discrimination complaints (b) As provided in § 38.15, the purpose); or filed against the recipient, making sure recipient must take appropriate steps to The Director, Civil Rights Center that those procedures are followed, and ensure that communications with (CRC), U.S. Department of Labor, 200 making available to the public, in individuals with disabilities are as Constitution Avenue NW., Room N–

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4123, Washington, DC 20210 or and provided within 90 days of January § 38.39 Communication of notice in electronically as directed on the CRC 3, 2017, or of the date this part first orientations. Web site at www.dol.gov/crc. applies to the recipient, whichever During each presentation to orient If you file your complaint with the comes later. new participants, new employees, and/ recipient, you must wait either until the or the general public to its WIOA Title recipient issues a written Notice of Final § 38.37 Notice requirement for service I-financially assisted program or Action, or until 90 days have passed providers. activity, in person or over the internet (whichever is sooner), before filing with The Governor or the LWDA grant or using other technology, a recipient the Civil Rights Center (see address recipient, as determined by the must include a discussion of rights and above). Governor and as provided in that State’s responsibilities under the nondiscrimination and equal If the recipient does not give you a Nondiscrimination Plan, will be opportunity provisions of WIOA and written Notice of Final Action within 90 responsible for meeting the notice days of the day on which you filed your this part, including the right to file a requirement provided in §§ 38.34 and complaint, you may file a complaint complaint of discrimination with the 38.35 with respect to a State’s service with CRC before receiving that Notice. recipient or the Director. This providers. However, you must file your CRC information must be communicated in complaint within 30 days of the 90-day § 38.38 Publications, broadcasts, and appropriate languages as required in deadline (in other words, within 120 other communications. § 38.9 and in formats accessible for days after the day on which you filed individuals with disabilities as required your complaint with the recipient). (a) Recipients must indicate that the in this part and specified in § 38.15. If the recipient does give you a WIOA Title I-financially assisted written Notice of Final Action on your program or activity in question is an § 38.40 Affirmative outreach. complaint, but you are dissatisfied with ‘‘equal opportunity employer/program,’’ Recipients must take appropriate the decision or resolution, you may file and that ‘‘auxiliary aids and services are steps to ensure that they are providing a complaint with CRC. You must file available upon request to individuals equal access to their WIOA Title I- your CRC complaint within 30 days of with disabilities,’’ in recruitment financially assisted programs and the date on which you received the brochures and other materials that are activities. These steps should involve Notice of Final Action. ordinarily distributed or communicated reasonable efforts to include members of in written and/or oral form, the various groups protected by these § 38.36 Recipients’ obligations to publish electronically and/or on paper, to staff, regulations including but not limited to equal opportunity notice. clients, or the public at large, to describe persons of different sexes, various racial (a) At a minimum, the Equal programs financially assisted under and ethnic/national origin groups, Opportunity Notice required by §§ 38.34 Title I of WIOA or the requirements for various religions, individuals with and 38.35 must be: participation by recipients and limited English proficiency, individuals (1) Posted prominently, in reasonable participants. Where such materials with disabilities, and individuals in numbers and places, in available and indicate that the recipient may be different age groups. Such efforts may conspicuous physical locations and on include, but are not limited to: reached by voice telephone, the the recipient’s Web site pages; (a) Advertising the recipient’s (2) Disseminated in internal materials must also prominently programs and/or activities in media, memoranda and other written or provide the telephone number of the such as newspapers or radio programs, electronic communications with staff; text telephone (TTY) or equally effective that specifically target various (3) Included in employee and telecommunications system, such as a populations; participant handbooks or manuals relay service, videophone, or captioned (b) Sending notices about openings in regardless of form, including electronic telephone used by the recipient, as the recipient’s programs and/or and paper form if both are available; and required by § 38.15(b). activities to schools or community (4) Provided to each participant and (b) Recipients that publish or service groups that serve various employee; the notice must be made part broadcast program information in the populations; and of each employee’s and participant’s news media must ensure that such (c) Consulting with appropriate file. It must be a part of both paper and publications and broadcasts state that community service groups about ways electronic files, if both are maintained. the WIOA Title I-financially assisted in which the recipient may improve its (b) The notice must be provided in program or activity in question is an outreach and service to various appropriate formats to registrants, equal opportunity employer/program (or populations. applicants, eligible applicants/ otherwise indicate that discrimination Data and Information Collection registrants, applicants for employment in the WIOA Title I-financially assisted Maintenance and employees and participants with program or activity is prohibited by visual impairments. Where notice has Federal law), and indicate that auxiliary § 38.41 Collection and maintenance of been given in an alternate format to aids and services are available upon equal opportunity data and other information. registrants, applicants, eligible request to individuals with disabilities. applicants/registrants, participants, (a) The Director will not require applicants for employment and (c) A recipient must not communicate submission of data that can be obtained employees with a visual impairment, a any information that suggests, by text or from existing reporting requirements or record that such notice has been given illustration, that the recipient treats sources, including those of other must be made a part of the employee’s beneficiaries, registrants, applicants, agencies, if the source is known and or participant’s file. participants, employees or applicants available to the Director. (c) The notice must be provided to for employment differently on any (b)(1) Each recipient must collect such participants in appropriate languages prohibited basis specified in § 38.5, data and maintain such records, in other than English as required in § 38.9. except as such treatment is otherwise accordance with procedures prescribed (d) The notice required by §§ 38.34 permitted under Federal law or this by the Director, as the Director finds and 38.35 must be initially published part. necessary to determine whether the

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recipient has complied or is complying (C) Government officials engaged in (1) The names of the parties to the with the nondiscrimination and equal enforcing this part, any other laws action or lawsuit; opportunity provisions of WIOA or this administered by the Department, or any (2) The forum in which each case was part. The system and format in which other Federal laws. See also § 38.44. filed; and the records and data are kept must be (ii) Knowledge of disability status or (3) The relevant case numbers. designed to allow the Governor and CRC medical condition only. Supervisors, (b) Each recipient (as part of a to conduct statistical or other managers, and other necessary compliance review conducted under quantifiable data analyses to verify the personnel may be informed regarding § 38.63, or monitoring activity carried recipient’s compliance with section 188 restrictions on the activities of out under § 38.65) must provide the of WIOA and this part. individuals with disabilities and following information: (1) The name of any other Federal (2) Such records must include, but are regarding reasonable accommodations agency that conducted a civil rights not limited to, records on applicants, for such individuals. registrants, eligible applicants/ compliance review or complaint (c) Each recipient must maintain, and investigation, and that found the grant registrants, participants, terminees, submit to CRC upon request, a log of applicant or recipient to be in employees, and applicants for complaints filed with the recipient that noncompliance, during the two years employment. Each recipient must allege discrimination on the basis(es) of before the grant application was filed or record the race/ethnicity, sex, age, and race, color, religion, sex (including CRC began its examination; and where known, disability status, of every pregnancy, childbirth, and related (2) Information about any applicant, registrant, participant, medical conditions, transgender status, administrative enforcement actions or terminee, applicant for employment, and gender identity), national origin, lawsuits that alleged discrimination on and employee. Beginning on January 3, age, disability, political affiliation or any protected basis, and that were filed 2019, each recipient must also record belief, citizenship, and/or participation against the grant applicant or recipient the limited English proficiency and in a WIOA Title I-financially assisted during the two years before the preferred language of each applicant, program or activity. The log must application or renewal application, registrant, participant, and terminee. include: The name and address of the compliance review, or monitoring Such information must be stored in a complainant; the basis of the complaint; activity. This information must include: manner that ensures confidentiality, and a description of the complaint; the date (i) The names of the parties; must be used only for the purposes of the complaint was filed; the disposition (ii) The forum in which each case was recordkeeping and reporting; and date of disposition of the complaint; filed; and determining eligibility, where and other pertinent information. (iii) The relevant case numbers. appropriate, for WIOA Title I-financially Information that could lead to (c) At the discretion of the Director, assisted