[Federal Register Volume 80, Number 141 (Thursday, July 23, 2015)]
[Rules and Regulations]
[Pages 43872-43899]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-17637]



[[Page 43871]]

Vol. 80

Thursday,

No. 141

July 23, 2015

Part III





Department of Labor





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29 CFR Part 38





Implementation of the Nondiscrimination and Equal Opportunity 
Provisions of the Workforce Innovation and Opportunity Act; Final Rule

  Federal Register / Vol. 80 , No. 141 / Thursday, July 23, 2015 / 
Rules and Regulations  

[[Page 43872]]


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DEPARTMENT OF LABOR

Office of the Secretary

29 CFR Part 38

RIN 1291-AA37


Implementation of the Nondiscrimination and Equal Opportunity 
Provisions of the Workforce Innovation and Opportunity Act

AGENCY: Office of the Secretary, Labor.

ACTION: Final rule.

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SUMMARY: The U.S. Department of Labor (Department) is issuing 
nondiscrimination and equal opportunity regulations to implement 
Section 188 of the Workforce Innovation and Opportunity Act (WIOA). 
Under Section 188(e) of WIOA, Congress required the Department to issue 
regulations implementing Section 188 no later than one year after 
enactment of WIOA. The Department's publication of this final rule 
complies with the statutory mandate. This final rule creates a new part 
in the CFR, which mirrors the regulations published in the CFR in 1999 
to implement Section 188 of WIA. The Department has made no substantive 
changes in this final rule; the changes are technical in nature. This 
final rule adopts the Department's regulatory scheme for Section 188 of 
WIA verbatim, with technical revisions to conform to WIOA. 
Specifically, the Department has: Replaced references to the 
``Workforce Investment Act of 1998'' or ``WIA'' with ``Workforce 
Innovation and Opportunity Act'' or ``WIOA'' to reflect the proper 
statutory authority; and updated section numbers in the text of the 
regulation to reflect its new location.

DATES: Effective Date: This final rule is effective July 22, 2015.

FOR FURTHER INFORMATION CONTACT: Naomi Barry-Perez, Director, Civil 
Rights Center, U.S. Department of Labor, 200 Constitution Avenue NW., 
Room N-4123, Washington, DC 20210. [email protected], telephone (202) 
693-6500 (VOICE) or (202) 877-8339 (Federal Relay Service--for TTY).

SUPPLEMENTARY INFORMATION:

Executive Summary

    On July 22, 2014, President Obama signed the Workforce Innovation 
and Opportunity Act (WIOA) (Pub. L. 113-128), comprehensive legislation 
that reforms and modernizes the public workforce system. WIOA reaffirms 
the role of the public workforce system, and brings together and 
enhances several key employment, education, and training programs. The 
statute provides resources, services, and leadership tools for the 
workforce system to help individuals find good jobs and stay employed 
and improves employer prospects for success in the global marketplace. 
WIOA also ensures that the workforce system operates as a 
comprehensive, integrated and streamlined system to provide pathways to 
prosperity for those it serves and continuously improves the quality 
and performance of its services.
    As with Section 188 of WIA, the Civil Rights Center (CRC) of the 
Department is charged with enforcing Section 188 of WIOA, which 
prohibits exclusion of an individual from participation in, denial of 
benefits of, discrimination, or denial of employment in the 
administration of or in connection with any programs and activities 
funded or otherwise financially assisted in whole or in part under 
Title I of WIOA because of race, color, religion, sex, national origin, 
age, disability, political affiliation or belief, and for beneficiaries 
only, citizenship status, or participation in a program or activity 
that receives financial assistance under Title I of WIOA. Section 188 
of WIOA incorporates the prohibitions against discrimination in 
programs and activities that receive Federal financial assistance under 
certain civil rights laws including Title VI of the Civil Rights Act of 
1964 (prohibiting discrimination based on race, color, and national 
origin),\1\ Title IX of the Education Amendments of 1972 (prohibiting 
discrimination based on sex in education and training programs),\2\ Age 
Discrimination Act of 1975 (prohibiting discrimination based on 
age),\3\ and Section 504 of the Rehabilitation Act (prohibiting 
discrimination based on disability).\4\ CRC interprets the 
nondiscrimination provisions of WIOA consistent with the principles of 
Title VII of the Civil Rights Act (Title VII),\5\ the Americans with 
Disabilities Act, (ADA) \6\ as amended by the Americans with 
Disabilities Act Amendments Act (ADAAA),\7\ and Section 501 of the 
Rehabilitation Act, as amended,\8\ which are enforced by the Equal 
Employment Opportunity Commission (EEOC); Executive Order 11246, as 
amended,\9\ and Section 503 of the Rehabilitation Act, as amended,\10\ 
which are enforced by the Department's Office of Federal Contract 
Compliance Programs (OFCCP); Title VI of the Civil Rights Act (Title 
VI), the Age Discrimination Act 1975, and Section 504 of the 
Rehabilitation Act, which are enforced by each Federal funding agency; 
and Title IX of the Education Amendments of 1972 (Title IX), which is 
enforced by each Federal funding agency that assists an education or 
training program.
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    \1\ 42 U.S.C. 2000d et seq.
    \2\ 20 U.S.C. 1681 et seq.
    \3\ 42 U.S.C. 6101 et seq.
    \4\ 29 U.S.C. 794.
    \5\ 42 U.S.C. 2000e et seq.
    \6\ 42 U.S.C. 12101 et seq.
    \7\ 42 U.S.C. 12101 et seq., Public Law 110-325, section 
2(b)(1), 122 Stat. 3553 (2008).
    \8\ 29 U.S.C. 791.
    \9\ Executive Order 11246 (30 FR 12319), as amended by Executive 
Order 11375 (32 FR 14303), Executive Order 12086 (43 FR 46501), 
Executive Order 13279 (67 FR 77141), Executive Order 13665 (79 FR 
20749) and Executive Order 13672 (79 FR 42971).
    \10\ 29 U.S.C. 793.
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    This final rule sets forth the equal opportunity and 
nondiscrimination requirements and obligations for recipients of 
financial assistance under Title I of WIOA and the enforcement 
procedures for implementing the nondiscrimination and equal opportunity 
provisions of WIOA.\11\ Although WIOA did not change the 
nondiscrimination and equal opportunity provisions in Section 188, 
Congress mandated that the Department issue regulations to implement 
the section not later than one year after the date of enactment of 
WIOA. The regulations are to contain standards for determining 
discrimination and enforcement procedures, including complaint 
processes for Section 188 of WIOA.
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    \11\ On April 16, 2015, the Departments of Education and Labor 
published a joint NPRM to implement the provisions of WIOA that 
affect all of the WIOA core programs (titles I-IV) and which will be 
jointly administered by both Departments. See 80 FR 20574 (April 16, 
2015). In addition, the Departments published separately four 
agency-specific NPRMs to implement additional provisions of WIOA 
that are administered separately by the Departments. See 80 FR 20689 
(April 16, 2015).
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    The Department is issuing this final rule to implement Section 188 
of WIOA by making technical changes only to its existing regulation 
implementing WIA, i.e., (1) replicating at part 38 the rule from part 
37 (and updating section numbers in the text of the regulation to 
reflect its new location in part 38), and (2) replacing references to 
the ``Workforce Investment Act of 1998'' or ``WIA'' with ``Workforce 
Innovation and Opportunity Act'' or ``WIOA'' to reflect the proper 
statutory authority. No other regulatory changes are being made at this 
time.
    The Department recognizes that this final rule does not reflect 
developments in equal opportunity and nondiscrimination jurisprudence, 
changes in the practices of recipients

[[Page 43873]]

and beneficiaries since 1999 (for example, the routine use of computer- 
and internet-based systems), and changes in the Department's 
enforcement procedures and processes. Therefore, the Department will 
publish a NPRM, with a request for comments, to reflect developments in 
equal opportunity and nondiscrimination jurisprudence, changes in the 
practices of recipients and beneficiaries since 1999, and proposed 
changes in the Department's enforcement procedures and processes. This 
final rule will apply during the period between July 22, 2015, and 
issuance of a final rule based on the upcoming NPRM.

Publication as a Final Rule

    The Department is promulgating this final rule without notice or an 
opportunity for public comment because the Administrative Procedure Act 
(APA) allows an agency to dispense with notice and comment rulemaking 
when, as here, ``the agency for good cause finds (and incorporates the 
finding and a brief statement of reasons therefore in the rules issued) 
that notice and public procedure thereon are impracticable, 
unnecessary, or contrary to the public interest.'' 5 U.S.C. 553(b)(B). 
Notice and comment rulemaking is unnecessary when changes in 
regulations merely restate the changes in the enabling legislation. 
Gray Panthers Advocacy Committee v. Sullivan, 936 F.2d 1284, 1291 (D.C. 
Cir. 1991), citing Komjathy v. National Transportation Safety Board, 
832 F.2d 1294, 1296-97 (D.C. Cir. 1987).
    The Department for good cause finds that notice and comment 
rulemaking would be impractical, unnecessary, or contrary to the public 
interest because (1) this final rule adopts the Department's existing 
regulatory scheme for WIA Section 188, with technical revisions to 
conform to WIOA; (2) this final rule imposes no new or substantive 
requirement on the public or any entity; and (3) the Department is 
required by statute to publish this final rule, and lacks the 
discretion not to do so. The Department has promulgated final rules 
without notice or comment rulemaking in similar situations. See, e.g., 
Implementation of Executive Order 13672 Prohibiting Discrimination 
Based on Sexual Orientation and Gender Identity by Contractors and 
Subcontractors, 79 FR 72985 (Dec. 9, 2014) (amending rule to conform to 
changes in Executive Order 11246, as amended by E.O. 13672 by replacing 
the words ``sex, or national origin'' with the words ``sex, sexual 
orientation, gender identity, or national origin''); Affirmative Action 
Obligations of Government Contractors, Executive Order 11246, as 
Amended; Exemption for Religious Entities; Final Rule; 68 FR 56392 
(Sept. 30, 2003) (amending rule to conform to changes in Executive 
Order 11246, as amended by E.O.13279, by restating the religious 
exemption as a new provision in its regulations); and Obligations of 
Contractors and Subcontractors; Miscellaneous Amendments; Final Rule; 
34 FR 744 (Jan. 17, 1969) (adding ``sex'' as basis for prohibited 
discrimination and replacing ``creed'' with ``religion'').

Sections Revised

    This final rule makes only technical revisions to the text adopted 
from 29 CFR part 37. The primary change is to replace statutory 
references to ``Workforce Investment Act'' and ``WIA'' with ``Workforce 
Innovation and Opportunity Act'' and ``WIOA''. In replicating the 
complete text of part 37, 29 CFR as a new part 38, 29 CFR, this final 
rule also makes corresponding corrections to section numbers within the 
text of the regulation. No other revisions have been made.

Regulatory Procedures

Executive Orders 12866 and 13563

    Executive Order 12866 (Regulatory Planning and Review) and 
Executive Order 13563 (Improving Regulation and Regulatory Review) 
direct agencies to assess all costs and benefits of available 
regulatory alternatives, including the alternative of not regulating, 
and, if regulation is necessary, to select regulatory approaches that 
maximize net benefits (including potential economic, environmental, 
public health, and safety effects, distributive impacts, and equity, 
dignity, and fairness concerns). The OMB determines whether a 
regulatory action is significant and, therefore, subject to review.
    Section 3(f) of Executive Order 12866 defines a ``significant 
regulatory action'' as any action that is likely to result in a rule 
that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising from legal mandates, 
the President's priorities, or the principles set forth in Executive 
Order 12866.
    This final rule is not a ``significant regulatory action'' under 
Section 3(f)(4) of Executive Order 12866, thus, OMB has not reviewed 
the rule.

The Need for Regulation

    Section 188(e) of WIOA requires that the Department issue 
regulations implementing Section 188, within a year of enactment, on 
July 22, 2015.
    Congress directed the Department to issue regulations implementing 
Section 188 of WIOA. Thus, publication of a revised rule is required, 
and no less burdensome alternatives exist.

Alternatives in Light of the Required Publication of Proposed 
Regulations

    The Department considered two possible rulemaking alternatives: (1) 
To publish a final rule as 29 CFR part 38 implementing Section 188 of 
WIOA with only technical updates as compared to the regulations at 29 
CFR part 37, which implements Section 188 of WIA; or (2) To publish an 
final rule with only technical updates (effective immediately) and a 
NPRM. The final rule would remain in force until issuance of a revised 
final rule based on the NPRM. The NPRM would propose updating part 38 
consistent with current law and address its application to current 
workforce development and workplace practices and issues.
    The Department has considered these options in accordance with the 
provisions of Executive Order 12866 and has chosen to publish this 
final rule containing only technical revisions and a NPRM shortly 
thereafter (i.e., alternative 2). The Department believes that the 
current rule does not reflect recent developments in equal opportunity 
and nondiscrimination jurisprudence. Moreover, procedures and processes 
for enforcement of the nondiscrimination and equal opportunity 
provisions of WIA Section 188 have not been revised to reflect changes 
in the practices of recipients since 1999, including the use of 
computer-based and internet-based systems to provide aid, benefit, 
service, and training through WIOA Title I financially-assisted 
programs and activities. Thus, only adopting the language of the 
existing regulations with technical updates (i.e., alternative 1) would 
have the negative effect of continuing to require recipients to comply 
with legal standards that do not take into account recent developments 
in the law.

[[Page 43874]]

Cost Analysis

    The expected costs resulting from this final rule are minimal, and 
consist only of regulatory familiarization and notice. The Department 
believes that the cost of both regulatory familiarization and notice 
will be minimal given that the only changes to the regulation are 
conforming amendments to properly reflect new legislative authority. 
This final rule substitutes statutory references to ``Workforce 
Investment Act'' with ``Workforce Innovation and Opportunity'', and 
``WIA'' with ``WIOA,'' wherever they appear in the current regulations. 
This final rule also adopts the complete text of part 37, 29 CFR as a 
new part 38, 29 CFR (and makes corresponding corrections to sections 
number within the text of the regulation). No other revisions have been 
made.

Cost of Regulatory Familiarization

    Table 1 presents the estimated number of recipients expected to 
experience the burden of regulatory familiarization for this rule. The 
estimate may be over-inclusive because several recipients are likely 
counted more than once under different categories because they receive 
more than one source of WIOA Title I financial assistance. For example, 
the Texas Workforce Commission is both a recipient of a Senior 
Community Service Employment Program Grant as well as an Adult WIOA 
Title I grantee However, the Department decided to include them in both 
the ``States'' category of recipient and under a ``National Programs'' 
category to avoid the risk of being under-inclusive in the 
calculations. At the same time, there are entities that local workforce 
boards may include in the One-Stop delivery system, and thus, may be 
recipients if they become partners. These optional partners include the 
Supplemental Nutritional Assistance Program employment and training 
program, Ticket-to-Work and the Self-Sufficiency Program of the Social 
Security Administration. Since the Department has no way of knowing how 
many of these programs have been included in different One-Stop 
delivery systems, we are unable to include them in our estimate of the 
total number of recipients.
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    \12\ The 56 State entities are the recipients for the subset of 
programs below.

             Table 1--Estimated Annual Number of Recipients
------------------------------------------------------------------------
                                                        Estimated annual
                      Recipients                           number of
                                                           recipients
------------------------------------------------------------------------
States \12\..........................................                 56
    Adult Program (Title I of WIOA).
    Dislocated Worker Program (Title I of WIOA).
    Youth Program (Title I of WIOA).
    Wagner-Peyser Act Program (Wagner-Peyser Act, as
     amended by title III of WIOA).
    Adult Education and Literacy Program (Title II)
     of WIOA.
    Vocational Rehabilitation Program.
    Trade Adjustment Assistance Program.
    Unemployment Compensation Program.
    Local Veterans' Employment Representatives and
     Disabled Veterans' Outreach Program.
    Career and Technical Education (Perkins).
    Community Service Block Grants.
    Temporary Assistance for Needy Families (TANF)
State and Local Workforce Investment Boards..........                580
Job Corps Operators (i.e. national contractors)......                 18
Job Corps Outreach and Admissions Operators..........                 24
Job Corps national training contractors/Career                        21
 Transition Services Operators.......................
Service providers, including eligible training                    11,400
 providers and on-the-job training employers \13\....
One Stop Career Centers \14\.........................              2,481
National Programs Include:
    Senior Community Service Employment Grants.......                 71
    National Emergency Grants \15\...................                125
    Reintegration of Ex-Offenders--Adult Grants \16\.                 28
    H-1B Technical Skills Training Grants \17\.......                 36
    H-1B Jobs and Innovation Accelerator Challenge                    30
     Grants \18\.....................................
    Indian and Native American Programs..............                178
    National Farmworker Jobs Program.................                 69
    YouthBuild.......................................                 82
    Registered Apprenticeship Program................             19,259
                                                      ------------------
        Total........................................             34,458
------------------------------------------------------------------------

    Table 2, below, presents the compensation rate for the occupational 
category expected to experience an increase in level of effort 
(workload) due to the rule. The Department used mean hourly wage rates 
from the Bureau of Labor Statistics' Occupational Employment Statistics 
(OES) program for private, State and local employees. The Department 
adjusted the wage rate using a loaded wage factor to reflect total 
compensation, which includes

[[Page 43875]]

health and retirement benefits. For these State and local sectors, the 
Department used a loaded wage factor of 1.55, which represents the 
ratio of total compensation to wages.
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    \13\ PY 2012 estimated, see http://www.doleta.gov/performance/results/pdf/PY2012WIATrends.pdf.
    \14\ PY 2012 see http://www.doleta.gov/performance/results/pdf/PY2012WIATrends.pdf.
    \15\ PY 2012 see http://www.doleta.gov/performance/results/pdf/PY2012WIATrends.pdf.
    \16\ PY 2011 announcement, see http://www.doleta.gov/grants/pdf/sga_dfa_py_11_02_final_1_11_2012.pdf.
    \17\ PY 2011, http://www.doleta.gov/business/pdf/H-1B_TST_R1-R2_Grant_Summaries_Final.pdf.
    \18\ 2011, http://manufacturing.gov/docs/2011-jobs-accelerator-overviews.pdf.
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    The Department then multiplied the loaded wage factor by the 
occupational category's wage rate to calculate an hourly compensation 
rate. Throughout this analysis, the Department assumes Equal 
Opportunity Officers, at both the state and local level, are managers. 
This assumption is based upon the Civil Rights Center's (CRC) 
experience with recipients.

                                Table 2--Calculation of Hourly Compensation Rates
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                                                                                                      Hourly
                           Position                              Mean hourly      Loaded wage      compensation
                                                                     wage            factor            rate
                                                                            A                B                 C = A x B
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Managers \19\................................................          $56.35             1.55           $87.34
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    Agencies are required to include in the burden analysis the 
estimated time it takes for recipients to review and understand the 
instructions for compliance with this final rule. Based on its 
experience with recipients' compliance with the laws the CRC enforces 
and the mandate of the regulations that each recipient have an Equal 
Opportunity (E.O.) Officer, CRC believes that E.O. Officers at each 
recipient will be responsible for understanding or becoming familiar 
with this final rule. The Department estimates that it will take thirty 
minutes for the E.O. Officer at each recipient to read and become 
familiar with this final rule. The estimated burden for rule 
familiarization for these managers is 17,229 hours (34,458 recipients x 
.5 hours). The Department calculates a one-time total estimated cost as 
$1,504,781 (17,229 hours x $87.34/hour).\20\
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    \19\ BLS OES, May 2014, 11-1021 General and Operations Managers 
(http://www.bls.gov/oes/current/oes111021.htm).
    \20\ Although DOL believes there may be others that need to 
familiarize themselves with this rule, this cost may nonetheless be 
overstated. DOL included all recipients as having E.O. Officers who 
are managers when the rule (29 CFR part 38) excepts small recipients 
from this requirement and recipients who do have E.O. Officers may 
have compensation rates lower than the estimate.
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Cost of Notice

    The final rule proposes limited changes to the specific language 
provided by the Department for recipients to use in the equal 
opportunity notice in Sec.  38.30 that they are required to publish 
under Sec.  38.31. The final rule requires recipients to substitute 
five references to WIA and the Workforce Investment Act of 1998 with 
WIOA and the Workforce Innovation and Opportunity Act in the notice.
    Based upon its experience with recipients, the Department assumes 
the E.O. Officer at each recipient will be responsible for printing out 
revised notices with changes to the text of the language for the 
notice. The Department estimates that it would take each of them 
approximately 15 minutes to ensure that revised notices are printed. 
Dissemination includes posting the notices prominently which the 
Department estimates that it would take each E.O. Officer approximately 
an additional 15 minutes. Consequently, the estimated burden for 
updating the notice (i.e. printing revisions of, and disseminating the 
posters) is 17,229 hours (34,458 recipients x .5 hours). The Department 
calculated the total estimated first year updating and dissemination 
cost for the E.O. Officers as $1,504,781 (17,229 hours x $87.34/hour). 
The Department also calculated that each E.O. Officer will make thirty 
copies of the notice at $.08 each for posting in his or her 
establishment for a first year operational and maintenance cost of 
$82,699 (34,458 recipients x $.08 a copy x 30 copies). This assumes 10 
copies in each English and two additional languages.
    Thus the total estimated cost posed by this final rule is 
$3,092,261: ($1,504,781 for familiarization + $1,504.781 for updating + 
$82,699 for operation and maintenance).
    The final rule does not pose any additional burden. It does not 
modify existing or create new reporting requirements, record-keeping 
requirements, prohibitions against discriminatory conduct, or 
administrative requirements. It does not modify existing, or create 
new, enforcement procedures. In other words, the regulated community is 
already subject to the requirements of this final rule, and will 
therefore already be aware of the requirements to be in compliance with 
this rule. Therefore, the final rule would not create significant new 
costs or burdens for Governors, recipients, or beneficiaries.

