[Federal Register Volume 66, Number 12 (Thursday, January 18, 2001)]
[Notices]
[Pages 5398-5410]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-1494]



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Part XIV





Department of Justice





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Executive Order 13160 Guidance Document: Ensuring Equal Opportunity in 
Federally Conducted Education and Training Programs; Notice

  Federal Register / Vol. 66, No. 12 / Thursday, January 18, 2001 / 
Notices  

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DEPARTMENT OF JUSTICE


Executive Order 13160 Guidance Document: Ensuring Equal 
Opportunity in Federally Conducted Education and Training Programs

AGENCY: Department of Justice.

ACTION: Notice: Guidance document.

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SUMMARY: This Guidance Document entitled ``Executive Order 13160 
Guidance Document'' is being issued pursuant to Executive Order 13160, 
which was issued on June 23, 2000. Executive Order 13160 prohibits 
discrimination on the basis of race, sex, color, national origin, 
disability, religion, age, sexual orientation, and status as a parent 
in federally conducted education and training programs. The Executive 
Order was issued in order to achieve equal opportunity in all federally 
conducted education and training programs and is premised upon the 
notion that the federal government should hold itself to at least the 
same principles of nondiscrimination in educational opportunities as it 
applies to the educational programs and activities of recipients of 
federal financial assistance. Toward that end, the Executive Order is 
intended to supplement existing laws and regulations that already 
prohibit many forms of discrimination in both federally conducted and 
federally assisted educational programs. The purpose of this Guidance 
Document is to assist all federal agencies in complying with the 
nondiscrimination mandates of Executive Order 13160 by providing a 
basic framework for implementation of the Executive Order. Among the 
topics addressed in this Guidance Document are the scope of covered 
educational programs, applicable legal principles, examples of 
discriminatory conduct, enforcement procedures, remedies, and agency 
reporting requirements. The text of the Guidance Document appears at 
the end of this Notice.

DATES: Effective January 18, 2001.

ADDRESSES: Coordination and Review Section, Civil Rights Division, P.O. 
Box 66560, Washington, D.C., 20035-6560.

FOR FURTHER INFORMATION CONTACT: Merrily A. Friedlander, Chief, 
Coordination and Review Section, Civil Rights Division, (202) 307-2222.

    Dated: January 11, 2001.
Janet Reno,
Attorney General, Department of Justice.

Executive Order 13160 Guidance Document

I. Introduction

    On June 23, 2000, the President of the United States issued 
Executive Order 13160 in order to achieve equal opportunity in all 
federally conducted education and training programs. More specifically, 
Executive Order 13160 was designed to ensure nondiscrimination on the 
basis of race, sex, color, national origin, disability, religion, age, 
sexual orientation, and status as a parent in federally conducted 
education and training programs and activities.
    Executive Order 13160 is premised upon the notion that the federal 
government should hold itself to at least the same principles of 
nondiscrimination in educational opportunities as it applies to the 
educational programs and activities of recipients of federal financial 
assistance. Toward that end, the Executive Order is intended to 
supplement existing laws and regulations that already prohibit many 
forms of discrimination in both federally conducted and federally 
assisted educational programs. Among the most significant of these 
nondiscrimination laws are the Rehabilitation Act of 1973, 29 U.S.C. 
701 et seq., as amended; the Age Discrimination in Employment Act of 
1967, 29 U.S.C. 621, et seq.; Titles VI and VII of the Civil Rights Act 
of 1964, 42 U.S.C. 2000d, as amended; 42 U.S.C. 2000e-17, as amended; 
and Title IX of the Education Amendments of 1972, 20 U.S.C. 1681 et 
seq.
    In order to achieve equal opportunity in all federally conducted 
education programs, Section 1-102 of Executive Order 13160 provides 
that:

No individual, on the basis of race, sex, color, national origin, 
disability, religion, age, sexual orientation, or status as a 
parent, shall be excluded from participation in, be denied the 
benefits of, or be subjected to discrimination in, a federally 
conducted education or training program or activity.

    All federal agencies that conduct education and training programs 
must therefore commit themselves to providing educational environments 
that are entirely free from discrimination based on race, sex, color, 
national origin, disability, religion, age, sexual orientation, and 
status as a parent.
    Pursuant to section 5-501 of Executive Order 13160, this Guidance 
Document has been developed to assist all federal agencies in complying 
with the nondiscrimination mandates of the Executive Order. Among the 
topics addressed herein are the scope of covered educational programs, 
applicable legal principles, examples of discriminatory conduct, 
enforcement procedures, remedies, and agency reporting requirements.
    This Guidance Document is intended only to provide a basic 
framework for implementation of Executive Order 13160. This Guidance 
Document is not intended to be a comprehensive guide for compliance. 
Rather, this Guidance Document is designed only to provide a starting 
point for agency implementation, and this Document's failure to address 
a particular issue should in no way be interpreted to mean that such an 
issue falls outside the scope of the nondiscrimination protections 
established by the Executive Order or this Guidance.
    In order to supplement the basic principles established in this 
Guidance Document, it is anticipated that, from time to time, the 
Department of Justice will publish additional policies or guidance 
documents to assist with the enforcement of this Executive Order. In 
addition, section 5-505 of the Executive Order provides that, ``[u]pon 
request and to the extent practicable, the Attorney General shall 
provide advice and assistance to executive departments and agencies to 
assist in full compliance with this order.'' Responsibility for 
providing such advice and technical assistance is delegated to the 
Assistant Attorney General for Civil Rights, who shall conduct, handle, 
or supervise the performance of these functions.

II. Covered Education Programs and Activities

    Executive Order 13160 applies to all federally conducted education 
and training programs and activities. Pursuant to section 2-201, 
``federally conducted education and training programs'' include those 
that are ``conducted, operated, or undertaken by'' an executive 
department or agency.
    Section 2-202 of the Executive Order provides that federally 
conducted ``education and training programs and activities'' may 
include, but are not limited to, the following:

    (1) formal schools,
    (2) extracurricular activities,
    (3) academic programs,
    (4) occupational training,
    (5) scholarships and fellowships,
    (6) student internships,
    (7) training for industry members,
    (8) summer enrichment camps, and
    (9) teacher training programs.

    As this definition makes clear, education programs covered by

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Executive Order 13160 may include both long-term, formal academic 
institutions (such as Department of Defense Dependents Schools, 
Department of Defense Domestic Dependent Elementary and Secondary 
Schools, and elementary or secondary schools operated by the Department 
of Interior, Bureau of Indian Affairs), as well as short-term job 
training programs (such as computer training courses for federal 
employees).
    Some examples \1\ of the types of education and training programs 
and activities that might be covered by Executive Order 13160 are 
discussed below:
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    \1\ These examples were drawn from data provided by various 
federal agencies during the development of Executive Order 13160. 
The programs enumerated above, however, are not necessarily still in 
existence and, in some cases, are merely hypothetical examples.

    Ex. 1. The Office of Government Ethics runs an agency ethics 
training course for federal employees from other agencies.
    Ex. 2. The Federal Deposit Insurance Corporation operates a 
small computer school which teaches state examiners to analyze the 
weaknesses in the supervision of a small bank data processing 
operation.
    Ex. 3. The Department of Veteran Affairs (VA) runs the VA Home 
Loan Training Program, which offers information and training to 
numerous private sector enterprises that cooperate in providing VA 
home loan benefits.
    Ex. 4.The Nuclear Regulatory Commission provides radiation 
control training for state and local government personnel under the 
State Agreements Program.
    Ex. 5. The Federal Bureau of Investigation (FBI) runs the FBI 
National Academy, an 11-week multi-disciplinary program in Quantico, 
Virginia, for federal, state, local, and foreign officers who are 
considered to have potential for further advancement in their 
careers.
    Ex. 6. The Department of Housing and Urban Development operates 
the Community First Leadership Program, which provides in-depth 
training for representatives from state and local governments and 
non-profit organizations involved in housing and community 
development programs.
    Ex. 7. The Maritime Administration conducts a Firefighting 
Training Program for private, licensed and unlicensed U.S. 
seafarers, who pay a fee for instruction in fire-fighting safety.
    Ex. 8. The United States Department of Agriculture (USDA) 
operates the Graduate School, USDA, which provides career-related 
continuing education courses primarily designed to meet the 
educational needs of government employees.
    Ex. 9. The Bureau of Alcohol, Tobacco, and Firearms operates the 
Anacostia Neighborhood Prevention Initiative, which provides crime 
prevention training to the public.
    Ex. 10. The Peace Corps offers a World Wise Schools program to 
students interested in broadening their geographic and cultural 
horizons.
    Ex. 11. The National Aeronautics and Space Administration 
conducts a tour of its facilities to educate the public about 
theSpace Shuttle Program.
    Ex. 12. The Department of Justice conducts computer training 
courses to regularly update its employees on new software.
    Ex. 13. The Federal Bureau of Prisons conducts an inmate boot 
camp to prepare inmates for reintegration into society.
    Ex. 14. The U.S. Department of Agriculture conducts an annual 
Summer Intern Program for roughly 150 college students, who are 
hired to work with professional staff on projects related to the 
students' majors and career plans.
    Ex. 15. The General Counsel's Office at the Federal Emergency 
Management Agency hires law students to work as unpaid student 
interns during the school year.