programs or activities; identification of a particular individual grant applicants and recipients may be determining the extent to which the as having filed a complaint must be kept required to provide, in a timely manner, recipient is operating its WIOA Title I- confidential. any information and data that the financially assisted program or activity (d) Where designation of individuals Director considers necessary to in a nondiscriminatory manner; or other by race or ethnicity is required, the investigate complaints and conduct use authorized by law. guidelines of the Office of Management compliance reviews on bases prohibited (3) Any medical or disability-related and Budget must be used. under the nondiscrimination and equal information obtained about a particular (e) A service provider’s responsibility opportunity provisions of WIOA and individual, including information that for collecting and maintaining the this part. (d) At the discretion of the Director, could lead to the disclosure of a information required under this section recipients may be required to provide, disability, must be collected on separate may be assumed by the Governor or in a timely manner, the particularized forms. All such information, whether in LWDA grant recipient, as provided in information and/or to submit the hard copy, electronic, or both, must be the State’s Nondiscrimination Plan. maintained in one or more separate periodic reports that the Director files, apart from any other information § 38.42 Information to be provided to the considers necessary to determine about the individual, and treated as Civil Rights Center (CRC) by grant compliance with the nondiscrimination confidential. Whether these files are applicants and recipients. and equal opportunity provisions of electronic or hard copy, they must be In addition to the information which WIOA or this part. locked or otherwise secured (for must be collected, maintained, and, (e) At the discretion of the Director, example, through password protection). upon request, submitted to CRC under grant applicants may be required to (i) Knowledge of disability status or § 38.41: submit, in a timely manner, the particularized information that the medical condition and access to (a) Each grant applicant and recipient Director considers necessary to information in related files. Persons in must promptly notify the Director when determine whether or not the grant the following categories may be any administrative enforcement actions applicant, if financially assisted, would informed about an individual’s or lawsuits are filed against it alleging be able to comply with the disability or medical condition and have discrimination on the basis of race, nondiscrimination and equal access to the information in related files color, religion, sex (including opportunity provisions of WIOA or this under the following listed pregnancy, childbirth, and related circumstances: part. medical conditions, transgender status, (f) Where designation of individuals (A) Program staff who are responsible and gender identity), national origin by race or ethnicity is required, the for documenting eligibility, where (including limited English proficiency), guidelines of the Office of Management disability is an eligibility criterion for a age, disability, or political affiliation or and Budget must be used. program or activity. belief, or, for beneficiaries, applicants, (B) First aid and safety personnel who and participants only, on the basis of § 38.43 Required maintenance of records need access to underlying citizenship or participation in a WIOA by recipients. documentation related to a participant’s Title I-financially assisted program or (a) Each recipient must maintain the medical condition in an emergency. activity. This notification must include: following records, whether they exist in

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electronic form (including email) or certify to CRC that it has made efforts to recipient under § 38.41, including hard copy, for a period of not less than obtain the information and that the analyses by race/ethnicity, sex, limited three years from the close of the agency, institution, or person has failed English proficiency, preferred language, applicable program year: or refused to provide it. This age, and disability status; (1) The records of applicants, certification must list the name and (2) An investigation of any significant registrants, eligible applicants/ address of the agency, institution, or differences identified in paragraph (b)(1) registrants, participants, terminees, person that has possession of the of this section in participation in the employees, and applicants for information and the specific efforts the programs, activities, or employment employment; and grant applicant or recipient made to provided by the recipient, to determine (2) Such other records as are required obtain it. whether these differences appear to be under this part or by the Director. caused by discrimination. This (b) Where a discrimination complaint § 38.45 Confidentiality responsibilities of investigation must be conducted has been filed or compliance review grant applicants, recipients, and the through review of the recipient’s records initiated, every recipient that possesses Department. and any other appropriate means; and or maintains any type of hard-copy or Grant applicants, recipients and the (3) An assessment to determine electronic record related to the Department must keep confidential to whether the recipient has fulfilled its complaint (including records that have the extent possible, consistent with a administrative obligations under any relevance to the underlying fair determination of the issues, the Section 188 of WIOA or this part (for allegations in the complaint, as well as identity of any individual who furnishes example, recordkeeping, notice and records regarding actions taken on the information relating to, or assists in, an communication) and any duties complaint) or to the subject of the investigation or a compliance review, assigned to it under the compliance review must preserve all including the identity of any individual Nondiscrimination Plan. records, regardless whether hard-copy who files a complaint. An individual § 38.52 Governor’s liability for actions of or electronic, that may be relevant to a whose identity is disclosed must be protected from retaliation (See § 38.19). recipients the Governor has financially complaint investigation or compliance assisted under Title I of WIOA. review, and maintain those records for Subpart C—Governor’s (a) The Governor and the recipient are a period of not less than three years Responsibilities to Implement the jointly and severally liable for all from the date of final action related to Nondiscrimination and Equal violations of the nondiscrimination and resolution of the complaint or Opportunity Requirements of the equal opportunity provisions of WIOA compliance review. Workforce Innovation and Opportunity and this part by the recipient, unless the § 38.44 CRC access to information and Act (WIOA) Governor has: information sources. (1) Established and implemented a § 38.50 Subpart application to State Nondiscrimination Plan, under § 38.54, (a) Each grant applicant and recipient Programs. must permit access by the Director or designed to give a reasonable guarantee the Director’s designee during its hours This subpart applies to State Programs of the recipient’s compliance with such of operation to its premises and to its as defined in § 38.4. However, the provisions; employees and participants, to the provisions of § 38.52(b) do not apply to (2) Entered into a written contract extent that such individuals are on the State Workforce Agencies (SWA), with the recipient that clearly premises during the course of the because the Governor’s liability for any establishes the recipient’s obligations investigation, for the purpose of noncompliance on the part of a SWA regarding nondiscrimination and equal conducting complaint investigations, cannot be waived. opportunity; (3) Acted with due diligence to compliance reviews, or monitoring § 38.51 Governor’s oversight and monitor the recipient’s compliance with activities associated with a State’s monitoring responsibilities for State Programs. these provisions; and development and implementation of a (4) Taken prompt and appropriate Nondiscrimination Plan, and for The Governor is responsible for corrective action to effect compliance. inspecting and copying such books, oversight and monitoring of all WIOA (b) If the Director determines that the records, accounts and other materials as Title I-financially assisted State Governor has demonstrated substantial may be pertinent to ascertain Programs. This responsibility includes: compliance with the requirements of compliance with and ensure (a) Ensuring compliance with the paragraph (a) of this section, the enforcement of the nondiscrimination nondiscrimination and equal Director may recommend to the and equal opportunity provisions of opportunity provisions of WIOA and Secretary that the imposition of WIOA or this part. this part, and negotiating, where sanctions against the Governor be (b) Asserted considerations of privacy appropriate, with a recipient to secure waived and that sanctions be imposed or confidentiality are not a basis for voluntary compliance when only against the noncomplying withholding information from CRC and noncompliance is found under recipient. will not bar CRC from evaluating or § 38.91(b). seeking to enforce compliance with the (b) Annually monitoring the § 38.53 Governor’s oversight nondiscrimination and equal compliance of recipients with WIOA responsibilities regarding recipients’ opportunity provisions of WIOA and section 188 and this part, including a recordkeeping. this part. determination as to whether each The Governor must ensure that (c) Whenever any information that the recipient is conducting its WIOA Title recipients collect and maintain records Director asks a grant applicant or I-financially assisted program or activity in a manner consistent with the recipient to provide is in the exclusive in a nondiscriminatory way. At a provisions of § 38.41 and any possession of another agency, minimum, each annual monitoring procedures prescribed by the Director institution, or person, and that agency, review required by this paragraph must under § 38.41(a). The Governor must institution, or person fails or refuses to include: further ensure that recipients are able to furnish the information upon request, (1) A statistical or other quantifiable provide data and reports in the manner the grant applicant or recipient must analysis of records and data kept by the prescribed by the Director.