Additional Significant Regulatory Action Analysis

    In addition to cost, the Department must consider the three 
additional factors identified above when determining whether or not 
this final rule is a significant regulatory action. First, the 
Department has determined that the final rule creates no inconsistency 
or interference with an action taken or planned by another agency--the 
Department, which is responsible for enforcing Section 188 of WIOA, is 
publishing a final rule with technical corrections to implement the 
statute as directed by Congress. Because the Department is the agency 
responsible for enforcing Section 188, the regulations create no 
inconsistency or interference with any other agency.
    Second, the Department has determined that the final rule does not 
materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof because the final rule is simply a revision of an existing rule 
to reflect the proper name of the governing legislation. Finally, the 
Department has determined that publication of this final rule raises no 
novel legal or policy issues arising from legal mandates, the 
President's priorities, or the principles set forth in E.O. 12866 
because this final rule contains no new obligations, mandates, 
priorities or principles; it simply removes the name of a superseded 
statute and inserts the name of the current governing law.

Regulatory Flexibility Act and Executive Order 13272 (Consideration of 
Small Entities)

    Because a notice of proposed rulemaking is not required for the 
rule under 5 U.S.C. 553(b)(B), the requirements of the Regulatory 
Flexibility Act and Executive Order 13272, pertaining to regulatory 
flexibility analysis, do not apply to this rule. See 5 U.S.C. 601(2), 
603(a). Accordingly, the Department has not prepared a regulatory 
flexibility analysis.

[[Page 43876]]

Paperwork Reduction Act of 1995

    The purposes of the Paperwork Reduction Act of 1995 (PRA), 44 
U.S.C. 3501 et seq., include minimizing the paperwork burden on 
affected entities. The Department notes that a Federal agency generally 
cannot conduct or sponsor a collection of information and the public is 
generally not required to respond to an information collection, unless 
it is approved by the OMB under the PRA and displays a currently valid 
OMB Control Number. In addition, notwithstanding any other provisions 
of law, no person shall generally be subject to penalty for failing to 
comply with a collection of information that does not display a valid 
Control Number. See 44 U.S.C. 3512; 5 CFR 1320.5(a) and 1320.6.
    The Department has identified the following sections containing 
information collections: 29 CFR 38.20, 38.22, 38.25, 38.29 through 
38.40, 38.42, 38.53 through 38.55, 38.70 through 38.74, and 38.77 
through 38.80.
    The Department submitted an information collection request 
associated with this rulemaking for OMB approval. The OMB approved the 
request via a Notice of Action dated July 20, 2015. Control number 
1225-0077 has been assigned to the information collection requirements 
in this rule.
    The information collections are summarized as follows:
    Agency: DOL-OASAM.
    Title of Collection: Nondiscrimination Compliance Information 
Reporting.
    OMB Control Number: 1225-0077.
    Affected Public: Individuals or Households; State, Local, and 
Tribal Governments; and Private Sector--businesses or other for profits 
and not-for-profit institutions.
    Total Estimated Number of Respondents: 10,006 respondents (a single 
respondent could be the recipient of multiple grants).
    Total Estimated Number of Responses: 15,502,436.
    Total Estimated Annual Time Burden: 88,553 hours.
    Total Estimated Annual Other Costs Burden: $0.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. This rule 
will not result in an annual effect on the economy of $100 million or 
more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of the United States-based companies to 
compete with foreign-based companies in domestic and export markets.

Unfunded Mandates Reform Act of 1995

    This rule will not include any increased expenditures by State, 
local, and tribal governments in the aggregate of $100 million or more, 
or increased expenditures by the private sector of $100 million or 
more.

Executive Order 13132 (Federalism)

    The Department has reviewed this final rule in accordance with 
Executive Order 13132 regarding federalism, and has determined that it 
does not have ``federalism implications.'' This final rule will not 
``have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government.''

Executive Order 13175 (Indian Tribal Governments)

    This final rule does not have tribal implications under Executive 
Order 13175 that would require a tribal summary impact statement. The 
rule would not have substantial direct effects on one or more Indian 
tribes, on the relationship between the Federal government and Indian 
tribes, or on the distribution of power and responsibilities between 
the Federal government and Indian tribes.

Effects on Families

    The undersigned hereby certifies that the rule would not adversely 
affect the well-being of families, as discussed under section 654 of 
the Treasury and General government Appropriation Act, 1999. To the 
contrary, by ensuring that customers, including job seekers and 
applicants for unemployment insurance, do not suffer illegal 
discrimination in accessing DOL financially-assisted programs, 
services, and activities, the final rule would have a positive effect 
on the economic well-being of families.

Executive Order 13045 (Protection of Children)

    This rule would have no environmental health risk or safety risk 
that may disproportionately affect children.

Environmental Impact Assessment

    A review of this rule in accordance with the requirements of the 
National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et 
seq.; the regulations of the Council on Environmental Quality, 40 CFR 
part 1500 et seq.; and DOL NEPA procedures, 29 CFR part 11, indicates 
the rule would not have a significant impact on the quality of the 
human environment. There is, thus, no corresponding environmental 
assessment or an environmental impact statement.

Executive Order 13211 (Energy Supply)

    This rule is not subject to Executive Order 13211. It will not have 
a significant adverse effect on the supply, distribution, or use of 
energy.

Executive Order 12630 (Constitutionally Protected Property Rights)

    This rule is not subject to Executive Order 12630 because it does 
not involve implementation of a policy that has takings implications or 
that could impose limitations on private property use.

Executive Order 12988 (Civil Justice Reform Analysis)

    This rule was drafted and reviewed in accordance with Executive 
Order 12988 and will not unduly burden the Federal court system. The 
rule was: (1) Reviewed to eliminate drafting errors and ambiguities; 
(2) written to minimize litigation; and (3) written to provide a clear 
legal standard for affected conduct and to promote burden reduction.

List of Subjects in 29 CFR Part 38

    Civil rights, Discrimination in employment, Equal opportunity, 
Nondiscrimination, Workforce development.

Thomas E. Perez,
Secretary of Labor.
    Accordingly, under authority of Section 188 of WIOA and for the 
reasons set forth in the preamble, the Department amends title 29 of 
the Code of Federal Regulations, by adding part 38 as follows:

PART 38--IMPLEMENTATION OF THE NONDISCRIMINATION AND EQUAL 
OPPORTUNITY PROVISIONS OF THE WORKFORCE INNOVATION AND OPPORTUNITY 
ACT

Sec.
38.0 Paperwork Reduction Act approvals.
Subpart A--General Provisions
38.1 What is the purpose of this part?
38.2 To whom does this part apply, and what is the scope of this 
part?
38.3 How does this part affect a recipient's other obligations?
38.4 What definitions apply to this part?
38.5 What forms of discrimination are prohibited by this part?
38.6 What specific discriminatory actions, based on prohibited 
grounds other than

[[Page 43877]]

disability, are prohibited by this part, and what limitations are 
there related to religious activities?
38.7 What specific discriminatory actions based on disability are 
prohibited by this part?
38.8 What are a recipient's responsibilities regarding reasonable 
accommodation and reasonable modification for individuals with 
disabilities?
38.9 What are a recipient's responsibilities to communicate with 
individuals with disabilities?
38.10 To what extent are employment practices covered by this part?
38.11 To what extent are intimidation and retaliation prohibited by 
this part?
38.12 What Department of Labor office is responsible for 
administering this part?
38.13 Who is responsible for providing interpretations of this part?
38.14 Under what circumstances may the Secretary delegate the 
responsibilities of this part?
38.15 What are the Director's responsibilities to coordinate with 
other civil rights agencies?
38.16 What is this part's effect on a recipient's obligations under 
other laws, and what limitations apply?
Subpart B--Recordkeeping and Other Affirmative Obligations of 
Recipients

Assurances

38.20 What is a grant applicant's obligation to provide a written 
assurance?
38.21 How long will the recipient's obligation under the assurance 
last, and how broad is the obligation?
38.22 How must covenants be used in connection with this part?

Equal Opportunity Officers

38.23 Who must designate an Equal Opportunity Officer?
38.24 Who is eligible to serve as an Equal Opportunity Officer?
38.25 What are the responsibilities of an Equal Opportunity Officer?
38.26 What are a recipient's obligations relating to the Equal 
Opportunity Officer?
38.27 What are the obligations of small recipients regarding Equal 
Opportunity Officers?
38.28 What are the obligations of service providers regarding Equal 
Opportunity Officers?

Notice and Communication

38.29 What are a recipient's obligations to disseminate its equal 
opportunity policy?
38.30 What specific wording must the notice contain?
38.31 Where must the notice required by Sec. Sec.  38.29 and 38.30 
be published?
38.32 When must the notice required by Sec. Sec.  38.29 and 38.30 be 
provided?
38.33 Who is responsible for meeting the notice requirement with 
respect to service providers?
38.34 What type of notice must a recipient include in publications, 
broadcasts, and other communications?
38.35 What are a recipient's responsibilities to provide services 
and information in languages other than English?
38.36 What responsibilities does a recipient have to communicate 
information during orientations?

Data and Information Collection and Maintenance

38.37 What are a recipient's responsibilities to collect and 
maintain data and other information?
38.38 What information must grant applicants and recipients provide 
to CRC?
38.39 How long must grant applicants and recipients maintain the 
records required under this part?
38.40 What access to sources of information must grant applicants 
and recipients provide the Director?
38.41 What responsibilities do grant applicants, recipients, and the 
Department have to maintain the confidentiality of the information 
collected?
38.42 What are a recipient's responsibilities under this part to 
provide universal access to WIOA Title I-financially assisted 
programs and activities?
Subpart C--Governor's Responsibilities to Implement the 
Nondiscrimination and Equal Opportunity Requirements of WIOA
38.50 To whom does this subpart apply?
38.51 What are a Governor's oversight responsibilities?
38.52 To what extent may a Governor be liable for the actions of a 
recipient he or she has financially assisted under WIOA Title I?
38.53 What are a Governor's oversight responsibilities regarding 
recipients' recordkeeping?
38.54 What are a Governor's obligations to develop and maintain a 
Methods of Administration?
38.55 When must the Governor carry out his or her obligations with 
regard to the Methods of Administration?
Subpart D--Compliance Procedures
38.60 How does the Director evaluate compliance with the 
nondiscrimination and equal opportunity provisions of WIOA and this 
part?
38.61 Is there authority to issue subpoenas?

Compliance Reviews

38.62 What are the authority and procedures for conducting pre-
approval compliance reviews?
38.63 What are the authority and procedures for conducting post-
approval compliance reviews?
38.64 What procedures must the Director follow when CRC has 
completed a post-approval compliance review?
38.65 What is the Director's authority to monitor the activities of 
a Governor?
38.66 What happens if a recipient fails to submit requested data, 
records, and/or information, or fails to provide CRC with the 
required access?
38.67 What information must a Notice to Show Cause contain?
38.68 How may a recipient show cause why enforcement proceedings 
should not be instituted?
38.69 What happens if a recipient fails to show cause?

Complaint Processing Procedures

38.70 Who may file a complaint concerning discrimination connected 
with WIOA Title I?
38.71 Where may a complaint be filed?
38.72 When must a complaint be filed?
38.73 What information must a complaint contain?
38.74 Are there any forms that a complainant may use to file a 
complaint?
38.75 Is there a right of representation in the complaint process?
38.76 What are the required elements of a recipient's discrimination 
complaint processing procedures?
38.77 Who is responsible for developing and publishing complaint 
processing procedures for service providers?
38.78 Does a recipient have any special obligations in cases in 
which the recipient determines that it has no jurisdiction over a 
complaint?
38.79 If, before the 90-day period has expired, a recipient issues a 
Notice of Final Action with which the complainant is dissatisfied, 
how long does the complainant have to file a complaint with the 
Director?
38.80 What happens if a recipient fails to issue a Notice of Final 
Action within 90 days of the date on which a complaint was filed?
38.81 Are there any circumstances under which the Director may 
extend the time limit for filing a complaint with him or her?
38.82 Does the Director accept every complaint for resolution?
38.83 What happens if a complaint does not contain enough 
information?
38.84 What happens if CRC does not have jurisdiction over a 
complaint?
38.85 Are there any other circumstances in which the Director will 
send a complaint to another authority?
38.86 What must the Director do if he or she determines that a 
complaint will not be accepted?
38.87 What must the Director do if he or she determines that a 
complaint will be accepted?
38.88 Who may contact CRC about a complaint?
38.89 May the Director offer the parties to a complaint the option 
of mediation?

Determinations

38.90 If a complaint is investigated, what must the Director do when 
the investigation is completed?
38.91 What notice must the Director issue if he or she finds 
reasonable cause to believe that a violation has taken place?
38.92 What notice must the Director issue if he or she finds no 
reasonable cause to believe that a violation has taken place?
38.93 What happens if the Director finds that a violation has taken 
place, and the recipient fails or refuses to take the corrective 
action listed in the Initial Determination?

[[Page 43878]]

38.94 What corrective or remedial actions may be imposed where, 
after a compliance review or complaint investigation, the Director 
finds a violation of the nondiscrimination and equal opportunity 
provisions of WIOA or this part?
38.95 What procedures apply if the Director finds that a recipient 
has violated the nondiscrimination and equal opportunity provisions 
of WIOA or this part?
38.96 What are the required elements of a written assurance?
38.97 What are the required elements of a Conciliation Agreement?
38.98 When will the Director conclude that compliance cannot be 
secured by voluntary means?
38.99 If the Director concludes that compliance cannot be secured by 
voluntary means, what actions must he or she take?
38.100 What information must a Final Determination contain?
38.101 Whom must the Director notify of a finding of noncompliance?

Breaches of Conciliation Agreements

38.102 What happens if a grant applicant or recipient breaches a 
Conciliation Agreement?
38.103 Whom must the Director notify about a breach of a 
Conciliation Agreement?
38.104 What information must a Notification of Breach of 
Conciliation Agreement contain?
38.105 Whom must the Director notify if enforcement action under a 
Notification of Breach of Conciliation Agreement is commenced?
Subpart E--Federal Procedures for Effecting Compliance
38.110 What enforcement procedures does the Department follow to 
effect compliance with the nondiscrimination and equal opportunity 
provisions of WIOA and this part?
38.111 What hearing procedures does the Department follow?
38.112 What procedures for initial and final decisions does the 
Department follow?
38.113 What procedure does the Department follow to suspend, 
terminate, withhold, deny or discontinue WIOA Title I financial 
assistance?
38.114 What procedure does the Department follow to distribute WIOA 
Title I financial assistance to an alternate recipient?
38.115 What procedures does the Department follow for post-
termination proceedings?

    Authority: 29 U.S.C. 3101 et seq., 29 U.S.C. 3174(b), 29 U.S.C. 
3181, 29 U.S.C. 3243, 29 U.S.C. 3245(c)(2), 29 U.S.C. 3245(d)(1)(E), 
29 U.S.C. 3246, 29 U.S.C. 3247, and 29 U.S.C. 3248; 42 U.S.C. 2000d, 
et seq.; 29 U.S.C. 794; 42 U.S.C. 6101; and 20 U.S.C. 1681.

Subpart A--General Provisions


Sec.  38.0  Paperwork Reduction Act approval.

    The following sections of this part contain collections of 
information that are subject to approval by the Office of Management 
and Budget under control number 1225-0077: Sec. Sec.  38.20, 38.22, 
38.25, 38.29 through 38.40, 38.42, 38.53 through 38.55, 38.70 through 
38.74, and 38.77 through 38.80. The approval status of the information 
collections is available at http://www.reginfo.gov/public/do/PRAMain.


Sec.  38.1  What is the purpose of this part?

    The purpose of this part is to implement the nondiscrimination and 
equal opportunity provisions of the Workforce Innovation and 
Opportunity Act (WIOA), which are contained in section 188 of WIOA. 
Section 188 prohibits discrimination on the grounds of race, color, 
religion, sex, national origin, age, disability, political affiliation 
or belief, and for beneficiaries only, citizenship or participation in 
a WIOA Title I-financially assisted program or activity. This part 
clarifies the application of the nondiscrimination and equal 
opportunity provisions of WIOA and provides uniform procedures for 
implementing them.


Sec.  38.2  To whom does this part apply, and what is the scope of this 
part?

    (a) This part applies to:
    (1) Any recipient, as defined in Sec.  38.4;
    (2) Programs and activities that are part of the One-Stop delivery 
system and that are operated by One-Stop partners listed in section 
121(b) of WIOA, to the extent that the programs and activities are 
being conducted as part of the One-Stop delivery system; and
    (3) The employment practices of a recipient and/or One-Stop 
partner, as provided in Sec.  38.10.
    (b) Limitation of application. This part does not apply to:
    (1) Programs or activities that are financially assisted by the 
Department exclusively under laws other than Title I of WIOA, and that 
are not part of the One-Stop delivery system (including programs or 
activities implemented under, authorized by, and/or financially 
assisted by the Department under, JTPA);
    (2) Contracts of insurance or guaranty;
    (3) The ultimate beneficiary to this program of Federal financial 
assistance;
    (4) Federal procurement contracts, with the exception of contracts 
to operate or provide services to Job Corps Centers; and
    (5) Federally-operated Job Corps Centers. The operating Department 
is responsible for enforcing the nondiscrimination and equal 
opportunity laws to which such Centers are subject.


Sec.  38.3  How does this part affect a recipient's other obligations?

    (a) A recipient's compliance with this part will satisfy any 
obligation of the recipient to comply with 29 CFR part 31, the 
Department of Labor's regulations implementing Title VI of the Civil 
Rights Act of 1964, as amended (Title VI), and with Subparts A, D and E 
of 29 CFR part 32, the Department's regulations implementing Section 
504 of the Rehabilitation Act of 1973, as amended (Section 504).
    (b) 29 CFR part 32, subparts B and C and appendix A, the 
Department's regulations which implement the requirements of Section 
504 pertaining to employment practices and employment-related training, 
program accessibility, and reasonable accommodation, are hereby 
incorporated into this part by reference. Therefore, recipients must 
comply with the requirements set forth in those regulatory sections as 
well as the requirements listed in this part.
    (c) Recipients that are also public entities or public 
accommodations, as defined by Titles II and III of the Americans with 
Disabilities Act of 1990 (ADA), should be aware of obligations imposed 
by those titles.
    (d) Similarly, recipients that are also employers, employment 
agencies, or other entities covered by Title I of the ADA should be 
aware of obligations imposed by that title.
    (e) Compliance with this part does not affect, in any way, any 
additional obligation that a recipient may have to comply with the 
following laws and their implementing regulations:
    (1) Executive Order 11246, as amended;
    (2) Sections 503 and 504 of the Rehabilitation Act of 1973, as 
amended (29 U.S.C. 793 and 794);
    (3) The affirmative action provisions of the Vietnam Era Veterans' 
Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212);
    (4) The Equal Pay Act of 1963, as amended (29 U.S.C. 206d);
    (5) Titles VI and VII of the Civil Rights Act of 1964, as amended 
(42 U.S.C. 2000d et seq. and 2000e et seq.);
    (6) The Age Discrimination Act of 1975, as amended (42 U.S.C. 
6101);
    (7) The Age Discrimination in Employment Act of 1967, as amended 
(29 U.S.C. 621);
    (8) Title IX of the Education Amendments of 1972, as amended (Title 
IX) (20 U.S.C. 1681);

[[Page 43879]]

    (9) The Americans with Disabilities Act of 1990, as amended (42 
U.S.C. 12101 et seq.); and
    (10) The anti-discrimination provision of the Immigration and 
Nationality Act, as amended (8 U.S.C. 1324b).
    (f) This rule does not preempt consistent State and local 
requirements.