III. Exemptions From Coverage

    Although Executive Order 13160 is intended to provide broad-based 
coverage for federally conducted education and training programs, 
section 3 of the Executive Order does provide some exemptions from 
coverage. As discussed below, there are several circumstances under 
which the nondiscrimination prohibitions of the Executive Order do not 
apply to certain federally conducted education and training programs.

Military Programs

    Section 3-301 explicitly states that the Executive Order does not 
apply to ``members of the armed forces, military education or training 
programs, or authorized intelligence activities.'' Military education 
or training programs are defined as education programs conducted by the 
Department of Defense (or, where the Coast Guard is concerned, by the 
Department of Transportation) for the ``primary purpose'' of training 
members of the armed forces or meeting a statutory requirement to 
educate or train federal, state, or local civilian law enforcement 
officials pursuant to 10 U.S.C. chapter 18. This includes military 
academies, military programs that provide drug traffic prevention 
training to non-military law enforcement agencies, Department of 
Defense foreign language training and survival schools for non-military 
law enforcement agencies, and military training to non-military law 
enforcement agencies in the operation and maintenance of equipment used 
in the detection, monitoring, aerial reconnaissance, and communication 
intercepts of illegal drug trafficking.
    Members of the armed forces, including students at military 
academies, are, however, protected from certain forms of discrimination 
pursuant to regulations currently enforced by the Department of Defense 
and individual service branches. See, e.g., 32 CFR part 51, 
``Department of Defense Military Equal Opportunity Program,'' and 32 
CFR part 56, ``Nondiscrimination on the basis of Handicap in Programs 
and Activities Assisted or Conducted by Department of Defense.'' In 
addition, section 3-301 of Executive Order 13160 specifically provides 
that the Department of Defense shall develop procedures to protect the 
rights of, and to provide redress to, civilians involved in Department 
of Defense federally conducted military education and training programs 
if such civilians are not otherwise protected by existing federal law 
from discrimination on the basis of race, sex, color, national origin, 
disability, religion, age, sexual orientation, or status as a parent.
    Finally, it is important to emphasize that this exemption does not 
apply to the Department of Defense Dependent Schools and Department of 
Defense Domestic Dependent Elementary and Secondary Schools. These 
schools must comply with the Executive Order and with all applicable 
legal principles set forth in this Guidance Document.

Affirmative Action

    Any otherwise lawful affirmative action plan or program is exempt 
from coverage under the Executive Order. Pursuant to section 3-302, the 
Executive Order ``does not apply to, affect, interfere with, or modify 
the operation of any otherwise lawful affirmative action plan or 
program.''

Programs Established Consistent With Federal Law

    Section 3-303 of the Executive Order provides that an individual 
shall not be deemed subject to discrimination by virtue of his or her 
``exclusion from the benefits of a program established consistent with 
federal law or limited by federal law to individuals of a particular 
race, sex, color, disability, national origin, age, religion, sexual 
orientation, or status as a parent different from his or her own.'' For 
example, pursuant to 25 CFR Secs. 31.1 and 31.3, education or training 
programs or activities conducted by the Department of Interior's Bureau 
of Indian Affairs are, subject to a few exceptions, limited to Native 
American students ``of one-fourth or more degree of Indian blood.''

Bureau of Indian Affairs Programs

    Section 3-304 of the Executive Order exempts from coverage any 
ceremonial or similar education or training program or activity of a 
school conducted by the Department of Interior's Bureau of

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Indian Affairs, provided such program is ``culturally relevant'' to the 
children represented in the school. The Executive Order defines 
``culturally relevant'' as any class, program, or activity that is 
``fundamental'' to a tribe's ``culture, customs, traditions, heritage, 
or religion.'' For example, certain educational classes involving 
traditional Native American dance instruction may be ``culturally 
relevant'' to the children represented in the school and therefore 
exempt from coverage under the Executive Order. In making 
determinations as to whether classes, programs, or activities are 
``culturally relevant,'' substantial deference shall be given to the 
views of the relevant tribes.

Selections of Foreign Nationals and Selections Made Outside the 
Executive Branch

    Section 3-305 provides an exemption for selections of foreign 
nationals based on national origin if the selections pertain to 
participation in covered education programs or activities that 
``primarily concern national security or foreign policy matters.'' 
Thus, for example, the Executive Order would not cover the selection of 
participants, on the basis of national origin, for the Department of 
State's Antiterrorism Assistance training programs if the primary 
mission of these programs is to train foreign nationals in deterring 
and managing terrorist threats.
    Section 3-305 further provides an exemption for ``selections or 
other decisions made by entities outside the executive branch.'' For 
example, if a local school district selects students to participate in 
a federally conducted education program, the selection decisions of the 
local school district would not be subject to Executive Order 13160 as 
they represent selection decisions made by an entity outside the 
executive branch.\2\ However, the students selected for participation 
in the federally conducted education program would be protected from 
discrimination under Executive Order 13160 during the duration of their 
participation in the federally education conducted program.
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    \2\ Such selection decisions might, however, be covered by other 
civil rights statutes, including Title VI of the Civil Rights Act of 
1964, as amended, and Title IX of the Education Amendments of 1972, 
as amended.
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    In addition, section 3-305 provides that it ``shall be the policy 
of the executive branch that education or training programs or 
activities shall not be available to entities that select persons for 
participation in violation of Federal or State law.'' Thus, if a 
company responsible for selecting employees to participate in a 
federally conducted education program were to refuse to consider 
selecting members of a particular race in violation of Title VII of the 
Civil Rights Act of 1964, as amended, executive departments should, as 
a matter of policy, refrain from making their educational programs 
available to such a company.

Age-Based Admissions

    Section 3-306 provides an exemption for age-based admissions to 
federally conducted education and training programs if such programs 
have ``traditionally been age-specific'' or ``must be age-limited for 
reasons related to health or national security.'' See Section XI of 
this Guidance Document for further information regarding these age-
related exemptions.

Final Determinations Regarding Coverage and Exemptions

    As a general matter, Executive Order 13160 will apply to all 
federally conducted education and training programs or activities not 
subject to a specific exemption set forth in Section 3 of the Executive 
Order. Executive departments or agencies and individuals with questions 
regarding whether a particular program or activity is subject to 
Executive Order 13160 should contact the Department of Justice's Civil 
Rights Division.
    Pursuant to section 2-203 of the Executive Order, the Attorney 
General is authorized to make final determinations as to whether a 
given program falls within the scope of covered education and training 
programs under section 2-202 or is excluded from coverage under section 
3. See Section XIV(C), ``Administrative Enforcement,'' for further 
information pertaining to applicable procedures for requesting a final 
determination from the Attorney General regarding coverage of a 
particular program.

IV. Applicable Legal Principles

    Executive Order 13160 requires executive departments and agencies 
to ensure nondiscrimination on the basis of race, sex, color, national 
origin, disability, religion, age, sexual orientation, and status as a 
parent in all federally conducted education and training programs. In 
order to comply with the antidiscrimination mandates of this Executive 
Order, agencies must ensure that individuals involved in federally 
conducted education and training programs and activities are not 
subjected to discrimination on the basis of any one of these protected 
characteristics. The most common forms of discrimination prohibited by 
the Executive Order are discussed below.

Disparate Treatment

    Under Executive Order 13160, all individuals involved in federally 
conducted education or training programs or activities must be treated 
equally and not be subjected to discrimination on the basis of race, 
sex, color, national origin, disability, religion, age, sexual 
orientation, or status as a parent. In order to comply with the 
Executive Order, all federal agencies that provide education or 
training programs or activities must ensure that individuals are not 
subjected to unjustified disparate treatment based on a protected 
status.\3\ Examples of disparate treatment may include, but are not 
limited to:
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    \3\ Throughout the remainder of this document, the term 
``protected status'' may be used to refer generally to the nine 
protected characteristics which are the subject of this Executive 
Order: race, sex, color, national origin, disability, religion, age, 
sexual orientation, and status as a parent.
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     Selecting or failing to select an individual because of 
his or her protected status.
     Denying an individual any aid, benefit, or service offered 
in connection with a federally conducted education program because of 
his or her protected status.
     Failing to provide or allocate aid, benefits, or services 
as a result of an individual's protected status.
     Promoting or failing to promote an individual because of 
his or her protected status.
     Giving a positive or negative performance evaluation to an 
individual because of his or her protected status.
     Segregating an individual because of his or her protected 
status.
     Assigning an individual to a particular education or 
training program or activity, or a particular project, because of his 
or her protected status.
     Treating an individual less favorably with respect to the 
terms, conditions, or privileges of an education or training program or 
activity because of his or her protected status.
    In addition to prohibiting individual instances of unjustified 
disparate treatment, the Executive Order also prohibits federal 
agencies from engaging in a ``pattern or practice'' of unlawful 
discrimination. Moreover, federal agencies may not rely on policies or 
practices that explicitly classify individuals on the basis of a 
protected characteristic absent a lawful justification for the use of 
such a classification.
    It is important to note, however, that, under certain 
circumstances, compliance with the Executive Order may permit federal 
agencies to treat

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individuals differently on the basis of a protected characteristic. For 
example, under certain limited circumstances, agencies may legitimately 
treat individuals differently on the basis of sex if sex is a bona fide 
occupational qualification (BFOQ). Similarly, remedial situations may 
justify differential treatment. Moreover, in educational environments, 
narrowly-tailored measures designed to promote the educational benefits 
of diversity may lawfully treat individuals differently on the basis of 
a protected characteristic.
    In some cases, the Executive Order may even require federal 
agencies to treat individuals differently in order to avoid 
discriminating against an individual on the basis of a protected 
characteristic. For example, the prohibition on religious 
discrimination may require an agency to provide an individual with a 
reasonable accommodation for religious practices as discussed in 
section X of this Guidance Document. Similarly, under many 
circumstances, federal agencies have an obligation to provide 
reasonable accommodations for individuals with disabilities. See 
Section IX of this Guidance Document. As such, the examples of 
disparate treatment enumerated above are designed merely to illustrate 
the types of conduct generally prohibited by this Executive Order and 
agencies must, of course, evaluate individual claims of disparate 
treatment on a case-by-case basis.