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§ 38.54 Governor’s obligations to develop that they are both nondiscriminatory § 38.55 Schedule of the Governor’s and implement a Nondiscrimination Plan. and contain the required language obligations regarding the (a)(1) Each Governor must establish regarding nondiscrimination and equal Nondiscrimination Plan. and implement a Nondiscrimination opportunity; (a) Within 180 days of either January Plan for State Programs as defined in (iv) Procedures for ensuring that 3, 2017, or the date on which the § 38.4(kkk). In those States in which one recipients comply with the Governor is required to review and agency contains both SWA or nondiscrimination and equal update their Methods of Administration unemployment insurance and WIOA opportunity requirements of § 38.5 as determined by the schedule in Title I-financially assisted programs, the regarding race, color, religion, sex § 37.55, whichever is later, a Governor Governor must develop a combined (including pregnancy, childbirth, and must: Nondiscrimination Plan. related medical conditions, transgender (1) Develop and implement a (2) Each Nondiscrimination Plan must status, and gender identity), national Nondiscrimination Plan consistent with be designed to give a reasonable origin (including limited English the requirements of this part; and guarantee that all recipients will proficiency), age, political affiliation or (2) Submit a copy of the comply, and are complying, with the belief, citizenship, or participation in Nondiscrimination Plan to the Director. nondiscrimination and equal any WIOA Title I-financially assisted (b) The Governor must promptly opportunity provisions of WIOA and program or activity; update the Nondiscrimination Plan whenever necessary, and submit the this part. (v) Procedures for ensuring that changes made to the Director in writing (b) The Nondiscrimination Plan must recipients comply with the at the time that any such updates are be: requirements of applicable Federal made. (1) In writing, addressing each disability nondiscrimination law, (c) Every two years from the date on requirement of paragraph (c) of this including Section 504; Title II of the which the initial Nondiscrimination section with narrative and Americans with Disabilities Act of 1990, Plan is submitted to the Director under documentation; as amended, if applicable; WIOA paragraph (a)(2) of this section, the (2) Reviewed and updated as required Section 188, and this part with regard to Governor must review the in § 38.55; and individuals with disabilities; (3) Signed by the Governor. Nondiscrimination Plan and the manner (c) At a minimum, each (vi) A system of policy in which it has been implemented, and Nondiscrimination Plan must: communication and training to ensure determine whether any changes are (1) Describe how the State Programs that EO Officers and members of the necessary in order for the State to and recipients have satisfied the recipients’ staffs who have been comply fully and effectively with the requirements of the following assigned responsibilities under the nondiscrimination and equal regulations: nondiscrimination and equal opportunity provisions of WIOA and (i) Sections 38.25 through 38.27 opportunity provisions of WIOA or this this part. (Assurances); part are aware of and can effectively (1) If any such changes are necessary, (ii) Sections 38.28 through 38.33 carry out these responsibilities; the Governor must make the appropriate (Equal Opportunity Officers); (vii) Procedures for obtaining prompt changes and submit them, in writing, to (iii) Sections 38.34 through 38.39 corrective action or, as necessary, the Director. (Notice and Communication); applying sanctions when (2) If the Governor determines that no (iv) Sections 38.41 through 38.45 noncompliance is found; and such changes are necessary, the (Data and Information Collection and (viii) Supporting documentation to Governor must certify, in writing, to the Maintenance); show that the commitments made in the Director that the Nondiscrimination (v) Section 38.40 (Affirmative Nondiscrimination Plan have been and/ Plan previously submitted continues in Outreach); or are being carried out. This supporting effect. (vi) Section 38.53 (Governor’s documentation includes, but is not (3) Submit a copy of all reports of any Oversight Responsibility Regarding limited to: monitoring reviews conducted by the Recipients’ Recordkeeping); (A) Policy and procedural issuances Governor pursuant to § 38.51(b) since (vii) Sections 38.72 and 38.73 concerning required elements of the the last Nondiscrimination Plan update. (Complaint Processing Procedures); and Nondiscrimination Plan; (viii) Sections 38.51 and 38.53 (B) Copies of monitoring instruments Subpart D—Compliance Procedures (Governor’s Oversight and Monitoring and instructions; Responsibilities for State Programs). § 38.60 Evaluation of compliance. (2) Include the following additional (C) Evidence of the extent to which From time to time, the Director may elements: nondiscrimination and equal conduct pre-approval compliance (i) A system for determining whether opportunity policies have been reviews of grant applicants for WIOA a grant applicant, if financially assisted, developed and communicated as Title I-financial assistance to determine and/or a training provider, if selected as required by this part; the ability to comply with the eligible under Section 122 of WIOA, is (D) Information reflecting the extent nondiscrimination and equal likely to conduct its WIOA Title I- to which equal opportunity training, opportunity provisions of WIOA and financially assisted programs or including training called for by this part and may conduct post-approval activities in a nondiscriminatory way, §§ 38.29(f) and 38.31(f), is planned and/ compliance reviews of recipients to and to comply with the regulations in or has been carried out; determine compliance with the this part; (E) Reports of monitoring reviews and nondiscrimination and equal (ii) A review of recipient policy reports of follow-up actions taken under opportunity provisions of WIOA and issuances to ensure they are those reviews where violations have this part. Reviews may focus on one or nondiscriminatory; been found, including, where more specific programs or activities, or (iii) A system for reviewing recipients’ appropriate, sanctions; and one or more issues within a program or job training plans, contracts, assurances, (F) Copies of any notices made under activity. The Director may also and other similar agreements to ensure §§ 38.34 through 38.40. investigate and resolve complaints

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alleging violations of the opportunity requirements of WIOA and (4) The opportunity, at any time nondiscrimination and equal this part. before receipt of the Final opportunity provisions of WIOA and (d) Where the Director determines Determination described in §§ 38.95 and this part. that the grant applicant for Federal 38.96, to make a documentary or other financial assistance under Title I of written submission that explains, § 38.61 Authority to issue subpoenas. WIOA, if financially assisted, is not validates or otherwise addresses the Section 183(c) of WIOA authorizes the likely to comply with the practices under review. issuance of subpoenas. The subpoena nondiscrimination and equal (c) The Director may conduct post- may require the appearance of opportunity requirements of WIOA or approval reviews using such techniques witnesses, and the production of this part, the Director must: as desk audits and on-site reviews. documents, from any place in the (1) Notify, in a timely manner, the United States, at any designated time Departmental grantmaking agency and § 38.64 Procedures for concluding post- and place. A subpoena may direct the the Assistant Attorney General of the approval compliance reviews. individual named on the subpoena to findings of the pre-approval compliance (a) Where, as the result of a post- take the following actions: review; and approval review, the Director has made (a) To appear: (2) Issue a Letter of Findings. The a finding of noncompliance, the Director (1) Before a designated CRC Letter of Findings must advise the grant must issue a Letter of Findings. This representative; applicant, in writing, of: Letter must advise the recipient, in (2) At a designated time and place; (i) The preliminary findings of the writing, of: (b) To give testimony; and/or review; (1) The preliminary findings of the (c) To produce documentary (ii) The proposed remedial or review; evidence. corrective action under § 38.90 and the (2) Where appropriate, the proposed Compliance Reviews time within which the remedial or remedial or corrective action to be corrective action should be completed; taken, and the time by which such § 38.62 Authority and procedures for pre- (iii) Whether it will be necessary for action should be completed, as provided approval compliance reviews. the grant applicant to enter into a in § 38.90; (a) As appropriate and necessary to written Conciliation Agreement as (3) Whether it will be necessary for ensure compliance with the described in §§ 38.91 and 38.93; and the recipient to enter into a written nondiscrimination and equal (iv) The opportunity to engage in assurance or Conciliation Agreement, as opportunity provisions of WIOA or this voluntary compliance negotiations. provided in §§ 38.92 and 38.93; and part, the Director may review any (e) If a grant applicant has agreed to (4) The opportunity to engage in