Sec.  38.4  What definitions apply to this part?

    As used in this part, the term:
    Administrative Law Judge means a person appointed as provided in 5 
U.S.C. 3105 and 5 CFR 930.203, and qualified under 5 U.S.C. 557, to 
preside at hearings held under the nondiscrimination and equal 
opportunity provisions of WIOA and this part.
    Aid, benefits, services, or training. (1) The term ``aid, benefits, 
service, or training'' means WIOA Title I--financially assisted 
services, financial or other aid, or benefits provided by or through a 
recipient or its employees, or by others through contract or other 
arrangements with the recipient. ``Aid, benefits, services, or 
training'' includes, but is not limited to:
    (i) Core and intensive services;
    (ii) Education or training;
    (iii) Health, welfare, housing, social service, rehabilitation, or 
other supportive services;
    (iv) Work opportunities; and
    (v) Cash, loans, or other financial assistance to individuals.
    (2) As used in this part, the term includes any aid, benefits, 
services, or training provided in or through a facility that has been 
constructed, expanded, altered, leased, rented, or otherwise obtained, 
in whole or in part, with Federal financial assistance under Title I of 
WIOA.
    Applicant means an individual who is interested in being considered 
for WIOA Title I--financially assisted aid, benefits, services, or 
training by a recipient, and who has signified that interest by 
submitting personal information in response to a request by the 
recipient. See also the definitions of ``application for benefits,'' 
``eligible applicant/registrant,'' ``participant,'' ``participation,'' 
and ``recipient'' in this section.
    Applicant for employment means a person or persons who make(s) 
application for employment with a recipient of Federal financial 
assistance under WIOA Title I.
    Application for assistance means the process by which required 
documentation is provided to the Governor, recipient, or Department 
before and as a condition of receiving WIOA Title I financial 
assistance (including both new and continuing assistance).
    Application for benefits means the process by which information, 
including but not limited to a completed application form, is provided 
by applicants or eligible applicants before and as a condition of 
receiving WIOA Title I--financially assisted aid, benefits, services, 
or training from a recipient.
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Assistant Secretary means the Assistant Secretary for 
Administration and Management, United States Department of Labor.
    Auxiliary aids or services includes--
    (1) Qualified interpreters, notetakers, transcription services, 
written materials, telephone handset amplifiers, assistive listening 
systems, telephones compatible with hearing aids, closed caption 
decoders, open and closed captioning, telecommunications devices for 
deaf persons (TDDs/TTYs), videotext displays, or other effective means 
of making aurally delivered materials available to individuals with 
hearing impairments;
    (2) Qualified readers, taped texts, audio recordings, brailled 
materials, large print materials, or other effective means of making 
visually delivered materials available to individuals with visual 
impairments;
    (3) Acquisition or modification of equipment or devices; and
    (4) Other similar services and actions.
    Beneficiary means the individual or individuals intended by 
Congress to receive aid, benefits, services, or training from a 
recipient.
    Citizenship See ``Discrimination on the ground of citizenship'' in 
this section.
    CRC means the Civil Rights Center, Office of the Assistant 
Secretary for Administration and Management, U.S. Department of Labor.
    Department means the U.S. Department of Labor (DOL), including its 
agencies and organizational units.
    Departmental grantmaking agency means a grantmaking agency within 
the U.S. Department of Labor.
    Director means the Director, Civil Rights Center (CRC), Office of 
the Assistant Secretary for Administration and Management, U.S. 
Department of Labor, or a designee authorized to act for the Director.
    Disability means, with respect to an individual, a physical or 
mental impairment that substantially limits one or more of the major 
life activities of such individual; a record of such an impairment; or 
being regarded as having such an impairment.
    (1)(i) The phrase physical or mental impairment means--
    (A) Any physiological disorder or condition, cosmetic 
disfigurement, or anatomical loss affecting one or more of the 
following body systems: Neurological, musculoskeletal, special sense 
organs, respiratory (including speech organs), cardiovascular, 
reproductive, digestive, genitourinary, hemic and lymphatic, skin, and 
endocrine;
    (B) Any mental or psychological disorder such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities.
    (ii) The phrase physical or mental impairment includes, but is not 
limited to, such contagious and noncontagious diseases and conditions 
as orthopedic, visual, speech and hearing impairments, cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart 
disease, diabetes, mental retardation, emotional illness, specific 
learning disabilities, HIV disease (whether symptomatic or 
asymptomatic), tuberculosis, drug addiction, and alcoholism. The phrase 
``physical or mental impairment'' does not include homosexuality or 
bisexuality.
    (2) The phrase major life activities means functions such as caring 
for one's self, performing manual tasks, walking, seeing, hearing, 
speaking, breathing, learning, and working.
    (3) The phrase has a record of such an impairment means has a 
history of, or has been misclassified as having, a mental or physical 
impairment that substantially limits one or more major life activities.
    (4) The phrase is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but that is treated by the recipient as 
being such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others 
toward such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by the recipient as having such an 
impairment.
    Discrimination on the ground of citizenship means a denial of 
participation in programs or activities financially assisted in whole 
or in part under Title I of WIOA to individuals on the basis of their 
status as citizens or nationals of the United States, lawfully admitted 
permanent resident aliens, refugees, asylees, and parolees, or other

[[Page 43880]]

immigrants authorized by the Attorney General to work in the United 
States.
    Eligible applicant/registrant means an individual who has been 
determined eligible to participate in one or more WIOA Title I--
financially assisted programs or activities.
    Employment practices means a recipient's practices related to 
employment, including but not limited to:
    (1) Recruitment or recruitment advertising;
    (2) Selection, placement, layoff or termination of employees;
    (3) Upgrading, promotion, demotion or transfer of employees;
    (4) Training, including employment-related training;
    (5) Participation in upward mobility programs;
    (6) Deciding rates of pay or other forms of compensation;
    (7) Use of facilities; or
    (8) Deciding other terms, conditions, benefits and/or privileges of 
employment.
    Employment-related training means training that allows or enables 
an individual to obtain employment.
    Entity means any person, corporation, partnership, joint venture, 
sole proprietorship, unincorporated association, consortium, Indian 
tribe or tribal organization, Native Hawaiian organization, and/or 
entity authorized by State or local law; any State or local government; 
and/or any agency, instrumentality or subdivision of such a government.
    Facility means all or any portion of buildings, structures, sites, 
complexes, equipment, roads, walks, passageways, parking lots, rolling 
stock or other conveyances, or other real or personal property or 
interest in such property, including the site where the building, 
property, structure, or equipment is located. The phrase ``real or 
personal property'' in the preceding sentence includes indoor 
constructs that may or may not be permanently attached to a building or 
structure. Such constructs include, but are not limited to, office 
cubicles, computer kiosks, and similar constructs.
    Federal grantmaking agency means a Federal agency that provides 
financial assistance under any Federal statute.
    Financial assistance means any of the following:
    (1) Any grant, subgrant, loan, or advance of funds, including funds 
extended to any entity for payment to or on behalf of participants 
admitted to that entity for training, or extended directly to such 
participants for payment to that entity;
    (2) Provision of the services of grantmaking agency personnel, or 
of other personnel at the grantmaking agency's expense;
    (3) A grant or donation of real or personal property or any 
interest in or use of such property, including:
    (i) Transfers or leases of property for less than fair market value 
or for reduced consideration;
    (ii) Proceeds from a subsequent sale, transfer, or lease of such 
property, if the grantmaking agency's share of the fair market value of 
the property is not returned to the grantmaking agency; and
    (iii) The sale, lease, or license of, and/or the permission to use 
(other than on a casual or transient basis), such property or any 
interest in such property, either:
    (A) Without consideration;
    (B) At a nominal consideration; or
    (C) At a consideration that is reduced or waived either for the 
purpose of assisting the recipient, or in recognition of the public 
interest to be served by such sale or lease to or use by the recipient;
    (4) Waiver of charges that would normally be made for the 
furnishing of services by the grantmaking agency; and
    (5) Any other agreement, arrangement, contract or subcontract 
(other than a procurement contract or a contract of insurance or 
guaranty), or other instrument that has as one of its purposes the 
provision of assistance or benefits under the statute or policy that 
authorizes assistance by the grantmaking agency.
    Financial assistance under Title I of WIOA means any of the 
following, when authorized or extended under WIOA Title I:
    (1) Any grant, subgrant, loan, or advance of Federal funds, 
including funds extended to any entity for payment to or on behalf of 
participants admitted to that entity for training, or extended directly 
to such participants for payment to that entity;
    (2) Provision of the services of Federal personnel, or of other 
personnel at Federal expense;
    (3) A grant or donation of Federal real or personal property or any 
interest in or use of such property, including:
    (i) Transfers or leases of property for less than fair market value 
or for reduced consideration;
    (ii) Proceeds from a subsequent sale, transfer, or lease of such 
property, if the Federal share of the fair market value of the property 
is not returned to the Federal Government; and
    (iii) The sale, lease, or license of, and/or the permission to use 
(other than on a casual or transient basis), such property or any 
interest in such property, either:
    (A) Without consideration;
    (B) At a nominal consideration; or
    (C) At a consideration that is reduced or waived either for the 
purpose of assisting the recipient, or in recognition of the public 
interest to be served by such sale or lease to or use by the recipient;
    (4) Waiver of charges that would normally be made for the 
furnishing of Government services; and
    (5) Any other agreement, arrangement, contract or subcontract 
(other than a Federal procurement contract or a contract of insurance 
or guaranty), or other instrument that has as one of its purposes the 
provision of assistance or benefits under WIOA Title I.
    Fundamental alteration means:
    (1) A change in the essential nature of a program or activity as 
defined in this part, including but not limited to an aid, service, 
benefit, or training; or
    (2) A cost that a recipient can demonstrate would result in an 
undue burden. Factors to be considered in making the determination 
whether the cost of a modification would result in such a burden 
include:
    (i) The nature and net cost of the modification needed, taking into 
consideration the availability of tax credits and deductions, and/or 
outside financial assistance, for the modification;
    (ii) The overall financial resources of the facility or facilities 
involved in the provision of the modification, including:
    (A) The number of persons aided, benefited, served, or trained by, 
or employed at, the facility or facilities; and
    (B) The effect the modification would have on the expenses and 
resources of the facility or facilities;
    (iii) The overall financial resources of the recipient, including:
    (A) The overall size of the recipient;
    (B) The number of persons aided, benefited, served, trained, or 
employed by the recipient; and
    (C) The number, type and location of the recipient's facilities;
    (iv) The type of operation or operations of the recipient, 
including:
    (A) The geographic separateness and administrative or fiscal 
relationship of the facility or facilities in question to the 
recipient; and
    (B) Where the modification sought is employment-related, the 
composition, structure and functions of the recipient's workforce; and
    (v) The impact of the modification upon the operation of the 
facility or facilities, including:
    (A) The impact on the ability of other participants to receive aid, 
benefits, services, or training, or of other employees to perform their 
duties; and

[[Page 43881]]

    (B) The impact on the facility's ability to carry out its mission.
    Governor means the chief elected official of any State or his or 
her designee.
    Grant applicant means an entity that submits the required 
documentation to the Governor, recipient, or Department, before and as 
a condition of receiving financial assistance under Title I of WIOA.
    Grantmaking agency means an entity that provides Federal financial 
assistance.
    Guideline means written informational material supplementing an 
agency's regulations and provided to grant applicants and recipients to 
provide program-specific interpretations of their responsibilities 
under the regulations.
    Illegal use of drugs means the use of drugs, the possession or 
distribution of which is unlawful under the Controlled Substances Act, 
as amended (21 U.S.C. 812). ``Illegal use of drugs'' does not include 
the use of a drug taken under supervision of a licensed health care 
professional, or other uses authorized by the Controlled Substances Act 
or other provisions of Federal law.
    Individual with a disability means a person who has a disability, 
as defined in this section.
    (1) The term ``individual with a disability'' does not include an 
individual on the basis of:
    (i) Transvestism, transsexualism, pedophilia, exhibitionism, 
voyeurism, gender identity disorders not resulting from physical 
impairments, or other sexual behavior disorders;
    (ii) Compulsive gambling, kleptomania, or pyromania; or
    (iii) Psychoactive substance use disorders resulting from current 
illegal use of drugs.
    (2) The term ``individual with a disability'' also does not include 
an individual who is currently engaging in the illegal use of drugs, 
when a recipient acts on the basis of such use. This limitation does 
not exclude as an individual with a disability an individual who:
    (i) Has successfully completed a supervised drug rehabilitation 
program and is no longer engaging in the illegal use of drugs, or has 
otherwise been rehabilitated successfully and is no longer engaging in 
such use;
    (ii) Is participating in a supervised rehabilitation program and is 
no longer engaging in such use; or
    (iii) Is erroneously regarded as engaging in such use, but is not 
engaging in such use, except that it is not a violation of the 
nondiscrimination and equal opportunity provisions of WIOA or this part 
for a recipient to adopt or administer reasonable policies or 
procedures, including but not limited to drug testing, designed to 
ensure that an individual described in paragraph (1)(i) or (ii) of this 
definition is no longer engaging in the illegal use of drugs.
    (2) With regard to employment, the term ``individual with a 
disability'' does not include any individual who:
    (i) Is an alcoholic:
    (A) Whose current use of alcohol prevents such individual from 
performing the duties of the job in question; or
    (B) Whose employment, by reason of such current alcohol abuse, 
would constitute a direct threat to property or the safety of others; 
or
    (ii) Has a currently contagious disease or infection, if:
    (A) That disease or infection prevents him or her from performing 
the duties of the job in question; or
    (B) His or her employment, because of that disease or infection, 
would constitute a direct threat to the health and safety of others.
    Labor market area means an economically integrated geographic area 
within which individuals can reside and find employment within a 
reasonable distance or can readily change employment without changing 
their place of residence. Such an area must be identified in accordance 
with either criteria used by the Bureau of Labor Statistics of the 
Department of Labor in defining such areas, or similar criteria 
established by a Governor.
    LWIOA (Local Workforce Investment Area) grant recipient means the 
entity that receives WIOA Title I financial assistance for a Local 
Workforce Investment Area directly from the Governor and disburses 
those funds for Workforce Innovation and Opportunity Act activities.
    Methods of Administration means the written document and supporting 
documentation developed under Sec.  38.54.
    National Programs means:
    (1) Job Corps; and
    (2) Programs receiving Federal funds under Title I, Subtitle D of 
WIOA directly from the Department. Such programs include, but are not 
limited to, the Migrant and Seasonal Workers Programs, Native American 
Programs, and Veterans' Workforce Investment programs.
    Noncompliance means a failure of a grant applicant or recipient to 
comply with any of the applicable requirements of the nondiscrimination 
and equal opportunity provisions of WIOA or this part.
    On-the-Job Training (OJT) means training by an employer that is 
provided to a paid participant while the participant is engaged in 
productive work that:
    (1) Provides knowledge or skills essential to the full and adequate 
performance of the job;
    (2) Provides reimbursement to the employer of up to 50 percent of 
the wage rate of the participant, for the extraordinary costs of 
providing the training and additional supervision related to the 
training; and
    (3) Is limited in duration as appropriate to the occupation for 
which the participant is being trained, taking into account the content 
of the training, the prior work experience of the participant, and the 
service strategy of the participant, as appropriate.
    Participant means an individual who has been determined to be 
eligible to participate in, and who is receiving aid, benefits, 
services or training under, a program or activity funded in whole or in 
part under Title I of WIOA. ``Participant'' includes, but is not 
limited to, applicants receiving any service(s) under state Employment 
Service programs, and claimants receiving any service(s) under state 
Unemployment Insurance programs.
    Participation is considered to commence on the first day, following 
determination of eligibility, on which the participant began receiving 
subsidized aid, benefits, services, or training provided under Title I 
of WIOA.
    Parties to a hearing means the Department and the grant 
applicant(s), recipient(s), or Governor.
    Population eligible to be served means the total population of 
adults and eligible youth who reside within the labor market area that 
is served by a particular recipient, and who are eligible to seek WIOA 
Title I-financially assisted aid, benefits, services or training from 
that recipient. See the definition of ``labor market area'' in this 
section.
    Program or activity. See ``WIOA Title I-financially assisted 
program or activity'' in this section.
    Prohibited ground means any basis upon which it is illegal to 
discriminate under the nondiscrimination and equal opportunity 
provisions of WIOA or this part, i.e., race, color, religion, sex, 
national origin, age, disability, political affiliation or belief, and, 
for beneficiaries only, citizenship or participation in a WIOA Title I-
financially assisted program or activity.
    Public entity means:
    (1) Any State or local government; and

[[Page 43882]]

    (2) Any department, agency, special purpose district, workforce 
investment board, or other instrumentality of a State or States or 
local government.
    Qualified individual with a disability means:
    (1) With respect to employment, an individual with a disability 
who, with or without reasonable accommodation, is capable of performing 
the essential functions of the job in question;
    (2) With respect to aid, benefits, services, or training, an 
individual with a disability who, with or without reasonable 
accommodation and/or reasonable modification, meets the essential 
eligibility requirements for the receipt of such aid, benefits, 
services, or training.
    Qualified interpreter means an interpreter who is able to interpret 
effectively, accurately, and impartially, either for individuals with 
disabilities or for individuals with limited English skills. The 
interpreter must be able to interpret both receptively and 
expressively, using any necessary specialized vocabulary.
    Reasonable accommodation. (1) The term ``reasonable accommodation'' 
means:
    (i) Modifications or adjustments to an application/registration 
process that enables a qualified applicant/registrant with a disability 
to be considered for the aid, benefits, services, training, or 
employment that the qualified applicant/registrant desires; or
    (ii) Modifications or adjustments that enable a qualified 
individual with a disability to perform the essential functions of a 
job, or to receive aid, benefits, services, or training equal to that 
provided to qualified individuals without disabilities. These 
modifications or adjustments may be made to:
    (A) The environment where work is performed or aid, benefits, 
services, or training are given; or
    (B) The customary manner in which, or circumstances under which, a 
job is performed or aid, benefits, services, or training are given; or
    (iii) Modifications or adjustments that enable a qualified 
individual with a disability to enjoy the same benefits and privileges 
of the aid, benefits, services, training, or employment as are enjoyed 
by other similarly situated individuals without disabilities.
    (2) Reasonable accommodation includes, but is not limited to:
    (i) Making existing facilities used by applicants, registrants, 
eligible applicants/registrants, participants, applicants for 
employment, and employees readily accessible to and usable by 
individuals with disabilities; and
    (ii) Restructuring of a job or a service, or of the way in which 
aid, benefits, or training is/are provided; part-time or modified work 
or training schedules; acquisition or modification of equipment or 
devices; appropriate adjustment or modifications of examinations, 
training materials, or policies; the provision of readers or 
interpreters; and other similar accommodations for individuals with 
disabilities.
    (3) To determine the appropriate reasonable accommodation, it may 
be necessary for the recipient to initiate an informal, interactive 
process with the qualified individual with a disability in need of the 
accommodation. This process should identify the precise limitations 
resulting from the disability and potential reasonable accommodations 
that could overcome those limitations.
    Recipient. The term ``recipient'' means:
    (1) Any entity to which financial assistance under WIOA Title I is 
extended, either directly from the Department or through the Governor 
or another recipient (including any successor, assignee, or transferee 
of a recipient), but excluding the ultimate beneficiaries of the WIOA 
Title I-funded program or activity. In instances in which a Governor 
operates a program or activity, either directly or through a State 
agency, using discretionary funds apportioned to him or her under WIOA 
Title I (rather than disbursing the funds to another recipient), the 
Governor is also a recipient. ``Recipient'' includes, but is not 
limited to:
    (i) State-level agencies that administer, or are financed in whole 
or in part with, WIOA Title I funds;
    (ii) State Employment Security Agencies;
    (iii) State and local Workforce Investment Boards;
    (iv) LWIOA grant recipients;
    (v) One-Stop operators;
    (vi) Service providers, including eligible training providers;
    (vii) On-the-Job Training (OJT) employers;
    (viii) Job Corps contractors and center operators, excluding the 
operators of federally-operated Job Corps centers;
    (ix) Job Corps national training contractors;
    (x) Outreach and admissions agencies, including Job Corps 
contractors that perform these functions;
    (xi) Placement agencies, including Job Corps contractors that 
perform these functions; and
    (xii) Other National Program recipients.
    (2) In addition, for purposes of this part, One-Stop partners, as 
defined in section 121(b) of WIOA, are treated as ``recipients,'' and 
are subject to the nondiscrimination and equal opportunity requirements 
of this part, to the extent that they participate in the One-Stop 
delivery system.
    Registrant means the same as ``applicant'' for purposes of this 
part. See also the definitions of ``application for benefits,'' 
``eligible applicant/registrant,'' ``participant,'' ``participation,'' 
and ``recipient'' in this section.
    Respondent means a grant applicant or recipient (including a 
Governor) against which a complaint has been filed under the 
nondiscrimination and equal opportunity provisions of WIOA or this 
part.
    Secretary means the Secretary of Labor, U.S. Department of Labor, 
or his or her designee.
    Sectarian activities means religious worship or ceremony, or 
sectarian instruction.
    Section 504 means Section 504 of the Rehabilitation Act of 1973, 29 
U.S.C. 794, as amended, which forbids discrimination against qualified 
individuals with disabilities in federally-financed and conducted 
programs and activities.
    Service provider means:
    (1) Any operator of, or provider of aid, benefits, services, or 
training to:
    (i) Any WIOA Title I--funded program or activity that receives 
financial assistance from or through any State or LWIOA grant 
recipient; or
    (ii) Any participant through that participant's Individual Training 
Account (ITA); or
    (2) Any entity that is selected and/or certified as an eligible 
provider of training services to participants.
    Small recipient means a recipient who:
    (1) Serves a total of fewer than 15 beneficiaries during the entire 
grant year; and
    (2) Employs fewer than 15 employees on any given day during the 
grant year.
    Solicitor means the Solicitor of Labor, U.S. Department of Labor, 
or his or her designee.
    State means the individual states of the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, the Virgin 
Islands, American Samoa, Guam, Wake Island, the Commonwealth of the 
Northern Mariana Islands, the Federated States of Micronesia, the 
Republic of the Marshall Islands, and Palau.
    State Employment Security Agency (SESA) means the State agency 
that, under the State Administrator, contains