Hostile Environment

    Pursuant to Executive Order 13160, a federal agency that provides 
education or training programs or activities must maintain a learning 
environment that is free of discrimination on the basis of race, sex, 
color, national origin, disability, religion, age, sexual orientation, 
and status as a parent.
     Federal agencies must ensure that the learning environment 
is free of harassment that is so severe, persistent, or pervasive that 
it alters the conditions of the federally conducted education or 
training program or activity for a participant on the basis of a 
protected status. Federal agencies should ensure that no individual is 
subject to a hostile environment that effectively denies or limits 
equal access to (e.g., negatively affects an individual's participation 
or performance in) educational or training opportunities and benefits 
based on his or her protected status.
     Federal agencies should be aware that the sort of 
harassment that can create a hostile environment, when it is 
sufficiently severe, persistent, or pervasive, may take many forms 
including: slurs, epithets, jokes, cartoons, unwelcome advances, and 
other verbal or physical derogatory conduct that targets individuals on 
the basis of a protected status. Federal agencies should further be 
aware that hostile environments may be created by supervisors, 
instructors, administrators, other officials, or peers.

Disparate Impact

    As a general matter, federally conducted education and training 
programs and activities may not utilize policies, procedures, criteria, 
or other methods of administration which, although facially neutral, 
have a disproportionate and adverse effect on certain individuals on 
the basis of a protected characteristic, unless:
    (1) There is an educational or business necessity for the policy, 
procedure, criteria, or method of administration; and
    (2) There are no equally effective alternative practices that would 
result in less adverse impact.

Retaliation

    Federal agencies that operate education and training programs may 
not retaliate against any individual because he or she has raised 
concerns, reported claims, or filed complaints alleging discrimination. 
Federal agencies are similarly prohibited from retaliating against any 
individual who has testified, assisted, or participated in any manner 
in an investigation or other proceeding raising claims of 
discrimination.
    Prohibited retaliation may take many forms including, but not 
limited to, intimidation, threats, coercion, harassment, 
discrimination, and adverse actions (e.g., poor grades or performance 
evaluations) motivated by retaliatory purpose. Federal agencies must 
ensure that no individual is subject to any form of retaliation 
regardless of the merits (or lack thereof) of any underlying claim.

Specific Principles and Examples

    The following sections address more specific applicable legal 
principles and examples of discriminatory conduct related to each of 
the nine protected bases covered by the Executive Order. It is 
important to note, however, that each of the following sections is 
intended merely to highlight certain specific forms of prohibited 
discrimination. The failure to include a particular legal principle (or 
a particular example of prohibited conduct) in one section of this 
Guidance Document should in no way be interpreted to mean that the 
legal principle (or prohibited conduct) is not covered with respect to 
another protected basis. Rather, all sections of this Guidance Document 
should be read in conjunction with each other to provide a fuller 
picture of the breadth and application of the Executive Order's 
antidiscrimination prohibitions.\4\
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    \4\ Of course, it is also true that not every principle will be 
applicable to every protected basis. For example, only certain 
protected characteristics trigger a reasonable accommodation 
requirement. Individuals or agencies with specific questions 
regarding the Executive Order's antidiscrimination provisions should 
contract the Department of Justice's civil Rights Division.
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V. Discrimination on the Basis of Race

    Federal agencies must ensure that no individual is discriminated 
against on the basis of his or her race in any federally conducted 
education or training program or activity.
     Federal agencies must ensure that all individuals are 
treated equally without regard to race in any federally conducted 
education or training program or activity.
     Federal agencies may not utilize policies, procedures, or 
methods of administration which, although facially neutral, have a 
disproportionate and adverse effect on participants or applicants on 
the basis of their race, unless there is an educational or business 
necessity for the use of such policies and there are no equally 
effective alternative practices that would result in less of a 
disproportionate impact.
     Federal agencies may not base any decisions regarding 
individuals in federally conducted education or training programs on 
race-based stereotypes or assumptions regarding interests, competency 
levels, or expectations of success.
     Federal agencies must take steps to ensure that no 
federally conducted education or training program takes place in an 
environment that is intimidating, abusive, offensive, or hostile on the 
basis of race.

Examples \5\ of Prohibited Conduct:
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    \5\ All of the examples of discriminatory conduct set forth in 
this Guidance Document are hypothetical and are not intended to 
suggest that any federal agency actually engages in such 
discriminatory practices or necessarily even operates such an 
educational program.
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     A federal law enforcement agency conducts an anti-
terrorist training program in which it groups participants in 
various teams. Although the instructor generally makes random 
assignments for this exercise, he states that he has decided to 
assign all of the African-American participants to a single team 
because he believes that African-Americans work most effectively 
with members of their own race. The instructor's conduct violates 
the Executive Order.
     The Department of Justice offers an advanced 
prosecutorial course for its

[[Page 5402]]

attorneys at the Department's National Advocacy Center in Columbia, 
South Carolina. Due to the high demand for this course, the limited 
number of openings available, and the difficulty the Department has 
had in determining which candidates should be selected, the 
Department decides to require candidates to take an aptitude test 
and to select candidates in descending rank order of their test 
scores. However, the test results in disparate impact upon members 
of a particular race. Further, the Department lacks evidence that 
the test is valid; namely, that it predicts success in the course or 
even that it is necessary to pass the test in order to 
satisfactorily complete the course. Accordingly, the Department's 
use of this test violates the Executive Order.

VI. Discrimination on the Basis of Sex

    Federal agencies must ensure that no individual is discriminated 
against on the basis of sex in any federally conducted education or 
training program or activity.
     No executive agency may admit, refuse to admit, promote, 
refuse to promote, or otherwise favor or disfavor, a participant or 
prospective participant in a federally conducted education program on 
the basis of sex.
     An agency may not impose, explicitly or implicitly, 
stricter admission or completion requirements for one sex as compared 
to the other.
     Federal agencies operating education or training programs 
may not utilize policies, procedures, or methods of administration 
which, although facially neutral, have a disproportionate and adverse 
effect on participants or applicants on the basis of sex unless there 
is an educational or business necessity for the use of such policies 
and there are no equally effective alternative practices that would 
result in less of an impact on the basis of sex.
     Federal agencies should ensure that no individual is 
subjected to gender-based harassment, which may include harassment 
based on sex or sex-stereotyping, in any federally conducted education 
or training program. Gender-based harassment may be based upon 
stereotypical notions regarding how persons of each gender should act 
or look.
     Discrimination on the basis of sex includes discrimination 
on the basis of pregnancy. Federal agencies must ensure that no woman 
is discriminated against on the basis of pregnancy, childbirth, false 
pregnancy, termination of pregnancy, or recovery therefrom, in any 
education or training program or activity.

Examples of prohibited conduct:

     The Director of Athletics at a Department of Defense 
School for dependent children of military personnel decides to 
allocate all of his annual athletics budget to male sports because 
he does not believe that female students need or want the same 
quality and variety of athletic services as males. Despite repeated 
requests from female students for a variety of programs and 
services, the Director refuses to consider the provision of any 
funding for co-ed or female sports. The Director's conduct would 
violate the Executive Order.\6\
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    \6\ Further information on the application of these 
nondiscrimination principles to athletic programs in educational 
institutions may be obtained by consulting Guidance Documents 
developed by the Department of Education's Office for Civil Rights, 
including Policy Interpretation--Title IX and Intercollegiate 
Athletics, 45 CFR part 26 (1979); Equal Opportunity in 
Intercollegiate Athletics: Requirements under Title IX of the 
Education Amendments of 1972, 34 CFR part 106; Clarification of 
Intercollegiate Athletics Policy Guidance: The Three-Part Test 
(January 16, 1996); and various other pamphlets, memoranda, and 
documents that may be found on the Department of Education's website 
at www.ed.gov./offices/OCR/ocrprod.html.
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     The Federal Bureau of Investigation conducts a firearms 
training program for state and local officials. The admissions 
director refuses to admit women because he believes that only men 
should be permitted to train for dangerous jobs. The director's 
refusal to consider women for participation in the program would 
violate the Executive Order.
     The Department of Health and Human Services conducts a 
nurses' training program on childhood vaccinations. One of the 
instructors requires the male participants to attend a seminar on 
infant care, but does not require the female students to attend the 
same seminar because she assumes that female students already 
possess such skills. The instructor's conduct would violate the 
Executive Order.
     A physical fitness instructor at the Federal Bureau of 
Prisons refuses to allow a pregnant inmate to participate in the 
physical fitness training program because he believes that pregnant 
women should not be physically active. Although the prison has a 
policy of permitting inmates with temporary disabilities to 
participate in physical fitness programs upon receipt of approval 
from a physician, the instructor refuses to consider a letter from 
the inmate's doctor explaining that physical activities pose no 
health risk to her. The instructor's decision to exclude the woman 
would violate the Executive Order.
     The Department of Labor conducts a week-long training 
seminar during which participants are evaluated for their approaches 
to management. Future promotion decisions are based on these 
evaluations. One of the evaluators gives high ratings to men who 
exhibit an aggressive interpersonal style, but deducts points for 
women who exhibit the same characteristics. The evaluator's 
judgments are based on sex-stereotypes and thus violate the 
Executive Order.
     The Department of Justice operates an advanced law 
enforcement training course on an annual basis for ten individuals. 
During one session of the course, nine of the ten participants are 
male. The only woman enrolled in the course is continually taunted 
and hazed by her male peers who do not believe that women are 
capable of serving as law enforcement officers. The male instructor 
not only fails to take appropriate corrective action, but joins the 
male students in subjecting the woman to a barrage of derogatory 
epithets. The gender-based harassment to which the woman is 
subjected violates the Executive Order.