certain remedial or corrective actions in application, or class of applications, for voluntary compliance negotiations. Federal financial assistance under Title order to receive WIOA Title I financial (b) Where no violation is found, the assistance, the Department must ensure I of WIOA, before and as a condition of recipient must be so informed in that the remedial or corrective actions their approval. The basis for such writing. review may be the assurance specified have been taken, or that a Conciliation in § 38.25, information and reports Agreement has been entered into, before § 38.65 Authority to monitor the activities submitted by the grant applicant under approving the award of further of a Governor. this part or guidance published by the assistance under WIOA Title I. If a grant (a) The Director may periodically Director, and any relevant records on applicant refuses or fails to take review the adequacy of the file with the Department. remedial or corrective actions or to enter Nondiscrimination Plan established by a (b) When awarding financial into a Conciliation Agreement, as Governor, as well as the adequacy of the assistance under Title I of WIOA, applicable, the Director must follow the Governor’s performance under the departmental grantmaking agencies procedures outlined in §§ 38.95 through Nondiscrimination Plan, to determine must consult with the Director to review 38.97. compliance with the requirements of whether the CRC has issued a Notice to § 38.63 Authority and procedures for §§ 38.50 through 38.55. The Director Show Cause under § 38.66(b) or a Final conducting post-approval compliance may review the Nondiscrimination Plan Determination against an applicant that reviews. during a compliance review under has been identified as a probable (a) The Director may initiate a post- §§ 38.62 and 38.63, or at another time. awardee. approval compliance review of any (b) Nothing in this subpart limits or (c) The grantmaking agency will recipient to determine compliance with precludes the Director from monitoring consider, in consultation with the the nondiscrimination and equal directly any recipient or from Director, the information referenced in opportunity provisions of WIOA and investigating any matter necessary to paragraph (b) of this section, along with this part. The initiation of a post- determine a recipient’s compliance with any other information provided by the approval review may be based on, but the nondiscrimination and equal Director in determining whether to need not be limited to, the results of opportunity provisions of WIOA or this award a grant or grants. Departmental routine program monitoring by other part. grantmaking agencies must consider Departmental or Federal agencies, or the (c) Where the Director determines that refraining from awarding new grants to nature or frequency of complaints. the Governor has not complied with the applicants or must consider including (b) A post-approval review must be oversight and monitoring special terms in the grant agreement for initiated by a Notification Letter, responsibilities set forth in the entities named by the Director as advising the recipient of: nondiscrimination and equal described in paragraph (b) of this (1) The practices to be reviewed; opportunity requirements of WIOA or section. Special terms will not be lifted (2) The programs to be reviewed; this part, the Director may: until a compliance review has been (3) The information, records, and/or (1) Issue a Letter of Findings. The conducted by the Director, and the data to be submitted by the recipient Letter of Findings must advise the Director has approved a determination within 30 days of the receipt of the Governor, in writing, of: that the applicant is likely to comply Notification Letter, unless this time (i) The preliminary findings of the with the nondiscrimination and equal frame is modified by the Director; and review;

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(ii) The proposed remedial or Notice to show cause why enforcement § 38.70 Required contents of complaint. corrective action under § 38. 90 and the proceedings under the Each complaint must be filed in time within which the remedial or nondiscrimination and equal writing, either electronically or in hard corrective action should be completed; opportunity provisions of WIOA or this copy, and must contain the following (iii) Whether it will be necessary for part should not be instituted. information: the Governor to enter into a conciliation (a) The complainant’s name, mailing agreement as described in §§ 38.91 and § 38.67 Methods by which a recipient may address, and, if available, email address show cause why enforcement proceedings (or another means of contacting the 38.93; and should not be instituted. (iv) The opportunity to engage in complainant). voluntary compliance negotiations. A recipient may show cause why (b) The identity of the respondent (the (2) If a Governor refuses or fails to enforcement proceedings should not be individual or entity that the take remedial or corrective actions or to instituted by, among other means: complainant alleges is responsible for enter into a conciliation agreement, the (a) Correcting the violation(s) that the discrimination). Director may follow the procedures brought about the Notice to Show Cause (c) A description of the complainant’s outlined in §§ 38.89, 38.90, and 38.91. and entering into a Conciliation allegations. This description must Agreement, under §§ 38.91 and 38.93; include enough detail to allow the § 38.66 Notice to Show Cause issued to a (b) Demonstrating that CRC does not Director or the recipient, as applicable, recipient. have jurisdiction; or to decide whether: (a) The Director may issue a Notice to (c) Demonstrating that the violation (1) CRC or the recipient, as applicable, Show Cause to a recipient failing to alleged by CRC did not occur. has jurisdiction over the complaint; comply with the requirements of this (2) The complaint was filed in time; part, where such failure results in the § 38.68 Failing to show cause. and inability of the Director to make a If the recipient fails to show cause (3) The complaint has apparent merit; finding. Such a failure includes, but is why enforcement proceedings should in other words, whether the not limited to, the recipient’s failure or not be initiated, the Director may follow complainant’s allegations, if true, would refusal to: the enforcement procedures outlined in indicate noncompliance with any of the (1) Submit requested information, § 38.95. nondiscrimination and equal records, and/or data within the opportunity provisions of WIOA or this timeframe specified in a Notification Complaint Processing Procedures part. (d) The written or electronic signature Letter issued pursuant to § 38.63; § 38.69 Complaint filing. (2) Submit, in a timely manner, of the complainant or the written or (a) Any person or the person’s information, records, and/or data electronic signature of the representative who believes that any of requested during a compliance review, complainant’s representative. the following circumstances exist may complaint investigation, or other action (e) A complainant may file a file a written complaint: to determine a recipient’s compliance complaint by completing and with the nondiscrimination and equal (1) A person, or any specific class of submitting CRC’s Complaint opportunity provisions of WIOA or this individuals, has been or is being Information and Privacy Act Consent part; or discriminated against on the basis of Forms, which may be obtained either (3) Provide CRC access in a timely race, color, religion, sex (including from the recipient’s EO Officer or from manner to a recipient’s premises, pregnancy, childbirth, and related CRC. The forms are available records, or employees during a medical conditions, transgender status, electronically on CRC’s Web site, and in compliance review or complaint and gender identity), national origin hard copy via postal mail upon request. investigation, as required in § 38.42(c). (including limited English proficiency), The latter requests may be sent to CRC (b) The Director may issue a Notice to age, disability, political affiliation or at the address listed in the notice Show Cause to a recipient after a Letter belief, citizenship status, or contained in § 38.35. participation in any WIOA Title I- of Findings and/or an Initial § 38.71 Right to representation. Determination has been issued, and financially assisted program or activity Both the complainant and the after a reasonable period of time has as prohibited by WIOA or this part. respondent have the right to be passed within which the recipient (2) Either the person, or any specific represented by an attorney or other refuses to negotiate a conciliation class of individuals, has been or is being individual of their choice. agreement with the Director regarding retaliated against as described in the violation(s). § 38.19. § 38.72 Required elements of a recipient’s (c) A Notice to Show Cause must (b) A person or the person’s complaint processing procedures. contain: representative may file a complaint with (a) The procedures that a recipient (1) A description of the violation and either the recipient’s EO Officer (or the adopts and publishes for processing a citation to the pertinent person the recipient has designated for complaints permitted under this part nondiscrimination or equal opportunity this purpose) or the Director. and WIOA Section 188 must state that provision(s) of WIOA and this part; Complaints filed with the Director the recipient will issue a written Notice (2) The corrective action necessary to should be sent to the address listed in of Final Action on complaints within 90 achieve compliance or, as may be the notice or filed electronically as days of the date on which the complaint appropriate, the concepts and principles described in the notice in § 38.35. is filed. of acceptable corrective or remedial (c) Generally, a complaint must be (b) At a minimum, the procedures action and the results anticipated; and filed within 180 days of the alleged must include the following elements: (3) A request for a written response to discrimination or retaliation. However, (1) Initial, written notice to the the findings, including commitments to for good cause shown, the Director may complainant that contains the following corrective action or the presentation of extend the filing time. The time period information: opposing facts and evidence. for filing is for the administrative (i) An acknowledgment that the (d) A Notice to Show Cause must give convenience of CRC, and does not create recipient has received the complaint; the recipient 30 days from receipt of the a defense for the respondent. and