[[Page 43883]]

both State agencies with responsibility for administering programs 
authorized under the Wagner-Peyser Act, and unemployment insurance 
programs authorized under Title III of the Social Security Act.
    State programs. The term ``State programs'' means:
    (1) Programs financially assisted in whole or in part under Title I 
of WIOA in which either:
    (i) The Governor and/or State receives and disburses the grant to 
or through LWIOA grant recipients; or
    (ii) The Governor retains the grant funds and operates the 
programs, either directly or through a State agency.
    (2) ``State programs'' also includes State Employment Security 
Agencies, State Employment Service agencies, and/or State unemployment 
compensation agencies.
    Supportive services means services, such as transportation, child 
care, dependent care, housing, and needs-related payments, that are 
necessary to enable an individual to participate in WIOA Title I-
financially assisted programs and activities, as consistent with the 
provisions of WIOA.
    Terminee means a participant whose participation in the program 
terminates, voluntarily or involuntarily, during the applicable program 
year.
    Title VI means Title VI of the Civil Rights Act of 1964, 42 U.S.C. 
2000d, et seq., as amended, which forbids recipients of Federal 
financial assistance from discriminating on the basis of race, color, 
or national origin.
    Transferee means a person or entity to whom real or personal 
property, or an interest in such property, is transferred.
    Ultimate beneficiary See the definition of ``beneficiary'' in this 
section.
    Undue hardship This term has different meanings, depending upon 
whether it is used with regard to reasonable accommodation of 
individuals with disabilities, or with regard to religious 
accommodation.
    (1) Reasonable accommodation of individuals with disabilities. (i) 
In general, ``undue hardship'' means significant difficulty or expense 
incurred by a recipient, when considered in light of the factors set 
forth in paragraph (ii) of this definition.
    (ii) Factors to be considered in determining whether an 
accommodation would impose an undue hardship on a recipient include:
    (A) The nature and net cost of the accommodation needed, taking 
into consideration the availability of tax credits and deductions, and/
or outside funding, for the accommodation;
    (B) The overall financial resources of the facility or facilities 
involved in the provision of the reasonable accommodation, including:
    (1) The number of persons aided, benefited, served, or trained by, 
or employed at, the facility or facilities, and
    (2) The effect the accommodation would have on the expenses and 
resources of the facility or facilities;
    (C) The overall financial resources of the recipient, including:
    (1) The overall size of the recipient;
    (2) The number of persons aided, benefited, served, trained, or 
employed by the recipient; and
    (3) The number, type and location of the recipient's facilities;
    (D) The type of operation or operations of the recipient, 
including:
    (1) The geographic separateness and administrative or fiscal 
relationship of the facility or facilities in question to the 
recipient; and
    (2) Where the individual is seeking an employment-related 
accommodation, the composition, structure and functions of the 
recipient's workforce; and
    (E) The impact of the accommodation upon the operation of the 
facility or facilities, including:
    (1) The impact on the ability of other participants to receive aid, 
benefits, services, or training, or of other employees to perform their 
duties; and
    (2) The impact on the facility's ability to carry out its mission.
    (2) Religious accommodation. For purposes of religious 
accommodation only, ``undue hardship'' means any additional, unusual 
costs, other than de minimis costs, that a particular accommodation 
would impose upon a recipient. See Trans World Airlines, Inc. v. 
Hardison, 432 U.S. 63, 81, 84 (1977).
    WIOA means the Workforce Innovation and Opportunity Act, Public Law 
113-128.
    WIOA Title I financial assistance See the definition of ``Federal 
financial assistance under Title I of WIOA'' in this section.
    WIOA Title I-funded program or activity means:
    (1) A program or activity, operated by a recipient and funded, in 
whole or in part, under Title I of WIOA, that provides either:
    (i) Any aid, benefits, services, or training to individuals; or
    (ii) Facilities for furnishing any aid, benefits, services, or 
training to individuals;
    (2) Aid, benefits, services, or training provided in facilities 
that are being or were constructed with the aid of Federal financial 
assistance under WIOA Title I; or
    (3) Aid, benefits, services, or training provided with the aid of 
any non-WIOA Title I funds, property, or other resources that are 
required to be expended or made available in order for the program to 
meet matching requirements or other conditions which must be met in 
order to receive the WIOA Title I financial assistance. See the 
definition of ``aid, benefits, services, or training'' in this section.


Sec.  38.5  What forms of discrimination are prohibited by this part?

    No individual in the United States may, on the ground of race, 
color, religion, sex, national origin, age, disability, political 
affiliation or belief, and for beneficiaries only, citizenship or 
participation in any WIOA Title I--financially assisted program or 
activity, be excluded from participation in, denied the benefits of, 
subjected to discrimination under, or denied employment in the 
administration of or in connection with any WIOA Title I--funded 
program or activity.


Sec.  38.6  What specific discriminatory actions, based on prohibited 
grounds other than disability, are prohibited by this part, and what 
limitations are there related to religious activities?

    (a) For the purposes of this section, ``prohibited ground'' means 
race, color, religion, sex, national origin, age, political affiliation 
or belief, and for beneficiaries only, citizenship or participation in 
any WIOA Title I--financially assisted program or activity.
    (b) A recipient must not, directly or through contractual, 
licensing, or other arrangements, on a prohibited ground:
    (1) Deny an individual any aid, benefits, services, or training 
provided under a WIOA Title I--funded program or activity;
    (2) Provide to an individual any aid, benefits, services, or 
training that is different, or is provided in a different manner, from 
that provided to others under a WIOA Title I--funded program or 
activity;
    (3) Subject an individual to segregation or separate treatment in 
any matter related to his or her receipt of any aid, benefits, 
services, or training under a WIOA Title I--funded program or activity;
    (4) Restrict an individual in any way in the enjoyment of any 
advantage or privilege enjoyed by others receiving any aid, benefits, 
services, or training under a WIOA Title I--funded program or activity;
    (5) Treat an individual differently from others in determining 
whether he or she satisfies any admission, enrollment, eligibility, 
membership, or other requirement or condition for any

[[Page 43884]]

aid, benefits, services, or training provided under a WIOA Title I--
funded program or activity;
    (6) Deny or limit an individual with respect to any opportunity to 
participate in a WIOA Title I--funded program or activity, or afford 
him or her an opportunity to do so that is different from the 
opportunity afforded others under a WIOA Title I--funded program or 
activity;
    (7) Deny an individual the opportunity to participate as a member 
of a planning or advisory body that is an integral part of the WIOA 
Title I--funded program or activity; or
    (8) Otherwise limit on a prohibited ground an individual in 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving any WIOA Title I--financially assisted aid, benefits, 
services, or training.
    (c) A recipient must not, directly or through contractual, 
licensing, or other arrangements:
    (1) Aid or perpetuate discrimination by providing significant 
assistance to an agency, organization, or person that discriminates on 
a prohibited ground in providing any aid, benefits, services, or 
training to registrants, applicants or participants in a WIOA Title I--
funded program or activity; or
    (2) Refuse to accommodate an individual's religious practices or 
beliefs, unless to do so would result in undue hardship, as defined in 
Sec.  38.4.
    (d)(1) In making any of the determinations listed in paragraph 
(d)(2) of this section, either directly or through contractual, 
licensing, or other arrangements, a recipient must not use standards, 
procedures, criteria, or administrative methods that have any of the 
following purposes or effects:
    (i) Subjecting individuals to discrimination on a prohibited 
ground; or
    (ii) Defeating or substantially impairing, on a prohibited ground, 
accomplishment of the objectives of either:
    (A) The WIOA Title I--funded program or activity; or
    (B) the nondiscrimination and equal opportunity provisions of WIOA 
or this part.
    (2) The determinations to which this paragraph (d) applies include, 
but are not limited to:
    (i) The types of aid, benefits, services, training, or facilities 
that will be provided under any WIOA Title I--funded program or 
activity;
    (ii) The class of individuals to whom such aid, benefits, services, 
training, or facilities will be provided; or
    (iii) The situations in which such aid, benefits, services, 
training, or facilities will be provided.
    (3) Paragraph (d) of this section applies to the administration of 
WIOA Title I--funded programs or activities providing aid, benefits, 
services, training, or facilities in any manner, including, but not 
limited to:
    (i) Outreach and recruitment;
    (ii) Registration;
    (iii) Counseling and guidance;
    (iv) Testing;
    (v) Selection, placement, appointment, and referral;
    (vi) Training; and
    (vii) Promotion and retention.
    (4) A recipient must not take any of the prohibited actions listed 
in paragraph (d) of this section either directly or through 
contractual, licensing, or other arrangements.
    (e) In determining the site or location of facilities, a grant 
applicant or recipient must not make selections that have any of the 
following purposes or effects:
    (1) On a prohibited ground:
    (i) Excluding individuals from a WIOA Title I--financially assisted 
program or activity;
    (ii) Denying them the benefits of such a program or activity; or
    (iii) Subjecting them to discrimination; or
    (2) Defeating or substantially impairing the accomplishment of the 
objectives of either:
    (i) The WIOA Title I--financially assisted program or activity; or
    (ii) The nondiscrimination and equal opportunity provisions of WIOA 
or this part.
    (f)(1) 29 CFR part 2, subpart D, governs the circumstances under 
which DOL support, including WIOA Title I financial assistance, may be 
used to employ or train participants in religious activities. Under 
that subpart, such assistance may be used for such employment or 
training only when the assistance is provided indirectly within the 
meaning of the Establishment Clause of the U.S. Constitution, and not 
when the assistance is provided directly. As explained in that subpart, 
assistance provided through an Individual Training Account is generally 
considered indirect, and other mechanisms may also be considered 
indirect. See also 20 CFR 667.266 and 667.275. 29 CFR part 2, subpart 
D, also contains requirements related to equal treatment of religious 
organizations in Department of Labor programs, and to protection of 
religious liberty for Department of Labor social service providers and 
beneficiaries.
    (2) Except under the circumstances described in paragraph (f)(3) of 
this section, a recipient must not employ participants to carry out the 
construction, operation, or maintenance of any part of any facility 
that is used, or to be used, for religious instruction or as a place 
for religious worship.
    (3) A recipient may employ participants to carry out the 
maintenance of a facility that is not primarily or inherently devoted 
to religious instruction or religious worship if the organization 
operating the facility is part of a program or activity providing 
services to participants.
    (g) The exclusion of an individual from programs or activities 
limited by Federal statute or Executive Order to a certain class or 
classes of individuals of which the individual in question is not a 
member is not prohibited by this part.


Sec.  38.7  What specific discriminatory actions based on disability 
are prohibited by this part?

    (a) In providing any aid, benefits, services, or training under a 
WIOA Title I--financially assisted program or activity, a recipient 
must not, directly or through contractual, licensing, or other 
arrangements, on the ground of disability:
    (1) Deny a qualified individual with a disability the opportunity 
to participate in or benefit from the aid, benefits, services, or 
training;
    (2) Afford a qualified individual with a disability an opportunity 
to participate in or benefit from the aid, benefits, services, or 
training that is not equal to that afforded others;
    (3) Provide a qualified individual with a disability with an aid, 
benefit, service or training that is not as effective in affording 
equal opportunity to obtain the same result, to gain the same benefit, 
or to reach the same level of achievement as that provided to others;
    (4) Provide different, segregated, or separate aid, benefits, 
services, or training to individuals with disabilities, or to any class 
of individuals with disabilities, unless such action is necessary to 
provide qualified individuals with disabilities with aid, benefits, 
services or training that are as effective as those provided to others;
    (5) Deny a qualified individual with a disability the opportunity 
to participate as a member of planning or advisory boards; or
    (6) Otherwise limit a qualified individual with a disability in 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving any aid, benefit, service or training.
    (b) A recipient must not, directly or through contractual, 
licensing, or other

[[Page 43885]]

arrangements, aid or perpetuate discrimination against qualified 
individuals with disabilities by providing significant assistance to an 
agency, organization, or person that discriminates on the basis of 
disability in providing any aid, benefits, services or training to 
registrants, applicants, or participants.
    (c) A recipient must not deny a qualified individual with a 
disability the opportunity to participate in WIOA Title I--financially 
assisted programs or activities despite the existence of permissibly 
separate or different programs or activities.
    (d) A recipient must administer WIOA Title I--financially assisted 
programs and activities in the most integrated setting appropriate to 
the needs of qualified individuals with disabilities.
    (e) A recipient must not, directly or through contractual, 
licensing, or other arrangements, use standards, procedures, criteria, 
or administrative methods:
    (1) That have the purpose or effect of subjecting qualified 
individuals with disabilities to discrimination on the ground of 
disability;
    (2) That have the purpose or effect of defeating or substantially 
impairing accomplishment of the objectives of the WIOA Title I--
financially assisted program or activity with respect to individuals 
with disabilities; or
    (3) That perpetuate the discrimination of another entity if both 
entities are subject to common administrative control or are agencies 
of the same state.
    (f) In determining the site or location of facilities, a grant 
applicant or recipient must not make selections that have any of the 
following purposes or effects:
    (1) On the basis of disability:
    (i) Excluding qualified individuals from a WIOA Title I-financially 
assisted program or activity;
    (ii) Denying them the benefits of such a program or activity; or
    (iii) Subjecting them to discrimination; or
    (2) Defeating or substantially impairing the accomplishment of the 
disability-related objectives of either:
    (i) The WIOA Title I-financially assisted program or activity; or
    (ii) The nondiscrimination and equal opportunity provisions of WIOA 
or this part.
    (g) A recipient, in the selection of contractors, must not use 
criteria that subject qualified individuals with disabilities to 
discrimination on the basis of disability.
    (h) A recipient must not administer a licensing or certification 
program in a manner that subjects qualified individuals with 
disabilities to discrimination on the basis of disability, nor may a 
recipient establish requirements for the programs or activities of 
licensees or certified entities that subject qualified individuals with 
disabilities to discrimination on the basis of disability. The programs 
or activities of entities that are licensed or certified by a recipient 
are not, themselves, covered by this part.
    (i) A recipient must not impose or apply eligibility criteria that 
screen out or tend to screen out an individual with a disability or any 
class of individuals with disabilities from fully and equally enjoying 
any aid, benefit, service, training, program, or activity, unless such 
criteria can be shown to be necessary for the provision of the aid, 
benefit, service, training, program, or activity being offered.
    (j) Nothing in this part prohibits a recipient from providing aid, 
benefits, services, training, or advantages to individuals with 
disabilities, or to a particular class of individuals with 
disabilities, beyond those required by this part.
    (k) A recipient must not place a surcharge on a particular 
individual with a disability, or any group of individuals with 
disabilities, to cover the costs of measures, such as the provision of 
auxiliary aids or program accessibility, that are required to provide 
that individual or group with the nondiscriminatory treatment required 
by WIOA Title I or this part.
    (l) A recipient must not exclude, or otherwise deny equal aid, 
benefits, services, training, programs, or activities to, an individual 
or entity because of the known disability of an individual with whom 
the individual or entity is known to have a relationship or 
association.
    (m) The exclusion of an individual without a disability from the 
benefits of a program limited by Federal statute or Executive Order to 
individuals with disabilities, or the exclusion of a specific class of 
individuals with disabilities from a program limited by Federal statute 
or Executive Order to a different class of individuals with 
disabilities, is not prohibited by this part.
    (n) This part does not require a recipient to provide any of the 
following to individuals with disabilities:
    (1) Personal devices, such as wheelchairs;
    (2) Individually prescribed devices, such as prescription 
eyeglasses or hearing aids;
    (3) Readers for personal use or study; or
    (4) Services of a personal nature, including assistance in eating, 
toileting, or dressing.
    (o)(1) Nothing in this part requires an individual with a 
disability to accept an accommodation, aid, benefit, service, training, 
or opportunity provided under WIOA Title I or this part that such 
individual chooses not to accept.
    (2) Nothing in this part authorizes the representative or guardian 
of an individual with a disability to decline food, water, medical 
treatment, or medical services for that individual.


Sec.  38.8  What are a recipient's responsibilities regarding 
reasonable accommodation and reasonable modification for individuals 
with disabilities?

    (a) With regard to aid, benefits, services, training, and 
employment, a recipient must provide reasonable accommodation to 
qualified individuals with disabilities who are applicants, 
registrants, eligible applicants/registrants, participants, employees, 
or applicants for employment, unless providing the accommodation would 
cause undue hardship. See the definitions of ``reasonable 
accommodation'' and ``undue hardship'' in Sec.  38.4.
    (1) In those circumstances where a recipient believes that the 
proposed accommodation would cause undue hardship, the recipient has 
the burden of proving that the accommodation would result in such 
hardship.
    (2) The recipient must make the decision that the accommodation 
would cause such hardship only after considering all factors listed in 
the definition of ``undue hardship'' in Sec.  38.4. The decision must 
be accompanied by a written statement of the recipient's reasons for 
reaching that conclusion. The recipient must provide a copy of the 
statement of reasons to the individual or individuals who requested the 
accommodation.
    (3) If a requested accommodation would result in undue hardship, 
the recipient must take any other action that would not result in such 
hardship, but would nevertheless ensure that, to the maximum extent 
possible, individuals with disabilities receive the aid, benefits, 
services, training, or employment provided by the recipient.
    (b) A recipient must also make reasonable modifications in 
policies, practices, or procedures when the modifications are necessary 
to avoid discrimination on the basis of disability, unless making the 
modifications would fundamentally alter the nature of the service, 
program, or activity. See the

[[Page 43886]]

definition of ``fundamental alteration'' in Sec.  38.4.
    (1) In those circumstances where a recipient believes that the 
proposed modification would fundamentally alter the program, activity, 
or service, the recipient has the burden of proving that the 
modification would result in such an alteration.
    (2) The recipient must make the decision that the modification 
would result in such an alteration only after considering all factors 
listed in the definition of ``fundamental alteration'' in Sec.  38.4. 
The decision must be accompanied by a written statement of the 
recipient's reasons for reaching that conclusion. The recipient must 
provide a copy of the statement of reasons to the individual or 
individuals who requested the modification.
    (3) If a modification would result in a fundamental alteration, the 
recipient must take any other action that would not result in such an 
alteration, but would nevertheless ensure that, to the maximum extent 
possible, individuals with disabilities receive the aid, benefits, 
services, training, or employment provided by the recipient.