Sexual Harassment

    The Executive Order's prohibition on sex discrimination requires 
federal agencies to ensure that no individual is subjected to sexual 
harassment in any federally conducted education or training program.
     Sexual harassment entails unwanted or unwelcome sexual 
conduct including sexual advances, requests for sexual favors, or other 
verbal, nonverbal, or physical conduct of a sexual nature.
     Federal agencies must ensure that no individual involved 
in a federally conducted education or training program is subjected to 
any form of sexual harassment.
     No instructor, supervisor, administrator, or other 
official involved in a federally conducted education program may (1) 
Explicitly or implicitly make submission to sexual conduct a term or 
condition of an individual's participation in an education program, or 
(2) use submission to or rejection of such conduct as the basis for any 
decision affecting an individual. Sexual harassment of this type 
violates the Executive Order whether an individual resists and suffers 
the threatened harm or submits and thus avoids the threatened harm.
     Federal agencies must ensure that no individual involved 
in a federally conducted education or training program is subjected to 
a hostile environment on the basis of sex. An impermissible hostile 
environment may consist of unwelcome sexual conduct that is 
sufficiently severe, persistent, or pervasive so as to (1) Limit an 
individual's ability to participate in, or benefit from, an education 
or training program or activity, or (2) create a hostile or abusive 
educational environment. Hostile environments may be created by 
supervisors, instructors, administrators, other officials, or peers.

[[Page 5403]]

Examples of prohibited conduct:

     A male student attending a high school operated by the 
Bureau of Indian Affairs is told by a female teacher that he will 
fail algebra if he does not accompany her on a date. The student 
refuses the teacher's request and receives a failing grade as a 
result. The teacher's conduct violates the Executive Order.
     The Federal Emergency Management Agency conducts 
emergency preparedness training for local firefighters. A training 
supervisor refuses to certify that a trainee has completed the 
program until she accompanies him on a date. Fearing that she will 
lose her job if she is not certified, the trainee acquiesces to the 
supervisor's demand. The supervisor's behavior constitutes sexual 
harassment and violates the Executive Order.
     A volunteer student intern at the Department of 
Veterans Affairs has made repeated unwelcome sexual gestures of a 
graphic and physical nature toward a fellow intern. On several 
occasions, the intern has made such gestures while following the 
victim and threatening to ``get her alone.'' The victim no longer 
feels that she can be by herself at the office. This conduct has 
been both severe and pervasive and has created a hostile educational 
environment. The intern tells her supervisor and the Senior Managers 
who oversee the program, but they refuse to investigate or otherwise 
stop or prevent the conduct. The failure to investigate and/or take 
appropriate corrective action violates the Executive Order.

VII. Discrimination on the Basis of Color

    Federal agencies must ensure that no individual is discriminated 
against on the basis of color in any education or training program or 
activity.
     Discrimination on the basis of color may include, but is 
not limited to, discrimination on the basis of the appearance of an 
individual's skin tone, racial complexion, pigmentation, or hue.
     A federal agency may not, on the basis of color, admit, 
refuse to admit, promote, refuse to promote, or otherwise favor or 
disfavor, a participant or prospective participant in an education or 
training program or activity.
     A federal agency may not use color as a proxy for 
determining an individual's race or national origin.
     Federal agencies must ensure that participants in 
education or training programs or activities are not subjected to 
harassment, in the form of color-based animus, bias, hostility, 
stereotype, ridicule or insult, whether by instructors or fellow 
participants, that is sufficiently severe, persistent, or pervasive to 
create a hostile environment.
     Federal agencies may not utilize policies, procedures, 
criteria or methods of administration which, although facially neutral, 
have a disproportionate and adverse impact on the basis of color, 
unless there is an educational or business necessity for the use of 
such policies and there are no equally effective alternative practices 
that would result in less of an impact on the basis of color.

Examples of prohibited conduct:

     An executive agency conducts a vocational training 
program that includes an advanced course in media and broadcast 
education. The only criteria for admission is that the individual 
demonstrate a long-term interest in the field. After conducting 
interviews, however, a member of the admissions committee rejects an 
applicant with dark skin solely because she has seen statistical 
data that demonstrates that individuals with dark skin experience 
greater difficulty in finding permanent employment in these fields. 
The admissions committee member's conduct violates the Executive 
Order.
     A federal agency is planning an education seminar to 
address the Native American experience during the 20th Century. The 
program coordinator receives applications from numerous Native 
Americans who wish to participate as panelists. The program 
coordinator refuses to select any light-skinned applicants because 
he believes that such individuals do not appear to be ``Native 
American'' and thus cannot effectively address this topic. The 
coordinator's conduct violates the Executive Order.

VIII. Discrimination on the Basis of National Origin

    Federal agencies must ensure that no individual is discriminated 
against on the basis of national origin in any federally conducted 
education or training program or activity.
     Discrimination on the basis of national origin may include 
discrimination based upon an individual's country of birth, ancestry, 
or accent.
     Federal agencies must ensure that individuals are not 
subjected to disparate treatment on the basis of national origin.
     Federal agencies may not utilize policies, procedures, 
criteria or methods of administration which, although facially neutral, 
have a disproportionate and adverse impact on the basis of national 
origin unless there is an educational or business necessity for the use 
of such policies and there are no equally effective alternative 
practices that would result in less of an impact on the basis of 
national origin.
     Participants in a federally conducted education or 
training program or activity must not be subjected to a hostile 
environment based upon national origin.
     Exempt from coverage under this Executive Order are 
selections based on national origin of foreign nationals to participate 
in covered education or training programs which primarily concern 
national security or foreign policy matters.

Examples of Prohibited Conduct:

     The Department of Health and Human Services decides to 
hold a conference focused on training community groups on Latino 
health issues. A non-Latino representative from one of these 
community groups wishes to attend the conference, but the Conference 
Coordinator denies the request because the individual is not Latino. 
The Conference Coordinator's conduct would violate the Executive 
Order.
     An agency plans to hold a training session in a large 
city. The conference is designed to help low-income and minority 
individuals across the city start their own small businesses. The 
agency decides to advertise the training session by posting 
announcements in all low-income areas of the city. An agency 
coordinator, however, decides not to post announcements in the 
Chinatown section, even though the area has a high population of low 
income and minority individuals, because the coordinator does not 
think people from that area will be interested and/or will 
understand the English-language training. The coordinator's decision 
would violate the Executive Order.
     A federal agency is conducting an educational program 
regarding citizenship and civic duty. An employee applies to be a 
member of the speakers' panel during the program, but her supervisor 
refuses to select her because he believes that she has a foreign 
accent which would undermine her credibility with the audience. The 
supervisor's conduct violates the Executive Order.

Limited English Proficiency

    Under certain circumstances, a federal agency's failure to provide 
language assistance to an individual whose primary language is not 
English and who has a limited ability to read, write, speak, or 
understand English may constitute national origin discrimination. 
Agency obligations with respect to such individuals who are limited 
English proficient (LEP) are discussed below.\7\
---------------------------------------------------------------------------

    \7\ Further guidance on these principles and agency obligations 
with respect to LEP issues may be found by consulting Executive 
Order 13166, ``Improving Access to Services for Persons with Limited 
English Proficiency,'' 65 FR 50121 (August 16, 2000), and the 
Department of Justice's Policy Document, ``Enforcement of Title VI 
of the Civil Rights Act of 1964--National Origin Discrimination 
Against Persons with Limited English Proficiency.'' 65 FR 50123 
(August 16, 2000).
---------------------------------------------------------------------------

     Agencies have an obligation to take reasonable steps to 
ensure that LEP

[[Page 5404]]

individuals have meaningful access to federally conducted education and 
training programs and activities.
     Agencies must determine what constitutes ``reasonable 
steps'' by considering a number of factors including: (1) the number or 
proportion of LEP persons in the eligible population to be served by 
the education or training program or activity; (2) the frequency with 
which LEP individuals come into contact with the program or activity; 
(3) the importance of the service provided by the program or activity; 
and (4) the resources available to the agency.
     If the federally conducted education program is an 
elementary or secondary school (e.g., Department of Defense Dependent 
Schools or schools operated by the Department of Interior, Bureau of 
Indian Affairs), the executive department or agency should comply with 
the Department of Education's guidance on the provision of language 
services to elementary and secondary education LEP students.\8\
---------------------------------------------------------------------------

    \8\ See, for example, Identification of Discrimination and 
Denial of Services on the Basis of National Origin (May 1970), 35 FR 
11595; ``The Office for Civil Rights Title VI Language Minority 
Compliance Procedures'' (Dec. 3, 1985); and Policy Updates on 
Schools' Obligations Toward National Origin Minority Students with 
Limited-English Proficiency (LEP) (Sept. 27, 1991).