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(ii) Notice that the complainant has of the date on which the non-breaching § 38.77 Extension of deadline to file the right to be represented in the party learns of the alleged breach; and complaint. complaint process; (ii) The Director must evaluate the (a) The Director may extend the 30- (iii) Notice of rights contained in circumstances to determine whether the day time limit for filing a complaint: § 38.35; and agreement has been breached. If the (1) If a recipient does not include in (iv) Notice that the complainant has Director determines that the agreement its Notice of Final Action the required the right to request and receive, at no has been breached, the complaint will notice about the complainant’s right to cost, auxiliary aids and services, be reinstated and processed in file with the Director, as described in language assistance services, and that accordance with the recipient’s § 38.72(b)(5); or this notice will be translated into the procedures. (2) For other good cause shown. non-English languages as required in (4) If the parties do not reach an (b) The complainant has the burden of §§ 38.4(h) and (i), 38.34, and 38.36. agreement under ADR, the complainant proving to the Director that the time (2) A written statement of the issue(s), may file a complaint with the Director limit should be extended. provided to the complainant, that as described in §§ 38.69 through 38.71. § 38.78 Determinations regarding includes the following information: acceptance of complaints. (i) A list of the issues raised in the § 38.73 Responsibility for developing and complaint; and publishing complaint processing The Director must decide whether (ii) For each such issue, a statement procedures for service providers. CRC will accept a particular complaint whether the recipient will accept the The Governor or the LWDA grant for resolution. For example, a complaint issue for investigation or reject the recipient, as provided in the State’s need not be accepted if: issue, and the reasons for each rejection. Nondiscrimination Plan, must develop (a) It has not been timely filed; (b) CRC has no jurisdiction over the (3) A period for fact-finding or and publish, on behalf of its service complaint; or investigation of the circumstances providers, the complaint processing underlying the complaint. (c) CRC has previously decided the procedures required in § 38.72. The matter. (4) A period during which the service providers must then follow recipient attempts to resolve the those procedures. § 38.79 When a complaint contains complaint. The methods available to insufficient information. resolve the complaint must include § 38.74 Recipient’s obligations when it (a) If a complaint does not contain alternative dispute resolution (ADR), as determines that it has no jurisdiction over a complaint. enough information to identify the described in paragraph (c) of this respondent or the basis of the alleged section. If a recipient determines that it does discrimination, the timeliness of the (5) A written Notice of Final Action, not have jurisdiction over a complaint, complaint, or the apparent merit of the provided to the complainant within 90 it must notify the complainant, in complaint, the Director must try to get days of the date on which the complaint writing within five business days of the needed information from the was filed, that contains the following making such determination. This Notice complainant. information: of Lack of Jurisdiction must include: (b) The Director may close the (i) For each issue raised in the (a) A statement of the reasons for that complainant’s file, without prejudice, if: complaint, a statement of either: determination; and (1) The Director makes reasonable (A) The recipient’s decision on the (b) Notice that the complainant has a efforts to try to find the complainant, issue and an explanation of the reasons right to file a complaint with CRC but is unable to reach him or her; or underlying the decision; or within 30 days of the date on which the (2) The complainant does not provide (B) A description of the way the complainant receives the Notice. the needed information to CRC within parties resolved the issue; and the time specified in the request for (ii) Notice that the complainant has a § 38.75 If the complainant is dissatisfied after receiving a Notice of Final Action. more information. right to file a complaint with CRC (c) If the Director closes the within 30 days of the date on which the If the recipient issues its Notice of complainant’s file, the Director must Notice of Final Action is received if the Final Action before the 90-day period send written notice to the complainant’s complainant is dissatisfied with the ends, but the complainant is dissatisfied last known address, email address (or recipient’s final action on the with the recipient’s decision on the another known method of contacting the complaint. complaint, the complainant or the complainant in writing). (c) The procedures the recipient complainant’s representative may file a adopts must provide for alternative complaint with the Director within 30 § 38.80 Lack of jurisdiction. dispute resolution (ADR). The days after the date on which the If CRC does not have jurisdiction over recipient’s ADR procedures must complainant receives the Notice. a complaint, the Director must: provide that: (a) Notify the complainant in writing (1) The complainant may attempt § 38.76 If a recipient fails to issue a Notice and explain why the complaint falls ADR at any time after the complainant of Final Action within 90 days after the complaint was filed. outside the coverage of the has filed a written complaint with the nondiscrimination and equal If, by the end of 90 days from the date recipient, but before a Notice of Final opportunity provisions of WIOA or this on which the complainant filed the Action has been issued. part; and (2) The choice whether to use ADR or complaint, the recipient has failed to (b) Where possible, transfer the the customary process rests with the issue a Notice of Final Action, the complaint to an appropriate Federal, complainant. complainant or the complainant’s State or local authority. (3) A party to any agreement reached representative may file a complaint with under ADR may notify the Director in the Director within 30 days of the § 38.81 Complaint referral. the event the agreement is breached. In expiration of the 90-day period. In other The Director refers complaints to such circumstances, the following rules words, the complaint must be filed with other agencies in the following will apply: the Director within 120 days of the date circumstances: (i) The non-breaching party may on which the complaint was filed with (a) Where the complaint alleges notify with the Director within 30 days the recipient. discrimination based on age, and the

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complaint falls within the jurisdiction complainant, in writing, about that fact, equal opportunity provisions of WIOA of the Age Discrimination Act of 1975, and provide the complainant the or this part the Director must issue an as amended, then the Director must Director’s reasons for making that Initial Determination. The Initial refer the complaint, in accordance with determination. Determination must include: the provisions of 45 CFR 90.43(c)(3). (a) The specific findings of the (b) Where the only allegation in the § 38.83 Notice of complaint acceptance. investigation; complaint is a charge of individual If the Director accepts the complaint (b) The corrective or remedial action employment discrimination that is for resolution, the Director must notify that the Department proposes to the covered both by WIOA or this part and in writing the complainant, the respondent, under § 38.90; by one or more of the laws listed in respondent, and the grantmaking (c) The time by which the respondent paragraphs (b)(1) through (4) of this agency. The notice must: must complete the corrective or section, then the complaint is a ‘‘joint (a) State that the complaint will be remedial action; complaint,’’ and the Director may refer accepted; (d) Whether it will be necessary for it to the EEOC for investigation and (b) Identify the issues over which CRC the respondent to enter into a written conciliation under the procedures has accepted jurisdiction; and agreement under §§ 38.91 through described in 29 CFR part 1640 or 1691, (c) Explain the reasons why any 38.93; and as appropriate. The relevant laws are: issues were rejected. (e) The opportunity to engage in (1) Title VII of the Civil Rights Act of voluntary compliance negotiations. § 38.84 Contacting CRC about a complaint. 