Sec.  38.9  What are a recipient's responsibilities to communicate with 
individuals with disabilities?

    (a) Recipients must take appropriate steps to ensure that 
communications with beneficiaries, registrants, applicants, eligible 
applicants/registrants, participants, applicants for employment, 
employees, and members of the public who are individuals with 
disabilities, are as effective as communications with others.
    (b) A recipient must furnish appropriate auxiliary aids or services 
where necessary to afford individuals with disabilities an equal 
opportunity to participate in, and enjoy the benefits of, the WIOA 
Title I--financially assisted program or activity. In determining what 
type of auxiliary aid or service is appropriate and necessary, such 
recipient must give primary consideration to the requests of the 
individual with a disability.
    (c) Where a recipient communicates by telephone with beneficiaries, 
registrants, applicants, eligible applicants/registrants, participants, 
applicants for employment, and/or employees, the recipient must use 
telecommunications devices for individuals with hearing impairments 
(TDDs/TTYs), or equally effective communications systems, such as 
telephone relay services.
    (d) A recipient must ensure that interested individuals, including 
individuals with visual or hearing impairments, can obtain information 
as to the existence and location of accessible services, activities, 
and facilities.
    (e)(1) A recipient must provide signage at a primary entrance to 
each of its inaccessible facilities, directing users to a location at 
which they can obtain information about accessible facilities. The 
signage provided must meet the most current standards prescribed by the 
General Services Administration under the Architectural Barriers Act at 
41 CFR 102-76.65. Alternative standards for the signage may be adopted 
when it is clearly evident that such alternative standards provide 
equivalent or greater access to the information.
    (2) The international symbol for accessibility must be used at each 
primary entrance of an accessible facility.
    (f) This section does not require a recipient to take any action 
that it can demonstrate would result in a fundamental alteration in the 
nature of a service, program, or activity.
    (1) In those circumstances where a recipient believes that the 
proposed action would fundamentally alter the WIOA Title I--financially 
assisted program, activity, or service, the recipient has the burden of 
proving that compliance with this section would result in such an 
alteration.
    (2) The decision that compliance would result in such an alteration 
must be made by the recipient after considering all resources available 
for use in the funding and operation of the WIOA Title I--financially 
assisted program, activity, or service, and must be accompanied by a 
written statement of the reasons for reaching that conclusion.
    (3) If an action required to comply with this section would result 
in the fundamental alteration described in paragraph (f)(1) of this 
section, the recipient must take any other action that would not result 
in such an alteration, but would nevertheless ensure that, to the 
maximum extent possible, individuals with disabilities receive the 
benefits or services provided by the recipient.


Sec.  38.10  To what extent are employment practices covered by this 
part?

    (a) Discrimination on the ground of race, color, religion, sex, 
national origin, age, disability, or political affiliation or belief is 
prohibited in employment practices in the administration of, or in 
connection with:
    (1) Any WIOA Title I--financially assisted program or activity; and
    (2) Any program or activity that is part of the One-Stop delivery 
system and is operated by a One-Stop partner listed in Section 121(b) 
of WIOA, to the extent that the program or activity is being conducted 
as part of the One-Stop delivery system.
    (b) Employee selection procedures. In implementing this section, a 
recipient must comply with the Uniform Guidelines on Employee Selection 
Procedures, 41 CFR part 60-3.
    (c) Standards for employment-related investigations and reviews. In 
any investigation or compliance review, the Director must consider 
Equal Employment Opportunity Commission (EEOC) regulations, guidance 
and appropriate case law in determining whether a recipient has engaged 
in an unlawful employment practice.
    (d) As provided in Sec.  38.3(b), 29 CFR part 32, subparts B and C 
and appendix A, which implement the requirements of Section 504 
pertaining to employment practices and employment-related training, 
program accessibility, and reasonable accommodation, have been 
incorporated into this part by reference. Therefore, recipients must 
comply with the requirements set forth in those regulatory sections as 
well as the requirements listed in this part.
    (e) Recipients that are also employers, employment agencies, or 
other entities covered by Titles I and II of the ADA should be aware of 
obligations imposed by those titles. See 29 CFR part 1630 and 28 CFR 
part 35.
    (f) Similarly, recipients that are also employers covered by the 
anti-discrimination provision of the Immigration and Nationality Act 
should be aware of the obligations imposed by that provision. See 8 
U.S.C. 1324b, as amended.
    (g) This rule does not preempt consistent State and local 
requirements.


Sec.  38.11  To what extent are intimidation and retaliation prohibited 
by this part?

    (a) A recipient must not discharge, intimidate, retaliate, 
threaten, coerce or discriminate against any individual because the 
individual has:
    (1) Filed a complaint alleging a violation of Section 188 of WIOA 
or this part;
    (2) Opposed a practice prohibited by the nondiscrimination and 
equal opportunity provisions of WIOA or this part;
    (3) Furnished information to, or assisted or participated in any 
manner in, an investigation, review, hearing, or any other activity 
related to any of the following:
    (i) Administration of the nondiscrimination and equal

[[Page 43887]]

opportunity provisions of WIOA or this part;
    (ii) Exercise of authority under those provisions; or
    (iii) Exercise of privilege secured by those provisions; or
    (4) Otherwise exercised any rights and privileges under the 
nondiscrimination and equal opportunity provisions of WIOA or this 
part.
    (b) The sanctions and penalties contained in Section 188(b) of WIOA 
or this part may be imposed against any recipient that engages in any 
such retaliation or intimidation, or fails to take appropriate steps to 
prevent such activity.


Sec.  38.12  What Department of Labor office is responsible for 
administering this part?

    The Civil Rights Center (CRC), in the Office of the Assistant 
Secretary for Administration and Management, is responsible for 
administering and enforcing the nondiscrimination and equal opportunity 
provisions of WIOA and this part, and for developing and issuing 
policies, standards, guidance, and procedures for effecting compliance.


Sec.  38.13  Who is responsible for providing interpretations of this 
part?

    The Director will make any rulings under, or interpretations of, 
the nondiscrimination and equal opportunity provisions of WIOA or this 
part.


Sec.  38.14  Under what circumstances may the Secretary delegate the 
responsibilities of this part?

    (a) The Secretary may from time to time assign to officials of 
other departments or agencies of the Government (with the consent of 
such department or agency) responsibilities in connection with the 
effectuation of the nondiscrimination and equal opportunity provisions 
of WIOA and this part (other than responsibility for final decisions 
under Sec.  38.112), including the achievement of effective 
coordination and maximum uniformity within the Department and within 
the executive branch of the Government in the application of the 
nondiscrimination and equal opportunity provisions of WIOA or this part 
to similar programs and similar situations.
    (b) Any action taken, determination made, or requirement imposed by 
an official of another department or agency acting under an assignment 
of responsibility under this section has the same effect as if the 
action had been taken by the Director.


Sec.  38.15  What are the Director's responsibilities to coordinate 
with other civil rights agencies?

    (a) Whenever a compliance review or complaint investigation under 
this part reveals possible violation of one or more of the laws listed 
in paragraph (b) of this section, or of any other Federal civil rights 
law, that is not also a violation of the nondiscrimination and equal 
opportunity provisions of WIOA or this part, the Director must attempt 
to notify the appropriate agency and provide it with all relevant 
documents and information.
    (b) This section applies to the following:
    (1) Executive Order 11246, as amended;
    (2) Section 503 of the Rehabilitation Act of 1973, as amended (29 
U.S.C. 793);
    (3) The affirmative action provisions of the Vietnam Era Veterans' 
Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212);
    (4) The Equal Pay Act of 1963, as amended (29 U.S.C. 206d);
    (5) Title VII of the Civil Rights Act of 1964, as amended (42 
U.S.C. 2000e et seq.);
    (6) The Age Discrimination in Employment Act of 1967, as amended 
(29 U.S.C. 621);
    (7) The Americans with Disabilities Act of 1990, as amended (42 
U.S.C. 12101 et seq.);
    (8) The anti-discrimination provision of the Immigration and 
Nationality Act, as amended (8 U.S.C. 1324b); and
    (9) Any other Federal civil rights law.


Sec.  38.16  What is this part's effect on a recipient's obligations 
under other laws, and what limitations apply?

    (a) Effect of State or local law or other requirements. The 
obligation to comply with the nondiscrimination and equal opportunity 
provisions of WIOA or this part are not excused or reduced by any State 
or local law or other requirement that, on a prohibited ground, 
prohibits or limits an individual's eligibility to receive aid, 
benefits, services, or training; to participate in any WIOA Title I--
financially assisted program or activity; to be employed by any 
recipient; or to practice any occupation or profession.
    (b) Effect of private organization rules. The obligation to comply 
with the nondiscrimination and equal opportunity provisions of WIOA and 
this part is not excused or reduced by any rule or regulation of any 
private organization, club, league or association that, on a prohibited 
ground, prohibits or limits an individual's eligibility to participate 
in any WIOA Title I--financially assisted program or activity to which 
this part applies.
    (c) Effect of possible future exclusion from employment 
opportunities. A recipient must not exclude any individual from, or 
restrict any individual's participation in, any program or activity 
based on the recipient's belief or concern that the individual will 
encounter limited future employment opportunities because of his or her 
race, color, religion, sex, national origin, age, disability, political 
affiliation or belief, or citizenship.

Subpart B--Recordkeeping and Other Affirmative Obligations of 
Recipients

Assurances


Sec.  38.20  What is a grant applicant's obligation to provide a 
written assurance?

    (a)(1) Each application for financial assistance under Title I of 
WIOA, as defined in Sec.  38.4, must include the following assurance:

    As a condition to the award of financial assistance from the 
Department of Labor under Title I of WIOA, the grant applicant 
assures that it will comply fully with the nondiscrimination and 
equal opportunity provisions of the following laws:
    Section 188 of the Workforce Innovation and Opportunity Act 
(WIOA), which prohibits discrimination against all individuals in 
the United States on the basis of race, color, religion, sex, 
national origin, age, disability, political affiliation or belief, 
and against beneficiaries on the basis of either citizenship/status 
as a lawfully admitted immigrant authorized to work in the United 
States or participation in any WIOA Title I--financially assisted 
program or activity;
    Title VI of the Civil Rights Act of 1964, as amended, which 
prohibits discrimination on the bases of race, color and national 
origin;
    Section 504 of the Rehabilitation Act of 1973, as amended, which 
prohibits discrimination against qualified individuals with 
disabilities;
    The Age Discrimination Act of 1975, as amended, which prohibits 
discrimination on the basis of age; and
    Title IX of the Education Amendments of 1972, as amended, which 
prohibits discrimination on the basis of sex in educational 
programs.
    The grant applicant also assures that it will comply with 29 CFR 
part 38 and all other regulations implementing the laws listed 
above. This assurance applies to the grant applicant's operation of 
the WIOA Title I-financially assisted program or activity, and to 
all agreements the grant applicant makes to carry out the WIOA Title 
I--financially assisted program or activity. The grant applicant 
understands that the United States has the right to seek judicial 
enforcement of this assurance.

    (2) The assurance is considered incorporated by operation of law in 
the grant, cooperative agreement, contract

[[Page 43888]]

or other arrangement whereby Federal financial assistance under Title I 
of the WIOA is made available, whether or not it is physically 
incorporated in such document and whether or not there is a written 
agreement between the Department and the recipient, between the 
Department and the Governor, between the Governor and the recipient, or 
between recipients. The assurance also may be incorporated by reference 
in such grants, cooperative agreements, contracts, or other 
arrangements.
    (b) Continuing State programs. Each Strategic Five-Year State Plan 
submitted by a State to carry out a continuing WIOA Title I-financially 
assisted program or activity must provide a statement that the WIOA 
Title I-financially assisted program or activity is (or, in the case of 
a new WIOA Title I-financially assisted program or activity, will be) 
conducted in compliance with the nondiscrimination and equal 
opportunity provisions of WIOA and this part, as a condition to the 
approval of the Five-Year Plan and the extension of any WIOA Title I 
financial assistance under the Plan. The State also must certify that 
it has developed and maintains a Methods of Administration under Sec.  
38.54.


Sec.  38.21  How long will the recipient's obligation under the 
assurance last, and how broad is the obligation?

    (a) Where the WIOA Title I financial assistance is intended to 
provide, or is in the form of, either personal property, real property, 
structures on real property, or interest in any such property or 
structures, the assurance will obligate the recipient, or (in the case 
of a subsequent transfer) the transferee, for the longer of:
    (1) The period during which the property is used either:
    (i) For a purpose for which WIOA Title I financial assistance is 
extended; or
    (ii) For another purpose involving the provision of similar 
services or benefits; or
    (2) The period during which either:
    (i) The recipient retains ownership or possession of the property; 
or
    (ii) The transferee retains ownership or possession of the property 
without compensating the Departmental grantmaking agency for the fair 
market value of that ownership or possession.
    (b) In all other cases, the assurance will obligate the recipient 
for the period during which WIOA Title I financial assistance is 
extended.


Sec.  38.22  How must covenants be used in connection with this part?

    (a) Where WIOA Title I financial assistance is provided in the form 
of a transfer of real property, structures, or improvements on real 
property or structures, or interests in real property or structures, 
the instrument effecting or recording the transfer must contain a 
covenant assuring nondiscrimination and equal opportunity for the 
period described in Sec.  38.21.
    (b) Where no Federal transfer of real property or interest therein 
from the Federal Government is involved, but real property or an 
interest therein is acquired or improved under a program of WIOA Title 
I financial assistance, the recipient must include the covenant 
described in paragraph (a) of this section in the instrument effecting 
or recording any subsequent transfer of such property.
    (c) When the property is obtained from the Federal Government, the 
covenant described in paragraph (a) of this section also may include a 
condition coupled with a right of reverter to the Department in the 
event of a breach of the covenant.

Equal Opportunity Officers


Sec.  38.23  Who must designate an Equal Opportunity Officer?

    Every recipient must designate an Equal Opportunity Officer (``EO 
Officer''), except small recipients and service providers, as defined 
in Sec.  38.4. The responsibilities of small recipients and service 
providers are described in Sec. Sec.  38.27 and 38.28.


Sec.  38.24  Who is eligible to serve as an Equal Opportunity Officer?

    A senior-level employee of the recipient should be appointed as the 
recipient's Equal Opportunity Officer. Depending upon the size of the 
recipient, the size of the recipient's WIOA Title I--financially 
assisted programs or activities, and the number of applicants, 
registrants, and participants served by the recipient, the EO Officer 
may, or may not, be assigned other duties. However, he or she must not 
have other responsibilities or activities that create a conflict, or 
the appearance of a conflict, with the responsibilities of an EO 
Officer.


Sec.  38.25  What are the responsibilities of an Equal Opportunity 
Officer?

    An Equal Opportunity Officer is responsible for coordinating a 
recipient's obligations under this part. Those responsibilities 
include, but are not limited to:
    (a) Serving as the recipient's liaison with CRC;
    (b) Monitoring and investigating the recipient's activities, and 
the activities of the entities that receive WIOA Title I funds from the 
recipient, to make sure that the recipient and its subrecipients are 
not violating their nondiscrimination and equal opportunity obligations 
under WIOA Title I and this part;
    (c) Reviewing the recipient's written policies to make sure that 
those policies are nondiscriminatory;
    (d) Developing and publishing the recipient's procedures for 
processing discrimination complaints under Sec. Sec.  38.76 through 
38.79, and making sure that those procedures are followed;
    (e) Reporting directly to the appropriate official (including, but 
not limited to, the State WIOA Director, Governor's WIOA Liaison, Job 
Corps Center Director, SESA Administrator, or LWIOA grant recipient) 
about equal opportunity matters;
    (f) Undergoing training (at the recipient's expense) to maintain 
competency, if the Director requires him or her, and/or his or her 
staff, to do so; and
    (g) If applicable, overseeing the development and implementation of 
the recipient's Methods of Administration under Sec.  38.54.


Sec.  38.26  What are a recipient's obligations relating to the Equal 
Opportunity Officer?

    A recipient has the following obligations:
    (a) Making the Equal Opportunity Officer's name, and his or her 
position title, address, and telephone number (voice and TDD/TTY) 
public;
    (b) Ensuring that the EO Officer's identity and contact information 
appears on all internal and external communications about the 
recipient's nondiscrimination and equal opportunity programs;
    (c) Assigning sufficient staff and resources to the Equal 
Opportunity Officer, and providing him or her with the necessary 
support of top management, to ensure compliance with the 
nondiscrimination and equal opportunity provisions of WIOA and this 
part; and
    (d) Ensuring that the EO Officer and his/her staff are afforded the 
opportunity to receive the training necessary and appropriate to 
maintain competency.


Sec.  38.27  What are the obligations of small recipients regarding 
Equal Opportunity Officers?

    Although small recipients do not need to designate Equal 
Opportunity Officers who have the full range of responsibilities listed 
above, they must designate an individual who will be responsible for 
developing and publishing of complaint procedures, and the processing 
of complaints, as explained in Sec. Sec.  38.76 through 38.79.

[[Page 43889]]

Sec.  38.28  What are the obligations of service providers regarding 
Equal Opportunity Officers?

    Service providers, as defined in Sec.  38.4, are not required to 
designate an Equal Opportunity Officer. The obligation for ensuring 
service provider compliance with the nondiscrimination and equal 
opportunity provisions of WIOA and this part rests with the Governor or 
LWIOA grant recipient, as specified in the State's Methods of 
Administration.

Notice and Communication


Sec.  38.29  What are a recipient's obligations to disseminate its 
equal opportunity policy?

    (a) A recipient must provide initial and continuing notice that it 
does not discriminate on any prohibited ground. This notice must be 
provided to:
    (1) Registrants, applicants, and eligible applicants/registrants;
    (2) Participants;
    (3) Applicants for employment and employees;
    (4) Unions or professional organizations that hold collective 
bargaining or professional agreements with the recipient;
    (5) Subrecipients that receive WIOA Title I funds from the 
recipient; and
    (6) Members of the public, including those with impaired vision or 
hearing.
    (b) As provided in Sec.  38.9, the recipient must take appropriate 
steps to ensure that communications with individuals with disabilities 
are as effective as communications with others.


Sec.  38.30  What specific wording must the notice contain?

    The notice must contain the following specific wording:

Equal Opportunity Is the Law
    It is against the law for this recipient of Federal financial 
assistance to discriminate on the following bases:
    against any individual in the United States, on the basis of 
race, color, religion, sex, national origin, age, disability, 
political affiliation or belief; and
    against any beneficiary of programs financially assisted under 
Title I of the Workforce Innovation and Opportunity Act (WIOA), on 
the basis of the beneficiary's citizenship/status as a lawfully 
admitted immigrant authorized to work in the United States, or his 
or her participation in any WIOA Title I-financially assisted 
program or activity.
    The recipient must not discriminate in any of the following 
areas:
    deciding who will be admitted, or have access, to any WIOA Title 
I-financially assisted program or activity;
    providing opportunities in, or treating any person with regard 
to, such a program or activity; or
    making employment decisions in the administration of, or in 
connection with, such a program or activity.
What To Do If You Believe You Have Experienced Discrimination
    If you think that you have been subjected to discrimination 
under a WIOA Title I-financially assisted program or activity, you 
may file a complaint within 180 days from the date of the alleged 
violation with either:
    the recipient's Equal Opportunity Officer (or the person whom 
the recipient has designated for this purpose); or
    the Director, Civil Rights Center (CRC), U.S. Department of 
Labor, 200 Constitution Avenue NW., Room N-4123, Washington, DC 
20210.
    If you file your complaint with the recipient, you must wait 
either until the recipient issues a written Notice of Final Action, 
or until 90 days have passed (whichever is sooner), before filing 
with the Civil Rights Center (see address above).
    If the recipient does not give you a written Notice of Final 
Action within 90 days of the day on which you filed your complaint, 
you do not have to wait for the recipient to issue that Notice 
before filing a complaint with CRC. However, you must file your CRC 
complaint within 30 days of the 90-day deadline (in other words, 
within 120 days after the day on which you filed your complaint with 
the recipient).
    If the recipient does give you a written Notice of Final Action 
on your complaint, but you are dissatisfied with the decision or 
resolution, you may file a complaint with CRC. You must file your 
CRC complaint within 30 days of the date on which you received the 
Notice of Final Action.


Sec.  38.31  Where must the notice required by Sec. Sec.  38.29 and 
38.30 be published?

