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29 CFR Part 38

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29 CFR Part 38 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of WIOA, President Obama on July 22, 2014, which prohibits exclusion of an informed by CRC’s experience under the WIOA superseded the Workforce individual from participation in, denial 1999 rule implementing WIA.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. VerDate Sep<11>2014 18:34 Dec 01, 2016 Jkt 241001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\02DER2.SGM 02DER2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations 87131 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.
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