1964, as amended (42 U.S.C. 2000e to § 38.88 Director’s Final Determination that 2000e–17); Both the complainant and the respondent, or their representative, may no reasonable cause exists to believe that (2) The Equal Pay Act of 1963, as a violation has taken place. amended (29 U.S.C. 206(d)); contact CRC for information about the If the Director determines that there is (3) The Age Discrimination in complaint. The Director will determine no reasonable cause to believe that a Employment Act of 1976, as amended what information, if any, about the violation has taken place, the Director (29 U.S.C. 621, et seq.); and complaint will be released. must issue a Final Determination under (4) Title I of the Americans with § 38.85 Alternative dispute resolution. § 38.96. The Final Determination Disabilities Act of 1990, as amended (42 represents the Department’s final agency U.S.C. 12101 et seq.). The Director may offer the option of (c) Where the complaint alleges alternative dispute resolution (ADR) of action on the complaint. the complaint filed with CRC. In such discrimination by an entity that operates § 38.89 When the recipient fails or refuses a program or activity financially assisted circumstances, the following rules to take the corrective action listed in the by a Federal grantmaking agency other apply: Initial Determination. (a) ADR is voluntary; consent must be than the Department, but that Under such circumstances, following given by the complainant and participates as a partner in a one-stop a complaint investigation or compliance respondent before the ADR process will delivery system, the following review, the Department may take the proceed. procedures apply: actions described in § 38.95. (1) Where the complaint alleges (b) The ADR will be conducted under discrimination on a basis that is the guidance of the Director. § 38.90 Corrective or remedial action that prohibited both by Section 188 of WIOA (c) ADR may take place at any time may be imposed when the Director finds a and by a civil rights law enforced by the after a complaint has been filed under violation. Federal grantmaking agency, then CRC § 38.69, as deemed appropriate by the (a) A Letter of Findings, Notice to and the grantmaking agency have dual Director. Show Cause, or Initial Determination, jurisdiction over the complaint, and the (d) CRC will not suspend its issued under § 38.62 or § 38.64, §§ 38.66 Director will refer the complaint to the investigation and complaint processes and 38.67, or § 38.87, respectively, must grantmaking agency for processing. In during ADR. include the specific steps the grant applicant or recipient, as applicable, such circumstances, the grantmaking Complaint Determinations agency’s regulations will govern the must take within a stated period of time processing of the complaint. § 38.86 Notice at conclusion of complaint in order to achieve voluntary (2) Where the complaint alleges investigation. compliance. discrimination on a basis that is At the conclusion of the investigation (b) Such steps may include: prohibited by Section 188 of WIOA, but of the complaint, the Director must take (1) Actions to end and/or redress the not by any civil rights laws enforced by the following actions: violation of the nondiscrimination and the Federal grantmaking agency, then (a) Determine whether there is equal opportunity provisions of WIOA CRC has sole jurisdiction over the reasonable cause to believe that the or this part; complaint, and will retain the complaint respondent has violated the (2) Make-whole relief where and process it pursuant to this part. nondiscrimination and equal discrimination has been identified, Such bases generally include religion, opportunity provisions of WIOA or this including, as appropriate, back pay political affiliation or belief, citizenship, part; and (which must not accrue from a date and/or participation in a WIOA Title I- (b) Notify the complainant, the more than 2 years before the filing of the financially assisted program or activity. respondent, and the grantmaking complaint or the initiation of a (d) Where the Director makes a agency, in writing, of that determination compliance review), or other monetary referral under this section, the Director as provided in §§ 38.87 and 38.88. relief; hire or reinstatement; retroactive must notify the complainant and the seniority; promotion; benefits or other respondent about the referral. § 38.87 Director’s Initial Determination that services discriminatorily denied; and reasonable cause exists to believe that a (3) Such other remedial or affirmative § 38.82 Notice that complaint will not be violation has taken place. relief as the Director deems necessary, accepted. If the Director finds reasonable cause including but not limited to outreach, If a complaint will not be accepted, to believe that the respondent has recruitment and training designed to the Director must notify the violated the nondiscrimination and ensure equal opportunity.

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(c) Monetary relief may not be paid (b)(1) of this section, the Governor must enforcement of the agreement itself and from Federal funds. submit to the Director for approval, as shall not be required to present proof of applicable: the underlying violations resolved by § 38.91 Post-violation procedures. (i) Written assurance that the required the agreement; and (a) Violations at the State level. Where action has been taken, as described in (i) Provide for enforcement for a the Director has determined that a § 38.92; or breach of the agreement. violation of the nondiscrimination and (ii) A copy of the Conciliation equal opportunity provisions of WIOA Agreement, as described in § 38.93. § 38.94 When voluntary compliance cannot be secured. or this part has occurred at the State (4) The Director may disapprove any level, the Director must notify the written assurance or Conciliation The Director will conclude that Governor of that State through the Agreement submitted for approval compliance cannot be secured by issuance of a Letter of Findings, Notice under paragraph (b)(3) of this section voluntary means under the following to Show Cause, or Initial Determination, that fails to satisfy each of the circumstances: as appropriate, under § 38.62 or § 38.64, applicable requirements provided in (a) The Governor, grant applicant or §§ 38.66 and 38.67, or § 38.87, §§ 38.92 and 38.93. recipient fails to or refuses to correct the respectively. The Director may secure (c) Violations in National Programs. violation(s) within the time period compliance with the nondiscrimination Where the Director has determined that established by the Letter of Findings, and equal opportunity provisions of a violation of the nondiscrimination and Notice to Show Cause or Initial WIOA and this part through, among equal opportunity provisions of WIOA Determination; or other means, the execution of a written or this part has occurred in a National (b) The Director has not approved an assurance or Conciliation Agreement. Program, the Director must notify the extension of time for agreement on (b) Violations below State level. Federal grantmaking agency and the voluntary compliance under Where the Director has determined that recipient by issuing a Letter of Findings, § 38.91(b)(1)(ii) and the Director either: (1) Has not been notified under a violation of the nondiscrimination and Notice to Show Cause, or Initial § 38.91(b)(3) that the Governor, grant equal opportunity provisions of WIOA Determination, as appropriate, under applicant, or recipient has agreed to or this part has occurred below the State § 38.62 or § 38.63, §§ 38.66 and 38.67, or voluntary compliance; level, the Director must so notify the § 38.87, respectively. The Director may (2) Has disapproved a written Governor and the violating recipient(s) secure compliance with the assurance or Conciliation Agreement, through the issuance of a Letter of nondiscrimination and equal under § 38.91(b)(4); or Findings, Notice to Show Cause or opportunities provisions of WIOA Initial Determination, as appropriate, (3) Has received notice from the through, among other means, the Governor, under § 38.91(b)(2), that the under § 38.62 or § 38.64, §§ 38.66 and execution of a written assurance or 38.67, or § 38.87, respectively. grant applicant or recipient will not conciliation agreement under § 38.92 or comply voluntarily. (1) Such issuance may: § 38.93. (i) Direct the Governor to initiate § 38.95 Enforcement when voluntary negotiations immediately with the § 38.92 Written assurance. compliance cannot be secured. violating recipient(s) to secure A written assurance is the resolution If the Director concludes that compliance by voluntary means. document that may be used when the compliance cannot be secured by (ii) Direct the Governor to complete Director determines that a recipient has, voluntary means, the Director must such negotiations within 30 days of the within fifteen business days after receipt either: Governor’s receipt of the Notice to Show of the Letter of Findings or Initial (a) Issue a Final Determination; Cause or within 45 days of the Determination identifying the (b) Refer the matter