    (a) At a minimum, the notice required by Sec. Sec.  38.29 and 38.30 
must be:
    (1) Posted prominently, in reasonable numbers and places;
    (2) Disseminated in internal memoranda and other written or 
electronic communications;
    (3) Included in handbooks or manuals; and
    (4) Made available to each participant, and made part of each 
participant's file.
    (b) The notice must be provided in appropriate formats to 
individuals with visual impairments. Where notice has been given in an 
alternate format to a participant with a visual impairment, a record 
that such notice has been given must be made a part of the 
participant's file.


Sec.  38.32  When must the notice required by Sec. Sec.  38.29 and 
38.30 be provided?

    The notice required by Sec. Sec.  38.29 and 38.30 must be initially 
provided within October 21, 2015, or within 90 days of the date this 
part first applies to the recipient, whichever comes later.


Sec.  38.33  Who is responsible for meeting the notice requirement with 
respect to service providers?

    The Governor or the LWIOA grant recipient, as determined by the 
Governor and as provided in that State's Methods of Administration, 
will be responsible for meeting the notice requirement provided in 
Sec. Sec.  38.29 and 38.30 with respect to a State's service providers.


Sec.  38.34  What type of notice must a recipient include in 
publications, broadcasts, and other communications?

    (a) Recipients must indicate that the WIOA Title I-financially 
assisted program or activity in question is an ``equal opportunity 
employer/program,'' and that ``auxiliary aids and services are 
available upon request to individuals with disabilities,'' in 
recruitment brochures and other materials that are ordinarily 
distributed or communicated in written and/or oral form, electronically 
and/or on paper, to staff, clients, or the public at large, to describe 
programs financially assisted under Title I of WIOA or the requirements 
for participation by recipients and participants. Where such materials 
indicate that the recipient may be reached by telephone, the materials 
must state the telephone number of the TDD/TTY or relay service used by 
the recipient, as required by Sec.  38.9(c).
    (b) Recipients that publish or broadcast program information in the 
news media must ensure that such publications and broadcasts state that 
the WIOA Title I-financially assisted program or activity in question 
is an equal opportunity employer/program (or otherwise indicate that 
discrimination in the WIOA Title I-financially assisted program or 
activity is prohibited by Federal law), and indicate that auxiliary 
aids and services are available upon request to individuals with 
disabilities.
    (c) A recipient must not communicate any information that suggests, 
by text or illustration, that the recipient treats beneficiaries, 
registrants, applicants, participants, employees or applicants for 
employment differently on any prohibited ground specified in Sec.  
38.5, except as such treatment is otherwise permitted under Federal law 
or this part.


Sec.  38.35  What are a recipient's responsibilities to provide 
services and information in languages other than English?

    (a) A significant number or proportion of the population eligible 
to be served, or likely to be directly affected, by a WIOA Title I-
financially assisted program or activity may need services or 
information in a language other than

[[Page 43890]]

English in order to be effectively informed about, or able to 
participate in, the program or activity. Where such a significant 
number or proportion exists, a recipient must take the following 
actions:
    (1) Consider:
    (i) The scope of the program or activity; and
    (ii) The size and concentration of the population that needs 
services or information in a language other than English; and
    (2) Based on those considerations, take reasonable steps to provide 
services and information in appropriate languages. This information 
must include the initial and continuing notice required under 
Sec. Sec.  38.29 and 38.30, and all information that is communicated 
under Sec.  38.34.
    (b) In circumstances other than those described in paragraph (a) of 
this section, a recipient should nonetheless make reasonable efforts to 
meet the particularized language needs of limited-English-speaking 
individuals who seek services or information from the recipient.


Sec.  38.36  What responsibilities does a recipient have to communicate 
information during orientations?

    During each presentation to orient new participants, new employees, 
and/or the general public to its WIOA Title I-financially assisted 
program or activity, a recipient must include a discussion of rights 
under the nondiscrimination and equal opportunity provisions of WIOA 
and this part, including the right to file a complaint of 
discrimination with the recipient or the Director.

Data and Information Collection and Maintenance


Sec.  38.37  What are a recipient's responsibilities to collect and 
maintain data and other information?

    (a) The Director will not require submission of data that can be 
obtained from existing reporting requirements or sources, including 
those of other agencies, if the source is known and available to the 
Director.
    (b)(1) Each recipient must collect such data and maintain such 
records, in accordance with procedures prescribed by the Director, as 
the Director finds necessary to determine whether the recipient has 
complied or is complying with the nondiscrimination and equal 
opportunity provisions of WIOA or this part. The system and format in 
which the records and data are kept must be designed to allow the 
Governor and CRC to conduct statistical or other quantifiable data 
analyses to verify the recipient's compliance with section 188 of WIOA 
and this part.
    (2) Such records must include, but are not limited to, records on 
applicants, registrants, eligible applicants/registrants, participants, 
terminees, employees, and applicants for employment. Each recipient 
must record the race/ethnicity, sex, age, and where known, disability 
status, of every applicant, registrant, eligible applicant/registrant, 
participant, terminee, applicant for employment, and employee. Such 
information must be stored in a manner that ensures confidentiality, 
and must be used only for the purposes of recordkeeping and reporting; 
determining eligibility, where appropriate, for WIOA Title I-
financially assisted programs or activities; determining the extent to 
which the recipient is operating its WIOA Title I-financially assisted 
program or activity in a nondiscriminatory manner; or other use 
authorized by law.
    (c) Each recipient must maintain, and submit to CRC upon request, a 
log of complaints filed with it that allege discrimination on the 
ground(s) of race, color, religion, sex, national origin, age, 
disability, political affiliation or belief, citizenship, and/or 
participation in a WIOA Title I-financially assisted program or 
activity. The log must include: The name and address of the 
complainant; the ground of the complaint; a description of the 
complaint; the date the complaint was filed; the disposition and date 
of disposition of the complaint; and other pertinent information. 
Information that could lead to identification of a particular 
individual as having filed a complaint must be kept confidential.
    (d) Where designation of individuals by race or ethnicity is 
required, the guidelines of the Office of Management and Budget must be 
used.
    (e) A service provider's responsibility for collecting and 
maintaining the information required under this section may be assumed 
by the Governor or LWIOA grant recipient, as provided in the State's 
Methods of Administration.


Sec.  38.38  What information must grant applicants and recipients 
provide to CRC?

    In addition to the information which must be collected, maintained, 
and, upon request, submitted to CRC under Sec.  38.37:
    (a) Each grant applicant and recipient must promptly notify the 
Director when any administrative enforcement actions or lawsuits are 
filed against it alleging discrimination on the ground of race, color, 
religion, sex, national origin, age, disability, political affiliation 
or belief, and for beneficiaries only, citizenship or participation in 
a WIOA Title I-financially assisted program or activity. This 
notification must include:
    (1) The names of the parties to the action or lawsuit;
    (2) The forum in which each case was filed; and
    (3) The relevant case numbers.
    (b) Each grant applicant (as part of its application) and recipient 
(as part of a compliance review conducted under Sec.  38.63, or 
monitoring activity carried out under Sec.  38.65) must provide the 
following information:
    (1) The name of any other Federal agency that conducted a civil 
rights compliance review or complaint investigation, and that found the 
grant applicant or recipient to be in noncompliance, during the two 
years before the grant application was filed or CRC began its 
examination; and
    (2) Information about any administrative enforcement actions or 
lawsuits that alleged discrimination on any protected basis, and that 
were filed against the grant applicant or recipient during the two 
years before the application or renewal application, compliance review, 
or monitoring activity. This information must include:
    (i) The names of the parties;
    (ii) The forum in which each case was filed; and
    (iii) The relevant case numbers.
    (c) At the discretion of the Director, grant applicants and 
recipients may be required to provide, in a timely manner, any 
information and data necessary to investigate complaints and conduct 
compliance reviews on grounds prohibited under the nondiscrimination 
and equal opportunity provisions of WIOA and this part.
    (d) At the discretion of the Director, recipients may be required 
to provide, in a timely manner, the particularized information and/or 
to submit the periodic reports that the Director considers necessary to 
determine compliance with the nondiscrimination and equal opportunity 
provisions of WIOA or this part.
    (e) At the discretion of the Director, grant applicants may be 
required to submit, in a timely manner, the particularized information 
necessary to determine whether or not the grant applicant, if 
financially assisted, would be able to comply with the 
nondiscrimination and equal opportunity provisions of WIOA or this 
part.
    (f) Where designation of individuals by race or ethnicity is 
required, the guidelines of the Office of Management and Budget must be 
used.

[[Page 43891]]

Sec.  38.39  How long must grant applicants and recipients maintain the 
records required under this part?

    (a) Each recipient must maintain the following records for a period 
of not less than three years from the close of the applicable program 
year:
    (1) The records of applicants, registrants, eligible applicants/
registrants, participants, terminees, employees, and applicants for 
employment; and
    (2) Such other records as are required under this part or by the 
Director.
    (b) Records regarding complaints and actions taken on the 
complaints must be maintained for a period of not less than three years 
from the date of resolution of the complaint.


Sec.  38.40  What access to sources of information must grant 
applicants and recipients provide the Director?

    (a) Each grant applicant and recipient must permit access by the 
Director during normal business hours to its premises and to its 
employees and participants, to the extent that such individuals are on 
the premises during the course of the investigation, for the purpose of 
conducting complaint investigations, compliance reviews, monitoring 
activities associated with a State's development and implementation of 
a Methods of Administration, and inspecting and copying such books, 
records, accounts and other materials as may be pertinent to ascertain 
compliance with and ensure enforcement of the nondiscrimination and 
equal opportunity provisions of WIOA or this part.
    (b) Asserted considerations of privacy or confidentiality are not a 
basis for withholding information from CRC and will not bar CRC from 
evaluating or seeking to enforce compliance with the nondiscrimination 
and equal opportunity provisions of WIOA and this part.
    (c) Whenever any information that the Director asks a grant 
applicant or recipient to provide is in the exclusive possession of 
another agency, institution, or person, and that agency, institution, 
or person fails or refuses to furnish the information upon request, the 
grant applicant or recipient must certify to CRC that it has made 
efforts to obtain the information and that the agency, institution, or 
person has failed or refused to provide it. This certification must 
list the name and address of the agency, institution, or person that 
has possession of the information and the specific efforts the grant 
applicant or recipient made to obtain it.


Sec.  38.41  What responsibilities do grant applicants, recipients, and 
the Department have to maintain the confidentiality of the information 
collected?

    The identity of any individual who furnishes information relating 
to, or assisting in, an investigation or a compliance review, including 
the identity of any individual who files a complaint, must be kept 
confidential to the extent possible, consistent with a fair 
determination of the issues. An individual whose identity it is 
necessary to disclose must be protected from retaliation (see Sec.  
38.11).


Sec.  38.42  What are a recipient's responsibilities under this part to 
provide universal access to WIOA Title I-financially assisted programs 
and activities?

    Recipients must take appropriate steps to ensure that they are 
providing universal access to their WIOA Title I-financially assisted 
programs and activities. These steps should involve reasonable efforts 
to include members of both sexes, various racial and ethnic groups, 
individuals with disabilities, and individuals in differing age groups. 
Such efforts may include, but are not limited to:
    (a) Advertising the recipient's programs and/or activities in 
media, such as newspapers or radio programs, that specifically target 
various populations;
    (b) Sending notices about openings in the recipient's programs and/
or activities to schools or community service groups that serve various 
populations; and
    (c) Consulting with appropriate community service groups about ways 
in which the recipient may improve its outreach and service to various 
populations.

Subpart C--Governor's Responsibilities To Implement the 
Nondiscrimination and Equal Opportunity Requirements of WIOA


Sec.  38.50  To whom does this subpart apply?

    This subpart applies to State Programs as defined in Sec.  38.4. 
However, the provisions of Sec.  38.52(b) do not apply to State 
Employment Security Agencies (SESAs), because the Governor's liability 
for any noncompliance on the part of a SESA cannot be waived.


Sec.  38.51  What are a Governor's oversight responsibilities?

    The Governor is responsible for oversight of all WIOA Title I-
financially assisted State programs. This responsibility includes 
ensuring compliance with the nondiscrimination and equal opportunity 
provisions of WIOA and this part, and negotiating, where appropriate, 
with a recipient to secure voluntary compliance when noncompliance is 
found under Sec.  38.95(b).


Sec.  38.52  To what extent may a Governor be liable for the actions of 
a recipient he or she has financially assisted under WIOA Title I?

    (a) The Governor and the recipient are jointly and severally liable 
for all violations of the nondiscrimination and equal opportunity 
provisions of WIOA and this part by the recipient, unless the Governor 
has:
    (1) Established and adhered to a Methods of Administration, under 
Sec.  38.54, designed to give reasonable guarantee of the recipient's 
compliance with such provisions;
    (2) Entered into a written contract with the recipient that clearly 
establishes the recipient's obligations regarding nondiscrimination and 
equal opportunity;
    (3) Acted with due diligence to monitor the recipient's compliance 
with these provisions; and
    (4) Taken prompt and appropriate corrective action to effect 
compliance.
    (b) If the Director determines that the Governor has demonstrated 
substantial compliance with the requirements of paragraph (a) of this 
section, he or she may recommend to the Secretary that the imposition 
of sanctions against the Governor be waived and that sanctions be 
imposed only against the noncomplying recipient.


Sec.  38.53  What are a Governor's oversight responsibilities regarding 
recipients' recordkeeping?

    The Governor must ensure that recipients collect and maintain 
records in a manner consistent with the provisions of Sec.  38.38 and 
any procedures prescribed by the Director under Sec.  38.38(b). The 
Governor must further ensure that recipients are able to provide data 
and reports in the manner prescribed by the Director.


Sec.  38.54  What are a Governor's obligations to develop and maintain 
a Methods of Administration?

    (a)(1) Each Governor must establish and adhere to a Methods of 
Administration for State programs as defined in Sec.  38.4. In those 
States in which one agency contains both SESA or unemployment insurance 
and WIOA Title I-financially assisted programs, the Governor should 
develop a combined Methods of Administration.
    (2) Each Methods of Administration must be designed to give a 
reasonable guarantee that all recipients will comply, and are 
complying, with the nondiscrimination and equal

[[Page 43892]]

opportunity provisions of WIOA and this part.
    (b) The Methods of Administration must be:
    (1) In writing, addressing each requirement of Sec.  38.54(d) with 
narrative and documentation;
    (2) Reviewed and updated as required in Sec.  38.55; and
    (3) Signed by the Governor.
    (c) [Reserved]
    (d) At a minimum, each Methods of Administration must:
    (1) Describe how the State programs and recipients have satisfied 
the requirements of the following regulations:
    (i) Sections 38.20 through 38.22 (Assurances);
    (ii) Sections 38.23 through 38.28 (Equal Opportunity Officers);
    (iii) Sections 38.29 through 38.36 (Notice and Communication);
    (iv) Sections 38.38 through 38.41 (Data and Information Collection 
and Maintenance);
    (v) Section 38.42 (universal access);
    (vi) Section 38.53 (Governor's oversight responsibilities regarding 
recipients' recordkeeping); and
    (vii) Sections 38.70 through 38.79 (Complaint Processing 
Procedures); and
    (2) Include the following additional elements:
    (i) A system for determining whether a grant applicant, if 
financially assisted, and/or a training provider, if selected as 
eligible under section 122 of the Act, is likely to conduct its WIOA 
Title I--financially assisted programs or activities in a 
nondiscriminatory way, and to comply with the regulations in this part;
    (ii) A system for periodically monitoring the compliance of 
recipients with WIOA section 188 and this part, including a 
determination as to whether each recipient is conducting its WIOA Title 
I--financially assisted program or activity in a nondiscriminatory way. 
At a minimum, each periodic monitoring review required by this 
paragraph (d)(2)(ii) must include:
    (A) A statistical or other quantifiable analysis of records and 
data kept by the recipient under Sec.  38.38, including analyses by 
race/ethnicity, sex, age, and disability status;
    (B) An investigation of any significant differences identified in 
paragraph (d)(2)(ii)(A) of this section in participation in the 
programs, activities, or employment provided by the recipient, to 
determine whether these differences appear to be caused by 
discrimination. This investigation must be conducted through review of 
the recipient's records and any other appropriate means; and
    (C) An assessment to determine whether the recipient has fulfilled 
its administrative obligations under section 188 or this part (for 
example, recordkeeping, notice and communication) and any duties 
assigned to it under the MOA;
    (iii) A review of recipient policy issuances to ensure they are 
nondiscriminatory;
    (iv) A system for reviewing recipients' job training plans, 
contracts, assurances, and other similar agreements to ensure that they 
are both nondiscriminatory and contain the required language regarding 
nondiscrimination and equal opportunity;
    (v) Procedures for ensuring that recipients comply with the 
requirements of Section 504 and this part with regard to individuals 
with disabilities;
    (vi) A system of policy communication and training to ensure that 
EO Officers and members of the recipients' staffs who have been 
assigned responsibilities under the nondiscrimination and equal 
opportunity provisions of WIOA or this part are aware of and can 
effectively carry out these responsibilities;
    (vii) Procedures for obtaining prompt corrective action or, as 
necessary, applying sanctions when noncompliance is found; and
    (viii) Supporting documentation to show that the commitments made 
in the Methods of Administration have been and/or are being carried 
out. This supporting documentation includes, but is not limited to:
    (A) Policy and procedural issuances concerning required elements of 
the Methods of Administration;
    (B) Copies of monitoring instruments and instructions;
    (C) Evidence of the extent to which nondiscrimination and equal 
opportunity policies have been developed and communicated as required 
by this part;
    (D) Information reflecting the extent to which Equal Opportunity 
training, including training called for by Sec. Sec.  38.25(f) and 
38.26(c), is planned and/or has been carried out;
    (E) Reports of monitoring reviews and reports of follow-up actions 
taken under those reviews where violations have been found, including, 
where appropriate, sanctions; and
    (F) Copies of any notices made under Sec. Sec.  38.29 through 
38.36.


Sec.  38.55  When must the Governor carry out his or her obligations 
with regard to the Methods of Administration?

    (a) Within either January 19, 2016, or the date on which the 
Department gives final approval to a State's Five-Year Plan, whichever 
is later, a Governor must:
    (1) Develop and implement a Methods of Administration consistent 
with the requirements of this part, and
    (2) Submit a copy of the Methods of Administration to the Director.
    (b) The Governor must promptly update the Methods of Administration 
whenever necessary, and must notify the Director in writing at the time 
that any such updates are made.
    (c) Every two years from the date on which the initial MOA is 
submitted to the Director under paragraph (a)(2) of this section, the 
Governor must review the Methods of Administration and the manner in 
which it has been implemented, and determine whether any changes are 
necessary in order for the State to comply fully and effectively with 
the nondiscrimination and equal opportunity provisions of WIOA and this 
part.
    (1) If any such changes are necessary, the Governor must make the 
appropriate changes and submit them, in writing, to the Director.
    (2) If the Governor determines that no such changes are necessary, 
s/he must certify, in writing, to the Director that the Methods of 
Administration previously submitted continues in effect.

Subpart D--Compliance Procedures


Sec.  38.60  How does the Director evaluate compliance with the 
nondiscrimination and equal opportunity provisions of WIOA and this 
part?

    From time to time, the Director may conduct pre-approval compliance 
reviews of grant applicants for, and post-approval compliance reviews 
of recipients of, WIOA Title I financial assistance, to determine 
compliance with the nondiscrimination and equal opportunity provisions 
of WIOA and this part. Reviews may focus on one or more specific 
programs or activities, or one or more issues within a program or 
activity. The Director may also investigate and resolve complaints 
alleging violations of the nondiscrimination and equal opportunity 
provisions of WIOA and this part.


Sec.  38.61  Is there authority to issue subpoenas?

    (a) Yes, section 183(c) of WIOA authorizes the issuance of 
subpoenas. A subpoena may direct the individual named on the subpoena 
to take the following actions:
    (1) To appear:
    (i) Before a designated CRC representative;

[[Page 43893]]

    (ii) At a designated time and place;
    (2) To give testimony; and/or
    (3) To produce documentary evidence.
    (b) The subpoena may require the appearance of witnesses, and the 
production of documents, from any place in the United States, at any 
designated time and place.

Compliance Reviews


Sec.  38.62  What are the authority and procedures for conducting pre-
approval compliance reviews?