Examples of Prohibited Conduct:

     A prison operated by the Bureau of Prisons has a very 
large proportion of adult LEP inmates who speak the same native 
language. The prison has a drug and alcohol rehabilitation program 
for inmates who have drug or alcohol addictions. Due to the size of 
this single-language speaking LEP population, the fact that this 
population of inmates has the same percentage of drug and alcohol 
addictions as the rest of the inmate population, and the importance 
of the program, the prison's failure to provide this group of LEP 
inmates with access to the program (such as a separate class in 
their native language or a competent interpreter) would violate the 
Executive Order.
     Military parents have adopted a child who is limited 
English proficient. They decide to enroll her in the federally 
conducted K-12 school for children of military personnel. The 
school's refusal to consider providing the LEP child with any 
services to overcome language barriers would constitute a violation 
of the Executive Order.

IX. Discrimination on the Basis of Disability

    Federal agencies must ensure that no individual is discriminated 
against on the basis of disability in any federally conducted education 
or training program or activity.
     Section 504 of the Rehabilitation Act already prohibits 
discrimination on the basis of disability in all federally conducted 
education and training programs as Section 504 applies to all federally 
conducted activities. Accordingly, executive departments and agencies 
may comply with the Executive Order by ensuring that all of their 
education and training programs are operated in accordance with their 
Section 504 regulations governing federally conducted activities.
     An individual with a disability refers to any person who 
has a physical or mental impairment that substantially limits one or 
more major life activities, has a record of such an impairment, or is 
regarded as having such an impairment. Major life activities include 
walking, seeing, hearing, speaking, breathing, learning, performing 
manual tasks, caring for oneself, working, sitting, standing, lifting, 
and reading.
     Federal agencies must ensure that no otherwise qualified 
individual, on the basis of disability, is excluded from participation 
in, denied the benefits of, or subjected to discrimination in any 
federally conducted education or training program or activity.
     A qualified individual with a disability is any person 
who, with or without reasonable accommodation, can meet the essential 
eligibility requirements for involvement in the education or training 
program.
     Agencies must ensure that federally conducted education or 
training programs are readily accessible to qualified individuals with 
disabilities. In order to ensure accessibility, an agency may:
    (i) Relocate the education or training program or activity to an 
accessible facility;
    (ii) Provide the aid, benefit, or service in another manner; or
    (iii) Make modifications to the building or facility itself.
     In determining how to achieve accessibility, agencies 
should attempt to provide aid, benefits, or services in the most 
integrated setting possible.

Examples of prohibited conduct:

     The National Endowment for the Arts conducts an 
education program on art history. The instructor has a limited 
number of tickets to a new movie regarding French impressionist 
works and decides to draw names randomly to decide which students 
can attend. When the instructor draws the name of a visually 
impaired participant, he reassigns the ticket because he believes 
that the visually impaired individual would not be able to enjoy the 
movie as much as a non-visually impaired participant. The 
instructor's conduct would violate the Executive Order.
     The Office of Government Ethics holds an ethics 
briefing for another agency's ethics officials in a building that 
has three stairs leading up the main entrance. There is no ramp, 
lift, or alternative accessible entrance. Several participants use 
wheelchairs and, thus, cannot get into the building. The instructor 
tells the participants that they will not be able to attend and 
refuses to relocate the briefing to an available and accessible 
facility, despite the fact that to do so would not constitute an 
undue burden. The instructor's refusal to relocate the briefing 
would violate the Executive Order.

Reasonable Accommodation

    Agencies have an obligation to provide reasonable accommodation to 
the known physical or mental limitations of an otherwise qualified 
individual with a disability, unless the agency can demonstrate that 
the accommodation would impose an undue hardship.
     Agencies must furnish appropriate auxiliary aids and 
services when necessary to afford a qualified individual with a 
disability an equal opportunity to participate in a federally conducted 
education or training program or activity.
     Agencies must afford an individual with a disability an 
opportunity to request the auxiliary aid or service of his or her 
choice, and should honor that choice unless another effective aid or 
service is available.
     An agency may not charge an individual with a disability 
for the use of an auxiliary aid or service.
     The obligation to provide reasonable accommodations 
extends only to individuals with disabilities; an agency's failure to 
provide similar accommodations for individuals without disabilities 
does not constitute unlawful discrimination.

Examples of prohibited conduct:

     The Department of Justice conducts training seminars on 
compliance with civil rights laws for employees from other agencies. 
A prospective participant who is hearing impaired requests a sign 
language interpreter for an upcoming seminar. Although the agency 
employs a full-time sign language interpreter who is available to 
attend the seminar in question, the training coordinator refuses to 
enlist the interpreter's services and informs the participant that 
the agency will provide a video with closed-captioning that will be 
available ten days after the seminar is over. The coordinator's 
conduct would violate the Executive Order.
     A visually impaired student attending a high school 
operated by the Bureau of Indian Affairs requests that his class 
handouts be provided in Braille or on audio cassette. The principal 
refuses to translate any materials and urges that the student 
transfer to a private high school where such materials are more 
readily available. The principal's conduct would violate the 
Executive Order.

[[Page 5405]]

X. Discrimination on the Basis of Religion

    Federal agencies must ensure that no individual is discriminated 
against on the basis of religion in any education or training program 
or activity.
     Discrimination on the basis of religion may include 
discrimination on the basis of an individual's religion (or lack 
thereof), religious beliefs, religious expression, or religious 
practices. Religious practices may include moral or ethical beliefs as 
to what is right and wrong which are sincerely held with the strength 
of traditional religious views.\9\
---------------------------------------------------------------------------

    \9\ See Equal Employment Opportunity Commission ``Guidelines On 
Discrimination Because Of Religion,'' 29 CFR 1605.1.
---------------------------------------------------------------------------

     Discrimination on the basis of religion also may include 
discrimination on the basis of an individual's relationship with a 
person of a particular religion or an individual's affiliation with a 
group, including an employee or student organization, that is 
associated with religious issues or whose membership is composed 
largely of people of a particular religion.
     No executive agency may admit, refuse to admit, promote, 
refuse to promote, or otherwise favor or disfavor, a participant or 
prospective participant in a federally conducted education program 
because of his or her religion (or lack thereof), religious beliefs, 
religious expression, or religious practices.
     An agency may not impose, explicitly or implicitly, 
stricter admission or completion requirements for a particular 
religious group or an individual who espouses particular religious 
beliefs.
     Individuals involved in a federally conducted education 
program may not be subjected to a hostile environment in the form of 
religiously-based discriminatory intimidation, or pervasive or severe 
religious abuse, ridicule or insult, whether by instructors or fellow 
participants. A hostile environment is not created, however, simply by 
virtue of religious expression with which some participants might 
disagree.

Examples of prohibited conduct:

     An instructor in a Department of Justice computer 
training course requires a participant who is an atheist to complete 
five extra hours of training because that participant does not share 
the instructor's religious beliefs. The instructor's conduct would 
violate the Executive Order.
     A group of participants, attending a federally 
conducted training course, share a common faith. This group engages 
in a pattern of verbal attacks on other participants who do not 
share their religious views. These attacks occur repeatedly and are 
both severe and pervasive, creating a hostile educational 
environment. The agency is aware of this situation but fails to take 
effective corrective action. The agency's failure to take effective 
corrective action would violate the Executive Order.

Reasonable Accommodation of Religious Practices

    The Executive Order's prohibition on religious discrimination also 
includes an obligation on the part of federal agencies to provide 
reasonable accommodation for religious practices. If an individual 
notifies an executive department or agency of his or her need for a 
religious accommodation with respect to a federally conducted education 
program, the agency has an obligation to reasonably accommodate the 
individual's religious observances or practices.
     Reasonable accommodations for religious observances or 
practices are those that do not impose an undue hardship. Though an 
agency need not make an accommodation that will result in more than a 
de minimis burden to the agency, the cost or other hardship 
nevertheless must be real rather than speculative or hypothetical. An 
accommodation should be made unless: (1) It would create an actual cost 
for the agency or other participants, (2) it would cause an actual 
disruption in the conduct of the education program, or (3) such 
accommodation is otherwise barred by law.
     Individuals involved in federally conducted education 
programs must be permitted to wear religious clothing, jewelry, or 
other accessories, if wearing such attire is part of an individual's 
religious practice or expression, so long as the wearing of such attire 
does not unduly interfere with the conduct of the education program.
     Agencies should be flexible in the scheduling of education 
and training courses when participants request scheduling changes in 
order to observe religious traditions, such as the Sabbath or 
particular holidays, unless to do so would result in more than a de 
minimis burden.
     Agencies should attempt to honor requests for alternative 
work assignments when completion of a particular work assignment would 
contravene an individual's religious practices or beliefs.