to the Attorney Governor’s receipt of the Letter of violations, taken all corrective actions to General with a recommendation that an Findings or Initial Determination, as remedy the violations specified in those appropriate civil action be instituted; or applicable. The Director reserves the documents. (c) Take such other action as may be right to enter into negotiations with the provided by law. recipient at any time during the period. § 38.93 Required elements of a For good cause shown, the Director may conciliation agreement. § 38.96 Contents of a Final Determination approve an extension of time to secure A conciliation agreement must: of a violation. voluntary compliance. The total time (a) Be in writing; A Final Determination must contain allotted to secure voluntary compliance (b) Address the legal and contractual the following information: must not exceed 60 days. obligations of the recipient; (a) A statement of the efforts made to (iii) Include a determination as to (c) Address each cited violation; achieve voluntary compliance, and a whether compliance must be achieved (d) Specify the corrective or remedial statement that those efforts have been by: action to be taken within a stated period unsuccessful; (A) Immediate correction of the of time to come into compliance; (b) A statement of those matters upon violation(s) and written assurance that (e) Provide for periodic reporting on which the grant applicant or recipient such violations have been corrected, the status of the corrective and remedial and CRC continue to disagree; under § 38.92; or action; (c) A list of any modifications to the (B) Entering into a written (f) State that the violation(s) will not findings of fact or conclusions that were Conciliation Agreement under § 38.93. recur; set forth in the Initial Determination, (2) If the Governor determines, at any (g) State that nothing in the agreement Notice to Show Cause or Letter of time during the period described in will prohibit CRC from sending the Findings; paragraph (b)(1)(ii) of this section, that agreement to the complainant, making it (d) A statement of the grant a recipient’s compliance cannot be available to the public, or posting it on applicant’s or recipient’s liability, and, achieved by voluntary means, the the CRC or recipient’s Web site; if appropriate, the extent of that Governor must so notify the Director. (h) State that, in any proceeding liability; (3) If the Governor is able to secure involving an alleged violation of the (e) A description of the corrective or voluntary compliance under paragraph conciliation agreement, CRC may seek remedial actions that the grant applicant

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or recipient must take to come into within 10 days of the receipt of the in funding as a result of changed compliance; Notification of Breach of Conciliation computations of formula awards. (f) A notice that if the grant applicant Agreement may result, after opportunity or recipient fails to come into for a hearing, in the termination or § 38.111 Hearing procedures. compliance within 10 days of the date denial of the grant, or discontinuation of (a) Notice of opportunity for hearing. on which it receives the Final assistance, as appropriate, or in referral As part of a Final Determination, or a Determination, one or more of the to the Department of Justice with a Notification of Breach of a Conciliation following consequences may result: request from the Department to file suit; Agreement, the Director must include, (1) After the grant applicant or (e) Advise the violating party of the and serve on the grant applicant or recipient is given the opportunity for a right to request a hearing, and reference recipient (by certified mail, return hearing, its WIOA Title I financial the applicable procedures in § 38.111; receipt requested), a notice of assistance may be terminated, and opportunity for hearing. discontinued, or withheld in whole or (f) Include a determination as to the (b) Complaint; request for hearing; in part, or its application for such Governor’s liability, if any, in answer. (1) In the case of financial assistance may be denied, as accordance with the provisions of noncompliance that cannot be appropriate; § 38.52. voluntarily resolved, the Final (2) The Secretary of Labor may refer Determination or Notification of Breach the case to the Department of Justice § 38.100 Notification of an enforcement of Conciliation Agreement is considered with a request to file suit against the action based on breach of conciliation the Department’s formal complaint. agreement. grant applicant or recipient; or (2) To request a hearing, the grant (3) The Secretary may take any other In such circumstances, the Director applicant or recipient must file a written action against the grant applicant or must notify: answer to the Final Determination or recipient that is provided by law; (a) The grantmaking agency; and Notification of Breach of Conciliation (g) A notice of the grant applicant’s or (b) The Governor, recipient or grant Agreement, and a copy of the Final recipient’s right to request a hearing applicant, as applicable. Determination or Notification of Breach under the procedures described in of Conciliation Agreement, with the Subpart E—Federal Procedures for §§ 38.112 through 37.115; and Office of the Administrative Law Judges, Effecting Compliance (h) A determination of the Governor’s 800 K Street NW., Suite 400, liability, if any, under § 38.52. § 38.110 Enforcement procedures. Washington, DC 20001. (i) The answer must be filed within 30 § 38.97 Notification of finding of (a) Sanctions; judicial enforcement. If days of the date of receipt of the Final noncompliance. compliance has not been achieved after Determination or Notification of Breach Where a compliance review or issuance of a Final Determination under of Conciliation Agreement. complaint investigation results in a §§ 38.95 and 38.96, or a Notification of (ii) A request for hearing must be set finding of noncompliance, the Director Breach of Conciliation Agreement under forth in a separate paragraph of the must notify: §§ 38.98 through 38.100, the Secretary answer. (a) The grant applicant or recipient; may: (iii) The answer must specifically (b) The grantmaking agency; and (1) After opportunity for a hearing, admit or deny each finding of fact in the (c) The Assistant Attorney General. suspend, terminate, deny or discontinue Final Determination or Notification of the WIOA Title I financial assistance, in Breach of Conciliation Agreement. Breaches of Conciliation Agreements whole or in part; Where the grant applicant or recipient § 38.98 Notification of Breach of (2) Refer the matter to the Attorney does not have knowledge or information Conciliation Agreement. General with a recommendation that an sufficient to form a belief, the answer (a) When it becomes known to the appropriate civil action be instituted; or may so state and the statement will have Director that a Conciliation Agreement (3) Take such action as may be the effect of a denial. Findings of fact has been breached, the Director may provided by law, which may include not denied are considered admitted. The issue a Notification of Breach of seeking injunctive relief. answer must separately state and Conciliation Agreement. (b) Deferral of new grants. When identify matters alleged as affirmative (b) The Director must send a proceedings under § 38.111 have been defenses, and must also set forth the Notification of Breach of Conciliation initiated against a particular recipient, matters of fact and law relied on by the Agreement to the Governor, the the Department may defer action on that grant applicant or recipient. grantmaking agency, and/or other recipient’s applications for new WIOA (3) The grant applicant or recipient party(ies) to the Conciliation Title I financial assistance until a Final must simultaneously serve a copy of its Agreement, as applicable. Decision under § 38.112 has been filing on the Office of the Solicitor, Civil rendered. Deferral is not appropriate Rights and Labor-Management Division, § 38.99 Contents of Notification of Breach when WIOA Title I financial assistance Room N–2474, U.S. Department of of Conciliation Agreement. is due and payable under a previously Labor, 200 Constitution Avenue NW., A Notification of Breach of approved application. Washington, DC 20210. Conciliation Agreement must: (1) New WIOA Title I financial (4)(i) The failure of a grant applicant (a) Specify any efforts made to assistance includes all assistance for or recipient to request a hearing under achieve voluntary compliance, and which an application or approval, this paragraph (b), or to appear at a indicate that those efforts have been including renewal or continuation of hearing for which a date has been set, unsuccessful; existing activities, or authorization of waives the right to a hearing; and (b) Identify the specific provisions of new activities, is required during the (ii) Whenever a hearing is waived, all the Conciliation Agreement violated; deferral period. allegations of fact contained in the Final (c) Determine liability for the (2) New WIOA Title I financial Determination or Notification of Breach violation and the extent of the liability; assistance does not include assistance of Conciliation Agreement are (d) Indicate that failure of the approved before the beginning of considered admitted, and the Final violating party to come into compliance proceedings under § 38.111, or increases Determination or Notification of Breach