    (a) As appropriate and necessary to ensure compliance with the 
nondiscrimination and equal opportunity provisions of WIOA or this 
part, the Director may review any application, or class of 
applications, for Federal financial assistance under Title I of WIOA, 
before and as a condition of their approval. The basis for such review 
may be the assurance specified in Sec.  38.20, information and reports 
submitted by the grant applicant under this part or guidance published 
by the Director, and any relevant records on file with the Department.
    (b) Where the Director determines that the grant applicant for 
Federal financial assistance under WIOA Title I, if financially 
assisted, might not comply with the nondiscrimination and equal 
opportunity requirements of WIOA or this part, the Director must:
    (1) Notify, in a timely manner, the Departmental grantmaking agency 
and the Assistant Attorney General of the findings of the pre-approval 
compliance review; and
    (2) Issue a Letter of Findings. The Letter of Findings must advise 
the grant applicant, in writing, of:
    (i) The preliminary findings of the review;
    (ii) The proposed remedial or corrective action under Section 38.94 
and the time within which the remedial or corrective action should be 
completed;
    (iii) Whether it will be necessary for the grant applicant to enter 
into a written Conciliation Agreement as described in Sec. Sec.  38.95 
and 38.97; and
    (iv) The opportunity to engage in voluntary compliance 
negotiations.
    (c) If a grant applicant has agreed to certain remedial or 
corrective actions in order to receive WIOA Title I-funded Federal 
financial assistance, the Department must ensure that the remedial or 
corrective actions have been taken, or that a Conciliation Agreement 
has been entered into, before approving the award of further assistance 
under WIOA Title I. If a grant applicant refuses or fails to take 
remedial or corrective actions or to enter into a Conciliation 
Agreement, as applicable, the Director must follow the procedures 
outlined in Sec. Sec.  38.98 through 38.100.


Sec.  38.63  What are the authority and procedures for conducting post-
approval compliance reviews?

    (a) The Director may initiate a post-approval compliance review of 
any recipient to determine compliance with the nondiscrimination and 
equal opportunity provisions of WIOA and this part. The initiation of a 
post-approval review may be based on, but need not be limited to, the 
results of routine program monitoring by other Departmental or Federal 
agencies, or the nature or frequency of complaints.
    (b) A post-approval review must be initiated by a Notification 
Letter, advising the recipient of:
    (1) The practices to be reviewed;
    (2) The programs to be reviewed;
    (3) The information, records, and/or data to be submitted by the 
recipient within 30 days of the receipt of the Notification Letter, 
unless this time frame is modified by the Director; and
    (4) The opportunity, at any time before receipt of the Final 
Determination described in Sec. Sec.  38.99 and 38.100, to make a 
documentary or other submission that explains, validates or otherwise 
addresses the practices under review.
    (c) The Director may conduct post-approval reviews using such 
techniques as desk audits and on-site reviews.


Sec.  38.64  What procedures must the Director follow when CRC has 
completed a post-approval compliance review?

    (a) Where, as the result of a post-approval review, the Director 
has made a finding of noncompliance, he or she must issue a Letter of 
Findings. This Letter must advise the recipient, in writing, of:
    (1) The preliminary findings of the review;
    (2) Where appropriate, the proposed remedial or corrective action 
to be taken, and the time by which such action should be completed, as 
provided in Sec.  38.94;
    (3) Whether it will be necessary for the recipient to enter into a 
written assurance and/or Conciliation Agreement, as provided in 
Sec. Sec.  38.96 and 38.97; and
    (4) The opportunity to engage in voluntary compliance negotiations.
    (b) Where no violation is found, the recipient must be so informed 
in writing.


Sec.  38.65  What is the Director's authority to monitor the activities 
of a Governor?

    (a) The Director may periodically review the adequacy of the 
Methods of Administration established by a Governor, as well as the 
adequacy of the Governor's performance under the Methods of 
Administration, to determine compliance with the requirements of 
Sec. Sec.  38.50 through 38.55. The Director may review the Methods of 
Administration during a compliance review under Sec. Sec.  38.62 and 
38.63, or at another time.
    (b) Nothing in this subpart limits or precludes the Director from 
monitoring directly any WIOA Title I recipient or from investigating 
any matter necessary to determine a recipient's compliance with the 
nondiscrimination and equal opportunity provisions of WIOA or this 
part.


Sec.  38.66  What happens if a recipient fails to submit requested 
data, records, and/or information, or fails to provide CRC with the 
required access?

    The Director may issue a Notice to Show Cause to a recipient 
failing to comply with the requirements of this part, where such 
failure results in the inability of the Director to make a finding. 
Such a failure includes, but is not limited to, the recipient's failure 
or refusal to:
    (a) Submit requested information, records, and/or data within 30 
days of receiving a Notification Letter;
    (b) Submit, in a timely manner, information, records, and/or data 
requested during a compliance review, complaint investigation, or other 
action to determine a recipient's compliance with the nondiscrimination 
and equal opportunity provisions of WIOA or this part; or
    (c) Provide CRC access in a timely manner to a recipient's 
premises, records, or employees during a compliance review, as required 
in Sec.  38.40.


Sec.  38.67  What information must a Notice to Show Cause contain?

    (a) A Notice to Show Cause must contain:
    (1) A description of the violation and a citation to the pertinent 
nondiscrimination or equal opportunity provision(s) of WIOA and this 
part;
    (2) The corrective action necessary to achieve compliance or, as 
may be appropriate, the concepts and principles of acceptable 
corrective or remedial action and the results anticipated; and
    (3) A request for a written response to the findings, including 
commitments to corrective action or the presentation of opposing facts 
and evidence.
    (b) A Notice to Show Cause must give the recipient 30 days to show 
cause why enforcement proceedings under the nondiscrimination and equal

[[Page 43894]]

opportunity provisions of WIOA or this part should not be instituted.


Sec.  38.68  How may a recipient show cause why enforcement proceedings 
should not be instituted?

    A recipient may show cause why enforcement proceedings should not 
be instituted by, among other means:
    (a) Correcting the violation(s) that brought about the Notice to 
Show Cause and entering into a written assurance and/or entering into a 
Conciliation Agreement, as appropriate, under Sec. Sec.  38.95 through 
38.97;
    (b) Demonstrating that CRC does not have jurisdiction; or
    (c) Demonstrating that the violation alleged by CRC did not occur.


Sec.  38.69  What happens if a recipient fails to show cause?

    If the recipient fails to show cause why enforcement proceedings 
should not be initiated, the Director must follow the enforcement 
procedures outlined in Sec. Sec.  38.99 and 38.100.

Complaint Processing Procedures


Sec.  38.70  Who may file a complaint concerning discrimination 
connected with WIOA Title I?

    Any person who believes that either he or she, or any specific 
class of individuals, has been or is being subjected to discrimination 
prohibited by WIOA or this part, may file a written complaint, either 
by him/herself or through a representative.


Sec.  38.71  Where may a complaint be filed?

    A complainant may file a complaint with either the recipient or the 
Director. Complaints filed with the Director should be sent to the 
address listed in the notice in Sec.  38.30.


Sec.  38.72  When must a complaint be filed?

    Generally, a complaint must be filed within 180 days of the alleged 
discrimination. However, for good cause shown, the Director may extend 
the filing time. The time period for filing is for the administrative 
convenience of CRC, and does not create a defense for the respondent.


Sec.  38.73  What information must a complaint contain?

    Each complaint must be filed in writing, and must contain the 
following information:
    (a) The complainant's name and address (or another means of 
contacting the complainant);
    (b) The identity of the respondent (the individual or entity that 
the complainant alleges is responsible for the discrimination);
    (c) A description of the complainant's allegations. This 
description must include enough detail to allow the Director or the 
recipient, as applicable, to decide whether:
    (1) CRC or the recipient, as applicable, has jurisdiction over the 
complaint;
    (2) The complaint was filed in time; and
    (3) The complaint has apparent merit; in other words, whether the 
complainant's allegations, if true, would violate any of the 
nondiscrimination and equal opportunity provisions of WIOA or this 
part; and
    (d) The complainant's signature or the signature of the 
complainant's authorized representative.


Sec.  38.74  Are there any forms that a complainant may use to file a 
complaint?

    Yes. A complainant may file a complaint by completing and 
submitting CRC's Complaint Information and Privacy Act Consent Forms, 
which may be obtained either from the recipient's EO Officer, or from 
CRC at the address listed in the notice contained in Sec.  38.30.


Sec.  38.75  Is there a right of representation in the complaint 
process?

    Yes. Both the complainant and the respondent have the right to be 
represented by an attorney or other individual of their choice.


Sec.  38.76  What are the required elements of a recipient's 
discrimination complaint processing procedures?

    (a) The procedures that a recipient adopts and publishes must 
provide that the recipient will issue a written Notice of Final Action 
on discrimination complaints within 90 days of the date on which the 
complaint is filed.
    (b) At a minimum, the procedures must include the following 
elements:
    (1) Initial, written notice to the complainant that contains the 
following information:
    (i) An acknowledgment that the recipient has received the 
complaint; and
    (ii) Notice that the complainant has the right to be represented in 
the complaint process;
    (2) A written statement of the issue(s), provided to the 
complainant, that includes the following information:
    (i) A list of the issues raised in the complaint; and
    (ii) For each such issue, a statement whether the recipient will 
accept the issue for investigation or reject the issue, and the reasons 
for each rejection;
    (3) A period for fact-finding or investigation of the circumstances 
underlying the complaint;
    (4) A period during which the recipient attempts to resolve the 
complaint. The methods available to resolve the complaint must include 
alternative dispute resolution (ADR), as described in paragraph (c) of 
this section;
    (5) A written Notice of Final Action, provided to the complainant 
within 90 days of the date on which the complaint was filed, that 
contains the following information:
    (i) For each issue raised in the complaint, a statement of either:
    (A) The recipient's decision on the issue and an explanation of the 
reasons underlying the decision; or
    (B) A description of the way the parties resolved the issue; and
    (ii) Notice that the complainant has a right to file a complaint 
with CRC within 30 days of the date on which the Notice of Final Action 
is issued if he or she is dissatisfied with the recipient's final 
action on the complaint.
    (c) The procedures the recipient adopts must provide for 
alternative dispute resolution (ADR). The recipient's ADR procedures 
must provide that:
    (1) The choice whether to use ADR or the customary process rests 
with the complainant;
    (2) A party to any agreement reached under ADR may file a complaint 
with the Director in the event the agreement is breached. In such 
circumstances, the following rules will apply:
    (i) The non-breaching party may file a complaint with the Director 
within 30 days of the date on which the non-breaching party learns of 
the alleged breach;
    (ii) The Director must evaluate the circumstances to determine 
whether the agreement has been breached. If he or she determines that 
the agreement has been breached, the complainant may file a complaint 
with CRC based upon his/her original allegation(s), and the Director 
will waive the time deadline for filing such a complaint.
    (3) If the parties do not reach an agreement under ADR, the 
complainant may file a complaint with the Director as described in 
Sec. Sec.  38.71 through 38.74.


Sec.  38.77  Who is responsible for developing and publishing complaint 
processing procedures for service providers?

    The Governor or the LWIOA grant recipient, as provided in the 
State's Methods of Administration, must develop and publish, on behalf 
of its service providers, the complaint processing procedures required 
in Sec.  38.76. The service providers must then follow those 
procedures.

[[Page 43895]]

Sec.  38.78  Does a recipient have any special obligations in cases in 
which the recipient determines that it has no jurisdiction over a 
complaint?

    Yes. If a recipient determines that it does not have jurisdiction 
over a complaint, it must notify the complainant, in writing, 
immediately. This Notice of Lack of Jurisdiction must include:
    (a) A statement of the reasons for that determination; and
    (b) Notice that the complainant has a right to file a complaint 
with CRC within 30 days of the date on which the complainant receives 
the Notice.


Sec.  38.79  If, before the 90-day period has expired, a recipient 
issues a Notice of Final Action with which the complainant is 
dissatisfied, how long does the complainant have to file a complaint 
with the Director?

    If, during the 90-day period, the recipient issues its Notice of 
Final Action, but the complainant is dissatisfied with the recipient's 
decision on the complaint, the complainant or his/her representative 
may file a complaint with the Director within 30 days after the date on 
which the complainant receives the Notice.


Sec.  38.80  What happens if a recipient fails to issue a Notice of 
Final Action within 90 days of the date on which a complaint was filed?

    If, by the end of 90 days from the date on which the complainant 
filed the complaint, the recipient has failed to issue a Notice of 
Final Action, the complainant or his/her representative may file a 
complaint with the Director within 30 days of the expiration of the 90-
day period. In other words, the complaint must be filed with the 
Director within 120 days of the date on which the complaint was filed 
with the recipient.


Sec.  38.81  Are there any circumstances under which the Director may 
extend the time limit for filing a complaint with him or her?

    (a) Yes. The Director may extend the 30-day time limit:
    (1) If the recipient does not include in its Notice of Final Action 
the required notice about the complainant's right to file with the 
Director, as described in Sec.  38.76(b)(5)(ii); or
    (2) For other good cause shown.
    (b) The complainant has the burden of proving to the Director that 
the time limit should be extended.


Sec.  38.82  Does the Director accept every complaint for resolution?

    No. The Director must determine whether CRC will accept a 
particular complaint for resolution. For example, a complaint need not 
be accepted if:
    (a) It has not been timely filed;
    (b) CRC has no jurisdiction over the complaint; or
    (c) CRC has previously decided the matter.


Sec.  38.83  What happens if a complaint does not contain enough 
information?

    (a) If a complaint does not contain enough information, the 
Director must try to get the needed information from the complainant.
    (b) The Director may close the complainant's file, without 
prejudice, if:
    (1) The Director makes reasonable efforts to try to find the 
complainant, but is unable to reach him or her; or
    (2) The complainant does not provide the needed information to CRC 
within the time specified in the request for more information.
    (c) If the Director closes the complainant's file, he or she must 
send written notice to the complainant's last known address.


Sec.  38.84  What happens if CRC does not have jurisdiction over a 
complaint?

    If CRC does not have jurisdiction over a complaint, the Director 
must:
    (a) Notify the complainant and explain why the complaint falls 
outside the coverage of the nondiscrimination and equal opportunity 
provisions of WIOA or this part; and
    (b) Where possible, transfer the complaint to an appropriate 
Federal, State or local authority.


Sec.  38.85  Are there any other circumstances in which the Director 
will send a complaint to another authority?

    Yes. The Director refers complaints to other agencies in the 
following circumstances:
    (a) Where the complaint alleges discrimination based on age, and 
the complaint falls within the jurisdiction of the Age Discrimination 
Act of 1975, as amended, then the Director must refer the complaint, in 
accordance with the provisions of 45 CFR 90.43(c)(3).
    (b) Where the only allegation in the complaint is a charge of 
individual employment discrimination that is covered both by WIOA or 
this part and by one or more of the laws listed below, then the 
complaint is a ``joint complaint,'' and the Director may refer it to 
the EEOC for investigation and conciliation under the procedures 
described in 29 CFR part 1640 or 1691, as appropriate. The relevant 
laws are:
    (1) Title VII of the Civil Rights Act of 1964, as amended (42 
U.S.C. 2000e to 2000e-17);
    (2) The Equal Pay Act of 1963, as amended (29 U.S.C. 206(d));
    (3) The Age Discrimination in Employment Act of 1976, as amended 
(29 U.S.C. 621, et seq.); and
    (4) Title I of the Americans with Disabilities Act of 1990, as 
amended (42 U.S.C. 12101 et seq.).
    (c) Where the complaint alleges discrimination by an entity that 
operates a program or activity financially assisted by a Federal 
grantmaking agency other than the Department, but that participates as 
a partner in a One-Stop delivery system, the following procedures 
apply:
    (1) Where the complaint alleges discrimination on a basis that is 
prohibited both by Section 188 of WIOA and by a civil rights law 
enforced by the Federal grantmaking agency, then CRC and the 
grantmaking agency have dual jurisdiction over the complaint, and the 
Director will refer the complaint to the grantmaking agency for 
processing. In such circumstances, the grantmaking agency's regulations 
will govern the processing of the complaint.
    (2) Where the complaint alleges discrimination on a basis that is 
prohibited by Section 188 of WIOA, but not by any civil rights laws 
enforced by the Federal grantmaking agency, then CRC has sole 
jurisdiction over the complaint, and will retain the complaint and 
process it pursuant to this part. Such bases generally include 
religion, political affiliation or belief, citizenship, and/or 
participation in a WIOA Title I--financially assisted program or 
activity.
    (d) Where the Director makes a referral under this section, he or 
she must notify the complainant and the respondent about the referral.


Sec.  38.86  What must the Director do if he or she determines that a 
complaint will not be accepted?

    If a complaint will not be accepted, the Director must notify the 
complainant, in writing, about that fact, and provide the complainant 
his/her reasons for making that determination.


Sec.  38.87  What must the Director do if he or she determines that a 
complaint will be accepted?

    If the Director accepts the complaint for resolution, he or she 
must notify the complainant, the respondent, and the grantmaking 
agency. The notice must:
    (a) State that the complaint will be accepted;
    (b) Identify the issues over which CRC has accepted jurisdiction; 
and
    (c) Explain the reasons why any issues were rejected.


Sec.  38.88  Who may contact CRC about a complaint?

    Both the complainant and the respondent, or their authorized 
representatives, may contact CRC for information about the complaint. 
The Director will determine what

[[Page 43896]]

information, if any, about the complaint will be released.


Sec.  38.89  May the Director offer the parties to a complaint the 
option of mediation?

    Yes. The Director may offer the parties to a complaint the option 
of mediating the complaint. In such circumstances, the following rules 
apply:
    (a) Mediation is voluntary; the parties must consent before the 
mediation process will proceed.
    (b) The mediation will be conducted under guidance issued by the 
Director.
    (c) If the parties are unable to reach resolution of the complaint 
through mediation, CRC will investigate and process the complaint under 
Sec. Sec.  38.82 through 38.88.

Determinations


Sec.  38.90  If a complaint is investigated, what must the Director do 
when the investigation is completed?

    At the conclusion of the investigation of the complaint, the 
Director must take the following actions:
    (a) Determine whether there is reasonable cause to believe that the 
respondent has violated the nondiscrimination and equal opportunity 
provisions of WIOA or this part; and
    (b) Notify the complainant, the respondent, and the grantmaking 
agency, in writing, of that determination.


Sec.  38.91  What notice must the Director issue if he or she finds 
reasonable cause to believe that a violation has taken place?

    If the Director finds reasonable cause to believe that the 
respondent has violated the nondiscrimination and equal opportunity 
provisions of WIOA or this part, he or she must issue an Initial 
Determination. The Initial Determination must include:
    (a) The specific findings of the investigation;
    (b) The corrective or remedial action that the Department proposes 
to the respondent, under Sec.  38.94;
    (c) The time by which the respondent must complete the corrective 
or remedial action;
    (d) Whether it will be necessary for the respondent to enter into a 
written agreement under Sec. Sec.  38.95 and 38.96; and
    (e) The opportunity to engage in voluntary compliance negotiations.


Sec.  38.92  What notice must the Director issue if he or she finds no 
reasonable cause to believe that a violation has taken place?

    If the Director determines that there is no reasonable cause to 
believe that a violation has taken place, he or she must issue a Final 
Determination under Sec.  38.100. The Final Determination represents 
the Department's final agency action on the complaint.


Sec.  38.93  What happens if the Director finds that a violation has 
taken place, and the recipient fails or refuses to take the corrective 
action listed in the Initial Determination?

    Under such circumstances, the Department must take the actions 
described in Sec.  38.99.


Sec.  38.94  What corrective or remedial actions may be imposed where, 
after a compliance review or complaint investigation, the Director 
finds a violation of the nondiscrimination and equal opportunity 
provisions of WIOA or this part?

    (a) A Letter of Findings, Notice to Show Cause, or Initial 
Determination, issued under Sec.  38.62 or Sec. Sec.  38.63, 38.66, and 
38.67, or Sec.  38.91 respectively, must include the specific steps the 
grant applicant or recipient, as applicable, must take within a stated 
period of time in order to achieve voluntary compliance.
    (b) Such steps must include:
    (1) Actions to end and/or redress the violation of the 
nondiscrimination and equal opportunity provisions of WIOA or this 
part;
    (2) Make whole relief where discrimination has been identified, 
including, as appropriate, back pay (which must not accrue from a date 
more than 2 years before the filing of the complaint or the initiation 
of a compliance review) or other monetary relief; hire or 
reinstatement; retroactive seniority; promotion; benefits or other 
services discriminatorily denied; and
    (3) Such other remedial or affirmative relief as the Director deems 
necessary, including but not limited to outreach, recruitment and 
training designed to ensure equal opportunity.
    (c) Monetary relief may not be paid from Federal funds.