Examples of prohibited conduct:

     The National Aeronautics and Space Administration 
conducts a space camp program every Saturday and Sunday morning, and 
participants are randomly assigned to each session. The agency 
refuses to even consider a Catholic youth group's request to be 
placed in the Saturday morning program so that the group can 
participate without missing Mass. The agency's failure to even 
consider providing this religious accommodation would violate the 
Executive Order.
     The Department of Interior requires its national park 
service employees to wear uniforms during public instruction, and 
imposes sanctions for deviation from specific guidelines. A Muslim 
employee wishes to wear a head scarf or hijab during instruction, 
but her supervisor refuses to consider her request. The supervisor's 
refusal to consider the employee's request would violate the 
Executive Order.

XI. Discrimination on the Basis of Age

    Federal agencies must ensure that no individual is discriminated 
against on the basis of age in any federally conducted education or 
training program or activity.
    As a general matter, age may not be used as a basis upon which to 
condition the allocation of benefits within, or qualification for, or 
participation in, a federally conducted education or training program 
or activity. More specifically:
     Age distinctions may not be used to exclude individuals 
from a program or activity unless age is a bona fide qualification for 
participation in the program or activity, that is necessary to the 
achievement of a programmatic objective or necessary to the normal 
operation of the program or activity.
     Although agencies may, under certain circumstances, rely 
on age-based distinctions because it is impracticable to measure 
characteristics that are necessary to the achievement of an essential 
programmatic objective on an individualized basis, age may not be used 
as a proxy if it is not a substantially accurate measure of those 
characteristics.
     Age-based classifications may not be used to achieve any 
objective that is not essential to the achievement of a statutory 
objective or the normal operation of a program or activity.
    Under certain circumstances, however, agencies may legitimately use 
age distinctions with respect to the operation of federally conducted 
education or training programs. For example:
     Agencies may use age-based admissions policies for 
education or training programs that have traditionally been age-
specific.
     Agencies may use age-based admissions policies for 
education or training programs that must be age-limited for reasons 
related to health or national security.
     Agencies may rely on age when acting in accordance with 
laws designed

[[Page 5406]]

to provide special benefits or assistance to members of a particular 
age group, such as children or the elderly.

Examples of Prohibited Conduct:

     An executive agency conducts an education program 
through which it provides computer science training for high school 
graduates. The agency permits only individuals under the age of 30 
to apply for, and participate in, the program. The agency's policy 
is based upon the belief that age can be used as an acceptable proxy 
for measuring an individual's likely long-term commitment to a 
career in computer science. The agency's policy would violate the 
Executive Order because age is not an accurate or acceptable measure 
of an individual's likely commitment to a long-term career in 
computer science.
     An executive agency operates a business development 
training program to train entrepreneurs starting new and novel 
businesses. The training program is only available to individuals 
under the age of 50. The agency claims that it uses this age 
requirement to measure characteristics, such as entrepreneurial 
ingenuity, that are essential to an individual's ability to start a 
novel business. The agency's conduct violates the Executive Order 
because age is not an accurate measure of entrepreneurial 
ingenuity--a characteristic which may be necessary to the 
achievement of an essential programmatic objective, but which is 
properly assessed on an individualized basis, such as by reviewing 
applicant business plans.

XII. Discrimination on the Basis of Sexual Orientation

    Federal agencies must ensure that no individual is subjected to 
discrimination on the basis of his or her sexual orientation in any 
federally conducted education or training program or activity.
     ``Sexual orientation'' refers to heterosexuality, 
homosexuality, or bisexuality.
     Discrimination on the basis of sexual orientation includes 
discrimination on the basis of an individual's:
    (i) Sexual orientation or perceived sexual orientation;
    (ii) Relationship with an individual of a particular sexual 
orientation;
    (iii) Affiliation with a group, including an employee or student 
organization, that is associated with sexual orientation issues or 
whose membership is composed largely of people of a particular sexual 
orientation.
     Federal agencies must ensure that all individuals involved 
in federally conducted education or training programs are treated 
without regard to sexual orientation.
     Federal agencies must ensure that no individual involved 
in a federally conducted education program is subjected to harassment 
based on his or her sexual orientation. Sexual orientation harassment 
may include slurs, epithets, unwelcome sexual advances, jokes, 
cartoons, or other derogatory behaviors that target individuals on the 
basis of sexual orientation and that are sufficiently severe, 
persistent, or pervasive to create a hostile educational environment.

Examples of Prohibited Conduct:

     A teacher in a Bureau of Indian Affairs federally 
conducted school is discharged on the basis of her sexual 
orientation. The discharge would violate the Executive Order.
     A student in a federally conducted school is harassed 
by his fellow students as a result of his perceived sexual 
orientation. The harassment causes him severe emotional distress 
and, as a result, his grades drop and he is often absent from 
school. The harassment creates a hostile educational environment, 
and the student notifies his teachers and the school principal. The 
failure of his teachers and the principal to investigate his claims 
and/or take appropriate corrective action would violate the 
Executive Order.
     A guidance counselor at a Department of Defense high 
school for the dependent children of military personnel refuses to 
permit a homosexual student to attend a training session on 
developing a career in business. The guidance counselor advises the 
student to consider a career as an interior decorator or a chef 
because she believes these professions are among the most suitable 
for gay men. The guidance counselor's conduct would violate the 
Executive Order.
     The internship coordinator at a federal agency refuses 
to select a heterosexual student as a summer intern because the 
student is being raised by two homosexual men. The coordinator's 
decision would violate the Executive Order.
     A federal agency holds an annual training retreat and 
invites the spouses or significant others of participating employees 
to accompany the group. However, when a homosexual employee arrives 
at the retreat with his partner, the retreat coordinator refuses to 
allow his partner to attend. The retreat coordinator's conduct 
violates the Executive Order.

XIII. Discrimination on the Basis of Status as a Parent

    Federal agencies must ensure that no individual is discriminated 
against on the basis of his or her status as a parent in any federally 
conducted education or training program or activity.
     ``Status as a Parent'' refers to the status of any 
individual who, with respect to an individual who is under the age of 
18 or who is 18 or older but is incapable of self-care because of a 
physical or mental disability, is:
    (i) A biological parent;
    (ii) An adoptive parent;
    (iii) A foster parent;
    (iv) A stepparent;
    (v) A custodian of a legal ward;
    (vi) In loco parentis over such an individual; or
    (vii) Actively seeking legal custody or adoption of such an 
individual.
     The prohibition on discrimination based on status as a 
parent is designed to protect both men and women who become fathers and 
mothers through childbirth, foster parentage, adoption, legal 
guardianship, or marriage.
     Federal agencies may not rely on an individual's status as 
a parent in determining whether a person satisfies any policy or 
criterion for selection or admission to a federally conducted education 
program.
     Federal agencies may not rely on an individual's status as 
a parent in recruiting and/or selecting participants and instructors 
for federally conducted education programs.
     An individual may not be excluded from, denied the 
benefits of, or subjected to discrimination in any federally conducted 
education program as result of his or her perceived parental 
responsibilities.

    Examples of prohibited conduct:
     The Admissions Committee for a summer training program 
operated by the Department of Health and Human Services refuses to 
admit mothers of young children because the committee members 
believe mothers should stay home and take care of their children. 
The Admissions Committee's conduct violates the Executive Order.
     The head of the French Department at the Department of 
Agriculture's Graduate Language Program twice passed over a single 
father with custody of two young children for promotion to a Senior 
Instructor position because she believed that the father would not 
be interested in a position with evening and weekend obligations due 
to his parental responsibilities. The failure to consider the father 
for promotion based upon his status as a parent violates the 
Executive Order.
     The Nuclear Regulatory Commission does not recruit 
graduate students with children for their Graduate Fellowship 
Program because the agency believes that the Graduate Fellowship 
Program is too rigorous for students with parental responsibilities. 
This recruitment practice constitutes discrimination on the basis of 
status as a parent and violates the Executive Order.
     An instructor for the VA Home Loan Training Program at 
the Department of Veterans Affairs is told by his supervisor that, 
if he proceeds to become a foster parent, he will not be eligible 
for a promotion to Senior Instructor because the new position will 
require too much travel. The instructor becomes a foster parent and 
is passed over for promotion as a result. The failure to consider 
the instructor for promotion based on his status as a foster parent 
violates the Executive Order.
     The Department of Justice is conducting a day-long 
training seminar for its employees and is planning to offer the 
course on three consecutive dates. Employees are assigned to

[[Page 5407]]

dates alphabetically on the basis of their last names. One of the 
employees requests to take the training course on a different date 
as she is scheduled to attend a parent-teacher conference at her 
child's school. Although the training coordinator has honored other 
employee requests to switch dates, he refuses to grant the mother's 
request because he believes that she should prioritize work over her 
parental responsibilities. The training coordinator's conduct 
violates the Executive Order.