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of Conciliation Agreement becomes the must specifically identify the finding or terminating or denying the grant or Final Decision of the Secretary as of the conclusion to which exception is taken. continuation of assistance; or imposing day following the last date by which the (iv) Reply. Within 45 days of the date other appropriate sanctions for the grant grant applicant or recipient was of filing such exceptions, a reply, which applicant’s, Governor’s, or recipient’s required to request a hearing or was to must be limited to the scope of the failure to comply with the required appear at a hearing. exceptions, may be filed and served by corrective and/or remedial actions, or (c) Time and place of hearing. any other party to the proceeding. the Secretary may refer the matter to the Hearings will be held at a time and (v) Requests for extensions. Requests Attorney General for further place ordered by the Administrative for extensions for the filing of enforcement action. Law Judge upon reasonable notice to all exceptions or replies must be received (3) Final agency action. A Final parties and, as appropriate, the by the Administrative Review Board no Decision and Order issued under complainant. In selecting a place for the later than 3 days before the exceptions paragraph (b) of this section constitutes hearing, due regard must be given to the or replies are due. final agency action. (vi) Review by Administrative Review convenience of the parties, their § 38.113 Suspension, termination, counsel, and witnesses, if any. Board on its own motion. If no exceptions are filed, the Administrative withholding, denial, or discontinuation of (d) Judicial process; evidence—(1) financial assistance. Review Board may, within 30 days of Judicial process. The Administrative the expiration of the time for filing Any action to suspend, terminate, Law Judge may use judicial process to exceptions, on its own motion serve deny or discontinue WIOA Title I secure the attendance of witnesses and notice on the parties that it will review financial assistance must be limited to the production of documents authorized the decision. the particular political entity, or part by Section 9 of the Federal Trade (vii) Final Decision and Order without thereof, or other recipient (or grant Commission Act (15 U.S.C. 49). review by Administrative Review Board. applicant) as to which the finding has (2) Evidence. In any hearing or (A) Where exceptions have been filed, been made, and must be limited in its administrative review conducted under the initial decision and order of the effect to the particular program, or part this part, evidentiary matters will be Administrative Law Judge becomes the thereof, in which the noncompliance governed by the standards and Final Decision and Order unless the has been found. No order suspending, principles set forth in the Rules of Administrative Review Board, within 30 terminating, denying or discontinuing Evidence issued by the Department of days of the expiration of the time for WIOA Title I financial assistance will Labor’s Office of Administrative Law filing exceptions and replies, has become effective until: Judges, 29 CFR part 18. notified the parties that the case is (a) The Director has issued a Final accepted for review. Determination under § 38.95 or § 38.112 Initial and final decision Notification of Breach of Conciliation procedures. (B) Where exceptions have not been filed, the initial decision and order of Agreement under § 38.98; (a) Initial decision. After the hearing, (b) There has been an express finding the Administrative Law Judge becomes the Administrative Law Judge must on the record, after opportunity for a the Final Decision and Order unless the issue an initial decision and order, hearing, of failure by the grant applicant Administrative Review Board has containing findings of fact and or recipient to comply with a served notice on the parties that it will conclusions of law. The initial decision requirement imposed by or under the review the decision, as provided in and order must be served on all parties nondiscrimination and equal paragraph (b)(1)(vi) of this section. by certified mail, return receipt (viii) Final Decision and Order after opportunity provisions of WIOA or this requested. review by Administrative Review Board. part; (c) A Final Decision has been issued (b) Exceptions; Final Decision—(1) Any case reviewed by the by the Administrative Review Board, Final Decision after a hearing. The Administrative Review Board under this the Administrative Law Judge’s decision initial decision and order becomes the paragraph must be decided within 180 and order has become the Final Agency Final Decision and Order of the days of the notification of such review. Decision, or the Final Determination or Department unless exceptions are filed If the Administrative Review Board fails Notification of Conciliation Agreement by a party or, in the absence of to issue a Final Decision and Order has been deemed the Final Agency exceptions, the Administrative Review within the 180-day period, the initial Board serves notice that it will review Decision, under § 38.112(b); and decision and order of the (d) The expiration of 30 days after the the decision. Administrative Law Judge becomes the (i) Exceptions. A party dissatisfied Secretary has filed, with the committees Final Decision and Order. of Congress having legislative with the initial decision and order may, (2) Final Decision where a hearing is jurisdiction over the program involved, within 45 days of receipt, file with the waived. (i) If, after issuance of a Final a full written report of the Administrative Review Board and serve Determination under § 38.95 or circumstances and grounds for such on the other parties to the proceedings Notification of Breach of Conciliation action. and on the Administrative Law Judge, Agreement under § 38.98, voluntary exceptions to the initial decision and compliance has not been achieved § 38.114 Distribution of WIOA Title I order or any part thereof. within the time set by this part and the financial assistance to an alternate (ii) Transmittal of record and initial opportunity for a hearing has been recipient. decision by Administrative Law Judge. waived as provided for in § 38.111(b)(4), When the Department withholds Upon receipt of exceptions, the the Final Determination or Notification funds from a recipient or grant applicant Administrative Law Judge must index of Breach of Conciliation Agreement under these regulations, the Secretary and forward the record and the initial becomes the Final Decision. may disburse the withheld funds decision and order to the (ii) When a Final Determination or directly to an alternate recipient. In Administrative Review Board within Notification of Breach of Conciliation such case, the Secretary will require any three days of such receipt. Agreement becomes the Final Decision, alternate recipient to demonstrate: (iii) Specificity required when filing the Administrative Review Board may, (a) The ability to comply with these exceptions. A party filing exceptions within 45 days, issue an order regulations; and

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(b) The ability to achieve the goals of Title I financial assistance. A copy of Director must issue a decision denying the nondiscrimination and equal the petition must be served on the the petition. opportunity provisions of WIOA. parties to the original proceeding that (2) Within 30 days of its receipt of the led to the Final Decision and Order. The Director’s decision, the recipient or § 38.115 Post-termination proceedings. petition must be supported by grant applicant may file a petition for (a) A grant applicant or recipient information showing the actions taken review of the decision by the adversely affected by a Final Decision by the grant applicant or recipient to Administrative Review Board, setting and Order issued under § 38.112(b) will bring itself into compliance. The grant forth the grounds for its objection to the be restored, where appropriate, to full applicant or recipient has the burden of Director’s decision. eligibility to receive WIOA Title I demonstrating that it has satisfied the (3) The petition must be served on the financial assistance if the grant requirements of paragraph (a) of this Director and on the Office of the applicant or recipient satisfies the terms section. While proceedings under this Solicitor, Civil Rights and Labor- and conditions of the Final Decision section are pending, sanctions imposed Management Division. (4) The Director may file a response and Order and brings itself into by the Final Decision and Order under compliance with the nondiscrimination to the petition within 14 days. § 38.112(b)(1) and (2) must remain in and equal opportunity provisions of (5) The Administrative Review Board effect. WIOA and this part. must issue the final agency decision (b) A grant applicant or recipient (c) The Director must issue a written denying or granting the recipient’s or adversely affected by a Final Decision decision on the petition for restoration. grant applicant’s request for restoration and Order issued under § 38.112(b) may (1) If the Director determines that the to eligibility. at any time petition the Director to grant applicant or recipient has not [FR Doc. 2016–27737 Filed 12–1–16; 8:45 am] restore its eligibility to receive WIOA brought itself into compliance, the BILLING CODE P

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