Sec.  38.95  What procedures apply if the Director finds that a 
recipient has violated the nondiscrimination and equal opportunity 
provisions of WIOA or this part?

    (a) Violations at State level. Where the Director has determined 
that a violation of the nondiscrimination and equal opportunity 
provisions of WIOA or this part has occurred at the State level, he or 
she must notify the Governor through the issuance of a Letter of 
Findings, Notice to Show Cause or Initial Determination, as 
appropriate, under Sec.  38.62 or Sec. Sec.  38.63, 38.66, and 38.67, 
or Sec.  38.91, respectively. The Director may secure compliance with 
the nondiscrimination and equal opportunity provisions of WIOA and this 
part through, among other means, the execution of a written assurance 
and/or Conciliation Agreement, under paragraph (d) of this section.
    (b) Violations below State level. Where the Director has determined 
that a violation of the nondiscrimination and equal opportunity 
provisions of WIOA or this part has occurred below the State level, the 
Director must so notify the Governor and the violating recipient(s) 
through the issuance of a Letter of Findings, Notice to Show Cause or 
Initial Determination, as appropriate, under Sec.  38.62 or Sec. Sec.  
38.63, 38.66, and 38.67, or Sec.  38.91, respectively.
    (1) Such issuance must:
    (i) Direct the Governor to initiate negotiations immediately with 
the violating recipient(s) to secure compliance by voluntary means;
    (ii) Direct the Governor to complete such negotiations within 30 
days of the Governor's receipt of the Notice to Show Cause or within 45 
days of the Governor's receipt of the Letter of Findings or Initial 
Determination, as applicable. The Director reserves the right to enter 
into negotiations with the recipient at any time during the period. For 
good cause shown, the Director may approve an extension of time to 
secure voluntary compliance. The total time allotted to secure 
voluntary compliance must not exceed 60 days.
    (iii) Include a determination as to whether compliance must be 
achieved by:
    (A) Immediate correction of the violation(s) and written assurance 
that such violations have been corrected, under Sec.  38.96;
    (B) Entering into a written Conciliation Agreement under Sec.  
38.97; or
    (C) Both.
    (2) If the Governor determines, at any time during the period 
described in paragraph (b)(1)(ii) of this section, that a recipient's 
compliance cannot be achieved by voluntary means, the Governor must so 
notify the Director.
    (3) If the Governor is able to secure voluntary compliance under 
paragraph (b)(1) of this section, he or she must submit to the Director 
for approval, as applicable:
    (i) Written assurance that the required action has been taken, as 
described in Sec.  38.96;
    (ii) A copy of the Conciliation Agreement, as described in Sec.  
38.97; or
    (iii) Both.
    (4) The Director may disapprove any written assurance or 
Conciliation Agreement submitted for approval under paragraph (b)(3) of 
this section that fails to satisfy each of the

[[Page 43897]]

applicable requirements provided in Sec.  38.96 or Sec.  38.97.
    (c) Violations in National Programs. Where the Director has 
determined that a violation of the nondiscrimination and equal 
opportunity provisions of WIOA or this part has occurred in a National 
Program, he or she must notify the Federal grantmaking agency and the 
recipient by issuing a Letter of Findings, Notice to Show Cause, or 
Initial Determination, as appropriate, under Sec.  38.62 or Sec. Sec.  
38.63, 38.66, and 38.67, or Sec.  38.91, respectively. The Director may 
secure compliance with the nondiscrimination and equal opportunity 
provisions of WIOA and this part through, among other means, the 
execution of a written assurance and/or Conciliation Agreement under 
Sec.  38.96 or Sec.  38.97, as applicable.


Sec.  38.96  What are the required elements of a written assurance?

    A written assurance must provide documentation that the violations 
listed in the Letter of Findings, Notice to Show Cause or Initial 
Determination, as applicable, have been corrected.


Sec.  38.97  What are the required elements of a Conciliation 
Agreement?

    A Conciliation Agreement must:
    (a) Be in writing;
    (b) Address each cited violation;
    (c) Specify the corrective or remedial action to be taken within a 
stated period of time to come into compliance;
    (d) Provide for periodic reporting on the status of the corrective 
and remedial action;
    (e) Provide that the violation(s) will not recur; and
    (f) Provide for enforcement for a breach of the agreement.


Sec.  38.98  When will the Director conclude that compliance cannot be 
secured by voluntary means?

    The Director will conclude that compliance cannot be secured by 
voluntary means under the following circumstances:
    (a) The grant applicant or recipient fails or refuses to correct 
the violation(s) within the time period established by the Letter of 
Findings, Notice to Show Cause or Initial Determination; or
    (b) The Director has not approved an extension of time for 
agreement on voluntary compliance, under Sec.  38.95(b)(1)(ii), and he 
or she either:
    (1) Has not been notified, under Sec.  38.95(b)(3), that the grant 
applicant or recipient has agreed to voluntary compliance;
    (2) Has disapproved a written assurance or Conciliation Agreement, 
under Sec.  38.95(b)(4); or
    (3) Has received notice from the Governor, under Sec.  38.95(b)(2), 
that the grant applicant or recipient will not comply voluntarily.


Sec.  38.99  If the Director concludes that compliance cannot be 
secured by voluntary means, what actions must he or she take?

    If the Director concludes that compliance cannot be secured by 
voluntary means, he or she must either:
    (a) Issue a Final Determination;
    (b) Refer the matter to the Attorney General with a recommendation 
that an appropriate civil action be instituted; or
    (c) Take such other action as may be provided by law.


Sec.  38.100  What information must a Final Determination contain?

    A Final Determination must contain the following information:
    (a) A statement of the efforts made to achieve voluntary 
compliance, and a statement that those efforts have been unsuccessful;
    (b) A statement of those matters upon which the grant applicant or 
recipient and CRC continue to disagree;
    (c) A list of any modifications to the findings of fact or 
conclusions that were set forth in the Initial Determination, Notice to 
Show Cause or Letter of Findings;
    (d) A statement of the grant applicant's or recipient's liability, 
and, if appropriate, the extent of that liability;
    (e) A description of the corrective or remedial actions that the 
grant applicant or recipient must take to come into compliance;
    (f) A notice that if the grant applicant or recipient fails to come 
into compliance within 10 days of the date on which it receives the 
Final Determination, one or more of the following consequences may 
result:
    (1) After the grant applicant or recipient is given the opportunity 
for a hearing, its WIOA Title I funds may be terminated, discontinued, 
or withheld in whole or in part, or its application for such funds may 
be denied, as appropriate;
    (2) The Secretary of Labor may refer the case to the Department of 
Justice with a request to file suit against the grant applicant or 
recipient; or
    (3) the Secretary may take any other action against the grant 
applicant or recipient that is provided by law;
    (g) A notice of the grant applicant's or recipient's right to 
request a hearing under the procedures described in Sec. Sec.  38.112 
through 38.115; and
    (h) A determination of the Governor's liability, if any, under 
Sec.  38.52.


Sec.  38.101  Whom must the Director notify of a finding of 
noncompliance?

    Where a compliance review or complaint investigation results in a 
finding of noncompliance, the Director must notify:
    (a) The grant applicant or recipient;
    (b) The grantmaking agency; and
    (c) The Assistant Attorney General.

Breaches of Conciliation Agreements


Sec.  38.102  What happens if a grant applicant or recipient breaches a 
Conciliation Agreement?

    When it becomes known to the Director that a Conciliation Agreement 
has been breached, the Director may issue a Notification of Breach of 
Conciliation Agreement.


Sec.  38.103  Whom must the Director notify about a breach of a 
Conciliation Agreement?

    The Director must send a Notification of Breach of Conciliation 
Agreement to the Governor, the grantmaking agency, and/or other 
party(ies) to the Conciliation Agreement, as applicable.


Sec.  38.104  What information must a Notification of Breach of 
Conciliation Agreement contain?

    A Notification of Breach of Conciliation Agreement must:
    (a) Specify any efforts made to achieve voluntary compliance, and 
indicate that those efforts have been unsuccessful;
    (b) Identify the specific provisions of the Conciliation Agreement 
violated;
    (c) Determine liability for the violation and the extent of the 
liability;
    (d) Indicate that failure of the violating party to come into 
compliance within 10 days of the receipt of the Notification of Breach 
of Conciliation Agreement may result, after opportunity for a hearing, 
in the termination or denial of the grant, or discontinuation of 
assistance, as appropriate, or in referral to the Department of Justice 
with a request from the Department to file suit;
    (e) Advise the violating party of the right to request a hearing, 
and reference the applicable procedures in Sec.  38.111; and
    (f) Include a determination as to the Governor's liability, if any, 
in accordance with the provisions of Sec.  38.52.


Sec.  38.105  Whom must the Director notify if enforcement action under 
a Notification of Breach of Conciliation Agreement is commenced?

    In such circumstances, the Director must notify:
    (a) The grantmaking agency; and
    (b) The Governor, recipient or grant applicant, as applicable.

[[Page 43898]]

Subpart E--Federal Procedures for Effecting Compliance


Sec.  38.110  What enforcement procedures does the Department follow to 
effect compliance with the nondiscrimination and equal opportunity 
provisions of WIOA and this part?

    (a) Sanctions; judicial enforcement. If compliance has not been 
achieved after issuance of a Final Determination under Sec. Sec.  38.99 
and 38.100, or a Notification of Breach of Conciliation Agreement under 
Sec. Sec.  38.102 through 38.105, the Secretary may:
    (1) After opportunity for a hearing, suspend, terminate, deny or 
discontinue the WIOA Title I financial assistance, in whole or in part;
    (2) Refer the matter to the Attorney General with a recommendation 
that an appropriate civil action be instituted; or
    (3) Take such action as may be provided by law.
    (b) Deferral of new grants. When proceedings under Sec.  38.111 
have been initiated against a particular recipient, the Department may 
defer action on that recipient's applications for new WIOA Title I 
financial assistance until a Final Decision under Sec.  38.112 has been 
rendered. Deferral is not appropriate when WIOA Title I financial 
assistance is due and payable under a previously approved application.
    (1) New WIOA Title I financial assistance includes all assistance 
for which an application or approval, including renewal or continuation 
of existing activities, or authorization of new activities, is required 
during the deferral period.
    (2) New WIOA Title I financial assistance does not include 
assistance approved before the beginning of proceedings under Sec.  
38.111, or increases in funding as a result of changed computations of 
formula awards.


Sec.  38.111  What hearing procedures does the Department follow?

    (a) Notice of opportunity for hearing. As part of a Final 
Determination, or a Notification of Breach of a Conciliation Agreement, 
the Director must include, and serve on the grant applicant or 
recipient (by certified mail, return receipt requested), a notice of 
opportunity for hearing.
    (b) Complaint; request for hearing; answer. (1) In the case of 
noncompliance that cannot be voluntarily resolved, the Final 
Determination or Notification of Breach of Conciliation Agreement is 
considered the Department's formal complaint.
    (2) To request a hearing, the grant applicant or recipient must 
file a written answer to the Final Determination or Notification of 
Breach of Conciliation Agreement, and a copy of the Final Determination 
or Notification of Breach of Conciliation Agreement, with the Office of 
the Administrative Law Judges, 800 K Street NW., Suite 400, Washington, 
DC 20001.
    (i) The answer must be filed within 30 days of the date of receipt 
of the Final Determination or Notification of Breach of Conciliation 
Agreement.
    (ii) A request for hearing must be set forth in a separate 
paragraph of the answer.
    (iii) The answer must specifically admit or deny each finding of 
fact in the Final Determination or Notification of Breach of 
Conciliation Agreement. Where the grant applicant or recipient does not 
have knowledge or information sufficient to form a belief, the answer 
may so state and the statement will have the effect of a denial. 
Findings of fact not denied are considered admitted. The answer must 
separately state and identify matters alleged as affirmative defenses, 
and must also set forth the matters of fact and law relied on by the 
grant applicant or recipient.
    (3) The grant applicant or recipient must simultaneously serve a 
copy of its filing on the Office of the Solicitor, Civil Rights 
Division, Room N-2464, U.S. Department of Labor, 200 Constitution 
Avenue NW., Washington DC 20210.
    (4)(i) The failure of a grant applicant or recipient to request a 
hearing under this paragraph (b), or to appear at a hearing for which a 
date has been set, waives the right to a hearing; and
    (ii) Whenever a hearing is waived, all allegations of fact 
contained in the Final Determination or Notification of Breach of 
Conciliation Agreement are considered admitted, and the Final 
Determination or Notification of Breach of Conciliation Agreement 
becomes the Final Decision of the Secretary as of the day following the 
last date by which the grant applicant or recipient was required to 
request a hearing or was to appear at a hearing. See Sec.  
38.112(b)(3).
    (c) Time and place of hearing. Hearings will be held at a time and 
place ordered by the Administrative Law Judge upon reasonable notice to 
all parties and, as appropriate, the complainant. In selecting a place 
for the hearing, due regard must be given to the convenience of the 
parties, their counsel, and witnesses, if any.
    (d) Judicial process; evidence. (1) The Administrative Law Judge 
may use judicial process to secure the attendance of witnesses and the 
production of documents authorized by Section 9 of the Federal Trade 
Commission Act (15 U.S.C. 49).
    (2) Evidence. In any hearing or administrative review conducted 
under this part, evidentiary matters will be governed by the standards 
and principles set forth in the Uniform Rules of Evidence issued by the 
Department of Labor's Office of Administrative Law Judges, 29 CFR part 
18.


Sec.  38.112  What procedures for initial and final decisions does the 
Department follow?

    (a) Initial decision. After the hearing, the Administrative Law 
Judge must issue an initial decision and order, containing findings of 
fact and conclusions of law. The initial decision and order must be 
served on all parties by certified mail, return receipt requested.
    (b) Exceptions; final decision--(1) Final decision after a hearing. 
The initial decision and order becomes the Final Decision and Order of 
the Secretary unless exceptions are filed by a party or, in the absence 
of exceptions, the Secretary serves notice that he or she will review 
the decision.
    (i) A party dissatisfied with the initial decision and order may, 
within 45 days of receipt, file with the Secretary and serve on the 
other parties to the proceedings and on the Administrative Law Judge, 
exceptions to the initial decision and order or any part thereof.
    (ii) Upon receipt of exceptions, the Administrative Law Judge must 
index and forward the record and the initial decision and order to the 
Secretary within three days of such receipt.
    (iii) A party filing exceptions must specifically identify the 
finding or conclusion to which exception is taken. Any exception not 
specifically urged is waived.
    (iv) Within 45 days of the date of filing such exceptions, a reply, 
which must be limited to the scope of the exceptions, may be filed and 
served by any other party to the proceeding.
    (v) Requests for extensions for the filing of exceptions or replies 
must be received by the Secretary no later than 3 days before the 
exceptions or replies are due.
    (vi) If no exceptions are filed, the Secretary may, within 30 days 
of the expiration of the time for filing exceptions, on his or her own 
motion serve notice on the parties that the Secretary will review the 
decision.
    (vii) Final decision and order. (A) Where exceptions have been 
filed, the initial decision and order of the Administrative Law Judge 
becomes the Final Decision and Order of the Secretary unless the 
Secretary, within 30 days of the expiration of the time for filing 
exceptions and replies, has

[[Page 43899]]

notified the parties that the case is accepted for review.
    (B) Where exceptions have not been filed, the initial decision and 
order of the Administrative Law Judge becomes the Final Decision and 
Order of the Secretary unless the Secretary has served notice on the 
parties that he or she will review the decision, as provided in 
paragraph (b)(1)(vi) of this section.
    (viii) Any case reviewed by the Secretary under this paragraph (b) 
must be decided within 180 days of the notification of such review. If 
the Secretary fails to issue a Final Decision and Order within the 180-
day period, the initial decision and order of the Administrative Law 
Judge becomes the Final Decision and Order of the Secretary.
    (2) Final Decision where a hearing is waived.
    (i) If, after issuance of a Final Determination under Sec.  38.100 
or Notification of Breach of Conciliation Agreement under Sec.  38.104, 
voluntary compliance has not been achieved within the time set by this 
part and the opportunity for a hearing has been waived as provided for 
in Sec.  38.111(b)(4), the Final Determination or Notification of 
Breach of Conciliation Agreement becomes the Final Decision of the 
Secretary.
    (ii) When a Final Determination or Notification of Breach of 
Conciliation Agreement becomes the Final Decision of the Secretary, the 
Secretary may, within 45 days, issue an order terminating or denying 
the grant or continuation of assistance or imposing other appropriate 
sanctions for the grant applicant or recipient's failure to comply with 
the required corrective and/or remedial actions, or referring the 
matter to the Attorney General for further enforcement action.
    (3) Final agency action. A Final Decision and Order issued under 
paragraph (b) of this section constitutes final agency action.


Sec.  38.113  What procedure does the Department follow to suspend, 
terminate, withhold, deny or discontinue WIOA Title I financial 
assistance?

    Any action to suspend, terminate, deny or discontinue WIOA Title I 
financial assistance must be limited to the particular political 
entity, or part thereof, or other recipient (or grant applicant) as to 
which the finding has been made, and must be limited in its effect to 
the particular program, or part thereof, in which the noncompliance has 
been found. No order suspending, terminating, denying or discontinuing 
WIOA Title I financial assistance will become effective until:
    (a) The Director has issued a Final Determination under Sec.  
38.100 or Notification of Breach of Conciliation Agreement under Sec.  
38.104;
    (b) There has been an express finding on the record, after 
opportunity for a hearing, of failure by the grant applicant or 
recipient to comply with a requirement imposed by or under the 
nondiscrimination and equal opportunity provisions of WIOA or this 
part;
    (c) A Final Decision has been issued by the Secretary, the 
Administrative Law Judge's decision and order has become the Final 
Decision of the Secretary, or the Final Determination or Notification 
of Conciliation Agreement has been deemed the Final Decision of the 
Secretary, under Sec.  38.112(b); and
    (d) The expiration of 30 days after the Secretary has filed, with 
the committees of Congress having legislative jurisdiction over the 
program involved, a full written report of the circumstances and 
grounds for such action.


Sec.  38.114  What procedure does the Department follow to distribute 
WIOA Title I financial assistance to an alternate recipient?

    When the Department withholds funds from a recipient or grant 
applicant under these regulations, the Secretary may disburse the 
withheld funds directly to an alternate recipient. In such case, the 
Secretary will require any alternate recipient to demonstrate:
    (a) The ability to comply with these regulations; and
    (b) The ability to achieve the goals of the nondiscrimination and 
equal opportunity provisions of WIOA.


Sec.  38.115  What procedures does the Department follow for post-
termination proceedings?

    (a) A grant applicant or recipient adversely affected by a Final 
Decision and Order issued under Sec.  38.112(b) will be restored, where 
appropriate, to full eligibility to receive WIOA Title I financial 
assistance if the grant applicant or recipient satisfies the terms and 
conditions of the Final Decision and Order and brings itself into 
compliance with the nondiscrimination and equal opportunity provisions 
of WIOA and this part.
    (b) A grant applicant or recipient adversely affected by a Final 
Decision and Order issued under Sec.  38.112(b) may at any time 
petition the Director to restore its eligibility to receive WIOA Title 
I financial assistance. A copy of the petition must be served on the 
parties to the original proceeding that led to the Final Decision and 
Order. The petition must be supported by information showing the 
actions taken by the grant applicant or recipient to bring itself into 
compliance. The grant applicant or recipient has the burden of 
demonstrating that it has satisfied the requirements of paragraph (a) 
of this section. While proceedings under this section are pending, 
sanctions imposed by the Final Decision and Order under Sec.  38.112(b) 
(1) and (2) must remain in effect.
    (c) The Director must issue a written decision on the petition for 
restoration.
    (1) If the Director determines that the grant applicant or 
recipient has not brought itself into compliance, he or she must issue 
a decision denying the petition.
    (2) Within 30 days of its receipt of the Director's decision, the 
recipient or grant applicant may file a petition for review of the 
decision by the Secretary, setting forth the grounds for its objection 
to the Director's decision.
    (3) The petition must be served on the Director and on the Office 
of the Solicitor, Civil Rights Division.
    (4) The Director may file a response to the petition within 14 
days.
    (5) The Secretary must issue the final agency decision denying or 
granting the recipient's or grant applicant's request for restoration 
to eligibility.

[FR Doc. 2015-17637 Filed 7-22-15; 8:45 am]
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