XIV. Administrative Enforcement

    Section 4 provides for administrative enforcement of the 
antidiscrimination provisions of Executive Order 13160. General 
guidelines for administrative enforcement are discussed below. Before 
turning to these guidelines, however, it is important to address three 
preliminary matters.
    First, Executive Order 13160 covers all individuals involved in 
federally conducted education and training programs. Although many such 
individuals are likely to be members of the general public, rather than 
federal employees, there will, of course, be many federal employees 
covered by the Executive Order by virtue of their employment-related 
participation in federally conducted educational programs. Such 
individuals, however, are already protected under a number of existing 
Equal Employment Opportunity (EEO) laws, regulations, and Executive 
Orders, including Title VII of the Civil Rights Act of 1964 (Title VII) 
(race, color, religion, sex, and national origin), sections 501 and 504 
of the Rehabilitation Act (Sections 501 and 504) (disability), the Age 
Discrimination in Employment Act (ADEA) (age), the Equal Employment 
Opportunity Commission's Federal Sector Equal Employment Opportunity 
Regulations, 29 CFR 1614, and Executive Order 11478, as amended, (race, 
color, religion, sex, national origin, disability, age, sexual 
orientation, and status as a parent). Therefore, in order to promote 
the consistent and effective enforcement of equal employment 
opportunity mandates for all federal employees, and to preserve the 
integrity of statutorily protected equal employment opportunity rights, 
complaints filed under both this Executive Order and existing equal 
employment opportunity laws should be consolidated and adjudicated 
under the relevant equal employment opportunity statutes (i.e., Title 
VII, sections 501/504, and/or the ADEA).\10\ This approach will not 
only provide a streamlined procedure for resolving complaints, but will 
also protect an aggrieved employee's opportunity to recover any 
monetary damages that are available under the EEO statutes but not 
under this Executive Order.
---------------------------------------------------------------------------

    \10\ In cases where a complaint raises claims under both 
Executive Order 13160 and Executive Order 11478 (but does not raise 
statutory claims), the appropriate complaint processing procedures 
will depend upon whether the federal agency conducting the education 
program has an existing complaint process for handling claims filed 
under Executive Order 11478. If a federal agency has complaint 
procedures for claims filed under Executive Order 11478, claims 
filed under both Executive Order 13160 and Executive Order 11478 may 
be consolidated and adjudicated under Executive Order 11478. If a 
federal agency does not have a complaint procedure for claims 
arising under Executive Order 11478, and a complaint alleges a 
violation of Executive Order 13160 and Executive Order 11478 (but 
does not raise any statutory claims), the complaint should be 
processed in accordance with the procedures for Executive Order 
13160 set forth below. If a complainant raises claims under 
Executive Order 13160, Executive Order 11478, and an EEO statute, 
the complaint should be consolidated and adjudicated under the 
relevant EEO processes.
---------------------------------------------------------------------------

    As a practical matter, this means that a federal employee seeking 
to file a complaint under this Executive Order must indicate whether 
the complaint is related to his or her employment \11\ and, if so, 
whether he or she has filed any other EEO claims arising out of the 
same circumstances. If so, the complaint filed under this Executive 
Order should be transferred to the office handling the related claim 
and the enforcement procedures set forth below will be deemed 
inapplicable. If a federal employee chooses to proceed solely under 
this Executive Order, the enforcement procedures set forth below will 
govern the disposition of his or her complaint.\12\
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    \11\ Federal employees participating as members of the general 
public in a federally conducted education program will, of course, 
be subject to the same enforcement procedures as outside 
participants.
    \12\ For instance, the enforcement procedures set forth in this 
Guidance Document may govern the resolution of a complaint filed by 
an employee involved in a training program conducted by a federal 
agency other than the federal agency for whom the employee works. 
For example, if an employee of the Department of Justice 
participates in a training course conducted by the Department of 
Education, the employee may choose to file an Executive Order 13160 
claim directly against the Department of Education if he or she 
chooses not to, or is not able to, invoke existing EEO laws and 
regulations at the Department of Justice.
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    If a federal employee indicates that he or she has not filed any 
other EEO claims at the time of filing a complaint under this Executive 
Order, the employee may nevertheless subsequently elect to file a 
related claim under Title VII, section 504, the ADEA, or Executive 
Order 11478, provided the employee follows the appropriate EEO filing 
procedures and contacts an EEO counselor and files a complaint within 
the relevant statutory time limit. In such cases, the employee should 
notify the investigating office that he or she has decided to contact 
an EEO counselor and file a related EEO claim so that the Executive 
Order 13160 complaint may be transferred to the appropriate office as 
provided for above. Federal agencies must ensure that all federal 
employees filing Executive Order 13160 complaints have adequate notice 
that they should advise the investigating office handling the Executive 
Order 13160 complaint if they decide to pursue their claims through the 
EEO process.
    Second, the enforcement procedures set forth below are designed 
solely to provide general guidance. Under Section 5-502 of the 
Executive Order, all executive departments and agencies must establish 
procedures to receive and review complaints within 90 days of January 
18, 2001. As all executive departments and agencies already have 
procedures in place for adjudicating claims regarding federally 
conducted programs under Section 504 of the Rehabilitation Act, it is 
recommended that agencies consider utilizing the same investigative and 
adjudicative offices for handling complaints under Executive Order 
13160. However, agencies are of course free to develop different 
procedures and to supplement or modify the following enforcement 
procedures as appropriate.
    Third, after developing individual procedures to receive and review 
complaints, each executive department and agency should prepare some 
sort of outreach materials to ensure that all individuals involved in 
federally conducted education and training programs are aware of 
Executive Order 13160 and are advised as to the proper procedures for 
filing complaints. These outreach materials should provide individuals 
with specific information, including, but not limited to, the general 
antidiscrimination mandates of Executive Order 13160, details regarding 
how to obtain copies of this Guidance Document, timelines for filing 
complaints, the name(s) and address(es) of the office(s) to which such 
complaints should be sent, and specific procedures established by the 
relevant federal agency regarding the processing of complaints.
    All executive departments and agencies should further ensure that 
these outreach materials provide clear instructions to federal 
employees regarding their respective rights under Executive Order 13160 
and Title VII, sections 501/504, the ADEA, and Executive Order 11478. 
Specifically, these outreach materials should clearly state the 
differing timelines for filing claims under the Executive Order and

[[Page 5408]]

these three statutes, as well as the availability (or unavailability) 
of different remedies. As discussed above, federal employees should 
also be clearly advised that claims filed under both the Executive 
Order and an equal employment opportunity statute will be adjudicated 
only under the relevant statute (or under Executive Order 11478, if an 
agency has existing procedures for receiving such complaints).
    The development of these outreach materials should ensure that all 
individuals receive adequate notice of their rights under Executive 
Order 13160. These materials will also serve to ensure that individuals 
participating in federally conducted education and training programs 
are properly advised as to the appropriate procedures for filing 
complaints. Finally, these materials should assist in clarifying 
questions federal employees may have regarding the ramifications of 
filing a complaint under Executive Order 13160 versus filing a 
complaint under Title VII, sections 501/504, the ADEA, or Executive 
Order 11478.

A. Definitions

    For purposes of this Guidance Document, the term--
    Appropriate agency official means the officer or officers within an 
executive department or agency designated to determine what, if any, 
disciplinary action, remedial action, or corrective action should be 
taken as a result of a violation of the Executive Order.
    Complete complaint means a written statement that contains the 
complainant's name, address, and phone number, describes the agency's 
alleged discriminatory action in sufficient detail to inform the agency 
of the nature and approximate date of the alleged violation, and 
identifies whether the complainant is an employee of the agency alleged 
to have committed the discrimination and whether the complainant's 
involvement in the relevant education or training program was related 
to his or her employment. A complete complaint must be signed by the 
complainant or by someone authorized by the complainant to sign on his 
or her behalf.
    Investigating office means the office or offices within an 
executive department or agency that are designated to investigate 
complaints regarding violations of this Order or its implementing 
rules, regulations, policies, or guidance.
    Respondent means the organizational unit in which the alleged 
discrimination occurred.

B. Filing a Complaint

    Any individual who believes himself or herself to be aggrieved by a 
violation of Executive Order 13160 or its implementing regulations, 
rules, policies or guidance, including this Guidance Document, may, 
personally or through a representative, file a written complaint with 
the agency that he or she believes is in violation of this Order or any 
of its implementing regulations, rules, policies, or guidance. All 
written complaints should be filed with the appropriate Investigating 
Office as designated by the relevant agency.
1. Complete Complaints
    In order to be accepted by an agency's Investigating Office, all 
written complaints must be ``complete complaints.'' As defined above, a 
complete complaint must include the name, address, and phone number of 
the complainant, must identify whether the complainant is a federal 
employee and whether the complainant's involvement in the relevant 
education program was related to his or her employment, and must 
describe the alleged discriminatory conduct in sufficient detail to 
inform the agency as to the nature and approximate date of the alleged 
violation. A complete complaint also must be signed by the complainant 
or by someone authorized by the complainant to sign on his or her 
behalf.
2. Time Limits for Filing Complaints
    As a general matter, all complaints must be filed within 180 days 
of the alleged discrimination. However, the appropriate Investigating 
Office may extend this time limit:

    (a) If the complainant can demonstrate that he or she had no 
notice of the time limit and was not otherwise aware of it; or
    (b) If the complainant can demonstrate that he or she was 
prevented by circumstances beyond his or her control from submitting 
the complaint in a timely fashion; or
    (c) For other reasons, or under other circumstances, considered 
sufficient by the agency.

    For purposes of determining when a complaint is timely filed, a 
complaint mailed to the agency will be deemed filed on the date that it 
is postmarked. Any other complaint will be deemed filed on the date 
that it is received by the appropriate Investigative Office, by any 
agency supervisor, or by any other agency employee designated by the 
agency to receive such complaints.
    If a complaint is filed within 180 days of the alleged 
discrimination, but the agency subsequently determines that the 
complaint is not a ``complete complaint,'' the complainant's claims 
shall nevertheless be deemed filed in a timely manner, and the 
complainant shall be given an appropriate opportunity to amend his or 
her original complaint. See Section C below for further information 
regarding the process for requesting additional information from a 
complainant in order to supplement an incomplete complaint.
3. Class Complaints
    Any individual who believes that any specific class of persons has 
been subjected to discrimination prohibited by Executive Order 13160 or 
any of its implementing regulations, rules, policies, or guidance, 
including this Guidance Document, may file a class complaint with the 
appropriate Investigative Office, provided that individual is either a 
member of the allegedly aggrieved class of persons or a representative 
of a member of the allegedly aggrieved class of persons. Each executive 
department or agency should develop specific procedures to deal with 
the resolution of class complaints.
4. Legal Representation
    Any individual filing a complaint under Executive Order 13160 or 
any of its implementing regulations, rules, policies, or guidance may 
be represented and assisted in all stages of these proceedings by an 
attorney or representative of his or her own choosing. An individual 
has a responsibility to promptly inform the agency if legal counsel is 
retained. In addition, an individual has an obligation to notify the 
appropriate Investigating Office if he or she wishes to have any other 
representative included in these proceedings. It is the responsibility 
of the complainant to provide the appropriate Investigating Office with 
the name, address, and phone number of any attorney or other 
representative. In addition, it is an on-going responsibility of the 
complainant to advise the appropriate Investigating Office as to any 
changes with respect to the status of his or her legal and/or non-legal 
representation in any proceeding under this Executive Order or any of 
its implementing regulations, rules, policies, or guidance. Each 
federal agency has a duty to ensure that all complainants have adequate 
notice of these obligations.

C. Initial Review by the Investigating Office

    Upon receipt of a complaint filed under this Executive Order, the 
investigating office must assess the complaint and determine how to 
proceed. The investigating office should

[[Page 5409]]

specifically consider whether the complaint is a complete complaint, 
whether it was filed in a timely manner, and, in the case of a federal 
employee, whether the complaint should be consolidated with another 
complaint and transferred, if necessary.
    After reviewing the complaint, the investigating office may need to 
obtain additional information from the complainant. For example, the 
investigating office may ask the complainant to supply additional 
information if the complaint is not complete. Additional information 
also may be required by the investigating office to determine whether 
to waive the time limits for filing a complaint or whether to 
consolidate and transfer a federal employee's claim. If a complainant 
fails to provide additional information, or otherwise respond to the 
investigating office's request, within 30 days, without good cause 
shown, the investigating office may dismiss the complaint.
    In certain instances, the investigating office may determine that a 
complaint should be dismissed because the alleged discriminatory 
conduct did not occur in a federally conducted education or training 
program. In such cases, the investigating office should issue a brief 
written determination setting forth the basis for the dismissal and 
advising the complainant of his or her right to appeal this decision to 
the Attorney General for a final determination regarding coverage 
pursuant to Section 2-203 of the Executive Order. Responsibility for 
issuing such final determinations regarding coverage is delegated to 
the Assistant Attorney General for Civil Rights, who shall conduct, 
handle, or supervise the performance of this function.

D. Informal Resolution or Formal Investigation

    Before undertaking a formal investigation, agencies are strongly 
encouraged to pursue resolution of all complaints filed under this 
Executive Order through efforts to achieve voluntary compliance. Toward 
this end, agencies should make use of alternative dispute resolution 
techniques whenever appropriate.
    If an informal resolution of a complaint between a complainant and 
respondent cannot be reached within a reasonable period of time 
(generally 45 days), or if efforts to achieve an informal resolution 
appear to become futile, the investigating office should initiate a 
formal investigation. However, efforts to achieve voluntary compliance 
should be undertaken whenever possible and should continue throughout 
the course of a formal investigation if and when appropriate 
opportunities arise.
    If a decision is made to initiate a formal investigation, the 
investigating office must notify the complainant in writing. The 
investigating office should attempt to complete the investigation 
within 180 days of the agency's receipt of a complete complaint. The 
investigation should include a thorough review of the circumstances 
under which the alleged discrimination occurred and any other 
circumstances which may constitute, or appear to constitute, 
discrimination against the complainant.
    A formal investigation may require the cooperation and 
participation of other agency employees. Employees who are required by 
the investigating office to participate in any investigation concerning 
violations of this Executive Order will do so as part of their official 
duties and during the course of regular working hours.
    Upon completion of a formal investigation, the investigating office 
must prepare a written report setting forth the results of the 
investigation. If a determination is made that any agency employee has 
not complied with the Executive Order or any of its implementing rules, 
regulations, policies, or guidance, Section 4-402 requires the 
investigating office to complete a report and refer a copy of the 
report and any relevant findings or supporting evidence to the 
appropriate agency official. The investigating office also may make 
recommendations for any corrective and/or remedial action. A copy of 
the investigative report should be sent to both the complainant and the 
respondent, including the employee who is the subject of the report.
    If a determination is made that there has been no violation of the 
Executive Order or any of its implementing rules, regulations, 
policies, or guidance, a copy of the report also shall be sent to both 
the complainant and the respondent. In such cases, although no action 
is required, a copy of the report should nevertheless be sent to the 
appropriate agency official.

E. Referral to the Appropriate Agency Official

    Upon receipt of a report from an investigating office that 
indicates there has been a violation of the Executive Order or its 
implementing rules, regulations, policies, or guidance, the appropriate 
agency official shall review the report and all relevant supporting 
material in order to determine what, if any, disciplinary action is 
appropriate. Any action taken to discipline an employee, including 
removal, must be taken in compliance with otherwise applicable 
procedures, including the Civil Service Reform Act of 1978, Public Law 
No. 95-454, 92 Stat. 1111.
    The appropriate agency official also shall review the report of the 
investigating office in order to determine whether any corrective or 
remedial action should be initiated. Pursuant to Section 4-402(b), 
however, nothing in the Executive Order authorizes monetary relief to 
the complainant as a form of remedial or corrective action. If the 
appropriate agency official does determine that the complainant is 
entitled to some form of remedial or corrective action, the appropriate 
agency official shall so notify the complainant in writing. The 
appropriate agency official also shall take all necessary steps to 
ensure that the corrective or remedial action ordered is implemented. 
If a determination is made that the complainant is not entitled to any 
corrective or remedial action, the appropriate agency official shall 
notify the complainant of this decision and the reasons for this 
determination.
    Although agencies are free to designate any employee as the 
appropriate agency official, agencies should bear in mind that section 
5-503 provides that the head of each executive department or agency 
shall be responsible for ensuring compliance with the Executive Order. 
As such, agencies should consider designating a senior level official 
for this important post.

XV. Remedies

    As discussed above, in addition to making final decisions regarding 
disciplinary measures, the appropriate agency official shall have the 
authority to order corrective and/or remedial action, where 
appropriate. As a general matter, if there has been a violation of the 
Executive Order, the complainant shall be entitled to all appropriate, 
non-monetary, equitable relief. The appropriate agency official should 
attempt to ensure that the aggrieved individual ends up in the same 
position he or she would have occupied absent discrimination, or a 
substantially equivalent position. In the context of violations of this 
Executive Order, specific remedies are likely to include placement in 
the next available education or training program of a comparable 
nature; the development of an individualized training opportunity; the 
cancellation of an unwarranted personnel action or the expungement of 
adverse materials from agency records; the awarding of a diploma, other 
certificate, or specific grade; and the

[[Page 5410]]

provision of reasonable accommodations.
    Federal agencies must ensure that appropriate agency officials are 
accorded sufficient authority to provide all appropriate forms of 
relief. Complainants should be aware, though, that Section 8 of the 
Executive Order specifically provides that the Order ``is not intended, 
and should not be construed, to create any right or benefit, 
substantive or procedural, enforceable at law by a party against the 
United States, its agencies, its officers, or its employees.'' Section 
8 further provides, however, that the Order is not intended ``to 
preclude judicial review of final decisions in accordance with the 
Administrative Procedures Act, 5 U.S.C. 701, et seq.''

XVI. Reporting Requirements

    Section 6 of the Executive Order establishes reporting requirements 
for federal agencies. For the first three years following issuance of 
this Executive Order, all federal agencies shall file annual reports 
with the Attorney General that summarize the number, nature, and 
disposition of complaints filed under the Executive Order. Such reports 
are to be submitted to the Assistant Attorney General for Civil Rights 
within 90 days of the end of the preceding year's activities. 
Subsequent reports are to be submitted every three years and within 90 
days of the end of each three year period.

XVII. Conclusion

    As discussed above, this Guidance Document is intended to provide 
executive departments and agencies with a basic framework for ensuring 
compliance with Executive Order 13160. Pursuant to Section 5-502 of the 
Executive Order, each agency has 90 days from January 18, 2001 to 
establish procedures for receiving and addressing complaints. Each 
agency also shall take ``all necessary steps'' to effectuate any 
subsequent rules, regulations, policies, or guidance issued by the 
Attorney General or the Assistant Attorney General for Civil Rights in 
connection with this Executive Order within 90 days of issuance.
    The mandate of Executive Order 13160 is clear: to ensure that all 
individuals, on the basis of race, sex, color, national origin, 
disability, religion, age, sexual orientation, and status as a parent, 
have an equal opportunity to participate in, enjoy the benefits of, and 
be free from discrimination in, federally conducted education and 
training programs. Federal agencies should strive to achieve these 
objectives to the fullest extent possible and are encouraged to use 
this Guidance Document as a starting point for achieving these 
important goals.

[FR Doc. 01-1494 Filed 1-17-01; 8:45 am]
BILLING CODE 4410-13-U